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Strenke v. Hogner3/18/2005
oval of punitive damages where the wrongdoer's mental state was "wanton, willful or reckless" and its restriction of punitive damages to where the actor's mental state was "intentional."
. "The legal definition of 'intentional' is essentially the same whether found in tort law or in criminal law[:] . . . . A person may be said to have intentionally caused the result where the result is substantially certain to occur from the actor's conduct." Shepard v. Outagamie County Circuit Court, 189 Wis. 2d 279, 287, 525 N.W.2d 764 (Ct. App. 1994). In Shepard, the court of appeals adopted the definition of "intentionally" from the criminal code and applied it to the civil contempt statute. Id. Wisconsin Stat. § 939.23 provides: "'Intentionally' means that the actor has either a purpose to do the thing or cause the result specified, or is aware that his or her conduct is practically certain to cause that result." See also Restatement (Second) of Torts § 8A (1965)("The word 'intent' is used to denote that the actor desires to cause the consequences of his act, or that he believes that the consequences are substantially certain to result from it."). Consistent with the focus of the common law on the nature of the wrongdoer's conduct and his knowledge of the risk of actual harm, the "consequence" that must be substantially certain, so as to make a wrongdoer's act "intentional" for purposes of § 895.85(3), is actual harm to the plaintiff.
. Thus, while I agree with the majority that the phrase "wanton, willful, or reckless disregard of rights" under the common law referred to "an indifference on the defendant's part to the consequence of his or her actions[,]" majority op., , the "consequence" referred to was a great risk or substantial probability of harm. Following the enactment of § 895.85(3), a mere "indifference" to a great risk of harm is not sufficient to justify punitive damages. Rather, § 895.85(3) now requires, at a minimum, that the wrongdoer have knowledge that harm to the plaintiff is substantially certain to result as a consequence of his or her actions.
. Therefore, to answer the first question posed by the court of appeals, I would conclude that § 895.85(3) requires that the defendant act for the purpose of causing harm to the plaintiff or with knowledge that harm is substantially certain to result from his conduct in order for punitive damages to be available. This interpretation of § 895.85(3) does not "insert words into the statute[,]" majority op., ; it merely recognizes the meaning and application of the phrase "wanton, willful or reckless disregard of the rights of the plaintiff" under the common law.
. The majority, adopting the position set forth by the plaintiffs in Wischer v. Mitsubishi Heavy Industries America, Inc., 2003 WI App 202, 267 Wis. 2d 638, 673 N.W.2d 303, concludes that the "result" that must be intended under § 895.85(3) is the "disregard of [the plaintiff's] rights," not the ultimate injury or harm. Majority op., , 38. This interpretation of § 895.85 suffers from several flaws.
. First, the majority's interpretation is based on a misunderstanding of the common-law standard for punitive damages as discussed above. See majority op., -33. As emphasized previously, " defendant's conduct [constituted a willful, wanton or reckless disregard of rights] only if the defendant knew or should have known that his or her conduct created an unreasonable and strong probability of harm." Loveridge, 161 Wis. 2d at 190-91 (emphasis added). At common law, we focused on the nature of the defendant's conduct and his knowledge of the risk of "harm." We did not ask whether the defendant knew or should have known that his conduct created an unr
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