DISSENTING OPINION OF
KOBAYASHI, J„ WITH WHOM CIRCUIT JUDGE SODETANI JOINSIn my opinion, the State’s liability for the injuries suffered by Ajirogi can be found on either of two approaches:
I. Duty:
Section 319, Restatement of Torts 2d, provides:
Duty of Those in Charge of Person having Dangerous Propensities
One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the -third person to prevent him from doing such harm.
The comment to this section is as follows:
a. The rule stated in this section applies to two situations. The first situation is one in which the actor has charge of one or more of a class of persons to whom the tendency to act injuriously is normal. The second situation is one in which the actor has charge of a third person who does not belong to such a class but who has a peculiar tendency so to act of which the actor from personal experience or otherwise knows or should know.
It is uncontested and admitted by the majority in their opinion that at the critical date of August 29, 1972, the State had charge (committed, had custody or held in detention) of T.
*530T’s commitment to the State hospital as an insane person by court order of September 25,1969, remained undischarged by court action. T had also been placed in detention at the State hospital for the purposes of a mental examination to determine his criminal responsibility in a pending prosecution.
In the prosecution which was pending, T escaped from the State hospital prior to any disposition of T’s status by the trial court, based on a report of a panel of medical experts, and in accordance with the provisions of HRS § 711-91 (1968).
No one doubts that the State was negligent, as the trial court found, in permitting T to escape.
In my opinion, clearly, Section 319, Restatement of Torts 2d, applies and the State was under a duty to exercise reasonable care to control T to prevent T from harming appellees. Jones v. United States, 399 F.2d 936 (1968); Thall v. State, 69 Misc.2d 382, 329 N.Y.S.2d 837 (1972); Weihs v. State, 267 A.D. 233, 45 N.Y.S.2d 542 (1943); Williams v. State, 308 N.Y. 548, 127 N.E.2d 545 (1955); Annotations — Liability of public officer or body for harm done by prisoner permitted to escápe, 44 A.L.R.3d 899 (1972); Liability of one releasing institutionalized mental patient for harm he causes, 38 A.L.R.3d 699 (1971).
As the opinion of the majority shows, T has been, from the age of 12, diagnosed as mentally retarded, mentally ill, insane, and/or suffered from mental disorders. The State hospital knows T very well and has a long record in regard to T’s frequent confinement at the State hospital. The State was fully aware of T’s propensities to harm himself and the person and property of others.
The majority in their opinion minimize the knowledge had by the State of T’s propensities to harm himself or the person or property of others.
Further, the majority misconstrue Abraham v. Onorato Garages, 50 Haw. 628, 446 P.2d 821 (1968). In Onorato, this court did not hold that “a hit and run conviction involving a parked automobile four years prior to the entrusting, plus an earlier joyriding conviction, were held insufficient to permit a jury to find negligent entrustment. ” (Emphasis added.)
*531This Court, in Onorato, actually stated: “There is no evidence that Onorato had any knowledge of this criminal record. Therefore, it cannot be held liable . . . unless it should have known about the facts which purportedly demonstrated McCoy’s incompentency. ...” (Emphasis added.) Id. 50 Haw. at 633, 446 P.2d at 825.
Clearly, either alternatives stated in the commentary to Section 319 applies herein. The State failed to exercise reasonable care to control T to prevent T from harming the appellees.
The liability of the State for negligence in exercising control over persons in its custody is to be judged under the same principles of tort liability as those which determine the liability of private individuals in the same circumstances. HRS § 662-2; Upchurch v. State, 51 Haw. 150, 454 P.2d 112 (1969).
II. Foreseeability:
In my opinion, the majority in their opinion misconstrue the tenor of the court’s opinions in both Rodrigues v. State, 52 Haw. 156, 472 P.2d 509 (1970), and Kelley v. Kokua Sales & Supply, Inc., 56 Haw. 204, 532 P.2d 673 (1975).
In both Rodrigues and in Kelley the court supported the general rule that duty is primarily a question of law. In Rodrigues the court states:
Duty, however, is a legal conclusion which depends upon “the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.” (Emphasis added.)
52 Haw. at 170, 472 P.2d at 518.
In Kelley v. Kokua Sales & Supply, Inc., supra, the court states:
Without a reasonable and proper limitation of the scope of the duty of care owed by appellees, appellees would be confronted with an unmanageable, unbearable and totally unpredictable liability.
*532Thus, notwithstanding our sympathies for the appellants ... a reevaluation of the various considerations . . . leads this court to conclude, as a matter of law, that the appellees do not owe a duty to refrain (duty of care) from the negligent infliction of serious mental distress upon Mr. Kelley. (Emphasis added.)
56 Haw. at 209, 532 P.2d at 676.
In Kelley this Court dealt with the matter of foreseeability only in connection with limiting “the scope of the duty of care”, and only incidentally concluded that the consequence to Mr. Kelley was not foreseeable. Furthermore, Kelley can be clearly distinguished from the instant case. In Kelley, if this court did not limit the “scope of the duty of care”, the liability of the actor could have been premised on a worldwide basis. Such a possibility does not exist in the instant case. And there is no such urgency or policy requirement herein to limit the “scope of the duty of care” of the State.
As stated in Carreira v. Territory, 40 Haw. 513 (1954), at 517:
. . . but where there is no conflict from the evidence and but one inference can be drawn from the facts, it is the duty of the court to pass upon the question of negligence and proximate cause as questions of law.
That is not the case herein, as tacitly admitted by the majority in their opinion.
Clearly, in the instant case, foreseeability is a question of fact as determined by the trier of fact.
In Farrior v. Payton, 57 Haw. 620, 562 P.2d 779 (1977), this Court quoted with approval the following from Machacado v. City of New York, 365 N.Y.S. 2d 974 (1975):
“It is for a jury to determine whether the owner had the duty to do other than erect the fence knowing that it bordered upon a sidewalk used by the public and that his dog had the propensity to charge at and frighten passing pedestrians.
“Similarly, the issues of proximate cause and foreseeability are questions of fact. . . .
“The exercise of reasonable care transcends the fence itself thereby requiring a jury’s examination of all of the *533circumstances leading up to the injury.
“Whether an owner owes no further duty than to erect a fence under the circumstances of this case and without other reasonable safeguards or restraints is a question to be answered by community standards through a jury’s verdict.” (Emphasis added.)
57 Haw. at 631-32, 562 P.2d at 787. See also, McKenna v. Volkswagenwerk, 57 Haw. 460, 558 P.2d 1018 (1977).
The majority of the Court, however, simply disregard the findings of fact of the trial court as listed in part III of the opinion of the majority. The majority, by improperly relying upon Rodrigues and Kelley, conclude that “the court is not bound by the trial court’s findings.”
Yet, Rule 52(a), HRCP, provides that, “in all actions tried upon the facts without a jury . . . findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” See Associated Engineers & Contractors, Inc. v. State, 58 Haw. 187, 567 P.2d 397 (1977).
In my opinion, the findings of fact of the trial court are sufficiently, in fact strongly, supported by the record herein.
The foreseeability of the risk of harm is stated by Prosser, Law of Torts, 4th ed. at 268 (1971), as in “universal agreement that what is required to be foreseeable is only the ‘general character’ or ‘general type’ of the event or the harm, and not its ‘precise’ nature, details, or above all manner of occurrence.”
I see no ground to reverse the trial court. In fact, on the matter of balancing policy considerations, in my opinion, this case is an outstanding case wherein the State must be held liable for its dereliction and be required to pay for the harm resulting to the appellees. Sense of justice and equity calls for such a result.