¶ 123. (concurring). I agree with the majority opinion that the cause must be remanded to the circuit court. I also agree with much of the majority opinion's analysis *613about a defendant caregiver's standard of care when it has custody and control over another person.
¶ 124. I write separately to make three points. First, I believe it is a mischaracterization to describe a defendant caregiver's standard of care in situations of custody and control as a heightened duty. The duty is simply to exercise ordinary (reasonable) care under the circumstances. Second, and most importantly, I disagree with the majority opinion's conclusion that a plaintiff under a defendant caregiver's custody and control can be contributorily negligent when the risk of harm is foreseeable. Third, I urge this court to adopt the rule accepted in many jurisdictions and extend the subjective standard to all other cases in which a defense of contributory negligence is raised against a mentally ill plaintiff.
I. STANDARD OF CARE FOR CAREGIVER WITH CUSTODY AND CONTROL
¶ 125. The majority opinion concludes that a defendant caregiver with custody and control over a plaintiff will be liable for a plaintiffs self-inflicted injuries if the plaintiff can show: (1) a special relationship existed between the parties amounting to custody and control; (2) the particular risk of harm was foreseeable; and (3) there was some failure of care on the part of the defendant.1 Adhering to Jankee, the majority opinion states that this custody and control rule is an exception to standard negligence law because it contemplates the possibility of a heightened duty of care for a defendant.2 I would not state the standard of care in this way.
*614¶ 126. I conclude that the rule in Wisconsin is that there is one standard of care, and the standard of care in each case is to exercise ordinary care under the circumstances.3 Thus, a defendant caregiver who has assumed responsibility for a mentally disabled person and knows or should know the proclivities and capacities of that person must exercise ordinary care to prevent foreseeable harm (or a particular risk of harm, as the majority opinion states).4 As the court stated in Kujawski v. Arbor View Health Care Ctr., 139 Wis. 2d 455, 462-63, 407 N.W.2d 249 (1987): "The general rule in Wisconsin is that a hospital must exercise such ordinary care as the mental and physical condition of its patients, known or should have been known, may require."5 This standard includes ordinary care to pre*615vent the patient from harming herself by her own acts or in escaping if the risk of harm is foreseeable.6
¶ 127. For example, a defendant caregiver who knows or should know that the protected person is suicidal or will try to escape must exercise ordinary care to prevent the foreseeable harm resulting from suicide or escape. If the caregiver exercises ordinary care under these circumstances (ordinarily a question of fact), the caregiver is not negligent.7
II. CONTRIBUTORY (COMPARATIVE) NEGLIGENCE OF THE PROTECTED PERSON
¶ 128. The majority opinion also concludes that a defendai^-caregiver found liable under its three-part test may assert the affirmative defense of the plaintiffs contributory negligence.8 That is, the majority opinion compares the negligence of the protected person (a subjective test to determine whether the standard of ordinary care for one's own protection was breached) with the negligence of the caregiver (an objective test to determine whether the caregiver breached its standard of ordinary care under part I above).9 I disagree with this conclusion.
*616¶ 129. I believe that contributory negligence is not attributable to the protected person under these circumstances. Rather, I conclude, as did the Jankee majority and dissenting opinions, that the caregiver's responsibility to exercise ordinary care for a foreseeable risk of harm "may absolve the protected person from the ordinary obligation of self-care, shift responsibility to the caregiver, and thereby expunge the affirmative duty of contributory negligence."10
¶ 130. Professor Charles F. Williams, in his article Fault and the Suicide Victim: When Third Parties Assume a Suicide Victim's Duty of Self-Care, 76 Neb. L. Rev. 301, 315 (1997), (upon which the majorities here and in Jankee rely), explains that when a caregiver has assumed custody and control of a protected person and knows (or should know) of the risk of harm to that protected person (e.g., suicide), the caregiver has assumed the protected person's duty of self-care. The reasonableness of the protected person's conduct in causing the foreseeable harm, whether measured by a subjective or objective standard, is therefore irrelevant and has no effect on the defendant's negligence.11 *617Contributory negligence, according to Professor Williams, is no defense for the caregiver. I agree.
¶ 131. Courts in other jurisdictions have similarly concluded that a protected person's "contributory negligence" plays no role under the described circumstances. The Minnesota Supreme Court, for example, has explained that comparative fault is duplicative when the fact finder is asked to determine whether the harm incurred was reasonably foreseeable by the caregiver.12 Or to put it another way, if the caregiver breaches the standard of care, it means the risk of harm is foreseeable and the fact that the protected person might have contributed to the injury through negligence or even intentional conduct does not change the caregiver's negligence.
¶ 132. Moreover, this approach is in keeping with our previous cases recognizing that a patient's duty to exercise ordinary care in a patient-doctor relationship is extremely limited. "[T]he very patient-doctor relation assumes trust and confidence on the part of the patient and would require an unusual set of facts to render a *618patient guilty of contributory negligence when the patient relies on the doctor."13
¶ 133. The majority opinion does not adequately explain why it is departing from Jankee, from Professor Williams, and from case law. Professor Williams describes the majority's approach as confused.14 I do too.
III. SUBJECTIVE STANDARD OF CONTRIBUTORY NEGLIGENCE IN OTHER CIRCUMSTANCES
¶ 134. I agree with the majority opinion that when the risk of harm in a case in which a caregiver has custody and control over a protected person is not foreseeable under the circumstances, the caregiver who has custody and control owes a protected person the same duty of care that it owes to any and all people.15 Under these circumstances, the affirmative defense of contributory negligence reenters the equation.16
¶ 135. I disagree with the majority opinion, however, when it concludes that the protected person's contributory negligence should, under these circumstances, be measured by an objective standard.17 I *619would follow the majority trend under these circumstances (as I did in my Jankee dissent) and measure the protected person's contributory negligence by a subjective standard.18
¶ 136. For the reasons set forth, I agree with remanding the cause to the circuit court but disagree with the majority opinion's approach to the "negligence" of the protected person.
¶ 137. I am authorized to state that Justice ANN WALSH BRADLEY joins this concurrence.
Majority op., ¶ 62.
Majority op., ¶ 46.
Osborne v. Montgomery, 203 Wis. 223, 233, 234 N.W. 372 (1931). The court stated in that case:
From a multitude of cases and a long consideration of this entire field, courts have arrived at the conclusion that in the absence of a standard declared by statute or previous decision, before liability can be predicated upon the acts of the defendant, it must appear that he has failed to exercise that degree of care which the great mass of mankind exercises under the same or similar circumstances, which is usually designated "ordinary care."
See also Wis JI—Civil 1005 ("A person is negligent when (he) (she) fails to exercise ordinary care. Ordinary care is the care which a reasonable person would use in similar circumstances.").
Majority op., ¶ 50-54.
See also Cramer v. Theda Clark Mem. Hosp., 45 Wis. 2d 147, 149, 172 N.W.2d 427 (1969); Dahlberg v. Jones, 232 Wis. 6, 11, 285 N.W.2d 841 (1939); Boles v. Milwaukee County, 150 Wis. 2d 801, 808, 443 N.W.2d 679 (Ct. App. 1989); see also Wis JI—Civil 1385.5 ("Negligence: Hospital: Duty of Employees: Suicide or Injury Resulting from Escape or Attempted Suicide") *615("Reasonable care is that care which a person of ordinary intelligence and prudence would provide under the same or similar circumstances considering the patient's physical and mental condition.").
See Klein v. BIA Hotel Corp., 49 Cal. Rptr. 2d 60, 64 (Ct. App. 1996); see also Tomfohr v. Mayo Found., 450 N.W.2d 121, 124 (Minn. 1990).
Majority op., ¶ 60.
Majority op., ¶ 36.
The majority opinion states:
l[T]here will be situations in which a mentally disabled person is as able to appreciate danger as any other person and is able to *616control her actions. When such a person persists in pursuing dangerous and seemingly irrational conduct, the person's duty of self-care should he judged on a subjective standard and compared with the defendant's duty of care.
Majority op., ¶ 62.
Jankee v. Clark County, 2000 WI 64, ¶ 92, 235 Wis. 2d 700, 612 N.W.2d 297; see also Wis JI—Civil 1385.5 Comment; Wis JI—Civil 1021 ("Negligence of Mentally Disabled") Comment ("Duty of Caregiver") (quoting this language and citing Jankee).
Charles F. Williams, Fault and the Suicide Victim: When Third Parties Assume a Suicide Victim's Duty of Self-Care, 76 Neb. L. Rev. 301, 313, 318 (1997) (plaintiffs contributory *617negligence is irrelevant); see also Susan O'Neal, Contributory Negligence in Medical Malpractice: Recent Application in the Context of Suicidal Patient, 69 Miss. L.J. 925, 941 (1999); Daniel W. Berglund, Note, Torts: Taking the "I" Out of Suicide: The Minnesota Supreme Court's Alarming Extension of Duty in "Exceptional Relationships"— Sandborg v. Blue Earth County, 28 Wm. Mitchell L. Rev. 1307, 1318-19, 1322 (2002).
For cases applying this reasoning, see, e.g., Winger v. Franciscan Med. Ctr., 701 N.E.2d 813, 818-20 (Ill. Ct. App. 1998); Tomfohr, 450 N.W.2d at 125; Cowan v. Doering, 545 A.2d 159, 167 (N.J. 1988); Hunt v. King County, 481 P.2d 593, 598 (Wash. Ct. App. 1971).
Sandborg v. Blue Earth County, 615 N.W.2d 61, 65 (Minn. 2000); Tomfohr, 450 N.W.2d at 125.
Brown v. Dibbel, 227 Wis. 2d 28, 48-49, 595 N.W.2d 358 (1999).
In cases in which the patient is negligent after the doctor's negligent treatment was administered, the later negligence is not contributory negligence that bars the action but goes to mitigation of damages. Schulz v. Tasche, 166 Wis. 561, 564-65, 165 N.W. 292 (1917).
Williams, supra note 11, at 307 (permitting defense of contributory negligence in cases of custody and control does not deter unreasonable conduct, which is the goal of tort law).
Majority op., ¶¶ 48, 49, 55-57.
Majority op., ¶¶ 31, 65.
Majority op., ¶ 35.
Jankee, 235 Wis. 2d 700 ¶¶ 116-17 (Abrahamson, C.J., dissenting); Williams, supra note 11, at 315.