### IN THE SUPREME COURT OF IOWA

No. 07

– 1328
Filed September 10 , 2010

JEREMY A. BROKAW, JOEL BROKAW and KAR M A BROKAW , Appellant s ,

vs.
WINFIELD

- MT. UNION COMMUNITY SCHOOL DISTRICT and ANDREW MCSORL E Y , Appellee s
.

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 an d 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 appellant s
.

William J. Bush of Bush, Motto, Creen, Koury & Halligan, P.L.C., Davenport , for appellee Andrew McSor l e y
.2

Steve Ort of Bell & Ort, New London, for appellee Winfield

- Mt.
Union School District.3

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 neglige nt 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 dismi ssed their ne gligence 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 Brokaw s ‘
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 W MU

. A tape of the game shows that d uring the second half of the game, Andrew McSorley, a guard for WMU, struck Jeremy Brokaw, an Io wa 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 Brok aw, the referee called a technical foul on McSorley and ejected him from the game.4 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 Je remy Brokaw, and WMU was negligent in failing to c ontrol the conduct of McSorley.
A non jury trial was held. The trial court found McSorley committed a battery upo n Jeremy. Based upon the court‘ s findings, it issued a judgment against McSorle y in the amount of $13,000 for

p laintiffs Joel and Karma Brokaw for past medical expenses , in the amount of $10,000 for p laintiff 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 p unitive damages. The plaintiff s ‘ petit ion against WMU
was dismissed. The plaintiffs appealed the t rial court decision. WMU cross

appealed. McSorley did not appeal from the judgment. We t ransferred the appeal to the court of appeals which affirmed all aspects of the trial
court‘ s decisio n. 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 McSor l e y 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 erro rs 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 C o. , 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 determi ning: (1) which of Jeremy‘s symptoms were caused by the battery, (2) what role subsequent injuri es had on his symptoms, and (3) whether Jer emy had mitigated his damages. We conclude substantial evidence supported the trial court‘s findings of fact relatin g 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 49 1, 496 (Iowa 1988). The Brokaw s ‘ 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 p ast 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 introduc ed medical testimony that Jeremy
suf fers from post co ncussion syndrome, and McSorley‘ s assault was the most likely cause of this injury as Jeremy‘ s symptoms started after the
inciden t. Dr. George Phillips, Jeremy‘ s tre ating physician, described post concuss ion syndrome as follows:

Post concussion syndrome tries to show that there is a continuum of symptoms that related ba ck 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 communit y. The witnesses stated
after the a ssault, 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 informati on. 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 impos sible, to reconcile ‖; and (2) Jeremy‘s claim for damages involves potential s econd and subsequent injuries.7 The trial court found Jeremy‘s symptoms were ―unusual,
i nconsistent and varied. . . . [S ome] appear consistent with postconcussion syndrome, but o ther 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, prob lems 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 typi cal of post concussion 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 Jer emy‘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 Jere my in the head with an elbow.‖ The trial court also found Jeremy‘s damages involve potential second and subsequent injuries. M edical records show Jeremy was largely symptom free ten day s 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 also8

reveals Jeremy was diagnosed with a concussion on July 22, 2005, after
he was hit in the hea d 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 a n 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.
Philli ps 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 basketba ll 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. Negligen ce Claim
. Again , we review the trial court‘s decision
for correction of err ors at law. Iowa R. App. P. 6.907

.9

1. D uty. The district court analyzed the Brokaw s ‘ claim against the school district in terms of whether WMU negligent ly supervised McSorley. For this proposition, t he 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 wa s, 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 C edar Falls v. Cedar Falls Cm ty

. 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 reas onable 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 forse eability 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 (Pr oposed 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 the10

analytical framework utilized by the trial court as error. Therefore,
b ecaus e 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 re asonable 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 car e applies here.
2. Breach of Duty. The Restatement (Third) s pecifically 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

1 Notwithstanding 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 cont rol 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 p arty‘s misconduct.‖ Restatement (Third) of Torts : Liab. for Physical and Emotional Harm § 1 9 c mt. f

, at 220 ( 2010).11

Emotional Harm § 19, at 215 (2010) [hereinafter Restatement (Third)] (―T he 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 i d. § 30, at 542 (―An actor is not l iable 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.‖) ; s ee 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 oper ations 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 example s may have specific application in a sports setting. F or 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.‖12

T he comments to section 19 of the Restatement (Third ) r ecognize
that in this situatio n, 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 (T hird) § 19 cmt. d , at 217.
W her e 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 th e 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 even ing is n ot guilty of neg ligence 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 drinkin g 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] sufficient13

knowle dge 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 play er to participate or bench that player. I f the
coach‘s knowledge of the immediate circumstances or the general character of the player should alert the coach that misc onduct 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 McSo rley would intentionally strike another player i n 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 Su preme 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 al one 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 must14 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).
C onsistent with both the Restatement (Third) and Godar , t he
district court posed the proper question in determining whether a breach of duty occurred, i.e. , whether the harm that occurred here

— McSorl e y‘s intentional battery

— was a foreseeable risk under the circumstances

. The Brokaw s ‘ 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 e vidence

. 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).
T he question of whether WMU breached its duty of care turns on WMU's knowledge of McSorl e y‘ s general character or the nature of the immediate circumstances, a question of fact. Restatement (Third) § 8, at
103. On these factual issues, the d istrict court determined that ― WMU officials did not know, nor in the exercise of ordinary care should have known, that [McSorl e y] was likely to commit a batt ery against an opposing player.‖
T he district court made the factual determination that WMU did not have sufficient knowledge of McSorl e y‘s general character to breach15

its duty of care. Although WMU‘s athletic director admitted McSorley had a reputation for having a short fuse and believe d it important to ―keep an eye on him,‖ there was conflicting evidence as to how much the school district and its agents knew about McSor le y‘s reputation. The Brokaws highlight an alleged incident in a previous game against Danville where McSorley alleged ly 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 w here 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 unsubst antiated and stated the incident ―does not establish that [McSorley] was an aggressive or assaultive player.‖
The re 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 previo usly 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 aggressi ve 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 knowled ge of McSorl e y‘ s general16

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 W MU to the likelihood that
McSor l e y 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 199 5). The trial court found McSorley always played basketball inte nsely, but not aggressively, and WMU could not have foreseen that he would
commit a b attery against Jeremy Brokaw

. Wh ile 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 ad dress WMU‘s cross

- a ppeal. C. Punitive Damage Award. Finally, the Brokaws claim the trial court erred in its denial of punitive damages. The Brokaw s ‘ 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. Th e instruction cited , however, provide s no support for the Brokaw s ‘ assertion t hat 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 sati sfactory 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) ( e mphasis added)

. This is a correct state ment of the law and is consistent with the statutory guidelines for imposing punitive damages found in Iowa Code
section 668A.1( a

) (2003)

. N either the instruction nor the C ode, however, provides support for the Brokaw s ‘ 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 mat ter 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 dam ages 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 668 A .1, ―willful and
wanton‖ means

― [ t ] he actor has intentionally done an act of unrea sonable 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)).
T he trial court determined McSorley committed a battery upon Jeremy when McSorley ― clearly and intentionally struck Jeremy . . . [by] us[ing] his e lbow somewhat like a battering ram and purposely, intentionally sw[inging] it at Jerem y‘ s head, striking him in the left side

. ‖ This description indicates the court recognized that punitive damages19

were available. The court denied punitive damages , howeve r, 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 el bow 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 f ind substantial evidence supported the trial court‘s award of compensatory damages and it s finding WMU could not reasonably foresee that McSorley would intentionally attack another player. We find
no merit to the Brokaw s ‘ claim that an award of punitive d amages was mandato ry 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.

2 The court also stated that t he ― 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 a llows, 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. a t 1638, 75 L. Ed. 2d at 649; see also McClure , 613 N.W.2d at 230

– 31.