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

REVIEW of a decision of the Court of Appeals. Affirmed in part and reversed in part and cause remanded.

¶1 DAVID T. PROSSER, J. This is a review of a published decision of the court of appeals.[1] We are asked to address multiple issues related to injuries sustained by Lori Hofflander (Hofflander) during her December 1996 stay in the Behavioral Services Unit of St. Catherine's Hospital in Kenosha.

¶2 Hofflander was involuntarily committed to the hospital as a suicide precaution. Two days later, she attempted to escape through a third-floor window in another patient's room, after ripping a loose air conditioner out of its window mounting. As Hofflander climbed out of the window, she lost her grip and fell to the ground, sustaining severe injuries.

¶3 Hofflander sued the hospital and other named defendants to recover damages for these injuries.[2] The Circuit Court for Kenosha County, Mary Kay Wagner-Malloy, Judge, granted the defendants' motions for summary judgment on all of Hofflander's substantive claims. The court of appeals reversed on her claims of negligence and safe place violations and remanded the action for jury trial. We granted the defendants' petition for review.

¶4 In Jankee v. Clark County, 2000 WI 64, 235 Wis. 2d 700, 612 N.W.2d 297, we reaffirmed the rule that a person with mental disability has a duty to exercise ordinary care. Such a person may be found contributorily negligent for his or her own injuries when the person fails to exercise ordinary care for his or her own safety.[3] We also recognized, however, that a health care institution takes on a heightened duty of care when it assumes custody and control of a person with a mental disability. In these circumstances, the institution may lose its affirmative defense of contributory negligence even though the mentally disabled person caused her own injury.

¶5 The primary issue in this case is how the "custody and control rule" of Jankee, as applied to specific facts, affects the defendants' affirmative defense of contributory negligence. In determining this issue, we are urged to clarify and restate the applicable principles of tort law that we attempted to articulate in Jankee.

¶6 We reach the following conclusions. First, genuine issues of material fact exist whether St. Catherine's Hospital and Horizon Mental Health Management knew or should have foreseen Lori Hofflander's risk of elopement from the hospital. The resolution of these disputed factual issues affects the respective defendants' duty of care and thus precludes the entry of summary judgment.

¶7 Second, if Lori Hofflander is able to establish that (1) the defendants assumed a special relationship with her that required a heightened duty of care; (2) the defendants should have known or foreseen her risk of elopement from the hospital; and (3) there is some evidence of the defendants' failure to exercise their heightened duty of care, then Hofflander's contributory negligence should be measured under a subjective duty of self-care. This subjective duty of care requires the trier of fact to weigh Hofflander's mental state at the time of her accident, including her capacity to appreciate her own conduct.

¶8 Third, Lori Hofflander's claim under Wisconsin's safe place statute is barred because her own negligent conduct, rather than a loose air conditioning unit, caused her injury. Hofflander is barred from recovery under this theory, irrespective of whether she is deemed a trespasser at the time of her injury. However, contrary to the court of appeals, we hold that a person involuntarily committed to a locked psychiatric unit may be deemed a trespasser under the traditional analysis for determining trespasser status in Wisconsin.

¶9 Finally, materials produced by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) while conducting site surveys of St. Catherine's Behavioral Services Unit were properly excluded from discovery based on the privilege granted under Wis. Stat. § 146.38 (1999-2000).[4]

I. FACTUAL BACKGROUND

¶10 Late in the evening of Saturday, December 28, 1996, Lori Hofflander was involuntarily committed to the Behavioral Services Unit (Unit) at St. Catherine's Hospital in Kenosha, under an emergency detention.[5] She was taken to the hospital after Kenosha police had been dispatched to her apartment in response to reports that Hofflander was threatening suicide. At the apartment, officers encountered Carol Underwood, Hofflander's mother, and Pam Stewart, one of Hofflander's friends, who had hurried to the apartment because Hofflander had made at least two suicide threats earlier in the evening. Both women said that they had spoken to Hofflander's former husband, who said he had received a telephone call from Hofflander saying that she would be dead in one hour. Police observed that Hofflander was uncooperative and had erratic mood swings. She was also under the influence of alcohol and Valium, which is the drug that she had told Stewart she would use to kill herself. Stewart advised police that Hofflander used cocaine and heroin; and at the hospital, a St. Catherine's security officer found some drug paraphernalia in a trash can in a bathroom used by Hofflander.

¶11 In written statements, Underwood and Stewart declared that Hofflander had indicated on previous occasions that she wanted to kill herself, but Underwood noted: "I never called the police before." Both women said that Hofflander desperately needed help. Stewart also explained that Hofflander had been distraught about losing custody of her children and about some recent brushes with the law, including at least one alcohol-related traffic arrest. At the hospital, Hofflander was interviewed by an adult crisis counselor who advised that Hofflander was a good candidate for emergency detention.

¶12 The following day, December 29, Dr. Ligay Ilagan-Newman completed a history and physical examination of Hofflander at St. Catherine's. She diagnosed Hofflander with dysthymia[6] and borderline personality disorder. Dr. Ilagan-Newman determined that the suicide precaution initially ordered for Hofflander be discontinued. She also noted that Hofflander was anxious to leave the facility because she wanted to move promptly into a different, less expensive apartment. Hofflander was placed in Room 307B of the hospital's locked psychiatric unit, which is located on one wing of the hospital's third floor.

¶13 According to hospital records, Pam Stewart notified the Unit that Sunday morning about Hofflander having called and threatened her, saying: "When I get out of here I'll get even." A second entry that morning indicates that another patient reported that Hofflander claimed she had a plastic glove and planned to kill herself with it. A nurse subsequently found the glove on Hofflander's bed.[7] According to the entry, Hofflander told the nurse: "If I want to kill myself I will. I could break out of here if I want."

¶14 On Monday, December 30, there was an entry at 10:30 a.m., indicating that Hofflander denied suicidal ideation but acknowledged a plan "to flee as [she] has 5 warrants in Ill. for DUI, driving . . . revocation, failure to appear, etc." At 2:40 p.m., a social worker noted that "She is very concerned about the apartment she is living in, and is supposed to vacate before Jan. 1."

¶15 At approximately 5:15 p.m. that day, Dr. Ashokkumar Shah, Hofflander's attending psychiatrist, interviewed Hofflander after reviewing Dr. Ilagan-Newman's assessment and all patient records prepared since Hofflander's admission. Shah found Hofflander to be alert with labile affect, mildly irritable, and sarcastic. Hofflander denied having drug and alcohol problems despite a positive drug screening and statements from her family and Stewart that she had been using controlled substances. Dr. Shah determined that Hofflander did not have suicidal ideation or psychotic features. The interview reportedly concluded at about 5:40 p.m., at which time Dr. Shah went to the Unit's nurses' station and began entering a notation of his plan to decrease her Valium, continue Prozac, and allow Hofflander to sign for voluntary outpatient treatment "once stable."[8] Dr. Shah also requested that Nurse Cathy Witheril check on Hofflander to see if she was okay, because Hofflander had been irritable during the interview.

¶16 Following Dr. Shah's request, Witheril went to Hofflander's room and discovered her putting on her high-top shoes using laces that she had made from tearing strips of elastic edgings from her bed sheet. Witheril removed the shoes and laces. She observed that Hofflander's room looked otherwise undisturbed. Witheril claims that, upon returning to the nurses' station, she reported the shoelace incident to Dr. Shah, who was still writing up his orders for Hofflander.[9]

¶17 Approximately five minutes later, Hofflander appeared at the station, exhibiting a calm disposition. She asked for her makeup and telephone numbers. Shah directed the nurses not to give Hofflander any glass objects in accord with the Unit's policy, and the makeup was dispensed in a medicine cup. The nurses observed Hofflander taking phone numbers from her purse and heading to the telephone lounge.

¶18 Sometime Sunday or Monday, a patient in the Unit told Hofflander that if she wanted to leave the hospital, there was a loose air conditioner in the window in Room 309.[10] At some point after the glove incident on Sunday, Hofflander began to contemplate escape and she eventually checked out the air conditioner in Room 309.[11] It is not clear when Hofflander first checked out Room 309. Specifically, it is not clear whether she inspected the room before or after she met with Dr. Shah.

¶19 The circuit court found as undisputed facts that:

[o]nce inside the room [Hofflander] checked the air conditioner mounted in the window and found that it was loose. Thereafter, for the next 45 to 60 minutes or so and probably longer, Ms. Hofflander began to plan the details of her escape. While doing so, she consciously made efforts to conceal her escape 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 wanted to fix her appearance. She also started some laundry in an attempt to divert the nurses' attention. Upon returning to her own room, Ms. Hofflander telephoned her friend and told her to meet her at the hospital with Ms. Hofflander's car. Because the shoelaces for her shoes had been confiscated upon her admission, she then tore the elastic edges from a fitted sheet on her bed so she could make shoelaces for her own shoes. As she was making these shoelaces, however, a nurse came into her room and took the elastic edging and the shoes.

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

¶21 In any event, Hofflander entered Room 309 sometime around 6:00 p.m. She brought bed sheets from the two beds in her room. The current resident of that room was sleeping; Hofflander assumed he was under medication. Once in the room, Hofflander decided to take the patient's overcoat to wear during her escape, since it was lighter in weight than her own coat. She then went to the window and began pulling the air conditioner towards her by its corners, splintering the wood mounting supporting it in the window, until the air conditioner crashed to the floor.

¶22 Hofflander testified that she panicked immediately after the crash, believing that she might get caught. She quickly peeked out the door to observe whether anyone was coming.[12] Even though she saw no one approaching from the nurses' station, she feared that hospital staff would soon arrive to detain her. Therefore, Hofflander hastily tied together the bed sheets she had brought with her, attempting to affix one end of the sheets to the corner of the window and the other end to one of her ankles. As she attempted to exit the window and climb down, she lost her grip and fell from the third-story window. Shortly thereafter, other nurses from the hospital found Hofflander in the bushes underneath the window with a bed sheet tied around her ankle. As a result of her fall, Hofflander suffered multiple injuries, including a ruptured spleen and fractures to her ribs, pelvis, and arm.

II. PROCEDURAL HISTORY

¶23 Hofflander filed suit in Kenosha County Circuit Court against St. Catherine's and Horizon, along with their respective insurers, alleging negligence and safe place statute violations. Following discovery, St. Catherine's and Horizon moved for summary judgment, asserting that Hofflander's own negligence precluded her from recovery as a matter of law and that the safe place statute was inapplicable in this case. Initially, the circuit court granted only Horizon's motion on the safe place claim. Thereafter, this court issued its ruling in Jankee, causing Horizon and St. Catherine's to renew their motions for summary judgment. Meanwhile, Hofflander moved for partial summary judgment, asserting that the "custody and control" rule set forth in Jankee applied to her, thereby expunging contributory negligence as a defense.

¶24 After a hearing, the circuit court granted the defendants' motions, concluding that Hofflander's particular conduct and injury were not foreseeable and, therefore, the custody and control rule did not apply. It further determined that Hofflander was not delusional or acting based on a sudden onset of mental illness and that her negligence exceeded the health care providers' negligence as a matter of law. Finally, the circuit court held that the safe place statute was inapplicable because Hofflander was a trespasser at the time of her escape attempt and, additionally, the safe place statute does not encompass a plaintiff's own negligent acts.

¶25 Hofflander appealed. The court of appeals reversed in part and affirmed in part, and remanded the case for trial. Hofflander v. St. Catherine's Hosp., Inc., 2001 WI App 204, 247 Wis. 2d 636, 635 N.W.2d 13. The court affirmed the circuit court's pretrial order barring discovery of certain hospital records as privileged peer review documents. Id., ¶36. However, the court of appeals ruled that both defendants had a special relationship with Hofflander under Jankee's custody and control rule and that issues of fact existed as to the foreseeability of Hofflander's particular injury. Id., ¶23. As to the safe place claim, the court held that there were questions of fact for a jury whether the loose air conditioner represented an unsafe condition and whether the defendants had constructive notice of the disrepair. Id., ¶¶30-31. The defendants petitioned this court for review of the court of appeals' decision regarding the negligence and safe place claims, while Hofflander cross-petitioned for review of the discovery dispute. We granted review to each of the petitions.

III. STANDARD OF REVIEW

¶26 The review of a decision to grant summary judgment is a question of law that we consider de novo. Jankee, 235 Wis. 2d 700, ¶48. Summary judgment shall be rendered when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2). We will reverse a summary judgment if a review of the record reveals disputed material facts or if there are undisputed material facts from which reasonable alternative inferences may be drawn. See Grams v. Boss, 97 Wis. 2d 332, 338-39, 294 N.W.2d 473 (1980). Given the posture of this appeal, all facts and reasonable inferences therefrom are viewed in the light most favorable to the non-moving party. See Kraemer Bros., Inc. v. U.S. Fire Ins. Co., 89 Wis. 2d 555, 567, 278 N.W.2d 857 (1979).

IV. CUSTODY AND CONTROL

¶27 Hofflander's first theory of liability against St. Catherine's and Horizon is based upon common law negligence. First, Hofflander maintains that the staff on duty the night of her injury failed to act according to their duty of care by improperly supervising her. Second, Hofflander contends that the Unit's policies and procedures were either grossly insufficient at accomplishing the staff's duty of care or that Unit personnel simply did not correctly follow established policies that were otherwise adequate.

¶28 The parties agree that, if traditional rules of negligence apply, Hofflander's contributory negligence in bringing about her injuries exceeds the negligence of the defendants as a matter of law. As a general rule, a plaintiff in Wisconsin cannot recover damages if the plaintiff's own negligence exceeds the negligence of the party against whom relief is sought. See Wis. Stat. § 895.045; Peters v. Menard, Inc., 224 Wis. 2d 174, 193, 589 N.W.2d 395 (1999); Johnson v. Grzadzielewski, 159 Wis. 2d 601, 608, 465 N.W.2d 503 (Ct. App. 1990).

¶29 Hofflander asserts, however, that the affirmative defense of contributory negligence is not available to the defendants because these defendants assumed her duty of self-care when she was committed to the hospital. Hofflander's argument is based upon the "custody and control" rule that we established in Jankee. Thus, Jankee serves as the foundation for our present analysis.

¶30 In Jankee, Emil Jankee was a patient involuntarily committed to the Clark County Health Care Center (CCHCC) who was placed in a locked, long-term care ward for the chronically mentally disabled, on the basis of a domestic violence incident. Jankee, 235 Wis. 2d 700, ¶17. Jankee was deemed a threat to harm others and, during the early part of his stay, he often displayed threatening and destructive behavior. Id., ¶29. Although Jankee had a history of suicide attempts, it was determined that he was not a suicide risk during his stay, in part because of statements he made exhibiting an intent to avoid self-harm. Id., ¶¶30-31, 100. Likewise, Jankee was never determined to be an elopement risk. Id., ¶¶30, 102. A little more than a week after his admission to the CCHC, however, Jankee devised a plan and attempted to escape from the facility. Id., ¶¶35-37. Late one night, he succeeded in partially opening a window in his third-floor room by prying off a specially installed safety-stop in the window. Id., ¶37. He then squeezed out of the window onto a roof, where he eventually fell from a brick ledge and sustained multiple injuries. Id., ¶39.

¶31 We engaged in a two-step analysis to determine how Jankee's own conduct affected his ability to recover damages from CCHCC related to his fall. First, we established that, absent a few narrow exceptions,[13] the reasonable person standard of care applies to all mentally disabled plaintiffs when determining their level of contributory negligence. Id., ¶75. Therefore, if a mentally disabled plaintiff's negligence in bringing about the plaintiff's own injury exceeds that of a defendant, a court must find that the contributory negligence bars recovery. Id., ¶9. We determined that Jankee's own negligence exceeded that of the defendants as a matter of law because (1) his hospitalization was due to his own failure to take medication that controlled his mental disability; and (2) he failed to exercise his duty of ordinary care when he tried to escape from the CCHCC. Id.

¶32 Notwithstanding this general rule, we also held that certain entities, such as a mental health facility, owe a heightened duty of care to prevent foreseeable injuries to mentally disabled patients when they have assumed custody and control over these persons. Id., ¶¶92, 94 (citing Restatement (Second) of Torts §§ 314A, 315, & 319 (1965)). As a result, we stated:

When such a special relationship exists, the caregiver assumes the duty to provide reasonable care of the protected person to prevent harm. This assumption of duty may absolve the protected person from the ordinary obligation of self-care, shift responsibility to the caregiver, and thereby expunge the affirmative defense of contributory negligence.

Id., ¶92 (citation omitted).

¶33 We enunciated the following test for determining whether a caregiver serving a mentally disabled patient can be liable for harm predominately caused by the patient's own actions:

[A] plaintiff must show that: (1) a special relationship existed, giving rise to a heightened duty of care; and (2) the defendant caregiver could have foreseen the particular injury that is the source of the claim. If the special relationship existed but the defendant caregiver could not have foreseen the particular injury, the affirmative defense of contributory negligence reenters the equation. Even if the particular injury were foreseeable, the defense of contributory negligence should not be expunged if the defendant's exercise of care was not only reasonable but also fully responsive to the heightened duty with which the caregiver was charged.

Id., ¶93. Part of the rationale behind this test was that "[i]f a caregiver is unaware of a patient's propensity for self-injury, the caregiver cannot assume the patient's duty of self-care." Id., ¶97; see also Restatement (Second) of Torts § 314A cmt. e ("defendant is not liable where he neither knows nor should know of the unreasonable risk, or of the illness or injury").

¶34 After fully considering the arguments in this case, we acknowledge that the test set out in paragraph 93 of Jankee is unclear and needs revision. As a result, we have reexamined our premises in Jankee and now restate the law.

A. Revision of Custody and Control Rule in Jankee

¶35 A person who is mentally disabled is held to the same standard of care as one who has normal mentality. An exception to this rule may exist when a mentally disabled person is under the protective custody and control of another. When a mentally disabled plaintiff relies on this exception to seek recovery for a self-caused injury, the plaintiff must establish that (1) a special relationship existed between the defendant caregiver and the plaintiff, giving rise to a heightened duty of care; and (2) the defendant caregiver knew or should have foreseen the particular risk of harm that led to the plaintiff's injury. If a special relationship existed but the defendant could not have foreseen the particular risk of harm, then the defendant is entitled to assert the affirmative defense of contributory negligence, and the fact finder should evaluate the comparative negligence of the parties using an objective standard of care.

¶36 However, if a special relationship did exist, the particular risk of harm was foreseeable, and there is some evidence that the defendant caregiver failed to exercise the duty of care that was required under these circumstances, the finder of fact should compare the defendant's negligence to the plaintiff's contributory negligence using a subjective standard to evaluate the mentally disabled plaintiff's duty of self care. In this situation, if the mentally disabled plaintiff is able to show that she was totally unable to appreciate the risk of harm and the duty to avoid it, the plaintiff's contributory negligence should not be compared to the negligence of the defendant. It should be expunged as a matter of law.

¶37 Each principle in this revised statement of law requires comment.

1. Duty of Care for Mentally Disabled Persons

¶38 We affirm the principle that mentally disabled persons are generally held to the same reasonable person standard of care as other individuals. Jankee, 235 Wis. 2d 700, ¶54. This duty of care obligates all persons to exercise ordinary care for their own safety. See Peters, 224 Wis. 2d at 192 (quoting Wis. Wis JI——Civil 1007). Because a mentally disabled plaintiff normally operates under an objective standard of care, she is normally subject to the same principles of contributory negligence as a plaintiff who is not mentally disabled. Jankee, 235 Wis. 2d 700, ¶¶75-76.

¶39 The Wisconsin Academy of Trial Lawyers, appearing as amicus curiae, argues that Jankee's establishment of an objective duty of care for mentally disabled persons represents a complete reversal of prior Wisconsin law. The Academy points to the case of Karow v. Continental Insurance Co., 57 Wis. 56, 15 N.W. 27 (1883), in which this court said:

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

Id. at 63.

¶40 This passage is no longer consistent with modern negligence theory. Today, a mentally disabled person may be held liable for the damages caused by the person's "negligence" because all persons have a duty of ordinary care. Coffey v. City of Milwaukee, 74 Wis. 2d 526, 537, 247 N.W.2d 132 (1976). The result in a typical negligence case today is the same as it would have been in 1883. Only the analysis is different.

¶41 Our court has never been in doubt that, as a general rule, an insane person is civilly liable for torts. In Huchting v. Engel, 17 Wis. 237, 238 (1863), this court quoted with approval from Reeve's Dom. Rel. 258 that "a lunatic is as liable to compensate in damages as a man in his right mind." In Karow, this court cited cases from four other states, including Vermont, where a court said that "no reason can be assigned why a lunatic should not be held liable." Karow, 57 Wis. at 61 (citing Morse v. Crawford, 17 Vt. 499 (1845)).

¶42 Contemporary analysis may be traced to German Mutual Fire Insurance Society v. Meyer, 218 Wis. 381, 261 N.W.211 (1935), where we held that insanity is not a defense for tort liability unless evil intent or express malice is required by the claim. Id. at 385. The court's opinion quoted extensively from Karow. Id. at 386-87. Then in Breunig v. American Family Insurance Co., 45 Wis. 2d 536, 173 N.W.2d 619 (1970), the court indicated that some forms of insanity are a defense and preclude liability for negligence, but not all types of insanity. Id. at 541. The court stated:

The effect of the mental illness . . . or disorder must be such as to affect the person's ability to understand and appreciate the duty which rests upon him . . . [for] ordinary care, or . . . it must affect his ability to control [his conduct] in an ordinarily prudent manner. And in addition, there must be an absence of notice or forewarning to the person that he may be suddenly subject to such a type of insanity or mental illness.

Id. The court continued:

We think the statement that insanity is no defense is too broad when it is applied to a negligence case where the driver is suddenly overcome without forewarning by a mental disability or disorder which incapacitates him from conforming his conduct to the standards of a reasonable man under like circumstances. These are rare cases indeed.

Id. at 543 (emphasis added).

¶43 The implication of the Breunig analysis is that the reasonable person standard of care is normally applied "even to the mentally disturbed." Burch v. Am. Family Mut. Ins. Co., 198 Wis. 2d 465, 470, 543 N.W.2d 277 (1996). This was made explicit in Gould v. American Family Mutual Insurance Co., 198 Wis. 2d 450, 543 N.W.2d 282 (1996), where the court said:

It is a widely accepted rule in most American jurisdictions that mentally disabled adults are held responsible for the torts they commit regardless of their capacity to comprehend their actions; they are held to an objective reasonable person standard. See generally, Restatement (Second) of Torts § 283B (1965); W. Page Keeton et al., Prosser and Keeton on the Law of Torts, § 135 (1984). . . .

When fault-based liability replaced strict liability, American courts in common law jurisdictions identified the matter as a question of public policy and maintained the rule imposing liability on the mentally disabled. Although early case law suggested that Wisconsin followed this trend, this court specifically adopted the common law rule and the public policy justifications behind it in German Mut. Fire Ins. Soc'y v. Meyer, 218 Wis. 381, 385, 261 N.W. 211 (1935).

Id. at 456-57. The court continued:

The court of appeals erroneously perceived the underlying premise of Breunig to be that a person should not be held negligent where a mental disability prevents that person from controlling his or her conduct. By limiting its holding to cases of sudden mental disability, the Breunig court chose not to adopt that broad premise. We also decline to do so.

Id. at 459 (citations omitted).

¶44 Consequently, the assertion that a mentally disabled person can never be negligent is simply wrong. As the Academy concedes, since 1971 Wisconsin has followed a pattern jury instruction, entitled "Negligence of Mentally Disturbed," that expressly states: "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 1021 (emphasis added). This is good law.

2. Custody and Control Exception

¶45 The custody and control rule recognized in Jankee is a specific exception to the general standard of ordinary care. In Rockweit v. Senecal, 197 Wis. 2d 409, 541 N.W.2d 742 (1995), this court recognized that "'each individual is held, at the very least, to a standard of ordinary care in all activities.'" Id. at 419 (quoting Coffey, 74 Wis. 2d at 537). We discussed the proper analysis of duty in Wisconsin as follows: "The duty of any person is the obligation of due care to refrain from any act which will cause foreseeable harm to others even though the nature of that harm and the identity of the harmed person or harmed interest is unknown at the time of the act." Id. at 419-20 (citing A.E. Inv. Corp. v. Link Builders, Inc., 62 Wis. 2d 479, 483-84, 214 N.W.2d 764 (1974)). The concomitant principle is that every person in all situations has a duty to exercise ordinary care for his or her own safety. See Wis JI——Civil 1007.

¶46 The custody and control rule is an exception to standard negligence law because it contemplates the possibility of a heightened duty of care for a defendant and a lowered duty of self-care for a plaintiff.

¶47 Nonfeasance torts, which entail a duty to do some act of commission to prevent harm,[14] are not usually within the duty of ordinary care that people hold towards each other. See Restatement (Second) of Torts § 314 cmt. c; W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 56 (5th ed. 1984). Hence, the proposition that a defendant may be subject to a heightened duty of care must be understood as a special exception to the norm and be treated accordingly. The requirement that a defendant knew or should have foreseen a particular risk of harm should not be viewed as inconsistent with this court's adoption of the minority Palsgraff rule, see A.E. Inv. Corp., 62 Wis. 2d at 483, because this requirement comes in the context of a heightened duty of care to protect against the acts of others, not an ordinary duty of care in line with general tort principles.

3. Basis of Liability

¶48 A special relationship exists when a defendant caregiver assumes, voluntarily or otherwise, an enhanced responsibility to protect a vulnerable, mentally disabled person from foreseeable harms. The defendant in these circumstances is empowered with custody and an extra measure of control over the person. The heightened duty of care reflects the enhanced responsibility that attends this custody and control. However, if a defendant in these circumstances were held liable for not protecting a person from unforeseeable harms, the defendant would effectively become an insurer.

¶49 A hospital is not an insurer of its patients against all injuries inflicted by themselves. See Jankee, 235 Wis. 2d 700, ¶95 (citing Dahlberg v. Jones, 232 Wis. 6, 11, 285 N.W. 841 (1939)). A hospital or other caregiver "is only required to use such means to restrain and guard its patients as would seem reasonably sufficient to prevent foreseeable harms." Id. (citing Dahlberg, 232 Wis. at 11). The duty of a hospital is to exercise such care as the hospital knows, or should know, the patient's mental or physical condition requires. Kujawski v. Arbor View Health Care Ctr., 139 Wis. 2d 455, 462-63, 407 N.W.2d 249 (1987). "Requiring a facility to be liable for any irrational behavior [by a patient] would impose an unreasonable burden on the [caregiver] and frustrate the objective of providing patients with a therapeutic environment free from prison-like restrictions." Jankee, 235 Wis. 2d 700, ¶101 n.37. It would force caregivers to impose stringent safety measures, not to protect patients, but to avoid liability.

4. Particular Risk of Harm

¶50 A mentally disabled plaintiff who seeks to rely on a defendant's heightened duty of care must establish, among other things, that "(2) the defendant caregiver knew or should have foreseen the particular risk of harm that led to the plaintiff's injury." See ¶35 above (emphasis added). The former test in Jankee required proof that "(2) the defendant caregiver could have foreseen the particular injury that is the source of the claim." Jankee, 235 Wis. 2d 700, ¶93 (emphasis added).

¶51 The foreseeability prong of the former test proved to be confusing. For example, use of the term "particular injury" led to debate whether the hospital should have foreseen Hofflander's attempt to escape from a third-floor window in another patient's room by tearing a loose air conditioner from its mounting. Did all of these elements constitute the "particular injury" that St. Catherine's and Horizon should have foreseen? Was the "particular injury" that the defendant should have foreseen even more "particular"——namely, a back injury or a leg injury as opposed to any injury?

¶52 The Jankee opinion borrowed heavily from the analysis by Charles Williams in the Nebraska Law Review. The wording of the foreseeability prong in the Williams article stated the proposition as follows: "For a plaintiff to prove a nonfeasance tort, the plaintiff must show that . . . (2) the harm that befell the plaintiff was of the type the defendant should have foreseen." Charles J. Williams, Fault and the Suicide Victim: When Third Parties Assume a Suicide Victim's Duty of Self-Care, 76 Neb. L. Rev. 301, 304 (1997). Our new phrase, "particular risk of harm," is more consistent with the Williams formulation than the Jankee language.

¶53 To illustrate, when a mental health institution assumes the custody and control of a mentally disabled person as a suicide precaution, the risk of suicide is clearly foreseeable. The foreseeability of suicide requires the institution to act with a heightened duty of care to prevent this particular risk of harm——at least until the risk is no longer foreseeable. Whether a particular risk of harm remains foreseeable for the entire duration of an institution's special relationship with a patient is a question of fact. However, the mere passage of time will seldom be enough for an institution to substantially relax its heightened duty of care.

¶54 There are other risks of harm in a mental health institution, including the risk of elopement, the risk of self-injury other than suicide, and the risk of injury to other people such as staff members, visitors, and fellow patients.[15] The custody and control rule does not signify that a caregiver is liable for any and all injuries sustained by a patient simply because one risk of harm was foreseeable. Rather, our formulation is based on the proposition that the particular harm to which the mentally disabled person's claim relates should have been foreseeable.

¶55 In Jankee, we explained that modern hospitals treating persons with mental disabilities focus on therapy and rehabilitation, not maximum security. Jankee, 235 Wis. 2d 700, ¶96 (citing Payne v. Milwaukee Sanitarium Found., Inc., 81 Wis. 2d 264, 270, 260 N.W.2d 386 (1977)). "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." Id.

No cause of action arises unless the hospital has notice of an individual patient's disposition to inflict self-injury. Thus, a hospital is under no duty to take special precautions when there is no reason to anticipate one patient's escape or suicide. If a caregiver is unaware of a patient's propensity for self-injury, the caregiver cannot assume the patient's duty of self-care.

Jankee, 235 Wis. 2d 700, ¶97 (citations omitted). These passages explain our adherence to the adjective "particular" in front of the phrase "risk of harm."

¶56 In this case, the dispute is whether the defendants should have foreseen Hofflander's attempt to escape. Did the defendants have notice from Hofflander's statements and actions and from other available evidence of the risk that Hofflander would try to elope?[16] The fact that Hofflander was initially placed as a suicide risk does not mean that she could not later manifest such a risk of elopement, thereby triggering a duty to take focused preventive action. Conversely, Hofflander's placement as a suicide risk did not automatically make every other possible risk of harm to her foreseeable as a particular risk.

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

5. Contributory Negligence——Objective Standard

¶58 The mentally disabled plaintiff has the burden of establishing the two elements of (1) a special relationship; and (2) the foreseeability of a particular harm. If a special relationship did not exist or if the defendant caregiver could not have foreseen the particular risk of harm, then the general rules of negligence apply. The defendant may assert the affirmative defense of contributory negligence, with the plaintiff's duty of self-care measured under an objective standard of care. Even though the plaintiff may be mentally impaired, the defendant should not face an increased risk of liability if a special relationship did not exist or if the risk of harm was not foreseeable. The defendant's negligence, if any, should be judged by an ordinary standard of care and compared with the plaintiff's ordinary standard of self-care.

6. Requirement of "Some" Negligence

¶59 If (1) a special relationship existed between the defendant and the plaintiff; (2) the particular risk of harm was foreseeable; and (3) there is some evidence that the defendant failed to exercise the duty of care that was required under these circumstances, then the defendant may assert the defense of contributory negligence. However, under these circumstances the plaintiff's conduct should be evaluated under a subjective standard of care. This standard will permit the fact finder to weigh the plaintiff's capacity to appreciate the risk of harm and to act to avoid it.

¶60 In Jankee we said: "Even if the particular [risk of harm] were foreseeable, the defense of contributory negligence should not be expunged if the defendant's exercise of care was not only reasonable but also fully responsive to the heightened duty with which the caregiver was charged." Jankee, 235 Wis. 2d 700, ¶93 (emphasis added). The main thought in this inartfully worded sentence is that it takes more than having a heightened duty of care to be liable for negligence. Negligence is different from strict liability because it requires a breach of duty——a failure to satisfy whatever obligation the law imposes. In this instance, a breach of duty or want of care may not be determined solely by looking at a tragic result.

¶61 The phrase "fully responsive" in Jankee was intended to imply that some failure by the defendant to exercise the duty of care required because of the special relationship and the foreseeable risk of harm is necessary to relieve the plaintiff of her objective standard of care. There may be some attempted escapes or acts of self-destruction that are so extraordinary that the most conscientious caregiver could not have prevented them. Once again, a health care institution is not an insurer against every possible act of its patients.

7. Contributory Negligence——Subjective Standard

¶62 An argument can be made that once the plaintiff has established (1) a special relationship; (2) the foreseeability of a particular harm; and (3) some failure of care on the part of the defendant, the plaintiff should prevail without any further requirement. However, there will be situations in which a mentally disabled person is as able to appreciate danger as any other person and is able to control her actions. When such a person persists in pursuing dangerous and seemingly irrational conduct, the person's duty of self-care should be judged by a subjective standard and compared with the defendant's duty of care.

¶63 In Jankee the court resisted an appeal to employ a subjective standard to evaluate a mentally disabled plaintiff. We had recognized in Gould that mental impairments and emotional disorders come in many varieties and degrees. Gould, 198 Wis. 2d at 459.

As the American Law Institute recognized in its Restatement of Torts, a legitimate concern in formulating a test for mentally disabled persons in negligence cases is "[t]he difficulty of drawing any satisfactory line between mental deficiency and those variations of temperament, intellect and emotional balance which cannot, as a practical matter, be taken into account in imposing liability for damage done." Restatement (Second) of Torts, § 283B, cmt. b.1.

Id. We added in Jankee that the administrative difficulties in employing a subjective standard include the possibility of fraudulent claims, in the sense that a mentally disabled person may try to overstate the extent of her disability, after the fact, to avoid the ramifications of her actions. Jankee, 235 Wis. 2d 700, ¶72. We also noted that a subjective standard complicates the work of the fact finder in allocating fault, for one party is to be assessed by an objective standard, while the other is to be judged by a subjective standard. Id., ¶70.

¶64 Nonetheless, adherence to a strict objective standard of care for the plaintiff in the face of (1) a heightened duty of care for the defendant; (2) the foreseeability of a particular risk of harm to the plaintiff; and (3) some failure to satisfy the requisite standard of care on the part of the defendant, would fail to promote reasonable care and to deter negligence. We fear that an objective standard of contributory negligence in these circumstances would leave some deserving mentally disabled patients uncompensated.

8. Expungement of Contributory Negligence

¶65 If the mentally disabled person is able to show that she was totally unable to appreciate the risk of harm and the duty to avoid it, then the trier of fact has nothing to compare to the defendant's negligence. The plaintiff's contributory negligence should be expunged as a matter of law. This principle is consistent with our ruling in Gould, where we affirmed the objective standard but precluded liability, as a matter of law, for an institutionalized mentally disabled patient who attacked his professional caretaker but who did not have the capacity to control or appreciate his conduct. Gould, 198 Wis. 2d at 453, 463.

B. Application of Revised Test

¶66 Having set out and explained the elements of our modified "custody and control" rule, we now apply it to the facts at hand. We begin by acknowledging that, on the surface, the facts in this case are strikingly similar to those in Jankee. Both cases involve an involuntarily committed patient in a hospital's locked psychiatric unit. Both patients were injured during an attempted escape from a third-floor window of that unit. Neither Jankee nor Hofflander was injured while attempting to harm another person or to commit suicide, which were the respective risks justifying each patient's involuntary commitment. Additionally, both Hofflander and Jankee devised plans, although at varying degrees of complexity, to assist in their escape. Finally, the claims of negligence in Jankee, that the caregiver "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," Jankee, 235 Wis. 2d 700, ¶91, all mirro


Case No.:		00-2467

Complete Title:
		Lori Hofflander, Plaintiff-Appellant-Cross Petitioner, Milwaukee County Department of Human Services, Plaintiff-Co-Appellant, v. St. Catherine's Hospital, Inc., Sentry Insurance, a Mutual Company, Patients Compensation Fund, Horizon Mental Health Management, Inc. and Columbia Casualty Company, Defendants-Respondents-Petitioners.

		REVIEW OF A DECISION OF THE COURT OF APPEALS 2001 WI App 204 Reported at: 247 Wis. 2d 636, 635 N.W.2d 13 (Published)

Opinion Filed:		July 1, 2003
Submitted on Briefs:
Oral Argument:		September 5, 2002

Source of Appeal:
	Court:	Circuit
	County:	Kenosha
	Judge:	Mary Kay Wagner-Malloy

Justices:
	Concurred:	ABRAHAMSON, C.J., concurs (opinion filed). BRADLEY, J., joins concurrence.
	Dissented:
	Not Participating:

Attorneys:

(L.C. No.	97-CV-1167)
STATE OF WISCONSIN :		IN SUPREME COURT

Lori Hofflander, Plaintiff-Appellant- Cross Petitioner, Milwaukee County Department of Human Services, Plaintiff-Co-Appellant, v. St. Catherine's Hospital, Inc., Sentry Insurance, a Mutual Company, Patients Compensation Fund, Horizon Mental Health Management, Inc. and Columbia Casualty Company, Defendants-Respondents- Petitioners.			FILED JUL 1, 2003 Cornelia G. Clark Clerk of Supreme Court