Sarah Butcher

LRW05

Part I

Issue #1: Under Wisconsin common law, can an award of nominal damages,
standing alone, support a punitive damage award in an intentional
tort case?

Holding #1: Yes. Relying on McWilliams v. Bragg, 3 Wis. 377 (1854), in an intentional tort,
when the actual harm is not in the damage to land, person, or property, but to
the individual’s constitutional rights, nominal damages can support a
punitive damage award. An individual has the right to exclude others from
their property, and a right is hollow if it goes unprotected by the legal
system. Punitive damages are the legal system’s way of protecting that right.
W. Page Keeton, Prosser and Keeton on Torts, § 13 (5th ed. 1984).

Issue #2: When the Wisconsin Supreme Court finds an exception to existing
precedent and announces a new rule of damages, is it equitable for the
court to retroactively apply the new rule against a defendant who was
found to have committed an intentional trespass to land?

Holding #2: Yes. Retroactivity is justified as equitable as a means of rewarding the litigant
who successfully challenges an unsound and erroneous rule. Using Rolo v.
Goers, 174 Wis. 2d 709 (1993), a court does not apply a holding
prospectively simply because of reliance on an old rule. Prospective
application of a holding is not considered inequitable when the only person
affected is the defendant who relied on an old rule. Harmann v. Hadley, 128
Wis. 2d 371 (1986).

Issue #3: Under the Due Process Clause of the Fourteenth Amendment, is a
$100,000 punitive damage award a “grossly excessive” punishment
against a defendant if a jury finds that the defendant did not cause an
actual physical injury entitling the plaintiff to recover compensatory
damages?

Holding #3: No. The Supreme Court states three factors must be considered when
determining if punitive damages violate the Due Process Clause: (1)
reprehensibility of conduct; (2) disparity between harm suffered and award;
(3) difference between this remedy and civil/criminal penalties. A $100,000
punitive damage award is not a “grossly excessive” punishment, even when
no physical injury exists, because such punitive damages are awarded
in cases where a defendant who commits egregious misconduct must be
deterred from doing so again; an award of damages is left to the discretion of
a jury. Malco v. Midwest Aluminum Sales, 14 Wis. 2d 57 (1961).
 Part II

For Issue #1 the court used McWilliams to argue that punitive damages aren’t just awarded
along compensatory damages as a way of making the plaintiff whole again, but also as a
way to punish the defendant for brazenly disregarding the laws and violating individual
rights. The court noted that this was important for society as a whole, not just the
individual (pg. 12). Also referenced, Prosser and Keeton on Torts, further cements the
importance of protecting constitutional rights, making this case exempt from Barnard.
Issue #2 the court came to the conclusion that, because Steeberg did not claim anyone but
itself would be affected by the retroactive holding, sunbursting did not apply because it is
meant to protect multiple individuals or institutions. The court also noted that reliance on
an old rule in a legal argument is not enough reason to be exempt from punishment. I
originally wanted to include the court mentioning that Steenberg didn’t rely on the old rule
until much later in the process, but felt that the other points supported the holding without
that. In Issue #3 the court ultimately ruled that people should be deterred from committing
misconduct, and that discretion is left to the Jury.