Opinion
No. 89-13204.
Decided January 28, 1991.
Daniel Belcher, pro se. Lee I. Fisher, Attorney General, and Sally Ann Walters, Assistant Attorney General, for defendant.
On June 27, 1990, this matter came to trial before a referee of this court. On December 31, 1990, the referee issued a report, attached hereto as an appendix, wherein he recommended judgment for defendant.
Civ.R. 53 states that "[a] party may, within fourteen days of the filing of the report, serve and file written objections to the referee's report." Plaintiff has not filed an objection to said report.
Upon review of the record, the referee's report, and plaintiff's objections, it is the court's finding that the referee was correct in his analysis of the issues and application of the law. Accordingly, this court adopts the referee's report and recommendation as its own. Therefore, judgment is rendered for defendant with costs absorbed by the court. The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal.
Judgment accordingly.
Appendix
R. MICHAEL SMITH, Referee.
Findings of Fact and Conclusions of Law
Plaintiff Daniel Belcher alleges in his complaint that while an inmate in the custody and control of defendant Ohio Department of Rehabilitation and Correction, and while confined at the London Correctional Institution ("LCI"), he was struck from behind by another inmate and thereby suffered injury. Plaintiff has asserted that the proximate cause of his injuries was defendant's negligence in failing to have sufficient security personnel present when the incident occurred.
The undersigned referee was appointed by a judge of the Court of Claims and the matter thereafter came on for trial. The following determination is based upon the evidence adduced by the parties and the law applicable to the issues raised.
The preponderance of the evidence indicates that on July 22, 1989, plaintiff Daniel Belcher and inmate Johnny Chisholm were present in the LCI exercise yard. Apparently, the two of them had been arguing over an alleged debt. Chisholm, who is sixty years of age and weighs approximately one hundred forty pounds, walked away from plaintiff. Chisholm later returned, picked up a steel bar from the weight lifting area and, with no warning to plaintiff, struck him across the shoulders. Plaintiff was knocked to the ground. Chisholm dropped the bar and left the area. Corrections officers, who were in the process of, or who had just completed, a shift change, immediately responded and helped plaintiff to the infirmary. Chisholm was apprehended shortly thereafter.
It has been generally held that, although jailers are not insurers of the safety of their inmates, "a jailer (or other custodial personnel * * *) owes a duty to those in his custody to keep them safe and protect them from harm. The requisite standard of care is held to be that which is reasonable and ordinary for the health, care and well-being of the prisoner." Clements v. Heston (1985), 20 Ohio App.3d 132, 136, 20 OBR 166, 169, 485 N.E.2d 287, 292. However, "the custodial officer is not obligated to act until he knows or should know that the arrestee-prisoner is endangered." Id. at 136, 20 OBR at 169, 485 N.E.2d at 291. As previously stated by this court, "to prove a negligent act requires that the custody officers must have knowledge of the danger or reasonable grounds to anticipate it." Fisher v. Denton (May 23, 1979), Ct. of Claims No. 77-0773, unreported, 4-5.
It appears plain from the evidence presented at trial that defendant had no knowledge whatsoever of any particular danger to plaintiff. Furthermore, defendant had no reason to suspect that an attack upon plaintiff was imminent. As virtually admitted by plaintiff, Chisholm's attack was spontaneous and unexpected. The mere occurrence of an assault upon plaintiff, without more, cannot provide a basis for an action in negligence against the custodian. Accordingly, there was no failure of due care by defendant.
Plaintiff has also asserted that defendant failed to provide sufficient security personnel so as to have deterred the attack upon him. Plaintiff has not shown that there was either a failure to provide sufficient security personnel or that an increase in corrections officers, to some unspecified greater number, would have prevented the attack upon him. As a factual matter, the response to this attack was immediate. Within a matter of seconds, a corrections officer was by plaintiff's side and another had apprehended the attacker. Under the circumstances, no better response could be reasonably required.
Plaintiff has failed to demonstrate by a preponderance of the competent and credible evidence that defendant was negligent. Therefore, it is recommended that judgment be rendered in favor of defendant and against plaintiff.