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Strenke v. Hogner3/18/2005
ore alcoholic drinks. When the accident occurred, Mr. Hogner was en route to another tavern with a companion in his vehicle. The jury was informed that Mr. Hogner had four previous convictions for drunk driving and that this was his fifth offense. The jury was informed that blood tests taken after the accident indicated that Mr. Hogner's blood alcohol content was .269.
. Mr. Hogner testified that when the accident occurred he was attempting to make a left-hand turn at an intersection. He testified that he saw other vehicles approaching and that he believed Mr. Strenke's vehicle was signaling a right-hand turn. Mr. Hogner testified that he thought he could make a left-hand turn before Mr. Strenke's vehicle made its turn. Mr. Hogner thus made a left-hand turn in front of Mr. Strenke's vehicle and, as a result, Mr. Strenke's vehicle struck Mr. Hogner's vehicle. Mr. Hogner testified that he did not intend to injure Mr. Strenke.
. Given the evidence of the circumstances surrounding the accident, Mr. Hogner's state of intoxication, and Mr. Hogner's history of drunken driving offenses, I would conclude that a reasonable jury could find that Mr. Hogner knew that it was substantially certain that the driver of the oncoming vehicle would be injured as a result of his decision to make a left-hand turn in front of him. While Mr. Hogner testified that he did not intend to harm Mr. Strenke and believed he had sufficient time to complete a left-hand turn, " intent may be inferred from conduct." Shepard, 189 Wis. 2d at 287. A reasonable jury could infer, given his past convictions for drunken driving, that Mr. Hogner was aware of his level of intoxication after consuming 16 to 18 beers in a five-hour period and his resulting diminished capabilities of perception and judgment. A reasonable jury could conclude that Mr. Hogner made an intentional decision to turn in front of an oncoming car. A reasonable jury could further conclude that Mr. Hogner was aware that turning in front of an oncoming vehicle after consuming 16 to 18 alcoholic drinks was substantially certain to result in injury to the driver of the oncoming vehicle. Thus, I would conclude that there was sufficient evidence for the jury to find an "intentional disregard of the rights of the plaintiff," Wis. Stat. § 895.85(3), as that phrase is properly understood.
. While the evidence does not indicate that Mr. Hogner was an acquaintance of Mr. Strenke at the time of the accident, the evidence nonetheless satisfies the requirement that the wrongdoer's conduct be directed at "the party seeking to recover punitive damages." Wis. Stat. § 895.85(1)(c). Mr. Hogner was aware of Mr. Strenke's vehicle when he made his left-hand turn. He testified that he believed Mr. Strenke's vehicle was signaling a right-hand turn. A reasonable jury could conclude that by electing to turn in front of an oncoming vehicle while heavily intoxicated, Mr. Hogner's conduct was directed at the driver of the oncoming vehicle, Mr. Strenke. In other words, a jury could conclude that Mr. Hogner was aware that injury to the driver of the oncoming vehicle was substantially certain to result from his actions.
. Therefore, I concur in the mandate of the majority opinion but do not join in its reasoning.
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