[Cite as Hand v. Ohio Dept. of Rehab. & Corr., 2013-Ohio-4341.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


Jeffrey A. Hand,                                      :

                Plaintiff-Appellant,                  :

v.                                                    :                No. 12AP-946
                                                                   (Ct. of Cl. No. 2011-07192)
Ohio Department of Rehabilitation                     :
and Correction,                                                   (REGULAR CALENDAR)
                                                      :
                Defendant-Appellee.
                                                      :


                                        D E C I S I O N

                                  Rendered on September 30, 2013


                Swope and Swope, and Richard F. Swope, for appellant.

                Michael DeWine, Attorney General, and James P. Dinsmore,
                for appellee.

                            APPEAL from the Court of Claims of Ohio

CONNOR, J.
        {¶1}     Plaintiff-appellant, Jeffrey A. Hand ("appellant"), filed a negligence action
against defendant-appellee, Ohio Department of Rehabilitation and Correction
("appellee"). After a bifurcated trial before a magistrate, the magistrate found in favor
of appellee on the liability issue. The Court of Claims of Ohio overruled appellant's
objections and ruled in appellee's favor.              Appellant filed a timely appeal.          For the
following reasons, we reverse the decision of the Court of Claims.
        {¶2}    Appellant has been an inmate in the custody and control of appellee at the
Grafton Correctional Institution ("GCI") since December 2007. On November 23, 2010,
No. 12AP-946                                                                          2


while working as part of the GCI farm program, appellant was injured, breaking his
right femur bone, when the tractor he was driving rolled over.
      {¶3}   Appellant testified that his job assignment on that day was to drive a
tractor and haul corn stalks which had previously been baled, from the field to the barn
area. He traveled approximately two miles each way. The first tractor he used that day
was not a four-wheel drive and the field was muddy, so he needed to trade tractors. The
tractor he used was the only available four-wheel drive tractor.       The tractor was
operable, but needed work because there were problems with the clutch. The tractor
would jump or lurch whenever it was put into gear.           Appellant stated that the
supervisors were aware of the problem. He had operated this tractor "[h]undreds of
times" before the accident, but even though he had problems with the clutch "[e]very
day," nothing in particular happened to put him on notice that the tractor would fail.
(Tr. 18-19.) He did not make written complaints regarding the tractor, but did make
verbal complaints.
      {¶4}   Appellant described the accident, stating that he drove on State Route 83,
made a left turn onto an access road along the field and as he approached the field, he
pushed in the clutch, slowed down and put the tractor into second gear. As he entered
the turn to the gravel road, the "tractor kicked into gear, shot up on two wheels, went
down a little embankment there, fell on the left side and slid to a stop." (Tr. 19.) He
estimated he was traveling at six or seven miles per hour. He stated he did not believe
he did anything to cause the accident.
      {¶5}   Terry Cradlebaugh, another inmate at GCI, testified he worked as a part-
time mechanic and tractor operator on the farm. He worked on this tractor because of a
continuing clutch problem. There were many adjustments made to the clutch, but it was
not entirely fixed because he believed the tractor needed a new clutch and pressure
plate. Cradlebaugh testified that he was told the needed repairs were not to be made
because there were budget problems regarding acquiring new parts. He told Paul
Dillon, a correctional farm coordinator, about the problems regarding the clutch.
No. 12AP-946                                                                           3


      {¶6}     Another inmate who drove tractors, Jeffrey Woods, testified the tractors
were driven hard by the inmates and were "raggedy or beat up." The tractors were
"junk." (Tr. 107-08.)
      {¶7}     Dillon, a correctional farm coordinator who was not on duty the day of the
accident, testified that he did not have a specific memory of Cradlebaugh telling him
that one of the tractors needed clutch repair, but it may have happened. Dillon did say
that appellant had complained about the clutch and they had discussions regarding
maintenance.
      {¶8}     Thomas J. Thompson, a corrections officer at GCI was employed as a
correctional farm coordinator at the time of the accident. He testified that Cradlebaugh
did not tell him there was a problem with the clutch and appellant did not report a
problem with the tractor that day. He testified that inmates are told if they are not
comfortable running the equipment, they do not have to do so. And if an inmate felt
that equipment was unsafe, they were told not to use it. On the day of the accident, he
spoke to the farm manager and the highway patrol and, based upon those discussions,
he was asked what he believed was the cause of the accident. Appellant's attorney
objected and the objection was sustained. (Tr. 132-33.) Subsequently, he was asked if
he ever had problems with the clutch improperly engaging and causing the tractor to
lurch forward and raise the front wheels off the ground and he responded, "No. The
tractor doesn't have the ability to do that[.]" When asked why he believed that, he
responded, "Because of the weight of the tractor and the horse power of the tractor."
(Tr. 140.) Appellant's attorney again objected and the magistrate overruled the motion
to strike the record and said he would weigh the evidence. (Tr. 141.)
      {¶9}     The magistrate found that appellant failed to establish his claim of
negligence. The magistrate further found, as follows:
               [T]hat plaintiff failed to take reasonable steps to ensure his
               own safety and that such a failure was the proximate cause of
               his injuries. The court finds that the testimony presented
               regarding the condition of the tractor and its alleged clutch
               issues was unreliable. The court was not presented with any
               evidence regarding maintenance performed on the tractor
               before or after the accident or any other evidence to
No. 12AP-946                                                                            4


             conclusively establish that the clutch was malfunctioning at
             the time of the accident. Nevertheless, to the extent that the
             clutch was malfunctioning, plaintiff testified that he was
             aware of the issue and had operated the tractor "hundreds of
             times" prior to the incident. Yet, he chose to operate it on
             the day in question instead of bringing the problem to the
             attention of a staff member. In light of the fact that plaintiff
             had exclusive control over the tractor at the time of the
             accident, and without any credible evidence otherwise, the
             only reasonable conclusion to draw is that the accident was
             caused by an operating error on the part of plaintiff.

(June 18, 2012 Decision of the Magistrate, 3-4.)
      {¶10} The Court of Claims, in overruling appellant's objections, concurred with
the magistrate's finding that the testimony regarding the condition of the tractor and its
clutch problems was unreliable. Further, although the Court of Claims found that
Thompson's opinion regarding the mechanical capabilities of the tractor may be a
subject better left to an expert; the court determined that the magistrate did not rely on
this particular testimony in making a determination regarding liability and found the
admission of this testimony harmless error. The court found that the magistrate's
decision was supported by the greater weight of the evidence because appellant failed to
convince the magistrate that poor maintenance and repair was a proximate cause of the
accident.
      {¶11} Appellant filed a timely notice of appeal and raised the following
assignments of error:
             Assignment of Error No. 1: The Magistrate and Trial Court
             erred in failing to accept Farm Coordinator Dillon's
             admission that the tractor Appellant operated was poorly
             maintained and the admission Hand complained about the
             tractor, as well as the age of the tractor and the lack of
             maintenance caused by budget restraints, which resulted in
             knowingly providing defective, unsafe equipment to
             Plaintiff-Appellant.

             Assignment of Error No. 2: The Magistrate and Trial Court
             erred in failing to accept the uncontradicted evidence that
             the tractor's clutch malfunctioned before the accident,
No. 12AP-946                                                                            5


             without repair, and the surge and lurch caused the tractor to
             pull up and tumble down a small embankment.

             Assignment of Error No. 3: The Magistrate and Trial Court
             failed to consider the Defendants were the sole responsible
             agency for repair and maintenance and they offered no other
             evidence of the cause of the surge and lurch that caused the
             action.

             Assignment of Error No. 4: The Magistrate and Trial Court
             erred in admitting Coordinator Thompson's opinion the
             accident could not have been caused by the clutch, over
             objection and motion to strike.

              Assignment of Error No. 5: The Magistrate's and Trial
             Court's Decisions are against the manifest weight of the
             evidence.

      {¶12} Appellant's fourth assignment of error is dispositive of this appeal. In his
fourth assignment of error, appellant contends that the magistrate and the Court of
Claims erred in admitting Thompson's opinion that the accident could not have
occurred the way appellant described it as occurring.
      {¶13} Thompson was not recognized as an expert during the trial, thus, his
testimony and opinion must be reviewed as a lay witness. Evid.R. 701 relates to lay
witness testimony, and provides as follows:
             If the witness is not testifying as an expert, the witness'
             testimony in the form of opinions or inferences is limited
             to those opinions or inferences which are (1) rationally
             based on the perception of the witness and (2) helpful to a
             clear understanding of the witness' testimony or the
             determination of a fact in issue

      {¶14} Evid.R. 701 gives trial courts wide discretion in allowing lay witness
opinion testimony.    State v. Kehoe, 133 Ohio App.3d 591, 607 (12th Dist.1999).
Therefore, "this court will not disturb a trial court's decision concerning such testimony
absent an abuse of discretion and some demonstration that the court's abuse of
discretion 'materially prejudiced the objecting party.' " State v. Bond, 10th Dist. No.
11AP-403, 2011-Ohio-6828, ¶ 14, citing Urbana ex rel. Newlin v. Downing, 43 Ohio
No. 12AP-946                                                                               6


St.3d 109, 113 (1989); Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). In order
to satisfy the requirement that the opinion testimony must be rationally based on the
perceptions of the witness, the opinion of the lay witness must be " 'one that a rational
person would form on the basis of the observed facts.' " State v. Mulkey, 98 Ohio
App.3d 773, 784 (10th Dist.1994), quoting Lee v. Baldwin, 35 Ohio App.3d 47, 49 (1st
Dist.1987).
       {¶15} In this case, Thompson's opinion constitutes an impermissible lay opinion
under Evid.R. 701. Thompson did not witness the accident, nor is his opinion testimony
helpful to the trier of fact. It was not helpful to a clear understanding of his testimony or
the determination of the mechanical capabilities of the tractor or how the accident could
occur because he is not a mechanical engineer, accident reconstructionist, or other
qualified expert.
       {¶16} Although the Court of Claims found that the magistrate did not rely on
Thompson's testimony and therefore, found the error harmless, the magistrate did find
the testimony regarding the condition of the tractor and its alleged clutch issues
unreliable.   Thompson's opinion that the accident could not have occurred in the
manner described by appellant seriously disputes appellant's version of the accident,
who was the only eyewitness. Appellant and Cradlebaugh testified that the tractor had
clutch problems. Woods testified all the tractors were "raggedy or beat up" and "junk."
(Tr. 107-08.) Farm coordinator Dillon testified he was aware that the tractors needed
repairs and that appellant had complained about the clutch. (Tr. 118.) Given that the
magistrate admitted the testimony and stated she would "weight the evidence," it seems
clear that the magistrate relied on Thompson's testimony to discount the other
testimony.
       {¶17} Furthermore, during oral argument to this court, appellee's attorney
admitted that he believed the court found operator error was the cause of the accident
because of Thompson's testimony that the accident could not have occurred in the
manner as described by appellant.        Thus, the magistrate abused his discretion in
admitting the inadmissible testimony because reliance on this testimony materially
prejudiced appellant. Appellant's fourth assignment of error is sustained.
No. 12AP-946                                                                           7


      {¶18} Based on our ruling on the fourth assignment of error, the first, second,
third and fifth assignments of error are rendered moot.
      {¶19} For the foregoing reasons, appellant's fourth assignment of error is
sustained and the first, second, third, and fifth assignments of error are rendered moot.
The judgment of the Court of Claims of Ohio is reversed, and this cause is remanded to
that court for further proceedings in accordance with law and consistent with this
decision.
                                                                    Judgment reversed;
                                                                       cause remanded.

                        SADLER and McCORMAC, JJ., concur.

             McCORMAC, J., retired, formerly of the Tenth Appellate
             District, assigned to active duty under the Ohio Constitution,
             Article IV, Section 6(C).
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