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    Robert StackMichael Riley

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    Wisconsin LawyerWisconsin Lawyer
    Vol. 78, No. 10, October 2005


    Letters to the editor: The Wisconsin Lawyer publishes as many letters in each issue as space permits. Please limit letters to 500 words; letters may be edited for length and clarity. Letters should address the issues, and not be a personal attack on others. Letters endorsing political candidates cannot be accepted. Please mail letters to "Letters to the Editor," Wisconsin Lawyer, P.O. Box 7158, Madison, WI 53707-7158, fax them to (608) 257-4343, or email them.

    Injury by Drunk Driving Deserves Punitive Damages Award

    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 their conduct.

    Robert Stack

    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.

    Michael Riley