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Natrona County12/31/2003
o takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.
The subject at hand has been well annotated, though no clear thread may be gleaned from the cases in point. Several courts have affirmed the dismissal or grant of summary judgment in such cases, and the "public duty" rule has been relied upon in many of those instances. In others, statutory immunity has been the deciding point. In several others, courts have held that a duty does lie and that proximate cause and foreseeability are questions for the jury to decide. We join with this latter group in our decision today. See generally, Don F. Vaccaro, Annotatiaon, Liability of Public Officer or Body for Harm Done by Prisoner Permitted to Escape, 44 A.L.R.3d 899 (1972 and Supp 2001).
As a point of embarkation, we look to the Supreme Court of Arizona's decision in Ryan v. State, 656 P.2d 597 (Ariz. 1982). In Ryan a 17-year-old inmate escaped from the Arizona Youth Center. After his escape, the youth robbed a convenience store and shot the proprietor at point-blank range with a shotgun. The victim sustained permanent and disabling injuries. That court determined that it would define the limitations of immunity as it pertains to the executive branch of government "on the basis of concrete, factual situations as they come before us." Id., at 600. In conclusion, it held that it would "endorse the use of governmental immunity as a defense only when its application is necessary to avoid a severe hampering of a governmental function or thwarting of established public policy. Otherwise, the state and its agents will be subject to the same tort law as private citizens." Id. Thus, summary judgment for the state defendants was reversed.
In the case, Cansler v. State, 675 P.2d 57 (Kan. 1984) (collecting cases), the Supreme Court of Kansas dealt with a case where a police officer was severely wounded by gunfire from several inmates who escaped from the Kansas State Penitentiary. Cansler's complaint suggested the escape could and should have been prevented and, although efforts had been made to send out an alarm to the surrounding area, a computer was down and the message did not go out. No notification was given to a neighboring county, in which the victim worked as a police sergeant. Id., at 60-61. After summarizing the law extant at that time, the Kansas court concluded that "Cansler has adequately alleged a duty on the part of the State, a breach thereof, and a causal connection between the breach of that duty and the injuries and damages sustained." Id., at 66. The Cansler case was before the court on an interlocutory appeal similar to the posture of this case.
The Supreme Court of Louisiana has also spoken directly to the issue we address today. In the case, Marceaux v. Gibbs, 699 So.2d 1065, 1069-70 (La. 1997), the court set this standard for such cases:
In order to recover for injuries caused by an escaped prisoner, an injured plaintiff must prove the following:
(1) negligence on the part of the custodian in managing the facility;
(2) that this negligence facilitated the escape;
(3) that the escapee's actions caused the harm complained of; and,
(4) that the risk of harm encountered by the plaintiff falls within the scope of duty owed by the custodian.
The Louisiana court also held that to determine the scope of the duty owed by the custodians, the question that must be answered is whether the offense occurred during or as an integral part of the escape. An of
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