[Cite as Morris v. Ohio Dept. of Rehab. & Corr., 2010-Ohio-5685.]

                                                        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




PETER A. MORRIS

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant
       Case No. 2009-05901

Judge Alan C. Travis
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 Belmont Correctional Institution (BeCI) pursuant to R.C. 5120.16. On
the morning of May 26, 2009, plaintiff stood on an approximately 8-foot tall ladder
dusting the air ducts in “4 House” at BeCI1 when he was struck on the left side of the
head by the blade of a ceiling fan. Plaintiff asserts that defendant both negligently
supervised his activities and negligently permitted the fan to be turned on while he was
cleaning the ducts.
        {¶ 3} Plaintiff testified that on the day of the incident he was awakened between
8:00 a.m. and 9:00 a.m. and ordered to report to Corrections Sergeant Larry Dunham.
Plaintiff stated that Dunham ordered him to clean the dust off the large, round, air ducts
in the building. According to plaintiff, this task is accomplished by using a ladder to

        1
         Plaintiff’s July 13, 2010 motion for a “view” of the area is DENIED.
Case No. 2009-05901                          -2-                 MAGISTRATE DECISION

reach the ducts and then simply wiping them off with rags. Plaintiff testified that at the
time he mounted the ladder, the ceiling fans in the unit were off but that after
approximately ten minutes, the fans were turned on and the blade of a nearby fan
struck his head. According to plaintiff, the fans can only be turned on using a wall-
mounted switch located near the corrections officer’s (CO) desk, approximately 30 feet
from where he was working. Plaintiff stated that the blow caused a laceration to his
head that started bleeding, and that he used his shirt to cover the wound. According to
plaintiff, he then walked to the officer’s desk and reported the incident to the COs on
duty. Plaintiff testified that the COs at the desk summoned medical staff who arrived a
short time later with a cart to take him to the infirmary for treatment.
        {¶ 4} Plaintiff testified that after Dunham gave him the ladder and instructed him
to clean the ducts, Dunham returned to his office. Plaintiff further testified that he wore
earphones as he worked and that he would not have been able to hear the fans turn on
or any warning that might have been issued regarding the fans being turned on.
Plaintiff also stated that he was unable to see the officer’s desk from where he was at
the time of the incident. Plaintiff does not know who turned on the fans.
        {¶ 5} Inmates Christian Walters and William Seawood were housed in 4 House
on the day of the incident.         According to Walters, he was sitting on his bed
approximately “15 or 20 steps” from where plaintiff was working at the time of the
incident. Walters testified that the fans were operating earlier that morning, that they
had been turned off at some point in time, and that it had begun to get hot in the
building. Walters stated that he got up to ask a CO to turn the fans on, but saw plaintiff
cleaning the ducts and returned to his bed.         Walters testified that a “few minutes”
thereafter he heard the fans turn on, looked in plaintiff’s direction, and saw the fan strike
him. Walters further testified that he did not think the COs at the desk could see
plaintiff.
Case No. 2009-05901                          -3-                 MAGISTRATE DECISION

       {¶ 6} Seawood testified that on the day of the incident he was sitting on his bed,
near Walters’ bed, that he observed plaintiff cleaning the ducts and saw the fan strike
his head. Seawood also stated that the fans were running earlier in the morning, but
were turned off at the time plaintiff was cleaning. According to Seawood, his bed was
positioned such that he could both feel a draft from and hear the fans when they were
operating, and that he clearly remembered the fans being turned off before plaintiff
began cleaning the ducts.
       {¶ 7} Sergeant Dunham testified that on the day of the incident, he retrieved a
ladder, brought it into the building, asked for volunteers to clean the ducts, and that
plaintiff volunteered.   According to Dunham, the ladder used is an eight-foot-tall
“platform ladder” and the ducts in question are approximately ten feet off the ground.
Dunham stated that he supervised plaintiff for a short time, until he noticed that “at least
ten” inmates had lined up at his office to speak to him. According to Dunham, at that
point, he told plaintiff to stop cleaning, put the ladder aside, and not resume cleaning
until instructed to do so. Dunham testified that while he was in his office, plaintiff visited
him on two separate occasions and asked if he could resume cleaning the ducts, and
that he instructed plaintiff on both occasions not to do so. Dunham testified that he did
not see the fan strike plaintiff as he was in his office, but that the fans in the building run
continuously, even when someone is cleaning the ducts.
       {¶ 8} Dunham opined that plaintiff purposefully allowed the fan to strike his
head. To support his theory, Dunham testified that after plaintiff returned from the
infirmary, he told him that he would not file a lawsuit about the incident if Dunham would
agree to bring contraband into BeCI for him, namely cigarettes and other tobacco
products.     Dunham filed a conduct report on plaintiff for his actions.        (Defendant’s
Exhibit A.)
       {¶ 9} On rebuttal, plaintiff disputed that he volunteered to clean the ducts, that
Dunham ever told him to stop cleaning, or that he visited Dunham in his office just prior
to the incident.
Case No. 2009-05901                        -4-                 MAGISTRATE DECISION

        {¶ 10} 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 it breached its
duty, and that the breach proximately caused his injuries.        Armstrong v. Best Buy
Company, 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. Ohio Dept. of Rehab. & Corr., Franklin App. No. 02AP-132,
2002-Ohio-5170, ¶13. A duty arises when a risk is reasonably foreseeable. Menifee,
supra, at 75. Such a duty includes the responsibility to exercise reasonable care to
protect inmates against those unreasonable risks of physical harm associated with
institutional work assignments. Boyle v. Ohio Dept. of Rehab. & Corr. (1990), 70 Ohio
App.3d 590, 592.
        {¶ 11} The court finds that the testimony offered by plaintiff, Seawood, and
Walters was more credible than that of Dunham. Specifically, the court finds that the
fans were turned off so that plaintiff could clean the ducts, but were turned on soon
thereafter; that Dunham was not supervising plaintiff at the time he was struck by the
fan; that Dunham did not instruct plaintiff to stop cleaning; that plaintiff did not visit
Dunham in his office prior to the incident; and that Dunham’s supposition that plaintiff
purposefully allowed the fan to strike him is baseless. The court finds that defendant
committed a breach of the duty of care it owed to plaintiff by not properly supervising
him while he worked, and although defendant argues that it is unclear who turned the
fans on, it is clear that defendant had control over the switch for the fans and negligently
permitted the fans to be turned on while plaintiff was on the ladder. As a result, plaintiff
was struck by the fan blade and injured. Accordingly, judgment is recommended in
favor of plaintiff.
Case No. 2009-05901                         -5-                MAGISTRATE DECISION

         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).



                                           _____________________________________
                                           MATTHEW C. RAMBO
                                           Magistrate

cc:


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

MR/cmd
Filed October 12, 2010
To S.C. reporter November 18, 2010
