[Cite as Price v. Dept. of Rehab & Corr., 2014-Ohio-3522.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Raymond Price, : 

 Plaintiff-Appellant, : 

 No. 14AP-11 

v. : (Ct. of Cl. No. 2012-05959) 

Department of Rehabilitation and : (REGULAR CALENDAR) 

Correction, 

 : 

 Defendant-Appellee. 

 : 

 

D E C I S I O N 

Rendered on August 14, 2014 

 

Swope and Swope and Richard F. Swope, for appellant. 

Michael DeWine, Attorney General, Stacy Hannan and 

Frank S. Carson, for appellee. 

 

APPEAL from the Court of Claims of Ohio 

DORRIAN, J. 

{¶ 1} Plaintiff-appellant, Raymond Price ("appellant"), appeals the December 4, 

2013 judgment of the Court of Claims of Ohio granting summary judgment in favor of 

defendant-appellee, Ohio Department of Rehabilitation and Correction ("ODRC"). For 

the reasons that follow, we affirm the judgment of the trial court. 

I. Facts and Procedural History 

{¶ 2} Appellant, at all times relevant to the instant matter, was an inmate in the 

custody of ODRC at the Hocking Correctional Facility. On July 2, 2012, while walking to 

the restroom, appellant tripped over a large chair and fell. 
No. 14AP-11 2 

{¶ 3} On August 3, 2012, appellant, proceeding pro se, filed a complaint in the 

trial court, alleging ODRC negligently positioned the chair so as to create a hazard. On 

November 9, 2012, appellant, with the representation of counsel, filed an amended 

complaint. 

{¶ 4} On October 10, 2013, ODRC filed a motion for summary judgment pursuant 

to Civ.R. 56. After being fully briefed by the parties, the trial court granted ODRC's motion 

for summary judgment on December 4, 2013. 

II. Assignments of Error 

{¶ 5} Appellant appeals assigning the following error for our review: 

THE TRIAL COURT ERRED IN GRANTING DEFENDANTAPPELLEE'S MOTION FOR SUMMARY JUDGMENT. 

{¶ 6} An appellate court reviews summary judgment under a de novo standard. 

Reed v. Davis, 10th Dist. No. 13AP-15, 2013-Ohio-3742, ¶ 9. Summary judgment is proper 

only when the parties moving for summary judgment demonstrate: (1) no genuine issue of 

material fact exists; (2) the moving parties are entitled to judgment as a matter of law; 

and (3) reasonable minds viewing the evidence most strongly in favor of the nonmoving 

party could reach but one conclusion, and that conclusion is adverse to the nonmoving 

party. Civ.R. 56; Todd Dev. Co., Inc. v. Morgan, 116 Ohio St.3d 461, 2008-Ohio-87, ¶ 11. 

{¶ 7} The party moving for summary judgment bears the initial burden of 

informing the trial court of the basis for the motion and identifying those portions of the 

record demonstrating the absence of a genuine issue of material fact by pointing to 

specific evidence of the type listed in Civ.R. 56(C). Todd at ¶ 12, citing Dresher v. Burt, 75 

Ohio St.3d 280, 293 (1996). If the moving party fails to satisfy its initial burden, the court 

must deny the motion for summary judgment; however, if the moving party satisfies its 

initial burden, summary judgment is appropriate unless the nonmoving party responds, 

by affidavit or as otherwise provided under Civ.R. 56, with specific facts demonstrating a 

genuine issue exists for trial. Id.; Hall v. Ohio State Univ. College of Humanities, 10th 

Dist. No. 11AP-1068, 2012-Ohio-5036, ¶ 12, citing Henkle v. Henkle, 75 Ohio App.3d 732, 

735 (12th Dist.1991). 

{¶ 8} " 'Trial courts should award summary judgment with caution, being careful 

to resolve doubts and construe evidence in favor of the nonmoving party.' " Vossman v. 
No. 14AP-11 3 

AirNet Sys., 10th Dist. No. 12AP-971, 2013-Ohio-4675, ¶ 13, quoting Welco Industries, 

Inc. v. Applied Cos., 67 Ohio St.3d 344, 346 (1993), citing Murphy v. Reynoldsburg, 65 

Ohio St.3d 356 (1992). " 'Even the inferences to be drawn from the underlying facts 

contained in the evidentiary materials, such as affidavits and depositions, must be 

construed in a light most favorable to the party opposing the motion.' " Vossman at ¶ 13, 

quoting Hannah v. Dayton Power & Light Co., 82 Ohio St.3d 482, 485 (1998), citing 

Turner v. Turner, 67 Ohio St.3d 337, 341 (1993). 

{¶ 9} "To prevail in a negligence action, the plaintiff must show (1) the existence 

of a duty, (2) a breach of that duty, and (3) an injury proximately resulting from the 

breach." Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, ¶ 21. While the state is 

not an insurer of the safety of inmates, the state generally owes a duty of reasonable care 

and protection from harm to inmates under its custody. Williams v. Ohio Dept. of Rehab. 

& Corr., 10th Dist. No. 04AP-1193, 2005-Ohio-2669, ¶ 8, citing Briscoe v. Ohio Dept. of 

Rehab. & Corr., 10th Dist. No. 02AP-1109, 2003-Ohio-3533, ¶ 15. A plaintiff is also 

required to use reasonable care to ensure his or her own safety. Briscoe at ¶ 20. 

{¶ 10} The open-and-obvious doctrine "eliminates the common law duty of 

ordinary care to maintain the premises in a reasonably safe condition and to warn invitees 

of latent or hidden dangers that a premises owner owes to invitees." Mann v. Northgate 

Investors L.L.C., 10th Dist. No. 11AP-684, 2012-Ohio-2871, ¶ 9, affirmed 138 Ohio St.3d 

175, 2014-Ohio-455. The rationale underpinning the open-and-obvious doctrine is that 

"the open and obvious nature of the hazard itself serves as a warning, so that owners 

reasonably may expect their invitees to discover the hazard and take appropriate 

measures to protect themselves against it." Id. "The 'open and obvious doctrine,' where 

warranted, may be applied in actions against the ODRC with the result that ODRC would 

owe no duty to an injured inmate." Williams at ¶ 8. 

{¶ 11} "If the record reveals no genuine issue of material fact as to whether the 

hazard was free from obstruction and readily appreciated by an ordinary person, the open 

and obvious nature of the danger may appropriately be determined as a matter of law." 

Mayle v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 09AP-541, 2010-Ohio-2774, ¶ 19. 

However, a question remains for trial "if reasonable minds could differ about whether the 

hazard was free from obstruction and readily appreciated by an ordinary person." Id. See 
No. 14AP-11 4 

also Strother v. Hutchinson, 67 Ohio St.2d 282, 286 ("To entitle the plaintiff in a personal 

injury suit to have his case submitted to a jury, it is necessary that the plaintiff produce 

some evidence upon every element essential to establish liability, or produce evidence of a 

fact upon which a reasonable inference may be predicated to support such element."). 

{¶ 12} Here, the parties do not dispute that appellant tripped and fell over a chair 

that was moved by an employee of ODRC to a position on the route from the inmate's 

common area to the restroom, which appellant was attempting to reach. Appellant 

acknowledges that, on the same day prior to the incident in question, he was aware of the 

chair and maneuvered around it. Appellant, however, contends that attendant 

circumstances existed at the time of the incident, rendering the open-and-obvious 

doctrine inapplicable. 

{¶ 13} Attendant circumstances can serve as an exception to the open-and-obvious 

doctrine where the circumstances are " 'so abnormal that [they] unreasonably increase[] 

the normal risk of a harmful result or reduce[] the degree of care an ordinary person 

would exercise.' " Mayle at ¶ 20, quoting Cummin v. Image Mart, Inc., 10th Dist. No. 

03AP-1284, 2004-Ohio-2840, ¶ 10. "The attendant circumstances must, taken together, 

divert the attention of the pedestrian, significantly enhance the danger of the defect, and 

contribute to the fall. * * * Both circumstances contributing to and those reducing the risk 

of the defect must be considered." (Citations omitted.) Mayle at ¶ 20. "Although not an 

exhaustive list, attendant circumstances can include the following: 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." Id. at ¶ 22. 

{¶ 14} Appellant asserts that the following attendant circumstances were present: 

dim lighting caused by a power outage following a storm, crowding in the aisle near the 

restroom due to others coming and going from the restroom, and the configuration of the 

chair which obscured the wheels on its legs. Appellant also argues that, at the time of the 

incident, he was trying to reach the restroom with haste because he was experiencing 

incontinence as a result of a bladder condition. 

{¶ 15} First, we examine appellant's contention that the placement and 

configuration of the chair contributed to the hazard. Testimony and exhibits reflect that 
No. 14AP-11 5 

the chair had several legs situated near the ground with wheels attached to the bottom of 

the legs. Appellant does not contend that the chair was in any way defective, and it cannot 

be said that the chair was configured in such a way as to obscure its presence or enhance 

its inherent danger. See Cummin at ¶ 10 ("The existence and placement of the chair was 

not so abnormal that it unreasonably increased the normal risk of a harmful result or 

reduced the degree of care an ordinary person would exercise."). Absent circumstances 

increasing the inherent danger, the existence of the chair in this setting is "no different 

than the existence of any other stationary object that may be encountered and must be 

avoided in the normal course of daily life." Id. 

{¶ 16} Further, appellant, along with other inmates, testified that he was aware of 

the chair's position that day prior to the time of the incident. Indeed, appellant saw the 

chair being repositioned and had already maneuvered around the chair without incident 

once that morning before his fall. As a result, appellant, exercising reasonable care, 

should have been familiar with the position of the chair and taken steps to ensure his 

safety while passing it. See Mayle at ¶ 24; Bonner v. Glassman, 8th Dist. No. 96924, 

2012-Ohio-86, ¶ 31 (attendant-circumstances exception does not apply where 

"circumstances should have led the plaintiff to exercise heightened care for his personal 

safety" (emphasis sic)). 

{¶ 17} Regarding the lighting of the area in which the incident occurred, other 

inmates testified that, although there was no electric lighting due to the power outage, 

there was sufficient natural light to play cards, see the chair and podium on the path to 

the restroom, and even to see appellant's feet as he tripped over the chair. Appellant 

admitted that some natural light from the windows illuminated the room and that it was 

customary during the summer for the guards to turn off some lighting in the area since 

natural light was sufficient. Even if the lighting was dimmer than normal, "darkness is 

always a warning of danger, and may not be disregarded." McCoy v. Kroger Co., 10th 

Dist. No. 05AP-7, 2005-Ohio-6965, ¶ 14, citing Jeswald v. Hutt, 15 Ohio St.2d 224, 227 

(1968). 

{¶ 18} With regard to crowding on the path to the restroom, appellant testified 

that, at the time he was attempting to reach the restroom, he was aware of four or five 

inmates in front of him moving toward the restroom and some inmates moving in the 
No. 14AP-11 6 

opposite direction. Appellant suggests that this crowding and the narrowness of the space 

made it difficult to move past the chair and contributed to the danger of the defect. 

However, these conditions were not abnormal in their occurrence as other inmates 

testified that the space was small and regularly crowded. 

{¶ 19} The presence of a crowd in and of itself does not constitute an attendant 

circumstance so as to preclude the open-and-obvious doctrine. Vanderbilt v. Pier 27, LLC, 

12th Dist. No. CA2013-02-029, 2013-Ohio-5205, ¶ 20 (crowd of persons around a fire pit 

outside a restaurant did not constitute an attendant circumstance). Given that appellant 

was aware of the confines of the space, having successfully traversed the area to reach the 

restroom earlier on the same day, we cannot find that the foot traffic and dimensions of 

the space created an attendant circumstance. McQueen v. Kings Island, 12th Dist. No. 

CA2011-11-117, 2012-Ohio-3539, ¶ 21 (rejecting plaintiff's argument that the presence of a 

crowd was a distraction qualifying as an attendant circumstance because plaintiff was not 

facing unique circumstances or circumstances of which she was unaware given prior 

experience with the area). 

{¶ 20} Finally, we address appellant's contention that his bladder condition caused 

a distraction that qualifies as an attendant circumstance. While appellant's condition is 

not in dispute, it is an internal, subjective condition, rather than an external, objective 

circumstance. See Jenkins v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 12AP-787, 

2013-Ohio-5106, ¶ 18 ("[A]n individual's particular sensibilities do not play a role in 

determining whether attendant circumstances make the individual unable to appreciate 

the danger."); Huey v. Neal, 152 Ohio App.3d 146, 2003-Ohio-391, ¶ 13 (3d Dist.) (finding 

that "the fact that [the plaintiff] was in a hurry to get home is not an attendant 

circumstance"). Although appellant was distracted by his own urgency, this would not 

reduce the degree of care that an ordinary person would exercise. 

{¶ 21} Viewing the evidence most strongly in favor of appellant, reasonable minds 

could only conclude that the placement of the chair was an open-and-obvious hazard in 

that it was both observable and appreciable by an ordinary person, and such person 

would be expected to discover the hazard and take measures to protect himself or herself. 

See Mayle at ¶ 30. The circumstances present at the time of the incident, taken together, 

were not so abnormal as to divert the attention of appellant, significantly enhance the 
No. 14AP-11 7 

danger of the hazard, and contribute to the fall. See id. at ¶ 20. Therefore, we find that the 

evidence does not support application of the attendant-circumstances exception to the 

open-and-obvious doctrine and, as a result, appellant cannot establish that ODRC owed a 

duty to warn him regarding the chair over which he tripped. See Briscoe at ¶ 20; Williams

at ¶ 15-16. 

{¶ 22} Because appellant failed to demonstrate that a genuine issue of material fact 

remained for trial, the trial court properly granted ODRC's motion for summary 

judgment. Mayle at ¶ 19; Strother at 286. Accordingly, appellant's assignment of error is 

overruled. 

III. Disposition 

{¶ 23} Having overruled appellant's sole assignment of error, we affirm the 

judgment of the Court of Claims of Ohio. 

Judgment affirmed. 

KLATT and LUPER SCHUSTER, JJ., concur. 

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