Jeremy A. Brokaw, Joel Brokaw And Karma Brokaw Vs. Winfield-Mt. Union Community School District And Andrew McSorley

IN THE SUPREME COURT OF IOWA
No. 07–1328

Filed September 10, 2010

JEREMY A. BROKAW, JOEL
BROKAW and KARMA BROKAW,

Appellants,

vs.

WINFIELD-MT. UNION COMMUNITY
SCHOOL DISTRICT and ANDREW
MCSORLEY,

Appellees.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Henry County, John G.

Linn, Judge.

Plaintiffs seek further review of a court of appeals decision

affirming the ruling of the trial court on their claims against defendant

student athlete for assault and battery and against defendant school

district for negligent supervision of athlete. DECISION OF COURT OF

APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.

Martin A. Diaz and Elizabeth Craig of the Martin Diaz Law Firm,

Iowa City, for appellants.

William J. Bush of Bush, Motto, Creen, Koury & Halligan, P.L.C.,
Davenport, for appellee Andrew McSorley.
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Steve Ort of Bell & Ort, New London, for appellee Winfield-Mt.

Union School District.
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BAKER, Justice.

The plaintiffs, Jeremy Brokaw, and his parents, Joel and Karma

Brokaw, seek further review of a court of appeals decision affirming the

ruling of the trial court on their claims against Andrew McSorley for

assault and battery and against the Winfield-Mt. Union Community

School District (WMU) for negligent supervision of McSorley. The

Brokaws contend the court of appeals erred in affirming the decision of

the trial court, which they allege awarded inadequate compensatory

damages against McSorley, incorrectly denied punitive damages, and
erroneously dismissed their negligence claim against WMU. We find the

trial court‘s award of compensatory damages was supported by

substantial evidence, and substantial evidence also supported the trial

court‘s finding WMU could not reasonably foresee that McSorley would

intentionally attack another player. We find no merit to the Brokaws‘

claim that an award of punitive damages was mandatory and conclude

that the trial court did not abuse its discretion in refusing to award

punitive damages.

I. Background Facts and Proceedings.

On January 13, 2004, the varsity basketball team from Iowa

Mennonite High School played the varsity team from WMU. A tape of the

game shows that during the second half of the game, Andrew McSorley, a

guard for WMU, struck Jeremy Brokaw, an Iowa Mennonite player,

causing him to fall to the ground. The tape also shows that Brokaw got

up rather quickly and returned to the Iowa Mennonite bench. He

returned to the game a short time later, but played poorly. Immediately

after McSorley struck Brokaw, the referee called a technical foul on
McSorley and ejected him from the game.
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The Brokaws filed a petition at law seeking actual and punitive

damages from McSorley and WMU. The petition alleged McSorley had

committed an assault and battery against Jeremy Brokaw, and WMU

was negligent in failing to control the conduct of McSorley.

A nonjury trial was held. The trial court found McSorley

committed a battery upon Jeremy. Based upon the court‘s findings, it

issued a judgment against McSorley in the amount of $13,000 for

plaintiffs Joel and Karma Brokaw for past medical expenses, in the

amount of $10,000 for plaintiff Jeremy Brokaw for loss of mind and body
and past pain and suffering, and assessed McSorley the costs of that

portion of the petition brought against him. The court did not award the

plaintiffs any punitive damages. The plaintiffs‘ petition against WMU

was dismissed.

The plaintiffs appealed the trial court decision. WMU cross-

appealed. McSorley did not appeal from the judgment. We transferred

the appeal to the court of appeals which affirmed all aspects of the trial

court‘s decision. We granted further review.

II. Discussion and Analysis.

The Brokaws allege the trial court erred in: (1) calculating the

compensatory damage award, (2) determining WMU could not reasonably

foresee that McSorley would commit a battery upon an opposing player,

and (3) concluding McSorley‘s actions did not warrant an award of

punitive damages.

A. Compensatory Damage Award. Our scope of review of the

trial court‘s decision is for correction of errors at law. Iowa R. App. P.

6.907. Under this scope of review, the trial court‘s findings of fact have
the force of a special verdict and are binding on us if supported by

substantial evidence. Jones v. Lake Park Care Ctr., Inc., 569 N.W.2d 369,
 5

372 (Iowa 1997). ―We view the evidence ‗in the light most favorable to the

trial court‘s judgment.‘ ‖ Miller v. Rohling, 720 N.W.2d 562, 567 (Iowa

2006) (quoting Bates v. Quality Ready-Mix Co., 261 Iowa 696, 699, 154

N.W.2d 852, 854 (1967)).

The Brokaws allege substantial evidence does not support the trial

court‘s compensatory damage award. The trial court awarded Joel and

Karma Brokaw $13,000 for past medical expenses incurred as a result of

Jeremy‘s injury. It also awarded Jeremy $5,000 for loss of function to

his mind and body, and $5,000 for physical and mental pain and
suffering. After reviewing the evidence presented by both parties, the

trial court declared it had difficulty determining: (1) which of Jeremy‘s

symptoms were caused by the battery, (2) what role subsequent injuries

had on his symptoms, and (3) whether Jeremy had mitigated his

damages.

We conclude substantial evidence supported the trial court‘s

findings of fact relating to Jeremy‘s damages. Compensatory damages or

actual damages are intended to compensate the victim for the injury

sustained by another party‘s wrongful acts. Ryan v. Arneson, 422

N.W.2d 491, 496 (Iowa 1988). The Brokaws‘ request for relief provides

an itemization of damages to be paid by McSorley and WMU. The

requested damages total more than 1.5 million dollars.

While the trial court found McSorley was responsible for a portion

of Jeremy‘s damages, the court ultimately concluded the Brokaws failed

to prove by a preponderance of the evidence that McSorley‘s battery

proximately caused Jeremy to sustain damages for past lost wages, loss

of future earning capacity, future medical expenses, future loss of full
mind and body, and future medical pain and suffering. The court found

Jeremy‘s claim for damages in these categories speculative.
 6

At trial, the Brokaws introduced medical testimony that Jeremy

suffers from postconcussion syndrome, and McSorley‘s assault was the

most likely cause of this injury as Jeremy‘s symptoms started after the

incident. Dr. George Phillips, Jeremy‘s treating physician, described

postconcussion syndrome as follows:

Postconcussion syndrome tries to show that there is a
continuum of symptoms that related back to prior head
trauma, and it‘s a diagnosis that tries to take into account
the symptoms on the different scales. So . . . there are the
physical symptoms of headache and nausea, there are the
cognitive symptoms of memory problems and difficulty
concentrating, there can be the emotional symptoms of mood
swings and anxiety, depression or anger. So it really tries to
account for all of those things.

The Brokaws also introduced several witnesses that testified

Jeremy underwent a personality and behavior change after the assault.

These witnesses indicated that before the incident Jeremy was an active

leader at school and in his church community. The witnesses stated

after the assault, Jeremy functioned at ―fifty percent‖ of what he was

capable of before the accident. He now has a hard time concentrating,

becomes easily distracted, has memory problems, and has difficulty

learning new information. In his last year of high school, the staff at

Iowa Mennonite developed a special accommodation plan to address

these symptoms.

The trial court, however, gave a detailed explanation for the

compensatory damages it awarded the Brokaws. In its explanation, the

court pointed out several concerns it had in determining the amount of

damages proximately caused by McSorley‘s battery. The most important

among those concerns are: (1) that Jeremy‘s symptoms are ―problematic

and difficult, if not impossible, to reconcile‖; and (2) Jeremy‘s claim for
damages involves potential second and subsequent injuries.
 7

The trial court found Jeremy‘s symptoms were ―unusual,

inconsistent and varied. . . . [Some] appear consistent with

postconcussion syndrome, but other symptoms create doubt in the

Court‘s mind as to what is actually going on in Jeremy‘s life.‖ In his

medical records report, Jeremy consistently complained of headaches,

but at various times he also complained of stomachaches, dizziness,

vertigo, problems judging distance, weakness in his legs, short-term

memory problems, difficulty sleeping, mood swings, altered smells and

tastes, and hallucinations. These symptoms are not constant, but seem
to wax and wane. Several reports indicate some of Jeremy‘s symptoms

are not typical of postconcussion syndrome and are possibly caused by

stress, anxiety, and other personality problems rather than the head

injury. In a medical report, Dr. George Phillips writes that all of these

symptoms ―may‖ be related to Jeremy‘s postconcussion syndrome, but

there is no definitive testimony that they in fact are the result of his head

injury. There is substantial evidence to support the trial court‘s

conclusion that ―[i]t is virtually impossible . . . to determine what

symptoms were actually caused by [McSorley‘s] action in striking Jeremy

in the head with an elbow.‖

The trial court also found Jeremy‘s damages involve potential

second and subsequent injuries. Medical records show Jeremy was

largely symptom free ten days after the incident and was cleared by Dr.

Jerold Woodhead to return to athletics four days later. The records also

indicate that on February 2 or 3, 2004, Jeremy slipped and fell on ice.

Though he did not hit his head, he did receive a significant jolt and three

days later called Dr. Phillips complaining of intermittent headaches.
Jeremy told Dr. Phillips that these headaches were not similar to those

he experienced immediately after McSorley‘s attack. The record also
 8

reveals Jeremy was diagnosed with a concussion on July 22, 2005, after

he was hit in the head with an eighty-three-mile-an-hour pitch during a

baseball game.

The Brokaws suggest Jeremy‘s subsequent injuries do not qualify

as intervening causes because an intervening cause ― ‗exists when an

independent and unforeseeable intervening or secondary act of

negligence occurs, after the alleged tortfeasor‘s negligence, and that

secondary act becomes the sole proximate cause of the plaintiff‘s

injuries.‘ ‖ Seide v. State, 875 A.2d 1259, 1270 (R.I. 2005) (quoting
Contois v. Town of W. Warwick, 865 A.2d 1019, 1027 (R.I. 2004)). They

claim these two incidents only exacerbated the injuries Jeremy sustained

from McSorley‘s assault. They presented further evidence from Dr.

Phillips which suggested that the initial head trauma put Jeremy at risk

for greater injury in a subsequent event. In other words, the blow to

Jeremy‘s head was a proximate cause of Jeremy‘s enhanced injuries from

the fall on the ice because, but for the initial head injury, his subsequent

injuries would not have been as severe. However, Jeremy had been

symptom free since January 23, 2004, and told Dr. Phillips that the

headaches from the February 2004 fall were different than those he

suffered after the basketball incident. Dr. Phillips could not state with

any degree of medical certainty that the two symptoms from the two

events were in any way related. Similarly, there was no testimony

linking the symptoms from the baseball incident to the basketball

incident. Due to the conflicting medical evidence, we find that there was

substantial evidence to support the district court‘s award of

compensatory damages.
B. Negligence Claim. Again, we review the trial court‘s decision

for correction of errors at law. Iowa R. App. P. 6.907.
 9

1. Duty. The district court analyzed the Brokaws‘ claim against

the school district in terms of whether WMU negligently supervised

McSorley. For this proposition, the district court cited Godar v.

Edwards, 588 N.W.2d 701 (Iowa 1999), a case decided under the

Restatement (Second) of Torts. Although Godar describes this cause of

action as a negligent supervision case, Godar was, in fact, a case

involving the negligent control of a third party‘s actions, i.e., the alleged

perpetrator of abuse upon a student. Godar, 588 N.W.2d at 707–08; cf.

City of Cedar Falls v. Cedar Falls Cmty. School Dist., 617 N.W.2d 11, 18
(Iowa 2000) (involving the negligent supervision of a student who hit

another student with a golf cart). Godar, however, makes it clear that

school districts have a duty of reasonable care in providing for the safety

of students from the harmful actions of fellow students, a teacher, or

other third persons. Godar, 588 N.W.2d at 708.

Godar, however, limited that duty of reasonable care ―by what risks

are reasonably foreseeable.‖ Id. In Thompson v. Kaczinski, 774 N.W.2d

829 (Iowa 2009), we adopted the principles of the Restatement (Third) of

Torts: Liability for Physical Harm, which provide that ―the assessment of

the forseeability of a risk‖ is no longer part of the duty analysis, but is ―to

be considered when the [fact finder] decides if the defendant failed to

exercise reasonable care.‖ Thompson, 774 N.W.2d at 835 (citing

Restatement (Third) of Torts: Liab. for Physical Harm § 7 cmt. J, at 97–

98 (Proposed Final Draft No. 1, 2005) [hereinafter Proposed Final Draft]).

The case before us was decided prior to our adoption of the

Restatement (Third) analysis in Thompson. Nonetheless, when the

district court discussed breach of duty, it spoke of the forseeability that
McSorley would assault another player, an analysis consistent with the

Restatement (Third). On appeal, neither party has assigned the
 10

analytical framework utilized by the trial court as error. Therefore,

because the district court factored foreseeability into its analysis of

breach rather than duty, we believe that an analysis under the

Restatement (Third) is appropriately used on appeal.1

Turning then to the Restatement (Third), we held in Thompson that

― ‗[a]n actor ordinarily has a duty to exercise reasonable care when the

actor‘s conduct creates a risk of physical harm.‘ ‖ Thompson, 774

N.W.2d at 834 (quoting Proposed Final Draft No. 1 § 7(a), at 90). Only

―in exceptional cases‖ will this general duty of reasonable care not apply.
Id. at 835. ―An exceptional case is one in which ‗an articulated

countervailing principle or policy warrants denying or limiting liability in

a particular class of cases.‘ ‖ Id. (quoting Proposed Final Draft No. 1 §

7(b), at 90). WMU does not argue that coaches as a class have no duty of

reasonable care to control the actions of their players; it simply argues

there was no foreseeable risk under the facts presented here. We

conclude, therefore, that the general duty to exercise reasonable care

applies here.

2. Breach of Duty. The Restatement (Third) specifically addresses

the situation where a defendant may be held liable for the actions of a

third party. Restatement (Third) of Torts: Liab. for Physical and

1Notwithstanding our decision to analyze this case using the framework of the
Restatement (Third), we note that the result would be the same under the Restatement
(Second). In Godar we held that a school district could not be held liable for negligent
control of a third person if it ― ‗could not reasonably foresee that [its] conduct would
result in an injury or if [its] conduct was reasonable in light of what [it] could
anticipate.‘ ‖ Godar, 588 N.W.2d at 708 (quoting Marquay v. Eno, 662 A.2d 272, 279
(N.H.1995)). Similarly, under the Restatment (Third), the risk is sufficiently foreseeable
to provide a basis for liability when ―the actor [has] sufficient knowledge of the
immediate circumstances or the general character of the third party to foresee that
party‘s misconduct.‖ Restatement (Third) of Torts: Liab. for Physical and Emotional
Harm § 19 cmt. f, at 220 (2010).
 11

Emotional Harm § 19, at 215 (2010) [hereinafter Restatement (Third)]

(―The conduct of a defendant can lack reasonable care insofar as it

foreseeably combines with or permits the improper conduct of the

plaintiff or a third party.‖). This section imposes liability where the

actions of the defendant ―increase the likelihood that the plaintiff will be

injured on account of the misconduct of a third party.‖ Id. § 19 cmt. e,

at 218; accord id. § 30, at 542 (―An actor is not liable for harm when the

tortious aspect of the actor‘s conduct was of a type that does not

generally increase the risk of that harm.‖); see also Royal Indem. Co. v.
Factory Mut. Ins. Co., 786 N.W.2d 839, 850 (Iowa 2010).

The Restatement (Third) cites the following examples of situations

where the defendant has created or increased the likelihood of injury by

a third person:

For example, the defendant‘s conduct may make available to
the third party the instrument eventually used by the third
party in inflicting harm; or that conduct may bring the
plaintiff to a location where the plaintiff is exposed to third-
party misconduct; or that conduct may bring the third party
to a location that enables the third party to inflict harm on
the plaintiff; or the defendant‘s business operations may
create a physical environment where instances of
misconduct are likely to take place; or the defendant‘s
conduct may inadvertently give the third party a motive to
act improperly.

Restatement (Third) § 19 cmt. e, at 218.

Two of the above examples may have specific application in a

sports setting. For example, where a coach exhorts his players to injure

an opposing team‘s star player, the coach has provided motivation for a

player to act improperly. This situation does not exist here. This case

does, however, present a situation where the defendant‘s ―conduct may
bring the third party to a location that enables the third party to inflict

harm on the plaintiff.‖
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The comments to section 19 of the Restatement (Third) recognize

that in this situation, there is not a clean delineation between negligence

and scope of liability. Restatement (Third) § 19 cmt. c, at 216–17 (―[T]he

issues of defendant negligence and scope of liability often tend to

converge.‖). As the comments explain:

This Section is to a large extent a special case of § 3, and
findings of defendant negligence under this Section hence
largely depend on consideration of the primary negligence
factors set forth in § 3. One factor is the foreseeable
likelihood of improper conduct on the part of the plaintiff or
a third party. A second factor is the severity of the injury
that can result if a harmful episode occurs. The third factor
concerns the burden of precautions available to the
defendant that would protect against the prospect of
improper conduct by the plaintiff or a third party. The same
rationales of fairness and deterrence that in general justify
negligence liability likewise render appropriate findings of
actionable negligence under this Section.

Restatement (Third) § 19 cmt. d, at 217.

Where liability is premised on the negligent or intentional acts of a

third party, however, as it is in this case, ―the law itself must take care to

avoid requiring excessive precautions of actors relating to harms that are

immediately due to the improper conduct of third parties, even when that

improper conduct can be regarded as somewhat foreseeable.‖ Id. § 19
cmts. g, h, at 220–21. For example, a person ―who merely loans a car to

an ordinary friend for the evening is not guilty of negligence in entrusting

the car, even though there is some abstract possibility that the friend

might drive the car negligently or recklessly in the course of the evening.‖

Id. cmt. f, at 219. However, if the friend has been drinking or has had

his or her license revoked for previous episodes of deficient driving, a

person could be negligent for lending the car. Id. The risk is sufficiently
foreseeable to provide a basis for liability when ―the actor [has] sufficient
 13

knowledge of the immediate circumstances or the general character of

the third party to foresee that party‘s misconduct.‖ Id. at 220.

This principle is readily applied to an athletic coaching situation.

During the course of a game, a coach must make the determination

whether to allow a player to participate or bench that player. If the

coach‘s knowledge of the immediate circumstances or the general

character of the player should alert the coach that misconduct is

foreseeable, then reasonable care would require the coach to make the

decision to bench that player until the risk of harm has dissipated.
The district court, in applying the forseeability test, framed the

question as whether the school district knew, or in the exercise of

reasonable care should have known, that McSorley was likely to commit

a battery against an opposing player. The plaintiffs assert that the trial

court asked the wrong question in determining whether a breach

occurred. The plaintiffs seek to frame the issue as whether WMU could

reasonably foresee that McSorley could act in an unsportsmanlike

manner sufficient to potentially cause injury to another, while the trial

court framed the issue as whether WMU could foresee that McSorley

would intentionally strike another player in a violent fashion.

That physical contact, even intentional physical contact, and

injuries will occur in high school basketball games is somewhat

foreseeable. In an analogous situation, the Massachusetts Supreme

Court commented:

In a general sense, one can always foresee that, in the thrill
of competition and the heat of battle inherent in a contact
sport, any player might some day lose his or her temper and
strike an opposing player. If that possibility alone sufficed to
make an assault on the field of play reasonably ―foreseeable,‖
schools and coaches would face liability every time they
allowed their enthusiastic players to take the field against an
opposing team. For these purposes, foreseeability must
 14
mean something more than awareness of the ever-present
possibility that an athlete may become overly excited and
engage in physical contact beyond the precise boundaries of
acceptably aggressive play.

Kavanagh v. Trs. of Boston Univ., 795 N.E.2d 1170, 1178 (Mass. 2003).

Consistent with both the Restatement (Third) and Godar, the

district court posed the proper question in determining whether a breach

of duty occurred, i.e., whether the harm that occurred here—McSorley‘s

intentional battery—was a foreseeable risk under the circumstances.

The Brokaws‘ true challenge, therefore, is one of fact. Thompson, 774

N.W.2d at 835; see also Vaillancourt v. Latifi, 840 A.2d 1209, 1215

(Conn. App. Ct. 2004).

3. Sufficiency of the evidence. The trial court‘s findings of fact,

viewed in the light most favorable to the trial court‘s judgment, have the

force of a special verdict and are binding on us if supported by

substantial evidence. Jones, 569 N.W.2d at 372. ―Evidence is not

insubstantial merely because we may draw different conclusions from it;

the ultimate question is whether it supports the finding actually made,

not whether the evidence would support a different finding.‖ Raper v.

State, 688 N.W.2d 29, 36 (Iowa 2004) (citation omitted).
The question of whether WMU breached its duty of care turns on

WMU's knowledge of McSorley‘s general character or the nature of the

immediate circumstances, a question of fact. Restatement (Third) § 8, at

103. On these factual issues, the district court determined that ―WMU

officials did not know, nor in the exercise of ordinary care should have

known, that [McSorley] was likely to commit a battery against an

opposing player.‖

The district court made the factual determination that WMU did
not have sufficient knowledge of McSorley‘s general character to breach
 15

its duty of care. Although WMU‘s athletic director admitted McSorley

had a reputation for having a short fuse and believed it important to

―keep an eye on him,‖ there was conflicting evidence as to how much the

school district and its agents knew about McSorley‘s reputation. The

Brokaws highlight an alleged incident in a previous game against

Danville where McSorley allegedly intentionally kicked a defenseless

player in the head when the player was on the floor after a scramble for

the ball. The trial court found this version of the incident to be

unsubstantiated. At trial, the other player admitted he could not
remember where McSorley allegedly kicked him. He also testified that he

purposefully grappled with McSorley and wrestled him to the ground.

After listening to this testimony, the district court also found the Danville

player‘s version of the incident to be unsubstantiated and stated the

incident ―does not establish that [McSorley] was an aggressive or

assaultive player.‖

There is substantial evidence to support the trial court‘s view that

McSorley played intensely, but as the trial court stated, McSorley

had never exhibited characteristics of being physically
assaultive or being a dangerous individual. The previous
incident between Andrew and Danville player Schlarbaum
does not establish that Andrew was an aggressive or
assaultive player. . . . Andrew never previously fouled out of
any basketball game, and only once previously received a
technical foul, and that was for cursing. Andrew has never
been a discipline problem, never had previously gotten into a
fight, and did not have a reputation for being an aggressive
player.

The evidence the Brokaws highlight shows McSorley was an

intense player, even one who tended to become frustrated or had a short

fuse; however, this evidence does not necessarily mandate a factual
finding as a matter of law that based on knowledge of McSorley‘s general
 16

character it was foreseeable he was likely to commit battery on other

players.

The Brokaws also allege that prior to assaulting Jeremy the

immediate circumstances should have alerted WMU to the likelihood that

McSorley would commit an assault. Brokaws assert that McSorley took

a swing at another player within view of the coaches‘ bench and engaged

in an egregious undercutting foul. After reviewing the videotape of the

game several times, the district court determined both of these claims

were unsubstantiated. The district court came to these conclusions after
a full trial and review of all the evidence. The district court, as the fact

finder, determines witness credibility and the weight of the evidence as a

whole, State v. Laffey, 600 N.W.2d 57, 59 (Iowa 1999), and we will not

disturb the district court‘s findings if they are supported by substantial

evidence. Meyers v. Delaney, 529 N.W.2d 288, 289–90 (Iowa 1995).

The trial court found McSorley always played basketball intensely,

but not aggressively, and WMU could not have foreseen that he would

commit a battery against Jeremy Brokaw. While reasonable minds could

differ on the factual determinations, we have reviewed both the trial

testimony and the videotape of the game and conclude there was

substantial evidence in support of the district court‘s findings.

Because we find that the trial court applied the correct legal

standard and substantial evidence supports the court‘s findings of fact,

we do not address WMU‘s cross-appeal.

C. Punitive Damage Award. Finally, the Brokaws claim the trial

court erred in its denial of punitive damages. The Brokaws‘ sole

contention is that ―[t]he trial court had to impose punitive damages and
it was error to refuse to do so,‖ i.e., that the award of punitive damages is

mandatory where a battery is found.
 17

The Brokaws cite only the Iowa State Bar Association instruction

as authority for this proposition. The instruction cited, however,

provides no support for the Brokaws‘ assertion that the ―court had to

impose punitive damages.‖ Iowa Civil Jury Instruction 210.1 provides:

Punitive damages may be awarded if the plaintiff has proven
by a preponderance of clear, convincing and satisfactory
evidence the defendant‘s conduct constituted a willful and
wanton disregard for the rights or safety of another and
caused actual damage to the plaintiff.

Iowa Bar Ass‘n, Iowa Civil Jury Instructions 210.1 (available at

http://iabar.net) (emphasis added).

This is a correct statement of the law and is consistent with the

statutory guidelines for imposing punitive damages found in Iowa Code

section 668A.1(a) (2003). Neither the instruction nor the Code, however,

provides support for the Brokaws‘ contention that punitive damages were

mandatory in this instance.

―[A] key feature of punitive damages [is] that they are never

awarded as of right, no matter how egregious the defendant‘s conduct.‖

Smith v. Wade, 461 U.S. 30, 52, 103 S. Ct. 1625, 1638, 75 L. Ed. 2d 632,

648–49 (1983). We too have long held that ―[p]unitive damages are

always discretionary, and are not a matter of right.‖ Berryhill v. Hatt,
428 N.W.2d 647, 656 (Iowa 1988) (citing Rowen v. Le Mars Mut. Ins. Co.

of Iowa, 282 N.W.2d 639, 661 (Iowa 1979)); see also Lala v. Peoples Bank

& Trust Co. of Cedar Rapids, 420 N.W.2d 804, 807 (Iowa 1988) (―Punitive

damages are awarded as punishment and as a deterrent to the

wrongdoer and others. These damages are incidental to the main cause

of action and are not recoverable as of right.‖). We therefore hold that to

the extent the Brokaws assert the trial court committed error because
punitive damages are mandatory, this argument is without merit.
 18

Because the award of punitive damages is always discretionary, we

review the trial court‘s refusal to award punitive damages for an abuse of

discretion. Wilson v. IBP, Inc., 589 N.W.2d 729, 732 (Iowa 1999) (― ‗A

plaintiff is never entitled to punitive damages as a matter of right; their

allowance or denial rests entirely in the discretion of the trier of fact.‘ ‖

(quoting Ramada Inns, Inc. v. Sharp, 711 P.2d 1, 2 (Nev. 1985))); see also

Peters Corp. v. N.M. Banquest Investors Corp., 188 P.3d 1185, 1197 (N.M.

2008) (―We review a trial court‘s decision not to award punitive damages

for abuse of discretion, and we will only reverse that decision if it is
‗contrary to logic and reason.‘ ‖ (quoting N.M. Hosp. Ass’n v. A.T. & S.F.

Mem’l Hosps., Inc., 734 P.2d 748, 753 (N.M. 1987))).

Iowa Code section 668A.1 sets the standard for awarding punitive

damages. This section provides that the conduct at issue must be a

―willful and wanton disregard for the rights or safety of another.‖ Iowa

Code § 668A.1(a). This willful requirement must be proven by a

preponderance of clear, convincing and satisfactory evidence. Id. We

have previously stated that in the context of section 668A.1, ―willful and

wanton‖ means

―[t]he actor has intentionally done an act of unreasonable
character in disregard of a known or obvious risk that was
so great as to make it highly probable that harm would
follow, and which thus is usually accompanied by a
conscious indifference to the consequences.‖

McClure v. Walgreen Co., 613 N.W.2d 225, 230 (Iowa 2000) (quoting Fell
v. Kewanee Farm Equip. Co., 457 N.W.2d 911, 919 (Iowa 1990)).
The trial court determined McSorley committed a battery upon
Jeremy when McSorley ―clearly and intentionally struck Jeremy . . . [by]
us[ing] his elbow somewhat like a battering ram and purposely,
intentionally sw[inging] it at Jeremy‘s head, striking him in the left side.‖
This description indicates the court recognized that punitive damages
 19

were available. The court denied punitive damages, however, after
viewing all the evidence, stating:

Although his battery of Jeremy was intentional, the context
in which this unfortunate behavior occurred must also be
considered. During the heat of a basketball game, Andrew
acted in frustration and swung his elbow at Jeremy. The
record contains no evidence that Andrew acted with personal
spite, hatred, or ill will.2

The trial court took into account the nature of McSorley‘s action,

characterizing it as a ―split-second decision, in the heat of the moment‖

during a close basketball game and found that ―although intentional,

does not rise to the level of justifying an award of punitive damages.‖ We

find that the trial court did not abuse its discretion in refusing to award

punitive damages.

III. Disposition.

We find substantial evidence supported the trial court‘s award of

compensatory damages and its finding WMU could not reasonably

foresee that McSorley would intentionally attack another player. We find

no merit to the Brokaws‘ claim that an award of punitive damages was

mandatory under the facts of this case and conclude that the trial court

did not abuse its discretion in refusing to award punitive damages.
DECISION OF COURT OF APPEALS AND JUDGMENT OF

DISTRICT COURT AFFIRMED.

2The court also stated that the ―intentional act does not rise to the level of
demonstrating a willful or reckless disregard for Jeremy‘s rights.‖ The Brokaws have
not challenged this statement. In committing the battery, however, McSorley committed
a wrongful act which necessarily entailed willful and reckless disregard for another‘s
rights. The commission of a battery, however, merely allows, but does not mandate, the
award of punitive damages. See, e.g., Fenwick v. Oberman, 847 A.2d 852, 855 (R.I.
2004). If the threshold determination of ―willful and wanton conduct‖ has been met, the
court proceeds to a second step: whether in its discretion the facts of a particular case
warrant the imposition of punitive damages. See Smith, 461 U.S. at 52, 103 S. Ct. at
1638, 75 L. Ed. 2d at 649; see also McClure, 613 N.W.2d at 230–31.