S.D. Codified Laws § 20-9-2

Section 20-9-2 governs the court's review of negligence claims, requiring contributory negligence to be assessed in comparison with the defendant's negligence; whether it is more than slight depends on the facts of each case.

Corey v. Kocer · filed 1972-01-21

At the hearing on the motion for judgment n. o. v. defendants urged, and in the briefs and argument on appeal repeat here, that as neither party requested and the court did not give an instruction based on our comparative negligence statute, SDCL 20-9-2, its principles were and are not applicable and any negligence of plaintiff bars his action. This is an erroneous view for on such motions in the trial court and here on appeal correct rules of law must be applied rather than the law as established by the trial court's instructions to the jury. ... Therefore, the trial court at that time and this court on appeal must apply the principles of our comparative negligence law to the motion and decision.

Section 20-9-2 permits a comparative-negligence instruction only when there is evidence that the plaintiff or the plaintiff’s decedent was negligent.

Beck v. Wessel · filed 1976-01-22

The essential point to be made is that a comparative negligence instruction should not be given unless there is some evidence of negligence on the part of the plaintiff, or in this case plaintiff's decedent.

Section 20-9-2 permits recovery when the plaintiff's contributory negligence is slight compared with the defendant's negligence, with the comparison ordinarily determined from the individual facts by the jury rather than an exact legal rule.

Robinson v. Mudlin · filed 1979-01-05

The comparative negligence statute, SDCL 20-9-2, applies whenever both parties to a lawsuit could, under the evidence, be held negligent in causing the injuries of which the plaintiff complains. ... SDCL 20-9-2 provides that a plaintiff's contributory negligence does not bar his recovery if such negligence was "slight in comparison with the negligence of the defendant." This comparison turns on the individual facts of each case and is not subject to any exact rule. ... On the basis of the facts and circumstances present in the record, it cannot be concluded, as a matter of law, that plaintiff was contributorily negligent or even if plaintiff was contributorily negligent, that such negligence was more than slight when compared with the negligence of defendant. Because both parties could be found to be negligent in causing plaintiff's injuries, the comparative negligence of the parties became a question of fact solely within the province of the jury.

Section 20-9-2 applies when the evidence could support negligence by both parties and bars recovery only when the plaintiff's contributory negligence is more than slight compared with the defendant's, a fact-specific comparison.

Urban v. Wait's Supermarket, Inc. · filed 1980-07-16

The comparative negligence statute, SDCL 20-9-2, applies whenever both parties to a lawsuit could, under the evidence, be held negligent in causing the injuries. ... SDCL 20-9-2 provides that a plaintiff’s contributory negligence does not bar his recovery if such negligence was “slight in comparison with the negligence of the defendant . .” This comparison turns on the individual facts of each case and is not subject to any exact rule.

Section 20-9-2 applies comparative negligence only when both the plaintiff and the defendant are negligent; if the defendant is not negligent, the plaintiff's contributory negligence is irrelevant.

Johnson v. Jongeling · filed 1983-01-05

Our comparative negligence statute, SDCL 20-9-2, [1] and its interpretive case law are to the effect that the issue of comparative negligence is not operative unless it is determined that both parties are negligent.

Section 20-9-2 permits recovery despite contributory negligence when the plaintiff's negligence is slight compared with the defendant's, while reducing damages in proportion to the plaintiff's negligence.

American State Bank v. List-Mayer · filed 1984-05-29

SDCL 20-9-2 provides: In all actions brought to recover damages for injuries to a person or to his property caused by the negligence of another, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery when the contributory negligence of the plaintiff was slight in comparison with the negligence of the defendant, but in such case, the damages shall be reduced in proportion to the amount of plaintiff's contributory negligence. The term "`slight negligence' is now a relative and variable term which defies precise definition and prohibits an arbitrary mathematical ratio." ... We will not speculate on whether the award reflects a finding of more than slight contributory negligence or involves a determination regarding the reasonableness of the bills. In short, defendant has not demonstrated as a matter of law that she was entitled to a directed verdict on the issue of Mrs. Higbee's contributory negligence.

Section 20-9-2 permits recovery when the plaintiff's contributory negligence is slight compared with the defendant's negligence, but reduces damages proportionately; if the plaintiff's negligence is more than slight as a matter of law, the defendant prevails.

Lovell v. Oahe Electric Cooperative · filed 1986-02-12

That deference, however, is not absolute. Under our comparative negligence statute [3] a plaintiff may recover if his negligence was slight in comparison with the negligence of the defendant. SDCL 20-9-2. When facts show that the plaintiff, beyond reasonable dispute, was guilty of negligence more than slight, it is the function of the trial court to hold, as a matter of law, for the defendant. Starnes v. Stofferahn, 83 S.D. 424, 432-33, 160 N.W.2d 421, 426 (1968). The comparison is made with the negligence of the defendant, rather than with the ordinarily prudent person. Crabb v. Wade, 84 S.D. 93, 97-98, 167 N.W.2d 546, 549 (1969). However, the norm of conduct of an ordinary, reasonably prudent person must be considered in determining the extent to which each party fell below that standard and, thus, was found negligent or contributorily negligent. Nugent v. Quam, 82 S.D. 583, 594-95, 152 N.W.2d 371, 377 (1967).

Section 20-9-2 permits recovery when the plaintiff's contributory negligence is slight in comparison with the defendant's negligence, so the court must compare the parties' negligence directly.

Musilek v. Stober · filed 1989-01-25

Under SDCL 20-9-2, the fact that plaintiff may have been guilty of contributory negligence shall not bar recovery when the contributory negligence of the plaintiff was slight in comparison with the negligence of the defendant. This statute requires the plaintiff's negligence to be compared with the negligence of the defendant, rather than with the ordinarily prudent person. Lovell v. Oahe Electric Coop., 382 N.W.2d 396 (S.D.1986).

Section 20-9-2 permits recovery despite contributory negligence only when the plaintiff's negligence is slight compared with the defendant's, and then reduces damages proportionally.

Chambers v. Dakotah Charter, Inc. · filed 1992-06-03

A contributorily negligent plaintiff may not, however, recover anything in South Dakota if the plaintiff’s negligence is more than slight in comparison with the negligence of the defendant. SDCL 20-9-2. ... This Court holds that the forum’s comparative negligence law should be applied to a forum’s domicili-aries who are involved in an accident in another state.

Section 20-9-2 permits recovery when the plaintiff's negligence is slight compared with the defendant's negligence, but bars recovery when it is more than slight.

Westover v. East River Electric Power Cooperative, Inc. · filed 1992-07-01

Under South Dakota’s comparative negligence statute, SDCL 20-9-2 ... , a plaintiff may recover if his negligence was slight in comparison with the negligence of the defendant.

Section 20-9-2 permits recovery despite contributory negligence when the plaintiff's negligence is slight compared with the defendant's, reduces damages proportionally, and bars recovery when the plaintiff's negligence is more than slight; whether negligence is slight is generally a question of fact.

Estate of He Crow Ex Rel. He Crow v. Jensen · filed 1992-12-16

The term "slight" in SDCL 20-9-2 has been defined to mean "small in quantum in comparison with the negligence of the defendant." ... It is a question of fact which varies with the facts and circumstances of each case whether a plaintiff's negligence is slight compared to that of the defendant. ... A contributorily negligent plaintiff may not, however, recover anything in South Dakota if the plaintiff's negligence is more than slight in comparison with the negligence of the defendant. SDCL 20-9-2. Here, we cannot say that, as a matter of law, the decedent's conduct constituted negligence which was more than slight. Rather, we characterize this as a classic factual dispute which must be determined by the triers of fact, the jury.

Section 20-9-2 bars a plaintiff from recovering when the plaintiff's negligence is more than slight compared with the defendant's negligence.

Treib v. Kern · filed 1994-03-30

Under South Dakota law, a plaintiff may not recover if his negligence is more than slight in comparison with the negligence of the defendant. Westover, 488 N.W.2d 892; SDCL 20-9-2. The question of Treib's contributory negligence is a two-part inquiry. Nugent v. Quam, 82 S.D. 583, 152 N.W.2d 371 (1967). The first step of the Nugent analysis is a determination of whether the plaintiff and the defendant were negligent. If both parties are found negligent, the second step of the process requires that the negligence of the plaintiff be compared to the negligence of the defendant. As stated earlier, if it is determined that a plaintiff has committed negligence more than slight, the plaintiff cannot recover. Id., 82 S.D. 583, 152 N.W.2d 371.

Section 20-9-2 applies when both parties could be negligent and allows a plaintiff to recover only when the plaintiff’s negligence is slight compared with the defendant’s negligence.

Larmon v. United States · filed 2016-07-29

South Dakota’s “comparative negligence statute, SDCL 20-9-2, applies whenever both 'parties to a lawsuit could, under the evidence, be held negligent in causing the injuries.” ... South Dakota’s comparative negligence statute only allows a plaintiff to recover “if his negligence was slight in comparison with the negligence of the defendant.”

Section 20-9-2 bars a plaintiff’s recovery when the plaintiff’s negligence is more than slight compared with the defendant’s negligence.

LaDeaux v. United States · filed 2023-03-31

South Dakota law on comparative negligence is unique in barring recovery when a claiming party is contributorily negligent greater than slight but rejecting any application of percentages of fault in that determination. SDCL § 20-9-2; ... Under South Dakota law, a plaintiff can only recover if his negligence was “slight” in comparison with the negligence of the defendant. ... LaDeaux’s negligence was more than slight in comparison to Wooden Knife’s negligence.

Section 20-9-2 permits comparative-negligence recovery when the plaintiff's negligence is slight compared with the defendant's and reduces damages in proportion to the plaintiff's negligence; the court upheld a jury instruction that closely followed that rule.

Anthony (Tony) Bitsos v. Red Owl Stores, Inc., Anthony (Tony) Bitsos v. Red Owl Stores, Inc. · filed 1972-04-24

Red Owl also argues that the court erroneously instructed the jury during its deliberation. The jury, after deliberating for some time, asked whether, if they found negligence on the part of both parties, they were to determine the percentage of each party’s negligence. In response, the court reread the comparative negligence instruction. This was not error, since the instruction closely paralleled the language of the comparative negligence statute itself, with some additional explication.

The comparative-negligence statute applies only when both parties are causally negligent, and a plaintiff's contributory negligence must be slight in comparison with the defendant's negligence.

Engel v. Stock · filed 1975-02-11

“[Tjhere can be no application of this law unless both parties are guilty of negligence proximately causing or contributing to the injuries complained of. The negligence of both parties must, therefore, be first considered and determined separately by the common standard of ... the reasonably prudent man. If the parties are both found to be causally negligent, the jury then determines if the contributory negligence of the plaintiff is slight in comparison with the negligence of the defendant.” ... Both parties were not the proximate cause of this accident. ... It is beyond cavil that the causal agent here was plaintiff who, as already stated, was driving between twenty to twenty-five miles per hour on the wrong side of the street.

Section 20-9-2 permits recovery when the plaintiff’s contributory negligence is slight compared with the defendant’s negligence, reduces damages proportionally, and generally makes the comparative assessment a question for the jury.

Theunissen v. Brisky · filed 1989-03-29

In all actions brought to recover damages for injuries to a person or to his property caused by the negligence of another, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery when the contributory negligence of the plaintiff was slight in comparison with the negligence of the defendant, but in such case, the damages shall be reduced in proportion to the amount of plaintiffs contributory negligence. ... We think that this admonition is particularly appropriate in comparative negligence cases. ... We hold that under the circumstances of this case, it was for the jury to determine whether decedent was negligent in the manner in which he attempted to make the left-hand turn. It must determine whether decedent exercised due care under the circumstances. This is a question of fact. Therefore, the trial court erred in granting Brisky’s motion and ruling that decedent was contributorially negligent as a matter of law.

Section 20-9-2 requires comparing the plaintiff’s contributory negligence with the defendant’s negligence, and when that comparison is factually disputed, the degree of negligence is for the jury.

Schmidt v. Royer · filed 1998-01-14

Under this statute, the plaintiffs negligence is compared with the negligence of the defendant, not with “the ordinarily prudent person.”

Section 20-9-2 does not bar recovery when the plaintiff's contributory negligence is slight in comparison with the defendant's negligence; instead, damages are reduced in proportion to the plaintiff's contributory negligence.

Petit v. Tri-State Wholesale Flooring · filed 2024-10-21

South Dakota follows a comparative negligence theory under which a plaintiff’s contributory negligence that is “slight in comparison” with the defendant’s negligence does not bar the plaintiff’s recovery. “Slight” means “small in quantum in comparison with the negligence of the defendant.”

Section 20-9-2 bars recovery if the plaintiff’s negligence is more than slight compared with the defendant’s.

Nicolay v. Stukel · filed 2017-07-26

If Stukel was negligent, Nicolay ... would not be permitted to recover if his own conduct was more than slightly negligent when compared to Stukel’s. SDCL 20-9-2. ... A jury could reasonably conclude that such conduct amounted to contributory negligence barring recovery. Therefore, even if Stukel could be declared negligent as a matter of law, Nicolay was not entitled to summary judgment on Stukel’s affirmative defense of contributory negligence, and the circuit court properly denied summary judgment on the issue of liability.

When disputed facts prevent a court from deciding whether the plaintiff’s negligence was more than slight compared with the defendant’s, comparative negligence is for the jury.

Sioux Steel Company v. KC Engineering · filed 2018-09-19

Thus, the lack of evidence establishing the standard of care and the material factual disputes prevents this court from ruling as a matter of law that Sioux Steel's alleged contributory negligence was more than slight. Each party’s negligence depends on disputed facts that a jury must determine.

Section 20-9-2 permits recovery despite slight contributory negligence compared with the defendant's negligence, but requires damages to be reduced in proportion to the plaintiff's contributory negligence.

Stoltz v. Stonecypher · filed 1983-07-20

Viewing the evidence most favorable to the verdict, we cannot conclude as a matter of law that the plaintiff was not guilty of slight negligence in comparison with the negligence of the defendant. SDCL 20-9-2. ... Since the trial court did not err in submitting the issue of negligence to the jury, it was their province to reduce plaintiffs damages in proportion to her contributory negligence.

Section 20-9-2 bars a plaintiff from recovering when the plaintiff's contributory negligence is more than slight compared with the defendant's negligence.

Johnson v. Armfield · filed 2003-11-25

Where plaintiffs contributory negligence is more than slight compared to defendant’s negligence, plaintiff is barred from recovery. SDCL 20-9-2.

Section 20-9-2 allows a contributorily negligent claimant to recover when the claimant’s negligence is slight or less than the defendant’s, with damages reduced in proportion to the claimant’s negligence.

Owen v. United States · filed 2009-07-31

A person who is contributorily negligent may still recover damages if his contributory negligence was slight, or less than slight, when compared with the negligence of the defendant, but the damages must be reduced in proportion to the amount of the contributory negligence. SDCL 20-9-2.

Section 20-9-2 permits recovery despite contributory negligence when the plaintiff’s negligence is slight compared with the defendant’s, with damages reduced proportionally; whether the negligence is slight is a fact question.

Skrovig v. BNSF Railway Co. · filed 2012-03-05

“The term slight in SDCL § 20-9-2 has been defined to mean small in quantum in comparison with the negligence of the defendant.” ... “It is a question of fact which varies with the facts and circumstances of each case whether a plaintiffs negligence is slight compared to that of the defendant.”

Section 20-9-2 permits recovery despite contributory negligence only when the plaintiff’s negligence is slight compared with the defendant’s, and requires damages to be reduced in proportion to the plaintiff’s contributory negligence.

Lindholm v. BMW of North America, LLC · filed 2016-08-17

Plaintiffs’ claims for negligence fail based on contributory negligence as a matter of law. Under South Dakota law, if a plaintiff is contributorily negligent, he may still recover damages where his negligence was slight in comparison with the negligence of the defendant. ... Whether a plaintiffs contributory negligence is more than slight typically is a jury issue, but becomes an issue of law under circumstances such as exist here. ... For the reasons that apply to misuse of product, Alex’s misuse amounts to contributory negligence that is more than slight when compared to that of this distributor Defendant.

Section 20-9-2 permits recovery when the plaintiff's contributory negligence is slight compared with the defendant's negligence, with damages reduced proportionately; whether it is slight is a fact-specific question.

Katon v. United States · filed 2018-08-27

A claim of contributory negligence by a party asserting a claim “does not bar a recovery when the contributory negligence of the plaintiff was slight in comparison with the negligence of the defendant, but in such case, the damages shall be reduced in proportion to the amount of plaintiff’s contributory negligence.” SDCL § 20-9-2. ... “The term slight in SDCL § 20-9-2 has been defined to mean small in quantum in comparison with the negligence of the [other party].” Estate of He Crow v. Jensen, 494 N.W.2d 186, 188 (S.D. 1992) (internal citation and quotation marks omitted). “It is a question of fact which varies with the facts and circumstances of each case whether [Mrs. Katon’s] negligence is slight compared to that of [Mr. Pickett].” Id.

Section 20-9-2 bars recovery when a plaintiff’s contributory negligence is more than slight compared with the defendant’s negligence and proximately caused the injury.

Roemen v. United States of America · filed 2023-03-22

Where plaintiff’s contributory negligence is more than slight compared to defendant’s negligence, plaintiff barred from recovery provided it is a proximate cause of the injury. /d. (citing SDCL § 20-9-2), ... Whether Plaintiffs breached a duty to protect themselves from injury by not exiting the vehicle during the purported vehicle stops and whether any such negligence was more than slight compared to Officer Neuenfeldt’s alleged negligence are issues for trial.

Section 20-9-2 bars a plaintiff's recovery when the plaintiff's contributory negligence is more than slight compared with the defendant's negligence and is a proximate cause of the injury.

Bourassa v. United States of America · filed 2023-09-12

Where plaintiff's contributory negligence is more than slight compared to defendant’s negligence, plaintiff is barred from recovery provided it is a proximate cause of the injury. Jd. (citing SDCL § 20-9-2). ... However, this Court finds that the facts in the record show beyond any dispute that Bourassa was negligent more than slight compared to the negligence of Chief Neuenfeldt. ... The Court concludes as a matter of law that Bourassa was contributorily negligent to the degree where he is barred from recovery.

Section 20-9-2 requires a plaintiff’s damages to be reduced in proportion to the plaintiff’s contributory negligence.

Weiland v. Bumann · filed 2025-02-19

The instruction was otherwise correct and consistent with SDCL 20-9-2’s requirement that “the damages shall be reduced in proportion to the amount of plaintiff’s contributory negligence.”

Section 20-9-2 permits recovery despite slight contributory negligence and reduces damages in proportion to the plaintiff’s contributory negligence.

Bergman · filed 2026-01-16

Contributory negligence exists in South Dakota statutory law under SDCL § 20-9-2. ... SDCL § 20-9-2. ... Therefore, there is no material issue of fact in dispute on the question of contributory negligence, and this is one of the rare cases where summary judgment is warranted on the issue of contributory negligence.

Section 20-9-2 bars recovery when a plaintiff's contributory negligence is more than slight, but allows the jury to compare slight plaintiff negligence with the defendant's negligence.

Nelson v. Nelson Cattle Co. · filed 1994-03-30

When the facts show beyond dispute that a plaintiff was contributorily negligent more than “slight”, the trial court can find for the defendant as a matter of law. ... However, we agree with the trial court and hold that the actions of Milton Nelson do not amount to contributory negligence as a matter of law. The jury heard testimony that could have allowed reasonable minds to conclude that Milton Nelson’s negligence was slight in comparison to the negligence of Nelson Cattle Company. ... Reasonable jurors could conclude that Milton Nelson’s conduct in climbing the bin and using the broken tool was slight compared to the negligence of Nelson Cattle Company in failing to provide enough competent workers, safe tools, a safe work place and adequate instruction and supervision.

Contributory negligence does not bar recovery when it is slight compared with the defendant's negligence, but negligence that is more than slight bars recovery as a matter of law.

Lindholm v. BMW of North America, LLC · filed 2017-07-03

We recognize that under South Dakota law, "the fact that the plaintiff [in a negligence case] may have been guilty of contributory negligence does not bar a recovery when the contributory negligence of the plaintiff was slight in comparison with the negligence of the defendant." S.D. Codified Laws § 20-9-2. But when facts show beyond dispute that the plaintiff's negligence is more than slight, then it is appropriate to hold as a matter of law for a negligent defendant.

Section 20-9-2 permits recovery when the plaintiff's contributory negligence is slight compared with the defendant's negligence, but reduces damages in proportion to the plaintiff's negligence; whether it is slight is generally a fact question.

Gray v. MacArthur Company · filed 2020-03-02

A claim of contributory negligence by a party asserting a claim “does not bar a recovery when the contributory negligence of the plaintiff was slight in comparison with the negligence of the defendant, but in such case, the damages shall be reduced in proportion to the amount of plaintiff’s contributory negligence.” SDCL § 20-9-2.

Section 20-9-2 permits recovery when the plaintiff’s contributory negligence is slight compared with the defendant’s negligence, with damages reduced proportionally, and applies to wrongful-death cases.

Selchert v. Lien · filed 1985-07-24

This section applies to wrongful death cases.

Section 20-9-2 permits recovery when the plaintiff’s contributory negligence is only slight compared with the defendant’s negligence.

Hauser v. Kubalak · filed 1991-04-09

Viewing the evidence in the light most favorable to Hauser as the non-moving party and giving her the benefit of all reasonable inferences to be drawn from that evidence, we agree with the district court that there was sufficient evidence in the record to support the jury’s finding that Hauser’s contributory negligence was only “slight” in comparison with the negligence of Kubalak. S.D.Codified Laws § 20-9-2 (1987); see, e.g., Urban v. Wait’s Supermarket, Inc., 294 N.W.2d 793, 796 (S.D.1980). There was evidence in the record that Hauser’s automobile was only several inches across the center line, that Kubalak’s truck was several feet across the center line in Hauser’s lane of traffic and that Hauser turned sharply off the road in an attempt to avoid the collision.

Section 20-9-2 permits a contributory negligence defense in actions for injuries caused by negligence, but not in intentional bad faith actions.

Isaac v. State Farm Mutual Automobile Insurance Co. · filed 1994-09-14

Under SDCL 20-9-2, contributory negligence of the plaintiff is a defense only “in actions brought to recover damages for injuries to a person or to his property caused by the negligence of another.” SDCL 20-9-2. Bad faith actions, however, must be predicated on more than the negligence of another.

Section 20-9-2 allows the trier of fact to decide whether a plaintiff’s contributory negligence was slight compared with the defendant’s.

Smith v. Gunderson · filed 1971-10-14

Therefore, the question of whether plaintiff's contributory negligence was more than slight was a matter for the trier of fact to determine.

Section 20-9-2 bars a plaintiff's recovery when the plaintiff's contributory negligence is more than slight compared with the defendant's negligence.

Harmon v. Washburn · filed 2008-06-04

Where plaintiff's contributory negligence is more than slight compared to defendant's negligence, plaintiff is barred from recovery. SDCL 20-9-2. As long as there is competent evidence to support the theory of contributory negligence, it is proper for the issue to go to the jury. Id. (citing Parker v. Casa Del Rey, 2002 SD 29, ¶ 5, 641 NW2d 112, 115).

Section 20-9-2 bars recovery when the plaintiff's contributory negligence is more than slight compared with the defendant's negligence; if it is slight, recovery remains available but damages are reduced proportionately.

Johnson v. Johnson · filed 2018-01-16

Under South Dakota law, a plaintiff who is contributorily negligent is barred from recovering damages where his own negligence was more than slight in comparison to the negligence of the defendant. Wood v. City of Crooks, 559 N.W.2d 558, 559-60 (S.D. 1997); see also SDCL 20-9-2. “Slight” in this context is defined as “small of its kind or in amount; scanty; meager.”

Section 20-9-2 bars recovery for contributory negligence only when the decedent’s negligence is more than slight compared with the defendant’s negligence.

Rodriguez v. Vaniperen · filed 2024-06-04

Finally, defendants’ arguments ignore how Kelley’s (alleged) negligence compares to VanIperen’s actions. See generally Docket 39 (no comparison); Docket 61 (same). Instead, defendants argue only that Kelley’s (alleged) negligence was more than slight. See Docket 39 at 5-14; see also Docket 61 (no mention of comparison requirement). But this articulation is misleading: defendants are only entitled to contributory negligence if the jury also finds that Kelley’s negligence was more than slight compared to VanIperen’s negligence. SDCL § 20-9-2; see Johnson, 672 N.W.2d at 481. Under this comparison scheme, the greater a defendant’s negligence, the greater leeway the law gives the plaintiff. See SDCL § 20-9-2; Johnson, 672 N.W.2d at 481.

Section 20-9-2 permits recovery when a plaintiff's contributory negligence is slight or less than slight, but bars recovery when it is more than slight compared with the defendant's negligence.

Wierzbicki ex rel. Estate of Jones v. United States · filed 2014-07-15

South Dakota law is unique in that contributory negligence bars recovery if that contributory negligence is “more than slight” in comparison to the negligence of the defendant. ... If a plaintiffs contributory negligence is less than slight or only slight in comparison with the negligence of the defendant, that plaintiff may still recover damages under ... South Dakota law. S.D. Codified Laws § 20-9-2; ... Because contributory negligence is an’ affirmative defense, the Government bears the burden of proof by a preponderance of the evidence on the issue. ... However, even if it could be said that Rosebud IHS was somewhat negligent for not having functioning bed alarms or checking on Mary more frequently, the contributory negligence of Mary is greater than slight in comparison to the claimed negligence of Rosebud IHS. Therefore, Mary, and in turn Wierzbicki, is barred by the doctrine of contributory negligence under South Dakota law from recovery here.

Section 20-9-2 bars a contributorily negligent plaintiff from recovering damages when the plaintiff’s negligence is more than slight compared with the defendant’s negligence.

Kenderdine v. Elevator · filed 2022-12-17

A contributorily negligent plaintiff is barred from recovering damages where her own negligence was “more than slight” in comparison to the negligence of the defendant. See Wood v. City of Crooks, 559 N.W.2d 558, 559-60 (S.D. 1997); SDCL § 20-9-2. “Slight” in the context of contributory negligence is defined as “small of its kind or in amount; scanty; meager.” Wood, 559 N.W.2d at 560. The Supreme Court of South Dakota has made clear that the question of whether a plaintiff was contributorily negligent is ordinarily a question for the jury. See id. (“Whether [the plaintiff] was contributorily negligent was a question of fact properly submitted to the jury.”); Zens v. Harrison, 538 N.W.2d 794, 796 (S.D. 1995) (“Determining negligence has always been the jury’s function.”). Although contributory negligence can become a question of law when “reasonable men can draw but one conclusion from facts and inferences,” that was not the case here. Luther v. City of Winner, 674 N.W.2d 339, 348 (S.D. 2004) (quoting Mitchell v. Ankney, 396 N.W.2d 312, 313 (S.D. 1986)).

Section 20-9-2 requires a plaintiff’s contributory negligence to be compared with the combined negligence of all defendants, including settling and non-settling defendants, when deciding whether it was slight.

Wood v. City of Crooks · filed 1997-02-26

To determine whether a plaintiffs negligence is more than slight, the test is to compare it with the negligence of all defendants. ... Furthermore, our statutes encompass multiple defendants even when only the singular "defendant” is used, as in SDCL 20-9-2. ... Therefore, SDCL 20-9-2 takes into consideration settling and non-settling defendants alike.

Section 20-9-2 bars a plaintiff from recovering when the plaintiff’s negligence is more than slight compared with the defendant’s negligence, and disputed comparisons are for the jury.

Busby · filed 2026-06-24

Under South Dakota law, a plaintiff is barred from recovering if his own negligence is more than “slight” in comparison to the negligence of the defendant. ... Nor can this court conclude as a matter of law that Busby’s negligence was more than slight when compared to Menard’s negligence. Viewing the evidence in the light most favorable to Busby, Menards improperly stacked or failed to maintain the stack of insulation in its proper form in violation of its Policy No. 99. Further, Menard’s employees did not see Busby do anything incorrectly while he was loading the insulation into his trailer. ... The jury will have to decide how Busby’s alleged contributory negligence compares to Menard’s alleged negligence. ... Thus, the court denies Menard’s motion for summary judgment based upon assumption of the risk and contributory negligence.