The State of the Art Defense: How Manufacturers Evade Liability in South Dakota

Receiving a formal denial letter from a manufacturer's legal department after a devastating farm machinery entanglement near Brookings, a commercial truck tire failure outside Rapid City, or an industrial equipment fire in Sioux Falls is infuriating-especially when the company admits that its newer models now include the exact safety guard or automatic shutoff switch that would have prevented your injury. Across South Dakota, corporate defense lawyers routinely shield manufacturers by arguing that because the machine met basic industry customs the year it rolled off the assembly line, the company owes you nothing today. Understanding the state of the art defense: how manufacturers evade liability in South Dakota is critical if your claim was denied or if you are preparing to challenge a manufacturer in court.

In 1995, the South Dakota Legislature enacted a specialized evidentiary statute-codified at S.D. Codified Laws § 20-9-10.1-that requires judges and juries in both negligence and strict product liability trials to evaluate whether a product's design, testing, or warning was defective solely by considering the generally recognized and prevailing state of the art existing at the time the specific product was first sold to any person not engaged in the business of selling such product. However, corporate insurers frequently twist this statute to mean that if none of their competitors bothered to install a cheap safety feature back then, the entire industry gets a free pass. By partnering with an experienced South Dakota product liability attorney from our directory, you can expose the critical legal difference between lazy industry custom and true state-of-the-art technological capability.

How Manufacturers Use S.D. Codified Laws § 20-9-10.1 to Evade Liability

Under S.D. Codified Laws § 20-9-10.1, in any product liability action based upon negligence or strict liability, whether the design, manufacture, inspection, testing, packaging, warning, or instructions for use of a product complied with the generally recognized and prevailing state of the art existing at the time the specific product was first sold to any person not engaged in the business of selling such product may be considered in determining whether the product was in a defective condition or unreasonably dangerous. Defense attorneys rely on this statute-alongside S.D. Codified Laws § 19-19-407 (South Dakota Rule of Evidence 407 barring evidence of subsequent remedial measures to prove negligence or culpable conduct)-to launch a two-pronged courtroom strategy:

• Freezing the Technological Timeline at the Original Retail Sale: If you were injured by a grain auger, bi-fold hangar door, or industrial press originally sold 12 years ago, the manufacturer asks the trial judge to exclude any mention of modern sensors, laser guards, or updated safety decals developed after that initial sale date, as illustrated in Wangsness v. Builders Cashway, Inc., 779 N.W.2d 136 (SD Supreme Court 2010).
• Confusing Voluntary Industry Standards with Maximum Technological Feasibility: Defense experts frequently wave compliance certificates from trade associations (such as ANSI, ASTM, SAE, or ASABE) before the jury, claiming that because a committee of industry executives approved a minimum standard at the time of sale, the product automatically satisfied S.D. Codified Laws § 20-9-10.1.

Industry Custom vs. Consumer Safety

One of the most powerful ways a skilled South Dakota trial lawyer dismantles a claim denial is by attacking the defense's attempt to equate industry custom with state of the art. Under American and South Dakota tort law, what an industry customarily chose to do to save money is not the same thing as what was scientifically and technologically feasible at the time of sale.

Notice the exact wording of S.D. Codified Laws § 20-9-10.1: the statute states that compliance with the prevailing state of the art may be considered by the jury-it does not create an absolute statutory immunity or an irrebuttable presumption of non-defectiveness! Furthermore, in First Premier Bank v. Kolcraft Enterprises, Inc., 686 N.W.2d 430 (SD Supreme Court 2004), the South Dakota Supreme Court confirmed that under South Dakota's disjunctive consumer-expectation and risk-utility tests, a product is in a defective condition unreasonably dangerous to the user if it could have been designed to prevent a foreseeable harm without significantly hindering its function or increasing its price. Similarly, in Zacher v. Budd Co., 396 N.W.2d 122 (SD Supreme Court 1986), the Court recognized that compliance with minimum industry practices does not immunize a manufacturer when a product remains unreasonably dangerous or lacks adequate warnings of lethal hazards.

Overcoming the State of the Art Defense

To defeat a manufacturer's motion for summary judgment or win at trial in the Second Judicial Circuit Court, Minnehaha County, Sioux Falls or the Seventh Judicial Circuit Court, Pennington County, Rapid City, your legal and engineering team must prove under Burley v. Kytec Innovative Sports Equipment, Inc., 737 N.W.2d 397 (SD Supreme Court 2007) that a safer alternative design was technologically and economically feasible in the exact year the product was first sold. Proven strategies include:

• Uncovering Historical Patents and Competitor Designs Pre-Dating the Sale: If you were injured by a machine sold in 2014, your attorney's engineering experts search U.S. Patent and Trademark Office archives, European CE safety standards, and military specifications from 2013 and earlier. Showing the jury that a patent for the exact $15 interlock switch or flame retardant existed years before your product was sold destroys the manufacturer's state-of-the-art excuse.
• Using Subsequent Design Changes to Prove Technological Feasibility (Rule 407 Exception): While S.D. Codified Laws § 19-19-407 excludes subsequent design changes to prove negligence, the second sentence of Rule 407 explicitly permits the court to admit evidence of subsequent remedial measures when offered for another purpose-specifically, proving the feasibility of precautionary measures, if controverted, or impeachment. The moment a manufacturer's expert claims a safety guard was impossible or impractical, your lawyer can use that exception to introduce the manufacturer's own updated design!
• Subpoenaing Internal Cost-Benefit Rejection Memos: Often, discovery reveals that the manufacturer's own engineers proposed the safer design prior to the date of sale, only for corporate executives to reject the upgrade to save $4.50 per unit.

When New Safety Technology Makes Old Products Obsolete

What happens when a durable piece of agricultural, construction, or industrial equipment sold in South Dakota remains in daily service for 15 or 20 years, and the manufacturer later discovers a deadly design flaw and develops a retrofit safety kit? Manufacturers routinely argue under S.D. Codified Laws § 20-9-10.1 and Wangsness v. Builders Cashway, Inc., 779 N.W.2d 136 (SD Supreme Court 2010) that their legal duty ended on the day the machine was first sold.

However, federal precedent originating right out of South Dakota provides a vital pathway around this defense: the post-sale duty to warn. In the landmark Eighth Circuit decision applying South Dakota product liability law, Novak v. Navistar International Transportation Corp., 46 F.3d 844 (8th Cir. 1995), a South Dakota farmer was severely injured by an older tractor whose manufacturer had subsequently learned of a dangerous starter mechanism hazard and begun manufacturing component parts that eliminated the problem. The Eighth Circuit held that under South Dakota law, when a manufacturer acquires knowledge of a life-threatening defect in products already on the market and develops a corrective part, the court should instruct the jury on the manufacturer's continuing duty to warn foreseeable users of the danger and the availability of the safety upgrade. Additionally, if the manufacturer or a servicer refurbished, rebuilt, or supplied replacement parts for the machine years after the original sale, a brand-new timeline of liability can attach outside the original sale date.

Step-by-Step Process in South Dakota

If an insurance adjuster or corporate risk manager denied your product injury claim in Sioux Falls, Rapid City, Aberdeen, Brookings, or Yankton by citing the age of the product or the state-of-the-art defense, follow these steps to challenge the denial.

Step 1: Gathering Documents

Locate the physical serial number plate, model number, and date-of-manufacture stamp on the product, along with any maintenance logs, owner's manuals, and the written claim denial letter from the manufacturer's insurer. Preserving the exact serial number is essential because it allows your legal team to trace the exact date the specific unit was first sold to an end user under S.D. Codified Laws § 20-9-10.1.

Step 2: Pinpointing the Date of First Retail Sale and Patent History

Unlike states that impose a rigid 10-year or 12-year product liability statute of repose that automatically bars lawsuits involving older machinery, South Dakota does not currently enforce a blanket statute of repose barring claims on older products (its former 6-year repose statute was repealed in 1985). Under S.D. Codified Laws § 15-2-12.2, your 3-year clock runs from the date of injury or discovery. Your attorney's engineering team will research all patents, military specs, and academic safety literature published prior to the unit's original sale date.

Step 3: Retaining a Rule 702 Expert to Build a Feasible Alternative Design

To satisfy the strict evidentiary standards of S.D. Codified Laws § 19-19-702 and Burley v. Kytec Innovative Sports Equipment, Inc., 737 N.W.2d 397 (SD Supreme Court 2007), your product liability lawyer will retain a mechanical or safety engineer to construct and test the safer alternative design using only materials and technology that were commercially available on the date your product was originally sold.

Step 4: Filing the Complaint in South Dakota Circuit or Federal Court

Your attorney will file a formal civil complaint pleading strict liability design defect, strict liability failure to warn, negligence, and post-sale failure to warn under Novak v. Navistar International Transportation Corp., 46 F.3d 844 (8th Cir. 1995). State court actions are filed in the Second Judicial Circuit Court, Minnehaha County, Sioux Falls, the Seventh Judicial Circuit Court, Pennington County, Rapid City, the Fifth Judicial Circuit Court, Brown County, Aberdeen, or the Fourth Judicial Circuit Court, Lawrence County, Deadwood with Form UJS-232, South Dakota, Unified Judicial System, Case Filing Statement, while federal diversity actions are filed in the U.S. District Court for the District of South Dakota, Southern Division, Sioux Falls or the U.S. District Court for the District of South Dakota, Western Division, Rapid City with Form JS-44, FED, U.S. District Court, Civil Cover Sheet.

Step 5: Discovering Pre-Sale Testing Failures and Retrofit Programs

During discovery, your lawyer demands the manufacturer's historical engineering files, warranty claim databases, Consumer Product Safety Commission (15 U.S.C. § 2064) correspondence, and records of any field retrofit kits developed for that product line. If the defense claims a safety feature was technologically impossible at the time of sale, your lawyer moves under S.D. Codified Laws § 19-19-407 to admit evidence of subsequent safety upgrades to prove feasibility.

Step 6: Securing Proper Risk-Utility Jury Instructions at Trial

Before trial, your attorney submits jury instructions modeled on First Premier Bank v. Kolcraft Enterprises, Inc., 686 N.W.2d 430 (SD Supreme Court 2004) ensuring the jury is instructed in the disjunctive on both consumer expectations and risk-utility balancing-clarifying that S.D. Codified Laws § 20-9-10.1 is merely one factor to consider and does not excuse a manufacturer that failed to adopt an economical, life-saving design.

How Much Does it Cost in South Dakota?

Challenging a manufacturer's state-of-the-art defense requires sophisticated engineering and archival research, all of which is funded upfront by your South Dakota product liability firm:

• Upfront Legal Retainer: $0. Cases are handled on a 33.3% to 40% contingency fee basis under S.D. Codified Laws § 16-18-Appx. Rule 1.5, meaning the firm only gets paid if it wins compensation for you.
• Historical Patent & Engineering Feasibility Analysis: Retaining specialized engineers to research historical state-of-the-art technology and build a period-accurate prototype typically costs $20,000 to $65,000, advanced 100% by the law firm under S.D. Codified Laws § 16-18-Appx. Rule 1.8(e).
• Corporate Design Engineer Depositions: Deposing the manufacturer's current and retired design engineers and ANSI committee representatives typically costs $5,000 to $15,000 in advanced transcript and travel expenses.
• Court Filing Fees: $72 in a South Dakota Circuit Court ($25 base fee under S.D. Codified Laws § 16-2-29(3)(a), $40 automation fee under S.D. Codified Laws § 16-2-39, and $7 law library fee under S.D. Codified Laws § 14-6-1) or $405 in the U.S. District Court for the District of South Dakota.

How Long Does the Process Take?

Litigating a disputed state-of-the-art defense in South Dakota follows these key milestones:

• South Dakota Statute of Limitations: Under S.D. Codified Laws § 15-2-12.2, you must file your lawsuit within 3 years of the date of injury or reasonable discovery-regardless of whether the product itself was manufactured 2 years ago or 25 years ago.
• Pre-Suit Engineering & Historical Standards Audit: Typically takes 3 to 6 months to inspect the machine, trace its original sale date, and verify historical engineering feasibility.
• Corporate Discovery & Daubert Motions: Compelling historical engineering records and litigating expert admissibility under S.D. Codified Laws § 19-19-702 generally takes 9 to 15 months after filing suit.
• Mediation or Jury Trial: Most contested state-of-the-art product liability lawsuits in South Dakota reach a settlement or trial verdict within 16 to 26 months.

Frequently Asked Questions (FAQ)