# Wilson v. Waukesha County

> Court of Appeals of Wisconsin · August 29, 1990 · 157 Wis. 2d 790

URL: https://www.frixlaw.com/law-library/cases/9732518

## Case

- **Full name:** Isabelle A. WILSON, Plaintiff-Appellant, v. WAUKESHA COUNTY, Defendant-Respondent, FAMILY HEALTH PLAN, Defendant
- **Court:** Court of Appeals of Wisconsin
- **Decided:** August 29, 1990
- **Citations:** 157 Wis. 2d 790; 460 N.W.2d 830; 1990 Wisc. App. LEXIS 770
- **Precedential status:** Published
- **Opinion:** Concurrence by Brown
- **Judges:** Nettesheim, Brown, Scott
- **Cited by:** 38 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9732518

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9732518. Public record. Not legal advice.