[Cite as Howard v. Ohio Dept. of Rehab. & Corr., 2016-Ohio-684.]




ROBERT K. HOWARD                                      Case No. 2014-00950

        Plaintiff                                     Magistrate Gary Peterson

        v.                                            DECISION OF THE MAGISTRATE

OHIO DEPARTMENT OF
REHABILITATION AND CORRECTION

        Defendant



        {¶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} As an initial matter, at the outset of proceedings, the magistrate GRANTED
defendant’s October 15, 2015 motion to quash the subpoena issued to Doctor Kidd.
        {¶3} At all times relevant, plaintiff was an inmate in the custody and control of
defendant at the Richland Correctional Institution (RCI). This case arises out of an
incident in which plaintiff slipped and fell on an accumulation of snow and ice on a
walkway at RCI.
        {¶4} Plaintiff, who is a diabetic, testified that on the morning of March 21, 2014,
he awoke at approximately 5:30 a.m., and prepared to proceed to inmate health
services (IHS) to get his blood checked by an Accu-Chek monitor.             IHS is located in a
different building than plaintiff’s cell block. Plaintiff estimated that it takes him about two
minutes to walk from his cell block to IHS. Plaintiff testified that all inmates are required
to use one particular walkway to travel between the cell block and IHS.                 Plaintiff
believed that the walkway, which was made of concrete, was approximately 12 feet
wide.
        {¶5} Plaintiff reports that inmates are called by cell block to proceed to IHS.
Plaintiff testified that after receiving such a call at about 6:50 a.m., he, along with a
Case No. 2014-00950                         -2-                                 DECISION


group of inmates from his cell block, proceeded toward IHS on the assigned walkway.
According to plaintiff, it had been intermittently snowing the preceding week and it had
snowed either late the night before or early that morning, covering the walkway. Plaintiff
relates that the walkway between the cell block and IHS had been salted in the days
preceding March 21, but it had not been salted that morning. Plaintiff testified that due
to the accumulation of snow over the preceding week, the walkway was more narrow
than normal. Plaintiff testified that he proceeded approximately 20 yards along the
walkway from his cell block to IHS when he stepped on a patch of ice, slipped and fell to
the ground striking his ankle, right hip, back shoulder and head. Plaintiff remained on
the ground until he was transported to IHS.          Plaintiff reports that his ankle was
“crushed,” requiring steel plates, bolts and rods to surgically repair the damage.
       {¶6} Inmate James Day, who is a diabetic, testified that on March 21, 2014, at
6:45 a.m., he was proceeding to IHS. Day reported that plaintiff was walking to IHS with
the aid of a cane and had his arm in a sling. Day, who has been at RCI since 2005,
testified that plaintiff slipped on a “bad spot” on the walkway where “black ice” had
formed. According to Day, the walkway had not been salted that morning. Day testified
that the spot where plaintiff fell has been a “bad spot” the entire time that he has been at
RCI and that he has also previously fallen in the same spot. Day described the spot as
a depression in the ground. According to Day, the area where plaintiff fell is “swampy”
during the wintertime.
       {¶7} Kerry Cramer, the maintenance superintendent at RCI, testified that he has
worked at RCI the entire time it has been open. Cramer testified that he supervises a
staff of 12 employees within his department and that the maintenance staff is
responsible for all the maintenance in the institution.      Such maintenance includes
plumbing, carpentry, welding, snow removal, general grounds keeping, and grass
mowing. Cramer testified that in March 2014, RCI had a policy in place regarding snow
and ice removal. Cramer explained that pursuant to the policy, during the hours of
Case No. 2014-00950                         -3-                                DECISION


7:00 a.m. and 3:00 p.m., the maintenance department is responsible for snow and ice
removal on the walkways. Cramer reported that rock salt is used on asphalt surfaces
and calcium chloride is used on concrete walkways.             Cramer testified that only
defendant’s maintenance staff employees are allowed to spread rock salt or calcium
chloride. According to Cramer, after 3:00 p.m. and before 7:00 a.m., the captain’s office
makes the decision whether to call maintenance staff to come in and perform snow and
ice removal. Cramer explained that such a call typically occurs when there has been
snowfall exceeding one to two inches. Cramer testified that no one was directed to
perform any snow or ice removal prior to 7:00 a.m. on March 21, 2014.
      {¶8} In order for plaintiff to prevail upon his claim of negligence, he must prove by
a preponderance of the evidence that defendant owed him a duty, that defendant’s acts
or omissions resulted in a breach of that duty, and that the breach proximately caused
him injury. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, ¶ 8,
citing Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77 (1984).
       {¶9} In general, a possessor of land has no duty to protect an invitee from natural
accumulations of ice and snow on his property. Brinkman v. Ross, 68 Ohio St.3d 82, 83
(1993). Implicit in this rule is the rationale that such accumulations are so open and
obvious that invitees can be expected to protect themselves from the danger they
present. Dean v. Dept. of Rehab. & Corr., 10th Dist. Franklin No. 97API12-1614, 1998
Ohio App. LEXIS 4451 (Sept. 24, 1998).            Essentially, “an invitee who chooses to
traverse a natural accumulation of ice or snow is generally presumed to have assumed
the risk of his or her action to the degree that no duty exists on the premises owner.” Id.
However, inmates incarcerated in a state penal institution are not afforded the status of
a traditional “invitee” and are not always free, as an invitee would be, to refrain from
traversing the accumulation of ice and snow and so they cannot be said to assume the
risk of doing so. Id; see also May v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin
No. 00AP-1327, 2001 Ohio App. LEXIS 2859 (recognizing that an inmate who slipped
Case No. 2014-00950                         -4-                                DECISION


and fell on a natural accumulation of ice or snow had no opportunity to refrain from
using the assigned path); Gerald Fields v. Ohio Dept. of Rehab. & Corr, Ct. of Cl. No.
2010-12281 (June 7, 2012). Rather, in the context of the custodial relationship between
the state and its inmates, the state has a duty to exercise reasonable care to prevent
prisoners in its custody from being injured by dangerous conditions about which the
state knows or should know. Moore v. Ohio Dept. of Rehab. & Corr., 89 Ohio App.3d
107, 112 (10th Dist.1993); McCoy v. Engle, 42 Ohio App.3d 204, 207-208 (10th
Dist.1987); Dean, supra.
      {¶10} With regard to notice, “[n]otice may be actual or constructive, the distinction
being the manner in which the notice is obtained rather than the amount of information
obtained.” Jenkins v. Ohio Dept. of Rehab & Corr., 10th Dist. Franklin No. 12AP-787,
2013-Ohio-5106, ¶ 12; Watson v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No.
11AP-606, 2012-Ohio-1017, ¶ 9. “Whenever the trier of fact is entitled to find from
competent evidence that information was personally communicated to or received by
the party, the notice is actual. Constructive notice is that notice which the law regards
as sufficient to give notice and is regarded as a substitute for actual notice.” Hughes v.
Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 09AP-1052, 2010-Ohio-4736, ¶
14. “To support an inference of constructive notice, a plaintiff may submit evidence that
the condition existed for such a length of time that the owner or its agent’s failure to
warn against it or remove it resulted from their failure to exercise ordinary care.”
Jenkins at ¶ 12.
      {¶11} The evidence adduced at trial establishes that plaintiff suffers from
diabetes. Additionally, on March 21, 2014, plaintiff ambulated with the aid of a cane and
had his arm in a sling. The evidence establishes that it was necessary for plaintiff to
visit IHS at approximately 6:45 a.m., to get his blood checked with an Accu-Chek
monitor. The magistrate finds that when plaintiff exited his cell block to visit IHS, there
was a small accumulation of snow on the walkway that he was required to use.
Case No. 2014-00950                         -5-                                 DECISION


Additionally, the magistrate finds that approximately 20 yards away from the cell block,
plaintiff encountered a depression in the walkway that was filled or covered with ice.
The walkway had not been treated for snow and ice removal that morning. In light of
both the accumulated snowfall and the ice in the depression in the walkway, the
magistrate finds that traversing the ice-covered depression in the walkway posed an
unreasonable risk of harm to plaintiff.
       {¶12} Plaintiff did not present any evidence that defendant had actual notice of
the dangerous condition of the walkway. However, the magistrate finds that defendant
had constructive notice of the dangerous condition of the walkway.            Indeed, it is
uncontroverted that there is a depression in the walkway where plaintiff fell.
Furthermore, such a depression has existed in the walkway since at least 2005. The
magistrate finds that inmate Day credibly testified that such a “bad spot” has existed the
entire time he has been at RCI. Moreover, inmate Day described the area as “swampy”
during the wintertime.
       {¶13} The magistrate finds that inasmuch as defendant should have been aware
of the risk of harm to plaintiff but failed to take reasonable care to prevent him from
becoming injured by the dangerous condition of the walkway, defendant breached the
duty of reasonable care it owed to plaintiff. The magistrate further finds that this breach
of duty proximately caused plaintiff to slip and fall on the ice-filled depression in the
walkway and suffer bodily injury.
       {¶14} For the foregoing reasons, the magistrate finds that plaintiff has proven his
claim of negligence by a preponderance of the evidence.                 Accordingly, it is
recommended that judgment be rendered in favor of plaintiff.
       {¶15} 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
Case No. 2014-00950                          -6-                                DECISION


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).




                                                   GARY PETERSON
                                                   Magistrate

cc:
Robert K. Howard, #A235-537                   Timothy M. Miller
Richland Correctional Institution             Assistant Attorney General
P.O. Box 8107                                 150 East Gay Street, 18th Floor
Mansfield, Ohio 44901                         Columbus, Ohio 43215-3130

Filed January 14, 2016
Sent to S.C. Reporter 2/25/16
