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Comparative Negligence in South Dakota: What It Means for Your Injury Claim

Personal Injury

In South Dakota personal injury law, negligence is considered harm that a person sustains based on another person’s actions or lack of attentiveness. However, the state operates on a modified comparative negligence system, which means that you may not be entitled to full compensation if your own actions contributed to your injury. 

Comparative negligence laws consider both the plaintiff and defendant’s actions when determining liability and appropriate recovery of damages. As personal injury specialists, the attorneys at Alvine Law Firm know how to navigate the complexities of the South Dakota injury claims court and help their clients recover what they are owed in any case. 

In this guide, we will explore the topic of comparative negligence, how it works in South Dakota, and what it may mean for your injury claim. 

Understanding Negligence and Liability in Personal Injury Cases

Negligence is failure to exercise the appropriate duty of care in a situation that results in injury, loss, or harm of another person. It’s foundation for establishing liability (fault) in an injury case. Negligence also affects compensation, especially in South Dakota where a person’s own contribution to their injury directly impacts how much money they can recover in court. 

Under South Dakota Codified Law 20-9-1, every person is responsible for the injury caused to another person by their own willful acts or by their want of ordinary care or skill. Simplified, this means that a person will be held legally responsible for another person’s injury if they intentionally did something to harm them, overlooked things that could have harmed them, or failed to exercise the expected level of care or skill in any given situation. 

The law needs a definition of negligence to hold people accountable in personal injury cases. When comparative law comes into play, the role of each person expands, and the court examines how both parties contributed to the injury. 

What Is Comparative Negligence? 

Comparative negligence is a legal principle that allows both the plaintiff and defendant to recover damages based on their individual degree of liability. So, if you contributed to someone’s injury but were also injured yourself, then you and the person you are seeking damages from could both be held liable.

The difference is that comparative negligence can find fault in different percentages. For example, a plaintiff may be found 30% liable for injuries while the defendant is found 70% liable. In this case, the plaintiff would have their recoverable damages reduced by 30%. 

There are two types of comparative negligence systems: pure and modified. Under pure comparative negligence systems, plaintiffs can recover damages regardless of how much they are at-fault. Modified comparative negligence systems reduce compensation based on a person’s own level of accountability in their injury. 

Another hallmark of modified comparative negligence systems is their threshold. If you surpass a certain amount of liability (50% in South Dakota), then you cannot recover any damages for an injury. 

Comparative Negligence Laws in South Dakota

In South Dakota, the system operates under a unique “slight/gross comparative negligence law.” This means that the plaintiff’s fault must be deemed “slight” and the defendant’s fault must be deemed “gross” (large) in order for the plaintiff to receive compensation for their injury. 

South Dakota Codified Law 20-9-2 states that the comparative negligence law does not bar recovery if the plaintiff’s fault is slight in comparison to the fault of the defendant. However, the plaintiff’s damages will be reduced in proportion to their amount of negligence (e.g. 20%). 

There is also a 50% bar rule in South Dakota, which states that a plaintiff cannot recover any damages if they are found to be at least 50% responsible for their injury. 

How Comparative Law Impacts Your Injury Claim

“Fault” is the concept in personal injury law that a person whose actions or negligence harm another should pay for the impact of their behavior. Fault is important in personal injury because it holds responsible parties liable, or legally responsible, for their actions. Fault does not cover accidental injuries, such as someone tripping on your property and injuring themselves — so long as you did not leave anything in harm’s way or fail to notify them of any present fall hazards. 

In South Dakota, fault is determined by a trier of fact (judge or jury), who will determine who is at-fault for an injury and what percentage each person contributed to the resulting damages. 

The percentage of a plaintiff’s liability is deducted from their recoverable damages. So, if you were found 25% at-fault for your injury, then your possible compensation would be reduced by 25%. 

Filing an Injury Claim under Comparative Negligence in South Dakota

The first step to filing a personal injury claim in South Dakota is to consult with a personal injury lawyer. The team in Alvine Law Firm in Sioux Falls and Mitchell have extensive experience representing clients in a wide range of personal injury cases. Meet your attorneys, and contact us today at 605-275-0808 to schedule a free consultation. 

Once you have met with a lawyer, you can determine whether your case would be eligible for compensation. If so, then you can begin the process of filing an injury claim with the appropriate court. An attorney can handle this for you, helping you gather evidence and handling all of the paperwork to facilitate your case. 

Contacting a personal injury lawyer as soon as possible can help ensure a thorough investigation. It also helps you gather as much evidence as you can and even acquire witness statements if they are available. The statute of limitations to file a personal injury claim in South Dakota is three (3) years after the date of the injury.

Defenses in Comparative Negligence Cases

Defendants may use various arguments to shift blame or avoid fault in a comparative negligence case. This includes arguing that the plaintiff was aware of their risks or did not take appropriate action to avoid injuring themselves. 

Someone may argue that a plaintiff was distracted while driving, which led to an accident, or  that they weren’t paying attention to a situation that wound up causing them harm. 

Defendants will often highlight minor infractions on the plaintiff’s behalf to shift blame and reduce their total liability. Some may twist events to suit their own narrative and make the plaintiff appear to be the primary person at-fault for their injury.

The best thing plaintiffs can do is gather as much evidence as possible to support their claim, including photographs from the scene of the accident, medical records, and witness statements. 

Personal injury attorneys are well-versed in the arguments that people may present to reduce their liability in a case. Working with experienced lawyers in Sioux Falls and Mitchell like the team at Alvine Law Firm can help you build a strong case that leads to recovering as much damages as possible. 

Comparative Negligence in Specific Types of Injury Cases

Comparative negligence applies to all personal injury cases, but how it impacts the outcome can vary based on the specific type of injury. Below are several examples of how comparative negligence in South Dakota may impact an injury case.

Motor Vehicle Accidents

In motor vehicle accidents, the court will examine both drivers’ actions to determine who is at the most fault. Factors that impact the outcome of the case can include:

  • Traffic violations that led to the accident, such as speeding, failure to yield, running red lights
  • Distracted driving habits, such as eating or texting 
  • Following the other driver too closely 
  • Driving while intoxicated 

Slip And Fall Incidents

South Dakota premises liability laws influence how fault is determined in slip-and-fall injuries. Comparative negligence can impact compensation based on your ability to prove the property owner’s negligence (such as not putting out a wet floor sign), your awareness of the hazard, and steps you took to avoid injury if the risk was evident. 

Medical Malpractice

Medical malpractice can have devastating consequences, and it is important to gather as much evidence as you can to bring against a practitioner in court. Comparative negligence in medical malpractice cases may involve evaluating a patient’s compliance with aftercare instructions and failure to disclose pre-existing conditions. 

It will be important for the plaintiff to gather evidence that demonstrates the doctor’s negligence and failure to uphold their duty as a medical practitioner.

Product Liability

The greatest factor impacting comparative negligence in product liability cases is misuse. If you do not use a product for its intended purpose and are injured as a result, then you could be found partially or completely at-fault for your injuries and subsequent expenses.

You should also be mindful of whether you had knowledge of the defect prior to purchasing or using the product. Individuals who are aware of their risk but do not take appropriate steps to avoid harm can be found negligent in court.

Tips for Protecting Your Claim in a Comparative Negligence State

To improve your chances of a positive outcome in South Dakota, consider the following:

  • Document as much evidence as you can
  • Seek witnesses who can provide statements that support your claim 
  • Avoid statements that may admit fault
  • Consult with a personal injury attorney 

The team at Alvine Law Firm are always here to help. You can schedule a free consultation with a personal injury attorney in Sioux Falls and Mitchell, SD, for assistance.


South Dakota’s modified comparative negligence system can hold plaintiffs partially at-fault for their injuries. Understanding how comparative negligence can affect injury claims can help you strengthen your case in court. 

When pursuing a personal injury claim in Sioux Falls and Mitchell, SD, it can be helpful to work with a legal professional for the best outcome. The highly experienced team at Alvine Law Firm specialize in personal injury cases and understand how comparative negligence laws can impact your outcome. Call 605-275-0808 to book a free consultation.


Codified Law 15-2-14 | South Dakota Legislature

Personal Injury | American Bar Association

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