Jankee v. Clark County
| Decision Date | 10 June 1998 |
| Docket Number | No. 95-2136,95-2136 |
| Parties | Emil E. JANKEE and Mary Jankee, Plaintiffs-Appellants, d v. CLARK COUNTY, Wisconsin Health Care Liability Insurance Plan, Defendants-Respondents-Cross-Appellants, d 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. . Oral Argument |
| Court | Wisconsin Court of Appeals |
On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Ronald G. Tays and Hope K. Olson of Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C. of Milwaukee.
On behalf of the defendants-respondents-cross-appellants Clark County and Wisconsin Health Care Liability Insurance Plan, the cause was submitted on the briefs of Timothy F. Mentkowski and Mary E. Nelson of Crivello, Carlson, Mentkowski & Steeves, S.C. of Milwaukee.
On behalf of the defendants-respondents-cross-appellants-cross-respondents Continental Casualty Co. and Hammel Green and Abrahamson, Inc., the cause was submitted on the briefs of Timothy R. Murphy of Askegaard & Robinson, P.A. of Brainerd, Minnesota.
On behalf of the defendants-respondents-cross-respondents Wausau Underwriters Ins. Co. and J.P. Cullen & Sons, Inc., the cause was submitted on the brief of Wayne R. Luck of Law Offices of Stilp and Cotton of Appleton.
On behalf of the defendants-respondents-cross-respondents St. Paul Fire & Marine Ins. Co. and Wausau Metals Corp., d/b/a/ Before VERGERONT, ROGGENSACK and DEININGER, JJ.
MILCO, the cause was submitted on the brief of John P. Richie of Misfeldt, Stark, Richie & Wickstrom of Eau Claire.
Emil Jankee 1 sustained serious injuries when he fell while attempting to escape through a window on the third floor of the Clark County Health Care Center (CCHCC) where he was involuntarily confined under Chapter 51, STATS., the Mental Health Act. He appeals the summary judgment dismissing his complaint against Clark County, the architectural firm that renovated CCHCC, the general contracting firm, and the subcontractor that manufactured and provided the windows. Jankee contends the trial court erred in ruling, as a matter of law, that the contractors are immune under the government contractor immunity doctrine established in Lyons v. CNA Ins. Co., 207 Wis.2d 446, 558 N.W.2d 658 (Ct.App.1996); and the trial court erred in ruling that Jankee's negligence was equal to or greater than the negligence of each defendant. The County cross-appeals the court's ruling that the contractors are immune from suit.
Although our analysis differs somewhat from that of the trial court on the government contractor immunity defense, we agree that all three contractors are entitled to immunity as a matter of law. 2 However, we conclude that the trial court erred in deciding that, as a matter of law, Jankee's contributory negligence was equal to or greater than the County's negligence. We hold that if Jankee did not have the capacity, when he escaped, to control or appreciate his conduct by virtue of his mental illness, he is not contributorily negligent on his claims against the County, and we conclude there are disputed issues of fact concerning whether he had that capacity. We therefore affirm in part, reverse in part, and remand.
CCHCC is a nursing home and psychiatric hospital. In the early 1980s it began a major renovation of its building and hired the firm Hammel, Green and Abrahamson, Inc. (HGA) as the architect for the project. During the program and design development phases of the project there were numerous meetings between CCHCC personnel and HGA personnel in which CCHCC personnel explained the needs and concerns that the renovation had to take into account, including the renovations for the chronically mentally ill (CMI) unit on the third floor. This was a locked unit, and patients there included those who were involuntarily committed to CCHCC. Daniel Swedberg, HGA principal architect and project manager, and Michael Pederson, also of HGA, discussed with CCHCC administrator Arlyn Mills and CCHCC staff the ventilation, security and other needs CCHCC wanted considered in the renovation of the unit. HGA and CCHCC personnel jointly made the decision to install fixed pane windows that did not open in the isolation and security rooms and use air conditioning for ventilation in those rooms. However, in the rest of the CMI unit CCHCC wanted the windows to open. Mills ruled out security bars and security screens because he wanted to create a therapeutic, rather than prison-like, environment in the rest of the unit. Also, windows that open would not require use of air conditioning, a cost concern. Swedberg had discussions with CCHCC personnel concerning the need for hardware on these windows to limit the opening and to keep them from being opened by the residents.
Based on the programming desires of CCHCC, the discussions with CCHCC personnel, and various state and federal requirements, HGA drafted the performance specifications HGA selected the particular window and sash hardware described in the specifications based on the information it received from CCHCC personnel about the purposes they wanted the windows to serve, and based on HGA's own knowledge about the type of application that would best carry out those purposes. The recommendation of a five-inch open position was made by Swedberg because six inches was the guideline for the distance between railings to keep persons from falling through; he wanted to be more cautious in order to prevent a resident from getting out the window. The window specifications were approved by the County.
for the project. The specifications for the windows in the regular CMI unit (not the windows in the isolation and security rooms) and in other parts of the building called for horizontal rolling windows manufactured by MILCO, series W-21T (or one of two acceptable alternative manufacturers), with insect screens. The specifications for the operable hardware were: "Operable sash hardware: Manufacturer's standard type to suit sash operations; except with removable stop to lock operable sash in 5" open position; horizontal sliding units with key operated locking device and non-liftout device; 4 and casements units with removable handle cranks." (Footnote added.)
HGA and the County entered into a contract with J.P. Cullen & Sons, Inc. as general contractor for the project, and Cullen entered into a subcontract with MILCO for the windows. As part of the bidding process, MILCO submitted shop drawings of its proposed products to Cullen, which submitted them to HGA for review and approval. To meet the specifications of both the locking device and the removable stop, MILCO proposed one device, a cube stop, which MILCO had designed. The cube stop is a one-half-inch metal cube placed anywhere in the upper track of the window and tightened with a screw that can be turned with a special allen wrench. The cube stop can be placed so the window opens only five inches (or any other distance up to the fully open position); it can be removed, with an allen wrench, so that the window opens to any distance without a stop; and it can be placed so that it locks the window in a closed position. HGA approved MILCO's drawings as meeting the specifications.
While the renovation of the CMI unit was taking place, those patients were temporarily housed in another part of the building. Sometime after the windows and cube stops had been installed in that other part of the building, it came to Mills' attention that a patient had managed to loosen the cube stop. Mills contacted Larry Stenz, HGA's architectural representative for the project, explained the problem, and asked for a redesign of a device to limit the window opening. Stenz contacted George Parks of Cullen, who contacted Richard Rayborn, general manager of MILCO, regarding a redesign. Rayborn suggested channel stops of fifteen-and-one-half inches to make the windows more secure by allowing only four inches of sash travel, which would limit the opening to three inches. Rayborn confirmed this proposal in an April 6, 1984 letter to Richard Pelton of Cullen along with a quoted price. Pelton conveyed the quoted price to Stenz by a letter summarizing the proposal as "$860.00 for 45 window stops." However, Pelton's letter does not show that Rayborn's letter, which specifically described the stops as fifteen-and-one-half inches long and limiting sash travel to four inches, was enclosed.
HGA prepared a change order including "window stops (45) at 3rd floor center" at the quoted price; it was signed by Cullen, HGA and the County Board of Supervisors. MILCO installed the channel stops on April 25, 1984. The channel stop was an aluminum bar that was screwed into the top channel of the window frame, such that it stopped the window at an opening of three inches. The channel stop did not function as a lock, so if one wanted to lock the windows closed from the inside, the cube stop would still be needed for that purpose.
In November 1984, when HGA was inspecting the project to see what remained to In 1987 a patient attempted an escape from the CMI unit by unscrewing a channel stop and climbing out the window. After an investigation, the County concluded that the patient was able to do this because of his unique skills and that the channel stops, as they existed at that time, were a sufficient security measure. The County therefore decided to leave the channel stop system in place as it existed at that time.
be done, it noticed that the windows in the regular CMI unit opened only three inches. Pederson, Stenz and...
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