Like people in every state, South Dakotans injured due to another person’s negligence might sue the negligent person and their insurance company. The lawsuit might help them recover costs of treating injuries, loss of work days or job opportunities, as well as pain and suffering.
But South Dakota’s personal injury laws have a minor quirk that make it unique among the 50 states. Only South Dakota acknowledges the apparently contradictory idea of “slight gross negligence.”
Contributory negligence versus comparative negligence
A few states have “pure contributory negligence” where the accident must be 100% one person’s fault for the other to recover damages. If you were only 1% at fault, the grossly negligent person with 99% fault owes you nothing.
The “pure comparative negligence” rule says the more negligent of the two should compensate the other. In the example above, if the injured person suffered $100,000 in damages, their slight 1% fault would make $1000 their own responsibly. The person 99% at fault would be liable for the other $99,000.
Slight gross negligence
South Dakota apparently tries to have it both ways. Unless their own negligence was “slight,” it bars an injured person from suing someone who was mostly at fault. If the negligence split was 45% to 55%, there will be no settlement for damages. But in the above case of a 1% to 99% split, there might be damages paid.
Of course, the question is the borderline between “slight” and “gross” negligence. Is 25% fault slight? The state Supreme Court once found that 30% was more than slight in a particular case. In a case with very different facts, the same percentage might apply, possibly.
Making your case
Due to South Dakota’s slight/gross negligence rule, clearly and convincingly making your case is at least as critical in South Dakota as it is anywhere in America. Very close attention to the facts of the incident, earlier cases and decisions, and the law are essential. It also helps to know how to speak to juries and to be familiar with how the judge in question sees their work.