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Strenke v. Hogner3/18/2005
n to cause a disregard of Strenke's rights. There are several reasons for this.
. First, Hogner's acts of drinking 16 to 18 twelve-ounce containers of beer and then driving while intoxicated were deliberate. As noted by the circuit court, "nobody was holding him down and pouring these [drinks] down his throat involuntarily . . . ." Similarly, there is no evidence in the record that anybody made Hogner get behind the wheel of his car that night.
. Second, Hogner's act of drinking and driving disregarded Strenke's right to safety in using the highway with other motorists in sober command of their vehicles. While Hogner may not have targeted Strenke personally, his intentional disregard of the rights of all motorists on the road necessarily implicated Strenke's rights. The fact that his blood alcohol content was tested to be .269% confirms this.
. Third, Hogner's conduct was sufficiently aggravated to warrant punishment by punitive damages. Here, Hogner admitted that he had four prior convictions for driving while intoxicated. He further acknowledged that he consumed 16 to 18 twelve-ounce containers of beer within a five-hour span on the night of the accident.
. Thus, we conclude that there was sufficient evidence to submit the issue of punitive damages to the jury. However, we are equally divided on the question of whether the jury's punitive damage award was excessive and therefore in violation of Hogner's due process rights. Chief Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley, and Justice Patience D. Roggensack would answer the question in the negative; Justice Jon P. Wilcox, Justice N. Patrick Crooks, and Justice Louis B. Butler, Jr. would answer the question in the affirmative. Justice David T. Prosser, Jr. did not participate. Accordingly, we remand this matter to the court of appeals to decide the issue consistent with the principles set forth in Trinity, 261 Wis. 2d 333.
VI.
. In sum, 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. Furthermore, we determine that a defendant's conduct giving rise to punitive damages need not be directed at the specific plaintiff seeking punitive damages in order to recover under the statute.
. However, we are equally divided on the question of whether the jury's punitive damage award was excessive and therefore in violation of Hogner's due process rights. Accordingly, we affirm the judgment of the circuit court in part and remand to the court of appeals to decide this remaining issue consistent with the principles set forth in Trinity, 261 Wis. 2d 333.
By the Court.-The judgment of the circuit court is affirmed in part and the cause is remanded to the court of appeals.
. DAVID T. PROSSER, J. did not participate.
. JON P. WILCOX, J. (concurring). While I agree with the ultimate result the majority reaches, the majority's analysis of Wis. Stat. § 895.85(3) (2001-02) ignores accepted canons of statutory construction, misconstrues our common law relating to punitive damages, and adopts an interpretation of § 895.85(3) that is virtually identical to, if not lower than, the common-law standard for punitive damages. In doing so, the majority turns on its head what the legislature clearly intended as a heightened standard governing the recovery of punitive damages.
. To answer the questions certified by the court of appeals, I would hold as follows: 1) Section 895.85(3) requires that the defendant
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