[Cite as Strong v. Ohio Dept. of Rehab. & Corr., 2011-Ohio-1845.]

                                                        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




JIMMY STRONG

        Plaintiff

        v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTIONS

        Defendant
        Case No. 2008-03165

Judge Clark B. Weaver Sr.

DECISION




         {¶ 1} Plaintiff brought this action alleging a claim of 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 Chillicothe Correctional Institution (CCI) pursuant to R.C. 5120.16. Plaintiff
testified that on November 1, 2004, he and another inmate, Phillip Elliott, were assigned
to work at the CCI “welding shop.” Elliott had been designated a “lead man” in the shop
where he helped direct other less-experienced inmates.              George Gallion, the shop
supervisor, had ordered Elliott to unload a shipment of dump truck beds and Elliott
directed plaintiff to operate an overhead crane to assist him.
         {¶ 3} After plaintiff had used the crane to place one of the truck beds into a
service bay, he hooked chains from the crane to the truck’s tailgate to remove it from
the bed. Plaintiff then operated the crane to lift the bed approximately one foot above
the floor while Elliott worked to disconnect the hinges and latches that secured the
tailgate to the truck. Plaintiff testified that while the truck was suspended above the
shop floor, the truck bed suddenly dropped as the tailgate swung away from the truck
and struck him in the chest, causing serious injuries.
       {¶ 4} Tony Fultz, the industry manager for CCI’s vehicle modification center,
testified that he arrived at the welding shop soon after the incident and found plaintiff
lying on the floor. Fultz noticed that the chains were attached below “the hinge point” of
the tailgate; a configuration he considered to be unsafe.
       {¶ 5} On the day of the incident, Gallion interviewed witnesses and drafted three
administrative reports.   First, Gallion completed an “Inmate Accident Report” which
included a signed statement by Elliott that attributed the accident to plaintiff’s failure to
follow Elliott’s direction to attach the crane hook onto the bed of the truck. (Defendant’s
Exhibit K.)   In his report, Gallion concluded that the cause of the accident was “a
hazardous arrangement” and “improper starting or stopping of the crane and moving of
the truck bed.” Second, Gallion completed an incident report wherein he stated that
“eyewitnesses” confirmed that the incident occurred while plaintiff was attempting to lift
the truck bed “with the tailgate chain instead of the bed hooks.” (Defendant’s Exhibit N.)
Finally, Gallion issued a conduct report charging plaintiff with violations of shop
procedures and institution rules. (Defendant’s Exhibit M.) According to Gallion, Elliott
had previously advised plaintiff that the method he had used to hook and lift the tailgate
was “an unsafe practice.”      Plaintiff acknowledged that defendant’s Rules Infraction
Board determined that he had failed to follow proper procedures and, as a result, his
assignment to the welding shop was terminated.
       {¶ 6} Plaintiff testified that Elliott directed him to attach the chains to the tailgate
and to lift the tailgate with the crane. Plaintiff stated that once the rear of the truck bed
was suspended, he was unable to observe which components Elliott was working on
and he was unaware that Elliott intended to completely disconnect the tailgate before
plaintiff had an opportunity to lower the truck to the floor. Plaintiff testified that he
complied with Elliott’s order to hook the chain to the tailgate so that he would not be
reassigned or disciplined for failing to follow orders. Elliott testified that he directed
plaintiff to hook the chains onto the bed of the truck, rather than the tailgate, and that he
believed plaintiff had complied with his instructions when he began to release the “air
lock” mechanism on the tailgate.
       {¶ 7} 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 it breached
that duty, and that the breach proximately caused his injuries. Strother v. Hutchinson
(1981), 67 Ohio St.2d 282; 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. 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.
       {¶ 8} While the court is cognizant of a “special relationship” between an inmate
and his custodian, no higher standard of care is derived from the relationship. Clemets
v. Heston (1985), 20 Ohio App.3d 132. The state is not an insurer of the safety of its
prisoners; however, once it becomes aware of a dangerous condition in the prison, it is
required to take the degree of reasonable care necessary to protect the prisoner from
harm. Id. “[W]here a prisoner also performs labor for the state, the duty owed by the
state must be defined in the context of those additional factors which characterize the
particular work performed.” McCoy v. Engle (1987), 42 Ohio App.3d 204, 208. The
state therefore has a duty to protect inmates from unreasonable risks of harm arising
out of the performance of such labor. Id.
       {¶ 9} With regard to training, Gallion testified that, in December 2001, he had
personally instructed plaintiff regarding proper operation of the crane.    (Defendant’s
Exhibit D.) According to plaintiff’s shop record, he had also received on-the-job training
and he had passed a test which qualified him to operate the overhead crane.
(Defendant’s Exhibit E.) Plaintiff acknowledged that he had received both operational
and safety training and he recalled having passed a written test before he was approved
to operate the crane. Plaintiff testified that he had operated the crane on a daily basis
prior to the incident.
       {¶ 10} Regarding the operation of the crane, plaintiff testified that a control box
was used to direct the movement of the equipment. Plaintiff explained that the length of
the cord on the control box required him to remain within approximately four feet of the
truck bed while the crane was operating; however, the evidence showed that once the
crane had been placed in position, the operator did not have to remain at the controls to
maintain that position. Plaintiff testified that he was standing directly in front of the
tailgate when it struck him. Steven Brooks, the Health and Safety Coordinator for CCI,
conducted an investigation and issued an incident report wherein he concluded that “the
tailgate was lifted from the wrong location and [plaintiff] was standing in front of the
tailgate instead of off to one side.” (Defendant’s Exhibit I.) Both Gallion and Fultz
explained that attaching a crane to any surface below “a pivot point,” such as a hinge, is
an unsafe practice and that defendant’s training emphasized the danger of such
practices.
       {¶ 11} Based upon the testimony and evidence adduced at trial, the court is not
persuaded that plaintiff was ordered to attach the crane to the tailgate.            Plaintiff’s
testimony lacked credibility and the testimony of defendant’s witnesses was consistent
and credible. Although plaintiff testified that he complied with Elliott’s order to avoid
being disciplined, Elliott, Gallion, and Fultz each testified that it was common knowledge
in the welding shop that inmates, including those who had been designated lead man,
could not impose discipline.       According to Gallion and Fultz, inmate workers were
encouraged to report any safety-related concern to a shop supervisor.
       {¶ 12} The court finds that Elliott’s testimony regarding the configuration of the
chains was particularly credible in light of the fact that he had been working beneath the
suspended truck bed just before the accident occurred. Specifically, the court does not
find it plausible that Elliott would have ordered plaintiff to attach the crane to the tailgate
inasmuch as unfastening the tailgate while the truck bed was suspended subjected
Elliott to an obvious risk of serious injury.
       {¶ 13} Based upon the foregoing, the court finds that plaintiff failed to prove that
defendant committed a breach of its duty to provide adequate operational and safety
training for the crane. The court further finds that plaintiff’s own negligence in failing to
properly operate the overhead crane in disregard for his own safety was the sole
proximate cause of his injuries. 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




JIMMY STRONG

      Plaintiff

      v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTIONS

      Defendant
      Case No. 2008-03165

Judge Clark B. Weaver Sr.

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.



                                         _____________________________________
                                         CLARK B. WEAVER SR.
                                         Judge

cc:
Paige J. McMahon                  Stephanie D. Pestello-Sharf
Thomas M. Spetnagel               Assistant Attorney General
42 East Fifth Street              150 East Gay Street, 18th Floor
Chillicothe, Ohio 45601           Columbus, Ohio 43215-3130

AMR/cmd
Filed March 16, 2011
To S.C. reporter April 12, 2011
