District of Columbia v. Mitchell

STEADMAN, Associate Judge,

concurring:

Like Judge Belson, I join in all of Judge Ferren’s careful and insightful opinion, except for portions of Part III. However, my somewhat different analysis ends me at a concurrence in the result to which Part III leads.

I believe the difficulty in this case arises in part because of the dual purposes that a notice of a potentially dangerous condition by an inmate to prison officials can serve. On the one hand, it may be the event that triggers any duty of care at all to the inmate, such as where the condition arises in the period between reasonable prison inspections. (In this sense, but in this sense only, notice of a dangerous condition by the inmate is “legally irrelevant” when the condition should already have been discovered had the prison officials made a reasonable inspection.) On the other hand, it may alert the prison officials to a condition that they should have known of but in fact did not; in this sense, the notice does not trigger the duty of care — that already existed — but rather may forestall an injury which may otherwise occur because of the prison officials’ negligence in failing to discover and correct the danger. In this latter sense, the failure to give notice is relevant not to the existence vel non of a duty on the prison officials but instead to a possible claim of contributory negligence.

We all agree on the proposition that a duty of care arises as to dangerous conditions which a reasonable inspection would uncover and, in addition, as to conditions of which the prison officials have actual notice by reason of inmate reports. For essentially the reasons set forth by Judge Ferren, I also agree that an inmate can normally assume that prison officials are doing their job and that any instruction as to the effect of nonnotice to prison officials by an inmate of a known dangerous condition should recognize this fact by stating that, viewed in isolation, a responsibility to report turns on the existence of reason to believe that prison authorities are not in fact aware of a danger they should be aware of. Indeed, any such instruction should also make clear the distinction between the two roles that such a notice may serve, as discussed above.

On the other hand, I agree with Judge Belson that the failure to give notice to prison officials of a known dangerous condition could have a wider relevance in the context of a contributory negligence claim that Judge Ferren’s opinion might indicate. I think both opinions go astray in focusing solely on the question of the giving of notice, and do so because of a too ready dismissal of the relevance of other aspects of the conduct of an inmate faced with a known potentially dangerous condition.

Both opinions, as do I, agree that in a macro sense, a prisoner has “no choice in arranging their environment,” and ordinary assumption of risk analysis is inappropriate. But I do not think it follows that in assessing the possibility of contributory negligence, the only conduct of the inmate that is relevant is whether he gave notice. (Judge Ferren’s opinion, of course, recognizes that active participation by the plaintiff in the creation or aggravation of the dangerous condition may be grounds for contributory negligence.) Even within the prison environment, a prisoner may be able to avoid a particular dangerous area or, in using it, may be able to limit his use to a reasonably necessary extent. The availability and use of these options may well have a bearing on the reasonableness of his decision to rely solely upon the assumption of prison officials’ knowledge in lieu of giving notice himself.

There could be á difference, thus, between a nonreporting inmate leaning over a desk while using it for writing or sitting, and using it as a favorite place to take long naps. Or, to take another perhaps farfetched example to make the point, suppose another inmate has set up a spring gun *656 trap. It is one thing for one knowing of the trap to pass by that area at a smart pace, quite another to continue to regularly watch TV sitting directly in the potential line of fire. (While I think analogies to prison situations must be viewed with caution, I note that in Scoggins, the tenant at the time of the accident was removing furniture located under the dangerous ceiling from which water was leaking, in an effort to protect the furniture from damage.) In short, while the inmate has the right to assume that prison officials know or will come to know of a dangerous condition, the possible effect of any failure to report can only be assessed in the totality of the prisoner’s conduct in the light of the known dangerous condition.

The difficulty with Judge Perren’s analysis, as I see it, is that under it, an inmate knowing of a dangerous condition could go about his business exactly as before (until and unless he had reason to believe the prison officials did not in fact know of the dangerous condition although they should have). The difficulty with Judge Belson’s analysis is that it leaves too open the contributory negligence issue without sufficient regard to the importance of channeling the jury’s analysis as discussed above.

There is no need to say more for purposes of disposing of this appeal. As Judge Perren indicates, the District presented to the trial court no such refined instructional proposal. I concur with his view that on the record of this trial as actually conducted, the trial court’s failure to instruct on contributory negligence does not appear unduly prejudicial, let alone a miscarriage of justice. Hence, I concur in the affirmance of the judgment on Count I.