[Cite as Schuetzman v. Dept. of Rehab. & Corr., 2018-Ohio-4821.]




DAVID SCHUETZMAN                                      Case No. 2016-00890JD

       Plaintiff                                      Judge Patrick M. McGrath
                                                      Magistrate Holly True Shaver
       v.
                                                      JUDGMENT ENTRY
OHIO DEPARTMENT OF
REHABILITATION AND CORRECTION

       Defendant



        {¶1} On June 14, 2018, the magistrate issued a decision recommending
judgment for plaintiff with a 40 percent reduction in damages based on plaintiff’s own
contributory negligence. Defendant filed objections to the magistrate’s decision on July
17, 2018. Initially, the court GRANTS plaintiff’s July 19, 2018 motion for leave to file a
response to defendant’s objections.
        {¶2} Plaintiff, formerly an inmate in defendant’s custody, sustained injuries when
he fell from a 12-foot step ladder on March 23, 2016 while working as part of a
construction crew for Ohio Penal Industries.                       At the time of his fall, plaintiff’s
construction crew worked at the Multi-County Juvenile Detention Center (MCJDC) in
Lancaster, Ohio replacing metal railings. The work required the crew to use an arc
welder, the fumes from which were to be ventilated outside via an exhaust fan attached
to a conduit that ran through the existing ventilation system. To run the conduit, the
crew removed existing wall vents. Though the work crew used a scissor lift earlier in
the day to reach and remove the vent(s) in Unit A, plaintiff used a 12-foot step ladder to
remove the vent in Unit B. The ladder did not quite reach the vent, which weighed 50 or
more pounds. Plaintiff fell, after cutting welds securing the vent to the wall, as he
wiggled the vent back and forth to remove it from the wall.
Case No. 2016-00890JD                             -2-                          JUDGMENT ENTRY


        {¶3} Mr. Ron Baker acted as maintenance supervisor for the MCJDC. Mr. Baker
worked with the crew to remove the vents earlier in the day using the scissor lift. After
his work day ended around 3:00 p.m., Mr. Baker stored the scissor lift in the MCJDC’s
sally port and left for the day. He told the OPI crew that he would remove the remaining
vent the following day.
        {¶4} Mr. Tony Richards, defendant’s employee, acted as plaintiff’s supervisor on
the day of the accident. Plaintiff informed Mr. Richards that he could remove the vent.
Mr. Richards granted permission to plaintiff to remove the vent so long as plaintiff could
do so safely but did not order plaintiff to use the step ladder to do so.1 Mr. Richards’ job
as supervisor included worker and work place safety and he had the authority to halt
plaintiff’s attempt to remove the vent.
        {¶5} Plaintiff had 30 years of experience in the construction industry at the time of
his March 23, 2016 fall. He acknowledged that he signed an inmate training form in
2013 that listed “ladder safety” as one type of training received. (Ex. A). Plaintiff never
informed Mr. Richards he did not want to use the ladder to remove the vent.
        {¶6} Neither plaintiff nor Mr. Richards were aware of the weight of the vent. Both
were aware that Mr. Baker, who worked for MCJDC, used the scissor lift when working
with the crew earlier in the day to remove the same type of vent. Both were also aware
that plaintiff would be using a 12-foot step ladder, shorter than the vent’s elevation
which would require plaintiff to work overhead cutting the vent’s welds with a grinder
and using a pry bar to loosen the vent from the wall. Plaintiff’s exhibit 1 depicts both the
location of the vent and the height of the ladder in relation to the vent, showing the vent
several feet above the top step of the ladder.
        1Plaintiff
                 testified that Mr. Richards ordered him to use the step ladder to remove the vent which
Mr. Richards denied. The magistrate found plaintiff’s testimony “was not credible.” Plaintiff filed no
objections to the magistrate’s decision including her finding on this issue. Further, the magistrate’s
determination of credibility is entitled to some weight.          See Sweeney v. Sweeney, 10th Dist.
No. 06AP 251, 2006-Ohio-6988, 2006 Ohio App. Lexis 6952, ¶ 15. Based on the record, the court is
unable to make a different finding regarding plaintiff’s testimony on this issue.
Case No. 2016-00890JD                        -3-                       JUDGMENT ENTRY


       {¶7} Civ.R. 53(D)(3)(b)(i) states, in part: “A party may file written objections to a
magistrate’s decision within fourteen days of the filing of the decision, whether or not the
court has adopted the decision during that fourteen-day period as permitted by
Civ.R. 53(D)(4)(e)(i).” Objections to factual findings must be supported by a transcript
or, where a transcript is unavailable, with an affidavit of evidence. Civ.R. 53(D)(3)(b)(iii).
As to the trial court’s duty when considering objections, Civ.R. 53(D)(4)(d) provides, in
pertinent part:

       Action on objections. If one or more objections to a magistrate's decision
       are timely filed, the court shall rule on those objections. In ruling on
       objections, the court shall undertake an independent review as to the
       objected matters to ascertain that the magistrate has properly determined
       the factual issues and appropriately applied the law. (emphasis added).

Defendant asserts four objections to the magistrate’s decision.
       {¶8} Defendant’s first objection asserts, “[t]he magistrate erred by concluding that
defendant breached its duty of reasonable care to plaintiff because Richards allowed
plaintiff to use a step ladder to remove the vent; defendant did not breach its duty of
care to plaintiff.” Defendant’s second objection asserts the magistrate erred “by not
concluding that plaintiff’s actions were the sole proximate cause of plaintiff’s injuries.”
Together, these two objections assert the magistrate erred in concluding defendant,
through Mr. Richards, acted negligently and, therefore the court addresses them
together.
       {¶9} The record establishes that plaintiff’s supervisor, Mr. Richards, knowingly
allowed plaintiff to use a 12-foot step ladder, a ladder shorter than the elevation of the
vents to be removed, to remove vents of unknown weight. Mr. Richards knew this
removal required plaintiff to use a grinder and pry bar, in an overhead manner, while at
or near the ladder’s top steps.        Further, Mr. Richards allowed plaintiff to use a
stepladder despite the fact that the crew used a much safer scissor lift when removing
other vents earlier in the day. The way plaintiff removed the vent was dangerous. As
Case No. 2016-00890JD                        -4-                       JUDGMENT ENTRY


the magistrate found, “although neither plaintiff nor Richards knew how much the vent
weighed, the act of pulling a vent out of a wall above one’s head, while standing on a
stepladder presented a foreseeable risk of injury.”
       {¶10} In short, Mr. Richards, either knowing the risk and/or being in such a
position that he should have known the risk, allowed plaintiff, an inmate-worker he was
supervising, to perform work in a dangerous manner which foreseeably resulted in
plaintiff’s injuries. Thus, the magistrate properly determined that defendant breached its
duty of care to plaintiff which proximately resulted in injury to plaintiff. Defendant’s first
two objections are OVERRULED.
       {¶11} Defendant’s third objection asserts “the magistrate erred by not concluding
that plaintiff’s negligence exceeded any negligence by defendant.”             Like plaintiff,
Mr. Richards did not know how much the vent weighed and knew that the crew used the
scissor lift earlier to perform the same work. He had the same knowledge as plaintiff
regarding the way in the which the work would be performed.
       {¶12} However, unlike plaintiff, Mr. Richards had the authority to dictate the way
in which the work was performed and/or to order plaintiff to cease using the ladder; he
did neither.    Mr. Richards himself testified that, after plaintiff started working on
removing the vent:

       Various time I looked at him to see what he was doing. I check on the
       guys, make sure they ain’t doing nothing ignorant because it’s happens.
       So, you know, he was on a safe place in the ladder, he wasn’t doing
       anything, you know, that I felt was unsafe, running a grinder or anything
       like that. (sic) (Tr. at 101).

Mr. Richards acknowledged both his duty regarding plaintiff’s safety and his failure to
appreciate the dangerousness of allowing plaintiff to use the ladder and grinder to
remove the vent. As the supervisor, Mr. Richards was in the superior position to act to
prevent plaintiff from using the step ladder to remove the vent but failed to appreciate or
act upon the risk inherent in plaintiff’s work.     Therefore, the court agrees with the
Case No. 2016-00890JD                       -5-                     JUDGMENT ENTRY


magistrate’s determination that, though plaintiff bore some responsibility for the way in
which the work was performed, defendant’s negligence was greater than plaintiff’s
contributory negligence. As such, defendant’s third objection is OVERRULED.
        {¶13} Defendant’s fourth objection asserts “the magistrate erred by ignoring
Richards’ testimony that plaintiff told him that * * * the accident was ‘nobody’s fault.’”
Plaintiff’s opinion regarding the accident does not change the dangerousness of
employing a step ladder to remove the vent nor ameliorate Richards’ failure of judgment
in allowing plaintiff to proceed with work in an unsafe manner. These facts establish
defendant’s negligence regardless of plaintiff’s opinion. Defendant’s fourth objection is
OVERRULED.
        {¶14} Given the above, the court OVERRULES all of defendant’s objections. The
court finds the magistrate properly determined the factual issues and appropriately
applied the law.           Therefore, the court adopts the magistrate’s decision and
recommendation as its own, including findings of fact and conclusions of law contained
therein.    Judgment is rendered in favor of plaintiff with a 40 percent reduction in
damages based on plaintiff’s own contributory negligence.          A case management
conference is scheduled for December 6, 2018, at 10:00 a.m., to discuss further
proceedings.




                                           PATRICK M. MCGRATH
                                           Judge

Filed October 30, 2018
Sent to S.C. Reporter 12/5/18
