Emil E. Jankee v. Clark County

REVIEW of a decision of the Court of Appeals. Reversed.

¶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), and Cullen's subcontractor, Wausau Metals Corporation, doing business as MILCO, alleging that the selection and installation of defective and dangerous windows caused Jankee's injuries. In addition, the Jankees initiated a strict liability action against MILCO, the manufacturer of the CCHCC windows, for failure to design and manufacture a reasonably safe product.

¶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 summary judgment motions granted to the three contractors on the governmental contractor immunity issue. Clark County cross-petitioned this court, asking us to review the court of appeals decision to extend governmental immunity to the defendant contractors and the decision to apply a reasonable person standard to evaluate Jankee's conduct.

¶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. Wis. Stat. § 809.62(6).[1] If an issue is not raised in the petition for review or in a cross petition, "the issue is not before us." State v. Weber, 164 Wis. 2d 788, 791 n.2, 476 N.W.2d 867 (1991) (Abrahamson, J., dissenting) (citing Betchkal v. Willis, 127 Wis. 2d 177, 183 n.4, 378 N.W.2d 684 (1985)).

¶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, Wis. Stat. § 895.045,[2] bars the Jankees' claim against each of the defendants because Jankee's own negligence exceeded the negligence of the defendants as a matter of law. When a plaintiff's negligence is greater than the negligence of any defendant, it is our duty to find that the plaintiff's contributory negligence bars recovery. Johnson v. Grzadzielewski, 159 Wis. 2d 601, 608-09, 465 N.W.2d 503 (Ct. App. 1990) (citing Gross v. Denow, 61 Wis. 2d 40, 49, 212 N.W.2d 2 (1973)). Jankee was more responsible than the defendants for his injuries for two reasons. First, Jankee's hospitalization resulted from his failure to comply with a medication program that controlled his mental disability. Under a reasonable person standard of care, a reasonable person would understand that he was required to maintain his prescribed medication in order to avoid the potential ramifications of his mental disability. Second, under the reasonable person standard of care, Jankee was bound to exercise the duty of ordinary care when he tried to escape from CCHCC. We do not decide whether government contractor immunity shields HGA, Cullen, and MILCO from liability, because we uphold the circuit court's summary judgment on the ground that the quantum of Jankee's contributory negligence disqualified him under § 895.045.[3] Accordingly, we reverse the decision of the court of appeals.

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 Norwood Health Care Center (Norwood) in Marshfield, Wisconsin. His behavior included sleep disturbances, intrusiveness, religiosity, assaultiveness, and an inability to cooperate. Consequently, Jankee spent part of the time at Norwood in a locked security area. Norwood treated Jankee with lithium and haldol. On April 1, 1984, Jankee insisted on leaving Norwood and threatened either to break a window to get out or to hang himself.

¶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 found him rational, organized, and in control. Jankee had accumulated some debts, including the purchase of a Cadillac. He had no means by which to keep up payments for these debts. The treating physician, Dr. W. Warren Garitano, noted that although Jankee was in good control, Jankee despaired and searched for an easy solution to his self-created problems. Dr. Garitano formally noted in Jankee's record on two occasions that "one certainly must entertain the idea that he may be deliberately provoking illness to avoid [his] responsibilities."

¶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 would have been reduced. Nonetheless, following his second release, Jankee suspended his haldol treatment, apparently because of side effects, and he also discontinued taking lithium. At his 1993 deposition, Jankee testified that he prefers not to take medication.

¶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.

¶19 Window design was one of the factors Clark County considered in planning the renovation. CCHCC intended to provide its patients with as normal an environment as possible and sought to create a healing, therapeutic atmosphere free from prison-like overtones. Thus, CCHCC administrators ruled out the installation of window bars. Thirty years earlier, the facility had employed security-screened windows. On the eve of the renovation, however, CCHCC determined that such windows were an outdated concept that counteracted the rehabilitative nature of the institution.

¶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 MILCO aluminum frame windows that slid horizontally to open. The proposed windows were to include standard-type sash hardware and a removable stop to prevent their opening to a width of more than five inches. HGA recommended a five-inch opening because state building codes permitted no more than a six-inch opening on balcony guardrails. HGA's principal architect for the project, Daniel Swedberg, reasoned that if guardrail openings of six inches were, under state law, sufficient to prevent someone from squeezing through, then a window opening that was one inch narrower would meet CCHCC's needs.

¶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 cube stop and open a window completely. Clark County contacted HGA and requested modifications to reinforce the barrier to a complete opening. MILCO offered to remedy the problem by adding channel stops to the existing design. The channel stops were non-removable, 15-1/2-inch long pieces of metal installed into the upper track of the frame, extending from the jamb of the window to the point at which the possible maximum window opening would be fixed. The channel stops were designed to allow for the window to travel no more than four inches, thereby restricting the opening to three inches.

¶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 shortening 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 detention. Instructions for that detention directed staff to contact a nurse and a physician if Jankee's behavior became aggressive or if he were a danger to himself or others. Although hospital records fail to reveal that Jankee ever threatened to harm himself, the long-term goal for the detention period was that Jankee "not harm [him]self or others." Between July 15, 1989, and July 21, 1989, Jankee remained in an isolation room, and staff checked on him at first every five minutes and then every fifteen minutes. CCHCC staff recorded Jankee's condition on its Flow Sheet for patients monitored for suicide checks, seclusion, restraint, and wandering.[7] By July 21, Jankee was quiet, cooperative with staff, and no longer destroying property. CCHCC then switched him from isolation to "the south room," a corner room on the third floor of the locked New Horizons Unit.

¶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 Jankee was inclined to harm himself. Later, on July 25, another Physician's Report to the court remarked that "[p]atient is more likely to be a danger to his wife, though 10 years ago he did take an overdose of aspirin in order to die."

¶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 and cheesecake. Jankee told her he "wanted to get out." At about 8:40 p.m., while his wife was still at CCHCC, Jankee walked to the nurses' station and announced "I'm tired of being used for a guinea pig around here. Why don't you kick my ass out of here instead of giving me a bunch of medicine." Jankee's wife departed at 10:30 p.m. At his deposition, Jankee testified that he decided to leave CCHCC about 30 minutes later, after watching Johnny Carson.

¶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, and "they couldn't see that it was open." He then began working on the window from behind the curtain. Jankee turned off his room light and relied on a yard light situated just outside his window. He bent a toothbrush to a 45-degree angle so he could use it for turning, and he pried off the cube stop. Without the cube stop, the window could be jammed open an additional two inches, wide enough at the bottom for Jankee's head to get through and allow him to squeeze through the window. Before he exited, Jankee removed his cotton shirt to give himself more clearance. The process took between 15 and 20 minutes.

¶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 façade between two east windows on the second floor. He shimmied on his stomach and, holding on to a masonry cap atop the wall surrounding the roof, slid over the edge of the roof until his feet touched the stone figure. From there, Jankee began moving along the brick ledge, just above the figure. While scaling the brick ledge, Jankee lost his fingerhold because of dew or other moisture, and fell to the ground.

¶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 warn Jankee about its defective and dangerous condition. In addition, the Jankees pursued relief from MILCO under a strict liability theory, arguing that the subcontractor failed to design and manufacture a reasonably safe product suitable for use in mental institutions.

¶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, governmental contractors are entitled to immunity in these circumstances:

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-inch opening that resulted from the window design modification did not meet its contract specifications, which required a five-inch opening. The circuit court, however, made a finding of fact and determined that the windows met the specifications because Clark County did not reject the modified opening and approved the window installation. Having addressed Clark County's concerns about the second Lyons prong, the circuit court found no disputed facts and held that HGA, Cullen, and MILCO satisfied each prong of the Lyons test because: (1) the governmental authority, Clark County, had approved reasonably precise specifications for the windows; (2) the windows met those specifications; and (3) HGA, Cullen, and MILCO knew of no possible danger in the windows that would require them to warn Clark County. Consequently, the court granted the summary judgment motions of HGA, Cullen, and MILCO.

¶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.

¶46 The Jankees appealed the decision. Jankee, 222 Wis. 2d at 154. Clark County cross appealed the circuit court's holding that the defense of government contractor immunity shields HGA, Cullen, and MILCO from liability. Id.

¶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. Wis. Stat. § 802.08(2); Firstar Trust Co. v. First Nat'l Bank of Kenosha, 197 Wis. 2d 484, 492, 541 N.W.2d 467 (1995). Hence, an appellate court will reverse a summary judgment only if the record reveals that material facts are in dispute or if the circuit court misapplied the law. See Grzadzielewski, 159 Wis. 2d at 608.

¶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. Wis. Stat. § 895.045. Thus, although in other contexts negligence allocation usually is a question for the trier of fact, under the contributory negligence statute it is our duty to bar recovery against a defendant when, as a matter of law, the plaintiff's negligence is greater than the negligence of that particular defendant. Peters v. Menard, Inc., 224 Wis. 2d 174, 193, 589 N.W.2d 395 (1999). If we find, from the undisputed facts, that Jankee's negligence was "so clear and the quantum so great" as to exceed the negligence of the defendants, Grzadzielewski, 159 Wis. 2d at 608, we are required to affirm the summary judgment decisions of the circuit court as a matter of law.

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. Wis. Stat. § 895.045; Tucker v. Marcus, 142 Wis. 2d 425, 432-33, 418 N.W.2d 818 (1988); Burch, 198 Wis. 2d at 476. Therefore, if we find that Jankee's negligence was greater than that of the defendants, Wis. Stat. § 895.045 requires us to reverse the court of appeals as a matter of law.

¶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 the standard to which persons are held in the exercise of that duty.

¶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 JI¾Civil 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 JI¾Criminal 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 JI¾Civil 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 disabled persons can be held to the reasonable person, or objective, standard of care. To date, our decisions primarily have explored the standard to which our law holds mentally disabled defendants, not mentally disabled plaintiffs.[9] Wisconsin, like the majority of states, holds mentally disabled defendants to the reasonable person standard of care. Gould, 198 Wis. 2d at 456. The 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 among variations in character, emotional equilibrium, and intellect.[11]

¶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 defendant in that case, Erma Veith. Mrs. Veith argued that she could not be held liable for an accident because, just prior to the collision, she suffered a sudden aberration that caused her to believe that her car could fly because Batman's vehicle could fly. Breunig, 45 Wis. 2d at 539. We found that she had forewarning of her condition. One year earlier, Mrs. Veith had experienced delusional visions. Id. at 544-45. Consequently, this court concluded that Mrs. Veith should have appreciated the risk she posed to others if she drove. Id. at 545. As a result, under the first of the two conditions that must coexist for the exception to apply, Mrs. Veith's prior notice of her potential for becoming disabled left the Breunig exception inapplicable to her defense.[12]

¶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 court of appeals eliminated one of the parts of the four-part Gould test, namely injury to a caretaker.[13] Moreover, it focused on the "capacity" element, despite Jankee's forewarning of incapacitation if he did not take his medication and his undisputed history of medication noncompliance.

¶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 excep