South Dakota Personal Injury Law
People are injured every day across South Dakota. Common causes of injuries include car accidents, truck accidents, defective products, slip and fall injuries, and dog bites. If someone else caused your injury, that person should be responsible for paying for the damages. A personal injury lawsuit is a way for injury victims to recover compensation for the harm caused by negligence.
I Was Injured. Can I File A Lawsuit Against The Party That Caused My Injury?
In general, when a person is injured as a result of another person’s negligence, the injured party may pursue a claim against the party or parties that caused the injuries. You are entitled to compensation for your injuries if it is found that a defendant was negligent and the negligence was a cause of your injury.
Any personal injury case depends on liability, damages, and whether or not you can collect from the negligent party or parties. Even if you were partially at fault for your injuries, you may be entitled to recover a portion of your damages. South Dakota has adopted a modified form of comparative negligence. A claimant’s contributory negligence does not bar recovery if it was “slight” in comparison to the negligence of the defendant. The claimant’s recovery will be reduced in proportion to their own negligence.
Automobile Accidents in South Dakota
South Dakota operates on a “fault” system, which determines liability based on a showing that one party was at fault because of negligence, which caused the accident. In other words, if the other driver is to blame for the accident, you can collect damages. Generally, people who operate motor vehicles must exercise reasonable care under the circumstances. Failure to use reasonable care is the basis for most lawsuits for damages caused by an automobile accident. In these cases, proof of fault is often contested and requires thorough investigation.
The other driver’s insurance company is the liability carrier and will pay you, as a victim of the other driver’s negligence, for your medical bills, repair costs, and other expenses. The mandatory minimum liability coverage in South Dakota is $25,000 per person and $50,000 per accident for personal injury, and $25,000 for property damage.
If the person who caused your injury has automobile liability insurance, an insurance adjuster will gather the pertinent records including medical records, medical bills, wage loss verification, and the like in an effort to verify your damages. The insurance company may make you an offer to settle the claim. You may find the offer acceptable and once you accept it, the claim process is over. If you do not receive an acceptable offer, you can proceed with filing a lawsuit. If you are not sure whether or not to take the settlement, talk to a car accident attorney for advice.
Lawsuits are generally filed when negotiations fail. If you file a lawsuit against a negligent driver, your attorney will need to prove that the other party was negligent and that the other party’s negligence caused injuries that resulted in compensable damages. Be careful when dealing with the other party’s insurance company because they may try to rush you into a settlement before you can adequately evaluate the extent of your damages.
Accidents With an Uninsured Driver
If you are in an automobile accident with an uninsured driver who is at fault, the uninsured motorist provisions of your own policy will apply. This coverage would also apply if you were hit by a “hit and run” driver. This insurance acts just like the insurance the uninsured driver should have had.
Underinsured motorist coverage picks up where the liability coverage of the other driver leaves off, and pays your actual damages, up to the limit of your underinsured motorist policy, less whatever the other driver’s insurance paid. If your personal injuries exceed the amount of the other driver’s liability insurance, your underinsured motorist insurance covers the excess damages under current law.
Premises Liability
If you were injured at someone else’s home or a commercial establishment, the person or entity responsible for the premises may be found liable. This can cover a variety of situations including slip and falls, dog bites, assaults, among others. The person liable for your damages is the party in control of the property. That party is responsible for the care, maintenance, and inspection of the property. For example, an owner may not be the responsible party if they leased the property to another party who actually has control over the premises.
The responsible party must pay for damages if the injured party proves that (1) the condition of the property was dangerous; (2) the owner knew, or should have known, about the dangerous condition; and (3) the owner had a reasonable opportunity to correct or warn of the condition, which was not reasonably open and obvious to the injured party at the time of the accident.
In general, it is the duty of an owner to exercise reasonable care in the maintenance of the premises. They must warn a visitor of any dangerous conditions that are known or should be known to them if the conditions are not likely to be perceived by the visitor and take reasonable steps to repair the conditions within a reasonable time.
The owner or operator of the property must have notice of the defect or circumstances that caused your injury prior to the injury having occurred. The notice can either be actual notice or implied notice, meaning the owner knew or should have known of the dangerous condition given all of the surrounding facts and circumstances. When the owner actually created the dangerous condition, then notice is presumed. If a hazard cannot be eliminated, the owner has a duty to warn of the hazards they are aware of or should be aware of.
The duty of a possessor of land to the injured person may vary depending on the status of the person at the time of the injury. Business owners typically have the highest responsibility to those who are invited onto their premises. Homeowners also have a duty to their guests. The standard of care owed to an adult trespasser is less than that owed to a person who has permission to be on the property. However, an owner may be liable if they maintain a condition that causes injury to a trespassing child.
Defective Product Injuries
Product liability deals with recoveries for personal injury resulting from the use of a product. Product liability cases may involve dangerous toys, automobile design, seat belt failures, improperly designed household products, industrial machinery, products causing explosions or burns, aviation products, medical devices, prescription drugs, among others.
A lawsuit can be brought against anyone participating in the chain of manufacture for that product, from the manufacturer, to the designer, to the retail store. When a company designs and manufactures a product, they have a responsibility to ensure that anyone exercising reasonable care within the expected parameters of usage expected for the product will not be injured. An action can be based on negligence, breach of implied or express warranty, or strict liability.
Product defect cases are generally a type of strict liability claim. Strict liability arises when a manufacturer sells any product in a defective condition unreasonably dangerous to the user or consumer. It is the unreasonableness of the condition of the product, not of the conduct of the defendant, that creates liability. To establish a claim for strict liability (defective design), the injured party must prove that the product was in a dangerous and defective condition when it left the manufacturer.
On the other hand, to establish liability under a negligence theory in a products liability case, a plaintiff must show that the defendant failed to use the amount of care in designing or manufacturing the product that a reasonably careful designer or manufacturer would use in similar circumstances to avoid exposing others to a foreseeable risk of harm.
As for the breach of warranty theory, a warranty is like a promise. An implied warranty exists whether or not you have a written “warranty”. An implied warranty of merchantability means that the product sold conforms to the ordinary standards of care and is comparable to similar goods sold under similar circumstances.
Speak With An Experienced Personal Injury Attorney Today
Injuries cost money, including time away from work, medical bills, and other complications. Before taking legal action or trying to negotiate a settlement on your own, you should talk to an attorney about your case.
You can search LawInfo’s legal directory to find a local personal injury attorney to discuss the merits of your case. This one step can level the playing field, help you protect your rights, and put you in the best position for recovering the compensation that you deserve.