Understanding Damages in Wisconsin

What is the Purpose of Damages?

“The essential purpose of any damage award is to make the injured party whole.” (See McCormick on Damages, sec. 137, p. 560 (West, 1935); Phillips Petroleum v. Bucyrus-Erie Co. (1986) 131 Wis. 2d 21, 39.)

“The primary object of an award of damages in a civil action, and the fundamental principle on which it is based, are just compensation or indemnity for the loss or injury sustained by the complainant, and no more. . . ” (See Ellsworth v. Schelbrock (2000) 235 Wis. 2d 678, 698.)

“As a general matter, ‘loss’ is commonly understood as the disappearance or diminution of value. Damages broadly includes compensation for a ‘loss,’ which includes the ‘diminution of value’ of an individual's property, both real and personal. The purpose of compensating an individual for loss is to make whole the damage or injury suffered by the injured party.” (See United Am., LLC v. Wis. Dep't of Transp., 2021 WI 44, 25 (Wis. 2021); Loss, Black's Law Dictionary 1132 (11th ed. 2019); White v. Benkowski (1967) 37 Wis. 2d 285, 290, 155 N.W.2d 74.)

Compensatory Damages

“Compensatory damages are awarded to make whole an injured party suffering actual damage or loss.” (See Keefe v. Marx (2010) 786 N.W.2d 488, n.3; (See White v. Benkowski (1967) 37 Wis.2d 285, 290, 155 N.W.2d 74, 77; Fletcher v. Eagle River Hosp (1989) 150 Wis. 2d 145, 155.)

“Compensatory damages are to compensate the injured party for his [or her] actual damages and not as punishment of the defendant.” (See Jones v. Fisher (1969) 42 Wis. 2d 209, 215.)

“When compensatory damages are awarded, the reviewing court is to consider whether the award bears a reasonable relationship to the award of compensatory damages, and to possible civil or criminal penalties. Compensatory damages represent the actual harm inflicted on the plaintiff.” (See Trinity Evangelical Church v. Tower Ins. Co. (2003) 261 Wis. 2d 333, 361.)

Punitive Damages

“Punitive damages may be awarded if the plaintiff proves by clear and convincing evidence that the defendant's conduct was willful or wanton, in a reckless disregard of rights or interests.” (See Geske v. Jackson, No. 96-3383, at *1 (Wis. Ct. App. June 26, 1997); Brown v. Maxey (1985) 124 Wis. 2d 426, 448; Wangen v. Ford Motor Co. (1980) 97 Wis. 2d 260.)

“A greater quantum of proof is necessary to provide a reasonable factual basis when a claim must be proved by clear, satisfactory and convincing evidence, rather than by a preponderance of the evidence.” (See id.)

“The recovery of punitive damages requires proof by clear and convincing evidence that a defendant's conduct was willful or wanton, in a reckless disregard of rights or interests.” (See id.)

Nominal Damages

“Where the plaintiffs have proved no actual damage, a nominal award for damages is proper.” (See Hajec v. Novitzke (1970) 46 Wis. 2d 402, 417; Sunderman v. Warnken (1947) 251 Wis. 471.)

“Nominal damages are a trivial sum of money awarded to a litigant who has established a cause of action but has not established that he is entitled to compensatory damages.” (See Keefe v. Marx (2010) 786 N.W.2d 488, n.3; RESTATEMENT (SECOND) OF TORTS § 907, at 462 (1977).)

Notable Decisions Discussing Damages

“The legal system attempts to place the injured party in as good a position as he or she would have been in had the tortious conduct not occurred and damages naturally and proximately caused by a tort are recoverable.” (See Hellenbrand v. Hilliard 2004) 275 Wis. 2d 741, 762.)

“In Schubert v. Midwest Broadcasting Co., 1 Wis.2d 497, 502, 85 N.W.2d 449 (1957), we said: ‘The fundamental idea in allowing damages for breach of contract is to put the plaintiff in as good a position financially as he would have been in but for the breach.’” (See Thorp Sales Corp. v. Gyuro Grading Co. (1983) 111 Wis. 2d 431, 438; see, also, United Leasing Financial Services, Inc., v. R.F. Optical, Inc. (1981) 103 Wis.2d 488, 492, 309 N.W.2d 23.)

“Thus, the award of damages for a breach of contract should compensate an injured party for losses that necessarily flow from the breach.” (See id; Repinski v. Clintonville Federal Savings Loan Asso. (1970) 49 Wis.2d 53, 181 N.W.2d 351; Lommen v. Danaher (1917) 165 Wis. 15, 161 N.W. 14.)