¶ 106. (dissenting). Courts and commentators continue to struggle to develop an appropriate standard of care for persons with mental illness or mental disabilities. No proposed standard is free of difficulties.
¶ 107. I first address the liability of Clark County. This case presents a recurring fact pattern: A plaintiff, here Emil Jankee, is diagnosed with a mental illness or mental disability and poses a danger to himself or to others. The plaintiff is involuntarily institutionalized in a county facility. The plaintiff is injured while he is institutionalized and claims that the County's negligence caused his injury.
¶ 108. As the majority correctly explains, under these circumstances, Clark County assumed the duty to provide reasonable care to shield the plaintiff — the protected person — from foreseeable harm while he was at the county facility. Majority op. at ¶¶ 91, 92.1 The majority opinion makes clear that the County's assumption of this duty may absolve Jankee, the protected person, from the ordinary obligation of self-care, and to shift responsibility to the County, thereby expunging the affirmative defense of contributory negligence. Majority op. at ¶ 92. The reason for this rule is that "[t]he improper or inappropriate imposition of the *764defense of contributory negligence can lead to the dilution or diminution of a duty of care."2
¶ 109. I agree with the majority's analysis up to this point. But the majority then goes too far in the present case, which is here on summary judgment. The majority weighs the conflicting evidence and concludes that the County was not negligent during its custodial care of Jankee because it could not have foreseen that Jankee would attempt to escape. Majority op. at ¶¶ 99-103, 105. I disagree with the majority's conclusion. Given Jankee's extensive history of mental illness, including his violent and irrational tendencies, which were known to the County, it is entirely possible *765that Jankee could prove at trial that the County was negligent in failing to protect Jankee from acting out his irrational impulses, including trying to escape.3
¶ 110. Even if the facts and the reasonable inferences to be drawn from the facts were not in dispute, foreseeability and negligence are ordinarily questions for a fact-finder, not for a court on summary judgment. Schuh v. Fox River Tractor Co., 63 Wis. 2d 728, 744, 218 N.W.2d 279 (1974).4
*766¶ 111. Therefore, summary judgment is not appropriate in this case. The determination of the County's negligence should be made by the trier of fact, and the cause should be remanded to the circuit court.
¶ 112. Because the majority holds that Clark County was not negligent as a matter of law, Jankee's contributory negligence is of no import in determining the County's liability.
¶ 113. As to the other defendants, the majority opinion does not determine each defendant's individual causal negligence. Perhaps like the County, each of the other defendants was not causally negligent. The majority looks only to Jankee's negligence and concludes that Jankee's contributory negligence outweighs the negligence of each of the defendants.
¶ 114. The majority uses an objective standard for determining Jankee's contributory negligence: Jankee, an institutionalized injured person suing the institution and others for negligence, is held to a reasonable-person standard of care in determining his contributory negligence.5
*767¶ 115. The majority's treatment of the mentally ill or mentally disabled is in stark contrast with the law's treatment of physically disabled defendants: When a person "is ill or otherwise physically disabled, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable person under like disability." Restatement of Torts (Second) § 283C (1965).6
¶ 116. The majority opinion acknowledges that the objective standard is a minority view. Most states allow a jury to weigh degrees of mental capacity in assessing whether an injured plaintiff was contribu-torily negligent. Majority op. at ¶ 73 and n.21.7 Case *768law from other states and several commentators agree that a subjective standard of care is particularly well suited in cases like this one, where the defendant is aware of the plaintiffs mental illness and can take appropriate precautions. See Prosser & Keeton on the Law of Torts, § 32, at 138 and § 135, at 1073 (5th ed. 1984).
¶ 117. The majority fully and fairly presents reasons for and against the objective and subjective standards. I need not repeat them. I am persuaded by the case law and the commentators that recognize that the policy arguments employed to justify holding an institutionalized mentally ill or mentally disabled per*769son to an objective reasonable person standard when that person sues the institution for negligent care "lose much of their force" when applied to the institutionalized person in the contributory negligence arena. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 32, at 178 (5th ed. 1984).8
¶ 118. For the reasons stated, I dissent.
¶ 119. I am authorized to state that Justice ANN WALSH BRADLEY joins this dissent.
See Kujawski v. Arbor View 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.").
Cowan v. Doering, 545 A.2d 159, 167 (N. J. 1988) (adopting a capacity-based standard for evaluating contributory negligence but holding that contributory negligence could not be asserted in this case because the hospital's duty of care included the prevention of the kind of self-damaging acts that caused plaintiffs injuries, thus, "the plaintiffs actions and capacity were subsumed within the defendant's scope of duty").
See W.C. Crais III, Annotation, Contributory Negligence of Mentally Incompetent or Mentally or Emotionally Disturbed Persons, 91 A.L.R. 2d 392 at 397 (1963 & 2000 Supp.), stating that:
In these cases, [where the plaintiff is in an institution for the mentally ill] considerable emphasis is placed on the overriding duty arising from the hospital-patient relationship, resulting in a good deal more lenience toward the plaintiff insofar as his duty to himself is concerned (discussing cases).
See also James L. Rigelhaupt, Jr., Annotation, Hospital's Liability for Patient's Injury or Death Resulting from Escape or Attempted Escape, 37 A.L.R. 4th 200 at 274-77 (1985 & 1999 Supp.) (discussing cases allowing the jury to decide whether a mentally ill patient injured in an escape or suicide attempt was contribuíorily negligent according to a subjective standard of plaintiff s capacity).
See James L. Rigelhaupt, Jr., Annotation, Hospital's Liability for Patient's Injury or Death Resulting from Escape or Attempted Escape, 37 A.L.R. 4th 200 at § 3.a (1985 & 1999 Supp.) (discussing cases allowing jury to decide whether hospital was negligent in its treatment and supervision of mentally ill patients injured when attempting to escape).
A case strikingly similar to the present case is Fatuck v. Hillside Hospital, 45 A.D.2d 708 (N.Y. App. Div. 1974), aff'd without op., 328 N.E.2d 791 (N.Y. 1975). In Fatuck the court held that there was sufficient evidence to establish prima facie negligence on the part of a hospital when plaintiff claimed that the hospital was negligent in failing to prevent the decedent from "escaping" from the hospital. The court pointed out that the patient had more than a 14-year history of mental problems and had been admitted to and released from several hospitals in the past. However, at no time during any of the hospitalizations did the patient exhibit any escapist behavior or attempt to commit suicide.
See also Mounds Park Hosp. v. Von Eye, 245 F.2d 756 (8th Cir. 1957) (a hospital on notice that mentally ill plaintiff resented her confinement and had expressed her desire to get away was sufficient evidence to sustain the jury's finding of the hospital's negligence when mentally ill plaintiff injured herself in an escape attempt).
See also Hull v. Sears, Roebuck & Co., 49 Wis. 2d 1, 11, 181 N.W.2d 393 (1970) ("the issue of contributory negligence is peculiarly one for the jury, and it normally cannot be said as a matter of law that a plaintiff was or was not guilty of contribu*766tory negligence once the issue is raised"); Davis v. Skille, 12 Wis. 2d 482, 489, 107 N.W.2d 458 (1961) ("The comparison of negligence is peculiarly within the jury's province. . . .While this court has in a number of cases determined as a matter of law that the negligence of a plaintiff equaled or exceeded that of one or more defendants, it has also stated that the instances in which a court can so rule will be extremely rare.").
The court of appeals in the present case adopted the following rule barring contributory negligence under limited circumstances: A person who is involuntarily institutionalized with a mental illness or mental disability on the ground that he or she is dangerous to himself or herself and others and who does not have the capacity to control or appreciate his or her conduct because of that illness or disability is not barred by contributory negligence when that person claims that the insti*767tution's failure to maintain a safe place and negligent supervision caused the institutionalized person injury. The court of appeals remanded the cause to the circuit court for a factual finding to determine whether Jankee possessed the capacity to control and appreciate his conduct. Jankee v. Clark County, 222 Wis. 2d 151, 177-78, 588 N.W.2d 913 (Ct. App. 1998).
The standard of care ordinarily applied to children is to measure the child's conduct against what would be reasonable to expect of a child of like age, intelligence, discretion, knowledge and experience under the same or similar circumstances. Restatement of Torts (Second) §§ 283A, 464(2) (1965); Wis JI-Civil 1010.
Birkner v. Salt Lake Cty., 771 P.2d 1053, 1060-61 (Ut. 1989) ("In contrast to the use of an objective standard in cases of primary negligence, the majority of courts have adopted a more compassionate stance regarding the contributory negligence of the mentally impaired. Those who are insane are incapable of contributory negligence, whereas lesser degrees of mental impairment should be considered by the jury in determining whether the plaintiff was contributorily negligent.. . .This rule has also been applied in comparative negligence jurisdictions. .. .A patient seeking professional help for a certain kind of *768disorder may be more or less negligent depending on the nature and extent of the disorder... .To apply a categorical rule that no patient seeking therapy for a mental or emotional disorder can be charged with negligence would be unrealistic and cause damage to the principle of comparative negligence") (citing cases).
See also Mochen v. State of New York, 43 A.D.2d 484, 487-88 (N.Y. App. Div. 1974) (a plaintiff with mental illness or mental disability should be held to exercise his or her own faculties; with the present state of medical knowledge "it is possible and practical to evaluate the degrees of mental acuity and correlate them with legal responsibility").
See W.C. Crais III, Annotation, Contributory Negligence of Mentally Incompetent or Mentally or Emotionally Disturbed Persons, 91 A.L.R. 2d 392 at 397 — 98 (1963 & 2000 Supp.) stating that "a majority of courts have adopted the. . .view, however, that a plaintiff should be held to exercise only that degree of care for his own safety consonant with the faculties and capacities bestowed upon him by nature." The author also states:
Under the weight of scientific opinion, however, the view that only total insanity may be considered is buckling. Most successful in overcoming the argument that it is impracticable to consider the lesser deficiencies is the argument that insanity is analogous to infancy and should be treated similarly by the courts (citing cases).
I do not address the issue of the government contractors' immunity because such a discussion is of limited value under the circumstances of the present case. The majority does not address the issue of immunity, and the precedential value of a decision of the court of appeals which this court has reviewed is an open question.