Drunken driver not liable for punitive damages

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Not every drunken driving incident that results in an accident gives rise to punitive damages.

An Aug. 21 opinion by the Wisconsin Court of Appeals held, in a case involving a driver whose blood-alcohol level was only .111 and had no prior drunken driving convictions, the circuit court properly refused to let the jury consider punitive damages.

The court distinguished the Wisconsin Supreme Court’s opinion in Strenke v. Hogner, 2005 WI 25, 279 Wis.2d 52, 694 N.W.2d 296, in which the driver had a BAC of .269, had four prior OWI convictions, and engaged in aggravated driving.

But, Attorney Craig R. Steger, of Hale, Skemp, Hanson, Skemp & Sleik, in La Cross, who represented the defendant, said he doesn’t think the law regarding when drunken driving will warrant punitive damages is any clearer than before.

“I think the court made the right decision,” he said. “But we haven’t heard the last of Strenke.”

Steger, who has represented both plaintiffs and defendants on the issue, said the punitive damage standard is hard to articulate.

But from a practical standpoint, he said, the two major questions courts look at are “How drunk was the driver?” and “How many prior OWIs?” although he questioned whether that is what the Supreme Court intended in Strenke.

In the case at bar, Joseph L. Henrikson was injured after exiting a bus, and crossing the street. He was struck in the street by Nicholas C. Strapon, who fled the scene.

Strapon was arrested roughly an hour later, and he admitted he had been drinking.

Strapon was charged with causing injury by operating a motor vehicle while intoxicated and hit-and-run causing injury.

He eventually pleaded guilty to reckless driving and hit-and-run causing vehicle damage.

Henrikson sued Strapon in civil court, alleging negligence, and sought punitive damages.

However, La Crosse County Circuit Court Judge Elliott M. Levine held there was no basis for punitive damages, and the Court of Appeals affirmed, in a decision by Judge Margaret J. Vergeront.

The court first held that the fact Strapon left the scene was not relevant to the issue of punitive damages, reaffirming its holding to that effect in Kehl v. Economy fire & Casualty Co. 147 Wis.2d 531, 433 N.W.2d 279 (Ct.App.1988).

Henrikson argued that Kehl was no longer valid law, in light of the 2003 amendments to sec. 895.85, which governs punitive damages, but the court disagreed. Because the act of fleeing does not cause injury or contribute to the plaintiff’s loss, the court concluded it is not a basis for punitive damages.

The court then found that there was no evidence to support punitive damages based on the amount of alcohol Strapon consumed.

Calling Strapon’s BAC “a relatively modest amount above the legal limit,” the court concluded, “It is not reasonable to infer from this blood alcohol concentration in itself that Strapon was aware that his driving was substantially certain to result in the disregard of the rights of pedestrians, including Henrikson, to safely cross the street.”

The court distinguished Strenke, stating, “in contrast to a blood alcohol concentration of .269 percent, a blood alcohol concentration of .111 percent is not so high as to provide a reasonable basis for inferring that Strapon knew he was impaired from alcohol to a degree that made his driving a threat to the safety of pedestrians.”

The court also found no basis for punitive damages, even though Strapon failed to yield to a pedestrian, noting that most traffic accidents involve a violation of some traffic law, but only warrant damages for negligence.

Despite the denial of punitive damages in this case, Steger said he expected the issue would continue to arise in every case involving a drunk driver causing an accident.

Steger said, “There is a soft balance between zealousness and seeking only claims supported by a factual basis. But most attorneys, including myself, allege punitives. And on the defense side, we always seek summary judgment to exclude them.”