[Cite as Literal v. Dept. of Rehab. & Corr., 2016-Ohio-8536.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT



Timothy Literal,                                        :

                 Plaintiff-Appellant,                   :
                                                                      No. 16AP-242
v.                                                      :        (Ct. of Cl. No. 2015-00501)

Department of Rehabilitation and                        :       (REGULAR CALENDAR)
Correction,
                                                        :
                 Defendant-Appellee.
                                                        :




                                          D E C I S I O N

                                   Rendered on December 30, 2016



                 On brief: The Tyack Law Firm Co., LPA, and Thomas M.
                 Tyack, for appellant. Argued: Thomas M. Tyack.

                 On brief: Michael DeWine, Attorney General, Eric A.
                 Walker, and Christopher L. Bagi, for appellee.

                              APPEAL from the Court of Claims of Ohio
SADLER, J.
        {¶ 1} Plaintiff-appellant, Timothy Literal, appeals from a judgment of the Court of
Claims of Ohio in favor of defendant-appellant, Department of Rehabilitation and
Correction ("DRC"). For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On May 22, 2013, appellant was serving a prison sentence for aggravated
robbery at appellee's Oakwood Correctional Institution. On May 22, 2013, an inmate by
the name of Michael Sholler assaulted appellant, breaking appellant's nose and elbow and
No. 16AP-242                                                                                 2


causing a brain injury that required hospitalization. On May 18, 2015, appellant filed a
complaint against DRC in the Court of Claims alleging that DRC "knew or should have
known Sholler posed a substantial and serious risk to Plaintiff and other inmates * * * due
to his known history and propensity to engage in violent behavior towards others and the
behavior Sholler was exhibiting prior to his attack upon Plaintiff." (Compl. at ¶ 18.) The
complaint further alleges that DRC's negligence in failing to keep Sholler confined to his
cell, pursuant to its own rules and the orders of its Rules Infraction Board ("RIB"),
"directly and proximately caused Plaintiff to be viciously attacked by Sholler." (Compl. at
¶ 24.)
         {¶ 3} Appellant testified about the assault in his deposition. According to
appellant, he was housed in a cell on the second floor of unit West 2 at the time of the
assault, a unit used for inmates in protective control ("PC"). Appellant estimated that
there were approximately 70 or 80 inmates housed in the PC unit. Appellant recalled that
inmate Sholler arrived at West 2 about three months before the assault. Sholler occupied
a cell three or four cells up the hallway from appellant's cell. Though appellant came to
know Sholler as "Mike" and had seen him in the hallways and in the chow hall, he had
little contact with Sholler and did not know Sholler personally. (Appellant's dep. at 23.)
Appellant testified that on the day of the assault, a correction officer ("C.O.") called count
time at approximately 10:30 a.m., as was the custom. According to appellant, all inmates
are to be in their cells during count time which typically lasts from 10:30 a.m. to 11:30
a.m. The only exceptions are the inmate porters who perform cleaning work in the
common areas of the cell block during count time.
         {¶ 4} Appellant testified that he was working as a porter that day performing
cleaning duties throughout the unit. Appellant acknowledged that on occasion he
provided chemical cleaners to other inmates in the unit for use in their cells, but he did
not recall Sholler asking him for chemicals on the day of the assault. Appellant testified
that as he walked past Sholler's cell, Sholler stepped out of his cell and into the hall saying
"hey, Literal." (Dep. at 41.) Appellant recalled that as soon as he looked up, Sholler
punched him.      The next thing appellant remembered was waking up in the prison
infirmary.
No. 16AP-242                                                                             3


       {¶ 5} DRC video surveillance equipment captured Sholler's assault on appellant.
Appellant viewed the videotaped surveillance footage as he testified in his deposition, and
he acknowledged that the video refreshed his recollection of the assault. According to
appellant, the video shows him leaving the day room and walking up the hallway toward
Sholler's cell. Appellant is shown carrying a bottle of cleaning fluid and handing it to
Sholler before walking back toward the day room. The videotape recorded the time at
10:52:29. The video next shows Sholler walking toward the day room where he says
something to appellant. Appellant testified that he could not remember what Sholler said
to him, but in a statement appellant gave to a state trooper on June 11, 2013, appellant
recalled that Sholler had said "hey, Timmy let me holler at you." (Dep. at 47.) At
10:54:56, the video shows Sholler punching appellant in the head and appellant falling to
the floor.
       {¶ 6} Appellant testified that he never met or knew Sholler before Sholler moved
into the cell block. In the three months Sholler occupied the nearby cell, appellant never
had any problems with Sholler, never received a threat of any kind from Sholler, and had
no fear of Sholler. Appellant testified that if he had any concerns about his safety around
Sholler, he would have reported his concerns to a C.O. and would avoid getting "within
arm's reach" of Sholler. (Dep. at 41.) According to appellant, the video confirms the fact
he displayed no concern that Sholler had left his cell in the moments before the assault
and no fear as Sholler approached him just seconds before the attack. Appellant testified
that he never learned Sholler's reason for assaulting him, and he still has no idea why
Sholler attacked him on May 22, 2013.
       {¶ 7} On November 24, 2015, DRC filed a motion for summary judgment,
pursuant to Civ.R. 56(B), arguing that it was entitled to judgment as a matter of law
because appellant's deposition testimony proves that DRC did not have prior notice that
Sholler would assault appellant. Appellant opposed the motion arguing that Sholler's
documented history of fights with, and assaults on, other inmates combined with Sholler's
other rule violations permit the inference that DRC knew or should have known that
Sholler would assault him. In opposition to the motion for summary judgment, appellant
submitted incident reports and RIB rulings dating back to July 2010 evidencing Sholler's
prior violence towards other inmates. The incident reports also document the misconduct
No. 16AP-242                                                                                4


that prompted the RIB to temporarily confine Sholler to his cell for a period of ten days,
up to and including the day of the assault on appellant.
       {¶ 8} On March 1, 2015, the Court of Claims granted DRC's motion for summary
judgment and entered judgment in favor of DRC. Appellant timely appealed to this court
from the judgment of the Court of Claims.
II. ASSIGNMENT OF ERROR
       {¶ 9} Appellant assigns the following error:
              THE TRIAL COURT ERRED IN GRANTING SUMMARY
              JUDGMENT      TO     THE     DEPARTMENT    OF
              REHABILITATION AND CORRECTIONS [sic] ON THE
              BASIS THAT THE DEPARTMENT OF REHABILITATION
              AND CORRECTIONS [sic] DID NOT HAVE ACTUAL
              KNOWLEDGE THAT INMATE SHOLLER INTENDED TO
              ATTACK MR. LITERAL, BASED ON SOME INTERACTION
              BETWEEN THEM FINDING THAT GIVEN THE
              CIRCUMSTANCES AND SHOLLER'S HISTORY OF
              VIOLENCE DID NOT PUT THE DEPARTMENT OF
              REHABILITATION ON "CONSTRUCTIVE NOTICE" THAT
              HE WAS A DANGER OR HARM TO THE PLAINTIFF OR
              OTHER PRISONERS IN THE INSTITUTION.

III. STANDARD OF REVIEW
       {¶ 10} We review a summary judgment motion de novo.              Koos v. Cent. Ohio
Cellular, Inc., 94 Ohio App.3d 579, 588 (8th Dist.1994), citing Brown v. Scioto Cty. Bd. of
Commrs., 87 Ohio App.3d 704, 711 (4th Dist.1993). When an appellate court reviews a
trial court's disposition of a summary judgment motion, it applies the same standard as
the trial court and conducts an independent review, without deference to the trial court's
determination. Maust v. Bank One Columbus, N.A., 83 Ohio App.3d 103, 107 (10th
Dist.1992); Brown at 711. We must affirm the trial court's judgment if any grounds the
movant raised in the trial court support it. Coventry Twp. v. Ecker, 101 Ohio App.3d 38,
41-42 (9th Dist.1995).
       {¶ 11} Pursuant to Civ.R. 56(C), summary judgment "shall be rendered forthwith if
the pleadings, depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed in the action,
show that there is no genuine issue as to any material fact and that the moving party is
No. 16AP-242                                                                               5


entitled to judgment as a matter of law." Accordingly, summary judgment is appropriate
only under the following circumstances: (1) no genuine issue of material fact remains to
be litigated, (2) the moving party is entitled to judgment as a matter of law, and
(3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds
can come to but one conclusion, that conclusion being adverse to the nonmoving party.
Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978).
       {¶ 12} "[T]he moving party bears the initial responsibility of informing the trial
court of the basis for the motion, and identifying those portions of the record before the
trial court which demonstrate the absence of a genuine issue of fact on a material element
of the nonmoving party's claim." Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). " 'The
requirement that a party seeking summary judgment disclose the basis for the motion and
support the motion with evidence is well founded in Ohio law.' " Vahila v. Hall, 77 Ohio
St.3d 421, 429 (1997), quoting Mitseff v. Wheeler, 38 Ohio St.3d 112, 115 (1988). Thus,
the moving party may not fulfill its initial burden simply by making a conclusory assertion
that the nonmoving party has no evidence to prove its case. Dresher at 293. Rather, the
moving party must support its motion by pointing to some evidence of the type set forth
in Civ.R. 56(C), which affirmatively demonstrates that the nonmoving party has no
evidence to support the nonmoving party's claims. Id.
       {¶ 13} If the moving party has satisfied its initial burden under Civ.R. 56(C), then
"the nonmoving party * * * has a reciprocal burden outlined in Civ.R. 56(E) to set forth
specific facts showing that there is a genuine issue for trial and, if the nonmovant does not
so respond, summary judgment, if appropriate, shall be entered against the nonmoving
party." Id.
IV. LEGAL ANALYSIS
       {¶ 14} In appellant's sole assignment of error, appellant argues that the Court of
Claims erred when it held that DRC was entitled to judgment as a matter of law because
appellant failed to produce evidence that would permit a reasonable inference that DRC
had prior notice that Sholler would assault him. We disagree.
       {¶ 15} To prevail on a negligence claim, appellant must establish that (1) DRC
owed him a duty, (2) DRC breached that duty, and (3) DRC's breach proximately caused
his injuries. Briscoe v. Dept. of Rehab. & Corr., 10th Dist. No. 02AP-1109, 2003-Ohio-
No. 16AP-242                                                                              6


3533, ¶ 20, citing Macklin v. Dept. of Rehab. & Corr., 10th Dist. No. 01AP-293, 2002-
Ohio-5069. "In the context of a custodial relationship between the state and its inmates,
the state owes a common-law duty of reasonable care and protection from unreasonable
risks of physical harm." McElfresh v. Dept. of Rehab. & Corr., 10th Dist. No. 04AP-177,
2004-Ohio-5545, ¶ 16, citing Woods v. Dept. of Rehab. & Corr., 130 Ohio App.3d 742,
744-45 (10th Dist.1998). "Reasonable care is that degree of caution and foresight an
ordinarily prudent person would employ in similar circumstances." McElfresh at ¶ 16.
The state's duty of reasonable care does not render it an insurer of inmate safety.
Williams v. S. Ohio Corr. Facility, 67 Ohio App.3d 517, 526 (10th Dist.1990), citing
Clemets v. Heston, 20 Ohio App.3d 132 (6th Dist.1985). "However, 'once [the state]
becomes aware of a dangerous condition[,] it must take reasonable care to prevent injury
to the inmate.' " Watson v. Dept. of Rehab. & Corr., 10th Dist. No. 11AP-606, 2012-Ohio-
1017, ¶ 8, quoting Briscoe at ¶ 20, citing Williams v. Dept. of Rehab. & Corr., 61 Ohio
Misc.2d 699 (1991).
       {¶ 16} The law of this district with regard to DRC liability for an assault by one
inmate on another has been established in a number of decisions of this court including
Baker v. Dept. of Rehab. & Corr., 28 Ohio App.3d 99 (10th Dist.1986); Watson; and Allen
v. Dept. of Rehab. & Corr., 10th Dist. No. 14AP-619, 2015-Ohio-383. Here, appellant
alleges that DRC was negligent in failing to prevent the assault by Sholler. In Watson, this
court reiterated the legal standard applicable to such claims as follows:
              The law is well-settled in Ohio that ODRC is not liable for the
              intentional attack of one inmate by another, unless ODRC has
              adequate notice of an impending assault. Mitchell v. Ohio
              Dept. of Rehab. & Corr., 107 Ohio App.3d 231, 235, 668
              N.E.2d 538 (10th Dist.1995), citing Baker v. State, Dept. of
              Rehab. & Corr., 28 Ohio App.3d 99, 28 Ohio B. 142, 502
              N.E.2d 261 (10th Dist.1986). Notice may be actual or
              constructive, the distinction being the manner in which the
              notice is obtained rather than the amount of information
              obtained. Hughes v. Ohio Dept. of Rehab. & Corr., 10th Dist.
              No. 09AP-1052, 2010 Ohio 4736, ¶ 14. Actual notice exists
              where the information was personally communicated to or
              received by the party. Id. "Constructive notice is that notice
              which the law regards as sufficient to give notice and is
              regarded as a substitute for actual notice." Id., citing In Re
No. 16AP-242                                                                                 7


               Estate of Fahle, 90 Ohio App. 195, 197, 105 N.E.2d 429 (6th
               Dist.1950).

Id. at ¶ 9. See also Allen at ¶ 18.
       {¶ 17} In Watson, this court declined to infer that the inmate/assailant was a
danger to his cell mate and other inmates based on erratic behavior such as "boxing" his
cell mate's locker and crouching in a defensive posture. Id. at ¶ 10. In affirming a
judgment of the Court of Claims in favor of DRC, this court found that the behavior of the
inmate/assailant " 'does not translate into actual or constructive notice that [he] posed a
risk of violence or that his attack on [the injured inmate] was forthcoming.' " Id. at ¶ 15,
quoting Hughes v. Dept. of Rehab. & Corr., 10th Dist. No. 09AP-1052, 2010-Ohio-4736,
¶ 15. This court reasoned that the inmate/assailant in Watson had "never exhibited
violent tendencies or assaultive behavior toward [the victim] or any other inmate during
his incarceration at [the prison]. Further, while [the assailant's] actions prior to the
assault were certainly bizarre, he did not threaten or act violently toward [the victim] or
any other inmate." Id. at ¶ 19.
       {¶ 18} In Allen, the complaint alleged that the plaintiff sustained injuries when his
cell mate, Decost, assaulted him by "punching [him] in the back (kidney)." Id. at ¶ 2.
DRC filed a motion for summary judgment arguing that plaintiff could not show that DRC
had notice of an impending assault on plaintiff. The Court of Claims granted the motion
for summary judgment, and the plaintiff appealed to this court.
       {¶ 19} In affirming the Court of Claims, this court noted that the plaintiff's affidavit
did not contain sufficient facts on which it may be reasonably inferred that DRC had
constructive notice that an assault on appellant was imminent. We stated that "[w]hile
appellant avers that Decost threatened other inmates, he does not claim that Decost ever
made good on those threats. The fact that DRC knew that Decost was a violent offender
who had made threats of violence toward other inmates is insufficient, standing alone, to
establish constructive notice to DRC of an imminent attack on appellant." Id. at ¶ 22.
       {¶ 20} In Baker, this court reviewed an inmate's claim against DRC for damages
arising from an assault by another inmate. In that case, the plaintiff was assaulted by
other inmates shortly after plaintiff had made some "vague statements" to prison guards
about his need to be relocated. Id. at 100. Plaintiff had also been slapped in the face by
No. 16AP-242                                                                                 8


one of his assailants on the day of the assault. Id. In affirming the trial court's judgment
in favor of DRC, this court held that DRC could not be held liable to the plaintiff for failing
to prevent the assault because C.O.s did not have adequate notice of an impending
assault.   Id.   In so holding, the court stressed the fact that the plaintiff had never
requested protective custody or directly expressed his fears of an impending assault to any
of DRC's employees. Id.
       {¶ 21} There is no claim in this case that DRC had actual notice of an impending
assault by Sholler on appellant or any other inmate in West 2. There is no evidence that
Sholler made any such threats and no evidence that any inmate in the PC unit had
informed DRC that they feared an assault by Sholler. Appellant's deposition testimony
establishes that he had no reason to fear an assault by Sholler. The only reasonable
conclusion to draw from appellant's deposition testimony is that the attack by Sholler on
May 22, 2013 was unprovoked and unexpected. Under such circumstances, DRC cannot
be liable to appellant for failing to prevent that assault by Sholler.
       {¶ 22} Nonetheless, appellant argues that Sholler's institutional record of violence
against other inmates and the more recent rule violations that resulted in a cell isolation
penalty are sufficient to create a triable issue of constructive notice on the part of DRC.
Sholler's disciplinary record shows that he was found guilty of fighting with his cell mate
in 2010 and with another inmate later in the same year. Appellant produced evidence
that Sholler assaulted an inmate in 2010 because Sholler allegedly believed the other
inmate had molested his daughter. The institutional records indicate that Sholler
assaulted a second inmate in early 2012, but the record does not reveal the reason for the
second assault. Following each incident, the RIB imposed progressively stiffer sanctions
against Sholler and in each case the RIB recommended Sholler's separation from the
other inmate involved.
       {¶ 23} The institutional record also evidences rule violations by Sholler that are
unrelated to violence against other inmates.         For example, the institutional record
establishes that Sholler was on cell isolation at the time of the assault, which means that
he is allowed out of his cell only for one or two hours per day. The RIB imposed the
penalty because a C.O. had observed Sholler giving a tattoo to another inmate and
No. 16AP-242                                                                              9


because C.O.s found homemade alcohol when they searched Sholler's cell.1 A few days
before the assault on appellant, the RIB imposed 20 days of bed restriction after finding
Sholler guilty of "jerking away" from a C.O. (May 20, 2013 Hearing Officer Report at 1.)
Sholler was still serving the cell isolation and bed restriction penalties when he assaulted
appellant.
           {¶ 24} In Kordelewski v. Dept. of Rehab. & Corr., 10th Dist. No. 00AP-1109
(June 21, 2001), the issue for this court was whether the Court of Claims erred by entering
judgment in favor of DRC on an inmate's claim that DRC was negligent in permitting him
to be assaulted by another inmate. In Kordelewski, both the inmate assailant and the
appellant were housed in the PC unit. The assailant punched appellant in the jaw as
appellant reentered the dorm after recreation. The evidence did not reveal any prior
threats against appellant by the assailant or any disputes between the two inmates in the
four to six months they had been housed in the same dorm. Thus, appellant conceded
that DRC did not have actual notice that the assailant would attack him. Appellant in
Kordelewski predicated his allegation of constructive notice exclusively on the assailant's
institutional record of violence against other inmates. The institutional record included
"an assaultive past history that includes five (5) assaults on staff, numerous
assaults/fights with inmates, and has raped two inmates." Id.
           {¶ 25} In affirming judgment in favor of DRC, this court determined that such
evidence did not permit a finding that DRC had constructive notice of an impending
assault on appellant. In so ruling, we observed:
                    Appellant did not introduce evidence at trial in the present
                    case that Reeves' institutional record of violence was, for an
                    inmate in protective custody, so out of the ordinary as to
                    warrant measures beyond those already taken by ODRC staff.
                    While the assault on appellant appears to have triggered
                    further disciplinary action against Reeves, which seems
                    entirely appropriate, we cannot from the record state the
                    manifest weight of the evidence called for additional
                    segregation of inmate Reeves prior to the assault. We
                    accordingly find ODRC cannot be found liable for the attack
                    solely on the basis of Reeves' institutional history of violent
                    incidents.

1   Sholler's cell mate reported that the alcohol was his, not Sholler's.
No. 16AP-242                                                                              10


Id.
       {¶ 26} Sholler's institutional record does not reveal the same degree of violence
displayed by the inmate/assailant in Kordelewski. There is no evidence that Sholler
assaulted DRC staff and no evidence that Sholler raped any other inmate.            Though
Sholler's institutional record establishes a history of violent incidents with other inmates,
the last of which occurred more than one year before the assault on appellant, such a
history, standing alone, does not permit an inference that DRC either knew or should
have known Sholler would attack appellant. Given the undisputed evidence that Sholler
had no prior disputes with appellant and had made no threats against appellant or any
other inmate in the PC unit, there is nothing in the record to create an issue of fact
regarding constructive notice of an impending assault on appellant by Sholler.
       {¶ 27} Appellant's argument in regard to notice in this case rests almost exclusively
on this court's recent 2-1 decision in Frash v. Dept. of Rehab. & Corr., 10th Dist. No.
14AP-932, 2016-Ohio-360. In Frash, inmate Groves attacked and killed inmate Frash.
Frash worked as a dog handler at the Ross Correctional Institution and was walking a dog
out in the recreation yard when he was approached by Groves. Groves and Frash had
words when Groves threatened to kill the dog. "[S]hortly after" this incident, Groves
attacked and killed Frash in the day room by repeatedly stabbing him with a shank made
from a pair of upholstery shears. Id. at ¶ 9.
       {¶ 28} In Frash, the majority determined that the following facts were sufficient to
put DRC on notice that Groves would assault another inmate, notwithstanding the fact
that DRC lacked information about exactly whom Groves would assault: (1) Grove's
regular and repetitive record of stabbing violence against other inmates (incidents in
1984, 1988, 1994, 1996, and 1999 before being placed on level 5 security) leading up to
this incident in 2010 (which was 4 years after being transferred to level 3 security in
2006); (2) the fact that these incidents were a direct result of Groves' permanent mental
condition as a sufferer of paranoid schizophrenia; (3) the fact that the only guard on duty
nearby was an inexperienced relief officer who had only worked at the prison for two
weeks; (4) did not know the numbers to call in the event of an emergency; and (5) thought
he was guarding level 2 prisoners (less dangerous) when he was really guarding level 3
prisoners (more dangerous). Id. at ¶ 2, 16-19.
No. 16AP-242                                                                               11


       {¶ 29} Appellant argues that, pursuant to Frash, it is no longer necessary for
appellant to produce evidence that DRC was aware that Sholler made threats of violence
against him in order for appellant to create an issue of fact regarding constructive notice.
According to appellant, under Frash, evidence that Sholler has a history of violence
against other inmates, standing alone, is sufficient to create an issue of fact whether DRC
knew or should have known of an impending assault on appellant by Sholler. We do not
believe that Frash stands for such a proposition.
       {¶ 30} Following the release of the majority decision in Frash, DRC filed a motion
for en banc consideration arguing that the decision was in conflict with several other prior
decisions of this court, including Watson and Allen. In Frash v. Dept. of Rehab. & Corr.,
10th Dist. No. 14AP-932, 2016-Ohio-3134 ("Frash II"), this court denied DRC's motion.
In so doing, the majority explained that the decision in Frash did not change the law of
this district with regard to constructive notice:
               We did not hold in Frash that it is never (or even not
               generally) necessary to have notice of against whom an attack
               is impending. The law is that in order to be liable, ODRC
               must have had notice, actual or constructive, of an impending
               attack. See e.g., Metcalf v. Ohio Dept. of Rehab. & Corr., 10th
               Dist. No. 01AP-292, 2002-Ohio-5082, ¶ 11. Whether ODRC
               had or did not have notice is a question that depends on all
               the factual circumstances involved, only one of which is
               whether ODRC had information about exactly whom would be
               attacked.

               ***

               In short, Frash does not change the law that, as we have
               observed in past cases, it would often be unfair to say that
               ODRC had notice of an attack when they did not know who
               would be attacked.

Frash II at ¶ 11, 13.
       {¶ 31} We find that the circumstances presented here surrounding Sholler's assault
on appellant are materially different from those addressed by this court in Frash and that
a different result is required under the particular facts of this case. Here, both Sholler and
appellant were housed in the PC unit at the time of the assault, a unit which by appellant's
own admission is supposed to be relatively trouble free. Sholler made no threats of
No. 16AP-242                                                                           12


violence against appellant or any other inmate in the PC unit. Sholler had not exhibited
any violent behavior for more than one year and none since he had been moved to the PC
unit. Sholler and appellant had lived just three or four cells apart for a period of three
months before the assault, during which time they had very little interaction and no
disputes. As of the date of his deposition in this case, appellant still had no idea why
Sholler assaulted him. Under these circumstances, it is not reasonable to find that DRC
should have known that Sholler would attack appellant. In our opinion, appellant's
evidence fails to create an issue of fact regarding DRC's notice of an impending attack by
Sholler on appellant. Thus, DRC cannot be liable to appellant in negligence for failing to
take steps to prevent the assault.
        {¶ 32} Appellant argues that even if the evidence does not support a finding that
DRC knew or should have known that Sholler would attack appellant, given Sholler's
institutional history of violence against other inmates, DRC should have known that an
attack by Sholler on another inmate in the PC unit was imminent. Appellant claims that
DRC breached a duty of care it owed to appellant by failing to segregate Sholler from the
other inmates in the PC unit. We disagree.
        {¶ 33} In his deposition, appellant acknowledged the inherent dangers of prison
life:
              Q. Did you ever come to learn or have an understanding as to
              why Mr. Sholler was incarcerated?

              A. None of my business.

              ***

              Q. And you had no reason to believe whether he was a
              dangerous or violent inmate, is that correct?

              A. No. I mean I think everybody in prison can be subject to
              violence, danger.

(Appellant's Dep. at 66-67.)
        {¶ 34} Appellant also acknowledged that he was less concerned about violence
among the inmates residing in the PC unit:
No. 16AP-242                                                                                13


                Q. Paint the picture for us in terms of PC, is it basically
                because you are all in Protective Custody is it fairly low key, is
                it quiet, do you not argue?

                A. It's supposed to be.

                Q. Okay

                ***

                A. Most generally it's supposed to be quiet, that's why it's
                called Protective Control, there's not supposed to be no
                trouble. But --

                Q. So, before Mr. Sholler assaulted you in, on May 22, 2013,
                and I'm taking it that because you didn't know much about
                him and you said that you spoke, you didn't speak to him that
                often that you had no reason to be concerned that he could
                harm you in any way, is that correct?

                A. No, sir.

(Dep. at 26.)
       {¶ 35} In light of appellant's deposition testimony, we find that appellant has not
presented evidence to create a genuine issue of material fact that Sholler's prison
misconduct put ODRC on constructive notice of an impending attack by Sholler.
       {¶ 36} To the extent that appellant argues that DRC violated its count-time policy
and RIB rulings by failing to keep Sholler in his cell at the time of the assault, we note that
appellant's assignment of error raises only the issue of notice. Moreover, given our ruling
that the evidence does not permit a reasonable inference that DRC had notice that Sholler
would assault another inmate, DRC cannot be liable to appellant for failing to keep
Sholler in his cell, as a matter of law.
       {¶ 37} Based on the foregoing, we find that appellant failed to produce evidence
permitting a reasonable inference that DRC had prior notice that Sholler would assault
appellant or any other inmate in the PC unit. Thus, DRC cannot be liable to appellant for
failing to prevent that assault by Sholler. Accordingly, we hold that the Court of Claims
did not err when it determined that DRC was entitled to judgment as a matter of law as to
appellant's negligence claim. Appellant's sole assignment of error is overruled.
No. 16AP-242                                                                            14


V. CONCLUSION
       {¶ 38} Having overruled appellant's sole assignment of error, we affirm the
judgment of the Court of Claims of Ohio.
                                                                      Judgment affirmed.

                                DORRIAN, P.J., concurs.
                                BRUNNER, J., dissents.

BRUNNER, J., dissenting.
       {¶ 39} I respectfully dissent from the decision of the majority, because I am
uncomfortable with the direction that the majority's decision takes the law post-Frash I
and II concerning attacks by state prison inmates on one another and how liability for
those attacks by the Ohio Department of Rehabilitation and Correction ("ODRC") to those
in its custody is established by law. See Frash v. Ohio Dept. of Rehab. & Corr., 10th Dist.
No. 14AP-932, 2016-Ohio-360 ("Frash I"); Frash v. Ohio Dept. of Rehab. & Corr., 10th
Dist. No. 14AP-932, 2016-Ohio-3134 ("Frash II").        In Frash I, we emphasized that
ODRC's duty to protect one inmate from attack by another depended on the foreseeability
of the attack. We stated:

              [T]he question of whether ODRC had a duty to protect M.W.
              Frash and can be held to have proximately caused his injury
              through negligence in protecting him from the intentional act
              of Groves, hinges on whether ODRC can be held to have
              reasonably foreseen the injury, that is, to have had "adequate
              notice of an impending attack." Metcalf [v. Ohio Dept. of
              Rehab. & Corr., 10th Dist. No. 01AP-292, 2002-Ohio-5082]
              at ¶ 11; Mussivand v. David, 45 Ohio St.3d 314, 321, 544
              N.E.2d 265 (1989) ("in order to establish proximate cause,
              foreseeability must be found"); Strother v. Hutchinson, 67
              Ohio St.2d 282, 287, 423 N.E.2d 467 (1981) ("a
              reasonable foreseeability of injury is considered an element of
              proximate cause").

              Further, Elam [v. Ohio Dept. of Rehab. & Corr., 10th Dist.
              No. 09AP-714, 2010-Ohio-1225], which separates the
              consideration of notice and proximate cause, can be further
              distinguished, because that case concerned an inmate with no
              history of violence toward other inmates, and it was on that
              basis we concluded ODRC lacked notice of an impending
              attack (because the injury was not foreseeable). Id. at ¶ 8, 10
No. 16AP-242                                                                               15


              (noting that the trial court found there was "no evidence that
              [the intentional tortfeasor inmate] had ever before exhibited
              violence toward another inmate"). The case now under review
              is therefore factually distinct in that Groves holds an extensive
              history of violence toward other inmates.

Frash I at ¶ 12-13. When one inmate attacks another inmate, "actionable negligence
arises only where prison officials had adequate notice of an impending attack." Metcalf v.
Ohio Dept. of Rehab. & Corr., 10th Dist. No. 01AP-292, 2002-Ohio-5082, ¶ 11. Notice is
established by evidence. Hill v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 12AP-265,
2012-Ohio-5304, ¶ 13. And this notice may be actual or constructive. Metcalf at ¶ 11;
Frash I at ¶ 8.
       {¶ 40} The question of ODRC's notice of Sholler's impending attack is one of fact
and depends on evidence. Sholler did have a history of attacking other inmates and not
following the rules. In Literal's situation, there is evidence that ODRC did not enforce its
rule in requiring Sholler to remain confined for the entire period covered by institutional
rule and during which the attack occurred. Sholler was supposed to remain in his cell for
a one-hour-long period of time. He did not and attacked Literal in the hallway during that
period. In Frash II, we distinguished Kordelewski v. Ohio Dept. of Rehab. & Corr., 10th
Dist. No. 00AP-1109 (June 21, 2001), stating, "because ODRC had acted appropriately,
'ODRC cannot be found liable for the attack solely on the basis of [the attacker's]
institutional history of violent incidents.'" (Emphasis sic.) Frash II at ¶ 13, quoting
Kordelewski. The evidence Literal offered on summary judgment raises genuine issues of
fact as to whether ODRC acted properly with regard to Sholler and Literal.
       {¶ 41} And by applying Kordelewski to Literal's case we create more problems
than we resolve.     First, Kordelewski was resolved by a trial and not by summary
judgment. The question at issue was manifest weight of the evidence. Kordelewski.
Second, in Kordelewski the only claim regarding ODRC rules was that they were not
adequate, not that they were not followed. Id. By applying Kordelewski and in essence
determining that a failure to follow rules is not negligence or that evidence of this
particular failure in Literal's case is by degree not negligent, we are determining facts as a
matter of law. This is neither appropriate for us nor for the Ohio Court of Claims on
summary judgment. It is a question for the trier of fact.
No. 16AP-242                                                                             16


       {¶ 42} This same analysis applies to the nature of ODRC's constructive notice of
the impending attack by Sholler, specifically, whether that constructive notice is of a
potential attack or a potential attack on Literal.       By applying Kordelewski when
determining whether constructive notice should be of a simple, potential attack or of an
attack on a specific person, we are again parsing by degree a question of fact that should
be decided by the trier of fact and not on summary judgment or by an appellate court
reviewing that judgment. See Frash II at ¶ 13, entire paragraph.
       {¶ 43} But most disconcerting and underlying these concerns is the legislatively
created environment of the Court of Claims that denies a jury trial in civil actions against
the state. R.C. 2743.11 ("No claimant in the court of claims shall be entitled to have his
civil action against the state determined by a trial by jury."). See also R.C. 2743.03(C)(1)
("A civil action against the state shall be heard and determined by a single judge.").
       {¶ 44} When we apply Civ.R. 56 and well-established case law interpreting it to the
review of summary judgment decisions by the Court of Claims, our affirmance of
summary judgment in Literal's case allows for the creation of law by adjudging factual
degrees—such as whether ODRC acted appropriately in following or not following its own
rules or whether a degree of particularized notice was sufficient to ODRC of an impending
attack. These matters are subject to evidence. Literal has offered evidence on summary
judgment that, according to Civ.R. 56(C) and cases such as Harless v. Willis Day
Warehousing Co., 54 Ohio St.2d 64 (1978), and Dresher v. Burt, 75 Ohio St.3d 280, 292
(1996), present genuine issues for trial.
       {¶ 45} For an inmate or his or her counsel who undertakes a petition to the Court
of Claims for redress for injuries suffered after a lapse in care according to established
regulatory ODRC policy (such as permitting an inmate with a history of violence and
history of disobeying rules to be unconfined during a rule-required confinement period),
future litigation is likely, at best, a mystifying crapshoot. Affirming the Court of Claims'
summary judgment and applying Kordelewski subjects future litigants to case law that
will be subject to change based on the particularized view of a trial judge or appellate
court panel on matters that would ordinarily be questions of fact but are treated as
questions of law.
No. 16AP-242                                                                              17


       {¶ 46} The Ohio statute excising jury trials from civil actions in the Court of Claims
has established this propensity and made these cases not just problematic but bordering
on unconstitutional. And the reality of this situation is that, while we as a reviewing court
could and should reverse the decision of the Court of Claims on genuine material factual
issues, the trier of fact remains by statute the same individual who has granted summary
judgment and will be required to hold a trial and hear the evidence on which he or she has
already formed and issued an opinion. Despite the length of time reversing summary
judgment would add to this and other inmate attack cases before the Court of Claims, I
believe it improper for us to parse case-by-case, on summary judgment review, what
degree of facts make the law.
       {¶ 47} The Ohio General Assembly's determination that no jury trials in civil
actions are to be had against the state should not cause us to treat the issues relating to
negligence in civil cases against the state any differently than we would any other cases
involving negligence, including when injuries are received within a state prison system
that owes at least a common-law duty of care to those who are in its custody. Franks v.
Ohio Dept. of Rehab. & Corr., 195 Ohio App.3d 114, 2011-Ohio-2048 (10th Dist.); Frash I
at ¶ 8. The evidence in Literal's case relating to ODRC's failure to abide by a rule-
established duty of care and relating to constructive notice of an impending assault create
questions of fact.   Literal's case should be decided at a trial and not on summary
judgment, just as Kordelewski was.       This is consistent with our established law on
summary judgment. Despite the shortcomings of the statutory structure of the Court of
Claims, Literal should receive his day in court.
       {¶ 48} For these reasons, I respectfully dissent and would reverse the summary
judgment of the Court of Claims.
