[Cite as Anderson v. Dept. of Rehab. & Corr., 2019-Ohio-3266.]




LAREY CHARLES ANDERSON                                Case No. 2018-00469JD

       Plaintiff                                      Magistrate Robert Van Schoyck

       v.                                             DECISION OF THE MAGISTRATE

DEPARTMENT OF REHABILITATION
AND CORRECTION

       Defendant

        {¶1} Plaintiff, an inmate in the custody and control of defendant at the Allen-
Oakwood Correctional Institution (AOCI), brings this action for negligence arising from
an accident in which he slipped and fell on a walkway at AOCI on December 17, 2016.
The case proceeded to trial before the undersigned magistrate.
        {¶2} At trial, plaintiff testified that the accident occurred as he was leaving the
chow hall after dinner. Plaintiff stated that just after exiting the chow hall he proceeded
to a blacktop walkway that led to his housing unit. According to plaintiff, the walkway
was icy and caused him to slip and fall, coming down on his shin and then landing on
his right side.      Plaintiff related that he has spent nine years at AOCI and in his
experience inmate work crews typically salt the walkways, but there was no salt at all in
the area where he fell. Plaintiff stated that this was his only visit to the chow hall that
day, as he usually only eats dinner there.
        {¶3} Plaintiff testified that a Lieutenant Sanders was standing nearby and said he
had called the captain earlier asking for salt to be spread on the walkways but that the
captain declined. Plaintiff stated that medical personnel came and helped him up, but
that he did not get any meaningful medical attention for three days, until being sent out
to St. Rita’s Medical Center in Lima for x-rays, which were negative. Plaintiff explained
that the fall resulted in injuries to his back and hip and exacerbated preexisting issues
with his back for which he had previously undergone surgery and had rods installed.
Case No. 2018-00469JD                        -2-                                 DECISION


Plaintiff recalled initially being told to take Tylenol for pain relief, and later getting a
temporary prescription for opioid medication.      Plaintiff testified that he cannot sit or
stand for long periods of time now, and that he attributes this to the accident. Plaintiff
wanted to undergo an MRI but was not permitted to do so, he stated, and in general he
expressed dissatisfaction with the medical attention he has received.
       {¶4} Inmate John Matthews testified that he was leaving the chow hall around the
same time as plaintiff when he observed plaintiff fall on the blacktop walkway. From
Matthews’ recollection, the ground was wet and icy at the time. Matthews stated that he
has first-aid training through the American Red Cross and tries to assist inmates when
they fall. Matthews also recalled Lieutenant Sanders summoning assistance from the
medical department. According to Matthews, Lieutenant Sanders said something about
how the captain wanted to close the yard to treat the walkways.
       {¶5} Captain Donald Bowman testified that he serves as the shift commander for
the first shift at AOCI, working from 5:00 a.m. to 1:00 p.m. Captain Bowman stated that
he typically does not work during second shift, which is when plaintiff’s accident
occurred. Part of his responsibilities, Captain Bowman stated, is deciding when to treat
walkways for snow and ice. Captain Bowman explained that around the time of the
accident AOCI was transitioning from having inmates perform that work to having the
maintenance staff do so.      When deciding whether to have the walkways treated,
Captain Bowman stated, he takes into account the maintenance staff available to him,
but he has the ability to call them in to work if they are off duty. If a lieutenant asks him
to have salt put down, Captain Bowman stated, he does so, as the safety of the inmates
and staff who use the various walkways at AOCI is a priority. As Captain Bowman
explained, he usually sends crews out when there is somewhere between a quarter and
a half inch of snow, and once the snow has been plowed with a tractor the blacktop
walkways are treated with rock salt, while concrete walkways are treated with a calcium
product.
Case No. 2018-00469JD                        -3-                                 DECISION


        {¶6} John Landen, Building Construction Superintendent, testified that at the time
of the accident he served as a vocational teacher at AOCI.           At that time, Landen
recalled, the shift commander would dispatch crews of inmates to use tractors for
plowing snow and spreading salt on blacktop walkways or a calcium product on
concrete. Landen stated that he is not aware of any log in existence today that would
show when inmate work crews were dispatched in December 2016.
        {¶7} Nurse Practitioner Dave Caudill testified that he has seen plaintiff for
appointments several times. Caudill testified that he is aware plaintiff has lumbago,
which is chronic low back pain that can be caused by natural degeneration or other
causes, and that he has prescribed pain relief medication for plaintiff’s lumbago in the
past. Caudill stated that he ordered x-rays for plaintiff in August 2018, which showed no
changes compared to previous x-rays and the preexisting hardware in plaintiff’s back
was shown to be intact, with no loosening or dislocations. Caudill was able to see in
plaintiff’s medical chart where plaintiff had requested an MRI at one point but through
defendant’s collegial review process it was determined that an alternative plan of care
involving stretching and range of motion exercises was more appropriate.
        {¶8} Steve Kuhlman, RN, who is the Quality Assurance Coordinator at AOCI,
testified in general that he has seen plaintiff before and heard him complain of back
issues, but his testimony largely pertained to explaining plaintiff’s medical records.
Kuhlman discussed a December 17, 2016 progress note that was made by the nurse
who responded to Lieutenant Sanders’ request for assistance, giving her observations
of plaintiff, who reported falling on his hip but was not in any distress and denied any
pain.    (Defendant’s Exhibit B.)     The nurse reported keeping plaintiff briefly for
observation but that at 6:35 p.m. plaintiff reportedly felt better and was ready to return to
his housing unit, so he was released. (Id.) Another nurse made a progress note three
days later, on December 20, 2016, at which time plaintiff complained of having groin
pain, and he was then sent to St. Rita’s Medical Center for x-rays.            (Defendant’s
Case No. 2018-00469JD                           -4-                                   DECISION


Exhibits B & C.) Kuhlman authenticated defendant’s copies of the emergency room
report and imaging report from St. Rita’s Medical Center, which were negative for any
fractures. (Defendant’s Exhibits D & E.) Records indicate that when plaintiff returned to
AOCI, he was kept in the infirmary briefly and examined by a physician and then was
prescribed a ten-day supply of the pain reliever Ultram, Kuhlman testified. (Defendant’s
Exhibit F.) Kuhlman also gave testimony explaining a few other subsequent medical
records. (Defendant’s Exhibits G-J.)
       {¶9} Allison   Gibson,   Institutional    Inspector   at   AOCI,   testified    that   her
responsibilities include overseeing the inmate grievance process and that she recalls
looking into a grievance that plaintiff filed about the accident. As part of her review,
Gibson stated, she watched 10 to 15 minutes of video surveillance footage showing the
area in front of the chow hall. Gibson described seeing plaintiff on the video slip and fall
after exiting the building, a couple of inmates helped him up, he stood on his own,
Lieutenant Sanders approached and used his radio, and then a nurse came with a cart
and transported plaintiff to the infirmary. Gibson stated that her review also included
looking at log books from the various inmate housing units, from which she determined
that inmates from two units were sent out to perform snow and ice removal duties for
approximately two hours early on the morning of December 17, 2016. Gibson explained
that the log books kept in the housing units would not necessarily reflect if inmates left
to perform such work after the first inmate count of the day around 6:00 a.m., as
inmates have more liberty to move around the compound during daytime hours. Gibson
stated that she is not aware of the maintenance department keeping a log of when its
employees perform snow and ice removal. Gibson stated that her review of video
surveillance footage was limited to the time around plaintiff’s fall, so she did not go back
and look for footage of anyone treating the walkways earlier. Plaintiff’s housing unit was
one of the last to go to the chow hall for dinner that day, according to her review of log
Case No. 2018-00469JD                          -5-                             DECISION


books. Gibson described how she obtained a weather report for the city of Lima, where
AOCI is located, for the date of the accident. (Defendant’s Exhibit A.)
       {¶10} Warden’s Assistant Joanna Factor explained what her job responsibilities
are and that she has no personal knowledge about the accident.            Foster testified,
however, that one of the employees who reports to her, Ken Myers, is responsible for
ensuring compliance with safety standards and that together they reviewed incident
reports from the day of plaintiff’s accident and found no reports of anyone else having a
similar accident that day.
       {¶11} Major Carl Bendross testified that he is the head of security at AOCI and
that the only involvement he had in this matter was responding to an informal complaint
that plaintiff submitted after the accident.
       {¶12} Deputy Warden of Special Services Cori Smith answered plaintiff’s
questions about what her responsibilities are and how incident reports are routed to
prison administrators, but she apparently had no involvement in this matter.
       {¶13} “In a claim predicated on negligence, plaintiff bears the burden of proving
by a preponderance of the evidence that defendant breached a duty owed to him and
that this breach proximately caused the injury.” Woods v. Ohio Dept. of Rehab. & Corr.,
130 Ohio App.3d 742, 744, 721 N.E.2d 143 (10th Dist.1998). “Typically under Ohio law,
premises liability is dependent upon the injured person’s status as an invitee, licensee,
or a trespasser. * * * However, with respect to custodial relationships between the state
and its inmates, the state has a duty to exercise reasonable care to prevent prisoners in
its custody from being injured by dangerous conditions about which the state knows or
should know.” Cordell v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 08AP-
749, 2009-Ohio-1555, ¶ 6, citing Dean v. Dept. of Rehab. & Corr., 10th Dist. Franklin
No. 97API12-1614, 1998 Ohio App. LEXIS 4451 (Sept. 24, 1998).
       {¶14} “Although the state is not an insurer of the safety of its prisoners, once the
state becomes aware of a dangerous condition in the prison, it is required to take the
Case No. 2018-00469JD                       -6-                                 DECISION


reasonable care necessary to make certain that the prisoner is not injured.” Barnett v.
Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 09AP-1186, 2010-Ohio-4737,
¶ 23. It is plaintiff’s burden to show that defendant had notice of the condition of the
walkway when he fell. See Powers v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin
No. 03AP-504, 2003-Ohio-6566, ¶ 10, citing Presley v. Norwood, 36 Ohio St.2d 29, 31,
303 N.E.2d 81 (1973); Manross v. Ohio Dept. of Rehab. & Corr., 62 Ohio Misc.2d 273,
275, 598 N.E.2d 226 (Ct. of Cl.1991).        “Notice may be actual or constructive, the
distinction being the manner in which the notice is obtained rather than the amount of
information obtained.” Watson v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No.
11AP-606, 2012-Ohio-1017, ¶ 9.           “Actual notice is notice obtained by actual
communication to a party.” Barnett at ¶ 23. “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.
       {¶15} Upon review, the magistrate finds that the evidence presented at trial fails
to establish that defendant breached its duty of reasonable care. Based on the weather
data admitted into evidence, early in the morning on the day of the accident
temperatures were below freezing and there was some light freezing rain and snow.
Prison authorities consequently had a crew of inmates treat the walkways early that
morning.      By 4:53 a.m., temperatures rose above freezing and remained so until
approximately 5:23 p.m., when the temperature fell to 32 degrees. It was no later than
5:40 p.m. when plaintiff fell on the walkway as he left the chow hall, based upon a
nurse’s progress note indicating that Lieutenant Sanders called for assistance at that
time. While there had been some light rain at times during the day, by the time the
temperature fell back to freezing and up through the time of plaintiff’s accident
conditions were noted to be misty, with no measurable precipitation.
Case No. 2018-00469JD                         -7-                                 DECISION


         {¶16} Following the early morning treatment of the walkways to address the
overnight snow and freezing rain, there is no credible evidence of the walkways being
icy or otherwise hazardous prior to plaintiff’s fall. There is no evidence that anyone else
slipped or fell on the walkways that day, even though plaintiff was among the last
inmates to visit the chow hall for dinner and many other inmates before him had
traversed the walkway in question. Although plaintiff testified that Lieutenant Sanders
said he had called the captain earlier requesting that salt be spread on the walkways
and that the captain declined to do so, little weight is given to this testimony. There was
no testimony from Lieutenant Sanders nor the captain on duty at that time, whose
identity was not established, and inmate Matthews had a different recollection of what
Lieutenant Sanders said regarding the captain. Captain Bowman, who normally ends
his shift a few hours before the time of the accident, also testified that his habit is to
grant any such request by a lieutenant. Not a single witness at trial, be they inmates or
staff, testified to having any knowledge of icy or slippery conditions on the walkways
before the accident, nor is there evidence that any inmates reported such conditions to
staff.   The weather data, including the fact that the temperature only reached the
freezing point a short time before the accident, tends to suggest that the slippery
condition that caused plaintiff’s fall developed in close proximity to the time of the
accident. In sum, reasonable care was exercised to treat the walkways relative to the
overnight snow and freezing rain, and the evidence does not establish that defendant
had actual or constructive notice of the slippery condition that apparently developed
many hours later and caused plaintiff to fall.
         {¶17} Finally, while it is noted that plaintiff does not feel he received appropriate
medical attention following the accident, this case was not brought as a medical
negligence claim, nor did plaintiff present the expert testimony necessary to sustain
such claims. See Bruni v. Tatsumi, 46 Ohio St.2d 127, 346 N.E.2d 673 (1976).
Case No. 2018-00469JD                         -8-                                 DECISION


         {¶18} Based on the foregoing, the magistrate finds that plaintiff failed to prove his
claim by a preponderance of the evidence. Accordingly, judgment is recommended in
favor of defendant.
         {¶19} 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).




                                             ROBERT VAN SCHOYCK
                                             Magistrate


Filed July 15, 2019
Sent to S.C. Reporter 8/15/19
