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Wischer v. Mitsubishi Heavy Industries America9/30/2003
does so, however, it should not embrace the majority's analysis lest it upend fundamental, well-settled principles underlying the essential difference between compensatory and punitive damages.
. I write separately, therefore, to explain that Wis. Stat. § 895.85(3): (1) if deemed unambiguous, cannot mean what the majority claims; and (2) if deemed ambiguous, could mean what the majority claims but, consistent with the logic underlying the difference between compensatory and punitive damages, probably does not. Further, in light of Judge Fine's concurring opinion, I shall comment briefly on the importance of prosecuting corporate officers who try to hide their crimes behind corporate veils.
I. Wisconsin Stat. § 895.85(3)
. Quite properly, the majority focuses on the words of Wis. Stat. § 895.85(3): "The plaintiff may receive punitive damages if evidence is submitted showing that the defendant acted maliciously toward the plaintiff or in an intentional disregard of the rights of the plaintiff." (Emphasis added.) Quite curiously, however, the majority, despite concluding "that the statute is not ambiguous," majority at , embarks on the kind of long, interpretive cruise generally reserved for judicial travelers viewing ambiguous statutes.
. So, although portions of its analysis are helpful, the majority's statutory discussion, as a whole, is internally inconsistent, confusing and, ultimately, incorrect. Accordingly, if only to advance the discussion of what, no doubt, will call for supreme court review, let me try to re-align the analysis.
A. Wisconsin Stat. § 895.85(3) - Unambiguous?
. The majority says Wis. Stat. § 895.85(3) is unambiguous. But, in the midst of so much uncertainty in these appeals, perhaps the only certainty is this: if Wis. Stat. § 895.85(3) is unambiguous, it supports the plaintiffs. The analysis is simple and clear.
. The statutory words at issue are: "or in an intentional disregard of the rights of the plaintiff." The statute says nothing about "harm" or "injury," intentional or otherwise. And Wis JI-Criminal 1701.1 doesn't either; it elaborates: "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" (footnote omitted). In this case, the plaintiffs accept the unadorned statutory language; the defendants, and now the majority, do not.
. The plaintiffs' premise is, in part, that "rights" under Wis. Stat. § 895.85(3) includes the right to a safe workplace. That part of their premise is unremarkable; the defendants do not dispute it. The plaintiffs' premise, however, also includes the understanding that, under the statute, their right to a safe workplace may be intentionally disregarded, such that punitive damages may be warranted, regardless of the defendants' intent to cause harm or injury . They explain:
Intent to cause physical injury is not necessary to intentionally disregard rights. This case is a perfect example, where there was a pattern of exposing workers to great risk by knowingly operating in unsafe conditions. Each time, workers' rights were disregarded, even if no injury occurred. When the decedents were killed, [Mitsubishi's] conduct exposed it to punitive damages under § 895.85(3). There is no basis to say that in a personal injury case, the statute requires an intent to cause physical injury when the statute contains no such distinction, and such intent has not been required in the cases previously decided under § 895.85(3), regardless of the liability theory.
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