S.D. Codified Laws § 21-3-2

Section 21-3-2 permits punitive damages when a defendant acts with oppression or malice; intentional conversion after notice of the owner's rights supplies evidence of that culpability.

Gross v. Kouf · filed 1984-06-13

Kouf argues that Gross failed to show, as required by SDCL 21-3-2, that he was guilty of oppression, fraud, or malice, and, as a result, Gross should not be entitled to punitive damages. This argument is without merit. As we discussed above, Kouf did not negligently strip the vehicle, unaware of its true owner; he intentionally stripped it and treated it as a junk vehicle even after he knew of the rightful owner’s claim and the demand for its return. Consequently, *656there was evidence in the record of oppression or malice on the part of Kouf.

Section 21-3-2 bars punitive damages on a breach-of-contract claim, including a contract-based claim for delayed or refused insurance benefits.

Monica Stoner v. State Farm Mutual Automobile Insurance Company · filed 1986-01-06

We affirm, in accordance with § 21-3-2, the district court’s grant of summary judgment on Stoner’s claim for punitive damages to the extent that claim is based on contract.

Section 21-3-2 authorizes punitive damages when a defendant commits oppression, fraud, or malice intentionally or through willful and wanton misconduct.

Hoff v. Bower · filed 1992-11-25

A jury may award punitive damages “where the defendant has been guilty of oppression, fraud, or malice, actual or presumed ... committed intentionally or by willful and wanton misconduct^.]” SDCL 21-3-2. The special verdict form allowed the jury to award punitive damages only if they found that Hoff and Ganje were entitled to recover on the theory of intentional or fraudulent misrepresentation. Having found the defendants liable, an award of punitive damages was proper.

Section 21-3-2 authorizes punitive damages for qualifying noncontractual wrongdoing as exemplary punishment, to punish and deter the defendant and warn others; the award must be relatively large to serve those purposes.

Schaffer v. Edward D. Jones & Co. · filed 1996-07-24

SDCL 21-3-2 describes the nature of the award to be “for the sake of example, and by way of punishing the defendant.” ... To accomplish these purposes, the punitive damages must be “relatively large.”

Section 21-3-2 permits punitive damages for noncontractual breaches involving oppression, fraud, or actual or presumed malice, and for certain intentional or willful-and-wanton injuries to animals.

Ammann v. Massey-Ferguson, Ltd. · filed 1996-08-02

There is no right to recover exemplary or penal damages at all in South Dakota unless expressly provided by statute. See SDCL 21-1-4. Substantive law as to such damages is found at SDCL 21-3-2 which states: ... Interestingly enough, this statute authorizes the recovery of punitive damages in eases of oppression, fraud, malice or wrongful injury to animals committed intentionally or by willful and wanton misconduct. Apparently, the legislature has attempted to distinguish between intentional conduct and willful and wanton misconduct. ... The latter statement is, of course, too far reaching under a reading of SDCL 21-3-2 other than in the limited context of Kjerstad itself.

Section 21-3-2 permits a jury to award punitive damages when the defendant is found guilty of fraud.

Sporleder v. Van Liere · filed 1997-09-03

According to SDCL 21-3-2, when the defendant is found guilty of fraud, the jury can award punitive damages. See, e.g., Brandriet v. Norwest Bank, 499 N.W.2d 613, 618 (S.D.1993) (holding that once fraud is shown, there is a basis to believe there has been willful, wanton or malicious conduct). Therefore, punitive damages were properly awarded in this case.

Section 21-3-2 permits punitive damages in a noncontract action when the defendant acted with oppression, fraud, or actual or presumed malice, and presumed malice may be shown by disregard for the rights of others.

Harter v. Plains Ins. Co., Inc. · filed 1998-06-10

Malice may be either actual or presumed. ... 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. ... “A claim for presumed malice can be shown by demonstrating a disregard for the rights of others.” ... There is evidence in the record to support submission of the issue of punitive damages to the jury. ... Plains has not shown that the trial court was clearly erroneous in submitting punitive damages to the jury.

Section 21-3-2 permits punitive damages only for breach of a noncontractual obligation and, in a tort action, requires intentional or willful and wanton oppression, fraud, or malice.

Stanton v. State Farm Fire and Cas. Co., Inc. · filed 1999-12-27

SDCL 21-3-2 tells us that only in an “action for the breach of an obligation not arising from contract” may punitive damages be awarded. An action for breach of the insurance policy obviously does not allow the recovery of punitive damages. ... Under the statute, it is also clear that, even in a cause of action arising in tort, punitive damages are not recoverable unless State Farm was “guilty of oppression, fraud, or malice, actual or presumed, *** committed intentionally or by willful and wanton misconduct, in disregard of humanity ***.”

Section 21-3-2 permits punitive damages only in addition to an award of actual damages when the defendant's conduct meets the statute's culpability requirements.

Henry v. Henry · filed 2000-01-12

This court has consistently held that punitive damages are not allowed absent an award for compensatory damages. ... See also SDCL 21-3-2.

Section 21-3-2 permits punitive damages for an independent tort, including deceit or bad faith, but not for breach of contract alone, and requires proof of only one of oppression, fraud, or malice.

Biegler v. American Family Mutual Insurance Co. · filed 2001-01-24

That while our punitive damages statute (SDCL 21-3-2) does not allow punitive damages for breach of contract, it does permit them in the case of a tort arising independent of the contract obligation including an action for deceit. ... SDCL 21-3-2 allows for punitive damages when there is evidence of “oppression, fraud, or malice.” ... Since the statute is in the disjunctive, it only necessary to prove one of the three.

Section 21-3-2 bars punitive damages for breach of contract but permits them in other cases involving oppression, fraud, or malice, including independent torts such as conversion and usurpation of corporate opportunity.

Longwell v. Custom Benefit Programs · filed 2001-05-16

In South Dakota, punitive damages are not recoverable in a breach of contract action. McKie v. Huntley, 2000 SD 160, ¶ 9, 620 NW2d 599, 602. SDCL 21-3-2 provides that in other cases where the defendant has been guilty of oppression, fraud, or malice, punitive damages may be awarded. ... Usurpation of corporate opportunity and conversion are independent torts for which South Dakota law allows punitive damages.

Section 21-3-2 permits plaintiffs to pursue punitive damages for conversion or breach of fiduciary duty even when their fraud claim fails, if they succeed on either underlying claim.

Chem-Age Industries, Inc. v. Glover · filed 2002-10-02

Because we hold that plaintiffs have not established a cause of action for fraud, it does not mean that plaintiffs cannot proceed on their claim for punitive damages. SDCL 21-3-2. Conversion and breach of fiduciary duty may give rise to punitive damages, and plaintiffs may proceed to seek such damages if they succeed in either of those claims. Grynberg v. Citation Oil & Gas Corp., 1997 SD 121, ¶ 18, 573 N.W.2d 493, 500.

Section 21-3-2 permits punitive damages to punish the defendant and deter similar wrongful conduct.

Olson-Roti v. Kilcoin · filed 2002-10-23

The punitive and deterrent aims of exemplary damages are inseparable. Our Legislature has spoken clearly on this point: a jury “may give damages for the sake of example, and by way of punishing the defendant.” SDCL 21-3-2 (emphasis added). Therefore, both punishment of the tortfeasor and deterrence are required to satisfy the statutory punitive damage provision.

Section 21-3-2 requires evidence of actual or presumed malice to support punitive damages for insurance bad faith.

Bierle v. Liberty Mutual Insurance · filed 1992-04-30

The Court thus concludes that plaintiffs have failed to establish a punitive damage claim for bad faith. There has been no evidence produced which supports a jury finding of either actual or implied malice.

Section 21-3-2 permits punitive damages in an action for breach of a noncontractual obligation when the defendant is guilty of oppression, fraud, or malice.

Stockmen's Livestock v. Norwest Bank · filed 1998-02-06

South Dakota law allows punitive damages "[i]n any action for the breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud, or malice, actual or presumed . . . ." S.D. Codified Laws § 21-3-2 (Michie 1987). Establishing fraud and deceit in this case gives rise to punitive damages.

Section 21-3-2 generally bars punitive damages for breach-of-contract claims, while allowing them only for qualifying noncontractual obligations.

Nelson v. WEB Water Development Ass'n, Inc. · filed 1993-10-27

Punitive damages are not ordinarily available in breach of contract claims. SDCL 21-3-2; O’Neill v. Blue Cross of W. Iowa and S.D., 366 N.W.2d 816 (S.D.1985); Thu v. American Family Ins. Co., 292 N.W.2d 109 (S.D.1980). ... As we have affirmed the trial court’s grant of summary judgment on all Nelson’s tort claims, the court’s grant of summary judgment on all tort-based punitive damages is affirmed.

Section 21-3-2 permits punitive damages for oppression, fraud, or malice, including presumed malice when a person acts willfully or wantonly and disregards another's rights.

Jones v. Todd v. Swanson · filed 2003-09-03

S.D. Codified Laws § 21-3-2 allows for punitive damages if there is evidence of “oppression, fraud, or malice.” Kjerstad v. Ravellette Publ’ns, Inc., 517 N.W.2d 419, 425 (S.D. 1994). Malice may be either actual or presumed. Id. (citation omitted). Actual malice is a positive state of mind, evidenced by a positive desire and intention to injure another and motivated by hatred or ill will. Presumed malice need not be motivated by hatred or ill will, but is present when a person acts willfully or wantonly to the injury of others. It implies the act complained of was conceived in the spirit of mischief or criminal indifference to civil obligations. Dahl v. Sittner, 474 N.W.2d 897, 900 (S.D. 1991). Presumed malice can be shown by demonstrating a disregard for the rights of others. Flockhart v. Wyant, 467 N.W.2d 473, 475 (S.D. 1991).

Section 21-3-2 authorizes punitive damages in tort actions and requires proof of actual or presumed malice before a punitive-damages request may be submitted to the jury.

Murphy v. Kmart Corp. · filed 2009-01-27

Punitive damages in tort actions are authorized by South Dakota law. See SDCL § 21-3-2. A necessary element which the plaintiff must prove in order to submit á request for punitive damages to the jury is that the defendant acted with malice, either actual or presumed. See Holmes v. Wegman Oil Co., 492 N.W.2d 107, 112-113 (S.D.1992); SDCL § 21-3-2.

Section 21-3-2 permits punitive damages in an action other than breach of contract only when the defendant acts with oppression, fraud, or malice.

Maryott v. First National Bank of Eden · filed 2001-04-04

In South Dakota, punitive damages are permitted in actions other than breach of contract, when a defendant acts with oppression, fraud or malice. SDCL 21-3-2. The breach of a statute, such as SDCL 57A-4-402, is an action “not arising from contract.” Groseth Int’l, Inc. v. Tenneco Inc., 440 N.W.2d 276, 279 (S.D. 1989). In light of our statutory authority, we agree that punitive damages are recoverable under § 4-402, but only when there is oppressive, fraudulent or malicious conduct by the bank.

Section 21-3-2 requires proof of oppression, fraud, or malice to recover punitive damages for breach of a noncontractual obligation.

BURLINGTON NORTHERN AND SANTA FE RAILWAY CORP. v. Dakota Missouri Valley and Western Railroad, Inc. · filed 2004-11-22

It is necessary to prove one of the three stated elements: oppression, fraud, or malice. ... At any rate, none of the evidence in the record even suggests that DMVW acted maliciously. BNSF’s claims for punitive damages are frivolous.

Section 21-3-2 permits punitive damages when the defendant is guilty of oppression, fraud, or actual or presumed malice, and allows the jury to award them as punishment and example.

Berry v. Time Insurance · filed 2011-06-28

Under SDCL 21-3-2, a plaintiff claiming punitive damages must show that “the defendant has been guilty of oppression, fraud, or malice, actual or presumed.” If the plaintiff makes this showing, “the jury, in addition to the actual damages, may give damages for the sake of example, and by way of punishing the defendant.”

Section 21-3-2 permits punitive damages when a defendant is guilty of actual or presumed malice; actual malice requires a positive intent to injure actuated by hatred or ill-will, while presumed malice may be inferred from willful or wanton conduct that injures another.

Kopman v. City of Centerville · filed 2012-05-11

South Dakota allows punitive damages against a defendant “where the defendant has been guilty of oppression, fraud, or malice, actual or presumed[.]” SDCL 21-3-2. The plaintiff must show that the defendant acted with “either actual, malice in fact, or presumed, legal malice.” Dahl v. Sittner, 474 N.W.2d 897, 900 (S.D.1991). “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.” Id. (citation omitted). “Presumed, legal malice, on the other hand, is malice which the law infers from or imputes to certain acts.” Id. (citing Hannahs v. Noah, 83 S.D. 296, 158 N.W.2d 678, 682 (1968)). An inference of presumed malice may be made when the person acts willfully or wantonly and injures another. Id.

Section 21-3-2 permits punitive damages in an action for a noncontractual obligation when the defendant has committed oppression, fraud, or malice, and compensatory damages may exist through recovery of an improperly asserted debt.

Stabler v. First State Bank of Roscoe · filed 2015-06-10

Plaintiffs received damages by recovering the amount the jury determined to be an improper debt. The entire transaction was not undone, or wiped out, as would occur in a rescission action. ... Therefore, punitive damages were properly submitted to the jury, and the award of $20,000 should be reinstated.

Section 21-3-2 permits punitive damages for a tort independent of contract when oppression, fraud, or malice is sufficiently alleged, but not for breach of contract alone.

Haney v. American Family Mutual Insurance Co. · filed 2017-02-03

As such, “while [SDCL § 21-3-2] does not allow punitive damages for a breach of contract, it does permit them in the case of a tort arising independent of the contract obligation .... ” Biegler v. American Family Mut. Ins Co., 2001 S.D. 13, 42, 621 N.W.2d 592, 604. A claim for punitive damages, however, must allege “oppression, fraud, or malice.” SDCL § 21-3-2 (emphasis added); see also Biegler, 2001 S.D. 13, ¶ 44, 621 N.W.2d at 605 (emphasis added) (“Since [SDCL § 21-3-2] is in the disjunctive, it is only necessary to prove [oppression, fraud, or malice].”).

Section 21-3-2 permits punitive damages in a bad-faith action when the plaintiff sufficiently alleges oppression, fraud, or malice.

Zebrowski v. American Standard Insurance Company of Wisconsin · filed 2017-09-21

Plaintiff may seek punitive damages in a bad faith action if he sufficiently alleges “oppression, fraud, or malice . . . .” Id. (emphasis added); see Haney, 223 F. Supp. 3d at 928.

Section 21-3-2 authorizes punitive damages in tort actions when the plaintiff proves actual or presumed malice.

Giesler v. Hirchert · filed 2018-01-31

Punitive damages in tort actions are authorized by South Dakota law. See SDCL § 21-3-2. In order to submit a request for punitive damages to the jury, the plaintiff must prove that the defendant acted with malice, either actual or presumed. See Holmes v. Wegman Oil Co., 492 N.W.2d 107, 112–13 (S.D. 1992); SDCL § 21-3-2.

Section 21-3-2 permits punitive damages in an action on an obligation not arising from contract when the defendant acted with actual or presumed malice, oppression, or fraud; a plaintiff who prevails on a viable bad-faith claim may ask for them.

Hollow Horn v. Firstcomp Insurance Company · filed 2018-03-29

Punitive damages are available “[i]n any action for the breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud, or malice, actual or presumed.” SDCL § 21-3-2. ... If Mr. Hollow Horn prevails on that claim, he is entitled to ask that punitive damages be assessed against the defendant.

Section 21-3-2 permits a jury to award punitive damages for a noncontractual obligation when the defendant is guilty of oppression, fraud, or malice.

Lead GHR Enters., Inc. v. Am. States Ins. Co. · filed 2019-02-25

South Dakota law permits a jury to award punitive damages for "any action for the breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud, or malice, actual or presumed[.]" SDCL § 21-3-2. ... Defendant is correct that the availability of punitive damages is tied to the existence of a viable bad faith claim and the presence of compensatory damages for that claim. See Berry v. Time Ins. Co., 798 F.Supp.2d 1015, 1021-22 (D.S.D. 2011). However, the court determined plaintiff's bad faith claim survived summary judgment, including its allegation of compensatory damages. See supra Sections III.B.1-2. Plaintiff's punitive damages claim survives as well. Summary judgment on the punitive damages claim is denied.

Section 21-3-2 permits punitive damages for a tort independent of a contract when there is evidence of oppression, fraud, or malice, and presumed malice may be shown by disregard for another's rights.

Tovares v. Gallagher Bassett Servs., Inc. · filed 2019-03-30

" [SDCL] 21-3-2 allows for punitive damages when there is evidence of 'oppression, fraud, or malice.' " Id. at 605 (references omitted). "Since the statute is in the disjunctive, it [is] only necessary to prove one of the three." Id. "Malice under the statute is either actual or presumed." Id. "A claim for presumed malice can be shown by demonstrating a disregard for the rights of other[s]." Id. (internal references omitted).

Section 21-3-2 permits punitive damages for a tort independent of a contract when there is oppression, fraud, or malice; proof of any one suffices, and malice may be actual or presumed.

Tovares v. Gallagher Bassett Services, Inc. · filed 2019-03-30

“[SDCL] 21-3-2 allows for punitive damages when there is evidence of ‘oppression, fraud, or malice.’ ” Id. at 605 (references omitted). “Since the statute is in the disjunctive, it [is] only necessary to prove one of the three.” Id. “Malice under the statute is either actual or presumed.” Id. “A claim for presumed malice can be shown by demonstrating a disregard for the rights of other[s].” Id. (internal references omitted).

Section 21-3-2 permits punitive damages in addition to actual damages and other statutory actual damages when the defendant acted with oppression, fraud, or actual or presumed malice in an action for breach of a noncontractual obligation.

Tovares v. Gallagher Bassett Services, Inc. · filed 2020-05-06

Defendants ignore the clear language of SDCL § 21-3-2, which permits punitive damages “in addition to the actual damage[.]” Id. (emphasis added). Nothing in § 58-33-46.1 declares the damages available by that section are the exclusive damages available. Plus, it is clear that § 21-3-2 contemplates punitive damages may be awarded in addition to other statutory, actual damages.

Section 21-3-2 permits punitive damages in tort actions only when the defendant acted with oppression, fraud, or actual or presumed malice; negligent mistakes alone do not establish presumed malice.

Stengle v. The Walgreen Company · filed 2021-03-08

While SDCL § 21-3-2 limits its applicability to tort cases involving “oppression, fraud, or malice,” the Supreme Court of South Dakota has stated that “[m]alice is an essential element ofaclaim for punitive damages.” ... The evidence is undisputed that the pharmacists negligently, but not intentionally, erred in filling Mr. Stengle’s prescription. ... Viewing the facts in the light most favorable to the Stengles, this Court finds that the undisputed material facts establish no reasonable basis for a jury to presume malice on the part of Walgreens or its pharmacists.

Section 21-3-2 permits punitive damages in a noncontract action when the defendant acted with oppression, fraud, or actual or presumed malice; whether those requirements are met may be decided by the jury.

Hollow Horn v. Firstcomp Insurance Company · filed 2021-05-12

Punitive damages are available “[i]n any action for the breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud, or malice, actual or presumed.” SDCL § 21-3-2. ... Therefore, whether punitive damages are available in this case depends on whether FirstComp is found guilty of bad faith and, if so, punitive damages are an issue for the jury.

Section 21-3-2 bars punitive damages for breach of contract but permits them for an independent tort involving oppression, fraud, or malice.

Lundstrom, Jr. v. Homolka, P.A. · filed 2021-10-21

Under South Dakota law, punitive damages are not an available remedy on a claim for breach of contract. Punitive damages are available “[i]n any action for the breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud, or malice, actual or presumed.” SDCL § 21-3-2. Punitive damages are appropriate “when the complaining party can prove an independent tort that is separate and distinct from the breach of contract.” Grynberg v. Citation Oil & Gas Corp., 573 NW2d 493, 500 (SD 1997).

Section 21-3-2 authorizes punitive damages in tort actions involving oppression, fraud, or actual or presumed malice; malice is an essential element of the claim.

Espinoza v. Fowler · filed 2023-09-12

While SDCL § 21-3-2 limits its applicability to tort cases involving “oppression, fraud, or malice,” the Supreme Court of South Dakota has stated that “[mlJalice is an essential element of a claim for ... punitive damages.”

Section 21-3-2 authorizes punitive damages in tort actions when the defendant is guilty of oppression, fraud, or malice, actual or presumed, and also covers certain intentional or willful and wanton injuries to animals.

Long v. Smithfield Packaged Meats Corp. · filed 2024-06-03

In any action for the breach of an obligation not arising from contract, where 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 § 21-3-2. This statute clearly limits its applicability to tort cases involving “oppression, fraud, or malice.”

Section 21-3-2 authorizes punitive damages for a wrongful-death claim because wrongful death is an action for breach of a noncontractual obligation, when the defendant's conduct satisfies the statute's culpability requirement.

Rodriguez v. Vaniperen · filed 2024-06-04

Because punitive damages are available (provided defendants’ actions are sufficiently severe) in “any action for the breach of an obligation not arising from contract,” the issue here is whether a violation of the wrongful death statute constitutes “any action for the breach of an obligation not arising from contract.” SDCL § 21-3-2. It does. The South Dakota Legislature has explicitly made it an “obligation” to not wrongfully cause someone’s death by authorizing a cause of action under SDCL § 21-5-1. And because this obligation arises from a legislative mandate rather than an agreement between two parties, this obligation does not arise from contract. Thus, SDCL § 21-3-2 unambiguously authorizes punitive damages for violations of SDCL § 21-5-1.

Section 21-3-2 makes malice an essential element of a punitive-damages claim, and malice may be either actual or presumed from willful or wanton conduct causing injury.

Fiechtner v. American West Ins. · filed 2025-11-05

“Malice is an essential element of a punitive damages claim[.]” Bertelsen II, 2011 S.D. 13, ¶ 39, 796 N.W.2d at 698 (citing SDCL 21-3-2). Malice “may be actual or presumed.” Id. ¶ 40, 796 N.W.2d at 699 (citing Biegler v. Am. Fam. Ins. Co., 2001 S.D. 13, ¶ 45, 621 N.W.2d 592, 605). “Actual malice is a positive state of mind, evidenced by a positive desire and intention to injure one another, actuated by hatred or ill-will towards that person.” Id. (quoting Biegler, 2001 S.D. 13, ¶ 45, 621 N.W.2d at 605). Presumed malice is “‘malice which the law infers from or imputes to certain acts.’” Id. (quoting Harter, 1998 S.D. 59, ¶ 36, 579 N.W.2d at 634). “Presumed malice may not ‘be motivated by hatred or ill-will but is present when a person acts willfully or wantonly to the injury of others.’” Id. (quoting Biegler, 2001 S.D. 13, ¶ 45, 621 N.W.2d at 605). “An insurer’s clear breach of contract or denial of a claim that is not fairly debatable may indicate malice.” Id. ¶ 41.

Section 21-3-2 requires a plaintiff seeking punitive damages to show that the defendant acted intentionally or with willful and wanton misconduct.

Judy Shaw Foundation v. City of Howard · filed 2026-01-05

Moreover, whether the City acted in good faith reliance on counsel’s advice directly bears on JSF’s burden to show that the City acted intentionally or with willful and wanton misconduct. See SDCL § 21-3-2. On this record, the information provided to counsel and the extent of the advice received present a genuine issue of fact for the jury. Thus, summary judgment is denied on the City’s advice-of-counsel defense as to JSF’s punitive damages claim.

Section 21-3-2 permits punitive damages for oppression, fraud, or malice only when the defendant breaches an obligation not arising from a contract.

O'Daniel v. Na · filed 2009-03-16

Under South Dakota law, punitive damages are appropriate when a defendant has acted with oppression, fraud, or malice when breaching an obligation not arising from a contract. See SDCL 21-3-2. Accordingly, punitive damages are not proper in this case because defendants’ obligations arise out of a contract to procure insurance for O’Daniel.

Section 21-3-2 permits punitive damages only for breach of an obligation not arising from contract, so a breach of the implied contractual obligation of good faith cannot support punitive damages.

Goldenview Ready-Mix, LLC v. Grangaard Construction, Inc. · filed 2025-07-24

As noted above, SDCL 21-3-2 permits the imposition of punitive damages “[i]n any action for the breach of an obligation not arising from contract[.]” ... Here, the legal obligation giving rise to the jury’s punitive damages award—the implied obligation of good faith—unquestionably arises from a contract. ... Under the circumstances, the jury’s decision to award $50,000 in punitive damages contravenes the plain language of SDCL 21-3-2, which allows punitive damages “[i]n any action for the breach of an obligation not arising from contract[.]” (Emphasis added.)

Section 21-3-2 permits a plaintiff to recover punitive damages when the defendant is guilty of oppression, fraud, or actual or presumed malice.

Mutua v. TEXAS ROADHOUSE MANAGEMENT CORP. · filed 2010-11-10

South Dakota similarly allows a plaintiff to recover punitive damages if "the defendant has been guilty of oppression, fraud, or malice, actual or presumed." SDCL 21-3-2. ... Because the punitive damages standard is similar under South Dakota law, the court will discuss all three statutes’ punitive damages provisions together. ... As the facts currently stand, the anti-discrimination policy is insufficient, as a matter of law, to establish good faith on the part of Texas Roadhouse. Accordingly, Mutua may proceed with her punitive damages claims.

Section 21-3-2 permits a jury to award punitive damages when a defendant acts with oppression, fraud, or actual or presumed malice.

Christensen v. Quinn · filed 2014-09-10

South Dakota law allows a jury to award punitive damages where a defendant has acted with “oppression, fraud, or malice, actual or presumed.” SDCL 21-3-2; see also Hoaas v. Griffiths, 714 N.W.2d 61 (S.D.2006) (allowing punitive damages in a conversion suit); Till v. Bennett,. 281 N.W.2d 276 (S.D.1979) (allowing punitive damages in a case involving trespassing cattle). In this case, there is evidence from which a jury could find that Quinn and Landeen-Hoeke acted with the requisite culpability to impose punitive damages.

Section 21-3-2 makes malice an essential element of a punitive-damages claim; malice may be actual or presumed, including when a person acts willfully or wantonly to injure another.

Bertelsen v. Allstate Insurance Co. · filed 2011-04-06

The required malice may be actual or presumed. ... Presumed malice may not “be motivated by hatred or ill-will but is present when a person acts willfully or wantonly to the injury of others.”

Section 21-3-2 requires oppression, fraud, or malice, actual or presumed, for punitive damages; presumed malice is not established merely by an unlawful or injurious act.

Smizer v. Drey · filed 2016-01-06

Malice is an essential element of a claim for punitive damages.” ... Malice can be actual or presumed. ... Yet, it is not presumed simply from doing the unlawful or injurious act.

Section 21-3-2 permits punitive damages when a defendant acts with oppression, fraud, or malice, and willful or wanton misconduct may support presumed malice.

Fluth v. Schoenfelder Constr., Inc. · filed 2018-08-29

Claims for punitive damages are prohibited in this state unless expressly authorized by statute. ... SDCL 21-3-2 provides in part that punitive damages may be awarded in addition to actual damages if a defendant is “guilty of oppression, fraud, or malice, actual or presumed . . . committed intentionally or by willful and wanton misconduct, in disregard of humanity . . . .” ... To succeed on a claim for punitive damages, there must be “a showing of either actual or presumed malice.”

Section 21-3-2 permits punitive damages when the defendant is guilty of oppression, fraud, or actual or presumed malice, and allows them to punish the defendant and set an example.

McKenzie v. Farmers Insurance Exchange · filed 2017-05-12

Under SDCL 21-3-2, a plaintiff claiming punitive damages must show that “the defendant has been guilty of oppression, fraud, or malice, actual or presumed.” If the plaintiff makes this showing, punitive damages may be given “for the sake of example, and by way of punishing the defendant.”

Section 21-3-2 bars recovery of punitive damages on a tort claim unless the defendant was guilty of oppression, fraud, or malice.

Monroe · filed 2026-01-14

Plaintiffs in South Dakota may not recover punitive damages on a tort claim unless “the defendant has been guilty of oppression, fraud, or malice.”

Section 21-3-2 permits, but does not require, the trial judge to award punitive damages for a malicious slanderous statement, subject to the judge’s discretion.

Walkon Carpet Corporation v. Klapprodt · filed 1975-07-03

SDCL 21-3-2 provides that the trial judge may award punitive damages because the slanderous statement was actuated by malice. In his discretion he elected to not make such an award and we find nothing in the record to indicate an abuse of this discretion.

Section 21-3-2 permits punitive damages in an equitable action for a noncontractual wrong when the statutory misconduct requirements are met; its only stated limitation is for actions arising from contract.

Black v. Gardner · filed 1982-06-02

There is no limitation as to an equitable action in this statute. The only limitation is as to an action arising in contract. ... We hold that the trial court properly submitted the issue of punitive damages to the jury.

Section 21-3-2 permits punitive damages for a noncontractual injury involving oppression, fraud, or malice, but punitive damages may not be combined with treble damages of the same nature and purpose under § 22-34-2.

K & E Land and Cattle, Inc. v. Mayer · filed 1983-03-02

Even if SDCL 22-34-2 were based in tort, another difficulty would persist. SDCL 22-34-2 is a multiple damage statute and SDCL 21-3-2 is a punitive damage statute. See generally, D. Dobbs, Handbook on the Law of Remedies § 5.5 at 346 (1973). Professor Dobbs identifies our issue herein: “Aside from problems of complying with detailed provisions of each statute, two major issues are raised. First, if multiple damages are recovered, can the plaintiff also recover punitive damages in a proper case?” Id. at 347. Dobbs concludes: “Where the plaintiff seeks the statutory measure of damages, however, it seems unduly harsh to allow both multiple damages under the statute and punitive damages, at least where multiple damages are based on a finding of willfulness.” We agree that the duplication of damages of the same nature and purpose is to be avoided. We deem that duplication of penal damages herein is unwarranted and accordingly reverse the award of treble damages allowed under SDCL 22-34-2. Thus, we remand this issue with directions to remove the award of $598.80. The amended judgment for $199.60 actual damages for tortious damage to the fence is affirmed.

Section 21-3-2 permits punitive damages in a tort action when the defendant’s conduct shows a wanton and reckless disregard of the plaintiff’s rights, even outside wrongful-injury-to-animals cases and without deliberate or intentional conduct.

Smith v. Montana-Dakota Utilities · filed 1983-12-07

But, nonetheless, this Court must conclude that punitive damages are recoverable in South Dakota based upon proof of conduct that indicates a wanton and reckless disregard of the plaintiff’s rights.

Section 21-3-2 permits punitive damages in an action for breach of a noncontractual obligation when the defendant's conduct involves oppression, fraud, or malice.

Mathews v. Twin City Construction Co. · filed 1984-10-03

In South Dakota, punitive damages may be awarded for “any action for breach of an obligation not based on contract,” SDCL 21-3-2, and when circumstances demonstrate a defendant is guilty of oppression, fraud or malice. SDCL 21-3-2; See also, Hannahs v. Noah, 83 S.D. 296, 158 N.W.2d 678 (1968), reaffirmed in Till v. Bennett, 281 N.W.2d 276 (S.D.1979). Thus, our punitive damages statute contemplates tor-tious conduct carried out in a particularly abusive manner.

Section 21-3-2 requires a person seeking punitive damages to show malice by the party from whom damages are sought.

Yankton Production Credit Ass'n v. Jensen · filed 1987-12-09

Under South Dakota law, one seeking punitive damages must show malice on the part of the party from whom damages are sought. SDCL 21-1-4.1 and SDCL 21-3-2; Hulstein v. Meilman Food Industries, Inc., 293 N.W.2d 889 (S.D.1980); Baumgartner’s Electric Construction Co. v. DeVries, 77 S.D. 273, 91 N.W.2d 663 (1958), rev’d on other grounds 359 U.S. 498, 79 S.Ct. 1117, 3 L.Ed.2d 976 (1959). In the instant case, the trial court specifically found that Jensens admitted there was no bad faith, ill-will, or malice by the PCA toward Jensens and, defendants having raised no issue as to that finding, we now determine that the trial court erred in not striking the prayer for exemplary damages in response to PCA’s motion.

Section 21-3-2 permits a jury to award punitive damages for a statutory breach that is an obligation not arising from contract when the defendant acted with oppression, fraud, or malice, actual or presumed.

Groseth International, Inc. v. Tenneco Inc. · filed 1989-04-19

Defendants concede that this case involves the breach of a statute and thus meets the statutory limitation of “breach of an obligation not arising from contact....” SDCL 21-3-2. On retrial, a jury may award punitive damages in its discretion if defendants have been guilty of oppression, fraud or malice, actual or presumed in connection with the termination of the dealership.

Section 21-3-2 describes punitive damages as punishment and an example for others, rather than compensation for loss, and treats them as additional to actual damages.

Dairyland Insurance Co. v. Wyant · filed 1991-09-04

In South Dakota, punitive damages are awarded not to compensate an injured *516party for a loss but “for the sake of example, and by way of punishing the defendant.” SDCL 21-3-2. They are distinct from and “in addition to the actual damage.” Id.

Section 21-3-2 permits punitive damages when the defendant has been guilty of oppression, fraud, or actual or presumed malice.

Stugelmayer v. Ulmer · filed 1977-12-07

These facts are sufficient to support a possible award of punitive damages under SDCL 21-3-2. Such damages may be awarded when a defendant has been guilty of oppression, fraud or malice, actual or presumed, and we believe Ulmer under these facts was entitled to a finding on that issue.

Section 21-3-2 permits exemplary damages in an action for noncontractual injury to animals when the wrongful injury is intentional or results from willful and wanton misconduct in disregard of humanity.

Till v. Bennett · filed 1979-07-18

In the present case, there was considerable testimony and evidence that the fence line gate was consistently and deliberately left open and that well-worn trails of beaten-down cane originated at the gate opening and spread throughout the field. This and other evidence indicating a “wanton and reckless disregard” of plaintiff’s rights is sufficient to warrant the jury instruction for exemplary damages and to support the verdict.

Section 21-3-2 bars recovery of punitive damages in a breach-of-contract action.

Thu v. American Family Insurance Co. · filed 1980-05-07

We conclude that the trial court erred in submitting the issue of punitive damages to the jury. Punitive damages are not recoverable in breach of contract actions. SDCL 21-3-2.

Section 21-3-2 bars punitive damages when the claim is an action on a contract.

Pinson v. Depco, Inc. · filed 1985-01-10

The Defendants have moved for partial judgment on the pleadings on the Plaintiffs claim for punitive damages, on the grounds that punitive damages are barred by SDCL 21-3-2. SDCL 21-3-2 bars punitive damages for contract actions. However, in Count II, the Plaintiff appears to have alleged a cause of action based on either fraudulent drainage or tortious breach of contract. Therefore, the Defendants motion for partial judgment on the pleadings on this issue is denied.

Section 21-3-2 permits, but does not require, a jury to award exemplary damages when oppression, fraud, or malice is found, leaving the award entirely to the jury's discretion.

Gregor v. Ertz (In Re Ertz) · filed 1983-04-06

The statute that underlies the bankruptcy court’s chain of reasoning states that “where the defendant has been guilty of oppression, fraud, or malice, ... the jury ... may give damages for the sake of example, and by way of punishing the defendant.” SDCL § 21-3-2 (emphasis added). The language of the statute is permissive. Nothing in the statute requires a jury to assess exemplary damages if it finds malice. That assessment is left entirely to the discretion of the jury. Nothing can be inferred as to the presence of malice from the jury’s refusal to impose an exemplary penalty.

Section 21-3-2 permits punitive damages for a noncontractual obligation when oppression, fraud, or malice is shown, but a claim fails where fraud is not alleged and oppression or malice is not supported by the record.

Moosmeier v. Johnson · filed 1987-09-23

SDCL 21-3-2 also provides for punitive damages as follows: ... In our view, because there was no allegation of fraud and because the record is devoid of any showing that Helene was guilty of oppression or malice, the trial court properly struck the claim for exemplary damages.

Section 21-3-2 permits punitive damages when the defendant is guilty of oppression, fraud, or actual or presumed malice.

United States Ex Rel. Farmers Home Administration v. Ketelsen · filed 1988-03-04

In South Dakota, punitive damages are proper “where the defendant has been guilty of oppression, fraud, or malice, actual or presumed.” SDCL 21-3-2.

Section 21-3-2 requires oppression, fraud, or malice before a jury may award exemplary damages.

Vreugdenhil v. First Bank of South Dakota, N.A. · filed 1991-03-27

SDCL 21-3-2 has been strictly construed and requires a showing of oppression, fraud or malice.

Section 21-3-2 permits punitive damages in a noncontract action when oppression, fraud, or actual or presumed malice is shown.

Dahl v. Sittner · filed 1991-08-28

This statute limits punitive damages to cases in which oppression, fraud, or malice is claimed. ... Malice is an essential element of a claim for punitive damages, however, malice sufficient to support exemplary damages may be either actual, malice in fact, or presumed, legal malice. ... In construing SDCL 21-1-4.1 and 21-3-2 together, we equate the “willful, wanton” language of the former with the presumed, legal malice of the latter and the “malicious” language of the former with the actual malice of the latter.

Section 21-3-2 permits punitive damages for an obligation independent of contract when the facts establish oppression, fraud, or malice, including an independent deceit occurring in connection with a contract.

Ducheneaux v. Miller · filed 1992-07-01

Finally, we discuss an issue alluded to by Miller regarding the propriety of awarding punitive damages where a breach of contract is involved. SDCL 21-3-2 permits the award of punitive damages only for “the breach of an obligation not arising from contract[.]” ... The independent tort must be separate and distinct from the breach of contract. ... We believe the tort committed was independent of the breach of contract and justified the award of punitive damages. We therefore uphold the trial court’s award of punitive damages.

Section 21-3-2 bars punitive damages for a mere breach of contract but permits them for an independent tort arising from the contractual relationship when oppression, fraud, or malice makes punishment and deterrence appropriate.

Grynberg v. Citation Oil & Gas Corp. · filed 1997-10-22

This statute states that no punitive damages are available for a breach of contract obligation. The language of the statute clearly permits punitive damages, however, for a tort arising independent of the contract obligation, and when the damages are necessary to deter the wrongful conduct and to punish the defendant.

Section 21-3-2 permits punitive damages only in an action for breach of an obligation not arising from contract, when oppression, fraud, or malice is shown.

McKie v. Huntley · filed 2000-12-27

In South Dakota punitive damages are not recoverable unless expressly allowed by statute. ... Thus, to obtain punitive damages Huntley must have a case “not arising from contract.”

Section 21-3-2 permits the jury to award punitive damages for oppression, fraud, or actual or presumed malice; presumed malice can support punitive damages when the evidence is sufficient.

Holmes v. Wegman Oil Co. · filed 1992-11-04

Under SDCL 21-3-2, the jury may award punitive damages where the defendant was guilty of “oppression, fraud, or malice, actual or presumed.” (Emphasis Added.) ... When viewing the record most favorably to the verdict, there is evidence to support a finding of presumed malice sufficient to support punitive damages.

Section 21-3-2 permits a jury to award punitive damages for oppression, fraud, or actual or presumed malice, including willful or wanton disregard for others' rights.

Kjerstad v. Ravellette Publications, Inc. · filed 1994-04-20

Under SDCL 21-3-2, the jury may award punitive damages for either actual or presumed malice. Holmes, supra at 112. Presumed malice does not require hatred or ill will, “but is present when a person acts willfully or wantonly to the injury of others.” Case v. Murdock, 488 N.W.2d 885, 891 (S.D.1992). Further, a claim for presumed malice can be sustained by demonstrating a disregard for the rights of others. Flockhart, supra at 478. The determination by the trial court that there was a reasonable basis to submit the punitive damages issue to the jury will not be disturbed absent a clearly erroneous interpretation of the evidence. Case, supra at 891; Vreugdenhil, supra at 760. There exists substantial evidence in the record demonstrating that Ravellette acted with a disregard for the rights of others. Therefore, the trial court did not err in submitting the issue of punitive damages to the jury.