Wrongful Death:

South Dakota

 Chapter 05 - Wrongful Death Actions

 

21-5-1. Liability for wrongful death where damages for injury could have been recovered--Unborn child. Whenever the death or injury of a person, including an unborn child, shall be caused by a wrongful act, neglect, or default, and the act, neglect, or default is such as would have entitled the party injured to maintain an action and recover damages in respect thereto, if death had not ensued, then and in every such case, the corporation which, or the person who, would have been liable, if death had not ensued, or the personal representative of the estate of such person as such personal representative, shall be liable, to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony; and when the action is against such personal representative, the damages recovered shall be a valid claim against the estate of such deceased person. However, an action under this section involving an unborn child shall be for the exclusive benefit of the mother or the lawfully married parents of the unborn child.

Source: SL 1909, ch 301, § 1; RC 1919, § 2929; SDC 1939, § 37.2201; SL 1947, ch 172; SL 1984, ch 158, § 1.

21-5-2. Causes of action surviving death of defendant. Actions for wrongful death or personal injury shall survive the death of the wrongdoer whether or not the death of the wrongdoer occurred before or after the death or injury of the injured person.

Source: SDC 1939, § 37.2201 as added by SL 1947, ch 172.

21-5-3. Limitation of actions. Every action for wrongful death shall be commenced within three years after the death of such deceased person.

Source: SL 1909, ch 301, § 3; RC 1919, § 2931; SDC 1939, § 37.2203; SL 1947, ch 173; SL 1951, ch 193; SL 1957, ch 194; SL 1963, ch 235; SL 1967, ch 149.

21-5-4. Foreign statute of limitations applicable. Whenever the death of a citizen of this state has been caused by a wrongful act, neglect, or default in another state, territory, or foreign country for which a right to maintain an action and recover damages in respect thereto is given by a statute of such other state, territory, or foreign country, such right of action may be enforced in this state within the time prescribed for the commencement of such action, by the statute of such other state, territory, or foreign country.
 
Source: SL 1909, ch 301, § 2; RC 1919, § 2930; SDC 1939 & Supp 1960, § 37.2202.
 
21-5-5. Relatives for whose benefit action brought--Personal representative to bring action. Every action for wrongful death shall be for the exclusive benefit of the wife or husband and children, or if there be neither of them, then of the parents and next of kin of the person whose death shall be so caused; and it shall be brought in the name of the personal representative of the deceased person.
 
Source: SL 1909, ch 301, § 3; RC 1919, § 2931; SDC 1939, § 37.2203; SL 1947, ch 173; SL 1951, ch 193; SL 1957, ch 194; SL 1963, ch 235; SL 1967, ch 149. 
 
21-5-6. Settlement of claim by personal representative--Court approval required--Consent by competent beneficiaries. Such personal representative may at any time before or after the commencement of a suit for wrongful death settle with the defendant the amount to be paid to him as damages for the wrongful death of the decedent. If such personal representative was appointed in this state and settlement is made before the commencement of a suit such settlement must have the approval of the court of the representative's appointment. If settlement is made at any time after the commencement of suit, whether before or after judgment therein, such settlement must have the consent and approval of the court wherein the action is pending; provided, however, that if the personal representative was appointed in this state he may make such settlement upon the consent and approval of either the court wherein the action is pending or the court of his appointment. If all the statutory beneficiaries are of full age and competent and consent in writing to the proposed settlement the same may be made at any time, before or after suit, without the consent of either court.
 
Source: SL 1909, ch 301, § 3; RC 1919, § 2931; SDC 1939, § 37.2203; SL 1947, ch 173; SL 1951, ch 193; SL 1957, ch 194; SL 1963, ch 235; SL 1967, ch 149.
 
21-5-7. Damages proportionate to pecuniary injury to beneficiaries. In every action for wrongful death the jury may give such damages as they may think proportionate to the pecuniary injury resulting from such death to the persons respectively for whose benefit such action shall be brought.
 
Source: SL 1909, ch 301, § 3; RC 1919, § 2931; SDC 1939, § 37.2203; SL 1947, ch 173; SL 1951, ch 193; SL 1957, ch 194; SL 1963, ch 235; SL 1967, ch 149.
 
21-5-8. Apportionment of damages among beneficiaries. The amount received by such personal representative, whether by settlement or otherwise, shall be apportioned among the beneficiaries, unless adjusted between themselves, by the court making the appointment, in such manner as shall be fair and equitable, having reference to the age and condition of such beneficiaries.
 
Source: SL 1909, ch 301, § 3; RC 1919, § 2931; SDC 1939, § 37.2203; SL 1947, ch 173; SL 1951, ch 193; SL 1957, ch 194; SL 1963, ch 235; SL 1967, ch 149; SL 1984, ch 158, § 2.

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