Product Liability Complaint - South Dakota

PRODUCT LIABILITY COMPLAINT — SOUTH DAKOTA

TABLE OF CONTENTS

1. Caption
2. Introduction
3. Parties, Jurisdiction, and Venue
4. Factual Allegations
5. Count I — Strict Products Liability (SDCL § 20-9-9)
6. Count II — Negligence
7. Count III — Breach of Express Warranty
8. Count IV — Breach of Implied Warranty of Merchantability
9. Count V — Breach of Implied Warranty of Fitness for Particular Purpose
10. Damages
11. Punitive Damages
12. Prayer for Relief
13. Demand for Jury Trial
14. Reservation of Rights
15. Signature and Service Blocks
16. Verification
17. South Dakota Practice Notes
18. Sources and References

1. CAPTION

STATE OF SOUTH DAKOTA

COUNTY OF [________________________________]

IN CIRCUIT COURT

[____] JUDICIAL CIRCUIT

CIV. NO. [________________________________]

COMPLAINT AND DEMAND FOR JURY TRIAL

(Strict Products Liability; Negligence; Breach of Warranty)

2. INTRODUCTION

Plaintiff [PLAINTIFF NAME], by and through undersigned counsel, brings this action against Defendants for personal injuries and damages caused by a defective and unreasonably dangerous [PRODUCT TYPE] (the "Product") designed, manufactured, marketed, distributed, and sold by Defendants. In support, Plaintiff alleges as follows:

3. PARTIES, JURISDICTION, AND VENUE

3.1. Plaintiff [PLAINTIFF NAME] ("Plaintiff") is, and at all relevant times was, an adult resident of [CITY], [COUNTY] County, South Dakota.

3.2. Defendant [MANUFACTURER NAME] ("Manufacturer") is a [STATE] corporation with its principal place of business at [ADDRESS]. Manufacturer designed, manufactured, tested, marketed, advertised, distributed, and sold the Product nationwide and within South Dakota.

3.3. Defendant [DISTRIBUTOR / SELLER NAME] ("Seller") is a [STATE] [corporation / limited liability company] with its principal place of business at [ADDRESS], and at all relevant times was engaged in the business of selling [PRODUCT TYPE] in South Dakota, including the Product at issue.

3.4. Defendants [DOES 1–10] are persons or entities whose true names and capacities are presently unknown to Plaintiff, who therefore sues such Defendants by fictitious names. Plaintiff will amend this Complaint to allege their true names and capacities when ascertained.

3.5. This Court has subject-matter jurisdiction pursuant to S.D. Const. art. V, § 5 and SDCL § 16-6-9. The amount in controversy exceeds the jurisdictional threshold of any court of limited jurisdiction.

3.6. This Court has personal jurisdiction over each Defendant under SDCL § 15-7-2 (long-arm statute) because Defendants transact business in South Dakota, contracted to supply goods in South Dakota, and/or committed a tortious act within South Dakota that gave rise to the injuries alleged.

3.7. Venue is proper in [COUNTY] County pursuant to SDCL § 15-5-6 because the cause of action, or some part thereof, arose in this County, and/or pursuant to SDCL § 15-5-8 because [Plaintiff resides / Defendants transact business] here.

4. FACTUAL ALLEGATIONS

4.1. On or about [DATE], Defendant Manufacturer designed, manufactured, assembled, tested, inspected, labeled, marketed, distributed, and placed into the stream of commerce the Product, identified as [PRODUCT NAME / MODEL / SERIAL NUMBER].

4.2. On or about [DATE OF SALE], Plaintiff [or PLAINTIFF'S EMPLOYER / FAMILY MEMBER] purchased the Product from Defendant Seller at [LOCATION] in South Dakota.

4.3. The Product was at all times intended to be used by consumers, including Plaintiff, for [INTENDED USE].

4.4. On [DATE OF INJURY], Plaintiff was using the Product in a reasonably foreseeable manner, consistent with the manufacturer's instructions and warnings, when the Product [DESCRIBE FAILURE — e.g., suddenly malfunctioned, exploded, fractured, ignited, released a foreign substance, etc.] (the "Incident").

4.5. As a direct and proximate result of the Incident, Plaintiff suffered serious bodily injury, including [ENUMERATE INJURIES — e.g., traumatic brain injury, severe burns, lacerations, fractures, permanent scarring].

4.6. The Product reached Plaintiff without substantial change in the condition in which it was sold by Defendants.

4.7. Plaintiff did not alter, modify, or misuse the Product, and used it for the purpose for which it was intended and in a manner reasonably foreseeable to Defendants.

4.8. Plaintiff exercised due care at all times material hereto, and any conceivable fault on Plaintiff's part is, at most, slight in comparison to the gross fault of Defendants. SDCL § 20-9-2.

4.9. The Incident, and the resulting injuries, were caused by defects in the Product that existed at the time the Product left Defendants' control, including but not limited to manufacturing defects, design defects, and failures to warn, as set forth in detail below.

5. COUNT I — STRICT PRODUCTS LIABILITY (SDCL § 20-9-9)

5.1. Plaintiff realleges and incorporates Paragraphs 1.1 through 4.9 as if fully set forth.

5.2. South Dakota has adopted the rule of strict liability in tort articulated in Restatement (Second) of Torts § 402A. SDCL § 20-9-9; Engberg v. Ford Motor Co., 87 S.D. 196, 205 N.W.2d 104 (1973); Smith v. Smith, 278 N.W.2d 155 (S.D. 1979).

5.3. At all times material hereto, Defendants were engaged in the business of designing, manufacturing, distributing, and/or selling the Product.

5.4. The Product was expected to and did reach the user or consumer (Plaintiff) without substantial change in the condition in which it was sold.

A. Manufacturing Defect

5.5. The Product was in a defective condition unreasonably dangerous to the user or consumer in that, when it left Defendants' control, it deviated from Defendants' design specifications and intended condition, including but not limited to [DESCRIBE DEVIATION — e.g., improperly welded seam, undersized fastener, contaminated materials, missing component].

5.6. The manufacturing defect rendered the Product unreasonably dangerous beyond the contemplation of an ordinary consumer.

B. Design Defect

5.7. The Product was defectively designed in that the foreseeable risks of harm posed by the design could have been reduced or avoided by the adoption of a reasonable alternative design, the omission of which rendered the Product not reasonably safe.

5.8. Reasonable alternative designs available to Defendants at the time of manufacture included, without limitation, [DESCRIBE ALTERNATIVE DESIGN — e.g., interlock guard, tip-over restraint, non-flammable insulation, redundant safety circuit].

5.9. The risk-utility balance, as well as consumer expectations, demonstrate that the Product as designed was unreasonably dangerous. See Peterson v. Safway Steel Scaffolds Co., 400 N.W.2d 909 (S.D. 1987).

C. Failure to Warn

5.10. The Product was defective and unreasonably dangerous because Defendants failed to provide adequate warnings or instructions concerning [DESCRIBE HAZARD — e.g., risk of sudden failure, ignition source, suffocation, toxicity], hazards that were known or reasonably knowable to Defendants but not obvious to the ordinary consumer.

5.11. Adequate warnings would have prevented Plaintiff's injuries.

5.12. As a direct and proximate result of one or more of the foregoing defects, Plaintiff sustained injuries and damages described herein.

6. COUNT II — NEGLIGENCE

6.1. Plaintiff realleges and incorporates Paragraphs 1.1 through 5.12.

6.2. Defendants owed Plaintiff a duty to exercise reasonable care in the design, manufacture, testing, inspection, marketing, distribution, sale, and post-sale surveillance of the Product so that it would be safe for its reasonably foreseeable uses.

6.3. Defendants breached that duty by, inter alia:

• Negligently designing the Product without reasonable safety features;
• Negligently manufacturing, assembling, or inspecting the Product;
• Negligently testing or failing to test the Product under foreseeable use conditions;
• Negligently marketing the Product without adequate warnings or instructions;
• Negligently failing to recall, retrofit, or warn after Defendants knew or should have known of the hazardous condition.

6.4. Defendants' breaches were a proximate cause of the Incident and Plaintiff's injuries.

6.5. As a direct and proximate result, Plaintiff has sustained the damages set forth herein.

7. COUNT III — BREACH OF EXPRESS WARRANTY

7.1. Plaintiff realleges and incorporates Paragraphs 1.1 through 6.5.

7.2. Pursuant to SDCL § 57A-2-313, Defendants expressly warranted, by representations made in advertising, packaging, labeling, owner's manuals, and other communications, that the Product was [QUOTE OR DESCRIBE EXPRESS WARRANTY — e.g., "safe for normal use," "fully tested," "compliant with all safety standards"].

7.3. Plaintiff and the public relied on these express warranties in purchasing and using the Product.

7.4. The Product did not conform to those express warranties because it was defective and unreasonably dangerous as described herein.

7.5. Plaintiff has provided notice of the breach to the extent required by SDCL § 57A-2-607, and/or such notice is excused under controlling South Dakota authority.

7.6. As a direct and proximate result of the breach, Plaintiff suffered the damages set forth herein.

8. COUNT IV — BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY

8.1. Plaintiff realleges and incorporates Paragraphs 1.1 through 7.6.

8.2. Pursuant to SDCL § 57A-2-314, Defendants, as merchants of goods of the kind, impliedly warranted that the Product was merchantable, fit for the ordinary purposes for which such goods are used, and adequately contained, packaged, and labeled.

8.3. The Product was not merchantable because of the defects described above.

8.4. As a direct and proximate result of this breach, Plaintiff has sustained injuries and damages.

9. COUNT V — BREACH OF IMPLIED WARRANTY OF FITNESS FOR PARTICULAR PURPOSE

9.1. Plaintiff realleges and incorporates Paragraphs 1.1 through 8.4.

9.2. Pursuant to SDCL § 57A-2-315, at the time of sale, Defendants knew or had reason to know of the particular purpose for which Plaintiff required the Product, and Plaintiff relied on Defendants' skill or judgment to select or furnish suitable goods.

9.3. The Product was not fit for that particular purpose because of the defects described herein.

9.4. As a direct and proximate result of this breach, Plaintiff has sustained injuries and damages.

10. DAMAGES

10.1. Economic damages (special): past and future medical and rehabilitative expenses; past and future lost wages; loss of earning capacity; out-of-pocket expenses; and property damage, all in amounts to be proven at trial.

10.2. Non-economic damages (general): physical pain; mental anguish; permanent injury and disfigurement; loss of enjoyment of life; and inconvenience, in amounts to be determined by the jury.

10.3. Consequential and incidental damages under SDCL § 57A-2-715 to the extent recoverable for the warranty counts.

11. PUNITIVE DAMAGES

11.1. Plaintiff realleges and incorporates Paragraphs 1.1 through 10.3.

11.2. Defendants' conduct, as described above, was willful, wanton, and malicious, exhibiting a conscious disregard for the rights and safety of Plaintiff and the public, including by [FACTS SUPPORTING PUNITIVE — e.g., concealing prior incidents, ignoring internal safety reports, failing to issue a recall after notice of injuries].

11.3. Pursuant to SDCL § 21-1-4.1, Plaintiff seeks leave of Court, upon proper motion and prima facie showing of clear and convincing evidence, to amend this Complaint and pursue punitive damages.

12. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully prays for judgment against Defendants, jointly and severally, as follows:

• A. Compensatory damages in an amount to be determined by the jury;
• B. Special damages, including past and future medical expenses, lost wages, loss of earning capacity, and property damage;
• C. General damages for pain and suffering, mental anguish, permanent impairment, and loss of enjoyment of life;
• D. Punitive damages upon leave of Court pursuant to SDCL § 21-1-4.1;
• E. Pre-judgment and post-judgment interest as provided by SDCL § 21-1-13.1 and § 54-3-16;
• F. Costs and disbursements of this action; and
• G. Such other and further relief as this Court deems just and equitable.

13. DEMAND FOR JURY TRIAL

Plaintiff hereby demands a trial by jury on all issues so triable as a matter of right pursuant to SDCL § 15-6-38 and S.D. Const. art. VI, § 6.

14. RESERVATION OF RIGHTS

Plaintiff reserves the right to amend this Complaint pursuant to SDCL § 15-6-15 to assert additional claims, add or substitute parties (including Doe defendants), or seek punitive damages following the showing required by SDCL § 21-1-4.1.

15. SIGNATURE AND SERVICE BLOCKS

Dated this [____] day of [_______________], 20[____].

Respectfully submitted,

[LAW FIRM NAME]

By: [________________________________]

[ATTORNEY NAME], S.D. Bar No. [####]

Attorney for Plaintiff

[STREET ADDRESS]

[CITY, SD ZIP]

Telephone: [NUMBER]

Email: [EMAIL]

16. VERIFICATION

STATE OF SOUTH DAKOTA

COUNTY OF [________________________________]

I, [PLAINTIFF NAME], being first duly sworn on oath, depose and state that I am the Plaintiff in the above-entitled action; that I have read the foregoing Complaint and know the contents thereof; and that the matters stated therein are true to my own knowledge except those stated upon information and belief, and as to those, I believe them to be true.

[________________________________]

[PLAINTIFF NAME]

Subscribed and sworn to before me this [____] day of [_______________], 20[____].

[________________________________]

Notary Public — State of South Dakota

(My Commission Expires: [_______________])

17. SOUTH DAKOTA PRACTICE NOTES

• Slight/gross comparative negligence — UNIQUE TO SOUTH DAKOTA. SDCL § 20-9-2 provides that contributory negligence does not bar recovery if such negligence "was slight in comparison with the negligence of the defendant," but damages are reduced "in proportion to the amount of plaintiff's contributory negligence." South Dakota is the only state in the United States that retains the slight/gross formulation. The terms "slight" and "gross" are not statutorily defined; their meaning is fact-driven and submitted to the jury. See Wood v. City of Crooks, 559 N.W.2d 558 (S.D. 1997); Cordell v. Tri-State Sand & Gravel, 2002 S.D. 67. Plaintiffs must affirmatively plead and prove that any contributory fault is slight relative to defendant's gross conduct. Drafting tip: avoid concessions of plaintiff fault in the pleadings; characterize defendant conduct as gross, reckless, or wanton.
• Statute of limitations. Three (3) years for product-liability actions per SDCL § 15-2-12.2, accruing when the injury occurred or "became known or should have become known" (built-in discovery rule).
• Statute of repose — INAPPLICABLE. South Dakota has no general products statute of repose. The repose period in SDCL chapter 15-2A applies to deficiencies in improvements to real property (construction); it does not bar most product claims.
• Strict liability codified. SDCL § 20-9-9 codifies Restatement (Second) of Torts § 402A. Engberg v. Ford Motor Co., 87 S.D. 196 (1973), is the seminal South Dakota adoption decision.
• Non-manufacturer seller protection. Under SDCL § 20-9-9, a seller (other than a manufacturer) is generally not strictly liable unless the seller knew or had reason to know of the defect. Sue the manufacturer where possible; preserve negligence and warranty theories against retailers.
• State-of-the-art defense. SDCL § 20-9-10.1 provides a state-of-the-art defense available to defendants — anticipate it and develop alternative-design proof early in expert work-up.
• Alteration / misuse. SDCL § 20-9-10 immunizes manufacturers from liability for injuries caused by post-sale alteration or unforeseeable misuse. Plead intended use and lack of alteration in the complaint (paragraphs 4.6–4.7).
• Punitive damages procedure. SDCL § 21-1-4.1 requires a prima-facie showing on motion before punitive damages may be alleged. Plaintiffs ordinarily plead compensatory counts first, then move to add punitives after discovery establishes a clear-and-convincing record.
• No general damages cap. South Dakota does not cap non-economic damages in ordinary product-liability actions; the medical-malpractice cap (§ 21-3-11) is inapplicable.
• Pleading standard. SDCL § 15-6-8 follows the federal-style notice-pleading rule, but South Dakota courts expect factual specificity sufficient to survive a 12(b)(5) motion.
• Service of process. Effected per SDCL § 15-6-4. Out-of-state corporate defendants may be served via the long-arm (§ 15-7-2) and the Secretary of State (§ 47-1A-1505).
• Federal-court alternative. If diversity exists and the amount in controversy exceeds $75,000, removal to the U.S. District Court for the District of South Dakota is available; consider forum strategy carefully given the slight/gross rule's interaction with federal Erie analysis.

18. SOURCES AND REFERENCES

• South Dakota Codified Laws (SDCL) — https://sdlegislature.gov/Statutes
• SDCL § 20-9-9 (strict products liability) — https://sdlegislature.gov/Statutes/20-9-9
• SDCL § 20-9-10 (alteration / misuse) — https://sdlegislature.gov/Statutes/20-9-10
• SDCL § 20-9-10.1 (state-of-the-art defense) — https://sdlegislature.gov/Statutes/20-9-10.1
• SDCL § 20-9-2 (slight/gross comparative negligence) — https://sdlegislature.gov/Statutes/20-9-2
• SDCL § 15-2-12.2 (3-year SOL for product liability) — https://sdlegislature.gov/Statutes/15-2-12.2
• SDCL § 21-1-4.1 (punitive damages procedure) — https://sdlegislature.gov/Statutes/21-1-4.1
• South Dakota Rules of Civil Procedure (chapter 15-6) — https://sdlegislature.gov/Statutes/15-6
• Engberg v. Ford Motor Co., 87 S.D. 196, 205 N.W.2d 104 (1973) (adopting § 402A)
• Smith v. Smith, 278 N.W.2d 155 (S.D. 1979) (refining strict-liability elements)
• Peterson v. Safway Steel Scaffolds Co., 400 N.W.2d 909 (S.D. 1987) (design defect)
• Wood v. City of Crooks, 559 N.W.2d 558 (S.D. 1997) (slight/gross comparative)
• Cordell v. Tri-State Sand & Gravel, 2002 S.D. 67 (slight/gross application)
• South Dakota Pattern Jury Instructions — Civil (Product Liability series)

Disclaimer: This template is provided for informational purposes only and does not constitute legal advice. An attorney licensed in South Dakota must review and customize this document before filing. Statutes, case law, and court rules change; verify all authorities on sdlegislature.gov before use.