[Cite as Frash v. Ohio Dept. of Rehab. & Corr., 2016-Ohio-3134.]


                              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 May 24, 2016


                On brief: Swope and Swope, Attorneys at Law, and Richard
                F. Swope, for appellant.

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

                     ON APPLICATION FOR EN BANC CONSIDERATION

BRUNNER, J.
I. INTRODUCTION
        {¶ 1} Defendant-appellee, Ohio Department of Rehabilitation and Correction,
("ODRC") has filed an application for en banc consideration of a decision we released on
February 2, 2016, reversing a decision of the Court of Claims of Ohio and remanding with
instructions. See Frash v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 14AP-932, 2016-
Ohio-360. Plaintiff-appellant, Mark J. Frash, as administrator for the estate of Mark W.
Frash, ("Estate") has responded in opposition.
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No. 14AP-932
II. STANDARD
       {¶ 2} The Ohio Rules of Appellate Procedure explain the circumstances under
which en banc consideration should be accorded:
              Upon a determination that two or more decisions of the court
              on which they sit are in conflict, a majority of the en banc
              court may order that an appeal or other proceeding be
              considered en banc. * * * Consideration en banc is not
              favored and will not be ordered unless necessary to secure or
              maintain uniformity of decisions within the district on an
              issue that is dispositive in the case in which the application is
              filed.
App.R. 26(A)(2)(a). The Local Rules of the Tenth District Court of Appeals also prescribe
a preliminary procedure whereby "[a]n application for en banc consideration * * * shall
initially be submitted to the three-judge panel that issued the more recent of the two
decisions alleged to be in conflict" to determine if the application shall be submitted to the
en banc court. Loc.R. 15 of the Tenth District Court of Appeals; see also State v. Forrest,
136 Ohio St.3d 134, 2013-Ohio-2409. Unless this panel finds unanimously "that no
conflict exists" the en banc court must consider whether to grant the application and
consider the matter. Id. Thus, the core issue, both for deciding whether the en banc court
should consider the application and the underlying merits, is whether our decision in
Frash conflicts with other decisions of this Court.
       {¶ 3} The Supreme Court of Ohio has made apparent that conflicting decisions
are those which conflict on the same legal issue or question of law. In re J.J., 111 Ohio
St.3d 205, 2006-Ohio-5484, ¶ 18.        However, "courts of appeals have discretion to
determine whether an intradistrict conflict exists." McFadden v. Cleveland State Univ.,
120 Ohio St.3d 54, 2008-Ohio-4914, paragraph two of the syllabus. Yet, "if the judges of a
court of appeals determine that two or more decisions of the court on which they sit are in
conflict, they must convene en banc to resolve the conflict." Id.
III. DISCUSSION
   A. Notice of Which Particular Inmate Will be Attacked is Not Always
      Necessary or Always Unnecessary
       {¶ 4} ODRC makes much of our statement in Frash that it was, "not essential that
ODRC know or foresee exactly whom Groves would stab." Frash at ¶ 10. ODRC then
asserts that our 17-page majority decision "boils down" to nothing more than the holding
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No. 14AP-932
that because the assailant, Eugene Groves, ("Groves") had "an older propensity for
violence" that ODRC was perpetually on constructive notice that Groves would attack.
(Feb. 12, 2016 Application for en Banc Consideration, 9.) This, ODRC states, conflicts
with other cases in which we have made statements such as, "the averments in the
affidavit do not permit the inference that [he] threatened to harm appellant in
particular." (Emphasis sic.) Id. at 8, quoting Allen v. Ohio Dept. of Rehab. & Corr., 10th
Dist. No. 14AP-619, 2015-Ohio-383, ¶ 21. In fact however, our statement that it was "not
essential that ODRC know or foresee exactly whom Groves would stab" was not a legal
holding about ODRC's duties to all prisoners in all cases. Frash at ¶ 10. It was an
observation that, based on the facts of the case (which are much more complicated than
the "boiled down" version ODRC now presents), identifying a specific target was not
necessary.
       {¶ 5} ODRC argues that this Court has created an absurd result where ODRC is in
a "sued if you do, sued if you don't" situation where it must either confine people in
maximum security and face suit for constitutional violations or face lawsuits for every
harm any prisoner perpetrates. (Feb. 12, 2016 Application for en Banc Consideration, 4.)
However, ODRC's argument is an oversimplification both of the law as it stood prior to
Frash and of the Frash decision itself. That is, ODRC posits that the law always had been
(prior to Frash) that ODRC was never liable unless they knew exactly whom an inmate
would attack. Then ODRC claims that our decision in Frash makes ODRC liable every
time something happens regardless of whether they knew whom an inmate would attack.
Both positions are hyperboles of our holding.
       {¶ 6} We have never held that notice of exactly who would be attacked is always a
necessary prerequisite to establishing liability in cases such as these. Though ODRC cites
a number of cases to try to support that proposition, none of those cases consist of
holdings that knowing who would be attacked is always a prerequisite to establishing
liability on the part of ODRC.
       {¶ 7} For example, in Allen, we explained that past threats against a variety of
inmates without a "claim that [the attacker] ever made good on those threats" were
insufficient to infer that ODRC "had constructive notice that an assault upon [the victim]
was imminent." Allen at ¶ 22. We then remarked, within the fact pattern of an inmate
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No. 14AP-932
who had made unsubstantiated threats, that the fact that ODRC "knew that [the attacker]
was a violent offender who had made threats of violence toward other inmates is
insufficient, standing alone, to establish constructive notice to [O]DRC of an imminent
attack on appellant." (Emphasis added. ) Id.
       {¶ 8} In Watson v. Ohio Depart. of Rehab. & Corr., 10th Dist. No. 11AP-606,
2012-Ohio-1017, we declined to infer that the attacker was a danger to the victim and
other inmates based on erratic behavior, because that "does not translate into actual or
constructive notice that [the inmate] posed a risk of violence or that his attack on [the
injured inmate] was forthcoming." Id. at ¶ 15, quoting Hughes v. Ohio Dept. of Rehab. &
Corr., 10th Dist. No. 09AP-1052, 2010-Ohio-4736, ¶ 15. We additionally noted that the
inmate in Watson had "never exhibited violent tendencies or assaultive behavior toward
[the victim] or any other inmate during his incarceration at [the prison.] Further, while
[the attacker's] actions prior to the assault were certainly bizarre, he did not threaten or
act violently toward [the victim] or any other inmate." (Emphasis added.) Watson at ¶ 19.
       {¶ 9} In Ford v. Ohio Depart. of Rehab. & Corr., 10th Dist. No. 05AP-357, 2006-
Ohio-2531, ¶ 14, 26, ODRC notes that we remarked that "this evidence, if believed by the
Court of Claims as the trier of fact, constitutes some competent credible evidence to
support the Court of Claims' conclusion that ODRC lacked actual or constructive notice of
the intentional attack upon plaintiff." This is in no way analogous to an intentional attack
upon the plaintiff, nor does it support a contention that, in every case, notice concerning a
particular victim is a necessary prerequisite to liability.
       {¶ 10} Finally, in Kordelewski v. Ohio Depart. of Rehab. & Corr., 10th Dist. No.
00AP-1102 (June 21, 2001), we noted that this Court's caselaw had "left open the
possibility that grossly deficient security procedures might give rise to liability on the part
of ODRC if the result were to permit one inmate to attack another." But we ultimately
decided in that case that the attacker's "institutional record of violence was * * * [not] so
out of the ordinary as to warrant measures beyond those already taken by ODRC staff"
and "accordingly [that] ODRC cannot be found liable for the attack solely on the basis of
[the attacker's] institutional history of violent incidents." (Emphasis added.) Id.
       {¶ 11} Not only does ODRC's argument go too far in construing the cases reviewed
above, it also goes too far in construing Frash. We did not hold in Frash that it is never
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No. 14AP-932
(or even not generally) necessary to have notice of against whom an attack is impending.
The law is that in order to be liable, ODRC must have had notice, actual or constructive, of
an impending attack. See e.g., Metcalf v. Ohio Dept. of Rehab. & Corr., 10th Dist.
No. 01AP-292, 2002-Ohio-5082, ¶ 11. Whether ODRC had or did not have notice is a
question that depends on all the factual circumstances involved, only one of which is
whether ODRC had information about exactly whom would be attacked. As we explained
in Frash:
              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." Metcalf * * *, 2002-
              Ohio-5082, ¶ 11. This notice may be actual or constructive. Id.
(Footnote omitted.) Frash at ¶ 8.
       {¶ 12} In Frash, unlike the cases ODRC cites, we viewed the other factual
circumstances as sufficient to put ODRC on constructive notice notwithstanding the fact
that ODRC lacked information about exactly whom Groves would assault. For example,
we considered: (1) Grove's regular and repetitive record of stabbing violence against other
inmates (incidents in 1984, 1988, 1994, 1996, and 1999 before being placed on level 5
security) leading up to this incident in 2010 (which was 4 years after being transferred to
level 3 security in 2006); (2) the fact that these incidents were a direct result of Groves'
permanent mental condition as a sufferer of paranoid schizophrenia; (3) the fact that the
only guard on duty nearby was an inexperienced relief officer who had only worked at the
prison for two weeks; (4) did not know the numbers to call in the event of an emergency;
and (5) thought he was guarding level 2 prisoners (less dangerous) when he was really
guarding level 3 prisoners (more dangerous). Id. at ¶ 2, 16-19.
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No. 14AP-932
       {¶ 13} In short, Frash does not change the law that, as we have observed in past
cases, it would often be unfair to say that ODRC had notice of an attack when they did not
know who would be attacked. Despite ODRC's arguments that it is always necessary to
show that ODRC had notice of precisely whom would be attacked, there are situations in
which it would be manifestly absurd to say that ODRC had no notice of an impending
attack when it did not know particularly who would be attacked. For example, if an
inmate stated to a guard, "I will stab to death the next person who walks into the exercise
yard," and the inmate carried out his plan as the guard stood by doing nothing to
interfere, it would be clear that the prison had notice that an attack was impending even
though no one could predict which particular person would be attacked. In Frash, we
believed the facts as stated by the Court of Claims justified the conclusion that the Court
of Claims was in error to have held that ODRC lacked constructive notice. Frash applies
the same law as all the cases ODRC now cites, it merely reaches a different result because
the facts are different. See, e.g., Allen at ¶ 22 (remarking that there was no "claim that [the
attacking inmate] ever made good on [prior] threats"); Watson at ¶ 19 (noting that the
attacking inmate "never exhibited violent tendencies or assaultive behavior toward [the
victim] or any other inmate"); Kordelewski (noting that, because ODRC had acted
appropriately, "ODRC cannot be found liable for the attack solely on the basis of [the
attacker's] institutional history of violent incidents"). There is no conflict on a question of
law here that requires en banc review.
   B. Discretionary Immunity
       {¶ 14} ODRC argues that Frash should be reviewed en banc because we held that
ODRC was liable concerning inmate transfer and placement decisions, with previous
holdings being that such decisions are normally entitled to immunity. However, nowhere
in Frash did we hold as ODRC now asserts. Rather, we noted that discretionary immunity
protects " ' " '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." ' " ' Frash at ¶ 21, quoting 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. Then we explained that some of the Estate's claims
at the trial level appeared to be more in the nature of claims about negligence by the guard
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No. 14AP-932
involved, negligent training of him, and negligence in following already-established
policies, which are not protected by such immunity:
                 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 v. Ohio Dept. of Transp., 10th
                 Dist. No. 13AP-849, 2014-Ohio-3738, ¶ 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.
Frash at ¶ 23.
       {¶ 15} We discern no basis for en banc review here.
   C. Privilege, Relevance, Burdens, and in Camera Review
       {¶ 16} We reversed the decision of the Court of Claims with regard to discovery
issues because that court improperly placed the burden on the party seeking the discovery
to prove relevance and the absence of privilege and because it refused to review
purportedly privileged records in camera to ascertain whether they were privileged. We
explained:
                 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.
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No. 14AP-932
             (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 erred in ruling against the Estate on
             grounds that the Estate had failed to carry a burden that was
             not its to carry.

             ***

             Moreover, as to questions of whether material is relevant and
             discoverable, this court has previously stated:

                    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.

             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.
Frash at ¶ 25, 28-29.
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No. 14AP-932
       {¶ 17} ODRC does not claim that these principles of law are incorrect or cite any
case from this district or elsewhere that purports to conflict with these legal principles.
Thus, we find no occasion for en banc review of our decision.
IV. CONCLUSION
       {¶ 18} In Frash we applied the law as it existed in this district to a highly unusual
fact pattern to reach the result we did, but we did not state any new or conflicting rules of
law. Our decision in Frash does not conflict with other decisions of this district on any
question of law. Hence, there is no occasion for en banc review, and ODRC's application
is denied.
                                                                        Application denied.
                               TYACK, J., concurs.
                       DORRIAN, P.J., concurs in judgment only.

DORRIAN, P.J., concurring in judgment only.
       {¶ 19} I concur in judgment only to deny Ohio Department of Rehabilitation and
Correction's ("ODRC") application for en banc consideration.
       {¶ 20} ODRC asks this court to find that the majority's conclusion at ¶ 10 of the
decision, Frash v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 14AP-932, 2016-Ohio-360,
that "it is not essential that ODRC know or foresee exactly whom Groves would stab,"
conflicts with Elam v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 09AP-714, 2010-Ohio-
1225, ¶ 11-12; Ford v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 05AP-357, 2006-Ohio-
2531, ¶ 14; and Allen v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 14AP-619, 2015-
Ohio-383, ¶ 21. (Emphasis sic.) ODRC argues that Elam, Ford, and Allen stand for the
proposition that ODRC is liable for inmate-on-inmate assault only when it had actual or
constructive notice that one inmate intended to harm another specific inmate. ODRC
further argues that such conclusion blends the requirement of notice with the
requirement of proximate cause.
       {¶ 21} As noted by ODRC, I dissented from the majority's blending of the elements
of constructive notice and proximate cause. I noted that I would follow this court's
precedent in Elam, at ¶ 10, that in proving the elements of a wrongful death suit, notice of
an attack is a "separate and distinct" requirement from proximate cause. I continue to
have concerns regarding the majority's discussion of negligence (notice) as being "not
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No. 14AP-932
separate from the question of liability." Frash at ¶ 12. Nevertheless, my concerns in this
regard do not necessarily lead me to the conclusion that there is an intradistrict conflict of
law as ODRC has posited above.
       {¶ 22} The majority states herein that "[w]e did not hold in Frash that it is never
(or even not generally) necessary to have notice of against whom an attack is impending.
* * * Whether ODRC had or did not have notice is a question that depends on all the
factual circumstances involved, only one of which is whether ODRC had information
about exactly whom would be attacked." (Lead opinion at ¶ 11.) The majority further
states: "Frash applies the same law as all the cases ODRC now cites, it merely reaches a
different result because the facts are different." (Lead opinion at ¶ 13.) Finally, the
majority states: "In Frash we applied the law as it existed in this district to a highly
unusual fact pattern to reach the result we did, but we did not state any new or conflicting
rules of law." (Lead opinion at ¶ 18.) With this in mind, I would concur with the majority
that en banc review is not proper with regard to this issue as it is posited by ODRC.
       {¶ 23} ODRC also asks this court to find that the rejection of discretionary
immunity in the decision conflicts with Troutman v. Ohio Dept. of Rehab. & Corr., 10th
Dist. No. 03AP-1240, 2005-Ohio-334, ¶ 9, and Hughes v. Ohio Dept. of Rehab. & Corr.,
10th Dist. No. 09AP-1052, 2010-Ohio-4736, ¶ 16-19. ODRC then concedes that the
"majority opinion does not explicitly overrule those cases finding that classification,
housing and placement of inmates a matter of discretion—but does so in effect." (Feb. 12,
2016 ODRC Application for En Banc Consideration at 19.) Accordingly, as there is no
express conflict, I would concur with the majority that en banc review is not proper with
regard to this particular issue.
       {¶ 24} Finally, ODRC asks this court to find that the rejection of the state's claim of
a non-party's privilege in mental health records in the decision conflicts with a yet
undecided case, Evans v. Summit Behavioral Healthcare, 10th Dist. No. 15AP-241. As
the conflict presented here is hypothetical, I would concur with the majority that en banc
review is not proper with regard to this particular issue.
