concurring and dissenting:
I join in Judge Ferren’s opinion except for part 111(D). I do not agree with its statement that there is a
general rule, that a prisoner cannot be found contributorily negligent simply because he or she fails to report a dangerous condition which prison management, through its control of the premises, could have reasonably been expected to discover through regular shakedown and maintenance procedures.
Judge Perren’s opinion at p. 644. That statement is at odds with the basic concept that a tort plaintiff must exercise reasonable care for his own safety. Because Judge Steadman concurs only in the result of Part III, the resolution of the issue whether such a rule exists in this jurisdiction must await another case.
Judge Ferren’s opinion observes that where a jury concludes that prison authorities have not made reasonable inspections, with the result that they fail to discover a condition dangerous to prisoners, the District is chargeable with knowledge of what a reasonable inspection would have revealed. This much is indisputable, and it has an important bearing on whether a jury will find prison authorities negligent. The opinion, however, relying on analogies to property law and common carrier law, goes on to state that even if the plaintiff inmate knew of the dangerous condition, he had no duty to report it to prison officials unless “it [was] clear to [him] ... that the prison authorities in fact [did] not know about it” Id. Such an approach would permit prisoners to recover damages for injuries caused in part by their own negligence.
It may be helpful to consider how the proposed rule would operate in a hypothetical situation. If a prisoner should learn that an overhead ventilation cover in his dormitory room is dangerously loose, but does not learn how long it has been in taht condition or whether prison officials had been told of it, it would not be “clear” to him that the prison authorities did not know about the danger over his head. According to the suggested approach, he would be free to go about his business under this sword of Damocles without even advising appropriate prison personnel of the condition, and if the cover should fall and injure him, his action for damages could not be met with a defense of contributory negligence. This is anomalous, for it is incontestable that he would not have taken reasonable care for his own safety, and the trier of fact might conclude that *657his failure to do so was a proximate cause of his injury.
Undeniably, there are situations in which prisoners have no means of avoiding dangerous physical conditions. Thus, the doctrine of assumption of risk is generally unavailable in situations in which prisoners are injured upon confronting risks they were powerless to avoid. In addition, the nature of prison life affects the application of the doctrine of contributory negligence. I agree with Judge Ferren, therefore, that appellee could not have been found contrib-utorily negligent merely by reason of his being present in his room and leaning over a desk under the ventilator. Judge Fer-ren’s opinion at pp. 639-640. I also agree, however, with Judge Steadman that a prisoner’s contributory negligence potentially can take many forms and is not limited to failure to give notice of a dangerous condition. Statement of Judge Steadman, concurring, ante at 655. As Judge Steadman suggests, lingering beneath such a dangerous condition could amount to contributory negligence, id., or an amalgam of contributory negligence and assumption of risk. See opinion of Judge Ferren, ante at 639. But the aspect of Mitchell’s conduct to which the District of Columbia draws particular attention is his failure to give notice of the dangerous condition. An inmate’s imprisonment normally does not prevent him from giving the authorities notice of a condition that endangers him or his fellow prisoners.1 And the suggested approach simply blinks reality when it relies on “an assumption” that notice by a prisoner is “redundant” in cases where prison authorities have not actual but mere constructive notice of the danger. By making the legal fiction of constructive notice the determining factor, the approach would assure that future plaintiffs could recover even in instances in which, in fact, they could have avoided injury by giving notice. It seems inappropriate and unnecessary to weave a new fiction-based doctrine limiting the defense of contributory negligence in the area of notice because, I submit, the usual application of that defense in cases like this one produces results that are fair and in keeping with sound public policy.2
Invoking the long-recognized defense (without the suggested limitation), prison authorities would be able to make out a prima facie case of contributory negligence if they produced evidence (1) that the prisoner knew of the danger, (2) that he failed to report it to prison authorities, and (3) that his failure to report it proximately caused (or concurred in causing) the injury and damages of which he complains.
To prove the element of proximate cause, the prison authorities would have to establish that if the prisoner had given them notice of the condition, it would have made a crucial difference. In other words, it would be the prison authorities’ burden to prove by a preponderance of the evidence that the prisoner’s failure to warn was a substantial proximate cause of the prisoner’s injury. The prisoner could rebut this defense generally by evidence that he had not known of the dangerous condition. He could also offer evidence on the issue of proximate cause tending to show that even if he had known of it and given notice to the prison authorities, his notice would not have led to the remedying of the dangerous condition.
Here, because appellant was entitled to a standard contributory negligence instruction, not the limited instruction suggested in Judge Ferren’s opinion, it follows that the trial court erred in denying appellant’s request for such an instruction. I cannot agree with my colleagues’ conclusion that the failure of the trial court to give that *658instruction was not reversible error. The jury was fully instructed on constructive notice, and could have used that theory to conclude that the District was guilty of primary negligence. The jury heard evidence that was ample to sustain the defense of contributory negligence, but did not have the benefit of the District’s requested instruction, and did not have the issue of contributory negligence before it. The District of Columbia, therefore, is entitled to a new trial with respect to Count I, appellee’s claim for personal injuries resulting from his being struck by a falling ventilator cover.
. I agree with Judge Ferren’s view that different considerations may be present where inmates do not report a condition because of fear of reprisals from other inmates. Judge Ferren’s opinion at page 644, n. 9.
. The practice of permitting the jury to consider the defense of contributory negligence has frequently been recognized in cases in which the evidence would support a finding that a prisoner plaintiff failed to seek protection from prison authorities against a particular danger of attacks by other inmates. See, e.g., Walker v. United States, 437 F.Supp. 1081, 1083 (D.Or.1977); Harris v. State, 118 N.J.Super. 384, 288 A.2d 36, 40 (App.1972); Parker v. State, 261 So.2d 364, 370-71 (La.App.1972).