Strenke v. Hogner3/18/2005
ing records of Wis. Stat. § 895.85(3) to suggest that the legislature intended to equate "intentional disregard of rights" with intent to injure or cause harm, as Hogner suggests. Furthermore, in referencing the floor debate on Senate Bill 11, which later evolved into Wis. Stat. § 895.85(3), Hogner ignores the most pointed exchange between legislators, which sheds light on the issue before this court.
. Responding to Rep. Robson's question of whether the new law would allow the imposition of punitive damages against an intoxicated surgeon who amputates the wrong leg, Rep. Green, a sponsor of the bill, answered in the affirmative, a position that is difficult if not impossible to reconcile with Hogner's interpretation of the statute.
Green stated:
First off, I do believe that the current standard we are talking about in this bill would cover that situation. It is not the -- you don't have to prove an intent that the act took place. You have to prove instead, if you look at it, maliciousness which is the current standard or intentional disregard for plaintiff's rights -- not the action being intentional, but disregard for plaintiff's rights.
(Emphasis added.)
. Examining Wis. Stat. § 895.85(3), it is evident that the legislature relied heavily on the common-law standard. Under the common law, punitive damages could be awarded if the defendant acted (1) maliciously, or (2) in wanton, willful and in reckless disregard of the plaintiff's rights. Sharp, 227 Wis. 2d at 21.
. The first category included conduct that was intended to cause the injury. Malicious conduct was defined as follows: "' cts are malicious when they are the result of hatred, ill will, a desire for revenge, or inflicted under circumstances where insult or injury is intended.'" Ervin v. City of Kenosha, 159 Wis. 2d 464, 483, 464 N.W.2d 654 (1991) (quoting Wis JI--Civil 1707 (1990)).
. The second category, however, did not require an intent to cause injury. Wangen v. Ford Motor Co., 97 Wis. 2d 260, 267, 294 N.W.2d 437 (1980). In Fahrenberg v. Tengel, 96 Wis. 2d 211, 221, 291 N.W.2d 516 (1980), the court explained, " o sustain an award for punitive damages, the law does not require a specific finding of an intentional and ruthless desire to injure, vex or annoy. The injured party need only show a wanton, willful or reckless disregard of the rights of others on the part of the wrongdoer." Similarly, in Sharp, 227 Wis. 2d at 21, the court observed, " person's conduct is wanton, willful, and in reckless disregard of the plaintiff's rights when it demonstrates an indifference on the person's part to the consequences of his or her actions, even though he or she may not intend insult or injury." This second category is where the change occurred. It now requires an intentional disregard of rights.
. Not only did the legislature retain two categories of conduct, but it also used the specific common law phrase in question to describe the new second category--"disregard of rights." The legislature is presumed to act with full knowledge of existing case law when it enacts a statute. Czapinski v. St. Francis Hosp., 2000 WI 80, , 236 Wis. 2d 316, 613 N.W.2d 120 (citing Ziulkowski v. Nierengarten, 210 Wis. 2d 98, 104, 565 N.W.2d 164 (1997)). A statute must be interpreted in light of the common law and the scheme of jurisprudence existing at the time of its enactment. State v. Hansen, 2001 WI 53, , 243 Wis. 2d 328, 627 N.W.2d 195 (citing In re Custody of D.M.M., 137 Wis. 2d 375, 389-90, 404 N.W.2d 530 (1987)).
. Statutes in derogation of the common law are to be strictly construed. Fuchsgruber v. Custom Accessories, Inc., 2001 WI 81, , 244 Wis
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