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Strenke v. Hogner3/18/2005
easonable and strong probability of a "disregard of the rights of the plaintiff" in the abstract.
. If "disregard of rights" is to have the same meaning under § 895.85(3) as it did under the common law, save the change of the modifier "reckless" to "intentional," then the majority's interpretation of § 895.85(3) simply cannot be squared with the common law. Rather than incorporating the common-law meaning of "disregard of the rights of the plaintiff" into § 895.83(3) and taking into account the change in the modifier from "wanton, willful, or reckless" to "intentional," the majority grasps at straws, relying on a "pointed exchange between legislators" during the floor debate of the punitive damages legislation to support its position. Majority op., .
. Next, despite the wide recognition that § 895.85 was intended to restrict the availability of punitive damages, the majority adopts an interpretation of § 895.85 that is virtually identical to its description of the common law "wanton, willful, or reckless" standard for recovery of punitive damages. The majority essentially concludes that the question of punitive damages may be submitted to the jury if the defendant's conduct demonstrates a deliberate indifference to the rights of the plaintiff. See majority op., , 34, 38. The United States Supreme Court has noted, albeit in a different context, that " t is, indeed, fair to say that acting or failing to act with deliberate indifference to a substantial risk . . . is the equivalent of recklessly disregarding that risk." Farmer v. Brennan, 511 U.S. 825, 836 (1994). It appears as if the majority's interpretation of "intentional disregard of the rights of the plaintiff" in § 895.85(3) is no different than its characterization of the common-law standard. Compare majority op., with majority op., -32.
. In addition, the court of appeals in Wischer aptly noted that under the plaintiffs' interpretation of § 895.85(3), the interpretation that the majority adopts today, the standard for punitive damages is arguably lower under § 895.85(3) than it was under the common law. Wischer, 267 Wis. 2d 638, (" laintiffs' counsel admitted that his interpretation of the statute would expand rather than narrow the number of cases under which punitive damages could be awarded . . . . laintiffs' counsel indicated that in his view of § 895.85(3), punitive damages under the Loveridge scenario could be recovered.")(emphasis in original). " his interpretation of the statute . . . would expand the scope of punitive damages awards in clear contravention to the intent of the legislature when it enacted § 895.85(3)." Id.
. Moreover, the court of appeals in Wischer noted the numerous cases in which punitive damages would be available if the position the majority takes today were adopted:
nyone who is negligent could be considered to be intentionally disregarding the rights of someone. Examples are numerous: someone who is drinking a cup of coffee while driving, or eating while driving, or adjusting the radio while driving, or even driving over the speed limit. In each of these examples, an injured plaintiff could argue that the tortfeasor driver intentionally disregarded the rights of the other drivers on the road, and thus justify a punitive damage award.
Id., . While the majority states that " he legislature intended with the heightened standard that now there would be even fewer negligence cases giving rise to punitive damages[,]" majority op., , there is no principled reason why punitive damages would not be allowed in the above hypotheticals under the majority's interpretation of the statute.
. In addition, the majority never satisfactorily
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