(dissenting). I agree with the majority that the term, "damages for negligence,” under sec 895.045, Stats. (Comparative negligence), does not encompass punitive damages. This is because, as the majority correctly states, punitive damages arise from a different rationale than compensatory damages. See, Wangen v. Ford Motor Co., 97 Wis. 2d 260, 275, 278-84, 294 N.W.2d 437 (1980).
This interpretation also corresponds to legislative intent: An article by one of the authors of ch. 242, 1931 Wis. Laws (the predecessor of the current chapter) indicates that the comparative negligence statute was to have no effect on punitive damages. Padway, Comparative Negligence, 16 Marq. L. Rev. 1, 20 (1931).
Although I agree with the majority on this first issue, the majority and I part company on the proposition that, absent a monetary recovery for compensatory damages, no punitive damages may be recovered. Instead, I would hold that, if both punitive and compensatory damages are awarded by the jury, punitive damages may be recovered even though compensatory damages are statutorily barred.
It is true, as the majority states, that the universal rule on punitive damages is that none may be awarded unless the party seeking them has sustained actual damage. However, this truism does not settle the issue because the term, "actual damages,” needs to be defined.
Today’s majority holds that this term should be defined in a manner that no punitive damages may be awarded in the absence of a recovery for compensatory damages. This definition would make "actual damages” synonymous with "recovery for actual damages.” This court’s precedent, as well as this state’s *456legislative history, however, ought to lead to a definition of actual damages so that a statutory bar on recovery of compensatory damages has no effect on punitive damages. In other words, the term, "actual damages,” ought to be defined to mean "compensable injury” whether or not an award is permitted under the comparison of negligence. For reasons of precedent and sound logic, I believe the latter definition would result in the only appropriate rule.
The difficulty in this case arises because, although the jury granted an award of compensatory damages, collection of the award is barred by the contributory negligence statute. Note that this is a very different situation from one in which no compensatory award was even justified in the first place.1 In such a case, there would be no injury sustained, so no award would be proper.2 In this case, injury was sustained, and the jury made an award for it. The question presented is therefore not whether an award for punitive damages can stand absent an award for compensatory damages, payment of which is sanctioned by the comparative negligence statute; instead, the question is whether a statutory bar on compensatory damages can also bar punitive damages.
Turning first to the precedents whose use by the majority I find questionable: Widemshek v. Fale, 17 *457Wis. 2d 337, 117 N.W.2d 275 (1962), and Hanson v. Valdivia, 51 Wis. 2d 466, 187 N.W.2d 151 (1971), do not stand for the proposition that an award of actual damages must be payable to the plaintiff before punitive damages may be awarded. In Widemshek, plaintiff, despite defendant’s bad acts, suffered no loss. Therefore, this court held that plaintiff was entitled to no recovery of any sort. Similarly in Hanson, the cause of action under which the plaintiff children sought to recover did not survive their father’s death. Again, plaintiffs could not have been said to suffer an injury; and, again, as in Widemshek, this court held that, absent injury, no recovery was available. Neither case goes to punitive damages,3 but instead they stand only for the basic proposition that "a claim for punitive damages alone is not sufficient to support a cause of action.” Hanson, 51 Wis. 2d at 474.
As is evident, Widemshek and Hanson simply do not go to the question of whether a statutory bar on payment of awarded compensatory damages also bars punitive damages. Put another way, these cases are inapposite to the case at hand. Widemshek and Hanson hold that, absent loss, no recovery of any sort may be had. In this case, however, quite unlike those cases, it is undisputed that plaintiff suffered an injury — the ultimate injury of death.
Further, although the holding of these cases is irrelevant to this case, on the issue of what type of injury must underlie an award for punitive damages, the Hanson court implied that only such injuries as *458would justify an award of compensatory damages were necessary. Hanson, 51 Wis. 2d at 474. Unlike the majority, I do not believe this language is of little consequence; rather, I believe it to be sound support for the position that a recovery of compensatory damages under the comparative negligence law is not necessary to a recovery of punitive damages.
Turning next to the question of whether, under our case law, treble damages and punitive damages are sufficiently similar that cases on treble damages are precedent for cases, such as this one, on punitive damages: In Cieslewicz v. Mutual Service Casualty Ins. Co., 84 Wis. 2d 91, 267 N.W.2d 595 (1978), this court pointedly rejected such a comparison. The court pointed out that the state of mind required is different, the purpose is different, the mode of assessment is different, and the method of calculation if different. Cieslewicz, 84 Wis. 2d at 101-02. For these reasons, I am unpersuaded by arguments regarding the prece-dential value of the requirement, as set forth in the treble damages cases, of a recovery of actual damages as a condition precedent to the recovery of enhanced damages.
As to the last use of precedents I find questionable: In my analysis, our cases requiring that punitive damages bear a reasonable relationship to compensatory damages cannot be read to mean that, when compensatory damages are awarded but not recoverable, punitive damages may not be awarded. Neither Fahrenberg v. Tengel, 96 Wis. 2d 211, 236, 291 N.W.2d 516 (1980), nor Brown v. Maxey, 124 Wis. 2d 426, 440, 369 N.W.2d 677 (1985), stand for the proposition that allowing punitive damages in the absence of recoverable compensatory damages must be said to "necessarily shock the judicial conscience” as the majority *459would have it. In fact, those two cases stand for the proposition that, unless a punitive award is so greatly disproportionate to the compensatory award that it does shock our consciences, we will uphold it. Thus, in Fahrenberg we upheld a $125,000 award on $20,000 in compensatory damages; and in Brown, we upheld a $200,000 punitive award on about $50,000 in compensatory damages.
These cases, as is also true of the previous cases cited, simply do not go to the question of whether a statutorily barred compensatory award may support a punitive award. These cases go only to the question of disproportionality of the two awards. In this case, the jury awarded plaintiff $50,000 in compensatory damages. In addition, the jury awarded $50,000 in potentially recoverable punitive damages.41 cannot speak for the others on this court, but a $50,000 punitive award on a $50,000 compensatory award is not so disproportionate as to shock my conscience.
Turning from precedent I find questionable to that I find persuasive, the case of Wussow v. Commercial Mechanisms, Inc., 97 Wis. 2d 136, 293 N.W.2d 897 (1980), addressed a situation similar in many respects to this case. There, the question presented was whether, after the parties had reached a settlement on the compensatory damages, the plaintiff could still maintain an action on punitive damages. This court held that the disposition of the compensatory damage claim had no bearing on the punitive damage claim, *460and that the punitive damage claim was simply the same action as the compensatory damage claim, but for a different (and logically distinct) alternative remedy. Wussow, 97 Wis. 2d at 149-50. The majority states that Wussow was "expressly premised on the fact that 'actual damages were suffered and payment was made." Opinion at pages 449-460. A reading of that case will confirm that this was not a " premise" of the case at all, but rather an aside pointing out that, under the specific facts of that case, a holding that punitive damages were not barred was especially obvious.
As in Wussow, I would hold that the disposition of the compensatory damages claim is irrelevant to the continued claim for punitive damages. As in that case, I would award punitive damages to the plaintiff in this case.
The upshot of this tour through our precedent is this: The majority states that no precedent of this court supports award of punitive damages in this case. Opinion at page 449. I would not go so far. Instead, I would agree that, while we have no cases which squarely answer the question of whether, despite a statutory bar on compensatory damages, recovery of punitive damages is nevertheless permissible, our precedent markedly tilts in favor of a position response. First, dicta in Hanson supports the position that no recovery for injury is required. Second, Wussow supports the position that the disposition of the compensatory claim is irrelevant to the award of punitive damages. Further, although none of our cases address the issue squarely, under legislative intent, it is reasonably certain that the comparative negligence statute was not intended to affect awards of punitive damages.
*461Turning from precedent and history to logic and policy: Punitive damages arise from a different rationale than compensatory damages. Punitive damages are designed to deter outrageous behavior. See, Wangen, 97 Wis. 2d at 274-75. In this case, Marvin Marcus ran his MGM Health Club in an outrageous manner.
First, the pool area was often dirty, with large earthworms to be found crawling around. This is especially egregious in light of the fact that this is an indoor pool.
Second, the air in the pool enclosure was often so foggy or cloudy that visibility was reduced. This condition arose because the pool, which was heated, released steam into the unheated air above. This condition is even more serious because these foggy conditions were allowed to persist despite frequent instructions from the city pool inspector to keep the air heaters turned on. This instruction was given in order that Marcus might comply with the requirements of the Wisconsin Administrative Code that air temperature be four degrees warmer than pool temperature in order to minimize fog. Nevertheless, it appears, because of purely economic reasons, Marcus simply kept the air heaters off.
Finally, the pool water was yellowish or cloudy. This condition apparently arose due to improper chlorination and filtration, and the filtration system itself was often clogged with the byproducts of human grease, sweat, and urine.
Not surprisingly, the pool was the target of frequent complaints. Further, the pool was the target of frequent visits by pool inspectors seeking to have Marcus maintain the pool in compliance with code requirements.
*462On the day of Nathaniel’s drowning, the air was foggy and the water cloudy. Nathaniel, who was a black child, was not spotted lying on the white pool bottom, despite the fact that, according to evidence adduced, he must have been lying there for between five and fifteen minutes.
When he was finally seen by a passing swimmer, he was initially mistaken for a floor drain because of low visibility through the eight feet of water in which he lay. Finally, his would-be rescuers were unable to see him clearly until they came within two or three feet of him, again because of cloudy water. These details add up to consistently outrageous behavior in performing substandard maintenance.
The purposes of punitive damages is to deter, and such behavior should be deterred. As we have explained previously:
"Suffice it to say that whatever shortcomings the award of punitive damages may have, nevertheless, it must be remembered that it has the effect of bringing to punishment types of conduct that though oppressive and hurtful to the individual almost invariably go unpunished .... Punitive damages serve not only the aggrieved victim ... but also society, for by this device, a quasi-criminal action is prosecuted, when ordinarily it would not be prosecuted at all .... This court takes the position that punitive damages do serve as a deterrent _” Kink v. Combs, 28 Wis. 2d 65, 80-81, 135 N.W.2d 789 (1965).
Awarding punitive damages in this case would deter pool operators from so poorly maintaining pools that they are a contributing cause of death to swimmers.
*463Another way of making this same point is that the majority holding confuses the incidental effects of punitive damages with the goal of compensatory damages. The majority holds that to allow punitive damages here would do violence to our system of modified comparative negligence because it would amount to an adoption of pure comparative negligence for the purposes of punitive damages. Slip opinion at page 441. This reasoning illustrates that the majority sees punitive damages as a method of enriching the plaintiff, rather than as a punishment to the wrongdoer. There is no doubt that the plaintiff is enriched, but this is a byproduct of the plaintiffs role as society’s representative. The main goal of punitive damages is to deter outrageous behavior by showing the wrongdoer and other potential wrongdoers that a penalty will have to be paid for such actions. This being the case, the point of the affair is not the enrichment derived from receiving payment, but the deterrent penalty suffered by tendering payment.
Moreover, it is significant that punitive damages are not available as a matter of right. They are only available where, in the trial judge’s opinion, such damages could possibly be proper under the facts of the case. Meshane v. Second Street Co., 197 Wis. 382, 222 N.W.2d 320 (1928); Ghiardi, Punitive Damages in Wisconsin, 60 Marq. L. Rev. 733, 762 (1977). Further, even if punitive damages would be proper, the jury need not award them. Wangen, 97 Wis. 2d at 301. Finally, if an award should be excessive, it can always be reduced by remittitur. See, Powers v. Allstate Ins. Co., 10 Wis. 2d 78, 102 N.W.2d 393 (1960) (progenitor of the "Powers” rule); McGarrity v. Welch Plumbing Co., 104 Wis. 2d 414, 430, 312 N.W.2d 37 (1981). These observations are important because they confirm the *464punishment function of the punitive award. Only in cases of outrageous behavior are such awards justified, and only in cases of outrageous behavior will such awards be sustained.
For all these reasons, the appropriate, and in my view the only correct, rule of law would be to allow punitive damages where compensatory damages, reflecting a jury finding of "injury,” are awarded but not recoverable. The purposes of punitive damages are very different from the purposes of compensatory damages, and the statutory bar on compensatory damages should have, and was intended to have, no bearing on punitive damages. Further, as stated above, our Wisconsin precedents implicitly mandate such result. Accordingly, I dissent.
I am authorized to state that JUSTICES ABRA-HAMSON and BABLITCH join in this dissent.
This situation is, however, similar to one where a compensatory award is justified, but cannot be awarded because the damage is not quantifiable. It is also similar to a situation where the compensatory damages have been settled. See, discussion infra at 459.
If no injury were sustained, the situation might rise to the level of there simply not being a cause of action in the first place, a theory urged by appellant in this case, but correctly rejected by the majority.
See, Wussow v. Commercial Mechanisms, Inc., 97 Wis. 2d 136, 150, 293 N.W.2d 897 (1980) ("Widemshek held that, where no actual damage was 'sustained’ (p. 343) or 'suffered’ (p. 340), there is no cause of action whatsoever. This has nothing to do with punitive damages.").
Actually, the jury awarded $60,000 punitive damages, $10,000 to Mrs. Tucker personally in her wrongful death action, and $50,000 to Nathaniel Tucker’s estate. However, Wangen v. Ford Motor Co., 97 Wis. 2d at 315, bars recovery of punitive damages incident to damages for wrongful death, so only the $50,000 award to the estate is potentially recoverable.