Written by attorney Nick Passe

Punitive Damages in Wiscconsin

Occassionally in civil litigation judges and juries, after being presented with all of the evidence, feel that issuing a judgment against the defendant only for the amount the defendant damaged the plaintiff is inadequate to address the wrongfulness of the defendant's bad behavior. Something in the way the defendant acted is deserving of condemnation by the community. The Wisconsin State Legislature has recognized these situations exist and has created a law, Wisconsin Statutes section 895.043, to allow judges and juries to express their condemnation by adding a penalty award to a plaintiff who has proven his or her case against the defendant when the defendant's conduct was exceedingly wrong.

How the statute works

To win a punitive damages award, a plaintiff must first prove his/her underlying case and present evidence that the defendant acted maliciously toward the plaintiff or in an intentional disregard for the rights of the plaintiff. If the plaintiff is able to make a preliminary showing that the defendant acted maliciously or with intentional disregard toward the rights of the plaintiff, the judge or jury will submit a special verdict form to the jury asking what award, if any, should be given for punitive damages. The jury (or the judge, if no jury has been requested) will then consider the evidence introduced at trial and make a finding.

Punitive damage awards are limited in Wisconsin to thegreaterof twice the compensatory damages recovered by the plaintiff or $200,000. This cap does not apply to a plaintiff seeking punitive damages from a defendant who caused the damages as a drunk driver.

What to do if you think you have a case which merits an award of punitive damages

As any experienced attorney will tell you, having a good case is not the same as having a judgment and having a judgment is not the same as being able to collect the judgment. Most cases which should support punitive damage judgments are never pursued either because there are evidentiary issues which might make proving liability for the damages difficult or the defendant is "uncollectable".

If you believe you have a case, you should not despair, though. Gather up what evidence you have and speak to an attorney. If your case looks promising and the damages are significan enough, the attorney may offer to represent you on a contingency fee basis. Otherwise, you may need to pay the attorney on a flat fee or hourly fee basis. If you have found value in this guide, I would appreciate the opportunity to give you a free introductory consultation about your case.

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