*1 individually, Special and as Patricia Wischer, Jeffrey Wischer, A. of the Estate of Administrator Marjorie individually, as deceased, DeGrave, Special R. the Estate of William Administrator of deceased, Dulde-Starr,
DeGrave, and Ramona Special individually, Administrator and as Starr, deceased, W. Estate Jerome Plaintiffs-Intervenors-Respondents-Petitioners,
v. Heavy America, Inc., Mitsubishi Industries Defendant-Appellant, Indemnity Company Illinois, Travelers Defendant, Defendant-Respondent, F. Lampson, Inc., Neil Insurance Lampson Ltd., Federal International Company, Fire Tokio Marine & and The Company, Defendants.
Insurance individually, Special and as Patricia Wischer, Jeffrey Wischer, of the Estate of A. Administrator Marjorie individually, and as deceased, DeGrave, Special R. Administrator of the Estate William Dulde-Starr, deceased, and Ramona
DeGrave, individually, Special and as Administrator Starr, deceased, Plaintiffs- W. Estate Jerome Respondents-Cross-Respondents-Petitioners,
v. Heavy Mitsubishi Inc., Industries America, Defendant-Respondent-Cross-Appellant, *2 The Indemnity Company of Illinois, Travelers
Defendant-Appellant, Lampson Neil F. Lampson, Inc. and International Ltd., Defendants,
Federal Company, Insurance
Defendant-Co-Appellant, The Tokio Marine Fire& Insurance Company,
Defendant. individually, Special Patricia Wischer, and as Jeffrey Administrator of the Estate of A. Wischer, Marjorie individually, deceased, DeGrave, and as Special Administrator of the Estate William R.
DeGrave, deceased, Ramona Dulde-Starr, individually, Special and as Administrator of the Estate of Starr, deceased, Jerome W. Plaintiffs-
Respondents-Cross-Respondents-Petitioners,
v. Heavy Mitsubishi Industries America, Inc., Defendant-Respondent-Cross-Appellant, Indemnity Company of Illinois, Travelers Defendant-Appellant-Cross-Respondent, Lampson F. Lampson, Inc.
Neil Ltd., International Defendants, and The Tokio Marine Company Federal Insurance Company, & Fire Insurance Defendants- Respondents-Cross-Appellants.
Supreme Court 01-0724, 01-1031, argument and 01-2486. Oral Nos. March
October 2004. Decided
Kahn, C. Will- Madison, and oral iamson. Company, Inc., there was
For Federal Insurance Christopher Mohrman, by Busch, C. John A. brief Friedrich, Timothy Hansen, & and Michael Best M. III, Michael LLP, Edward B. Milwaukee Ruff Chicago, Chartered, IL, Stouffer, & Clarke and Pretzel by argument A. Busch. oral John Company, there Marine & Fire Insurance For Tokio Jeffrey & Culbertson S. Fertl and Hinshaw a brief LLP, Milwaukee. *5 by
An amicus curiae brief was filed James A. Buchen, Madison, on behalf of Wisconsin Manufactur- ers & Commerce. by Englund,
An amicus curiae brief filed Eric Madison, on behalf Wisconsin Insurance Alliance. by
An amicus curiae brief was filed Bruce R. Bach- Hanaway Bay; Ross, S.C., huber and Green and Will- Gleisner, III, iam Milwaukee, C. on behalf of the Wis- Academy Lawyers. consin of Trial
An amicus curiae brief was filed Matthew R. Hope Goldberg, Robbins, Previant, K. Olson and Uel- Bruggeman, men, Gratz, S.C., Miller & Milwaukee, on behalf of AFL-CIO, Wisconsin State Milwaukee Build- ing & Construction Council, Trades and Wisconsin Teamsters Joint Council 39.
¶ 1. SHIRLEY ABRAHAMSON, S. C.J. This is a published appeals review of a decision of the court of affirming part reversing part judgment in in County, the Circuit Court for Milwaukee Dominic S. Judge.1 Amato, Marjorie Wischer, 2. Patricia DeGrave, and Ra- individually special
mona Dulde-Starr sued and as administrators of their deceased husbands' estates. during
Their husbands died the construction of the retractable roof of the Miller Park baseball stadium Milwaukee, Wisconsin. defendants were Mitsubishi
1 Three cases were consolidated in
ap
the "Miller Park"
Am.,
Inc.,
Heavy
Wischer v. Mitsubishi
peals,
Indus.
2003 WI
202,
App
267 Wis. 2d
Because the court did not reach the issue whether damage unconstitutional, award case was this plaintiffs' portions motion to strike supplemental of MHIA's appendix brief and Company's and to strike Federal Insurance brief on constitutional issues is moot. (MHIA) America, Inc. and others2 Industries
Heavy *6 in At the conclusion of the involved the construction. MHIA had acted "in an trial, found that jury of the of the rights plaintiff[s]." intentional MHIA for against The circuit court entered judgment $84,625,000.3 in the amount of punitive damages following defendants: original complaint The listed the America, Inc.; Heavy Property Mitsubishi Industries Travelers Co.; Indemnity Casualty Company Insurance The Travelers of Illinois; Inc.; Venture; HCH Miller Park Joint Lampson, Neil F. Co.; Builders, Hunzinger Inc. Construction Clark Construction (renamed in as The Clark Con complaint the first amended Huber, Nichols, Inc.); Inc. In the Group, struction and Hunt & Industries, complaint Heavy amended Mitsubishi Ltd. and first International, In Lampson Ltd. were added as defendants. complaint second amended the defendants were listed as: Inc.; America, Heavy Property Mitsubishi Industries Travelers Co.; Indemnity Illi Casualty Insurance The Travelers Co. of Ltd.; nois; Indemnity of Lampson International Insurance Co. America; Co.; Federal and The Tokio Marine North Insurance Fire and Insurance Co. million, punitive damages The of but as $94 awarded agreement, exposure punitive result of settlement MHIA's damages capped figure. at this lower
The parties this case entered into a series settlement agreements, during the The both before and trial. effect these agreements Indemnity Royal and Insurance was that Travelers million, Indemnity MHIA and pay plaintiffs would $7 Company payment make an immediate to the Insurance would $12,375,000 against any plaintiffs compensa- to be credited (and secret) tory damages jury. award The mid-trial MHIA, agreement plaintiffs, Indemnity between Insurance punitive damages capped also would be Company provided $84,625,000 MHIA at if it were later determined that had coverage. coverage, If MHIA did not have insurance insurance damages at million. The capped scope would be $10 coverage agreements jury's and the effect of these on the award 3. The court of reversed the appeals judgment on This punitive damages. review involves only for MHIA judgment punitive damages against and its insurers.4 receive plaintiff may punitive damages 895.85(3) (1999-2000)5 § under Stat. "if Wis. evidence is submitted the defendant showing acted mali- ciously toward the or an intentional plaintiff disre- gard plaintiff." 4. Three of law are questions presented
review:
(1) appeals Is court of correct in interpreting
Wis. Stat. to mean that a defendant injury must intend to plaintiffs cause to the *7 knowledge have practically that its conduct was injury certain to cause the accident or to the plaintiffs?6
were issues presented appeals, to the court of but those issues are in presented not this review and remain unresolved. 4 The appeals judgment court of affirmed the of the circuit compensatory damages. Compensatory damages court for are not at in issue this review.
Initially, granted this court and limited review the issue to: proof 'What is for a required plaintiff punitive to recover damages 'in phrase disregard under the an intentional of the 893.85(3)?" rights § of the in plaintiff provided as Stat. In Wis. response request by Indemnity to a Travelers Company of 25, in Hogner, Illinois to intervene Strenke v. 2005 WI 279 Wis. 52, 296, expanded 2d 694 N.W.2d this court review in this case damage to in "whether award this case is uncon- parties provided supplemental briefing stitutional." The on this issue.
5 All references to the Statutes are to the Wisconsin 1999-2000 version unless otherwise indicated. 895.85(3) Interpretation § of Stat. a of question Wis. is law independently this court decides both the circuit court
(2) Was the evidence sufficient to submit a punitive
damages jury?7 award to the question (3) If there was sufficient evidence to submit
punitive damages question jury, award to the is jury's punitive damages in the award amount of million excessive and in violation $94 process rights? due MHIA's 5. We to these respond questions as follows: (1) The court of inter- appeals erroneously 895.85(3). § Wis. Stat. In Strenke v.
preted Hogner, mandated on the same date as this this court opinion, has overruled the court of appeals' interpretation 895.85(3) § Wis. Stat. set forth in its decision instant case.8 The court of appeals interpreted 895.85(3) in § case "[t]he instant as follows: phrase 'intentional plaintiff Stat. Wis. can be inter- only reasonably either an intent preted require defendant cause to the injury plaintiffs or knowledge defendant's conduct was certain practically to cause the accident or to the injury plaintiffs."9 appeals, benefiting analyses. and court of from their Strenke v. 13, Hogner, 2005 WI 279 Wis. 2d 694 N.W.2d296. sufficiency question of the evidence to submit the punitive damages to the is a question of law that this court independently decides of both the circuit court and court of appeals, benefiting analyses. Hogner, from their v. Strenke *8 52, 2dWis. 13. ¶ 8 Wischer, Hogner, 52, 34; Strenke v. 279 Wis. 2d 267 Wis. ¶ 2d 638.
9 Wischer, 638, Although 267 Wis. 2d 5. the defendants ¶ initially appealed appeals, issues to the court of the court of appeals only interpretation addressed the of Wis. Stat. 895.85(3) § relating punitive damages. to appeals The court of 895.85(3) concluded interpretation § that its dispositive, Hogner the ¶ v. that concluded in Strenke 7. We 895.85(3) § requirement the defen- Wis. Stat. " rights disregard of the 'in an intentional dant act plaintiff a defendant act with necessitates the the rights plaintiffs purpose or be aware the to substantially certain to result or her conduct is that his disregarded."10 rights being plaintiffs Accord- in the requires ingly, a conclude that Wis. Stat. we maliciously plaintiff a defendant acted to show that intentionally disregarded plaintiff the or plaintiff, intended to cause not that a defendant injury plaintiff. harm or to the (2) suffi- conclude that the evidence was 8. We damages question award
cient to submit a jury. jury the crane have believed that could collapsed, plaintiffs it was used claimed, because as high wind-speed made, calculations were winds, no exceeded; chart limitations were and the crane's load 45-stories-high crane without wind calculations nearly lifting one million a load of was pounds billboard-size windy be an a afternoon. One need not on engineer heard all the evidence about or have speed and load limitations maximum safe wind gigantic operating gigantic crane it lifted this this as plays windy day an that wind to know load on objects Any- maneuvering important outdoors. factor in up hung laundry, art an outdoor wet set one who has display, high bridge a motor vehicle on or driven light play can with items knows the havoc wind plaintiffs heavy. that the A could find reasonable proof, proved "clear and middle had burden moot, the other rendering and did not address the other issues Wischer, 2d 1. 267 Wis. issues. 279 Wis. 2d Hogner, Strenke v.
convincing evidence," that MHIA acted in an inten- plaintiffs, tional is, MHIA that tially was aware that its conduct was substan- plaintiffs' rights being
certain to result in the disregarded. (3)
¶ 9. We decline to address the issue of the constitutionality punitive damages of the amount of the award because numerous remain issues unresolved and may are not before us. Some of those issues affect a analysis Trinity Evangelical constitutional under Luth eran Co.,11 Church v. Tower Insurance State Farm Campbell,12 Mutual Automobile Insurance Co. v. example, America, North BMW Inc. v. Gore.13For MHIA entitled to offer evidence of its net worth for the deciding consider the amount of damages? agree What effect does the secret settlement plaintiffs ment between the and MHIA have on the potential exposure for both MHIA and its insurers? outstanding 10. Given the nature of the issues, constitutionality we decline to address the of the $94 million award at this time. Accordingly,
¶ we reverse the decision of the appeals judgment court of that reversed the of awarding punitive damages circuit court and remand appeals the cause to the court of for resolution of the remaining yet and as unresolved issues.
H-i
tragic
simply.
12. The basic
facts can be stated
Jeffrey
Three ironworkers,
Wischer, William DeGrave,
approximately
Jerome
fell
Starr,
to their deaths at
11
WI
261 Wis. 2d
a time. The lifted panels. approximate largest all It had an approximate weight pounds dimen- 913,000 and the high.15 feet billboard, a 120 feet wide sions of equivalent weight represented of 285 as the The Big Blue to exactly what caused parties dispute still undisputed This section contains number collapse. are contained in the
facts, remaining relevant facts while sections to follow.
15R. 730:121.
Ford Taurus automobiles; the dimensions are similar to Boeing airplane wings.16 3V2 Obviously, moving panel
¶ 15. of this size re- quired equal purpose, a crane to the task. For this Heavy very large Mitsubishi Industries leased a crane, Lampson IIIA, Transilift 1500 Series from Interna- "Big tional.17 The Transilift Blue," was a/k/a designed by Lampson, and built F. Neil a British crane designer and manufacturer. Big special forty- Blue was a crane. It was high. only huge capable
five stories It was not lifting large ambulatory loads, but it also was virtue upon of the two crawlers which it sat. The crane could pick up *11 spot thus a load in one and move the load across ground placement by jib.18 for the boom and But being big price. specifications and mobile came at a The slope ground upon for the and firmness of the which the exacting. crane sat and moved were ¶ shipped 17. The crane was to the site and as- by supplied by Lampson sembled a crew International. Lampson provided International also a crew for the operation of the crane. Fred Flowers was the crane operator; flagger supervisor Alan Watts was the Lampson crew.19
16R. 730:121. 17The actual delivery lease calls for the of a Transilift crane, IIA Series but Lampson provided International Transilift IIIA Series crane.
[18] "The boom is the long lattice arm extending from the plastic bearing. At the joint, end of the boom ais and extending beyond joint is a shorter jib. lattice called the Any load Wischer, carried hangs the crane jib." from the 267 Wis. 2d 638, 12. For a succinct description ¶ of the crane in question, Wischer, see 267 Wis. 2d 12. 19 Wischer, 267 Wis. 2d responsibility of, and construction 18. Overall control; remained MHIA's roof of the stadium for, the manager Wayne MHIA's site Victor Grotlisch safety superintendent.20 At trial MHIA's Noel was prior plaintiffs to the on Grotlisch's conduct focused day event. event, and after the on the event, paint say, plaintiffs attempted to it to Suffice intimidating, supervi- arrogant, on-site Grotlisch as an safety. routinely disregarded workers' sor who alleged plaintiffs in the wake of the acci- further up potential cause for the tried to cover dent Grotlisch according plaintiffs, was his which, to the accident, wind-speed calculations were ensure that failure to plan. into the lift made and factored placement generally, and the
¶ 19. Construction undertakings. dangerous particularly, roof were of this Recognizing stadium, South- fact, the owner of the this District, Baseball Park Professional east Wisconsin arranged general layered commercial extensive, for. liability policies con- to cover Miller Park's insurance provided six differ- Five different insurers struction.21 coverage.22 layers ent MHIA failure to act of opinion the acts or Throughout this As discussed, including that of Grotlisch and Noel.
employees is to MHIA. We MHIA, behavior is attributable their employees interchangeably with names employees' and the use MHIA *12 liability in this case. triggered MHIA's to the conduct respect 21 the Controlled coverage was called Owners layered The the insur coverage means that Program. Layered Insurance of a In the event priority. in order of paid are off policies ance first. priority pays in line of claim, company first the insurance the insurance exhausted will Only policy after that has been pay. to required in line be company second [Owners Con coverage under "The for priority Program] was as follows: trolled Insurance trial, 20. conclusion re- At the of the compensatory damage turned a million verdict $5.25 punitive damage against and a award million of $94 MHIA. background. preceding
¶ 21. The are facts More relating lifting placement detailed to facts the roof will be discussed below relation to the analysis of whether the evidence was sufficient the jury. damage punitive question submit the award II question ¶ 22. first We turn to the the correct interpretation phrase, of the "in an intentional disre- gard plaintiff," in Wis. Stat. 895.85(3).23 court The heard both the instant case Hogner day. Strenke v. on the same Both cases on focus interpretation phrase. of this appeals ¶ 23. The court of concluded in its deci- disregard sion in the instant case that "in an intentional $2,000,000 The Travelers Indemnity Company of Illinois Royal $5,000,000 Company Insurance of America $20,000,000 Indemnity Company Insurance of North America $50,000,000 Federal Company Insurance $25,000,000 The Indemnity Travelers Company of Illinois The Tokio Marine & Fire Company $2,000,000 Insurance $75,000,000." Wischer, separate coverage MHIA, at attaches 267 Wis. 2d §895.85(3) Wisconsin Stat. reads: "STANDARD OF
CONDUCT. plaintiff may if damages receive evidence showing is submitted the defendant acted mali ciously toward or in plaintiff an intentional rights of the plaintiff." *13 rights plaintiff' "a defendant means that of the (1) general required unambiguously a have to (2) (i) specific perform either a act, an intent to (ii) knowledge injury by that act or that
intent to cause injury."24 practically certain to result act is reading appeals' of Wis. Stat. ¶ The court of 24. case is errone- in the instant in its decision Hogner.25 The v. in Strenke and was overruled
ous interpretation forth in this the statute is set correct "Notably, Hogner: opinion majority v. Strenke court's injure requirement or cause of intent to no there is [jury] the focus is on Rather, instruction. harm in the rights."26 disregard v. in Strenke concluded We legislature "[t]he Hogner intend an 'inten- did not require rights plaintiff disregard to of the of the tional "27 injury plaintiff.' In Strenke v. to 'intent to cause interpretation proper Hogner explained of the we as follows: statute act 'in the defendant requirement statute's
[T]he rights plaintiff disregard an intentional to purpose a defendant act with that the necessitates his or be aware that rights or disregard plaintiffs in the substantially to result certain conduct is her being disregarded.28 rights plaintiffs 24 Wischer, 52, (citing 17 2d Hogner, ¶ v. 279 Wis. Strenke 40). 638, 2d ¶
267 Wis. 25 52, 34. Wis. 2d Hogner, ¶ v. 279 Strenke 26 52, 37. Wis. 2d Hogner, ¶ v. 279 Strenke 52, 2d Hogner, 279 Wis. v. Strenke on 36. Strenke went Wis. 2d Hogner, v. Strenke state, 2d 38: at 279 Wis. disregard of the person intentional acts in an [W]econclude that purpose person plaintiff acts with if the *14 interpretation
¶ 25. The of the set statute forth in Hogner explanation Strenke v. is consistent with the of Jury the set forth in statute Wisconsin Civil Instruction given present 1707.1, the instruction in the case.29 Hogner, ¶ 26. Pursuant v. we to Strenke conclude appeals interpretation that the court of erred in its 895.85(3) § Wis. Stat. and that the circuit court's in- jury disregard to structions the on "intentional of the plaintiffs' rights" proper. were
HHHHHH question ¶ 27. The next is the whether evidence is question sufficient to warrant submission of the of a punitive damages jury. to the award appeals
¶ 28. The court of concluded that submis- punitive damages sion of the award of the to improper plaintiffs inasmuch as the conceded in their post-verdict summary judgment against motion for presented Federal Insurance Co.30 no evidence was rights, plaintiffs the or is that his are aware or her acts substan- tially plaintiffs rights being disregarded. certain to result in the require This or will that an act course of conduct be deliberate. Additionally, actually disregard rights the act or conduct must plaintiff, right safety, life, of the whether a to it be health or right, property right. Finally, or some other or the act conduct sufficiently aggravated punishment by puni- must be to warrant damages. tive Hogner, See Strenke v. 279 Wis. 2d 37. Wis JI — Civil 1707.1 reads as person follows: "A acts in an intentional disregard rights plaintiff if person acts with a purpose disregard rights plaintiffs to aware that is his or practically her to rights acts are certain result in the plaintiffs being disregarded."
30Wischer, Wis. 2d injure that the defendant intended to them. The circuit finding.31 made court the same appeals
¶ 29. The erred, court as we have previously explained, interpreting in Wis. Stat. 895.85(3) § require proof the defendant in- injure plaintiffs. tended to Rather, focus rights. is on the intentional According Hogner; ¶ 30. to Strenke v. defendant's act or course of conduct must be deliberate.
A defendant must be aware that or her his conduct is substantially plaintiffs rights certain to result being disregarded plaintiff safety, —the *15 property right, right. health, life, a or some other actually Furthermore, regard the course of conduct must dis- rights plaintiff. Finally, of the the act or sufficiently aggravated of course conduct must he punishment by punitive damages warrant a award.32 ¶ 31. We therefore must determine whether the presented jury evidence sufficient, to the is under a interpretation statute, correct of the to demonstrate an disregard plaintiffs intentional of the of the punitive damages ques- warrant of a submission award question, reviewing tion to the fact finder33 On this a properly court must make sure that the circuit court performed gate-keeping by ensuring its function sufficiency damages of the evidence. Punitive are not wrongdoer's merely negli- recoverable if a conduct is gent. Only wrongdoer's aggra- when the conduct is so vated that it meets the elevated standard of an "inten-
31R.886:18.
32
Hogner,
Strenke v.
2dWis.
38.
¶
Hogner,
Wangen
Strenke v.
v. Ford
42;
279 Wis. 2d
Co.,
(1980).
Motor
260, 298,
2dWis.
tional should circuit court send rights" to a damages jury.34 the issue of punitive there was sufficient evidence to Whether of a award is a question punitive damages submit that this court reviews question independently law the circuit court and the court of appeals, benefiting from their analyses.35 conduct of MHIA em- examining 33. After the circuit court concluded that the evidence
ployees, was sufficient to submit of a question award to the under its correct damages interpreta- The circuit court tion the statute.36 reasoned as follows: stage proceed-
All the has to do at this plaintiff ings prima facie He doesn't have to do is show case. anything present other than competent evidence that under support prima appropri- would facie case subject proof. testimony ate burden of on this only inherently could ... if it incred- be invaded inherently implausible, [testimony ible or and the inherently inherently implau- here is not incredible or sible.] testimony
Setting
experts
aside the
on this
subject
experts
and the references
that some of
testi-
*16
fied,
Shapiro
plaintiffs'
expert],
such as Mr.
crane
[the
aside,
just
setting
by
that
offered
the
evidence
34
Hogner,
Strenke v.
52,
279 Wis. 2d
42.
35
Hogner,
Loveridge
v.
13;
Strenke v.
2d
279 Wis.
(1991)
Chartier,
150, 187-88,
2d
37R.732:255-56. Hogner, Strenke v. 36, 38, 279 Wis. 2d ¶¶ *17 are, however, not bound this conces- We jury.39
sion.40 crane collapsed 36. The claim that the plaintiffs winds, no high wind-speed it was used because chart made, were and the crane's load calculations limitations were exceeded. consideration for crane significant 37 Wind is a intense on the central pressure Wind creates
operators. the crane.41 that connects the boom to the base of pin crane testified Howard Shapiro, plaintiffs' expert, effect of wind as follows: about the every against piece The wind acts each it, against it a exerting pressure crane a causes slightly away in the from the boom to bend direction hook, If wind. there's load on wind will blow force And the on that load and exert a on load. only the crane and connect between a load on crane itself is the hoist line. So whatever force wind on the load the hoist line and into the up exerts travels very top crane at the of the crane where the hoist line attached.42 is failed, central to the "king pin," according pin, evidence, because the wind on the load trans-
plaintiffs'
("If
Brief at 25
the trial
Appeals
MHIA's Initial Court
accurate,
plaintiffs'
court's and the
rendition of the statute is
it
to allow the
to consider
appropriate
then
damages.").
Gomaz,
State v.
302, 307,
2d
(1987) ("[T]he position retraction of its ... is a conces state's regarding question sion of law which this court is not hound to accept.").
41R.731:156.
42R. 731:126-27. *18 very top mitted force on the of the crane in a concen- very trated manner that was then transferred to the base of the crane.43
¶ 38. Given the effect of wind on a crane, the places crane comes with a load chart that limits on the really crane's use. The load chart "is the main commu- nication between the manufacturer of the crane and the you capable users of the crane. It tells what the crane is doing, up and it sets the limitations on the use of the just necessary things you crane. And those are that safely."44 have to deal with to use crane Big 39. The load chart in this case stated that speed mph, regard- Blue's maximum safe wind was 20 45Shapiro Big less of the load testified that Blue's load you're doing chart meant "that no matter what with this you're going lifting per crane, if loads, to be 20 miles speed you hour permit is the maximum wind that can during operation you or that can conduct that operation According Shapiro, in."46 as the dimensions speed the load increase, the maximum safe wind should be reduced The limitations set forth in the supposed load chart are to be factored in with consid- weight erations such as the load dimensions, speed, plan."48 wind and other conditions to form a "lift Shapiro plan testified that the lift in this case was completely inadequate and that the failure to do wind- calculations, sail is, the effect of the wind on the
43R.731:155-56.
44R.731:128.
45R.731:129.
46 R.731:129.
47R.731:128-40, 155-56.
48R.731:133. standards, OSHA industry a violation of
load, was standards, and the load chart.49 respon- showed that MHIA was 40. Evidence calculations and that Grotlisch was using
sible for wind According of lift Grotlisch's charge operations. might he aware that well result testimony, tragedy was of the roof as as 4R3 if there large from lifting piece calculations to determine was a failure to do wind-speed admitted if it safe to lift.50 unequivocally Grotlisch of the importance on direct examination his awareness of the wind:
Q: plaintiffs], told me Mr. Grot- [counsel You also lisch, per if reached 20 miles hour speeds that wind hour, any attempt to lift gusts up per with to 26 miles 4R3 be unsafe? would prior deposition], [at
A: I we discussed that believe Q: it, you to, you if I we discussed but I want know sir, could, you tell me whether or not remember it or you agree you that what told me. that's you agreed A: I believe I told that and to that.51 Q: me, not, Grotlisch, you You told did Mr. that also Park, you a lift Miller due to proceed when with at 4R3, winds, topography, variable the size of the size 49R.731:133, 140. speed In order the maximum safe R.727:41. to know wind operated, person
in which the crane could be uses being equation piece mathematical with the dimensions of the lifted, generates weight. equation as as its This well speed particular maximum safe in which that load can be wind always It to or lower than the maximum safe equal lifted. will be for the crane. R.727:42. speed, mph, wind 51R.727:41. crane, doing without effect calculations of the load, dangerous wind on that this could be a
practice?
A: Yes.
Q: It tipping over; could lead to the crane that an isn't effect?
A: That's an effect.
Q: And it also be a dangerous practice could because it could fall and kill isn't people; over that true? also A: Correct.
Q: People plaintiffs? such as the
A: That is correct.
Q: certain, reasonably you not, prior You were were 14th, July if these wind load calculations being 4R3, were not done with a piece size of only dangerous not it a practice, but was a there probability tragedy that a occur? could A: That is correct.52 *20 41. In hearing addition to Grotlisch was
aware of dangers, also heard evidence that jury neither nor associated MHIA anyone Grotlisch with International Lampson wind-speed used calculations to in determine the maximum safe wind which speed of the roof could be lifted.53 on direct pieces Again, examination as Grotlisch testified follows:
52R.727:41-49.
53R.727:49. not, me, you your January
Q: You told did ... lifted, 14th, being 4R3 was deposition that on the when might effect the wind have on you had no idea what might it affect the crane. load as to how A: Correct.
Q: speed that wind studies addressed You knew load with suspended would have on effects wind it could overturn the crane? respect to whether A: Yes.54 despite of the need heard that this awareness danger conducting wind-speed calculations, the
for potential calculations, and the for lift without speeds tragedy, failed to ask wind Grotlisch determining any speeds incorporate wind into failed to safely. could be conducted whether the lift 4R3 he the maxi- testified that knew Grotlisch Additionally, Big mph.55 Blue was 20 mum safe wind for provided Lampson that the lease from International operated of 20 crane could not be in winds excess Grotlisch, Q: you me, Mr. in that connection that it was Now told you your responsibility no one at Mitsubishi was that if knew calculations, you Lampson doing doing if these were unsure ask[,] you calculations, your responsibility to Did these that it was them? do A: Yes.
Q: didn't, you? You did No, I did
A: not. 54R.727:49-50.
55R.727:40. *21 mph.56 provided The lease also that this did not limit weights reflect the effect different and dimensional might loads have on limits, the crane's and Grotlisch he testified that was aware of fact.57 this ¶ 43. Grotlisch did not need tell him the lease to that the dimensions of the load affected the maximum speed. safe lift had Grotlisch conducted 50 lifts with other at cranes other construction He sites. was aware wind-speed need to use calculations for a safe lift wind-speed prior and had used in calculations these lifts.58 plaintiffs' primary expert, 44. The crane Sha-
piro, called Grotlisch's failures "unconscionable."59"The behavior really I on the 14th feel was I unconscionable. don't per-
understand Mr. how Grotlisch would have operation go mitted that forward face those Shapiro winds."60 characterized the failure to wind- use speed outrageous calculations the "most callous and safety experi- [he had] of workers' ever injured [had] enced .. . where someone been agreed Shapiro killed."61The could have with "playing Grotlisch was Russian Roulette" with the lives day, except, Shapiro of those at the stadium that as Shapiro explained noted, "his own."62 that on each the 56R.724:206-212.
57R.727:42.
58R.727:37.
59R.731:175.
60R.731:175. 61R.731-.175-76. 62 R.731:120. Russian Roulette is a "stunt one which bullet, spins cylinder only of a loaded revolver with one aims head, the muzzle pulls trigger." at one's American (3d 1992). Heritage Dictionary ed. *22 piece
previous times a of the roof was lifted nine factoring speed, and MHIA the wind Grotlisch without lucky. got lifted, however, 4R3 their luck the was When out. ran only ques- Shapiro witness who 45. not the lifting An the under these conditions.
tioned wisdom employed operator HCH Miller Park elevator Joint just Venture, Zeitler, that before the Heinz testified employee, Saeki, he an MHIA Harumi accident told they crazy making thought "I for the lift that were conditions]" [because and of the wind that winds getting afternoon, in the not better.63 were worse doing and calculations wind load After for him, should done had done that Grotlisch have speed Shapiro maximum that the safe wind determined agreed lifting mph.64 panel 4R3 was 11.5 Witnesses tragedy would have been averted had the lift mph.65 performed in winds of 11.5 been disagree parties ¶ 47. The and witnesses about speed time was at the of the accident. what wind mph claimed that the winds were below 15-16 Grotlisch testi- the crane went down.66Several witnesses when speed mph fied that the far exceeded the 11.5 wind speed. Shapiro was maximum wind determined safe meteorologist, Malan of 48. A local John accident, that at the time of the testified WTMJ-TV Mitchell International Airport, 9.6 from Miller miles 63R. 726:237.
64 "Q: you determine, And what did for the size of that lifted, what, any, piece being [was if crane the size 4R3? safe not to exceed with A: Eleven-and-a- speed the] wind miles half an hour." R.731:140. 65 R.731:139-140; 743:187-88; 749:112.
66 R.727:88-92. reporting mph steady, gusting Park, was winds at 21 mph.67 operating engi- Further, ironworkers and they testified neers observed winds between to 32 mph throughout gusts up afternoon, with to 35 mph.68 According to video exhibits of the construction high, flags, light poles, site, winds bushes, were with treetops blowing Shapiro the wind.69 estimated mph winds around 27 to 29 at time the accident.70 ¶ 49. The evidence showed that MHIA was aware high Occupational Safety winds. An and Health *23 (OSHA) day Administration on official site that told Wayne safety superintendent, Noel, the MHIA that a by worker a was blown off scaffold the wind.71 The OSHA official also testified that about two before hours (on Wayne lift, the munications) he heard Noel internal radio com- reports speeds state he had of wind of mph.72 32 deposition, jury, In his which was read the to supervisor reported Frazer,
Dennis the MHIA field who directly to Grotlisch, stated that about 45 minutes appeared windy lift, before the it be to "too to do the 67R.728:169-70.
68R.725:146-47, 214^-215, 225, R.727:217; 228; see also (available v.l, to Appendix Plaintiffs Brief 110-111 at Wiscon Library). sin State Law
69R.728:170, 172; 728:128-31, 161-74; 733:158-59. Shapiro R.731:165. based this calculation the on force required to the cause washer at the base of the boom fail. The range of mph any 27 to 29 took into account extra force that might have on changes been exerted the crane of in virtue runway the concrete as the tip crane started to over. 71R.728:33-34.
72R.728:72, 81, 94. Wayne spoke he with Grotlisch Noel testified
lift."73 express concern about the in the afternoon to twice speed high the winds.74 employees between 51. Communications Lampson that wind
MHIA and International stated mph gusts mph speeds of 29 to 32 were with above Danny's tragic employee An Wayne lift75 the hour before the taking Co. testified that Noel was Construction although reading anometer, with hand-held wind using an Noel denied anometer.76 by Big previous Blue, lifts 52. On all nine anyone acting MHIA did nor else neither Grotlisch purposes necessary of determin- the ing calculations for Big speed safe which Blue the maximum wind considering operate admitted not could Grotlisch asserting Lampson speed, that he assumed Inter- wind taking speed into account. Nev- national was wind according plaintiffs' evidence, Grot- ertheless, anyone Lampson International never from lisch asked wind-speed at the time about or for calculations explained that had he known that lift.78 Grotlisch Lampson neglected calculations, International had proceeded lift.79 He ex- would not have with the he plained proper that the calcula- the failure to assure *24 by agreeing "dropped that he tions were done ball."80
73R.728:284, 285.
74R.726:74^75.
75R.728:33-34.
76R.728:210. R.727:43-44, 202.
78R.727:43-44.
79R.727:117-18.
80R.727:49. ¶ 53. Grotlisch testified that it a would be con- safety proceeded scious if of workers he speeds had with the lift he observed wind in excess of 20 mph gusts mph.81 with of 26 challenged plaintiffs'
¶ 54. MHIA evidence of speed interpretations wind and offered alternative of speed of the estimates wind at time of the incident. example, Wayne testimony For MHIA relies on Noel's day that the workers in who were involved the lift that "anyone [lift] stop were told that in the room can this any any at if reason time it is unsafe continue,"82 to yet stopped one no the lift. MHIA also relies on the testimony Lampson employee of a International charge operation crane, of the mechanical Alan Watts, he assured Grotlisch that "there not were any problems with the lift."83 presented pos- MHIA also 55. evidence other (not
sible causes the incident attributable to the employees) Lampson conduct its such as (including International's alterations to the crane ating cre- unit),84 gap king pin Lampson in the equip International's failure to the crane with a tiltme- (or indicator) slope operator ter to alert the to unsafe
81R.727:94-95.
82R.726:130-31. day he R.739:ll. Watts also testified that was worried all the wind could have a bad effect and cause the crane collapse hoping and that he was that Grotlisch off would call lift. also stop Watts testified that he did not tell Grotlisch to lift because Grotlisch's and because intimidation he received obey R.744:135, orders from his bosses to Grotlisch. 84Specifically, Lampson, Neil F. Inc. made some last-minute design changes crane, including to the copper the insertion of a the point washer at where the boom is secured base. granted
circuit F court directed verdict favor of Neil *25 Danny's Company's operating conditions, Construction place in the the three deceased ironworkers decision to way contrary thereby placing in to them harm's basket, problems regulations, potential with either and OSHA's runway Big upon the concrete which construction of runway. ground or the underneath Blue moved presented Although parties countervail- 56. Big collapse, ing Blue's about the cause evidence jury apparently did have believed—and believe— could plaintiffs' explanation of the incident. Accordingly, jury could have concluded its conduct was substan- MHIA was aware that that tially being plaintiffs' rights in the certain to result disregarded. The have reached this conclu- could believing MHIA's course of conduct was that sion failing failing chart, load in to in to follow the deliberate practices other at to used with lifts adhere common failing sites, calculate the maximum safe other and to high lifting, speed a crane stories that was wind large windy afternoon, a surface area mass with on weighed pounds. almost a million that up, are the evi- 58. To sum we satisfied and factor in MHIA's failure determine dence about speed, believed, was, if under the circum- the wind present case, itself sufficient stances conduct was evidence, that MHIA was aware its substantially plaintiffs' in the certain result properly being disregarded. The circuit court therefore damages question award to of a submitted the jury. Lampson, in favor of Neil E Inc. is Lampson, Inc. This dismissal appeals to the court of still appealed an issue that was remains undecided.
IV previously ¶ 59. stated, As we we decline to ad constitutionality of dress the issue the of the amount of punitive damages the award because numerous issues remain unresolved and are not before us. Some of those may analysis issues affect a constitutional under Trin ity Evangelical Lutheran v. Church Tower Insurance Co.,85State Farm Mutual Automobile Insurance Co. v. Campbell,86 America, and BMW North Inc. v. Gore.87 of summary, respond ques-
¶ In 60. we to the three presented of tions law as follows: (1) appeals erroneously
¶ 61.
The court of
inter-
895.85(3).
§
preted
Hogner,
Wis. Stat.
In Strenke v.
opinion,
mandated on the same date as this
this court
appeals' interpretation
has overruled the
court
895.85(3)
§
Wis. Stat.
set forth in its
decision
the
Hogner
instant case.88We concluded in
v.
Strenke
that
895.85(3)
requirement
§
the
in Wis. Stat.
that
disregard
rights
'in
defendant act"
an intentional
of the
plaintiff
necessitates that the defendant
with
act
purpose
plaintiffs rights
a
to
or be aware
substantially
his
her
that
or
conduct is
certain to result
plaintiffs rights being disregarded."89
in the
Accord-
ingly,
requires
we conclude that Wis. Stat.
a
plaintiff
maliciously
to show
a
defendant acted
plaintiff
intentionally disregarded
toward the
or
85
46,
333,
2003 WI
261 Wis. 2d
cause (2) that the evidence further conclude We damages award sufficient to submit jury. question could have believed compute get employees MHIA not did speed for of maximum wind safe needed calculations lifting high operating a crane 45 stories while nearly pounds in a one million load billboard-size *27 windy afternoon. (3) address the issue 63. decline to We damages punitive
constitutionality of the amount the remain and numerous issues unresolved award because are not before us. Accordingly, of the court of the decision
appeals to the and the cause is remanded reversed is remaining appeals and for as court of resolution yet issues. unresolved appeals
By of the court the Court.—The decision the court of and cause remanded to is reversed the is appeals. participate. not DAVIDT. PROSSER did
Justice (concurring). I CROOKS, PATRICK J. 65. N. paragraphs join majority opinion, except 9 and the correctly interprets majority present case, 59. In the correctly concludes and Wis. Stat. punitive present there sufficient evidence majority jury. damages then However, the issue to the constitutionality of the $94 declines to address Majority op., punitive damages ¶¶ 9, 57. million award. using punitive damages award, I would review Trinity Evangelical by in this court factors articulated Co., 46, v. Insurance 2003 WI Lutheran Church Tower the United 2d 661 N.W.2d 261 Wis. Supreme States Court State Farm Mutual Automo- (2003) Campbell, bile Insurance Co. v. 538 U.S. America, Gore,
BMW North
Inc. v.
¶ 67. PATIENCE DRAKE ROGGENSACK, J. curring). majority opinion concludes that "Wischer") plaintiffs (collectively submitted sufficient question damages go evidence for on to the jury, majority op., agree. ¶ 8, I a conclusion with which separately disagree I write I concurrence because majority's agree with the rationale. I also with the majority's declining decision to address the issue of the constitutionality punitive damages of the amount of the award because of numerous unresolved issues that are not before us.
I. OF EVIDENCE SUFFICIENCY question regarding punitive damages may ¶ 68. A jury be submitted to if a reasonable find could *28 punitive damages from the evidence that entitlement to proven by convincing has been clear and evidence. See Hogner, ¶ 25, Strenke v. 41, 52, 2005 WI 279 2d Wis. question 694 N.W.2d296. This is a of law that we review Co., de novo. v. See Walter Cessna 121 Wis. 2d Aircraft (Ct. 1984). App. 221, 231, 358 N.W.2d816 The evidence satisfy must be such that it is sufficient to Wis. Stat. 895.85(3) (1999-2000)1 § proving as an intentional dis regard rights plaintiff. Apex Corp. of of the Elecs. v. (1998). Gee, 378, 217 2d n.14, Wis. 389 577 N.W.2d23 Section states: subsequent All references to the Wisconsin Statutes are to
the 1999-2000 version unless indicated. otherwise if may damages evidence punitive receive plaintiff acted mali- showing that the defendant submitted
is in an intentional disre- ciously plaintiff toward plaintiff. gard 896.85(3), only an Wis. 69. Pursuant to Stat. rights, compared disregard a as with of intentional support rights, disregard of an of will award reckless damages. punitive a Therefore, we are faced with when challenge was sufficient to whether the evidence damages jury, question to the we a on submit required to the relevant are to examine evidence Processors, Inc. v. of Allied mind. See defendant's state App Co., 129, Nat'l Mut. Ins. 2001 WI Western through the Here, we do so 2d 629 N.W.2d329. Wis. Heavy agents Industries actions of of Mitsubishi (MHIA) charge then in America, Inc. who were Walter, at 121 Wis. 2d lift. an intentional dis- have concluded that 70. We may by proof person
regard aware that "is be shown substantially certain to result his or her conduct is that being disregarded." fights plaintiffs Strenke, 279 in the added). satisfy (emphasis ¶52, In order to 2d Wis. requisite requirement and establish this awareness plaintiff mind, must show intentional state (1) of what facts that the defendant was aware both: substantially to cause were certain (2) plaintiffs rights defendant was aware examination that those at time of the conduct under us, in the case before Wischer Therefore, existed. facts evidence to the to show have submitted must (1) speed of what level of wind that: MHIA was aware (2) dangerous lift too undertake would make the speeds the lift wind at the time of MHIA was aware permissible Stated other- in excess limits. were then speeds that too is of wind were wise, it the awareness *29 dangerous lift, the of at time the which MHIA is deemed through supervisory to have the facts known to its employees, that determines of the nature MHIA's con- duct at the time the accident, i.e., of whether the conduct was reckless intentional. argues us, In the case before Wischer substantially
MHIA was aware that its conduct was plaintiffs' rights being certain to result in the disre- garded. right right that is at is issue here the subjected ironworkers not to be to at conditions substantially of time the lift that were to certain result injury in to them. In order to establish that MHIA had requisite provide state mind, of Wischer had to testimony supervisory employee credible that a of authority stop MHIA, who had the lift, to was aware speeds safely of what wind could be not exceeded and supervisory employee that at the time of lift, speeds knew the wind exceeded those limits. Awareness speeds necessary of the wind of at time the lift is conducting establish that the lift under wind conditions disregard then existence was an intentional rights, disregard Wischer's than a rather reckless rights. those superintendent, Grotlisch, 72. Victor MHIA site Wayne safety
testified if Noel, either he or MHIA superintendent, speeds had wind observed in excess of per gusts per hour, 20 miles hour, with 26 miles yet proceeded lift, with the that would have been a safety conscious of the ironworkers.2 provided testimony Therefore, MHIA, itself, that sus- 2 Grotlisch testified that he believed the wind speeds were per to 17 miles hour at the time of the lift. Noel also denied hour, speeds per awareness wind of 20 miles excess which he said the wind limit for man-baskets that were used during the lift. *30 per hour created in excess of 20 miles
tained winds proceed dangerous the lift. to with too conditions largely majority opinion on the focuses 73. showing testimony expert and on of Grotlisch conduct done, have been but calculations should that wind-load doing, had fails that MHIA In so it to show were not. speed requisite at time of of the wind the awareness the necessary prove to the in order lift, which fact is the by required mind Stat. state of Wis. intentional 895.85(3). testimony record there is the However, authority stop lift had to and also had Noel speeds requisite at the time awareness of wind part through explained trial, at He this lift. following adverse examination:
Q: authority Mr. have to shut down Did Grotlisch go? lift if it to he felt was unsafe Yes, have, yes, he that could A: was one ones
sir.
Q: you And were also one of them? Yes,
A: sir. Q: consulting you with Vic- Could do that without
tor Grotlisch? try players, A: I include all the team sir. would Q: is, my question you, you if felt— But could Yes, could, anybody A: sir. speed at that he not know that the wind
Noel said did too at a level that would be the time of lift was proceed dangerous However, the lift. Michael with Ellison, an ironworker who was familiar with Noel's present radio instructions and was when the accident approximately occurred, stated that 90 minutes before report speeds the accident he heard Noel wind clearly permissible were over the limits set Grotlisch and Noel. Ellison testified as follows:
Q: Ellison, Mr. at approximately 3:30 p.m., you did Wayne
also hear Noel make a statement on the radios? Yes, sir,
A: I did. Q: And you please would jury tell you what
heard Wayne from Noel over the radio at that time? said, gentlemen,
A: He I you would like for to know I reports have speeds wind of 32 per miles hour.
While Ellison cross-examination tried to show that mistook the voice another for Noel, and that the time may at which he said he heard Noel not have been precise, jury accept was entitled Ellison's state- ment as Noel's awareness that at the time the lift was ongoing gusts per there were wind of 32 miles hour.
¶ 75. The was also entitled to believe Robert hearing Becker, an ironworker who testified to Noel on only causing radio one hour before the failed, crane the three men in the man-basket to fall. He testified:
Q: ... you [D]id hear communication made
Wayne Noel over the radio? Yes,
A: I did.
Q: that? And when was collapse. an hour before the Approximately A: the crane and Q: Okay. And that time where was at piece? the roof target approximately It 20 feet from
A: area. day,
Q: and on that you, prior And had on occasions the radio? Wayne heard Noel's voice over Yes, I A: had.
Q: recognize voice? you And were able to his Yes, A: I had. radio
Q: you did hear from Mr. Noel over the What at that time? *32 at 26 to He stated that we had sustained winds
[A] an hour. miles testimony jury had it Therefore, 76. the before lift, called off the was aware Noel, who could have per doing in in excess of 20 miles hour a lift winds any doing unreasonably dangerous, even without was Additionally, jury heard calculations. the wind-load testimony that at the time that Noel was aware speeds per accident, This exceeded 20 miles hour. wind jury from which a reasonable is sufficient evidence convincing by standard of find, the clear could proof, its conduct was that MHIA was aware that rights being substantially to result Wischer's certain disregarded. Accordingly, question I conclude that the punitive damages properly on submitted for consideration.
II. UNRESOLVED ISSUES majority ¶ 77. The declined to address issue of constitutionality of the amount of the damages award because of numerous unresolved issues giving examples that are not us, before two of issues impact analysis that could a constitutional I award. also note that whether the decedents were employees loaned of MHIA and therefore barred from bringing against remedy claims MHIA the exclusive Compensation rule of the Worker's Act, Wis. Stat.
§ 102.03(2), impact is an unresolved issue that could punitive damages award. Upon foregoing respectfully reasons, I
concur. (dissenting). major 79. JON E WILCOX,J. ity Hogner, in this case and in Strenke v. 25, 2005 WI duly Wis. 2d 694 N.W.2d has written a enacted law of this state out of existence. It is undis puted legislature enacting that the clear intent of the 895.85(3) (1999-2000)1 § Wis. Stat. was to restrict the punitive damages number cases in which could be by imposing recovery awarded a threshold for the damages higher such than that which was set under our However, common law. as this case illustrates, majority interpreted applied has in a indistinguishable manner that is from our common-law doing majority standard. In so, has thwarted the 1 All references *33 to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted. (as by represented people of this state of the
will legislature) damages recovery punitive more of to make difficult. presents tragic Although facts, the
¶ 80. this case defendant, most, at constitute reckless actions of the certainly plaintiffs are entitled to be The behavior. compensated occasioned for their losses However, defendant's conduct actions. defendant's support case, in punitive sufficient to an award this while simply damages law, no under our common is adequate support punitive longer an award of dam- following legislature's ages enactment 895.85(3). § clearly conduct falls 81. Because the defendant's awarding lower, common-law standard for
within the punitive damages, majority's allowance of 895.85(3) § highlights damages in its this case under interpretation and the fact that erroneous of the statute statutory supposedly has rendered the stricter stan it punitive damages indistinguishable for from the dard majority's interpretation common-law standard. 895.85(3), § application puni so as allow for damages that, most, on conduct at consti tive based disregard plaintiffs' rights, a reckless of the is tutes a nullity. the court has rendered clear evidence that I 895.85(3) provides: plaintiff "The 82. Section
may
punitive damages if
receive
evidence is submitted
maliciously
showing that the defendant acted
toward
plaintiff
an intentional
plaintiff."
contrast,
In
common law
our
allowed
showing
punitive damages upon
wanton, wilful,
"a
*34
disregard
plaintiffs rights."
or reckless
of the
Kink v.
(1965).
Combs,
65, 79,
28 Wis. 2d
135 N.W.2d789
depth my
¶ 83. As discussed in
concurrence in
today's companion case, Strenke,
¶52,
279 Wis. 2d
68
(Wilcox,
concurring),
phrase "disregard
J.,
plaintiffs rights" under the common law was utilized as
describing
types
"a shorthand for
all of the various
of
giving
punitive damages
coupled
harm
rise to
when
appropriate
with the
mental state of the defendant."
majority's
interpretation
premised
The
is
faulty
on the
notion that our common law allowed for
recovery
punitive damages
recklessly
if an individual
disregarded plaintiffs
rights. Contrary
abstract
to the
majority's position,
required
our "common law
more
showing
recklessly
than a
the defendant
disre
garded
plaintiffs 'rights'
in the abstract
in each
particular
Id.,
case."
68. Under the
law,
common
"we
[ed]
knowledge
focus
on the defendant's
and state of
[injury]"
evaluating
mind at the time of the
when
evidence[d]
whether his "conduct
a reckless indiffer
plaintiffs rights."
ence to or
Brown v.
(1985).
Maxey,
426, 434,
2dWis.
[P]unitive were allowed under the common if knowledge law the defendant acted apprecia- with tion that his conduct created an unreasonable risk of harm and that a strong probability there was that harm phrase "rights would result. While the of others" was general used in a types sense to include the various injuries give damages, that could rise to punitive case, each on particular we focused harm caused "willful, wanton, phrase
the defendant's conduct. knowledge of or reckless" referred to the defendant's knowledge of harm —his that his conduct the likelihood "strong probability" that harm would created at least result. omitted). (footnote (Wilcox, concurring)
Id., ¶
J.,
¶ 84. The circumstances under which
*35
damages
under our common law were
could be awarded
punitive damages
aptly
in a
treatise writ-
summarized
by Marquette University
professors
ten
two
Law School
repeatedly
upon by
discussed, cited, and relied
that was
relating
both our case law
punitive damages:
instructions
varying
The conduct
terms describes is
which
generally
types.
of two distinct
With
first
defendant
to cause the harm sustained
desires
substantially
or
that
the harm is
plaintiff,
believes
certain to follow the conduct. With the second the
knows,
know,
or should have reason to
not
defendant
only that the conduct creates an unreasonable risk of
harm,
strong probability,
but also that
there is a
al-
though
certainty,
not a substantial
that the harm will
and, nevertheless, proceeds
result
with the conduct in
disregard
consequences.
reckless or conscious
of the
Kircher,
D.
1
Dam-
James
Ghiardi & John J.
Punitive
(1996)
added).
§
ages
(emphasis
5.01,
L. & Prac.
at 8
phrase
Thus,
'willful, wanton,
"the
or reck-
disregard
rights'
less
meant
that
the defendant
engaged
knowledge
apprecia-
in a
act with
volitional
an
risk of
tion that his conduct created
unreasonable
strong probability
harm
harm and that there was
that
(Wilcox,
Strenke,
J,
52,
would result."
279 Wis. 2d
68
concurring).
e.g., Loveridge Chartier,
See,
v.
161 Wis. 2d
(1991); Maxey, 124
at
150, 188, 468
Wis. 2d
N.W.2d
Shimanski,
433-34;
Lundin v.
124 Wis. 2d
(1985).
specifi-
n.14,
Indeed,
368 N.W.2d676
this court
cally
punitive damages
appropriate
held that
were not
if
the defendant did not know that his conduct created a
strong probability
plaintiff. Loveridge,
of harm to the
¶ 86. Once one understands the mean- ing application phrase "disregard of the plaintiffs rights" under the common law, the result of legislature's availability decision to remove the punitive damages where the defendant acted in a "wan- plaintiffs ton, willful, or reckless" 895.85(3) enacting becomes clear. In and re- quiring "intentionally" disregard that the defendant plaintiffs rights, legislature "heightened the state of required mind of the actor and left intact the link between the actor's state of mind and the likelihood of (Wilcox, Strenke, the harm." 279 Wis. 2d J., concurring). "[s]ection requires Thus, consequences the defendant intend the of his actions— plaintiff is, intend to harm the order to be —in *36 punitive damages." (Wilcox, liable for concurring). Id., J., 895.85, [W]ith § the enactment longer of it is no suffi- cient the defendant to know or have reason to know "that conduct an harm, creates unreasonable risk of strong [and] also that there is a probability, although not a certainty, substantial that the harm will result." Kircher, James D. Ghiardi & John J. 1 Punitive Dam- (1996). ages 5.01, § L. & Rather, Prac. at 8 following the 895.85, § enactment of necessary it is that the defen- knowledge dant have there is a cer- "substantial tainty" that harm will result from his conduct. (Wilcox, concurring).
Id., ¶ J., phrase In words, other if the "reckless dis- regard plaintiffs rights" of the under the common law or
meant "the defendant knew should have known strong or her conduct created an unreasonable and his Loveridge, probability 191,2 harm[,]" 161 Wis. 2d at phrase disregard then the "intentional 895.85(3) § plaintiff' mean that under must very least, defendant, at the knew his conduct was injury substantially in harm certain to result to the plaintiff.
HHhH parses legal jargon, ¶ 88. If one the shroud of posturing, Strenke, rhetoric in and in this case really majority what a punitive of this court has done is to allow damages under in the same cir- they in which were under our cumstances allowed plaintiffs' common law. This is because the own evident case characterization of defendant's conduct this squarely that such conduct falls within demonstrates awarding punitive the lower common-law threshold for damages. plaintiffs oral 89. As counsel for the indicated at
argument, the evidence in this case established that the employees proceeded ques- defendant's with the lift in They "despite potential for harm." tion knew the danger speed, "the wind were aware of that was obvi- performing killed, and, that someone could be ous" lift, a "conscious proceeding exhibited workers' safety." question lift in Aware that with the they "probably tragedy," would cause acted deliber- ately proceeding short, In in nonetheless with lift. they proceeded were "aware risks notwith- standing the risks."
2 426, 433-34, Maxey, See also Brown v. 124 Wis. 2d 369 (1985). N.W.2d 677
48 characterization of the defendant's 90. This perfect description lower, conduct is a common- requirement recovering punitive damages. law Un " '[rjeckless law, common indifference to the der the in of others conscious action deliberate disregard provide necessary [could] them ... of damages.'" Wangen justify punitive state of mind to v. Co., 260, 267, Motor 2d 294 437 Ford Wis. N.W.2d (1980) (Second) § (quoting Torts, 908, Restatement of (1977)). cmt. b. safety conduct actor's is reckless having knowing
of another if he does an act... of lead a reason to know facts which would reasonable realize, only man to not that his conduct an creates another, physical unreasonable risk of harm to but also substantially greater that such risk is than that which negligent. necessary is to make his conduct (Second) (1965). § of Torts Restatement words, here, defendant, In other " purpose through employees, 'a to take its acted with Wangen, perpetrating injury.'" known chances an (quoting Schulze, 2d at 274 Bielski v. 16 Wis. 2d Wis. added). (1962)) (emphasis That
14-15, 114 N.W.2d105
defen
is, the evidence in this case establishes that the
"realize[d]
[it]
or,
kn[ew],
dant
from facts which
should
strong
[was]
probability
[have] realize[d] that there
(Second)
[could]
that harm
result." Restatement
(1965)
§
(contrasting
disre
Torts
cmt. f
reckless
misconduct).
gard
safety
intentional
with
type
clearly
of conduct
would
92. While this
awarding puni-
met the common-law standard for
have
legal
damages,
may,
in the view of some
tive
community,
deserving
punishment,
apply
we must
be
legislature
has written. As
the statute
recovering
heightened
unquestionably
the standard for
*38
punitive damages, conduct
that would have fallen
category
awarding
within the lowest common-law
punitive damages
plaintiffs
reckless
—a
simply cannot be sufficient for an award of
—
punitive damages
provided by
under the standard
allowing punitive damages
In
statute.
to be
in
awarded
majority
legisla-
case,
this
has lowered the bar the
§
enacting
ture raised when
and has thus
nullity.
rendered
statute a virtual
hHhHhH
explained
appeals
above,
93. As
the court of
correctly
895.85(3),
the instant case
concluded that
properly interpreted,
[s]
"require
either an intent
injury
plaintiffs
knowledge
defendant to cause
to the
or
practically
that the defendant's conduct was
certain to
injury
plaintiffs."
cause the accident or
to the
Wischer v.
Heavy
App
Am., Inc.,
Mitsubishi
Indus.
2003 WI
Applying
¶ 5,
2dWis.
¶ In order to obtain insurance avoid the intentional acts exclusion of one of the policies, plaintiffs defendant's insurance strenu- ously argued in the circuit court that the defendant's conduct did not rise to the level of an intent to cause any harm: "Nowhere the record is there evidence employees subjectively that the MHIA intended to bodily injury cause to the . . . decedents. Federal cannot any injury substantially show that to the decedents was employees' certain to occur from the MHIA In acts." they addition, stated:
There no permit is evidence to a reasonable conclude that the MHIA employees intended to cause they bodily injury to the decedents or knew injury bodily to the decedents should have known substantially from their acts. certain follow Grotlisch, testimony [that None of this Victor *39 Keefe], however, Shapiro, Howard William is suffi- cient, combination, by itself or in to establish that July 14, [sic] MHIA's acts on 1999 were employees bodily injury. substantially certain to result testimony not to create an issue of is even sufficient fact on the matter. they "[n]one Furthermore, contended that 95. testimony [sic] that there
of Grotlish's ... establishes certainty bodily injury that would substantial . . The fact that was in the zone of occur. danger . Grotlisch that
indicates that he could not have believed certainty injury there was a substantial would occur." plaintiffs' arguments such, As own foreclose qualifies
any possibility defendant's conduct that the damages reading a correct under 895.85(3). majority § erro- Therefore, because the has applied neously interpreted it in a no different from the common-law manner is awarding punitive damages, respectfully I standard for dissent.