A dog bite victim in South Dakota can obtain compensation under the doctrines of scienter, negligence or intentional tort. The state has no dog bite statute and therefore is a “one bite state.”
Under South Dakota law a cause of action by someone injured by a domestic animal can arise under a theory of scienter (common law strict liability) or negligence, and a negligence case does not require proof that the dog was vicious. In Sybesma v. Sybesma (1995) 534 NW 2d 355, the Supreme Court considered whether a person who was trampled by a stock cow had to prove that the defendant knew that the animal was vicious. The court stated:
“Under South Dakota law a cause of action by someone injured by a domestic animal can arise under a theory of strict liability or negligence. Generally, under a theory of strict liability, the plaintiff is required to show that “[a] possessor of a domestic animal … knows or has reason to know [of the] dangerous propensities [of the animal which are] abnormal to its class.” Restatement (Second) Torts § 509. However, [the plaintiff] sued under a theory of negligence, claiming [the defendant] was negligent in keeping, harboring, and transporting the animal, in failing to adequately warn [plaintiff], and in failing to properly instruct [plaintiff]. Therefore, the theory of strict liability does not apply.”
The court also held that the defense of assumption of the risk is not applicable where the victim had no knowledge of the danger presented by the animal.