State of South Dakota  

841T0679   HOUSE BILL   NO.  1213  

Introduced by:    Representatives Wick, Carson, Cronin, Hawley, Hoffman, Lucas, Lust, Moser, Novstrup (David), Perry, Rausch, Romkema, Tulson, Verchio, and Willadsen and Senators Gray, Hansen (Tom), Haverly, Heineman, Holien, Krebs, Nygaard, Olson (Russell), Peters, Putnam, Rave, and Schlekeway

        FOR AN ACT ENTITLED, An Act to revise certain provisions regarding liability for torts and product identification requirements.
    Section 1. That chapter 20-9 be amended by adding thereto a NEW SECTION to read as follows:
    Terms used in §§ 20-9-9 to 20-9-10.1, inclusive, mean:
            (1)    "Claimant," any person, including a class of persons, who brings an action for or on account of personal injury, death, or property damage caused by or resulting from the manufacture, construction, design, formula, preparation, assembly, testing, service, warning, instruction, marketing, packaging, or labeling of any product. If such an action is brought through or on behalf of an estate, the term includes the claimant's decedent. If such an action is brought through or on behalf of a minor, the term includes the claimant's parent or guardian;
            (2)    "Harm,":
            (a)    Damage to property other than the product itself;
            (b)    Personal physical injury, illness, or death;
            (c)    Mental anguish or emotional harm; or
            (d)    Any loss of consortium, services, or other loss deriving from any type of harm described in subsections (a), (b), or (c).
            (3)    "Manufacturer,":
            (a)    Any person engaged in a business to design, produce, make, fabricate, construct, or remanufacture any product;
            (b)    Any product seller not described in subsection (a) holding oneself out as a manufacturer to the user of the product; or
            (c)    Any product seller with respect to a given product to the extent that such seller designs, produces, makes, fabricates, constructs, or remanufactures the product before its sale;
            (4)    "Person," any individual, corporation, company, association, firm, partnership, society, joint stock company, or any other entity including any government entity or unincorporated association of persons;
            (5)    "Product," any object, substance, mixture, or raw material in a gaseous, liquid, or solid state, possessing intrinsic value which is capable of delivery either as an assembled whole or as a component part and is produced for introduction to trade or commerce. However, the term does not include human tissue, blood and blood products, or organs;
            (6)    "Product seller," a manufacturer, or a person who, in the course of business conducted for that purpose, sells, distributes, leases, installs, prepares, packages, labels, markets, repairs, maintains, or otherwise is involved in placing a product in

the stream of commerce; but such term does not include:

            (a)    A seller of real property, unless that person is engaged in the sale of manufactured housing or in the mass production of dwellings;
            (b)    A provider of professional services in any case in which the sale or use of a product is incidental to the transaction and the essence of the transaction is the furnishing of judgment, skill, or services; or
            (c)    Any person who:
            (i)    Acts in only a financial capacity with respect to the sale of the product;
            (ii)    Is not a manufacturer, wholesaler, distributor, or retailer; and
            (iii)    Leases a product, without having a reasonable opportunity to inspect and discover defect in the product, under a lease arrangement in which the selection, possession, maintenance, and operation of the product are controlled by a person other than the lessor.
    Section 2. That chapter 20-9 be amended by adding thereto a NEW SECTION to read as follows:
    In any civil action against a manufacturer for harm caused by a product, irrespective of any substantive theory underlying the claim, a manufacturer is not liable unless the claimant proves by a preponderance of the evidence that the defendant was the manufacturer of the actual product that was the cause of harm for which the claimant seeks to recover compensatory damages. Proof that a product seller designed, formulated, produced, constructed, created, assembled, or rebuilt the type of product in question is not proof that the product seller formulated, produced, constructed, created, assembled, or rebuilt the actual defective product at issue in the action. No product seller may be held liable based on market share, enterprise, or industry-wide liability in any action brought for or on account of harm caused by a product.