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Wischer v. Mitsubishi Heavy Industries America9/30/2003
directly at a defendant's conduct. And where Wisconsin law provides the statutory potential for punitive damages to deter dangerous conduct, it does so with some regard for intent and the extent of the resulting harm or injury, but it also preserves the potential for punitive damages even in the absence of all but nominal harm or injury.
. Any possible doubt about that was recently erased in Trinity Evangelical Lutheran Church v. Tower Insurance Co., 2003 WI 46, 261 Wis. 2d 333, 661 N.W.2d 789. In Trinity, the supreme court reiterated:
The factors necessary for an award of punitive damages require a showing of: (1) evil intent deserving of punishment or of something in the nature of special ill-will; or (2) wanton disregard of duty; or (3) gross or outrageous conduct.
Punitive damages may properly be imposed to further a state's legitimate interests in punishing unlawful conduct and deterring its repetition.
Id., -46 (citations omitted). The supreme court did not add any "with-intent-to-cause-harm-or-injury" element. The state's "legitimate interests in punishing unlawful conduct and deterring its repetition," id., , remain solidly in place regardless of whether a defendant intends harm or injury to result from the disregarding of rights.
. Were this not enough, the supreme court, in Trinity, quoted, with approval, a punitive damages jury instruction that explicitly provides, "Punitive damages may be awarded, if you find that the defendant acted in an intentional disregard of the rights of the plaintiff." Id., n.5. It made no mention of intending harm or injury . The instruction then goes on to explain that " unitive damages are not awarded to compensate the plaintiff for any loss he or she has sustained." Id. (emphasis added). Then, most definitively, the instruction absolutely separates the jury's determination of whether punitive damages should be awarded (regardless of intended harm of injury), from how much should be awarded (taking harm or injury-actual and potential-into consideration):
If you determine that punitive damages should be awarded, you may then award such sum as will accomplish the purpose of punishing or deterring wrongful conduct.
Factors you should consider in answering this question include:
1. The grievousness of the defendant's acts,
2. The potential damage which might have been done by such acts as well as the actual damage, and
3. The defendant's ability to pay....
Id. (emphases added).
. The message could not be more clear: (1) Punitive damages are intended to punish unlawful conduct and deter its repetition. Id., . (2) Punitive damages serve those purposes regardless of intended harm or injury . Id., -46. (3) Punitive damages may be awarded in recognition of "the potential damage which might have been done by such acts." Id., n.5 (emphasis added). (4) The amount of punitive damages may increase if "actual damage" has resulted. Id.
. And indeed, how could it be otherwise? The separation between compensatory and punitive damages, and the potential for punitive damages even in the absence of intended harm or injury , are at the foundation of our common law. In 1763, in one of the seminal cases allowing punitive damages, Lord Chief Justice Sir Charles Pratt declared that juries have the "power to give damages for more than the injury received ... as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the action itself." Wilkes v. Wood, 98 Eng. Rep. 489, 498-99 (C.P. 1763) (emphases added).
. Early American courts
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