[Cite as Morgan v. Ohio Dept. of Rehab. & Corr., 2011-Ohio-4852.]



                                                       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




ERIC MORGAN

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant

        Case No. 2010-05986

Judge Joseph T. Clark
Magistrate Matthew C. Rambo

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 London Correctional Institution (LCI). Plaintiff testified that on the
afternoon of January 12, 2010, he was cutting “turkey logs” into cubes for the next day’s
evening meal when he suffered a severe laceration to his left ring finger.                  Plaintiff
introduced Plaintiff’s Exhibits 1-6 which were photographs of the Hobart slicer he was
using. Plaintiff stated that the turkey logs were wet, partially frozen, and slippery, and
he described the cubing process as follows: the safety guard that normally holds meat
in place must be removed to accommodate the length of the turkey logs; the turkey logs
are cut into approximately half-inch slices, repositioned and then cut into strips; finally,
the strips are repositioned on the slicer and cut. Plaintiff testified that it was during the
Case No. 2010-05986                         -2-                MAGISTRATE DECISION

final step that his hand slipped and contacted the exposed blade of the slicer, cutting his
finger. Defendant’s records establish that plaintiff cut his finger at approximately 3:00
p.m. on January 12, 2010, was examined in the LCI infirmary, and was then transported
to an area hospital at approximately 3:15 p.m. (Plaintiff’s Exhibits 8,9.)
       {¶3} According to plaintiff, this particular task was part of his duties in the LCI
officer’s dining room kitchen and he had performed the task “at least once a week for
eighteen months” before the incident. Plaintiff testified that the safety guard cannot be
effectively used during the second and third steps of the process because the turkey is
too “flimsy.” Plaintiff also testified that while knives are available in the kitchen for
slicing the turkey logs, the deli slicer was faster and the knives were frequently being
used by other inmates to cut vegetables and other food items.            However, plaintiff
admitted that he was running late and that he was working that afternoon because he
and his fellow inmates had not finished cutting the turkey logs that morning.
       {¶4} Plaintiff asserts that LCI staff were negligent in permitting him to use the
slicer in an unsafe manner. Defendant argues that plaintiff’s own negligence was the
sole proximate cause of his injury.
       {¶5} In order to prevail upon his claim of negligence, plaintiff must prove by a
preponderance of the evidence that defendant owed him a duty, that defendant’s acts or
omissions resulted in a breach of that duty, and that the breach proximately caused his
injuries. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 81, 2003-Ohio-2573, citing
Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77. Defendant owed
plaintiff the common law duty of reasonable care. Justice v. Rose (1957), 102 Ohio
App. 482, 485. Reasonable care is that which would be utilized by an ordinarily prudent
person under similar circumstances. Murphy v. Dept. of Rehab. & Corr., Franklin App.
No. 02AP-132, 2002-Ohio-5170, ¶13.           A duty arises when a risk is reasonably
foreseeable.   Menifee, supra.     Such a duty includes the responsibility to exercise
reasonable care to protect inmates against those unreasonable risks of physical harm
Case No. 2010-05986                         -3-                 MAGISTRATE DECISION

associated with institutional work assignments. Boyle v. Dept. of Rehab. & Corr. (1990),
70 Ohio App.3d 590, 592.
       {¶6} While the court is cognizant of a “special relationship” between an inmate
and his custodian, no higher standard of care is derived from the relationship. Clemets
v. Heston (1985), 20 Ohio App.3d 132. The state is not an insurer of the safety of its
prisoners; however, once it becomes aware of a dangerous condition in the prison, it is
required to take the degree of reasonable care necessary to protect the prisoner from
harm. Id.
       {¶7} Inmate Kevin McClanahan was working with plaintiff in the LCI kitchen on
the day of the incident. McClanahan testified that he and the other five or six inmates
preparing the turkey were “pressed for time” and that they had to be finished by 4:00
p.m. McClanahan stated that he was standing near plaintiff when he observed plaintiff’s
hand slip off the turkey and strike the blade of the slicer. According to McClanahan, it
“looked bad” and there was “blood everywhere.” McClanahan corroborated plaintiff’s
description of the process of cutting the turkey logs into cubes. He stated that it was the
“regular” process for doing so and that he and the other inmates were never instructed
to do otherwise, that LCI staff ordered them to “just get it done.” Although McClanahan
admitted that inmates were never specifically ordered to use the slicer to prepare the
turkey, he stated that staff was aware that they were using it and did not care so long as
the job was timely done.
       {¶8} Rose Crawford was the Food Service Coordinator Supervisor on duty when
plaintiff was injured. She testified that she was aware that plaintiff was using the slicer
to prepare the turkey, but was unaware that he was not using the safety guard on this
occasion. Crawford further testified that plaintiff did not inform her that he felt the slicer
was unsafe. Crawford was not aware of any other inmate being injured while using the
slicer but she did admit that inmates working in the kitchen had previously informed her
Case No. 2010-05986                         -4-                MAGISTRATE DECISION

that removal of the safety guard was a common practice when using the slicer to cut the
turkey from strips into cubes.
       {¶9} Based upon the above testimony, the court finds that defendant failed to
exercise reasonable care inasmuch as Crawford and other staff members were aware
that plaintiff was using the slicer in an unsafe manner, that they failed to correct him and
that plaintiff was injured as a result. However, the court further finds that plaintiff was
also aware of the danger and that he chose to assume the risk of injury. Additionally,
the court finds that plaintiff was hurrying to complete his task and was not taking the
proper care to ensure his own safety.        Accordingly, Ohio’s comparative negligence
statute, R.C. 2315.33, is applicable.
       {¶10}      For the foregoing reasons, the court finds that plaintiff has proven his
negligence claim by a preponderance of the evidence. The court further finds that the
degree of fault attributable to plaintiff for failing to use reasonable care to ensure his
own safety is 40 percent. Accordingly, judgment is recommended in favor of plaintiff
with a 40 percent reduction in any award for damages.
       {¶11}      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 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).
Case No. 2010-05986                    -5-              MAGISTRATE DECISION

                                      _____________________________________
                                      MATTHEW C. RAMBO
                                      Magistrate

cc:


Kristin S. Boggs                        Richard F. Swope
Assistant Attorney General              6480 East Main Street, Suite 102
150 East Gay Street, 18th Floor         Reynoldsburg, Ohio 43068
Columbus, Ohio 43215-3130

MR/dms
Filed August 1, 2011
To S.C. reporter September 22, 2011
