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Strenke v. Hogner3/18/2005
e. We instead conclude that the legislature intended to require an increased level of consciousness and deliberateness at which the defendant must disregard the plaintiff's rights in order to be subject to punitive damages.
. Because the word "intentional" is not defined in the statute, we look to other sources for guidance. Restatement (Second) of Torts §8A (1965) states that the word "intent" denotes "that the actor desires to cause the consequences of his act, or that he believes that the consequences are substantially certain to result from it." In Shepard v. Outagamie County Circuit Court, 189 Wis. 2d 279, 286-87, 525 N.W.2d 764 (Ct. App. 1994), the court defined "intentional" as follows:
The legal definition of "intentional" is essentially the same, whether found in tort law or in criminal law . . . . A person may be said to have intentionally caused the result where the result is substantially certain to occur from the actor's conduct. (Citation omitted.) The definition of "intentionally" in the criminal code, § 939.23(3), STATS., is similar: "Intentionally" means that the actor either has specified a purpose to do the thing or cause the result specified, or is aware that his conduct or her conduct is practically certain to cause that result.
. In light of these authorities, we determine that a result or consequence is intentional if the person acts with a purpose to cause the result or consequence or is aware that the result or consequence is substantially certain to occur from the person's conduct. The result or consequence here is the disregard of rights. Applying this definition to Wis. Stat. § 895.85(3), we conclude that the statute's requirement that the defendant act "in an intentional disregard of the rights of the plaintiff" necessitates that the defendant act with a purpose to disregard the plaintiff's rights or be aware that his or her conduct is substantially certain to result in the plaintiff's rights being disregarded.
. Our analysis is consistent with that of the Civil Jury Instructions Committee. The Committee drafted Wis JI--Civil 1707.1 to give the following meaning to the statutory phrase: "A person acts in an intentional disregard of the rights of the plaintiff if the person acts with a purpose to disregard the plaintiff's rights or is aware that his or her acts are practically certain to result in the plaintiff's rights being disregarded." Notably, there is no requirement of intent to injure or cause harm in the instruction. Rather, the focus is on the disregard of rights.
. Thus, in response to the first question certified by the court of appeals, we conclude that a person acts in an intentional disregard of the rights of the plaintiff if the person acts with a purpose to disregard the plaintiff's rights, or is aware that his or her acts are substantially certain to result in the plaintiff's rights being disregarded. This will require that an act or course of conduct be deliberate. Additionally, the act or conduct must actually disregard the rights of the plaintiff, whether it be a right to safety, health or life, a property right, or some other right. Finally, the act or conduct must be sufficiently aggravated to warrant punishment by punitive damages.
. In recognizing this heightened standard, we are mindful that some cases which have previously qualified for punitive damages under the common law will no longer qualify under Wis. Stat. § 895.85(3). Under the prior common law standard, it was accepted that "the vast majority of negligence cases do not give rise to the remedy of punitive damages." Brown, 124 Wis. 2d at 432. The legislature intended with the heightened standard that now there would be even few
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