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Strenke v. Hogner3/18/2005
ustifying punitive damages." Id. at 433-34.
. Applying this standard to the facts, we noted that the evidence demonstrated the following: there were numerous instances of fires started by vandals in the apartment complex in the months preceding the injury; the complex was not properly outfitted with locks and other safety mechanisms; there were numerous instances of other vandalism during the weeknights and weekends and that there was no security staff employed during these times; the fire alarm system in the complex was often inoperable; the fire danger was so high that tenants had formed their own security squad; and the defendant had knowledge of these facts and the risk of fire and yet did nothing. Id. at 434-37.
. We allowed recovery of punitive damages from the landlord because:
the conduct of the defendant evidenced more than a lack of ordinary care. Given [the landlord's] knowledge with respect to the security problems and the history of fires at Apollo Village and his conscious refusal to reduce the risk of fires, we do not hesitate to hold there is credible evidence from which the jury could reasonably conclude that [the landlord's] conduct evidences a reckless disregard of the rights and safety of [the plaintiff]. Based upon the evidence concerning [the landlord's] failure to take action, it is reasonable to conclude that [the landlord] proceeded with a reckless and conscious disregard of the grave consequences involved with such conduct.
Id. at 437 (emphasis added). Thus, in Maxey, our analysis again focused on the defendant's knowledge of the likelihood of harm that actually occurred.
. In Loveridge, 161 Wis. 2d at 162-63, the defendant passed the herpes simplex virus to the plaintiff, an underage co-worker, after performing various consensual acts of cunnilingus. The record indicated that the defendant had a history of cold sores and that such sores were present during the time he engaged in the illicit sexual contact with the plaintiff. Id. at 163. The record also indicated that the defendant did not know the herpes virus could be transmitted by cold sores, although he knew there was a "vague connection" between the two. Id.
. On appeal, the defendant's insurer argued that the circuit court erred in submitting the question of punitive damages to the jury. Id. at 187. This court agreed and concluded that the case was not appropriate for the imposition of punitive damages. Id. at 192. In so holding, we discussed the circumstances under which punitive damages are available in Wisconsin. Id. at 188-92.
. We noted that under Maxey, a defendant's conduct justifies punitive damages in two circumstances. Id. at 188. The first is where the defendant subjectively intends to injure or harm the plaintiff. Id. at 189. The second is where "the defendant knew or should have known that his or her conduct created an unreasonable and strong probability of harm." Id. at 191 (emphasis added). Thus, again focusing on the defendant's knowledge of the likelihood of harm, we stated that this standard could be met if there was evidence that "Chartier knew that his sexual contact with Loveridge created 'a strong probability, although not a substantial certainty,' that Loveridge would be injured or harmed." Id. at 190 (quoting Maxey, 124 Wis. 2d at 433)(emphasis added).
. In concluding that this second standard was not met, we reasoned: "there was unrebutted and undisputed testimony that Chartier did not know that the herpes virus could be spread from a cold sore on the mouth to the vagina during cunnilingus." Id. at 191. Further, we stated that there was not sufficient evidence that he "should have known" that herpes
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