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Wischer v. Mitsubishi Heavy Industries America9/30/2003
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(Emphasis added.) The defendants disagree; they contend that for the right to a safe workplace to be disregarded, harm or injury must be intended.
. Clearly, if the statute is unambiguous, the defendants are wrong. Their position would require the addition of essential words: "with intent to cause harm or injury ." The majority simply does not explain where it has located those missing words or how it can graft them to the statute. Thus, if the majority is correct in concluding that Wis. Stat. § 895.85(3) is unambiguous, the plaintiffs' statutory argument prevails.
B. Wisconsin Stat. § 895.85(3) - Ambiguous?
. If, as the defendants contend, "with intent to cause harm or injury " must be grafted to the statute, it could only be because "rights" is ambiguous and courts, interpreting far beyond the face of the statute, say it must be so. So let us consider that and, in doing so, let me try to locate the best theory I can to support the majority's view. And then let us see if the theory holds.
. The majority relies on jury instructions and a note to one of them. Here, the majority finds some support (but not quite where the majority leans).
. First, the majority points out that Note 2 to Wis JI-Civil 1707.1 declares that the statute "was clearly intended to be more narrow than the case law standard." But that does not advance the analysis of the parties' dispute. After all, no one is contending that the statute fails to do that. All agree that the statute has tightened the standard for establishing "intentional disregard." The issue, however, is whether, somehow, the intentional disregarding of "rights" necessarily includes the intent to cause harm or injury .
. Second, and far more helpfully, the majority notes that Wis JI-Civil 2001 defines "intent" in a way that carves away negligence by explaining that if a defendant's conduct "merely created a risk of some harm to someone, which may or may not have resulted, then (defendant)'s conduct was negligent as opposed to intentional." That, then, may set the foundation for the syllogism essential to the defendants' position: (1) Wis. Stat. § 895.85(3) requires an "intentional" act; (2) Wis JI-Civil 2001 provides that creating "risk," without intending "harm," is negligent, not intentional; and, therefore (3) the intentional disregarding of rights, under § 895.85(3), necessarily includes intending "harm."
. So what's the problem? Well, in the first place, this is the only authority the majority can locate for its grafting. This single, tangentially-related jury instruction is, I think, a terribly thin thread from which to hang the full, framed portrait of punitive damages. And, in the second place, the majority's theory-interpretively adding "with intent to cause harm or injury " to the statute-makes little sense. To add these words is to obliterate the most fundamental difference between compensatory and punitive damages. Let's examine that.
. The majority maintains that the evolution from the common law to the 1995 statute supports the defendants' position. But that begs the obvious question: If the legislature, in addition to tightening the standard, also wanted to require intended "harm" or "injury," why didn't it say so? Why didn't the legislature add the simple words, "with intent to cause harm or injury "? As the parties explained to this court, the legislative history does not answer. It seems, however, that law and logic do.
. Law, addressing "harm" or "injury," enters the realm of compensatory damages, and does so regardless of intent. But law, addressing the "intentional disregarding of rights," see Wis. Stat. § 895.85(3), points
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