Wisconsin Lawyer
Vol. 78, No. 8, August 2005

Punitive Damages Against a Drunk Driver

by Dustin T. Woehl & James M. Ryan

driver dialing a cell phone runs a stop sign, smashes into another car, and severely injures its passengers. No reasonable defendant would seriously contest liability. If damages are not at issue, the passengers should be able to quickly settle their claims and be compensated for their injuries. However, if the defendant was drunk, a wildcard surfaces: punitive damages. Cases that otherwise would settle will be strenuously litigated if the plaintiffs and defendants have widely divergent estimations of the chance that punitive damages will be awarded. While most insurance policies do not cover punitive damages, the danger of protracted litigation becomes more acute if the defendant is able to pay a punitive damage award, through insurance or otherwise.¹ Unfortunately, parties in any given drunk driving case will seldom agree on whether punitive damages are likely to be awarded, and the problem runs deeper than optimism on either side. Rather, the inability to agree is due, in large part, to a lack of clarity in the law governing the availability of punitive damages. This confusion was introduced in 1995 when the Wisconsin Legislature codified the availability of punitive damages as part of a broader tort reform package. Section 895.85(3) of the Wisconsin Statutes makes punitive damages available in situations in which "evidence is submitted showing that the defendant acted maliciously toward the plaintiff or in an intentional disregard of the rights of the plaintiff."

Dustin T. Woehl, Pennsylvania 2000 cum laude, is an associate in Kasdorf, Lewis & Swietlik's Milwaukee office, where he practices in civil litigation. He was an editor of the University of Pennsylvania's Journal of Labor and Employment Law.

James M. Ryan, Marquette 1985, is a shareholder in the Milwaukee office of Kasdorf, Lewis & Swietlik. He practices in civil litigation with a focus on insurance and personal injury defense and has handled numerous cases involving punitive damages and drunk driving. .

For the next 10 years, lower courts struggled to determine whether defendants who cause accidents while driving drunk have acted "in an intentional disregard of the rights of the plaintiff." In Wischer v. Mitsubishi Heavy Industries America Inc. and Strenke v. Hogner, the Wisconsin Supreme Court recently addressed the standard for punitive damages. In these companion cases, the court held that a defendant acts in the intentional disregard of the rights of the plaintiff when the defendant "acts with a purpose to disregard the plaintiff's rights, or is aware that his or her acts are substantially certain to result in the plaintiff's rights being disregarded."² The court refused to fashion a bright-line rule that driving while intoxicated is always an intentional disregard of the plaintiff's rights. Rather, the court indicated that the issue must be addressed on a case-by-case basis. It held that conduct is an intentional disregard of the plaintiff's rights when the conduct is a deliberate act that actually disregards the plaintiff's rights and is sufficiently aggravated to warrant punishment. It remains to be seen whether this newly articulated standard will help parties to effectively gauge the likelihood that punitive damages will be available in any given case. After tracing the evolution of the punitive damages standard, this article addresses several issues that must be addressed in applying the current standard.

Punitive Damages for Drunk Driving Under the Common Law

Before 1995, the award of punitive damages in Wisconsin was governed by the common law. Punitive damages were available for "outrageous" conduct that was either malicious or "in wanton, willful, or reckless disregard of the plaintiff's rights."³ Thus punitive damages were allowed for conduct when "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."⁴ In drunk driving cases, punitive damages were available when there was evidence that the defendant's intoxication contributed to the accident.⁵

Enactment of Wis. Stat. Section 895.85

The legislature enacted Wis. Stat. section 895.85(3) in 1995 as part of a sweeping tort reform package. This statute provides that punitive damages are available "if evidence is submitted showing that the defendant acted maliciously toward the plaintiff or in an intentional disregard of the rights of the plaintiff." It is the "intentional disregard" part of the standard that has proved troublesome. Commentators and courts agree that the legislature intended section 895.85 to narrow the availability of punitive damages.⁶ However, in describing the level of intent necessary for punitive damages, the legislature inexplicably used a phrase that had no established meaning in Wisconsin jurisprudence: "intentional disregard."⁷ Courts therefore struggled to interpret what effect section 895.85 would have on the availability of punitive damages.

Trial Courts' Interpretation of Section 895.85

Trial courts struggled to apply section 895.85 to drunk driving cases and reached varying results. Some courts found that drinking and driving is an "intentional disregard" of the plaintiff's rights because the driver deliberately engages in dangerous conduct that jeopardizes the safety of other drivers. These decisions typically focused on the defendant's level of intoxication and history of drunk driving.

Other courts held that the particular defendant's intoxication was insufficient to show that the defendant acted in the intentional disregard of the plaintiff's rights. These decisions typically relied on Wisconsin Model Civil Jury Instruction 1707.1, which provides, in pertinent part: "A person acts in an intentional disregard of the rights of the plaintiff if the person acts with a purpose to disregard the plaintiff's rights, or is aware that his or her acts are practically certain to result in the plaintiff's rights being disregarded." Reading "plaintiff's rights being disregarded" as synonymous with "plaintiff being injured," these decisions concluded that evidence of drinking and driving, without more, does not show that the defendant was actually aware that the conduct was "practically certain" to injure the plaintiff.⁸

Appellate Decisions Bring Little Clarity

Prior to the recent decisions in Wischer v. Mitsubishi Heavy Industries America Inc.⁹ and Strenke v. Hogner,¹⁰ Wisconsin appellate courts had only touched on the 1995 punitive damages statute. The court of appeals' most thorough interpretation of section 895.85 came in its 2003 decision in Wischer, ¹¹ which the Wisconsin Supreme Court reversed in 2005.

Wischer involved the collapse of the "Big Blue" construction crane at Milwaukee's Miller Park stadium. The plaintiffs, the estates of workers killed in the accident, sought punitive damages based on the decision to lift a section of the stadium roof despite strong winds. They argued that the decision to proceed with the lift was in intentional disregard of the workers' rights because 1) it was an intentional act that 2) resulted in the disregard of the plaintiffs' rights. The jury returned a compensatory damages award of $5.25 million and a punitive damages award of $94 million.

The court of appeals held that "the phrase `intentional disregard of the rights of the plaintiff' in Wis. Stat. § 895.85(3) can only be reasonably interpreted to require either a purpose by a defendant to cause injury to the plaintiffs or knowledge that the defendant's conduct was practically certain to cause the accident or injury to the plaintiffs."¹² The plaintiffs conceded that there was no evidence that the defendants knew or had reason to know that their conduct would cause the harm. The court of appeals thus reversed the award of punitive damages.

The court reasoned that the plaintiffs' interpretation would actually expand the availability of punitive damages beyond that available before the enactment of section 895.85(3). The court cited Loveridge v. Chartier, which overturned a punitive damages award against a man who had unintentionally infected a woman with genital herpes. Under the common law, punitive damages 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."¹³ In Loveridge, the court found no evidence that the defendant knew or had reason to know that his conduct created an unreasonable and strong probability of harm. Punitive damages therefore were not appropriate. Under the Wischer plaintiffs' interpretation of section 895.85(3), punitive damages would have been available in Love-ridge because the defendant engaged in intentional conduct that resulted in the plaintiff's rights being disregarded.

The Supreme Court Weighs In

The court of appeals' decision in Wischer was the prevailing interpretation of section 895.85(3) until two recent Wisconsin Supreme Court decisions. In Strenke v. Hogner, the supreme court addressed the application of section 895.85(3) to drunk driving.¹⁴ In a companion case, the court reversed the court of appeals' decision in Wischer.¹⁵ Even after these decisions, questions remain regarding the availability of punitive damages in drunk driving cases.

Strenke involved an automobile accident caused by the defendant's drunk driving. The accident occurred as the defendant, Levi Hogner, was driving from one tavern to another tavern and turned his vehicle in front of the plaintiff's oncoming vehicle.¹⁶ Hogner's blood alcohol level after the accident was .269 percent. Strenke was injured, after which he sued Hogner, and was awarded $225,000 in punitive damages, which Hogner appealed. The court of appeals certified the case to the Wisconsin Supreme Court.

The court held that punitive damages are available under section 895.85 if a defendant "acts with a purpose to disregard the plaintiff's rights, or is aware that his or her acts are substantially certain to result in the plaintiff's rights being disregarded."¹⁷ This articulation mirrors that in the model Jury Instruction, Wis. JI-Civil 1707.1. The court also held that the defendant's conduct need not be directed at the specific plaintiff seeking punitive damages in order for the plaintiff to recover under the statute.

In Strenke, the court rejected the court of appeals' conclusion in Wischer that conduct "intentionally disregards" the plaintiff's rights when the defendant either aims to injure the plaintiff or knows that his or her conduct is practically certain to injure the plaintiff. The supreme court concluded that, because section 895.85 mentions "intentional disregard of the rights of the plaintiff," but does not mention "injury," the defendant need not intend to injure the plaintiff, but need only intend to disregard the plaintiff's rights.

The court supported this distinction by comparing the language of section 895.85 with the common law standard for punitive damages. Under the common law, punitive damages were available for conduct that was in "wanton, willful, or reckless" disregard of the plaintiff's rights. Under section 895.85, the disregard of rights must now be intentional. According to the court, under both the common law and the statute's plain language, the focus is on a disregard of the "rights" of the plaintiff, not on injury to the plaintiff. The court noted that nothing in the statute or its legislative history indicates that the legislature intended to depart from the common law and tie the availability of punitive damages to the likelihood that the defendant's conduct might injure the plaintiff.¹⁸ Rather, the court concluded "that the legislature intended to require an increased level of consciousness and deliberateness at which the defendant must disregard the plaintiff's rights in order to be subject to punitive damages."¹⁹

Strenke's Three-part Test

The supreme court set three requirements to determine when a defendant "acts with a purpose to disregard the plaintiff's rights, or is aware that his or her acts are substantially certain to result in the plaintiff's rights being disregarded." First, the conduct must be deliberate. Second, "the act or conduct must actually disregard the rights of the plaintiff, whether it be a right to safety, health or life, a property right, or some other right."²⁰ Third, "the act or conduct must be sufficiently aggravated to warrant punishment by punitive damages."²¹

The court concluded that the defendant's drunk driving satisfied all three requirements. First, the court noted that Hogner's conduct was deliberate because he was not forced to drink or drive.²² The court did not specify whether this element is meant to reflect the requirement for "the increased level of consciousness and deliberateness at which the defendant must disregard the plaintiff's rights in order to be subject to punitive damages." Instead, this element appears to be a civil version of the criminal law's "intentional act" requirement, which reflects the common-sense notion that one should not be punished for conduct that was forced or coerced. As the court of appeals in Wischer noted, reckless or negligent conduct, including dialing a cell phone while driving, is also "deliberate" or "intentional" in this sense. This requirement of deliberate conduct therefore does not seem to reflect an increased level of consciousness when compared to the behavior necessary to meet the common law standard for punitive damages. Nor will this requirement differentiate conduct that is worthy of punishment from conduct that is simply negligent.

The court held that the second requirement was met because the "act of drinking and driving disregarded Strenke's right to safety in using the highway with other motorists in sober command of their vehicles."²³ This second requirement seems to be an actual injury requirement, phrased in terms of disregarding rights instead of causing injury. This requirement also lacks any reference to the defendant's awareness. Instead, it requires only that the conduct actually disregard the plaintiff's rights. This focus on the results of the conduct rather than on the defendant's state of mind suggests that the court does not intend the second requirement to capture "the increased level of consciousness and deliberateness at which the defendant must disregard the plaintiff's rights in order to be subject to punitive damages."

The Strenke decision does not fully explore what it means for conduct to "disregard the rights" of another. In this case, the right that was disregarded was "Strenke's right to safety in using the highway with other motorists in sober command of their vehicles."²⁴ One interpretation of this is that Strenke's right to safety was disregarded when it was violated _ that is, when he was injured. As Justice Wilcox's concurring opinion notes, this interpretation is supported by the common law convention of using the phrase "disregard rights" as shorthand for "injure" or "harm" in the broadest sense as meaning any violation of a right.

However, this interpretation runs counter to the court's separation of these two concepts. As phrased by the court, the right at issue is more than the right to be free from an actual harm or injury; it is apparently the right to be free from the very risk that a right will be violated, free from the very risk of harm or injury. A defendant disregards the plaintiff's rights, then, by engaging in conduct that puts the plaintiff at risk of having a right violated.

Under this reasoning, the probability that the risk will materialize and that the plaintiff's rights will be violated does not seem to factor in. This is a direct result of the court's rejection of an "intent to injure" requirement. Under the court's analysis, it does not matter whether the actual injury was substantially certain, was probable, or was just possible as a result of the defendant's conduct. Strenke's right to be free from having drunk drivers on the road with him is equally disregarded regardless of whether any of those drunk drivers ever harms him and regardless of how intoxicated the other drivers are. In fact, Strenke's rights apparently are violated even if he never becomes aware that he shared the road with a drunk driver.

In a concurring opinion in Wischer, Justice Roggensack described the risk at issue as "the right of the ironworkers not to be subjected to conditions at the time of the lift that were substantially certain to result in injury to them."²⁵ This interpretation would reintroduce the link between the defendant's conduct and the probability of harm to the plaintiff, a link the majority in Wischer and Strenke rejected.

Last, the court concluded that Hogner's conduct was "sufficiently aggravated" to warrant punitive damages because he had four prior convictions and was very intoxicated. This is a fairly all-encompassing requirement. As Justice Wilcox pointed out in his concurring opinion to Strenke, "this `added requirement' is entirely illusory, as it is § 895.85 that describes the level of aggravation sufficient to warrant punitive damages in the first place."²⁶ In Wischer, Justice Wilcox charged that "[t]he majority in this case and in Strenke ... has written a duly enacted law of this state out of existence."²⁷ Furthermore, the conduct involved in Strenke was so egregious that, without detailed analysis or discussion, the court concluded it was sufficiently aggravated to warrant punitive damages. Thus, the decision does not offer guidance as to what other conduct might be sufficiently aggravated to justify the imposition of punitive damages.

It is not readily apparent exactly how "the increased level of consciousness and deliberateness at which the defendant must disregard the plaintiff's rights in order to be subject to punitive damages" fits into the picture. The court indicated that this increased level of consciousness is the key difference between the test for punitive damages under the common law and under section 895.85. However, the three-part test the court articulated could be read as actually shifting the emphasis away from the defendant's mental state.

For example, the court held that punitive damages are warranted if a defendant is "aware that his or her acts are substantially certain to result in the plaintiff's rights being disregarded." What does it mean to say that a defendant's conduct can be substantially certain to "result in a disregard" of the plaintiff's rights? The court did not discuss what it means to "disregard" rights. The Strenke decision refers variously to conduct disregarding the plaintiff's rights or conduct "resulting in" the plaintiff's rights being disregarded. Both variations seem to be shorthand for saying that, by choosing to engage in certain conduct, the defendant disregards the plaintiff's rights.

Thus, this "disregard" is something the defendant does. It is therefore difficult to understand what it means to require a defendant to be aware that his or her conduct is substantially certain to result in the plaintiff's rights being disregarded. The defendant either regards or disregards the plaintiff's rights. It happens, by definition, precisely when the defendant engages in deliberate conduct. The only uncertainty, the only thing that can be substantially certain to occur as a result of the defendant's conduct, is an actual violation of the plaintiff's rights _ that is, actual harm or injury.

Thus, it seems more intuitive to focus on the defendant's awareness of the likelihood that his or her conduct will result in the plaintiff's rights actually being violated. Under this approach, which the court of appeals adopted in Wischer, punitive damages would be available when the defendant knows that his or her conduct is substantially certain to harm the plaintiff, but engages in the conduct anyway. The more likely it is that harm will result from the conduct, the more reprehensible the defendant's decision to engage in the conduct. When the defendant ignores a probability, though not a substantial certainty, that his or her action will result in harm to the plaintiff's rights, the conduct evidences a reckless disregard for those rights, which was the standard for punitive damages under the common law. When the defendant knows the harm is substantially certain to follow the conduct, the defendant can be said to have intentionally disregarded the plaintiff's rights.

The court also considered whether the defendant's conduct needs to be directed at the specific plaintiff. The statute provides that "[t]he plaintiff may receive punitive damages if evidence is submitted showing that the defendant acted maliciously toward the plaintiff or in an intentional disregard of the rights of the plaintiff."²⁸ Under the statute's plain language, then, it would appear that the defendant's conduct needs to be directed at the plaintiff rather than to the world at large or at a class of people, such as all drivers on the road. This was the conclusion reached by Judge Rudolph Randa in a case in the Eastern District of Wisconsin.²⁹ Judge Randa looked to the statutory language, including its definition of "plaintiff" as "the party seeking to recover punitive damages" and held that "[t]he thing which must be practically certain is not harm in the abstract, or even harm to a certain class of people (e.g., other drivers on the road), but harm to the plaintiff."³⁰

The Strenke court, however, concluded that the defendant's conduct need not be directed at the specific plaintiff. The court noted that if the conduct needed to be directed at a specific plaintiff, then punitive damages would not be available for a wide variety of bad conduct, including conduct in the product liability context, because manufacturers would not know which particular consumer would be harmed by a product even if they might know that some consumer would almost certainly be harmed. The court concluded that the legislature did not intend to so dramatically change the standard for punitive damages, and therefore the court held that the conduct need not be directed at the specific plaintiff.

Is the Availability of Punitive Damages Narrower than Under the Common Law?

In Strenke, the court acknowledged that the legislature intended to make punitive damages more difficult to obtain than they were under the common law and noted that some conduct that would have warranted punitive damages under the common law will not warrant punitive damages under the court's interpretation of section 895.85.³¹

At the very least, punitive damages should be unavailable now if they would have been unavailable under the common law. Using Loveridge as an example, the court of appeals in Wischer argued that punitive damages actually would be easier to obtain under the plaintiff's interpretation of section 895.85 than they were under the common law. The supreme court's interpretation of section 895.85 yields mixed results in this regard. The court's initial interpretation of section 895.85 is that punitive damages are available when a defendant "acts with a purpose to disregard the plaintiff's rights, or is aware that his or her acts are substantially certain to result in the plaintiff's rights being disregarded." Under this test, punitive damages would not be available under Loveridge's facts. The court's interpretation of section 895.85 seems to require, at a minimum, that the defendant recognize that his or her conduct is risky. The defendant in Loveridge did not suspect that his conduct might infect the plaintiff _ thus he was not aware that his conduct was "substantially certain to result in the rights of the plaintiff being disregarded."

The same result can be reached under the court's three-part test under the "aggravation" requirement. The other two requirements would allow punitive damages. The sexual conduct was deliberate. Just as Hogner was not forced to drink, the defendant in Loveridge was not forced to engage in sexual conduct with the plaintiff. The plaintiff's right to physical health and safety was disregarded. Was the defendant's conduct aggravated enough to warrant punitive damages? Probably not, for the very reason that punitive damages were not available under the common law _ that is, the defendant didn't know or have reason to know that his conduct was likely to harm the plaintiff. It is arguable that conduct that would not have merited punitive damages under the common law is, per se, not aggravated enough to warrant punitive damages under section 895.85. Under this interpretation, section 895.85 would always be at least as strict as the common law test.

But will punitive damages be more difficult to obtain now than under the common law? For example, what is the implication of the court's interpretation of section 895.85 for a driver who runs a stop sign while dialing a phone? Can it be said that the driver was aware that dialing the cell phone was substantially certain to "result in the plaintiff's rights being disregarded"? If a plaintiff has a right to safety on the highway with other drivers in sober control of their vehicles, surely that right equally applies to anything that might affect the management and control of those vehicles, whether it is something as egregious as drinking and driving or something more mundane such as dialing a cell phone, drinking a cup of coffee, or speeding. Further, the driver would probably know that using a cell phone while driving is substantially certain to result in the disregard of the safety rights of other drivers _ that is, to put them at risk. Punitive damages therefore seem appropriate for a broad range of conduct under the court's interpretation of section 895.85.

Applying the three-part test could yield the same result. The conduct was deliberate _ nobody forced the defendant to dial and drive. The conduct resulted in the disregard of the plaintiff's right to safety. Is the conduct "aggravated" enough? It is hard to say because the court does not provide much guidance for determining when conduct is sufficiently aggravated to warrant punitive damages. As Justice Wilcox pointed out, this vagueness has serious due process implications because it does not give defendants advance warning of what conduct could result in punishment.³²

If the three-part test articulated by the court can disallow punitive damages for this type of conduct, it would be under the aggravation element. The appropriate aggravating factors might include the obvious danger of dialing and driving, the defendant's previous accidents, and other factors. Punitive damages would not have been available under the common law unless the driver knew or had reason to know that engaging in the distracting conduct created "a strong probability, although not a substantial certainty, that the harm will result." If this cannot be shown, it is unlikely that the conduct is sufficiently aggravated to warrant punitive damages under section 895.85.

Conclusion

Under the recent Strenke decision, punitive damages will be available whenever a defendant engages in aggravated conduct that is intended to disregard the plaintiff's rights or that the defendant knows is substantially certain to result in the plaintiff's rights being disregarded. However, the court has not specified exactly what it means for a plaintiff's rights to be disregarded and has not expanded on what qualifies as sufficient aggravation to warrant punitive damages. Nor is it entirely evident that punitive damages are more difficult to obtain now than they were under the common law. It seems that a reasonable interpretation of Strenke is that punitive damages are available whenever a defendant knowingly causes a risk of harm if the trial court finds the defendant's conduct sufficiently reprehensible. As a result of this broad discretion, it is unlikely that the punitive damages question will be answered before trial or that parties in any given case will be able to predict whether punitive damages will be available.

Endnotes

¹Brown v. Maxey, 124 Wis. 2d 426, 369 N.W.2d 677 (1985).

²Wischer v. Mitsubishi Heavy Indus. Am. Inc., 2005 WI 26, __Wis. 2d __, 694 N.W. 2d 320; Strenke, 2005 WI 25, ¶ 13, __ Wis. 2d __, 694 N.W.2d 296.

³Wis. JI-Civil 1707 (citing Brown v. Maxey, 124 Wis. 2d 426, 369 N.W.2d 677 (1985)).

⁴James D. Ghiardi & John J. Kircher, Punitive Damages Law and Practice, Ch. 5, sec. 5.01 (cited with approval in Brown v. Maxey, 124 Wis. 2d 426, 369 N.W.2d 677 (1985)).

⁵Lievrouw v. Roth, 157 Wis. 2d 332, 342, 459 N.W.2d 850 (Ct. App. 1990) (holding "driving while under the influence of an intoxicant will support an award of punitive damages in an appropriate case").

⁶Wis. JI-Civil 1707.1 cmt. 2 (1995) (noting "section 895.85(3) was clearly intended to be more narrow than the case law standard").

⁷Wischer v. Mitsubishi Heavy Indus. Am. Inc., 2003 WI App 202, ¶ 39, 267 Wis. 2d 638, 673 N.W.2d 303.

⁸See, e.g., Kannenberg v. State Farm Mut. Auto. Ins. Co., No. 02-CV-001065 (Wis. Cir. Ct. Milwaukee County Feb. 6, 2003).

⁹2005 WI 26, __ Wis. 2d __, 694 N.W.2d 320, rev'g & remanding 2003 WI App 202, 267 Wis. 2d 638, 673 N.W.2d 303.

¹⁰2005 WI 25, __ Wis. 2d __, 694 NW.2d 296.

¹¹2003 WI App 202, 267 Wis. 2d 638, 673 N.W.2d 303, rev'd & remanded, 2005 WI 26, __ Wis. 2d __, 694 N.W.2d 320.

¹²Id. ¶ 5.

¹³Loveridge v. Chartier, 161 Wis. 2d 150, 468 N.W.2d 146 (1990) (quoted in Wischer, 2003 WI App 202, ¶ 42, 267 Wis. 2d 638).

¹⁴Strenke, 2005 WI 25, __ Wis. 2d __, 694 N.W.2d 296.

¹⁵Wischer v. Mitsubishi Heavy Indus. Am. Inc., 2005 WI 26, __ Wis. 2d __, 694 N.W.2d 320.

¹⁶Strenke, 2005 WI 25, ¶¶ 4-8, __ Wis. 2d __.

¹⁷Id. ¶ 3.

¹⁸Id. ¶ 29.

¹⁹Id. ¶ 34.

²⁰Id. ¶ 38.

²¹Id.

²²Id. ¶ 55.

²³Id.

²⁴Id. ¶ 56.

²⁵Wischer, 2005 WI 26, ¶ 71, __ Wis. 2d __ (Roggensack, J., concurring).

²⁶Strenke, 2005 WI 25, ¶ 98, __ Wis. 2d __ (Wilcox, J., concurring).

²⁷Wischer, 2005 WI 26, ¶ 79, __ Wis. 2d __ (Wilcox, J., dissenting).

²⁸Wis. Stat. § 895.85(3) (emphasis added).

²⁹Boomsma v. Star Transp. Inc., 202 F. Supp. 2d 869, 881 (E.D. Wis. 2002).

³⁰Id.

³¹Strenke, 2005 WI 25, ¶ 22, __ Wis. 2d __ (legislature intended to make it harder to recover punitive damages); id. ¶ 39 (some cases that would qualify for punitive damages under common law will no longer qualify).

³²Id. ¶ 99 (Wilcox, J., concurring) (majority's reference to disregard of rights in the abstract raises constitutional questions when rights are not defined).

Wisconsin Lawyer