rejecting ascribing a different meaning to the word "malicious" that appeared multiple times in the same statute because the statutory structure did not call for different meanings
How later courts described this case
- rejecting ascribing a different meaning to the word "malicious" that appeared multiple times in the same statute because the statutory structure did not call for different meanings
- an appellate court will not consider an issue raised for the first time on appeal
- statutory interpretation and application subject to independent appellate review
Written by the judges who cited it.
The opinion
BROWN, J.
(concurring). I concur in the decision, but based upon different reasoning. The majority concludes that the term "malicious" is ambiguous as it appears in the statute. It then uses legislative history to resolve the ambiguity.
I am persuaded that the term "malicious" is unambiguous. As defined in Wis JI — Civil 1707, Punitive Damages: Nonproducts Liability, "malicious" means acts which are "the result of hatred, ill will, a desire for revenge, or inflicted under circumstances where insult or injury is intended." The term is not synonymous with "wanton, willful or reckless disregard." Those words are defined in the instruction as "indifference ... to the *800 consequences of his actions, even though he may not intend insult or injury."
The terms "willfiil," "wanton" and "reckless disregard" have been used interchangeably in the law because they all mean virtually the same thing. The term "malicious" is set apart. This is borne out by the punitive damage instruction stating that outrageous behavior is conduct which is either malicious or wanton, willful or reckless disregard. The fact that the term malicious is set off in the disjunctive from the other three words says it all.
Thus, when the legislature used the term "malicious" in the statute rather than "willfiil" or either of its analogues, it meant to signify that "hatred" or "ill will" is a necessary component before an exception to immunity can arise. In my view, the use of the word "malicious" is unambiguous and we need not resort to legislative history.
In passing, I observe that had the legislature used the term "outrageous," then we would have been presented with an ambiguity since outrageous is defined as either a malicious act or a willful, wanton ór reckless one. We do not have that problem.
I concur in the decision, but based upon different reasoning.