[Cite as McDonald v. Ohio Dept. of Rehab. & Corr., 2023-Ohio-2842.]

IN THE COURT OF CLAIMS OF OHIO

{¶1} On May 9, 2023, Defendant filed a motion for summary judgment pursuant to

Civ.R. 56(B). Pursuant to L.C.C.R. 4(D), the motion for summary judgment is now fully 

briefed and before the Court 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 argues that it did not owe Plaintiff a duty of care 

pursuant to the open-and-obvious doctrine. In support, Defendant submitted the 

deposition transcripts of David Cripe and Randall Romans as well as the transcripts for 

Plaintiff’s April 26, 2021 and April 14, 2023 depositions. Defendant also submitted a video

recording of Plaintiff’s fall.

{¶3} In response, Plaintiff argues that the open-and-obvious doctrine is 

inapplicable due to attendant circumstances. Plaintiff further argues that he had no ability

to avoid the area where he fell and relied upon Defendant to maintain the concrete in a 

reasonably safe condition. In support, Plaintiff submitted his responses to Defendant’s 

interrogatories and requests for production of documents, Defendant’s responses to 

Plaintiff’s requests for production of documents, and Defendant’s injury prevention policy.

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

1 Upon review, the Court GRANTS Plaintiff’s June 7, 2023 motion 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 Peterson

DECISION
Case No. 2022-00565JD -2- DECISION

Standard of Review

{¶5} Motions for summary judgment are reviewed under the standard set forth in

Civ.R. 56(C), which states, in part:

Summary judgment shall be rendered forthwith if the pleadings, 

depositions, answers to interrogatories, written admissions, affidavits, 

transcripts of evidence, and written stipulations of fact, if any, timely filed in

the action, show that there is no genuine issue as to any material fact and 

that the moving party is entitled to summary judgment as a matter of law. 

No evidence or stipulation may be considered except as stated in this rule.

“[T]he moving party bears the initial responsibility of informing the trial court of the basis 

for the motion, and identifying those portions of the record before the trial court which 

demonstrate the absence of a genuine issue of material fact on a material element of the 

nonmoving party’s claim.” Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264

(1996). To meet this initial burden, the moving party must be able to point to evidentiary 

materials of the type listed in Civ.R. 56(C). Id. at 292-293. 

{¶6} If the moving party meets its initial burden, the nonmoving party bears a 

reciprocal burden outlined in Civ.R. 56(E), which provides that “an adverse party may not 

rest upon the mere allegations or denials of the party’s pleadings, but the party’s 

response, by affidavit or as otherwise provided in this rule, must set forth specific facts 

showing that there is a genuine issue for trial.” It is well-established that granting 

summary judgment is not appropriate unless,

construing the evidence most strongly in favor of the nonmoving party: 

(1) there is no genuine issue of material fact; (2) the moving party is entitled 

to judgment as a matter of law; and (3) reasonable minds can come to but 

one conclusion, that conclusion being adverse to the nonmoving party.

Robinette v. Orthopedics, Inc., 10th Dist. Franklin No. 97AP-1299, 1999 Ohio App. LEXIS 

2038, 7 (May 4, 1999).

Facts
Case No. 2022-00565JD -3- DECISION

{¶7} Plaintiff, a former inmate in the custody and control of Defendant, asserts that 

Defendant is liable to him for negligence after he fell while working at Ohio Penal 

Industries (OPI) in the Vehicle Services Center. Complaint, ¶ 1, 5-6. Prior to Plaintiff’s 

injury, he had been assigned to work in the wash bay area of OPI’s service garage where 

he was responsible for inspecting vehicles for damage, washing and detailing vehicles, 

and training other inmates who were also hired to work in the service garage. Genus 

McDonald April 26, 2021 Deposition, p. 6, 12-16. On May 7, 2019, Plaintiff was working

in the wash bay near the drain. Complaint, ¶ 6.

{¶8} While Plaintiff was washing a vehicle, he stepped backward onto the uneven 

and cracked concrete floor, which caused his left foot and ankle to buckle underneath 

him, resulting in him falling to the ground. Id. Plaintiff acknowledged that as he “stepp[ed]

backyards”, he “wasn’t paying attention” to the area of concrete that was uneven.

McDonald April 26, 2021 Depo., p. 39-40.

{¶9} According to Defendant, Plaintiff should have seen any crack in the concrete 

where he fell and should have avoided it. David Cripe Deposition, p. 27, 74; Randall 

Romans Deposition, p. 33. David Cripe, an automotive mechanic employed at OPI who 

supervises the inmates, and Randall Romans, the building construction superintendent 

at OPI, both testified that the defect in the concrete where Plaintiff fell was not covered 

by a car and that Plaintiff should have seen the defect where he fell. Id. Defendant also

submitted video footage capturing Plaintiff’s fall showing that Plaintiff was walking

backward and to the side along the backside of a white vehicle prior to falling. Genus

McDonald April 14, 2023 Deposition, p. 38-39, Ex.B. While Plaintiff asserts in his 

memorandum in response that he stepped “under the back of the car where the cracked 

concrete floor was uneven”, Plaintiff does not testify 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 depicts that Plaintiff was

2 Plaintiff’s memorandum in opposition lists a citation after making this assertion, but the citation is 

missing a specific reference and the Court is unable to find support for such a claim in Plaintiff’s deposition.
Case No. 2022-00565JD -4- DECISION

stepping back along the back of the car when he fell.

3

 See Plaintiff’s Memorandum Contra

Defendant’s Summary Judgment Motion, p.4-5; but see McDonald April 14, 2023 Depo., 

p.38-39, Ex.B. 

{¶10} With respect to the condition of the concrete in the area where Plaintiff fell, 

Plaintiff described the area as uneven with a “little hole” although he was unable to provide 

dimensions or additional descriptions. McDonald April 26, 2021 Depo., p. 29-30. Cripe 

observed that the defect was minor. Cripe Depo., p. 80-81. Romans recalled that the 

area where Plaintiff fell was cracked and uneven. Romans Depo., p. 21-22. Cripe and 

Romans also stated that prior to Plaintiff’s injury, there were multiple places in the wash 

bay floor that were either cracked, uneven, raised, lowered, or had “aggregate stones”. 

Cripe Depo., p. 21-22; Romans Depo., p. 14-16.

{¶11} Plaintiff complained to Defendant’s employees about the uneven and 

degraded concrete in the wash bay prior to his injury; however, Plaintiff also 

acknowledges that the concrete, depicted in a photograph at the time of his fall, does not 

appear cracked or crumbling in the specific area where he fell. McDonald April 26, 2021

Depo., p. 30-32, 40; but see McDonald April 14, 2023 Depo., p. 47, Ex.A. Additionally, 

Plaintiff testified that in 2018 another inmate, William Straight, twisted his knee in a similar 

location of the wash bay. McDonald April 26, 2021 Depo., p. 60. However, Cripe claims 

he is not aware of any other inmate ever falling due to the crack in the wash bay area

where Plaintiff fell. Cripe Depo., p. 55. 

{¶12} Notwithstanding, Cripe states that “someone brought up concerns about the 

heighth (sic) of the floor” causing him to review the OSHA regulations and discuss getting 

it fixed with either Romans or Jerry Juniper, an OPI health and safety inspector. Id. at p.

18, 20. However, Cripe did not recall who voiced the concerns or whether this 

conversation took place before or after Plaintiff’s injury. Id. at p. 18-21. Nevertheless, 

when Plaintiff returned to work in June 2019 following his injury, the defective concrete

where he had fallen had been fixed with a concrete patch. McDonald April 26, 2021 

Depo., p. 31; Cripe Depo., p. 83; Romans Depo., p. 83.

3

In his responses to Defendant’s first set of interrogatories, Plaintiff asserts that he stepped into a 

puddle of water, but Plaintiff later deponed that there was no water on the floor at the time he fell. Plaintiff’s 

Exhibit C, McDonald April 14, 2023 Depo., p. 38-39.
Case No. 2022-00565JD -5- DECISION

Law and Analysis

{¶13} Defendant argues that it is entitled to summary judgment because the 

concrete’s condition was an open and obvious hazard and, as such, it owed no duty of 

care to Plaintiff. In response, Plaintiff argues that attendant circumstances exist which

create a genuine dispute regarding the danger posed by the concrete that caused 

Plaintiff’s injury. To prevail on a claim for negligence, Plaintiff must prove by a 

preponderance of the evidence that “(1) the defendant owed the plaintiff a duty, (2) the 

defendant breached that duty, and (3) the breach of the duty proximately caused the 

plaintiff’s injury.” Jenkins v. Ohio Dept. of Rehab & Corr., 10th Dist. Franklin No. 12AP787, 2013-Ohio-5106, ¶ 6. 

{¶14} As it relates to those who are incarcerated, “the state owes a common-law

duty of reasonable care and protection from unreasonable risks.” Id. at ¶ 8. Reasonable

care is “defined as the degree of caution and foresight that an ordinarily prudent person

would employ in similar circumstances.” Id. Exercising reasonable care includes the duty

“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. As it relates to an inmate performing labor for the

state, “the state’s duty must be defined in the context of those additional factors which

characterize the particular work performed.” Id. Although the state’s duty varies with the

particular circumstances, the state “is not an insurer of inmate safety[.]” Id. Indeed,

inmates “are also required to use reasonable care to ensure their own safety.” Jenkins

at ¶ 8.

{¶15} Additionally, absent any attendant circumstances, an owner or occupier

ordinarily owes no duty to warn an invitee of “open and obvious dangers” on the premises

because “the open and obvious nature of the hazard itself serves as a warning” and it is

reasonable to expect that the invitees “entering the premises will discover those dangers 

and take appropriate measures to protect themselves.” Cordell v. Ohio Dept. of Rehab. 

& Corr., 10th Dist. Franklin No. 08AP-749, 2009-Ohio-1555, ¶ 6, 19 (internal citations 

omitted); but see Dean v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 97API12-

1614, 1998 Ohio App. LEXIS 4451, 4-5 (Sept. 24, 1998) (The court declined to apply the 
Case No. 2022-00565JD -6- DECISION

open and obvious doctrine where an inmate-worker was ordered by defendant to perform 

a task where he could not avoid the hazard that caused his fall). To be open and obvious,

the condition must not be “hidden, concealed from view, or undiscoverable upon ordinary

inspection.” Jenkins at ¶ 11. The fact that an injured person failed to observe the

dangerous condition is immaterial. Id. Rather, “the determinative issue is whether the

condition is observable.” Id. 

{¶16} Furthermore, it would be inappropriate to find a hazard open and obvious as 

a matter of law when the record reveals attendant circumstances which raise “a genuine 

issue of material fact as to whether the danger was free from obstruction and readily 

appreciable by an ordinary person.” McConnell v. Margello, 10th Dist. Franklin No. 06AP1235, 2007-Ohio-4860, ¶ 11. Attendant circumstances are those that “divert the attention 

of the individual and significantly enhance the danger of the hazard and thus contribute 

to the fall”, including, but not limited to, “poor lighting, a large volume of pedestrian traffic, 

the visibility of the defect, the overall condition of the walkway, and whether the nature of 

the site is such that one’s attention would be easily distracted.” Jenkins at ¶ 16. 

{¶17} While it is undisputed that both Plaintiff and Defendant were aware of some 

type of defect in the condition of the concrete in the wash bay in the area where Plaintiff 

fell, based upon the evidence presented and viewed in a light most favorable to Plaintiff, 

the Court finds that there is no genuine issue of material fact and that the condition of the 

concrete was observable at the time of Plaintiff’s fall. The deposition testimony of Cripe, 

Romans, and Plaintiff, along with the video footage of the incident, all demonstrate that 

any defect in the concrete was not hidden, concealed from view, or undiscoverable upon 

ordinary inspection. Plaintiff’s failure to observe the condition of the concrete because he 

did not look before stepping backward does not render the hazard unobservable. See

Washington v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 10AP-136, 2010-

Ohio-4323, ¶ 16-19; Jenkins, supra, at ¶ 15; see also Price v. Ohio Dept. of Rehab. & 

Corr., 10th Dist. Franklin No. 14AP-11, 2014-Ohio-3522, ¶ 12-20. There is simply no 

evidence before the Court that the defect in the concrete was hidden or otherwise 

concealed. Accordingly, based on the evidence submitted by the parties, the only 

reasonable conclusion is that any defect in the concrete where Plaintiff fell was not 

hidden, concealed from view, or undiscoverable upon ordinary inspection.
Case No. 2022-00565JD -7- DECISION

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

open-and-obvious doctrine to this case. However, on this record, there is no evidence of 

attendant circumstances that would divert Plaintiff’s attention and significantly enhance

the danger of any hazardous condition in the concrete. Plaintiff argues that he had no 

control over his route and no control over the concrete maintenance of the workplace. 

However, a prisoner’s inability to select the route does not mean the hazard was not an 

open and obvious condition. See, e.g., id. at ¶ 18 (“even if [plaintiff’s] route was 

established by [the institution] and his movements may have been somewhat restricted, 

such does not mean that the hole in the walkway was not an open and obvious 

condition.”). Furthermore, Plaintiff testified that he was aware of the condition of the 

concrete and had previously walked in the area of the deteriorated concrete.

Nevertheless, Plaintiff by his own acknowledgment was walking backward and not paying 

attention to the uneven concrete, which was free from obstruction and readily observable.

In short, there is nothing in the record to create a genuine issue of material fact regarding

whether Plaintiff’s attention was diverted such that the danger of the hazard was 

significantly enhanced. Accordingly, there are no attendant circumstances that prevent 

the application of the open-and-obvious doctrine.

{¶19} Defendant has met its initial burden, pursuant to Civ.R. 56(C), by showing 

that there are no genuine issues of material fact that the defect in the concrete was an 

open and obvious condition. However, Plaintiff has not met his reciprocal burden,

pursuant to Civ.R. 56(E), setting forth specific facts showing that there is a genuine issue 

for trial.

{¶20} Therefore, the Court finds there are no genuine issues of material fact that

the open-and-obvious doctrine precludes Plaintiff’s claim. 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 obvious”

and “the open-and-obvious doctrine acts as a complete bar to any negligence claims”).

Accordingly, Defendant is entitled to judgment as a matter of law and the Court GRANTS 

its motion for summary judgment.

Conclusion
Case No. 2022-00565JD -8- DECISION

{¶21} A non-oral hearing was conducted in this case upon Defendant’s motion for 

summary judgment. For the reasons set forth above, the Court GRANTS Defendant's 

motion for summary judgment. 

LISA L. SADLER

Judge
[Cite as McDonald v. Ohio Dept. of Rehab. & Corr., 2023-Ohio-2842.]

IN THE COURT OF CLAIMS OF OHIO

{¶22} A non-oral hearing was conducted in this case upon Defendant’s motion for 

summary judgment. For the reasons set forth in the decision filed concurrently herewith, 

Defendant’s motion for summary judgment is GRANTED and judgment is rendered in 

favor of Defendant. All previously scheduled events are VACATED. Court costs are 

assessed against Plaintiff. The clerk shall serve upon all parties notice of this judgment 

and its date of entry upon the journal.

LISA L. SADLER

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. 2022-00565JD

Judge Lisa L. Sadler

Magistrate Gary Peterson

JUDGMENT ENTRY