[Cite as Harris v. Dept. of Rehab. & Corr., 2018-Ohio-2276.]

{¶1} Plaintiff, an inmate in the custody and control of defendant, brought this 

action for negligence arising out of injuries he sustained in an accident that occurred 

while he worked at his job in the central food service area of the Pickaway Correctional 

Institution (PCI) on May 2, 2016. The issues of liability and damages were bifurcated 

and the case proceeded to trial on the issue of liability. 

{¶2} At trial, plaintiff testified that he had been assigned to work in the central 

food service area for about one year leading up to the accident. Plaintiff related that he 

primarily served at the direction of the Aramark Corporation personnel who operate the 

food service at PCI and that they had him perform various duties around the kitchen, 

snack room, and dining hall. On the day of the accident, plaintiff stated, he was tasked 

to dispose of a large quantity of frozen French toast. Plaintiff stated that to do so 

required moving the food from the freezer to the food waste pulper, a distance of about 

25 yards. Plaintiff explained that the food had been stored on sheet pans which he slid 

onto a bun rack that was a little over six feet tall and about two feet wide. The rack had 

wheels that swiveled, plaintiff stated, and once it was loaded he pushed it toward the 

pulper. Plaintiff recounted using the rack to a limited extent in the past, but stated that 

he had never used a rack to move food more than a very short distance and had never 

taken food to the pulper. Plaintiff, who gave his height as 6’1”, testified that he could not 

see around the rack when pushing it. 

HERMAN HARRIS, JR 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF 

REHABILITATION AND CORRECTION 

 Defendant 

Case No. 2016-00883JD 

Magistrate Robert Van Schoyck 

DECISION OF THE MAGISTRATE 
Case No. 2016-00883JD -2- DECISION 

{¶3} After plaintiff proceeded through a gate and turned into the area where the 

pulper was situated, one of the front wheels of the rack became caught atop a floor 

drain cover that was recessed below the surrounding surface of the floor, he stated. 

According to plaintiff, the rack “jumped” and the sheet pans began to slide off. Plaintiff 

testified that as he tried to block the pans from sliding off, the entire rack tipped over 

and he fell, with the rack and sheet pans landing on top of him. Describing the floor 

drain in which the wheel had become lodged, plaintiff estimated that the drain cover was 

about 21⁄2 inches below the surface of the surrounding floor, although he acknowledged 

stating in his deposition that the depth was probably about half an inch. Plaintiff testified 

that a photograph admitted into evidence as Plaintiff’s Exhibit 4 appears to depict the 

drain and its partially-cracked drain cover, but he stated that at the time of the accident 

the drain cover was recessed deeper than it is in the photograph and it had more of a 

grimy appearance. Plaintiff was unsure whether a photograph admitted into evidence 

as Defendant’s Exhibit A shows the same drain. According to plaintiff, there were other 

inmates around when the accident happened, but he was unable to recall who they 

were. 

{¶4} Plaintiff testified that when he started to get up from the floor, Corrections 

Officer Rhett Butler entered the room and he told Butler what happened. Plaintiff 

remembered Butler asking if he was okay and if he needed to go to the infirmary. 

Plaintiff, who recounted significant pain in his side, lower back, neck and head, stated 

that after waiting for an institutional headcount to finish he went to the infirmary and was 

seen by a nurse. Plaintiff testified that he explained to the nurse what happened and 

what his symptoms were, and the nurse gave him some pain-relief medication and 

advised that he would likely have some temporary soreness. Plaintiff’s statements to 

the nurse, describing the cause of his injuries, were recorded in a Medical Exam Report. 

(Plaintiff’s Exhibit 7.) Plaintiff testified that after about an hour in the infirmary he 

returned to the central food service area and updated Butler, who had him sign an 
Case No. 2016-00883JD -3- DECISION 

Inmate Accident Report that made no mention of a wheel getting caught in the drain, but 

stated instead that he “slipped pulling the rack to the pulper.” (Plaintiff’s Exhibit 1.) 

According to plaintiff, he never told Butler that he slipped or that the floor was greasy, 

and, because he assumed that Butler accurately reported how the accident happened, 

he paid little attention to the report when signing it, which occurred sometime between 

1:30 p.m. and the end of the shift at 2:00 p.m. 

{¶5} As plaintiff explained, he felt persistent pain over the following days and was 

eventually diagnosed with broken ribs. Plaintiff testified about some issues he had with 

his medical care and how he reached out to the Institutional Inspector for assistance. 

Plaintiff also testified about two Informal Complaint Resolution (ICR) forms that he 

submitted to Maintenance Superintendent Larry Parker regarding the drain. (Plaintiff’s 

Exhibits 8, 9.) Plaintiff explained that after he sent the first ICR it became apparent that 

the maintenance department misidentified which drain was at issue, so he filed the 

second ICR and thereafter Parker and another maintenance superintendent came to the 

kitchen and had him identify the drain, which still had the same cover. 

{¶6} Corrections Officer Rhett Butler testified that at the time of the accident he 

served as a relief officer throughout PCI, and on that particular day he worked the first 

shift (6:00 a.m. to 2:00 p.m.) in the back dock of the central food service area, a post 

that he manned about two or three times a month. When the accident happened, Butler 

went on, he was filling out a logbook in an adjacent office and heard a clatter. Butler 

related that within a few seconds he exited the office and saw plaintiff coming toward 

him, obviously in discomfort. Butler recalled that the rack was turned on its side, resting 

on the floor between the pulper and the drain, but not over the drain. Butler explained 

that the rack had swiveling wheels and was commonly used in the kitchen for moving 

food around, and he estimated that it was about six feet tall and one to one-and-a-half 

feet wide. 
Case No. 2016-00883JD -4- DECISION 

{¶7} According to Butler, plaintiff told him that the floor was slick and that he 

slipped and fell, and plaintiff complained that his chest hurt. Butler stated that he 

phoned the infirmary and arranged to send plaintiff there to be examined. By Butler’s 

account, after plaintiff returned from the infirmary and gave him an update on his 

condition, Butler called his shift supervisor to apprise him of what had happened and 

then got on a computer and pulled up the Inmate Accident Report form which he filled 

out in plaintiff’s presence. (Plaintiff’s Exhibit 1.) Butler stated that since he did not 

witness the accident, apart from the noise he heard and his observations upon entering 

the room, his only source of information was plaintiff. It was Butler’s testimony that 

plaintiff said nothing to him at the time about the drain, nor did Butler have any specific 

recollection about the condition of the drain before the accident. Butler acknowledged 

though that the report made no mention of the floor being slick like he recalled plaintiff 

telling him. Butler testified that once the report was completed, he showed it to plaintiff, 

plaintiff said it looked good, and he printed a copy which they both signed. 

{¶8} Maintenance Superintendent Larry Parker provided testimony about 

receiving and responding to plaintiff’s ICRs regarding the drain. (Plaintiff’s Exhibits 8, 

9.) Parker also testified, to the limited extent that it would pertain to the condition of the 

drain at the time of the accident, about two work orders the maintenance department 

received after the accident. (Plaintiff’s Exhibits 2, 3.) However, while Parker testified 

that he went and looked at the drain at some point, he could not recall when that 

happened nor what the drain looked like at the time. Parker had no personal knowledge 

of how or when the photographs entered into evidence as Plaintiff’s Exhibit 4 and 

Defendant’s Exhibit A were created nor whether the drain looked that way when he 

went to see it, but he stated that the drain looks different now than it does in the 

photographs. 

{¶9} When asked if the maintenance department conducts regular inspections of 

the kitchen, Parker’s response was that there is an employee of the maintenance 
Case No. 2016-00883JD -5- DECISION 

department assigned to the kitchen. Questioned further about whether anyone is 

assigned to conduct a safety inspection or walk-through on any kind of regular basis, in 

similar fashion Parker stated that there is a maintenance department employee in the 

kitchen every day, apparently making repairs and otherwise responding to work orders. 

In the same vein, the question was put to Parker whether the maintenance department 

has any inspection reports or other documentary evidence on file that would show that 

the premises were being inspected, and Parker replied that there is a database of all the 

work orders that have been submitted and he also mentioned there being some kind of 

general preventive maintenance program but did not explain what it entails or indicate 

that it had anything to do with inspection or upkeep of the drain. 

{¶10} Institutional Inspector Mary Lawrence testified that as part her job duties 

she investigates and responds to inmate complaints and grievances. Lawrence talked 

about investigating an ICR that she received from plaintiff pertaining to his medical care 

after the accident. Lawrence explained that when addressing the ICR her focus was not 

the manner of injury but rather plaintiff’s subsequent medical issues. Lawrence stated, 

though, that she did view the drain at some point, but she could not remember exactly 

when. According to Lawrence, the drain depicted in Plaintiff’s Exhibit 4 looks kind of like 

what she saw. 

{¶11} “In a claim predicated on negligence, plaintiff bears the burden of proving 

by a preponderance of the evidence that defendant breached a duty owed to him and 

that this breach proximately caused the injury.” Woods v. Ohio Dept. of Rehab. & Corr., 

130 Ohio App.3d 742, 744, 721 N.E.2d 143 (10th Dist.1998). “Typically under Ohio law, 

premises liability is dependent upon the injured person’s status as an invitee, licensee, 

or a trespasser. * * * However, with respect to custodial relationships 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.” Cordell v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 08AP-
Case No. 2016-00883JD -6- DECISION 

749, 2009-Ohio-1555, ¶ 6; see also Moore v. Ohio Dept. of Rehab. & Corr., 89 Ohio 

App.3d 107, 112, 623 N.E.2d 1214 (10th Dist.1993). 

{¶12} “The state’s duty of reasonable care does not render it an insurer of inmate 

safety.” Allen v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 14AP-619, 2015-

Ohio-383, ¶ 17. “Reasonable care is that degree of caution and foresight an ordinarily 

prudent person would employ in similar circumstances, and includes the duty to 

exercise reasonable care 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. “Where an 

inmate also performs labor for the state, the state’s duty must be defined in the context 

of those additional factors which characterize the particular work performed.” Barnett v. 

Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 09AP-1186, 2010-Ohio-4737, 

¶ 18. 

{¶13} Upon consideration of the evidence presented at trial, the magistrate finds 

the following. Plaintiff was assigned to an inmate work detail in the central food service 

area of PCI. As part of his work responsibilities, on May 2, 2016, plaintiff was assigned 

the task of moving a quantity of frozen food from a freezer to a food waste pulper for 

disposal. Plaintiff loaded several sheet pans full of frozen food onto the rack which he 

then pushed toward the pulper. The rack partially obstructed plaintiff’s view and plaintiff 

had never before taken food to the pulper. As plaintiff approached the pulper, one of 

the front wheels of the rack rolled down into a void that existed where the cover of a 

floor drain was recessed below the surface of the surrounding floor. The wheel got 

caught in the void and the rack tipped such that the sheet pans started sliding off. 

Plaintiff moved to block the sheet pans from sliding completely off but the entire rack 

tipped over. Plaintiff fell to the ground and was struck by the falling sheet pans and 

rack, resulting in injuries. 
Case No. 2016-00883JD -7- DECISION 

{¶14} The depth to which the drain cover was recessed below the surface of the 

surrounding floor was not precisely established. Defendant, relying upon the so-called 

“two-inch rule,” argues that the defect was an insubstantial one for which there can be 

no liability. See Dubenion v. DDR Corp., 10th Dist. Franklin No. 15AP-915, 2016-Ohio8128, ¶ 15, quoting Cash v. Cincinnati, 66 Ohio St.2d 319, 323, 421 N.E.2d 1275 (1981) 

(“Ohio law has remained steadfast over the years, a claimed defect in sidewalks that is 

two inches or less is an ‘insignificant, trivial and unsubstantial condition, which is not 

actionable as a matter of law.’”); see also Jenkins v. Ohio Dept. of Rehab. & Corr., 10th 

Dist. Franklin No. 12AP-787, 2013-Ohio-5106, ¶ 15 (“the two-inch rule not only applies 

to walkways in municipalities but has also been applied to ODRC”). It is more probable 

than not that the difference in elevation was closer to the half-inch estimate plaintiff 

gave at his deposition rather than the 21⁄2-inch estimate he gave at trial. As for the 

photographs entered into evidence, plaintiff identified the drain cover in Plaintiff’s 

Exhibit 4 by the partial crack in its surface that also seems to be visible in Defendant’s 

Exhibit A, but it is unknown whether the photographs otherwise depict the drain and 

surrounding floor as they appeared at the time of the accident, and even if they do it is 

difficult to discern the depth of the drain cover. 

{¶15} Although the difference in elevation between the drain cover and the 

surrounding floor was probably less than two inches it is apparent that the difference 

was significant enough to enable one of the wheels to roll down onto the drain cover 

and became lodged in the void, causing the contents of the rack to shift and the rack to 

tip over. When this happened, plaintiff was performing labor for the state. In the food 

service area where he and other inmates worked, rolling racks like the one involved 

here were commonly used. It was foreseeable that significant unevenness or voids in 

the floor would cause a rack, especially one as tall and narrow as the one involved here, 

or its contents to fall and injure someone. The difference in elevation between the drain 

cover and the surrounding floor was significant enough that a reasonably prudent 
Case No. 2016-00883JD -8- DECISION 

person would have anticipated that an injury was likely to result if an inmate pushed a 

loaded rack over the drain and one of the wheels got caught in the void. Thus, in the 

context of the factors that characterized the work being performed, the unevenness 

between the drain cover and the surrounding floor was such that it posed an 

unreasonable danger. 

{¶16} To establish that defendant breached its duty of reasonable care, however, 

plaintiff had the burden “to prove that ODRC or its agents created the hazard or had 

actual or constructive notice of the hazard and failed to remedy it.” Hill v. Ohio Dept. of 

Rehab. & Corr., 10th Dist. Franklin No. 12AP-265, 2012-Ohio-5304, ¶ 11. No evidence 

was presented in this case to demonstrate that defendant created the hazard; it would 

be speculative to conclude that the condition of the floor drain resulted from defendant 

or its agents installing it that way as opposed to, for example, some destructive force, 

deteriorative process, or material failure. There was also no evidence that defendant 

had actual notice of the hazard. It was not shown that anyone had reported a problem 

with the drain, nor was there evidence of any prior accidents involving the drain. (It is 

noted that one of the work orders at least arguably refers to a drain having been 

involved in multiple accidents, but the work order was not admitted for that purpose and 

even if it had been it does not state that any accident occurred before plaintiff’s, there 

was no supporting testimony, and, from plaintiff’s account of the maintenance 

department’s actions, it may pertain to a different drain. Plaintiff’s Exhibit 3.) 

{¶17} “If * * * a plaintiff cannot establish that the owner or its agents created the 

hazard or possessed actual knowledge of the hazard, evidence showing the length of 

time during which the hazard existed is necessary to support an inference that the 

owner had constructive knowledge of the hazard such that the failure to remove or warn 

of the hazard was a breach of ordinary care.” Price v. United Dairy Farmers, Inc., 10th 

Dist. Franklin No. 04AP-83, 2004-Ohio-3392, ¶ 7; see also Jenkins at ¶ 12. “An owner 

is charged with constructive knowledge of defects that would have been revealed by a 
Case No. 2016-00883JD -9- DECISION 

reasonable inspection of the premises.” Stenger v. Timmons, 10th Dist. Franklin No. 

10AP-528, 2011-Ohio-1257, ¶ 7. 

{¶18} Significantly, plaintiff failed to present credible evidence to show that the 

hazard had existed for any length of time. No one testified as to how long there had 

been this difference between the elevation of the drain cover and the surrounding floor. 

Plaintiff had worked in the central food service area for one year by the time he was 

injured yet gave no indication in his testimony that he had seen the defective state of 

the drain at any time before the accident. Butler also worked in the area regularly and 

had no recollection of the defect. Plaintiff asserted that the photographs show 

deterioration in a ring of concrete or grout around the drain and that this deterioration 

must have occurred far enough in the past that defendant should have known about it. 

As previously stated, however, it was not established that the photographs show what 

the drain looked like at the time of the accident, and indeed plaintiff said there was a 

difference in that the drain cover was recessed more deeply at that time. Even if it were 

assumed, for argument’s sake, that the photographs do depict what the drain looked 

like at the time of the accident, one can only conjecture how long it had been in that 

condition. And, regardless of how long there had been some deterioration in the narrow 

ring of concrete or grout around the drain, the most significant aspect of the hazard was 

the depth of the drain cover, and the record is devoid of facts as to the length of time it 

had been in that state. 

{¶19} “A plaintiff cannot prove constructive notice of a hazard without a factual 

basis that the hazard existed for a sufficient time to enable the exercise of ordinary 

care.” Sharp v. Andersons, Inc., 10th Dist. Franklin No. 06AP-81, 2006-Ohio-4075, ¶ 

11. While plaintiff emphasizes the lack of evidence about the drain being subject to any 

formal inspection or maintenance program, it was not shown that the defect with the 

drain existed for such length of time to allow an inference that defendant’s not warning 

against it or repairing it resulted from a failure to exercise reasonable care. Although 
Case No. 2016-00883JD -10- DECISION 

the magistrate is not without sympathy for the harm that plaintiff suffered, the fact of 

plaintiff’s injury alone does not give rise to an inference of negligence, as it is essential 

that there “‘be direct proof of a fact from which the inference can reasonably be drawn.’” 

Balcar v. Wal-Mart Store No. 2726, 10th Dist. Franklin No. 12AP-344, 2012-Ohio-6027, 

¶ 10, quoting Parras v. Std. Oil Co., 160 Ohio St. 315, 319, 116 N.E.2d 300 (1953). The 

absence of such proof to support an inference of constructive knowledge precludes the 

relief that plaintiff seeks. 

{¶20} Based on the foregoing, the magistrate finds that plaintiff failed to prove his 

claim by a preponderance of the evidence. Accordingly, judgment is recommended in 

favor of defendant. 

{¶21} 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). 

 

 ROBERT VAN SCHOYCK 

Magistrate 

 

Filed May 23, 2018 

Sent to S.C. Reporter 6/12/18