Before filing a lawsuit, it is imperative that you put an idea in place on what the case is worth.

There are various buckets of damages to consider when evaluating what your case is worth. Compensatory damages are actual damages caused by losses that plaintiffs experience. While compensatory damages are designed to provide justice through reimbursement after a wrong is committed, punitive damages can be awarded on top of compensatory damages. Punitive damages are available for claims against a defendant not arising from obligations created by a contract. “[W]here the defendant has been guilty of oppression, fraud, or malice, actual or presumed, or in any case of wrongful injury to animals, being subjects of property, committed intentionally or by willful and wanton misconduct, in disregard of humanity, the jury, in addition to the actual damage, may give damages for the sake of example, and by way of punishing the defendant.” SDCL § 21-1-4.1.

South Dakota allows for the plaintiff to seek discovery directly related to punitive damages. However, the Court must give permission for the plaintiff to seek this information and must grant a request of the plaintiff to present the punitive damages claim to a jury. SDCL § 21-1-4.1 states:

In any claim alleging punitive or exemplary damages, before any discovery relating thereto may be commenced and before any such claim may be submitted to the finder of fact, the court shall find, after a hearing and based upon clear and convincing evidence, that there is a reasonable basis to believe that there has been willful, wanton or malicious conduct on the part of the party claimed against.    

The statute prevents unfounded claims brought for the purpose of harassing other parties. Fiegen v. North Star, Ltd., 467 N.W.2d 748, 750 (S.D. 1991) (citing Vreugdenhil v. First Bank, 467 N.W.2d 756 (S.D. 1991); Flockhart v. Wyant, 467 N.W.2d 473 (S.D. 1991)). However, the amount of proof required to get punitive damages discovery is lower than what is demanded at trial. Vreugdenhil, 467 N.W.2d at 760. The “statute merely requires clear and convincing evidence to show a reasonable basis” that “willful, wanton, or malicious conduct” occurred. Case v. Murdock, 488 N.W.2d 885, 891 (S.D. 1992) (citing Flockhart v. Wyant, 467 N.W.2d 473, 475 (S.D. 1991)).

As stated in SDCL § 21-1-4.1, there must be a showing that reasonable basis exists that actual or presumed malice occurred.

Actual malice is a positive state of mind, evidenced by the positive desire and intention to injure another, actuated by hatred or ill-will towards that person . . . . Presumed, legal malice . . . is malice which the law infers from or imputes to certain acts. Thus, while the person may not act out of hatred or ill-will, malice may nevertheless be imputed if the person acts willfully or wantonly to the injury of the other.

Selle v. Tozser, 2010 SD 64, ¶ 30, 786 N.W.2d 748, 757 (quoting Isaac v. State Farm Mut. Auto Ins. Co., 522 N.W.2d 752, 761 (S.D. 1994)). “A claim for presumed malice can be shown by demonstrating a disregard for the rights of others.” Case, 488 N.W.2d at 891 (citing Flockhart, 467 N.W.2d at 475).

Do you think you may have a case where punitive damages may be possible? Call an attorney at Goosmann Law Firm in Sioux Falls, Sioux City, or Omaha today to see if we can help you put a value on your case—or add to it.


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