Emil E. JANKEE and Mary Jankee, Plaintiffs-Appellants-Petitioners, v. CLARK COUNTY, Wisconsin Health Care Liability Insurance Plan, Defendants-Respondents-Cross-Appellants-Petitioners, CONTINENTAL CASUALTY CO., Hammel, Green & Abrahamson, Inc., Defendants-Respondents-Cross-Appellants-Cross-Respondents, WAUSAU UNDERWRITERS INS. CO., J.P. Cullen & Sons, Inc., St. Paul Fire & Marine Ins. Co., and Wausau Metal Corp. d/b/a Milco, Defendants-Respondents-Cross-Respondents, WISCONSIN DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Defendant.
No. 95-2136
Supreme Court of Wisconsin
June 22, 2000
2000 WI 64 | 612 N.W.2d 297
Oral argument October 5, 1999.
For the defendants-respondents-cross appellants-petitioners there were briefs by Timothy F. Mentkowski, Mary E. Nelson and Crivello, Carlson, Mentkowski & Steeves, S.C., Milwaukee and oral argument by Timothy F. Mentkowski.
For the defendants-respondents-cross appellants-cross respondents there was a brief by Timothy R. Murphy and Askegaard, Robinson, Murphy & Schweich, P.A., Brainerd, Minnesota and oral argument by Timothy R. Murphy.
For the defendants-respondents-cross respondents, Wausau Underwriters Insurance Co. and J.P. Cullen & Sons, Inc., there was a brief by Wayne R. Luck and Law Offices of Stilp and Cotton, Appelton and oral argument by Wayne R. Luck.
For the defendants-respondents-cross respondents, St. Paul Fire & Marine Insurance Co. and Wausau Metals Corporation, d/b/a Milco, there was a brief by John P. Richie and Misfeldt, Stark, Richie, Wickstrom & Wachs, Eau Claire and oral argument by John P. Richie.
Amicus curiae was filed by W. Wayne Siesennop, Mary Susan Maloney and Hannan, Siesennop & Sulli
Amicus curiae was filed by Charles V. Sweeney, Raymond P. Taffora, Nia Enemuoh-Trammell and Michael Best & Friedrich, LLP, Madison for the Wisconsin Transportation Builders Association.
Amicus curiae was filed by Alan E. Gesler and Slattery & Hausman, Ltd., Waukesha for the Wisconsin Academy of Trial Lawyers.
¶ 1. DAVID T. PROSSER, J. Emil and Mary Jankee and Clark County seek review of a published decision of the court of appeals, Jankee v. Clark County, 222 Wis. 2d 151, 585 N.W.2d 913 (Ct. App. 1998), affirming in part and reversing in part an order of the Circuit Court for Clark County, Duane Polivka, Judge.
¶ 2. Emil Jankee (Jankee) sustained paralyzing injuries during an attempt to escape from Clark County Health Care Center (CCHCC), after he squeezed through an opening in a third-floor window and then fell from the roof, fracturing his back. Emil and Mary Jankee (Jankees) filed a complaint against Clark County and against three other parties, namely the architect, contractor, and subcontractor responsible for designing and implementing CCHCC‘s building renovations several years earlier.
¶ 3. The Jankees sued Clark County for negligently failing to supervise Jankee adequately while he was in the County‘s custody and control. They also pursued negligence claims against the architectural firm of Hammel, Green & Abrahamson, Inc. (HGA), building contractor J.P. Cullen & Sons, Inc. (Cullen),
¶ 4. The circuit court granted summary judgment to HGA, Cullen, and MILCO, finding that the government contractor immunity doctrine rendered those defendants immune from liability. The court also granted the summary judgment motion of Clark County, holding that the doctrine of contributory negligence precluded recovery as a matter of law because Jankee‘s negligence was greater than the negligence of each of the four defendants.
¶ 5. The court of appeals affirmed the summary judgment motions granted to the three contractor defendants, holding that the defense of government contractor immunity entitled them to immunity as a matter of law. Jankee, 222 Wis. 2d at 154-55. The court reversed the circuit court, however, on the claim against Clark County, concluding that if Jankee were incapable of controlling or appreciating his conduct, he could not be held contributorily negligent. Id. at 155. Because the court of appeals ruled that Jankee‘s conduct should be gauged under a subjective standard of care, the court discerned disputed issues of fact relating to Jankee‘s capacity. The court of appeals therefore found that the circuit court had erred in dismissing the claim against Clark County, and it remanded the issue of contributory negligence. Id. at 178.
¶ 6. Jankee petitioned this court seeking review of the decision of the court of appeals to affirm the
¶ 7. In our review, we do not address the strict liability cause of action. The court of appeals did not reach the strict liability claim against MILCO because it found MILCO, like the other two contractor defendants, immune from liability. Jankee, 222 Wis. 2d at 155 n.2. Jankee did not raise the strict liability issue in his petition for review, and we decline to address it here. See State v. Bodoh, 226 Wis. 2d 718, 722, 595 N.W.2d 330 (1999). Generally, a petitioner cannot raise or argue issues not set forth in the petition for review unless this court orders otherwise.
¶ 8. Two issues are before the court. The first is whether a mentally disabled plaintiff who is involuntarily committed to a mental health facility can be held contributorily negligent for injuries sustained during an escape attempt from that facility. The second issue is whether architects, contractors, and subcontractors engaged to work for the government in the renovation of a public mental health facility can invoke the defense of government contractor immunity.
¶ 9. We hold that Wisconsin‘s contributory negligence statute,
FACTS
¶ 10. The facts in this case are complex, and the record is extensive. The circuit court did not address every undisputed fact detailed in the many pleadings, depositions, answers, and affidavits. Nonetheless, the court made findings of fact for the government contractor immunity issue and based its decision to find Jankee contributorily negligent to a disqualifying degree as a matter of law expressly on Jankee‘s actions as documented in the entire record. Although an appellate court cannot make its own findings of fact, Wurtz v. Fleischman, 97 Wis. 2d 100, 108, 293 N.W.2d 155 (1980), this court searches the record to support the circuit court‘s findings of fact. In Matter of Estate of Becker, 76 Wis. 2d 336, 347, 251 N.W.2d 431 (1977). Where, as here, a circuit court has relied on a voluminous record as its basis for findings of fact, we turn to that record to set forth the pertinent facts.
¶ 11. Emil Jankee suffers from bipolar affective disorder, more commonly known as manic depressive illness. He attempted suicide at the age of 12 or 13 by taking an overdose of aspirin. Between March 5 and April 17, 1984, at the age of 26, Jankee was hospitalized voluntarily for manic depressive illness at
¶ 12. By April 17, 1984, Jankee‘s condition had improved. Jankee, however, experienced problems with “medication compliance.” Norwood physicians warned that his continued improvement hinged upon ongoing compliance with the treatment program. Doctors recorded that Jankee understood that he would progress only if he stayed on the medication, but they warned that Jankee could relapse easily if he suspended his treatment.
¶ 13. Within six weeks of his April 1984 discharge, Jankee ceased taking the medications, convinced that he no longer needed them. Even Jankee‘s medical expert in this case, psychiatrist Melvin J. Soo Hoo, M.D., conceded that Jankee‘s personal decision to stop taking the medications contradicted doctors’ advice. When Jankee unilaterally suspended the medications, physicians urged him to resume the treatment, but he did not. Jankee experienced a relapse, much as predicted, and he was rehospitalized voluntarily at Norwood on July 19, 1984.
¶ 14. At the time of his July 1984 hospitalization, Jankee admitted that he had contemplated suicide but added that he had made no recent attempts to kill himself. He denied feeling suicidal at the time of admission. Norwood evaluated Jankee‘s condition as somewhat, but not especially, depressed, and doctors
¶ 15. Norwood records for this second hospitalization, like those from the previous confinement, remark that Jankee‘s condition was good with medication compliance. Staff once more instructed Jankee to continue with the medication and to seek psychiatric follow-up. Although he commented that he should be well enough to suspend the lithium within a month or two, Jankee conceded that his treatment was “just like insulin, [ ] take it for life.” A nurse noted in Jankee‘s chart that despite his realization about the positive effects of the medication, Jankee ignored those benefits and instead counted “on himself to cure all.” At his discharge, a social worker recommended that Jankee be situated in a halfway house if medication noncompliance were to spark a deterioration.
¶ 16. Dr. Soo Hoo testified that patients like Jankee, if not treated with medication, are prone to future episodes of decompensation.4 Had Jankee stayed on his medication in 1984, Dr. Soo Hoo observed, in all likelihood he would have been in an improved condition, and his risk of another flare-up
¶ 17. Jankee experienced another relapse in July 1989, 11 days after he married Mary Gwozd. On the evening of July 13, 1989, he and his wife engaged in a violent domestic altercation. After the dispute, Jankee left his home and began walking down the highway, where police picked him up after his wife reported the incident. Jankee spent the night in jail, and the next morning, the court detained him for a 30-day evaluation to determine whether he was competent to stand trial for domestic abuse. Jankee was given the choice of confinement at Norwood or CCHCC. Jankee chose the latter facility because of CCHCC‘s proximity to his home and to the home of his parents,5 making it easier for his wife and family to visit him. CCHCC admitted Jankee to its New Horizons Unit, a locked, long-term care ward for the chronically mentally disabled.
¶ 18. CCHCC has been serving Clark County and its surrounding areas continuously since 1922. In the late 1970s and early 1980s, it operated as a nursing home for the mentally disabled and elderly. In 1980, CCHCC embarked on a renovation to bring the facility in compliance with applicable nursing home and hospital regulations. CCHCC had been plagued by numerous building code violations and was in jeopardy of losing its license if the building were not updated. Clark County hired HGA as the project architect, and it selected Cullen as the general contractor for the refurbishment.
¶ 20. State regulations also came into play in the selection of window design at CCHCC. No part of the building featured air conditioning prior to the renovation. Clark County expressed concern about state regulations requiring adequate ventilation. Air conditioning was thought cost prohibitive, and the Wisconsin Administrative Code forbade the use of fans.6 If a facility has no air conditioning, regulations require windows to open a specific percentage, based on the square footage of an area, to allow air circulation. In addition, the State of Wisconsin already had cited CCHCC because “[s]everal resident sleeping rooms have locked windows or security screens. Unless a waiver (federal) and variance (state) is requested and granted, windows shall be operable and openable without tools or keys.”
¶ 21. CCHCC administrators and other personnel met with HGA to discuss solutions to these design concerns. HGA drafted specifications that called for
¶ 22. Cullen subcontracted MILCO to design, manufacture, and install the windows. MILCO designed a cube stop that served simultaneously as a locking device and a removable stop. The cube stop consisted of an approximately one-and-one-half inch metal cube that inserted into the top of the window‘s frame head and screwed into place with an Allen wrench to prevent the window from sliding entirely open. The cube stop functioned so that: (1) the window could be locked in place at only five inches, or alternatively any other distance as the window slid to the fully open position; or (2) the window could be opened unhindered to any distance if the cube stop were removed with an Allen wrench; or (3) the window would be sealed in a closed position by locking the cube stop in place. HGA approved MILCO‘s shop drawings for this proposal. A CCHCC administrator explained that Clark County had relied upon HGA‘s expertise in the choice of this design, and the County therefore did not review the window specifications.
¶ 23. During the period when the window installation was under way, in the spring of 1984, a patient housed on CCHCC‘s first floor managed to remove a
¶ 24. Cullen relayed MILCO‘s proposed design modification in a letter to HGA, but the letter did not specify that the maximum window opening width would be changed from the contracted five inches to the revised three inches. Thus, Clark County approved installation of the channel stops apparently unaware that the addition of channel stops permitted only the narrower, three-inch opening.
¶ 25. After the windows had been installed, HGA carried out an inspection of the CCHCC project in November 1984. HGA noticed the windows opened only three inches, not the five inches originally specified in the agreement with Clark County. HGA contacted MILCO about the discrepancy, and MILCO responded that it had never been notified that the channel stops must allow the wider, five-inch opening. MILCO offered to modify the channel stops at an additional cost.
¶ 26. The window openings allowed by the channel stops were widened, but the record does not reveal with certainty which parties, or whether any of the parties to this lawsuit, ultimately implemented the modifications. The modifications consisted of shorten-
ing the length of the channel stops to 13 inches. After the channel stops were shortened, the cube stops were reinstalled between the window and the channel stops; the two stops thus were positioned in the top track of the window. MILCO‘s design engineer later observed that this placement rendered the cube stop ineffective. If the window sash were rocked back and forth against the channel stop, the cube stop could be forced to slide out of place.
27. In 1987 a patient made an escape attempt from CCHCC by removing a screw that held the channel stop in place. This removal allowed the patient to open the window to a width that permitted exit. Clark County conducted an investigation of this incident and concluded that the channel stops still offered the facility sufficient security protections. CCHCC administrator Aryln Mills later testified that the particular patient had been able to escape because he “had basically been a very unique type of individual that had skills beyond that which would be expected to be possessed by another patient.” Consequently, Clark County left the stop system in place unchanged. Until Jankee arrived at CCHCC in July 1989, there had been no subsequent successful elopements from the facility.
28. A CCHCC physician believed that under the law, medication could not be administered in a voluntary confinement without a patient‘s consent. The physician therefore contacted the district attorney, and after some discussion, Chapter 51 proceedings were initiated. A Chapter 51 commitment would ensure that Jankee received treatment with medication.
29. Early in his admission, Jankee displayed threatening and destructive behavior. Consequently, CCHCC placed Jankee under an emergency 72-hour
30. During the course of his entire hospitalization at CCHCC, Jankee voiced no thoughts of self-destruction. At no time did a psychiatrist or other professional staff determine that he was either suicidal or an elopement risk. Hospital policies require staff to address patients who present an elopement risk; Jankee‘s records contain no such notations. A July 18, 1989, psychiatric evaluation indicated Jankee was not suicidal. A July 20 Physician‘s Report to Clark County Circuit Court reported that “[t]here is substantial risk of harm to others,” but it remained silent on whether
31. Dr. Soo Hoo noted that Jankee‘s discharge summary suggested he was under a considerable influence of delusions and exercised poor judgment, but remarked that Jankee was not someone “imminently engrossed in suicidal preoccupations.” Jankee expressed to CCHCC that he was “looking very much forward to getting his life and relationship with his new wife back in order,” and he stressed that his religious faith prevented him from harming his wife or himself. Similarly, Dr. Soo Hoo testified that Jankee “is very sensitive to wanting to survive. This is not someone who is intent on harming himself.”
32. Jankee‘s new room had three windows: one faced south, and two looked east. The windows to the east were situated three stories above the ground. The south window, on the other hand, overlooked the roof of the building‘s second story, a flat surface about 20 feet wide and situated two or three feet below Jankee‘s windowsill. Jankee noted that the south window located in his room was “just far enough so somebody couldn‘t see [it] from the door area.”
33. The south window was equipped with one of the modified channel stops that allowed for an opening greater than three inches. Several days before making his escape attempt, Jankee took note that the windows in his room opened about four inches. The windows were not locked shut. Both Jankee and the staff would open the windows for ventilation.
34. On the evening of July 25, 1989, Jankee‘s wife visited him at about 6:00 or 7:00, bringing pizza
35. Jankee testified about the motivations behind his escape plan at his deposition. During his hospitalization, Jankee believed that “God or Satan or someone” directed his activities, including the escape. Jankee also indicated that he wanted to leave because he was tired of being at CCHCC, missed his wife and family, and was anxious to finish his plans to move and renovate a house. He planned to depart from CCHCC that evening, see his wife, and return to the facility before breakfast, “with nobody being the wiser.” He did not plan to kill himself.
36. It is not clear exactly when Jankee attempted to escape. At about 11:30 p.m., Jankee walked to the nursing station and asked for a drink of water. Nurses did not notice any agitation or anxiety. He apparently visited the station again between 12:15 a.m. and 12:30 a.m., and nurses gave him another glass of water at 1:00 a.m.
37. In executing his plan, Jankee hoped to “fool” staff into thinking that he was still in his room. He anticipated a bed check, so he “covered his tracks.” Jankee fluffed up some pillows on his bed and put them under blankets to make it appear as if he were in the room. He drew closed the curtain at south window. That way, Jankee reasoned, the window would be covered from the view of those who peered into his room,
38. Jankee selected the south window for his elopement because the flat, brick roof, situated a few feet beneath his window, offered a safer way to exit than either of the two east windows. He acknowledged that he would “probably get killed” were he to fall three stories from an east window. Even though Jankee “felt protected” and was not worried about falling, he did not jump the full three stories because he “knew that would be definitely suicide.” At his deposition, Jankee agreed that he “knew [it] was dangerous” to jump out the east window from the third story. He also “could appreciate that would not be using good judgment,” and he testified that he sought to “lower the risk of injury to” himself. Dr. Soo Hoo agreed that Jankee appeared to be exercising caution for his own safety.
39. From the south window, Jankee was able to step out of his room onto the roof. He planned to move hand-over-hand from one window ledge to the next and then to scale the two stories down one side of the building, until he was a safe jumping distance from the ground. While on the roof, Jankee noticed a carved stone figure protruding from the brick facade between two east windows on the second floor. He shimmied on
40. CCHCC policy required staff to check patient rooms every two hours. At 3:00 a.m., a nurse conducted a bed check of Jankee‘s room. The nurse did not see Jankee‘s face, but he noticed respirations. One hour later, another nurse opened the door of Jankee‘s room and thought she saw him in bed. At 5:55 a.m. on the morning of July 26, 1989, CCHCC security found Jankee lying on the ground about five or six feet from the southeast side of the building. Jankee complained of not being able to move his legs, and he had abrasions on his forehead and eyebrow. He told a nurse, “I‘m sorry [ ], I had to get out of there.” An ambulance transferred Jankee to St. Joseph‘s hospital in Marshfield. Sometime between 6:30 and 6:40 a.m., Jankee‘s wife called and asked: “Is Emil there?”
41. The fall fractured Jankee‘s back. If Jankee uses leg braces, he can be on his feet between 30 minutes and one hour; otherwise, he uses a wheelchair.
PROCEDURAL HISTORY
42. The Jankees filed a negligence claim against Clark County, contending that CCHCC failed to supervise and restrain Jankee properly and provide him with a safe place while Jankee was in Clark County‘s custody and control. The Jankees also sought recovery from HGA, Cullen, and MILCO, claiming those defendants negligently failed to design and construct a safe psychiatric unit window and neglected to
43. Each of the four defendants moved for summary judgment. Initially, the circuit court granted only the motion of MILCO, finding that with respect to the strict liability claim, MILCO could not be liable because Jankee confronted an open and obvious danger. Following that dismissal, the Jankees, Clark County, and HGA pursued appeals. While the appeal was pending, MILCO asked the court of appeals for permission to address a new issue, the defense of government contractor immunity, based on the then-recent decision in Lyons v. CNA Ins. Co., 207 Wis. 2d 446, 558 N.W.2d 658 (Ct. App. 1996). Subsequently, HGA and Cullen also advanced the government contractor immunity defense. The court of appeals remanded the case to the circuit court for additional proceedings with respect to the Lyons government contractor immunity issue. Jankee v. Clark County, No. 95-2136, unpublished slip op. at 5 (Wis. Ct. App. May 9, 1997). The court also noted two other recent cases, Gould v. American Family Mut. Ins. Co., 198 Wis. 2d 450, 543 N.W.2d 282 (1996), and Burch v. American Family Mut. Ins. Co., 198 Wis. 2d 465, 543 N.W.2d 277 (1996), might impact the issue of Jankee‘s capacity. Id. at 6 n.1.
44. On remand, the circuit court heard arguments from Clark County, HGA, Cullen, and MILCO about the application of the government contractor immunity defense. Under Lyons, 207 Wis. 2d 446, gov-
An independent professional contractor who follows official directives is an “agent” for the purposes of
§ 893.80(4), STATS. , or is entitled to common law immunity when:(1) the governmental authority approved reasonably precise specifications;
(2) the contractor‘s actions conformed to those specifications; and
(3) the contractor warned the supervising governmental authority about the possible dangers associated with those specifications that were known to the contractor but not to the governmental officials.
Id. at 457-58. Clark County disputed application of the second prong of the Lyons test to HGA, Cullen, and MILCO.8 The County maintained that the case presented an issue of material fact because the three-
45. The circuit court also found that the degree of Jankee‘s contributory negligence precluded his recovery against each of the four defendants as a matter of law. The court ruled that Jankee‘s conduct must be assessed under the reasonable person standard of care because the exception to that standard articulated by this court in Gould, 198 Wis. 2d 450, could not apply to Jankee. The circuit court applied the reasonable person standard and observed that Jankee‘s elopement was not an impulsive act, but rather “carefully and thoughtfully planned,” showing “cleverness and forethought.” The court held that under the reasonable person standard, Jankee‘s negligence exceeded the negligence of each of the four defendants. Consequently, the court granted summary judgment to Clark County, HGA, Cullen, and MILCO on this second issue.
47. The court of appeals affirmed the trial court‘s summary judgments for HGA, Cullen, and MILCO. The court held that under Lyons, government contractor immunity offered those three defendants immunity. Jankee, 222 Wis. 2d at 172. The court of appeals reversed the summary judgment motion granted to Clark County on the contributory negligence issue. The court concluded that Jankee‘s contributory negligence should be assessed under a subjective standard of care, not the reasonable person standard. Id. at 173, 177. The court declared that the exception to the reasonable person standard created in Gould should apply to Jankee because Jankee may have lacked the capacity to appreciate or control his conduct. Id. at 177. Having concluded that Jankee‘s capacity should be at issue under the subjective standard of care, the court decided that facts relating to capacity were in dispute. Id. at 178. Therefore, the court remanded the case to the circuit court for a factual finding to determine whether Jankee possessed the capacity to control and appreciate his conduct. Id.
STANDARD OF REVIEW
48. The review of a summary judgment motion is a question of law that this court considers de novo. Gaertner v. Holcka, 219 Wis. 2d 436, 445-46, 580 N.W.2d 271 (1998). In our review of the granting of a summary judgment motion, we employ the same methodology as that applied by the circuit court. Riccitelli v. Broekhuizen, 227 Wis. 2d 100, 110, 595 N.W.2d 392 (1999). Summary judgment must be entered when a court is satisfied that the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law.
49. The pivotal issue here is whether Jankee‘s conduct should be assessed under the reasonable person standard of care, or under the subjective, or capacity-based, standard of care. We find that no facts relating to Jankee‘s contributory negligence are in dispute because, as set forth below, we hold that Jankee‘s conduct must be measured against the reasonable person standard of care. The reasonable person standard is an objective test that takes no account of an individual‘s capacity. Hence, any issues of fact related to Jankee‘s capacity to control or appreciate his conduct are not genuine issues material to a resolution here.
50. Because there are no genuine issues of material fact, we must determine whether the four defendants were entitled to summary judgment as a matter of law. Under Wisconsin law, a plaintiff cannot recover damages if the plaintiff‘s negligence exceeds the negligence of the party against whom relief is sought.
CONTRIBUTORY NEGLIGENCE
51. We first address whether the granting of the summary judgment motions by the circuit court can be upheld as a matter of law. Wisconsin‘s contributory negligence statute operates as a form of comparative negligence, barring recovery if the negligence of a plaintiff exceeds that of the party from whom the plaintiff seeks recovery.
52. Plaintiffs seeking to maintain a negligence action must prove four elements: “(1) A duty of care on the part of the defendant; (2) a breach of that duty; (3) a causal connection between the conduct and the injury; and (4) an actual loss or damage as a result of the injury.” Rockweit v. Senecal, 197 Wis. 2d 409, 418, 541 N.W.2d 742 (1995). The analysis of a negligence claim thus begins with a consideration of the duty of care and
53. This court has long recognized that every person owes a duty to the world at large to protect others from foreseeable harm. Id. at 420 (citing Palsgraf v. Long Island R.R., 248 N.Y. 339, 350, 162 N.E. 99 (1928) (Andrews, J., dissenting)). The doctrine of contributory negligence acknowledges that the same duty of care obligates persons to exercise ordinary care for their own safety. Peters, 224 Wis. 2d at 192 (quoting Wis JI-Civil 1007). “Ordinary care is the degree of care which the great mass of mankind ordinarily exercises under the same or similar circumstances.” Bodoh, 226 Wis. 2d at 732 (quoting Wis JI-Criminal 1260). A person fails to exercise ordinary care for his or her own safety:
[W]hen, without intending to do any harm, he or she does something or fails to do something under circumstances in which a reasonable person would foresee that by his or her action or failure to act, he or she will subject a person or property to an unreasonable risk of injury or damage.
Rockweit, 197 Wis. 2d at 424 n.7 (quoting Wis JI-Civil 1005). Thus, when a reasonable person knows or should know that a course of conduct poses substantial, inherent risks to him or her, yet the person persists in the conduct voluntarily and suffers injury as a result, the person is negligent and will not be permitted to recover from someone who is less negligent. Peters, 224 Wis. 2d at 196-97.
54. Having set forth our general approach to negligence claims, we next consider whether mentally
general rule is that tortfeasors cannot invoke mental capacity as a defense. Burch, 198 Wis. 2d at 474. This rule, which holds the mentally disabled liable for their torts, emerged from Weaver v. Ward, 80 Eng. Rep. 284 (K.B. 1616), a 17th-Century trespass case sounding in the theory of strict liability. Gould, 198 Wis. 2d at 456 (citing W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 135 (5th ed. 1984)).
55. This court‘s policy rationales for embracing the rule trace their origins to the 1930s, when we observed that the imposition of liability on the mentally disabled: (1) better apportions loss between two innocent persons to the one who caused the loss, (2) encourages restraint of the disabled, and (3) prevents tortfeasors from feigning incapacity to avoid liability. Breunig v. American Family Ins. Co., 45 Wis. 2d 536, 542, 173 N.W.2d 619 (1970) (citing Guardianship of Meyer, 218 Wis. 381, 261 N.W. 211 (1935)).10
56. As we describe below, the application of some of these storied rationales to modern society is strained. Nonetheless, observers today find more contemporary justifications for the general rule. For instance, in an era in which society is less inclined to institutionalize the mentally disabled, the reasonable person standard of care obligates the mentally disabled to conform their behavior to the expectations of the communities in which they live. More practically, the reasonable person standard of care allows courts and juries to bypass the imprecise task of distinguishing
57. Despite our endorsement of the general rule, this court fashioned limited defenses for the mentally disabled on two occasions. In the first case, Breunig, we concluded that a defendant cannot be found negligent when he or she is suddenly overcome without forewarning by a mental disability or disorder that makes it impossible for the defendant to appreciate the duty to exercise ordinary care or act in an ordinarily prudent manner. Breunig, 45 Wis. 2d at 541, 543. This rare exception thus applies only when two conditions are met: (1) the person has no prior notice or forewarning of his or her potential for becoming disabled, and (2) the disability renders the person incapable of conforming to the standards of ordinary care. Id. We expressly limited the Breunig rule: “All we hold is that a sudden mental incapacity equivalent in its effect to such physical causes as a sudden heart attack, epileptic seizure, stroke, or fainting should be treated alike and not under the general rule of insanity.” Id. at 544. We later observed that the Breunig exception applies only to sudden mental disability, not to more generalized situations in which a person‘s disability prevents him from controlling his conduct. Gould, 198 Wis. 2d at 459.
58. Although we acknowledged an exception in Breunig, we held that the exception did not apply to the
59. In the second case, Gould, we created an exception for the liability of mentally disabled persons in institutionalized settings who do not have the capacity to control or appreciate their conduct when they cause injury to caretakers employed for financial compensation. Gould, 198 Wis. 2d at 453. The Gould exception is narrow. It was articulated for a severely disabled defendant suffering from Alzheimer‘s Disease who injured a nurse in a health care facility. We did not design the exception to apply broadly in a variety of settings against a variety of plaintiffs. See Burch, 198 Wis. 2d at 473. Thus, on the same day this court decided Gould, we stressed in Burch that the mentally disabled generally are held to the reasonable person standard of care. Id.
60. The Gould exception consists of structured requirements. The person must be institutionalized, the person must have a mental disability, the person must lack the capacity to control or appreciate his or her conduct, and the person must have committed an injury to a caretaker employed for financial compensation. Gould, 198 Wis. 2d at 453. In the present case, the
61. We explicitly observed in Gould that the exception created therein does not apply to more expansive situations in which a person generally is unable to control his or her conduct. Gould, 198 Wis. 2d at 459. In both Breunig and Gould, this court chose not to adopt broader exceptions to the general rule that holds the mentally disabled defendant to an objective standard of care.
62. Expansion of the narrow Gould exception to other circumstances based on a party‘s capacity to control or appreciate conduct would eviscerate the common law rule.14 We reject an extension of the Gould exception in a manner that would allow the mentally disabled to raise a defense based on a more generalized capacity to control conduct. A truncated rule of this sort would invite parties suffering from varying degrees of permanent or temporary impair-
63. The Breunig and Gould exceptions, we stress, are limited. In those situations in which conduct does not fall within those precise exceptions, we continue to hold defendants to the reasonable person standard of care. See Burch, 198 Wis. 2d at 473.
64. Our inquiry about the standard of care does not end at this point, however, because this case is distinguishable from Breunig and Gould in one critical respect. Unlike either of the defendants in Breunig or Gould, Jankee appeared before the circuit court as a plaintiff in a negligence claim. The court of appeals acknowledged this distinction when it noted that the Gould court had addressed the liability of a tortfeasor, not the contributory negligence of a plaintiff. Jankee, 222 Wis. 2d at 175. We therefore next address the standard of care to which a mentally disabled plaintiff must be held when a defendant raises an affirmative defense of contributory negligence.
65. The court of appeals in this case relied on Wright v. Mercy Hospital of Janesville, Wisconsin, Inc., 206 Wis. 2d 449, 557 N.W.2d 846 (Ct. App. 1996), for its analysis of the contributory negligence of a mentally disabled plaintiff. In Wright, a psychiatric patient pursued a medical malpractice claim against a health care facility after she and a caregiver engaged in a sexual relationship during the course of her treatment. At trial, the hospital asked the court to submit a jury question about the plaintiff‘s contributory negligence. Id. at 463. The circuit court refused, and on appeal, the
court of appeals invoked the Gould exception to affirm the circuit court. Id. at 463-64.15
¶ 66. The Wright court applied the Gould exception without addressing the difference in the standard of care to which mentally disabled persons must be held when they appear before a court as defendants and when they are postured as plaintiffs. Id. In the present case, the court of appeals recognized the significance of the distinction, Jankee, 222 Wis. 2d at 177, but it relied on Wright without undertaking its own analysis to explore the standard to which the mentally disabled are held. Thus, although Jankee and Wright both focus on the contributory negligence of the mentally disabled, neither case fully develops the distinction between the contributory negligence of a plaintiff and the liability of a defendant.
¶ 67. The distinction is not immaterial. Although the general rule holds mentally disabled defendants to the reasonable person standard of care, some jurisdictions apply a subjective standard of care when the mentally disabled person seeks recovery as a plaintiff.16
¶ 69. The subjective standard may have emerged as an attempt to modify the historically harsh results of contributory negligence, which operated as a total bar to recovery for plaintiffs found even partially responsible for their own injuries. Id. at 1091-92; Stephanie I. Splane, Note, Tort Liability of the Mentally Ill in Negligence Actions, 93 Yale L. J. 153, 157 (1983). Strict application of a contributory negligence rule that precludes relief to plaintiffs who have shown minimal fault can appear inequitable when applied to persons who lack average intelligence and capacity. Ellis, Tort Responsibility of Mentally Disabled Persons at 1990-91. Thus, the subjective standard of care is highly suited to jurisdictions that still apply the pure, rather than the comparative, form of contributory negligence, because the subjective standard allows juries to apply equitable principles to set a plaintiff‘s recovery. Alison P. Raney, Stacy v. Jedco Construction, Inc.: North Carolina Adopts a Diminished Capacity Standard for Contributory Negligence, 31 Wake Forest L. Rev. 1215, 1234 (1996).
¶ 71. The second rationale imposes liability so that “those interested in the estate of the insane person, as relatives or otherwise, may be under inducement to restrain him.” Gould, 198 Wis. 2d at 462 (quoting Meyer, 218 Wis. at 385). This rationale encourages relatives and guardians to take measures to protect the mentally disabled‘s assets, and thus their inheritance, from the effects of tort liability. Ellis, Tort Responsibility of Mentally Disabled Persons at 1084. The “caretaker” rationale has been widely criticized as an anachronism originating in an eugenical era because it promoted incentives for relatives and guardians to isolate the mentally disabled in institutions.18 This second rationale should not serve as the foundation for any modern policy decisions. Ironically, however, the subjective standard creates incentives for potential defendants such as CCHCC, to intensify security considerations for the mentally disabled, not to protect the disabled but rather to protect themselves from liability. As an example, one way for CCHCC to reduce the threat of liability for a patient‘s attempted escape would be to restore bars to all windows in the facility. This response might reduce the risk of liability but would not represent sound therapeutic policy for patients.19
¶ 74. Nonetheless, several arguments support the objective standard of care for mentally disabled plaintiffs. Prosser and Keeton note that the policy rationales underpinning the subjective standard of care are not as evident as those for the reasonable person standard. Id. at § 32;
¶ 76. We are not persuaded that this is the case in which to adopt a subjective standard of care for mentally disabled plaintiffs. We acknowledge that the subjective standard may be appropriate for a plaintiff who is suddenly and unpredictably overcome with a mental disorder and was never able to foresee or appreciate risk. See Breunig, 45 Wis. 2d at 541, 543-44.27 The subjective standard is not appropriate, however, for cases in which a person‘s decompensation is predictable, for cases in which a plaintiff can modify his or her conduct and prevent injury by pursuing and maintaining a course of medication and treatment.
¶ 78. Because we have determined not to adopt new law, we review Jankee‘s situation in the light of the two previously recognized exceptions to the objective standard, namely the exceptions allowed by Gould and Breunig. The Gould exception cannot apply here because Jankee did not injure a caretaker employed for financial compensation. The Gould case is simply inapplicable.
¶ 79. The Breunig exception to the objective standard requires that two conditions be met: (1) the person had no prior notice or forewarning of his or her potential for becoming disabled, and (2) the disability renders the person incapable of conforming to the standards of ordinary care. These conditions are clearly pertinent in assessing the contributory negligence of a plaintiff.
¶ 80. We first examine whether Jankee had forewarning of the potential for becoming disabled. Jankee had forewarning. He had received warnings during the two 1984 hospitalizations and subsequent outpatient visits that medication noncompliance would spark an episode of disability. He nonetheless voluntarily suspended the treatments. At both hospitalizations, doctors stressed that his continued improvement was contingent upon compliance with medication. Jankee understood that failure to continue the treatment would cause a relapse. Jankee himself observed that he must take the medication for life, and he likened lithium to the insulin a diabetic receives. At Jankee‘s discharge from the second hospitalization, staff once more warned that Jankee‘s condition would deteriorate in the event of medication noncompliance.
¶ 82. Allowing Jankee to recover would frustrate the policy of encouraging the mentally disabled to seek and maintain a course of medication and treatment. The introduction of modern psychiatric medications and therapies makes it possible for the mentally disabled to control their conduct, rendering it less tenable to conclude that the mentally disabled are incapable of gauging harmful behavior. Splane, Tort Liability of the Mentally Ill at 168. Like Mrs. Veith, the mentally disabled defendant in Breunig, a patient who is aware of his or her illness knows the risks presented by the condition.
¶ 83. Jankee understood, since at least 1984, that failure to comply with his prescribed medications would be dangerous and detrimental to his mental health. We favor a policy that encourages the mentally disabled to seek, not reject, treatment.28 Were Jankee to prevail here, we would be promoting an environment that allows the mentally disabled to cease treatment for foreseeable illnesses and then to pursue recovery for self-inflicted injuries under an insulating theory that effectively excuses them from the consequences of their own negligence. We decline to reward a plaintiff for choosing this course of action.
¶ 85. Jankee‘s conduct reveals that he did in fact appreciate the duty of ordinary care. Jankee was not so incapacitated as to be “totally unable to apprehend danger and avoid exposure to it.” See 57A Am. Jur. 2d Negligence § 954.29 On the contrary, Jankee took measures to ensure his own safety, and he actively apprehended the danger. Jankee‘s CCHCC room had three windows. He chose to elope from the south window overlooking a flat roof, a landing only about two or three feet below the windowsill. This choice, Jankee conceded, lowered the risk of injury because it provided a safer way to exit than the three-story drop from the other two windows. Jankee acknowledged that a jump from an east window would be dangerous and probably kill him. After all, he remarked, “That would be suicide.” Once on the roof, he planned to move along a ledge to a height from which he could jump to the ground safely. Jankee knew the substantial risk of a three-story fall, and he should have known that attempting to scale down a building could provoke serious injury or even death.
¶ 88. We hold, therefore, that under the reasonable person, objective standard of care, Jankee‘s own negligence exceeded that of any of the defendants as a matter of law for two reasons. First, Jankee was contributorily negligent because he failed to comply with his medication program. Modern medicine encourages the mentally disabled to pursue treatment programs that can result in long-term recovery. Under the reasonable person standard of care, a person who understands that ceasing medication will spark a relapse should be accountable for his or her own contributory fault and should not be rewarded for stopping the treatment.
¶ 89. Second, under the reasonable person standard of care, Jankee was the major cause of his own injuries. Our courts deny recovery to parties who are the major cause of their own injuries. Peters, 224 Wis. 2d at 195 (quoting Grzadzielewski, 159 Wis. 2d at 610). The circuit court found Jankee‘s conduct clever and thoughtfully planned, and the court concluded that “there is no doubt that he placed himself in considerable risk.” We agree. Jankee appreciated the duty to exercise ordinary care. He foresaw the inherent risk of his actions, and he apprehended that the conduct was dangerous. The degree of planning and careful execution demonstrates that although this may have been an impulsive act, as Jankee himself contends, it was not the result of sudden mental incapacity.
CUSTODY AND CONTROL
¶ 91. We next consider whether Clark County‘s custody and control of Jankee created a duty for the County that overrode Jankee‘s duty to exercise ordinary care for his own safety. The Jankees do not explicitly argue that Jankee‘s confinement gave rise to a special relationship between Clark County and Jankee. They submit, however, that CCHCC inadequately policed Jankee‘s ward, failed to maintain close observation over him, and neglected to perform its routine, custodial duties in the course of caring for Jankee. Were we to find that Clark County owed Jankee a heightened duty of care to prevent a foreseeable escape attempt, Jankee still could recover from Clark County despite our holding that his contributory negligence exceeded the negligence of Clark County and other defendants as a matter of law. We do not come to this conclusion, however, because although Clark County had a special, protective relationship with Jankee, CCHCC had no reason to know that Jankee was an elopement risk.
¶ 94. We first consider whether Clark County established a special relationship with Jankee. A person owes no duty to aid or protect a third party unless the person stands in a special relationship to the foreseeable victim. Schuster, 144 Wis. 2d at 238 n.3. This general rule reflects our adoption of
¶ 96. The duty of a hospital to take special precautions for particular patients arises in only certain situations. After all, modern hospitals treating persons with mental disabilities focus on therapy and rehabilitation, not maximum security. Payne, 81 Wis. 2d at 270. A duty to restrain or guard a specific patient emerges only when a hospital has “knowledge of the propensity or inclination of the patient to injure (himself) (herself) or escape.” Wis JI—Civil 1385.5; see also Wis JI—Civil 1385.
¶ 97. No cause of action arises unless the hospital has notice of an individual patient‘s disposition to inflict self-injury. Bogust v. Iverson, 10 Wis. 2d 129, 136-37, 139-40, 102 N.W.2d 228 (1960). Thus, a hospital is under no duty to take special precautions when there is no reason to anticipate one patient‘s escape or suicide. Dahlberg, 232 Wis. at 11. If a caregiver is unaware of a patient‘s propensity for self-injury, the caregiver cannot assume the patient‘s duty of self-care.35
¶ 98. This court has found in the past that hospitals cannot be liable for the unforeseeable actions of
¶ 99. We therefore must focus on whether CCHCC could have foreseen that Jankee would attempt to escape. CCHCC took measures consistent with the standard of ordinary care that hospitals owe
100. Like other mentally disabled patients, Jankee‘s history was complicated. He apparently attempted suicide as an adolescent. Although Jankee had threatened escape or suicide during his first 1984 hospitalization at Norwood, he denied feeling suicidal when he was again admitted to Norwood in July 1984. During that confinement, Jankee admitted to having had suicidal thoughts, but countered that suicide was not an option, adding that he could not follow through with such an act.
101. CCHCC viewed Jankee as neither a suicide nor an elopement risk during any part of the July 1989 hospitalization.37 Jankee was, according to his
102. Jankee had no history of escape attempts, and he expressed no thoughts of elopement during his confinement at CCHCC. CCHCC evaluated Jankee and found no reason to presume that he was likely to escape. CCHCC has a system in place to check on patients who were an elopement risk, and records fail to show that that risk applied to Jankee. Although Jankee told staff the night of his escape, “I‘m tired of being used for a guinea pig around here. Why don‘t you
103. Therefore, we cannot bind Clark County to assume Jankee‘s own duty of self-care. Although Clark County established a special relationship with Jankee when the court confined Jankee to the facility in an involuntary commitment, there is no cause of action here because CCHCC did not have notice about Jankee‘s disposition toward escaping. Accordingly, we hold that Clark County was not negligent during the course of its custodial care of Jankee.
CONCLUSION
104. We hold that Jankee was, as a matter of law, contributorily negligent for the injuries he sustained during his escape attempt from CCHCC and that his negligence exceeded the negligence of any defendant. First, Jankee‘s illness was treatable and foreseeable, not the product of sudden mental illness. Second, Jankee was able to appreciate the duty of ordinary care when he made his escape, and he was the major cause of his own injuries.
105. We further observe that although Clark County entered into a special relationship with Jankee during his confinement, it cannot be held negligent for the harm resulting from the elopement because Jankee‘s escape was not foreseeable. We do not reach the issue of whether the government contractor immunity defense protects HGA, Cullen, and MILCO from liability because we find the contributory negligence issue dispositive in this case.
106. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE (dissenting). Courts and commentators continue to struggle to develop an appropriate standard of care for persons with mental illness or mental disabilities. No proposed standard is free of difficulties.
107. I first address the liability of Clark County. This case presents a recurring fact pattern: A plaintiff, here Emil Jankee, is diagnosed with a mental illness or mental disability and poses a danger to himself or to others. The plaintiff is involuntarily institutionalized in a county facility. The plaintiff is injured while he is institutionalized and claims that the County‘s negligence caused his injury.
108. As the majority correctly explains, under these circumstances, Clark County assumed the duty to provide reasonable care to shield the plaintiff—the protected person—from foreseeable harm while he was at the county facility. Majority op. at ¶¶ 91, 92.1 The majority opinion makes clear that the County‘s assumption of this duty may absolve Jankee, the protected person, from the ordinary obligation of self-care, and to shift responsibility to the County, thereby expunging the affirmative defense of contributory negligence. Majority op. at ¶ 92. The reason for this rule is that “[t]he improper or inappropriate imposition of the
109. I agree with the majority‘s analysis up to this point. But the majority then goes too far in the present case, which is here on summary judgment. The majority weighs the conflicting evidence and concludes that the County was not negligent during its custodial care of Jankee because it could not have foreseen that Jankee would attempt to escape. Majority op. at ¶¶ 99-103, 105. I disagree with the majority‘s conclusion. Given Jankee‘s extensive history of mental illness, including his violent and irrational tendencies, which were known to the County, it is entirely possible
110. Even if the facts and the reasonable inferences to be drawn from the facts were not in dispute, foreseeability and negligence are ordinarily questions for a fact-finder, not for a court on summary judgment. Schuh v. Fox River Tractor Co., 63 Wis. 2d 728, 744, 218 N.W.2d 279 (1974).4
111. Therefore, summary judgment is not
112. Because the majority holds that Clark County was not negligent as a matter of law, Jankee‘s contributory negligence is of no import in determining the County‘s liability.
113. As to the other defendants, the majority opinion does not determine each defendant‘s individual causal negligence. Perhaps like the County, each of the other defendants was not causally negligent. The majority looks only to Jankee‘s negligence and concludes that Jankee‘s contributory negligence outweighs the negligence of each of the defendants.
114. The majority uses an objective standard for determining Jankee‘s contributory negligence: Jankee, an institutionalized injured person suing the institution and others for negligence, is held to a reasonable-person standard of care in determining his contributory negligence.5
115. The majority‘s treatment of the mentally
116. The majority opinion acknowledges that the objective standard is a minority view. Most states allow a jury to weigh degrees of mental capacity in assessing whether an injured plaintiff was contributorily negligent. Majority op. at ¶ 73 and n.21.7 Case
117. The majority fully and fairly presents reasons for and against the objective and subjective standards. I need not repeat them. I am persuaded by the case law and the commentators that recognize that the policy arguments employed to justify holding an institutionalized mentally ill or mentally disabled per-
118. For the reasons stated, I dissent.
119. I am authorized to state that Justice ANN WALSH BRADLEY joins this dissent.
Notes
Cowan v. Doering, 545 A.2d 159, 167 (N.J. 1988) (adopting a capacity-based standard for evaluating contributory negligence but holding that contributory negligence could not be asserted in this case because the hospital‘s duty of care included the prevention of the kind of self-damaging acts that caused plaintiff‘s injuries, thus, “the plaintiff‘s actions and capacity were subsumed within the defendant‘s scope of duty“). See W.C. Crais III, Annotation, Contributory Negligence of Mentally Incompetent or Mentally or Emotionally Disturbed Persons, 91 A.L.R. 2d 392 at 397 (1963 & 2000 Supp.), stating that:Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not greater than the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributable to the person recovering.
See also James L. Rigelhaupt, Jr., Annotation, Hospital‘s Liability for Patient‘s Injury or Death Resulting from Escape or Attempted Escape, 37 A.L.R. 4th 200 at 274-77 (1985 & 1999 Supp.) (discussing cases allowing the jury to decide whether a mentally ill patient injured in an escape or suicide attempt was contributorily negligent according to a subjective standard of plaintiff‘s capacity).In these cases, [where the plaintiff is in an institution for the mentally ill] considerable emphasis is placed on the overriding duty arising from the hospital-patient relationship, resulting in a good deal more lenience toward the plaintiff insofar as his duty to himself is concerned (discussing cases).
Under the weight of scientific opinion, however, the view that only total insanity may be considered is buckling. Most successful in overcoming the argument that it is impracticable to consider the lesser deficiencies is the argument that insanity is analogous to infancy and should be treated similarly by the courts (citing cases).
Wis JI-Civil 1021. The jury instructions for the definition of negligence creates no distinction for the mentally disabled and holds all persons to the same standard of care:Evidence has been received (it appears without dispute) that the defendant at the time of (collision, accident, fire, or other alleged tort) was mentally disabled. A person who is mentally disabled is held to the same standard of care as one who has normal mentality, and in your determination of the question of negligence, you will give no consideration to the defendant‘s mental condition.
Wis JI-Civil 1005. Similarly, the jury instruction that defines contributory negligence makes no exceptions for the mentally disabled:A person is negligent when (he) (she) fails to exercise ordinary care. Ordinary care is the care which a reasonable person would use in similar circumstances. A person is not using ordinary care and is negligent, if the person, without intending to do harm, does something (or fails to do something) that a reasonable person would recognize as creating an unreasonable risk of injury or damage to another person or property.
Wis JI-Civil 1007.Every person in all situations has a duty to exercise ordinary care for his or her own safety. This does not mean that a person is required at all hazards to avoid injury; a person must, however, exercise ordinary care to take precautions to avoid injury to himself or herself.
A case from another jurisdiction is even more illustrative. In Stuyvesant Assoc. v. John Doe, 534 A.2d 448 (N.J. Super. Ct. Law Div. 1987), a New Jersey appellate court assessed the liability of a schizophrenic man who committed vandalism during a psychotic episode. The patient had been receiving injections of prolixin decanate every other week. Id. at 449. The medication permitted him to function well enough to live alone. Id. His psychiatrist testified that if the patient missed the dose, within ten days he would become delusional, “driven by inner voices,” and unable to control his behavior. Id. Moreover, the patient knew deterioration would result from a skipped injection, and he was aware of the risks he posed when he fell into a psychotic state. Id. The patient missed an appointment for the medication, and he caused the damage at issue during the subsequent decompensation. Id. The court held the defendant to an objective standard of care and found him liable, reasoning that the patient was cognizant of his condition and the risks posed by refraining from the medication:
A reasonable person under the same circumstances as this defendant would be expected to get the injections as scheduled. Not having done so, he allowed himself to become psychotic, with the resulting damage done by his own hands. He is liable for the consequences of that conduct.
It was not too long ago that hospitals for the mentally ill were known as asylums for the insane. Emphasis was upon the custodial aspect of the institutionalization—barred windows, locked doors, straitjackets and physical restraint to prevent inmates from harming themselves or others.
Today, with more known about the cause and cure of mental illness, the mental hospital has become primarily a treatment facility. While maximum security units are retained, the primary emphasis is now upon therapy and rehabilitation. An attending psychiatrist‘s order that a particular patient be assigned to an open or closed unit represents a balance of both protection and treatment.
See alsoThere is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person‘s conduct, or
(b) a special relation exists between the actor and the other which gives to the other a right to protection.
One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.
(1) A common carrier is under a duty to its passengers to take reasonable action
(a) to protect them against unreasonable risk of physical harm, and
(b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.
(2) An innkeeper is under a similar duty to his guests.
(3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.
(4) One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other.