895.80(3m)(a)(a) In this subsection, "plant" includes the material taken, extracted, or harvested from a plant, or a seed or other plant material that is being used or that will be used to grow or develop a plant.
895.80(3m)(b)
(b) If the violation of
s. 943.01 (1) involves the circumstances under
s. 943.01 (2d), the court may award a prevailing plaintiff the reasonable attorney fees incurred in litigating the action and, when determining the damages recoverable under
sub. (3), shall include the market value of the plant before the damage or destruction, and the costs of production, research, testing, replacement, and plant development directly related to the plant that has been damaged or destroyed.
895.80(4)
(4) Any recovery under this section shall be reduced by the amount recovered as restitution under
ss. 800.093 and
973.20 and
ch. 938.
895.80(5)
(5) No person may bring a cause of action under both this section and
s. 95.195,
943.212,
943.245 or
943.51 regarding the same incident or occurrence. If the plaintiff has a cause of action under both this section and
s. 943.212,
943.245 or
943.51 regarding the same incident or occurrence, the plaintiff may choose which action to bring. If the plaintiff has a cause of action under both this section and
s. 95.195, the plaintiff must bring the action under
s. 95.195.
895.80(6)
(6) A person is not criminally liable under
s. 943.30 for any action brought in good faith under this section.
895.80 Annotation
A trial court cannot, contrary to sub. (3) (b), award attorney fees that exceed what was actually "incurred." Stathus v. Horst, 2003 WI App 28,
260 Wis. 2d 166,
659 N.W.2d 165,
02-0543.
895.85
895.85
Punitive damages. 895.85(1)(a)
(a) "Defendant" means the party against whom punitive damages are sought.
895.85(1)(b)
(b) "Double damages" means those court awards made under a statute providing for twice, 2 times or double the amount of damages suffered by the injured party.
895.85(1)(c)
(c) "Plaintiff" means the party seeking to recover punitive damages.
895.85(1)(d)
(d) "Treble damages" means those court awards made under a statute providing for 3 times or treble the amount of damages suffered by the injured party.
895.85(2)
(2) Scope. This section does not apply to awards of double damages or treble damages, or to the award of exemplary damages under
ss. 46.90 (6) (c),
51.30 (9),
51.61 (7),
103.96 (2),
134.93 (5),
146.84 (1) (b) and
(bm),
153.85,
252.14 (4),
252.15 (8) (a),
610.70 (7) (b),
943.245 (2) and
(3) and
943.51 (2) and
(3).
895.85(3)
(3) Standard of conduct. The plaintiff may receive punitive damages if evidence is submitted showing that the defendant acted maliciously toward the plaintiff or in an intentional disregard of the rights of the plaintiff.
895.85(4)
(4) Procedure. If the plaintiff establishes a prima facie case for the allowance of punitive damages:
895.85(4)(a)
(a) The plaintiff may introduce evidence of the wealth of a defendant; and
895.85(4)(b)
(b) The judge shall submit to the jury a special verdict as to punitive damages or, if the case is tried to the court, the judge shall issue a special verdict as to punitive damages.
895.85(5)
(5) Application of joint and several liability. The rule of joint and several liability does not apply to punitive damages.
895.85 Note
NOTE: The first 3 cases noted below were decided prior to the adoption of s. 895.85.
895.85 Annotation
Punitive damages may be awarded in products liability cases. Judicial controls over punitive damage awards are established. Wangen v. Ford Motor Co.
97 Wis. 2d 260,
294 N.W.2d 437 (1980).
895.85 Annotation
Guidelines for submission of punitive damages issues to the jury in a products liability case are discussed. Walter v. Cessna Aircraft Co.
121 Wis. 2d 221,
358 N.W.2d 816 (Ct. App. 1984).
895.85 Annotation
Regardless of the classification of the underlying cause of action, punitive damages are recoverable if the defendant's conduct was "outrageous." Insurance coverage for punitive damages is not contrary to public policy. Brown v. Maxey,
124 Wis. 2d 426,
369 N.W.2d 677 (1985).
895.85 Annotation
In awarding punitive damages, the factors to be considered are: 1) the grievousness of the wrongdoer's acts; 2) the degree of malicious intent; 3) the potential damage that might have been caused by the acts; and 4) the defendant's ability to pay. An award is excessive if it inflicts a punishment or burden that is disproportionate to the wrongdoing. That a judge provided a means for the defendant to avoid paying the punitive damages awarded did not render the award invalid. Gianoli v. Pfleiderer,
209 Wis. 2d 509,
563 N.W.2d 562 (Ct. App. 1997).
895.85 Annotation
Nominal damages may support a punitive damage award in an action for intentional trespass. A grossly excessive punishment violates due process. Whether punitive damages violate due process depends on: 1) the reprehensibility of the conduct; 2) the disparity between the harm suffered and the punitive damages awarded; and 3) the difference between the award and other civil or criminal penalties authorized or imposed. Jacque v. Steenberg Homes,
209 Wis. 2d 605,
563 N.W.2d 154 (1997).
895.85 Annotation
A circuit court entering default judgment on a punitive damages claim must make inquiry beyond the complaint to determine the merits of the claim and the amount to be awarded. Apex Electronics Corp. v. Gee,
217 Wis. 2d 378,
571 N.W.2d 23 (1998).
895.85 Annotation
Sub. (3) requires 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. Wischer v. Mitsubishi Heavy Industries, 2003 WI App 202,
267 Wis. 2d 638,
673 N.W.2d 303,
01-0724.
895.85 Annotation
The availability of punitive damages depends on the character of the particular conduct committed rather than on the theory of liability propounded by the plaintiff. The recovery of punitive damages requires that something must be shown over and above the mere breach of duty for which compensatory damages can be given. Unified Catholic Schools of Beaver Dam Education Association v. Universal Card Services Corp.
34 F. Supp. 2d 714, (1999).
895.85 Annotation
The Future of Punitive Damages. SPECIAL ISSUE: 1998 WLR No. 1.
