State of South Dakota
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EIGHTY-SEVENTH SESSION
LEGISLATIVE ASSEMBLY, 2012
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841T0679
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HOUSE BILL NO. 1213
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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
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FOR AN ACT ENTITLED, An Act to revise certain provisions regarding liability for torts and
product identification requirements.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
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.