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Wischer v. Mitsubishi Heavy Industries America9/30/2003
soon echoed the Wilkes principles. The New Jersey Supreme Court, for example, in 1791, approved a jury instruction that emphasized that, in determining punitive damages, the jury was "not to estimate the damages by any particular proof of suffering or actual loss; but to give damages for example's sake, to prevent such offenses in future." Coryell v. Colbaugh, 1 N.J.L. 77, 77 (1791) (first emphasis added). The Wilkes principles remain solid. Lest any doubt linger, the United States Supreme Court recently reiterated that while compensatory damages flow from a jury's factual determinations of actual loss, punitive damages are "an expression of [the jury's] moral condemnation." Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 432 (2001).
. Thus, I conclude, the majority's attempt to graft a "with-intent-to-cause-harm-or-injury" element to Wis. Stat. § 895.85(3) violates the traditional distinction between compensatory and punitive damages-a distinction that removes "harm" or "injury" from a jury's initial determination of whether punitive damages are warranted and, under Wisconsin law, relegates the intent and extent of any harm or injury to the criteria affecting a jury's subsequent determination of how much should be awarded. See Trinity, 261 Wis. 2d 333, . From Wilkes to Trinity, from 1761 to 2003, the separation is certain; the grafting cannot hold.
C. The Bottom Line - Wis. Stat. § 895.85(3) - Unambiguous or Ambiguous
. In short, whether simply following the course of what appears to be an unambiguous statute, or interpretively traveling through Wis. Stat. § 895.85(3), we arrive at the same destination. The legislature did indeed tighten the standard for punitive damages; at the same time, however, the legislature maintained the critical distinction between compensatory and punitive damages. Thus, consistent with that distinction and the traditional, sound public policy it embodies, the statute preserves the potential for punitive damages in a case where a defendant intentionally disregards rights by creating an unsafe workplace, regardless of whether the defendant intended any harm or injury to result.
II. Corporate Responsibility
. Judge Fine's concurring opinion could call for extensive, additional discussion. Here, however, I offer only a few thoughts.
. Most helpfully, Judge Fine's comments can help courts shed the polemics often included in arguments about corporate responsibility. It is safe to say, I think, that corporations are neither as demonic nor angelic as their critics and apologists claim. And corporations, I think, do not fall neatly into any political category. After all, we all have seen corporate conduct liberals applaud as well as corporate misconduct conservatives condemn.
. Corporations, I suspect, often are as good or bad, constructive or destructive, as the individuals directing their affairs. Some corporate leaders reach the right balance. Carefully attending to both community responsibility and shareholder return, they recognize that healthy communities are good for business, and good businesses help make healthy communities. Other corporate leaders, however, lose their way. They cut corners, carelessly cut jobs, give-in to greed, and break laws.
. When that occurs, as Judge Fine points out, firing a shotgun at "the corporation" may wound the innocent. Thus, carefully aimed criminal prosecution of individual corporate officers becomes all the more important. Thorough investigation and tenacious prosecution can help protect our communities from criminals who would try to hide behind their corporate veils.
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