¶ 34. (dissenting). The majority opinion unduly narrows the third-party plaintiffs' claim against Milwaukee County and, as a result, dismisses the claim, concluding that the County had no duty to inspect the plaintiffs' apartment for lead-based paint. Because such a conclusion, even if accurate, does not resolve the case, I dissent.
¶ 35. As the majority opinion properly notes (majority op. at ¶ 2), the third-party complaint alleged that the county was negligent in its inspection of the plaintiffs' apartment, and that such negligence was a proximate cause of the plaintiffs' injuries. The County subsequently made a motion for summary judgment, on two separate grounds. First, the County argued that it could not be liable for injuries suffered by the plaintiffs since the plaintiffs did not rent an apartment owned by the County. Second, the County asserted that the action should be dismissed for failure to prosecute because the plaintiffs and the third-party plaintiffs had failed to show up at a scheduled deposition at which counsel for the County appeared. The County included *167as a part of its motion for summary judgment an affidavit from Kim Jines, the County Rent Assistance Program Coordinator. The affidavit stated that the County had a duty to "conduct initial and annual quality inspections ■ so as to provide decent, safe, and sanitary units." However, the affidavit stated that there is "no requirement by law that the County conduct lead poisoning tests."
¶ 36. Both the plaintiffs and the third-party plaintiffs responded to the defendants' motion for summary judgment. The plaintiffs argued that summary judgment was not appropriate because the County had conceded that it had a duty to inspect the apartment and that it was a question for the jury to determine whether the inspection was negligent and the cause of the plaintiffs' injuries. The third-party plaintiffs' motion in opposition to the defendants' motion for summary judgment similarly argued that such relief was not appropriate because "[tjhere clearly exists an issue of fact as to whether Milwaukee County was negligent in its inspection of the home...."
¶ 37. The third-party plaintiffs' brief included an affidavit from the third-party plaintiffs' attorney. The affidavit included portions of the transcript of the plaintiffs' deposition, in which a plaintiff testified that a representative from the County had inspected the apartment on two separate occasions and had not mentioned anything about lead-based paint. The third-party plaintiffs also included the inspection form that the Milwaukee County Department of Public Works had filled out and signed, certifying that the plaintiffs' apartment complied with the standards listed therein.
¶ 38. The County subsequently filed a motion entitled "motion to dismiss." That motion asserted that the affidavit submitted by the attorney for the third-*168party plaintiffs should be disregarded because it was hearsay, and that the inspection form included should also be disregarded because it was not authenticated pursuant to chapter 909 of the Statutes. The motion also sought the dismissal of the claim against the County based on the statute of limitations and the notice of claims statute. These issues are not relevant for the purpose of this dissent.
¶ 39. The circuit court dismissed the third-party action against Milwaukee County because the inspection report only stated that the apartment "appeared" to comply with the pertinent HUD regulations regarding lead-based paint. The circuit court held that the third-party plaintiffs had not submitted any evidence to refute the contention made in the affidavit of the Coordinator that the County did not have a duty to test for lead-based paint.
¶ 40. The court of appeals affirmed, utilizing a similar rationale. The court of appeals characterized the dispositive issue as whether the "county voluntarily assume[d] a duty to inspect for lead-based paint." The court of appeals held that no assumption of duty had taken place, since the inspection form merely stated that the apartment "appeared" to comply with the regulations. The court of appeals further held that the third-party plaintiffs had failed to submit any evidence to suggest that the inspection report was erroneous in its limited assertion that the apartment appeared to comply with the federal lead-based paint regulations.
¶ 41. This court's majority opinion agrees with the circuit court and court of appeals, which held that the federal regulations do not create an affirmative duty on the County to inspect for lead-based paint. Rather, according to the majority, the regulations cre*169ate a duty on the County to conduct a "visual inspection for faulty paint surfaces." Majority op. at ¶ 27.1 On the basis of the inspection form and the federal regulations, the majority opinion concludes that the County did not state or otherwise imply that the apartment was free of lead-based paint; the County stated only that the apartment appeared to comply with the federal regulations. The majority further states that because the third-party plaintiffs did not submit evidence suggesting that the County breached its duty to conduct a visual inspection for faulty paint, summary judgment for the defendants is appropriate. Majority op. at ¶ 30.
¶ 42. In my view the majority opinion's analysis of the claim against the County is faulty. The majority examined whether the County voluntarily undertook an affirmative duty to test for lead-based paint or whether such a duty arises from the federal regulations. Majority op. at ¶ 20. But neither of these analyses reflects Wisconsin's well-established negligence law. In Wisconsin, as this court has repeatedly explained, the first element of a negligence claim is a duty of care, and that duty is established under state law whenever it is foreseeable to the defendant that his or her act or omission to act might cause harm to some other person. At the very least, every person is subject to a duty to exercise ordinary care in all of his or her activities. This court has not adopted the Restatement's provisions regarding the voluntary assumption of duties in evaluating negligence claims. Instead, the general framework governing the duty of care in Wisconsin negligence actions is as follows: A person is *170negligent when he or she fails to exercise ordinary care. Ordinary care is the care that a reasonable person would use in similar circumstances. A person is not using ordinary care and is negligent if the person, without intending to do harm, does something (or fails to do something) that a reasonable person would recognize as creating an unreasonable risk of injury or damage to a person or property. In Wisconsin, failure to take an affirmative action may constitute negligence when that failure is inconsistent with the duty to exercise ordinary care. Gritzner v. Bubner, 2000 WI 68 at ¶¶ 20-23, 235 Wis. 2d 781, 611 N.W.2d 906.2
¶ 43. Thus the ultimate question in this case is not whether the County voluntarily undertook an affirmative duty to inspect but whether, under all the circumstances, the County did not exercise with due care when it inspected the apartment and represented to both the landlord and prospective tenant that the unit appeared to comply with HUD regulations related to lead-based paint. 3
¶ 44. The third-party complaint against the County was not based solely on the County's failure to *171test for lead-based paint; the complaint alleged that the safety inspection conducted by the County was negligent. The third-party complaint alleged that the inspection was negligent specifically in that it failed to disclose or reveal the existence of lead-based paint. But that was only one of the ways in which the County's inspection could have been negligent. The County's inspection could have been negligent in that it failed to detect chipping or faulty paint or other outward signs of lead-based paint dangers.
¶ 45. The majority opinion concludes that the negligence claim was properly dismissed on summary judgment because the third-party plaintiffs did not submit evidence suggesting that the County breached its duty to conduct a visual inspection for faulty paint. Majority op. at ¶ 30. This conclusion is in error because the County did not move for summary judgment on the grounds that its inspection had not been negligent. Rather, the County's summary judgment motion (and subsequent "motion to dismiss") was based on the limited premise that the County did not have a duty to inspect for lead-based paint because the County did not own the apartment. As the third-party plaintiffs argue in their brief to this court, a motion for summary judgment based on the lack of a legal duty because of lack of ownership does not require the non-movants to present factual evidence as to the inadequacies of the inspection.
¶ 46. I would remand this cause to the circuit court for a determination of whether, under all the circumstances, the County exercised due care in its inspection and representation. If the County wishes to *172file a summary judgment motion based on the lack of evidence that it failed to conduct its inspection in violation of due care, it may do so. We should not create such a motion for the County and by doing so refuse to give the third-party plaintiffs an opportunity to refute it.
¶ 47. For the reasons stated, I dissent.
Although the majority opinion continually uses the words "visual inspection," the federal regulations refer to "an inspection"; it is not specifically limited to a visual inspection.
As the Gritzner opinion went on to discuss, "even when a duty of care exists and the other elements of negligence have been established, public policy considerations may preclude liability." Gritzner v. Bubner, 2000 WI 68 at ¶ 24, 235 Wis. 2d 781, 611 N.W.2d 906. However, there has been no argument of such a public policy limitation in this case.
The Wisconsin Jury Instructions make clear that:
A person is negligent when [he or she] fails to exercise ordinary care. Ordinary care is the care which a reasonable person would use in similar circumstances. A person is not using ordinary care and is negligent, if the person, without intending to do harm, does something (or fails to do something) that a reasonable person would recognize as creating an unreasonable risk of injury or damage to a person or property.
*171Wis JI — Civil 1005. See also Rockweit v. Senecal, 197 Wis. 2d 409, 419, 541 N.W.2d 742 (1995) ("Each individual is held, at the very least, to a standard of ordinary care in all activities.").