[Cite as Hand v. Ohio Dept. of Rehab. & Corr., 2016-Ohio-2850.]




JEFFREY A. HAND                                       Case No. 2011-07192

       Plaintiff                                      Judge Patrick M. McGrath

       v.                                             DECISION

OHIO DEPARTMENT OF
REHABILITATION AND CORRECTION

       Defendant



        {¶1} On May 3, 2012, a trial was held for the purpose of determining liability only.
On June 18, 2012, the magistrate issued a decision recommending judgment in favor of
defendant. The court adopted the magistrate’s recommendation on the same date.
Plaintiff appealed the decision and on September 30, 2013, the 10th District Court of
Appeals reversed the decision and remanded the case for further proceedings. The
parties agreed to submit briefs and present oral arguments in lieu of a second trial. On
November 13, 2014, the oral hearing was held before a different magistrate of this
court. On May 21, 2015, the magistrate recommended judgment in favor of defendant.
        {¶2} Civ.R. 53(D)(3)(b)(i) states, in part: “A party may file written objections to a
magistrate’s decision within fourteen days of the filing of the decision, whether or not the
court has adopted the decision during that fourteen-day period as permitted by
Civ.R. 53(D)(4)(e)(i).” With leave of the court, plaintiff filed objections on July 2, 2015.
To date, defendant has not filed a response to plaintiff’s objections. Plaintiff raises the
following nine objections:


            a. Objection 1: The Magistrate Erred in Ruling the Defendant Did Not
                Breach the Duty of Ordinary or Reasonable Care.
Case No. 2011-07192                          -2-                                  DECISION


        {¶3} Plaintiff argues that defendant’s employee, Farm Coordinator Dillon, was
made aware of the fact that there was a problem with the clutch on the tractor in
question.    Plaintiff and another inmate informed Farm Coordinator Dillon about the
issues with the clutch on numerous occasions prior to the incident on November 23,
2010.     However, the clutch was never replaced due to budget constraints and the
pending closure of the farm. Plaintiff cites to several decisions in which this court has
held that defendant has a duty to provide appropriate tools, proper safety features, and
safe conditions for working inmates, and it owes inmates a common-law duty of
reasonable care and protection from unreasonable risks of physical harm which may
arise from dangerous conditions of which it is aware or should be aware. Plaintiff also
argues that there is no other explanation for the accident, except for the explanation
offered by plaintiff.
        {¶4} The magistrate found that defendant was aware of the ongoing issue with
the clutch. However, he noted that “the clutch issue was not shown to have posed an
unreasonable risk of harm to those operating the tractor based on plaintiff’s description
of the issue as it existed prior to the accident as well as the absence of evidence
tending to show that defendant’s knowledge of the issue should have alerted defendant
to any risk that the issue might lead to something more serious, like the tractor doing
what plaintiff claims that it did during the accident.” (Magistrate’s Decision, pg. 7).
        {¶5} The defendant owes a common-law duty of reasonable care and protection
from unreasonable risks of harm. Woods v. Ohio Dept. of Rehab. & Corr., 130 Ohio
App.3d 742, 721 N.E.2d 143 (10th Dist.1998); Bickerstaff v. Ohio Dept. of Rehab. &
Corr., 10th Dist. Franklin Nos. 13AP-1028, 13AP-1029, 2014-Ohio-2364; Jenkins v.
Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 12AP-787, 2013-Ohio-5106. The
defendant’s duty includes exercising reasonable care to prevent an inmate from being
injured by a dangerous condition about which the state knows or should know. Woods
at 745.
Case No. 2011-07192                         -3-                                 DECISION


       {¶6} Reasonable or ordinary care is that degree of caution and foresight which an
ordinarily prudent person would employ in similar circumstances. McElfresh v. Ohio
Dept. of Rehab. & Corr., 10th Dist. Franklin No. 04AP-177, 2004-Ohio-5545.
       {¶7} A determination of what degree of care defendant owed to plaintiff must
center on the foreseeability of plaintiff’s injuries. Jeffers v. Olexo, 43 Ohio St.3d 140,
539 N.E.2d 614 (1989). The extent of the duty will also vary with the circumstances.
Woods, 130 Ohio App.3d 742.
       {¶8} “‘[I]f an event causing injury appears to have been closely related to the
danger created by the original conduct, it is regarded as within the scope of the risk,
even though, strictly speaking, the particular injury would not have been expected by a
reasonable man in the actor’s place.” Di Gildo v. Caponi, 18 Ohio St.2d 125, 247
N.E.2d 732 (1969) (emphasis in original), citing Restat 2d of Torts, § 7 (1979). “It is not
necessary that the defendant should have anticipated the particular injury. It is sufficient
that his act is likely to result in an injury to someone.” Neff Lumber Co. v. First Nat’l
Bank, 122 Ohio St. 302, 171 N.E. 327 (1930); Queen City Terminals v. Gen. Am.
Transp. Corp., 73 Ohio St.3d 609, 1995-Ohio-285, 653 N.E.2d 661.
       {¶9} However, “* * * The state is not an insurer of inmate safety, but once it
becomes aware of a dangerous condition[,] it must take reasonable care to prevent
injury to the inmate.” Forester v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No.
11AP-366, 2011-Ohio-6296, quoting Briscoe v. Ohio Dept. of Rehab. & Corr., 10th Dist.
Franklin No. 02AP-1109, 2003-Ohio-3533, ¶ 20, citing Williams v. Ohio Dept. of Rehab.
& Corr., 61 Ohio Misc.2d 699, 583 N.E.2d 1129 (Ct. of Cl.1991).
       {¶10} The magistrate relied on the fact that the tractor in question had never
malfunctioned in such a severe manner prior to the accident, “and even though plaintiff
operated the tractor numerous times he stated that he never experienced any problem
more substantial than the tractor jerking when it was put in or out of gear, and that
nothing made him think he should not operate the tractor.” (Magistrate’s Decision,
Case No. 2011-07192                            -4-                                DECISION


pg. 7).     However, defendant has a duty is to protect inmates from all dangerous
conditions, not just those considered severe or substantial.             If it is reasonably
foreseeable that an injury may result, defendant has a duty to protect its inmates from
said injury. Here, there is ample evidence that defendant was aware of the ongoing
clutch issues with this particular tractor. Defendant was aware that the issue caused
the tractor to jerk forward, rocking the driver back in his seat. The particular injury, a
broken hip, might not have been expected based on the knowledge that the tractor’s
clutch caused a jerking motion.          However, considering the tractor was regularly
operated on uneven ground, including going up and down slopes like the one on which
the accident occurred, it was reasonably foreseeable that the jerking motion may cause
the driver to lose control, resulting in an accident and injury. In failing to properly repair
the clutch issue, defendant violated its duty of ordinary and reasonable care to plaintiff.
          {¶11} Accordingly, plaintiff’s first objection is SUSTAINED.


             b. Objection 2: The Magistrate Erred in Ruling Based on Facts Found by the
                 Magistrate that the Tractor Did Not Present an Unreasonable Risk of
                 Harm to Plaintiff.
          {¶12} Plaintiff argues that defendant was aware that the tractor had a history of
clutch malfunctions which caused it to engage and disengage, and that the clutch
required replacement. However, it was not replaced due to budgetary issues.               He
asserts that defendant was solely responsible for the maintenance of the tractor, and
had a duty to provide inmate with proper tools. He contends that, “[c]ertainly this must
include a tool that is not defective and consistently causes a lurch without warning.”
          {¶13} The court agrees, and for the reasons stated above finds the tractor, in its
state of disrepair, presented an unreasonable risk of harm to plaintiff.
          {¶14} Accordingly, plaintiff’s second objection is SUSTAINED.
Case No. 2011-07192                         -5-                                 DECISION




          c. Objection 3: The Magistrate Erred in Finding Defendant Took Reasonable
              Preventive Measure Regarding the Maintenance of the Tractor and its
              Duty to Prevent Plaintiff from Being Injured by a Dangerous Condition.
       {¶15} The evidence shows that defendant regularly maintained the tractor in
question. However, the clutch issues continued despite this periodic adjustment. There
was also at least one period of time during which defendant placed the tractor out of
service until it was operational again. However, the tractor was not out of service on the
date of the accident. Therefore, defendant allowed plaintiff to use the tractor knowing
that the clutch issue posed an unreasonable risk of injury. In failing to repair the tractor
to remove this risk and/or placing the tractor out of service until the risk was mitigated,
defendant violated its duty of reasonable and ordinary care.
       {¶16} Accordingly, plaintiff’s third objection is SUSTAINED.


          d. Objection 4: The Magistrate Erred in Finding the Injury Plaintiff Sustained
              Was Not Proximately Caused by the Accident.
       {¶17} Plaintiff mischaracterized the magistrate’s finding related to the proximate
cause of his injury. There is no doubt that plaintiff’s injury was caused by the tractor
falling over on him, fracturing his femur. The magistrate did not make a finding that
plaintiff’s injuries were not caused by the accident. Rather, he found that the injury was
not caused by a breach of defendant’s duty to prevent plaintiff from being injured by a
dangerous condition about which it knew or should have known.
       {¶18} Accordingly, plaintiff’s fourth objection is OVERRULED.
Case No. 2011-07192                        -6-                                DECISION


            e. Objection 5: The Magistrate Erred in Ruling the Doctrine of Res Ipsa
               Loquitor Does Not Apply in this Case.
       {¶19} Res ipsa loquitor applies when the plaintiff produces evidence in support of
the following: (1) That the instrumentality causing the injury was, at the time of the
injury, or at the time of the creation of the condition causing the injury, under the
exclusive management and control of the defendant; and (2) that the injury occurred
under such circumstances that in the ordinary course of events it would not have
occurred if ordinary care had been observed. * * *”        Hake v. George Wiedemann
Brewing Co., 23 Ohio St.2d 65, 262 N.E.2d 703 (1970).
       {¶20} The existence of more than one reasonable inference regarding the
causation of an accident precludes the application of the doctrine of res ipsa loquitor.
See Renneckar v. Canton Terminal Restaurant, Inc., 148 Ohio St., 119.           See also
Krupar v. Procter & Gamble Co., 160 Ohio St., 489. Res ipsa loquitor applies when “the
things speaks for itself.” See Stinson v. N.Y. C. R. Co., 30 Ohio App. 539, 165 N.E. 860
(8th Dist.1929).
       {¶21} The magistrate correctly determined that the doctrine of res ipsa loquitor
does not apply. However, the court disagrees with his reasoning: that the proximate
cause of the accident had not been established beyond a speculative degree. The
court finds that res ipsa loquitor does not apply because this is not the type of incident
that “speaks for itself.” It is reasonable to infer that this accident could have occurred
even if defendant had replaced the clutch. Accidents of moving vehicles occur for many
reasons, including user error, surface conditions, etc. There is no evidence to establish
that the accident was caused by a reason other than the faulty clutch. However, the
fact that one could reasonably infer other causes precludes the application of res ipsa
loquitor.
       {¶22} Accordingly, plaintiff’s fifth objection is OVERRULED.
Case No. 2011-07192                          -7-                                  DECISION


          f. Objection 6: The Magistrate Erred in Ruling it was Reasonable to Infer the
              Accident Resulted from Negligence on Part of the Plaintiff because of
              Excessive Speed, Improper Braking, Turning Too Sharp, Failing to Lower
              the Throttle, Failing to Downshift out of Highway Gears, Pressing the
              Wrong Pedal, or a combination of these Factors.
       {¶23} There is simply no evidence to support any of the magistrate’s assertions
regarding negligence on the part of plaintiff. In fact, plaintiff directly refuted that any of
the above named causes played any role in the accident. Plaintiff was the only witness
to the accident, and there is no finding by the magistrate that plaintiff lacked credibility.
Likewise, upon careful review of his testimony, the court finds no reason to question
plaintiff’s account of the accident.
       {¶24} Accordingly, plaintiff’s sixth objection is SUSTAINED.


          g. Objection 7: The Magistrate Erred in Finding that Plaintiff Failed to Prove
              Poor Maintenance or any Act or Omission by Defendant Proximately
              Caused the Accident.
       {¶25} For the reasons stated above, in regards to plaintiff’s first, second, and
third objections, plaintiff’s seventh objection is SUSTAINED.


          h. Objection 8: The Magistrate Erred in Finding that the Evidence was
              Insufficient to Find the Clutch Issue, as Opposed to some other
              Unidentified Mechanical Issue, Caused the Accident of which Defendant
              Did Not Have Notice.
       {¶26} For the reasons stated above, in regards to plaintiff’s first, second, and
third objections, plaintiff’s eighth objection is SUSTAINED.
Case No. 2011-07192                           -8-                                  DECISION


           i.   Objection 9: The Magistrate’s Decision is Against the Manifest Weight of
                the Evidence and is Contrary to Law.
       {¶27} Plaintiff’s testimony regarding the manner in which the tractor reared up
and slid down the hill and over onto its side is corroborated by the condition of the trailer
after the accident. Plaintiff testified that the steel of the hitch of the trailer was bent
straight up at its point of connection with the tractor. Plaintiff is not qualified to offer an
expert opinion on the type of accident and resulting damage to the tractor. However,
plaintiff’s exhibit 3 is a photograph of the trailer hitch/tongue and clearly depicts a
portion of metal which is bent straight up. This circumstantial evidence is corroborative
of plaintiff’s explanation of the accident.
       {¶28} Considering plaintiff’s exhibit 3, and for the reasons stated above, plaintiff’s
ninth objection is SUSTAINED.




                                                    PATRICK M. MCGRATH
                                                    Judge
[Cite as Hand v. Ohio Dept. of Rehab. & Corr., 2016-Ohio-2850.]




JEFFREY A. HAND                                       Case No. 2011-07192

        Plaintiff                                     Judge Patrick M. McGrath

        v.                                            JUDGMENT ENTRY

OHIO DEPARTMENT OF
REHABILITATION AND CORRECTION

        Defendant



        {¶29} On May 21, 2015, the magistrate issued a decision recommending
judgment for defendant.
        {¶30} Civ.R. 53(D)(3)(b)(i) states, in part: “A party may file written objections to a
magistrate’s decision within fourteen days of the filing of the decision, whether or not the
court has adopted the decision during that fourteen-day period as permitted by
Civ.R. 53(D)(4)(e)(i).” Plaintiff timely filed objections.
        {¶31} Upon review of the record, the magistrate’s decision and the objections, the
court finds that the magistrate has properly determined the factual issues and
appropriately applied the law with the exceptions noted in the decision filed concurrently
herewith. Therefore, the objections are OVERRULED, in part, and SUSTAINED, in
part.   The court modifies the magistrate’s decision and recommendation, including
findings of fact and conclusions of law contained therein, consistent with this decision.
Case No. 2011-07192                        -10-                                DECISION


        {¶32} The court finds defendant liable for the injuries caused to plaintiff which
were proximately caused by defendant’s failure to repair the tractor’s clutch. Judgment
is rendered in favor of plaintiff. A case management conference is set for April 8, 2016,
at 10:00 a.m., to discuss further proceedings. The court shall initiate the conference via
telephone.




                                              PATRICK M. MCGRATH
                                              Judge

cc:
Richard F. Swope                             Frank S. Carson
6480 East Main Street, Suite 102             James P. Dinsmore
Reynoldsburg, Ohio 43068                     Assistant Attorneys General
                                             150 East Gay Street, 18th Floor
                                             Columbus, Ohio 43215-3130

Filed March 11, 2016
Sent to S.C. Reporter 5/5/16
