[Cite as Howard v. Ohio Dept. of Rehab. & Corr., 2016-Ohio-684.]

{¶1} Plaintiff brought this action alleging negligence. The issues of liability and 

damages were bifurcated and the case proceeded to trial on the issue of liability. 

{¶2} As an initial matter, at the outset of proceedings, the magistrate GRANTED 

defendant’s October 15, 2015 motion to quash the subpoena issued to Doctor Kidd. 

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

defendant at the Richland Correctional Institution (RCI). This case arises out of an 

incident in which plaintiff slipped and fell on an accumulation of snow and ice on a 

walkway at RCI. 

{¶4} Plaintiff, who is a diabetic, testified that on the morning of March 21, 2014, 

he awoke at approximately 5:30 a.m., and prepared to proceed to inmate health 

services (IHS) to get his blood checked by an Accu-Chek monitor. IHS is located in a 

different building than plaintiff’s cell block. Plaintiff estimated that it takes him about two 

minutes to walk from his cell block to IHS. Plaintiff testified that all inmates are required 

to use one particular walkway to travel between the cell block and IHS. Plaintiff 

believed that the walkway, which was made of concrete, was approximately 12 feet 

wide. 

{¶5} Plaintiff reports that inmates are called by cell block to proceed to IHS. 

Plaintiff testified that after receiving such a call at about 6:50 a.m., he, along with a 

ROBERT K. HOWARD 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF 

REHABILITATION AND CORRECTION 

 Defendant 

Case No. 2014-00950 

Magistrate Gary Peterson 

DECISION OF THE MAGISTRATE 
Case No. 2014-00950 -2- DECISION 

group of inmates from his cell block, proceeded toward IHS on the assigned walkway. 

According to plaintiff, it had been intermittently snowing the preceding week and it had 

snowed either late the night before or early that morning, covering the walkway. Plaintiff 

relates that the walkway between the cell block and IHS had been salted in the days 

preceding March 21, but it had not been salted that morning. Plaintiff testified that due 

to the accumulation of snow over the preceding week, the walkway was more narrow 

than normal. Plaintiff testified that he proceeded approximately 20 yards along the 

walkway from his cell block to IHS when he stepped on a patch of ice, slipped and fell to 

the ground striking his ankle, right hip, back shoulder and head. Plaintiff remained on 

the ground until he was transported to IHS. Plaintiff reports that his ankle was 

“crushed,” requiring steel plates, bolts and rods to surgically repair the damage. 

{¶6} Inmate James Day, who is a diabetic, testified that on March 21, 2014, at 

6:45 a.m., he was proceeding to IHS. Day reported that plaintiff was walking to IHS with 

the aid of a cane and had his arm in a sling. Day, who has been at RCI since 2005, 

testified that plaintiff slipped on a “bad spot” on the walkway where “black ice” had 

formed. According to Day, the walkway had not been salted that morning. Day testified 

that the spot where plaintiff fell has been a “bad spot” the entire time that he has been at 

RCI and that he has also previously fallen in the same spot. Day described the spot as 

a depression in the ground. According to Day, the area where plaintiff fell is “swampy” 

during the wintertime. 

{¶7} Kerry Cramer, the maintenance superintendent at RCI, testified that he has 

worked at RCI the entire time it has been open. Cramer testified that he supervises a 

staff of 12 employees within his department and that the maintenance staff is 

responsible for all the maintenance in the institution. Such maintenance includes 

plumbing, carpentry, welding, snow removal, general grounds keeping, and grass 

mowing. Cramer testified that in March 2014, RCI had a policy in place regarding snow 

and ice removal. Cramer explained that pursuant to the policy, during the hours of 
Case No. 2014-00950 -3- DECISION 

7:00 a.m. and 3:00 p.m., the maintenance department is responsible for snow and ice 

removal on the walkways. Cramer reported that rock salt is used on asphalt surfaces 

and calcium chloride is used on concrete walkways. Cramer testified that only 

defendant’s maintenance staff employees are allowed to spread rock salt or calcium 

chloride. According to Cramer, after 3:00 p.m. and before 7:00 a.m., the captain’s office 

makes the decision whether to call maintenance staff to come in and perform snow and 

ice removal. Cramer explained that such a call typically occurs when there has been 

snowfall exceeding one to two inches. Cramer testified that no one was directed to 

perform any snow or ice removal prior to 7:00 a.m. on March 21, 2014. 

{¶8} In order for plaintiff to prevail upon his claim of negligence, he must prove by 

a preponderance of the evidence that defendant owed him a duty, that defendant’s acts 

or omissions resulted in a breach of that duty, and that the breach proximately caused 

him injury. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, ¶ 8, 

citing Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77 (1984). 

{¶9} In general, a possessor of land has no duty to protect an invitee from natural 

accumulations of ice and snow on his property. Brinkman v. Ross, 68 Ohio St.3d 82, 83 

(1993). Implicit in this rule is the rationale that such accumulations are so open and 

obvious that invitees can be expected to protect themselves from the danger they 

present. Dean v. Dept. of Rehab. & Corr., 10th Dist. Franklin No. 97API12-1614, 1998 

Ohio App. LEXIS 4451 (Sept. 24, 1998). Essentially, “an invitee who chooses to 

traverse a natural accumulation of ice or snow is generally presumed to have assumed 

the risk of his or her action to the degree that no duty exists on the premises owner.” Id. 

However, inmates incarcerated in a state penal institution are not afforded the status of 

a traditional “invitee” and are not always free, as an invitee would be, to refrain from 

traversing the accumulation of ice and snow and so they cannot be said to assume the 

risk of doing so. Id; see also May v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin 

No. 00AP-1327, 2001 Ohio App. LEXIS 2859 (recognizing that an inmate who slipped 
Case No. 2014-00950 -4- DECISION 

and fell on a natural accumulation of ice or snow had no opportunity to refrain from 

using the assigned path); Gerald Fields v. Ohio Dept. of Rehab. & Corr, Ct. of Cl. No. 

2010-12281 (June 7, 2012). Rather, in the context of the custodial relationship between 

the state and its inmates, the state has a duty to exercise reasonable care to prevent 

prisoners in its custody from being injured by dangerous conditions about which the 

state knows or should know. Moore v. Ohio Dept. of Rehab. & Corr., 89 Ohio App.3d 

107, 112 (10th Dist.1993); McCoy v. Engle, 42 Ohio App.3d 204, 207-208 (10th 

Dist.1987); Dean, supra. 

{¶10} With regard to notice, “[n]otice may be actual or constructive, the distinction 

being the manner in which the notice is obtained rather than the amount of information 

obtained.” Jenkins v. Ohio Dept. of Rehab & Corr., 10th Dist. Franklin No. 12AP-787, 

2013-Ohio-5106, ¶ 12; Watson v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 

11AP-606, 2012-Ohio-1017, ¶ 9. “Whenever the trier of fact is entitled to find from 

competent evidence that information was personally communicated to or received by 

the party, the notice is actual. Constructive notice is that notice which the law regards 

as sufficient to give notice and is regarded as a substitute for actual notice.” Hughes v. 

Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 09AP-1052, 2010-Ohio-4736, ¶ 

14. “To support an inference of constructive notice, a plaintiff may submit evidence that 

the condition existed for such a length of time that the owner or its agent’s failure to 

warn against it or remove it resulted from their failure to exercise ordinary care.” 

Jenkins at ¶ 12. 

{¶11} The evidence adduced at trial establishes that plaintiff suffers from 

diabetes. Additionally, on March 21, 2014, plaintiff ambulated with the aid of a cane and 

had his arm in a sling. The evidence establishes that it was necessary for plaintiff to 

visit IHS at approximately 6:45 a.m., to get his blood checked with an Accu-Chek 

monitor. The magistrate finds that when plaintiff exited his cell block to visit IHS, there 

was a small accumulation of snow on the walkway that he was required to use. 
Case No. 2014-00950 -5- DECISION 

Additionally, the magistrate finds that approximately 20 yards away from the cell block, 

plaintiff encountered a depression in the walkway that was filled or covered with ice. 

The walkway had not been treated for snow and ice removal that morning. In light of 

both the accumulated snowfall and the ice in the depression in the walkway, the 

magistrate finds that traversing the ice-covered depression in the walkway posed an 

unreasonable risk of harm to plaintiff. 

{¶12} Plaintiff did not present any evidence that defendant had actual notice of 

the dangerous condition of the walkway. However, the magistrate finds that defendant 

had constructive notice of the dangerous condition of the walkway. Indeed, it is 

uncontroverted that there is a depression in the walkway where plaintiff fell. 

Furthermore, such a depression has existed in the walkway since at least 2005. The 

magistrate finds that inmate Day credibly testified that such a “bad spot” has existed the 

entire time he has been at RCI. Moreover, inmate Day described the area as “swampy” 

during the wintertime. 

{¶13} The magistrate finds that inasmuch as defendant should have been aware 

of the risk of harm to plaintiff but failed to take reasonable care to prevent him from 

becoming injured by the dangerous condition of the walkway, defendant breached the 

duty of reasonable care it owed to plaintiff. The magistrate further finds that this breach 

of duty proximately caused plaintiff to slip and fall on the ice-filled depression in the 

walkway and suffer bodily injury. 

{¶14} For the foregoing reasons, the magistrate finds that plaintiff has proven his 

claim of negligence by a preponderance of the evidence. Accordingly, it is 

recommended that judgment be rendered in favor of plaintiff. 

{¶15} 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 
Case No. 2014-00950 -6- DECISION 

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).

 GARY PETERSON 

 Magistrate 

cc: 

Robert K. Howard, #A235-537 

Richland Correctional Institution 

P.O. Box 8107 

Mansfield, Ohio 44901 

Timothy M. Miller 

Assistant Attorney General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

Filed January 14, 2016 

Sent to S.C. Reporter 2/25/16