[Cite as Harris v. Dept. of Rehab. & Corr., 2018-Ohio-2276.]




HERMAN HARRIS, JR                                      Case No. 2016-00883JD

       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 injuries he sustained in an accident that occurred
while he worked at his job in the central food service area of the Pickaway Correctional
Institution (PCI) on May 2, 2016. The issues of liability and damages were bifurcated
and the case proceeded to trial on the issue of liability.
        {¶2} At trial, plaintiff testified that he had been assigned to work in the central
food service area for about one year leading up to the accident. Plaintiff related that he
primarily served at the direction of the Aramark Corporation personnel who operate the
food service at PCI and that they had him perform various duties around the kitchen,
snack room, and dining hall. On the day of the accident, plaintiff stated, he was tasked
to dispose of a large quantity of frozen French toast. Plaintiff stated that to do so
required moving the food from the freezer to the food waste pulper, a distance of about
25 yards. Plaintiff explained that the food had been stored on sheet pans which he slid
onto a bun rack that was a little over six feet tall and about two feet wide. The rack had
wheels that swiveled, plaintiff stated, and once it was loaded he pushed it toward the
pulper. Plaintiff recounted using the rack to a limited extent in the past, but stated that
he had never used a rack to move food more than a very short distance and had never
taken food to the pulper. Plaintiff, who gave his height as 6’1”, testified that he could not
see around the rack when pushing it.
Case No. 2016-00883JD                        -2-                                 DECISION


        {¶3} After plaintiff proceeded through a gate and turned into the area where the
pulper was situated, one of the front wheels of the rack became caught atop a floor
drain cover that was recessed below the surrounding surface of the floor, he stated.
According to plaintiff, the rack “jumped” and the sheet pans began to slide off. Plaintiff
testified that as he tried to block the pans from sliding off, the entire rack tipped over
and he fell, with the rack and sheet pans landing on top of him. Describing the floor
drain in which the wheel had become lodged, plaintiff estimated that the drain cover was
about 2½ inches below the surface of the surrounding floor, although he acknowledged
stating in his deposition that the depth was probably about half an inch. Plaintiff testified
that a photograph admitted into evidence as Plaintiff’s Exhibit 4 appears to depict the
drain and its partially-cracked drain cover, but he stated that at the time of the accident
the drain cover was recessed deeper than it is in the photograph and it had more of a
grimy appearance. Plaintiff was unsure whether a photograph admitted into evidence
as Defendant’s Exhibit A shows the same drain. According to plaintiff, there were other
inmates around when the accident happened, but he was unable to recall who they
were.
        {¶4} Plaintiff testified that when he started to get up from the floor, Corrections
Officer Rhett Butler entered the room and he told Butler what happened.              Plaintiff
remembered Butler asking if he was okay and if he needed to go to the infirmary.
Plaintiff, who recounted significant pain in his side, lower back, neck and head, stated
that after waiting for an institutional headcount to finish he went to the infirmary and was
seen by a nurse. Plaintiff testified that he explained to the nurse what happened and
what his symptoms were, and the nurse gave him some pain-relief medication and
advised that he would likely have some temporary soreness. Plaintiff’s statements to
the nurse, describing the cause of his injuries, were recorded in a Medical Exam Report.
(Plaintiff’s Exhibit 7.)   Plaintiff testified that after about an hour in the infirmary he
returned to the central food service area and updated Butler, who had him sign an
Case No. 2016-00883JD                       -3-                                 DECISION


Inmate Accident Report that made no mention of a wheel getting caught in the drain, but
stated instead that he “slipped pulling the rack to the pulper.” (Plaintiff’s Exhibit 1.)
According to plaintiff, he never told Butler that he slipped or that the floor was greasy,
and, because he assumed that Butler accurately reported how the accident happened,
he paid little attention to the report when signing it, which occurred sometime between
1:30 p.m. and the end of the shift at 2:00 p.m.
       {¶5} As plaintiff explained, he felt persistent pain over the following days and was
eventually diagnosed with broken ribs. Plaintiff testified about some issues he had with
his medical care and how he reached out to the Institutional Inspector for assistance.
Plaintiff also testified about two Informal Complaint Resolution (ICR) forms that he
submitted to Maintenance Superintendent Larry Parker regarding the drain. (Plaintiff’s
Exhibits 8, 9.) Plaintiff explained that after he sent the first ICR it became apparent that
the maintenance department misidentified which drain was at issue, so he filed the
second ICR and thereafter Parker and another maintenance superintendent came to the
kitchen and had him identify the drain, which still had the same cover.
       {¶6} Corrections Officer Rhett Butler testified that at the time of the accident he
served as a relief officer throughout PCI, and on that particular day he worked the first
shift (6:00 a.m. to 2:00 p.m.) in the back dock of the central food service area, a post
that he manned about two or three times a month. When the accident happened, Butler
went on, he was filling out a logbook in an adjacent office and heard a clatter. Butler
related that within a few seconds he exited the office and saw plaintiff coming toward
him, obviously in discomfort. Butler recalled that the rack was turned on its side, resting
on the floor between the pulper and the drain, but not over the drain. Butler explained
that the rack had swiveling wheels and was commonly used in the kitchen for moving
food around, and he estimated that it was about six feet tall and one to one-and-a-half
feet wide.
Case No. 2016-00883JD                        -4-                                  DECISION


       {¶7} According to Butler, plaintiff told him that the floor was slick and that he
slipped and fell, and plaintiff complained that his chest hurt.       Butler stated that he
phoned the infirmary and arranged to send plaintiff there to be examined. By Butler’s
account, after plaintiff returned from the infirmary and gave him an update on his
condition, Butler called his shift supervisor to apprise him of what had happened and
then got on a computer and pulled up the Inmate Accident Report form which he filled
out in plaintiff’s presence. (Plaintiff’s Exhibit 1.) Butler stated that since he did not
witness the accident, apart from the noise he heard and his observations upon entering
the room, his only source of information was plaintiff. It was Butler’s testimony that
plaintiff said nothing to him at the time about the drain, nor did Butler have any specific
recollection about the condition of the drain before the accident. Butler acknowledged
though that the report made no mention of the floor being slick like he recalled plaintiff
telling him. Butler testified that once the report was completed, he showed it to plaintiff,
plaintiff said it looked good, and he printed a copy which they both signed.
       {¶8} Maintenance Superintendent Larry Parker provided testimony about
receiving and responding to plaintiff’s ICRs regarding the drain. (Plaintiff’s Exhibits 8,
9.) Parker also testified, to the limited extent that it would pertain to the condition of the
drain at the time of the accident, about two work orders the maintenance department
received after the accident. (Plaintiff’s Exhibits 2, 3.) However, while Parker testified
that he went and looked at the drain at some point, he could not recall when that
happened nor what the drain looked like at the time. Parker had no personal knowledge
of how or when the photographs entered into evidence as Plaintiff’s Exhibit 4 and
Defendant’s Exhibit A were created nor whether the drain looked that way when he
went to see it, but he stated that the drain looks different now than it does in the
photographs.
       {¶9} When asked if the maintenance department conducts regular inspections of
the kitchen, Parker’s response was that there is an employee of the maintenance
Case No. 2016-00883JD                       -5-                                DECISION


department assigned to the kitchen.       Questioned further about whether anyone is
assigned to conduct a safety inspection or walk-through on any kind of regular basis, in
similar fashion Parker stated that there is a maintenance department employee in the
kitchen every day, apparently making repairs and otherwise responding to work orders.
In the same vein, the question was put to Parker whether the maintenance department
has any inspection reports or other documentary evidence on file that would show that
the premises were being inspected, and Parker replied that there is a database of all the
work orders that have been submitted and he also mentioned there being some kind of
general preventive maintenance program but did not explain what it entails or indicate
that it had anything to do with inspection or upkeep of the drain.
       {¶10} Institutional Inspector Mary Lawrence testified that as part her job duties
she investigates and responds to inmate complaints and grievances. Lawrence talked
about investigating an ICR that she received from plaintiff pertaining to his medical care
after the accident. Lawrence explained that when addressing the ICR her focus was not
the manner of injury but rather plaintiff’s subsequent medical issues. Lawrence stated,
though, that she did view the drain at some point, but she could not remember exactly
when. According to Lawrence, the drain depicted in Plaintiff’s Exhibit 4 looks kind of like
what she saw.
       {¶11} “In a claim predicated on negligence, plaintiff bears the burden of proving
by a preponderance of the evidence that defendant breached a duty owed to him and
that this breach proximately caused the injury.” Woods v. Ohio Dept. of Rehab. & Corr.,
130 Ohio App.3d 742, 744, 721 N.E.2d 143 (10th Dist.1998). “Typically under Ohio law,
premises liability is dependent upon the injured person’s status as an invitee, licensee,
or a trespasser. * * * However, with respect to custodial relationships between the state
and its inmates, the state has a duty to exercise reasonable care to prevent prisoners in
its custody from being injured by dangerous conditions about which the state knows or
should know.” Cordell v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 08AP-
Case No. 2016-00883JD                       -6-                                DECISION


749, 2009-Ohio-1555, ¶ 6; see also Moore v. Ohio Dept. of Rehab. & Corr., 89 Ohio
App.3d 107, 112, 623 N.E.2d 1214 (10th Dist.1993).
        {¶12} “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. Franklin 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. Franklin 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 v.
Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 09AP-1186, 2010-Ohio-4737,
¶ 18.
        {¶13} Upon consideration of the evidence presented at trial, the magistrate finds
the following. Plaintiff was assigned to an inmate work detail in the central food service
area of PCI. As part of his work responsibilities, on May 2, 2016, plaintiff was assigned
the task of moving a quantity of frozen food from a freezer to a food waste pulper for
disposal. Plaintiff loaded several sheet pans full of frozen food onto the rack which he
then pushed toward the pulper. The rack partially obstructed plaintiff’s view and plaintiff
had never before taken food to the pulper. As plaintiff approached the pulper, one of
the front wheels of the rack rolled down into a void that existed where the cover of a
floor drain was recessed below the surface of the surrounding floor. The wheel got
caught in the void and the rack tipped such that the sheet pans started sliding off.
Plaintiff moved to block the sheet pans from sliding completely off but the entire rack
tipped over. Plaintiff fell to the ground and was struck by the falling sheet pans and
rack, resulting in injuries.
Case No. 2016-00883JD                         -7-                             DECISION


       {¶14} The depth to which the drain cover was recessed below the surface of the
surrounding floor was not precisely established. Defendant, relying upon the so-called
“two-inch rule,” argues that the defect was an insubstantial one for which there can be
no liability. See Dubenion v. DDR Corp., 10th Dist. Franklin No. 15AP-915, 2016-Ohio-
8128, ¶ 15, quoting Cash v. Cincinnati, 66 Ohio St.2d 319, 323, 421 N.E.2d 1275 (1981)
(“Ohio law has remained steadfast over the years, a claimed defect in sidewalks that is
two inches or less is an ‘insignificant, trivial and unsubstantial condition, which is not
actionable as a matter of law.’”); see also Jenkins v. Ohio Dept. of Rehab. & Corr., 10th
Dist. Franklin No. 12AP-787, 2013-Ohio-5106, ¶ 15 (“the two-inch rule not only applies
to walkways in municipalities but has also been applied to ODRC”). It is more probable
than not that the difference in elevation was closer to the half-inch estimate plaintiff
gave at his deposition rather than the 2½-inch estimate he gave at trial. As for the
photographs entered into evidence, plaintiff identified the drain cover in Plaintiff’s
Exhibit 4 by the partial crack in its surface that also seems to be visible in Defendant’s
Exhibit A, but it is unknown whether the photographs otherwise depict the drain and
surrounding floor as they appeared at the time of the accident, and even if they do it is
difficult to discern the depth of the drain cover.
       {¶15} Although the difference in elevation between the drain cover and the
surrounding floor was probably less than two inches it is apparent that the difference
was significant enough to enable one of the wheels to roll down onto the drain cover
and became lodged in the void, causing the contents of the rack to shift and the rack to
tip over. When this happened, plaintiff was performing labor for the state. In the food
service area where he and other inmates worked, rolling racks like the one involved
here were commonly used. It was foreseeable that significant unevenness or voids in
the floor would cause a rack, especially one as tall and narrow as the one involved here,
or its contents to fall and injure someone. The difference in elevation between the drain
cover and the surrounding floor was significant enough that a reasonably prudent
Case No. 2016-00883JD                        -8-                                     DECISION


person would have anticipated that an injury was likely to result if an inmate pushed a
loaded rack over the drain and one of the wheels got caught in the void. Thus, in the
context of the factors that characterized the work being performed, the unevenness
between the drain cover and the surrounding floor was such that it posed an
unreasonable danger.
       {¶16} To establish that defendant breached its duty of reasonable care, however,
plaintiff had the burden “to prove that ODRC or its agents created the hazard or had
actual or constructive notice of the hazard and failed to remedy it.” Hill v. Ohio Dept. of
Rehab. & Corr., 10th Dist. Franklin No. 12AP-265, 2012-Ohio-5304, ¶ 11. No evidence
was presented in this case to demonstrate that defendant created the hazard; it would
be speculative to conclude that the condition of the floor drain resulted from defendant
or its agents installing it that way as opposed to, for example, some destructive force,
deteriorative process, or material failure. There was also no evidence that defendant
had actual notice of the hazard. It was not shown that anyone had reported a problem
with the drain, nor was there evidence of any prior accidents involving the drain. (It is
noted that one of the work orders at least arguably refers to a drain having been
involved in multiple accidents, but the work order was not admitted for that purpose and
even if it had been it does not state that any accident occurred before plaintiff’s, there
was no supporting testimony, and, from plaintiff’s account of the maintenance
department’s actions, it may pertain to a different drain. Plaintiff’s Exhibit 3.)
       {¶17} “If * * * a plaintiff cannot establish that the owner or its agents created the
hazard or possessed actual knowledge of the hazard, evidence showing the length of
time during which the hazard existed is necessary to support an inference that the
owner had constructive knowledge of the hazard such that the failure to remove or warn
of the hazard was a breach of ordinary care.” Price v. United Dairy Farmers, Inc., 10th
Dist. Franklin No. 04AP-83, 2004-Ohio-3392, ¶ 7; see also Jenkins at ¶ 12. “An owner
is charged with constructive knowledge of defects that would have been revealed by a
Case No. 2016-00883JD                       -9-                                DECISION


reasonable inspection of the premises.” Stenger v. Timmons, 10th Dist. Franklin No.
10AP-528, 2011-Ohio-1257, ¶ 7.
      {¶18} Significantly, plaintiff failed to present credible evidence to show that the
hazard had existed for any length of time. No one testified as to how long there had
been this difference between the elevation of the drain cover and the surrounding floor.
Plaintiff had worked in the central food service area for one year by the time he was
injured yet gave no indication in his testimony that he had seen the defective state of
the drain at any time before the accident. Butler also worked in the area regularly and
had no recollection of the defect.       Plaintiff asserted that the photographs show
deterioration in a ring of concrete or grout around the drain and that this deterioration
must have occurred far enough in the past that defendant should have known about it.
As previously stated, however, it was not established that the photographs show what
the drain looked like at the time of the accident, and indeed plaintiff said there was a
difference in that the drain cover was recessed more deeply at that time. Even if it were
assumed, for argument’s sake, that the photographs do depict what the drain looked
like at the time of the accident, one can only conjecture how long it had been in that
condition. And, regardless of how long there had been some deterioration in the narrow
ring of concrete or grout around the drain, the most significant aspect of the hazard was
the depth of the drain cover, and the record is devoid of facts as to the length of time it
had been in that state.
      {¶19} “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. Franklin No. 06AP-81, 2006-Ohio-4075, ¶
11. While plaintiff emphasizes the lack of evidence about the drain being subject to any
formal inspection or maintenance program, it was not shown that the defect with the
drain existed for such length of time to allow an inference that defendant’s not warning
against it or repairing it resulted from a failure to exercise reasonable care. Although
Case No. 2016-00883JD                       -10-                                 DECISION


the magistrate is not without sympathy for the harm that plaintiff suffered, the fact of
plaintiff’s injury alone does not give rise to an inference of negligence, as it is essential
that there “‘be direct proof of a fact from which the inference can reasonably be drawn.’”
Balcar v. Wal-Mart Store No. 2726, 10th Dist. Franklin No. 12AP-344, 2012-Ohio-6027,
¶ 10, quoting Parras v. Std. Oil Co., 160 Ohio St. 315, 319, 116 N.E.2d 300 (1953). The
absence of such proof to support an inference of constructive knowledge precludes the
relief that plaintiff seeks.
        {¶20} Based on the foregoing, the magistrate finds that plaintiff failed to prove his
claim by a preponderance of the evidence. Accordingly, judgment is recommended in
favor of defendant.
        {¶21} 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

Filed May 23, 2018
Sent to S.C. Reporter 6/12/18
