An Intoxicated Defendant Does Not Entitle Plantiffs to a Punitive Damages Claim

WDC Journal Edition: Fall 2004
By: Mark T. Budzinski - Corneille Law Group

This article analyzes the current state of punitive damages law in Wisconsin, and its application to motor vehicle accidents involving an intoxicated defendant (OWI cases). By applying the most recent interpretation of Wisconsin’s punitive damage statute, Wis. Stat. § 895.85(3), there is a strong argument that plaintiffs will be unable to pursue a claim for punitive damages in the vast majority of these cases. Although most plaintiffs in OWI cases demand punitive damages, Wisconsin law does not support such a claim based solely upon the fact of intoxication.

Cases involving intoxicated defendants exist on a continuum. On the left are cases that involve a low level of intoxication and no obvious causal connection between the defendant’s intoxication and the accident. On the right are those cases where the defendant is so intoxicated, and the circumstances surrounding the accident so egregious, that there is a very strong inference the defendant knew an accident was practically certain to result. It is the cases between the extremes where the battle over punitive damages is typically fought.

While some states allow a punitive damages claim based solely upon a finding of intoxication, there is no such bright line test in Wisconsin. The question of what degree of intoxicant-caused impairment allows a punitive damage claim to go to a jury, and how that impairment is to be measured, remains unanswered.-1 Surprisingly few Wisconsin cases address the availability of punitive damages in OWI cases, and no case applies the current punitive damage statute to this situation. However, the recent interpretation of Wis. Stat. § 895.85(3) in Wischer v. Mitsubishi Heavy Industries of America,-2 should make it very difficult to make a punitive damage claim in the vast majority of these cases.

Wischer involved a punitive damage claim against several contractors involved in the construction of Miller Park.-3 During construction, a large crane failed, resulting in the death of three workers. The court of appeals discussed at great lengths the phrase “intentional disregard of the plaintiff’s rights” in coming to its decision that punitive damages were not available to the plaintiffs.

A punitive damage claim cannot go to the jury unless the plaintiff first offers clear and convincing evidence to support a finding that 1) the defendant acted maliciously, or 2) the defendant acted in an intentional disregard of the plaintiff’s rights, and 3) that the defendant’s intoxication was a cause of the accident.-4 This is a drastic change from the pre-1995 version of § 895.85, which only required the plaintiff to show that the defendant’s conduct was in wanton, willful, or reckless disregard of the plaintiff’s rights. The change in the language of the statute was “clearly…intended to heighten the standard for the recovery of punitive damages” in Wisconsin.-5

The plaintiff faces a substantial hurdle in producing clear and convincing evidence that the defendant’s conduct was malicious or in intentional disregard of the plaintiff’s rights. A person’s acts are malicious when they are the result of hatred, ill will, a desire for revenge, or inflicted under circumstances where the insult or injury is intended.-6 With rare exception, OWI cases will not support a claim of maliciousness. To meet this threshold, the plaintiff and defendant will likely need to have a relationship with each other to establish the requisite mind set of hatred, ill will or revenge.

Absent clear and convincing evidence of maliciousness, the plaintiff must offer clear and convincing evidence that the defendant intentionally disregarded the rights of the plaintiff. Wischer recently defined that phrase as requiring either:

1) An intent by the defendant to cause injury to the plaintiff; or

2) Knowledge that the defendant’s conduct was practically certain to cause the accident or injury to the plaintiff.-7

There is rarely any evidence of an intent to injure, so a plaintiff is left with only one argument - that by driving while intoxicated, the defendant knew his conduct was practically certain to cause the accident or the resulting injury. Wisconsin law does not support such a blanket assertion in all OWI cases.

In all but the most extreme cases, showing clear and convincing evidence that the defendant knew his or her intoxication was practically certain to cause an accident is a very difficult burden to meet. While it is negligent for a defendant to operate a motor vehicle while intoxicated, it is in most cases only negligence, like other violations of the rules of the road.

As the Court notes in Wischer, when the defendant’s conduct merely creates a risk of some harm to someone which may or may not result, then the defendant’s conduct is negligent as opposed to intentional.-8 That is precisely the situation when an individual who has had too much to drink makes the subsequent choice to operate a motor vehicle. Volitional acts which result in unintended injuries do not justify the punishment that is the purpose of punitive damages.-9 This distinction makes sense. There is a difference in the culpability and the need to deter and punish one who directly intends to injure a person, as opposed to someone whose negligent volitional act leads to unintended injuries.

The court in Wischer gives the example of an accident caused by a driver on a cellphone. Under the plaintiff’s theory in Wischer, one could argue that the defendant intentionally disregarded the plaintiff’s rights by deliberately choosing to talk on the cell phone while driving, since this increases the likelihood that an accident will occur. As the court noted, this is not a proper interpretation of Wis. Stat. § 895.85(3).-10 By analogy, the volitional acts of consuming alcohol and operating a vehicle which result in an unintended injury fall short of the statutory requirements for imposing punitive damages. While negligent, consuming too much alcohol differs substantially from one who brandishes and utilizes a weapon to intentionally injure, even if the consequences of both actions are the same.

This analogy begins to weaken as the level of the defendant’s intoxication increases. Public policy suggests that there comes a point where a defendant is so intoxicated that, by operating a motor vehicle in such a condition, the defendant should be held to know that the act is practically certain to cause the accident or the resultant injury. However, these cases should be limited to situations where there are aggravating circumstances such as a highly intoxicated defendant traveling at high speeds in a residential area, or who drives the wrong way down a one way street. As at least one court has acknowledged, as the degree of intoxication increases, the need for other aggravating circumstances lessens, and vice versa.-11

It is imperative for defense counsel to show that the defendant falls closer to the left side of the “continuum” discussed above; to show that no reasonable jury could find that the defendant acted maliciously or with an intentional disregard of the plaintiff’s rights. Defense counsel should point out all of the things that the defendant was doing right at the time of the accident. This should be addressed with the defendant early on and memorialized in an affidavit for use in a motion for partial summary judgment on this issue. Specific conduct that has been cited by other courts as persuasive include the fact that the defendant was obeying the speed limit, was operating in the proper lane of traffic, was operating a properly functioning vehicle, that the defendant attempted to brake or take evasive action before the accident, or that the defendant attempted to render assistance to the plaintiff after the accident.-12

If the plaintiff is able to prove that the defendant’s intoxication and the subsequent operation of a vehicle establishes malicious or intentional conduct, he must also prove by clear and convincing evidence that such intoxication was a cause of the accident before he will be allowed to submit a punitive damage claim to the jury.-13 To hold otherwise would be to impose strict liability for punitive damages, regardless of whether intoxication was a cause of the accident.

Practically speaking, if the defendant is so intoxicated that a plaintiff is able to prove an intentional disregard of his or her rights, causation will probably not be an issue. However, that is not always the case. For example, in cases where a driver simply reaches for a Kleenex, is adjusting the radio, or dialing a cell phone, there is an argument that the accident was more likely caused by simple inattention as opposed to intoxication.

Courts have been receptive to this position. As the court noted in Lievrouw, “A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.” -14

Other courts also recognize the causation hurdle as potentially fatal to a punitive damage claim in cases involving an intoxicated defendant:

Punitive damages may be imposed only after establishing the defendant’s intoxication was the cause of the accident…It would be possible for a drunken driver to commit a negligent act in such a manner as to not indicate intoxication. For example, a drunken driver could be well within the speed limit, drive a straight line and have a rear end collision with a car stopped at an intersection. Rear end collisions are very common and are mostly due to inattention, not intoxication. In such an instance, it is extremely unlikely one could get punitive damages, and it is arguable that one should not.-15

The legislature has created criminal penalties for driving while intoxicated. However, the legislature has also decided that punitive damages in civil cases are reserved for that narrow category of cases where injury to another person is inflicted with malice or an intent to injure. At the end of the day there is a great difference between negligence, regardless of the degree of negligence, and intentionally or maliciously injuring another person. Compensatory damages are meant to deal with the former, while punitive damages are expressly reserved for the later.


1- See Lievrouw v. Roth, 157 Wis. 2d 332, 348 (Ct. App. 1990).
2- 2003 WL 22231881 ¶ 39 (Wis. Ct. App. 2003).
3- Id. at ¶ 23.
4- See Wis. Stat. § 895.85(3); Lievrouw, 157 Wis. 2d 332, 345.
5- See Wischer at ¶ 39.
6- See WI JI-CIVIL 1707.1.
7- Id. at ¶ 5.
8- See Wischer at ¶ 39.
9- Id. at ¶ 40.
10- Id. at ¶ 42.
11- See Cabe v. Lunich, 640 N.E.2d 159, 163 (Ohio 1994).
12- See Nhep v. Roisen, 446 N.W.2d 425 (Minn. App. 1989); Doe v. Isaacs, 579 S.E.2d 174 (Virginia 2003).
13- See Lievrouw, 157 Wis. 2d at 347.
14- Id..
15- See Detling v. Chockley, 436 N.E.2d 208, 211-212 (Ohio 1982) (Emphasis added) (Overruled on other grounds).