What If The Driver Suing Was Also Negligent? - KOTA Territory News

What If The Driver Suing Was Also Negligent?



Gary Jensen
Beardsley, Jensen and Von Wald

Even if a defendant driver is negligent, his responsibility for personal injuries and
damages may be reduced or even eliminated if the driver suing is contributorily negligent.

Under South Dakota law, contributory negligence is defined as:

  • Negligence on the part of the plaintiff which, when combined with the negligence of a defendant, contributes as a legal cause in bringing about the injury to the plaintiff.

It can be confusing, but consider this: if the driver bringing the lawsuit – the plaintiff – and the driver who has been sued – the defendant – are both negligent, then their respective negligence is compared with each other. The jury must determine:
1. Whether the plaintiff's negligence is "slight" or less than "slight," or
2. More than "slight" in comparison with the defendant's negligence.

In answering the second question, the jury is to make a direct comparison between the
conduct of the plaintiff and defendant. If the jury determines the plaintiff's contributory
negligence is more than slight in comparison to the negligence of the defendant, then the plaintiff is not to recover any damages.

If, on the other hand, the jury determines the contributory negligence of the plaintiff is
slight or less than slight when compared to the negligence of the defendant, then the plaintiff is
entitled to recover damages but those damages must be reduced in proportion to the amount of the plaintiff's contributory negligence.

Let's say Driver A – the defendant - negligently makes a left hand turn in front of Driver
B – the plaintiff - who was driving 10 mph over the speed limit? How would you compare the
negligence of both and determine if Driver B was contributorily negligent "more than slight."

Some states deal with this subject – comparative negligence - by having the jury
determine degrees of fault; such as, for example, the defendant being 65% at fault and the
plaintiff being 35% with the damages being reduced accordingly. In South Dakota, however, we
use the "slight" and "more than slight" standard.

Some like South Dakota's approach, others don't. 

E-mail Gary


Lawline@KOTATV.com is intended as general information on legal issues affecting us all.  This information should not be relied upon in any particular case and should never be used in lieu of consulting with an attorney.


1.      You see yet another car accident at a spot where there have been many accidents in the past and will be more accidents in the future? 


2.      You learn another person is hurt using a machine that has injured others in the past and will injure others in the future? 


3.      You watch a dangerous practice – like where a school bus parks – you know is a disaster waiting to happen?  


What should you do? 


Try to prevent the next accident, injury, and catastrophe from happening. 


How can you do that? 


Send a letter or email to those responsible – the highway department, the owner and operator of the machine, the school district - putting them on notice of the danger.


Your letter or email will either prompt a "fix" or help the next innocent victim establish liability against those who failed to act.   


Taking a few minutes to write a letter or email can have a huge impact; you can be a difference maker. 

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