Wisconsin Statutes & Annotations
Chapter 895 - Damages, liability, and miscellaneous provisions regarding actions in courts.
895.043 - Punitive damages.

895.043 Punitive damages.
(1) Definitions. In this section:
(a) “Defendant" means the party against whom punitive damages are sought.
(b) “Double damages" means those court awards made under a statute providing for twice, 2 times or double the amount of damages suffered by the injured party.
(c) “Plaintiff" means the party seeking to recover punitive damages.
(d) “Treble damages" means those court awards made under a statute providing for 3 times or treble the amount of damages suffered by the injured party.
(2) Scope. This section does not apply to awards of double damages or treble damages, or to the award of exemplary damages under ss. 46.90 (9) (a) and (b), 51.30 (9), 51.61 (7), 55.043 (9m) (a) and (b), 103.96 (2), 134.93 (5), 146.84 (1) (b) and (bm), 153.76, 252.14 (4), 252.15 (8) (a), 610.70 (7) (b), 943.245 (2) and (3) and 943.51 (2) and (3).
(3) Standard of conduct. The 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.
(4) Procedure. If the plaintiff establishes a prima facie case for the allowance of punitive damages:
(a) The plaintiff may introduce evidence of the wealth of a defendant; and
(b) The judge shall submit to the jury a special verdict as to punitive damages or, if the case is tried to the court, the judge shall issue a special verdict as to punitive damages.
(5) Application of joint and several liability. The rule of joint and several liability does not apply to punitive damages.
(6) Limitation on damages. Punitive damages received by the plaintiff may not exceed twice the amount of any compensatory damages recovered by the plaintiff or $200,000, whichever is greater. This subsection does not apply to a plaintiff seeking punitive damages from a defendant whose actions under sub. (3) included the operation of a vehicle, including a motor vehicle as defined under s. 340.01 (35), an off-highway motorcycle, as defined in s. 23.335 (1) (q), a snowmobile as defined under s. 340.01 (58a), an all-terrain vehicle as defined under s. 340.01 (2g), a utility terrain vehicle as defined under s. 23.33 (1) (ng), and a boat as defined under s. 30.50 (2), while under the influence of an intoxicant to a degree that rendered the defendant incapable of safe operation of the vehicle. In this subsection, “intoxicant" has the meaning given in s. 30.50 (4e).
History: 1995 a. 17; 1997 a. 71; 1999 a. 79; 2005 a. 155 s. 71; Stats. 2005 s. 895.043; 2005 a. 388 s. 216; 2009 a. 274; 2011 a. 2, 208; 2013 a. 166 s. 77; 2015 a. 170.
Punitive damages may be awarded in products liability cases. Judicial controls over punitive damage awards are established. Wangen v. Ford Motor Co., 97 Wis. 2d 260, 294 N.W.2d 437 (1980).
Guidelines for submission of punitive damages issues to the jury in a products liability case are discussed. Walter v. Cessna Aircraft Co., 121 Wis. 2d 221, 358 N.W.2d 816 (Ct. App. 1984).
In awarding punitive damages, the factors to be considered are: 1) the grievousness of the wrongdoer's acts; 2) the degree of malicious intent; 3) the potential damage that might have been caused by the acts; and 4) the defendant's ability to pay. An award is excessive if it inflicts a punishment or burden that is disproportionate to the wrongdoing. That a judge provided a means for the defendant to avoid paying the punitive damages awarded did not render the award invalid. Gianoli v. Pfleiderer, 209 Wis. 2d 509, 563 N.W.2d 562 (Ct. App. 1997), 95-2867.
NOTE: The above cases were decided prior to the adoption of s. 895.85 [now this section].
Nominal damages may support a punitive damage award in an action for intentional trespass. A grossly excessive punishment violates due process. Whether punitive damages violate due process depends on: 1) the reprehensibility of the conduct; 2) the disparity between the harm suffered and the punitive damages awarded; and 3) the difference between the award and other civil or criminal penalties authorized or imposed. Jacque v. Steenberg Homes, 209 Wis. 2d 605, 563 N.W.2d 154 (1997), 95-1028.
A circuit court entering default judgment on a punitive damages claim must make inquiry beyond the complaint to determine the merits of the claim and the amount to be awarded. Apex Electronics Corp. v. Gee, 217 Wis. 2d 378, 571 N.W.2d 23 (1998), 97-0353.
The requirement under sub. (3) that the defendant act “in an intentional disregard of the rights of the plaintiff" necessitates that the defendant act with a purpose to disregard the plaintiff's rights or be aware that his or her conduct is substantially certain to result in the plaintiff's rights being disregarded. The act or course of conduct must be deliberate and 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. There is no requirement of intent to injure or cause harm. Wischer v. Mitsubishi Heavy Industries America, Inc., 2005 WI 26, 279 Wis. 2d 6, 694 N.W.2d 320, 01-0724.
A defendant's conduct giving rise to punitive damages need not be directed at the specific plaintiff seeking punitive damages in order to recover under the statute. Wischer v. Mitsubishi Heavy Industries America, Inc., 2005 WI 26, 279 Wis. 2d 6, 694 N.W.2d 320, 01-0724.
Sub. (3) requires evidence of either malicious conduct or intentional disregard of the rights of the plaintiff, not both. Henrikson v. Strapon, 2008 WI App 145, 314 Wis. 2d 225, 758 N.W.2d 205, 07-2621.
Sub. (3) sets the bar for the kind of evidence required to support a punitive damage award and does not expand the category of cases where punitive damages may be awarded. In cases in which punitive damages are barred in the first instance, the standard for conduct under sub. (3) does not come into play. Groshek v. Trewin, 2010 WI 51, 325 Wis. 2d 250, 784 N.W.2d 163, 08-0787.
Courts apply a six-factor test to determine whether a punitive damages award is excessive: 1) the grievousness of the acts; 2) the degree of malicious intent; 3) whether the award bears a reasonable relationship to the award of compensatory damages; 4) the potential damage that might have been caused by the acts; 5) the ratio of the award to civil or criminal penalties that could be imposed for comparable misconduct; and 6) the wealth of the wrongdoer. Courts are called upon to analyze only those factors which are most relevant to the case. The most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant's conduct. Kimble v. Land Concepts, Inc., 2014 WI 21, 353 Wis. 2d 377, 845 N.W.2d 395, 11-1514.
Punitive damages are not available as a remedy in a breach of contract action. A jury's award of punitive damages must be based upon a finding of tort liability. The punitive damages awarded in this case were not based on tort liability, but rather on breach of contract and for the quasi-contractual unjust enrichment claim, neither of which supported an award for punitive damages. Mohns Inc. v. BMO Harris Bank National Ass'n, 2021 WI 8, 395 Wis. 2d 421, 954 N.W.2d 339, 18-0071.
The due process clause does not permit a jury to base an award of punitive damages in part upon its desire to punish the defendant for harming persons who are not before the court. However, evidence of actual harm to nonparties can help to show that the conduct that harmed the plaintiff also posed a substantial risk to the general public, and so was particularly reprehensible. The due process clause requires state courts to provide assurance that juries are seeking simply to determine reprehensibility and not also to punish for harm caused to strangers. Philip Morris USA v. Williams, 784 U.S. 631, 127 S. Ct. 1057, 166 L. Ed. 2d 940 (2007).
Punitive damages are recoverable under Wisconsin law regardless of whether damages are based on gain to the defendant—restitutionary damages—or loss to the plaintiff—compensatory damages. Wisconsin law allows awards of punitive damages when compensatory damages are imposed, and Wisconsin defines compensatory damages to include compensation, indemnity, and restitution. Epic Systems Corp. v. Tata Consultancy Services Ltd., 980 F.3d 1117 (2020).
A punitive damages award requires a new trial only when: 1) the claims of liability supporting punitive damages are based on different underlying conduct by the defendant; and 2) one of those claims, and therefore the conduct underlying that claim, is found to be unsupported as a matter of law. Epic Systems Corp. v. Tata Consultancy Services Ltd., 980 F.3d 1117 (2020).
When assessing punitive damages, constitutional limitations come into play only after the assessment has been tested against statutory and common law principles. The due process clause of the 14th amendment to the U.S. Constitution imposes constitutional limitations on punitive damages. Punitive damages may be imposed to further a state's legitimate interests in imposing punishment for and deterring illegal conduct, but punitive damages violate due process when the award is grossly excessive in relation to these interests. Epic Systems Corp. v. Tata Consultancy Services Ltd., 980 F.3d 1117 (2020).
In determining the reprehensibility of the defendant's conduct, the court considers five factors: 1) whether the harm caused was physical as opposed to economic; 2) whether the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; 3) whether the target of the conduct had financial vulnerability; 4) whether the conduct involved repeated actions or was an isolated incident; and 5) whether the harm was the result of intentional malice, trickery, or deceit or mere accident. If none of these factors weigh in favor of the plaintiff, the award is suspect. Even if one factor weighs in the plaintiff's favor, that may not be enough to sustain the punitive award. Finally, since a plaintiff is presumed to be made whole by the compensatory award, punitive damages should be awarded only if the defendant's conduct is so reprehensible as to warrant the imposition of further sanctions to achieve punishment or deterrence. Epic Systems Corp. v. Tata Consultancy Services Ltd., 980 F.3d 1117 (2020).
The availability of punitive damages depends on the character of the particular conduct committed rather than on the theory of liability propounded by the plaintiff. The recovery of punitive damages requires that something must be shown over and above the mere breach of duty for which compensatory damages can be given. Unified Catholic Schools of Beaver Dam Education Ass'n v. Universal Card Services Corp., 34 F. Supp. 2d 714 (1999).
The Future of Punitive Damages. SPECIAL ISSUE: 1998 WLR No. 1.

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