[Cite as Phelps v. Ohio Dept. of Rehab. & Corr., 2016-Ohio-5155.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

Olisseo J. Phelps,                                     :

                Plaintiff-Appellant,                   :

v.                                                     :                  No. 16AP-70
                                                                    (Ct. of Cl. No. 2013-00587)
Ohio Department of Rehabilitation and                  :
Correction,                                                         (REGULAR CALENDAR)
                                                       :
                Defendant-Appellee.
                                                       :


                                           D E C I S I O N

                                      Rendered on July 28, 2016


                On brief: Swope and Swope, and Richard F. Swope, for
                appellant. Argued: Richard F. Swope.

                On brief: Michael DeWine, Attorney General, and
                Timothy M. Miller, for appellee. Argued: Timothy M. Miller.

                             APPEAL from the Court of Claims of Ohio

TYACK, J.

        {¶ 1} Plaintiff-appellant, Olisseo J. Phelps, appeals the judgment entry of the
Court of Claims of Ohio which adopted its magistrate's decision and overruled Phelps'
objections to the decision. Phelps was attempting to bring several claims of negligence
against defendant-appellee, Ohio Department of Rehabilitation and Correction ("ODRC").
For the following reasons, we affirm the Court of Claims' decision.
        {¶ 2} Phelps assigned eight errors for our consideration:
                [I.] The trial court and magistrate erred in ruling defendant-
                appellee was not guilty of negligence in failing to assist, or
                take proper precautions to protect, an obviously weakened
                inmate from falling against a radiator which was without a
No. 16AP-70                                                                        2


              protective shield and an exposed stem caused by a missing
              control knob.

              [II.] The trial court and magistrate erred in ruling defendant-
              appellee was not negligent in failing to provide adequate safe
              cover for the radiator and for allowing an exposed shaft of a
              control device caused by a missing knob.

              [III.] The trial court and magistrate erred in finding there was
              no evidence showing the valve stem was unusually sharp.

              [IV.] The trial court and magistrate erred in ruling the cause
              of the accident was not the undue heat of the radiator or the
              condition of the radiator, but because plaintiff-appellant
              fainted.

              [V.] The trial court and magistrate erred in applying the open
              and obvious doctrine to the facts since the ability to observe
              the condition of the radiator was not caused by lack of
              observation, but by plaintiff-appellant's physical condition.

              [VI.] The trial court and magistrate erred in ruling there was
              not actual or constructive notice of the danger created by the
              condition of the radiator.

              [VII.] The decisions of the trial court and magistrate are
              against the manifest weight of the evidence and contrary to
              law; and

              [VIII.] The trial court erred in ruling a recording system, that
              failed to record the entire proceeding, did not deny appellant
              of a fair de novo review, a fair appeal, and due process of law
              guaranteed by the Fifth and Fourteenth Amendments to the
              U.S. Constitution and Article I, Section 16, of the Ohio
              Constitution.

                                Facts and Case History

      {¶ 3} Phelps is an inmate who, at all times, was in the custody and control of
ODRC, and incarcerated at the Chillicothe Correctional Institution ("CCI").       On
January 8, 2013, Phelps alerted corrections officers that he was experiencing stomach
pain and weakness and he was moved to CCI's infirmary. Phelps received intravenous
No. 16AP-70                                                                                 3


therapy and used the bathroom several times that day under his own power. The nurse
practitioner said Phelps would need to return the next day for a urine and blood sample.
       {¶ 4} On January 9, 2013, Phelps was placed in restraints and taken to the
infirmary. He walked there under his own power but had to stop and rest a moment
along the way. Phelps had his blood drawn and around that time he had a spell of
lightheadedness where he leaned against a wall and slid to the ground. Phelps was helped
up and taken to see the triage nurse who admitted him to a segregation patient room. A
few minutes after Phelps entered the segregation patient room, he got up and went to the
attached bathroom to produce a urine sample. It was protocol to have segregation
inmates in the patient room by themselves with leg irons.
       {¶ 5} While in the bathroom, Phelps felt faint and started to fall down. Phelps'
legs got twisted up in the leg irons and he fell in such a way that his right arm swung down
violently onto the valve stem of the radiator, cutting into and burning his skin. Phelps
then exited the bathroom and pressed the emergency call button at which point staff
entered the patient room and rendered assistance.            Soon thereafter, Phelps was
transported to The Ohio State University Medical Center where he was diagnosed and
treated for an ulcer that had caused internal bleeding and low blood pressure. Phelps'
wound on his right arm was treated but left a scar.
       {¶ 6} On October 3, 2013, Phelps filed a lawsuit against ODRC in the Court of
Claims, alleging that the injury to his arm was a result of negligence. A magistrate was
appointed to the case and a trial was held to determine liability only on April 21, 2015.
       {¶ 7} On August 12, 2015, the magistrate's decision found that the evidence did
not weigh in Phelps' favor as to the ordinary negligence claim based on the failure to assist
him or otherwise prevent him from falling. The magistrate also found that the condition
of the radiator was not unreasonably dangerous. Further, the magistrate found Phelps'
other allegations of failing to assist or prevent him from falling in his condition, and
negligence in delaying medical treatment for his injuries, sound in medical malpractice.
Therefore such claims require expert testimony to establish the standard of care and a
breach of that standard. Phelps filed objections to the magistrate's decision.
No. 16AP-70                                                                                 4


       {¶ 8} On December 29, 2015, the Court of Claims overruled Phelps' objections
and adopted the magistrate's decision including the findings of fact and conclusions of
law. On January 27, 2016, Phelps filed a timely notice of appeal.
                                   Standard of Review
       {¶ 9} Pursuant to Civ.R. 53, the trial court reviews a magistrate's decision de
novo. Mayle v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 09AP-541, 2010-Ohio-2774,
¶ 15, citing State Farm Mut. Auto. Ins. Co. v. Fox, 182 Ohio App.3d 17, 2009-Ohio-1965,
¶ 10 (2d Dist.). In ruling on objections to a magistrate's decision, the trial court must
undertake an independent review of the matters objected to in order "to ascertain
[whether] the magistrate has properly determined the factual issues and appropriately
applied the law." Civ.R. 53(D)(4)(d).
       {¶ 10} A trial court's adoption of a magistrate's decision is reviewed under an
abuse of discretion standard of review. Marchel v. Marchel, 160 Ohio App.3d 240, 2005-
Ohio-1499, ¶ 7 (8th Dist.). "The term 'abuse of discretion' connotes more than an error of
law or judgment; it implies that the court's attitude is unreasonable, arbitrary or
unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). Claims of error
by the trial court must be based on the trial court's actions, rather than on the magistrate's
findings. Watson v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 11AP-606, 2012-Ohio-
1017, ¶ 6, citing Mayle at ¶ 15. Thus, we may reverse the trial court's adoption of the
magistrate's decision only if the trial court acted unreasonably, arbitrarily or
unconscionably. Id., citing Fox at ¶ 11.
                                 Assignments of Error
       {¶ 11} Phelps' claim is based on a theory of ordinary negligence. It is well-settled
that in order to establish a cause of action for negligence, the plaintiff must show by a
preponderance of the evidence that "(1) the existence of a duty, (2) a breach of duty, and
(3) an injury proximately resulting therefrom." Armstrong v. Best Buy Co., 99 Ohio St.3d
79, 2003-Ohio-2573, ¶ 8. "The existence of a duty depends on the foreseeability of the
injury, and the test for foreseeability is whether a reasonably prudent person would have
anticipated that an injury was likely to result from the performance or nonperformance of
an act." McGuire v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 96API04-444 (Sept. 30,
1996), citing Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77 (1984).
No. 16AP-70                                                                               5


      {¶ 12} In the context of prison cases, this court has held that prison officials owe a
duty of reasonable care and protection from unreasonable risks to inmates, but they are
not the insurers of inmates' safety. McGuire, citing Williams v. S. Ohio Corr. Facility, 67
Ohio App.3d 517, 526 (10th Dist.1990), citing Clemets v. Heston, 20 Ohio App.3d 132, 136
(6th Dist.1985). Reasonable care is defined as 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).
      {¶ 13} In order to constitute a breach, the plaintiff must show that the actions
giving rise to the injuries were foreseeable by prison officials. McGuire. Further, inmates
are required to use reasonable care to ensure their own safety. Jenkins v. Ohio Dept. of
Rehab. & Corr., 10th Dist. No. 12AP-787, 2013-Ohio-5106, ¶ 8. "Under the 'open and
obvious' doctrine, an owner or occupier of property owes no duty to warn invitees
entering the property of open and obvious dangers on the property. The rationale behind
the doctrine is that the open and obvious nature of the hazard itself serves as a warning,
and that the owner or occupier may reasonably expect that persons entering the premises
will discover those dangers and take appropriate measures to protect themselves."
(Citations omitted.) Anderson v. Ruoff, 100 Ohio App.3d 601, 604 (10th Dist.1995). The
open and obvious doctrine, where warranted, may be applied in actions against ODRC
with the result that ODRC would owe no duty to an injured inmate. Williams v. Ohio
Dept. of Rehab. & Corr., 10th Dist. No. 04AP-1193, 2005-Ohio-2669, ¶ 8.
      {¶ 14} Phelps' assignments of error mirror his objections to the magistrate's
decision. The first assignment of error argues the trial court erred in ruling ODRC was
not guilty of negligence in failing to assist, or take proper precautions to protect, an
obviously weakened Phelps from falling against a radiator which was without a protective
shield and an exposed stem caused by a missing control knob.
      {¶ 15} The Court of Claims found that Phelps had no prior documented history of
internal bleeding or ulcers, the ultimate cause of his weakness and fainting spell. The day
before the accident, Phelps was able to get up and use the bathroom on several occasions
without assistance. Phelps was able to walk under his own power to the infirmary. Phelps
did not voice any concerns and did not request assistance when he was asked to provide a
No. 16AP-70                                                                               6


urine sample in the segregation patient room. Further, the segregation patient room was
equipped with a call button that Phelps could have utilized if he needed assistance.
        {¶ 16} The Court of Claims concluded that, based on these facts, it was not
foreseeable by the prison staff that Phelps would faint in the bathroom, a reasonably
prudent person would not have anticipated that Phelps would injure himself from fainting
in the bathroom. We find that the trial court did not abuse its discretion in coming to this
conclusion.
        {¶ 17} The first assignment of error is overruled.
        {¶ 18} The Court of Claims addressed Phelps' second, third, fourth, fifth, and sixth
objections together. These objections mirror Phelps' assignments of error and we will
address them together. Phelps argues essentially that the radiator was unreasonably
dangerous: ODRC was negligent in failing to provide an adequate safe cover of the
radiator and allowing an exposed shaft of a control device caused by a missing knob; there
was evidence that the valve stem was unusually sharp; the cause of the accident was the
undue heat of the radiator or the condition of the radiator, not that Phelps fainted; the
trial court erred in applying the open and obvious doctrine; and there was no actual or
constructive notice of the danger created by the condition of the radiator.
        {¶ 19} The Court of Claims found that Phelps does not explain how a radiator
located on one side of the bathroom, which was easily avoidable, would endanger Phelps.
The magistrate noted there was no evidence presented that anyone had ever been injured
before by the radiator. The valve stem was made of standard piping materials and was
not shown to be unusually sharp. Phelps did not show that the surface temperature of the
valve stem was unusually high or any greater than the rest of the radiator. Phelps argues
that a handle for opening and closing the valve should have been affixed to the valve stem,
as opposed to a safety shield or guard. Further, the Court of Claims stated the fact that a
radiator emits heat and the capacity of a radiator to burn those who touch it, was open
and obvious to Phelps and all inmates who used the bathroom in the segregation patient
room.    The Court of Claims found that ODRC owed Phelps no duty under these
circumstances. We find that the Court of Claims did not abuse its discretion in coming to
this conclusion.
        {¶ 20} The second, third, and fourth assignments of error are overruled.
No. 16AP-70                                                                                 7


       {¶ 21} The Court of Claims found that the question of whether Phelps had notice
about the radiator's condition was irrelevant because the radiator's condition was not
unreasonably dangerous. We find that it was not an abuse of discretion for the Court of
Claims to determine that the radiator was not unreasonably dangerous. Nor was it an
abuse of discretion to determine that a radiator emits heat and can burn as an open and
obvious danger.
       {¶ 22} The fifth and sixth assignments of error are overruled.
       {¶ 23} The seventh assignment of error argues that the Court of Claims' decision is
against the manifest weight of the evidence.
       {¶ 24} Decisions supported by competent, credible evidence going to all the
essential elements of the case will not be reversed as being against the manifest weight of
the evidence. Melvin v. Ohio State Univ. Med. Ctr., 10th Dist. No. 10AP-975, 2011-Ohio-
3317, ¶ 34; see C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279 (1978). A trial
court's findings of fact are presumed correct, and "the weight to be given the evidence and
the credibility of the witnesses are primarily for the trier of fact to decide." Eagle Land
Title Agency v. Affiliated Mtge. Co., 10th Dist. No. 95APG12-1617 (June 27, 1996), citing
State v. Thomas, 70 Ohio St.2d 79 (1982). This presumption arises because 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." Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80 (1984).
       {¶ 25} As already noted, the evidence in this case indicates that Phelps did not
have a history of fainting and he did not indicate that he required assistance before he fell.
Further, the radiator was not unreasonably dangerous. We find that the decision of the
Court of Claims is supported by some competent, credible evidence going to all the
essential elements of the case.
       {¶ 26} The seventh assignment of error is overruled.
       {¶ 27} The eighth assignment of error argues that the Court of Claims erred in
ruling a recording system that failed to record the entire proceeding did not deny Phelps a
fair de novo review, a fair appeal, and due process of law, guaranteed by the Fifth and
Fourteenth Amendments to the United States Constitution and Article I, Section 16, of the
Ohio Constitution.
No. 16AP-70                                                                                   8


       {¶ 28} Civ.R. 53(D)(3)(b)(iii) states:
              An objection to a factual finding, whether or not specifically
              designated as a finding of fact under Civ.R. 53(D)(3)(a)(ii),
              shall be supported by a transcript of all the evidence
              submitted to the magistrate relevant to that finding or an
              affidavit of that evidence if a transcript is not available.

If an objecting party fails to submit a transcript or affidavit, the trial court must accept the
magistrate's factual findings and limit its review to the magistrate's legal conclusions.
Triplett v. Warren Corr. Inst., 10th Dist. No. 12AP-728, 2013-Ohio-2743, ¶ 13. Other
options are available to an appellant when a verbatim transcript is unavailable; an
appellant may prepare a statement of the evidence or proceedings from the best available
means, including the appellant's recollection. See App.R. 9(C)(1); see also Knapp v.
Edwards Labs., 61 Ohio St.2d 197, 199-200 (1980).
       {¶ 29} Phelps failed to file an affidavit or any statement with the missing evidence
or a recollection of the proceedings. It is upon Phelps to provide the transcript or an
affidavit. The missing portion of the transcript does not deny Phelps a fair de novo review
by the Court of Claims, or a fair appeal to this court, nor violate due process.
       {¶ 30} The eighth assignment of error is overruled.
       {¶ 31} Having overruled Phelps eight assignments of error, we affirm the decision
of the Court of Claims of Ohio.
                                                                          Judgment affirmed.

                       SADLER and LUPER SCHUSTER, JJ., concur.
