Professional Negligence Law Reporter

A federal district court held that noneconomic damages were not available to a plaintiff suing for legal negligence under South Dakota law.

Frederick Zoss sued the law firm of Mumford & Protsch, LLP, and attorney Greg Protsch, alleging breach of fiduciary duty and legal negligence related to the handling of Zoss’s cattle sale. The defense moved for partial summary judgment, asserting that South Dakota law did not allow for noneconomic damages in attorney negligence cases.

Granting the motion, the court noted that South Dakota allows recovery of emotional distress damages only when they are inflicted intentionally and there is actual physical injury. Moreover, the court said the general rule is that noneconomic damages are not foreseeable in a legal negligence action and are therefore not recoverable. In jurisdictions that follow this rule, a plaintiff ordinarily must prove either intentional or negligent infliction of emotional distress to recover noneconomic damages, the court added.

The court found that although South Dakota may adopt a rule permitting noneconomic damages in attorney negligence suits where an attorney’s conduct has been egregious, no such case has been presented to the state’s high court and the court has not yet adopted such a rule. Additionally, even if the state court were to adopt a rule allowing for noneconomic damages, the facts here would not support a claim of egregious conduct, said the court.

Accordingly, the court granted the defendants’ motion on this issue.

Citation: Zoss v. Protsch, 2023 WL 114369 (D.S.D. Jan. 5, 2023).