Hofflander v. St. Catherine's Hospital, Inc.

Plaintiff-Appellant-Cross Lori Hofflander, Petitioner, Department County Services, Human Milwaukee Plaintiff-Co-Appellant,

v. Sentry Insurance, a St. Inc., Hospital, Catherine's Compensation Company, Fund, Patients Mutual Management, Inc. Mental Health Horizon Company, Casualty Defendants- Columbia Respondents-Petitioners. Court

Supreme argument September Oral 2002. Decided No. 00-2467. July WI 77 545.) (Also reported in 664 N.W.2d defendants-respondents-petitioners For St. Hospital, Sentry Company Inc., Catherine's Insurance Compensation by and Patients Fund, there were briefs Timothy Feeley Nelson, John A. Briesen, W. and von Roper, argument by S.C., Purtell & Milwaukee, and oral A. John Nelson. defendants-respondents-petitioners

For the Hori- Management, zon Mental Health Inc. and Columbia Casualty Company, by there were briefs John K. Hughes Hughes, Gessler, Socol, Piers, and & Resnick Dym, Chicago, argument by Ltd., Illinois, and oral John Hughes. K. plaintiff-appellant-cross petitioner,

For the there by Gray were briefs A. End, Jerome Hierseman and & argument by L.L.P, Milwaukee and oral Jerome A. Hierseman. plaintiff-co-appellant, by

For there was a brief principal corporation Elder, Louis Edward assistant counsel. by Timothy

An. amicus curiae brief was filed J. Skoglind Scoptur, Aiken, David S.C., M. & Aiken Academy Lawyers, Milwaukee, for Wisconsin of Trial argument by Timothy with oral J. Aiken. PROSSER, T. J. a review 1. DAVID This is are court of We asked appeals.1 decision of the

published related to sustained injuries issues multiple address (Hofflander) her December during Lori Hofflander Unit of in the Behavioral Services St. stay Hospital Catherine's Kenosha. Hofflander was committed to involuntarily later, days as a Two she precaution. suicide hospital window in through third-floor escape

attempted air condi- room, after a loose ripping another patient's As Hofflander tioner out of its window mounting. lost and fell to window, out of the she her grip climbed injuries. severe ground, sustaining and other hospital 3. Hofflander sued inju- for these damages named defendants to recover County, Mary Kay The Circuit Court for Kenosha ries.2 1 Inc., Hosp., App 204, v. St. 2001 WI Catherine's Hofflander 636, 247 635 Wis. N.W.2d 2 Hospital St. this action are Catherine's The defendants in insurer, Sentry Company (collectively and named Insurance its Manage Catherine's), along Horizon Mental Health St. with (col ment, Inc., insurer, Casualty Company and its Columbia Horizon). under St. is contract with lectively Horizon manage Unit of the to the Behavioral Services Catherine's Compensation Fund was The Wisconsin Patients also hospital. 655.27(5) § joined pursuant a to Wis. Stat. as defendant (1999-2000) any damages exceed and is liable to the extent that liability for which the defendant health the maximum limits 655.27(1) § providers care are insured. See Wis. Stat. (1999-2000). Services is County Department of Human The Milwaukee Hofflander, having paid subrogee in this case a to party also a as negli- alleged portion expenses her related to the of medical gence judgments circuit favor of the defendants. The court's included the taxation costs Horizon St. Catherine's filed County. County then against Milwaukee Milwaukee Wagner-Malloy, the Judge, granted defendants' motions for all of summary judgment on Hofflander's substan- The tive court of her claims. reversed on claims appeals and safe negligence violations and remanded place for jury granted action trial. We the defendants' review. petition for In Jankee v. Clark County, 64, WI 700, 297,

Wis. 2d 612 N.W.2d we reaffirmed the rule that a with mental person disability has to exercise ordinary care. Such a be person may found contributorily for his or her negligent injuries own when the fails to exercise for person ordinary care his or costs, motion in to opposition claiming the taxation of that the presented only defending costs relate to against the action Hofflander, not defending against County's Milwaukee claim of having paid medical expenses in her hearing, case. After a denying motion, circuit court issued an reasoning order County's claim for dependent costs is upon whether the negligent County defendants were and that Milwaukee was "either out" litigation. in or of the See v. Sampson Logue, 184 (Ct. 1994) Wis. 2d App. (holding N.W.2d917 that a prevailing defendant plaintiffs, entitled costs all from including subrogated plaintiffs who elect participate not to at trial) (2-1 issue). decision on whether to reach merits this County appeals Milwaukee now that order. remanding

Because we are the underlying negligence cause court, of action circuit it possible remains for the (both plaintiffs County) Hofflander and prevail Milwaukee on Therefore, their claims. County Milwaukee reinstated as a plaintiff-subrogee and we decline to address the merits of its position costs, on taxable yet ripe. as that issue is not In doing so, deny motion, we the abeyance defendants' which in was held pending case, our decision on the of merits this to strike the brief and filed appendix Department the Milwaukee County of Health and Human Services. safety.3 recognized, however, that a also

her own We duty heightened of takes on a health care institution custody person and control of a it assumes care when disability. circumstances, the mental In these with a may affirmative defense of contribu- lose its institution mentally tory negligence though disabled even the injury. person her caused own primary The issue in this case is how the "custody applied Jankee, and control rule" of as specific the affirmative defense facts, affects defendants' contributory negligence. determining issue, In this of applicable urged clarify are and restate- the we principles attempted in to articulate of tort law that we Jankee. following First, conclusions. 6. We reach the

genuine of material fact exist whether St. issues Hospital Health Man- and Horizon Mental Catherine's agement Lori or should have foreseen knew elopement hospital. The from the Hofflander's risk of disputed factual issues affects the of these resolution duty precludes respective of care and thus defendants' entry summary judgment. to establish Second, if Lori Hofflander is able (1) special relationship the defendants assumed (2) heightened duty required care; with her that or foreseen her risk defendants should have known elopement (3) hospital; there is some from the to exercise their of the defendants' failure evidence contributory heightened care, then Hofflander's subjective duty negligence measured under a should he subjective duty requires of care This of self-care. the term "her" rather than "his Hereinafter we will use plaintiff in simplicity interest of a case which her" is a woman. weigh

trier of fact to Hofflander's mental state at the including capacity appreci- accident, time of her her her ate own conduct. Third, Lori claim Hofflander's under place safe her

Wisconsin's statute barred because own negligent conditioning conduct, rather than a air loose injury. unit, recovery her caused Hofflander is barred from theory, irrespective under this of whether she trespasser injury. is deemed a at the time of her contrary appeals, However, to the court of we hold that person involuntarily psychiat- committed to a locked may trespasser ric unit be deemed a under the tradi- analysis determining trespasser tional for status in Wisconsin. Finally, produced by

¶ 9. materials the Joint Com- Organizations mission on Accreditation of Healthcare (JCAHO) conducting surveys while site of St. properly Catherine's Behavioral Services Unit were discovery privilege granted excluded from based on the (1999-2000).4 § under Wis. Stat. 146.38 I. FACTUAL BACKGROUND evening Saturday, ¶ 10. in Late December involuntarily 28, 1996, Lori Hofflander was committed (Unit) to the Behavioral Services Unit at St. Catherine's Hospital emergency in Kenosha, under an detention.5

4All subsequent references to the Wisconsin Statutes are to the 1999-2000 Although unless otherwise indicated. volumes injuries Hofflander's statutory occurred December disposition sections relevant to the of this case have not substantively changed since that date. 5 Chapter the Wisconsin Statutes allows for the emergency reasonably detention of someone who is believed to mentally ill, drug dependent, developmentally disabled, be if hospital police had after Kenosha She was taken to apartment response dispatched to re- to her been threatening ports suicide. At the that Hofflander was apartment, Underwood, officers encountered Carol mother, Stewart, Pam one of Hofflander's and apartment friends, had hurried to the Hofflander's who suicide Hofflander had made at least two because evening. in the Both women said that threats earlier they spoken husband, had to Hofflander's former who telephone call from Hofflander said he had received a saying in one Police that she would be dead hour. uncooperative had Hofflander was and observed that swings. under the influence erratic mood She was also drug had Valium, and is the that she -alcohol which kill herself. Stewart told Stewart she would use to police heroin; that Hofflander used cocaine and advised security hospital, officer and at the a St. Catherine's drug paraphernalia in can in a a trash found some by Hofflander. bathroom used and statements, In Underwood written had on declared that Hofflander indicated Stewart previous herself, kill that she wanted to but occasions police "I called the before." Underwood noted: never desperately needed Both said that Hofflander women explained help. had been that Hofflander Stewart also distraught losing custody her children and about including at law, some recent brushes with about hospital, At the traffic arrest. least one alcohol-related by an adult crisis counselor Hofflander was interviewed good for candidate that Hofflander was who advised emergency detention. probability of harm to manifested a substantial person

that has 51.15(1). or to others. See Wis. § Stat. himself or herself following day, Ligay 12. The December Dr. Ilagan-Newman completed history physical ex- diag- amination of Hofflander at St. Catherine's. She dysthymia6 per- nosed Hofflander with and borderline sonality Ilagan-Newman Dr. disorder. determined that precaution initially the suicide ordered for Hofflander be discontinued. She also noted that Hofflander was facility anxious to leave the because she wanted to move promptly expensive apartment. different, into a less placed hospital's Hofflander Room 307B of the was psychiatric wing unit, locked on which is located one hospital's third floor. According hospital records, Pam Stewart Sunday morning notified the Unit about Hof- having saying: her, flander called and threatened "When get get entry I morning out of here I'll A even." second that patient reported

indicates that another that plastic glove planned Hofflander claimed she had a subsequently kill A herself with it. nurse found the glove According entry, on Hofflander's bed.7 to the myself Hofflander told the "If I kill I nurse: want to will. I here if I could break out of want." Monday, 14. On December there was an entry indicating a.m., at 10:30 that Hofflander denied acknowledged plan suicidal ideation but "to flee as [she] driving DUI, has 5 warrants Ill. for . . . revoca- appear, p.m., tion, failure to etc." At 2:40 a social worker very apartment noted that "She is concerned about the living supposed in, she is and is to vacate before Jan. 1." 6 "Dysthymia" "depression; despondency tendency or a (2d despondent." be Unabridged Dictionary Random House 1993). ed. glove Hofflander later testified that she had removed garbage try from a container in the Unit and used it to strangle herself. approximately p.m. day, 15. At 5:15 Dr. attending psychiatrist,

Ashokkumar Shah, Hofflander's reviewing Ilagan- interviewed Hofflander after Dr. patient prepared Newman's assessment and all records since Hofflander's admission. Shah found Hofflander to mildly be alert with affect, labile irritable, and sarcastic. having drug problems Hofflander denied and alcohol despite positive drug screening and statements from family her using and Stewart that she had been con- trolled substances. Dr. Shah determined that Hof- psychotic flander did not have suicidal ideation or reportedly features. The interview concluded at about p.m., 5:40 at which time Dr. Shah went to the Unit's began entering nurses' station and a notation of his plan to decrease her Valium, Prozac, continue and allow sign voluntary outpatient Hofflander to for treatment requested "once stable."8 Dr. Shah also that Nurse Cathy Witheril check on Hofflander to if see she was okay, during because Hofflander had been irritable interview. Following request,

¶ 16. Dr. Shah's Witheril went putting to Hofflander's room and discovered her on her high-top using shoes laces that she had made from tearing strips edgings of elastic from her bed sheet. Witheril removed the shoes and laces. She observed that Hofflander's room looked otherwise undisturbed. upon returning Witheril that, claims to the nurses' 8 parties The dispute significance the of Dr. Shah's "once stable" comment. Hofflander contends that this comment refers to her mental However, state at that time. Dr. Shah has since that, filed an averring by stable," affidavit saying "once he was referring to his mood, assessment of Hofflander's not her capacity to and appreciate control her conduct.

557 reported Shah, to Dr. incident the shoelace station, she writing up for Hofflander.9 his orders was still who Approximately later, Hof- minutes five 17. exhibiting appeared a calm station, at flander telephone makeup and disposition. for her She asked give Hof- nurses not to directed the numbers. Shah policy, objects any glass the Unit's in accord with flander cup. dispensed makeup The in a medicine was and the taking phone numbers Hofflander nurses observed lounge. heading telephone purse her from Monday, patient Sunday 18. Sometime leave the if wanted to she told Hofflander the Unit hospital, in the win- air conditioner a loose there was glove point after At some in Room 309.10 dow began contemplate Sunday, Hofflander on incident eventually escape condi- out the air checked and she clear when Hofflander It is not in Room 309.11 tioner Specifically, clear it is not checked out Room first inspected or after she met room before whether she with Dr. Shah. undisputed facts found as The circuit court

that: the air checked [Hofflander] inside the room

[o]nce it and found that mounted in the window conditioner minutes or Thereafter, for the next 45 to 60 was loose. being not recall told that he does Dr. Shah has testified incident. the shoelace Nurse Witheril about the Unit's staff any of At did Hofflander advise point no in Room 309. alleged of the air conditioner about the condition elope. intended to any of the staff that she also never told She later the air conditioner no told about Hofflander was that is the time when early Monday, because than afternoon hospital left the about the air conditioner patient who told her for court. probably

so and longer, Ms. began Hofflander to plan the details of her escape. doing so, While she con- sciously made escape efforts conceal her plans from the hospital staff. She first went to the nurses' station and asked for her makeup because she knew she was going to leave and fix Appearance. wanted to her She also started laundry some in an attempt to divert the Upon nurses' attention. returning room, to her own Ms. telephoned Hofflander her friend and told her to meet her at the hospital with Ms. Hofflander's car. Because the shoelaces her for shoes had been confiscated upon admission, her then she tore the edges elastic from a fitted sheet on her bed so she could make shoelaces for her own shoes. As she making shoelaces, was these however, a nurse came into her room and took the edging elastic and the shoes. Although supports the record the court's

findings timing events, it is difficult to reconcile the of some of these events. How could all these events have occurred after the interview with Dr. Shah, if approximately interview with Dr. Shah ended at 5:40 p.m.? makeup telephone Did Hofflander for ask improvised plastic numbers shoelaces before after Why report were removed? does a from the Kenosha Department Department's Police indicate the knowl- edge p.m.? of Hofflander's fall at 5:52 any

¶ 21. In event, Hofflander entered Room 309 p.m. brought sometime around 6:00 She bed sheets from the two beds in her room. The current resident of sleeping; that room was Hofflander assumed he was under medication. Once the room, Hofflander de- patient's during cided to take the overcoat to wear her escape, lighter weight since it was than her own coat. began pulling She then went to the window and the air splintering conditioner towards her its corners, mounting supporting window, in the until the it wood crashed the floor. air conditioner panicked im- testified that she Hofflander mediately believing might get crash, that after the she peeked caught. quickly to observe She out door anyone coming.12 though no Even she saw whether was approaching feared station, from the nurses' she one hospital her. would arrive to detain staff soon hastily together Therefore, tied the bed Hofflander brought attempting affix one her, with sheets she had to the corner of the and the end of sheets window attempted her to exit end one of ankles. As she other grip her fell down, and climb she lost and the window third-story Shortly thereafter, from the window. other hospital in from found Hofflander nurses the window with bed sheet tied bushes underneath her of her fall, around ankle. As result Hofflander injuries, including ruptured spleen multiple suffered pelvis, ribs, and to her and arm. fractures

II. PROCEDURAL HISTORY County 23. Hofflander filed suit Kenosha against Horizon, Circuit Court St. Catherine's and along respective alleging negligence insurers, with their discovery, place Following and safe statute violations. summary judg- moved for St. Catherine's and Horizon negligence pre- asserting own ment, that Hofflander's recovery matter of her from as a law and that the cluded Initially, inapplicable place in this was case. safe statute granted only circuit Horizon's on the court motion ruling place Thereafter, claim. this court its safe issued some at that Hofflander testified that she saw nurses talking not who with each other but who did station were otherwise seem aroused. causing Jankee, Horizon and St. Catherine's to renew summary judgment.

their motions for Meanwhile, Hof- partial summary judgment, asserting flander moved for "custody that the and control" rule set forth in Jankee applied thereby expunging contributory negli- her, gence as a defense. hearing, granted 24. After a the circuit court concluding

the particular motions, defendants' that Hofflander's injury conduct were not and, foreseeable custody apply. therefore, the and control rule did not It further determined that Hofflander was not delusional acting based on a sudden onset of mental illness and negligence providers' that her negligence exceeded the health care Finally,

as a matter of law. the circuit court place inapplicable held that the safe statute was be- trespasser cause Hofflander escape attempt awas at the time of her additionally, place and, the safe statute encompass plaintiffs negligent does not own acts. appealed. ¶ appeals 25. Hofflander The court part part, reversed and affirmed and remanded the Hosp., case for trial. Inc., v. St. Catherine's Hofflander App 204, 636, WI 247 Wis. 2d 635 N.W.2d13. The pretrial barring court affirmed the circuit court's order discovery hospital privileged peer of certain records as Id., ¶ However, review documents. the 36. court of that, appeals special ruled both defendants had a rela- tionship custody with Hofflander under Jankee's control rule and that issues of fact existed to the as foreseeability particular injury. Id., of Hofflander's place ¶ 23. claim, As to the safe held court questions jury there were of fact for a whether the loose represented air conditioner an unsafe condition and whether the defendants had constructive notice of the disrepair. petitioned Id., ¶¶ 30-31. The defendants this appeals' regard- court for review of the court of decision place negligence Hof- ing claims, while and safe discovery- cross-petitioned for flander review petitions. granted dispute. each of the review to We OF REVIEW III. STANDARD summary grant a decision to The review of 26. question judgment consider de novo. that we law Summary judgment Jankee, 2d 235 Wis. genuine of material no issues rendered when shall be judgment moving party is entitled fact exist and 802.08(2). § willWe law. Wis. Stat. a matter of as summary judgment record if a review of the reverse disputed if are undis- there material facts reveals puted alternative which reasonable material facts from may Boss, 2d v. 97 Wis. drawn. See Grams inferences be (1980). posture Given 338-39, N.W.2d473 appeal, inferences there- facts and reasonable all of this light favorable to the in the most are viewed from non-moving party. Bros., Fire Inc. v. U.S. Kraemer See (1979). Co., 555, 567, 278 N.W.2d857 Ins. 89 Wis. CONTROL CUSTODYAND IV liability against theory Hofflander's first upon law common and Horizon is based Catherine's St. negligence. maintains that the staff First, Hofflander according injury duty night act to failed to of her on supervising duty by improperly her. Sec- care their policies and the Unit's contends that ond, Hofflander grossly accom- procedures at either insufficient were personnel duty plishing care or that Unit the staffs policies correctly simply follow established did not adequate. otherwise were parties agree

¶ 28. The that, if traditional rules of negligence apply, contributory negligence Hofflander's bringing injuries negligence in her about exceeds the general the plaintiff a defendants as matter of rule, law. As a damages in Wisconsin cannot recover if the plaintiffs negligence negligence own exceeds the of the party against sought. whom relief is See Wis. Stat. § 895.045; Menard, Inc., Peters v. 174, 2d 193, Wis. (1999); 589 N.W.2d395 Grzadzielewski, Johnson v. (Ct. 1990). App. 601, 608, Wis. 2d 465 N.W.2d503 ¶ 29. Hofflander asserts, however, that the affir- contributory negligence mative defense of is not avail- able the defendants because these defendants as- sumed her of self-care when she was committed hospital. argument upon Hofflander's is based "custody and control" rule that we established Jan- Thus, kee. Jankee serves as foundation for our present analysis. patient Jankee, In Emil Jankee was a invol-

untarily County committed to the Clark Health Care (CCHCC) placed long-term Center who in locked, was chronically mentally care ward for the disabled, on the of a Jankee, basis domestic violence incident. 235 Wis. 17. Jankee was deemed threat to harm during early part stay, and, others of his he often displayed threatening Id., and destructive behavior. Although history ¶ 29. Jankee had a of suicide at- tempts, it was he determined that was not a suicide risk during stay, part his because statements he made exhibiting Id., ¶¶ an intent to avoid self-harm. 30-31, Likewise, Jankee was never determined to an be elopement ¶¶ Id., risk. 102. A little more than a week after his the CCHC, however, admission to Jankee plan attempted escape facility. devised a from the partially night, in Id., ¶¶ Late he succeeded 35-37. one by prying opening off third-floor room a his window safety-stop ¶ specially Id., 37. in the window. a installed squeezed roof, onto a where out of the window He then ledge eventually and sustained fell from a brick he multiple injuries. ¶ Id., 39. two-step analysis engaged

¶ in a to deter- 31. We ability to affected his own conduct mine how Jankee's damages First, fall. related to his from CCHCC recover exceptions,13 a few narrow that, absent we established applies person to all of care reasonable standard the mentally determining plaintiffs their when disabled negligence. contributory Id., Therefore, if level bringing negligence mentally plaintiffs disabled injury plaintiffs that of a defen- own exceeds about the contributory negligence find that the dant, a court must recovery. Jankee's Id., determined that 9. We bars negligence as a that of the defendants exceeded own (1) hospitalization was due of law because his matter his take medication that controlled own failure to his (2) duty disability; he failed to exercise his mental escape ordinary from the he tried to care when Id. CCHCC. Notwithstanding general rule, also this we a mental health entities, such as

held that certain duty prevent facility, heightened of care to owe injuries mentally patients when disabled foreseeable custody they and control over these have assumed (Second) (citing persons. Id., ¶¶ Restatement 92, (1965)). §§ result, As a we 314A, 315, & 319 Torts stated: general acknowledged exceptions to this The court two Jankee v.

rule, applicable to this case. See neither of which is 78-87, 57-58, 235 Wis. 2d County, 2000 ¶¶ Clark WI 612 N.W.2d 297. exists, caregiver relationship special

When such care of the provide reasonable assumes assumption This prevent harm. protected person from the ordi- may protected person the duty absolve to the self-care, responsibility obligation of shift nary defense thereby the affirmative caregiver, expunge and negligence. contributory (citation omitted). Id., ¶ 92 following test for deter- enunciated the 33. We mentally serving

mining caregiver disabled whether a predominately patient caused can be liable for harm patient's the own actions: (1) relationship special plaintiff must show that:

[A] (2) care; duty of existed, giving heightened to a rise par- the caregiver could have foreseen the defendant If the claim. the injury that is the source of ticular caregiver relationship the defendant special existed but affir- injury, the particular foreseen the could not have contributory negligence reenters mative defense of injury were foresee- particular if the equation. Even not able, contributory negligence should the defense of exercise of care was not if the defendant's expunged be height- fully responsive to the only reasonable but also charged. caregiver was duty ened with which was that Id., ¶ behind this test Part of the rationale propensity caregiver patient's "[i]f for unaware of a is patient's caregiver self-injury, cannot assume (Sec- Id., ¶ 97; see also Restatement of self-care." ("defendant ond) § not liable cmt. e of Torts 314A the unrea- should know of he neither knows nor where injury"). of the illness or risk, sonable fully considering arguments ¶ 34. After in acknowledge case, this we the test set out paragraph 93 of Jankee is unclear and needs revision. premises result, aAs we have reexamined our in Jankee and now restate the law. Custody

A. Revision and Control Rule Jankee person mentally A35. who is disabled is held to the same standard of care as one who has normal mentality. exception may An to this rule exist when a mentally person protective disabled is under the cus- tody mentally and control of another. aWhen disabled plaintiff exception recovery relies on this to seek for a (1) injury, plaintiff self-caused must establish that a special relationship existed between the defendant car- egiver plaintiff, giving heightened duty and the a rise to (2) caregiver care; of the defendant knew should particular have foreseen the risk of harm that led to the plaintiffs injury. special relationship If a existed but the particular defendant could not have foreseen of risk harm, then the defendant is entitled to assert contributory negligence, affirmative defense of and the comparative negligence fact finder should evaluate the objective parties using of the an standard of care. special relationship ¶ However, 36. if a exist, did particular foreseeable, risk harm was and there is caregiver some evidence that the defendant failed to duty required exercise the of care that was under these compare circumstances, the finder of fact should negligence plaintiffs contributory defendant's to the negligence using subjective a standard to evaluate the mentally plaintiffs duty disabled of self care. In this mentally plaintiff is able situation, if the disabled appreciate totally the risk unable show that she was duty plaintiffs it, the contribu- harm and the to avoid negli- compared tory negligence to the should not be expunged gence It be as of the defendant. should matter of law. principle

¶ in this revised statement of Each 37. requires comment. law Mentally Duty Disabled Persons

1. of Care for mentally principle dis affirm the We generally persons reasonable held to the same are abled person Jankee, other individuals. standard of care as obligates all of care 2d 54. This 235 Wis. safety. ordinary persons care for their own to exercise (quoting JI — Civil Peters, 224 2d Wis See Wis. at 192 1007). normally mentally plaintiff Because a disabled objective operates care, standard of she is under an contributory normally subject principles of to the same mentally negligence plaintiff disabled. who is not as ¶¶ Jankee, 75-76. 235 Wis. Academy Lawyers, Trial The Wisconsin argues

appearing that Jankee's estab curiae, as amicus mentally objective duty care for an lishment of prior complete persons represents reversal of disabled Academy points the case of The law. Wisconsin Co., 56, 15 N.W. Insurance 57 Wis. v. Continental Karow (1883), in this court said: which 27 in who course, a want of care one negligence involves

Of duty. But the omission of ought care. It is an to bestow obligation upon one imposes duty no of law care— —no faculties, mental and hence over his who has no control Being action. under no physical his no control over 567 obligation care, of duty, and under no restraint of either, incapable exercising of it inapt, would be if not inaccurate, that, say omission, by his an insane person guilty negligence. was Id. at 63. passage longer

¶ 40. This is no consistent with negligence theory. Today, mentally modern disabled person may damages held be liable for the caused person's "negligence" persons all because have a ordinary Coffey City care. Milwaukee, v. 74 2dWis. (1976). typical 526, 537, 247 N.W.2d132 The result in a negligence today case is the same as it would have been Only analysis in 1883. is different.

¶ 41. Our court has never been in that, doubt as a general person civilly rule, an insane liable for torts. Huchting Engel, (1863), In 237, v. 17 Wis. 238 this court quoted approval with from Reeve's Dom. Rel. 258 that compensate damages "a lunatic is as liable to as a right Karow, man his In mind." this court cited cases including states, from four other Vermont, where a assigned why court said that "no reason can be a lunatic (citing Karow, should not be held liable." 57 Wis. at 61 (1845)). Morse v. Crawford, 17 Vt. Contemporary analysis may

¶ 42. be traced to Society Meyer, German Mutual Fire Insurance v. (1935),

Wis. 261 N.W.211 where we held that insanity liability is not a defense for tort unless evil express required by intent or malice is the claim. Id. at opinion quoted extensively 385. The court's from Breunig Karow. Id. at 386-87. Then in v. American Family Co., Insurance Wis. 2d 173 N.W.2d619 (1970), insanity the court indicated that some forms but for liability negligence, are a defense and preclude Id. at 541. The court stated: insanity. types not all be or disorder must mental illness ... The effect of the ability to understand person's to affect the such as upon [for] him... duty which rests appreciate the control care, ability his ... it must affect ordinary or And in ordinarily prudent manner. conduct] in an [his of notice fore- addition, there must be an absence suddenly subject may that he be warning person to the insanity illness. type of or mental to such a Id. The court continued: insanity no defense is that is think the statement

We negligence case where applied it to a too broad when is forewarning suddenly overcome without is the driver incapacitates disability or disorder which by a mental of a to the standards conforming his conduct him from These are like circumstances. man under reasonable indeed. rare cases added).

Id. at 543 (emphasis Breunig analysis of the 43. The implication is normally standard of care reasonable person that the Am. Burch v. disturbed." mentally "even to the applied Co., Ins. 465, 470, 2d 543 N.W.2d Mut. 198 Wis. Family v. Ameri in Gould (1996). was made explicit This Co., 450, 543 Insurance Mutual 198 Wis. Family can said: (1996), the court where N.W.2d American rule in most widely accepted It is a held mentally adults are disabled jurisdictions they regardless the torts commit responsible for actions; they are comprehend their capacity their See objective person reasonable standard. to an held (Second) § of Torts 283B generally, Restatement on the al., and Keeton (1965); Page Keeton et Prosser W. (1984).... Torts, § Law liability replaced When fault-based liability, strict jurisdictions American courts in common law identified the matter a question public policy as of and main imposing liability tained the rule mentally on the Although early suggested disabled. case law that Wis trend, consin specifically followed this this court adopted the common rule and the public policy law justifications behind it in Soc'y German Mut. Fire Ins. v. (1935). Meyer, 381, 385, 218 Wis. 261 N.W.211 Id. at 456-57. The court continued: appeals

The court of erroneously perceived the underlying premise Breunig of that person he negligent should not be held disability where a mental prevents person that controlling from his her con- By limiting holding duct. its to cases of sudden mental disability, the Breunig court chose not to adopt that premise. broad We also decline to do so. (citations omitted).

Id. at 459 Consequently, assertion that a mentally disabled can person never be is negligent simply wrong. As the Academy concedes, since 1971 Wisconsin has followed pattern jury instruction, entitled "Negligence of Mentally Disturbed," that "A expressly states: person who is disabled held mentally is to the same standard of care as one who has normal mentality, and your determination of the question negligence, you will of give no consideration to the defendant's mental condi- added). tion." Wis JI —Civil 1021 This (emphasis good is law. and Custody Control Exception 45. The custody control rule recognized

Jankee is a to the specific exception general standard of ordinary Senecal, care. In Rockweit v. 2dWis. (1995), recognized court this 541 N.W.2d " very least, to a standard held, at the individual is 'each (quoting ordinary Id. at 419 care in all activities.'" of 537). proper Coffey, discussed the 2d at We 14 Wis. duty duty analysis "The as follows: in Wisconsin obligation any person refrain from due care to any harm to others foreseeable act which will cause identity though that harm and the nature of even person at interest is unknown or harmed the harmed (citing Corp. A.E. Inv. Id. at 419-20 of the act." the time 483-84, 214 Builders, Inc., v. Link Wis. (1974)). principle is that The concomitant N.W.2d 764 every person to exercise has a in all situations safety. ordinary JI— See Wis or her own care for his Civil 1007. exception custody rule is an The and control contemplates negligence it law because

to standard duty heightened possibility a defendant of care for of a duty plaintiff. for a self-care and a lowered duty to do torts, which entail ¶ 47. Nonfeasance prevent are not harm,14 act of commission some ordinary people duty usually care that within the (Second) of Restatement each other. See hold towards Page § and al., Prosser Keeton et c; cmt. W Torts 314 1984). (5th § Hence, ed. Law Torts 56 Keeton on the subject may to a proposition be a defendant that special heightened duty as a must be understood of care Victim: Williams, Fault and the Suicide 14See Charles J. Duty Assume a Suicide Victim's Third Parties When of Self- (1997) ("The goal of tort Care, law 301, 303-04 76 Neb. L. Rev. care can duty The behavior. discourage unreasonable is to injures some act not to do encompass either tort) (a act duty to do some or the misfeasance another tort)."). (a nonfeasance injury to another prevent exception accordingly. to the norm and be treated The requirement that a defendant knew or should have particular foreseen risk of harm should not be viewed adoption as inconsistent with this court's of the minor- ity Palsgraff Corp., rule, see A.E. Inv. 2d at Wis. requirement because this in the comes context of a heightened duty protect against of care to the acts of ordinary duty general others, an not of care in line with principles. tort Liability

3. Basis of special relationship A48. exists when a defen- caregiver voluntarily dant assumes, an otherwise, responsibility protect enhanced a vulnerable, men- tally person disabled from foreseeable The harms. de- empowered fendant in these circumstances is with custody and an extra measure of control over the person. heightened duty The of care reflects the en- responsibility custody hanced that attends this However, control. if a defendant in these circumstances protecting person were held liable for not from effectively harms, the defendant would unforeseeable become an insurer. hospital patients 49. A is not an insurer of its

against injuries all Jankee, inflicted themselves. See (citing Dahlberg ¶ 700, 235 Wis. 2d Jones, 95 v. 232 (1939)). hospital 6, 11, Wis. 285 N.W. 841 A or other caregiver only required "is to use such means to restrain guard patients reasonably its as would seem suffi prevent (citing cient to foreseeable harms." Id. Dahl 11). berg, hospital 232 Wis. at The of a is to hospital exercise such care as the knows, or should 572 patient's physical condition re mental know, quires. Kujawski Ctr., 139 v. Care Arbor View Health (1987). "Requiring 462-63, 249 455, 2d 407 N.W.2d Wis. [by any facility a liable for irrational behavior to be impose patient] on the an unreasonable burden would objective providing [caregiver] and frustrate the patients therapeutic from free environment with prison-like ¶ Jankee, 235 Wis. 2d restrictions." caregivers stringent impose It would force n.37. patients, safety protect measures, not to but avoid liability.

4. of Harm Particular Risk mentally plaintiff seeks to A disabled who heightened duty

rely must of care on defendant's "(2) among things, that the defendant establish, other particular caregiver foreseen the knew or should have injury." plaintiffs ¶See harm that led to the risk of added). (emphasis The former in Jankee test above "(2) caregiver proof required could the defendant injury particular the source that is have foreseen (emphasis Jankee, the claim." 235 Wis. added). foreseeability prong former test The example,

proved confusing. of the term For use to be hospital injury" "particular debate whether the led to escape attempt have foreseen Hofflander's should patient's another room window in from a third-floor mounting. tearing Did from air conditioner its a loose injury" "particular all of these elements constitute have foreseen? and Horizon should that St. Catherine's injury" "particular that the defendant should Was the "particular" namely, a back even more have foreseen — injury? leg any injury injury opposed to or a as opinion heavily ¶ 52. The Jankee borrowed from analysis by Charles Williams in the Nebraska Law wording foreseeability prong Review. The of the in the proposition Williams article stated the as follows: "For a plaintiff prove plaintiff tort, nonfeasance must (2) plaintiff show that... the harm that befell the was type of the the defendant should have foreseen." Charles J. Williams, Fault and the Suicide Victim: When Duty Third Parties Assume a Suicide Victim's of Self- (1997). Care, phrase, 76 Neb. L. Rev. Our new "particular harm," risk of is more consistent with the language. Williams formulation than the Jankee illustrate, 53. To when a mental health institu- custody tion mentally assumes the and control of a person precaution, disabled aas suicide the risk of clearly foreseeability suicide is foreseeable. The of sui- requires heightened cide the institution to act with a duty prevent particular of care to this risk of harm —at longer least until the risk is no foreseeable. Whether a particular risk of harm remains foreseeable for the special relationship entire duration of an institution's patient question with a is a of fact. However, the mere passage enough of time will seldom be for an institution substantially heightened relax its of care.

¶ 54. There are other risks of harm in a mental including elopement, health institution, the risk of self-injury risk of other than suicide, and the risk of injury people to other such as staff members, visitors, patients.15 custody and fellow The and control rule does signify caregiver any not that a is liable for all

15By listing general harm, these risks of we do not mean to suggest that this is an may exhaustive list of harms that be custody foreseeable under the and control merely rule. We note simply by patient injuries one risk because sustained Rather, our formulation foreseeable. of harm was particular to proposition harm that the on the based mentally person's relates claim disabled which the foreseeable. have been should hospi explained Jankee, that modern

¶ In we treating persons focus on mental disabilities with tals security. Jan therapy rehabilitation, not maximum Payne (citing v. Milwaukee kee, 700, 2d 235 Wis. 270, 260 Found., Inc., 2d 81 Wis. Sanitarium (1977)). guard duty a or "A to restrain N.W.2d hospital only emerges a has specific patient when pa 'knowledge propensity of the or inclination of the (himself) (herself) escape.' injure JI— Wis to tient Id. JI — Civil 1385." 1385.5; also Wis Civil see hospital has unless the of action arises No cause to inflict disposition patient's an individual notice of duty to take Thus, under no hospital is self-injury. to antici- is no reason when there special precautions caregiver If escape or suicide. pate patient's one self-injury, the for propensity patient's of a unaware duty of self-care. patient's assume caregiver cannot omitted). (citations Jankee, 235 Wis. adjective explain passages to the adherence our These phrase harm." "particular" "risk of in front of dispute is whether case, In this attempt Hofflander's foreseen have defendants should from notice escape. have defendants Did the other and from and actions statements Hofflander's try Hofflander would of the risk evidence available in the context cognizable risks most to be the appear that these providers. care of mental health elope?16 initially placed The fact that Hofflander was

aas suicide risk does not mean that she could not later elopement, thereby triggering manifest such a risk of preventive Conversely, to take focused action. placement Hofflander's as a suicide risk did not auto- matically every possible make other risk of harm to her particular foreseeable as a risk.

¶ 57. It should be noted that the Behavioral Ser- vices Unit was a locked unit and that Hofflander did not attempt elope from a window in her own room. These possible patient facts show the-Unit's consciousness of elopement steps and some of the taken to address this question risk of harm. It is a of fact whether the steps general defendants took sufficient to address this Beyond question concern. that, is whether the particular defendants should have foreseen a risk of elopement required for Hofflander that them to under- precautions prevent escape. take additional her Contributory Negligence Objective 5. Standard — mentally

¶ plaintiff 58. The disabled has the bur- (1) establishing den of special the two elements of (2) relationship; foreseeability particular and the of a special relationship harm. If a did not exist or if the caregiver defendant par- could not have foreseen the general ticular negli- harm, risk of then the rules of gence apply. may The defendant assert the affirmative contributory negligence, plaintiffs defense of with the objective of self-care measured under an standard 16The analysis evidence for this will include information hospital's received the staff from attending the physicians, family, members of the persons brought patient who the to the hospital, the conduct and patient statements of the while in the hospital, as well as all the circumstances under which the patient was admitted to the hospital. See Wis JI — Civil 1385.5. mentally plaintiff may though be the of care. Even impaired, not an increased defendant should face the relationship liability special not if a did exist risk The defendant's harm not foreseeable. if the risk of was ordinary any, judged by negligence, an be if should compared plaintiffs with the of care and standard ordinary of self-care. standard Requirement Negligence of "Some" 6. (1) relationship special existed between If (2) particular plaintiff; the risk of and the

the defendant (3) evidence foreseeable; and there is some harm was duty of care to exercise the the defendant failed required circumstances, then the these that was under contributory neg- may the defense of defendant assert ligence. the However, under these circumstances subjec- plaintiffs he evaluated under conduct should permit fact This will standard of care. standard tive appreciate weigh plaintiffs capacity finder to it. act to risk of harm avoid particular "Even if the In Jankee we said: harm] [risk of contribu- foreseeable, the defense were expunged tory negligence if not be should only care not reasonable but exercise of was defendant's heightened duty fully responsive with which to the also charged." caregiver Jankee, 2dWis. was added). thought (emphasis in this The main inartfully it more than takes worded sentence is duty having heightened care liable for of to be a liability negligence. Negligence is different from strict satisfy duty requires to failure a of because it breach —a obligation imposes. instance, a In this the law whatever may duty determined or want care not be breach of looking tragic solely by at a result. "fully phrase responsive" The 61. in Jankee was imply

intended to that some the defendant to failure duty required special exercise the of care the because of relationship and the foreseeable risk of harm is neces- sary objective plaintiff to relieve her standard of may attempted escapes care. There be some or acts of extraordinary that are self-destruction so that the most caregiver prevented conscientious not could have them. again, a Once health care institution an is not insurer against every possible patients. act its Contributory Negligence Subjective 7. Standard — argument An 62. be can made that once the (1) (2) plaintiff special relationship; a has established (3) foreseeability particular of a harm; and some part plaintiff failure of care on the of the defendant, prevail any requirement. should without further How- mentally ever, will there be situations in a which person appreciate danger any disabled is as able as person other and is able to control her actions. When person persists pursuing dangerous such a seemingly person's duty conduct, irrational of self- judged by subjective care be should standard and compared with defendant's of care. appeal In Jankee the court resisted an subjective

employ mentally standard evaluate a plaintiff. recognized disabled We had in Gould that impairments mental and emotional come in disorders many degrees. Gould, varieties and 2d at Wis.

As the American recognized Law Institute Re- its Torts, legitimate statement of concern in formulating mentally persons a test for disabled in negligence cases difficulty drawing any "[t]he satisfactory line deficiency and those variations of tem- between mental which can- and emotional balance perament, intellect matter, not, be taken into account in practical as a (Sec- liability damage for done." Restatement imposing ond) 283B, Torts, § b.l. of cmt. the administrative difficul-

Id. added in Jankee that We subjective employing a the in standard include ties possibility a claims, in the sense that of fraudulent try mentally person may the to overstate disabled disability, fact, after the to the of her avoid extent Jankee, of her actions. 235 Wis. ramifications subjective compli- ¶ noted that a standard 72. We also allocating fault, for of the fact finder in cates the work objective party standard, an one is to be assessed by subjective judged is to be standard. while the other Id., 70. objective a strict Nonetheless, 64. adherence to (1) plaintiff of for the in the face of care

standard (2) heightened duty defendant; of the care for plain- foreseeability particular harm to of a risk of (3) requisite satisfy stan- to tiff; some failure part fail to defendant, would dard of care on the of negligence. promote to We care and deter reasonable negli- objective contributory that an standard fear gence leave some deserv- circumstances would these patients uncompensated. ing mentally disabled Contributory Negligence Expungement mentally person to able disabled is If the appreciate totally risk that she was unable show fact it, the trier of harm to avoid then and the negligence. nothing compare the defendant's has contributory negligence plaintiffs ex- be should The punged principle This consistent as matter law. objec- ruling Gould, affirmed the our where we with precluded liability, tive as a law, standard but matter of mentally patient for an institutionalized disabled who professional attacked his caretaker but who did not capacity appreciate have the to control or his conduct. Gould, at 453, 198 Wis. 2d 463. Application

B. Revised of Test Having explained

¶ 66. set out and the elements "custody apply of our rule, modified and control" we now begin by acknowledging to the that, it facts at hand. We strikingly surface, on the in the facts this case are similar to in those Jankee. Both cases an involve involuntarily patient hospital's committed ain locked psychiatric patients injured during unit. Both were an attempted escape from a third-floor window of that injured unit. Neither Jankee nor Hofflander was while attempting person to harm another or to commit sui- respective justifying cide, which the were risks each involuntary patient's Additionally, commitment. both plans, vary- although Hofflander and Jankee devised at ing degrees complexity, escape. to assist their Finally, negligence Jankee, the claims the caregiver "inadequately policed ward, Jankee's to failed neglected maintain him, close observation over and perform routine, its custodial in the duties course of caring Jankee, for Jankee," all Wis. negligence mirror the theories advanced Hof- flander. These similarities are noted since we deter- patient's elopement mined in Jankee that the risk of Id., ¶ not was as a matter law. foreseeable respect special relationship, 67. With St. that, Catherine's concedes Jankee, consistent with special relationship it Hofflander, existed between and giving heightened duty rise to a of care. The mere fact voluntarily to be that Hofflander was slated switched reality that she admission status does not overcome the involuntarily pursu- placed at St. Catherine's had been Chapter was informed of her ant to that she not change special relationship pending in status. A under custody and rule between St. control existed injuries. her and Hofflander at time of Catherine's it Horizon, however, continues to assert that possessed special relationship Hofflander. never with hospital manage contracts with Horizon to its The psychiatric capacity, manager In a Horizon

unit. this supervises nursing therapy the Unit's staff and secre- if taries,17 Unit, and submits work orders monitors is needed. Horizon also works with maintenance hospital approve policies to recommend and for including policies patient how are Unit, on rounds for conducted, how environmental rounds check special conducted, are and what sui- unsafe conditions precautions elopement and are undertaken. Since cide merely manager the or the and not owner Horizon psychiatric operator unit, it it never of the claims persons voluntarily custody ad- or control over takes emphasizes that the all mitted to the Unit. Horizon caregivers were St. who attended Hofflander employee employees that no Horizon and Catherine's attempted duty the of Hofflander's on at time was escape. Notwithstanding arguments, dis- these we relationship

agree of its with Horizon's characterization supervisory have notes that it does not Horizon Rather, treating on authority over the doctors staff. professional physicians attending psychiatrists private are outside these by Horizon or St. employed who are neither privileges staff with Catherine's. patients including acting Unit, in the In Hofflander. manager psychiatric unit,

as the of a Horizon necessar ily hospital the assumed same duties as the that houses respect operational respon unit, at least with to the responsibilities of that Such sibilities unit.18 are evident example, caregivers in the record. For Hofflander's all reported manager, respon to a Horizon who was also daily monitoring regarding sible for the Unit work and safety Merely issues. because Horizon itself did not take custody Hofflander into its restrictive and control does voluntarily not erase the fact that Horizon assumed management mentally of a unit that serves disabled patients, like Therefore, we Hofflander. are in substan agreement appeals tial with the court of that Horizon's manager special role as Unit established a relationship giving between Horizon Hofflander, and heightened rise to of care. See Hofflander, 247 . 2dWis. 19 question ¶ 70. We now turn to the of whether elopement Hofflander's risk was St. foreseeable Although appellate Catherine's or Horizon.19 an court being We note that Horizon is not sued on based malpractice negligence or other attending medical staff in Rather, its treatment of obligations Hofflander. Horizon's performance care relate to properly its managing the staff Unit, directly environment which are implicated in Hofflander's against claims the defendants. 19There is no as purpose debate to Hofflander's in exiting through that pointedly, window. More there dispute is no factual as departure through to whether Hofflander's the window purpose Room 309 was for the committing of suicide. As testified, Hofflander herself significant has and to which com petent evidence supports, suicide not was her motivation in note, exiting from the however, window. We that had 582 findings fact, own of Wurtz v. Fleis cannot make its (1980), 155 this chman, 100, 108, 2d 293 N.W.2d Wis. support court's record to the circuit searches the court findings Jenkins, 67 Wis. 2d of fact. See Hamm v. (1975). 282, 227 N.W.2d aboye, explained primary

¶ the issue 71. As defendants knew or should case whether the this escape. propensity Again, to have foreseen Hofflander's begin of Jankee. discussion with recollection we our night expressed the of his to his wife on Emil Jankee attempt get escape out." he "wanted to failed ¶ no Jankee, However, there were 235 Wis. allegations that Jankee's wife informed or evidence hospital anyone particularly of staff, else, the Jankee's only hospital's made to The statement comments. might conceivably have indicated medical staff that escape disposition comment on the Jankee's was being evening elopement, "I'm used for tired of his Why you my guinea pig kick out here. don't ass around giving Id., me a of medicine." here bunch instead "statement did not serve We concluded that this injure in an that Jankee would himself to alert CCHCC attempted elopement Id., a third floor window." from ambiguous comment, Jankee 102. Other than this escape Id., CCHCC. no threats to while at the made 101.20 for exiting from her window injuries resulted Hofflander's committing suicide, if factual expressed purpose leaving, disposi- purposes as to for record was unclear her very may be different. tion of this case well knew County Care Center The that the Clark Health fact attempted escape previously patients that different had an windows, had conducted through its and that the Center them the windows make investigation reconfigured Jankee, 72. As in certain material facts in this case indicate that the defendants could not have fore- attempt escape. seen that Hofflander would to Shah, Dr. attending psychiatrist, clinically Hofflander's assessed escape, her no more than 30 minutes before her and he elopement precautions did not determine to be neces- sary. In fact, he went so far as to reduce her medication dosage change Chapter and to order a of her status from involuntary voluntary to admittee as soon as she apparent calmed down. There is no evidence of Hof- having previously attempted escape flander to from the loitering Unit, trying of her around doors, exit or of her any express to breach door or window. In addition, the purpose placement for her in the Unit was suicide prevention prior attempted elopement, and, to her psychiatrists separate Hofflander's had, on two occa- sions, determined the threat of suicide had subsided.

¶ 73. On the other hand, there is evidence that prior Hofflander's statements and conduct in- cluding night elopement, along the of her with other reasonably implied evidence in propensity record, escape. precautions It is true that issued for only attempt. Hofflander related a to suicide It is true during that at no time her admission was Hofflander formally elopement deemed an risk. Yet these facts disprove foreseeability alone do not attempted of an escape. elope may develop independent A risk to of, and subsequent to, one's admission as a risk, suicide and an patient's proclivity may escape individual appar- be Jankee, see secure, 235 Wis. 2d 23-27, only goes ¶¶ to the weighing of the caregiver's negligence. wit, To it is a factor to aid in weighing hospital whether duty. met its This knowledge not, however, did affect foreseeability particular of Jankee's elopement risk. any specific independent staff, the Unit's

ent to by attending psychiatrists. diagnosis argues the Unit's staff was Hofflander that elopement points an risk. She aware that she was well suggesting by her actions and statements to numerous materially different from that her conduct was hospital that on instance, records indicate Jankee's. For declared that she could December 29th Hofflander 29th, on the of the Unit if she wanted to. Also break out her friend Pam Stewart and threat- Hofflander called get get here," I out of a ened to even with her "when reported patient in Further- notes. conversation Ilagan-Newman Hofflander Dr. removed more, after report precaution, in that wrote her from suicide she facility "[t]he patient, leave the at this time is anxious to to relocate herself into smaller because she wants Similarly, apartment on the af- for financial reasons." 30th, Hofflander told a nurse that she ternoon of the living apartment had been concerned about the she was January by supposed in and that she was to vacate days According hospital records, later. to less than two acknowledged previously she Hofflander had outstanding apparently planned had "flee," as she stay Throughout her warrants Illinois. criminal medical staff as unco- was described Hofflander operative, behavior, not hostile, and This while volatile. mentally involuntarily dis- committed for uncommon may provided patients, clues of Hofflander's have abled leave. desire to just prior Turning to the circumstances elopement, attempted additional there are

Hofflander's reasonably finding support of foresee- that could facts testimony expressly ability. told that Dr. Shah There is closely and to check to watch Hofflander Nurse Witheril up Immediately dis- thereafter, her. Nurse Witheril on attempting up to lace her covered Hofflander shoes using strips Hofflander torn of bed sheet as laces. that all these events made it foreseeable to the asserts might escape. staff of St. Catherine's that she Cf. (8th Eye, Hosp. Mounds Park v. Von 245 F.2d 756 Cir. 1957) jury hospital negli- (sustaining verdict that was gent permitting patient escape by jumping from after had ordered that the second floor window doctors patient closely). should be observed ability par

¶ 76. to foresee Hofflander's Horizon's may elopement imputed ticular risk be from the Unit's agency relationship if an staff existed between Horizon acting Catherine's in Horizon St. which was as principal. argues contractually based, Horizon that its agent, principal. administrative role is one of an not a It argues knowledge principal's imputed that a cannot be agent agent to its negligence, in the order to hold liable for knowledge

unless that is communicated to agent. Kiker, the v. See Hunt Trust Estate 269 N.W.2d (N.D. (Second) 1978); 377, 382 see also Restatement of (1958). § Agency acting if Therefore, 350 cmt. b as an agent, having knowledge Horizon cannot be treated as any propensity of the of Hofflander's indications escape. Unfortunately,

¶ 77. the nature of the Horizon agency entirely relationship and St. Catherine's is not pro- Furthermore, clear from the record.21 in earlier ceedings attempted court, in the circuit Horizon itself argue that, if there were a master-servant relation-

21 parties concede, As agency both the issue of was not in proceedings addressed either the circuit court or in front of Moreover, appeals. court of the contract between St. Horizon, Catherine's and which establishes the latter's admin hospital's Unit, istrative duties within the Behavioral Services part is not a of the record.

586 it a master to St. Catherine's role as acting was as ship, Therefore, action, in we remanding servant.22 this instruct the finder of fact to ascertain the factual of Horizon's to St. relationship circumstances Catherine's and determine whether Horizon was acting to the staff of the St. respect as with principal Catherine's Behavioral Services Unit. in 78. We conclude that facts undisputed

this cáse are different from the facts sufficiently Jankee and that in favor of the summary judgment There are caregivers defendant is inappropriate. reasonably issues of material fact for a enough jury that Hofflander's was foresee- elopement conclude risk however, that able the defendants.23 We by emphasize, Hofflander carries the burden of proving risk of her was elopement foreseeable particular defendants.24 also conclude that issues of disputed We fact regarding agency relationship material exist true, that St. conclusively If this were it would establish agent this See purposes Catherine's was Horizon's for case. Franklin, 40, 50, City 264 N.W.2d579 Arsand v. Wis. ("a (1978) necessarily agent an is not agent, an but servant servant"). invariably a support parties' each motions for We note that summary judgment, Hofflander and the defendants have both testimony regarding the foresee expert offered from witnesses ability of Hofflander's conduct. by Foreseeability must be elopement of established may solely inferred

preponderance of the evidence and not be involuntarily patient. patient's from a status as an committed (even mentally ill general patients There no rule that all unit) be involuntarily psychiatric should those admitted to by As testified escape to be an risk as a matter law. presumed staff, involuntarily patients committed com St. Catherine's Furthermore, professional monly indicate a desire to leave. and St. and that these between Horizon Catherine's deciding preclude Horizon is us from whether issues subject liability potentially claims under Hofflander's negligence. If fact determines that 79. trier of by elopement Hofflander's risk was foreseeable directly through imputation, defendants, then either it must make the additional determination whether the satisfy failed their of care. Hof- defendants points negligence by flander to several indicia of approximately First, Hofflander notes that Ünit's staff. five minutes after Nurse Witheril had confiscated laces, she left for her dinner Hofflander's shoes and leaving, in- that, she break. Witheril testified before replacement her formed one or more of nurses including status, incident, Hofflander's the shoelace request and of Dr. Shah's to check on Hofflander. The deny any nurses with whom claimed she talked Witheril argues recollection of such an order. Hofflander regardless pass along of whether failed to Witheril replacement failed instructions or the nurses to heed negligent monitoring them, the result was of Hof- only flander. It was a matter of minutes after this shift change fell from that Hofflander the window Room points ability Second, Hofflander to her freely patient's room, enter into another which was relatively station, located close to the nurses' and her ability shortly to do so after nurses were instructed to argues, evidence, her. more she watch inadequate supervision. This was psychiatric by type staff are often not moved behavior of the by heightened precautions, exhibited Hofflander to issue as was responses Dr. exhibited Shah's this case. emphasizes Third, Hofflander that the air permitted by in

conditioner Room was the Unit's disrepair patient to fall into staff such state of that a of Hofflander's size was able to remove it from the window without of assistance tools or another person.25 Then, after air conditioner crashed to the ground, presumably producing a noise, loud none of the responded. Finally, argues nurses on staff hospital she that the properly staff failed to conduct environmental patient's checks of the evening rooms on the afternoon and alleged of December and to discover the looseness of the air conditioner. allegations, possible

¶ 82. Based on these it is jury might caregivers determine that the defendant hospital failed to exercise the care that the knew, or patient's known, should have mental condition required. Kujawski, See 2dWis. at 462-63. separately If defendants, either or col- lectively, partially negligent are deemed at least failing satisfy heightened duty their care, of then the trier of fact must also determine Hofflander's contribu- tory negligence, subjective duty as measured under a requires weigh care. This of care the fact finder to Hofflander's mental state at the accident, time of her including capacity appreciate her her own conduct. If possess disability Hofflander did not that rendered utterly incapable conforming her her conduct to the ordinary contributory negli- care, standards then gence taking can be her, attributed to into account

25 The defendants course aver that there is no evidence the record that alleged the staff knew of the defective air conditioning unit or that the significant condition existed for a period of time so as to establish constructive notice. may capacity have had. See she diminished

whatever Champagne v. also Jankee, 84; see 2dWis. 1994) (N.D. (holding that States, 75 513 N.W.2d United provider comparison care health between fault capacity take patient mental should diminished with capacity patient's diminished the extent of into account safety). for his or her own to care involuntary person's under commitment A84. necessarily Chapter that establish does not 51 mentally person has lost her that she disabled is so insanity types capacity. re- "vitiate all of mental Not Breunig, negligent sponsibility 45 2d at tort," Wis. for a capacity types mental diminished not all of 541, and placed contributory negligence. preclude Persons are emergency Chapter if pursuant detention there 51 to an mentally they ill and that are reason to believe is they pose or others. See of harm to themselves a threat frequently, persons § committed But, Stat. 51.15. Wis. compre- state have their mental in manner do not this professional hensively diagnosed until a medical may that such a It be their initial commitment. after temporary person's or that condition is mental person's causes, other a manifestation of behavior is person including Furthermore, a controlled substances. mentally ipso ill, much less facto is not who is "suicidal" ("The fact that a Karow, at 59 mere 57 Wis. insane. See presumption a not even raise suicide does man commits time"). insanity If fact finder determines at the any from indicia did not suffer that Hofflander subjective analysis illness, then even under mental ordinary reasonable must, effect, in be held to the she subjective person words, In other of care. standard custody rule and control of care under standard permits plaintiffs capacity of a evaluations mental but presume plaintiff mentally does not that the in is, fact, deficient. Although

¶ 85. there is evidence the record to severely mentally indicate that Hofflander was not ill at attempted elopement,26 the time of her we are reluctant subjective to rule as a matter of that, law under a negligence care, standard of her exceeded that of the caregivers. comparisons negligence, especially Such subjective capacity, when based on determinations of are well suited Sears, for fact finder. See Kull v. 11, 181 N.W.2d(1970); Co., Roebuck & 2d 1, Wis. City Milwaukee, Cirillo v. 705, 716, 34 Wis. 2d (1967). expert testimony N.W.2d 460 Since there is stating competent the record that Hofflander was not enough appreciate dangerousness to of her at tempted escape, along questioning with other evidence capacity, neg her mental determination of Hofflander's ligence by upon must be made the trier of fact remand. foregoing

¶ 86. For the reasons, we affirm the appeals' court decision to remand this action for a injuries factual determination of whether Hofflander's engaged occurred while she in a foreseeable risk of example, Ilagan-Newman's For Dr. history physical and report Hofflander, day admitted, conducted the after she was heading states under the that, of "Mental Status Examination" projects while Hofflander her misery, life's "She does present not any delusions. She hallucinating. is not presents She more personality one, profile of I say, would borderline features. There specific is no suicide ideation elicited and she is orien spheres." addition, tated in all In caregivers defendant have produced expert opinions that, indicating at the time of the incident, Hofflander suffering was not from mental illness or disease such that she could not appreciate control or her conduct in attempting elope. injuries caused were those

harm and whether questions negligence. are If of these both defendants' finder must the fact affirmative, then in the answered negligence ex- Hofflander's own also decide whether subjective applying defendants, of the ceeded that duty conduct. Hofflander's to assess of self-care PLACE STATUTE SAFE V under Wis. Stat. relief also seeks 87. Hofflander place § this Under statute. safe 101.11,27Wisconsin's public employment place or a of a statute, "owners pre duty repair building maintain the have nature of the as the a condition mises in as safe premises reasonably permits." & v. Stein's McGuire Gift 379, 398, 504 N.W.2d385 Ctr., Inc., 2d 178 Wis. Garden 1993) (Ct. (citing Dykstra & App. Arthur McKee v. G. (Ct. App. 692, 697 Co., 17, 26, 284 N.W.2d 2d 92 Wis. (1981)). 1979), 2d 301 N.W.2d 100 Wis. aff'd, stringent imposes place a more The safe standard applicable ordinary care otherwise of care than the Barry Employers Co., 2001 Mut. Cas. v. conduct. one's Topp 517; v. 630 N.W.2d WI 101, 18, 245 Wis. 101.11(1) provides: § Stat. Wisconsin employment shall be safe Every employer furnish which shall employment place furnish a employeestherein and shall for frequenters employees and for therein shall be safe for which safety safeguards, use devices shall furnish and thereof and reasonably processes ad- adopt and and use methods and shall safe, employment employment places and of equate such to render necessary reasonably protect every thing the do other and shall frequenters. health, employees life, safety, and and welfare of such place employment or a every Every employer owner of and construct, building shall so public now or hereafter constructed building public place employment as repair or maintain such the same safe. to render 592 Co., Cont'l Ins. 83 Wis. 2d 780, 788, 266 N.W.2d 397 (1978). comparative negligence ap However, remains plicable alleged place violations of the safe statute. Huebner, D.L. v. 581, 110 Wis. 2d 645, 329 N.W.2d890 (1983) (citing Co., Presser v.Siesel Constr. 54, 19Wis. 2d (1963)). 119 N.W.2d405 As a result, statute does not employer persons render an owner or an insurer of on property, McGuire, owner's 178 398, Wis. 2d at nor duty simply does it create a that is breached because the premises could safer, be made Denow, see Gross v. (1973) (citing 40, Wis. 2d 46, 212 N.W.2d Paaske v. Corp., 24 485, Wis. 2d 490, 129 N.W.2d 198 Perfex (1964)). § application ¶ 88. The 101.11 to this case First, raises two issues. did the defendants violate the place alleged safe statute on account of the loose condition of the air conditioner, or did Hofflander's own negligent injury? conduct cause her Second, was Hof- trespasser flander a 309, Room the location from attempted escape, thereby diminishing which she defendants' of care to her under the statute? We each address of these issues turn. place 89. To succeed in a claim under the safe showing

statute, Hofflander bears the burden (1) there was an unsafe condition associated with (2) structure; the unsafe condition caused Hofflander's (3) injury; caregivers either had actual or constructive notice of the unsafe condition before injury. Topp, Hofflander's See 83 Wis. 2d at 787-88 (citing Fitzgerald Badger Co., v. State Mut. Cas. 67 Wis. (1975)). 321, 227 N.W.2d All three proven recovery elements must be to obtain under the statute. Id. analysis by appeals this

¶ blurred The court of determining Michigan adopting existence test for eliminating by the element and an condition unsafe ¶¶ 636, 2d 29-30. 247 Wis. Hofflander, See of causation. applying Michigan Citing a Michi decisions court two § comparable gan 101.11,28 the Stat. to Wis. statute determining appeals whether stated that "when court of premises, we must on the condition exists an unsafe premises purpose Id., serve." the use or consider County Wayne, (citing Lockaby 1, 276 N.W.2d v. 30 (Mich. 1979), Sch., 275 v. Area and Bush Oscoda 2-3 1979)). (Mich. The court instructed 268, 273 N.W.2d act of remov not on Hofflander's circuit court to focus repair ing of the conditioner, but on the state the air 636, 30. 247 2d itself. Wis. Hofflander, air conditioner appeals Utilizing that, declared focus, the court of this jury question of fact for a case, "there exists a in this conditioning unit, air located whether a loose determine mentally patients, an disturbed was in a used room added). (emphasis ..." Id. unsafe condition . governs only place statute 91. Wisconsin's safe premises. physical It not does conditions unsafe persons negligent on acts of reckless or involve premises. Co., Nat. Mut. Ins. 86 v. Iowa See Stefanovich (1978) (discussing 161, 166-71, 271 N.W.2d Wis. rule); applying v. also Korenak Curative this see cases Workshop Ctr., 71 Wis. 2d Adult Rehabil. (2000) only (applying § Comp. Mich. Laws 691.1406 See by governmental agen buildings operated public owned cies). (1976).

N.W.2d 43 This "acts of rule is well operation" established in case Wisconsin law.29 92. The Michigan by test the court of employed is not inconsistent with appeals wholly Wisconsin law. instance, For in 1953 this court considered the suffi ciency of that a had complaint alleging hospital violated the safe statute place by failing to maintain a in condition, window window screen a safe so that when a four-year-old patient against the pressed screen, it he gave way and fell five floors out of the v. St Wright Mary's Hosp. Franciscan Sis window. ters, Racine, (1953). 502, 265 Wis. 61 N.W.2d 900 We ruled action, that stated a cause of complaint saying: complained might

The acts of in this case not constitute adult, if negligence patient were a normal but the duty here was to a small child. The standards of care to complied by by statute, be with the defendant are fixed impose duty beyond imposed by which common law.

It is contended that the screen mentioned in the complaint keep keep was to flies and insects out and not patients hospital. probably That is true. The question ultimate this case is whether defendant 29 expressed Cases that have and affirmed this rule include: 186, 195, County, Leitner v. Milwaukee 94 Wis. 2d 287 N.W.2d Ctr., (1980); Workshop 803 Korenak v. Curative Adult Rehabil. 77, 84, (1976); Co., Downey 2d 43 Barth 71 Wis. 237 N.W.2d v. Inc., 775, (1976); 779-80, 71 Wis. 239 N.W.2d 92 Gross v. Denow, 40, 47, (1973); 61 Wis. 2d N.W.2d Gilson v. Drees Bros., Arnold, 252, 257, (1963); 19 Wis. 2d 120 N.W.2d63 L. G. Comm., 521, 525-26, Inc. v. Indus. 267 Wis. 66 N.W.2d 176 (1954); v. & Corp., Deaton Unit Crane Shovel 265 Wis. (1953). 352-53, 61 N.W.2d552 in a children's guarded open have an window

should building render the safe. in order to ward Id. at 505-06. Bridge years & Iron later in Wisconsin 93. Six Commission, 8 Wis. 2d 99 N.W.2d v. Industrial

Co. (1959), a roofer fell a case in which we considered through The had been created a hole in a roof. hole put unprotected general canvas over contractor who "safe-place that the statute the hole. The court observed anticipate pre- employer... requires what the inspect make sure used for and to them to mises will be they at 618. are safe." Id. cases, however, the unsafe In both of these employer. responsibility of the the sole

condition was nothing injured party to create the unsafe The did directing In The cannot be said here. condition. same on Hofflander's act of court not to focus the circuit removing appeals conditioner, the court of the air disregarded operation" rule that is a central the "acts of place law. There is no that tenet of safe doubt Wisconsin the air conditioner was an unsafe condition existed after ripped the The unsafe condition was the from window. open open acted to create the window. Lori Hofflander through open elope A the window. and acted to window injury. air did not cause Hofflander's loose conditioner "purpose premises" The use" or of 95. "intended by appeals, eliminates a test, as defined the court of proof. good part required of It of Hofflander's burden wipes operation" principle the "acts of eviscerates only questions that the court The factual out causation. by jury appeals on must be determined stated conditioning unit, air remand are "whether a loose 596 patients, by mentally disturbed in a room used located so, St. and, if whether condition an unsafe was notice of it." had constructive and Horizon Catherine's By language, this 636, 2d 247 Wis. Hofflander, any inquiry appeared appeals into disallow court of injury. ap- The court of her Hofflander's causation peals finder's consideration from the fact withdrew reality acts, an unsafe condition not that Hofflander's injury. The her structure, caused with the associated by liability,30 a result not intended result is strict place safe statute. merely place affects the The safe statute analysis duty does not alter the care; it

level of one's established Wisconsin causation.31 "It is well safe-place a cause of action. does not create statute merely lays and if those to of care down standard 'It they provisions applies are thereof violate the whom it negligent.'" Foreign Wars Post No. v. Krause Veterans of (1960) 547, 552, 101 N.W.2d 9 Wis. 2d Mfg. Co., (quoting 7 Wis. v.Fed. Windows Ermis (1959)). if Therefore, even we were 555, N.W.2d485 agree air conditioner of a "loose" that the existence per mentally patients was, se, disturbed room used analysis appeals' was court of condition, unsafe an mere breach of a liability operates that a Strict such foreseeability and liability any need to establish creates without See, e.g., negligence. compare any need to show or without Inc., AHP, WI 109, 245 Wis. 2d Nephew & Green v. Smith purpose of strict how the 772, (explaining 727 629 N.W.2d product onto whether the liability to alter the focus was tradi proving the unreasonably plaintiff not on the dangerous, negligence). elements of tional

31 (E.D. States, Supp. 10 Wis. Bean v. United 219 F. See Theiler, 493, 495, 254 2d 95 N.W.2d Ruplinger v. 1963); 6 Wis. (1959).

597 incomplete. The issue of whether that condition caused injuries separately the sustained must be addressed. addressing undisputed issue, 97. When this the facts this case show that the air conditioner did not any cause direct harm. This is not an instance an where disrepair air conditioner that, was such a state of negligent by anyone, without reckless action it fell mounting from its and caused harm. Instead there was negligent plaintiff. action the This is what makes completely Wright case different from and Wisconsin Bridge grabbing & Iron. But for Lori Hofflander tearing mounting the air conditioner out from its in the reasonably window, the air "safe," conditioner was even assuming supporting the screws the air condi- tioner were loose or too short.32 facts, Under these § there can be no viable claim under Wis. Stat. 101.11. reaching ap- ¶ 98. In conclusion, its the court of rejected peals the defendants' reliance on Barth v. Downey (1976), Co., 2d 775, 71 Wis. 239 N.W.2d 92 as controlling. Hofflander, Barth, In Wis. plaintiff, employee who was an for a subcontractor charged removing ceiling-high with ducts, ventilation having adjacent into a climbed duct after weakened its supports. Barth, 71 Wis. 2d at 776-77. While the employee supported duct, was bottom the kneeling apart, causing section on which he was tore injuries. him to fall and suffer Id. at 777. We held that the situation constituted an act that was unsafe rather Hofflander, It is true that weighed approximately who pounds event, at the time of the was able to tear out the 120-pound However, air conditioner. it was not as if she exerted no in removing effort the unit. In order for her to remove air conditioner, strenuously she had to pull conditioner, on the air causing affixing the wooden frame the unit to the window to splinter. 101.11(1). Id. a condition that was unsafe, § under

than The of did not to distin- appeals attempt at 779. court Barth from this case. It a analy- offered different guish However, just different as the upon based a rule. sis duct in Barth did not unsafe the become until ceiling air had its so too the support, weakened plaintiff condition until conditioner did not constitute an unsafe it. Hofflander removed time, decide, need not at this whether 99. We

¶ doctrine, "intended or as the use" "intended purpose" in ever of employed Michigan, proper component 101.11(l)'s § [be] that requirement "premises Wis. Stat. free as of the will as from the nature kept danger place Co., See Gould v. Allstar Ins. reasonably permit." (1973).33 355, The fact that 361, 2d 208 N.W.2d 388 Wis. does the of active place types the safe statute not cover performed Hofflander eliminates negligence that in need to answer that the context definitively question case.34 of this note be as free requirement premises kept We that a that danger reasonably permit as nature of the will place

from contemporary desirability of the of could conflict with notions security creating therapeutic atmosphere, high rather than Jankee, 2d health facilities. See 235 Wis. atmosphere, mental 71. 34Likewise, parties' competing need not decide the we presence notice. arguments respect with constructive notice, they argue any that did not obtain The defendants otherwise, any disrepair air condi constructive lack of notice was the result tioner. Hofflander asserts this failure the staffs collective to conduct "environmental" rooms, policies. as under its own required checks of the Unit's disputed fact with concede that there are material issues We Horizon had respect to whether St. Catherine's or constructive Hofflander, 247 Wis. disrepair. notice of air conditioner's However, we conclude that no unsafe condition since In several cases which we determined place apply, that the safe statute did not other, more negligence likely present. e.g., traditional See, was L. G. Arnold, Comm., Inc. v. Indus. 267 Wis. 66 N.W.2d (1954); Corp., 176 Deaton v. Unit Crane & Shovel 265 (1953). 349, 353, Wis. 61 N.W.2d552 If the nature of a premises provides opportunities person engage for a to negligent or intentional acts of self-destruction and if party premises heightened in control of that has a protect person against risk, then liability may liability result. But the will result from negligence custody under the and control doctrine, not negligence place under the safe Deaton, statute. 265 Cf. ("The safe-place application Wis. at 353 statute has no operation, to such acts of and the issue of the crane operator's negligence should have been submitted to jury negligence."). on the basis of common-law appropriate theory liability Therefore, Hofflander's general negligence falls within the common law do merely gets main, which Hofflander, and court, this back to where we started. § In sum, we hold that 101.11 does not

apply by injured party's to unsafe conditions caused an negligence own setting or recklessness—even in the of a psychiatric locked alleged ward. If a structure's disre- pair requires negligent reckless or conduct plaintiff injury to achieve herself, then the initial disrepair may having not be construed as caused the injury. precluded recovering Hofflander is from under under the place safe statute existed independent of Hofflander's actions, our resolution of the notice issue is unnecessary to the disposition of this case.

600 place law, her her safe claim as matter since negligence act, not an unsafe condition— unsafe —an injury. caused her holding, preceding our the defen- 102. Given on affirmative need not succeed their defense dants place trespass in safe claim. order bar Hofflander's general our of one issue rule, "As a when resolution disposes of a we will not address additional issues." case, Co., Mut. Auto. Hull v. State Farm Ins. Wis. (1998). feel n.7, Nonetheless, we N.W.2d appeals' handling

compelled to address the court of this issue. Property possess

¶ a of owners lesser trespassers upon they property their than do to care to guests, employees, frequenters property. their See or § the Law 58 at This Prosser Keeton on Torts duty merely requires to refrain from lesser owners willful, wanton, or reckless conduct directed towards Nalepinski trespasser. Durner, 583, 259 See v. Wis. (1951); JI — Civil 8025. 586, 49 N.W.2d601 see also Wis alleged has that the defendants Since Hofflander not injuries, willfully, recklessly wantonly, her a or caused trespasser finding a she was within that she was while room, 309, or she was the window that Room while liability the defendants from under would absolve place safe statute. employee was an 104. Hofflander not "frequenter" a a she was She was not

defendants. if expressly trespasser, trespassers excluded are because "frequenter." See Stat. from the definition of Wis. 101.01(06).35 § result, As a if Hofflander were viewed as trespasser 309, while she was in Room she would fall people recovery outside the two classes of allowed under place the safe statute. trespasser 105. Under law, Wisconsin is "a

person upon posses who enters or remains land privilege sion of another without a to do so created possessor's consent or otherwise." Antoniewicz v. (1975) Reszczynski, 836, 843, 70 Wis. 2d N.W.2d (Second) (adopting § the Restatement of Torts trespasser). definition of argue Saint Catherine's and Horizon expressed implied that Hofflander did not have permission patient to enter the room of another or to enter the from windowsill which she exited. result, As a they acting trespasser maintain that she was as a at the injured. time she was See Grossenbach v. Devonshire Realty (1935); Co., 633, 638, 218 Wis. 261 N.W.2d 742 McNally Goodenough, v. 5 Wis. 2d 300-01, 92 (1958). N.W.2d890 responds, ap- 106. Hofflander and the court of

peals agreed, person involuntarily placed that a in psychiatric may locked never, unit as a matter of law, be trespasser. considered a Hofflander, 247 Wis. 2d ¶¶ appeals "psychi- 27-28. The court of reasoned that patients atric uncoop- wards are often host to who are unpredictable erative, and unable to assume the ordi- 35 'Frequenter' every means person, other than an em ployee, may go who place or be in a of employment public or building under circumstances which render person such other 101.01(6) trespasser." added). than a § Wis. Stat. (emphasis Generally, the duties of an owner to a frequenter are those prescribed by the place safe act and principles of common negligence. Winzenried, law Monsivais v. 758, 764, 179 Wis. 2d (Ct. 1993). App. N.W.2d 620 They may protection. duty nary be and of self-care poten- expected are forbidden and areas that to enter tially Id., ¶ 27. hazardous." description dispute the court's do not 107. We expect- psychiatric general and the wards nature of patients' However, we dis- actions therein.

ancies of legal agree is to effect of this characterization that the ability automatically a to be Hofflander's eliminate bright- adoption appeals' trespasser. of this The court of involuntarily person stating committed a rule, line that trespasser psychiatric within be a a unit can never a rule conflicts with unit, Such that is unwarranted. today, pronouncement Jankee, reaffirmed court's this mentally persons ordi- to exercise ill have that nary actions. It also conflicts care in their reasonable the criminal law.36 with make much of a appeals and the court of Hofflander gains access to patient a mental in which

hypothetical situation ap According to the court of cabinet. an unlocked medicine peals: Horizon, reasoning of St. Catherine's [I]fwe were to followthe ingested quantities drugs unlocked patient from an who place his claim because of cabinet would have no safe

medicine trespasser. simply reasonable or sound It is not her status as a place liability hospital in such public policy from safe to absolve circumstances. made in This statement was

Hofflander, 247 Wis. use of Hofflander's rebutting the defendants' the context of to the safe an affirmative defense alleged trespasser status as in the invoking hypothetical this believe that place claim. We medicine An unlocked place misplaced. act is context of the safe and, negligence analyzed under common law should be cabinet one, custody and under the context of a case like this in the clearly psychiatric in a ward rule. It is foreseeable control invaded accessible, medicine cabinet could be unlocked an previously 108. Wisconsin courts have refused grant exceptions general trespass to the rules of capacity based on the diminished mental of the tres passer. In Winzenried, Monsivais v. 2d 758, Wis. (Ct. 1993), App. appeals N.W.2d620 the court of decided patron trespasser that a tavern's awas when, while searching through for a restroom, he entered an un locked basement door into the basement stairs of the properly tavern. Id. at 769. The court excluded from its legal injured party calculus the fact that was severely inebriated. Id. at 762. Likewise, this court has recognized general age rule "that children of tender may trespassers though young charge be even too to be contributory negligence." Baumgart Spier able with v. (1957). ings, 2 2d 289, 293, Wis. 86 N.W.2d 413 Al though the doctrine of attractive nuisance often young trespasser, obviates a child's status as courts recognize they may nonetheless have this status. See Lindstrom, Nechodomu v. 313, 327, 273 Wis. (1956). only N.W.2d707 The valid concern when deter mining plaintiffs trespasser status as a is whether, at injury, plaintiff the time of has entered into an area premises plaintiff right, of the that the lacked a either employee frequenter, present. as an or to be Subsumed right within this decision is whether such existed express implied consent to enter the area. See Reddington Tables, v. Inc., 72 Wis. 2d Beefeaters (1976). 124, 240 N.W.2d363 trespassing 109. Whether Hofflander was im- mediately injuries before her could not be decided as a parties matter of law at time, this as the continue to one of patients. The patient's trespasser status as a would have little effect caregiver's on the negligence. implied Hofflander had an invitation to

contest whether patient.37 implied If such an enter the room of another respect Hof- existed, then, at least with to invitation entering a 309, she be treated as flander frequenter, Room should trespasser. adds that, a Hofflander with

not entry respect windowsill, it is to into the the safe her trespass place for violation that created the means itself reasonably hospital expect to and, therefore, the cannot liability patient place be absolved of safe when trespassed genuine best, are into the window. At these jury determine, fact for a to and this issues material principle merely deviated from is not to be because psychiatric trespass hospital's a unit. occurred within involuntarily person ¶ sum, a committed In psychiatric may trespasser a a locked unit be deemed appropriate The circumstances. court under finding appeals of law, a mater Hof- that, erred in as trespasser was was a when she either flander not patient's or on in that another room the windowsill we conclude that Hofflander's However, room. since injury, negligent her rather than own conduct caused preexisting conditioner, the air condition of place irrespective act claim is barred Hofflander's safe properly trespasser. a is deemed of whether Hofflander OF VI. DISCOVERY JCAHO SURVEYS must be remanded 111. Because this case parties' neg- questions to the related

determine factual ligence, cross- also address Hofflander's we must discovery petition of a matter. for review genuine issue of fact as Generally, there a where a implied and is therefore person had consent whether issue trespasser, the resolution that frequenter and not by jury. he See Wis J I —Civil should made 112. During pretrial Hofflander discovery, sought of the production records from site surveys conducted the Joint Commission on Ac- Hospital (JCAHO) creditation of Healthcare Organizations re- garding St. Catherine's Behavioral Services Unit. Saint Catherine's refused to disclose these materials, assert- ing that the surveys were properly subject to privilege under § Wis. Stat. 146.38.38 The circuit court agreed with St. Catherine's and denied Hofflander's motion. The court of appeals subsequently affirmed this order. Hofflander, 247 Wis. 2d 636, 36. Hofflander renews her arguments and petitions this court to instruct court, circuit upon remand, to permit of the discovery JCAHO surveys her predate injuries. § Wisconsin Stat. provides 146.38 pertinent in the parts: (lm) person participates No who in the review or evaluation providers of the services of charges health care or facilities or for may any such services acquired disclose information in connection (3).

with such except provided review or evaluation as in sub. (2) organizations All reviewing evaluating or evaluators or providers the services of health care keep shall a record of their investigations, inquiries, proceedings and conclusions. No such may 804.10(4) any record person be released to under s. or (3). except provided otherwise as may in sub. No such record be any personal injuries used in against civilaction for the health care provider facility; however, information, or documents or records presented during may the review or evaluation not be construed as 804.10(4) discovery immune from any under s. for in use civil merely they action presented. Any because person were so who during participates testifies may the review or evaluation testify any civil action as to matters within his or her knowl- edge, may testify but not through as to information obtained his or participation evaluation, her in the any review or nor as to conclusion of such review or evaluation. (3) § Wis. Stat. 146.38. § Subsection provides 146.38 for limited circumstances in which occur, disclosure shall none of applicable which are present in the case.

606 discovery disputes In re instances, most Braver main within the circuit court's discretion. See Hosp., App Inc., ¶ 11, Columbia 2001 WI man v. (citing 2d v. 244 629 N.W.2d 66 Franzen Wis. Hosp. Wis., 366, 376, Children's 169 Wis. (Ct. 1992)). App. Appellate will courts N.W.2d uphold discretionary a if the circuit court decision applied law to facts of while the relevant the record using process logical reasoning. Id. However, when discretionary ruling upon an court's is based circuit erroneously its law, error of the court has exercised § meaning 146.38, Id. includ discretion. ing The correct proper scope, presents question of law, its which de novo. State ex Badke v. this court reviews See rel. Bd., 553, 569, Greendale Vill. 173 Wis. 2d 494 N.W.2d (1993). sur- 114. Hofflander contends that JCAHO veys provide her and to claims39 information relevant § they properly privileged 146.38. are not under that According survey are ex- Hofflander, materials surveys privilege empt con- were from because agency to St. an outside that is unrelated ducted surveys were undertaken Catherine's and because injuries, prior generating not in her incident response it. surveys confor these site review Hofflander notes facility's procedures, claims

mity policies to a which she thereby by contributed were not followed the defendants may these injuries. also materials her Hofflander asserts they any did claim that not have overcome the defendants' some of environmental defects within Unit. While notice may be probative within these records information not claims, privilege, one of disputed the issue is Hofflander's relevancy.

607 compelling 115. Hofflander's first basis for dis organization closure, that JCAHO is not the kind of by unsupported by covered statute, the statute's plain language prior interpreting as well as case law "organizations" Although term under the statute. there § "organization" entity is no definition of in 146.38, an organization constitutes an when it is determined to commonly have at least some of the attributes under namely, relatively stood term; for that a constant mem bership, body purpose, a officers, and a set of regulations. Franzen, 169 Wis. 2d at 379-80. Hofflander directs this court to State ex rel. Good Samaritan Moroney, Medical Center v. Wis. 2d 365 N.W.2d (Ct. 1985), App. proposition for the that decisions by step made entities "one removed" from the actual peer process privileged. review are not Id. at 99. Mor- oney by hospital's govern held that conclusions own ing body privileged § they are not 146.38, under since peer process independently were based on a review by conducted internal review Id. committees. at 100.40 ¶ 116. type We conclude that JCAHO is the organization contemplated under Wis. Stat. 146.38(2). § present survey In the case, the JCAHO peer materials constitute the record of the review appeals previously evaluation. As the court of has clearly beyond stated, "that statute envisions entities provider participating health care itself in the 40In particular, disputed discovery in Moroney was primarily over applications written reappointment for submit by ted physician staff and over an inquiry into whether the hospital had ever limited that doctor's medical privileges, which were based on review and recommendation a credentials committee. State ex rel. Good Samaritan Med. Moroney, Ctr. v. (Ct. 97-100, 1985). Wis. 2d 365 N.W.2d 887 App. process." Braverman, 244 Wis. 2d and evaluation review generated by (holding reports ¶ that Wisconsin Family Department of a of and Services review Health privi- system hospital's quality private were assurance leged). type performed the JCAHO for of review The § within the ambit of 146.38's St. Catherine's is well protections. Similarly,

¶ Hofflander's assertion 117. § governs only of health reviews and evaluations 146.38 addressing specific, prior provider inci- care services simply Hofflander reaches this unfounded. dents is by the De- the review undertaken conclusion because Family (Department) partment Services of Health response happened to the to be in Braverman hospital's specific over certain infections fol- concerns lowing surgery. Id., However, reactive nature of dispute dispositive not over that review was privilege. holding its on a Rather, the court anchored rejection statutes, other contention that of Braverman's publicly Department's duties to related to the which essentially investigations diseases, disseminate its § applicable preempted 146.38. force of the otherwise dispute Id., was no in Braverman as 29-31. There application Mallon of Franzen and v. the circuit court's (Ct. App. Campbell, 178 Wis. N.W.2d 1993), Department's materials from the to find that § privileged investigation properly under 146.38. were attempt to em- addition, In Hofflander's ploy artificial to create an facts of Braverman of the lan- on a misconstruction distinction based privilege guage under The afforded the statute. 146.38(2) applies produced § from "inves- to records inquiries, proceedings tigations, and conclusions" 146.38(2). § organizations. reviewing These Wis. Stat. distinguishable pre- are materials from information during sented to evaluators a review and from matters knowledge. Franzen, within the evaluators' own 169 Wis. 2d at 377-78.41 These of latter two sets informa- privileged, distinguished by tion, are which not are not timing by the of creation, their the but source of their production. reports pre- Hofflander seeks the JCAHO containing hospital organization's sented to the the presented review, conclusions from the its not records by only St. aid Catherine's to the review. It is the latter type exempt privi- of information that be from would 146.38(2). § lege under Id. at 377-78. § Finally,

¶ 119. we decline to read into 146.38 privileged unstated on limitations the nature mate- purpose reports rials under the The statute. of JCAHO hospitals improve is to enable to their services above by reports the minimum set levels the state. The are program organized "the of a record health care review operated help improve quality and to the of health Moroney, care." 123 See Wis. 2d at 97. The evaluations go why protection to core tbe is afforded under the "[Wisconsin] § statute. Stat. 146.38 was 'enacted to protect confidentiality peer process,' the of the review 41 Franzen established framework determining for 146.38(2). party whether can privilege First, § assert under (1) court disputed must determine whether materials are investigations, inquiries, records of proceedings and conclu (2) sions; information, presented documents or records during (3) review; Franzen person's knowledge. matters within a Wis., v. Hosp. Children's 366, 377-78, 169 Wis. 2d 485 N.W.2d (Ct. 1992). only 603 App. category It is first of materials discovery id. at is privileged 146.38, 378, § from and, under therefore, circuit findings courts must make distinguishing (1) (2) (3). See Braverman category categories between and and Inc., v. Hosp., Columbia 106, 17, App 98, 2001 WI 244 Wis. 2d 629 N.W.2d

610 among physicians promote and to frank discussion they provide." quality improve of services the overall Moroney, (quoting 2d Hofflander, 247 Wis. 98). discovery permit mate 2d at To these Wis. § purpose of 146.38 and rials subvert the central would § counterpart 146.37,42 is to statute, Stat. which its Wis. perform quality-control encourage hospitals reviews improving, prospectively, their services. Mor aimed at oney, 98; also Wis. Hofflander, 123 Wis. 2d at see ("Wisconsin § designed Stat. 146.38 voluntary programs encourage and and candid studies care."). patient improve hospital conditions used to § Limiting privilege to evaluations undertaken 146.38's mishap mishap would be a and directed to that after legislature. policy destructive not intended agree foregoing reasons, with we 120. For the JCAHQ organization appeals is an the of that the court equivalent peer performs to a review that functions concerning provides it information committee and that hospitals may improve their health care services. how Accordingly, we Hofflander, 247 Wis. appeals' affirmance the court of concur with immunity § civil for provides 146.37 Wisconsin Stat. evaluation, in stating in review and participants involved such part: 153.85, acting person good Except provided no in faith as in s. participates of the services in the review or evaluation who providers charges or the for such services care or facilities

health organized operated any program with conducted connection any help improve quality is liable civil of health care ... for to person any in the damages such as result of act or omission of such review or evaluation. course 146.37(lg). § Wis. Stat. ruling

circuit court's that the JCAHO materials are pursuant immune from disclosure Hofflander, to § 146.38.

VII. CONCLUSION genuine ¶ 121. We hold that issues material tjie regarding fact exist whether defendants knew or elopement have should foreseen Hofflander's risk of hospital. from that, also if We hold this risk was negligence by foreseeable and some evidence of respect duty protect defendants existed with to their against any contributory negligence risk, then on subjec- behalf of Hofflander must be measured under a tive of self-care.

¶ 122. We also hold that Hofflander is barred from recovering place under her safe claim because her own negligence created the unsafe condition in Room 309. premises place The itself was not unsafe under the safe reject expressly proposition statute. In addition, we person involuntarily that a psychiatric committed locked may trespasser

unit never be considered a anywhere Finally, within that unit. we conclude that surveys the JCAHO site conducted for St. Catherine's privileged, are undiscoverable materials under Wis. § Stat. 146.38.

By appeals the Court.—The decision of the court part part, affirmed and reversed in and the cause is proceedings remanded to the circuit for court consis- opinion. tent with this

¶ 123. SHIRLEY S. ABRAHAMSON, CHIEF JUS- (concurring). agree majority opinion TICE I the with that the cause must be remanded the circuit I court. agree majority opinion's analysis also with much of the caregiver's care it of when a standard about defendant custody person. and control over another has separately points. to make three 124. I write a to describe a First, I it is mischaracterization believe caregiver's of of care situations defendant custody standard heightened duty. duty as The is and control a (reasonable) ordinary simply care the under to exercise importantly, Second, and most I dis- circumstances. agree majority opinion's a conclusion that with the custody plaintiff caregiver's and under a defendant contributorily negligent of can when the risk control be urge adopt Third, I court to is this harm foreseeable. jurisdictions many accepted and the extend the rule subjective to all other cases in which a defense standard mentally negligence against contributory a is raised plaintiff. ill WITH OF CARE FOR CAREGIVER

I. STANDARD AND CUSTODY CONTROL majority opinion that a de- 125. The concludes custody caregiver a control over with and fendant plaintiffs plaintiff self-inflicted will liable for be (1) special injuries plaintiff relation- if show: can custody amounting parties ship existed between (2) particular harm fore- risk of was control; and (3) of care on the seeable; there was some failure major- Adhering part Jankee, the defendant.1 custody ity opinion and control rule this states negligence exception it law because to standard an heightened contemplates possibility of a I not the standard would state care for defendant.2 way. in this care Majority op., ¶

2 Majority op., ¶

¶ 126. I rule conclude that in Wisconsin is care, that there is one standard of and the standard ordinary care each case is exercise care under the caregiver Thus, a circumstances.3 defendant who has responsibility mentally person assumed for a disabled proclivities capaci- and knows or should know the person ordinary ties of that prevent must exercise care to (or particular harm foreseeable a of harm, risk states).4 majority opinion as the As the court stated in Kujawski Ctr., v. View Arbor Health Care 139 Wis. 2d (1987): general 455, 462-63, 407 N.W.2d249 "The rule hospital is Wisconsin that must exercise such ordinary physical care as the mental and condition of its patients, may known known, or should have been require."5 ordinary pre- This standard includes care to 3 223, v. Montgomery, 233, Osborne 203 Wis. 234 N.W. 372 (1931). The court in that stated case: long From multitude of cases and a consideration of entire this field, courts have at the arrived conclusion that in the absence by previous decision, liability a standard declared statute or before predicated defendant, upon appear can be the acts of it must degree great he has failed to exercise that of care which the mass mankind exercises under same or similar circum- stances, usually designated "ordinary which is care." ("A See also person Wis JI — Civil 1005 negligent is when (he) (she) fails ordinary to exercise Ordinary care. care is the care person which reasonable would use in similar circum stances.").

4 Majority op., 50-54. 5 also v. See Cramer Theda Clark Hosp., Mem. 45 Wis. 2d 147, 149, (1969); Jones, Dahlberg 172 N.W.2d 427 6, v. 232 Wis. 11, (1939); 285 N.W.2d 841 Boles v. Milwaukee County, Wis. (Ct. App. 1989); N.W.2d see also Wis ("Negligence: JI — Civil 1385.5 Hospital: Duty Employees: Suicide") Injury Resulting or Suicide from Escape Attempted harming patient herself her own acts from vent escaping if the of harm foreseeable.6 or in risk caregiver example, defendant who For a 127. protected person is that the knows or should know try ordinary escape care must exercise or will suicidal resulting prevent harm from suicide foreseeable the ordinary escape. caregiver care If the exercises under or fact), (ordinarily question a of the these circumstances caregiver negligent.7 not is (COMPARATIVE)

II. NEGLI- CONTRIBUTORY PERSON OF THE PROTECTED GENCE majority opinion concludes that a 128. The also three-part its liable under found defendai^-caregiver plaintiffs may the affirmative defense of the test assert majority contributory negligence.8 opinion is, That the (a protected person negligence compares of the the subjective the standard of to determine whether test breached) ordinary protection care for one's own was (an objective caregiver negligence of the test with caregiver its standard determine whether the breached above).9 disagree part ordinary I care under I with this conclusion.

("Reasonable ordinary person which care is that care intelligence prudence provide under same and would physical considering patient's and similar circumstances condition."). mental 6 (Ct. 60, Corp., BIA See Klein v. Hotel Rptr. 49 64 Cal. Found., Mayo also v. 450 N.W.2d App. 1996); see Tomfohr (Minn. 1990). 124 7 60. Majority op., ¶ Majority op., ¶ majority opinion The states: mentally person is l[T]here in which disabled will be situations any appreciate danger person other and is able to as able to as contributory negligence ¶ I that believe protected person not to the attributable under these Rather, I as conclude, circumstances. did the Jankee majority dissenting opinions, caregiver's and responsibility ordinary for to exercise care a foreseeable "may protected person risk of harm absolve the from ordinary obligation responsibility of self-care, shift caregiver, thereby expunge to the and the affirmative contributory negligence."10 ¶ 130. Williams, Professor Charles F. in his article Fault and the Suicide Victim: Third When Parties Duty Assume a Suicide Victim's Self-Care, 76 Neb. L. (1997), (upon majorities Rev. which the here rely), explains caregiver and in Jankee that when has custody protected person assumed and control of a (or know) knows should of the of harm risk to that protected person (e.g., suicide), caregiver the has as- protected person's duty sumed the of self-care. The protected person's of the reasonableness in conduct causing harm, the foreseeable a whether measured subjective objective standard, is therefore irrelevant negligence.11 and has no effect on the defendant's persists person control her When pursuing actions. such a dangerous conduct, seemingly person's duty and irrational of judged subjective compared self-care should he on a standard and duty with the of defendant's care. Majority op., ¶ 10 64, County, 92, Jankee v. Clark 2000 WI 235 Wis. 700, 297; Comment; 612 see N.W.2d also Wis JI — Civil 1385.5 Disabled") Wis ("Negligence Mentally JI — Civil 1021 of Com ("Duty Caregiver") ment (quoting language citing of this Jankee). 11 Williams, Charles F. Fault and the Suicide Victim: When Third Duty Parties Assume a Suicide Self-Care, Victim's (1997) 313, Neb. L. (plaintiffs contributory Rev. Contributory negligence, according to Professor Will- caregiver. agree. I iams, is no defense for jurisdictions similarly in other have 131. Courts "contributory neg- protected person's concluded that a ligence" plays no under the described circum- role example, Supreme Court, The Minnesota for stances. duplicative explained comparative fault is has that the fact finder is asked to determine whether the when reasonably by the car- harm incurred was foreseeable way, caregiver egiver.12 put if it another Or to harm care, the standard of it means the risk of breaches protected person and the fact that the is foreseeable injury through negli- might have contributed to the change gence intentional conduct does not or even negligence. caregiver's keeping approach Moreover, is in with this recognizing patient's previous

our cases relationship ordinary patient-doctor exercise extremely care very patient-doctor "[T]he relation limited. patient part on the of the assumes trust and confidence require an unusual set of facts to render and would irrelevant); O'Neal, Contributory negligence is see also Susan Malpractice: Application Recent in the Negligence in Medical Patient, (1999); Daniel Context Suicidal 69 Miss. L.J. Note, Taking "I" Out Suicide: The Berglund, Torts: W. Duty in Alarming Court's Extension Supreme Minnesota County, v. Blue Earth "Exceptional Relationships" Sandborg — (2002). 1307, 1318-19, L. 1322 28 Wm. Mitchell Rev. see, reasoning, e.g., Winger v. applying For cases this (Ill. Ctr., 813, App. 818-20 Ct. Franciscan Med. 701 N.E.2d 125; A.2d 1998); Doering, at Cowan v. 545 Tomfohr, 450 N.W.2d (N.J. 593, 159, 1988); County, P.2d 598 King Hunt v. 481 167 1971). (Wash. App. Ct. 12 (Minn. 61, 65 County, v. Blue Earth 615 N.W.2d Sandborg 2000); Tomfohr, 450 N.W.2d at 125.

617 guilty contributory negligence patient when the patient on doctor."13 relies majority opinion adequately

¶ The does not 133. explain why departing Jankee, it is from from Professor Williams, and from case law. Professor de- Williams majority's approach scribes the as I do too. confused.14 III. SUBJECTIVE STANDARD OF CONTRIBUTORY OTHER

NEGLIGENCE IN CIRCUMSTANCES agree majority opinion I 134. with the caregiver in when the risk of harm a case which a has custody protected person and control over is not caregiver circumstances, foreseeable under the who custody protected person has and control owes a any people.15 same of care that it owes to and all circumstances, Under these the affirmative defense of contributory negligence equation.16 reenters the majority disagree opinion, I 135. with the how- protected person's ever, it when concludes that contributory negligence should, under these circum- objective stances, be an I measured standard.17 Dibbel, 28, 48-49, Brown v. 227 Wis. 2d 595 N.W.2d 358 (1999).

In the patient negligent cases which is after the doctor's administered, negligent negligence treatment was the later contributory negligence not goes that bars the action but Tasche, mitigation damages. 561, 564-65, Schulz v. 166 Wis. (1917). 165 N.W. 292 14Williams, supra (permitting note at 307 defense of contributory negligence custody in cases of and control does not law). conduct, goal deter unreasonable which is the of tort 48, 49, Majority op., 55-57. ¶¶ Majority op., ¶¶ 17Majority op., majority follow the trend under these circum- would (as dissent) my I stances did Jankee measure subjec- protected person's contributory negligence by a standard.18 tive agree I forth, 136. For the reasons set with

remanding disagree to the circuit court cause but majority opinion's approach "negligence" with the to the protected person. I am authorized to state that Justice ANN joins BRADLEY concurrence. WALSH this 18Jankee, (Abrahamson, C.J., 235 Wis. 2d 700 116-17 ¶¶ Williams, dissenting); supra at 315. note

Case Details

Case Name: Hofflander v. St. Catherine's Hospital, Inc.

Court Name: Wisconsin Supreme Court

Date Published: Jul 1, 2003

Citation: 664 N.W.2d 545

Docket Number: 00-2467

Court Abbreviation: Wis.