Putting the Punitive Back In Punitive Damages

WDC Journal Edition: Spring 2004
By: Ryan G. Braithwaite - Crivello, Carlson & Mentkowski, S.C.

The Miller Park decision-1 has provided long-needed clarity in the law of punitive damages.

The holding focuses on the meaning of “intentional disregard of the rights of the plaintiff” in Wisconsin’s punitive damages statute, § 895.85(3). The Plaintiffs argued that the intent requirement meant only that the Defendant must have intended the action that led to a disregard of the Plaintiff’s rights. The Defendants argued that intent to harm was required.

The court of appeals noted the legislature’s enactment of § 895.85(3) Wis. Stats. and the use of ‘intentional’ were designed to limit the circumstances under which punitive damages are available. Prior law had allowed punitive damages in situations where a defendant’s conduct was in reckless disregard of the plaintiff’s rights.

In the criminal context, recklessness requires the creation of “an unreasonable and substantial risk of death or great bodily harm to another human being and the actor is aware of that risk.” § 939.24(1) Wis. Stats. As noted by the court of appeals, criminal intent is a higher standard, and is defined as having “a purpose to do the thing or cause the result specified, or is aware that his or her conduct is practically certain to cause that result.” § 939.23(3) Wis. Stats.

The use of the mens rea requirements of criminal statutes is appropriate. As noted by the majority, the enactment of § 895.85(3) was a decision “to return punitive awards to its place of origin.” In the concurring opinion, Judge Fine expanded upon this point in his discussion of the assessment of punitive damages against large corporations, noting punitive damages are similar to and supplement the criminal law.

The dissent is helpful for its focus on the definition of the right being infringed, not the intent of the infringer. The plaintiffs had argued the rights under § 895.85(3) included the right to a safe workplace. This point, in and of itself, was not disputed by the defendants. Instead, the defendants argued that a violation of the right to a safe workplace was not a basis for a punitive damage award because an intentional disregard of the right to a safe workplace is not conduct egregious enough to be the basis for a punitive damage award in the absence of intent to injure.

Although the practical effect of the majority opinion is to graft the words “with intent to cause injury” at the end of § 895.85(3), that result is consistent with legislative intent and the origin of punitive damages in the criminal law. The dissent’s analysis of the distinction between compensatory and punitive damages actually serves to illustrate the inevitability of the majority’s conclusion.

After recognizing that punitive damages “are intended to punish unlawful conduct,” the dissent fails to attach any significance to that statement. The punishment of unlawful conduct is different than compensation for tortious conduct. The relatively innocuous use of “wrongful” “unlawful” and “punish” demonstrate the origin of punitive damages in the criminal law and make the use of criminal intent an appropriate standard. The recognition by the dissent that punitive damages flow from a jury’s moral condemnation only bolsters that conclusion.

Outside of the context of strict liability, the hierarchy of conduct, negligent, reckless or intentional, is the framework for the civil and criminal justice system. The requirement of intent to harm or injure reinforces the separation of these most basic principles, and properly relegates punitive damages to the realm of criminal or quasi-criminal conduct. This is necessary to avoid having punitive damages become an issue when intentional actions have resulted in unintended consequences, such as the negligent driver that causes a serious accident.

1-Wischer v. Mitsubishi Heavy Industries America, Inc., 2003 WI App. 202, ___ Wis. 2d ___, 669 N.W.2d 725

Ryan Braithwaite is an associate with the law firm of Crivello, Carlson & Mentkowski , S.C. , in Milwaukee , Wisconsin . His principal practice is in Municipal and Civil Rights Litigation in federal and state court. He is a member of the American Bar Association, State Bar of Wisconsin, Milwaukee Young Lawyers Association, and Civil Trial Counsel of Wisconsin . He has argued before the Wisconsin Court of Appeals and the Court of Appeals for the Seventh Circuit. He has authored articles for the Wisconsin Law Journal and Wisconsin Realtor Magazine. He was involved in the appeal of the largest jury verdict in Wisconsin history. As a part of his Municipal practice, he acts as a prosecutor in Municipal Court and Milwaukee County Circuit Court matters. During law school he interned with the Frank J. Remington Center Legal Assistance to Institutionalized Persons (LAIP) project, in which capacity he represented prisoners on post-conviction matters. He also spent a summer as an intern with the Walworth County District Attorney’s office.