(dissenting). I respectfully dissent from the majority's conclusion that public policy does not bar this action. Additionally, and at the very least, this *821action — irrespective of the public policy issue — should be remanded for a new trial.
H-1
Although, as explained below in part II., I believe the majority opens a Pandora's box of potential problems by placing liability on hospital personnel under these circumstances, there is an additional and equally fundamental reason why this judgment should not stand. The jury found the County liable because the County's hospital failed to exercise ordinary care to restrain Boles pending diagnosis and evaluation. Yet, the jury was never told of the severe limits on the hospital's right to restrain her.
Under Wisconsin law, persons must exercise "ordinary care" in the course of their activities so as to avoid injury or harm to others or to the property of others. See Schuster v. St. Vincent Hosp., 45 Wis. 2d 135, 141, 172 N.W.2d 421, 423-424 (1969). A person who fails to exercise ordinary care will generally be liable for any resulting loss. See Thomas v. Kells, 53 Wis. 2d 141, 144, 191 Wis. 2d 872, 873-874 (1971).1 "The duty of ordinary care is simply that of the 'reasonable man' under the circumstances." St. Vincent, 45 Wis. 2d at 141, 172 N.W.2d at 424 (emphasis supplied). Here, although the jury was given general instructions on negligence, it was not told about the legal restrictions on what the hospital could do.
*822The law in this state is clear. A person suspected of mental illness and who has not committed a crime may not be involuntarily detained unless:
— there is a "substantial probability of physical harm" to that person "manifested by evidence of recent threats of or attempts at suicide or serious bodily harm"; or
— there is a "substantial probability of physical harm to other persons as manifested by evidence of recent homicidal or other violent behavior" by that person or there is "evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them, as evidenced by a recent overt act, attempt or threat to do serious physical harm" by that person; or
— there is a "substantial probability of physical impairment or injury to" that person "due to impaired judgment, as manifested by evidence of a recent act or omission"; or
— there is a "substantial probability" that a person will die or suffer serious physical injury or impairment because he or she is unable to provide for the basic necessities of life "as manifested by a recent act or omission."
Sec. 51.15(l)(a)l-4, Stats. Significantly, in connection with the only possible basis for Boles' involuntary detention under the facts of this case, the statute provides that there is not a "substantial probability of physical impairment or injury" to a person "if reasonable provision for the individual's protection is available in the community and there is a reasonable probability that the individual will avail himself or herself of these services . . .." Sec. 51.15(l)(a)3, Stats. As the majority recog*823nizes, although Boles had a history of mental illness, she was apparently able to live in the community without significant threat to either her well-being or the safety of those with whom she had contact. See majority op. at 816.
Unless any of the prerequisites to emergency detention set out in sec. 51.15(1), Stats., and summarized above, were met, Boles was free to leave the hospital at any time.2 Indeed, approximately twenty-five minutes after her admission, Boles told a nurse that she felt better and wanted to go home. Boles left the hospital about an hour and twenty minutes later. Whether the hospital personnel violated a duty of ordinary care in permitting her to leave should not have been decided without reference to the attending circumstances: the legal limits of their authority set out in sec. 51.15(1), Stats.
II.
Every person in this state has an obligation to exercise ordinary care and is generally liable for injuries or damage that result from a breach of that obligation as long as any harm is foreseeable "even though the nature of that harm and the identity of the harmed person or harmed interest is unknown at the time of the" breach. A.E. Inv. Corp. v. Link Builders, Inc., 62 Wis. 2d 479, 483, 214 N.W.2d 764, 766 (1974). Liability may, however, be precluded by overriding considerations of public policy. Altenberg, 144 Wis. 2d at 240, 424 N.W.2d at 166. Among the factors to be considered are:
*824(1) the injury is too remote from the negligence; or
(2) the injury is too wholly out of proportion to the culpability of the negligent tort-feasor; or
(3) in retrospect it appears too highly extraordinary that the negligence should have brought about the harm; or
(4) allowance of recovery would place too unreasonable a burden on the negligent tort-feasor; or
(5) allowance of recovery would be too likely to open the way for fraudulent claims; or
(6) allowance of recovery would enter a field that has no sensible or just stopping point.
Id. at 242-243, 424 N.W.2d at 167 (quoting Garrett v. City of New Berlin, 122 Wis. 2d 223, 233-234, 362 N.W.2d 137, 143 [1985]).
Holding hospital personnel liable for their failure to temporarily restrain persons under the circumstances present here and irrespective of the limits imposed by sec. 51.15(1), Stats., violates public policy for two reasons. First, it enters "a field that has no sensible or just stopping point." See id. at 243, 424 N.W.2d at 167. Second, it conflicts with the legislatively expressed policy of this state that no person should be temporarily detained against his or her will unless the specific — and, indeed, drastically narrow — prerequisites set out in sec. 51.15(1)(a), Stats., are satisfied.
A.
Pertinent to any analysis of whether public policy bars this action is Altenberg, which similarly concerned an attempt to impose liability for the alleged failure to *825properly treat a mentally ill person. There, the trial court dismissed a complaint seeking to recover damages sustained as the result of an automobile accident in which Gwendolyn Schuster was injured and Edith Schuster, her mother, was killed. Id. at 226-227, 424 N.W.2d at 160-161. Edith Schuster was driving at the time of the accident and had been a patient under the care of Dr. Barry M. Altenberg, a psychiatrist. Ibid. The complaint alleged that Dr. Altenberg was negligent "in his management and care for Edith Schuster in failing to recognize or take appropriate actions in the face of her psychotic condition, including failing to seek her commitment, to modify her medication, to alert and warn the patient or her family of her condition or its dangerous implications . . .." Id. at 226, 424 N.W.2d at 160. The Wisconsin Supreme Court reversed, holding that the complaint stated claims under Wisconsin law for each allegation of negligence and that public policy did not bar the action. Id. at 262, 424 N.W.2d at 175. It cautioned, however, "that there may in this or in other cases, as developed in a full trial, nevertheless exist circumstances, such as where the injury is 'too remote' from the negligence, in which public policy mandates against the imposition of liability." Ibid. The court, however, apparently did not consider the "no sensible or just stopping point" prong of the public-policy analysis since that point was neither discussed in the decision nor argued in the briefs.
Unlike the situation in Altenberg, the facts here have been developed in a full trial. These facts raise serious questions as to how far the courts of this state should go in imposing liability for consequences that are only arguably foreseeable.
Liability was imposed on Milwaukee County because the jury found that the failure of county personnel to prevent Boles from leaving the hospital was a *826substantial factor in her death that afternoon. Would the result have been different if Boles had been killed the next day? A month later? A year later? Even if the fatal confrontation with an automobile had been a year or more after the failure to detain Boles, it could be argued that that initial failure and the concomitant lack of appropriate treatment were substantial factors in her death. The underlying principle of the majority decision would even impose liability if hospital personnel do not forcibly detain physically ill persons who want to leave and are then injured as a result. The danger is apparent: we are entering "a field that has no sensible or just stopping point." See Altenberg, 144 Wis. 2d at 243, 424 N.W.2d at 167.
B.
Whether we agree with the procrustean prerequisites to the emergency detention of persons thought to be mentally ill — and I believe they are too limiting, see, e.g., Hendrickson, They Ask Why, The Milw. J., Jan. 29, 1989 (Wisconsin Magazine) at 5,— sec. 51.15(1), Stats., until modified or repealed, reflects the public policy of this state as codified by the legislature. Cases seeking recovery for damages resulting from an alleged negligent failure to detain will be brought where the sec. 51.15(1) prerequisites to emergency detention may, or may not, be present. Indeed, on the record before this court, these prerequisites are not present here.3 By ruling that sec. 51.15(1), Stats, is not relevant to a determination of whether the duty of ordinary care has been fulfilled, the majority in effect holds that there are circumstances where hospital personnel must violate the law in order to be free from negligence. This is clearly against public *827policy. It also places hospital personnel in a no-win situation. They must choose between the Scylla of tort liability for failure to detain and the Charybdis of tort liability for unwarranted detention. That, too, is something the law should not tolerate.
The Supreme Court has recently reiterated that " '[p]ublic policy considerations may preclude liability.' " Schuster v. Altenberg, 144 Wis. 2d 223, 240, 424 N.W.2d 159, 166 (1988) (quoting Morgan v. Pennsylvania Gen. Ins. Co., 87 Wis. 2d 723, 737, 275 N.W.2d 660, 667 (1979)). The impact of public policy considerations on this case is discussed in part II.
While the prerequisites to Boles' emergency detention do not appear in the appellate record, the trial court's determination that sec. 51.15(1), Stats, was not relevant may have led counsel not to introduce evidence on this point.
But see footnote 2.