South Dakota § 49-49-6 - Limitations of liability and damages for qualified utilities--Applicability.

§ 49-49-6. Limitations of liability and damages for qualified utilities--Applicability.

A standard of strict liability may not be applied to a qualified utility in any cause of action alleging that the qualified utility caused wildfire-related damages. A qualified utility's facilities and activities may not be considered ultra-hazardous or abnormally dangerous.

A plaintiff's sole remedy against a qualified utility for damages and losses resulting from a wildfire is in this chapter.

Except as otherwise provided in this section, there is a rebuttable presumption in any civil action that a valid and current wildfire mitigation plan is a reasonable and prudent preparation for, and mitigation of, wildfire risk. A plaintiff may recover damages, as a result of a wildfire from a qualified utility with a valid and current wildfire mitigation plan only if the plaintiff proves one or both of the following by a preponderance of the evidence:

(1)    The qualified utility failed to substantially comply with an essential element of a valid and current wildfire mitigation plan, and that failure was the actual and proximate cause of the damages to the plaintiff. For purposes of this subdivision, a qualified utility is deemed to have substantially complied with its wildfire mitigation plan if the qualified utility attempted to comply with the plan but was denied or delayed access to a right-of-way after the qualified utility requested access to the right-of-way to perform vegetation management or fire mitigation work in accordance with the plan; or

(2)    The qualified utility acted with malice or criminal intent, and the qualified utility's malicious action or criminal intent was the actual and proximate cause of the damages to the plaintiff.

A civil action filed against a qualified utility for damages caused by wildfire may only be brought within four years after the date of the initial ignition of the wildfire.

A plaintiff in a civil action filed against a qualified utility for damages caused by wildfire may recover economic losses and property damages but only under the conditions of this chapter. The plaintiff may not recover noneconomic losses unless the plaintiff suffered death, visible bodily injury, smoke inhalation, or a medically verifiable bodily injury from a wildfire.

The plaintiff may not recover punitive damages unless it is proven by clear and convincing evidence that the qualified utility engaged in willful and wanton misconduct and the qualified utility's willful and wanton misconduct was the actual and proximate cause of damages to the plaintiff.

The amount of damages recoverable for damage to real property, or buildings and fixtures to real property, is the lesser of the cost to restore the property to the property's pre-wildfire condition or the difference between the fair market value of the property immediately before the wildfire and the fair market value of the property after the wildfire.

For personal property of all kinds, including livestock and growing crops, the measure of damages is either the full market value, if the personal property has been destroyed, or the reasonable expense of necessary repairs or treatment, plus loss of use, if the personal property has been damaged or injured.

Nothing in this section may be construed to limit any defenses that a qualified utility may be entitled to raise in a civil action for damages caused by wildfire.

The provisions of this section only apply to a qualified utility with a valid and current wildfire mitigation plan as of the date of the initial ignition of the wildfire for which damages are sought.

Source: SL 2026, ch 189, § 6.