585 N.E.2d 573
No. 89-04396.Court of Claims of Ohio.
Decided May 24, 1990.
Page 799
Edward G. Bohnert, for plaintiff.
Anthony J. Celebrezze, Jr., Attorney General, and Eric A. Walker, Assistant Attorney General, for defendant.
LEACH, Judge.
On December 13, 1989, this matter came to trial before a referee of this court concerning the issue of liability. On March 14, 1990, the referee issued a report, attached hereto as an appendix, wherein he recommended judgment for plaintiff.
Civ.R. 53 states that “[a] party may, within fourteen days of the filing of the report, serve and file written objections to the referee’s report.” Defendant did not file an objection to said report.
Upon review of the record and the referee’s report, it is the court’s finding that the referee was correct in his analysis of the issues and application of the law. Accordingly, this court adopts the referee’s report and recommendation as it own. Therefore, judgment is rendered for plaintiff. A trial on damages shall be scheduled in the near future.
Judgment accordingly.
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RUSSELL LEACH, J., retired, of the Franklin County Municipal Court, sitting by assignment.
APPENDIX
KEVIN P. BYERS, Referee.
Plaintiff’s two-count complaint was filed on February 16, 1989. The first count alleged state negligence by failure to “provide proper safety shoes for plaintiff relative to the type of work plaintiff was performing.” The second count alleged violations of R.C. 4101.11 and 4101.12. Discovery commenced and on September 6, 1989, plaintiff filed his amended complaint. This complaint broadened the allegation of negligence in count one by pleading that defendant failed “to exercise ordinary or reasonable care relative to the premises upon which plaintiff was working and the conditions under which plaintiff was working.” Plaintiff again asserted statutory violations as the basis for the second count. The trial was bifurcated and came on for a liability hearing before the referee sitting at the Lebanon Correctional Institution (“LECI”). The findings and conclusions herein are derived from the court file, the evidence admitted at trial, and the respective presentations by counsel.
Findings of Fact
1. At all times relevant to this action plaintiff was an inmate under the custody and care of defendant pursuant to R.C. 5120.16 et seq.
2. On February 24, 1987, plaintiff was working in the LECI metal shop as a material handler.
3. In the course of his assigned duties, plaintiff was assisting in the transportation of a bundle of angle iron which weighed approximately two thousand pounds.
4. This bundle was moved by using a towmotor to lift a cloth strap which contained the loose steel. Inmates were assigned to assist guiding the bundle into the shop for deposit on the floor.
5. The steel being moved was twenty feet in length and the door into the shop was approximately twelve to fifteen feet wide. To move the steel in, it was necessary for inmates to walk alongside the towmotor holding the bundle against the towmotor as it progressed through the shop door. The bundle was approximately two feet above the ground during this procedure. Once the towmotor was inside the shop, the steel was swung to the left side of the towmotor by using the strap and forks as a fulcrum. It was at this point that the strap slipped off the forks and plaintiff was struck by the falling bundle as he stood at the end of the steel.
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6. Prior to this accident a pin had been used to secure the strap to the forks of the towmotor. The pin was designed to be inserted perpendicularly through a hole in one fork and in this manner prevent the strap from slipping off the forks. This pin was not in place on February 24, 1987.
7. Plaintiff was assisting in this operation at the request of another inmate and not as a result of a direct order from LECI personnel.
Conclusions of Law
The two counts of plaintiff’s amended complaint shall be analyzed seriatim. Plaintiff’s first cause of action relies exclusively on the common law without reference to any statute, code, or ordinance. A negligence action in Ohio imposes upon plaintiff the burden of proving that defendant owed plaintiff a duty, breached this duty, and injury resulted proximately therefrom. Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 285, 21 O.O.3d 177, 179, 423 N.E.2d 467, 469. Defendant owes plaintiff the common-law duty “of reasonable care and protection from unreasonable risks.” McCoy v. Engle (1987), 42 Ohio App.3d 204, 537 N.E.2d 665. There can be no legal duty if the injury incurred by plaintiff was not foreseeable. Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 15 OBR 179, 472 N.E.2d 707. However, the state is not an insurer of inmate safety and owes the duty of ordinary care only to inmates who are foreseeably at risk. McAfee v. Overberg (1977), 51 Ohio Misc. 86, 5 O.O.3d 345, 367 N.E.2d 942. Reasonable or ordinary care is that degree of caution and foresight which an ordinarily prudent person would employ in similar circumstances. Smith v. United Properties, Inc. (1965), 2 Ohio St.2d 310, 31 O.O.2d 573, 209 N.E.2d 142. Furthermore, the “special relation” evident between a jailor and prisoner does not expand or heighten the duty of ordinary reasonable care. Scebbi v. Ohio Dept. of Rehab. Corr. (Mar. 21, 1989), Ct. of Claims No. 87-09439, unreported.
Much dispute arose at trial regarding the absence of a steel pin which, if inserted perpendicularly in the towmotor forks, indisputably would have kept the strap holding the steel from slipping off and dropping on plaintiff’s foot. This pin would have prevented the accident even if the forks had been at an improper angle during the relevant time. Plaintiff effectively impeached the testimony of a state witness who testified at trial that the pin had never been used prior to this incident. During deposition testimony the witness had testified that the pin was usually used to prevent the strap from slipping. This deposition was properly filed pursuant to Civ.R. 32(A) and defendant was given notice of the filing in accordance with Civ.R. 5(A). This deposition testimony was markedly divergent from the testimony offered at trial. The witness’s explanations for the discrepancy were unconvincing and I
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find the impeachment evidence introduced by plaintiff the more credible and probative. Plaintiff also introduced evidence that an agent of defendant had told the forklift (towmotor) driver, inmate Tony Parker, after the incident, that the pin should have been used. This speaker, John Osborne, was called by the defense and denied making the statement to Parker when he was interviewing Parker after the accident. Osborne also admitted on cross-examination that the use of the pin was a feasible precautionary measure which would have been simple to use. Defendant’s witnesses also readily acknowledged the existence of the pin and their knowledge of its purpose. After consideration of the evidence produced and the various relationships and associations evident among the witnesses, I arrive at the inescapable conclusion that the pin at issue had been used on a regular basis prior to February 24, 1987 and it was not used on that day.
Defendant attempted to obfuscate the issue of causation by insisting that plaintiff’s “unauthorized” presence at the accident site was the crucial causative factor. This is not a “but for” case where, “but for” plaintiff’s purported negligence in being at his location at the time the bundle fell, he would not have suffered injury. Even had plaintiff been elsewhere in the shop when the bundle fell, it was foreseeable that he, or another inmate or employee, would incur injury due to defendant’s negligence. Whether or not plaintiff was authorized to be in his location is not a determinative factor. If defendant’s “but for” theory is utilized to pinpoint the negligence which proximately caused injury, the evidence indicates that but for defendant’s failure to use the pin or ensure its use by the inmates, plaintiff would not have suffered injury. Plaintiff was not assigned to place the pin or ensure its use and he contributed in no fashion to the accident of February 24, 1987. He had never before helped bring in a load of angle iron and cannot be required to perceive and avoid dangers of which he had no notice. Assuming, arguendo, that plaintiff acted in a negligent manner by his mere presence at the accident site, “[i]t is no case of mutual contribution to an injury, where the injured party could not, by the exercise of due care, have avoided the consequences of another’s carelessness.” (Footnote omitted.) 70 Ohio Jurisprudence 3d (1986) 192, Negligence, Section 95. Plaintiff, in the performance of his duties as an inmate material handler, was entitled to rely on the defendant to provide appropriate training, supervision, and equipment to him and fellow inmates. In the exercise of due care, plaintiff could not have avoided the injuries suffered. Defendant was not having the steel moved into an isolated, deserted area of the institution but into an active workshop with many inmates engaged in activities for the benefit of defendant.
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Defendant’s attempts to divert culpability to the inmate forklift operator are equally ineffective. Defendant asserts that the accident may have been caused by Tony Parker’s failure to properly angle the forks, thus allowing the strap to slide off the front. However, this assertion is simply not supported by the evidence adduced. There was no testimony that the acts or omissions of Parker were in any way of a catalytic character. Similarly, defendant’s inference that the strap may have been negligently used by the involved inmates remains nothing more than an inference. Contrary to defendant’s insistence, this mere inference supports plaintiff’s argument that the inmates were improperly supervised during the operation and this negligent supervision is a link in the causal chain leading to plaintiff’s injury. Defendant’s repeated efforts at deflecting the responsibility for this injury onto any number of inmates are not persuasive.
Even were this court inclined to find negligence by the involved inmates, the doctrine of respondeat superior prohibits defendant’s release from liability. A master-servant relationship exists when one party holds the right of control over another’s actions. Pickens Plummer v. Diecker Brother
(1871), 21 Ohio St. 212. Respondeat superior is applicable where the attainment of the master’s goals are achieved through the right of control over a servant’s acts. Duke v. Sanymetal Products Co. (1972), 31 Ohio App.2d 78, 60 O.O.2d 171, 286 N.E.2d 324. In the case sub judice there can be no dispute but that the inmates involved in the movement of the bundle were under the control of defendant and were actively engaged in the attainment of defendant’s goals. Every inmate involved in moving the steel was clearly acting as an agent of defendant and the acts or omissions of these individuals are imputable to defendant by the doctrine of respondeat superior. Therefore, even if this court were to find that individual inmates caused the accident, there is not a scintilla of evidence indicating the impropriety of vicarious liability as a theory of recovery.
Plaintiff’s second cause of action, premised upon R.C. 4101.11 and 4101.12, must fail as these provisions relate exclusively to “employers.” Inmates working in a prison setting are not employees subject to statutory protection. Fondern v. Ohio Dept. of Rehab. Corr. (1986), 31 Ohio App.3d 228, 31 OBR 511, 511 N.E.2d 398. Plaintiff produced no evidence at trial which could lead this court to conclude that the settled law on this point is inapplicable or poorly reasoned. The referee recommends judgment for defendant on plaintiff’s second cause of action.
In summary, whether liability is considered within the context of the overall supervision at the time in question, or simply analyzed relative to the absence of the safety pin alone, the outcome is clear that the failure of due care in the
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training and supervision of the inmate-agents is the legal cause of plaintiff’s injuries. Plaintiff has shown by a preponderance of the evidence that defendant is responsible for all of his injuries incurred on February 24, 1987. Plaintiff’s averment regarding the lack of safety footwear is not susceptible to resolution at this time as it is inextricably intertwined with the damage issue yet to be tried. Additionally, this issue may be of little consequence in view of the conclusions proffered herein. The referee recommends judgment in favor of plaintiff on the first cause pled and a finding that defendant is responsible for one hundred percent of damages yet to be proven.