South Dakota Personal Injury Laws and Statutes of Limitations

You're probably here because you were injured in South Dakota. Maybe you were hit by a careless driver. Or injured by some sort of defective product. Perhaps a negligent health care provider harmed you. You've made an insurance claim and you're thinking about a personal injury lawsuit, but you aren't sure about South Dakota law.

How long do I have to file my case in court? Where do I file a personal injury lawsuit? The insurance adjuster says I was partly to blame for what happened. What does that mean for my claim? We've got answers to those questions and more, starting with South Dakota's lawsuit filing deadlines, called "statutes of limitations."

South Dakota's Personal Injury Statutes of Limitations

A statute of limitations is a law that limits your time to file a lawsuit in court. Miss the filing deadline and, unless there's an extension that gives you more time, your claim is legally dead. You've lost the right to get compensation (what the law calls "damages") for your case.

We'll review the South Dakota personal injury statutes of limitations you're most likely to encounter, starting with the state's three-year general rule.

South Dakota's General Rule: Three Years From the Date of Your Injury

Unless a more specific statute of limitations applies, South Dakota personal injury claims fall under S.D. Codified Laws § 15-2-14(3) (2024). You have three years, usually from the date you were injured, to file your lawsuit in court.

Here's a partial listing of the most common personal injury cases covered by this rule:

• auto accidents, including passenger, pedestrian, motorcyclist, and bicyclist claims
• slip-and-fall and similar injuries caused by dangerous or poorly maintained properties, and
• dog bites.

Other South Dakota Personal Injury Statutes of Limitations

Different South Dakota statutes of limitations apply to other personal injury claims. Here are several examples.

Medical malpractice. Lawsuits for health care malpractice must be filed within two years from the date of the malpractice. (S.D. Codified Laws § 15-2-14.1 (2024).)

Product liability. You must sue for injuries or death caused by a dangerous or defective product within three years from the later of:

• the date you were injured or a death was caused by the product, or
• the date you discovered or, had you been reasonably careful you should have discovered, that your injury or a death was caused by the product.

(S.D. Codified Laws § 15-2-12.2 (2024).)

Intentional torts. Most personal injuries are caused by simple negligence, meaning carelessness. When an injury results from deliberate or purposeful misconduct, the law calls it an "intentional tort." Under S.D. Codified Laws § 15-2-15(1) (2024), you have just one year—again, usually from the date of your injury—to sue for these intentional torts:

• assault or battery
• defamation, and
• false imprisonment.

Wrongful death. Personal injuries sometimes cause death. When that happens, surviving family members might file a South Dakota wrongful death lawsuit. The filing deadline is three years from the date of death. (S.D. Codified Laws § 21-5-3 (2024).)

Can South Dakota's Filing Deadlines Be Extended?

One of questions most often asked of personal injury lawyers is "Can I get more time to file my case?" In South Dakota, the answer is sometimes, yes, you can. There are circumstances when letting the statute of limitations expire would be unfair. In those cases, South Dakota law might allow you more time.

Defendant is absent from South Dakota. The statute of limitations doesn't run when the defendant (the party you're suing):

• doesn't live in or is absent from South Dakota at the time of your injury, or
• leaves South Dakota after you're injured.

(S.D. Codified Laws § 15-2-20 (2024).)

But there's an important limit on this extension. The South Dakota Supreme Court has long held that it only applies when the defendant's absence prevents the plaintiff (the party who filed the lawsuit) from suing. (See Busby v. Shafer, 75 S.D. 428, 430-31 (1954).)

What does this mean? It means that if the defendant can be served with your lawsuit outside South Dakota, this extension won't give you more time. Ask your lawyer to explain the details regarding out-of-state service.

Plaintiff is legally disabled. Those who are legally disabled often get more time to sue because they're generally unable to manage their own legal affairs—for example, file a lawsuit—without assistance. For statute of limitations purposes, South Dakota considers to be legally disabled:

• minors (younger than 18 years old), and
• people who are "mentally ill."

When a legally disabled person is injured in South Dakota, the statute of limitations doesn't start until the person is no longer disabled. But the maximum extension is:

• five years in the case of mental illness, and
• for all legal disabilities, one year after the disability ends.

(S.D. Codified Laws § 15-2-22 (2024).)

What If I Miss the South Dakota Filing Deadline?

If you're worried that you've missed the filing deadline for your case, or that your time to file will run out very soon, don't panic. Contact a South Dakota personal injury lawyer right away. Here's what you need to know.

• What is the statute of limitations for my case?
• Has the filing deadline expired, or will it expire very soon?
• If the deadline has passed, is there an extension that might allow me more time?

Remember that lawyers are trained to favorably argue the facts of a client's case. Your lawyer will spot any good faith argument that might give you longer to file.

Now for the bad news. If the statute of limitations has run out and no extension is available, your claim is dead. Nothing you do will bring it back to life. Try to file a lawsuit and the court will dismiss it as untimely. You won't have any better luck trying to negotiate a settlement of your claim, because you no longer have a claim. You've lost the right to collect damages for your personal injuries, no matter how serious or disabling they might be.

Where Do I File a South Dakota Personal Injury Lawsuit?

Most personal injury lawsuits are filed in the South Dakota Circuit Court. When you're asking for more than $12,000 in damages, you must file in the Circuit Court.

South Dakota is divided into seven judicial circuits. Each circuit has two or more counties, and each county has a courthouse. When you file your lawsuit, you're not allowed to select any county you prefer. You must choose the correct "venue," or location. Most often, you can choose between the county where:

• the defendant lives, if the defendant is an individual
• the defendant has its main office or place of business, if the defendant is a company, or
• your injury happened.

(Learn more about representing yourself in South Dakota Circuit Court.)

Think About Hiring a Lawyer

In the Circuit Court, your personal injury lawsuit will be subject to a confusing array of court rules, including the South Dakota Rules of Civil Procedure and the South Dakota Rules of Evidence. Chances are you're not familiar with these rules, but your opponent's attorney knows them well. The judge will expect you to follow them even though you aren't a lawyer.

You need counsel who knows the rules. If your case belongs in the Circuit Court, give serious thought to hiring a lawyer to prepare, file, and handle it.

Can You File in South Dakota Small Claims Court?

South Dakota's small claims courts are authorized to handle lawsuits where the damages don't exceed $12,000. You also can file a small claims suit when your damages are greater than $12,000 but you're willing to take $12,000 (or less) to resolve your case.

Small claims suits are heard by magistrate judges. Proceedings are less formal and your case will probably be wrapped up faster than in the Circuit Court. Here are forms you can use to prepare and file your small claims lawsuit.

(Learn more about how to present your case in small claims court.)

Can I Sue the Government for My Personal Injuries?

Sometimes, yes, you can. But suing South Dakota or a local South Dakota government isn't like suing a private person or a business. You'll have to contend with lots of special laws, such as:

• rules that "immunize" (shield) the government from liability, and
• a pre-lawsuit notice requirement and a short statute of limitations.

Government Is Immune From Lawsuits

Like all states, South Dakota enjoys "sovereign immunity," meaning protection from lawsuits. Local governments like counties, cities, school districts and public authorities typically are immune from suits, too, under a different kind of government immunity.

So, what do these rules mean for your case? They mean you're allowed to sue the government only if the government "waives" (gives up) its immunity. South Dakota has waived its immunity, but only if the state has insurance to cover its liability. (S.D. Codified Laws § 21-32-16 (2024).) A similar rule applies to South Dakota local governments. (S.D. Codified Laws § 21-32A-1 (2024).)

Pre-Lawsuit Notice and Statute of Limitations

Before you're allowed to sue any South Dakota government—state or local—you must give the government written notice "of the time, place, and cause of the injury." The notice deadline is 180 days after the date you're injured. (S.D. Codified Laws § 3-21-2 (2024).) Be sure you provide notice to the correct government officer. Failure to give notice as required by law means you lose the right to file a lawsuit.

The statute of limitations for a lawsuit against South Dakota is one year from the date you were injured. (S.D. Codified Laws § 21-32-2 (2024).)

Hire Legal Counsel to Represent You

Because so many special immunities and rules are involved, you shouldn't try to handle an injury claim against the government on your own. Your best chance of success will come from having experienced government claims counsel to help you through the process. Without that help, you'll quickly find yourself in over your head.

What If I'm Partly to Blame for My Injuries?

To collect damages in the usual personal injury case, you must prove that the defendant's negligence caused your injuries. In most cases, the defendant will claim that you were negligent, too. Why? The defendant is raising a legal defense called "comparative negligence." If it succeeds, comparative negligence can reduce (or even eliminate) your damages.

South Dakota follows a unique comparative negligence rule. Here's what it says.

Your Negligence Can't Be More Than "Slight"

Under S.D. Codified Laws § 20-9-2 (2024), you can collect some damages for your injuries as long as your negligence was "slight in comparison with the negligence of the defendant... ." Your percentage share of the total negligence simply reduces the damages you can get by that amount. But if your share of the negligence was more than "slight," you can't recover any damages.

Unfortunately, South Dakota's courts haven't provided much clear guidance on when a plaintiff's negligence is or isn't slight. In Wood v. City of Crooks, 559 N.W.2d 558, 560-61 (S.D. 1997) the South Dakota Supreme Court ruled that the plaintiff's 30% comparative negligence wasn't slight. Other court cases have decided that 10% or 20% of the total negligence was slight. Expect the defendant in your case to argue that almost any amount of negligence on your part was more than slight.

Here's the bottom line: You'll need legal advice specific to the facts of your case to determine the likely impact of your comparative negligence, if any, on your ability to collect damages.

Example: South Dakota's Comparative Negligence Rule

As you approached an intersection and slowed to stop for a red light, your car was rear-ended. Turns out that because of a blown fuse, your brake lights weren't working. You sued the defendant for negligence. The defendant answered that you were negligent, too, and claimed that because your share of the negligence was more than "slight," you weren't allowed to recover damages.

After a jury trial, the jurors found that your negligence—which they assessed at 10% of the total—was "slight." Jurors found your damages to be $60,000. How much of this amount can you collect?

Because you were 10% negligent, you're entitled to 90% of your total damages: $60,000 x 90% = $54,000. The defendant's insurer will write you a check for that amount. Had the jury found your share of the negligence to be more than "slight," you'd get nothing.

South Dakota Caps Damages in Medical Malpractice Cases

As the name suggests, a damage cap limits the personal injury damages you can collect, even if you win your case. With limited exceptions, South Dakota caps damages only in medical malpractice lawsuits.

Overview of Personal Injury Damages

If you win your personal injury case, you'll likely recover what the law calls "compensatory damages." These damages are meant to compensate you for the losses your injuries cause. Compensatory damages fall into two categories:

• Economic damages. Also called "special damages," noneconomic damages reimburse you for losses you (or your insurance company) pay out-of-pocket. Included are medical expenses, lost wages, amounts you pay for household replacement services, and similar costs.
• Noneconomic damages. Noneconomic damages, sometimes called "general damages," compensate you for losses you don't pay out-of-pocket, such as pain and suffering, disability and disfigurement, and emotional distress. These are the targets of South Dakota's cap laws.

South Dakota Medical Malpractice Damage Caps

In medical malpractice cases, S.D. Codified Laws § 21-3-11 (2024) caps general (noneconomic) damages at $500,000. Economic damages aren't capped.

Get Help With Your South Dakota Personal Injury Case

We've covered some of the basics of South Dakota personal injury law. But truth be told, we've just scratched the surface. If you've been injured and are thinking about an insurance claim or a lawsuit, there's much more you should know. A South Dakota personal injury lawyer knows the laws and court rules governing your case. Your opponent will be represented by legal counsel. To make it a fair fight, you should be, too.

When you're ready to move forward, here's how to find an attorney near you.