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Strenke v. Hogner3/18/2005
could be spread via a cold sore on his mouth during cunnilingus. Id. at 192.
. Thus, the majority is simply wrong when it states that the common law did not consider the defendant's knowledge of the likelihood of harm as part of the "nature of the wrongdoer's conduct." Majority op., . As demonstrated above, while our jurisprudence spoke of a "disregard of rights" generally in referring to the type of conduct necessary for punitive damages, in each case, we analyzed the nature of the defendant's conduct and the defendant's awareness of the likelihood of harm inflicted, rather than the likelihood of a violation of the plaintiff's rights in the abstract. In sum, we allowed for punitive damages where it was evident that the defendant:
kn , or should have reason to know, not only that the conduct create an unreasonable risk of harm, but also that there [was at least] a strong probability . . . that the harm w[ould] result and [the defendant], nevertheless, proceed with the conduct in reckless or conscious disregard of the consequences.
James D. Ghiardi & John J. Kircher, 1 Punitive Damages L. & Prac. § 5.01, at 8 (1996).
. The majority is incorrect that the common law did not link the wrongdoer's conduct to the likelihood of harm and his knowledge thereof. See majority op., -33. In Wangen, we analyzed the defendant's knowledge of the likelihood of fuel tank rupture and burn injuries as a result of its failure to correct a design flaw in the fuel tank. In Maxey, we analyzed the defendant's knowledge of the likelihood of vandalism and fire as a result of his failure to provide adequate security and fire alarms. Similarly, in Loveridge, we inquired into the defendant's knowledge of the likelihood that he could spread a sexually transmitted disease.
. As these cases demonstrate, punitive damages were allowed under the common law if the defendant acted with knowledge or appreciation that his conduct created an unreasonable risk of harm and that there was a strong probability that harm would result. While the phrase "rights of others" was used in a general sense to include the various types of injuries that could give rise to punitive damages, in each case, we focused on the particular harm caused by the defendant's conduct. The phrase "willful, wanton, or reckless" referred to the defendant's knowledge of the likelihood of harm--his knowledge that his conduct created at least a "strong probability" that harm would result.
. Therefore, there was no need for the legislature to specify "injury" or "harm" when it enacted § 895.85(3), majority op., , because under the common law, it was understood that "disregard of the plaintiff's rights" referred to the harm caused by the defendant's conduct in each particular case. As such, when the legislature created § 895.85(3) to allow punitive damages if "the defendant acted . . . in an intentional disregard of the rights of the plaintiff," it heightened the state of mind required of the actor and left intact the link between the actor's state of mind and the likelihood of the harm.
. Thus, with the enactment of § 895.85, it is no longer sufficient for the defendant to know or have reason to know "that the conduct creates an unreasonable risk of harm, also that there is a strong probability, although not a substantial certainty, that the harm will result." James D. Ghiardi & John J. Kircher, 1 Punitive Damages L. & Prac. § 5.01, at 8 (1996). Rather, following the enactment of § 895.85, it is necessary that the defendant have knowledge that there is a "substantial certainty" that harm will result from his conduct. This conclusion flows naturally from the legislature's rem
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