[Cite as Lloyd v. Dept. of Rehab. & Corr., 2017-Ohio-9396.]




DAMON LLOYD                                            Case No. 2014-00844

       Plaintiff                                       Magistrate Robert Van Schoyck

       v.                                              DECISION OF THE MAGISTRATE

OHIO DEPARTMENT OF
REHABILITATION AND CORRECTION

       Defendant



        {¶1} Plaintiff, an inmate in the custody and control of defendant, brought this
action for negligence arising out of a February 19, 2014 accident in which he was
injured while adjusting a window in his dormitory at the Chillicothe Correctional
Institution (CCI). The issues of liability and damages were bifurcated and the case
proceeded to trial before the undersigned magistrate on the issue of liability.           The
magistrate recommended judgment in favor of defendant.                   The court adopted the
magistrate’s decision and rendered judgment accordingly.
        {¶2} Plaintiff appealed and the Tenth District Court of Appeals issued a decision
on May 23, 2017, reversing the judgment and remanding the matter for further
proceedings. Lloyd v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 16AP-499,
2017-Ohio-2942. The court of appeals held that the court of claims erred in applying
the open and obvious doctrine to bar plaintiff’s claim, and that the court should have
engaged in a comparative negligence analysis. Upon remand, the parties agreed to file
briefs setting forth their arguments on the issue of liability, including the issue of
comparative negligence, whereupon the case was resubmitted for decision on the issue
of liability based upon the record of the trial held on October 21, 2015.
        {¶3} The trial testimony was summarized in the original decision of the magistrate
as follows:
Case No. 2014-00844                        -2-                                   DECISION


            {¶2} At trial, plaintiff testified that he is incarcerated on a murder
     conviction and that he was transferred to CCI from another prison about
     five years ago. Plaintiff testified that at the time of the accident, he was
     assigned to the F-2 Dormitory, which he described as a large, two-story
     building with bunk beds arranged in an open floor plan. Plaintiff testified
     that he was assigned to a bottom bunk along the west wall of the first
     floor.

            {¶3} Plaintiff testified that there were approximately 30 windows in
     total on the first floor of the building. As plaintiff described, the windows
     could be raised and lowered vertically, and they were an older style of
     window with a counterweight system built into the frame. But, plaintiff
     explained that in most of the windows the counterweight systems no
     longer worked, meaning that when the windows were raised they would
     not stay open on their own. According to plaintiff, the windows were large
     and the sections that could be raised and lowered were heavy, weighing
     about 70 to 80 pounds.

             {¶4} Plaintiff related that in this dormitory and in other housing units
     where he had been assigned at CCI previously, where windows would not
     stay open on their own, inmates would often remove a cup from the chow
     hall and set it in the windowsill to prop the window open, or they would
     hold the window up with an improvised hook and string system. As
     plaintiff explained, the hook and string system involved removing the nylon
     drawstring from one of the laundry bags that were issued to inmates,
     removing a metal hook from the spring frame of a bunk bed, and tying the
     hook to one end of the string; the other end of the string would be
     fastened to the top of the window frame, and then the hook would be
     fastened to the bottom of the window to hold the window up. Plaintiff
     testified that he never heard any CCI staff member tell inmates not to use
     the hook and string system, but he stated that the staff did come through
     periodically and retrieve any chow hall cups that were on the windowsills,
     and he also stated that an inmate could receive a disciplinary ticket for
     removing a cup from the chow hall.

             {¶5} Plaintiff testified that the dormitory did not have air conditioning
     and that it was common for inmates to open the windows to circulate air.
     Plaintiff also stated that the building was equipped with a radiant heat
     system and that there was a radiator along the wall near his bed.
     According to plaintiff, the weather was unseasonably warm on the morning
     of February 19, 2014, the radiators were on, and it was hot inside the
Case No. 2014-00844                       -3-                                DECISION


     building, so he and a few other inmates opened some of the windows.
     Plaintiff testified that when he opened the window near his bed, he used
     an existing hook and string device to hold it open. Plaintiff, who stated
     that he served as a construction millwright before going to prison, testified
     that he knew the window was old and did not have a functioning
     counterweight system, and he also testified that he had not been directed
     by anyone to adjust the window, nor did he seek anyone’s help in
     adjusting the window. Plaintiff stated that he concluded it was too drafty to
     have the window all the way open, so he decided to attach two more
     hooks and strings onto the original hook and string so that he could leave
     the window open at a lower height. It was plaintiff’s testimony that when
     he was tying one of the hooks into one of the strings, the original string
     ‘snapped,’ causing the hook he was holding to cut his right index finger to
     the bone and pierce his right middle finger.

             {¶6} Plaintiff recalled that he then went to see Corrections Officer
     Bryan Netter, who was on duty in the building at that time. According to
     plaintiff, Netter was helpful and arranged for him to get to the medical
     department. Plaintiff stated that an inmate also got a bag of ice for him
     quickly. Plaintiff testified that he was examined promptly by a nurse in the
     medical department, and that he was transported to an outside hospital for
     treatment.

           {¶7} Inmate Douglas Johnson testified that at the time of the
     accident he was assigned to the top bunk in the bed next to plaintiff’s bed.
     Johnson stated that he did not actually witness the accident, but he had
     seen plaintiff attempting to adjust the window just before it happened,
     apparently by making an extension to the existing hook and string system.
     Johnson recalled that plaintiff yelled when the accident occurred and that
     he got up and helped lift the window, which he described as being very
     heavy, off of plaintiff’s fingers.

             {¶8} Johnson stated that he had been assigned to the F-2
     Dormitory since the beginning of 2013 and had seen other inmates there
     use the hook and string system to hold windows open, and he stated that
     he never heard corrections officers tell inmates not to do so. Johnson
     testified that the counterweights in nearly all the windows in the dormitory
     no longer worked, and that inmates had put the hook and string devices
     on about three-quarters of the windows.
Case No. 2014-00844                             -4-                                 DECISION


             {¶9} James David Lethgo testified by way of deposition.1 (Plaintiff’s
     Exhibit 1.) Lethgo testified that when the accident occurred he was an
     inmate at CCI and was assigned to the bottom bunk in the bed next to
     plaintiff’s bed. As Lethgo recalled, it was unseasonably warm the day of
     the accident, the heat was on in the dormitory, and inmates had
     consequently opened some of the windows. Lethgo related that plaintiff
     was trying to tie an extension onto the existing hook and string system but
     one of the strings broke and the window slammed shut. Lethgo testified
     that Corrections Officer Netter summoned medical attention and the
     medical staff responded ‘as quick as it could.’

             {¶10} Lethgo stated that he moved into the F-2 Dormitory in April
     2010 and that, in his experience, it was common for inmates to adjust the
     windows as they saw fit. Lethgo stated that the windows generally would
     not stay open on their own, and that inmates would improvise different
     ways of adjusting the windows, mostly using cups to prop windows open
     or using the hook and string system. Lethgo testified that corrections
     officers routinely made rounds through the dormitory and he never heard
     them say anything about the various devices inmates were using.

             {¶11} Corrections Officer Bryan Netter testified that he is employed
     with defendant at CCI and that when the accident occurred he was on
     duty at his regular post in the F-2 Dormitory, which houses as many as
     304 inmates. According to Netter, he did not order plaintiff to adjust the
     window, he was not aware that plaintiff was attempting to adjust the
     window, and he did not see the accident. Rather, Netter stated that at
     around 10:05 a.m. he was conversing with another corrections officer
     when a loud noise rang out, at which point the officers looked at each
     other. Netter stated that plaintiff came to the desk within a minute’s time,
     obviously in pain, with a hook from a bed spring sticking out of his finger,
     and he told Netter what happened. Netter testified that he called the
     medical department and that a Nurse Peters responded to the scene in a
     golf cart less than four minutes later. Netter recalled that Peters looked at
     plaintiff’s finger, wrapped the finger up, escorted plaintiff to the golf cart,
     and drove plaintiff to the infirmary. Netter stated that he prepared an
     Incident Report afterward. (Defendant’s Exhibit A.)



     1The   objection raised in the deposition transcript at page 9 is OVERRULED.
Case No. 2014-00844                         -5-                                 DECISION


             {¶12} Netter testified that there are fans mounted on the walls
      throughout the dormitory to circulate air and that there are fans positioned
      at certain points on the floor for that purpose as well. Netter stated that
      there are radiators positioned along the walls at every other bed, and that
      each radiator has a control valve with which inmates can regulate the
      heat. Netter acknowledged that the windows in the dormitory are old and
      that some of them will not stay open on their own. Netter testified that
      inmates have used nylon cord or string to hold some of the windows up,
      and he stated that he is not aware of any staff member telling inmates that
      they could not do so.

Lloyd v. Ohio Dept. of Rehab. & Corr., Ct. of Cl. No. 2014-00844, 2016-Ohio-1255, ¶ 2-
12.
      {¶4} The original decision of the magistrate set forth the following factual findings,
which the magistrate adheres to in this decision:

              {¶16} Upon review of the evidence presented at trial, the magistrate
      finds as follows. The first floor of the F-2 Dormitory where plaintiff lived at
      the time of the accident has older-style windows with counterweight
      systems built into the frames, but those systems no longer functioned
      properly in many of the windows, meaning that those windows would not
      stay in a raised position on their own. Inmates living in the dormitory
      adjusted windows on their own at times, and with respect to the windows
      in which the counterweight system no longer worked, inmates typically
      would either prop the window up with a cup or other object, or use a hook
      and string system that involved removing the nylon drawstring from a
      state-issued laundry bag, removing a metal hook from the spring frame of
      a bunk bed, and tying the hook to one end of the string; the other end of
      the string would be fastened to the top of the window frame, and then the
      hook would be fastened to the bottom of window to hold the window up.

            {¶17} On the morning of February 19, 2014, plaintiff opened a
      window near his bed on the first floor of the F-2 Dormitory at CCI. The
      counterweight system in that window did not function properly, so plaintiff
      used an existing hook and string to hold the window up. Plaintiff decided,
      however, that the window was creating too much draft at the height to
      which he had it open. Plaintiff attempted to attach two more strings and
      hooks in order to lower the window and allow in less air. Somehow,
      whether it was a string that broke or otherwise, the system of multiple
Case No. 2014-00844                          -6-                                  DECISION


       strings and hooks that plaintiff was trying to use failed. Plaintiff, who at the
       time was holding one of the hooks in his right hand and had his left hand
       under the window, was injured when the window fell on the left hand and
       the hook cut the index finger and punctured the middle finger of the right
       hand.

Id. at ¶ 16-17.
       {¶5} The findings from the original decision of the magistrate went on to provide
“that the danger presented by the window and the hook and string system were open
and obvious conditions” for which defendant owed no duty to protect plaintiff. Id. at ¶
18.   The court of appeals determined, however, that “[a]though appellant used the
drawstring from a laundry bag, in conjunction with a hook from a bed frame, to hold up
the window, there is nothing in the record to establish that this was an open and obvious
hazard. * * * Because the danger posed by the hook and drawstring method was not
open and obvious, the trial court erred in applying the doctrine to bar appellant’s claim.”
Lloyd, 10th Dist. Franklin No. 16AP-499, 2017-Ohio-2942, at ¶ 15. Having held that the
hazard was not open and obvious, the court of appeals then instructed this court, upon
remand, to engage in a comparative negligence analysis, weighing any negligence on
the part of plaintiff with any negligence on the part of defendant.
       {¶6} “To recover on a negligence claim, a plaintiff must prove by a
preponderance of the evidence (1) that a defendant owed the plaintiff a duty, (2) that a
defendant breached that duty, and (3) that the breach of the duty proximately caused a
plaintiff’s injury.” Ford v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 05AP-
357, 2006-Ohio-2531, ¶ 10.
       {¶7} “In the context of a custodial relationship between the state and its
prisoners, the state owes a common-law duty of reasonable care and protection from
unreasonable risks.” Jenkins v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No.
12AP-787, 2013-Ohio-5106, ¶ 8.         “This duty does not, however, make ODRC the
insurer of inmate safety.” Kordelewski v. Ohio Dept. of Rehab. & Corr., 10th Dist.
Case No. 2014-00844                        -7-                               DECISION


Franklin No. 00AP-1109 (June 21, 2001). “The inmate also bears a responsibility ‘to
use reasonable care to ensure his own safety.’” Gumins v. Ohio Dept. of Rehab. &
Corr., 10th Dist. Franklin No. 10AP-941, 2011-Ohio-3314, ¶ 20, quoting Macklin v. Ohio
Dept. of Rehab. & Corr., 10th Dist. Franklin No. 01AP-293, 2002-Ohio-5069, ¶ 21.
      {¶8} “Reasonable care is that degree of caution and foresight an ordinarily
prudent person would employ in similar circumstances, and includes the duty to
exercise reasonable care to prevent an inmate from being injured by a dangerous
condition about which the state knows or should know.” McElfresh v. Ohio Dept. of
Rehab. & Corr., 10th Dist. Franklin No. 04AP-177, 2004-Ohio-5545, ¶ 16. “A property
owner can only be found liable for known dangerous conditions or conditions that pose
reasonably foreseeable dangers.” Horton v. Ohio Dept. of Rehab. & Corr., 10th Dist.
Franklin No. 05AP-198, 2005-Ohio-4785, ¶ 14, citing Perry v. Eastgreen Realty Co., 53
Ohio St.2d 51, 52 (1978). “‘The test for foreseeability is whether a reasonably prudent
person would have anticipated that an injury was likely to result from the performance or
nonperformance of an act.’” Quaye v. N. Mkt. Dev. Auth., 10th Dist. Franklin No. 15AP-
1102, 2017-Ohio-7412, ¶ 22, quoting Menifee v. Ohio Welding Prods., 15 Ohio St.3d
75, 77 (1984).
      {¶9} “Under the comparative negligence statute, the factfinder apportions the
percentage of each party’s negligence that proximately caused the plaintiff’s damages.
R.C. 2315.19(B). A plaintiff may recover where his contributory negligence is equal to
or less than the combined negligence of all the defendants.        R.C. 2315.19(A)(2).”
Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 646 (1992). “While difficult to
define, proximate cause is generally established where an original act is wrongful or
negligent and, in a natural and continuous sequence, produces a result that would not
have taken place without the act.” Whiting v. Ohio Dept. of Mental Health, 141 Ohio
App.3d 198, 202 (10th Dist.2001).       “‘Proximate causation’ is described as ‘some
reasonable connection between the act or omission of the defendant and the damage
Case No. 2014-00844                           -8-                                DECISION


the plaintiff has suffered.’”      Marsh v. Heartland Behavioral Health Ctr., 10th Dist.
Franklin No. 09AP-630, 2010-Ohio-1380, ¶ 40, quoting Prosser & Keeton, The Law of
Torts, Section 41, 263 (5th Ed.1984). While the connection between a defendant’s act
or omission and a plaintiff’s injury may be broken by an intervening cause, that
intervening cause must not have been foreseeable by the defendant. Marsh at ¶ 40-42.
“‘It is not necessary that the defendant should have anticipated the particular injury. It is
sufficient that his act is likely to result in an injury to some one.’” Harper v. Lefkowitz,
10th Dist. Franklin Nos. 09AP-1090 & 09AP-1116, 2010-Ohio-6527, ¶ 27, quoting
Mudrich v. Std. Oil Co., 153 Ohio St.31, 39 (1950); see also Zachariah v. Roby, 178
Ohio App.3d 471, 2008-Ohio-4832, ¶ 44 (10th Dist.) (“The injury must have been
reasonably foreseeable; not that the defendant had to anticipate the particular injury that
occurred, just that it could be reasonably anticipated that some type of injury would
occur from the negligent act.”).
       {¶10} Applying the foregoing standards, the magistrate finds the following.
Defendant had notice of the windows in plaintiff’s dormitory not staying up on their own.
In light of the circumstances in which defendant did not repair the windows, provide
some other reasonably safe mechanism for inmates to prop or hold up the windows,
secure the windows in a closed position to prevent inmates from opening them, or warn
inmates not to open them, all while knowing of the inmates’ extensive reliance on
opening and closing the windows to ventilate and regulate the indoor climate, it was
reasonably foreseeable that inmates would improvise and use what limited property
they might possess or could appropriate from state property to hold the windows up,
and indeed prison staff knew that inmates were doing so.           It was also reasonably
foreseeable that such jury-rigged, unsuited means of holding up these large heavy
windows would prove inadequate and fail, and result in injury.          It is apparent that
inmates would not have been using the makeshift means of holding up windows if not
for defendant’s acts or omissions relative to the windows. Even though there is no
Case No. 2014-00844                        -9-                                DECISION


evidence that inmates had been injured using the hook and string system before, and
whether or not defendant anticipated the precise manner of injury to plaintiff, defendant
could reasonably anticipate under the surrounding circumstances of this particular case
that some type of injury would occur. Defendant’s acts or omissions relative to the
windows set in motion natural and probable events that were foreseeable and plaintiff
was injured as a result. By failing to take reasonable precaution to prevent such harm,
defendant breached its duty of care, and, as a proximate result of defendant’s
negligence, plaintiff was injured.
       {¶11} In terms of comparative fault, any possible negligence on the part of
plaintiff is outweighed by that of defendant. Given the court of appeals’ determination
that the danger in using the hook and string system to hold up the window was not open
and obvious, it follows that the danger was not one that plaintiff should have discerned
through the exercise of ordinary care. See McConnell v. Margello, 10th Dist. Franklin
No. 06AP-1235, 2007-Ohio-4860, ¶ 10 (“Open-and-obvious hazards are those hazards
that are neither hidden nor concealed from view and are discoverable by ordinary
inspection.”). Furthermore, plaintiff knew that the hook and string system was used
throughout CCI and was allowed or at least tolerated by prison staff, he had no
knowledge of other inmates being injured as a result of using it nor had he been injured
himself, he was not warned that it was dangerous, he used the window for its ordinary
purpose, and he apparently gave due attention when adjusting it.              Under the
circumstances, there can be no fault attributed to plaintiff for failing to appreciate the
danger.    Although the original decision of the magistrate found that plaintiff was
negligent and that this was the sole proximate cause of his injuries, and defendant
argues upon remand that those findings should be reaffirmed, those findings were
predicated upon the application of the open and obvious doctrine (i.e., that defendant
owed no duty and that plaintiff should have appreciated the danger), which were
determined by the court of appeals to have been in error.
Case No. 2014-00844                         -10-                                DECISION


        {¶12} Based on the foregoing, the magistrate finds that plaintiff has proven his
claim by a preponderance of the evidence. Accordingly, judgment is recommended in
favor of plaintiff.
        {¶13} 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

cc:
Richard F. Swope                              Lee Ann Rabe
6480 East Main Street, Suite 102              Lindsey M. Grant
Reynoldsburg, Ohio 43068                      Assistant Attorneys General
                                              150 East Gay Street, 18th Floor
                                              Columbus, Ohio 43215-3130

Filed December 22, 2017
Sent to S.C. Reporter 1/5/18
