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Wischer v. Mitsubishi Heavy Industries America9/30/2003
n of the statute would permit the request for punitive damages in almost any negligence case, contrary to the intent of the legislative enactment. For example, in a vehicle collision caused because the tortfeasor was talking on a cellular telephone, punitive damages could be sought and awarded. Under the trial court's standard, the victim could argue that the tortfeasor intentionally disregarded his or her rights by deliberately choosing to talk on the phone while driving. We hold that the intent of the legislature with respect to the new punitive damages statute was to "make it more difficult for a plaintiff to recover punitive damages." See Unified Catholic Sch. v. Universal Credit Card Servs. Corp., 34 F. Supp. 2d 714, 718 (E.D. Wis. 1999); see also Boomsma v. Star Transp., Inc., 202 F. Supp. 2d 869, 880 (E.D. Wis. 2002). As aptly observed by Marc Galanter in his treatise on punitive damages:
he heartland of punitive damages awards is in intentional torts and in cases involving financial rather than physical harm. Such cases produce punitive damages awards in larger numbers and at a higher rate than do cases involving other types of harm. In particular, the rates in personal injury cases are far lower ....
Marc Galanter, Shadow Play: The Fabled Menace of Punitive Damages, 1998 Wis. L. Rev. 1, 2 (1998) (emphasis added). In recent years, punitive damage awards have become commonplace in unintentional tort cases; however, with the passage of Wis. Stat. § 895.85(3), our legislature, as a matter of public policy, has decided to return punitive awards to its place of origin.
. During oral argument in this case, plaintiffs' counsel admitted that his interpretation of the statute would expand rather than narrow the number of cases under which punitive damages could be awarded. A member of our panel asked plaintiffs' counsel what he saw as the result under his interpretation of Wis. Stat. § 895.85(3) and Loveridge, 161 Wis. 2d 150, 468 N.W.2d 146 (1990), where the supreme court overturned an award of punitive damages to a woman whom the defendant infected with genital herpes. Loveridge noted that under the common law, punitive damages, as material here, could only be recovered if
the defendant knows, or should have reason to know, not only that his conduct creates an unreasonable risk of harm, but also that there is a strong probability, although not a substantial certainty, that the harm will result but, nevertheless, he proceeds with his conduct in reckless or conscious disregard of the consequences.
Id. at 188 (citation omitted). The supreme court held that punitive damages could not be recovered because there was no credible evidence in the record to support the conclusion that Chartier subjectively intended to injure or harm Loveridge. [The Loveridge court] also held that a reasonable person in Chartier's position would not believe that his sexual contact with Loveridge was substantially certain to result in injury or harm to Loveridge.
Id. at 189. Moreover, there was no evidence that the "defendant knew or should have known that his or her conduct created an unreasonable and strong probability of harm." Id. at 191 (citation omitted). Thus, although the defendant in Loveridge volitionally did something that caused the plaintiff to get herpes from him, the supreme court held that punitive damages could not be recovered. In the instant appeal, plaintiffs' counsel indicated that in his view of § 895.85(3), punitive damages under the Loveridge scenario could be recovered:
[PANEL MEMBER]: Would you say in Loveridge, the young man disregarded the rights of the young woman?
[PLAINTIFFS' COUNSEL]: Yes.
[P
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