[Cite as Harris v. Ohio Dept. of Rehab. & Corr., 2019-Ohio-5137.]
                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


Herman Harris, Jr.,                                    :

                 Plaintiff-Appellant,                  :
                                                                            No. 19AP-81
v.                                                     :            (Ct. of Cl. No. 2016-00883JD)

Ohio Department of Rehabilitation                      :            (REGULAR CALENDAR)
and Correction,
                                                       :
                 Defendant-Appellee.
                                                       :



                                           D E C I S I O N

                                   Rendered on December 12, 2019


                 On brief: Swope and Swope, and Richard F. Swope, for
                 appellant. Argued: Richard F. Swope.

                 On brief: Dave Yost, Attorney General, and Christopher P.
                 Conomy, for appellee.


                             APPEAL from the Court of Claims of Ohio

KLATT, P.J.

        {¶ 1} Plaintiff-appellant, Herman Harris, Jr., appeals a judgment of the Court of
Claims of Ohio in favor of defendant-appellee, Ohio Department of Rehabilitation and
Correction, following a trial on liability. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
        {¶ 2} On May 2, 2016, appellant, an inmate at the Pickaway Correctional
Institution, was working in the central food service area of the facility. As part of his work
responsibilities, appellant was assigned the task of moving a quantity of frozen food from a
freezer to a food waste pulper for disposal. Appellant loaded the frozen food onto sheet
pans and placed the sheet pans on a movable rack. The rack was a little over six feet high
No. 19AP-81                                                                                               2

and approximately two feet wide. The rack was mounted on four wheels. Each wheel could
swivel. Appellant was pushing the loaded rack from the area of the freezer to the food waste
pulper, a distance of approximately 25 yards. Due to its height, the rack partially obstructed
appellant's view as he pushed it towards the food pulper. Appellant had not performed this
task before.
        {¶ 3} As appellant approached the pulper, one of the front wheels on the rack rolled
down into a recessed covered floor drain causing the rack to tilt. The drain cover was
recessed below the surface of the surrounding floor by less than two inches. As the rack
tilted, the sheet pans began to slide off the rack. Appellant attempted to block the sheet
pans from sliding completely off the rack but the entire rack tipped over onto him.
Appellant sustained injuries as a result of the accident.
        {¶ 4} Appellant brought a negligence claim against appellee alleging that appellee
failed to exercise reasonable care by not repairing the defective drain or warning him of the
hazard. The trial court bifurcated the issues of liability and damages, and a magistrate held
an evidentiary hearing solely on the issue of liability. The magistrate found that the
recessed drain cover was defective and created an unreasonable risk of harm. However, the
magistrate found no liability on the part of appellee based on appellant's failure to prove
that appellee had actual or constructive knowledge of the hazard.
        {¶ 5} Appellant filed objections to the magistrate's decision. Following a de novo
review, the trial court agreed with the magistrate that the pictures of the drain cover
reflected a defect but that appellant failed to prove appellee had actual or constructive
knowledge of the hazard prior to appellant's accident. Therefore, the trial court overruled
appellant's objections and adopted the magistrate's findings of fact and conclusions of law.1
Appellant appeals, assigning the following errors:
                [1.] The trial court and the magistrate erred in sustaining an
                objection to a relevant admissible question concerning
                maintenance and work orders relating to the condition of the
                drain.




1 The trial court did sustain in part one of appellant's objections that involved an evidentiary issue.
However, for the reasons noted in our analysis of appellant's first assignment of error, this issue is of no
consequence.
No. 19AP-81                                                                                  3

              [2.] The trial court and magistrate erred in ruling the
              evidence failed to establish the hazard existed for a long
              enough time so defendant-appellee knew of the hazard.

              [3.] The trial court and magistrate erred in finding the
              photographs, defendant's exhibit A and plaintiff's exhibit 4,
              did not establish the condition of the drain had existed for
              sufficient time to provide constructive notice of the hazard.

              [4.] The trial court and magistrate erred in ruling the record
              did not support regular inspection of the kitchen which should
              have revealed the hazard.

              [5.] The decision of the magistrate and trial court are against
              the manifest weight of the evidence and are contrary to law.

STANDARD OF REVIEW
       {¶ 6} We note that the parties dispute the applicable standard of review. Pursuant
to Civ.R. 53, a trial court conducts a de novo review of a magistrate's decision, undertaking
an independent review of the matters objected to in order to determine whether the
magistrate has properly determined the factual issues and appropriately applied the law.
Civ.R. 53(D)(4)(d). Watson v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 11AP-606, 2012-
Ohio-1017, ¶ 6. However, the standard of review on appeal from a trial court judgment that
adopts a magistrate decision varies with the nature of the issues that were (1) preserved for
review through objections before the trial court, and (2) raised on appeal by assignment of
error. Williams v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 17AP-621, 2019-Ohio-2194,
¶ 16; Starner v. Merchants Holding LLC, 10th Dist. No 17AP-621, 2018-Ohio-1165, ¶ 15; In
re Guardianship of Schwarzbach, 10th Dist. No. 16AP-670, 2017-Ohio-7299, ¶ 14.
Therefore, we will identify the applicable standard of review in the context of our legal
analysis.
LEGAL ANALYSIS
       {¶ 7} In a negligence action, the plaintiff bears the burden of proving by a
preponderance of the evidence that the defendant breached a duty owed to him and that
the breach proximately caused the injury. Barnett v. Ohio Dept. of Rehab. & Corr., 10th
Dist. No. 09AP-1186, 2010-Ohio-4737, ¶ 17, citing Chambers v. St. Mary's School, 82 Ohio
St.3d 563, 565 (1998). Typically, under Ohio law premises liability is dependent upon the
injured person's status as an invitee, licensee, or trespasser. Cordell v. Ohio Dept. of Rehab.
No. 19AP-81                                                                                                4

& Corr., 10th Dist. No. 08AP-749, 2009-Ohio-1555, ¶ 6, citing Gladon v. Greater Cleveland
Regional Transit Auth., 75 Ohio St.3d 312, 315 (1996). Because of the custodial relationship
between the state and an inmate, the state has a duty to exercise reasonable care to prevent
inmates in its custody from being injured by dangerous conditions about which the state
knows or should know. Cordell at ¶ 6.
        {¶ 8} "The state's duty of reasonable care does not render it an insurer of inmate
safety." Allen v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 14AP-619, 2015-Ohio-383,
¶ 17. "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. No. 04AP-
177, 2004-Ohio-5545, ¶ 16. "Where an inmate also performs labor for the state, the state's
duty must be defined in the context of those additional factors which characterize the
particular work performed." Barnett at ¶ 18. However, it is well-established that ordinary
prison labor performed by an inmate in a state correctional institution facility is not
predicated on an employer-employee relationship. Id. at ¶ 11, citing McElfresh at ¶ 14.
        {¶ 9} In his first assignment of error, appellant argues that the magistrate erred
when he sustained an objection to a question appellant's counsel posed to correctional
officer, Rhett Butler, about his knowledge of repairs to the drain cover following appellant's
accident. Appellant's counsel began this line of inquiry by referring Butler to plaintiff's
exhibit No. 2, a work order request to "[f]ix drain cover at unloading dock." Butler's name
does not appear on plaintiff's exhibit No. 2 and it does not appear from the record that there
was a foundation for introducing this exhibit through Butler. However, the magistrate
sustained an objection to this line of inquiry based on Evid.R. 407, subsequent remedial
measures.2 Appellant's counsel did not proffer what Butler's testimony would have been.
        {¶ 10} A trial court has broad discretion to admit or exclude evidence, and in the
absence of an abuse of discretion that results in material prejudice, an appellate court
should be slow to reverse evidentiary rulings. Ford v. Ohio Dept. of Rehab. & Corr., 10th
Dist. No. 05AP-357, 2006-Ohio-2531, ¶ 67. An abuse of discretion connotes more than


2 The magistrate ultimately admitted plaintiff's exhibit Nos. 2 and 3 (a second work order request apparently
for the same drain cover) solely as evidence that the drain cover was defective.
No. 19AP-81                                                                                              5

error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
          {¶ 11} Appellant argues that the magistrate abused his discretion in sustaining the
objection to his counsel's question concerning Butler's knowledge of repairs to the drain
cover following the accident. Appellant asserts that this line of inquiry was intended only
to establish that the drain cover was defective, and therefore, needed to be fixed. Appellant
made this same argument in an objection to the magistrate's decision filed with the trial
court. Exercising its de novo review, the trial court sustained the objection in part finding
that evidence of repairs to the drain cover could be considered for purposes of establishing
that the drain cover was defective and needed repairs following appellant's accident. The
trial court also adopted the magistrate's findings of fact, including the finding that the drain
cover was defective and created an unreasonable risk of harm. Therefore, any possible error
by the magistrate in sustaining an objection to appellant's question to Butler about his
knowledge of work performed on the drain cover after appellant's accident was
undoubtedly harmless. Consequently, we overrule appellant's first assignment of error.
          {¶ 12} Appellant's remaining assignments of error all challenge the trial court's
finding that appellant failed to prove appellee had constructive notice of the hazard created
by the defective drain cover prior to appellant's accident.3 Therefore, we will consider them
together. These assignments of error were all raised in objections to the magistrate's
decision filed in the trial court.
          {¶ 13} Appellant argues that pictures of the drain cover (defendant's exhibit A and
plaintiff's exhibit No. 4) demonstrate that the drain cover was in a defective condition for a
sufficient time to impose upon appellee constructive notice of the hazard and that regular
inspections of the food service area by appellee would have revealed the hazard.4 Based on
these pictures, appellant contends that judgment in favor of appellee is against the manifest
weight of the evidence. We disagree.



3   Appellant does not argue on appeal that appellee had actual knowledge of the hazard.

4 Appellant also argues that work order requests (plaintiff's exhibit Nos. 2 and 3) are evidence of

constructive notice. However, these documents were admitted for the limited purpose of establishing a
defect. The trial court expressly found that these exhibits could not be considered for purposes of
establishing constructive notice of the defect. Appellant does not challenge this evidentiary limitation in
this appeal.
No. 19AP-81                                                                                  6

       {¶ 14} When reviewing whether a judgment is against the manifest weight of the
evidence, this court has stated "[j]udgments supported by some competent, credible
evidence going to all essential elements of the case will not be reversed as being against the
manifest weight of the evidence." Ensman v. Ohio Dept. of Rehab. & Corr., 10th Dist. No.
06AP-592, 2006-Ohio-6788, ¶ 4, citing C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d
279 (1978), syllabus. In a manifest-weight analysis, the court, reviewing the entire record,
must weigh the evidence and all reasonable inferences, consider the credibility of witnesses,
and determine whether in resolving conflicts in the evidence, the finder of fact clearly lost
its way and created such a manifest miscarriage of justice that the judgment must be
reversed and a new trial ordered. Cordell, 10th Dist. No. 08AP-749, 2009-Ohio-1555, ¶ 7,
citing State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). However, the credibility of
witnesses is an issue primarily for the trier of fact, who stands in the best position to
evaluate such matters. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77 (1984). If the
evidence is susceptible to varied conclusions, this court must interpret it in a manner
consistent with the findings of fact, verdict, and judgment of the trial court. Cordell at ¶ 7,
citing Ensman at ¶ 4.        Stated another way, manifest-weight challenges require the
challenging party to "demonstrate that the evidence could lead to only one conclusion and
that conclusion is contrary to judgment." Galay v. Ohio Dept. of Transp., 10th Dist. No.
05AP-383, 2006-Ohio-4113, ¶ 14.
       {¶ 15} "Constructive notice is that which the law regards sufficient to give notice to
a party; it is a substitute for actual notice." Fraley v. Ohio Dept. of Rehab. & Corr., 10th
Dist. No. 18AP-731, 2019-Ohio-2804, ¶ 30, citing In re Fahle's Estate, 90 Ohio App. 195,
197-98 (6th Dist.1950). Constructive notice of a defective condition can be imputed to a
defendant when the plaintiff presents evidence establishing that the defect could or should
have been discovered. Fraley at ¶ 30. "A plaintiff cannot prove constructive notice of a
hazard without a factual basis that the hazard existed for a sufficient time to enable the
exercise of ordinary care." Sharp v. Andersons, Inc., 10th Dist. No. 06AP-81, 2006-Ohio-
4075, ¶ 12. As stated by the Supreme Court of Ohio in Presley v. Norwood, 36 Ohio St.2d
29, 32 (1973):
                 If a plaintiff cannot show that a defendant had actual
                 knowledge of an existent hazard, evidence as to the length of
                 time the hazard had existed is necessary to support an
                 inference that defendant had constructive notice. In order to
No. 19AP-81                                                                                  7

              support such an inference, the [trier of fact] must be
              presented with evidence sufficient to indicate that a
              dangerous condition has * * * existed for a sufficient time
              reasonably to justify the inference that the failure to warn
              against it or remove it was attributable to a want of ordinary
              care.

(Internal citations omitted.) In cases involving allegations of constructive notice, evidence
of how long the hazard existed is required to prove a breach of the duty to exercise
reasonable care. Andersons at ¶ 12.
       {¶ 16} Here, the only admissible evidence appellant cites on the issue of constructive
notice are two photographs of the drain cover. Although the pictures of the drain cover
show that the drain cover is cracked in a few places and is somewhat recessed in comparison
with the surrounding floor, the cracks appear minor and the degree to which the drain cover
is recessed is unclear. The pictures reveal little about how long the drain cover had been in
this condition. The pictures were taken sometime after appellant's accident. Appellant
testified that the rack's front wheel hit the drain cover with sufficient force to bend the
wheel. It is certainly possible that the weight of the rack and the forces involved in the
accident may have altered the drain cover. Even if the trial court concluded that the drain
cover was in the condition depicted in the pictures at the time of the accident, it found that
the photographs did not prove that the defect existed for a period of time sufficient to
constitute constructive notice of the hazard. We find that the photographs do not require
us to reach a conclusion contrary to the trial court's judgment.
       {¶ 17} Lastly, appellant did not present any evidence regarding how often appellee
conducted inspections of the food service area or whether regular inspections should or
would have revealed the hazard posed by the drain cover prior to the accident. Again,
without evidence establishing the length of time, if any, that the defect in the drain cover
existed prior to appellant's accident, there is no evidence that the hazard would have been
revealed during an inspection. Fraley at ¶ 42 (Insufficient evidence that reasonable
inspection would have uncovered the defect in the handrail prior to plaintiff's fall.). Given
our deferential standard of review, and the lack of evidence that the defect in the drain cover
existed for a sufficient period of time to impose upon appellee constructive notice of a
hazard, we cannot conclude that the trial court's judgment is against the manifest weight of
No. 19AP-81                                                                      8

the evidence.   Therefore, we overrule appellant's second, third, fourth, and fifth
assignments of error.
CONLCUSION
      {¶ 18} Having overruled all appellant's assignments of error, we affirm the
judgment of the Court of Claims of Ohio.
                                                                Judgment affirmed.

                         SADLER and DORRIAN, JJ., concur.
