[Cite as Washington v. Ohio Dept. of Rehab. & Corr., 2009-Ohio-7054.]

                                                       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




BENNIE WASHINGTON

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant
       Case No. 2007-06471

Judge J. Craig Wright
Magistrate Steven A. Larson

MAGISTRATE DECISION




        {¶ 1} Plaintiff brought this action alleging 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 the Marion Correctional Institution (MCI) pursuant to R.C. 5120.16. At
approximately 5:30 p.m. on September 7, 2006, plaintiff stepped in what he described
as a “hole” in the hallway of “5 dorm” and fell. Plaintiff was thereafter transported to the
infirmary where he was treated for injuries to his left ankle and coccyx.
        {¶ 3} Plaintiff alleges that defendant knew the hallway was dangerous and
negligently permitted a hazardous condition to persist.
        {¶ 4} 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 Company, Inc., 99 Ohio St.3d 79, 81, 2003-
Ohio-2573, citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77.
Case No. 2007-06471                         -2-                 MAGISTRATE DECISION

       {¶ 5} 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 correctional facility 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 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. Nonetheless,
the state is not the insurer of inmate safety. Moore, supra.
       {¶ 6} “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.
       {¶ 7} Furthermore, plaintiff has a duty to exercise some degree of care for his
own safety while walking. See Lydic v. Lowe’s Companies, Inc., Franklin App. No.
01AP-1432, 2002-Ohio-5001, at ¶16. “A pedestrian’s failure to avoid an obstruction
because he or she did not look down is no excuse.” Id.
       {¶ 8} Plaintiff testified that, when the incident occurred, he was leaving the MCI
“chow hall” after finishing his evening meal and was on his way to take a “smoke break”
with “some of the guys.” Plaintiff stated that as he walked down the hall, the toe of his
shoe became caught in a hole in the floor causing him to fall and “hit the ground hard.”
Plaintiff further stated that he could not stand on his own after the fall and that a
corrections officer called a nurse who then transported him to the infirmary in a
Case No. 2007-06471                          -3-                 MAGISTRATE DECISION

wheelchair.    Plaintiff testified that after the incident, he sent a letter to the MCI
maintenance department about the hole but he did not receive a response. According
to plaintiff, there are loose tiles and “giant” holes that present a constant danger to
individuals traversing the hallway.     Plaintiff stated that the incident left him feeling
“totally disrespected.”
       {¶ 9} Lee Campo was the MCI safety officer at the time of the incident. Campo
testified that the hallway in question is the “main” hallway of the institution, that all 2,000
inmates use it to enter and exit the “chow hall,” and that many corrections officers and
staff members also use it. Campo further testified that because the hallway sustains
such heavy traffic, it is constantly being repaired.       However, Campo did not recall
plaintiff’s incident or being specifically instructed to fix any “hole” that caused plaintiff’s
fall. Campo also stated that the hallway is lit at all hours.
       {¶ 10} Keith Beitzel was the building maintenance superintendent at the time of
the incident. Beitzel testified that the floor of the hallway is covered with one-half inch
thick tiles. According to Beitzel, as a result of plaintiff’s fall, Deputy Warden Milligan
issued a work order to Dick Enderle, a member of MCI’s maintenance staff, on
September 7, 2006. Beitzel stated that MCI records show that on September 8, 2006,
Enderle signed the order and wrote that he removed broken tiles from the hallway and
filled in the resultant holes with cement.       (Defendant’s Exhibit G.)      Beitzel further
testified that the “holes” that Enderle and plaintiff refer to are approximately three-
quarters of an inch deep and are actually spots on the floor where tiles have broken or
come loose.
       {¶ 11} Based upon the evidence and testimony presented at trial, the court finds
that the “hole” that caused plaintiff’s fall was an open and obvious condition, and that
therefore defendant did not owe plaintiff a duty of care.          Accordingly, judgment is
recommended in favor of defendant.
       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
Case No. 2007-06471                         -4-                 MAGISTRATE DECISION

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).



                                          _____________________________________
                                          STEVEN A. LARSON
                                          Magistrate

cc:


Douglas R. Folkert                            Bennie Washington, #500-025
Assistant Attorney General                    Marion Correctional Institution
150 East Gay Street, 18th Floor               P.O. Box 57
Columbus, Ohio 43215-3130                     Marion, Ohio 43301

Magistrate Steven A. Larson

MR/cmd
Filed December 10, 2009
To S.C. reporter December 29, 2009
