[Cite as Whitmore v. Ohio Dept. of Rehab. & Corr., 2011-Ohio-883.]

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

RICHARD WHITMORE 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION 

 Defendant 

Case No. 2008-10366 

Judge Clark B. Weaver Sr. 

Magistrate Matthew C. Rambo 

MAGISTRATE DECISION

{¶ 1} Plaintiff brought this action alleging negligence. After a trial on the issue 

of liability, the court rendered judgment in favor of plaintiff on one of his three claims. 

The case then proceeded to trial on the issue of damages. 

{¶ 2} At all times relevant, plaintiff was an inmate in the custody and control of 

defendant at the London Correctional Institution (LCI) pursuant to R.C. 5120.16. On 

January 9, 2008, plaintiff fell from the upper bunk in his cell and suffered injuries to his 

left leg and the back of his head. On December 7, 2007, plaintiff had been issued a 

lower-bunk restriction that defendant failed to honor, and defendant was therefore found 

liable to plaintiff for any injuries caused as a proximate result of the January 9, 2008 fall. 

{¶ 3} Plaintiff testified that prior to the fall he had an extensive history of medical 

issues, including four surgeries on his right knee, two surgeries to his left knee, two torn 

bicep muscles, and a fracture to the C2 vertebra caused by a suicide attempt. Plaintiff 

stated that his physical condition at the time of the fall was “not good” and that this is 

what necessitated the issuance of the bunk restriction. He further stated that as a result 
Case No. 2008-10366 - 2 - MAGISTRATE DECISION

of the prior surgeries, his right knee was in “pretty bad” condition, but that his left knee 

was “ok.” In describing the fall, plaintiff testified that he is five feet, four inches tall, 

that the upper bunk is approximately five feet off the floor, and that he would stand on 

his locker box to aid in climbing into the bunk. He testified that on January 9, 2008, 

while he was attempting to climb into the bunk, his left arm “gave out,” he began to fall 

backward and when he attempted to break his fall with his left leg, his knee twisted and 

he fell backward hitting the back of his head on the cell wall. Plaintiff stated that, after 

the fall, his left knee swelled such that he needed crutches to walk, and that he felt 

severe pain in his left knee and in the back of his head and neck. According to plaintiff, 

he was provided ice and two pain medications by the LCI infirmary. 

{¶ 4} Four days after the fall, plaintiff was placed in segregation for a rules 

infraction. On January 22, 2008, plaintiff was still in segregation when he fell a second 

time while attempting to climb into an upper bunk. Plaintiff had been sleeping on the 

floor of the cell because there were not any lower bunks available in the segregation 

unit. However, on the night of the fall, he got cold and attempted to climb into the bunk 

without first notifying LCI staff. The court previously found that plaintiff failed to exercise 

reasonable care to ensure his own safety when he did so and that defendant was not 

liable for any injury suffered as a result of that fall. At the damages trial plaintiff testified 

that one of the reasons he fell the second time was that his left knee was severely 

weakened by the first fall. Plaintiff explained that he was confused at the liability trial 

when he testified that he had twisted his left knee in the second fall, and that he actually 

suffered an injury to his right knee in the second fall and not his left knee. 

{¶ 5} Plaintiff testified that he continued to take medication for pain in his left 

knee throughout much of 2008. On June 19, 2008, an MRI showed medial and lateral 

meniscus tears. Plaintiff underwent surgery on September 1, 2008, to repair the tears. 

Plaintiff stated that he was “laid up” for approximately two weeks after surgery and that 

he was prescribed pain medication for a short time. The only pain medication he 
Case No. 2008-10366 - 3 - MAGISTRATE DECISION

currently takes is for osteoarthritis. 

{¶ 6} The court finds that plaintiff failed to establish that the permanent injuries 

to his left knee were caused by the January 9, 2008 fall. Accordingly, plaintiff is entitled 

to damages for the pain and suffering caused by the injury to the back of his head and 

for the pain and loss of use related to his left knee only for the period of time between 

the first and second fall. 

{¶ 7} Based upon the foregoing, judgment is recommended in favor of plaintiff in 

the amount of $5,025, which includes the $25 filing fee. 

 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).

 

 _____________________________________ 

 MATTHEW C. RAMBO 

 Magistrate 

cc: 

 

Douglas R. Folkert 

Assistant Attorney General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

Richard F. Swope 

6480 East Main Street, Suite 102 

Reynoldsburg, Ohio 43068 

MR/cmd

Filed January 31, 2011 
Case No. 2008-10366 - 4 - MAGISTRATE DECISION

To S.C. reporter February 22, 2011