If an injury for which compensation is payable under this title has been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee may, at the employee's option, either claim compensation or proceed at law against such other person to recover damages or proceed against both the employer and such other person. However, in the event the injured employee recovers any like damages from such other person, the recovered damages shall be an offset against any workers' compensation which the employee would otherwise have been entitled to receive.
S.D. Codified Laws § 62-4-38
Right of action when third person is liable--Election by employee--Offset of recovered damages
Applied in 17 court decisions — leading case Wilson v. Hasvold (1972)
Most recently applied in Estate of Jones (February 2022)
Source: SDC 1939, § 64.0301; SL 1964, ch 224; SL 1994, ch 398.
How often courts cite this section
Court decisions citing this, by year. The dip in the last several years is a data-coverage gap, not a real trend — our corpus holds fewer opinions from the most recent years, so recent citations are undercounted.
Official source: South Dakota Legislature. Reproduced from public-domain South Dakota statutes; confirm against the official source for the current text. Not legal advice.