Opinion
No. 87-08254.
Decided October 27, 1989.
Lilly M. Barker, pro se. Anthony J. Celebrezze, Jr., Attorney General, and Christopher C. Keller, for the defendant.
On July 21, 1987, plaintiff, Lilly Barker, filed this action against the defendant, the Ohio Department of Rehabilitation and Correction, alleging that it was negligent in failing to maintain the premises at its Pickaway Correctional Institution ("PCI") in a safe condition. Plaintiff alleges that the defendant's negligence was the direct and proximate cause of the injuries she sustained when she was struck by debris falling from a ceiling. On October 3, 1989, this action was tried before the court with plaintiff presenting her case pro se. The court has duly considered the evidence and arguments relative to the issues of liability and damages and renders the following decision.
On September 1, 1986, plaintiff and her brother, Elmer Long, traveled to PCI with the intention of visiting Michael Barker, plaintiff's son. Plaintiff and Long were directed to the visiting room at PCI and arrived there between 10:00 a.m. and 11:00 a.m. on the day at issue. Plaintiff and Long were seated in a booth five or six rows from the front of the visiting room. A short time thereafter plaintiff and Long were joined by Michael Barker. The three individuals were positioned in the booth in such a manner that plaintiff was seated on the inside of the booth next to Barker, and Long was seated across from these individuals. Plaintiff contends that she was struck by debris which fell from the ceiling directly above her in the visiting room while she was conversing with Barker and Long. Furthermore, plaintiff alleges she sustained personal injuries as a result of being struck by said debris.
Corrections Supervisor Shirley Turner and Corrections Officer Natalie Toops Harris were present in the visiting room when the incident at issue occurred and both testified that only paint chips fell from the ceiling. Additionally, both Turner and Harris testified that plaintiff appeared to be uninjured after the incident. Lieutenant Albert Price arrived at the scene of the incident approximately ten to fifteen minutes after the episode had transpired and ordered Officer Harris to clean up the area and place the paint chips into a manila envelope. Said envelope and its contents were admitted into evidence at trial as "Defendant's Exhibit B." Plaintiff departed from defendant's premises a short time thereafter and sought medical treatment the following day.
Initially, it is germane for the court to determine the legal status of plaintiff while visiting her son on defendant's premises. Clearly, it is most favorable for plaintiff's case if she is considered an invitee by the court. Consequently, the court is willing to assume for the purposes of this decision that plaintiff's legal status at the time of the incident was that of an invitee, hence following the analysis and logic employed by Judge Fred Shoemaker of this court in the case of Blair v. Ohio Dept. of Rehab. Corr. (Feb. 13, 1989), Ct. of Claims No. 87-05166, unreported. In Blair, the plaintiff suffered personal injuries as a result of a fall which occurred in the parking lot of the Lebanon Correctional Institute where she had been visiting an inmate. Judge Shoemaker explicitly rejected the economic benefit test in distinguishing between invitees and licensees when holding that visitors to prison facilities are considered invitees.
In Ohio, the duty owed to invitees is as follows:
"It is the duty of the owner or occupier of premises to exercise ordinary or reasonable care for the safety of invitees, so that the premises are in a reasonably safe condition for use in a manner consistent with the purpose of the invitation. If he directly or by implication invites others to go on the premises, it is his duty to have them reasonably safe, and to warn of latent or concealed perils of which he knows or has reason to know, and if he creates the condition, he is charged with knowledge thereof. He must use ordinary care in keeping his premises free from dangers which are not discernible by a prudent person who uses ordinary care, and is liable if an invitee is injured as the result of a defect which exists through his negligence." (Citations omitted and emphasis added.) 76 Ohio Jurisprudence 3d (1987) 18-20, Premises Liability, Section 7. See, also, Presley v. Norwood (1973), 36 Ohio St.2d 29, 65 O.O.2d 129, 303 N.E.2d 81; Light v. Ohio University (1986), 28 Ohio St.3d 66, 28 OBR 165, 502 N.E.2d 611.
Plaintiff contends that defendant was negligent by failing to maintain its visiting room in a safe condition. Plaintiff has the burden of proof to show by a preponderance of the evidence that the defendant was negligent under the circumstances. Ohio law mandates that the essential elements of negligence are (1) a duty of care owed to the plaintiff; (2) a breach of that duty by a negligent act or omission; and (3) an injury proximately resulting from such breach. Di Gildo v. Caponi (1969), 18 Ohio St.2d 125, 47 O.O.2d 282, 247 N.E.2d 732.
The burden of proof rests on the plaintiff to show that defendant failed to exercise ordinary or reasonable care for the safety of invitees while they were in the visiting room at PCI. In the case at bar, a review of the record fails to reveal that the defendant committed any affirmative negligence directed toward plaintiff while she was present on defendant's premises. Furthermore, defendant consistently required members of its staff, who were located in the visiting room, to observe and monitor the premises to ensure that said premises remained in a safe condition. Consequently, the court fails to find any credible evidence to support the contention that defendant was negligent.
Even had plaintiff asserted the doctrine of res ipsa loquitur to support her allegations, her cause would fail. It is axiomatic that res ipsa loquitur is a rule of evidence, not a rule of substantive law, and that the court must analyze such evidence, along with all the other evidence offered in a case, to determine liability. See Hake v. George Wiedemann Brewing Co. (1970), 23 Ohio St.2d 65, 66, 52 O.O.2d 366, 262 N.E.2d 703, 705.
"To warrant application of the rule a plaintiff must adduce evidence in support of two conclusions: (1) [t]hat the instrumentality causing the injury was, at the time of the injury, or at the time of the creation of the condition causing the injury, under the exclusive management and control of the defendant; and (2) that the injury occurred under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed. [Citations omitted.] Whether sufficient evidence has been adduced at trial to warrant application of the rule is a question of law to be determined * * * by the trial court * * *." Id. at 66-67, 52 O.O.2d at 367, 262 N.E.2d at 705. See, also, 70 Ohio Jurisprudence 3d (1986) 300-301, Negligence, Section 159.
The court has reviewed the record in the case sub judice and finds that plaintiff has failed to prove by a preponderance of the evidence that the incident in the visiting room would not have occurred in the ordinary course of events unless the defendant acted in a negligent fashion. As such, the second prong of the aforementioned res ipsa loquitur "test" has not been satisfied; therefore, an application of this doctrine to the facts of the case at bar is unwarranted.
In conclusion, the court finds that plaintiff has failed to prove by a preponderance of the evidence that defendant's conduct, in its care and maintenance of the visiting room in question, constituted a breach of its duty of ordinary care. Therefore, the court concludes that defendant was not negligent under the circumstances. Accordingly, judgment is hereby rendered for the defendant and plaintiff's complaint is dismissed.
Judgment for defendant.
RUSSELL LEACH, J., retired, of the Franklin County Municipal Court, sitting by assignment.