February 9, 2015

Responsibility and Negligence

HB 1103 – to revise comparative negligence.  South Dakota law currently says people are not allowed to sue other people if they are more than “slightly” responsible for the damage to themselves.  As an example, someone hurt in a car accident might not be able to sue the owner of the parked car she hit when it is discovered she had her head under the dashboard looking for a chicken nugget that had fallen off of her lap.

The members of the Trial Lawyers Association (joined by several retired judges) think the fact that the term “slightly” has no clear definition creates too many unjust outcomes and constitutes bad law.  Their proposed solution is HB 1103 which would create a standard that says you can sue unless you are a “majority” responsible.

Lawyers representing insurance companies and business groups don’t find the current law flawed.  The basic situation is that every jury is asked whether or not someone should be allowed to seek damages from other people or whether they were responsible enough to be blocked from suing.  In spite of some examples where there seems to be severe injustice, the system seems to have worked well and the advocates of tort reform are united that HB 1103 is not needed.

The Chamber opposes HB 1103.

If the lack of a definition for the concept of “slight” is creating a systemic injustice, the Chamber firmly believes the Supreme Court would find a way to express that concern either through ruling on appeals or via the Chief Justice and his annual “State of the Judiciary” address before the legislature.

To make this issue murkier (the last thing it needs), there is disagreement about whether this bill will increase litigation.  Proponents say there are many lawsuits filed by people because insurance companies won’t settle rather obvious claims due to the fact that they want to test the definition of “slight”.  If there was a clearer standard, they would pay claims more readily.  

The business community sees this as increasing the margin and chance for a large settlement which will provide an incentive to people to file more suits.  There’s a hideous choice – more payouts or more lawsuits.  A bit like choosing between getting hit in the face with a hammer or rammed in the stomach with a post hole digger.   

The Chamber joined the opposition to HB 1103.  The bill was approved on a vote of 10-3 and sent to a vote before the full House of Representatives.   To quote the famous head coach of the Green Bay Packers, “We’ve never been beat, but we have run out of time on occasion.”

UPDATE:  HB 1103 passed the House today by a significant margin.  Next issue of Capitol-ism will  include the vote.

SB 59 – State Collection Agency.  The Governor’s office is still trying to find a way to structure a better organized effort for collecting debt owed to the State of South Dakota.  The original version of SB 59 caused a significant backlash so the Governor’s team went back to the drawing board.  It must be said that the second version was much less objectionable than the first, but that doesn’t mean it was supportable. 

At the last gathering between those drafting the bill and the business community, there was a new draft that significantly reduced the tools being sought by the state.  Most significantly, the state had dropped the notion of withholding someone’s professional license or being able to license vehicles.  What remains is withholding hunting licenses and any payout the state might be making to those who have debts outstanding.  Even the toughest government critic has to admit that paying out lottery winnings to someone who owes the state is just plain goofy.

There was a discussion about reducing the definition of the term “employee” to take out contractors/sub-contractors.  While this offer is appreciated by the Chamber, it would not be enough of a change to bring this organization around to supporting the bill. 

There may be a good alternative – HB 1228 is enabling legislation that allows the state to set up a collection office and use the rule making process to structure what powers the office might have.  That would allow the state to centralize its collection efforts and not develop remedies available to the private sector.  This may be a perfect example of less being more . . . less bill, more of chance of passage.

CORRECTION – In an attempt at finding a lighter side of this issue, which one must admit hovers just above “dry”, Capitol-ism indicated that the state didn’t do well because they had never asked any employee about their experience as a debt collector.  Turns out that statement wasn’t just a little bit wrong, it was totally wrong.  A staff person from SDSU found me in the House of Representatives and said he had an entire cadre of people working for him that all had collections experience and did a marvelous job. Capitol-ism regrets the error and wonders if he should take his crew to the Department of Revenue.

SB 77 - allow nursing mothers to breastfeed in certain locations.  First, we don’t write the titles for the bills.  Second, this is a perfect case where a small handful of businesses act in a manner that takes a potentially delicate situation, obliterates any shred of decorum and ends up creating a law that impacts every business in the state.

In this day and age of modern medicine encouraging mothers to nurse their infants and clear evidence that this is good for the health of the child, it would seem logical that business places accommodate that practice.  There have been enough nursing mothers that have been bluntly asked to leave a business that SB 77 is sure to pass this session.  Last week SB 77 passed the Senate on a vote of 33 – 0.  The business community is not opposing this bill. 

Here is the content of SB 77:

FOR AN ACT ENTITLED, An Act to allow nursing mothers to breastfeed in certain locations.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
    Section 1. A mother may breastfeed her child in any location, public or private, where the mother and child are otherwise authorized to be present as long as the mother is in compliance with all other state and municipal laws. However, no municipality may outright ban breast feeding in public places.

SB 135 – authorize municipalities to impose an additional sales and use tax for a limited period of time for a specified use.  Paying for needed facilities and programs is a never ending challenge for all levels of government.  One of the key principles of the legislature and state government is an expressed fondness for local control.  In reality, the definition of “local control” tends to follow in direct correlation with how much the state/legislature agrees with what is being done with that control.

It’s like parents letting their children learn by making their own decisions.  The power lasts as long the child makes the right decisions.  SB 135 would give local governments the ability to add one more penny to local sales/use tax but there are limits on the 3^rd penny.  It would be for a set period of time and for a stated purpose AND it would automatically be referred to a public vote.

SB 135 passed the Senate State Affairs Committee last week by a vote of 6-2.  It is up for a vote of the entire Senate today (but may be delayed).  The South Dakota Chamber of Commerce and Industry is neutral on SB 135 but thought members should know about it.

Thank you for your support of the organization.  Register today for the February 19^th Annual Meeting and Business Day at the Legislature.   Click here to register.