Strenke v. Hogner3/18/2005
ribing all of the various types of harm giving rise to punitive damages when coupled with the appropriate mental state of the defendant. However, the common law required more than a showing that the defendant recklessly disregarded the plaintiff's "rights" in the abstract in each particular case. Contra majority op., . Rather, the phrase "willful, wanton, or reckless disregard of rights" meant that the defendant engaged in a volitional act with knowledge or appreciation that his conduct created an unreasonable risk of harm and that there was a strong probability that harm would result. Thus, "a disregard of the plaintiff's rights" referred to the harm caused by the defendant's conduct and "willful, wanton, or reckless" referred to the defendant's knowledge of the likelihood of harm--his knowledge that such conduct created a "strong probability" that harm would result. While "an intent to injure" was not required, the common law did specifically link the defendant's conduct with his knowledge of the likelihood of harm.
. As noted, punitive damages were available under Wisconsin common law if the plaintiff demonstrated "malicious conduct or willful or wanton conduct in reckless disregard of rights or interests." Wangen, 97 Wis. 2d at 267. In summarizing the various common-law standards for the imposition of punitive damages, including Wisconsin's, Professors Ghiardi and Kircher, in their treatise on punitive damages, commented:
The conduct which the varying terms describes is generally of two distinct types. With the first the defendant desires to cause the harm sustained by the plaintiff, or believes that the harm is substantially certain to follow the conduct. With the second the defendant knows, or should have reason to know, not only that the conduct creates an unreasonable risk of harm, but also that there is a strong probability, although not a substantial certainty, that the harm will result and, nevertheless, proceeds with the conduct in reckless or conscious disregard of the consequences.
Neither form of conduct, therefore, involves mere inadvertence or what, in the traditional tort sense, would be called ordinary negligence.
James D. Ghiardi & John J. Kircher, 1 Punitive Damages L. & Prac. § 5.01, at 8 (1996)(emphasis added).
. This passage from the Ghiardi and Kircher treatise on punitive damages, which was present in previous editions, was relied on and cited with approval numerous times by this court when discussing the circumstances under which punitive damages could be awarded under Wisconsin common law. See, e.g., Loveridge v. Chartier, 161 Wis. 2d 150, 188, 468 N.W.2d 146 (1991); Maxey, 124 Wis. 2d at 433-34; Lundin v. Shimanski, 124 Wis. 2d 175, 197 n.14, 368 N.W.2d 676 (1985). It was also incorporated into the commentary of our jury instructions describing the requisite conduct for punitive damages in 1986 and remained until the passage of 1995 Wis. Act 17.
. In Wangen, when describing the type of conduct necessary to justify punitive damages, we stated:
" omething must be shown over and above the mere breach of duty for which compensatory damages can be given. That is, a showing of a bad intent deserving punishment, or something in the nature of special ill will towards the person injured, or a wanton, deliberate disregard of the particular duty then being breached, or that which resembles gross as distinguished from ordinary negligence."
Wangen, 97 Wis. 2d at 268 (quoting Meshane v. Second Street Co., 197 Wis. 382, 387, 222 N.W. 320 (1928))(emphasis added). In addition, we noted that the requisite conduct for punitive damages was similar to "conduct falling within the old gross negl
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