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Strenke v. Hogner3/18/2005
ontainers of beer within a five-hour span on the night of the accident. However, Hogner testified that he had never injured anyone when drinking and did not intend to injure anyone on the date in question.
. At the close of the testimony, Hogner moved for a directed verdict, asserting that the plaintiffs had not presented a prima facie case that he acted maliciously toward Strenke or intentionally disregarded Strenke's rights. The circuit court denied the motion, reasoning that while Hogner did not act maliciously toward Strenke, the jury could conclude that Hogner intentionally disregarded Strenke's rights.
. According to the circuit court, Strenke was a member of a class of motorists that had rights. It determined that a jury could find that Hogner's intentional acts of drinking 16-18 twelve-ounce containers of beer, and then driving while intoxicated, coupled with the fact that he had four prior OWI convictions, created a practical certainty that Strenke's rights would be disregarded.
. The issue was submitted to the jury in two questions: (1) "Did Levi Hogner act maliciously toward LeRoy Strenke or in an intentional disregard of the rights of LeRoy Strenke?" and (2) "What sum, if any, do you assess against Levi Hogner as punitive damages?" The jury unanimously answered the first question "yes" and awarded the sum of $225,000, $200,000 more than the Strenkes had asked for in closing argument.
. After the verdict, Hogner filed a motion for remittitur or, in the alternative, a new trial. The circuit court denied the motion, and Hogner appealed. The court of appeals certified the matter to this court.
II.
. The focus of our inquiry is Wis. Stat. § 895.85, the punitive damages statute. Interpretation of a statute presents a question of law subject to independent appellate review. Vill. of Lannon v. Wood-Land Contractors, Inc., 2003 WI 150, , 267 Wis. 2d 158, 672 N.W.2d 275 (citing Meyer v. School Dist. of Colby, 226 Wis. 2d 704, 708, 595 N.W.2d 339 (1999)). Likewise, whether there is sufficient evidence to submit the question of punitive damages to the jury is also a question of law that is subject to independent appellate review. Lievrouw v. Roth, 157 Wis. 2d 332, 344, 459 N.W.2d 850 (Ct. App. 1990).
III.
. We begin our discussion with the statute at issue. Wisconsin Stat. § 895.85 was created by 1995 Wis. Act 17 and became effective on May 17, 1995. Subsection (3) of the statute provides:
(3) STANDARD OF CONDUCT
The plaintiff may receive punitive damages if evidence is submitted showing that the defendant acted maliciously toward the plaintiff or in an intentional disregard of the rights of the plaintiff.
. Prior to the enactment of Wis. Stat. § 895.85(3), the common law established the standard of conduct governing the imposition of punitive damages. Under it, punitive damages could be awarded for "outrageous" conduct. Sharp v. Case Corp., 227 Wis. 2d 1, 21, 595 N.W.2d 380 (1999). A person's conduct was "outrageous" if the person acted "either maliciously or in wanton, willful and in reckless disregard of the plaintiff's rights." Id.
. The words of Wis. Stat. § 895.85(3) derive, in large part, from the common law. The major difference between the two is that the legislature replaced the common law language of "wanton, willful and reckless" with the term "intentional." We address the import of this change in answering the first certified question: what proof is required for a plaintiff to recover punitive damages under the phrase "in an intentional disregard of the rights of the plaintiff" as provided in Wis. Stat. § 895.85(3)?
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