concurring in part and dissenting in part.
The majority goes to wholly implausible lengths to overturn a jury verdict of negligence. It argues that McGill somehow voluntarily assumed the risk of rape by leaving his cell for the unexceptionable purpose of taking a shower and failing to run for home when an unsavory fellow prisoner popped up at his heels. I don’t know what this approach to risk assumption in rape cases holds in store for multitudes of females innocently walking the streets or taking the sun on the beach. But it certainly is a novel (and unfashionable) approach.
McGill testified that, soon after he left his cell, Ausley began pushing him toward the shower and threatened to throw him over the cell range if he offered any resistance. The district court found, therefore, that McGill did not voluntarily incur the risk of rape but instead was induced to continue despite the danger. For under Indiana law, a plaintiff assumes the risk of a known danger only if there is a reasonable opportunity to escape from it and if the exposure to the risk was not itself the result of inducement negating voluntariness. In Get-N-Go, Inc. v. Markins, 544 N.E.2d 484 (Ind.1989), for example, an elderly woman took several steps into a parking lot before she realized how icy it was. Faced with the choice of retreating or proceeding, both of which presented the risk of falling on the ice, she chose to proceed and fell. See also Hollowell v. Midwest *355Smorgasbord, Inc., 486 N.E.2d 16 (Ind. App.1985) (no assumption of risk when plaintiff continued walking on wet floor after he had walked part way before realizing the danger).
Attempting to distinguish Get-N-Go, the majority suggests that McGill possessed a number of alternatives: he could have retreated to his cell and locked the door as soon as he saw Ausley coming his way, he could have arranged in advance for an individual shower period or he could have alerted the prison guards to his danger. But the majority’s perception of McGill’s situation runs up against a stone wall of stark reality. For, as the majority opines (without contradiction from me), “prisons are dangerous places.” An inmate’s decision to leave his cell is always fraught with peril. But certainly no inmate (no matter how “attractive”) assumes the risk of rape simply by leaving his cell when he knows other inmates lurk at large. The unsoundness of this proposition is revealed by extending it to heterosexual conduct in the world at large. Admittedly, this is a negligence action against a third party, not a suit against the rapist, but the burden of an exaggerated risk assumption doctrine upon rape victims in any such situation conflicts with the trend of the law.
In any event, the elderly woman in Get-N-Go could have refrained (as McGill is urged to do here) from leaving her home in inclement weather when she was well aware of the icy conditions outside. McGill’s situation precisely parallels that of the plaintiff in Get-N-Go: once he left his cell to take a shower during the one-hour recreation period and discovered Ausley close on his heels threatening to throw him over the cell range, his options ran out. McGill’s decision to proceed to the showers and not request help from the prison guards, while he was terrified by the threatening Ausley close behind, certainly does not amount to a deliberate or conscious acceptance of risk. See Mauller v. City of Columbus, 552 N.E.2d 500 (Ind. App.1990) (“ ‘By definition ... the very essence of incurred risk is ' the. conscious, deliberate and intentioi^p^mbarkation upon a course of conduct with knowledge of the circumstances.’ ”) (quoting Power v. Brodie, 460 N.E.2d 1241, 1243 (Ind.App. 1984)). ,
The burden of establishing the affirmative defense of assumption of risk, moreover, lies with the defendants and not with McGill. The Indiana Supreme Court instructs that “[w]hen a trial court decides an issue adversely to a party'" who has the burden of proof on that issue,, the appellate court is not free to reweigh the • evidence or judge the credibility of the fitnesses. Reversal of the trial court is wftÉnted only if the evidence which is npt in confect leads solely to a conclusion contrary to that reached by the jury.” Get-N-Go, 544 N.E.2d at 486. Attempting to draw a fine line between “cases wheid the .plaintiff’s alternatives are ‘fraught with tfieir own perils,’ ” supra at 352, and cases where “the plaintiff has safe alternatives that would avoid the danger,” supra at 352, the majority strains to put this case in the “safe alternatives” category. I am not sure the issue is even close;.hql'g, . Certainly the evidence does not “lead[] solely to a conclusion contrary to that, reached by” the district court. Likening this case to Get-N-Go, the district court reasonably concluded, based upon all the evidence, that McGill did not voluntarily assume the risk of a homosexual rape. It is certainly not for us to reweigh the evidence and second-guess the district court’s determination on this sensitive, fact-intensive question. To do so is virtually to exculpate prison authorities in advance for any responsibility to provide protection against homosexual rape. I therefore respectfupyi^issent.1
. I agree that the Eighth Amendment theory may not fly because McGill could not establish that the defendants had actual knowledge of the threat of rape and yet failed to intervene.