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Jankee v. Clark County6/22/2000
SUPREME COURT OF WISCONSIN
Case No.: 95-2136
Complete Title of Case: 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.
ON REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 222 Wis. 2d 151, 585 N.W.2d 913 (Ct. App. 1998, Published)
Opinion
Oral Argument: October 5, 1999
Source of APPEAL COURT: Circuit COUNTY: Clark JUDGE: Duane Polivka
Dissented: ABRAHAMSON, C.J., dissents (opinion filed).
BRADLEY, J., joins dissent.
2000 WI 64
FILED JUN 22, 2000
Cornelia G. Clark Clerk of Supreme Court Madison, WI
REVIEW of a decision of the Court of Appeals. Reversed.
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.
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.
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.
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.
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 dis
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