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Strenke v. Hogner3/18/2005
. In Wischer, 267 Wis. 2d 638, , the court of appeals concluded that to intentionally disregard the rights of the plaintiff, a defendant was unambiguously required to have (1) a general intent to perform an act, and (2) either (i) a specific intent to cause injury by that act or (ii) knowledge that the act is practically certain to result in injury.
. Relying on the Wischer decision, Hogner argues that the issue of punitive damages was improperly submitted to the jury in this case. He contends that no evidence exists that he knew that his acts were practically certain to result in Strenke being injured. As a result, he asserts that his intentional acts of drinking a large quantity of alcohol and then driving were not sufficient to prove that he intentionally disregarded Strenke's rights.
. While we agree with Hogner's reading of Wischer, we disagree with the Wischer court's interpretation of Wis. Stat. § 895.85(3). The legislature did not intend an "intentional disregard of the rights of the plaintiff" to require "intent to cause injury to the plaintiff." Rather, it reaffirmed the common-law principle that punitive damages can be premised on conduct that is a "disregard of rights." However, the legislature chose the word "intentional" to describe the heightened state of mind required of the defendant who disregards rights, instead of the common law's description of "wanton, willful and reckless." Our interpretation of Wis. Stat. § 895.85(3) is supported by the language of the statute, the legislative history, and the common law meaning of the phrase in question. We examine each in turn.
. When interpreting a statute, we look first to its language. Vill. of Lannon, 267 Wis. 2d 158, . Here, the words at issue are: "in an intentional disregard of the rights of the plaintiff." Wis. Stat. § 895.85(3). The statute says nothing about "injury," or "harm," intentional or otherwise. Instead, it simply requires that the defendant engaged in conduct that constituted a "disregard of rights" that was "intentional." Id.
. If the legislature had intended to specify an "intent to injure" requirement, it could have easily done so. Indeed, there was another statute enacted in the same legislative session in which Wis. Stat. § 895.85(3) was enacted that demonstrates this point. Wisconsin Stat. § 895.525(4m) was created by 1995 Wis. Act 447 and allows liability of contact sports participants only "if the participant who caused the injury acted recklessly or with intent to cause injury." (Emphasis added.) There is no comparable language in Wis. Stat. § 895.85(3). The words "intent to cause injury" appear nowhere in the text. Rather, the object of the intent as set forth in the text is the "disregard of the rights of the plaintiff." This court will not insert the phrase "intent to cause injury" into the statute. To do so here would alter the focus of the statute and jettison the legislative intent.
. Although Hogner attempts to bolster his argument through the use of legislative history, his effort misses the mark. Both parties agree that the legislature tried to make it harder to recover punitive damages by passing Wis. Stat. § 895.85(3). We too subscribe to this construction. The analysis by the Legislative Reference Bureau indicates that the bill "revises the standards and procedures for awarding punitive damages in certain civil cases." See Drafting Records of 1995 Wis. Act 17. To this end, the legislature replaced the common law language of "wanton, willful and reckless" with "intentional" to modify "disregard of the plaintiff's rights."
. Thus, the question before this court is how much harder did the legislature make it? There is nothing in the draft
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