Vol. 78, No. 10, October
Letters to the editor:
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Injury by Drunk Driving Deserves Punitive
I have just finished reading Mr. Woehl and Mr. Ryan's article on
punitive damages in drunk driving cases in the August magazine. Can any
right thinking person claim with a straight face that causing injury or
death to another by driving while intoxicated does not warrant an award
of punitive damages?
The authors raise the typical semantic arguments we've come to expect
from good lawyers. And no doubt, many of the issues raised in their
article will indeed become the subject of intense debate in courtrooms
throughout Wisconsin. But in the end, I believe, the public is fed up
with drunk drivers and the carnage they leave behind. I for one applaud
the supreme court for the Stenke decision. We can only hope
that the state legislature will follow suit with legislation to codify
Stenke's result (and remove its ambiguities).
The authors' attempts to analogize drunk driving with dialing a cell
phone are both laughable and intriguing. First, talking on a cell phone
is not (yet) illegal, whereas driving while intoxicated clearly is. A
person who voluntarily and intentionally breaks the law should not be
heard to complain about the assessment of punitive damages, but rather,
they should expect it.
But why shouldn't talking on a cell phone, or any other activity that
voluntarily and intentionally redirects a person's attention away from
the serious business of driving an automobile, not subject that person
to some level of enhanced liability in the event of death or injury?
Outlandish? Consider this - of the more than 128,000 motor vehicle
accidents in 2004, the primary cause in 19 percent was "inattentive
driving" - some 25,000 accidents could have been avoided if people
simply paid attention to their driving. No phone call is so important
that it must be made while driving. Pulling off the road to have a
conversation should not be an inconvenience for important calls. I
shudder every day as I drive along Wisconsin's expressways and see
people doing everything except attending to the serious business of
controlling an automobile.
The authors present a well written, "lawyerly" analysis of the recent
events affecting punitive damages in Wisconsin. Unfortunately, scholarly
debate will not improve the safety of Wisconsin's highways.
In 2004 in Wisconsin there were 714 fatality accidents resulting in
784 deaths. The 38,451 injury accidents resulted in 55,258 injured
persons. Of the 128,308 total motor vehicle cases in 2004, citations for
OWI were issued in nearly one-third of the cases. Wisconsin DOT
statistics indicate that alcohol was a contributing factor in 39 percent
of fatality crashes and the primary factor in 20 percent of fatality
cases. Put another way - of the 784 deaths on Wisconsin's highways in
2004, roughly 305 were at the hands of an intoxicated driver. The
impaired drivers who took those 305 lives were not merely "disregarding
the plaintiff's rights by engaging in conduct that puts the plaintiff at
risk of having a right violated" - rather, those drivers elected to
commit an illegal act, and killed 305 people. What possible course of
action warrants punitive damages more than this?
It's time for the legislature to finish what the supreme court has
started - make clear once and for all that Wisconsin takes driving
seriously, and that those who choose to make our roads more dangerous
will face not only criminal but also substantial civil sanctions for
Court's Rejection of Exculpatory
Clauses Rests on Public Policy
Having briefed and argued the Atkins case on behalf of the
plaintiffs, I respectfully differ from the analysis offered in Mr.
Pendleton's article "Enforceable Exculpatory Agreements: Do They Still
Exist?" published in August. The article's thrust is to treat this as a
drafting problem, when I believe the decision is properly viewed as
resting on public policy considerations that have long been central to
the court's analysis of these clauses.
The supreme court has consistently rejected efforts to enforce
exculpatory clauses. It has done so under a broad range of factual
contexts and in many instances in which the drafting was far more adroit
than in Atkins. The court's marked distaste for exculpatory
clauses rests on fundamental principles of tort law that require persons
who cause injuries to be held answerable for their acts, both to protect
the public at large and to secure compensation for the victims.
Proponents of these clauses will understandably point to the fact
that the court has refused to adopt a blanket ban on their use. In
practice, the supreme court has never found an exculpatory clause it
could embrace. The handful of court of appeals decisions upholding
exculpatory clauses have been in cases in which the injured person
voluntarily chose to engage in an unusually hazardous activity and
knowingly waived rights in exchange for the opportunity to do so. In our
state, those cases have uniformly involved persons with a significant
level of experience participating in motor sports. There is little in
the general body of case law to offer encouragement to those who seek to
rely on exculpatory clauses.
While the court has clearly adopted a public policy approach to this
issue, it has yet to articulate a comprehensive set of rules, preferring
to approach the issue on a case-by-case basis. I would argue that the
use of exculpatory clauses ought to be limited to situations in which
there is a demonstrated need based on the inherently dangerous nature of
the activity, or the likely inability to conduct the activity without
the use of such clauses.
The court's reference to an opportunity to bargain has produced a
good deal of consternation, as Mr. Pendleton's article noted. In my
mind, that requirement reflects the court's concern that there be a
knowing and voluntary relinquishment of rights in exchange for a
correlative benefit. Given the fact that the fundamental argument for
upholding exculpatory clauses is freedom of contract, it is certainly
not unreasonable to require that there be actual freedom of contract in
the form of bargaining.
Simply having someone execute a form as a condition of admission does
not satisfy this requirement. Nor, I would argue, does the sample waiver
language proposed in the article. Stating that costs would otherwise be
higher is not in itself enough, and unless demonstrably true will likely
cause more problems than it solves.
I believe exculpatory clauses may be enforceable under appropriate
circumstances. Those circumstances include: 1) a demonstrable need for
the exculpatory clause based on the nature of the activity; 2) evidence
of a voluntary and knowing decision by the participant to forego rights
in exchange for the right to participate in such an activity; and 3) an
appropriately drafted exculpatory clause that clearly sets forth the
basis on which the parties have entered into the agreement and the
precise nature of the rights being waived.
Based on the body of case law, which Atkins reaffirmed, it
seems unlikely that the court will approve the broad use of exculpatory
clauses in a wide range of activities involving the public at large.
Clauses that are both carefully tailored and properly drafted to address
specific needs may pass muster with the court.