One of Wisconsin’s Most Respected Personal Injury Law Firms
For more than 30 years, the Milwaukee personal injury lawyers at Murphy & Prachthauser have represented persons injured by the negligence of others. The firms’ attorneys have won multi-million dollar awards or settlements for dozens of clients. Our attorneys have achieved national and local recognition. The firm has received the highest possible rating for ability and ethics by Martindale-Hubbell, a peer review service that has been publishing its lawyer ratings for over a century.
At Murphy & Prachthauser we practice personal injury law the way it should be practiced – motivated and equipped to do our best for you. We take pride in being good lawyers who help people.
- $16.8 Million Verdict – Auto Accident Injured Volunteer – Reported by Milwaukee Journal Sentinel
- $11.4 Million Verdict – Falling Merchandise in Retail Store – Wisconsin Law Journal
- $8 Million Verdict Automotive Design Defect – Defective Roof – Reported by Milwaukee Journal Sentinel
- $5 Million Settlement – Automotive Design Defect – Defective Car Roof – Reported by Wisconsin State Journal
In any vehicle accident involving an impaired, drunk or intoxicated driver, the potential for punitive damages must be examined. In Wisconsin, the standard or proof that must be demonstrated by a person seeking punitive damages acted in an intentional disregard of the rights of the plaintiff. See, Wis. Stat. § 895.85.(2011-2012).
The three elements required for obtaining punitive damages are that:
- an act or course of conduct must be deliberate;
- the act or conduct must actually disregard the rights of the plaintiff, whether it be a right to safety, health or life, a property right, or some other right; and
- must be sufficiently aggravated to warrant punishment by punitive damages.
Strenke v Hoger, 2005 WI 25, ¶ 38, 279 Wis. 2d 52, 70, 694 N.W.2d 296, 304-305.
The first two elements are typically easy to prove. Normally, there is nothing forcing anyone to drink and drive, and there is nothing accidental about getting behind the wheel while impaired. Most people consider impaired driving to be a menace to others lawfully on the road, so that drunk drivers are violating everyone’s right to safety.
On the aggravated prong of proof, showing there were prior instances of impaired driving, or a very high BAC (blood alcohol content) would seemingly qualify under prong three. In a 2008 case decided by the court of appeals involved a driver with a .11 BAC, and no prior OWI’s. The court described the case as a “run of the mill accident with the use of alcohol” … The court reasoned that, although [defendant] had been using alcohol, it was not an aggravated situation: he did not have any prior OWIs, he was not driving on the highway, and, accepting Henrikson’s expert’s report, Strapon’s blood alcohol concentration was “relatively low.” Henrikson v. Strapon, 2008 WI App 145, ¶ 9, 314 Wis. 2d 225, 232, 758 N.W.2d 205, 209
How does one prove intoxication? One way is through expert testimony of a toxicologist, who can testify on impairment and how alcohol affects the body. However, expert testimony is not necessary. In State v. Powers, 2004 WI App 143, ¶ 13, 275 Wis. 2d 456, 466-67, 685 N.W.2d 869, 873-74, lay witness opinion was held admissible and sufficient on the issue of intoxication:
In Wisconsin, a layperson can give an opinion that he or she believes another person is intoxicated. . . . Other jurisdictions have upheld traffic stops based, in part, on a layperson’s assessment that another person was intoxicated. . . . (“[T]he mere fact that the tip includes only the conclusory statement that the suspect was drunk would not necessarily foreclose the prospect of the tip’s reliability.”); . . . (“A layperson is qualified to give an opinion as to whether a person is under the influence, based upon observations of that person.”); (“[L]aymen may testify as to their opinion of whether a person is intoxicated.”) (citation omitted); . . . (“The objective signs of intoxication are matters of common knowledge and experience.”)
Id. Testimony from people around the accident, that the driver appeared very unsteady, or seemed to weave and buck, had slurred speech, or had difficulty with things such as removing his wallet from his pocket, is certainly relevant.
Additionally, if the BAC is low, or there are no priors, you may be able to look to the conduct of the driver alone to establish a basis for punitive damages. Recently, there have been a number of instances of intoxicated drivers going the wrong way on the expressway. That alone creates a substantial probability of harm, and alone should qualify one for punitive damages.
As law enforcement officers continue to crack down on drunk drivers, a possible deterrent should be the punitive damages that the driver may face. However, punitive damages cannot function as a deterrent if drivers are not aware they exist. By increasing awareness of the repercussions for driving under the influence, such as punitive damages, hopefully drunk drivers will think twice before getting into their vehicles and endangering the lives of others.