[Cite as Allen v. Dept. of Adm. Servs. Office of Risk Mgt., 2020-Ohio-1138.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT



Paul Allen,                                             :

                 Plaintiff-Appellant,                   :

v.                                                      :                      No. 19AP-729
                                                                     (Ct. of Cl. No. 2018-01496JD)
Department of Administrative Services                   :
Office of Risk Management, et al.,                                  (REGULAR CALENDAR)
                                                        :
                 Defendants-Appellees.
                                                        :



                                          D E C I S I O N

                                      Rendered on March 26, 2020


                 On brief: Swope and Swope, and Richard F. Swope, for
                 appellant. Argued: Richard F. Swope.

                 On brief: Dave Yost, Attorney General, and Eric A. Walker,
                 for appellees. Argued: Eric A. Walker.

                              APPEAL from the Court of Claims of Ohio
SADLER, P.J.
        {¶ 1} Plaintiff-appellant, Paul Allen, appeals from the judgment of the Court of
Claims of Ohio granting summary judgment in favor of defendants-appellees, Department
of Administrative Services Office of Risk Management and Ohio Department of
Rehabilitation and Correction ("DRC"). For the following reasons, we affirm the judgment
of the trial court.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} The events giving rise to the complaint occurred on December 15, 2016, when
appellant was an inmate at the Allen Oakwood Correctional Institution in Lima, Ohio. On
the morning of December 15, 2016, appellant was to be transported to Franklin Medical
No. 19AP-729                                                                                 2


Center for chemotherapy treatment in a Dodge minivan. The van was modified consistent
with DRC policy to include a steel screen that separated the driver and front passenger from
the inmates. Also consistent with DRC policy, all seatbelts from the inmate seating area
were removed from the transport vehicle. Appellant was seated in one of the two bucket
seats facing the steel screen. As a Type A inmate, appellant was fully restrained with leg
irons, a belly chain, and handcuffs. DRC employees Steve Humes and Kristopher Durr were
assigned to transport appellant to Franklin Medical Center.
       {¶ 3} On the date in question, Humes proceeded to drive the van toward Columbus
in route to Franklin Medical Center. During the transport, the van was cut off by another
vehicle forcing Humes to abruptly break to avoid a collision. While no accident occurred,
the sudden stop caused appellant to be thrown forward striking the metal screen. Appellant
lost consciousness and suffered a laceration to his eyebrow. Appellant was treated for his
injuries at Franklin Medical Center.
       {¶ 4} On December 10, 2018, appellant filed a complaint seeking judgment against
the DRC and Department of Administrative Services Office of Risk Management for
negligence. In the complaint, appellant alleged common law negligence against appellees
under two distinct theories. First, appellant argued appellees were negligent in removing
seatbelts from the inmate seating area of the van. Second, appellant argued that Humes
was negligent in his operation of the transport van causing a collision with another vehicle.
Appellees answered and asserted, among other defenses, that they were entitled to
immunity.
       {¶ 5} On August 2, 2019, appellees filed a motion for summary judgment arguing
(1) discretionary immunity protects appellees from liability for its policy to prohibit the use
of seatbelts in transport vehicles for Type A inmates, and (2) there is no genuine dispute of
material fact that the transport officer was not negligent in his operation of the vehicle. In
support of summary judgment, appellees pointed to the deposition testimony of Humes
and appellant, as well as the affidavit of Timothy McConahay, security administrator for
DRC.
       {¶ 6} In his affidavit, McConahay stated he is responsible for setting the state policy
regarding how inmates are transported in prison vehicles. McConahay noted DRC policy
requires "factory-installed seatbelts or any other form of restraint shall be removed from
No. 19AP-729                                                                                  3


the inmate seating area of the transportation vehicle prior to the transport of any Type A
inmate." (McConahay Aff. at ¶ 3, attached to Mot. for Summ. Jgmt.) McConahay provided
a number of policy justifications for the removal of seatbelts including:
               b. The inmates being transported off prison grounds are
               restrained by leg irons, belly chains, and handcuffs. This
               makes it difficult for a seatbelt to be worn properly, as the
               seatbelt would place pressure on arms that are already
               re[s]trained; this could cause medical problems for the
               inmate.
               ***
               d. All transportation corrections officers are required to be
               armed with a handgun when they transport a Type A inmate
               outside of the prison grounds. If an inmate were restrained
               by a seatbelt, for instance, one of the two corrections officers
               would have the responsibility of fastening or unfastening the
               seatbelt of the inmate. This situation would be unsafe and
               dangerous for the corrections officer to perform because it
               would cause the corrections officer to be physically close to the
               inmate to fasten and unfasten the seatbelt, which could give
               the inmate an opportunity to reach for the corrections officer's
               weapon.
               e. Seatbelts can be used as a device to choke or harm other
               inmates in the transportation vehicle, inflict self-harm, or to
               assist in opening cuffs when they are not double locked.
(McConahay Aff. at ¶ 5(b), (d), (e).)
       {¶ 7} On August 12, 2019, appellant filed a memorandum contra to appellees'
motion for summary judgment. Appellant argued summary judgment was improper
because appellees have failed to state how allowing a fully restrained inmate to wear a
seatbelt affects security warranting discretionary immunity. Appellant primarily relies on
this court's ruling in Woods v. Ohio Dept. of Rehab. & Corr., 130 Ohio App.3d 742 (10th
Dist.1998), which held the trial court committed reversible error when DRC was negligent
in transporting an inmate.
       {¶ 8} While appellant did not directly address his negligent driving claim in his
memorandum, appellant's affidavit appears to assert that a dispute of fact remains whether
the transport officer was negligent in his operation of the vehicle. In his affidavit, appellant
stated that while Humes "proceeded toward Columbus, [d]istracted while talking on his
phone another vehicle struck us hard enough to cause me to be thrown forward, striking
No. 19AP-729                                                                                 4


the metal screen, rendering me unconscious, which would not have occurred had there
been seat belts." (Allen Aff. at ¶ 9, filed Aug. 12, 2019.)
       {¶ 9} In their reply in support of summary judgment, appellees contended Woods
was not applicable to the present case because the Woods court never addressed the
doctrine of discretionary immunity. As immunity is an affirmative defense, appellees argue
the issue was waived. Appellees also argued appellant's affidavit directly contradicts his
deposition testimony and should be disregarded. Appellees stated that at appellant's
deposition, appellant conceded that he did not "know if we were hit, cut off. I just know I
was rendered unconscious." (Allen Dep. at 32.) Appellant also conceded he did not know
if Humes was on his cellphone at the time of the incident:
               Q: Okay. But it sounds like you are saying you don't know
               for sure whether he was using the phone at the time that he
               slammed on his brakes?
               A: Yeah, I don't know whether he—whether—you know,
               because it was just a regular thing. And I really don't want—
               being honest, and I'm—you know, this is under oath.
(Allen Dep. at 39-40.)
       {¶ 10} On September 24, 2019, the Court of Claims granted appellees' motion for
summary judgment and entered judgment in their favor. In doing so, the trial court found
appellees were entitled to discretionary immunity because the removal of the "seatbelts
from inmate transport vehicles is a basic policy decision characterized by the exercise of a
high degree of official judgment or discretion." (Sept. 24, 2019 Jgmt. Entry at 5.) The trial
court noted that because discretionary immunity was never raised as an affirmative defense
in Woods, it is inapplicable to the present case.
       {¶ 11} Regarding appellant's second theory of negligence, the trial court determined
that "there is no genuine issue of material fact that a collision did not occur and that Mr.
Humes was not negligent in his operation of the van." (Jgmt. Entry at 5.) The trial court
also found that while appellant's affidavit stated Humes was on his cellphone and that the
van was struck by another vehicle, appellant's previous deposition testimony directly
contradicted these assertions. Nevertheless, the trial court found that even if appellant's
affidavit was considered, "plaintiff's affidavit testimony buttresses the finding that there is
no genuine issue of material fact regarding Mr. Humes' lack of negligence as it indicates
that another vehicle struck the van." (Jgmt. Entry at 5.)
No. 19AP-729                                                                                 5


       {¶ 12} Appellant filed a timely appeal.
II. ASSIGNMENTS OF ERROR
       {¶ 13} Appellant assigns the following as trial court error:
               [1.] THE TRIAL COURT ERRED IN GRANTING
               DEFENDANT-APPELLEE'S [sic] MOTION FOR SUMMARY
               JUDGMENT.
               [2.] THE GRANTING OF THE MOTION FOR SUMMARY
               JUDGMENT IS AGAINST THE MANIFEST WEIGHT OF
               THE EVIDENCE AND CONTRARY TO LAW.
III. STANDARD OF REVIEW
       {¶ 14} Appellate review of summary judgment is de novo. Gabriel v. Ohio State
Univ. Med. Ctr., 10th Dist. No. 14AP-870, 2015-Ohio-2661, ¶ 12, citing Byrd v. Arbors E.
Subacute & Rehab. Ctr., 10th Dist. No. 14AP-232, 2014-Ohio-3935, ¶ 5. "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." Gabriel at ¶ 12, citing Byrd at ¶ 5, citing Maust v. Bank One
Columbus, N.A., 83 Ohio App.3d 103, 107 (10th Dist.1992).
       {¶ 15} Pursuant to Civ.R. 56(C), 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). "When seeking summary judgment on grounds that the
non-moving party cannot prove its case, the moving party bears the initial burden of
informing the trial court of the basis for the motion and identifying those portions of the
record that demonstrate the absence of a genuine issue of material fact on an essential
element of the non-moving party's claims." Lundeen v. Graff, 10th Dist. No. 15AP-32,
2015-Ohio-4462, ¶ 11, citing Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). Once the
moving party meets its initial burden, the nonmovant must set forth specific facts
demonstrating a genuine issue for trial. Dresher at 293.
No. 19AP-729                                                                                6


IV. LEGAL ANALYSIS
       A. Appellant's First Assignment of Error
       {¶ 16} In his first assignment of error, appellant argues the trial court erred by
granting summary judgment in favor of appellees. For the following reasons, we disagree.
       {¶ 17} In his complaint, appellant has alleged two separate theories of negligence
against appellees. Under appellant's first theory of negligence, appellant argues the trial
court erred by finding appellees were entitled to discretionary immunity for removing
seatbelts from the inmate seating area of the transport van. Appellant contends appellees
"cannot articulate how allowing a fully restrained inmate to wear seatbelts and shoulder
harnesses affects security or maintains order." (Appellant's Brief at 10.)
       {¶ 18} DRC is generally given immunity from tort liability arising out of decisions
derived from its policy and procedures. Hughes v. Ohio Dept. of Rehab. & Corr., 10th Dist.
No. 09AP-1052, 2010-Ohio-4736, ¶ 16.         This immunity, referred to as discretionary
immunity, provides that "the state cannot be sued for its legislative or judicial functions or
the exercise of an executive or planning function involving the making of a basic policy
decision that is characterized by the exercise of a high degree of official judgment or
discretion." Risner v. Ohio Dept. of Transp., 145 Ohio St.3d 55, 2015-Ohio-4443, ¶ 12.
"ODRC is generally immune from tort liability for decisions related to policies and
procedures." Scott v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 12AP-755, 2013-Ohio-
4383, ¶ 24. Penal institutions are "accorded deference in adopting and executing policies
and procedures to maintain order." Hughes at ¶ 17, citing Bell v. Wolfish, 441 U.S. 520,
547-48 (1979).
       {¶ 19} In his affidavit, McConahay explained the policy rationale for removing
seatbelts from the inmate seating area. McConahay stated transports are one of the highest
risks in corrections for attempted escape as the inmate is outside the prisoner facility.
(McConahay Aff. at ¶ 5(a).) The use of a seatbelt also potentially exposes the officers to
unnecessary risk when reaching over the inmate to fasten and unfasten the seatbelt when
an inmate could attempt to grab their firearm. Given these facts, DRC's removal of seatbelts
from the inmate seating area of the transport van constitutes a prison security policy that
affords DRC a high degree of discretion.
No. 19AP-729                                                                               7


       {¶ 20} Appellant relies heavily on Woods in support of his contention that appellees
were negligent in removing seatbelts from the inmate seating area of the van. In Woods,
the appellant was injured while traveling to a hospital in a prison transport van while fully
restrained with leg irons, a belly chain, and handcuffs. Id., 130 Ohio App.3d at 744. The
appellant in Woods filed a complaint for negligence, and the trial court rendered judgment
for DRC finding the appellee was not negligent in failing to equip the van with restraining
devises. Id. Appellant appealed, and we reversed and remanded the case finding DRC owed
a duty of care to appellant when transporting inmates on public thoroughfares. Id. at 745.
       {¶ 21} While the facts are strikingly similar, unlike the Woods case, appellant herein
asserted discretionary immunity as an affirmative defense. Pursuant to Civ.R. 8(C), a
defendant must set forth its affirmative defenses in his answer. Failure to raise an
affirmative defense in a timely manner results in a waiver of the defense. Jim's Steak House
v. Cleveland, 81 Ohio St.3d 18, 20 (1998). Under Ohio law, immunity is an affirmative
defense. Turner v. Cent. Local School Dist., 85 Ohio St.3d 95, 97 (1999). Because the
instant case concerns discretionary immunity, we agree with the trial court that Woods is
inapplicable to the analysis in this case.
       {¶ 22} Here, appellees asserted immunity as an affirmative defense in their answer
and properly raised the defense in their motion for summary judgment. After considering
all the evidence, we agree with the Court of Claims that appellees were entitled to
discretionary immunity from liability concerning the removal of seatbelts in transport vans.
Therefore, appellant's first theory of negligence is overruled.
       {¶ 23} Under his second theory of negligence, appellant claims Humes negligently
operated the transport van by talking on his cellphone resulting in an accident with another
vehicle.
       {¶ 24} "It is fundamental that in order to establish a cause of action for negligence,
the plaintiff must show (1) the existence of a duty, (2) a breach of duty, and (3) an injury
proximately resulting therefrom." Armstrong v. Best Buy Co., 99 Ohio St.3d 79, 2003-
Ohio-2573, ¶ 8, citing Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77 (1984).
The plaintiff has the burden to meet each element of the negligence claim by a
preponderance of evidence. Skorvanek v. Ohio Dept. of Rehab. & Corr., 10th Dist. No.
17AP-222, 2018-Ohio-3870, ¶ 27, citing Forester v. Ohio Dept. of Rehab & Corr., 10th Dist.
No. 19AP-729                                                                                 8


No. 11AP-366, 2011-Ohio-6296, ¶ 7. "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. Ohio Dept. of Rehab. & Corr.,
10th Dist. No. 04AP-177, 2004-Ohio-5545, ¶ 16.
       {¶ 25} As an initial matter, appellant's affidavit fails to satisfy the standards set by
the court in Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, when considering a
contradictory affidavit with a memorandum in opposition to a motion for summary
judgment. The Byrd court stated that an affidavit by a party opposing summary judgment
that purports to create a genuine issue of material fact that contradicts former deposition
testimony may not, without proper explanation, create a genuine issue of material fact to
overcome a motion for summary judgment. "[W]hen an affidavit is inconsistent with
affiant's prior deposition testimony as to material facts and the affidavit neither suggests
affiant was confused at the deposition nor offers a reason for the contradictions in her prior
testimony, the affidavit does not create a genuine issue of fact which would preclude
summary judgment." (Citation omitted.) Id. at ¶ 28. Dubenion v. DDR Corp., 10th Dist.
No. 15AP-915, 2016-Ohio-8128, ¶ 13, quoting Byrd, 2006-Ohio-3455, at ¶ 28.
       {¶ 26} In his deposition testimony, appellant initially stated he did not know
whether the van was hit by another vehicle or if Humes was using a cellphone at the time
of the incident. However, in his affidavit, appellant stated while Humes was "[d]istracted
while talking on his phone another vehicle struck us hard enough to cause me to be thrown
forward, striking the metal screen, rendering me unconscious."           (Allen Aff. at ¶ 9.)
Appellant has provided no justification or explanation for these contradictions to his prior
testimony. As such, we agree with the Court of Claims and find this court must disregard
the affidavit testimony.
       {¶ 27} Here, excluding the affidavit of appellant, there is no evidence the transport
officer was negligent in his operation of the van. First, there is no evidence in the record an
accident even occurred. During his deposition, Humes testified that while transporting
appellant to Franklin Medical Center the van was cut off by another vehicle. Humes stated
he was forced to abruptly break to avoid a collision. Appellant testified at his deposition he
did not know what happened and did not see the incident. Second, there is no evidence
Humes was on his cellphone during the transport. Humes unequivocally stated he was not
No. 19AP-729                                                                                 9


using a cellphone when he hit the breaks to avoid the other vehicle. Again, appellant
testified at his deposition that he did not know if the officer was on his cellphone during the
incident.
       {¶ 28} Based on our review of the facts and applicable law, the evidence is
uncontroverted that a collision did not occur. There is also no evidence Humes was
negligent in his operation of the transport van. For the foregoing reasons, appellant's first
assignment of error is overruled.
       B. Appellant's Second Assignment of Error
       {¶ 29} In his second assignment of error, appellant argues the trial court granting
appellees' motion for summary judgment was against the manifest weight of the evidence.
Weight of evidence concerns " 'the inclination of the greater amount of credible evidence,
offered in a trial, to support one side of the issue rather than the other.' " (Citations
omitted.) Mid. Am. Constr. v. Univ. of Akron, 10th Dist. No. 18AP-846, 2019-Ohio-3863,
quoting Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 21. "Judgments
supported by some competent, credible evidence going to all the essential elements of the
case will not be reversed by a reviewing court as being against the manifest weight of the
evidence." C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279 (1978), syllabus.
       {¶ 30} When reviewing a motion for summary judgment, appellate courts review the
matter de novo. Civ.R. 56; Grenga v. Youngstown State Univ., 10th Dist. No. 11AP-165,
2011-Ohio-5621, ¶ 29. A review of a motion for summary judgment under the manifest-
weight standard " 'is a non sequitur because, on summary judgment, a court may not weigh
the evidence.' " Id., quoting White v. Westfall, 183 Ohio App.3d 807, 2009-Ohio-4490, ¶ 9
(10th Dist.). Accordingly, because this court must review a motion for summary judgment
on appeal de novo, appellant's second assignment of error seeking reversal of summary
judgment based on the manifest weight of the evidence is not well taken. White at ¶ 9.
       {¶ 31} Accordingly, appellant's second assignment of error is overruled.
V. CONCLUSION
       {¶ 32} Having overruled appellant's two assignments of error, we affirm the
judgment of the Court of Claims of Ohio.
                                                                         Judgment affirmed.
                     DORRIAN and LUPER SCHUSTER, JJ., concur.
                                _____________
