(concurring in part and dissenting in part):
I concur in the majority opinion insofar as it affirms the judgment of the district court but dissent from the ordered retrial of the case on the claim that the guard, in being on the porch after he announced his count, might be sufficiently negligent to constitute the proximate cause of the assault upon appellant by fellow inmates. Assault on inmates was not part of the risk that the procedure implementing the Count System1 was designed to protect against.
The majority opinion holds that the District of Columbia might be responsible for an assault upon one inmate by others at Lorton Reformatory because an “officer .. . went out on the porch after calling in the [prisoner] count [thereby] violatpng] his duty [under the “Count System”] to stay inside the dormitory and assure that inmates also stayed on their wings” during the count. Maj. op. at 647. According to appellant’s theory “each officer should have been patrolling one wing of the dormitory to ensure that no inmate left his wing during the count.” Id. (emphasis added).
However, as the majority opinion recognizes, id. at 646, the object of the counting procedure, upon which appellant bases his claim of negligence, was to obtain an accurate count of inmates. This objective was not in any way related to protecting inmates from assaults by other inmates. Thus, in my opinion, the district court properly granted judgment in favor of the District.
Even if it is assumed that the officer for a few moments was not positioned at the most advantageous location to implement the “Count System,” he did not thereby breach any duty to the plaintiff that the “Count System” placed upon him. Whether the count was correct or not, and there is no showing that it was incorrect, the procedures for obtaining an accurate count were not directed at protecting plaintiff or other inmates from inmate assaults. Such facts created an issue of law for the court, which properly held that the negligence allegedly resulting from the claimed violation of the Count System was not the proximate cause of plaintiff’s assault by a number of inmates which included one inmate from another wing.2
Professor Prosser noted in an article which was a forerunner to his famous treatise on Torts:
It would appear that a consideration of “proximate cause” must necessarily involve:
*653(1) The problem of the fact of causation.
(2) The problem of responsibility for events which could not reasonably be foreseen or anticipated.
(3) The problem of liability to persons to whom no harm could reasonably be anticipated.
(4) The problem of intervening forces.
(5) The problem of the amount of damages.
(6) The problem of shifting responsibility to others.
The list is by no means exclusive, and “proximate cause” has been used in connection with many other issues....
Prosser, The Minnesota Court on Proximate Cause, 21 Minn.L.Rev. 19, 21 (1937). Prosser points to several cases in support of the rule that proximate cause is lacking “where harm results from a violation of a statute . . . which was not designed to afford the plaintiff any protection.” W. Prosser, Law of Torts 245 n.70 (4th ed. 1971).3 In Philadelphia, Wilmington & Baltimore Railroad v. Philadelphia & Havre de Grace Steam Towboat Co., 64 U.S. (23 How.) 209, 16 L.Ed. 433 (1860), the Supreme Court held that the owners of a steamboat sailing on Sunday in violation of the Maryland Blue Law were not precluded by the doctrine of contributory negligence from collecting damages from the defendant who negligently left hidden obstructions (piles) in the waterway since that statute did not impose any duty on the owner of the steamboat to the defendant. “The laws relating to the observance of Sunday defines a duty of a citizen to the state, and to the State only.” 64 U.S. (23 How.) at 218 (emphasis added). Accord, Tingle v. Chicago, B & Q Ry., 60 Iowa 333, 14 N.W. 320 (1882) (railroad which unlawfully operated its trains on Sunday in violation of the state’s blue law, in the absence of other wrongdoing, was not liable for killing a cow at a crossing— the unlawful act consisted of operating its train at the place in question on Sunday and that “violation of a statute” was held not to proximately contribute to the damage complained of). The opinion by Justice Hallam in Armstead v. Lounsberry, 129 Minn. 34, 151 N.W. 542 (1915), is to the same effect. Plaintiff, who was driving a car upon the public highway in violation of the state automobile registration law, was held not to be contributorily negligent
because he was at the time of the injury disobeying a statute law which in no way contributed to his injury.... The wrong on the part of plaintiff, which will preclude a recovery for an injury sustained by him, must be some act or conduct having the relation to that injury of a cause to the effect produced by it.
151 N.W. at 544. The Vermont Supreme Court in Dervin v. Frenier, 91 Vt. 398, 100 A. 760 (1917), held that it was error to charge a jury that it was evidence of negligence to operate an automobile without a required operators license.
[T]he violation of a statute is properly held to be evidence of negligence or even negligence per se . . . only when there is a proximate, causal connection between the violation of the statute and the injury complained of ....
100 A. at 761 (emphasis added). Finally, in Falk v. Finkelman, 268 Mass. 524, 168 N.E. 89 (1929), the defendant left his car on a city street in excess of the 20 minutes allowed by ordinance. While it was so parked it was struck by a fire engine that drove it.into plaintiff, injuring him. The court held that
[defendant's violation of the ordinance was not an effective and contributing cause of the injury because it was not in accordance with the usual experience of mankind that the result of that violation of law ought to have been foreseen and apprehended .... The defendant [in exceeding the parking time limit] violated no legal duty owed the plaintiff.... Judgment for defendant.
168 N.E. at 90.
In the absence of expert testimony showing that the guards did not “act[] reason*654ably to secure the safety of [the] inmate,” Hughes v. District of Columbia, No. 79-246 (D.C. Jan. 13, 1981), the district court was required to grant judgment n. o. v. for the District of Columbia. The majority opinion relies on the indefinite testimony of plaintiff’s expert that the counting procedure “apparently” may not have been conducted on the day in question in accordance with the prevailing standard.4 Since the counting was not intended to protect inmates against assault, expert testimony that it was not followed is insufficient to present a jury question. The majority opinion has pointed to no expert testimony which tends to show that the guards breached a duty of reasonable care to protect the inmates from harm, and in the absence of such testimony the district court properly took the case away from the jury.5 Contrary to plaintiff’s position on appeal, the issue of proximate cause is not solely a jury issue, since it includes the non-causal question of whether the “defendant should be legally responsible.” W. Prosser, Law of Torts 244 (4th ed. 1971). In this connection it cannot be said that it was in accordance with the usual experience of mankind that an inmate would be assaulted, as was Murphy, as the result of the officer being on the porch after he announced his count and that said result should have been foreseen and apprehended. Falk v. Finkelman, 268 Mass. 524, 168 N.E. 89 (1929).
The majority opinion also suggests that plaintiff submitted sufficient evidence to raise a jury question on the issue of tool control. This will no doubt come as some surprise to plaintiff, not to mention the District, since plaintiff did not argue in his brief on appeal that the district court erred in taking the case away from the jury on this issue.6 For plaintiff to prevail on this *655issue, it was his burden to prove that a breach of a standard regarding tool control was the proximate cause of his injury. The majority opinion is unable to point to the evidence by which plaintiff met this burden. Instead, it holds that the jury could infer negligence based on this theory because (1) the District of Columbia failed to establish that it maintained a proper tool inventory, and (2) there was evidence that the beating may have been administered with a blunt instrument, although no weapon was admitted into evidence. Appellant’s abandonment of this argument is understandable; the majority makes his case for him only after placing the burden of establishing a sufficient tool inventory on the District and then ignoring the need for evidence connecting the allegedly inadequate tool control with the “instrument” that “may” have been used in the attack upon Murphy. In sum, the majority errs by considering an argument not argued by appellant on appeal, and by shifting the burden of proof from the plaintiff to the defendant and ignoring a glaring gap in the evidence.
All the reasons stated above illustrate the principle that the violation of any govern-mentally imposed rule of conduct that was not intended to protect the plaintiff against the harm he suffered cannot constitute the basis of a claim of negligence against any alleged violator. That principle applies to the instant Count System. It did not create any duty that the officer owed to Murphy sufficient for a violation thereof to constitute the probable cause of the assault upon him by another inmate. I therefore cannot agree with the reasoning or the result of the court’s opinion and dissent therefrom.
Because I believe the district court properly granted judgment n. o. v. for the District of Columbia, I would affirm its judgment in all respects.
. The “Count System” was set forth in the “Resident [Inmate] Handbook.” It imposed duties primarily on inmates, and did not require the guards to be at any particular place. Under the practice one officer counted the “B and D side” and the other officer counted the “A and C side.” Tr. 5/7/79 at 104. There was no testimony that the officer in question was not on his “side” at all relevant times.
. Whether the controlling issue is viewed as duty or proximate cause, the important point is that the district court recognized the issue as a legal one for the court to decide. See generally Thode, Tort Analysis: Duty-Risk v. Proximate Cause and the Rational Allocation of Functions Between Judge and Jury, 1977 Utah L.Rev. 1 (advocating the duty-risk analysis to ensure that the issues of policy are decided by the court and not by the jury in a misguided application of proximate cause).
. The same conclusion follows a fortiori when the harm allegedly results from the violation of an administrative regulation or procedure rather than a statute.
. Tr. 5/8/79 at 250.
. The majority contends that the guard’s presence on the porch during the count facilitated a “cross-over” by one inmate from his wing to Murphy’s. Since cross-overs are always prohibited, the majority suggests that the guard’s alleged misplacement was “evidence of the institution’s violation of its general duty to use reasonable care to protect inmates from assaults by other inmates.” Maj. op. at 648 n.45. The District of Columbia conceded that “the unauthorized presence of an inmate on a wing other than his own at anytime violates Youth Center regulations separate and distinct from those pertaining to inmate counts.” District of Columbia’s Brief at 14. The majority’s position must fail, however, because appellant’s expert did not testify that the guard’s position on the porch violated his duty to exercise reasonable care to prevent cross-overs. In response to the question, “What about the correctional officer being outside until the institutional count cleared?,” he testified: “That would be highly ... irregular.” Tr. 5/8/79 at 254.
Clearly, the presence of an inmate on a wing other than his own indicates a violation of the regulation against wing-crossing. It does not, however, demonstrate negligence. As the District of Columbia argued: “[T]he mere occurrence of a fellow-inmate assault in violation of prison regulations does not ipso facto establish the jailer’s negligence. If the law were otherwise, the jailer would be an insurer of inmate safety.” District of Columbia’s Brief at 14.
The majority submits that the guard’s presence on the porch necessarily resulted in the breach of the institutional duty to stop crossovers because the guards were required to be in particular places during the count procedure. But, as the majority recognizes, the officer who went onto the porch did so only after the dormitory count had cleared — the actual counting in the dormitory had ended. This fact foils the majority’s attempt to turn the guard’s presence on the porch into an act of negligence based on a claim that the guard should have been elsewhere during the actual conduct of the count.
Absent testimony that the guard’s presence on the porch violated his duty to exercise reasonable care to prevent inmate cross-overs, appellant’s case must fail on this theory. It is also worth noting that although appellant claimed he was attacked by four to six persons, only one of the two he identified, Pugh, lived in a different wing. Thus, even if the guards negligently permitted Pugh to enter Murphy’s wing, Murphy’s case might still fail in the absence of testimony indicating that Pugh’s participation was essential to the attack.
. The Statement of the Facts segment of Appellant’s Brief includes a passing reference to the tool control and inventory procedures as the testimony of appellant’s expert is recounted. In the Argument portion of the brief, however, appellant argues only that the count procedure evidence and the evidence that Pugh should not have been housed with the general prison population were sufficient to withstand a judgment n. o. v. This indicates appellant’s view of the weight of his tool control argument, and led the District of Columbia reasonably to believe that Murphy had abandoned this aspect of his argument on appeal.