[Cite as Abrams v. Dept. of Rehab. & Corr., 2010-Ohio-1530.]

                                                       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




MARDA J. ABRAMS

       Plaintiff

       v.

DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant
       Case No. 2006-04679

Judge Joseph T. Clark

DECISION




        {¶ 1} Plaintiff brought this action alleging intentional tort.1 The issues of liability
and damages were bifurcated and the case proceeded to trial on the issue of liability.
        {¶ 2} On December 5, 2005, plaintiff was employed as a corrections officer
(CO) at the Southern Ohio Correctional Facility (SOCF) where she was assigned as a
relief officer in “J-Corridor,” a long hallway which has four doors, each opening to a
range where inmates are housed in cells. The J-Corridor and its adjoining ranges
comprise the “J-Block,” a high-security segregation unit where inmate traffic is
restricted. Access to J-Block is controlled by two COs who are stationed in Control
Center 3 (CC3) where they operate both the interior gates to J-Corridor and the four
adjoined ranges and the exterior gates to other adjacent corridors.
        {¶ 3} On the day of the incident, COs Linda Foster and Terry Nicely were
assigned to CC3, with Foster in charge of the exterior gates, and Nicely in charge of the
interior gates. A “metal detector officer” was also assigned to CC3 to screen all inmates
who traveled through the area. Inmate Gary Hicks, a “4A” general population inmate
who worked as a porter, was cleared through CC3 into J-Corridor to deliver trays of food
to the inmates who were housed in J-Block.2 Hicks was escorted to the J2-South range
and strip searched before he was released to proceed without handcuffs to the food
service area. Inmate porters were allowed to move freely throughout J-Corridor to carry
food trays to and from the ranges.
       {¶ 4} While Hicks was working in the food service area, plaintiff noticed that he
was acting in a suspicious manner. Plaintiff did not know Hicks. When plaintiff advised
CO John Little that Hicks was acting suspiciously, Little offered three times to conduct a
pat-down search of Hicks, but plaintiff declined his offers. As the J-Corridor CO, plaintiff
was required to pat down each porter who worked in J-Corridor before the inmate was
allowed to leave J-Block to return to his living area. Plaintiff put on latex gloves before
beginning to pat down Hicks.
       {¶ 5} According to Hicks’ deposition testimony, he turned toward plaintiff and
knocked her to the floor with a single punch. Hicks then took plaintiff’s PR24 tactical
baton and struck her several times. According to both the surveillance video which
shows Hicks shortly after the attack and a log that shows the time a “man-down” alarm
was activated, the assault ended less than 12 seconds after it began; however, the
video did not capture the assault. After she had been on the floor for 15 seconds, the
“tilt” feature on the man-down alarm that plaintiff was carrying automatically actuated to
send a distress signal. Within seconds after the assault was over, nurse Jenkins, a
psychiatric nurse who was working on a range in J-Block, looked out into J-Corridor and
saw that plaintiff was on the floor and that Hicks was holding a PR24. Jenkins called for
assistance by manually activating his man-down alarm.              Jenkins’ man-down alarm
alerted Control Center One to dispatch the “contingency team” to the scene.
       {¶ 6} Nicely testified that he looked up from his post in CC3 and observed Hicks
standing over plaintiff and striking her with the PR24. Nicely used the intercom system




       1
            On December 8, 2006, the court issued an entry granting defendant’s motion to dismiss
plaintiff’s negligence claim.
to call COs on the range for assistance and he opened the interior doors in J-Block to
allow responding COs to enter J-Corridor. Foster also observed Hicks strike plaintiff
either one or two times. According to Foster, she opened the exterior gates and, at
about the same time that she heard the man-down alarm sound, she “hollered” on the
intercom to COs in the halls outside of CC3.
         {¶ 7} According to Darrold Clark, the shift captain at the time of the incident, 23
staff members responded to the incident. The officers who responded discovered that
Hicks had left J-Corridor and entered an adjacent range, J-2 North. Clark testified that
13 COs were required to use force to subdue Hicks, who was six feet, five inches tall,
and weighed approximately 350 pounds. Plaintiff was transported to a local hospital for
treatment.


STATUTORY STANDARD
         R.C.   2745.01, addresses an employer’s liability for an intentional tort and
provides, in pertinent part, as follows:
         “(A)   In an action brought against an employer by an employee, or by the
dependent survivors of a deceased employee, for damages resulting from an intentional
tort committed by the employer during the course of employment, the employer shall not
be liable unless the plaintiff proves that the employer committed the tortious act with the
intent to injure another or with the belief that the injury was substantially certain to
occur.
         “(B) As used in this section, ‘substantially certain’ means that an employer acts
with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or
death.
         “(C)   Deliberate removal by an employer of an equipment safety guard or
deliberate misrepresentation of a toxic or hazardous substance creates a rebuttable
presumption that the removal or misrepresentation was committed with intent to injure
another if an injury or an occupational disease or condition occurs as a direct result.”



         2
         Unlike inmates in general population who eat in the institution dining room, inmates who are
housed in J-Block receive their meals from inmate porters who distribute trays that have been prepared in
the food service area.
          Plaintiff contends that R.C. 2745.01 is unconstitutional and that the common law
of intentional tort should be applied in making a determination as to liability in this case.3
Plaintiff further asserts that if R.C. 2745.01 is determined to be constitutional, then
section (C) would apply in this case to create a rebuttable presumption of intent to
injure.
          “In the absence of controlling precedent, [Ohio courts] should accord R.C.
2745.01 the presumption of constitutionality to which it is entitled.” Smith v. Inland
Paperboard & Packaging, Inc., Portage App. No. 2008-P-0072, 2009-Ohio-3148, ¶33,
citing State v. Warren, 118 Ohio St.3d 200, 2008-Ohio-2011, at ¶21 (finding that a
statute “enjoy[s] a strong presumption of constitutionality” and “will be upheld unless the
challenger can meet the burden of establishing beyond a reasonable doubt that the
statute is unconstitutional”). (Citations omitted.)
          With regard to R.C. 2745.01(C), plaintiff asserts that defendant had “deliberately
removed” 14 “safety guards” that SOCF had used prior to the assault on plaintiff to
protect prison employees. According to plaintiff, such safety guards included certain
CO post positions, inmate security classifications, institution policies, and security
devices.      Plaintiff asserts that the response to the assault was slow because COs,
including members of the “contingency team,” were away from their assigned posts and
that she would not have sustained such serious injuries had those COs properly
performed their duties. Specifically, plaintiff argues that the “metal detector” CO was
required to remain in CC3 at all times and that escort officers were intentionally absent
from their posts. Plaintiff also asserts that the COs who were assigned to CC3 further
delayed the response to the incident inasmuch as they did not know the whereabouts of
either the metal detector or contingency team members at the time of the incident.
          Contrary to plaintiff’s assertion, the testimony showed that the metal detector CO
was responsible for monitoring the metal detector and the entryway to CC3, but that he
was not responsible for guarding the J-Corridor and, in fact, the area where the attack
occurred was not visible from that post. Furthermore, the contingency team members
were responsible for responding to a man-down alarm, but they neither intended to nor
were able to act as an “equipment guard” to prevent an assault.

          3
          The constitutionality of the statute is currently under review by the Supreme Court of Ohio. See
        Plaintiff has not presented any legal authority to support her argument that the
General Assembly intended the term “equipment safety guard,” as used in R.C.
2745.01(C), to include such items as department policies, employee positions, or the
use of monitoring devices. Rather, Ohio courts have consistently found that the term
“equipment safety guard” refers to physical devices that were designed to protect
operators from the risk of harm inherent in the use of machinery and industrial
equipment. See Smith, supra; Warren v. Libbey Glass, Inc., Lucas App. No. L-09-1040,
2009-Ohio-6686; Shanklin v. McDonald’s USA, LLC, Licking App. No. CA 00074, 2009-
Ohio-251. Accordingly, the court finds that plaintiff’s reliance on R.C. 2745.01(C) is
misplaced.
        Even if the court were to accept plaintiff’s argument with regard to any of the
items she has identified as “equipment safety guards,” the court finds that the evidence
presented rebuts any presumption that the removal of such items was committed with
the intent to injure plaintiff. For instance, plaintiff was especially critical of defendant’s
decision to reduce staffing in J-Corridor to one CO; however, the evidence showed that
CO post assignments were made according to a “pick-a-post” agreement between
defendant’s management and the COs’ labor union, and that the agreement was the
result of budgetary considerations. The court finds that defendant’s decisions regarding
the deployment of staff and security devices resulted from safety concerns and financial
constraints, rather than any disregard by defendant for the safety of its staff. Thus,
defendant has successfully rebutted any presumption that may have arisen pursuant to
R.C. 2745.01(C) that defendant’s actions or inactions were the result of an intent to
injure plaintiff.
        Plaintiff next contends that defendant was on notice of Hicks’ “violent tendencies”
inasmuch as Hicks had assaulted an inmate at another institution and that defendant
deliberately removed certain safeguards which could have either prevented or reduced
the severity of Hicks’ assault on plaintiff.        The Tenth District Court of Appeals has
applied the definition of “substantially certain” set forth in R.C. 2745.01(B) and held that
an employer will only be liable for a claim of employer intentional tort if the employee
proves that the employer had “knowledge of the existence of a dangerous condition”


Kaminski v. Metal & Wire Prods. Co., 119 Ohio St.3d 1407, 2008-Ohio-3880.
and that the employer acted with substantial certainty which is defined as “deliberate
intent” to cause the employee to suffer an injury. Weimerskirch v. Coakley, Franklin
App. No 07AP-952, 2008-Ohio-1681, ¶8, citing Gibson v. Drainage Products, Inc., 95
Ohio St.3d 171, 2002-Ohio-2008 (finding that an employer was not liable for a claim of
intentional tort which was brought by an employee who was viciously assaulted by
another employee). It is the ‘substantially certain’ requirement that is most often at
issue.” Id.
       With regard to defendant’s knowledge of the existence of a dangerous condition,
it is undisputed that Hicks had never threatened or assaulted a CO during his term of
incarceration.   Furthermore, the testimony established that defendant’s COs had
regarded Hicks as a responsible worker and a well-behaved inmate who was respectful
to defendant’s staff.
       As to defendant’s knowledge that plaintiff was substantially certain to be harmed
if she was subjected to direct contact with inmate Hicks, Captain Clark testified that it
was not common for an inmate to attempt to assault a CO during a pat down search;
however, COs were frequently reminded to be vigilant whenever they were in the
presence of inmates. The testimony showed that plaintiff was an experienced and
capable CO who was well aware of the risks involved in working at SOCF. Plaintiff
acknowledged that she had worked at SOCF for five years prior to the incident and she
was aware that the institution housed “the worst of the worst” inmates. Although plaintiff
observed Hicks acting suspiciously just prior to the assault, she refused several offers of
assistance to search Hicks.
       In short, the evidence presented does not show that defendant acted with
deliberate intent to injure plaintiff. Accordingly, plaintiff cannot prevail on her claim of
intentional tort pursuant to R.C. 2745.01.


COMMON LAW STANDARD
       In the event that R.C. 2745.01 is declared unconstitutional, the court would be
required to analyze plaintiff’s claims under the common law test for intentional torts.
See Kaminski, supra; Jefferson v. Benjamin Steel Co., Richland App. Nos. 09 CA 62 &
09 CA 75, 2010-Ohio-50, ¶74. In order to prevail under the common law test for an
employer intentional tort, plaintiff must prove: “(1) knowledge by the employer of the
existence of a dangerous process, procedure, instrumentality or condition within its
business operation; (2) knowledge by the employer that if the employee is subjected by
his employment to such dangerous process, procedure, instrumentality or condition,
then harm to the employee will be a substantial certainty; and (3) that the employer,
under such circumstances, and with such knowledge, did act to require the employee to
continue to perform the dangerous task.” Fyffe v. Jeno’s, Inc. (1991), 59 Ohio St.3d
115, paragraph one of the syllabus.
       Cases involving workplace intentional torts must be judged on the totality of the
circumstances surrounding each accident. Gibson, at ¶27. The focus is the employer’s
knowledge of the risk of injury. Shanklin, supra, at ¶30. The employee must show that
the employer possessed “actual knowledge” that injury to the employee was a
substantial certainty. Sanek v. Duracote Corporation (1989), 43 Ohio St.3d 169, 172.
“To establish an intentional tort of an employer, proof beyond that required to prove
negligence and beyond that to prove recklessness must be established. * * * [T]he
mere knowledge and appreciation of a risk--something short of substantial certainty--is
not intent.” Fyffe, paragraph two of the syllabus. Thus, under the first prong of the Fyffe
test, plaintiff must prove that defendant had actual knowledge of the existence of the
specific dangerous condition that caused her injury.          “[D]angerous work must be
distinguished from an otherwise dangerous condition within that work. It is the latter of
which that must be within the knowledge of the employer before liability could attach.”
Naragon v. Dayton Power & Light Co. (Mar. 30, 1998), Shelby App. No. 17-97-21.
“Were it otherwise, any injury associated with inherently dangerous work * * * could
subject an employer to intentional tort liability, whatever the cause.” Id.
       As stated above, Hicks had never before threatened or assaulted a CO and he
was known to be respectful to defendant’s staff. Even if Hicks was considered to be a
dangerous instrumentality, there is no evidence that he was substantially certain to
injure plaintiff.   Plaintiff also failed to prove that defendant had been warned of a
dangerous condition but failed to take corrective action.
       Even assuming that defendant was aware of the existence of a dangerous
condition and that the defendant could have reasonably utilized policies and equipment
which would have allowed its COs to respond sooner and stop the assault, the evidence
does not show that defendant had knowledge that injury to plaintiff was substantially
certain to result. The testimony showed that it was a routine practice for COs to “shake
down” inmates and that it was it was improbable for an inmate, particularly an inmate
porter, to assault a CO during such a search.
      The Supreme Court of Ohio has held that where an employer failed to equip its
facilities with security devices or provide its employees with training in handling violent
situations, “it does not necessarily follow that the employer knew that injury to its
employee was certain, or substantially certain, to result.” Mitchell v. Lawson Milk Co.
(1988), 40 Ohio St.3d 190, 192-193. “Without more, an employer’s knowledge and
appreciation of the risk ‘is insufficient to impute knowledge with substantial certainty
that [the] harm would befall its employees.’” Singleton v. Ohio Concrete Resurfacing,
Inc., Franklin App. No. 06AP-991, 2007-Ohio-2012, ¶34, quoting Richard v. Mr. Hero,
Inc. (Mar. 8, 1989), Summit App. No. 13701.
      For the foregoing reasons, the court finds that plaintiff has failed to provide
sufficient evidence to establish intent for the purpose of proving the existence of an
intentional tort claim. 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




MARDA J. ABRAMS

      Plaintiff

      v.

DEPARTMENT OF REHABILITATION AND CORRECTION

      Defendant
      Case No. 2006-04679
Judge Joseph T. Clark

JUDGMENT ENTRY




        This case was tried to the court on the issue of liability.               The court has
considered the evidence and, for the reasons set forth in the decision filed concurrently
herewith, 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:


Eric A. Walker                                          James B. Blumenstiel
Peter E. DeMarco                                        261 West Johnstown Road
Assistant Attorneys General                             Columbus, Ohio 43230
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130

Thomas P. Maroney
608 Virginia Street East
Charleston, West Virginia 25301
AMR/cmd/Filed March 22, 2010/To S.C. reporter April 5, 2010
