Jankee v. Clark County

• Citation: 2000 WI 64,235 Wis.2d 700,612 N.W.2d 297
• Decision Date: 22 June 2000
• Docket Number: No. 95-2136.,95-2136.
• Parties: Emil E. JANKEE and Mary Jankee, Plaintiffs-Appellants-Petitioners, v. CLARK COUNTY, Wisconsin Health Care Liability Insurance Plan, Defendants-Respondents-Cross-Appellants-Petitioners, CONTINENTAL CASUALTY CO., Hammel, Green & Abrahamson, Inc., Defendants-Respondents-Cross-Appellants-Cross-Respondents, WAUSAU UNDERWRITERS INS. CO., J.P. Cullen & Sons, Inc., St. Paul Fire & Marine Ins. Co., and Wausau Metal Corp. d/b/a Milco, Defendants-Respondents-Cross-Respondents, WISCONSIN DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Defendant.
• Court: United States State Supreme Court of Wisconsin

235 Wis.2d 700

2000 WI 64

612 N.W.2d 297

Emil E. JANKEE and Mary Jankee, Plaintiffs-Appellants-Petitioners, v. CLARK COUNTY, Wisconsin Health Care Liability Insurance Plan, Defendants-Respondents-Cross-Appellants-Petitioners, CONTINENTAL CASUALTY CO., Hammel, Green & Abrahamson, Inc., Defendants-Respondents-Cross-Appellants-Cross-Respondents, WAUSAU UNDERWRITERS INS. CO., J.P. Cullen & Sons, Inc., St. Paul Fire & Marine Ins. Co., and Wausau Metal Corp. d/b/a Milco, Defendants-Respondents-Cross-Respondents, WISCONSIN DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Defendant.

No. 95-2136.

Supreme Court of Wisconsin.

Oral argument October 5, 1999.

Decided June 22, 2000.

For the plaintiffs-appellants-petitioners there were briefs by Ronald G. Tays, Hope K. Olson and Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., Milwaukee and oral argument by Ronald G. Tays.

For the defendants-respondents-cross appellants-petitioners there were briefs by Timothy F. Mentkowski, Mary E. Nelson and Crivello, Carlson, Mentkowski & Steeves, S.C., Milwaukee and oral argument by Timothy F. Mentkowski.

For the defendants-respondents-cross appellants-cross respondents there was a brief by Timothy R. Murphy and Askegaard, Robinson, Murphy & Schweich, P.A., Brainerd, Minnesota and oral argument by Timothy R. Murphy.

For the defendants-respondents-cross respondents, Wausau Underwriters Insurance Co. and J.P. Cullen & Sons, Inc., there was a brief by Wayne R. Luck and Law Offices of Stilp and Cotton, Appelton and oral argument by Wayne R. Luck.

For the defendants-respondents-cross respondents, St. Paul Fire & Marine Insurance Co. and Wausau Metals Corporation, d/b/a Milco, there was a brief by John P. Richie and Misfeldt, Stark, Richie, Wickstrom & Wachs, Eau Claire and oral argument by John P. Richie.

Amicus curiae was filed by W. Wayne Siesennop, Mary Susan Maloney and Hannan, Siesennop & Sullivan, Milwaukee for the Wisconsin Association of Consulting Engineers and the Wisconsin Society of Architects, Inc., doing business as AIA Wisconsin.

Amicus curiae was filed by Charles V. Sweeney, Raymond P. Taffora, Nia Enemuoh-Trammell and Michael Best & Friedrich, LLP, Madison for the Wisconsin Transportation Builders Association.

Amicus curiae was filed by Alan E. Gesler and Slattery & Hausman, Ltd., Waukesha for the Wisconsin Academy of Trial Lawyers.

¶ 1. DAVID T. PROSSER, J.

Emil and Mary Jankee and Clark County seek review of a published decision of the court of appeals, Jankee v. Clark County, 222 Wis. 2d 151, 585 N.W.2d 913 (Ct. App. 1998), affirming in part and reversing in part an order of the Circuit Court for Clark County, Duane Polivka, Judge.

¶ 2. Emil Jankee (Jankee) sustained paralyzing injuries during an attempt to escape from Clark County Health Care Center (CCHCC), after he squeezed through an opening in a third-floor window and then fell from the roof, fracturing his back. Emil and Mary Jankee (Jankees) filed a complaint against Clark County and against three other parties, namely the architect, contractor, and subcontractor responsible for designing and implementing CCHCC's building renovations several years earlier.

¶ 3. The Jankees sued Clark County for negligently failing to supervise Jankee adequately while he was in the County's custody and control. They also pursued negligence claims against the architectural firm of Hammel, Green & Abrahamson, Inc. (HGA), building contractor J.P. Cullen & Sons, Inc. (Cullen), 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...