South Dakota Punitive Damages Laws: Proof, Hearing and Limits (2026)

South Dakota allows punitive damages by statute: under SDCL 21-3-2, in an action for breach of an obligation "not arising from contract," where the defendant "has been guilty of oppression, fraud, or malice, actual or presumed," the jury may award damages "for the sake of example, and by way of punishing the defendant." South Dakota has no general cap on punitive damages, but a plaintiff must first get past a judge: under SDCL 21-1-4.1, before any discovery on the claim and before it goes to the jury, the court must find, after a hearing and on clear and convincing evidence, a reasonable basis to believe the defendant engaged in willful, wanton or malicious conduct.

At trial, the South Dakota Supreme Court has declined to require a clear and convincing standard for the jury (Flockhart v. Wyant, 1991). Some statutes for particular claims set their own limits, and punitive damages may not be recovered from the state's public entity liability pool. For how other states compare, see punitive damages laws by state.

Information last verified on 2026-10-19. This article has not been reviewed by a licensed lawyer.

Jurisdiction scope: This article covers South Dakota state law on punitive damages in civil cases: SDCL 21-3-2, the pre-discovery hearing in SDCL 21-1-4.1, and the other statutes and decisions named below. It does not cover compensatory or general damage limits in medical malpractice cases (see South Dakota medical malpractice law), wrongful-death procedure, deadlines and beneficiaries (see South Dakota wrongful death law), federal claims, or every statute that authorizes, limits or bars punitive or multiplied damages for a particular claim beyond those named here.

Does South Dakota allow punitive damages?

Yes, by statute. SDCL 21-3-2 (Punitive damages in discretion of jury) provides:

"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."

Two limits are built into that text. The obligation must be one "not arising from contract," and the award is "in addition to the actual damage." The statute also covers intentional or willful and wanton injury to animals that are property.

The South Dakota Supreme Court reads the contract limit to mean that "[p]unitive damages are recoverable only when a 'party can prove an independent tort that is separate and distinct from the breach of contract.'" In Goldenview Ready-Mix, LLC v. Grangaard Construction, Inc., 2025 S.D. 43 (July 23, 2025), it vacated a punitive award resting on breach of the implied contractual obligation of good faith, noting that it has recognized the tort of bad faith and the corresponding availability of punitive damages, "but its application is limited to insurance contracts."

Several other statutes add punitive damages for particular claims. For example, if a court finds exploitation occurred, the elder or adult with a disability "may recover actual and punitive damages for the exploitation" (SDCL 22-46-13). In a civil action brought in lieu of a hearing, "punitive damages may be awarded under § 21-3-2 for a violation of §§ 20-13-20 to 20-13-21," the sections on unfair or discriminatory housing practices (SDCL 20-13-35.1).

What must be proven

Oppression, fraud or malice. The South Dakota Supreme Court explained the two kinds of malice in Dahl v. Sittner, 474 N.W.2d 897 (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. ... Presumed, legal malice, on the other hand, is malice which the law infers from or imputes to certain acts."

The court read the two statutes together: "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."

In Flockhart v. Wyant, 467 N.W.2d 473 (S.D. 1991), the court stated: "Punitive damages are recoverable in South Dakota in cases involving willful and wanton misconduct that indicates a reckless disregard for one's rights."

Step one: the judge's hearing. SDCL 21-1-4.1 (Discovery and trial of exemplary damage claims) sets a gate that applies to every punitive claim:

"In any claim alleging punitive or exemplary damages, before any discovery relating thereto may be commenced and before any such claim may be submitted to the finder of fact, the court shall find, after a hearing and based upon clear and convincing evidence, that there is a reasonable basis to believe that there has been willful, wanton or malicious conduct on the part of the party claimed against."

The clear and convincing standard here applies to the judge's finding of a reasonable basis, not to the jury's verdict.

Step two: the trial burden. In Flockhart, the trial court instructed the jury that the plaintiff "had the burden of proving the elements for punitive damages by a preponderance of the evidence," and the defendant argued that a clear and convincing standard was required. The South Dakota Supreme Court affirmed. It read SDCL 21-1-4.1 as a threshold rule: it "does not establish a clear and convincing evidence standard but merely requires clear and convincing evidence to show a reasonable basis." It declined "to require a clear and convincing evidence trial standard based on the due process clause contained in the United States or South Dakota Constitutions," and held that public policy reasons "do not require a clear and convincing evidence standard of proof when a claim is submitted to the jury for punitive damages."

Utility wildfire claims (2026). A 2026 act (SL 2026, ch 189) added a stricter rule for claims against a "qualified utility" that has a valid wildfire mitigation plan: "The plaintiff may not recover punitive damages unless it is proven by clear and convincing evidence that the qualified utility engaged in willful and wanton misconduct and the qualified utility's willful and wanton misconduct was the actual and proximate cause of damages to the plaintiff" (SDCL 49-49-6).

How the amount is decided

The jury sets the amount. In Flockhart, the court listed the considerations: "This court has identified five factors as having a bearing upon the amount of punitive damages. These factors are: (1) the amount allowed in compensatory damages; (2) the nature and enormity of the wrong; (3) the intent of the wrongdoer; (4) the wrongdoer's financial condition; and (5) all of the circumstances attendant to the wrongdoer's actions."

In Flockhart, the punitive claim was tried in a separate phase before the same jury after it returned a compensatory verdict. A court may order a separate trial of any issue "in furtherance of convenience or to avoid prejudice" (SDCL 15-6-42(b)).

Under SDCL 21-1-4.1, no discovery relating to the punitive claim may begin until the court has made its reasonable-basis finding. Prejudgment interest is not recoverable on punitive damages (SDCL 21-1-13.1). The U.S. Supreme Court's due-process limits on the size of punitive awards also apply; the punitive damages hub explains them.

Is there a cap on punitive damages in South Dakota?

South Dakota has no general cap or multiplier on punitive damages. SDCL 21-3-2 leaves the amount to the jury, guided by the Flockhart factors.

Medical malpractice. The malpractice limit in SDCL 21-3-11 (Limitation on damages for medical malpractice) is a limit on general damages: "the total general damages which may be awarded may not exceed the sum of five hundred thousand dollars. There is no limitation on the amount of special damages which may be awarded." The section does not mention punitive damages, and the SDCL 21-1-4.1 hearing still applies to any punitive claim against a provider. For the rest of the malpractice rules, see South Dakota medical malpractice law.

Claim-specific limits. Some statutes for particular claims set their own amounts:

• Trade secrets. "If willful and malicious misappropriation exists, the court may award exemplary damages in an amount not exceeding twice any award made under subsection (a)" (SDCL 37-29-3(b)).
• Bad-faith patent infringement assertions. A person aggrieved may recover "exemplary damages in an amount equal to fifty thousand dollars or three times the total of damages, costs, and fees, whichever is greater" (SDCL 37-36-7(4)).
• Security deposits. A residential lessor's bad-faith retention of a deposit, or bad-faith failure to provide the required written statement or itemized accounting, "subjects the lessor to punitive damages not to exceed two hundred dollars" (SDCL 43-32-24). Commercial lessors face the same $200 limit (SDCL 43-32-24.1).
• Abortion statutes. Where an abortion is performed "willfully, wantonly, or maliciously in disregard to" SDCL 34-23A-2.1, 34-23A-7 or 34-23A-10.1, the woman or the parent of a minor may sue the person who performed it for punitive damages "not to exceed ten thousand dollars," and for an attempted abortion "not to exceed five thousand dollars" (SDCL 34-23A-22).
• Fraudulent claims against the state. For a violation of SDCL 23A-28B-35, the state may recover its damages and "punitive damages in an amount not more than double the amount of damages which the state has sustained, together with interest, plus the cost of such suit."

Claims where punitive damages are barred or limited

• Agricultural operation nuisance. "A plaintiff may not recover punitive damages in a nuisance action against an agricultural operation unless: (1) The alleged nuisance is based on substantially the same conduct that was subject to a civil enforcement judgment or criminal conviction taken by any county, municipal, state, or federal environmental regulatory agency pursuant to a notice of violation for the conduct alleged to be the source of the nuisance; and (2) The conviction or judgment occurred within three years of the first action forming the basis of the nuisance action" (SDCL 21-10-25.8, added by SL 2023, ch 65).
• Libel retraction. Where a newspaper publishes a retraction that meets the conditions of SDCL 20-11-7, "the plaintiff will be entitled to recover no punitive damages." For the rest of a defamation claim, see South Dakota defamation laws.
• Small claims. "Exemplary or punitive damages may not be awarded under this chapter, except as provided in chapter 60-11, chapter 22-30A, and §§ 43-32-6 and 43-32-24" (SDCL 15-39-45).
• Right of publicity. For a knowing, willful or intentional violation, the court may order "treble, but not computed on the defendant's profits, or punitive damages, as the plaintiff elects" (SDCL 21-64-5(4)).
• Minors and persons of unsound mind. A minor "cannot be subjected to exemplary damages, unless at the time of the act he was capable of knowing that it was unlawful" (SDCL 26-1-4). SDCL 20-11A-5 sets a parallel restriction for persons of unsound mind.

Does South Dakota take a share of the award?

No general statute does. South Dakota has no general split-recovery statute, and none of the statutes discussed on this page directs any part of a private plaintiff's punitive award to the state or a fund.

Punitive damages in South Dakota wrongful death cases

The wrongful death statute measures damages by financial loss: "In every action for wrongful death the jury may give such damages as they may think proportionate to the pecuniary injury resulting from such death to the persons respectively for whose benefit such action shall be brought" (SDCL 21-5-7). It does not mention punitive damages.

The South Dakota Supreme Court has described the statute's history: in Anderson v. Lale, 216 N.W.2d 152 (S.D. 1974), it noted that the 1877 version "allowed a claim for punitive damages for wrongful death" and that the statute "was amended in 1887 ... by the striking of the word 'punitive'." The clearest rulings on availability come from federal trial courts. In Ammann v. Massey-Ferguson, Ltd., 933 F. Supp. 840 (D.S.D. 1996), the U.S. District Court for the District of South Dakota, citing Bethel v. Janis, 597 F. Supp. 56 (D.S.D. 1984), treated punitive damages as not recoverable in a wrongful death action but recoverable in the injured person's surviving claim: "A personal injury action survives the death of the injured party, SDCL 15-4-1, and is the type of action in which punitive damages are recoverable. SDCL 21-3-2." Under SDCL 15-4-1, "all causes of action shall survive and be brought, notwithstanding the death of the person entitled or liable to the same," and SDCL 21-5-2 provides that actions for wrongful death or personal injury "shall survive the death of the wrongdoer." Who may bring each claim and the deadlines are on the South Dakota wrongful death page.

Drunk driving cases

In Flockhart v. Wyant, the South Dakota Supreme Court upheld a punitive award against a driver who had a blood alcohol content of 0.30%, who the court said "apparently had five previous alcohol-related offenses," and who had been through alcohol treatment programs. The plaintiff argued that this record, with the warnings the driver had received about drinking and driving, "is just the type of conduct which justifies the imposition of punitive damages," and the court said: "We agree." The SDCL 21-1-4.1 hearing still applies to the claim. For crash claims generally, see South Dakota car accident law.

Does insurance pay punitive damages in South Dakota?

In Dairyland Insurance Co. v. Wyant, 474 N.W.2d 514 (S.D. 1991), a coverage case arising from the Flockhart crash, the South Dakota Supreme Court held that an auto policy promising to pay damages for bodily injury or property damage "because of a car accident" confined its coverage "to compensatory damages arising from car accidents" and did not cover the punitive award. The court did not decide whether South Dakota public policy bars insurance for punitive damages, saying that question "is best left for a case where the question is squarely presented."

Employer liability

In Dahl v. Sittner, the South Dakota Supreme Court adopted the Restatement complicity rule: "We believe the complicity rule to be the better approach, and adopt the rule of the Restatement as the standard as to when punitive damages may be awarded against a principal for acts of his or her agent." Under that rule, punitive damages may be awarded against a principal for an agent's act only if the principal or a managerial agent authorized the act and the manner of doing it, the agent was unfit and the principal or a managerial agent was reckless in employing or retaining the agent, the agent was employed in a managerial capacity and acting in the scope of employment, or the principal or a managerial agent ratified or approved the act.

Government defendants

SDCL 3-22-1, which establishes the public entity pool for liability, provides: "Punitive damages may not be recovered pursuant to this chapter." More broadly, "except insofar as a public entity participates in a risk sharing pool or insurance is purchased pursuant to § 21-32A-1, any public entity is immune from liability for damages whether the function in which it is involved is governmental or proprietary" (SDCL 21-32A-3).

South Dakota punitive damages at a glance

Recent changes

The core statutes are long-standing: SDCL 21-3-2 traces to the Civil Code of 1877 and shows no amendment since 1939, and SDCL 21-1-4.1 dates from 1986. The newest punitive damages provisions are claim-specific: the agricultural nuisance rule in SDCL 21-10-25.8 (SL 2023, ch 65) and the qualified utility rule in SDCL 49-49-6 (SL 2026, ch 189). A 2025 bill, HB 1086, would have added to SDCL 21-5-7 that "punitive damages are not available in a wrongful death action"; it failed in the House Judiciary Committee on February 5, 2025 and was deferred to the 41st legislative day, and SDCL 21-5-7 was not amended in 2025 or 2026.

Related pages

• Punitive damages laws by state
• South Dakota wrongful death law
• South Dakota medical malpractice law
• South Dakota defamation laws
• South Dakota car accident law

This article provides general legal information about South Dakota punitive damages law as of 2026-10-19. It is not legal advice. For advice about a specific situation, contact a lawyer licensed in South Dakota.

Last updated: 2026-10-19.

Frequently Asked Questions

Does South Dakota allow punitive damages?

Yes. SDCL 21-3-2 lets the jury award punitive damages in an action for breach of an obligation not arising from contract where the defendant has been guilty of oppression, fraud, or malice, actual or presumed. A breach of contract claim by itself does not fall within the statute.

Is there a cap on punitive damages in South Dakota?

There is no general cap. Some statutes for particular claims set their own limits, such as exemplary damages of up to twice the damages award in trade secrets cases (SDCL 37-29-3(b)) and punitive damages of up to $200 for bad-faith retention of a security deposit (SDCL 43-32-24). The medical malpractice limit in SDCL 21-3-11 applies to general damages and does not mention punitive damages.

What is the burden of proof for punitive damages in South Dakota?

There are two steps. Before discovery and before trial, the judge must find on clear and convincing evidence a reasonable basis to believe there was willful, wanton or malicious conduct (SDCL 21-1-4.1). At trial, the South Dakota Supreme Court declined to require a clear and convincing standard (Flockhart v. Wyant, 1991), so the jury applies a preponderance of the evidence.

Is a hearing required before seeking discovery on punitive damages in South Dakota?

Yes. Under SDCL 21-1-4.1, no discovery relating to punitive or exemplary damages may begin, and the claim may not go to the finder of fact, until the court holds a hearing and finds a reasonable basis to believe there was willful, wanton or malicious conduct.

Are punitive damages available in a South Dakota wrongful death case?

Federal district courts have said punitive damages are not recoverable in a South Dakota wrongful death action, which SDCL 21-5-7 limits to pecuniary injury, but are recoverable in the injured person's surviving personal injury claim (Ammann v. Massey-Ferguson, D.S.D. 1996). The South Dakota Supreme Court has noted that the word punitive was struck from the wrongful death statute in 1887 (Anderson v. Lale, 1974).

Does South Dakota take part of a punitive damages award?

No general statute does. South Dakota has no general split-recovery statute directing a share of a private plaintiff's punitive award to the state or a fund.

Are punitive damages available against the state in South Dakota?

Not through the state's public entity pool for liability: SDCL 3-22-1 provides that punitive damages may not be recovered under that chapter. Public entities are otherwise immune from liability for damages except to the extent of a risk sharing pool or purchased insurance (SDCL 21-32A-3).

Are punitive damages available in a South Dakota drunk driving case?

In Flockhart v. Wyant (1991), the South Dakota Supreme Court upheld a punitive award against a driver with a blood alcohol content of 0.30% and prior alcohol-related offenses. The SDCL 21-1-4.1 hearing applies before the claim may go to the jury.

Does insurance cover punitive damages in South Dakota?

In Dairyland Insurance Co. v. Wyant (1991), the South Dakota Supreme Court held that an auto policy covering damages because of a car accident was limited to compensatory damages and did not cover a punitive award. The court left open whether public policy bars insurance for punitive damages.

Are punitive damages available against an employer in South Dakota?

Only under the Restatement complicity rule adopted in Dahl v. Sittner (1991): the principal or a managerial agent authorized the doing and the manner of the act; the agent was unfit and the principal or a managerial agent was reckless in employing or retaining the agent; the agent was employed in a managerial capacity and acting in the scope of employment; or the principal or a managerial agent ratified or approved the act.