author: SCHUDSON, J.

text:
    Debra M. Wikel, Plaintiff-Appellant, v. State of Wisconsin Department of Transportation, Defendant-Respondent.
    Court of Appeals

      No. 00-3215.

      Submitted on briefs July 6, 2001. —
    Decided August 7, 2001.

    2001 WI App 214
    (Also reported in 635 N.W.2d 213.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs oí Alan Marcuvitz and Robert L. Gordon of Weiss, Berzowski, Brady & Donahue, LLP, of Milwaukee.
    On behalf of the defendant-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Frank D. Remington, assistant attorney general.
    Before Wedemeyer, PJ., Fine and Schudson, JJ.
   SCHUDSON, J.

¶ 1. Debra M. Wikel appeals from the circuit court order dismissing her petition for inverse condemnation against the Wisconsin Department of Transportation. She argues that the court erred in concluding that her petition failed to state a claim for inverse condemnation. Wikel is correct and, therefore, we reverse.

I. BACKGROUND

¶ 2. Wikel brought a petition for inverse condemnation under Wis. Stat. § 32.10 (1997-98), which states, in relevant part:

Condemnation proceedings instituted by property owner. If any property has been occupied by a person possessing the power of condemnation and if the person has not exercised the power, the owner, to institute condemnation proceedings, shall present a verified petition to the circuit judge of the county wherein the land is situated asking that such proceedings be commenced. The petition shall describe the land, state the person against which the condemnation proceedings are instituted and the use to which it has been put or is designed to have been put by the person against which the proceedings are instituted. ... The petition shall be filed in the office of the clerk of the circuit court and thereupon the matter shall be deemed an action at law and at issue, with petitioner as plaintiff and the occupying person as defendant. The court shall make a finding of whether the defendant is occupying property of the plaintiff without having the right to do so.

Section 32.10 "is designed to protect property owners against the slothful actions of a condemnor which, having constructively taken an owner's property, is in no hurry to compensate the owner." Maxey v. Redevelopment Auth. of Racine, 94 Wis. 2d 375, 393, 288 N.W.2d 794 (1980).

¶ 3. According to Wikel's petition, the Department, in the course of planning State Trunk Highway 794 (known as the "Lake Parkway"), determined that a portion of the backyard of her residential property would be needed for construction of a retaining wall to prevent groundwater from entering the new highway. Accordingly, the Department condemned a five-foot strip of land at the back of her property, obtaining fee title to that strip, and also obtained three easements (from the new back border of Wikel's property, resulting from the Department's acquisition of the five-foot strip): a fifty-foot permanent limited easement for construction related to the highway's retaining wall; a ten-foot permanent limited easement for construction and maintenance of utility poles and lines; and a twenty-five foot temporary limited easement for construction of the retaining wall, and for construction and maintenance of temporary utility poles and lines. Wikel accepted the $4000 the Department awarded her for the acquisition of her property and the three easements.

¶ 4. Wikel's petition alleged that she accepted the award in reliance on the Department's representation that the construction "would be satisfactorily completed, with no damage to or alteration of [her property] beyond that specifically identified" by the Department in connection with the acquisition and the easements. The petition further alleged, however, that the construction caused "extensive cracks and other structural damages, including flooding damage" to the Wikel residence, rendering it "uninhabitable and unsaleable," and resulting in a "total, permanent taking" without just compensation.

¶ 5. The Department moved to dismiss Wikel's petition. The circuit court, in a brief oral decision, commented that the case was a "difficult" one in which its "natural sympathies ... go with the home owner." The court stated that Wisconsin Power & Light Co. v. Columbia County, 3 Wis. 2d 1, 87 N.W.2d 279 (1958), "comes closest to supporting [Wikel's] petition" and "does include some language which is favorable to her" but, granting the Department's motion, concluded that "the kind of damage that is described in the petition does not rise to that level" envisioned as a taking by Wisconsin Power.

II. DISCUSSION

¶ 6. The standard for reviewing whether a circuit court correctly dismissed a complaint was recently reiterated by the supreme court:

"A motion to dismiss a complaint for failure to state a claim tests the legal sufficiency of the complaint." Whether the complaint states a claim for relief is a question of law which [an appellate court] reviews de novo. For purposes of review, we must accept the facts stated in the complaint, along with all reasonable inferences which may be drawn from them, as true. Unless it seems certain that no relief could be granted under any set of facts that the plaintiff could prove, dismissal of the complaint is improper.

Wausau Tile, Inc. v. County Concrete Corp., 226 Wis. 2d 235, 245, 593 N.W.2d 445 (1999) (citations omitted); see also Wagner v. Dissing, 141 Wis. 2d 931, 936, 416 N.W.2d 655 (Ct. App. 1987) (holding that because pleadings are to he liberally construed, court should grant motion to dismiss only when it is " 'clear that under no conditions can the plaintiff recover1") (quoted source omitted).

¶ 7. The Department concedes that Wikel's petition "may certainly be read to complain that the State damaged [her] property," but contends that it should not be read to complain "that her home or her land were [sic] taken by the construction of the Lake Parkway." The Department emphasizes that Wikel "retains title to [her property] and no other person or thing occupies her home or her yard." The Department, therefore, tries to draw a distinction between the taking of Wikel's property (the five-foot strip of her backyard) and the damaging of her property (the alleged damages to her home).

¶ 8. The Department relies on the supreme court's declaration in Wisconsin Power:

[I]t is important to observe that while the constitutions of many states provide expressly that private property shall not be taken or damaged for public use without just compensation, that of Wisconsin provides only that "the property of no person shall be taken for public use without just compensation therefor" without mention of damage.

Wis. Power, 3 Wis. 2d at 6 (citations omitted). Wisconsin Power, however, actually supports Wikel's position.

¶ 9. In Wisconsin Power, the supreme court provided numerous examples of actions affecting property in an effort to explain the differences between situations "where damage to property constitutes a taking for public use for which the constitution requires just compensation to be paid," and situations "in which mere damage to property by a governmental agency, even though approaching destruction, is not a taking in the constitutional sense." Id. at 5-7. While the supreme court declined to "locate precisely the line" between the two, id. at 7, the court did discuss certain criteria by which courts can discern the differences, all of which support Wikel's claim in this case: the Department "intended to invade or affect plaintiffs property," see id. at 4; "forces set in motion by [the Department] . . . damaged [Wikel's property] to an extent which destroyed its utility," see id.; Wikel had ownership interest in the land, see id.; title and possession of a portion of Wikel's land were appropriated by the Department, see id.; the acquisition of Wikel's land had "utility, direct or indirect, to the highway project," see id. at 7; and the public "obtained . . . benefit" from the land the Department acquired, see id.

¶ 10. Thus, as Wikel correctly argues, her circumstances are comparable to those of the plaintiff, an electrical utility company, in Public Service Corp. v. Marathon County, 75 Wis. 2d 442, 249 N.W.2d 543 (1977). There, the supreme court concluded that a compensable taking had occurred where the county, enlarging its airport, compelled the utility to remove overhead power lines and place them underground. The supreme court explained:

The removal of the power lines was important in the overall plan of enlarging the airport; the county needed the land on which the lines rested; it intended to affect the power lines; the removal of the lines was intén-tional, not accidental; the public benefited from the enlarged airport which necessitated the removal of the power lines.

Id. at 448. Much the same could be said here. The five-foot strip and the easements were "important in the overall plan" of building the Lake Parkway; the Department "needed the land" in Wikel's backyard; the Department "intended to affect" Wikel's land; the work on Wikel's land "was intentional, not accidental"; and "the public benefited from the [Lake Parkway] which necessitated" the acquisition of Wikel's property and the easements.

¶ 11. Still, the Department contends that Wikel's petition is insufficient because it fails to establish either that the government has occupied the alleged damaged property (her home), or that "the property is valueless or that a subsequent purchaser could make no other use of the property." The Department's contentions have no merit.

¶ 12. Article I, Section 13 of the Wisconsin Constitution provides, "The property of no person shall be taken for public use without just compensation therefor." "Land may be taken for public purposes, within the meaning of the constitutional provision, without actual occupancy or seizure by the taker." Wis. Power, 3 Wis. 2d at 4; see also Eberle v. Dane County Bd. of Adjustment, 227 Wis. 2d 609, 621, 595 N.W.2d 730 (1999) ("A 'taking' need not arise from an actual physical occupation of land by the government."); Pub. Serv. Corp., 75 Wis. 2d at 449 (rejecting argument that no taking occurred because utility "retained its property interest").

¶ 13. The Department concedes that "[t]he difference between compensable damages and non[- ] compensable damages depends upon the degree of residual usefulness or utility." In a puzzling argument, however, the Department asserts that Wikel's petition "does not state a claim of consequences so severe that the cause, the government's actions, constitute a taking compensable under the law." But Wikel alleges that the degree of residual usefulness or utility was zero. What consequences could be more severe than loss of one's home?

¶ 14. The Department maintains, however, that Wikel has not shown that her land, even if uninhabitable, could not be used for some other purpose. Wikel replies that the property is "a single residential lot zoned for a single family dwelling." Although Wikel's petition does not refer to the zoning of South Ellen Street, where her home is located, it repeatedly refers to her "residence," the "residential properties on South Ellen Street," and the communication between the Department and the owners of the "Ellen Street Homes." That, in combination with Wikel's allegation that her property had been rendered "uninhabitable and unsaleable," leads to the logical inference that the property's only or primary use was residential. The Department's speculation that the property, even if uninhabitable as a result of the construction, could come to be used for some non-residential purpose, certainly does not undermine that inference or defeat Wikel's claim.

¶ 15. The Department also asserts that Wikel's petition offers nothing to show that her property was rendered truly uninhabitable and unsaleable, and that her petition is suspect given that it alleges that her home suffered damage more than one year after the highway construction was completed. This is the pleading stage, however; factual issues of damage and causation are properly deferred to the summary judgment and/or trial stage.

¶ 16. As even the Department's brief explains:

Plaintiffs petition can be distilled to the following: before the State built the Lake Parkway she did not have problems, but after the State built the Lake Parkway plaintiffs residence suffered from cracks and other structural damages, including flooding damage. Before the State built the Lake Parkway her property was habitable and saleable, but after the State built the Lake Parkway her[] home became uninhabitable and unsaleable.

Exactly. And Wikel's petition also claims that the State actually took part of her property and that the taking and the work related to that property caused the complete devaluation and, therefore, the "total, permanent taking" of her property. See Wis. Power, 3 Wis. 2d at 6 ("[Destruction of property or such damage as to render it worthless may be a taking of the property, depending on the circumstances. . . .").

¶ 17. While the Department may maintain that it accomplished only a limited taking consisting of the five-foot-strip acquisition and the easements, and that it did not cause the consequential damages Wikel alleges, Wikel is entitled to the opportunity to prove her allegation that the Department's actions rendered her property "uninhabitable and unsaleable" and, therefore, constituted a "total, permanent taking." "When determining whether art. I, § 13 is triggered by factual allegations concerning a particular piece of property, the threshold inquiry is whether the property has been 'taken.'" Eberle, 227 Wis. 2d at 621. In this case, Wikel's petition pulls the trigger and, therefore, the inquiry must proceed.

By the Court. — Order reversed.

       "Inverse condemnation is a procedure where a property owner petitions the circuit court to institute condemnation proceedings." Koskey v. Town of Bergen, 2000 WI App 140, ¶ 1 n.1, 237 Wis. 2d 284, 614 N.W.2d 845, review denied, 2000 WI 121, 239 Wis. 2d 311, 619 N.W.2d 93.


source: Caselaw Access Project

author: BROWN, J.

license: Public Domain

text:
    Lori Hofflander, Plaintiff-Appellant, Milwaukee County Department of Human Services, Plaintiff-Co-Appellant, v. St. Catherine's Hospital, Inc., Sentry Insurance, a Mutual Company, Patients Compensation Fund, Horizon Mental Health Management, Inc. and Columbia Casualty Company, Defendants-Respondents.

    Court of Appeals

      No. 00-2467.

      Submitted on briefs June 6, 2001. —
    Decided August 8, 2001.

    2001 WI App 204
    (Also reported in 635 N.W.2d 13.)

      On behalf of the plaintiff-appellant Lori Hofflander, the cause was submitted on the briefs of Jerome A. Hierseman of Gray & End, L.L.P. of Milwaukee.
    On behalf of the plaintiff-co-appellant Milwaukee County Department of Human Services, the cause was submitted on the brief of Louis Edward Elder, principal assistant corporation counsel.
    On behalf of the defendants-respondents St. Catherine's Hospital, Inc., Sentry Insurance, and Patients Compensation Fund, the cause was submitted on the briefs of John A. Nelson and Timothy W. Feeley of von Briesen, Purtell & Roper, S.C. of Milwaukee.

      On behalf of the defendants-respondents Horizon Mental Health Management, Inc., and Columbia Casualty Company, the cause was submitted on the briefs of John K. Hughes of Gessler, Hughes & Socol, Ltd. of Chicago, Illinios.
    Before Nettesheim, EJ., Brown and Snyder, JJ.

       Petition to review granted 11-27-01.

       Petition for cross-review granted 11-27-01.

   BROWN, J.

¶ 1. Lori Hofflander brought negligence and safe place claims against St. Catherine's Hospital, Inc. and its insurer, Sentry Insurance (St. Catherine's) for injuries she sustained when she fell from a third-floor window of a locked psychiatric unit. The other defendants in this case are Horizon Mental Health Management, Inc. and its insurer, Columbia Casualty Company (Horizon). The trial court granted summary judgment in favor of St. Catherine's and Horizon, ruling that the "custody and control" rule enunciated in Jankee v. Clark County, 2000 WI 64, 235 Wis. 2d 700, 612 N.W.2d 297, did not apply to Hofflander because the health care providers could not have foreseen the particular manner in which she injured herself. The trial court then found that Hofflander's negligence exceeded the negligence of the health care providers as a matter of law. We determine, however, that the Jankee foreseeability prong requires only that the risk of elopement be foreseeable, not the manner of the elopement. Moreover, our independent review of the record reveals that the facts and the reasonable inferences to be drawn from them regarding the foreseeability of Hofflander's elopement are in dispute and therefore summary judgment is not appropriate. We further determine that there are disputed material facts regarding whether an unsafe condition existed in the hospital at the time these events commenced, rendering this issue also inappropriate for summary judgment.

¶ 2. Hofflander also challenges a pretrial order barring discovery of certain hospital records. We affirm the trial court's determination that the records are privileged peer review documents under Wis. Stat. § 146.38 (1999-2000).

Facts

¶ 3. On December 28, 1996, City of Kenosha police responded to a call regarding a suicidal person. Family and friends identified the person as Hofflander and informed the officers of their concern for her safety. Hofflander's friend, Pam Stewart, indicated that Hof-flander had threatened to kill herself by taking an overdose of Valium, that she had been distraught over losing custody of her children and her drunk driving convictions, and that she desperately needed help. Hofflander's former husband indicated that Hofflander had called him threatening to kill herself in one hour. The police observed that Hofflander was uncooperative and had erratic mood swings. The officers took Hof-flander into custody and transported her to St. Catherine's, where she was involuntarily admitted pursuant to Wis. Stat. ch. 51.

¶ 4. Dr. Ligay Ilagan-Newman completed a history and physical examination report the next day. Ilagan-Newman's impression included dysthymia and borderline personality disorder. She noted that "suicide precaution initially ordered, now discontinued." She further noted that "[t]he patient at this time is anxious to leave the facility because she wants to relocate herself into a smaller apartment for financial reasons."

¶ 5. Hofflander was placed in room 307 on the third floor of St. Catherine's psychiatric unit. St. Catherine's contracts with Horizon to manage that unit. In other words, Horizon managers supervise St. Catherine's staff and develop and implement policies and procedures pertaining to the unit. Some of the safety policies included patient rounds on an hourly basis during the day and every half hour at night, special suicide and elopement precautions, and an environmental round on every shift to check for unsafe conditions. Windows were fitted with Lexon coverings to prevent patient access, and air conditioning units were affixed with safety screws.

¶ 6. During the course of Hofflander's two-day admission to St. Catherine's, she exhibited volatile and uncooperative behavior. Examples of this behavior are reflected in nurses' notes contained in the medical record and will be discussed in more detail later in this opinion. The parties do not dispute that at some point during Hofflander's stay at St. Catherine's, she made a decision to escape. Because of the relevant nature of these events, we will now describe in detail the circumstances just prior to Hofflander's attempted elopement.

¶ 7. At approximately 5:15 p.m. on December 30, 1996, Dr. Ashok Shah interviewed Hofflander. Shah found her to be alert with labile affect, irritable and sarcastic. She denied having drug and alcohol problems despité a positive drug screening. Shah did not believe she had suicidal ideation. The interview ended at about 5:45 p.m., at which time he entered a note of his plan to decrease her Valium, continue Prozac and allow Hof-flander to sign for voluntary outpatient treatment once stable. Shah then asked nurse Cathy Witheril to check on Hofflander because she was irritable.

¶ 8. At Shah's request, Witheril went to Hofflander's room and discovered her putting on her high-top black shoes with laces she had made by tearing strips from a bed sheet. Witheril removed the shoes and laces, observing that otherwise Hofflander's room looked undisturbed. Five minutes later, Hofflander appeared at the nurses' station asking for her make-up. Shah directed the nurses not to give Hofflander any glass objects and the make-up was dispensed into a medicine cup. The nurses observed Hofflander taking phone numbers from her purse and going to the telephone lounge.

¶ 9. According to Hofflander, she had telephoned Stewart to bring her car to the hospital because she was planning to escape. She then went to room 309 because a patient, not the occupant of that room, had told her there was a loose air conditioning unit in the window. She pulled the air conditioner toward her and it crashed to the floor. Hofflander testified that at that point she panicked, thinking she might get caught, so she peeked out the door to see if anyone was coming. She saw no one. She then tied some bed sheets together, affixing one end to the corner of the window. As she attempted to exit the window and climb down, she lost her grip and fell from the third-story window. Apparently, Hof-' flander attempted to elope within fifteen to twenty minutes of her. conversation with Shah. Nurses who found her testified that she had a bed sheet tied around her ankle. She suffered multiple injuries, including a ruptured spleen and fractures to her ribs, pelvis and arm.

¶ 10. Hofflander filed suit against St. Catherine's and Horizon, alleging negligence and safe place violations. Following discovery, St. Catherine's and Horizon filed motions for summary judgment asserting that Hofflander's negligence precluded her from recovery as a matter of law and that the safe place statute was inapplicable in this case. Initially, the trial court granted Horizon's motion on the safe place issue only. After the supreme court issued its ruling in Jankee, Horizon and St. Catherine's renewed their motions for summary judgment. Hofflander moved for partial summary judgment asserting that the "custody and control" rule set forth in Jankee applied to her, thereby expunging contributory negligence as a defense. After a hearing, the trial court granted the motions of the health care providers, concluding that Hofflander's conduct was not foreseeable and therefore the "custody and control" rule did not apply. It further determined that Hofflander's negligence exceeded the health care providers' negligence as a matter of law. Finally, the trial court determined that the safe place statute was inapplicable because Hofflander was a trespasser at the time of her escape attempt and, in addition, the statute does not encompass a person's negligent acts.

¶ 11. The review of a summary judgment motion is a question of law that we consider de novo. Jankee, 2000 WI 64 at ¶ 48. Wisconsin Stat. § 802.08(2) provides that summary judgment shall be rendered when no genuine issue as to any material fact exists and the moving party is entitled to judgment as a matter of law. We will reverse a summary judgment if a review of the record reveals that disputed material facts exist or undisputed material facts exist from which reasonable alternative inferences may be drawn. See Grams v. Boss, 97 Wis. 2d 332, 338, 294 N.W.2d 473 (1980).

Application of the Jankee "Custody and Control" Rule

¶ 12. The pivotal issue here is whether the "custody and control" rule set forth in Jankee can apply to these facts, thereby eliminating Hofflander's contributory negligence as an affirmative defense. We begin our analysis with a discussion of that recent case.

¶ 13. Emil Jankee was admitted to a locked, long-term care facility on the basis of a domestic violence incident. Jankee, 2000 WI 64 at ¶ 17. Shortly after his admission, he decided to escape from the facility by prying open a window in his third-floor room. Id. at ¶ 37. He managed to squeeze out the window, but then fell from a brick ledge to the ground below. Id. at ¶ 39.

¶ 14. With respect to the standard of care, the supreme court adopted the general rule that an objective, reasonable person standard of care applies to a mentally disabled plaintiff. Id. at ¶ 88. It then ruled that Jankee's contributory negligence exceeded the negligence of the health care providers as a matter of law because Jankee failed to adhere to his medication program, which triggered a foreseeable relapse of his mental illness, and he was the major cause of his own injuries. Id. at ¶¶ 88-89.

¶ 15. The court next considered whether the facility's custody and control of Jankee created a duty for the facility that overrode Jankee's duty to exercise ordinary care for his own safety. Id. at ¶ 91. Under the "custody and control" rule fashioned by the court, a mentally disabled plaintiff may expunge the affirmative defense of contributory negligence if: (1) a special relationship existed, giving rise to a heightened duty of care, and (2) the caregiver could have foreseen the particular injury that is the source of the claim. Id. at ¶¶ 92-93. If a special relationship existed but the caregiver could not have foreseen the injury, the affirmative defense of contributory negligence re-enters the equation. Id. at ¶ 93. Even if the injury was foreseeable, the defense of contributory negligence is available if the caregiver's exercise of care was not only reasonable but also fully responsive to the heightened duty with which the caregiver was charged. Id.

¶ 16. In applying the "custody and control" rule to the facts before it, the supreme court ruled that a special relationship exists between an involuntarily committed person and a psychiatric hospital. Id. at ¶ 94. The court then considered whether the hospital could have foreseen Jankee's escape attempt. The court noted that Jankee had no history of escape attempts, and had expressed no thoughts of elopement during his confinement. Id. at ¶ 102. Jankee's statement, "I'm tired of being used for a guinea pig around here. Why don't you kick my ass out of here instead of giving me a bunch of medication," did not alert the staff to a possible elopement. Id. Under these facts, the court concluded that Jankee had no cause of action because the caregiver, although it had a heightened duty towards Jankee, had no notice of his disposition toward escaping. Id. at ¶ 103.

¶ 17. To apply the "custody and control" rule to this case, we must determine first, if a special relationship existed and second, whether Hofflander's disposition to escape was foreseeable to the caregivers.

¶ 18. We conclude as a matter of law that there was a special relationship between St. Catherine's and Hofflander. Hofflander was admitted to the hospital as a potential Wis. Stat. ch. 51 detainee. True, the record indicates that Shah intended to allow Hofflander to sign a voluntary admission, but this information was not conveyed to Hofflander before her attempted escape. In any event, we may surmise that if Hofflander did not choose to voluntarily admit herself, then the ch. 51 proceedings would still have gone forward. The court in Jankee recognized that a special relationship will usually exist in a mental commitment facility or prison because these institutions alter expectations of responsibility for safety and may deprive persons of normal opportunities for protection. Jankee, 2000 WI 64 at ¶ 94. Because of the involuntary nature of Hofflander's confinement, we determine that a special relationship existed between her and St. Catherine's.

¶ 19. Horizon argues that it did not have a special relationship with Hofflander because it was merely the manager and not the owner of the psychiatric unit. Horizon emphasizes that all of the caregivers who attended Hofflander were St. Catherine's employees. However, we view Horizon's role as manager as strengthening the conclusion that a special relationship existed between Horizon and Hofflander. Hofflander's caregivers all reported to a Horizon manager, and the manager was responsible on a day-to-day basis for monitoring the unit regarding work and safety issues. These clinical management responsibilities form the basis of a special relationship with Hofflander giving rise to a heightened duty of care.

¶ 20. The parties differ as to what is required under the foreseeability prong of the "custody and control" rule. St. Catherine's argues that contributory negligence is expunged only if the caregiver could have foreseen the particular injury that is the source of the claim, pointing to language in Jankee that "a hospital is not an insurer of its patients against injury inflicted by themselves." Id. at ¶ 95 (citation omitted). St. Catherine's argues that the evidence does not show that the hospital could have foreseen that Hofflander would enter another patient's room, tear out the air conditioning unit and attempt to escape out a window using bed sheets as a rope. As St. Catherine's points out, minutes prior to the attempted elopement, Shah had concluded that suicide and elopement precautions were unnecessary. Moreover, St. Catherine's claims, there is no evidence of actual or constructive notice of the air conditioning unit requiring maintenance.

¶ 21. We believe that St. Catherine's reads the language of the court in Jankee too strictly. True, at one point in the opinion, the court said the particular injury must be foreseeable, id. at ¶ 93, but when the court analyzed the issue, it did not examine whether Jankee would escape in the manner he did, but rather whether he manifested the disposition to escape. "[W]e must answer the question whether [the defendant] had notice of Jankee's disposition to escape or commit suicide." Id. at ¶ 99. Similarly, the court concluded "there is no cause of action here because [the defendant] did not have notice about Jankee's disposition toward escaping." Id. at ¶ 103. This interpretation of foreseeability makes sense since the duty of a hospital is to exercise such ordinary care as the hospital knows, or should know, the patient's mental condition requires. Id. at ¶ 95. A hospital that has reason to anticipate a patient's escape is under a duty to take special precautions. Id. at ¶ 97. Therefore, we appropriately focus our inquiry on whether the facts allow for the inference that Hofflander exhibited a disposition to elope.

¶ 22. Hofflander argues that the record is replete with indications that she was an elopement risk. First, she points out that unlike Jankee, she was admitted initially as a suicide risk. Although she was removed from suicide precautions, the record indicates that throughout her stay she was uncooperative, hostile and volatile. We find the following medical notes relevant evidence of her demeanor and disposition to escape:

December 29, 1996, 0930: Patient had to be escorted from group room — loud and disruptive during group— patient attempting to escalate other patients.
December 29, 1996, 1000: Special entry: Pam Stewart ... phoned unit — she said she fears for her safety— patient is calling her and threatening her, Pam Stewart, "She called and said, I hope you're happy! When I get out of here I'll get even!" I tried to explain chapter status to [patient], she is too angry to listen.
December 29, 1996, 1130: Special entry: Patient reported to have told another patient she has a plastic glove and plans to kill herself with it. I approach patient and did see the glove on the bed — she stated, "If I want to kill myself I will! I could break out of here if I want!" Continued to be loud and disruptive at times.
December 30, 1996, 1030: [Patient] alert, oriented, hyperverbal, loud at times .. . acknowledged that she plans to "flee" as she has 5 warrants in Illinois for DUI....
December 30,1996,1440: Patient... went from smiling and calm to anxious and tearful in only a couple of minutes... . She is very concerned about the apartment she is living in, and is suppose to vacate before January 1.

¶ 23. In addition to these notations, there are the inferences to be made from the makeshift shoelaces and request for make-up just prior to the attempt, as well as Shah's instruction that Hofflander be watched more closely because she was angry. Hofflander's expert witness provided an affidavit that these facts should have made it foreseeable that Hofflander might attempt to escape. Certainly, a jury could infer that these facts taken together would alert a reasonable person to the need for stricter supervision, even though elopement precautions had not been ordered. This would in turn raise a duty on the staff to increase the monitoring of the patient. Because Hofflander was not observed going into another patient's room just minutes after being caught with shoelaces, because Hofflander was able to singlehandedly remove the air conditioning unit from the window when it was supposed to be secure, and because the crash of the unit caused no one to come running, it is possible a jury might believe that the caregivers failed to exercise the ordinary care that the hospital knows, or should know, the patient's mental condition requires.

¶ 24. We recognize that the court in Jankee found as a matter of law that the caregivers in that case could not have reasonably foreseen the patient's disposition to escape. However, we believe Jankee recognizes that material issues of fact on the question of foreseeability could exist. See id. at ¶¶ 99-103 (examining factual history in light of foreseeability factor). Unlike in Jankee, in this case there are sufficient reasonable alternative inferences that can be drawn from the facts to require adjudication by a jury. We therefore reverse the summary judgment in favor of St. Catherine's and Horizon on the issue of Hofflander's contributory negligence and remand for trial on the threshold issue of foreseeability. We will leave the structure of the verdict to the parties and the trial court. But we note that the trial court's original determination of contributory negligence as a matter of law was made without the benefit of live testimony before the court. The court may want to rethink that and submit a question of contributory negligence to the jury or fact finder depending on how the jury or fact finder answers the foreseeability issue.

Safe Place

¶ 25. As an alternative cause of action, Hofflander asserts that St. Catherine's and Horizon violated their safe place responsibilities under Wis. Stat. § 101.11(1) ("[ejvery employer and every owner of a place of employment or a public building.. . shall so construct, repair or maintain such place of employment or public building as to render the same safe"). The trial court rejected application of the safe place statute because (1) wresting the air conditioner from the window, pulling it out, and exiting onto a window sill is a trespass; (2) any unsafe condition that existed in the room was due to the negligent acts of Hofflander; and (3) lack of evidence that the caregivers had notice of the condition of the air conditioner. We reverse the trial court's order of summary judgment for the reasons described below.

¶ 26. In order for Hofflander to prevail under the safe place statute, she must prove that there was an unsafe condition, that the caregivers had either actual or constructive notice of the unsafe condition, and that the unsafe condition caused her injury. See Topp v. Cont'l Ins. Co., 83 Wis. 2d 780, 787, 266 N.W.2d 397 (1978). St. Catherine's and Horizon argue that Hof-flander was a trespasser, either when she entered another patient's room or when she climbed onto the window sill, and therefore they had no duty to repair an unsafe condition with respect to her. The less stringent duty owed to a trespasser by an owner or employer is to refrain from willfully and intentionally injuring the trespasser. Monsivais v. Winzenried, 179 Wis. 2d 758, 766, 508 N.W.2d 620 (Ct. App. 1993).

¶ 27. We do not agree that a person involuntarily committed to a locked psychiatric unit can be considered a trespasser. While it may have been against hospital policy for Hofflander to enter the room of another patient, her violation of that policy would not cause her to become a trespasser in the legal sense of that term. A trespasser is "a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor's consent or otherwise." Id. at 765 (citation omitted). Neither St. Catherine's nor Horizon cites to any case that has applied this concept of trespass to a mentally disturbed person involuntarily committed in a potential Wis. Stat. ch. 51 proceeding. We observe that psychiatric wards are often host to patients who are uncooperative, unpredictable and unable to assume the ordinary duty of self-care and protection. They may be expected to enter areas that are forbidden and potentially hazardous. Yet, if we were to follow the reasoning of St. Catherine's and Horizon, a patient who ingested quantities of drugs from an unlocked medicine cabinet would have no safe place claim because of his or her status as a trespasser. It simply is not reasonable or sound public policy to absolve a hospital from safe place liability in such circumstances.

¶ 28. Ordinarily, a person's status as a trespasser or a frequenter is a question for the jury. Monsivais, 179 Wis. 2d at 764. However, in this case we are compelled to hold that Hofflander was not a trespasser, either in another patient's room or on the window sill, as a matter of law.

¶ 29. St. Catherine's and Horizon correctly note that the safe place statute applies to unsafe conditions on the premises and not to an actor's negligent acts while on the premises. Thus, in Barth v. Downey Co., 71 Wis. 2d 775, 779-80, 239 N.W.2d 92 (1976), the supreme court held that a plaintiffs climbing into a ceiling-high duct after he had weakened its adjacent supports constituted an act that was unsafe rather than a condition that was unsafe. St. Catherine's and Horizon argue that the same logic applies to this case. Here, they assert, Hofflander's act of removing the air conditioning unit created the unsafe condition that led to her injuries. We do not agree that Barth controls the outcome of this issue.

¶ 30. We are convinced that when determining whether an unsafe condition exists on the premises, we must consider the use or purpose the premises serve. The principle of intended use has been used by courts in Michigan under a statute similar to Wisconsin's safe place statute. Hence, the supreme court of Michigan held that a jail cell, though safe for ordinary prisoners, may be defective when it is used for mental patients without being equipped with padded walls. See Lockaby v. County of Wayne, 276 N.W.2d 1, 2-3 (Mich. 1979). Similarly, a classroom, though safe for general studies, may be defective for lacking laboratory safety equipment when that room is used as a physical science room. See Bush v. Oscoda Area Sch., 275 N.W.2d 268, 273 (Mich. 1979). When we apply this approach to our case, we focus not on Hofflander's act of removing the air conditioner, but on the state of repair of the air conditioner itself. Here, there exists a question of fact for a jury to determine whether a loose air conditioning unit, located in a room used by mentally disturbed patients, was an unsafe condition and, if so, whether St. Catherine's and Horizon had constructive notice of it.

¶ 31. St. Catherine's and Horizon argue that even if the loose air conditioner was an unsafe condition, Hofflander offers no evidence of constructive notice of the condition. In fact, the record shows that the hospital's policy was to conduct environmental room checks on each shift and included in those checks would be observations regarding window units. Furthermore, the nurse responsible for the environmental check on the day of Hofflander's attempted elopement indicated that she did not check the window unit. This raises a disputed issue of fact with respect to whether St. Catherine's and Horizon should have had constructive notice of the unit's disrepair.

Discovery ofJCAHO Surveys

¶ 32. We now consider Hofflander's appeal of the trial court's pretrial ruling prohibiting discovery of Joint Commission on Accreditation of Healthcare Organizations (JCAHO) site surveys on the ground that these records were peer review documents under Wis. Stat. § 146.38. Hofflander asserts that information in those reports may be relevant to whether the hospital had constructive notice of environmental safety issues, including the security of the air conditioning unit. Whether JCAHO reports are discoverable is an issue of first impression in Wisconsin.

¶ 33. Generally, discovery disputes are addressed to the trial court's discretion. Franzen v. Children's Hosp. of Wis. Inc., 169 Wis. 2d 366, 376, 485 N.W.2d 603 (Ct. App. 1992). We will uphold a discretionary decision if the trial court applied the relevant law to the facts of record using a process of logical reasoning. Id. However, in this instance, the ultimate issue is the application of Wis. Stat. § 146.38 to the undisputed facts. That exercise presents a question of law which we review de novo. Briggs v. Farmers Ins. Exch., 2000 WI App 40, ¶ 14, 233 Wis. 2d 163, 607 N.W.2d 670, review denied, 234 Wis. 2d 178, 612 N.W.2d 734 (Wis. Apr. 26, 2000) (No. 99-1123).

¶ 34. In tandem with Wis. Stat. § 146.37, providing civil immunity to persons who conduct peer reviews, Wis. Stat. § 146.38 was "enacted to protect the confidentiality of the peer review process," and to promote frank discussion among physicians to improve the overall quality of services they provide. State ex rel. Good Samaritan Med. Ctr.-Deaconess Hosp. Campus v. Moroney, 123 Wis. 2d 89, 98, 365 N.W.2d 887 (Ct. App. 1985). Our task under the statute is to determine whether the JCAHO records are generated by a health care review program organized and operated to help improve the quality of health care. Id. at 97. In Moroney, we held that the determinations of a hospital's governing body, based on records and conclusions of peer review committees, were not privileged under this section because the decision of a governing body is one step removed from the actual peer review. Id. at 99.

¶ 35. We believe the public policy addressed in Moroney mandates the conclusion that the JCAHO reports are immune from discovery. We are further persuaded by the case law in other jurisdictions which has held that such documents are the equivalent of peer reviews that are not subject to discovery. In Niven v. Siqueira, 487 N.E.2d 937, 941 (Ill. 1985), the Illinois Supreme Court set forth the purposes of the Joint Commission and the procedures it follows:

Its basic purposes are to establish standards for the operation of health care facilities, to conduct survey and accreditation programs that encourage and assist health care facilities in the task of promoting efficient, high quality patient care, and to recognize compliance with their standards by issuance of certificates of accreditation. The Joint Commission's standards and accreditation programs are concerned with all aspects of hospital operation.
In surveying a hospital which has applied for accreditation the Joint Commission conducts an on-site survey, interviews employees, physicians, and patients of the hospital, and examines the hospital's records and files, including materials specifically protected by the Act. The survey team's report includes recommendations for improvements. A hospital's accreditation status depends in part upon the hospital's progress in remedying identified deficiencies.

¶ 36. From the above, it is clear to us that JCAHO performs functions equivalent to a peer review committee. Further, JCAHO is an association to which local hospitals voluntarily submit for review in order to improve the quality of health care services. Fretz v. Keltner, 109 F.R.D. 303, 311 (D. Kan. 1985). We are in agreement with the courts in Fretz and Niven that this embraces the core of the protection offered by the statute. Wisconsin Stat. § 146.38 is designed to encourage candid and voluntary studies and programs used to improve hospital conditions and patient care. We also agree with St. Catherine's that allowing discovery of JCAHO reports would discourage hospitals from seeking accreditation, thereby depriving them of an impartial and objective review of the services they provide. Therefore, we affirm the trial court's ruling that § 146.38 bars discovery of the JCAHO materials.

By the Court. — Judgments reversed and causes remanded with directions; order affirmed; order vacated.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.
      Milwaukee County Department of Human Services is a party in this case as a subrogee to Hofflander. The trial court's judgments in favor of St. Catherine's and Horizon included the taxation of costs against Milwaukee County. Milwaukee County filed a motion in opposition to the taxation of costs. After a hearing, the trial court issued an order denying the motion and Milwaukee County now appeals that order. Because we are reversing the underlying causes of action, Milwaukee County is reinstated as a plaintiff-subrogee and we do not address the merits of its claim on appeal.

       "Dysthymia" is "morbid anxiety and depression accompanied by obsession." WebsteR's Thied New International Dictio-naey 712 (1993).

       According to hospital policy, patients were not allowed to possess rope or cords.

       This is a point of contention between the parties. According to Hofflander, she became angry after her meeting with Shah and contemplated suicide. She then changed her mind and decided to escape. In a deposition, Hofflander testified that an hour elapsed before she implemented her plan, yet hospital records indicate only fifteen minutes or so elapsed from the end of her meeting with Shah to a phone call inquiring whether a patient was missing.

       The court in Jankee v. Clark County, 2000 WI 64, 235 Wis. 2d 700, 612 N.W.2d 297, recognized two exceptions to the application of the objective standard which were not applicable in that case. First, an objective standard will not apply to mentally disabled persons in institutionalized settings who do not have the capacity to control or appreciate their conduct when they cause injury to caretakers employed for financial compensation. Id. at ¶ 59 (citing Gould v. Am. Family Mut. Ins. Co., 198 Wis. 2d 450, 543 N.W.2d 282 (1996)). Second, a person will not be found negligent when he or she is suddenly overcome without forewarning by a mental disability or disorder that makes it impossible for the person to appreciate the duty to exercise ordinary care in an ordinarily prudent manner. Jankee, 2000 WI 64 at ¶ 57 (citing Breunig v. Am. Family Ins. Co., 45 Wis. 2d 536, 173 N.W.2d 619 (1970)). Neither of these exceptions applies to the facts before us.

       Horizon also argues that Hofflander's safe place claim does not apply to it because Horizon did not have control of the premises within the meaning of the statute. This is basically the same argument Horizon made when we discussed the Jankee
        "custody and control" rule and we reject it for the same reasons. In particular, the record reveals that a Horizon manager had daily responsibility for monitoring the psychiatric unit, including conducting or documenting safety inspections, and "writing up the work orders, if there was work that needed to be done and sending those to maintenance and monitoring that."

       Wisconsin Stat. § 146.38 states in relevant part:
      (lm) No person who participates in the review or evaluation of the services of health care providers or facilities or charges for such services may disclose any information acquired in connection with such review or evaluation except as provided in sub. (3).
      (2) All organizations or evaluators reviewing or evaluating the services of health care providers shall keep a record of their investigations, inquiries, proceedings and conclusions. No such record may be released to any person under s. 804.10(4) or otherwise except as provided in suh. (3)....


author: ANDERSON, J.

text:
    Donald R. Kitten, Plaintiff-Appellant, v. State of Wisconsin Department of Workforce Development, Defendant-Respondent.
    Court of Appeals

      No. 00-3562.

      Submitted on briefs June 6, 2001. —
    Decided August 8, 2001.

    2001 WI App 218
    (Also reported in 634 N.W.2d 583.)

      On behalf of the plaintiff-appellant, the cause was submitted on the brief of Phil Elliott, Jr., of Elliott, Elliott & Staskunas, West Allis.
    On behalf of the defendant-respondent, the cause was submitted on the brief of David C. Rice, assistant attorney general, and James E. Doyle, attorney general.
    Before Brown, Anderson and Snyder, JJ.

       Petition to review granted 10-23-01.

   ANDERSON, J.

¶ 1. Donald R. Kitten appeals from a circuit court order affirming a hearing examiner's decision that he unlawfully discriminated against Spencer S. Cenname contrary to Wis. Stat. § 106.04 (1997-98), the Wisconsin Open Housing Act (WOHA). The hearing examiner found, and the circuit court agreed, that Kitten had sought to exact from Cenname a different or more stringent price, terms or conditions for the rental of a housing unit because of a disability within the meaning of the WOHA. We agree. Therefore, we affirm.

Relevant Law

¶ 2. Wisconsin's Open Housing Act provides in relevant part:

It is unlawful for any person to discriminate:
(a) By refusing to sell, rent, finance or contract to construct housing or by refusing to negotiate or discuss the terms thereof.
Ob) By refusing to permit inspection or exacting different or more stringent price, terms or conditions for the sale, lease, financing or rental of housing.

Wis. Stat. § 106.04(2). Wisconsin law defines "disability" and "discriminate" as follows:

(g) "Disability" means a physical or mental impairment that substantially limits one or more major life activities, a record of having such an impairment or being regarded as having such an impairment....
(h) "Discriminate" means to ... treat a person .. . unequally in a manner described in sub. (2)... because of.. . disability....

Section 106.04(lm). Wisconsin Stat. § 100.264(l)(c) defines "major life activity" as "self-care, walking, seeing, hearing, speaking, breathing, learning, performing manual tasks or being able to be gainfully employed."

Facts

¶ 3. The following are the findings of fact made by the Wisconsin Department of Workforce Development (DWD) hearing examiner. On September 8, 1998, Cen-name called Kitten to inquire about an apartment located at 317 South Brookfield Road that Kitten had advertised for rent. During the conversation, Kitten told Cenname that he must have a pretty good job to be able to pay $925 per month for rent. Cenname told Kitten that he in fact was not working, but he did have a financial statement and a letter from his banker guaranteeing his income and explaining his money situation. The two made arrangements to meet on September 9, 1998. Kitten told Cenname to bring his checkbook because the apartments "go fast" and Cen-name might want to give Kitten a check right away.

¶ 4. On September 9, 1998, Cenname met Kitten at the apartment. After viewing the apartment, Cen-name told Kitten that he wanted to rent it. Cenname and Kitten then sat down to discuss Cenname's financial situation. Cenname gave Kitten a photocopy of an account statement from Merrill Lynch that showed that Cenname had $40,446 in Merrill Lynch accounts as of July 31, 1998. Cenname provided Kitten with a letter from his father (also his financial advisor), August Cenname, written on Merrill Lynch stationery that explained Cenname's current account balances and that he received $3000 per month after taxes. The letter also explained that Cenname's account balances had steadily increased over the thirteen years that he had been a customer of Merrill Lynch and that he had always promptly paid his Visa account. Cenname showed Kitten a handwritten document that had bank account numbers, names and telephone numbers of people who could be contacted to provide personal and financial references for him. Based on the information provided by Cenname, Kitten began to write up a lease agreement.

¶ 5. While Kitten was writing up the lease agreement, he asked Cenname where he lived. Cenname did not want to tell Kitten that he was currently living at Rogers Memorial Hospital, where he was being treated for an eating disorder, so he told Kitten that he was living with friends. Kitten continued to ask Cenname about where he was living; eventually Cenname felt compelled to admit that he was living at Rogers Memorial Hospital and that he was being treated for an eating disorder. Kitten told Cenname that he knew from his "caller ID" device that Cenname's first call to him had been from the hospital. Kitten told Cenname that Cenname looked like he did not eat enough. Cenname and Kitten then had a short discussion regarding Cenname's eating disorder.

¶ 6. As Kitten went through the lease with Cen-name, he pointed out that Cenname would be required to pay Kitten a deposit of one month of rent in advance and $1000 for a security deposit. Kitten explained to Cenname that any money paid to Kitten on September 9, 1998, would not be refunded unless Kitten denied Cenname occupancy. Cenname signed the completed lease form and gave Kitten a check for $1925 to cover the first month's rent and the security deposit. The lease was for one year and began October 1, 1998. Cenname understood that Kitten planned to have a credit check run on him before Kitten would sign the lease. However, when Cenname asked Kitten about the requirement, Kitten indicated that he did not think that it would be a problem. Before Cenname left, he asked Kitten "where do we stand," and Kitten said the apartment was Cenname's and directed Cenname to call him a week before he planned to move into the apartment. Cenname asked for a copy of the lease that he had signed. Kitten told Cenname that he would mail him a copy.

¶ 7. On September 11, 1998, Kitten received a verbal credit report for Cenname. The report revealed that Cenname's credit history was brief, but good. On September 14,1998, Kitten cashed Cenname's check for the first month's rent and the security deposit. Kitten did not attempt to contact Cenname during the period from September 9, 1998, through September 26, 1998. On September 27, 1998, Cenname called Kitten to let him know that he planned to move into the apartment on October 2, 1998. Cenname asked about getting into the apartment and also asked why Kitten had not sent him a copy of the lease. Kitten told Cenname that he was concerned that Cenname might go back into the hospital and that Kitten would not be able to get his rent money. Kitten told Cenname that he would "feel better" if Cenname paid Kitten six months' rent in advance. Kitten did not think that paying the money should be a problem for Cenname since Cenname had over $40,000 in his accounts at Merrill Lynch. Cenname was very nervous and confused by Kitten's request for six months of rent in advance. Cenname agreed to pay six months' rent in advance because he was afraid that if he did not agree to Kitten's request, Kitten would not rent to him. Cenname asked Kitten to fax a copy of the lease to him at Rogers Memorial Hospital. Kitten then made arrangements to meet Cenname at the apartment on October 2, 1998.

¶ 8. On September 27, 1998, Cenname received a message that he should call Kitten. Cenname spoke with Kitten again by telephone on September 28, 1998. In this phone conversation, Kitten arranged to change the meeting time on October 2, 1998, and then asked Cenname if he could call Cenname's doctor. This made Cenname very nervous and he believed that if he did not let Kitten speak to his doctor, Kitten would not rent the apartment to him. Cenname told Kitten that he would have his doctor call Kitten. Kitten asked Cen-name to tell him the name of his doctor and Cenname complied. Cenname then told Kitten that he was uncomfortable with paying Kitten six months' rent in advance. Kitten reiterated his concern that Cenname would have a relapse and go back into the hospital. Kitten also stated that he was concerned that Cenname would pay the hospital first and that Kitten would not be able to get his rent money. Although Cenname did not directly state to Kitten that he would not pay an additional six months' rent in advance, Cenname made it clear to Kitten that he was not happy with the request for an additional six months' rent. Cenname then reiterated his request that a copy of the lease be faxed to him at the hospital.

¶ 9. On September 29, 1998, Kitten called Cenname's doctor and left a telephone message for the doctor to return his call so that Kitten could speak to him about Cenname. The doctor's office manager heard Kitten's telephone message and contacted Cenname to see if he wanted to give permission to the doctor to discuss his medical condition with Kitten. Cenname was surprised and upset to find out that Kitten had called his doctor's office without Cenname's permission or knowledge. Cenname refused to grant the doctor permission to discuss his medical condition with Kitten. As a result of Cenname's decision, no one from the doctor's office contacted Kitten.

¶ 10. On September 29, 1998, after Cenname spoke to the office manager, he called Kitten. Cenname told Kitten that it was inappropriate for him to call Cenname's doctor and that Cenname was upset about his actions. Kitten insisted that he needed to speak to Cenname's doctor and that he needed the six months' rent paid in advance. Cenname again told Kitten that Kitten's actions were inappropriate. Cenname ended the conversation by again asking Kitten to fax him a copy of the lease to Rogers Memorial Hospital.

¶ 11. After this conversation, Kitten faxed a copy of the lease that Cenname had signed on September 9, 1998. The lease agreement still did not have Kitten's signature on it. On September 30, 1998, Cenname called Kitten and told him that he would not pay six months' rent in advance and that Kitten did not have Cenname's permission to speak to his doctor. Kitten insisted that it was his right to inquire about Cenname's medical condition because Kitten had concerns and needed to protect the tenants in the other units. Kitten said that his sister was a nurse and that she told Kitten that Cenname's condition involved some depression. Kitten then described a hypothetical situation in which he came to the apartment complex and found Cenname in his car with the garage door closed and the exhaust fumes running from his car. Kitten told Cenname that such a situation would damage the rental unit. From listening to Kitten's hypothetical, Cenname determined that Kitten was trying to ask if he was suicidal. Cenname told Kitten that he was not suicidal. Cenname asked Kitten if speaking to his doctor was a condition of renting the apartment. Kitten said, "No, not really."

¶ 12. Cenname told Kitten that it was unreasonable to ask for six months' rent in advance. Cenname asked Kitten why he had not signed the lease. Kitten told Cenname that since Cenname had signed the lease, he had to pay the rent. Kitten then said that since Kitten had not signed the lease, he was not obliged to let Cenname rent the apartment. Cenname insisted that since Kitten had cashed his check that Kitten had to abide by the original terms of the lease. Kitten continued to insist that Cenname pay him six months' rent in advance. Cenname told Kitten that if he wanted more financial information, he should talk to Cenname's financial advisor. Kitten laughed and said, "That's your father." Cenname said, "That's right," and gave Kitten his parents' home telephone number in Columbus, Ohio, so Kitten could contact his father.

¶ 13. On September 30, 1998, Kitten called Cenname's parents' home. Kitten expressed his concerns to Cenname's mother because his father was not home. Kitten said that in his rental units the garages were attached and that if something happened the gas would enter the other units. Cenname's mother asked Kitten if he was concerned that Cenname would attempt to commit suicide. Kitten responded, "Yes." Cenname's mother told Kitten that suicide might have been an issue for Cenname at one time, but that it no longer was an issue. Kitten asked Cenname's mother if she and her husband would co-sign the lease in case there was a need for Cenname to return to the hospital. She assured Kitten that Cenname had a guaranteed income of $36,000 per year after taxes; nonetheless, she agreed to co-sign, telling Kitten that he had to let her son know.

¶ 14. On September 30, 1998, Cenname again called Kitten, at which time Kitten told Cenname that he had spoken to Cenname's mother because his father was not available. Kitten quoted Cenname's mother as having said that her son should "choose his poison" between paying six months' rent in advance or having his parents co-sign the lease. Kitten asked Cenname which choice he was going to make. Cenname told Kitten that he needed time to think about it.

¶ 15. Afterwards, Cenname called his mother, who denied having told Kitten that Cenname should "choose his poison." After speaking to his mother, Cen-name called the fair housing office that he had contacted earlier in the week. From his conversation with the fair housing office, Cenname understood that they wanted him to agree to pay six months' rent in advance to Kitten and to tape record the meeting scheduled with Kitten on October 2, 1998. As a result of his conversation with the fair housing group, Cenname called Kitten a third time on September 30,1998, and told Kitten that he would pay the six months' rent in advance.

¶ 16. After telling Kitten this, Cenname discussed the situation with a family attorney and with the treatment staff at Rogers Memorial Hospital. Cenname then decided that he would not go through with the fair housing group's suggestion. Instead, on October 1, 1998, Cenname called Kitten and told him that he would not pay six months' rent in advance, and conversely, he had decided to hold Kitten to the original agreement. Kitten told Cenname not to show up on Friday for the planned meeting if he was not going to pay the six months' rent in advance. Cenname told Kitten that if the deal required him to pay six months' rent in advance, "the deal [was] off." Kitten agreed that "the deal [was] off." Cenname asked Kitten to return his money. Kitten told Cenname that he would not send his money back because he planned to use the money for the unit's rent for the month of October. Kitten raised his voice to Cenname and told him that he did not have to return the money because Cenname signed the lease. Cenname did not get his money back, in addition, Cenname incurred a variety of costs related to this situation.

¶ 17. Other relevant findings made by the hearing examiner were that on September 30, 1998, Kitten received the written credit report about Cenname. The report was short, but did not show a bad credit history. Notably, Kitten never mentioned to Cenname or Cenname's mother that Cenname's brief credit history concerned him. Kitten did not usually ask other potential renters for six months' rent in advance or for permission to speak to their doctors before agreeing to rent to them.

Standard of Review

¶ 18. We begin with a discussion of the appropriate standard of review. A hearing examiner's factual findings will be upheld if supported by substantial evidence. Wis. Stat. § 227.57(6). Kitten contends that there is insufficient evidence to support the hearing examiner's findings of discrimination. Kitten claims that Cenname's condition does not rise to the level of a disability under the WOHA and, therefore, Kitten could not have discriminated against him within the meaning of the WOHA.

¶ 19. Claims of insufficiency of the evidence are reviewed under the substantial evidence test because they involve the hearing examiner's determination of contested facts. See Robertson Transp. Co. v. PSC, 39 Wis. 2d 653, 658-59, 159 N.W.2d 636 (1968). When the sufficiency of the evidence is challenged, we are limited to the question of whether there is substantial evidence to support the hearing examiner's decision. State ex rel. Thompson v. Riveland, 109 Wis. 2d 580, 585-86, 326 N.W.2d 768 (1982). The hearing examiner has leeway in determining and drawing inferences from conflicting evidentiary facts. Milwaukee County v. DILHR, 48 Wis. 2d 392, 399, 180 N.W.2d 513 (1970). We must affirm the findings of fact made by the hearing examiner if they are supported by substantial evidence in the record. Muskego-Norway Consol. Schs. Joint Sch. Dist. No. 9 v. Wis. Employment Relations Bd., 35 Wis. 2d 540, 562, 151 N.W.2d 617 (1967). Substantial evidence is the quantity and quality of evidence which a reasonable person could accept as adequate to support a conclusion. State ex rel. Eckmann v. DHSS, 114 Wis. 2d 35, 43, 337 N.W.2d 840 (Ct. App. 1983). Where there are two conflicting views of the evidence, each of which may be sustained by substantial evidence, it is for the hearing examiner to determine which view of the evidence it wishes to accept. Robertson Transp. Co., 39 Wis. 2d at 658. If more than one reasonable inference can be drawn from the facts, the drawing of that inference is still a finding of fact and conclusive on review. Sauerwein v. DILHR, 82 Wis. 2d 294, 300, 262 N.W.2d 126 (1978).

¶ 20. Further, it is well established that it is the function of the hearing examiner, not the reviewing court, to determine the credibility of witnesses and the weight of the evidence. Eastex Packaging Co. v. DILHR, 89 Wis. 2d 39, 745, 279 N.W.2d 248 (1979). We adhere to the hearing examiner's credibility determination because the hearing examiner is in the best position to assess the witnesses' demeanor and to weigh any potential bias or interest the witnesses might have in the outcome. Wis. Stat. § 227.45(1) (an administrative hearing examiner is to apply "[b]asic principles of relevancy, materiality and probative force"). Indeed, the level of deference is such that the hearing examiner's findings must be upheld even if they are against the great weight and clear preponderance of the evidence. L & H Wrecking Co. v. LIRC, 114 Wis. 2d 504, 508, 339 N.W.2d 344 (Ct. App. 1983).

¶ 21. Finally, we acknowledge that there are contested facts; however, because our review is based on the substantial evidence test, we need only review evidence that would support the hearing examiner's determination. Abbyland Processing v. LIRC, 206 Wis. 2d 309, 318, 557 N.W.2d 419 (1996). Thus, despite the evidence introduced by Kitten that could have permitted contrary findings of fact, if a reasonable fact finder could have reached the conclusions reached by the hearing examiner, we must affirm such findings.

¶ 22. Once the facts are established, however, the determination of whether those facts fulfill the statutory standard is a legal conclusion. Keeler v. LIRC, 154 Wis. 2d 626, 632, 453 N.W.2d 902 (Ct. App. 1990). Therefore, we will review the hearing examiner's determination that Kitten violated the WOHA as a conclusion of law. Although we are not bound by the hearing examiner's conclusions of law in the same manner as by its factual findings, we may nonetheless defer to the hearing examiner's legal conclusion. West Bend Educ. Ass'n v. WERC, 121 Wis. 2d 1, 11-12, 357 N.W.2d 534 (1984). We generally apply three levels of deference to conclusions of law and statutory interpretation in agency decisions. Jicha v. DILHR, 169 Wis. 2d 284, 290, 485 N.W.2d 256 (1992). First, if the administrative agency's experience, technical competence, and specialized knowledge aid the agency in its interpretation and application of the statute, the agency determination is entitled to "great weight." Id. at 290-91. The second level of review provides that if the agency decision is "very nearly" one of first impression, it is entitled to "due weight" or "great bearing." Id. at 291. The lowest level of review, the de novo standard, is applied where it is clear from the lack of agency precedent that the case is one of first impression for the agency and the agency lacks special expertise or experience in determining the question presented. Id.

Analysis

¶ 23. After our independent review of the record, we hold that there is substantial evidence to support the hearing examiner's findings of fact. The hearing examiner determined, and we agree, that Kitten's evidence was less credible than Cenname's. Kitten insists that his reason for demanding that Cenname pay six months' rent in advance was due to economic circumstances. However, Kitten's actions during the course of the events belie his explanation. Kitten was aware of Cenname's financial situation at the time that the lease was completed. Kitten did not indicate at any time that he was concerned about the lack of financial information or the quality of the financial information. Moreover, when Cenname asked "where do we stand," Kitten informed him that the apartment was his.

¶ 24. Although Kitten claims that the credit check on Cenname showed an inadequate credit history, Kitten never raised this as an issue with Cenname. The only reason Kitten provided Cenname for needing an additional six months' advance rent was Kitten's fear that Cenname would have a relapse of his eating disorder and would require hospitalization. Kitten's fears and concerns about Cenname's eating disorder were also shown by his desire to speak to Cenname's doctor. Kitten also demonstrated his concerns about Cenname's eating disorder in his questioning of Cen-name and his mother as to whether Cenname might attempt to commit suicide while residing in the apartment.

¶ 25. While Kitten now attempts to characterize his actions as being concerned about Cenname's financial ability to pay, Kitten's actions do not support this characterization. Additionally, the hearing examiner noted that Kitten was extremely evasive and unwilling to provide direct answers to questions during his examination by Cenname's attorney. The record, including the hearing examiner's observations of credibility, leads us to determine that Kitten's reason for attempting to speak to Cenname's doctor and for requiring Cenname to pay an additional six months' advance rent was due to Cenname's eating disorder.

¶ 26. Kitten argues that even if he was concerned with Cenname's eating disorder, there can be no finding of discrimination because Cenname's condition does not rise to the level of a disability as described by law. In support of this argument, Kitten points to the hearing examiner's determination that Cenname failed to establish a legal disability. We defer to this finding, but agree with the hearing examiner that there is sufficient evidence to establish that Kitten regarded Cenname's eating disorder as being a physical or mental impairment that substantially limited Cenname's ability to enjoy major life functions. Specifically, Kitten showed by his actions and his statements that he believed that Cenname's eating disorder would cause him to be unable to take care of himself and live on his own. Kitten believed that Cenname might have a relapse of his eating disorder symptoms when living alone and would require continuing hospitalization. Alternatively, Kitten hypothesized aloud to Cenname that Cenname's eating disorder could cause him to suffer from depression and lead to an attempt to commit suicide. Given Kitten's belief that Cenname's eating disorder would prevent him from being able to live on his own and take care of himself without further hospitalization or attempts on his life, we agree with the hearing examiner's determination that Kitten regarded Cenname as having a disability within the meaning of WOHA. Thus, substantial evidence supports the hearing examiner's finding that Kitten exacted different rental terms from Cenname because of a "disability" within the meaning of the WOHA and not because of financial considerations.

¶ 27. Kitten argues that we ought to apply a de novo standard of review to the hearing examiner's conclusions of law and statutory interpretation of the WOHA. Cenname believes that any one of the three levels of deference could arguably be applied because the issue could be characterized as one intertwined with value or policy determinations, or as one "very nearly" or "clearly" of first impression. The correct test under Wisconsin law is whether an agency has experience in interpreting a particular statutory scheme, not whether it has ruled on the precise, or even substantially similar, facts before. Barron Elec. Coop. v. PSC, 212 Wis. 2d 752, 764, 569 N.W.2d 726 (Ct. App. 1997). We conclude that under the Barron test, the proper standard of review to be given to DWD's legal determinations in this case is great weight deference. Here, the statutory scheme being interpreted by DWD is Wis. Stat. § 106.04. DWD and its predecessors have been charged with the duty of administering that statute. Sec. 106.04(ls). Therefore, its interpretation of the statute will be given great weight in this case. However, even if we were to apply the de novo standard of review, we would reach the same result.

¶ 28. We have already held that there is substantial evidence to show that Kitten exacted different rental terms from Cenname because of a "disability" within the meaning of the WOHA. We now address the statutory interpretation and application issue of whether there was a "disability" within the meaning of the WOHA.

¶ 29. In School Board of Nassau County v. Arline, 480 U.S. 273, 284 (1987) (superceded by statute on other grounds), the United States Supreme Court approvingly observed that Congress has acknowledged that society's accumulated myths and fears about disability are as handicapping as are the physical limitations that flow from actual impairment. In Arline, a school teacher, who was fired from her job solely because of her susceptibility to tuberculosis, brought an action alleging that her dismissal violated § 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794. Arline, 480 U.S. at 275-76. The Supreme Court held that a school teacher afflicted with a contagious disease of tuberculosis was a handicapped individual within the meaning of the Rehabilitation Act, which prohibited a federally funded state program from discriminating against a handicapped individual solely by reason of handicap. Id. at 289. Significantly, the Supreme Court pointed out that Congress had amended the definition of a handicapped individual to include not only those who are actually physically impaired, but also those who are regarded as impaired and who, as a result, are substantially limited in a major life activity. Id. at 284.

¶ 30. We find the Supreme Court's analysis in Arline analogous and helpful here. The term "disability" in the WOHA is defined as "a physical or mental impairment that substantially limits one or more major life activities, a record of having such an impairment or being regarded as having such an impairment." Wis. Stat. § 106.04(lm)(g) (emphasis added). Given the Supreme Court's Arline analysis of the similar federal statute, it is no great leap for us to interpret the WOHA as protecting a person who is "regarded" by a landlord as having an impairment that substantially limits major life activities even if, in fact, he or she does not have such an impairment.

¶ 31. In this case, the hearing examiner determined that Cenname failed to establish that his eating disorder was an actual "physical or mental impairment that substantially limits one or more major life activities," or that he had any "record" of such an impairment within the meaning of the WOHA. The examiner determined that there was sufficient evidence, however, to establish that Kitten "regarded" Cenname's eating disorder as being a physical or mental impairment that substantially limited his ability to enjoy major life functions. Specifically, the hearing examiner found that Kitten demonstrated by his actions and statements that he believed that Cenname's eating disorder might cause him to be unable to take care of himself and to live on his own. The hearing examiner relied upon Kitten's statements reflecting his belief that Cenname would have a relapse of his eating disorder symptoms when living alone and he would require further hospitalization. The hearing examiner also relied upon Kitten's statements reflecting his belief that Cenname's eating disorder was associated with depression and that Cen-name might attempt to commit suicide. We hold that Kitten violated the WOHA by exacting a different or more stringent price, terms or conditions from Cen-name for the rental of a housing unit because of a "disability" within the meaning of the WOHA.

¶ 32. Finally, Kitten argues that the award of damages and the out-of-pocket expenses award are not warranted. Primarily, Kitten's arguments go to his basic contention that he did not violate the WOHA by imposing different or more stringent rental terms and conditions on Cenname. Because we have rejected Kitten's contention that he did not discriminate against Cenname in violation of the WOHA, we need not address Kitten's arguments in this regard.

By the Court. — Order affirmed.

       All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       For clarity, we note that Wisconsin refers to persons who preside over administrative proceedings as hearing examiners, not administrative law judges. See Wis. Stat. § 111.39.

       Cenname incurred several costs as a result of this situation, among them: $8000 in additional hospital costs, $2700 more in rent over a one-year period than he would have had to pay if he had been able to live in Kitten's unit, $48.67 for disconnection of the phone service he had previously arranged, and $200 in legal fees.