McDonald v. State ex rel. State Department of Institutions

BLANCHE, Judge

(dissenting).

I respectfully dissent.

The plaintiff is not guilty of contributory negligence. His conduct should be judged in light of the fact that he is an inmate in an institution and his freedom of choice as to the use of the saw was limited. Had plaintiff been ordered to use the saw in question by prison authorities, there would have been no hesitancy to impose liability on the state. What difference does it make that he may have been using the saw for his own purposes? The State should be liable for furnishing a dangerous instrumentality for the use of its inmates. In my opinion, it is a weak defense to say that a prisoner’s conduct falls below the standard of care of a reasonably prudent man under the circumstances because he knew or should have known that it is dangerous to use a rip saw without a guard. It is tantamount to saying, “Mr. Prisoner, here is a saw for your own recreation; but you ought to know better than to use it because it may cut your hand off.”