The opinion
RIGGS, J.,
concurring.
I agree with the result reached by the majority. However, I would also find that there was a special relationship between defendant and Simmons.
*557 I would begin the analysis, as defendant urges, with the question of whether there was a special relationship that creates an obligation for the state “apart from any general responsibility not unreasonably to expose people to a foreseeable risk of harm.” Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 19 , 734 P2d 1326 (1987). In that case, the court said:
“In short, unless the parties invoke a status, a relationship or a particular standard of conduct that creates, defines, or limits the defendant’s duty, the issue of liability for harm actually resulting from defendant’s conduct properly depends on whether that conduct unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff.” 303 Or at 17 . (Emphasis supplied.)
Here, the trial court concluded that “[n]o special relationship existed between the two plaintiffs and the state prisoner.” (Emphasis supplied.) That is not the issue. The issue is whether there was a special relationship between defendant and the prisoner or defendant and plaintiffs. Restatement (Second) Torts § 315(a) and (b). Those subsections provide:
“[T]here is no duty to control the conduct of a third person so as to prevent him from causing physical harm to another unless
“(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or
“(b) a special relation exists between the actor and the other which gives to the other a right to protection.”
Defendant contends that the facts of this case do not fit within subsection 315(a), because such “special relationships” can only exist when the state has a prisoner in custody whom it “knows or should know to be likely to cause bodily harm to another” if he were to escape. Restatement (Second) Torts § 319. 1 It argues that it did not have the requisite knowledge, and thus no special relationship existed, *558 because Simmons had “not demonstrated previously any conduct which could suggest dangerousness to the public. Therefore, there was no basis from which Corrections Division reasonably could foresee plaintiffs injuries.”
I disagree. Under these facts, there was a special relationship between defendant as custodian and Simmons as a prisoner entrusted to its care that gave rise to a duty to exercise reasonable care to prevent him from escaping and harming others. Restatement (Second) Torts § 315(a); Christensen v. Epley, 36 Or App 535, 540-41 , 585 P2d 416 (1978), aff’d in part by an equally divided court; rev’d in part, 287 Or 539 , 601 P2d 1216 (1979). I am not persuaded by defendant’s argument that there was no such relationship because Simmons’ criminal history was not demonstrably violent. 2 Section 315 does not necessarily require that there be a custodial relationship between the jailer and the prisoner “of such a nature as to satisfy Restatement § 319.” Christensen v. Epley, supra, 287 Or at 552 (Tongue, J. concurring). In my view, given the information that defendant had about Simmons’ violent temper while growing up, his history of alcohol and substance abuse and his multiple admissions to the state hospital, there were sufficient facts known to defendant to establish a special relationship.
For these reasons, I concur.
Restatement (Second) Torts § 319 provides:
“One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to another if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.”
The affidavit of Simmons’ inmate counselor states that the Custody Review Committee “concluded that Simmons was a prime candidate for placement at the Forest Camp. [He] was serving time for non-assaultive offenses. There was no indication in his Pre-Sentence (PSI) report that any violence or potential violence was utilized.”