[Cite as Wolfe v. Ohio Dept. of Rehab. & Corr., 2009-Ohio-7052.]

                                                        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




RONALD WOLFE

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant
       Case No. 2007-08902

Judge J. Craig Wright
Magistrate Steven A. Larson

MAGISTRATE DECISION




        {¶ 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} At all times relevant, plaintiff was an inmate in the custody and control of
defendant at the Belmont Correctional Institution (BeCI) pursuant to R.C. 5120.16. On
the morning of August 14, 2006, plaintiff fell and sustained injuries while working in the
BeCI kitchen. Plaintiff alleges that he suffers from various physical conditions, including
a small fracture of his left ankle, a metal plate in his right hip, chronic degenerative disk
disease, depression, and type-2 diabetes, that should have prevented him from working
in the kitchen, and asserts that defendant ignored those conditions in assigning him to
work there. Plaintiff further alleges that he was entitled to accommodations under the
Americans with Disabilities Act (ADA) that would have excused him from working in the
kitchen.
        {¶ 3} Title II of the ADA is contained in 42 U.S.C. 12132 and states that “no
qualified individual with a disability shall, by reason of such disability, be excluded from
Case No. 2007-08902                          -2-                 MAGISTRATE DECISION

participation in or be denied the benefits of services, programs, or activities of a public
entity, or be subjected to discrimination by any such entity.” The Supreme Court of the
United States has held that “state prisons fall squarely within Title II’s statutory definition
of ‘public entity,’ which includes ‘any * * * instrumentality of a State * * * or local
government.’”     Pennsylvania Dept. of Corrections v. Yeskey (1998), 524 U.S. 206,
syllabus.
         {¶ 4} Plaintiff does not allege that defendant denied him the benefits of any
services, programs, or activities nor does he assert that defendant discriminated against
him because of his various physical limitations.       “[I]t is well-established that ordinary
prison labor performed by an inmate in a state correctional institution facility is not
predicated upon an employer-employee relationship and thus does not fall within the
scope of worker-protection statute.” McElfresh v. Ohio Dept. of Rehab. & Corr., Franklin
App. No. 04AP-177, 2004-Ohio-5545, ¶14, citing Moore v. Ohio Dept. of Rehab. & Corr.
(1993), 89 Ohio App.3d 107, 111. Accordingly, the court finds that plaintiff’s assertion
that defendant violated the ADA by assigning him to work in the BeCI kitchen is without
merit.
         {¶ 5} In order to prevail upon his claim of negligence, plaintiff must prove by a
preponderance of the evidence that defendant owed him a duty, that it breached its
duty, and that the breach proximately caused his injuries.          Armstrong v. Best Buy
Company, Inc., 99 Ohio St.3d 79, 81, 2003-Ohio-2573, citing 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, 485. 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. Such a duty includes the responsibility to exercise reasonable care to
protect inmates against those unreasonable risks of physical harm associated with
Case No. 2007-08902                          -3-                 MAGISTRATE DECISION

institutional work assignments. Boyle v. Ohio Dept. of Rehab. & Corr. (1990), 70 Ohio
App.3d 590, 592.
         {¶ 6} Plaintiff testified that he suffers from severe arthritis in his left leg that
causes it to occasionally “give out.” Plaintiff further testified that he has diabetes for
which he takes several medications that sometimes make him lightheaded and
confused. Plaintiff stated that he also suffered an ankle injury in June 2006. As a result
of his various maladies, on July 20, 2006, plaintiff was issued a pass to use a cane
through August 20, 2006. Additionally, on July 31, 2006, plaintiff was issued a “light
duty” medical restriction that was effective through August 14, 2006. (Plaintiff’s Exhibits
3, 4.)
         {¶ 7} Plaintiff testified that on the day of the incident he was cleaning tables in
the BeCI cafeteria and was walking back toward the front of the kitchen when his cane
slipped on the freshly mopped floor. According to plaintiff, as he felt himself slip, he
grabbed a wheeled office-style chair in an attempt to steady himself, but the chair “took
off” causing him to fall to the floor and injure his right side and back. Plaintiff reported to
the BeCI infirmary where he received ice packs, Tylenol, theragesic cream, and a 24-
hour “lay in” during which he would be permitted to remain in his cell and be excused
from his work duties. (Plaintiff’s Exhibit 13.) The next day, August 15, 2006, plaintiff
was examined by a physician and received a six-month lower-bunk restriction, but was
informed that he could continue his work duties. (Defendant’s Exhibit J.)
         {¶ 8} Elmer Borsos was a correctional food-service coordinator working in the
BeCI kitchen at the time of the incident. Borsos testified that he did not witness plaintiff
fall, but that plaintiff reported the fall to him at approximately 5:40 a.m. on the day of the
incident. Borsos testified that plaintiff told him that he was sitting in a chair, reached for
his cane, and fell out of the chair. As a result, Borsos filed an inmate accident report
detailing the accident as plaintiff described it to him.           (Defendant’s Exhibit O.)
According to Borsos, he called the BeCI infirmary, informed them that plaintiff fell out of
Case No. 2007-08902                         -4-                 MAGISTRATE DECISION

a chair, and sent plaintiff to the infirmary. Borsos testified that plaintiff did not require
assistance to get there.
       {¶ 9} Susan Nesbitt is the current Healthcare Administrator at BeCI. Nesbitt
testified that plaintiff’s medical records establish that plaintiff underwent a full medical
examination at the Lorain Correctional Institution upon his initial incarceration in May
2006. (Plaintiff’s Exhibit 14.) According to Nesbitt, the records show that plaintiff did
not request any special accommodation for medical reasons at that time and the doctor
did not note that any was needed. Plaintiff was classified as having “Class 1" medical
needs, the lowest level, meaning he needed only “routine” medical care. However,
Nesbitt further testified that a BeCI physician reviewed plaintiff’s medical file, conducted
a physical examination, issued the pass for a cane and the “light-duty” restriction, and
noted that plaintiff had aches and pains in his lower body and that x-rays showed he
suffered from osteoarthritis.
       {¶ 10} To the extent that plaintiff asserts that the physician who examined him
was negligent in not issuing him a more limiting and permanent medical restriction,
plaintiff must produce evidence to establish both the relevant standard of care and
proximate cause. See Bruni v. Tatsumi (1976), 46 Ohio St.2d 127. The appropriate
standard of care must be proven by expert testimony which must construe what a
medical professional of ordinary skill, care, and diligence in the same medical specialty
would do in similar circumstances. Id. In this case, plaintiff provided no expert medical
testimony to support his allegation.
       {¶ 11} Based upon the evidence and testimony presented at trial, the court finds
that defendant did not breach a duty of care owed to plaintiff. Moreover, the court finds
that plaintiff’s recounting of events on the day of the incident was not credible.
Defendant acted in a reasonable manner when it assigned plaintiff to work a simple job
in the BeCI kitchen and plaintiff failed to present any credible evidence to the contrary.
Accordingly, judgment is recommended in favor of defendant.
Case No. 2007-08902                        -5-                MAGISTRATE DECISION

       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 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).



                                          _____________________________________
                                          STEVEN A. LARSON
                                          Magistrate
Case No. 2007-08902                  -6-            MAGISTRATE DECISION

cc:


Douglas R. Folkert                    Richard F. Swope
Assistant Attorney General            6504 East Main Street
150 East Gay Street, 18th Floor       Reynoldsburg, Ohio 43068-2268
Columbus, Ohio 43215-3130

Magistrate Steven A. Larson

MR/cmd
Filed December 10, 2009
To S.C. reporter December 29, 2009
