Expert Advice > Personal Injury & Civil Litigation
Criminal | DUI/DWI | Drugs | White Collar Crimes | Personal Injury | General Law
- Why are people entitled to money for pain and suffering, mental anguish and loss of enjoyment of life in civil cases?
The goal of our legal system is to make someone whole when they are injured by someone else's careless conduct. Sometimes a person can be make whole by simply repairing a care or replacing a window. But when someone is injured and a life is disrupted, there is not way to really make a person whole again.
Money damages are a civilized society's way of righting wrongs. Without money damages, we would be fighting duels and gouging out an eye for an eye. Money can't restore a person's health or make their pain go away, but it can go along way toward bringing justice to an unfair loss.
- Are jurors allowed to consider whether a defendant has insurance when deciding how much to award a person injured in a car accident?
No. Although most people have insurance that covers any jury award, neither the plaintiff nor the defendant are allowed to offer the insurance policy as evidence during the trial Juror are not to speculate as to whether a defendant has insurance, or how much that insurance might be. The jury's job is to award whatever amount of money is supported by the evidence without concern as to who will pay the verdict or whether it will even be paid at all.
- Can I be sued if I hit a bad golf shot that slices all the way off the golf course and hits the windshield of a car traveling down the road?
Not if it was just a bad shot. A similar case was decided by a New Your court in 1991. The court ruled that a golfer was not liable for negligence when the golfer accidentally hit his tee shot out-of-bounds and hit an oncoming car, even though there was evidence that the golfer had a severe "slicing problem. The court ruled that simply because the golfer had a history of "slicing" the golf ball, did not mean he was negligent in hitting the oncoming vehicle.
- My insurance company wrongfully terminated my long-term disability benefits. What should I do?
You may be able to have the decision overturned in court, but first, you will have to file an appeal with the insurance company. Be careful though. The most common mistake people make when filing their own appeals is that they fail to provide the proper evidence in support of their appeal that would allow the court to overturn the unreasonable denial of their appeal by the insurance company. If you think you have had you disability benefits wrongfully terminated, you should talk to a lawyer who handles these types of cases before you appeal the decision.
- Will posting a "Not Responsible for Accidents" sign at my garage sale protect me against liability if someone gets hurt at the sale?
No. Under South Dakota law, if a property owner invites people on to his property for a business purpose, such as a garage sale, the property owner owes the business invitee a duty to exercise ordinary care for the invitee's safety. A property owner cannot avoid this duty by simply posting a sign stating he will not be responsible. If he fails to exercise ordinary care for the safety of others, he will be held responsible.
- Is a livestock owner legally responsible if his animals roam on to the highway and cause a driver injury? Steve S., Sioux Falls, SD
Yes, if the landowner has failed to exercise ordinary care. A livestock owner is liable for any injury resulting from his animals roaming at large if the owner should reasonably have anticipated that injury would result from the animals being on the highway. The jury looks at the facts of each case and considers the character of the road, the kind of traffic thereon, the time of day, whether a gate was left open, the condition of the fence and all the surrounding conditions to determine whether the livestock owner should have reasonably anticipated the danger his animals might cause.
- Can I be held responsible for the actions of one of my intoxicated party guests after he leaves my house?
No. The South Dakota Legislature has specifically stated that it is the consumption of alcoholic beverages, rather than the serving of alcoholic beverages, that is the proximate cause of any injury inflicted upon another by an intoxicated person. Accordingly, state law provides that social hosts are not liable for the acts of their intoxicated guests.
- Do the "rules of the road" apply on private property, e.g. should you yield the right of way to the driver on your right in a shopping center parking lot? Mr. B 1986, Sioux Falls
Statutory rules of the road do not apply on private property. SDCL § 32-14-9 states that the owner of private property is free to set the rules for travel upon his property "as may seem best to such owner." Even though the statutory rules of the road do not apply, every person is responsible for injuries caused to another person by his "want of ordinary care." The jury decides whether someone has failed to exercise ordinary care.
- Can a parent be held legally responsible for an adult child's medical bills?
No. A parent is not responsible for the medical bills of an adult emancipated child. On the other hand, an adult child can be liable for his parent's medical bills. South Dakota Codified Law § 25-7-27 states: "Any adult child, having the financial ability to do so, shall provide necessary food, clothing, shelter or medical attendance for a parent who is unable to provide for oneself." The Supreme Court has concluded that this law is constitutional, stating: "The fact that an indigent parent has supported and cared for a child during that child's minority provides an adequate basis for imposing a duty on the child to support that parent."
- I was rear-ended and really hurt my neck and back. My wife had to take time off work to help care for me at home. Is the other driver responsible for my wife's lost income?
Yes. The other driver is responsible for all losses that were caused by his negligence. Specifically, South Dakota law states a negligent driver is responsible for the reasonable value of any necessary household service, nursing care or attendance that were required as a result of your injury, even if such services were furnished gratuitously by family members.
- I was rear-ended and the other insurance company is refusing to pay for my doctor's bills because they say there was not enough damage to my vehicle to justify the medical treatment I received. Can they do this?
The driver that rear-ended you is responsible for your medical bills caused by the collision regardless of the extent of damage to your vehicle. A recent study of the Insurance Institute for Highway Safety (IIHS) that studied low-speed rear-impact collisions concluded that 23% of women and 18% of men will sustain a neck injury in a rear-impact collision with $500 or less in property damage. The numbers go up to 44% and 34%, respectively, if the damage is $1,000 or less. The presence and severity of injury is very poorly correlated with vehicle damage.
- What are "punitive" damages?
Punitive damages are recoverable in a lawsuit if the plaintiff suffers injury as a result of the oppression, fraud, malice, intentional misconduct, or willful and wanton misconduct of the defendant. The purpose of awarding punitive damages is to set an example and to punish the defendant. Punitive damages are not recoverable against someone who is merely negligent or careless. In those cases, the plaintiff may only recover the actual damages caused by the defendant.
- What can an injured worker do if his employer's insurance company is wrongfully denying work comp benefits?
Employers must provide insurance benefits for medical care and lost wages to their workers who are injured on the job. If a worker believes he is being treated unfairly by his employer's work comp insurance company, he can appeal the company's decision to the Department of Labor. Decisions of the Department can then be appealed to the Circuit Court and then the Supreme Court. Also, if an employer's insurance company has denied benefits without a "reasonable basis" for the denial, the worker may bring a civil action in circuit court against the insurance company for bad faith.
- I was the victim of a hit-and-run and was hurt really bad. Is there anyway I can get the other driver to pay my medical bills?
Unfortunately, unless you can find the other driver, you can't get him to pay you what you are owed. However, your own insurance policy should cover your losses. SDCL § 58-11-9 requires that every automobile liability policy issued in this state must also provide coverage for "hit-and-run" motor vehicles. If you have liability coverage, you also have "hit-and-run" coverage.
- Why are people entitled to money for pain and suffering, mental anguish and loss of enjoyment of life in civil cases?
The goal of our legal system is to make someone whole when they are injured by someone else's careless conduct. Sometimes a person can be make whole by simply repairing a care or replacing a window. But when someone is injured and a life is disrupted, there is not way to really make a person whole again.
Money damages are a civilized society's way of righting wrongs. Without money damages, we would be fighting duels and gouging out an eye for an eye. Money can't restore a person's health or make their pain go away, but it can go along way toward bringing justice to an unfair loss.
Money damages are a civilized society's way of righting wrongs. Without money damages, we would be fighting duels and gouging out an eye for an eye. Money can't restore a person's health or make their pain go away, but it can go along way toward bringing justice to an unfair loss.
- Are jurors allowed to consider whether a defendant has insurance when deciding how much to award a person injured in a car accident?
No. Although most people have insurance that covers any jury award, neither the plaintiff nor the defendant are allowed to offer the insurance policy as evidence during the trial Juror are not to speculate as to whether a defendant has insurance, or how much that insurance might be. The jury's job is to award whatever amount of money is supported by the evidence without concern as to who will pay the verdict or whether it will even be paid at all.
- Can I be sued if I hit a bad golf shot that slices all the way off the golf course and hits the windshield of a car traveling down the road?
Not if it was just a bad shot. A similar case was decided by a New Your court in 1991. The court ruled that a golfer was not liable for negligence when the golfer accidentally hit his tee shot out-of-bounds and hit an oncoming car, even though there was evidence that the golfer had a severe "slicing problem. The court ruled that simply because the golfer had a history of "slicing" the golf ball, did not mean he was negligent in hitting the oncoming vehicle.
- My insurance company wrongfully terminated my long-term disability benefits. What should I do?
You may be able to have the decision overturned in court, but first, you will have to file an appeal with the insurance company. Be careful though. The most common mistake people make when filing their own appeals is that they fail to provide the proper evidence in support of their appeal that would allow the court to overturn the unreasonable denial of their appeal by the insurance company. If you think you have had you disability benefits wrongfully terminated, you should talk to a lawyer who handles these types of cases before you appeal the decision.
- Will posting a "Not Responsible for Accidents" sign at my garage sale protect me against liability if someone gets hurt at the sale?
No. Under South Dakota law, if a property owner invites people on to his property for a business purpose, such as a garage sale, the property owner owes the business invitee a duty to exercise ordinary care for the invitee's safety. A property owner cannot avoid this duty by simply posting a sign stating he will not be responsible. If he fails to exercise ordinary care for the safety of others, he will be held responsible.
- Is a livestock owner legally responsible if his animals roam on to the highway and cause a driver injury? Steve S., Sioux Falls, SD
Yes, if the landowner has failed to exercise ordinary care. A livestock owner is liable for any injury resulting from his animals roaming at large if the owner should reasonably have anticipated that injury would result from the animals being on the highway. The jury looks at the facts of each case and considers the character of the road, the kind of traffic thereon, the time of day, whether a gate was left open, the condition of the fence and all the surrounding conditions to determine whether the livestock owner should have reasonably anticipated the danger his animals might cause.
- Can I be held responsible for the actions of one of my intoxicated party guests after he leaves my house?
No. The South Dakota Legislature has specifically stated that it is the consumption of alcoholic beverages, rather than the serving of alcoholic beverages, that is the proximate cause of any injury inflicted upon another by an intoxicated person. Accordingly, state law provides that social hosts are not liable for the acts of their intoxicated guests.
- Do the "rules of the road" apply on private property, e.g. should you yield the right of way to the driver on your right in a shopping center parking lot? Mr. B 1986, Sioux Falls
Statutory rules of the road do not apply on private property. SDCL § 32-14-9 states that the owner of private property is free to set the rules for travel upon his property "as may seem best to such owner." Even though the statutory rules of the road do not apply, every person is responsible for injuries caused to another person by his "want of ordinary care." The jury decides whether someone has failed to exercise ordinary care.
- Can a parent be held legally responsible for an adult child's medical bills?
No. A parent is not responsible for the medical bills of an adult emancipated child. On the other hand, an adult child can be liable for his parent's medical bills. South Dakota Codified Law § 25-7-27 states: "Any adult child, having the financial ability to do so, shall provide necessary food, clothing, shelter or medical attendance for a parent who is unable to provide for oneself." The Supreme Court has concluded that this law is constitutional, stating: "The fact that an indigent parent has supported and cared for a child during that child's minority provides an adequate basis for imposing a duty on the child to support that parent."
- I was rear-ended and really hurt my neck and back. My wife had to take time off work to help care for me at home. Is the other driver responsible for my wife's lost income?
Yes. The other driver is responsible for all losses that were caused by his negligence. Specifically, South Dakota law states a negligent driver is responsible for the reasonable value of any necessary household service, nursing care or attendance that were required as a result of your injury, even if such services were furnished gratuitously by family members.
- I was rear-ended and the other insurance company is refusing to pay for my doctor's bills because they say there was not enough damage to my vehicle to justify the medical treatment I received. Can they do this?
The driver that rear-ended you is responsible for your medical bills caused by the collision regardless of the extent of damage to your vehicle. A recent study of the Insurance Institute for Highway Safety (IIHS) that studied low-speed rear-impact collisions concluded that 23% of women and 18% of men will sustain a neck injury in a rear-impact collision with $500 or less in property damage. The numbers go up to 44% and 34%, respectively, if the damage is $1,000 or less. The presence and severity of injury is very poorly correlated with vehicle damage.
- What are "punitive" damages?
Punitive damages are recoverable in a lawsuit if the plaintiff suffers injury as a result of the oppression, fraud, malice, intentional misconduct, or willful and wanton misconduct of the defendant. The purpose of awarding punitive damages is to set an example and to punish the defendant. Punitive damages are not recoverable against someone who is merely negligent or careless. In those cases, the plaintiff may only recover the actual damages caused by the defendant.
- What can an injured worker do if his employer's insurance company is wrongfully denying work comp benefits?
Employers must provide insurance benefits for medical care and lost wages to their workers who are injured on the job. If a worker believes he is being treated unfairly by his employer's work comp insurance company, he can appeal the company's decision to the Department of Labor. Decisions of the Department can then be appealed to the Circuit Court and then the Supreme Court. Also, if an employer's insurance company has denied benefits without a "reasonable basis" for the denial, the worker may bring a civil action in circuit court against the insurance company for bad faith.
- I was the victim of a hit-and-run and was hurt really bad. Is there anyway I can get the other driver to pay my medical bills?
Unfortunately, unless you can find the other driver, you can't get him to pay you what you are owed. However, your own insurance policy should cover your losses. SDCL § 58-11-9 requires that every automobile liability policy issued in this state must also provide coverage for "hit-and-run" motor vehicles. If you have liability coverage, you also have "hit-and-run" coverage.
