[Cite as Frash v. Ohio Dept. of Rehab. & Corr., 2016-Ohio-360.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

Mark J. Frash, Administrator of the                 :
Estate of Mark Wayne Frash,
Deceased,                                           :

                Plaintiff-Appellant,                :                  No. 14AP-932
                                                                  (Ct. of Cl. No. 2011-04941)
v.                                                  :
                                                                  (REGULAR CALENDAR)
Ohio Department of                                  :
Rehabilitation and Correction,
                                                    :
                Defendant-Appellee.
                                                    :



                                           D E C I S I O N

                                    Rendered on February 2, 2016


                Swope and Swope, Attorneys at Law, and Richard F. Swope,
                for appellant.

                Michael DeWine, Attorney General, and Eric A. Walker, for
                appellee.

                             APPEAL from the Court of Claims of Ohio
BRUNNER, J.

        {¶ 1} Plaintiff-appellant, Mark J. Frash, as administrator for the estate ("Estate")
of the late Mark Wayne Frash ("M.W. Frash"), appeals a judgment of the Court of Claims
of Ohio in favor of defendant-appellee, Ohio Department of Rehabilitation and Correction
("ODRC"), on a claim arising from the death of M.W. Frash at the hands of a fellow
inmate, Eugene Groves.            Specifically, the Estate argues that the Court of Claims
improperly denied requests to obtain and use at trial Groves' psychiatric records and
erred in finding against the Estate on the merits of its claim. We find that the Court of
Claims committed errors in applying discretionary immunity, in allocating the burden to
establish privilege and the relevance of medical and psychiatric records sought in
No. 14AP-932                                                                            2

discovery, and improperly concluding that ODRC was without constructive notice of an
impending attack by Groves. We reverse the decision of the Court of Claims and remand
for a new trial.
I. FACTS AND PROCEDURAL HISTORY
       {¶ 2} Rather than obtain a transcript, the Estate accepts the factual
determinations of the Court of Claims as true for the purposes of this appeal and proposes
only to argue legal issues. See, e.g., Corbin v. Dailey, 10th Dist. No. 08AP-802, 2009-
Ohio-881, ¶ 5-6. Thus, in reviewing the Court of Claims' decision, we adopt and accept its
factual findings.
               At all relevant times, Frash was an inmate in the custody and
               control of [ODRC] at [Ross Correctional Institution (RCI)],
               housed in unit 8B. RCI houses both level 2 and level 3
               inmates. Frash worked as a dog handler at RCI and on
               September 12, 2010, he was walking a dog out in the
               recreation yard when he was approached by a fellow inmate,
               Eugene Groves (Groves). According to inmate Jeremy
               Maxwell's (Maxwell) testimony, Groves said to Frash, "Get
               your dog away from me or if not, I'll kill it." In response Frash
               said, "You ain't going to kill my dog, you f'ing N word. You kill
               my dog, and I will kill you." (Plaintiff's Exhibit 16, Page 28,
               Lines 4-14.) Maxwell further testified that Frash later went
               into the prison to apologize to Groves and that Groves walked
               away and to his cell. Groves then returned to the day room
               and began his attack on Frash.

               At the time of the incident, the corrections officer (CO) in unit
               8B was Christopher Hawk (Hawk), a relief officer who had
               started working at RCI two weeks prior. Hawk opened the
               door to let Frash in and while walking back to his desk, was
               bumped in the back. Hawk turned to observe what appeared
               to be a fight between Frash and Groves. Hawk gave orders to
               stop fighting, and upon hearing another inmate make
               reference to Groves "sticking" Frash, noticed that Groves had
               a shank in his hand. The shank was fashioned out of a bolt or
               screw and was approximately seven inches long. (Plaintiff's
               Exhibit 4.) During the entire time of the incident, Hawk was
               within ten to fifteen feet away. After noticing the weapon,
               Hawk gave another order for Groves to drop his weapon, but
               the fight continued. Hawk then attempted to call someone for
               help, but could not call anyone due to his unfamiliarity with
               the institution and the proper numbers to call, so he pulled his
               man down alarm and waited for assistance.
No. 14AP-932                                                                   3

           There were approximately 20-30 inmates in the vicinity when
           the fight began. Inmate Christopher Griffis (Griffis) testified
           that as soon as Groves came up behind Frash, he began hitting
           him in the back of the head. Groves put Frash in a headlock
           and continued to hit and stab him repeatedly, which resulted
           in nine penetrating wounds according to the coroner's report.
           Groves then disengaged himself and walked outside. At that
           point, another inmate attempted to pick up a chair to hit
           Groves, but Hawk ordered him to put the chair down and step
           away. Shortly thereafter, Nathaniel Charlton (Charlton), the
           yard CO, arrived in response to Hawk's man down alarm.
           Charlton testified that he responded to the scene within ten
           seconds of the alarm being pulled, and at the time he arrived,
           the fight was already over. Hawk informed him that Groves
           had walked outside and Charlton went outside to restrain
           him. Frash later died from a traumatic brain injury as a
           consequence of blunt force trauma to the head. The autopsy
           noted galeal, subgaleal, and subdural hematomas as well as
           cerebral edema with cerebellar tonsillar herniation. (Plaintiff's
           Exhibit 5.) Other than the autopsy report, no other medical
           evidence was presented as to Frash's cause of death.

           Groves had a long history of violence and psychological issues.
           In 1976, Groves was incarcerated for felony assault,
           kidnapping, attempted murder, and murder. As part of his
           intake screening evaluation, it was concluded that Groves
           could be unstable and had a severe paranoid personality.
           From 1984 to 1999, Groves had five instances of assault while
           in prison. In 1984, Groves stabbed an inmate in the chest with
           a pair of upholstery shears and was found not guilty by reason
           of insanity. The same year, a psychologist suggested that he be
           very closely observed because he could possibly be paranoid
           schizophrenic. In 1988, Groves stabbed his cellmate which
           resulted in an attempted murder conviction. In 1994, Groves
           stabbed an inmate in the neck, and in 1996, Groves assaulted
           another inmate using a can lid to cut his face. Lastly, in 1999,
           Groves used a shank to stab a fellow inmate. Throughout his
           incarceration Groves had many evaluations of his security
           classification as well as psychological evaluations. After
           several reevaluations, [ODRC] eventually determined that
           Groves' security classification could be reduced. In 2003,
           Groves' security classification was reduced from a level 5 to a
           level 4, and by March 2006, his security level was lowered to
           level 3 with a permanent single cell assignment. In 2007,
           Groves was assigned to RCI, and during his time at RCI,
           Groves was not involved in any attacks or fights. Until the
No. 14AP-932                                                                    4

           incident with Frash, Groves had not been involved in any
           attack or fight for more than ten years.

           ***

           The evidence demonstrates that the attack occurred because
           of and shortly after an interaction between Groves and Frash
           in the yard. There was no testimony presented that a CO was a
           witness to that interaction, and there was no prior threat by
           Groves to Frash directly, only a threat to the dog that Frash
           was walking. Deputy Warden Jeffrey Lisath (Lisath) also
           testified that there was no previous notice of altercations or
           disputes between Groves and Frash.

           [A]lthough Groves had previously attacked fellow inmates
           prior to being transferred to RCI, Lisath and inmate Griffis
           testified that Groves was not involved in any prior attacks or
           fights during his entire time at RCI. Further, records indicate
           that his last assault while in prison was in 1999, more than ten
           years before his attack on Frash. Although inmate Maxwell
           testified that Groves had a reputation in the prison for being a
           "crazy man" * * *.

           ***

           Inmate Maxwell testified that his side of the block was for
           level 2 inmates and that the other side was for level 3 inmates.
           Hawk testified that the block was medium security which he
           thought was level 2. However, Lieutenant Patrick Numberger
           testified that 8B was closed security which constituted level 3
           security. The court finds that Numberger's testimony, based
           on his 21 years as a CO at RCI, is more reliable than Maxwell's
           and Hawk's testimony with regard to security classifications.

           Hawk and Lisath testified that COs are instructed to wait for
           help before intervening in a fight for safety reasons.
           Numberger also testified that COs are not required to
           intervene. [ODRC]'s rules and procedures regarding use of
           force state that "[a]s employees of the Department, we have a
           duty to protect inmates, staff and third persons, but there is
           no requirement to needlessly sacrifice one's own personal
           safety in doing so. * * * An employee must balance his or her
           ability to be effective against the risk to personal safety. * * *
           Whenever possible, an employee shall summon assistance
           before becoming involved in a use of force. If an employee
           cannot effectively intervene in a situation, the employee is
           expected to continue to be observant of as many
No. 14AP-932                                                                            5

              circumstances of the situation as possible to be reported
              later." (Plaintiff's Exhibit 11, page 3.) Hawk testified that he
              gave verbal commands to stop and that he determined that
              intervention would have been ineffective and could have
              possibly escalated the situation, leading to an assault on
              officers or prisoners gaining control of the area. * * *
              Moreover, Hawk testified that the whole situation
              surrounding the fight only lasted around 30 seconds.
              Although inmate Maxwell guessed that the fight lasted five to
              ten minutes, the way he described the events supports a much
              shorter time frame. Inmate Maxwell testified that the stabbing
              was in rapid succession and occurred very quickly. He further
              testified that Frash went limp after the third or fourth stab,
              which occurred within a "matter of seconds" after the fight
              first began. Another inmate, Robert Lovely (Lovely), testified
              that the fight lasted about 20-30 seconds. Both inmates
              Lovely and Griffis testified that it took around 30 seconds
              before Hawk became aware of the fight and responded to it.
              This testimony supports the argument that by the time Hawk
              became aware of the fight, Frash had already received hits to
              his head and several stab wounds. Furthermore, Hawk's
              intervention in the fight after becoming aware of it would not
              have prevented the injuries to Frash's head—the cause of
              death—which occurred at the beginning of the fight.

(Aug. 16, 2014 Decision.)
       {¶ 3} Following his death, the Estate filed a claim in the Court of Claims on
March 30, 2011. In the course of discovery, the Estate sought an order compelling ODRC
"to turn over all prison and psychiatric records of Inmate Eugene Groves." Frash v. Ohio
Dept. of Rehab. & Corr., 10th Dist. No. 13AP-14, 2013-Ohio-2783, ¶ 3. The Court of
Claims denied the motion insofar as the motion sought psychiatric or medical records or
information beyond material pertaining to Groves' violent or assaultive behavior. Id. The
Estate twice renewed the motion to compel, and the Court of Claims denied it each time.
Id. at ¶ 4-5. The Estate attempted to appeal these orders to this court. Id. However on
July 8, 2013, we dismissed that appeal for want of a final order.
       {¶ 4} On March 10, 2014, the Court of Claims held a trial on liability.          It
entertained post-trial briefing on the merits. Thereafter on August 6, 2014, it issued a
written decision and judgment in favor of ODRC. The Estate sought a new trial on
grounds that the judgment was not sustained by the weight of the evidence, that it was
contrary to law, and that errors of law infected the proceedings, including that the Court
No. 14AP-932                                                                              6

of Claims did not allow the Estate to access or use Groves' complete psychiatric records
and refused to review the records in camera. On October 1, 2014, the Court of Claims
denied the motion.
       {¶ 5} The Estate now appeals.
II. ASSIGNMENTS OF ERROR
       {¶ 6} The Estate advances three assignments of error:
              [I.] THE TRIAL COURT, BASED UPON THE ACCEPTED
              FACTS, ERRED IN RULING DISCRETIONARY IMMUNITY
              PROTECTED DEFENDANT-APPELLEE FROM A FAILURE
              TO PROTECT AND FROM NOT SEPARATING LEVEL 2
              AND 3 INMATES.

              [II.] THE TRIAL COURT ERRED IN OVERRULING
              PLAINTIFF-APPELLANT'S MOTION FOR NEW TRIAL, IN
              FAILING TO RULE ON THE APPLICATION OF THE DUTY
              TO PROTECT, BOTH FROM THE STATUTORY DUTY, AS
              WELL AS THE COMMON LAW DUTY, BASED UPON THE
              COURT'S ACCEPTED FACTS, AS WELL AS ERRONEOUSLY
              FINDING LACK OF NOTICE.

              [III.] THE TRIAL COURT ERRED IN DENYING PLAINTIFF-
              APPELLANT'S MOTIONS TO COMPEL DISCLOSURE OF
              THE PSYCHIATRIC RECORDS OF THE ASSAILANT,
              EUGENE GROVES, AND IN FAILING TO PERFORM AN IN-
              CAMERA INSPECTION BEFORE SEALING THE RECORDS.

For cogency of discussion, we address these out of order.
III. DISCUSSION
       {¶ 7} A motion for a new trial under Civ.R. 59(A)(1) should be granted if the trial
evidences a departure from the due, orderly, and established mode of proceeding,
whereby a party, through no fault of his own, is deprived of some right or benefit
otherwise available to him. Reeves v. Healy, 192 Ohio App.3d 769, 2011-Ohio-1487, ¶ 18
(10th Dist.); Am. Chem. Soc. v. Leadscope, Inc., 10th Dist. No. 08AP-1026, 2010-Ohio-
2725, ¶ 93. The decision to grant or deny a new trial, pursuant to Civ.R. 59(A)(1), rests
within the trial court's discretion, and an appellate court will not reverse such a decision
absent an abuse of that discretion. Reeves at ¶ 18; Weinstock v. McQuillan, 10th Dist. No.
09AP-539, 2010-Ohio-1071, ¶ 10; see also Gill v. Grafton Corr. Inst., 10th Dist. No. 10AP-
1094, 2011-Ohio-4251, ¶ 33-34. However, no court has discretion to violate the law. In re
No. 14AP-932                                                                                                     7

G.D., 10th Dist. No. 14AP-801, 2015-Ohio-1969, ¶ 49. Moreover, the Estate has already
indicated its intention to argue only legal issues. See Corbin at ¶ 5-6. Thus, insofar as we
review the law applied by the Court of Claims, our review is de novo. See, e.g., Dragway
42, L.L.C. v. Kokosing Constr. Co., 9th Dist. No. 09CA0073, 2010-Ohio-4657, ¶ 32
(stating that "when the basis of the motion [for a new trial] involves a question of law, the
de novo standard of review applies, and when the basis of the motion involves the
determination of an issue left to the trial court's discretion, the abuse of discretion
standard applies"); Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio St.3d 352, 2008-Ohio-
938, ¶ 37 (reviewing questions of law concerning contract terms de novo but affording
"great deference" to the factual findings supporting and underlying the legal questions).
    A. Second Assignment of Error – Whether the Duty to Protect was
       Triggered by Notice of an Impending Attack
        {¶ 8} As in most negligence claims, the Estate was required to demonstrate the
existence of a duty, a breach of that duty, and an injury proximately caused by the breach.
Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77 (1984). ODRC owes inmates a
common-law duty of reasonable care and protection from unreasonable risks. Franks v.
Ohio Dept. of Rehab. & Corr., 195 Ohio App.3d 114, 2011-Ohio-2048, ¶ 12 (10th Dist.).
However the extent of the duty owed depends on the circumstances of the case and the
foreseeability of injury. Id. at ¶ 13. "[T]he state is not an insurer of inmate safety and
owes the duty of ordinary care only to inmates who are foreseeably at risk." Id., quoting
Woods v. Ohio Dept. of Rehab. & Corr., 130 Ohio App.3d 742, 745 (10th Dist.1998).
"Where as here, one inmate attacks another inmate, actionable negligence arises only
where prison officials had adequate notice of an impending attack."1 Metcalf v. Ohio Dept.

1 The Estate cites the dereliction of duty statute, R.C. 2921.44(C)(3), for the proposition that Hawk and

ODRC had a duty to prevent or stop the fight between Groves and Frash. Although R.C. 2921.44 is a criminal
statute, not a stand-alone civil cause of action, we recognize that "[w]here a legislative enactment imposes
upon any person a specific duty for the protection of others, and [a person's] neglect to perform that duty
proximately results in injury to such another, [that person] is negligent per se or as a matter of law."
Eisenhuth v. Moneyhon, 161 Ohio St. 367 (1954), paragraph two of the syllabus; see DeCosta v. Medina Cty.,
N.D.Ohio No. 1:04cv1118 (May 22, 2006) (R.C. 2921.44 is not a stand-alone civil cause of action). Yet, proof
of a violation of R.C. 2921.44(C) requires proof of negligence. R.C. 2921.44(C) ("No officer * * * shall
negligently do any of the following."). Thus, the fact that proof of a violation of R.C. 2921.44(C) gives rise to a
finding of negligence per se does little to advance the case, because proving negligence is a prerequisite to
proving a violation of R.C. 2921.44(C). Moreover R.C. 2921.44(C)(3) does not override other principles of
tort law, and foreseeability is still required for liability. Baker v. State Dept. of Rehab. & Corr., 28 Ohio
App.3d 99, 100 (10th Dist.1986) (discussing R.C. 2921.44 in tandem with the requirement of notice).
No. 14AP-932                                                                              8

of Rehab. & Corr., 10th Dist. No. 01AP-292, 2002-Ohio-5082, ¶ 11. This notice may be
actual or constructive. Id.
       {¶ 9} The Estate has not obtained a transcript and has instead elected to accept
the facts determined by the Court of Claims as established. Corbin at ¶ 5-6. On the topic
of notice, we reiterate that the Court of Claims stated:
              The evidence demonstrates that the attack occurred because
              of and shortly after an interaction between Groves and Frash
              in the yard. There was no testimony presented that a CO was a
              witness to that interaction, and there was no prior threat by
              Groves to Frash directly, only a threat to the dog that Frash
              was walking. Deputy Warden Jeffrey Lisath (Lisath) also
              testified that there was no previous notice of altercations or
              disputes between Groves and Frash. Accordingly, the court
              finds that the evidence does not demonstrate that defendant
              had actual notice that the attack was forthcoming.

              Plaintiff contends, though, that defendant had constructive
              notice of the attack because of Groves' history of violence and
              mental health problems and that defendant failed to protect
              Frash despite knowing about Groves' violent propensities.
              However, although Groves had previously attacked fellow
              inmates prior to being transferred to RCI, Lisath and inmate
              Griffis testified that Groves was not involved in any prior
              attacks or fights during his entire time at RCI. Further,
              records indicate that his last assault while in prison was in
              1999, more than ten years before his attack on Frash.
              Although inmate Maxwell testified that Groves had a
              reputation in the prison for being a "crazy man," the court
              finds that there is no evidence to show that defendant or its
              employees would have reason to know that Groves would
              attack Frash.

(Aug. 6, 2014 Decision.) While we are not required by law to accept the legal conclusions
drawn by the Court of Claims (that there was neither actual nor constructive notice), the
Court of Claims' recitation of the facts leaves little room for disagreement on the issue of
actual notice. Because the Court of Claims concluded as a factual matter that prison
officials had no pre-assault knowledge or information that Groves held animosity toward
Frash, and it had been over ten years since Groves had assaulted anyone, we agree that
ODRC did not have actual notice that an attack by Groves was "impending." Metcalf at
¶ 11. However, whether ODRC had constructive notice merits further discussion.
No. 14AP-932                                                                                               9

        {¶ 10} We begin with ODRC's argument (asserted at oral argument) that the Estate
was required to show that ODRC had constructive notice that Groves was going to attack
M.W. Frash. The question of constructive notice is essential to the question of whether a
governmental entity proximately caused injury or death through negligence. Miller v.
Ohio Dept. of Transp., 10th Dist. No. 13AP-849, 2014-Ohio-3738, ¶ 30 (court properly
adopted a magistrate's decision in favor of decedent's estate administrator in action
against the Ohio Department of Transportation ("ODOT"), for truck hitting potholes
and causing driver to lose control, resulting in a fatal crash with the decedent's vehicle,
because the evidence supported the finding that ODOT's failure to repair the potholes
was the sole proximate cause of the injuries, finding that ODOT had constructive notice
of the potholes).2 Therefore:
                "* * * If an injury is the natural and probable consequence of a
                negligent act and it is such as should have been foreseen in the
                light of all the attending circumstances, the injury is then the
                proximate result of the negligence. 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. * * *"

Walton v. Dept. of Rehab. & Corr., 10th Dist. No. 91AP-935 (June 25, 1992), quoting
Cascone v. Herb Kay Co., 6 Ohio St.3d 155, 160 (1983); Mudrich v. Standard Oil Co., 153
Ohio St. 31, 39 (1950). If ODRC had constructive notice that Groves would likely attack
someone and negligently failed to shield other persons in the prison from him, it is not
essential that ODRC know or foresee exactly whom Groves would stab.
        {¶ 11} We recognize that a prior case from this court has attempted to distinguish
the proximate cause inquiry from this question of notice on a basis that notice relates to
immunity, while proximate cause relates to liability. See Elam v. Ohio Dept. of Rehab. &
Corr., 10th Dist. No. 09AP-714, 2010-Ohio-1225, ¶ 10. However, Miller, a later case,
appears to have clarified that analysis. Accordingly, we conclude that, just as ODOT " 'is
not an insurer of the safety of travelers on its highways' " and "is not liable for damages


2We recognize that in Miller the issue of statutory immunity, pursuant to R.C. 2743.02(A)(1), subject to
waiver pursuant to R.C. 2744.02 was at issue, but this argument does not change our use of Miller for the
purpose of analyzing the relationship of constructive notice to proximate cause, especially in the context of
determining the liability of the state for damages for negligence.
No. 14AP-932                                                                               10

caused by hazards on state highways unless ODOT had actual or constructive notice of the
hazard and failed to remedy it," neither is ODRC an insurer of prisoner safety against
impending attacks unless it had actual or constructive notice of them.             (Citations
omitted.) Miller at ¶ 42. The Court of Claims in Miller had determined that the ODOT
"was not immune because it had constructive notice of the potholes and a reasonable
amount of time to remedy them. However, the issue of constructive notice primarily
relates to whether ODOT breached a duty to [the fatally injured victim]." Miller at ¶ 30,
citing Kemer v. Ohio Dept. of Transp., 10th Dist. No. 09AP-248, 2009-Ohio-5714, ¶ 31
(affirming Court of Claims on other grounds).
       {¶ 12} In short, the question of notice is not separate from the question of liability,
but it in fact relates to whether the agency or department in question "breached a duty" to
the injured person. Id. Applying the holding of Miller to the case under review, the
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 at ¶ 11;
Mussivand v. David, 45 Ohio St.3d 314, 321 (1989) ("in order to establish proximate
cause, foreseeability must be found"); Strother v. Hutchinson, 67 Ohio St.2d 282, 287
(1981) ("a reasonable foreseeability of injury is considered an element of proximate
cause").
       {¶ 13} Further, Elam, 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 (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 apparently resulting from his condition of paranoid schizophrenia.
       {¶ 14} In addition, in a prior case where an inmate's condition of paranoid
schizophrenia (like Groves) led to injury, but the inmate had not previously been violent
toward other inmates, we noted that foreseeability and notice were linked, and we thereby
No. 14AP-932                                                                            11

declined to find that ODRC had notice of or should have foreseen such an attack.
McGuire v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 96API04-444 (Sept. 30, 1996).
In McGuire we explained:
             While the psychological staff at [the prison] was aware of [the
             inmate's] condition and knew he had the potential to be
             dangerous, [his] history and actions prior to the assault
             simply did not make it foreseeable that he would attack
             another inmate. [He] had been in prison, mostly in the
             general population, for over twenty years and before the
             assault on appellant, had never assaulted anyone.

             [The assaulting inmate] is a paranoid schizophrenic. He talks
             to himself, has delusions and has hallucinations. When [he]
             did make threats, it was to no one in particular or to anyone in
             his vicinity. Despite [his] delusional behavior, he generally did
             fine in population and had never hurt anyone in prison. When
             [he] deteriorated enough, the experts on the psychological
             staff put him in isolation. When they concluded he was no
             longer a threat to himself or anyone else, they released him
             back into the general population. Given [the inmate's] history,
             the staff acted reasonably. No prison official had adequate
             notice of an impending attack.

      {¶ 15} However, in another case, Walton, we reversed a decision that had shielded
ODRC from liability. In that case, the attacking inmate stabbed his cellmate with a
kitchen knife stolen from the prison bakery.    The attacker, like Groves, had a long and
significant history of stabbing and assaulting people, including fellow inmates. Id. There
was also considerable evidence in the record that knives were unsecured, that the kitchen
was unsecured, and that guards left inmates unsupervised around the knives. Id. One
expert testified that the situation was "a catastrophe waiting to happen."       Id.   We
explained our decision to reverse the Court of Claims' judgment that had been rendered in
favor of ODRC in part as follows:
             In summary, the state defended on the grounds that constant
             supervision meant being close by, that the new knife policy,
             although effective on November 5, 1987, was not required to
             be implemented at that time or even one month later, that an
             inmate with a history of knife assaults could reasonably be
             assigned to kitchen duty, that the door into the area in which
             knives were being used could reasonably be left open for some
             indeterminate amount of time, even though the guard near
             the door was not always required to be present, that there
No. 14AP-932                                                                             12

              were no prior kitchen knife stabbings so no reason for
              concern, and that inmates who are threatened by other
              inmates have an affirmative duty to report such threats or the
              prison cannot be responsible if the threats are carried out.

              We find appellant produced competent, credible evidence
              establishing all the elements of her claim for negligence, and
              that the state's rebuttal of this evidence was both weak and
              unconvincing.

Walton.
       {¶ 16} The case now under review is more similar to Walton than to McGuire or
Elam. We recognize that, unlike the prison environment in Walton, Ross Correctional
Institute ("RCI") did not leave knives unattended where dangerous and unstable inmates
could obtain them. Nonetheless, even accepting the facts as recited by the Court of
Claims, we note a number of problems which, like the problems in Walton, made it easier
for Groves to carry out his fatal attack.
       {¶ 17} The corrections officer who was on duty at the time the attack commenced
was an inexperienced relief officer who had started working at RCI only two weeks prior.
He did not know the correct phone numbers to call in the event of an emergency which
delayed him in his attempt to obtain help. While the Court of Claims credited (and
therefore so must we) the testimony by Lieutenant Numberger that the prison block in
which Groves was housed was "closed security" level 3, it is undisputed that Hawk
testified that he thought the block was level 2. In other words, the guard in charge of the
part of the prison where the attack occurred did not know what level of security it actually
was and would therefore not have known to apply the appropriately rigorous security
procedures.
       {¶ 18} In the context of these failings, Groves (like the inmate in Walton) has a
very extensive history of hurting his fellow inmates and was incarcerated in 1976 for
violently injuring and killing other persons. Between 1984 and 1999 Groves participated
in five assaults, including stabbing another inmate in the chest with upholstery shears in
1984, stabbing his cellmate in 1988 (resulting in an attempted murder conviction),
stabbing two other inmates in 1994 and 1999, and cutting another inmate's face with a
can lid in 1996. Additionally, we note that some exhibits from the trial are before this
court and add detail to this list of events. In 1988, Groves not only stabbed his cellmate
No. 14AP-932                                                                              13

(as the Court of Claims recounted), he bit off his cellmate's lower lip. In 1994, Groves not
only stabbed a fellow inmate in the neck with a shank, but he ignored prison guards'
attempts to interfere, and chased the wounded, bleeding victim through the prison, up
and down stairs, and even outside before Groves surrendered and was handcuffed. A
1996 report recounts that Groves not only used a can lid to cut another inmate's face (as
the Court of Claims' decision mentions) but also suggests that Groves attempted to slice
the victim's throat with it and throw him over a prison balcony. The Court of Claims'
decision also mentions a 1999 stabbing. However eyewitness accounts by corrections
officers add details; significantly, that the stabbing was to the other inmate's face and
neck, that the other inmate escaped on his own, and that, had he not done so, Groves
would surely have killed him. Even as recently as September 13, 2006, Groves told a
female staff member that her life could be taken in a "split second" before help could get
to her.
          {¶ 19} Taken together, these circumstances bespeak "a catastrophe waiting to
happen." Walton. While it is true that Groves had not been involved in a physical
altercation for approximately a decade, we have previously recognized that persons who
suffer from paranoid schizophrenia have periods of relative quiescence and stability as
well as periods of deterioration which, if not carefully monitored, can lead to episodic
violence.     McGuire.    Moreover, after Groves' last stabbing episode in 1999, he was
confined in maximum security conditions for a significant period of time. Thus, it is
evident that for many years of the ten-year quiescence period, Groves had fewer
opportunities to interact with or stab other people because of the level of security in which
he was housed. Under the circumstances, a period of even ten years in which Groves did
not assault anyone was not sufficient to dispel the salience of the knowledge possessed by
ODRC about Groves' violent and volatile tendencies. We find as a matter of law that,
under the circumstances, ODRC had constructive notice that an attack from Groves was,
at any moment, impending. ODRC had a duty to protect its employees, visitors, and the
inmates it housed from the potential and likely actions of such an inmate.
          {¶ 20} The Estate's second assignment of error is sustained.
No. 14AP-932                                                                                      14

    B. First Assignment of Error – Whether Discretionary Immunity Shielded
       ODRC from the Estate's Claims

       {¶ 21} Under the judicially created doctrine of sovereign or discretionary
immunity, ODRC is generally immune from tort liability for decisions relating to policies
and procedures.3 Franks at ¶ 14, citing Hughes v. Ohio Dept. of Rehab. & Corr., 10th
Dist. No. 09AP-1052, 2010-Ohio-4736, ¶ 16; Howe v. Jackson Twp. Bd. of Trustees, 67
Ohio App.3d 159, 162 (6th Dist.1990). Specifically, the sovereign " ' "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 which is characterized by the exercise of a
high degree of official judgment or discretion." ' " Franks at ¶ 14, quoting Hughes at ¶ 16,
quoting Reynolds v. State Div. of Parole & Community Servs., 14 Ohio St.3d 68 (1984),
paragraph one of the syllabus. The Estate argues that the doctrine of discretionary
immunity is inapplicable in this case and that the Court of Claims erred by applying it to
deny the Estate's claims.
       {¶ 22} In Bugh v. Grafton Corr. Inst., 10th Dist. No. 06AP-454, 2006-Ohio-6641, ¶
2-5, 25-34, we considered whether decisions made by personnel at a correctional
institution should be afforded discretionary immunity. In that case an inmate alleged that
he needed special footwear due to arthritis and injuries to his feet and that the failure to
timely provide such had caused him injury. Id. at ¶ 2. The trial court granted summary
judgment to the correctional institution after finding that the institution's decision to
transport the inmate for medical care and to provide special boots instead of surgery was
characterized by a high degree of judgment or discretion. Id. at ¶ 5. After reaching this
finding, the trial court concluded that the institution's decisions were immune from suit.
Id. We reversed because "once the decision has been made to engage in a certain activity
or function, the state may be held liable, in the same manner as private parties, for the
negligence of the actions of its employees and agents in the performance of such
activities." Id. at ¶ 27-29. We decided a similar case with similar results in Franks, where
an inmate had been injured by a fall after seeking to be moved to a ground-level cell based



3ODRC and the Court of Claims relied on the judicially created doctrine, not Chapter 2744 of the Ohio
Revised Code which confers tort immunity upon "political subdivisions." See R.C. 2744.02; 2744.01(F).
No. 14AP-932                                                                                 15

on a medical condition that made it dangerous and difficult for him to negotiate stairs.
Franks at ¶ 13-16.
       {¶ 23} In other words, when adopting a policy or procedure to "preserve internal
order and maintain institutional security" or by acting in accordance with such a policy or
procedure, ODRC (as a division of the sovereign) enjoys immunity. Franks at ¶ 14; see
also Reynolds at paragraph one of the syllabus. But that was not the situation argued in
this case.   The Estate's allegations were that an inexperienced guard, Hawk, acted
improperly and fearfully in reacting to a fight and that ODRC violated its policies in
deciding to house an unstable and dangerous inmate like Groves in a level 2 area. While
we recognize that Hawk, like all implementing employees, must exercise some degree of
discretion in carrying out his duties, we have previously explained the problem in finding
immunity in these situations: " 'Were we to find that discretionary immunity applies every
time a state employee exercises discretion in performing his or her job, we would be vastly
expanding the scope of the discretionary immunity doctrine.' " Miller at ¶ 32, quoting
Foster v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 12AP-503, 2013-Ohio-912, ¶ 23.
Insofar as the Court of Claims applied immunity to claims that are really about negligence
in adhering to policies relating to training, supervision, and inmate placement, it erred.
       {¶ 24} The Estate's first assignment of error is sustained.
   C. Third Assignment of Error – Whether the Trial Court Erred in Failing
      to Compel, Admit, and Consider Groves' Full File Including Medical
      and Psychiatric Records
       {¶ 25} The Court of Claims described its decisions to deny the Estate access and
use of Groves' medical and psychiatric records as follows:
              On three separate occasions, plaintiff filed a motion to compel
              Groves' psychological and medical records, and on all three
              motions, the court denied the motion because plaintiff did not
              persuade the court that the documents were not privileged,
              relevant, or would lead to admissible evidence establishing the
              necessary elements of plaintiff's cause of action.

(Oct. 1, 2014 Entry, 2.) This incorrectly shifts the defendant's burden to the plaintiff.
"The burden of proof rests with the party asserting the existence of privilege." Shaffer v.
OhioHealth Corp., 10th Dist. No. 03AP-102, 2004-Ohio-63, ¶ 8. The Court of Claims
No. 14AP-932                                                                              16

erred in ruling against the Estate on grounds that the Estate had failed to carry a burden
that was not its to carry.
       {¶ 26} Additionally, we acknowledge that communications between a licensed
psychologist or physician and a patient are often privileged. R.C. 2317.02(B); 4732.19.
But that privilege is not automatic and instead arises only in connection with
"communications" made to a care provider by a "patient" and "advice" from that care
provider to the "patient." R.C. 2317.02(B)(1). Consistent with the notion of what a patient
is in relation to a treating physician or psychologist, courts have recognized that the
purpose of this privilege is to " 'create an atmosphere of confidentiality, encouraging the
patient to be completely candid and open with his or her physician [or psychologist],
thereby enabling more complete treatment.' Otherwise, the fear of disclosure 'could
seriously impede the patient's chances for a recovery.' " In re Wieland, 89 Ohio St.3d 535,
538-39 (2000), quoting In re Miller, 63 Ohio St.3d 99, 107-08 (1992).
       {¶ 27} As a corollary, where a communication between a person and a psychologist
is made for purposes other than to facilitate diagnosis and treatment (for example
determining proper security classification in a prison), the privilege may not attach. See
In re Wieland, 2d Dist. No. 17646 (July 9, 1999) (remarking that when "[t]he physician is
not examining or treating the patient to alleviate medical complaints or substance
addictions" and "[i]nstead * * * is performing a forensic evaluation for the purpose of
helping the court to determine the best course of action * * * no privilege attaches"); State
v. Conley, 8th Dist. No. 69597 (Aug. 22, 1996) (privilege does not apply to a medical
examination undertaken to produce test results for the purposes of proving a point in
controversy in a criminal investigation); State v. Garrett, 8 Ohio App.3d 244, 246 (10th
Dist.1983) (privilege does not attach to a communication to a doctor by a person seeking a
prescription for a controlled substance where there is no evidence that the drug was
obtained by said person for the treatment of any medical illness, disease or disorder); In
re Winstead, 67 Ohio App.2d 111 (9th Dist.1980) (privilege inapplicable to an examination
for judicial involuntary commitment procedure); Ring v. Fox, 56 Ohio App.2d 235 (2d
Dist.1977) (privilege does not apply to an examination for purposes of job promotion).
       {¶ 28} Moreover, as to questions of whether material is relevant and discoverable,
this court has previously stated:
No. 14AP-932                                                                             17

              Matters are only irrelevant at the discovery stage when the
              information sought will not reasonably lead to the discovery of
              admissible evidence. [Covington v. MetroHealth Sys., 150
              Ohio App.3d 558, 2002-Ohio-6629, ¶ 23 (10th Dist.)];
              Dehlendorf v. Ritchey, 10th Dist. No. 12AP-87, 2012-Ohio-
              5193, ¶ 20. The party resisting discovery bears the burden of
              demonstrating to the trial court that the requested
              information would not meet this standard. Bennett v. Martin,
              186 Ohio App.3d 412, 2009-Ohio-6195, ¶ 44 (10th Dist.).

(Emphasis added.) Union Sav. Bank v. Schaefer, 10th Dist. No. 13AP-222, 2013-Ohio-
5704, ¶ 46. Some of the key questions in the case were whether the injury to M.W. Frash
by Groves was foreseeable and whether ODRC was negligent in protecting M.W. Frash
from Groves. Evidence as to Groves' mental state leading up to the attack and Groves'
psychiatric condition and propensity for violence are discoverable absent ODRC
demonstrating that they should not be subject to discovery for whatever reason it posited.
       {¶ 29} We finally note that the Court of Claims declined to make an in camera
inspection of the records being challenged. The Court of Claims should not have placed
the burden of proving relevance and disproving privilege on the Estate (which did not
have access to the records). Moreover, it should have performed an in camera inspection
before ruling that the records were privileged and irrelevant without knowing for what
purpose the records had been made.
       {¶ 30} The Estate's third assignment of error is sustained.
IV. CONCLUSION
       {¶ 31} We sustain all three of the Estate's assignments of error. The decision of the
Court of Claims of Ohio is reversed, and the case is remanded for a new trial consistent
with this decision. The Court of Claims is specifically instructed that it shall reconsider
ODRC's claims of privilege and irrelevance, properly putting the initial burden upon
ODRC to establish the same, and determine if necessary, with an in camera inspection,
whether the challenged medical and psychological records should be provided and
admitted in the new trial.
                                                                   Judgment reversed;
                                                   and cause remanded with instructions.

                                 TYACK, J., concurs.
                   DORRIAN, P.J., concurs in part and dissents in part.
No. 14AP-932                                                                            18


DORRIAN, P.J., concurring in part and dissenting in part.

       {¶ 32} I concur with the majority that the Court of Claims erred in not conducting
an in camera inspection of Groves' medical records. Accordingly, I would sustain the
third assignment of error.
       {¶ 33} I concur in judgment only with the majority that the Court of Claims erred
in not considering whether ODRC was negligent in performing and adhering to its own
policies. Accordingly, I would sustain the first assignment of error.
       {¶ 34} I respectfully dissent from the majority and its blending of the elements of
constructive notice and proximate cause. I do not construe Miller v. Ohio Dept. of
Transp., 10th Dist. No. 13AP-849, 2014-Ohio-3738, as the majority does. I would follow
our instruction in Elam v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 09AP-714, 2010-
Ohio-1225, ¶ 10, that in proving the elements of a wrongful death suit, notice of an attack
is a "separate and distinct" requirement from proximate cause. Accordingly, I would
overrule the second assignment of error.
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