Tucker v. Marcus

Decision Date11 February 1988
Docket NumberNo. 86-2256,86-2256
Citation142 Wis.2d 425,418 N.W.2d 818
PartiesCarol TUCKER, a/k/a Carrie Tucker, Plaintiff-Respondent, v. Marvin S. MARCUS, d/b/a MGM Health Club, and Continental Casualty Company, Defendants-Appellants.
CourtWisconsin Supreme Court

Allen A. Arntsen (argued), Josann M. Reynolds (argued), and Jenswold, Studt, Hanson, Clark & Kaufmann, Madison, for defendants-appellants.

Jeffrey J. Grady (argued), and Grady Law Office, Madison, for plaintiff-respondent.

D.J. Weis, Johnson, Weis, Paulson & Priebe, S.C. and The Wisconsin Academy of Trial Lawyers, Rhinelander, Scott G. Pernitz, Winner, McCallum, Wixson & Pernitz and Wisconsin Ins. Alliance, Madison, Ward I. Richter, Mary L. McDaniel, Bell, Metzner & Gierhart, S.C. and The Civil Trial Counsel of Wisconsin, Inc., Madison, amicus curiae.

CECI, Justice.

This is an appeal from a decision of the circuit court for Dane county, Susan Steingass, circuit judge, accepted on appellants' petition to bypass the court of appeals pursuant to section 808.05(1), Stats. Plaintiff-respondent, Carol Tucker (respondent or Tucker) commenced this action in both an individual capacity and as the special administrator of the estate of her minor son, Nathaniel Tucker (Nathaniel) against Marvin S. Marcus, d/b/a MGM Health Club, and Continental Casualty Company (referred to collectively as appellants or Marcus). The essential facts of this case are undisputed. The deceased, Nathaniel, was fourteen years old on April 9, 1983, the day he drowned at a swimming pool at the MGM Health Club, owned and operated by Marcus in Madison, Wisconsin. Nathaniel was at the pool on the day of the drowning incident with his two minor sisters and an adult supervisor. Although the precise cause of the drowning was not established, there was evidence that Nathaniel's swimming skills were undeveloped. There was additional testimony proffered to establish that the condition of the water in the pool may have contributed to the drowning by unnecessarily delaying the rescue. The respondent offered the evidence of the condition of the pool and of repeated violations of Wis.Admin.Code ch. HSS 171 (May 1982), regulating public swimming places, as evidence of outrageous conduct justifying an award of punitive damages.

This matter was tried to a jury, and on February 14, 1986, the jury rendered a verdict apportioning seventy per cent of the causal negligence to Nathaniel. Ten per cent of the causal negligence was attributed to Marcus, and twenty per cent to Nathaniel's adult supervisor. The jury then awarded both compensatory and punitive damages to the respondent in a wrongful death action and to Nathaniel's estate in a survival action. 1 There is no dispute before this court that compensatory damages were unavailable under section 895.045, Stats., due to the allocation of negligence, or that punitive damages could not be awarded in Wisconsin for a wrongful death action under Wangen v. Ford Motor Co., 97 Wis.2d 260, 315, 294 N.W.2d 437 (1980). Rather, the sole issue before this court is whether Nathaniel's estate is entitled to the jury award of $50,000 as punitive damages for the survival action where compensatory damages are not available under section 895.045 due to the apportionment of negligence.

The trial court determined that Nathaniel's estate was entitled to $50,000 as punitive damages. Specifically, the trial court found insignificant the fact that the respondent did not actually receive compensatory damages and stated that "punitive damages ... are not effected [sic] by the attribution of fault." We disagree. In order for punitive damages to be available to a claimant, actual damages must have been awarded and recovered.


Two primary questions arise with respect to the relationship between compensatory and punitive damages under the Wisconsin comparative negligence law. First, appellants argue that the term "damages for negligence" as used in section 895.045, Stats., encompasses all damages, including punitive damages. Should this argument be accepted, punitive damages would be available only where the plaintiff's negligence was no greater than the negligence of the person from whom recovery was sought and, if awarded, would be subject to proportional reduction. Alternatively, appellants assert that an award of punitive damages must be supported by a right to recover compensatory damages under section 895.045. Contrary to the first argument which is fundamentally one of statutory construction, the second argument is founded upon the common law principle that punitive damages must be supported by actual damages.

The interpretation of a statute is a question of law. Delvaux v. Vanden Langenberg, 130 Wis.2d 464, 475, 387 N.W.2d 751 (1986). Accordingly, to the extent that we are called upon to interpret section 895.045, we are deciding a question of law, which is reviewable by this court without deference to the trial court. Brown v. Maxey, 124 Wis.2d 426, 431, 369 N.W.2d 677, reconsideration denied 126 Wis.2d 40, 373 N.W.2d 672 (1985). As we have previously stated, "The issue of whether punitive damages are recoverable in negligence actions is a question of law." Id.


We address first the appellants' position that punitive damages are "damages for negligence" under section 895.045, Stats. Section 895.045 provides as follows:

"895.045 Contributory negligence. Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not greater than the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributable to the person recovering."

Wisconsin first adopted a system of comparative negligence in 1931. 1931 Wis. Laws ch. 242. In 1971, the comparative negligence law was changed from one prohibiting recovery of damages for negligence if the injured person's negligence was "as great as" that of the wrongdoer, to one permitting recovery unless the injured person's negligence was "greater than" the negligence of the person against whom recovery is sought. 1971 Wis. Laws ch. 47. The statute's language "damages for negligence" has remained unchanged. However, while an examination of the legislative history has not revealed an express indication of legislative intent 2 with respect to the interpretation to be given the phrase "damages for negligence," the scope of "damages for negligence" under section 895.045 cannot consistently, with well-recognized principles of statutory construction, be interpreted to include punitive damages.

Specifically, because there is a presumption that where the legislature substantially reenacts a statute it adopts construction previously placed on that statute, we must interpret the statute to be consistent with case law predating section 895.045, Stats. Delvaux v. Vanden Langenberg, 130 Wis.2d 464, 476, 387 N.W.2d 751 (1986) (quoting Zimmerman v. Wisconsin Electric Power Co., 38 Wis.2d 626, 633-34, 157 N.W.2d 648 (1968)); Munninghoff v. Wisconsin Conservation Commission, 255 Wis. 252, 258, 38 N.W.2d 712 (1949); State v. Hackbarth, 228 Wis. 108, 121, 279 N.W. 687 (1938). In this regard, this court's decision in Bielski v. Schulze, 16 Wis.2d 1, 114 N.W.2d 105 (1962), becomes significant. In Bielski, this court abolished the doctrine of gross negligence and, in dicta, further stated: "We recognize the abolition of gross negligence does away with the basis for punitive damages in negligence cases. But punitive damages are given, not to compensate the plaintiff for his injury, but to punish and deter the tortfeasor, and were acquired by gross negligence as accoutrements of intentional torts." 16 Wis.2d at 18, 114 N.W.2d 105. Although this court, in Wangen, explained the Bielski holding and explicitly rejected an interpretation of the decision which would eliminate outrageous conduct as a basis for awarding punitive damages in a negligence action, 3 this decision was rendered after the legislature had reenacted the comparative negligence law. See Wangen, 97 Wis.2d at 275, 294 N.W.2d 437. Consequently, since Bielski had been decided and not yet modified at the time of the 1971 amendment to the comparative negligence statute, the legislature cannot be presumed to have intended damages for negligence to include punitive damages absent express language so indicating.

Furthermore, while Wangen circumscribed the interpretation to be given the Bielski holding, the court in Wangen nevertheless maintained, "[W]e interpret the dicta in Bielski to mean that punitive damages are not recoverable if the wrongdoer's conduct is merely negligent. Punitive damages do not rise from negligence." 97 Wis.2d at 275, 294 N.W.2d 437 (emphasis added). Similarly, in Brown, 124 Wis.2d at 432, 369 N.W.2d 677, this court stated, "In a negligence case, if the plaintiff proves only those elements constituting the cause of action, punitive damages are not available." Therefore, notwithstanding the probable intent which should be attributed to the legislature in reenacting the comparative negligence statute, there exists, in the fact of this court's adherence to the position that punitive damages are not available for ordinary negligence, further reason to reject an interpretation of section 895.045 under which "damages for negligence" would include punitive damages. Nothing in the language of the statute indicates that negligence referred to therein is intended to include outrageous conduct, or anything beyond ordinary negligence.

Our position that punitive damages are not damages for negligence under section 895.045 finds support among other jurisdictions. For example, in Lane v. Meserve, 20 Mass.App.Ct. 659, 482 N.E.2d 530, review denied 396 Mass. 1103, 485 N.E.2d 188 (1985), the Massachusetts Court of...

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