Per Diem Pain-and-Suffering Arguments Are Permissible—Subject to Trial Court Discretion: Weiland v. Bumann (2025 S.D. 9)

Introduction

In Weiland v. Bumann, 2025 S.D. 9, the Supreme Court of South Dakota affirmed a jury verdict arising from a highway collision between a private motorist, Dr. Todd Weiland, and an on-duty South Dakota Highway Patrol (SDHP) trooper, Patrick Bumann. Beyond the case-specific dispositions, the Court adopted an important statewide rule: per diem (unit-of-time) arguments for non-economic damages are not categorically barred in South Dakota; their use is entrusted to the sound discretion of the trial court, and they must be supported by the evidence.

The Court also resolved a host of trial rulings: it upheld the denial of summary judgment and judgment as a matter of law on contributory negligence and failure to mitigate damages; it affirmed the exclusion or narrowing of certain evidentiary items (a sheriff’s accident report, portions of SDHP investigative materials, and alleged statements by a claims adjuster) for lack of prejudice, risk of jury confusion, or deficient preservation; and it sustained the trial court’s refusal to issue an “insurance” instruction under the circumstances. The Court did not reach two issues raised by notice of review—whether a recklessness standard should govern an on-duty trooper’s conduct and whether some future damages should have been removed from the jury—because the challenged rulings on appeal were affirmed.

The decision is most notable for its treatment of per diem arguments, which had not previously been squarely authorized or prohibited in South Dakota appellate law. The Court aligned South Dakota with the jurisdictions that allow such advocacy in the discretion of trial judges, while advising that courts may, when appropriate, instruct juries that counsel’s mathematical suggestions are not evidence.

Summary of the Opinion

Negligence (mootness): The plaintiff’s complaint that the trial court failed to decide negligence as a matter of law was moot; the jury found the defendant negligent and the appellate court could not grant effectual relief on that question.
Contributory negligence: There was sufficient evidence to submit contributory negligence to the jury, principally supported by event data recorder (EDR) speed data showing the plaintiff exceeded the posted limit just seconds before impact and by physical evidence suggesting the collision was nearly avoided. No expert testimony was categorically required to establish causation for speed-related contributory negligence in these circumstances.
Failure to mitigate damages: The jury could consider mitigation in light of evidence that plaintiff’s adherence to prescribed therapy was poor and he undertook strenuous activities that could exacerbate symptoms.
Evidentiary rulings:
- Sheriff’s accident report: Even assuming admissibility, exclusion was not prejudicial because its substance reached the jury through testimony.
- SDHP internal investigation and policies: Redactions and limitations were within the court’s discretion to prevent confusion and avoid usurping the jury’s role; “preventable” is not synonymous with negligence.
- Claims adjuster’s alleged statements: Exclusion affirmed for lack of an offer of proof and lack of prejudice.
Insurance instruction: No abuse of discretion in refusing a cautionary insurance instruction where the topic arose only in a brief, isolated bailiff interaction with a single juror and was promptly deflected.
Per diem argument: New rule announced—per diem (unit-of-time) arguments for pain and suffering are not per se barred in South Dakota; they are permissible if supported by evidence and subject to trial court control. Although the trial court mistakenly believed such arguments were categorically prohibited, the ruling was ultimately affirmed because the record in this case did not support the proposed per diem theory for decades of future pain.
Notice of review issues (recklessness standard for trooper and future damages): Not reached.

Factual and Procedural Background

The collision occurred on November 10, 2017, on Highway 42 in Minnehaha County. Trooper Bumann, westbound in a no-passing zone and trailing two large vehicles with trailers, activated his emergency lights to pursue an eastbound vehicle traveling above the speed limit with expired plates. He moved onto the north shoulder to gain a view and began a U-turn. About halfway through the maneuver, he saw Dr. Weiland approaching eastbound in the right lane; the trooper attempted to accelerate into the south ditch to avoid impact. The front-right of Weiland’s vehicle scraped the right-rear of the trooper’s patrol car. There were no rollovers, spins, or airbag deployments, and the parties reported no immediate injuries.

The Minnehaha County Sheriff’s Department generated an accident report crediting “failure to yield” on the trooper’s part and noting Weiland was at the speed limit. SDHP conducted an internal inquiry that recommended a reprimand for policy violations. At trial, the trooper acknowledged he could have waited longer to ensure a clear path and that he told his supervisor the crash was his fault. The defense’s engineering expert characterized the impact as a low-speed “scraping” event. EDR data showed Weiland’s vehicle traveling about 69 mph five seconds before impact in a 65 mph zone.

On damages, Weiland alleged ongoing neck and back symptoms, pursued various conservative and interventional treatments, and claimed impacts on work and leisure. Treaters noted both symptomatic complaints and continued engagement in physically demanding activities. A defense IME physician opined that the injuries were sprain/strain expected to resolve in 6–12 weeks, and that current complaints were more consistent with preexisting degenerative changes.

The jury found the trooper negligent and found Weiland contributorily negligent, but only slightly so, thus permitting recovery subject to proportional reduction. The jury awarded $17,500 in non-economic damages and $1,161.50 in past medical expenses, and nothing for future medicals. The circuit court entered judgment for $21,122.25 including costs. Both parties appealed; the Supreme Court affirmed across the board and declined to reach the trooper’s notice-of-review issues.

Analysis

Precedents Cited and Their Influence

Hewitt v. Felderman, 2013 S.D. 91, 841 N.W.2d 258: Provided the mootness framework. Once the jury found the defendant negligent, any alleged error in denying summary judgment/JMOL on negligence became academic; the appellate court cannot afford effectual relief on an issue already resolved in the appellant’s favor.
STONE v. VON EYE FARMS, 2007 S.D. 115, 741 N.W.2d 767; KLUTMAN v. SIOUX FALLS STORM, 2009 S.D. 55, 769 N.W.2d 440: Reinforced the strong presumption that negligence and contributory negligence are jury questions except in the rare case where only one conclusion is possible.
JOHNSON v. ARMFIELD, 2003 S.D. 134, 672 N.W.2d 478: Distinguished. There, contributory negligence based on speed was speculative; here, EDR and admissions provided concrete evidence of speeding moments before impact, making submission to the jury proper.
Matter of Drainage Permit 11-81, 2019 S.D. 3, 922 N.W.2d 263: Informs the line between matters within lay competence and those requiring expert testimony; the Court held this causation question (speed’s contribution to a near-avoided collision) was within common experience given the record.
Wasland v. Porter Auto & Marine, 1999 S.D. 134, 600 N.W.2d 904; Ducheneaux v. Miller, 488 N.W.2d 902 (S.D. 1992); Mash v. Cutler, 488 N.W.2d 642 (S.D. 1992): Set the mitigation-of-damages principles and burden of proof borne by the defendant.
Sedlacek v. Prussman Contracting, Inc., 2020 S.D. 18, 941 N.W.2d 819; Weber v. Weber, 2023 S.D. 64, 999 N.W.2d 230; State v. Carter, 2023 S.D. 67, 1 N.W.3d 674: Provided the abuse-of-discretion standard for evidentiary rulings and the prejudice benchmark—there must be a reasonable probability the outcome would have been different but for the error.
BECK v. WESSEL, 90 S.D. 107, 237 N.W.2d 905 (1976): Approved a trial court’s prompt neutral response to a jury’s insurance question to avoid inflaming the issue; supported the trial court’s management of a juror’s offhand “who pays?” inquiry here.
REINDL v. OPITZ, 88 S.D. 223, 217 N.W.2d 873 (1974): Previously did not reach the propriety of per diem arguments; Weiland fills that gap by endorsing a discretionary approach.
Multi-jurisdictional authorities on per diem advocacy: The Court canvassed split authority and aligned South Dakota with those allowing per diem arguments in the trial court’s discretion, citing sources such as Vanskike v. ACF Industries (8th Cir.), WALDRON v. HARDWICK (7th Cir.), Debus (Vt.), Richardson (Neb.), Southard (Ky.), Pearson’s A.L.R. annotation, and commentary in American Law of Torts.
Morrison v. Min. Palace Ltd. P’ship, 1999 S.D. 145, 603 N.W.2d 193: Clarified that internal policies do not define the legal standard of care; relevant to the Court’s approval of redacting policy-violation conclusions to prevent confusion of negligence standards.

Legal Reasoning

1) Mootness of negligence-as-a-matter-of-law. Because the jury’s special verdict found Trooper Bumann negligent, the issue whether the trial court should have removed negligence from the jury was moot under Hewitt; the Court cannot provide effectual relief on a question already resolved for the appellant.

2) Contributory negligence. Submission was proper because reasonable jurors could find that Weiland’s speed and lane position contributed to the crash that was “nearly avoided” (front-right scrape of about 15 inches, occurring near the right shoulder). EDR data and plaintiff’s own testimony established speeding in the moments before impact. The Court rejected the argument that expert testimony was categorically necessary to connect speed to causation here; the causation analysis was within common experience given the record. JOHNSON v. ARMFIELD—where speed was only speculated—did not control.

3) Failure to mitigate damages. There was evidence that Weiland’s home-exercise compliance was poor (self-graded “F”), that certain exercises improved symptoms when performed, and that he undertook physically strenuous activities (chainsawing, lifting, moving furniture, recreational axe throwing) after the accident. This supported sending mitigation to the jury under South Dakota’s longstanding rules that require reasonable efforts to limit damage.

4) Evidentiary rulings.

Sheriff’s accident report: Even if admissible under business or public records exceptions, exclusion was harmless. The deputy testified live to the same substance—that the trooper failed to yield and that the report did not ascribe fault to Weiland—so the jury already heard it. No reasonable probability of a different outcome.
SDHP internal report and policies: Redactions and limits were proper to avoid confusing the jury or usurping its role. An SDHP conclusion that an incident was “preventable” (or that internal policy was violated) does not equate to negligence under tort law. The jury heard the core facts anyway, including the trooper’s admissions and the supervisor’s recommendation of a reprimand.
Claims adjuster’s alleged statements: The proponent made no offer of proof—no deposition, affidavit, or testimony to establish what the adjuster would say—so meaningful appellate review was impossible. The Court also found no prejudice; Weiland testified he paid nothing for the in-clinic courtesy treatments, and the court also protected him from attacks on clinic recordkeeping.

5) Insurance instruction. A juror’s isolated, recess-time question to a bailiff (“who pays?”) was deflected appropriately. Injecting a formal insurance instruction risked highlighting insurance unduly. Relying on Beck, the Court held the trial judge acted within the permissible range of choices in declining the instruction.

6) Per diem advocacy: the new South Dakota rule. The Court expressly rejected any per se prohibition on per diem (or unit-of-time) arguments for non-economic damages. Instead, it vested trial judges with discretion to allow or disallow such arguments depending on evidentiary support. The Court also endorsed, where appropriate, a clarifying instruction that counsel’s mathematical suggestion is argument—not evidence. Although the circuit court mistakenly thought per diem arguments were categorically barred, affirmance was still warranted because the proposed per diem request (roughly $75,000 per year across decades) had inadequate evidentiary grounding in this record (disputed permanency; evidence of symptom resolution; ongoing strenuous activities). This is a classic “right result, wrong reason” affirmance.

Impact

The most consequential doctrinal development is the adoption of a discretionary regime for per diem pain-and-suffering arguments:

Trial counsel may, in appropriate cases, propose a time-based valuation of non-economic damages, such as per-day, per-week, or per-year figures, so long as those figures are tethered to evidence of the intensity, duration, and persistence of pain and suffering.
Trial courts retain broad control over whether and how per diem arguments may be used, including:
- Requiring a proper evidentiary foundation for future or continuing pain.
- Limiting misleading or speculative mathematical extrapolations.
- Issuing a cautionary instruction that counsel’s math is argument, not evidence.
Appellate review will largely be for abuse of discretion, with harmless-error overlay; thus, parties should create a careful record supporting or opposing per diem use (e.g., medical proof of permanency, frequency/duration of symptoms, functional restrictions).

Other practice effects include:

Contributory negligence via speed and EDR data: Where EDR or other objective data establish speeding immediately before impact, defendants will often have enough to submit contributory negligence to the jury—especially where the physical evidence reflects a near-miss or minimal-impact dynamic. Plaintiffs seeking to exclude such issues should prepare to distinguish causation persuasively or offer counter-expertise where lay inference is insufficient.
Mitigation: Plaintiffs should expect juries to scrutinize home-exercise adherence and post-injury activities. Documented compliance and careful activity choices can be outcome-determinative on mitigation disputes.
Internal policies and “preventability” determinations: Organizational policy violations and “preventable” labels remain double-edged and may be limited to avoid jury confusion. Parties seeking to use such evidence should be ready to show relevance to notice, training, or feasibility—without inviting a proxy standard of care.
Hearsay and prejudice: Even where a report might be admissible under Rule 803(6) or 803(8), exclusion can be affirmed if the content is cumulative. Counsel should ensure that, if exclusion is likely, the key factual content still reaches the jury through live admissible testimony.
Preservation—offers of proof: Weiland underscores the necessity of offers of proof for excluded testimony. Without them, appellate courts cannot evaluate prejudice or error.
Insurance references: Trial courts will be supported in declining to issue insurance-related instructions absent a clear “injection” of insurance into deliberations. Isolated, deflected inquiries do not necessitate admonitions that may magnify the issue.
Emergency-vehicle standard of care remains open: The Court did not reach whether SDCL 32-31-1,-2,-5 impose a recklessness or ordinary-negligence standard for on-duty emergency vehicle maneuvers in civil suits. That important question remains for a future case squarely presenting it on appeal.

Complex Concepts Simplified

Per diem (unit-of-time) damages argument: A method where counsel suggests valuing pain and suffering by a rate per unit of time (e.g., dollars per day), multiplied by the period of pain. It is advocacy, not evidence. After Weiland, South Dakota permits such arguments at the trial judge’s discretion when supported by the record; courts may caution juries that the math is only argument.
South Dakota’s contributory negligence regime: Under SDCL 20-9-2, a plaintiff’s contributory negligence that is more than “slight” compared to defendant’s negligence bars recovery; if “slight,” recovery is reduced proportionally. In Weiland, the jury found plaintiff’s negligence was slight, so the verdict was reduced accordingly.
Mitigation of damages: An injured party must take reasonable steps to minimize harm after an injury. Failure to follow through with prescribed therapy, or engaging in strenuous activities that exacerbate symptoms, can reduce recoverable damages.
Mootness on appeal: If the jury has already decided an issue in the appellant’s favor (e.g., the defendant’s negligence), an appellate complaint that the trial court should have decided the issue as a matter of law is moot—the appellate court can no longer grant meaningful relief.
Hearsay exceptions for reports: Business records (Rule 803(6)) and public records (Rule 803(8)) can admit some out-of-court records. But even if a report qualifies, exclusion will be harmless if its critical content was testified to elsewhere; appellate courts ask whether there is a reasonable probability the verdict would have changed.
Offer of proof: To challenge the exclusion of evidence, a party must show—on the record—what the evidence would have been. Without this, appellate courts cannot assess error or prejudice.
Event Data Recorder (EDR): Modern vehicles record pre-impact data (e.g., speed, braking) that can objectively establish facts like speeding seconds before a crash; jurors may use such data to infer causation without expert testimony in appropriate cases.

Conclusion

Weiland v. Bumann cements an important procedural-evidentiary rule in South Dakota: per diem arguments for non-economic damages are not categorically banned; their use rests within the trial court’s broad discretion and must be anchored in the evidence. The Court’s careful approach gives trial judges tools to manage such advocacy—including optional cautionary instructions—while preserving juror autonomy in valuing pain and suffering.

On the merits, the decision demonstrates familiar South Dakota themes: negligence and contributory negligence are quintessential jury questions; EDR data and physical dynamics can suffice to submit contributory negligence to the jury; plaintiffs must reasonably mitigate damages; evidentiary rulings turn on probative value, risk of confusion, and prejudice; and courts should avoid injecting insurance concerns absent necessity. The Court’s application of mootness and harmless-error principles reinforces that appellate relief demands both error and prejudice.

For litigants and trial courts, Weiland offers practical guidance: build or oppose per diem arguments with robust evidentiary foundations; make clean offers of proof; handle internal policy evidence with care; cultivate a record that addresses mitigation; and manage juror inquiries to avoid unnecessary emphasis on insurance. While the standard of care for emergency vehicle maneuvers in civil cases remains for another day, Weiland’s holdings will immediately shape trial practice statewide—particularly the newly clarified pathway for per diem arguments in appropriate cases.