Comparative Negligence in South Dakota

Under South Dakota’s comparative negligence law, you can only collect damages if you were only slightly at fault in an accident.
Written by Macy Fouse
Reviewed by Kathleen Flear
South Dakota has a unique comparative negligence law called “slight/gross,” meaning you can only collect damages if your amount of fault was “slight” and the other party’s fault was “gross.”
Car accidents can be disconcerting at the very least. After the dust settles, it’s time to start assigning blame. Comparative negligence laws determine which parties can collect damages after an accident. These laws vary per state, though, so it’s important to understand the law in the state you’re in driving. 
South Dakota’s comparative negligence law is one-of-a-kind, so
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What is comparative negligence?

Comparative negligence is the legal term that defines the level of blame drivers carry after an accident. It also outlines who can seek damages based on that level of blame. 
For example, if you’re in an accident where you only caused 15% of the accident, you only have to pay 15% of the damages. The other driver will be on the hook for the other 85% due to their level of fault. 
Comparative negligence applies to both personal injury lawsuits and third-party insurance claims where you file a claim with another driver’s insurance company. In personal injury lawsuits, the blame is assigned by a judge or jury. In insurance claims, the insurance company will rely on comparative negligence to determine the damages they’ll pay after an accident. 

Comparative negligence vs. contributory negligence

Generally, there are three different kinds of comparative negligence: pure comparative negligence, modified or partial comparative negligence, and contributory negligence. Each state’s comparative negligence law fits into one of these categories—all except South Dakota. 
  • Pure comparative negligence: Each party is awarded damages based on their percentage of fault.
  • Partial/modified comparative negligence: The injured party can collect damages only if their level of blame is less than 50% or 51% (depending on the state). 
  • Contributory negligence: The injured party cannot collect damages if they had any fault, even minimal. 
South Dakota’s comparative negligence law is a hybrid of partial and contributory negligence. Most states follow the modified comparative negligence principle. 12 states recognize pure comparative negligence, and only 5 states have pure contributory negligence. 

What is South Dakota’s comparative negligence law? 

South Dakota’s comparative negligence law is the only one of its kind called “slight/gross negligence.” According to the law in South Dakota, you can only recover damages if your fault was “slight” and the other party’s fault was “gross.” If the case isn’t clear enough to be defined by these terms, no party may recover damages from the other
South Dakota’s comparative fault rule has been the subject of much criticism since the terms “slight” and “gross” cannot be strictly defined. The only defined limit to these terms is that 30% of fault is “more than slight,” as decided by the case of Wood v. City of Crooks. 
“Slight” and “gross” may vary per case, but if you were to be found as only “slightly” at fault, you can recover damages from the other driver if they were “grossly” at fault. 

What happens if there are more than two responsible parties? 

If there are more than two parties involved in an accident, the fault will be distributed among all parties involved. If your level of fault is “slight” compared to the other drivers, you can likely file a claim with either or all of the other drivers’ insurance companies. In South Dakota, though, this will definitely depend on the case. 

How is fault decided in a comparative negligence case?

Insurance companies will assign fault based on the evidence presented along with the claim as well as any information from the police report. 
At the scene of an accident, it’s crucial to collect as much evidence as possible, including:
  • The
    make and model
    of all cars involved 
  • The time of day 
  • Weather conditions at the time of the accident
  • Details gathered from witnesses
  • Photographs of the damage 
Be sure to call the police if necessary, so you can get an accurate police report. All of this evidence will help your insurance company assign blame correctly. 

How does car insurance work with comparative negligence? 

With South Dakota’s slight/gross comparative negligence law, you can file a claim with the other driver’s insurance company if your level of negligence is very minor (“slight”) compared to the other driver’s level of fault. 
For instance, if you double-parked your car for a moment and another driver backed into it, the other driver will be found grossly negligent for not noticing their surroundings before backing up. You’ll still be found slightly negligent for parking there, but not as much as the other driver. 
In cases like this, you can file a claim with their insurance company to collect damages even if you were slightly at fault. However, the other driver would not be able to file a claim with your insurance company, even if you shared part of the fault. The exact amount of damages you’re awarded will depend on the case and insurance company.  

How to find affordable car insurance

With South Dakota’s imprecise comparative negligence law, it’s better to be safe than sorry. That’s why it’s a smart idea to get more protective car insurance coverage before you need it. When you use the
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FAQ

Yes. Every company determines your rate of increase based on your driving record, demographics, level of fault, and other factors, but you can expect your rates to increase by at least 20% after you cause an accident.
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