[Cite as Minter v. Ohio Dept. of Rehab. & Corr., 2009-Ohio-7023.]

                                                        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




FRANK A. MINTER, JR.

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant
       Case No. 2008-09384

Judge Joseph T. Clark
Magistrate Steven A. Larson

DECISION




        {¶ 1} This case is sua sponte assigned to Judge Joseph T. Clark to conduct all
proceedings necessary for decision in this matter.
        {¶ 2} On August 25, 2009, defendant filed a motion for summary judgment
pursuant to Civ.R. 56(B). On August 28, 2009, plaintiff filed a cross-motion for summary
judgment pursuant to Civ.R. 56(A). On September 10, 2009, plaintiff filed a response to
defendant’s motion, and on September 14, 2009, defendant filed a response to
plaintiff’s motion. On October 22, 2009, an oral hearing was held on the motions.
        {¶ 3} Civ.R. 56(C) states, in part, as follows:
        {¶ 4} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being entitled to
have the evidence or stipulation construed most strongly in the party’s favor.” See also
Gilbert v. Summit County, 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc. (1977), 50 Ohio St.2d 317.
       {¶ 5} At all times relevant, plaintiff was an inmate in the custody and control of
defendant at the Lorain Correctional Institution (LorCI) pursuant to R.C. 5120.16. It is
undisputed that on September 5, 2006, plaintiff was attempting to climb into the upper
bunk in his cell by placing his foot on the frame of the lower bunk when a weld on the
frame broke and he fell to the ground and was injured. Plaintiff alleges that defendant
knew or should have known that the bunk presented a hazard in light of previous “work
orders” issued for other beds at LorCI. Plaintiff asserts that the doctrine of res ipsa
loquitur applies to this case.
       {¶ 6} Defendant argues that it did not have notice of a problem with the lower
bunk in plaintiff’s cell and that it was not foreseeable that a weld would break while
plaintiff was attempting to climb into the upper bunk.
       {¶ 7} 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 it breached
that duty, and that the breach proximately caused his injuries. Strother v. Hutchinson
(1981), 67 Ohio St.2d 282; 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. 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.
       {¶ 8} While the court is cognizant of a “special relationship” between an inmate
and his custodian, no higher standard of care is derived from the relationship. Clemets
v. Heston (1985), 20 Ohio App.3d 132. The state is not an insurer of the safety of its
prisoners; however, once it becomes aware of a dangerous condition in the prison, it is
required to take the degree of reasonable care necessary to protect the prisoner from
harm. Id. Moreover, plaintiff bears the burden of proof to demonstrate that defendant
had notice, either actual or constructive, of a hazard.            Williams v. Ohio Dept. of
Rehab.& Corr. (1991), 61 Ohio Misc.2d 699, 702-703. The distinction between actual
and constructive notice is in the manner in which notice is obtained rather than in the
amount of information obtained.            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. In re Estate
of Fahle (1950), 90 Ohio App. 195, 197-198.
        {¶ 9} The doctrine of res ipsa loquitur is a rule of evidence that permits plaintiff
to prove negligence circumstantially upon showing that: 1) the instrumentality that
caused the harm was in the exclusive control of defendant; and 2) the event that caused
the harm was not of the type that would normally occur in the absence of negligence.
Wiley v. Gibson (1990), 70 Ohio App.3d 463.
        {¶ 10} In support of his motion, plaintiff provided his own affidavit and a copy of a
“work order” log1 from July 13, 2006, to September 11, 2006, which shows that 14 “work
orders” were placed for “bed repairs” in LorCI; however, none of them were for plaintiff’s
cell. Plaintiff argues that the work orders put defendant on notice that there was a
problem with the bunks at LorCI. At the hearing, defendant argued that there are more
than 1,600 bunks at LorCI and that 14 non-specific work orders for bunks over a roughly
two-month period does not constitute notice that there was a problem with the bunks in
plaintiff’s cell.
        {¶ 11} In support of its motion, defendant provided the affidavit of Ronald
Armbruster, the Inspector of Institutional Services at LorCI. Armbruster states that all of
the bunks at LorCI were installed new in 1998; that plaintiff never filed any complaint
regarding the condition of the bunks in his cell; and that records of quarterly and weekly
inspections of plaintiff’s cell did not reveal any defect.
        {¶ 12} With regard to plaintiff’s argument that the doctrine of res ipsa loquitur
should apply to this case, the court finds that the doctrine is inapplicable because the

        1
         Defendant did not dispute the authenticity of the log.
bunk in question was not in the “exclusive control of defendant” inasmuch as plaintiff
and his cellmate both had access to it and used it on a daily basis.
       {¶ 13} Furthermore, the court finds that defendant did not have actual notice of a
potential hazard presented by the lower bunk in plaintiff’s cell. The court also finds that
the small number of general “bed repairs” that was ordered at LorCI in the months prior
to the incident is not sufficient to give rise to constructive notice that the lower bunk in
plaintiff’s cell would fail. The court finds that the risk presented by such lower bunk was
not “reasonably foreseeable” and thus defendant did not owe plaintiff a duty to protect
him from that risk. Accordingly, judgment shall be rendered in favor of defendant.




                                               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




FRANK A. MINTER, JR.

      Plaintiff

      v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

      Defendant
      Case No. 2008-09384

Judge Joseph T. Clark
Magistrate Steven A. Larson

JUDGMENT ENTRY




       An oral hearing was conducted in this case upon the parties’ motions for
summary judgment.       For the reasons set forth in the decision filed concurrently
herewith, plaintiff’s motion for summary judgment is DENIED and defendant’s motion for
summary judgment is GRANTED. Judgment is rendered in favor of defendant. Court
costs are assessed against plaintiff. The clerk shall serve upon all parties notice of this
judgment and its date of entry upon the journal.




                                         _____________________________________
                                         JOSEPH T. CLARK
                                         Judge
cc:


Kristin S. Boggs                             Terry R. Jennrich
William C. Becker                            1370 Ontario Street, #1220
Assistant Attorneys General                  Cleveland, Ohio 44113
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130

MR/cmd
Filed November 17, 2009
To S.C. reporter December 29, 2009
