[Cite as Griffin v. Ohio Dept. of Rehab. & Corr., 2009-Ohio-7021.]

                                                         Court of Claims of Ohio
                                                                             The Ohio Judicial Center
                                                                     65 South Front Street, Third Floor
                                                                                Columbus, OH 43215
                                                                      614.387.9800 or 1.800.824.8263
                                                                                 www.cco.state.oh.us




MARK GRIFFIN, SR.

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant
       Case No. 2007-06918

Judge J. Craig Wright
Magistrate Steven A. Larson

MAGISTRATE DECISION




        {¶ 1} Plaintiff brought this action alleging negligence. The issues of liability and
damages were bifurcated and the case proceeded to trial on the issue of liability.
        {¶ 2} At all times relevant, plaintiff was an inmate in the custody and control of
defendant at the Marion Correctional Institution (MCI), pursuant to R.C. 5120.16.
Plaintiff testified that on Thanksgiving Day 2006, he traded his meal to another inmate in
exchange for an extra piece of pumpkin pie. Plaintiff stated that he ate the first piece of
pie but when he started to eat the second he noticed that it “looked kind of watery” and
he decided not to finish it. According to plaintiff, he returned to his cell after dinner and
became sick, suffering from vomiting and diarrhea. Plaintiff testified that he then went
to “sick call” where he heard several other inmates complaining about the pie. Plaintiff
stated that he was given Pepto Bismol and told that he would be referred to see the
doctor. Plaintiff further stated that he was on the referral list for over 30 days but he
was never examined by the doctor.
        {¶ 3} Plaintiff brings this action alleging negligence.        In order for plaintiff to
Case No. 2007-06918                      -2-                MAGISTRATE DECISION

prevail upon his claim of negligence, he must prove by a preponderance of the evidence
that defendant owed him a duty, that it breached that duty, and that the breach
proximately caused his injuries. Armstrong v. Best Buy Company, Inc., 99 Ohio St.3d
79, 81, 2003-Ohio-2573, citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio
St.3d 75, 77. Additionally, Ohio law imposes a duty of reasonable care upon the state
to provide for its prisoners’ health, care, and well-being. Clemets v. Heston (1985), 20
Ohio App.3d 132, 136. Reasonable or ordinary care is that degree of caution and
foresight which an ordinarily prudent person would employ in similar circumstances.
Smith v. United Properties Inc. (1965), 2 Ohio St.2d 310. However, the state is not an
insurer of inmates’ safety. See Williams v. Ohio Dept. of Rehab. and Corr. (1991), 61
Ohio Misc.2d 699, at 702.
      {¶ 4} Edith Nmachetam was a Correctional Food Service Manager 2 at MCI at
the time of the incident.    Although she was not on duty on Thanksgiving Day,
Nmachetam testified that when she returned to work on Monday, November 28, 2006,1
she heard plaintiff’s complaints regarding the pumpkin pie. Nmachetam stated that as a
result of these complaints, she determined that the production date of the pies was
August 14, 2004, and she contacted the central warehouse that provided the pies to
“check it out.” (Plaintiff’s Exhibit 3.) According to Nmachetam, the warehouse staff
assured her that the pies had been frozen since production and that they were safe to
eat so long as they had not been thawed and refrozen before they were served.
Nmachetam testified that the pies were delivered to the MCI kitchen on the Tuesday
before Thanksgiving and kept in a refrigerator with a temperature range of 36-40
degrees Fahrenheit. Nmachetam further testified that she ate some of the pie on the
day she returned to work, and that “it was fine.” She stated that the pie was served in
the staff dining room for a week after Thanksgiving Day and that she was unaware of
any staff member who became sick.        However, Nmachetam also stated that even
Case No. 2007-06918                           -3-                MAGISTRATE DECISION

though she only received complaints from plaintiff, she arranged for “replacement pie.”
       {¶ 5} Betty Spillman was working as a Correctional Food Service Manager 1 at
MCI on November 23, 2006.            Spillman testified that the pies appeared to be fully
cooked, and that they were stored in the “back cooler” in the MCI kitchen until they were
served. According to Spillman, the pies were cut while still frozen and served cold.
Spillman estimated that approximately 1,800 slices of pie were served on Thanksgiving
Day and that she did not receive any complaint about the pie. Spillman stated that she
ate the pie on both Thanksgiving Day and the following day, that it tasted “ok” to her,
and that it did not make her sick.
       {¶ 6} Robert Davis was working as a Food Service Corrections Officer at MCI
on Thanksgiving Day 2006.            Davis testified that he cut the pies in question
approximately four hours before service and that the pies were “frozen solid.”
According to Davis, he ate a piece of pie that day and on several more occasions “for
the next month.” Davis testified that the pie did not make him sick, that he had no
knowledge of anyone falling ill, and that the pie tasted “excellent.”
       {¶ 7} Based upon the foregoing, the court finds that plaintiff has failed to prove
that he became ill as a result of defendant’s negligence. The court finds that defendant
properly stored and served the pies.         The court also finds that plaintiff’s testimony
regarding both his alleged sickness and the alleged complaints of other inmates about
the pie to be less than credible. Accordingly, it is recommended that judgment be
rendered in favor of defendant.
       A party may file written objections to the magistrate’s decision within 14 days of
the filing of the decision, whether or not the court has adopted the decision during that
14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files objections,
any other party may also file objections not later than ten days after the first objections
are filed. A party shall not assign as error on appeal the court’s adoption of any factual


       1
        The court notes that November 28, 2006, was a Tuesday.
Case No. 2007-06918                        -4-                  MAGISTRATE DECISION

finding or legal conclusion, whether or not specifically designated as a finding of fact or
conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically
objects to that factual finding or legal conclusion within 14 days of the filing of the
decision, as required by Civ.R. 53(D)(3)(b).



                                          _____________________________________
                                          STEVEN A. LARSON
                                          Magistrate

cc:


Douglas R. Folkert                             Mark Griffin, Sr, #300-430
Assistant Attorney General                     Mansfield Correctional Institution
150 East Gay Street, 18th Floor                P.O. Box 788
Columbus, Ohio 43215-3130                      Mansfield, Ohio 44901

Magistrate Steven A. Larson

MR/cmd
Filed November 6, 2009
To S.C. reporter December 29, 2009
