(concurring).
¶ 67. The majority opinion concludes that the plaintiffs (collectively "Wischer") submitted sufficient evidence for a question on punitive damages to go to the jury, majority op., ¶ 8, a conclusion with which I agree. I write separately in concurrence because I disagree with the majority's rationale. I also agree with the majority's decision declining to address the issue of the constitutionality of the amount of the punitive damages award because of numerous unresolved issues that are not before us.
I. SUFFICIENCY OF EVIDENCE
¶ 68. A question regarding punitive damages may be submitted to the jury if a reasonable jury could find from the evidence that entitlement to punitive damages has been proven by clear and convincing evidence. See Strenke v. Hogner, 2005 WI 25, ¶ 41, 279 Wis. 2d 52, 694 N.W.2d 296. This is a question of law that we review de novo. See Walter v. Cessna Aircraft Co., 121 Wis. 2d 221, 231, 358 N.W.2d 816 (Ct. App. 1984). The evidence must be such that it is sufficient to satisfy Wis. Stat. § 895.85(3) (1999-2000)1 as proving an intentional disregard of the rights of the plaintiff. Apex Elecs. Corp. v. Gee, 217 Wis. 2d 378, 389 n.14, 577 N.W.2d 23 (1998). Section 895.85(3) states:
*38The plaintiff may receive punitive damages if evidence is submitted showing that the defendant acted maliciously toward the plaintiff or in an intentional disregard of the rights of the plaintiff.
¶ 69. Pursuant to Wis. Stat. § 896.85(3), only an intentional disregard of rights, as compared with a reckless disregard of rights, will support an award of punitive damages. Therefore, when we are faced with a challenge to whether the evidence was sufficient to submit a question on punitive damages to the jury, we are required to examine evidence relevant to the defendant's state of mind. See Allied Processors, Inc. v. Western Nat'l Mut. Ins. Co., 2001 WI App 129, ¶ 38, 246 Wis. 2d 579, 629 N.W.2d 329. Here, we do so through the actions of agents of Mitsubishi Heavy Industries America, Inc. (MHIA) who were then in charge of the lift. Walter, 121 Wis. 2d at 227.
¶ 70. We have concluded that an intentional disregard may be shown by proof that the person "is aware that his or her conduct is substantially certain to result in the plaintiffs fights being disregarded." Strenke, 279 Wis. 2d 52, ¶ 36 (emphasis added). In order to satisfy this awareness requirement and establish the requisite intentional state of mind, a plaintiff must show both: (1) that the defendant was aware of what facts were substantially certain to cause a disregard of plaintiffs rights and (2) that the defendant was aware at the time of the conduct under examination that those facts existed. Therefore, in the case before us, Wischer must have submitted evidence to the jury to show that: (1) MHIA was aware of what level of wind speed would make the lift too dangerous to undertake and (2) MHIA was aware at the time of the lift that wind speeds were then in excess of permissible limits. Stated otherwise, it is the awareness of wind speeds that were too *39dangerous at the time of the lift, which MHIA is deemed to have through the facts known to its supervisory employees, that determines the nature of MHIA's conduct at the time of the accident, i.e., whether the conduct was reckless or intentional.
¶ 71. In the case before us, Wischer argues that MHIA was aware that its conduct was substantially certain to result in the plaintiffs' rights being disregarded. The right that is at issue here is the right of the ironworkers not to be subjected to conditions at the time of the lift that were substantially certain to result in injury to them. In order to establish that MHIA had the requisite state of mind, Wischer had to provide credible testimony that a supervisory employee of MHIA, who had the authority to stop the lift, was aware of what wind speeds could not safely be exceeded and that at the time of the lift, the supervisory employee knew the wind speeds exceeded those limits. Awareness of the wind speeds at the time of the lift is necessary to establish that conducting the lift under wind conditions then in existence was an intentional disregard of Wischer's rights, rather than a reckless disregard of those rights.
¶ 72. Victor Grotlisch, MHIA site superintendent, testified that if either he or Wayne Noel, MHIA safety superintendent, had observed wind speeds in excess of 20 miles per hour, with gusts to 26 miles per hour, and yet proceeded with the lift, that would have been a conscious disregard of the safety of the ironworkers.2 Therefore, MHIA, itself, provided testimony that sus*40tained winds in excess of 20 miles per hour created conditions too dangerous to proceed with the lift.
¶ 73. The majority opinion focuses largely on the conduct of Grotlisch and on expert testimony showing that wind-load calculations should have been done, but were not. In so doing, it fails to show that MHIA had the requisite awareness of the wind speed at the time of the lift, which fact is necessary in order to prove the intentional state of mind required by Wis. Stat. § 895.85(3).
¶ 74. However, there is testimony in the record that Noel had the authority to stop the lift and also had the requisite awareness of wind speeds at the time of the lift. He explained this at trial, in part through the following adverse examination:
Q: Did Mr. Grotlisch have authority to shut down the lift if he felt it was unsafe to go?
A: Yes, he was one of the ones that could have, yes, sir.
Q: And were you also one of them?
A: Yes, sir.
Q: Could you do that without consulting with Victor Grotlisch?
A: I would try to include all the team players, sir.
Q: But my question is, could you, if you felt—
A: Yes, anybody could, sir.
Noel said that he did not know that the wind speed at the time of the lift was at a level that would be too dangerous to proceed with the lift. However, Michael *41Ellison, an ironworker who was familiar with Noel's radio instructions and was present when the accident occurred, stated that approximately 90 minutes before the accident he heard Noel report wind speeds that were clearly over the permissible limits set by Grotlisch and Noel. Ellison testified as follows:
Q: Mr. Ellison, at approximately 3:30 p.m., did you also hear Wayne Noel make a statement on the radios?
A: Yes, sir, I did.
Q: And would you please tell the jury what you heard from Wayne Noel over the radio at that time?
A: He said, gentlemen, I would like for you to know that I have reports of wind speeds of 32 miles per hour.
While cross-examination tried to show that Ellison mistook the voice of another for Noel, and that the time at which he said he heard Noel may not have been precise, the jury was entitled to accept Ellison's statement as Noel's awareness that at the time the lift was ongoing there were wind gusts of 32 miles per hour.
¶ 75. The jury was also entitled to believe Robert Becker, an ironworker who testified to hearing Noel on the radio only one hour before the crane failed, causing the three men in the man-basket to fall. He testified:
Q: ... [D]id you hear a communication made by Wayne Noel over the radio?
A: Yes, I did.
*42Q: And when was that?
A: Approximately an hour before the collapse.
Q: Okay. And at that time where was the crane and the roof piece?
A: It was approximately 20 feet from the target area.
Q: And had you, on prior occasions and on that day, heard Wayne Noel's voice over the radio?
A: Yes, I had.
Q: And were you able to recognize his voice?
A: Yes, I had.
Q: What did you hear from Mr. Noel over the radio at that time?
[A] He stated that we had sustained winds at 26 to 28 miles an hour.
¶ 76. Therefore, the jury had before it testimony that Noel, who could have called off the lift, was aware that doing a lift in winds in excess of 20 miles per hour was unreasonably dangerous, even without doing any wind-load calculations. Additionally, the jury heard testimony that Noel was aware that at the time of the accident, wind speeds exceeded 20 miles per hour. This is sufficient evidence from which a reasonable jury could find, by the clear and convincing standard of proof, that MHIA was aware that its conduct was substantially certain to result in Wischer's rights being *43disregarded. Accordingly, I conclude that the question on punitive damages was properly submitted for jury consideration.
II. UNRESOLVED ISSUES
¶ 77. The majority declined to address the issue of the constitutionality of the amount of the punitive damages award because of numerous unresolved issues that are not before us, giving two examples of issues that could impact a constitutional analysis of the award. I also note that whether the decedents were loaned employees of MHIA and therefore barred from bringing claims against MHIA by the exclusive remedy rule of the Worker's Compensation Act, Wis. Stat. § 102.03(2), is an unresolved issue that could impact the punitive damages award.
¶ 78. Upon the foregoing reasons, I respectfully concur.
All subsequent references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated.
Grotlisch testified that he believed the wind speeds were 15 to 17 miles per hour at the time of the lift. Noel also denied awareness of wind speeds in excess of 20 miles per hour, which he said was the wind limit for man-baskets that were used during the lift.