Summary
In Williams v. Ohio Dept. of Rehab. Corr. (1991), 61 Ohio Misc.2d 699, 704, the court found after holding a trial "by a preponderance of the evidence that defendant was not negligent in its care and maintenance of the shower facility at J-1 block."
Summary of this case from Antenori v. Ohio Dept. of Rehab., Corr.Opinion
No. 89-11406.
Decided April 12, 1991.
Daniel R. Williams, pro se. Lee I. Fisher, Attorney General, and Christopher C. Keller, Assistant Attorney General, for defendant.
On July 9, 1990, this matter came to trial before a referee of this court. On October 25, 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 and the referee's report, 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 assessed against plaintiff. The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal.
Judgment accordingly.
Appendix
JOHN A. ANNARINO, Referee.
On August 18, 1989, plaintiff Daniel R. Williams filed this pro se action against the defendant, Ohio Department of Rehabilitation and Correction, alleging it was negligent by permitting an accumulation of soap residue on the floor of the shower in J-1 Block, at the Southern Ohio Correctional Facility ("SOCF"). Plaintiff contended that he slipped and fell in the area where the soap residue had collected, and suffered injuries as a result. Plaintiff further alleges that the defendant was negligent in not providing adequate lighting in the area in which plaintiff showered.
Defendant denied that it was negligent in its care and maintenance of the shower and also denied that the shower area of the cell block was not maintained in a safe condition. This action came on for trial before the referee at SOCF. The findings and conclusions herein are derived from the documents and pleadings in the court file, evidence admitted at trial, and the respective presentations by plaintiff and defendant's counsel.
Plaintiff is an inmate in the custody and control of defendant at SOCF, J-1 cell block, pursuant to R.C. 5120.16. On July 24, 1989, at approximately 9:00 a.m., the plaintiff was handcuffed and taken to an area of the facility where he could shower. Plaintiff testified that upon entering the showers he slipped on the collection of soap residue, fell to the floor and was knocked unconscious.
Plaintiff's complaint is construed to set forth a single cognizable action, which is one sounding in negligence. In a claim predicated on negligence, the plaintiff bears the burden of proving by a preponderance of the evidence that defendant breached a duty owed to plaintiff and that this breach proximately caused injury. Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 21 O.O.3d 177, 423 N.E.2d 467. Defendant owed to plaintiff the common-law duty of reasonable care. Justice v. Rose (1957), 102 Ohio App. 482, 3 O.O.2d 39, 144 N.E.2d 303. Reasonable care is that which would be utilized by an ordinarily prudent person under similar circumstances. Smith v. United Properties, Inc. (1965), 2 Ohio St.2d 310, 31 O.O.2d 573, 209 N.E.2d 142.
While cognizant of a "special relation" between an inmate and his custodian, no higher standard of care is derived from this relationship. Scebbi v. Dept. of Rehab. Corr. (Mar. 21, 1989), Ct. of Claims No. 87-09439, unreported. Although the state is not an insurer of the safety of its prisoners, once it becomes aware of a dangerous condition in the prison, it is required to take the reasonable care necessary to prevent injury to a prisoner. Clements v. Heston (1985), 20 Ohio App.3d 132, 20 OBR 166, 485 N.E.2d 287. Plaintiff bears the burden of proof to demonstrate that defendant was on notice or aware of the condition of the floor where plaintiff fell. Presley v. Norwood (1973), 36 Ohio St.2d 29, 65 O.O.2d 129, 303 N.E.2d 81.
The legal concept of notice is of two distinguishable types: actual and constructive.
"The distinction between actual and constructive notice is in the manner in which notice is obtained or assumed to have been obtained rather than in the amount of information obtained. Wherever from competent evidence the trier of the facts is entitled to hold as a conclusion of fact and not as a presumption of law that information was personally communicated to or received by a party, the notice is actual. Constructive notice is that which the law regards as sufficient to give notice and is regarded as a substitute for actual notice." In re Fahle's Estate (1950), 90 Ohio App. 195, 47 O.O. 231, 105 N.E.2d 429, paragraph two of the syllabus.
Plaintiff failed to present evidence demonstrating that the defendant had actual notice or knowledge that there was collection of soap residue on the floor of the shower used by plaintiff. Officer Jerry Colley, whose duties included working in J-1 block, testified that he was familiar with the area of the shower at issue. Officer Colley testified that the prisoners shower on every Monday and Thursday and the porter cleaned the showers on every Sunday and Wednesday. Officer Colley also testified that the showers are inspected by Sergeant Larry Neff prior to the inmates taking their showers. Sergeant Neff testified that he personally inspects the showers after every cleaning and if he determines that the showers are not cleaned properly he "orders them cleaned again." Sergeant Neff testified that a collection of soap residue on the shower floor has never been a problem in J-1 cell block shower where plaintiff fell.
To find constructive notice there must be "some evidence" that the substance was on the floor long enough prior to the fall that the defendant should have known about it and removed it. Banks v. Quay (Aug. 29, 1989), Franklin App. No. 89AP-390, unreported, 1989 WL 99439. There was no evidence that the cell block shower ever had a collection of soap residue or any other foreign substance on the floor. Neither plaintiff nor any other inmate personally notified any employees or agents of defendant that there was a collection of soap residue on the floor.
Plaintiff testified that he was unaware of any collection of soap residue on the floor until immediately after he had fallen. He did not observe any soap residue when entering the shower on the day in question. Plaintiff also testified that he had never previously fallen in the shower. Plaintiff has failed to prove by a preponderance of the evidence that defendant had constructive notice of the condition of the floor where plaintiff fell.
Turning to plaintiff's allegations concerning the adequateness of the lighting in the shower facility, defendant had a duty to provide adequate lighting so that plaintiff could easily enter the shower and bathe himself.
Sergeant Neff testified that the J-1 complex is a "super maximum" complex with extra security. There are no electrical lighting fixtures located in the showers as they could cause a risk of security. Thus, lighting is provided by a bank of windows twenty feet directly across from the showers. Testimony at trial provided that the natural light coming into the windows, at approximately 9:00 a.m., provided for more than adequate lighting. Therefore, plaintiff has failed to prove that defendant did not satisfy its duty of ordinary care by providing adequate lighting in the shower area of J-1 block.
Based on all the evidence submitted at trial, this referee finds by a preponderance of the evidence that defendant was not negligent in its care and maintenance of the shower facility at J-1 block at SOCF. Finding no negligence on the behalf of defendant, it is recommended that judgment be rendered for defendant and this case be dismissed.