dissenting.
This appeal presents the single issue of whether the trial court erred in refusing to instruct the jury on contributory negligence. The Appellate Division held that because plaintiff committed the very act that defendants were under a duty to prevent, she could not, as a matter of law, be guilty of contributory negligence. “Plaintiff’s willful destructive propensities were plainly part and parcel of the mental illness from which she suffered. A triable factual question was not presented in that regard.” Cowan v. Doering, 215 N.J.Super. 484, 496 (1987). The Court agrees: “Because [defendants’] duty of care included the prevention of [plaintiff’s] self-damaging acts, the plaintiff’s actions and capacity were subsumed within the defendants’ scope of duty. Thus, the trial court correctly ruled that the defense of contributory negligence was not available.” Ante at 468.
*469To the extent that I understand the foregoing, I disagree with it. The jury could well have found from defendants’ psychiatric testimony that plaintiff’s conduct was a calculated, manipulative gesture rather than a genuinely suicidal act. This is borne out by the unobjected-to testimony of defendant Doering that all plaintiff was trying to do at the time of her fall was get out of the hospital.
[H]er comment to me * * * was that she wanted to leave the hospital. She did not want to hurt herself.
In addition, there were unobjected-to questions by counsel, the record support for which is concededly obscure, that incorporated expressions such as “lowered herself out” of the window and “dropped out” from a level that was twelve feet above a surface the composition of which is not disclosed by the record. So there were facts in the record that lend support to the theory, far-fetched to be sure, that plaintiff was doing no more than pursuing an unorthodox method of departure.
The point is that one version of the facts surrounding plaintiff’s fall, coupled with evidence that plaintiff was sufficiently competent to appreciate the risk (her statement to Doering about her intentions and her manner of departure suggest that she did indeed appreciate the risk), supports the proposition that contributory negligence should have stayed in the case as a defense. Plaintiff had some responsibility for her own well-being, even if it was to exercise only that degree of care that a person in her condition was capable of exercising.
Until the trial court on its own motion took contributory negligence out of the case, plaintiff’s counsel apparently assumed, along with everyone else except the judge, that it was a legitimate issue. Because I believe that defendants should not have been deprived of the opportunity to have the jury consider that issue, I would reverse and remand.
POLLOCK, J., joins in this opinion.
*470For affirmance — Chief Justice WILENTZ and Justices HANDLER, O’HERN, GARIBALDI and STEIN-5.
For reversal and remandment — Justices CLIFFORD and POLLOCK-2.