Case Citation Jacque v. Steenberg Homes, Inc., 209 Wis.2d 605, 563 N.W.

2d 154
(1997).
Procedural The plaintiffs sought intentional trespass action against the defendant
Facts in the Manitowoc County Circuit Court. The Circuit Court ruled that
nominal damages could not support punitive damages. The Wisconsin
Court of Appeals affirmed the lower court’s decision. The Supreme
Court of Wisconsin reversed and remanded with directions.
Issue(s) (1) Under Wisconsin common law, can an award of nominal damages,
alone, in an intentional tort support a punitive damages award even
when no compensatory damages exist?

(2) When the Wisconsin Supreme Court finds and exception to

existing precedent and holds a new rule for damages, is it equitable for
the court’s holding to be applied retroactively against a defendant who
committed an intentional trespass to land?

(3) Under the Fourteenth Amendment’s Due Process Clause is a

$100,000 punitive damage award a “grossly excessive” punishment
against a defendant when jury finds that the plaintiff incurs no actual
physical injury?
Answer (1) Yes. (2) Yes. (3) No.
Holding (1) Yes. Relying on McWilliams v. Bragg, 3 Wis. 377 (1854), in an
intentional tort, when the actual harm is not in the damage to land,
person, or property, but to the individual’s constitutional rights,
nominal damages can support a punitive damage award. An individual
has the right to exclude others from their property which is “one of the
most essential sticks in the bundle of rights that are commonly
characterized as property,” Dolan v. City of Tigard, 512 U.S. 374, and
a right is hollow if it goes unprotected by the legal system. Punitive
damages are the legal system’s way of protecting that right. W. Page
Keeton, Prosser and Keeton on Torts, § 13 (5th ed. 1984).

(2) Yes. Under the “Blackstonian Doctrine” retroactively applying a

new rule is justified as equitable as a means of rewarding the litigant
who persevered in attacking the Barnard Rule – an 80-year-old
unsound and erroneous rule of damages. Using Rolo v. Goers, 174
Wis. 2d 709 (1993), a court does not apply a holding only
prospectively simply because of reliance on an old rule. Retroactive
application of a holding is not considered inequitable when the only
person affected is the defendant who did not truly rely on the old and
overturned rule.

(3) No. The U.S. Supreme Court in BMW of America v. Gore, 116
S.Ct. 1589 (1996), established that three factors must be considered
when determining if punitive damages violate the Due Process Clause
on “grossly excessive” punitive damage award. The Jacque Court
 found that the most important factor is the reprehensibility of the
conduct. A $100,000 punitive damage award is not a “grossly
excessive” punishment, even when no physical injury exists, because
such punitive damages are awarded in cases where a defendant, who
commits egregious misconduct, must be deterred from doing so again;
an award of damages is left to the discretion of a jury. Malco v.
Midwest Aluminum Sales, 14 Wis. 2d 57 (1961).
Brief Statement Harvey and Lois Jacque own 170 acres of land in Schleswig,
of Facts Wisconsin. In 1993, a neighbor purchased a mobile home from
Steenberg Homes, which included delivery ¶ 2. Prior to selling the
home, Steenberg determined the easiest route to deliver would be to
cross the Jacques’ land, as taking the private road would require the
additional cost of “rollers” and Steenberg did not want to pay more
money. Despite several direct refusals from the Jacques, disallowing
Steenberg to cut through their land, Steenberg sold the home anyways
¶ 3. The morning of the delivery, Mr. Jacque asked Steenberg
employees what their route of delivery was. Upon showing him their
plan, Mr. Jacque noted that their route was cutting through his land,
and again stated they were not permitted to do so ¶ 4. Mr. Jacque then
showed the assistant manager of Steenberg an aerial map and plat
book to prove ownership of the land, reiterating that the home is not to
be moved across their land. Mr. Jacque refused a monetary offer in
exchange for permission, and the Steenberg employees left without
consent to cross the land ¶ 5-6. Two Steenberg employees testified
that the assistant manager said to disregard Mr. Jacque’s wishes, and
move the home anyways. The employees used a “bobcat” to cut a path
through the Jacques’ property, no actual physical damage to the
property, and moved the home via the path ¶ 7-8. The Manitowoc
Sheriff’s department issued a $30 citation to Steenberg’s assistant
manager, and the Jacques commenced an intentional tort action in the
Manitowoc County Circuit Court ¶ 9-10.
Rationale (1) The United States and Wisconsin Supreme Courts both recognize
that individuals have a legal right to exclude others from their private
property. See for example, Dolan v. City of Tigard, 512 U.S. 374,
384 (1994); Nollan v. California Coastal 618*618 Comm'n, 483 U.S.
8125, 831 (1987); and Shooting Club v. Lamoreux, 114 Wis. 44, 59
(1902). Because a fundamental legal right is involved, the law
recognizes that actual harm occurs in every trespass. Therefore in
cases of intentional trespass to land, the nominal damage award is
acknowledgement that, although immeasurable in mere dollars, actual
harm has occurred. Prosser and Keeton on Torts, § 13 (5th ed. 1984).

Society’s duty to punish and deter wrongdoing preserves the integrity

of the legal system. Confidence in the legal system prevents
individuals from engaging in “self-help” remedies. McWilliams v.
Bragg, 3 Wis. 377, 381 (1854). The Jacque Court was also concerned
that the government’s tepid response -- a $30 civil fine -- was
insufficient to “punish and deter,” and without the threat of punitive
damages, the Court reasoned that a would-be trespasser in Steenberg’s
position sometimes might actually find it more profitable to break the
law than to abide by it.

Therefore in cases of intentional trespass to land, the punitive damage

award stands to protect private landowners and society’s significant
interest in excluding others from private land. Because actual harm
has occurred, even if it is not measurable in dollars, the $1 nominal
damage award supports the $100,000 punitive damage award.

(2) The 80-year-old Barnard Rule, held that plaintiffs could not
recover punitive damages against defendants without proving actual
harm. Barnard v. Cohen, 165 Wis. 417 (1917). This Court found the
Barnard Rule erroneous due to the fact that damages still exist even if
they aren’t physical. The blatant violation of the Jacques’ rights was
found to be damage not only to their individual rights, but also to
society.

The Court recognizes that when they change a rule of law, sometimes
inequities will occur, and therefore “sunbursting” is the proper
exception to the Blackstonian Doctrine allowing for a ruling to be
applied prospectively instead of retroactively. This is rarely used, but
is applied when a party heavily relies on the overturned rule to
mitigate wide spread hardships that could occur with retroactive
application of the new holding. See Fitzgerald v. Meissner & Hicks,
Inc., 38 Wis. 2d 571, 157 N.W.2d 595 (1968); Harmann v. Hadley,
128 Wis. 2d 371 (1986); and Colby v. Columbia County, 202 Wis. 2d
342, 550 N.W.2d 124 (1996). Steenberg incorrectly argues that it
heavily relied on the overturned Barnard rule, as Steenberg only relied
on the rule once “overwhelming evidence clearly established
Steenberg’s intentional trespass…” and was only brought into play
after trial, not during. This is not the type of reliance that triggers
sunbursting. See ¶ 36-37.

Prospective application is used when the effects of the overruled

decision impact a substantial number of persons. See Rolo v. Goers,
174 Wis. 2d 709, 497 N.W.2d 742 (1993). Steenberg didn’t claim that
anyone but itself would be affected adversely by the Court’s exception
to the Barnard rule, therefore sunbursting cannot be rightly applied.

The Court also finds that retroactively applying a ruling is “usually

justified as a reward for the litigant who has persevered in attacking an
unsound rule.” As the Jacques have successfully done so, it would be a
deprivation of benefit from the Jacques efforts to apply the ruling
 prospectively. See ¶ 38.

(3) Although the Court holds that punitive damages are entirely within
the discretion of the jury, and that the circuit court has the power to
reduce damages to what the circuit court deems as fair, Malco v.
Midwest Aluminum Sales, 14 Wis. 2d 57, 109 N.W.2d 516 (1961),
this Court expounded further on why $100,000 punitive damages was
not “grossly excessive.”

The Supreme Court in BMW of America v. Gore, 116 S.Ct. 1589

(1996) notes three factors must be considered when deciding if
punitive damages violate the Due Process Clause: “(1) the degree of
reprehensibility of the conduct; (2) the disparity between harm or
potential harm suffered by the plaintiff and the punitive damages
award; and (3) the difference between this remedy and the civil of
criminal penalties,”

The Court found that, because of the egregiousness of the offense,

having been told Steenberg was not permitted on the Jacques’ land,
and the “utter disregard for the rights of the Jacques” Steenberg’s
conduct was highly reprehensible. See ¶ 43-45. When considering the
second factor, this Court held that using a multiplier wouldn’t work on
nominal damages, as nominal damages do not reflect actual damage
caused. See James D. Ghiardi, Punitive Damages in Wisconsin, 1977
Wis. L.Rev. 753.

Because of the egregiousness of Steenberg’s conduct, the punishment

in the statutes doesn’t accurately encompass the fair punishment for
such conduct. The purpose of Wis. Stat. § 939.52(3)(b) is to deter
someone from trespassing, but it did not deter Steenberg. Without high
punitive damages as a punishment, Steenberg will not be deterred
from reprehensible conduct.
Dicta None
Disposition The Supreme Court of Wisconsin reversed and remanded the decision
of the Circuit Court and Court of Appeals with directions.
Concurring and No concurring or dissenting opinions were filed.
Dissenting
Opinions