[Cite as McDonald v. Ohio Dept. of Rehab. & Corr. , 2023

- Ohio

- 2842.]

IN THE COURT OF CLAI MS OF OHIO

{¶1} On May 9 , 2 023
, Defendant file d a motion for summ ary judg me nt purs uant to
Civ. R. 56 (B)

. Pursuant to L.C.C.R. 4 (D), the motion for summary judgment is now fully
briefed an d before the C ourt for a non

- oral hearing

. 1 {¶2} This case arises as a result of Plaintiff falling while performing work for
Defendant

. In its motion, Defendant argu es that it did not owe Plaintiff a du ty of care

p ursuan t to the open
- and

- obvious doctrine

. I n support , Defendant submitted the deposition transcripts of David Cripe an d Randall Romans as well a s the transc ripts for
Plaintiff ’ s A pril 26 , 2021 and April 14, 2023 de positions

. Defendant also submitted a v ideo recording of Plaintiff ’ s fall. {¶3} In response, Plaintiff argues that the open

- and

- o bvious doctrine is
in applicable due to attendant circumstan ces

. Plaintiff further argues th at he had no ability

to avoid the area where he fell and relied upon Defend ant to maintain the concrete in a reasonably safe condition

. In support

, Plaintiff s ubmitted his responses to Defendant ’ s interrogatories and reque sts for production of document s , Defendant ’ s responses to
Plain tiff ’ s requests for production of documents , and Defendant ’ s i n jury preve ntion policy

. {¶4} For the reaso ns stated below, the Court GRANTS Defendant ’ s motion

.

1 Upon re view, the C ourt GRA NTS Plain tiff ’s Jun e 7 , 2023 mo tion for leave to file a late response

. GENUS MCDONALD

Plaintiff

v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

Defendant Case No. 2022

- 00565JD
Judge Lisa L. Sadler Magistrate Gary Peter son

DECISIONCase No. 2022

- 00565JD

- 2

- DECISION

Standard of Review {¶5} Motio ns for summary judgment are reviewed under the s ta ndard set for th in
C iv.R. 56 (C), which states, in part : Summ ary j udgmen t s hall be rendered forthwith if the plead ings, depositio ns, answ e rs to interrogatories, w ritten admissions, af fidavits,

tr anscrip ts of eviden ce, and written stip ulations o f fact, if any, timely fil ed in

t he actio n, s how that there is no g en uine issu e as t o a ny material fact and that the moving pa rty is entitled to summ a ry judgment as a matter of law.
No eviden ce or stipulati on may be co nsidere d except as stated i n this rul e. “[T]he m oving party bea rs th e initial resp onsibil ity of i nformin g the trial court of the basis for the motion, and identifying those porti ons of the record before the tria l court w hich
d emons trate the absence of a ge nuine i ssue of material fac t on a mat erial ele m e nt of the

nonmo ving pa rty’s cl aim. ” Dres her v. B urt , 75 O hio St.3d 280, 292 , 662 N.E.2d 264 (1996) . To meet this initial burden, the moving party must be able to point to evide ntiar y
materia ls of the t ype l isted i n Civ.R. 56(C). Id

. at 292

- 29 3

. {¶6} If th e moving party me ets i ts initial bur den, th e n onmov ing par ty bears a recipr ocal burden outlined in Civ.R. 56(E), which provides that “ an adverse par ty may not

rest u pon th e mere allegations or denials of t he pa rty’ s p leadings , bu t the pa rty’s

resp onse, by af fidavit or as o therw is e provid ed in this rule, mu st set fo rth specific fa cts showing th at the re is a genuin e issue for trial. ” It is well

- established that grantin g

s ummary judg ment is not appropriat e un less

, const ru ing th e evidence m ost strong ly in favor of the nonmovi ng p a rty : (1) t here is no gen uine issue of mat erial fact ; (2) the moving party is entitled

to judgment as a matt er of law; and (3) reasonable minds can come to but one conclusion, that con clusi on bein g advers e to the non moving par ty.
Robinet te v. Orthopedi

cs, I nc. , 1 0th Dist. Franklin No. 97AP

- 1299 , 1999 Ohio App . LEXIS
2038, 7 ( May 4, 1999 ).

F actsCase No. 2022

- 00565JD

- 3

- DECISION

{¶7} Pl aintiff, a f o r mer inmate in the custody and control of Defendant

, asser ts that
Defendant is l iabl e to him for negligence after he fell whi le w orking at Ohi o Penal
Indust rie s ( OPI) in the Vehicle Services Center

. Co mplain t, ¶ 1, 5

- 6. Prior to Plaintiff ’ s injury, he had be en assigned to work in the wash bay area of OPI ’ s service ga rage where
he was re sp onsible fo r inspecting vehicles for damage, washing and detailing vehicle s,
and training other inmates who were also hired to work in the serv ice garage

. Genus
McDonal d April 2 6 , 2021 Deposition, p. 6, 12

- 16

. On Ma y 7 , 20 19, Plaintiff was working in the wash bay n ea r the drain

. Co mplaint, ¶ 6

. {¶8} W hile Plainti ff was washing a v eh i cle , he step ped back ward onto the uneven
and cracked concr ete floor

, whi ch caused his l eft foot and ankle to buckle under neath him, resulting in him falling to the ground

. I d

. Plain tiff acknowle dged that a s he “ stepp [ ed ] backy ards ”

, he “ wasn ’ t paying attention ” to the are a of concrete that was uneven

. Mc Donald April 26, 2021 Depo. , p. 39

- 40. {¶9} A ccording to Defend ant , Plaintiff shoul d have seen any crack in the concrete
wher e he fell and s ho uld ha ve avoided it

. David Cri pe Deposi tion, p. 27, 74 ; R andall
R omans Depo sition , p. 33

. D avid Cripe

, an auto motive m echanic employe d at OPI who

su pervises t he inmate s , and R a ndall Roman s , the building construction superi ntend e nt
at OP I

, both testifie d that t he defect in the concrete whe re Pla intiff fell was not covered by a car and that Plaintiff should have seen the defect where he fell. Id

. Defendant also
subm i t t ed v ideo footage captur ing Plai ntiff ’ s fall show ing th at P laintiff was walk ing
backwar d and to the side along the b ack s ide of a wh i te vehicle prior to fall ing

. Genus
McDona ld April 1 4 , 202 3 Depo sition

, p. 38

- 39, Ex. B

. While Plaintiff asserts in his

m emorandum in response that he step ped “ under the back of the car w here the cra cked

concret e floor w as uneven ”

, Pl aintiff do es not tes tif y to the same in his deposition

. 2 Accordingly

, there is no Civ.R. 56 evidence before the Court to support the assertion that
Plaintiff stepped under the back of the car and the video clearly d ep ict s that Plain tiff was

2 Plaintiff’s me morandum in opposition lists a citation after making this a ssertion , but the citation is missing a specific reference and t he Court is unable to find support for such a claim in Plaintiff ’ s deposition

.Case No. 2022

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- 4

- DECISION

stepping back along the back of the c ar when he fell

. 3 See Plaintiff ’ s Memorandum Contra
Defendan t ’ s Summary Judgme nt Motion , p. 4

- 5; but see McDonald Apr il 14, 2023 Depo

. , p.38

- 39, Ex.B. {¶10} W ith respect to the condition of the concrete in the are a wher e P l aintiff fell,
Plaintiff described the area as uneven with a “ little hole ” altho ugh he was unable to provide
dimensions or additional descriptions. M cDonald A pril 26, 2021 Depo. , p. 29

- 30. C ripe
observed that the defect was minor

. Cripe De p o., p . 80

- 81. Rom ans recalled that th e

area where Plai ntiff fell was cracked and uneven

. Romans Dep o., p. 21

- 22. Cripe and
Roman s also stat ed that prior to Plaintiff ’ s injury

, there were multiple places in t he was h bay flo or that were eith er cra ck ed, unev en, raise d

, lowe re d

, or had “ aggregat e st ones ”

. Cripe Depo

. , p. 21

- 22 ; Ro man s Depo

. , p. 14

- 16

. {¶11} Plaintiff complain ed to De fend ant ’ s employees about the uneven and degraded con crete in the w ash ba y prior to his injury ; h owever, P l aintiff also
acknowl edges tha t the conc rete
, depicted in a phot o graph at the time of his fall

, does not

appea r cracked or crumbl ing in the specific a rea where he fell

. M cDonald April 2 6 , 2021 Depo., p

. 3 0

- 3 2 , 40 ; but see Mc Donald April 14, 2023 Depo ., p. 47 , Ex.A

. A ddi tionally

, Pla int iff test ified that in 2 018 anothe r in mate
, Wil liam Straight, twisted his knee in a similar
loca tion of the was h bay

. McDo nald April 2 6 , 2021 Depo., p

. 60

. However, Cripe claims
h e is not aware of any other inm ate ever falling due to the crac k in the w ash bay are a

w her e Pl aintiff fell. C ripe De po., p. 55

. {¶12} No t withstanding

, Crip e states that “ someon e brought up conc erns about the height h (sic) of the floor ” cau sing him to review th e OSHA regulations and dis cuss getting
it fixed with eith er Romans or Jer r y Juniper , a n O PI hea l th an d safe t y inspect or. Id

. at p. 18, 20

. However

, Cripe did not recall wh o voiced the conc erns or wh ether this

con versation took p lace before or a fter Pla int iff ’ s injury. Id. at p. 18

- 21

. Ne vertheless

, when Plaintiff returned to work in June 2 019 followin g his i nju ry , th e defec ti ve concrete
where he had fallen had been fixed w ith a concrete pa tch. McD o nald A pril 2 6 , 2021 Depo. , p

. 31 ; Cripe Depo

. , p. 83; Roman s Depo

., p. 83

.

3 I n his re spons es to Defendant ’ s first s et of interrogatories , P laintiff asserts that he stepped into a puddle of water, but Pl aintiff late r deponed that there was no water on the floor at the time he fe ll. Plaintiff ’ s Exh ibit C, M cDonald April 14, 2023 Dep o ., p. 38

- 39

.Case No. 2022

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- 5

- DECISION

L aw and Analysis {¶13} Defendant argues that it is entit led to su mm ary ju dgm ent becaus e the

con crete ’ s cond iti on w as an open and obvi ous hazard and, as such, i t owed no duty of
care to Plaintiff. In response, Pl ain tiff argues that attendant circumstances exist which

cre ate a g enuine dispute regarding the danger p o se d by t he co ncr ete that caused
Plaintiff ’ s injury

. T o prevai l o n a clai m for negligence

, P laintif f must prove by a preponderance of the evidence that “ (1) the def e ndant owed the plaintiff a dut y, (2) the
defen dant br eached that duty, and (3) the breach of the d uty pr oxi mately caused th e plaintif f’s inju ry.” Jenkin s v . Ohio D ept

. of Rehab & Corr., 10t h Dist. Franklin No. 12AP

787, 2013

- Ohio

- 5106, ¶ 6. {¶14} As it relate s to those who a r e incar cerate d, “ the state ow es a co mmon
- law duty of reasonable care and pro tecti o n fro m u nreasonable risk s

. ” Id. a t ¶ 8

. Reasonable

car e is “ def in ed as the degr e e of caut io n and foresigh t that an ordinarily prudent person
would e mploy in similar circumstances. ” Id

. Exercising rea sonable care in cludes the duty

“ to prevent a n i nmate from bei ng injured by a dangerous conditio n about which t he state
knows or sho uld know. ” M c E lfresh v. Ohio Dept. of Rehab. & Co rr

. , 10th Dist. Franklin
No. 04AP

- 177
, 2004

- Ohio

- 5545, ¶ 1 6

. As it relate s to an inmate performing labor for the

state
, “ the s tate ’ s du ty must be defin ed in the context of those additi onal fac tors which
chara cterize th e particular work performed. ” Id. Although the state ’ s duty varies with the particular cir cums tances
, t h e stat e “ is n ot an insurer of inmate sa fety[.] ” I d. In dee d

, inm ate s “ are also requ ired to us e reason ab le c are t o e n sure the ir own safety.” Jenk ins

a t ¶ 8

. {¶15} Addition ally

, absent any attendant circumstances, an owner or occupier
ordina rily owes n o d uty to warn a n invitee of “open and obvious dangers” on t he premi ses
be cau se “the open and obvious n ature of the hazard itself serv es as a warning” and it is

r easonable to expect that the invitees “entering the premises will discover those dangers
and t ake appropriate me asures to protec t themselves

. ” Cordell v. Oh io De pt. of Re hab.
& Corr. , 10 th Dist. F ranklin No. 08AP

- 749, 2009

- Ohio

- 15 55, ¶ 6, 19 (internal c i t ations
omi tted) ; but see Dean v. Ohio Dept. of Rehab. & Corr ., 10th Dist. Franklin No. 97API12

- 1614, 1998 Ohio App. L EXIS 4451
, 4

- 5 (Sept. 24, 1998) ( The cou rt de cline d to apply theCase No. 2022

- 00565JD

- 6

- DECISION

open and obviou s doctri ne where an inmate

- work er was ordered by def endan t to perform
a task where he could not avoid the hazard that caused his fall)

. To be open and o bvious,
the cond ition must not be “ hidd en, concealed from vi e w, or u ndisco ver a ble upon ordina r y inspect ion .” J enkins at ¶ 11

. The fa ct that an injured pe rson fa iled to o bserve the dangerous condi tion is immaterial

. Id

. Rather, “the dete rminative issue is whether the

c onditi on is observable. ” Id

. {¶16} Furthermore

, it woul d be i nap propriate to fin d a hazard open an d obvious as

a matter o f law when the record reve al s attendant circumstances which rai se “a genuine
issue of m aterial fact as to whether the dang er was free from obstruction and readily appreciable by an o rdi nary person .” McConnell v. Ma rg ello , 10t h Dist. Fr anklin No. 06AP

1235, 2007

- Ohio

- 4860, ¶ 1 1 . At te ndant circumstances are those that “ divert the attention
of the individual and significan tly e nhance the dange r of the hazard and t h us contribute
to the fal l ”

, i ncludin g , but not limited t o , “ poor lightin g , a l arge volume of ped estrian traffic,
the visib il ity of the defect, the overall cond ition of the walkway, an d whether the nature of
the site is such that one ’ s attention would be easily distracted. ” Je nkin s at ¶ 16. {¶17} While i t is und isputed tha t both P la intiff a nd Defendant were a ware of so me typ e of d efect in the condit ion of the con crete in the wash ba y in the are a where Plaintiff
fell

, based upon the evidence presented and viewed in a light most favo rable t o Plain tiff,
the Court f inds th at there is no genuine issue of material fact and that the condi tio n of the

concrete was observable at the time of Plaintiff ’ s fall. Th e deposition testimony of Cripe,
Roman s, and Plaintiff, along with the video foot age of the inc ident , a ll demonst rate that

any defe c t in the concrete was not hidden , conce aled from view, o r undiscoverable upon
ordina ry inspecti on. Plaintiff ’ s failure to observe the condition of the concr ete because he
did not look before stepping back ward do es not render the hazard unobservable. See

W ashington v. Ohio Dep t. of Rehab. & Corr.

, 1 0th Dist. Franklin No

. 10AP

- 136, 2 010

- Ohio

- 4323, ¶ 1 6

- 1 9 ; Je nkins, supra , at ¶ 15 ; see also Pri ce v. Ohio Dept. of Rehab. &
Corr ., 10th Dist

. Franklin No. 14AP

- 11 , 201 4

- Ohio

- 3522, ¶ 12

- 20

. T h ere is simpl y no evidence before the Court that the defect in the concrete was hidden or otherwise
conceal ed

. Accor dingly, based on the evidence submitt ed by the parties, the only

r easonable conclu sion is that any defect in the co ncrete where Plaintiff fe ll was not
hi dden, concea led from view, or undiscoverable upon ordinary inspection

.Case No. 2022

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- 7

- DECISION

{¶18} Plaintiff argues that attendant circumstances prevent the application of the

open
- and

- obvious doctrine to this case. However, on this recor d

, ther e is no evidence of

atten dant circumst a nces that would divert Plaintiff ’ s attention and significantly enhance the danger of any haz ardous cond ition in the concrete. Plaintiff argu es that he had no
control o ver his route and no contro l over the conc rete ma int enance of the workplac e

. However , a prisoner ’ s inability to select the route do es not mean the hazard was not an open and obviou s condition

. See , e.g., id

. at ¶ 1 8 ( “ even if [pl aintiff ’ s ] r oute was
estab lished by [the inst itutio n] a nd his moveme nts may hav e been somewhat restr ict ed,
such does not mea n that the hol e in the walk way was not an open an d ob vious
condition

. ” ). Furtherm ore , Plaintiff t estified that he was aware of the c ondition of the concrete and had previously walked in the area of t he dete rior a ted concrete

. Nevert heless, Plaintiff by his own acknowledgment was walking backward and not paying
attention t o the uneven co ncrete , which w as free from obstruct ion and readily o bservable

. I n short, there is nothing in the recor d to create a genuine issue of materi al fact r egarding
whether Plaintiff ’ s attention was diverted such that the dange r of the hazard was significantly e nhanced

. Accord ingly, there are no attendant circums tances that prevent
th e application of the op en
- and

- obvious doctr in e

. {¶19} De fendant has met its initi al bur den

, pur suant to Ci v.R. 56(C)

, by showing
that there are no genuine issues of materia l fact that the defect in the concrete was an open and obvious condition

. However, Plaintiff ha s not met his reciprocal burden

, purs uant to Ci v.R. 56(E ) , setting fo rth specific f acts showing that there is a genuine issue
for trial

. {¶20} T herefor e , the Court f inds there are no genuine issue s of material fact that
th e open
- and

- obvious doctrine precludes Plaintiff ’ s clai m

. Armstrong v. Best Buy Co

., Inc ., 99 Ohio St.3d 79
, 2003

- Ohio

- 2573 , 788 N.E.2d 1088 , ¶ 5 ( “ a premises

- owner owes no duty to persons entering those premises regarding dangers that are open and o b vious ”
and “ the o pen
- and

- obvious doctrine acts as a complet e bar t o any negligen ce clai ms ” )

. Accordingly, Defen d ant i s entitl ed to j udgm ent as a mat ter of law a nd the Court G R ANTS
its motion for summary judg ment

.

ConclusionCase No. 2022

- 00565JD

- 8

- DECISION

{¶21} A non

- oral hearing was conducted in this case upon Defendant ’ s mo tio n for summary judgmen t. For the reasons s et fort h a bo ve , the Court GRANTS Defendant's

mot ion for summary judgment

.

LISA L. SADLER Judge[Cite as McDonald v. Ohio Dept. of Rehab. & Corr. , 2023

- Ohio

- 2842.]

IN THE COURT OF CLAI MS OF OHIO

{¶22} A non

- oral hearing was conducted in this case upon D efendant’s m otion for

s ummary j udgment. For the reasons set forth in the decision filed concurrently h erewith,
D e fendant’s motion for summary judgment is GRANTED and j udgment is rendered in
favor of D efendant . All previously scheduled events are VACATED. Court costs are assessed against P laintiff . The clerk shall serve upon all parties notice of this ju dgment
and its date of entry upon the j ournal.

LISA L. SAD LER Judge

Filed July 31 , 2023 Sent to S.C. Reporter 8/ 15 /23 GENUS MCDONALD

Plaintiff

v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

Defendant Case No. 2022

- 00565J D

Jud ge Lisa L. Sadler Magistra te Gary Peter son

JUDGMENT ENTRY