[Cite as Davis v. Dept. of Rehab. & Corr., 2019-Ohio-1756.]




RODERICK DAVIS                                         Case No. 2018-00043JD

       Plaintiff                                       Magistrate Anderson M. Renick

       v.                                              DECISION OF THE MAGISTRATE

OHIO DEPARTMENT OF
REHABILITATION AND CORRECTION

       Defendant



        {¶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 the outset of the proceedings, the parties presented a stipulation
regarding the first cause of action in plaintiff’s second amended complaint. Specifically,
counsel for defendant admitted that defendant breached a duty owed to plaintiff as a
result of a September 22, 2017 incident in which plaintiff was injured when two dogs
lunged at him and caused him to fall.
        {¶3} At all times relevant, plaintiff was an inmate in the custody and control of
defendant at the Richland Correctional Institution (RCI). The second cause of action in
plaintiff’s second amended complaint arises out of an incident in which plaintiff slipped
and fell on an accumulation of snow and ice on a walkway at RCI.
        {¶4} Plaintiff testified that he has been diagnosed with diabetes, congestive heart
failure, high blood pressure, and swelling in his legs.              As a result of his medical
condition, he has been issued restrictions for both a bottom bunk and a lower range
assignment.
        {¶5} Plaintiff testified that on the morning of February 5, 2018, he used a rollator
walker to travel from his housing unit to the institution infirmary to receive a prescribed
injection. Plaintiff stated that he was one of the first inmates to leave his housing unit
Case No. 2018-00043JD                        -2-                                  DECISION


that morning when he proceeded to the infirmary at approximately 6:35 a.m. Plaintiff
described the walkway that led to the infirmary as a long incline which was slippery from
frozen precipitation. Plaintiff identified a photograph of the area in question. (Plaintiff’s
Exhibit 2.) According to plaintiff, he encountered a “slick spot” when he walked near the
library, which caused him to lose his balance and fall onto the asphalt pavement,
injuring his back, leg, and head.      Plaintiff related that the frozen precipitation that
caused him to fall was not visible. Plaintiff testified that a corrections officer (CO) called
for assistance and that he was transported to the infirmary by a motorized vehicle
known as a “Red Baron.”
         {¶6} CO Mark Gray testified that he did not see plaintiff fall and he became aware
of the incident when he noticed inmates pointing at plaintiff who was lying on the
ground. CO Gray recalled that there was “a lot of movement” on the prison yard when
he responded to the incident. According to CO Gray, he had no difficulty walking across
the prison yard to assist plaintiff. CO Gray responded and assisted in placing plaintiff in
the transport vehicle. As a result of the incident, CO Gray completed an incident report.
(Defendant’s Exhibit A.) CO Gray testified that he did not observe anything that would
have caused the fall and that he would have noted any other slip and fall incidents he
had been aware of in his report.
         {¶7} Corrections Captain Gary Nusbaum testified that, on the day of the incident,
he was assigned as the third shift captain, working from 9:30 p.m. to 5:30 a.m. Captain
Nusbaum’s responsibilities included making the decision to assign crews to work on
snow and ice removal. Nusbaum testified that he monitored icing conditions both by
making periodic rounds of the institution and by reports from other COs. Snow removal
crews were available between 7:00 a.m. and 3:00 p.m. or when called in after normal
hours.    Nusbaum related that he did not have any independent recollection of the
incident in question.
Case No. 2018-00043JD                       -3-                                 DECISION


       {¶8} Kevin Pierce testified that at the time in question he worked as a
maintenance supervisor and that his responsibilities included snow and ice removal.
Pierce corroborated Captain Nusbaum’s testimony regarding the working hours for
regular snow removal crews and he explained that each crew typically included two staff
members and a varying number of inmate assistants. According to Pierce, defendant’s
snow removal practice included plowing with tractors or all-terrain vehicles, followed by
applying salt that was effective at temperatures above five degrees Fahrenheit. Pierce
identified defendant’s written snow removal policy that was in effect at the time of the
accident. (Defendant’s Exhibit B.) Pierce testified that crews performed a “full-scale
treatment” on February 4, 2018 and that the last maintenance staff left RCI by
approximately 1:30 a.m. on February 5, 2018.
       {¶9} Ahab Cates, an RCI maintenance repair worker, testified that he performed
snow removal throughout the day and evening on February 4, 2018 and that he left
work at 1:00 a.m. the next morning. Cates explained that snow removal continued until
snow stopped falling and that thereafter, salt was applied to all surfaces, including all
institution walkways.
       {¶10} Plaintiff presented the testimony of three inmates who, like himself, had
performed duties as Red Cross workers, which included assisting other inmates who
became injured. Inmate David Porter testified that he was walking “right behind” plaintiff
when he observed plaintiff slip and fall. Porter testified that there was visible ice on the
walkway at the time of the incident. Porter stated that he almost fell on the ice and that
he observed a CO who came to assist plaintiff almost fall. When he arrived at the
scene of the accident, plaintiff was on the ground and he informed Porter that he had
injured his back.
       {¶11} Inmate Paul Showalter testified that he was assigned to the Red Cross
emergency response team when he learned that plaintiff was injured. Showalter stated
that he observed both black and “regular” ice on the walkway and he described the
Case No. 2018-00043JD                        -4-                                 DECISION


lighting near the incident as poor. Inmate William Bewley testified that he was also
assigned to the Red Cross team and that he was in the chow hall when he was called to
assist plaintiff before the Red Baron vehicle arrived. According to Bewley, the area
where plaintiff fell was dark and icy. Bewley stated that the walkway was concealed by
snow and that he did not observe any salt.
       {¶12} 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 defendant's
acts or omissions resulted in a breach of that duty, and that the breach proximately
caused him injury. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573,
¶ 8, citing Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77 (1984).
       {¶13} In general, a possessor of land has no duty to protect an invitee from
natural accumulations of ice and snow on his property. Brinkman v. Ross, 68 Ohio St.3d
82, 83 (1993). Implicit in this rule is the rationale that such accumulations are so open
and obvious that invitees can be expected to protect themselves from the danger they
present. Dean v. Dept. of Rehab. & Corr., 10th Dist. Franklin No. 97API12-1614, 1998
Ohio App. LEXIS 4451 (Sept. 24, 1998). Essentially, “an invitee who chooses to
traverse a natural accumulation of ice or snow is generally presumed to have assumed
the risk of his or her action to the degree that no duty exists on the premises owner.” Id.
However, inmates incarcerated in a state penal institution are not afforded the status of
a traditional “invitee” and are not always free, as an invitee would be, to refrain from
traversing the accumulation of ice and snow and so they cannot be said to assume the
risk of doing so. ld; see also May v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin
No. 00AP-1327, 2001 Ohio App. LEXIS 2859 (recognizing that an inmate who slipped
and fell on a natural accumulation of ice or snow had no opportunity to refrain from
using the assigned path); Gerald Fields v. Ohio Dept. of Rehab. & Corr, Ct. of Cl.
No. 2010-12281 (June 7, 2012). Rather, in the context of the custodial relationship
between the state and its inmates, the state has a duty to exercise reasonable care to
Case No. 2018-00043JD                        -5-                                 DECISION


prevent prisoners in its custody from being injured by dangerous conditions about which
the state knows or should know. Moore v. Ohio Dept. of Rehab. & Corr., 89 Ohio
App.3d 107, 112 (10th Dist.1993); McCoy v. Engle, 42 Ohio App.3d 204, 207-208 (10th
Dist.1987); Dean, supra.
       {¶14} With regard to notice, “[n]otice may be actual or constructive, the distinction
being the manner in which the notice is obtained rather than the amount of information
obtained.” Jenkins v. Ohio Dept. of Rehab & Corr., 10th Dist. Franklin No. 12AP-787,
2013-Ohio-5106, ¶ 12; Watson v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No.
11AP-606, 2012-Ohio-1017, ¶ 9. “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.” Hughes v.
Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 09AP-1052, 2010-Ohio-4736,
¶ 14. “To support an inference of constructive notice, a plaintiff may submit evidence
that the condition existed for such a length of time that the owner or its agent’s failure to
warn against it or remove it resulted from their failure to exercise ordinary care.”
Jenkins at ¶ 12.
       {¶15} Upon review of the evidence, the court finds that on February 5, 2018,
plaintiff was walking to the institution infirmary when he slipped on an accumulation of
ice and fell on the asphalt walkway.       The evidence established that it snowed on
February 4, 2018 and that temperatures remained below freezing during the early
morning hours of February 5, 2018. (Plaintiff’s Exhibit 1.) There is no question that
defendant owed plaintiff a duty of care with respect to the snow and ice that fell on the
walkway.
       {¶16} Regarding the timing of the snowfall, the weather data submitted by plaintiff
shows that no precipitation was reported in the area in question on the morning of
February 5, 2018.     Therefore, the court finds that, at the time of the incident, any
Case No. 2018-00043JD                       -6-                                 DECISION


accumulated ice that existed on the walkway remained from precipitation that fell on
February 4, 2018. The court finds that defendant’s maintenance crews continued to
plow the walkways until the snow ended during the evening of February 4, 2018. Both
Pierce and Cates testified credibly that salt was applied to all walkways after snow was
removed. According to Cates, salt was applied to “everything,” including all walkways
before “the job was complete” when he left work at approximately 1:00 a.m. on
February 5, 2018.
       {¶17} Although Bewley testified that, earlier in the morning, another inmate fell
close to the area where plaintiff fell, his testimony was inconsistent with the testimony of
other witnesses who were not aware of anyone other than plaintiff falling. Bewley also
testified that he was in the chow hall when plaintiff fell, soon after inmates were first
allowed to leave the dormitory that morning. The court finds that Bewley’s testimony
that he saw other inmates fall prior to the incident was not credible. The testimony was
also inconsistent regarding whether there was visible ice or snow on the walkway.
       {¶18} The court finds that the testimony of CO Gray was more credible that that
of plaintiff and the other inmate witnesses regarding the condition of the walkway. As
noted above, CO Gray testified that he did not observe anything on the walkway in
question that would have caused plaintiff to fall and that he had no difficulty walking to
assist plaintiff. Defendant’s employees testified credibly that they plowed all walkways
after the snowfall had ended before treating all walkways with salt.
       {¶19} Based upon the foregoing, the court finds that defendant’s maintenance
staff took reasonable steps to protect plaintiff both by removing snow and ice and by
properly treating the walkways with salt. Accordingly, the court finds that plaintiff failed
to prove his slip and fall claim by a preponderance of the evidence and judgment is
recommended in favor of defendant on that claim. Judgment is recommended in favor
of plaintiff on his negligence claim involving the fall that was caused by a dog.
Case No. 2018-00043JD                        -7-                                DECISION


        {¶20} 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).




                                            ANDERSON RENICK
                                            Magistrate


Filed March 25, 2019
Sent to S.C. Reporter 5/8/19
