[Cite as Forester v. Ohio Dept. of Rehab. & Corr., 2011-Ohio-1431.]

                                                        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




JOHN W. FORESTER

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant
       Case No. 2009-08357

Judge Alan C. Travis
Magistrate Matthew C. Rambo

DECISION




        {¶ 1} Plaintiff brought this action alleging negligence. A trial was held on the
issue of liability. On January 4, 2011, the magistrate issued a decision recommending
judgment for 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).” On February 9, 2011, with leave of the court, plaintiff filed his objections
and an affidavit of evidence pursuant to Civ.R. 53(D)(3)(b)(iii).
        {¶ 3} On February 18, 2011, defendant filed a “memorandum in opposition to
plaintiff’s affidavit of evidence and plaintiff’s objections to the magistrate’s decision.” On
February 28, 2011, plaintiff filed a response. Civ.R. 53(D)(3)(b)(iii), states in part: “An
objection to a factual finding, whether or not specifically designated as a finding of fact
under Civ.R. 53(D)(3)(a)(ii), shall be supported by a transcript of all the evidence
Case No. 2009-08357                          -2-                                 DECISION


submitted to the magistrate relevant to that finding or an affidavit of that evidence if a
transcript is not available.”
       {¶ 4} In Wolfe v. Ohio Dept. of Rehab. and Corr., Franklin App. No. 10AP-443,
2010-Ohio-6180, the Tenth District Court of Appeals determined that a transcript of
proceedings is “unavailable” to the objecting party where proof of indigence is provided.
Id. at ¶14.   In accordance with the rule, plaintiff has provided satisfactory proof of
indigence and he has submitted his own affidavit of evidence relevant to his objections
summarizing the relevant testimony at trial. Defendant’s objection to plaintiff’s affidavit
of merit shall be overruled.
       {¶ 5} At all times relevant, plaintiff was an inmate in the custody and control of
defendant at the London Correctional Institution (LCI) pursuant to R.C. 5120.16. On
April 20, 2009, plaintiff was working in the “dish room” of the LCI kitchen loading pans
into the dishwasher. While trying to separate two such pans, plaintiff cut his left index
finger on a sharp edge of one of the pans. Plaintiff asserts that defendant was negligent
in permitting pans with sharp edges to be used in food service, that he was not properly
trained in the handling of the pans, and that he was not provided supervision or safety
equipment while working in the kitchen. The magistrate determined that plaintiff failed
to establish that defendant committed a breach of its duty of care, and that the greater
weight of the evidence showed that plaintiff’s own lack of care was the sole proximate
cause of his injury.
       {¶ 6} In his first objection, plaintiff argues that the magistrate erred in “ruling
inmates received adequate training because of plaintiff’s prior service in prison food
services.” According to his affidavit of evidence, plaintiff testified at trial that he did not
receive any formal training when he was assigned to the kitchen. However, plaintiff
admits in his affidavit of evidence that he did attend a “session where forms were
presented,” which plaintiff initialed and signed.       Additionally, plaintiff admits in his
Case No. 2009-08357                         -3-                                  DECISION


affidavit of evidence that he had “previously worked in food service at Noble
Correctional Institution when they had me view a video, one for each area of the
kitchen.” The magistrate determined that although the training plaintiff received may
have been minimal, given plaintiff’s experience working in kitchens in at least two
different correctional facilities, that he was, or should have been, familiar with the
operational and safety procedures of the kitchen.             The court agrees with the
magistrate’s conclusion. Plaintiff’s first objection shall be overruled.
       {¶ 7} In his second and third objections, plaintiff generally argues that the
magistrate erred in finding that plaintiff’s knowledge of the existence of defective pans
was evidence of plaintiff’s negligence but that defendant’s allegedly inadequate
inspection and removal practice was not evidence of defendant’s negligence.
According to his affidavit of evidence, plaintiff testified at trial that “[a]s I began to
separate [the pans] I noticed they had sharp jagged edges, but because of the pressure
to keep up and not cause a back up by calling a supervisor, as I separated them, my
hand was caught by the sharp edge and my left index finger was severely cut.”
Additionally, in his affidavit, plaintiff states that he had “discussed the dangerous pans
with Mr. Shelton several times and some pans were removed, but others were not and I
was required to work with the damaged pans, using caution since they were not
removed * * *.”
       {¶ 8} According to plaintiff’s affidavit of evidence, Timberly Minor testified at trial
that once a Food Service Coordinator (FSC) is informed of a defective pan he or she is
required to remove it. Minor also stated that FSCs regularly inspect pans and remove
any defective pans. It is well-settled that the magistrate, as the trier of fact, is in the
best position to weigh the testimony and assess the credibility of witnesses. Seasons
Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80. Upon review of plaintiff’s affidavit
and other documentary evidence at trial, the court finds that the magistrate properly
Case No. 2009-08357                          -4-                                  DECISION


weighed the evidence presented in making the determination both that plaintiff failed to
establish that defendant committed a breach of its duty of care and that plaintiff’s lack of
care was the sole proximate cause of his injury. Plaintiff’s second and third objections
shall be overruled.
       {¶ 9} In his fourth objection, plaintiff argues that the magistrate erred by not
concluding that defendant failed to properly supervise the workers. According to his
affidavit of evidence, plaintiff testified at trial that there was no supervisor in the dish
room and no supervisor to whom he could report defective pans. However, plaintiff
acknowledges that Minor testified that a FSC is assigned to the dish room. Although
the magistrate did not specifically find that a FSC was assigned to the dish room, the
magistrate did determine that plaintiff “chose not to inform kitchen staff” as it would have
caused a “back up.” The court agrees with the magistrate’s conclusion.
       {¶ 10} Similarly, to the extent that plaintiff challenges defendant’s staffing and
deployment decisions, this court has consistently held that defendant is immune from
liability in negligence for such decisions. Reynolds v. State (1984), 14 Ohio St.3d 68;
Wozniak v Ohio Dept. of Rehab. and Corr., Ct. of Cl. No. 2009-04505, 2010-Ohio-2648.
Plaintiff’s fourth objection shall be overruled.
       {¶ 11} In plaintiff’s fifth objection, plaintiff argues that the magistrate’s decision is
against the manifest weight of the evidence. The court disagrees. In accordance with
Civ.R. 53, the trial court must conduct a de novo review of the facts and conclusions
contained in the magistrate’s report and enter its own judgment. See Shihab & Assoc.
Co., L.P.A. v. Ohio Dept. of Transp., 168 Ohio App.3d 405, 2006-Ohio-4456; Dayton v.
Whiting (1996), 110 Ohio App.3d 115, 118. Upon review of plaintiff’s affidavit and the
other documentary evidence presented at trial, the court finds that the magistrate
properly determined the factual issues and appropriately applied the law. Therefore, the
objections shall be overruled and the court shall adopt the magistrate’s decision and
recommendation as its own, including the findings of fact and conclusions of law
contained therein.



                                             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




JOHN W. FORESTER

      Plaintiff

      v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

      Defendant
      Case No. 2009-08357

Judge Alan C. Travis
Magistrate Matthew C. Rambo

JUDGMENT ENTRY




      For the reasons set forth in the decision filed concurrently herewith, the
objections are OVERRULED and the court adopts the magistrate’s decision and
recommendation as its own, including findings of fact and conclusions of law contained
therein. Judgment is rendered in favor of defendant. Court costs are assessed against
plaintiff. The clerk shall serve upon all parties notice of this judgment and its date of
entry upon the journal.




                                         _____________________________________
                                         ALAN C. TRAVIS
                                   Judge

cc:


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

LP/GWP/cmd
Filed March 14, 2011
To S.C. reporter March 22, 2011
