Degrees of Burns
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South Dakota Burn Injury Law Overview
To establish negligence on the part of a defendant under South Dakota law, a plaintiff must prove that the defendant owed a duty to the plaintiff, that the defendant failed to meet that duty and that injury to the plaintiff resulted from the defendant’s failure to perform the duty.
“Slight/Gross” Comparative Negligence
South Dakota is the only state to use the “slight” comparative negligence standard. One of the problems with this system is that the term “slight” is not clearly defined. While it was originally a more innovative approach as compared to the harsher realities of contributory negligence, it remains less well-defined than the traditional comparative fault negligence standard. The courts have provided that the statute is not based upon absolute degrees of negligence, instead it is a comparative test of the relative degrees of negligence between the plaintiff and defendant.
S.D. Codified Laws § 20-9-2 governs South Dakota’s comparative fault and contributory negligence standards. In South Dakota, the plaintiff’s contributory negligence does not bar recovery when the negligence of the plaintiff is determined to be “slight” in comparison with the negligence of the defendant. If the plaintiff’s negligence is found to have been more than slight, then the plaintiff may not be able to recover for their injuries.
If a trier of fact finds that the plaintiff contributed to their own injuries but the contribution was slight compared to the gross negligence of the plaintiff, the damage awarded may be reduced in proportion to that contribution.
For example, if a plaintiff is awarded $100,000 in damages but found to be 1% at fault for their own injury with the defendant responsible for the other 99%, the plaintiff’s damages award will be reduced to $99,000 to account for the 1% of fault attributed to the plaintiff.
Joint & Several Liability
In South Dakota, defendants that are found to be 50 percent or more at fault for a plaintiff’s injuries are, without limitation, jointly and severally liable for the plaintiff’s damages. Defendants who are found to be less than 50 percent at fault for a plaintiff’s injuries are still jointly and severally liable, but there is a cap on their liability for no more than twice their proportionate share of fault as determined by a court.
Joint tortfeasors have a right to contribution if they pay more than their proportionate share of the plaintiff’s damages.
Compensatory damages are awarded by a trier of fact to compensate the plaintiff for injuries suffered as a result of the negligence of the defendant(s). The award is meant to restore the plaintiff – as much as possible – to the condition they were in prior to the injury occurring.
Compensatory damages include reasonable expenses necessary for medical care; hospitalization and treatment; economic loss from loss of income (both past and future); and pain and suffering; disability; disfigurement; and mental anguish.
Punitive damages are meant to punish a defendant rather than to compensate the plaintiff. S.D. Codified Laws § 21-1-4 states that in any claim alleging punitive or exemplary damages, before any discovery relating thereto may be commenced and before any such claim may be submitted to the finder of fact, the court shall find, after a hearing and based upon clear and convincing evidence, that there is a reasonable basis to believe that there has been willful, wanton or malicious conduct on the part of a defendant.
The law firm of Walker Morgan is located at 135 E Main St., Lexington, SC 29072. All lawyers at Walker Morgan are licensed to practice law in the State of South Carolina. Should you wish to retain our firm for legal representation regarding a potential case in any other jurisdiction we are required to associate local counsel in that foreign jurisdiction and seek permission from a court of the foreign jurisdiction to temporarily engage in the practice of law therein for purposes of pursuing your potential claim only.
By offering the following information the lawyers at Walker Morgan are not offering legal advice or legal guidance. The lawyers at Walker Morgan are not licensed to practice law in South Dakota. Should you have a question/concern specific to South Dakota law, please contact an attorney licensed to practice law in the State of South Dakota.