[Cite as Good v. Ohio Dept. of Rehab. & Corr., 2016-Ohio-8327.]




DARRIN C. GOOD                                        Case No. 2012-08885

       Plaintiff                                      Judge Patrick M. McGrath

       v.                                             JUDGMENT ENTRY

OHIO DEPARTMENT OF
REHABILITATION AND CORRECTION

       Defendant



        {¶1} Before the court are objections filed by defendant Ohio Department of
Rehabilitation and Correction (ODRC) to a magistrate’s decision recommending an
award of damages in favor of plaintiff Darrin C. Good in the amount of $6,025 in Good’s
negligence action against ODRC. For the reasons explained below, the court overrules
ODRC’s objections, adopts the magistrate’s decision as its own, and renders judgment
in favor of Good in the amount of $6,025 on the issue of damages.

    I. Background
        {¶2} On June 27, 2014, the court adopted a magistrate’s decision in favor of
Good on the issue of liability on Good’s claim of negligence arising from a fall down
stairs in August 2012 when Good was incarcerated at the London Correctional
Institution (LoCI). Subsequently, the court, through a magistrate, conducted a trial on
the issue of damages.             On August 17, 2016, the magistrate issued a decision
recommending judgment in favor of Good, finding that Good “is entitled to damages for
past pain and suffering in the amount of $6,000” and that he “is also entitled to recover
the $25 filing fee.”
Case No. 2012-08885                         -2-                       JUDGMENT ENTRY


   II. ODRC’s Objections to Magistrate’s Decision and Good’s Response
       {¶3} On October 7, 2016, after the court granted ODRC’s motion for an extension
of time to file objections, ODRC filed written objections to the magistrate’s decision. In
its objections, ODRC states: “Inasmuch as Good has no lost wages or medical
expenses, he is only entitled to recover the pain he endured for a short time after his fall
before completely recovering.     He did not require surgery and did not require an
overnight stay in a hospital.” (Objections at 1.) ODRC “requests this Court find that
$6,000 in damages is too high and reduce the amount of his award to an amount in line
with Good’s temporary pain and suffering.” (Objections at 6.) In support of its claim that
the evidence does not support an award in the amount of $6,000 for pain and suffering,
ODRC cites to Smith v. Lebanon Corr. Inst., Ct. of Cl. No. 99-11611, 2002-Ohio-1693
(March 4, 2002) and Smallwood v. Ohio Dept. of Rehab. & Corr., 94 Ohio Misc.2d 47,
703 N.E.2d 360 (Ct. of Cl.1997). ODRC has not expressly identified a legal basis for its
objection, e.g., whether the magistrate’s decision is against the manifest weight of the
evidence, or whether it is supported by insufficient evidence, or both.        Neither has
ODRC suggested an amount that, in its view, is “in line with Good’s temporary pain and
suffering.”
       {¶4} ODRC presents this objection: “DRC objects to the pain and suffering award
of $6,000 because the pain and suffering lasted only a few weeks and Good quickly
recovered.” (Objections at 3.)
       {¶5} On October 26, 2016, Good submitted a response to ODRC’s objections,
generally contending that facts support the magistrate’s recommended award because
they establish that Good was injured and that the recommended award is consistent
with decisions in similar cases determined by this court.
Case No. 2012-08885                            -3-                     JUDGMENT ENTRY


   III. Law and Analysis
       A. Civil Rule 53—Objections To A Magistrate’s Decision and Standard of
            Review
       {¶6} Civ.R. 53(D)(3)(b) pertains to objections to a magistrate’s decision.          In
accordance with Civ.R. 53(D)(3)(b)(i), “A party may file written objections to a
magistrate’s decision within fourteen days of the filing of the decision, whether or not the
court has adopted the decision during that fourteen-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.”
Civ.R. 53(D)(3)(b)(ii) provides, “An objection to a magistrate’s decision shall be
specific and state with particularity all grounds for objection.”             According to
Civ.R. 53(D)(3)(b)(iii), “An objection to a factual finding, whether or not specifically
designated as a finding of fact under Civ.R. 53(D)(3)(a)(ii), shall be supported by a
transcript of all the evidence submitted to the magistrate relevant to that finding or an
affidavit of that evidence if a transcript is not available.”
       {¶7} Civ.R. 53(D)(4) governs a court’s action on objections to a magistrate’s
decision.   Civ.R. 53(D)(4)(d) provides, “If one or more objections to a magistrate’s
decision are timely filed, the court shall rule on those objections. In ruling on objections,
the court shall undertake an independent review as to the objected matters to ascertain
that the magistrate has properly determined the factual issues and appropriately applied
the law. * * *.” According to Civ.R. 53(D)(4)(b), whether or not objections are timely
filed, a court “may adopt or reject a magistrate's decision in whole or in part, with or
without modification.” A magistrate’s decision “is not effective unless adopted by the
court.” Civ.R. 53(D)(4)(a).
       {¶8} Recently, in Siegel v. State, 2015-Ohio-441, 28 N.E.3d 612, ¶ 12 (10th Dist.)
the Tenth District Court of Appeals discussed the standard that applies to this court’s
review of a magistrate’s determination, stating:
Case No. 2012-08885                          -4-                    JUDGMENT ENTRY


          a. “A magistrate is an arm of the court, not a separate judicial entity
             with independent judicial authority and duties.” State ex rel. DeWine
             v. Ashworth, 4th Dist. No. 11CA16, 2012-Ohio-5632, ¶ 38. The
             Court of Claims still must “undertake an independent review as to
             the objected matters to ascertain that the magistrate has properly
             determined the factual issues and appropriately applied the law.”
             Civ.R. 53(D)(4)(d). The court retains the ultimate authority and
             responsibility over the magistrate's findings and rulings. Hartt v.
             Munobe, 67 Ohio St.3d 3, 5-6 (1993). Appellants’ suggestion that a
             magistrate, whether by individual capacity of the magistrate or by
             authorization from the court, is incapable of deciding the facts and
             weighing the credibility of witnesses, lacks merit. In any event, “the
             court remains the ultimate finder of fact, even on matters of
             credibility.” DeWine at ¶ 37. “Although the trial court may
             appropriately give weight to the magistrate’s assessment of witness
             credibility in view of the magistrate’s firsthand exposure to the
             evidence, the trial court must still independently assess the
             evidence and reach its own conclusions.” Sweeney v. Sweeney,
             10th Dist. No. 06AP-251, 2006-Ohio-6988, ¶ 15, citing DeSantis v.
             Soller, 70 Ohio App.3d 226, 233 (10th Dist.1990).

      Mindful of the foregoing law, the court now considers ODRC’s claim that the
      magistrate’s recommended pain-and-suffering award of $6,000 is excessive.

      B. Good’s Pain-and-Suffering Damage Award
      {¶9} In N. Coast Premier Soccer, L.L.C. v. Ohio Dept. of Transp., 10th Dist.
Franklin No. 12AP-589, 2013-Ohio-1677, ¶ 17, the Tenth District Court of Appeals
discussed damages in tort actions, noting:

          b. As a general rule, the appropriate measure of damages in a tort
             action is the amount which will compensate and make the plaintiff
             whole. Pryor v. Webber, 23 Ohio St.2d 104 (1970). The
             fundamental purpose of law is to afford to the person damaged
             compensation for all of the loss sustained when faced with the
             difficulty in determining damages. Martin v. Design Constr. Servs.,
             Inc., 121 Ohio St.3d 66, 2009-Ohio-1. A plaintiff “should be neither
             undercompensated nor overcompensated. Ordinarily, the injured
             party must be able to prove not only that he suffered a particular
Case No. 2012-08885                          -5-                       JUDGMENT ENTRY


              type of injury, but also the pecuniary value thereof.” Columbus Fin.,
              Inc. v. Howard, 42 Ohio St.2d 178, 184 (1975).

       {¶10} Absent an abuse of discretion, a trial court has discretion in awarding
damages. See Roberts v. United States Fid. & Guar. Co., 75 Ohio St.3d 630, 634, 665
N.E.2d 664 (1996) (“We will not disturb a decision of the trial court as to a determination
of damages absent an abuse of discretion”); see also Ketchum v. Hoffman, 10th Dist.
Franklin No. 93APE09-1270, 1994 Ohio App. LEXIS 2314, at *18-19 (May 26, 1994)
(“As to defendant’s claim that the trial court abused its discretion in its damage award to
plaintiffs, we note initially that an abuse of discretion connotes more than just an error of
law. It exists where the court’s attitude, evidenced by its decision, was unreasonable,
arbitrary, or unconscionable. Worthington v. Worthington (1986), 21 Ohio St.3d 73, 488
N.E.2d 150.    Also, the weight to be given the evidence and the credibility of the
witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230,
227 N.E.2d 212, paragraph one of the syllabus”).
       {¶11} Regarding the reasonableness of an award for pain and suffering, the
Tenth District Court of Appeals has determined:

          c. In reviewing the reasonableness of a pain and suffering award, a
             court may consider awards given in comparable cases as a point of
             reference, see Hancock v. Norfolk & Western Ry. Co. (1987), 39
             Ohio App.3d 77, 85, 529 N.E.2d 937, but ultimately must evaluate
             each case in light of its own particular facts. Id. Given the difficulty
             in calculating pain and suffering damages, reviewing courts
             generally defer such determinations to the trier of fact, [Fantozzi v.
             Sandusky Cement Prod. Co., 64 Ohio St.3d 601, 612, 597 N.E.2d
             474 (1992)], and are reluctant to substitute their judgment.
             Hancock, supra, at 85. Indeed, in no other element of damages is
             there so wide a latitude for awards as in pain and suffering.
             Drayton v. Jiffee Chemical Corp. (C.A.6, 1978), 591 F.2d 352, 370.

Hohn v. Ohio Dep’t of Mental Retardation & Developmental Disabilities, 10th Dist.
Franklin No. 93AP-106, 1993 Ohio App. LEXIS 6023, at *10-11 (Dec. 14, 1993).
Case No. 2012-08885                          -6-                      JUDGMENT ENTRY


       {¶12} Here, despite finding that Good exaggerated his level of pain following his
fall, the magistrate determined: “Plaintiff was plainly injured as a result of the accident *
* * and consequently suffered temporary pain and suffering.” (Magistrate’s Decision at
10.) Upon review, the court finds that there is some competent credible evidence to
support a finding that Good “was plainly injured as a result of the accident.”
       {¶13} The court finds unpersuasive ODRC’s contention that this court should
modify the magistrate’s recommended damages based on Smith v. Lebanon
Correctional Institution, Ct. of Cl. No. 99-11611, 2002-Ohio-1693 (March 4, 2002)
(inmate fell while descending a flight of stairs). In Smith, this court stated: “Balanced
against the medical testimony provided by Dr. Season, and upon review of all the
evidence and argument presented, the court finds that plaintiff’s total damages in this
case amount to $10,000 which include, but are not limited to, wage loss, past and future
pain and suffering, physical impairment and inability to perform usual activities.
Plaintiff’s total damages shall be reduced by $5,000, which represents his fifty percent
contributory negligence.”
       {¶14} It is true, as ODRC notes, that in this case Good’s recommended damages
for pain and suffering are $6,000 compared with an aggregate award of damages in the
amount of $10,000 in Smith, which included damages for lost wages, past and future
pain and suffering, physical impairment, and an inability to perform usual activities.
Notably, however, as stated by the United States Court of Appeals for the Sixth Circuit:
“In no other element of damages is there so wide a latitude for awards as in pain and
suffering, in view of the individual circumstances of the victims.”       Drayton v. Jiffee
Chem. Corp., 591 F.2d 352, 370 (6th Cir.1978). See Hohn, supra, 1993 Ohio App.
LEXIS 6023, at *10 (Dec. 14, 1993) (“An appellate review of the adequacy of a trial
court's award for noneconomic damages, or pain and suffering, is difficult because no
specific yardstick, or mathematical rule exists for determining pain and suffering”). In
this instance, the court concludes that some latitude should be allowed in the
Case No. 2012-08885                         -7-                       JUDGMENT ENTRY


determination of pain and suffering damages.         While the magistrate’s exercise of
discretion in awarding pain and suffering damages could have been exercised
differently, the court is not persuaded that the magistrate’s exercise of discretion
warrants modification based on Smith.
       {¶15} The   court   also   finds   unpersuasive    the   notion    that   magistrate’s
recommended damages should be modified based on Smallwood v. Ohio Dept. of
Rehab. & Corr., 94 Ohio Misc.2d 47, 703 N.E.2d 360 (Ct. of Cl.1997) (corrections officer
kicking an inmate in the leg when attempting to awaken the inmate) (finding that the
plaintiff “has suffered a disabling injury, but that such injury does not have a significant
effect upon plaintiff’s daily activities” and awarding judgment in the amount of $10,000
“for past and future pain and suffering”). Smallwood is factually distinguishable as it
concerns a corrections officer kicking an inmate.        The court is not convinced that
Smallwood warrants modification of the magistrate’s exercise of discretion and the
recommended amount of damages.

   IV. Conclusion
       {¶16} Wherefore, upon review, the court finds that the magistrate’s determination
regarding Good’s pain-and-suffering damages following the fall at LoCI is supported by
some competent credible evidence. The court further finds that the magistrate did not
lose his way in determining that Good is entitled to $6,000 for his past pain and
suffering related to ODRC’s negligence and that he is entitled to recover his $25 filing
fee in this case. The court holds that the magistrate has properly determined the factual
issues and appropriately applied the law.           Therefore, ODRC’s objections are
OVERRULED and the court adopts the magistrate’s decision and recommendation as
its own, including findings of fact and conclusions of law contained therein. Judgment is
rendered on the issue of damages in the amount of $6,025 in favor of plaintiff Good.
Court costs shall be assessed against defendant ODRC. The clerk shall serve upon all
parties notice of this judgment and its date of entry upon the journal.
Case No. 2012-08885                -8-                    JUDGMENT ENTRY




                                         PATRICK M. MCGRATH
                                         Judge
cc:
Richard F. Swope                    Lindsey M. Grant
6480 East Main Street, Suite 102    Stacy L. Hannan
Reynoldsburg, Ohio 43068            Assistant Attorneys General
                                    150 East Gay Street, 18th Floor
                                    Columbus, Ohio 43215-3130
Filed November 21, 2016
Sent to S.C. Reporter 12/22/16
