Wischer v. Mitsubishi Heavy Industries America, Inc.

2005 WI 26, 694 N.W.2d 320, 279 Wis. 2d 4, 2005 Wisc. LEXIS 137
CourtWisconsin Supreme Court
DecidedMarch 18, 2005
Docket01-0724, 01-1031, and 01-2486
StatusPublished
Cited by23 cases

This text of 2005 WI 26 (Wischer v. Mitsubishi Heavy Industries America, Inc.) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wischer v. Mitsubishi Heavy Industries America, Inc., 2005 WI 26, 694 N.W.2d 320, 279 Wis. 2d 4, 2005 Wisc. LEXIS 137 (Wis. 2005).

Opinions

SHIRLEY S. ABRAHAMSON, C.J.

¶ 1. This is a review of a published decision of the court of appeals affirming in part and reversing in part a judgment of the Circuit Court for Milwaukee County, Dominic S. Amato, Judge.1

¶ 2. Patricia Wischer, Marjorie DeGrave, and Ramona Dulde-Starr sued individually and as special administrators of their deceased husbands' estates. Their husbands died during the construction of the retractable roof of the Miller Park baseball stadium in Milwaukee, Wisconsin. The defendants were Mitsubishi [10]*10Heavy Industries America, Inc. (MHIA) and others2 involved in the construction. At the conclusion of the trial, the jury found that MHIA had acted "in an intentional disregard of the rights of the plaintiff[s]." The circuit court entered judgment against MHIA for punitive damages in the amount of $84,625,000.3

[11]*11¶ 3. The court of appeals reversed the judgment on punitive damages. This review involves only the judgment for punitive damages against MHIA and its insurers.4 The plaintiff may receive punitive damages under Wis. Stat. § 895.85(3) (1999-2000)5 "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. Three questions of law are presented for review:

(1) Is the court of appeals correct in interpreting Wis. Stat. § 895.85(3) to mean that a defendant must intend to cause injury to the plaintiffs or have knowledge that its conduct was practically certain to cause the accident or injury to the plaintiffs?6
[12]*12(2) Was the evidence sufficient to submit a punitive damages award question to the jury?7
(3) If there was sufficient evidence to submit a punitive damages award question to the jury, is the jury's punitive damages award in the amount of $94 million excessive and in violation of MHIA's due process rights?

¶ 5. We respond to these questions as follows:

¶ 6. (1) The court of appeals erroneously interpreted Wis. Stat. § 895.85(3). In Strenke v. Hogner, mandated on the same date as this opinion, this court has overruled the court of appeals' interpretation of Wis. Stat. § 895.85(3) set forth in its decision in the instant case.8 The court of appeals interpreted § 895.85(3) in the instant case as follows: "[t]he phrase 'intentional disregard of the rights of the plaintiff in Wis. Stat. § 895.85(3) can only be reasonably interpreted to require either an intent 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."9

[13]*13¶ 7. We concluded in Strenke v. Hogner that the requirement in Wis. Stat. § 895.85(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 plaintiffs rights or be aware that his or her conduct is substantially certain to result in the plaintiffs rights being disregarded."10 Accordingly, we conclude that Wis. Stat. § 895.85(3) requires a plaintiff to show that a defendant acted maliciously to the plaintiff or intentionally disregarded the rights of the plaintiff, not that a defendant intended to cause harm or injury to the plaintiff.

¶ 8. (2) We conclude that the evidence was sufficient to submit a punitive damages award question to the jury. The jury could have believed that the crane collapsed, as the plaintiffs claimed, because it was used in high winds, no wind-speed calculations were made, and the crane's load chart limitations were exceeded; without wind calculations the 45-stories-high crane was lifting a billboard-size load of nearly one million pounds on a windy afternoon. One need not be an engineer or have heard all the evidence about the maximum safe wind speed and load limitations for operating this gigantic crane as it lifted this gigantic load on a windy day to know that wind plays an important factor in maneuvering objects outdoors. Anyone who has hung wet laundry, set up an outdoor art display, or driven a motor vehicle on a high bridge knows the havoc wind can play with items light or heavy. A reasonable jury could find that the plaintiffs had proved by the middle burden of proof, "clear and [14]*14convincing evidence," that MHIA acted in an intentional disregard of the rights of the plaintiffs, that is, that MHIA was aware that its conduct was substantially certain to result in the plaintiffs' rights being disregarded.

¶ 9. (3) We decline to address the issue of the constitutionality of the amount of the punitive damages award because numerous issues remain unresolved and are not before us. Some of those issues may affect a constitutional analysis under Trinity Evangelical Lutheran Church v. Tower Insurance Co.,11 State Farm Mutual Automobile Insurance Co. v. Campbell,12 and BMW of North America, Inc. v. Gore.13 For example, was MHIA entitled to offer evidence of its net worth for the jury to consider in deciding the amount of punitive damages? What effect does the secret settlement agreement between the plaintiffs and MHIA have on the potential exposure for both MHIA and its insurers?

¶ 10. Given the nature of the outstanding issues, we decline to address the constitutionality of the $94 million award at this time.

¶ 11. Accordingly, we reverse the decision of the court of appeals that reversed the judgment of the circuit court awarding punitive damages and remand the cause to the court of appeals for resolution of the remaining and as yet unresolved issues.

H-i

¶ 12. The basic tragic facts can be stated simply. Three ironworkers, Jeffrey Wischer, William DeGrave, and Jerome Starr, fell to their deaths at approximately [15]*155:14 p.m. on July 14,1999. They were working at Miller Park stadium, the future home of the Brewers, Milwaukee's major league baseball team. The three men were in a basket held by a crane, preparing to bolt down a section of Miller Park's retractable roof that was being hoisted into place by the large "Big Blue" crane. As Big Blue moved the enormous piece of roof into place, Big Blue collapsed. Big Blue's boom hit the crane holding the men and the men fell to their deaths.14

¶ 13.

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Bluebook (online)
2005 WI 26, 694 N.W.2d 320, 279 Wis. 2d 4, 2005 Wisc. LEXIS 137, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wischer-v-mitsubishi-heavy-industries-america-inc-wis-2005.