concurring in part.
I concur in that part of Justice Peterson’s opinion which holds that there was insufficient "recognizable risk of harm” alleged to establish liability. To additionally point out the weakness of the opposing opinion, let us suppose that Thompson was himself the prisoner and was allowed to escape by an act of Murphy. No logical difference, insofar as Murphy’s liability is concerned, could be based upon the fact that Thompson helped the prisoner to escape, rather than being the escaping prisoner himself. If such were the case, we would then be faced with whether there is a "recognizable high degree of risk of harm [the opposing language quoted from comment c under § 302.B of the Restatement (Second) of Torts]” that a person who has run away from home and stolen a car would commit a serious physical assault with a deadly weapon if allowed to escape. No one has pointed to any case in the United States where liability has been based upon such a state of facts.
If it became law, the opposing opinion would have serious consequences in that every escape from custody in which the escapee inflicts harm would present a jury case. It is not likely that anyone is going to be in jail who has less a record for violence than Thompson *580had. If this case makes a jury question on the degree of risk, almost any case will. How far the opposing opinion has gone is proved by the fact that it has not cited one case in which an appellate court has gone as far as it proposes to go in imposing liability.