dissenting.
Sometime prior to September 2, 1992, Baldwin stopped taking his medication, which medication caused him to suffer dizziness, nausea, and cramping in his arms and legs. The evidence established that Baldwin’s failure to take his medication could have led to the psychotic episode of September 5. Therefore, I agree with the district court’s conclusion that Baldwin was negligent in not taking his medication.
However, I respectfully disagree with the district court’s conclusion that Baldwin’s conduct of not taking the medication was so willful as to suggest recklessness and so egregious that it constituted 55 percent of the causation of the damages Baldwin suffered and therefore precluded recovery. In my opinion, the facts do not support that conclusion.
*22The officers who attempted to arrest Baldwin knew of his prior episode and assault in Lincoln. They also knew that it had taken numerous Lincoln police officers to subdue Baldwin on that occasion.
The district court found that by September 5, 1992, Baldwin had no control over his actions. At 11:22 p.m. on that date, police were dispatched to an “A-Adam disturbance,” which meant that a mentally ill person was involved.
In dealing with mentally ill persons, the Division’s policies and procedures required that officers avoid creating unnecessary ill will. Officers were to refrain from being in a hurry and were to establish a relationship of concern and understanding with the person involved. None of these procedures were followed.
At 11:37 p.m., Truckenbrod and Doyle discovered Baldwin was “running around naked.” They radioed for backup because they had heard of Baldwin and were aware of the incident that had occurred in Lincoln. Doyle was concerned about subduing Baldwin because of his size and strength, yet the officers did not discuss how they planned to handle the situation.
At 11:44 p.m., Truckenbrod and Doyle informed radio dispatch that Baldwin was trying to jump through the glass door of a residence. At this point, the officers were concerned for the safety of spectators and believed they would have to subdue Baldwin by force. However, when Baldwin was directed to come down off the landing and to stop hurling himself at the door, he complied. Baldwin was calm and not agitated.
However, at 11:45:25 p.m., these officers, knowing Baldwin’s size and strength, and without waiting for backup, attempted to subdue Baldwin by force. Contrary to police policy, Truckenbrod approached Baldwin and stated, “Police, you’re under arrest!” Truckenbrod told Baldwin to step up against a nearby wall, and Baldwin complied. Then, Truckenbrod attempted to restrain Baldwin by grabbing his left hand and attempting to handcuff him from behind. Baldwin then pushed the officers away. The officers stumbled and ended up struggling with Baldwin on the ground.
This struggle began within 20 seconds of the time that Baldwin had come down off the landing at the direction of the officers. During that 20 seconds, the officers did not follow any *23of the required procedures, and as a result, they found themselves in a life-and-death struggle with Baldwin. Without backup, they were not capable of physically restraining Baldwin, and he was shot as he grabbed for Truckenbrod’s gun.
The question is, Whose negligence is greater, Baldwin’s or that of the officers? The City alleged that Baldwin was contributorily negligent in (1) failing to heed the lawful attempt of the officers to place him under arrest, (2) failing to heed the lawful orders of the officers, (3) placing his hands on an officer’s weapon in such a manner as to cause the officer to reasonably believe that Baldwin was attempting to disarm the officer and place the officer in danger, and (4) failing to take his prescribed medication.
The district court determined that the officers were negligent in disregarding the standard operating procedure for dealing with mentally ill individuals and in failing to carefully evaluate the situation prior to attempting to place handcuffs on Baldwin. The court found that the Division’s policies and procedures for handling mentally ill persons constituted a duty of care and that the officers breached that duty by failing to follow those procedures. The court also found that the officers’ negligence caused the need for using deadly force and was one of the proximate causes of Baldwin’s injuries.
The district court rejected the City’s first three allegations of contributory negligence on the grounds that Baldwin was clearly deranged and could not be held to the knowledge necessary to satisfy the defenses. However, the court found that Baldwin’s negligence in failing to take his medication was greater than the negligence of the officers who failed to follow the standard operating procedure. In my opinion, the district court was clearly wrong.
The evidence is not disputed that in less than 2 minutes from the time the officers engaged Baldwin, they attempted to subdue and handcuff him, contrary to police policy and procedure. In less than 20 seconds from the time that Baldwin complied with Doyle’s command that Baldwin come down off the landing, the officers attempted to subdue and handcuff him, also contrary to policy.
*24The officers knew that because of Baldwin’s size, backup was needed. They were aware of Baldwin’s assault in Lincoln, and they knew that it had taken quite a few officers to subdue him. They were also aware that Baldwin’s size, weight, and strength greatly exceeded their own. However, despite knowing that several police officers would be needed to physically subdue Baldwin if he resisted, Truckenbrod and Doyle attempted to handcuff and subdue Baldwin in less than 2 minutes after they had engaged him.
The apportionment of damages on the basis of the relative negligence of the parties is a matter for the trier of fact. In this case, the officers failed to follow the Division’s standard operating procedure for dealing with mentally ill individuals and failed to wait for backup even though they knew Baldwin was mentally ill and dangerous. As the district court noted, if the Division’s procedures had any meaning at all, they should have been employed after Baldwin obeyed the officers by coming down from the landing and before the officers attempted to subdue him with handcuffs. I would reverse the judgment and remand the cause with directions to reapportion the liability in favor of Baldwin and to award damages accordingly.
Connolly, J., joins in this dissent.