Strenke v. Hogner3/18/2005
intend the consequences of his actions--that is, intend to harm the plaintiff--in order to be liable for punitive damages; 2) Pursuant to § 895.85(1)(c), the defendant's conduct must be directed at the person seeking to recover punitive damages; and 3) There exists sufficient evidence for a reasonable jury to conclude that the requirements of § 895.85 have been met in this case. Therefore, I respectfully concur.
I.
. Section 895.85 was enacted pursuant to 1995 Wis. Act 17 as part of a broader, comprehensive tort reform package passed by the legislature. Section 895.85 significantly modified the circumstances under which punitive damages could be awarded. It is widely accepted that § 895.85(3) "was clearly intended to be more narrow than the case law standard . . . ." Wis JI-Civil 1707.1 cmt. 2 (1995). "The intent of the legislature to heighten the standard for recovery of punitive damages could not be clearer. . . . It is clear from the text of the statute that Section 895.85 marks a significant departure from the common law standard." Boomsma v. Star Transp., Inc., 202 F. Supp. 2d 869, 880 (E.D. Wis. 2002).
. Under the common law, punitive damages were allowed in two categories of tort cases. Punitive damages were allowed if the defendant "acted maliciously." Wangen v. Ford Motor Co., 97 Wis. 2d 260, 300, 294 N.W.2d 437 (1980). However, malicious conduct was not required, and punitive damages were also available if there was "a showing of wanton, wilful, or reckless disregard of the plaintiff's rights." Kink v. Combs, 28 Wis. 2d 65, 79, 135 N.W.2d 789 (1965). This court used the shorthand "'outrageous'" to refer to both types of conduct giving rise to an award of punitive damages. Brown v. Maxey, 124 Wis. 2d 426, 433, 369 N.W.2d 677 (1985)(quoting Wangen, 97 Wis. 2d at 300).
. In contrast to the common-law standard, § 895.85(3) provides: "The plaintiff may receive punitive damages if evidence is submitted showing that the defendant acted maliciously toward the plaintiff or in an intentional disregard of the rights of the plaintiff." Thus, the legislature removed the possibility of awarding damages in cases where the defendant "willfully, wantonly, or recklessly disregarded the plaintiff's rights" and instead required that there be a showing that the defendant acted in an "intentional disregard of the rights of the plaintiff." The dispute in this case concerns the proper meaning of the phrase "intentional disregard of the rights of the plaintiff."
. Pursuant to Wis. Stat. § 990.01, when construing a statute, "technical terms or legal terms of art are given their accepted legal or technical definitions." Wis. Citizens Concerned for Cranes and Doves v. DNR, 2004 WI 40, , 270 Wis. 2d 318, 677 N.W.2d 612. Further, " he legislature is presumed to act with knowledge of the existing case law." Maurin v. Hall, 2004 WI 100, , 274 Wis. 2d 28, 682 N.W.2d 866 (citing Reiter v. Dyken, 95 Wis. 2d 461, 471, 290 N.W.2d 510 (1980)). As noted, the common law allowed punitive damages upon "a showing of wanton, wilful, or reckless disregard of the plaintiff's rights." Kink, 28 Wis. 2d at 79. The majority admits that the phrase "wanton, willful, or reckless disregard of the plaintiff's rights" had an accepted legal meaning under the common law, majority op., -28, and that the legislature "relied heavily" on this meaning when drafting § 895.85(3). Majority op., . Thus, it is necessary to understand the meaning of the common-law standard before addressing the effect of § 895.85 on the availability of punitive damages.
. As the following discussion will demonstrate, the common law referred to "a disregard of the plaintiff's rights" as a shorthand for desc
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