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CHAPTER 21-1

ACTIONS FOR DAMAGES GENERALLY

21-1-1      Right to damages for detriment from unlawful act or omission of another.
21-1-2      Nominal damages for breach of duty without detriment.
21-1-3      Damages to be reasonable.
21-1-4      Exemplary or penal damages only as provided--Interest on damages.
21-1-4.1      Discovery and trial of exemplary damage claims.
21-1-5      Damages for breach of obligation not to exceed gain from full performance--Exceptions.
21-1-6      Market value considered in estimating damage to property.
21-1-7      Market value considered in estimating damages for deprivation of possession of property.
21-1-8      Peculiar value of property to plaintiff considered in damages against defendant with notice or willful wrongdoer.
21-1-9      Value of instrument presumed equal to value of property represented.
21-1-10      Damages awarded for detriment after commencement of action.
21-1-11      Repealed.
21-1-12      Acceptance of principal as waiver of interest.
21-1-13      Repealed.
21-1-13.1      Interest on damages--Prejudgment interest--Retroactive application.
21-1-13.2      Application of interest statutes.
21-1-14      Liability of issuer of bad check for collection costs--Costs included in restitution award.
21-1-15      Definitions.
21-1-16      Residential construction defects--Notice and opportunity to remedy--Time for inspection and offer to repair or compensate.


     21-1-1.   Right to damages for detriment from unlawful act or omission of another. Every person who suffers detriment from the unlawful act or omission of another may recover from the person in fault a compensation therefor in money, which is called damages. Detriment is a loss or harm suffered in person or property.

Source: CivC 1877, §§ 1940, 1941; CL 1887, §§ 4574, 4575; RCivC 1903, §§ 2286, 2287; RC 1919, §§ 1959, 1960; SDC 1939 & Supp 1960, § 37.1701.


     21-1-2.   Nominal damages for breach of duty without detriment. When a breach of duty has caused no appreciable detriment to the party affected, he may yet recover nominal damages.

Source: CivC 1877, § 1986; CL 1887, § 4619; RCivC 1903, § 2331; RC 1919, § 2003; SDC 1939 & Supp 1960, § 37.1703.


     21-1-3.   Damages to be reasonable. Damages must in all cases be reasonable, and where an obligation of any kind appears to create a right to unconscionable and grossly oppressive damages, contrary to substantial justice, no more than reasonable damages can be recovered.

Source: CivC 1877, § 1985; CL 1887, § 4618; RCivC 1903, § 2330; RC 1919, § 2002; SDC 1939 & Supp 1960, § 37.1704.


     21-1-4.   Exemplary or penal damages only as provided--Interest on damages. The general remedy by damages does not include exemplary or penal damages nor interest on any damages unless expressly provided by statute.

Source: CivC 1877, § 1983; CL 1887, § 4616; RCivC 1903, § 2328; RC 1919, § 2000; SDC 1939 & Supp 1960, § 37.1705.


     21-1-4.1.   Discovery and trial of exemplary damage claims. 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.

Source: SL 1986, ch 161.


     21-1-5.   Damages for breach of obligation not to exceed gain from full performance--Exceptions. Notwithstanding the provisions of these statutes, no person can recover a greater amount in damages for the breach of an obligation than he could have gained by the full performance thereof on both sides, except in the cases specified in statutes providing exemplary damages or penal damages, and in statutes relating to damages for breach of promise to marry, for seduction, or wrongful injuries to animals.

Source: CivC 1877, § 1984; CL 1887, § 4617; RCivC 1903, § 2329; RC 1919, § 2001; SDC 1939 & Supp 1960, § 37.1706.


     21-1-6.   Market value considered in estimating damage to property. In estimating the damage to property, except in the cases prescribed in §§ 21-1-8 and 21-1-9, the value of such property to the owner is deemed to be its market value at the time and in the market nearest to the place where it was located at the time of the damage.

Source: CivC 1877, § 1979; CL 1887, § 4612; RCivC 1903, § 2324; RC 1919, § 1996; SDC 1939 & Supp 1960, § 37.1707.


     21-1-7.   Market value considered in estimating damages for deprivation of possession of property. In estimating damages except as provided by §§ 21-1-8 and 21-1-9 the value of property to an owner thereof deprived of its possession is deemed to be the price at which he might have bought an equivalent thing, in the market nearest to the place where the property ought to have been put into his possession and at such time after the breach of duty upon which his right to damages is founded as would suffice, with reasonable diligence, for him to make such a purchase.

Source: CivC 1877, § 1980; CL 1887, § 4613; RCivC 1903, § 2325; RC 1919, § 1997; SDC 1939 & Supp 1960, § 37.1708.


     21-1-8.   Peculiar value of property to plaintiff considered in damages against defendant with notice or willful wrongdoer. Where certain property has a peculiar value to a person recovering damages for a deprivation thereof, or injury thereto, that may be deemed to be its value against one who had notice thereof before incurring a liability to damages in respect thereof, or against a willful wrongdoer.

Source: CivC 1877, § 1981; CL 1887, § 4614; RCivC 1903, § 2326; RC 1919, § 1998; SDC 1939 & Supp 1960, § 37.1709.


     21-1-9.   Value of instrument presumed equal to value of property represented. For the purpose of estimating damages the value of an instrument in writing is presumed to be equal to that of the property to which it entitles its owner.

Source: CivC 1877, § 1982; CL 1887, § 4615; RCivC 1903, § 2327; RC 1919, § 1999; SDC 1939 & Supp 1960, § 37.1710.


     21-1-10.   Damages awarded for detriment after commencement of action. Damages may be awarded in a judicial proceeding for detriment resulting after the commencement thereof, or certain to result in the future.

Source: CivC 1877, § 1942; CL 1887, § 4576; RCivC 1903, § 2288; RC 1919, § 1961; SDC 1939 & Supp 1960, § 37.1702.


     21-1-11.   Repealed by SL 2014, ch 108, § 1.


     21-1-12.   Acceptance of principal as waiver of interest. Accepting payment of the whole principal, as such, waives all claim to interest.

Source: CivC 1877, § 1945; CL 1887, § 4579; RCivC 1903, § 2291; RC 1919, § 1964; SDC 1939 & Supp 1960, § 37.1713.


     21-1-13.   Repealed by SL 2014, ch 108, § 2.


     21-1-13.1.   Interest on damages--Prejudgment interest--Retroactive application. Any person who is entitled to recover damages, whether in the principal action or by counterclaim, cross claim, or third-party claim, is entitled to recover interest thereon from the day that the loss or damage occurred, except during such time as the debtor is prevented by law, or by act of the creditor, from paying the debt. Prejudgment interest is not recoverable on future damages, punitive damages, or intangible damages such as pain and suffering, emotional distress, loss of consortium, injury to credit, reputation or financial standing, loss of enjoyment of life, or loss of society and companionship. If there is a question of fact as to when the loss or damage occurred, prejudgment interest shall commence on the date specified in the verdict or decision and shall run to, and include, the date of the verdict or, if there is no verdict, the date the judgment is entered. If necessary, special interrogatories shall be submitted to the jury. Prejudgment interest on damages arising from a contract shall be at the contract rate, if so provided in the contract; otherwise, if prejudgment interest is awarded, it shall be at the Category B rate of interest specified in § 54-3-16. Prejudgment interest on damages arising from inverse condemnation actions shall be at the Category A rate of interest as specified by § 54-3-16 on the day judgment is entered. This section shall apply retroactively to the day the loss or damage occurred in any pending action for inverse condemnation. The court shall compute and award the interest provided in this section and shall include such interest in the judgment in the same manner as it taxes costs.

Source: SL 1990, ch 156, § 1; SL 2003, ch 242, § 2.


     21-1-13.2.   Application of interest statutes. The provisions of § 21-1-13.1 apply to any suit commenced on or after July 1, 1990. The provisions of §§ 21-1-11 and 21-1-13 apply to any suit commenced before July 1, 1990.

Source: SL 1990, ch 156, § 2.


     21-1-14.   Liability of issuer of bad check for collection costs--Costs included in restitution award. Any person who violates § 22-30A-24 or 22-30A-25 is liable, pursuant to § 57A-3-420, for damages for the reasonable costs and expenses of collecting the dishonored check. Such reasonable costs and expenses including any necessary service or handling charge paid by any merchant, shall be included in any award of restitution made by the court in any action for a violation of § 22-30A-24 or 22-30A-25.

Source: SL 1983, ch 368, § 3; SL 1986, ch 171, § 1.


     21-1-15.   Definitions. Terms used in this section and § 21-1-16 mean:
             (1)      "Action," any civil lawsuit or action in contract or tort for damage or indemnity brought against a construction professional to assert a claim for damage or the loss of use of real or personal property caused by a construction defect. The term does not include a counterclaim, cross-claim, or civil action in tort alleging personal injury or wrongful death resulting from a construction defect;
             (2)      "Construction defect," a deficiency in or arising out of the supervision, construction, or remodeling of a residence that results from any of the following:
             (a)      Defective materials, products, or components used in the construction or remodeling of a residence;
             (b)      Violation of the applicable building, plumbing, or electrical codes in effect at the time of the construction or remodeling of a residence; or
             (c)      Failure to construct or remodel a residence in accordance with contract specifications or accepted trade standards;
             (3)      "Construction professional," a builder, contractor, or subcontractor performing or furnishing the supervision of the construction or remodeling of any residence, whether operating as a sole proprietor, partnership, corporation, or other business entity;
             (4)      "Home owner," any person, company, firm, partnership, corporation, or association who contracts with a construction professional for the remodeling, construction, or construction and sale of a residence. The term includes a subsequent purchaser of a residence from any home owner;
             (5)      "Residence," a single-family house or a unit in a multi-unit residential structure in which title to each individual unit is transferred to the owner under a condominium or cooperative system;
             (6)      "Serve" or "service," personal delivery or delivery by certified mail to the last known address of the addressee.

Source: SL 2007, ch 137, § 1.


     21-1-16.   Residential construction defects--Notice and opportunity to remedy--Time for inspection and offer to repair or compensate. Prior to commencing an action against the construction professional for a construction defect, a home owner shall:
             (1)      Serve on the construction professional a written notice describing the alleged construction defect; and
             (2)      Allow the construction professional, within thirty days after service of the notice, to inspect the alleged construction defect and serve on the home owner a written offer to repair the construction defect or compensate the owner by monetary payment.
     The home owner may not commence an action against the construction professional for a construction defect until thirty days after the notice is served on the construction professional or until the construction professional refuses to remedy the alleged construction defect, whichever occurs first. Upon service of the notice, the statute of limitations set forth in chapter 15-2A is suspended for the thirty-day period or until the refusal, whichever occurs first. If the home owner commences an action against the construction professional without complying with the requirements of this section, the action shall be stayed until the home owner has complied with such requirements. No home owner is required to serve another written notice for any additional defects discovered after the home owner has served an initial written notice of a construction defect pursuant to this section. The provisions of this section do not apply to the initiation of a counterclaim or cross-claim in any action that is already properly commenced.

Source: SL 2007, ch 137, § 2.


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