(dissenting).
I respectfully dissent from that part of the majority opinion affirming punitive damages for plaintiffs Bucko and Jaskow-iak. I agree with the court of appeals panel that unanimously concluded there was no clear and convincing proof of willful indifference in the testing of these two employees.
I.
The Bank’s first use of the polygraph was, apparently, in 1980. In August of that year the Bank administered a polygraph test to employee D.K. The employee failed the test, was fired, and then applied for unemployment compensation. The Bank opposed unemployment compensation on the ground that D.K. had been guilty of theft as proven by the failed polygraph test. A claims deputy granted D.K. benefits and, on November 17, 1980, the Appeals Tribunal affirmed, ruling that *100results of the polygraph were not admissible in evidence and, consequently, there was nothing to substantiate the employer’s claim of misconduct. David Nelson, the Bank’s in-house counsel, in preparation for the hearing, did some research on the admissibility of polygraph test results, but he did not discover Minn.Stat. § 181.75.1 The employee D.K. had been requested to take the polygraph by Robert Cornell, a bank officer who doubled as security officer. Cornell, too, was unaware that to request a polygraph test was unlawful.
On December 10 and 11, 1980, in connection with a different security matter, the two plaintiffs in this lawsuit, Robert Bucko and Terry Jaskowiak, took the polygraph test, also at the request of Cornell.
In early January 1981, several weeks later, Allen Lavanger, a former FBI agent, succeeded Cornell as the bank’s security officer. Lavanger testified he had been told by the head of the Bureau of Criminal Apprehension that there was a state law prohibiting private employers from polygraph testing of their employees. Consequently, Lavanger said his practice was to ask an employee if he or she would submit to a polygraph if requested by law enforcement officers. Lavanger never read the statute.
In October 1984 the Bank was sued for a polygraph test it had requested and taken of an employee in April 1983. The Bank says this is when it first learned about section 181.75, and it then stopped all testing.
The jury was instructed, “Now the acts of the Bank after 1980 as to Mr. Bucko and Mr. Jaskowiak * * * are not to be considered in deciding whether punitive damages should be awarded * * * the jury was then further told that any polygraph testing occurring after 1980 “may be used by you in determining the amount of punitive damages if you should find that such damages should be awarded.”
II.
Bucko and Jaskowiak needed to prove that when they were given the polygraph test the Bank either knew or was willfully indifferent to knowing that it was illegal for an employer to ask an employee to take a polygraph test. There was no proof that the Bank knew about section 181.75 and its prohibition against testing in December 1980.2 Consequently, plaintiff’s case for punitive damages depended on showing the Bank was willfully indifferent to knowing the true facts about polygraph testing. For this critical proof, plaintiffs relied on the unemployment compensation proceedings held in August and November of 1980. So far as the record shows, however, at the unemployment compensation proceedings nobody questioned the legality of giving the tests to the employees. Section 181.75, subdivision 2, says the Department of Labor and Industry “shall investigate suspected violations of this section.” Significantly, • no investigation ensued following the unemployment compensation proceedings.
The fact that the Bank was unaware of the existence of section 181.75 is not a defense to its violation of the statute and imposition of criminal penalties and compensatory damages. See Minn.Stat. § 609.-02, subd. 9(5) (1990) (“Criminal intent does not require proof of knowledge of the existence * * * of the statute under which the actor is prosecuted * * *.”) But ignorance of the statute’s existence, unless and until it rises to the level of willful indifference, will not support superimposing punitive damages upon compensatory damages.3
*101For ignorance of the law to constitute willful indifference, it seems to me there has to be proof that the Bank deliberately chose to be unaware of section 181.75. At the very minimum, there has to be a clear and convincing showing of facts known to the Bank that would have put the Bank on inquiry into the legality of soliciting employees to take a polygraph test, and that the Bank, having been put on inquiry, deliberately turned a deaf ear and a blinkered eye.
When the legislature in 1990 changed the wording of the test for punitive damages from “willful indifference” to “deliberate disregard,” it did not, in my opinion, change the test; it only clarified the test. The problem with the word “indifference” is that it has several connotations, not all of which are appropriate within the context of punitive damages. In addition to meaning lack of concern or disregard for the rights of others (the correct test), the word “indifference” connotes incuriousness, apathy, or an attitude of listlessness or uninterested neutrality; but none of these additional meanings, even if modified by “willful,” connotes the state of mind requisite for punitive damages. (Indeed, to be willfully apathetic is almost a contradiction in terms.)
If Allen Lavanger, not Cornell, had been the security officer in December 1980 when Bucko and Jaskowiak were tested, I would not disturb the jury’s verdict on punitive damages. Lavanger had been told there was a statute governing administration of the polygraph but he deliberately did not read the statute to learn what it said. La-vanger, however, came on board about 2 weeks after Bucko and Jaskowiak were tested.
Arguably, the Bank’s in-house counsel, while conducting his legal research, should have looked at the statute books and found section 181.75. Negligence law imposes liability for all sorts of “should haves.” An automobile driver should have seen the pedestrian. A pedestrian should have looked where she was going. A landlord should have known about an unsafe condition on the premises. But, negligence alone, or, as in this case, violation of a misdemeanor statute regulating employer-employee relations, does not give rise to punitive damages until the further threshold of willful indifference is met.4
On this record it does not appear clearly and convincingly that attorney Nelson deliberately chose to be ignorant of section 181.75. Nelson was looking to see if polygraph results were admissible in evidence; a cursory search of the reported cases in this state would have quickly told counsel that the test results were inadmissible, and there would have been no need to search further, at least not insofar as Nelson understood his search. There is no showing that anyone had told Nelson or Cornell of the possible existence of the statute. There was no showing that in 1980 or earlier the statute was a topic of general discussion in the banking community, whether in professional journals or trade newsletters received by First Bank or in seminars or lectures attended by First Bank’s officers. In my opinion, as a matter of law the evidence falls short of establishing willful indifference. It would also follow, then, that plaintiffs are not prevailing parties in this appeal and would not be entitled to attorney fees before us, nor do plaintiffs escape paying the bank’s costs under Minn. R.Civ.P. 68.
. Minn.Stat. § 181.75, subd. 1 (1980):
No employer or agent thereof shall directly or indirectly solicit or require a polygraph, voice stress analysis, or any test purporting to test the honesty of any employee or prospective employee. * * *
. In his jury summation plaintiff's counsel conceded as much, stating: "They [the Bank] found out at least back in January 1981 [that it was illegal to ask employees to take the test] and they didn’t stop then." (Emphasis added).
. "It has, of course, been pointed out many times that there is never a 'presumption' that any man knows the law. The proper statement is that, in many situations, ignorance of the law is no excuse — a very different thing.” Prosser, The Law of Torts § 109, at 724 n. 38 (4th ed. 1971).
. Nelson and Cornell are in much the same situation as police officer O’Brien in Wilson v. City of Eagan, 297 N.W.2d 146, 151 (Minn.1980). Officer O’Brien, contrary to statute, shot and killed plaintiff’s impounded cat without first holding the animal for 5 days. O’Brien, however, had not known the cat had been impounded for less than 5 days. "Assuming that he had a duty to inquire, before killing the cat, breach of that duty is negligence,” we said, and then added this negligence is "not the type of malicious, intentional, or willful disregard for plaintiff’s rights that would support punitive damages.”