In this article, we'll examine a few key points of South Dakota law as it applies to wrongful death claims. We'll start with how the state defines wrongful death and who is allowed to bring this kind of lawsuit to court. Then, we'll examine the damages available in a wrongful death case and the time limits for getting the case filed in South Dakota's court system.
Section 21-5-1 of the South Dakota Codified Laws defines a "wrongful death" as a death caused by the "wrongful act, neglect, or default" of another. A wrongful death claim is available in any situation in which the deceased person would have had a claim for personal injury if he or she had lived. However, because the injured person is no longer available to bring the claim to court, another party must do so in order to protect the interests of those harmed by the wrongful death. That brings us to our next topic.
A South Dakota wrongful death lawsuit must be brought to court by the personal representative of the deceased person's estate. The personal representative is the person who is appointed by the court to wrap up the affairs of the deceased person's estate.
If the deceased person had an estate plan, the estate plan may name a personal representative. If the named personal representative cannot or does not wish to serve, or if the deceased person had no estate plan, the court may name a personal representative.
Although filing the wrongful death claim is the job of the personal representative, any damages recovered in the wrongful death claim belong to the deceased person's surviving spouse and children. If there is no surviving spouse or child, the damages belong to the deceased person's surviving parents or next of kin. If the deceased person was an unborn child, the damages belong to the child's natural parent or parents.
In a wrongful death claim, liability is expressed solely in terms of money damages. Wrongful death damages are available to compensate for a number of different types of losses, but they can generally be sorted into two categories: damages the surviving family members suffered due to the loss of their loved one, and damages the estate suffered as a result of the untimely death.
Damages available for surviving family members include:
Damages available to the estate include:
South Dakota also allows punitive damages to be awarded in wrongful death cases. Unlike other types of damages, punitive damages are not awarded to compensate the estate or family for its losses. Rather, punitive damages are awarded when a death results from intentional or particularly reckless or egregious conduct. Their purpose is both to punish the defendant for bad conduct and to send a message to similar defendants that such behavior will not be tolerated.
South Dakota's statute of limitations provides a limited window of time in which to file a wrongful death claim in the state's courts. South Dakota Codified Laws section 21-5-3 specifies that a wrongful death claim must be filed withinthree years of the date of the deceased person's death.
A wrongful death claim may be filed even if a criminal case is proceeding based on the same events that led to the death. Unlike a criminal case, which is filed by the prosecuting attorney, a wrongful death case must be filed by the personal representative directly. Also, if the defendant in a criminal case is found guilty, he or she may face penalties like imprisonment or fines, whereas in the wrongful death case, liability is expressed solely in terms of money damages. Learn more about Proving Wrongful Death in a Civil Case.