[Cite as Bickerstaff v. Ohio Dept. of Rehab. & Corr., 2014-Ohio-2364.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

Linda J. Bickerstaff, Admx.,                         :

                 Plaintiff-Appellant,                :

v.                                                   :                       No. 13AP-1028
                                                                         (Ct. of Cl. No. 2012-03409)
Ohio Department of Rehabilitation                    :
and Correction,                                                          (REGULAR CALENDAR)
                                                     :
                 Defendant-Appellee.
                                                     :
Vincent Mastaso, III,
                                                     :
                 Plaintiff-Appellant,
                                                     :                       No. 13AP-1029
v.                                                                       (Ct. of Cl. No. 2012-03417)
                                                     :
Ohio Department of Rehabilitation                                        (REGULAR CALENDAR)
and Correction,                                      :

                 Defendant-Appellee.                 :


                                            D E C I S I O N

                                       Rendered on June 3, 2014



                 Blakemore, Meeker & Bowler Co., L.P.A., Robert C. Meeker,
                 and Michael B. Bowler, for appellants Linda J. Bickerstaff,
                 Admx., and Vincent Mastaso, III.

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


                             APPEALS from the Court of Claims of Ohio

LUPER SCHUSTER, J.
        {¶ 1} Plaintiffs-appellants Linda J. Bickerstaff, administratrix of the estate of
Dalin David Anderson, and Vincent Mastaso, III, appeal from a judgment of the Court of
Nos. 13AP-1028 and 13AP-1029                                                            2

Claims of Ohio entering judgment for defendant-appellee, Ohio Department of
Rehabilitation and Correction, on appellants' complaints alleging appellee's negligence
caused the wrongful death of Anderson and the bodily injury of Mastaso. Because the
trial court did not err in determining appellee was not negligent in failing to close the
recreation yard prior to the lightning strike, we affirm.
I. Facts and Procedural History
       {¶ 2} On April 12, 2012, appellants each filed separate complaints against
appellee asserting appellee knew or should have known adverse weather conditions were
approaching the recreation yard of the Belmont Correctional Institution ("BCI") honor
camp on May 31, 2010 but, nonetheless, negligently failed to close the recreation yard
prior to the onset of inclement weather. Mastaso alleged that as a result of appellee's
negligence in failing to deploy corrections officers to the recreation yard and failing to
order the recreation yard closed in a timely manner, "[l]ightning struck [Mastaso] on his
right foot, from which the current traveled upward throughout his body and head and
exited his left eye, causing a fracture in his left eye."     (Mastaso Complaint, ¶ 19.)
Bickerstaff alleged that as a result of appellee's negligence, lightning struck Anderson
causing him to immediately fall to the ground motionless and resulted in Anderson's
"instant demise." (Bickerstaff Complaint, ¶ 21.) Bickerstaff filed the complaint on behalf
of Anderson's estate.      Appellants' complaints each asserted claims for negligence,
negligent supervision and training, and reckless and wanton conduct.
       {¶ 3} Because appellants' claims were factually interrelated, the trial court
consolidated the two cases for the sole purpose of determining the issue of liability. The
trial court assigned the consolidated case to a magistrate on February 14, 2013.
       {¶ 4} On February 25, 2013, appellee filed a motion for summary judgment which
the trial court denied on April 5, 2013. The liability trial before the magistrate occurred
May 6 and 7, 2013. All parties filed post-trial briefs.
       {¶ 5} On August 8, 2013, the magistrate issued a decision determining appellee
did not have a duty to close the recreation yard and that the lightning strike was an act of
God. Thus, the magistrate concluded appellee was not liable for appellants' injuries.
Appellants filed objections to the magistrate's decision on August 22, 2013. The trial
Nos. 13AP-1028 and 13AP-1029                                                            3

court overruled appellants' objections and adopted the magistrate's decision in an
October 31, 2013 judgment entry. Appellants timely appealed.
II. Assignments of Error
        {¶ 6} On appeal, appellants assign the following four assignments of error for our
review:
              [1.] The trial court committed reversible error by disregarding
              the uncontradicted testimony of appellants' expert witness.

              [2.] The trial court's judgment is against the manifest weight
              of the evidence and is not supported by any competent and
              credible evidence and is not supported by sufficient evidence.

              [3.] The trial court erred as a matter of law in allocating an
              affirmative duty by appellants to remove themselves from the
              recreation yard.

              [4.] The trial court erred as a matter of law when it held that
              the post orders were mere guidelines that do not confer rights
              on inmates.

III. First, Second, and Third Assignments of Error – Fast-Moving Storm and
     Act of God
        {¶ 7} Appellants' first, second, and third assignments of error are interrelated,
and we address them together. Appellants assert through their first three assignments of
error that the trial court erred in determining appellee was not negligent because the
storm was fast-moving and was an act of God. More specifically, appellants argue (1) the
judgment is against the manifest weight of the evidence, is not supported by competent,
credible evidence, and is not supported by sufficient evidence; (2) the trial court erred in
disregarding the testimony of appellants' expert witness; and (3) the trial court erred in
allocating an affirmative duty to the inmates to remove themselves from the recreation
yard.
        A. Manifest Weight of the Evidence
        {¶ 8} In their second assignment of error, appellants argue the trial court's
judgment is against the manifest weight of the evidence, is not supported by competent,
credible evidence, and is not supported by sufficient evidence. In particular, appellants
challenge the trial court's conclusions that appellee did not breach its duty of reasonable
care and that the injuries were solely attributable to an act of God.
Nos. 13AP-1028 and 13AP-1029                                                             4

       {¶ 9} Because appellants allege appellee was negligent, appellants were required
to show 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). Where
there is a custodial relationship between the state and its prisoners, the state owes a
common law duty of reasonable care and protection from unreasonable risks. McCoy v.
Engle, 42 Ohio App.3d 204, 207-08 (10th Dist.1987). Reasonable care is the degree of
caution and foresight that an ordinarily prudent person would employ in similar
circumstances. Woods v. Ohio Dept. of Rehab. & Corr., 130 Ohio App.3d 742, 745 (10th
Dist.1998). While the state is not an insurer of the safety of its prisoners, once it becomes
aware of a dangerous condition in the prison, it is required to take reasonable steps
necessary to avoid injury to prisoners. Nott v. Ohio Dept. of Rehab. & Corr., 10th Dist.
No. 09AP-842, 2010-Ohio-1588, ¶ 8, citing Clemets v. Heston, 20 Ohio App.3d 132, 136
(6th Dist.1985). However, prisoners are also required to use reasonable care to ensure
their own safety. Id., citing Macklin v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 01AP-
293, 2002-Ohio-5069, ¶ 21.
       {¶ 10} "Judgments supported by some competent, credible evidence going to all
the essential elements of the case will not be reversed by a reviewing court as being
against the manifest weight of the evidence." C.E. Morris Co. v. Foley Constr. Co., 54
Ohio St.2d 279 (1978), syllabus. In determining whether a civil judgment is against the
manifest weight of the evidence, an appellate court is guided by the presumption that the
findings of the trial court are correct. Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d
77, 80 (1984). "The underlying rationale of giving deference to the findings of the trial
court rests with the knowledge that the trial judge is best able to view the witnesses and
observe their demeanor, gestures and voice inflections, and use these observations in
weighing the credibility of the proffered testimony." Id. Thus, the relative weight to be
given witness testimony and the credibility to be afforded each of the witnesses is a
question for the trier of fact. Rahman v. Ohio Dept. of Transp., 10th Dist. No. 05AP-439,
2006-Ohio-3013, ¶ 36.
       {¶ 11} BCI had in place a "Standard Operating Procedure for Severe Weather
Approaching" at the time of the fatal lightning strike. (Plaintiff's exhibit No. 8.) This
standard operating procedure stated that "when any staff member witnesses a lightning
Nos. 13AP-1028 and 13AP-1029                                                              5

strike they notify the shift commander and initiate the process of clearing the Yard due to
lightning." (Plaintiff's exhibit No. 8.) The shift commander is then to call over the radio
to close the yard, at which time the yard officers will close the yard and order the inmates
indoors and off the recreation yard. Once the yard has been closed due to lightning, the
inmates are to stay in their designated areas. It is appellants' position that the storm
developed slowly and thus appellee breached a duty of care to the inmates when it did not
close the recreation yard prior to the fatal lightning strike.
       {¶ 12} Appellants first challenge the magistrate's conclusion adopted by the trial
court that the storm was fast-moving rather than slow-moving. According to appellants,
the evidence at trial demonstrated appellee had or should have had ample warning that
the storm was approaching and the fatal lightning strike, thus, was not an act of God as
the trial court concluded. "While it has long been the rule of law in Ohio that a defendant
cannot be held liable for an act of God which causes injury to the plaintiff, it has also long
been the rule of law that, '[i]f proper care and diligence [on a defendant's part] would have
avoided the act, it is not excusable as the act of God.' " Bier v. New Philadelphia, 11 Ohio
St.3d 134, 135 (1984), quoting Lodwicks & Kennedy v. Ohio Ins. Co., 5 Ohio 433, 437
(1832), overruled in part on other grounds.
       {¶ 13} The magistrate explained in his decision that the video of the recreation
yard from the day of the lightning strike corroborated the testimony of other witnesses
that the storm appeared suddenly. The video starts at 6:00 p.m. on May 31, 2010 and
continues through 6:23 p.m. that day. The lightning strike occurred at approximately
6:20 p.m. Although the sky is not clearly visible in the video, the footage shows a crowded
recreation yard with inmates playing basketball and engaging in various recreational
activities. At various times shadows appear on the ground indicating the sun was shining
intermittently during that time period. It is not until 6:19 p.m. that rain suddenly appears
and the inmates scatter to seek shelter from the rain. The sun then reappears briefly
before the video abruptly cuts off. When the video resumes moments later, it is raining
heavily.   There is no indication from the video that anyone in the recreation yard
witnessed any lightning or feared for their safety prior to that time.
       {¶ 14} As the magistrate noted, the video corroborates the testimony of some of the
inmates that the storm seemed to appear out of nowhere. One former BCI inmate who
Nos. 13AP-1028 and 13AP-1029                                                              6

participated in recreational activity on May 31, 2010, Richard Griffin, testified he neither
heard any thunder nor saw any lightning prior to the "extremely loud thunder" coupled
with the "instantaneous" flash of lightning that struck Mastaso and Anderson. (Griffin
Depo., 10.) Griffin further testified that "all of a sudden it just got dark," and that the
nearly simultaneous thunder and lightning occurred "before the rain even hit us." (Griffin
Depo., 11-12.) Griffin described the sudden onset of thunder and lightning as "a freak
thing," and prior to that "[i]t was beautiful out." (Griffin Depo., 15.)
       {¶ 15} Another BCI inmate, Matthew Wilhoite, who also sustained an injury from
the same lightning, described the day's weather as "sunny," "nice," and with a "little
breeze." (Wilhoite Depo., 8.) Wilhoite stated the rain came "right after" the loud thunder
and lightning. (Wilhoite Depo., 10.) Prior to the lightning flash that injured the inmates,
Wilhoite said he did not have any concerns or fear for his safety "[b]ecause it was -- it was
pretty sunny out there." (Wilhoite Depo., 11.) In explaining that the storm came "out of
nowhere," Wilhoite explained "one minute it was nice out, then the next minute it just like
rolled in real fast and it was -- it was there." (Wilhoite Depo., 12.) It is from the video of
the recreation yard coupled with the testimony of inmates Griffin and Wilhoite that the
magistrate, and subsequently the trial court, concluded the storm was fast-moving and
the lightning strike was, thus, an act of God. For that reason, the trial court concluded
appellee did not breach a duty of care to the inmates when it did not close the recreation
yard prior to the fatal lightning strike.
       {¶ 16} Appellants assert on appeal that the trial court erred in reaching this
conclusion because there was ample other evidence that would support the conclusion
that the storm was slow-moving. Appellants first point to the testimony of four other
inmates that the storm did not develop suddenly. Inmate William Rotan testified he saw
lightning in the distance for 35 or 40 minutes and that he watched "the storm rolling in
from a distance." (Rotan Depo., 8, 12.) Eric Lieser stated "winds were picking up a little
bit and the sky was slowly darkening." (Lieser Depo., 12.) Corey Woodruff testified there
were dark, threatening clouds overhead approximately 20 minutes before Anderson was
struck by lightning, and that he heard thunder approximately 10 minutes prior to the fatal
lightning strike. (Woodruff Depo., 12-13.) Finally, inmate Joshua Thompson stated that
Nos. 13AP-1028 and 13AP-1029                                                               7

prior to the fatal strike, "off in the distance it looked like" it could storm. (Thompson
Depo., 9.)
       {¶ 17} Though appellants are correct that there is competing evidence in the
record, it is for the trier of fact to weigh the credibility of the evidence and determine how
much weight to accord the evidence in reaching factual conclusions. Nott at ¶ 9, citing
Ciccarelli v. Miller, 7th Dist. No. 03 MA 60, 2004-Ohio-5123, ¶ 35. As the magistrate
noted, although some inmates testified the storm was slow-moving, they all also stated
they were surprised by how suddenly the storm appeared overhead. For instance, while
Woodruff testified there were dark clouds overhead, he also stated he did not have any
fear or concern for his own safety because he "didn't think it was going to storm" since
"[i]t didn't look like it was coming our way." (Woodruff Depo., 43.) Further, Woodruff
stated that while he thought the thunder started off in distance 10 to 20 minutes prior to
the fatal lightning strike, that timeframe was "a guess." (Woodruff Depo., 44.) Similarly,
Thompson also stated "it was a beautiful day, warm, sunny. Then pretty much out of
nowhere it started downpouring." (Thompson Depo., 7-8.) Thompson further stated
"nobody out there thought it was going to storm I don't think" and that the storm caught
everyone off guard. (Thompson Depo., 11.)
       {¶ 18} The magistrate concluded from the surveillance video of the recreation yard
and the testimony of some witnesses that the storm appeared suddenly.              Thus, the
magistrate concluded that, based on the totality of the evidence, appellee's employees
could not have reasonably foreseen or anticipated the sudden storm and lightning strike.
Accordingly, the magistrate concluded "[appellee] had no duty to close the yard and that
the injuries caused by the lightning strike are solely attributable to an [a]ct of God," and
the trial court agreed with that conclusion. (Magistrate's Decision, 8.) Given the record
before us, there was competent, credible evidence to support the trial court's conclusion
that the storm developed suddenly and the lightning strike was an act of God.




       B. Expert Witness
       {¶ 19} Appellants additionally argue the trial court erred in determining the storm
was fast-moving because this conclusion was in direct contradiction to the opinion of
Nos. 13AP-1028 and 13AP-1029                                                             8

appellants' expert witness, Jeffrey Rogers, Ph.D., the climatologist for the state of Ohio.
According to appellants, because Dr. Rogers' testimony was uncontroverted, the trial
court erred when it did not rely on it.
       {¶ 20} In determining the lightning strike was an act of God, the magistrate
concluded that appellee's employees "could not have reasonably anticipated or foreseen
the sudden storm which produced the fatal lightning," and that the accident was due
directly and exclusively to such an act of God. (Magistrate's Decision, 8.) Appellants
argue, however, that their expert witness presented uncontroverted testimony that the
storm was slow-moving, and the magistrate did not sufficiently explain why it was not
relying on Dr. Rogers' testimony.
       {¶ 21} Dr. Rogers testified that he reviewed five radar scan images obtained from
the National Weather Service showing the path of the storm from May 31, 2010 covering
the time period of 6:00 p.m. to 6:30 p.m. The fatal lightning strike occurred at
approximately 6:20 p.m. According to Dr. Rogers, the storm moved in a northeasterly
direction over BCI at approximately 20 miles per hour, which Dr. Rogers characterized as
a "relatively slow[-]moving" storm. (May 7, 2013 Tr. 302.) Dr. Rogers further testified the
storm clouds produced visible lightning and audible thunder that could have been
detected by BCI staff prior to the fatal lightning strike. Specifically, Dr. Rogers testified
there were eight lightning strikes that would have been visible at BCI as the storm
approached from 6:06 p.m. to 6:20 p.m. Further, Dr. Rogers opined, based on the radar
scans, that the sky "should have been very dark for several minutes" before the fatal
lightning strike and that heavy rain "would have been falling probably at least two
minutes prior to the fatal lightning strike." (May 7, 2013 Tr. 320, 321.)
       {¶ 22} Although appellee did not present a weather expert to contradict Dr.
Rogers, the trial court relied on the testimony of other inmates at BCI who witnessed the
storm and lightning strike as well as the surveillance video recording of the recreation
yard from the day of the storm. Thus, while appellants' expert witness offered expert
testimony that was "uncontroverted" by another expert opinion, it was not completely
uncontroverted testimony as other evidence in the record supported a different
conclusion than that posited by Dr. Rogers.
Nos. 13AP-1028 and 13AP-1029                                                            9

       {¶ 23} Even if Dr. Rogers' testimony constituted "uncontroverted" expert
testimony that the storm was slow-moving in that no other expert witness testified on this
issue, "it is well-settled that 'triers of fact are not required to accept evidence simply
because it is uncontroverted, unimpeached, or unchallenged.' " Argie v. Three Little Pigs,
Ltd., 10th Dist. No. 11AP-437, 2012-Ohio-667, ¶ 18, quoting Smith v. Simkanin, 5th Dist.
No. 2011 CA 00045, 2011-Ohio-6123, ¶ 32, citing Ace Steel Baling, Inc. v. Porterfield, 19
Ohio St.2d 137, 138 (1969). This same rule applies to expert testimony. State v. White,
118 Ohio St.3d 12, 2008-Ohio-1623, ¶ 71 (stating "[a] trial court is not required to
automatically accept expert opinions offered from the witness stand"), citing State v.
Dickerson, 45 Ohio St.3d 206, 210 (1989). "Nevertheless, expert opinion 'may not be
arbitrarily ignored, and some reason must be objectively present for ignoring expert
opinion testimony.' " (Emphasis sic). Id., quoting United States v. Hall, 583 F.2d 1288,
1294 (5th Cir.1978). A plaintiff bears the burden of persuasion on all dispositive issues,
and " ' "[a]s long as there are objectively discernable reasons why the [finder of fact] may
have rejected the expert" ' " testimony, the decision may withstand challenge on appeal.
Argie at ¶ 18, quoting Welch v. Ameritech Credit Corp., 10th Dist. No. 04AP-1123, 2006-
Ohio-2528, ¶ 13, quoting Dottavio v. Shepherd, 9th Dist. No. 98CA0042 (Dec. 1, 1999).
       {¶ 24} As outlined above, there were several objectively reasonable, discernable
reasons why the trial court may have rejected the expert's testimony.            While the
magistrate noted Dr. Rogers' conclusion that "the sky over BCI would have darkened
noticeably several minutes prior to the fatal lightning strike and that heavy rain would
have fallen for at least two minutes before the incident," the magistrate expressly stated
that the video of the recreation yard corroborates the testimony of other witnesses "that
the storm appeared suddenly." (Magistrate's Decision, 7-8.) The trial court similarly
noted that several witnesses indicated the storm developed suddenly and further noted
there is no dispute as to the authenticity of the video recording of the recreation yard.
Thus, the trial court did not arbitrarily ignore the expert opinion of appellants'
climatologist when it relied on other evidence in the record to conclude the storm
appeared suddenly and, thus, was an act of God.
       C. Affirmative Duty
Nos. 13AP-1028 and 13AP-1029                                                              10

       {¶ 25} Appellants further argue the trial court's conclusion that appellee did not
breach a duty of care was erroneous because it improperly allocated an affirmative duty to
the inmates to remove themselves from harm. The trial court noted in its judgment entry
that appellants "offered no explanation as to why the inmates remained in the yard and
watched the approaching storm when they were free to return to the dormitory building."
(Oct. 31, 2013 Judgment Entry, 3.) From this statement, appellants argue the trial court
created an affirmative duty for the inmates to act to protect their own safety.
       {¶ 26} This argument misconstrues the trial court's judgment entry. When read in
context, it is clear that the trial court did not create an affirmative duty on the part of the
inmates; rather, the trial court noted the fact that the inmates did not seek shelter from
the supposedly slow-moving storm discredits appellants' argument that the storm was
slow-moving. Instead, the trial court noted the inmates continued presence in the yard
until the moment of the lightning strike supports appellee's position that the storm
developed suddenly and without warning. Accordingly, this argument lacks merit.
       {¶ 27} Based on the foregoing, the trial court's judgment was not against the
manifest weight of the evidence as competent, credible evidence supported the trial
court's conclusion that the storm was fast-moving and the lightning strike was an act of
God. The trial court did not err in disregarding appellants' expert witness, nor did the
trial court improperly allocate an affirmative duty to the inmates. Thus, we overrule
appellants' first, second, and third assignments of error.
IV. Fourth Assignment of Error – Post Orders
       {¶ 28} In their fourth and final assignment of error, appellants argue the trial court
erred as a matter of law in determining appellee's post orders were mere guidelines and
did not confer rights on inmates. More specifically, appellants assert the corrections
officer assigned to the recreation yard at the time of the fatal lightning strike "breached
his duty of care when he entered the education building without authorization, exposing
the inmates to danger that proved to be fatal." (Appellants' brief, 55.)
       {¶ 29} The post orders for BCI were issued by the warden and were intended to
"set forth proper security procedures to assure the safety and security of inmates, staff
and visitors," as well as to "describe proper security procedures for the control and
supervision of inmate activity in various work, school, recreation, program, and other
Nos. 13AP-1028 and 13AP-1029                                                               11

activity areas." (Plaintiff's exhibit No. 6, 1.) The post orders instructed the yard officer on
duty to conduct 30-minute security checks of the education building. Further, the post
orders state that any access to the education building "after hours must be for security
reasons and require the notification of a shift supervisor." (Plaintiff's exhibit No. 6, 4.)
On the evening of May 31, 2010, Officer Michael Remenar was assigned to yard duty.
During his shift, he entered the education building without notifying a shift supervisor
even though the education building was closed for the Memorial Day holiday. Officer
Remenar was still in the education building when the lightning strike occurred.
Appellants assert this violation of the post orders is sufficient to establish appellee,
through its employees, breached a duty of care owed to the inmates at BCI.
       {¶ 30} The trial court construed the post orders as an internal policy, and we agree.
In general, neither a breach of internal regulations by a corrections officer nor a
corrections officer's internal discipline for his or her conduct, without more, constitute
negligence or automatically lead to a finding of negligence. Horton v. Ohio Dept. of
Rehab. & Corr., 10th Dist. No. 05AP-198, 2005-Ohio-4785, ¶ 29. Further, "[a] violation
of an internal policy does not establish the standard of care." Marsh v. Heartland
Behavioral Health Ctr., 10th Dist. No. 09AP-630, 2010-Ohio-1380, ¶ 35, citing Vince v.
Canton, 5th Dist. No. 1997CA00299 (Apr. 13, 1998). While the post orders can be used as
evidence to establish what the standard of care is, they are not, in and of themselves,
conclusive proof of a specific duty, nor is a deviation from the post orders, in and of itself,
a breach of a duty of care.
       {¶ 31} Here, the unique factual circumstances of the development of the storm as
well as the language of the post orders all support the trial court's conclusion that appellee
was not negligent in failing to close the recreation yard. While the post orders purport to
require the officers to supervise the inmates at all times, those same post orders do not
require the yard officer to be present in the yard for every moment of recreation time. For
example, the post orders also state the yard officer will escort the inmate assigned to trash
detail to trash dumpsites during the recreation period. Additionally, the post orders
instruct the yard officer to make various safety checks of other areas of the BCI compound
away from the yard during recreation hours. Even by the post orders' own terms, the yard
officer will not always be outside in the recreation yard with the inmates. Appellee's
Nos. 13AP-1028 and 13AP-1029                                                               12

expert witness on prison security, Timothy Gravette, also testified that Officer Remenar's
presence in the education building was not dispositive on the issue of the standard of care,
nor was it necessary for a relief officer to monitor the yard while the duty officer was away
from the yard. Where the yard officer can be away from the yard during recreation hours
yet still be in total compliance with the post orders, we are not persuaded that the terms of
the post orders created a heightened duty.
       {¶ 32} As we have already stated, appellee owed its inmates the common law duty
of reasonable care and protection from unreasonable risks. Based on the evidence before
us, it is not clear what, if any, difference it would have made if Officer Remenar had been
outside in the minutes leading up to the lightning strike. By the accounts of most
witnesses, the first visible lightning was the fatal bolt that struck Anderson and injured
Mastaso, and the staff at BCI immediately closed the recreation yard after witnessing that
lightning. Given the other evidence at trial supporting the conclusion that the storm
appeared suddenly, appellants cannot establish Officer Remenar breached a duty of care
simply by being inside the education building and the trial court did not err in reaching
this conclusion. Accordingly, we overrule appellants' fourth and final assignment of error.
V. Disposition
       {¶ 33} Based on the foregoing, the trial court did not err in determining appellee
was not negligent in failing to close the recreation yard the day of the fatal lightning strike.
Having overruled appellants' four assignments of error, we affirm the judgment of the
Court of Claims of Ohio.
                                                                          Judgment affirmed.


                            BROWN and O'GRADY, JJ., concur.
