[Cite as Petaway v. Dept. of Rehab. & Corr., 2010-Ohio-3476.]

                                                        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




DEVONNE PETAWAY

       Plaintiff

       v.

DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant
       Case No. 2009-06591

Judge Clark B. Weaver Sr.
Magistrate Matthew C. Rambo

ENTRY GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT




        {¶ 1} On May 5, 2010, defendant filed a motion for summary judgment pursuant
to Civ.R. 56(B). Plaintiff did not file a response. The motion is now before the court on
a non-oral hearing pursuant to L.C.C.R. 4(D).
        {¶ 2} Civ.R. 56(C) states, in part, as follows:
        {¶ 3} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being entitled to
have the evidence or stipulation construed most strongly in the party’s favor.” See also
Case No. 2009-06591                         -2-                                     ENTRY

Gilbert v. Summit County, 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc. (1977), 50 Ohio St.2d 317.
       {¶ 4} At all times relevant to this action, plaintiff was an inmate in the custody
and control of defendant at the Warren Correctional Institution (WCI) pursuant to R.C.
5120.16. Plaintiff alleges that on June 28, 2009, he informed corrections officers (COs)
at WCI that the toilet in his cell was leaking and causing water to pool on the floor of the
cell. Plaintiff alleges that he was ordered to return to his cell and that shortly thereafter,
an employee of defendant arrived at his cell and ordered him to exit it. Plaintiff asserts
that as he alighted from his upper bunk he slipped on the pooled water and suffered
severe injury.
       {¶ 5} Plaintiff claims that defendant was negligent in ordering him to return to
the cell with the leaking toilet. Defendant argues that it owed no duty of care to plaintiff
because the danger posed by the pool of water was open and obvious.
       {¶ 6} 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 his injuries. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 81, 2003-Ohio-
2573, citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77.
       {¶ 7} Under Ohio law, the duty owed by an owner or occupier of premises
ordinarily depends on whether the injured person is an invitee, a licensee, or a
trespasser. Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312,
1996-Ohio-137. However, an inmate incarcerated in a state penal institution is not
afforded the status of any of the traditional classifications. In the context of the custodial
relationship 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. Moore v. Ohio Dept. of Rehab
& Corr. (1993), 89 Ohio App.3d 107, 112; McCoy v. Engle (1987), 42 Ohio App.3d 204.
Case No. 2009-06591                           -3-                                       ENTRY

The state is not the insurer of inmate safety, however. See Williams v. Ohio Dept. of
Rehab. & Corr. (1991), 61 Ohio Misc.2d 699, at 702.
          {¶ 8} “Where a danger is open and obvious, a landowner owes no duty of care
to individuals lawfully on the premises.” Armstrong, supra, syllabus. This rule is based
upon the rationale that the very nature of an open and obvious danger serves as a
warning, and that the “‘owner or occupier (of land) may reasonably expect that persons
entering the premises will discover those dangers and take appropriate measures to
protect themselves.’” Id. at 80, quoting Simmers v. Bentley Constr. Co., 64 Ohio St.3d
642, 644, 1992-Ohio-42.
          {¶ 9} In support of its motion, defendant filed the affidavit of N. Romanack, who
states:
          {¶ 10} “1. I am currently employed as a full time employee by [defendant] as a
[CO] at [WCI];
          {¶ 11} “2. I have personal knowledge, and I am competent to testify to the facts
contained in this Affidavit;
          {¶ 12} “3. On June 28, 2009, I worked in Unit 2-D, where [plaintiff] was
incarcerated. At some point during my shift, I was notified of water on the floor in
[plaintiff’s] cell. When I approached [plaintiff’s] cell, I observed him on the top bunk bed.
[Plaintiff] told me he wanted to switch cells due to the water on the ground. I informed
[plaintiff] that I first needed to get the approval from the shift office. I stepped away from
the cell for no more than one minute - to confer with a fellow officer - but was still in
close proximity to the cell. When I looked back into [plaintiff’s] cell, he was lying on the
floor. At no time did I ever order [plaintiff] to get off of the bunk bed or to exit the cell.”
          {¶ 13} Based upon the allegations contained in the complaint and the unrefuted
affidavit testimony presented by defendant, the court finds that the water on the floor of
plaintiff’s cell was an open and obvious hazard and that plaintiff was aware of the
hazard when he got down from his upper bunk. Thus, defendant owed no duty to
plaintiff, and plaintiff’s negligence claim is barred as a matter of law.
Case No. 2009-06591                       -4-                                   ENTRY

         {¶ 14} Based upon the foregoing, defendant’s motion for summary judgment is
GRANTED and 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:


Daniel R. Forsythe                          Devonne Petaway, #587-236
Assistant Attorney General                  P.O. Box 120
150 East Gay Street, 18th Floor             Lebanon, Ohio 45036
Columbus, Ohio 43215-3130

MR/cmd
Filed June 30, 2010\
To S.C. reporter July 22, 2010
