Wis JI-Civil 1385.5

Question _____ asks if (hospital) was negligent in caring for (plaintiff)?

A hospital is responsible for the negligence of its employees. A hospital employee is

negligent when (he) (she) fails to use reasonable care in providing for the hospital's patients.

Reasonable care is that care which a person of ordinary intelligence and prudence would

provide under the same or similar circumstances considering a patient's physical and mental

condition.

A hospital has the duty to restrain or guard a patient only if employees knew, or in the

exercise of reasonable care should have known, the propensity of the patient for (suicide,

escape, self injury). In determining whether (employee[s]) knew or should have known of the

possibility of (suicide, escape, self injury) you should consider information received by

(employee[s]) from the attending physician, members of the family, persons who brought the

patient to the hospital, the conduct and statements of the patient while in the hospital, as well

as all the circumstances under which the patient was admitted to the hospital.

If, after consideration of all of the evidence, you find that (employee[s]) (was) (were)

negligent, then (hospital) was negligent.

Question ____ asks whether at the time of the incident causing injury to (plaintiff) the

(hospital) did know or should have foreseen the particular risk of harm that led to (plaintiff)'s

injury. In determining whether the employee(s) of (hospital) knew or should have foreseen

the particular risk of harm, you should consider information received by the employee(s)

from the attending physician, the conduct and statements of (plaintiff) while in the hospital,

as well the circumstances under which (plaintiff) was admitted to the hospital. A hospital is

under no duty to take special precautions when there is no reason to anticipate the particular

risk of harm. To answer this question "yes," you must be satisfied by the greater weight of the

credible evidence, to a reasonable certainty, that the employee(s) of the hospital knew or

should have foreseen the particular risk of harm to (plaintiff) from (suicide, escape, self-injury).

Question ____ asks whether (plaintiff) was negligent with respect to (his) (her) safety.

Generally, every person in all situations has a duty to exercise ordinary care for his or her

own safety. 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 (himself)(herself).

This general rule of ordinary care is modified where the plaintiff has a mental

disability, is under the custody and control of a hospital, and the hospital is negligent in not

foreseeing a particular risk of harm in caring for the plaintiff. In these circumstances,

plaintiff's duty to exercise ordinary care for his or her own safety is that of a reasonable

person with the plaintiff's mental disability in similar circumstances.

There are circumstances in which mentally disabled persons are as able to appreciate

danger as any other person and are able to control their actions. You must consider

(plaintiff)'s mental state at the time of the accident. (Plaintiff) is negligent if (plaintiff) did

something or failed to do something that a reasonable person with (plaintiff)'s mental

disability would recognize as creating an unreasonable risk of harm.

Question ____ asks whether (plaintiff) was totally unable to appreciate the risk of

harm that led to (his)(her) injury and the duty to avoid that risk.

This question asks you to consider (plaintiff)'s mental state at the time of the accident,

including the capacity of (plaintiff) to appreciate (his)(her) own conduct. (Plaintiff) has the

burden of proof to satisfy you by the greater weight of the credible evidence, to a reasonable

certainty, that (he)(she) was utterly incapable of conforming (his)(her) conduct to the

standard of ordinary care.

In answering this question, you should consider any observations of (plaintiff) noted

by the attending physician, members of the family or persons who brought (plaintiff) to the

hospital; (plaintiff)'s conduct and statements while at the hospital; the circumstances under

which (plaintiff) was admitted to the hospital, including any diagnosis; and all other evidence

received at trial bearing on (plaintiff)'s condition at the time of the accident.

[Insert where applicable: The evidence indicates that (plaintiff) was involuntarily

committed. This does not necessarily establish that (he)(she) was so mentally disabled that

(he)(she) lost (his)(her) mental capacity to appreciate the risk of harm from (his)(her) own

conduct and the duty to avoid it. You must decide whether (plaintiff)'s mental disability

which resulted in (his)(her) commitment was such that (plaintiff) was rendered incapable of

appreciating the risk of harm and the duty to avoid that risk.]

SPECIAL VERDICT

Question 1: Was (defendant) negligent in caring for (plaintiff)?

Answer: ____________

Yes or No

If you answered Question No. 1 "Yes" then answer Question No. 2. If you answered Question

No. 1 "No" do not answer any other Questions.

Question 2: Was (defendant)'s negligence a cause of (plaintiff)'s injury?

Answer: ____________

Yes or No

If you answered Question No. 2 "Yes" then answer Question No. 3. If you answered Question

No. 2 "No" do not answer any other Questions.

Question 3: At the time of the incident causing injury to (plaintiff) was (he) (she) in

the custody and control of (defendant)?

Answer: ____________

Yes or No

If you answered Question No. 3 "Yes" then answer Question No. 4. If you answered

Question No. 3 "No" then go to Question No. 7.

Question 4: At the time of the incident causing injury to (plaintiff), did (defendant)

know or should (defendant) have foreseen the particular risk of harm

that led to (plaintiff)'s injury?

Answer: ____________

Yes or No

If you answered Question No. 4 "Yes" then answer Question No. 5. If you answered Question

No. 4 "No" then go to Question No. 7.

Question 5: Was (plaintiff) negligent with respect to (his)(her) safety? *

Answer: ____________

Yes or No

If you answered Question No. 5 "Yes" then answer Question No. 6. If you answered Question

No. 5 "No" then go to Question No. 10.

Question 6: Was (plaintiff) totally unable to appreciate the risk of harm that led to

(his) (her) injury and (his) (her) duty to avoid that risk?

Answer: ____________

Yes or No

If you answered Question No. 6 "Yes" then go to Question No. 10. If you answered Question

No. 6 "No" then go to Question No. 8.

Question 7: Was (plaintiff) negligent with respect to (his) (her) safety? **

Answer: ____________

Yes or No

If you answered Question No. 7 "Yes" or Question No. 6 "No," then answer Question No. 8.

If not, go to Question No. 10.

Question 8: Was (plaintiff)'s negligence a cause of (his) (her) injury?

Answer: ____________

Yes or No

If you answered "Yes" to Question Nos. 2 and 8, then answer this question. If not, go to

Question No. 10.

Question 9: Taking the total negligence that caused (plaintiff)'s injury to be 100%,

what percentage do you attribute to:

a. Plaintiff __________%

b. Defendant __________%

TOTAL 100%

If you answered Question No.2 "Yes" then answer this question. Otherwise do not answer it.

Question 10: What sum of money will fairly and reasonably compensate (name of

plaintiff) for (his) (her) injury?

$____________

* Subjective negligence standard

** Objective negligence standard