Opinion
Case No. 2019-00758JD
03-15-2021
MOORIS JORDAN Plaintiff v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTION Defendant
DECISION OF THE MAGISTRATE
{¶1} Plaintiff brought this claim for negligence arising out of an injury he sustained while playing basketball at the Allen Oakwood Correctional Institution (AOCI). The case proceeded to trial on the issue of liability and damages.
{¶2} At trial, plaintiff, an inmate in the custody and control of defendant at AOCI, testified that on July 26, 2018, at approximately 10:00 a.m., he was practicing layups on an outdoor basketball court. Plaintiff stated that although he had been playing basketball his whole life, it was the first time he had played on that court at AOCI. Plaintiff related that he jumped to perform a layup, and when he subsequently landed, he injured his ankle and fell to the ground. Plaintiff conceded that ankle injuries are a common risk in basketball. Several inmates thereafter assisted plaintiff to the infirmary where he learned that he fractured his ankle. Plaintiff acknowledged that inmates are only allowed to play "horse" on the basketball court, but he added that he believed layups were part of the game of horse.
{¶3} Plaintiff later returned to the court to examine the area where he fell. Plaintiff testified that there is an "elevated curb" directly below the basketball hoop. Plaintiff stated that the curb is not noticeable unless you are on the grass looking at the basketball court; plaintiff added that the inmates are not allowed on the grass. Plaintiff submitted photographs of the area (Exhibit 5-6). The photographs depict the blacktop basketball court and then a drop, or elevation/grade change, where the blacktop meets the dirt and grass. The basketball pole is located in the dirt and grass about two or three feet from the edge of the blacktop. Plaintiff testified that the backboard attached to the basketball pole is directly aligned with the edge of the blacktop where the "curb" or elevation change exists. Plaintiff also measured the grade difference between the blacktop and the grass and determined that there was a three-inch difference between the two surfaces where he fell. The grade change between the blacktop and the grass varies along the edge of the blacktop at other locations. At some later point, defendant submitted a work order to remove several basketball hoops at AOCI (Exhibit 8).
{¶4} Finally, plaintiff stated on the record that he is abandoning his claim for medical malpractice arising out of the treatment he received following his injury. Indeed, plaintiff did not present any evidence or expert testimony in support of such a claim. No other witnesses testified.
{¶5} "To recover on a negligence claim, a plaintiff must prove by a preponderance of the evidence (1) that a defendant owed the plaintiff a duty, (2) that a defendant breached that duty, and (3) that the breach of the duty proximately caused a plaintiff's injury." Ford v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 05AP-357, 2006-Ohio-2531, ¶ 10. "While the state is not an insurer of the safety of inmates, the state generally owes a duty of reasonable care and protection from harm to inmates under its custody." Price v. Dept. of Rehab. & Corr., 10th Dist. Franklin No. 14AP-11, 2014-Ohio-3522, ¶ 9. "Prisoners, however, are also required to use reasonable care to ensure their own safety." Nott v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 09AP-842, 2010-Ohio-1588, ¶ 8. "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.
{¶6} Defendant argues that primary assumption of risk and the open and obvious doctrine bar any recovery in this negligence action.
{¶7} Participation in sporting and recreational activities involves a risk of injury. "The doctrine of primary assumption of the risk has historically been applied to cases involving sporting events and recreational activities." Schnetz v. Ohio Dept. of Rehab. & Corr., 195 Ohio App.3d 207, 2011-Ohio-3927, ¶ 22, 959 N.E.2d 554 (10th Dist.). Under, the doctrine of primary assumption of risk, a participant who voluntarily engaged in a sporting event is held to have assumed the ordinary risks inherent in the respective activity. Id. at ¶ 23; Morgan v. Kent State Univ., 10th Dist. Franklin No. 15AP-685, 2016-Ohio-3303; Crace v. Kent State Univ., 185 Ohio App.3d 534, 2009-Ohio-6898, 924 N.E.2d 906 (10th Dist.). "Under primary assumption of the risk, an individual assumes the inherent risks of the recreational activity and cannot recover for injuries unless another individual acted recklessly or intentionally." Crace ¶ at 13 citing Santho v. Boy Scouts of Am., 168 Ohio App.3d 27, 2006-Ohio-3656, ¶ 12, 857 N.E.2d 1255, (10th Dist.). "A plaintiff cannot recover from any injuries that stemmed from 'conduct that is a foreseeable, customary part' of the activity in which the plaintiff was injured." Santho at ¶ 19, quoting Thompson v. McNeill, 53 Ohio St.3d 102, 104, 559 N.E.2d 705 (1990). When a plaintiff is found to have made a primary assumption of risk in a particular situation, that plaintiff is totally barred from recovery, as a matter of law. Horvath v. Ish, 134 Ohio St.3d 48, 2012-Ohio-5333, ¶ 18, 979 N.E.2d 1246. Whether to apply the defense of primary assumption of the risk presents an issue of law for the court to determine. Crace, at ¶ 12.
{¶8} Furthermore, "[u]nder primary assumption of the risk, the injured plaintiff's subjective consent to and appreciation for the inherent risks are immaterial to the analysis." Id. at ¶ 16. Primary assumption of the risk involves an examination of the activity itself and not plaintiff's conduct. Id. If the activity is inherently dangerous such that the risks cannot be eliminated, the doctrine of primary assumption of the risk applies. Id. Ohio courts have recognized an "inverse relationship between duty and dangerousness" in sports—the standard of care rises as the inherent danger of the sport falls. Thompson at 105-106.
{¶9} "The test for applying the doctrine of primary assumption of the risk to recreational activities and sporting events requires that '(1) the danger is ordinary to the game, (2) it is common knowledge that the danger exists, and (3) the injury occurs as a result of the danger during the course of the game.'" Schnetz at ¶ 23, quoting Santho at ¶ 12.
{¶10} Here, there is no dispute that plaintiff voluntarily engaged in basketball on an outdoor court at AOCI. After completing a layup, plaintiff landed on an uneven surface, resulting in an injury. Jumping and landing on an uneven outdoor basketball court involves a danger ordinary to the game—the risk of ankle injuries. As plaintiff acknowledged, ankle injuries are a common danger in basketball. Furthermore, plaintiff's ankle injury occurred during the course of the activity. Moreover, a basketball participant on an outdoor basketball court assumes the risk that the court surface is uneven. See Schnetz at ¶ 36 citing Scoma v. United States, E.D.New York No. 02 CV 2970(JG), 2004 U.S. Dist. LEXIS 84 (Jan. 7, 2004) (finding that an inherent risk of playing outdoor basketball is playing on an uneven or irregular surface). Additionally, plaintiff was aware that inmates were limited to playing horse on that particular court. There is no evidence before the court of reckless or intentional conduct by defendant with respect to the edge of the outdoor court. Therefore, primary assumption of risk negates plaintiff's negligence claim because defendant owes no duty to protect plaintiff against the inherent risk of ankle injuries while playing on an uneven outdoor basketball court. Schnetz at ¶ 24.
{¶11} Even if the court assumed that primary assumption of risk does not apply, there is no doubt that the grade change at the edge of the court was an open and obvious hazard. As it relates to those who are incarcerated, "the state owes a common- law duty of reasonable care and protection from unreasonable risks." Jenkins v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 12AP-787, 2013-Ohio-5106, ¶ 8. Reasonable care is "defined as the degree of caution and foresight that an ordinarily prudent person would employ in similar circumstances." Id. However, "[t]he state is not an insurer of the safety of its prisoners" and "prisoners * * * are also required to use reasonable care to ensure their own safety." Id.
{¶12} Additionally, "an owner or occupier of property owes no duty to warn of open and obvious dangers on the property." Id. at ¶ 10. "The open and obvious doctrine, where warranted, may be applied in actions against ODRC with the result that ODRC would owe no duty to an injured inmate." Id; see Cordell v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 08AP-749, 2009-Ohio-1555, ¶ 6. To be open and obvious, the condition must not be "hidden, concealed from view, or undiscoverable upon ordinary inspection." Jenkins at ¶ 11. The fact that an injured person failed to observe the dangerous condition is immaterial. Id. Rather, "the determinative issue is whether the condition is observable." Id.
{¶13} The photographs of the edge of the court demonstrate that the elevation change from the court to the dirt and grass was observable. It was not hidden or concealed from view. Indeed, an ordinary inspection, like the one conducted by plaintiff after he fell, would have revealed the elevation change at the edge of the basketball court. After plaintiff fell, he was able to inspect, measure, photograph, and document the grade change at the edge of the blacktop court. There is no evidence to suggest that the grade change was hidden or concealed from view; plaintiff agreed that the grade change is noticeable when looking at the court from the grass. As a result of the photographs, the inspection, and plaintiff's testimony, the magistrate finds that the grade change/curb on the edge of the basketball court was an open and obvious hazard. While the magistrate is not without sympathy for plaintiff, the open and obvious doctrine bars any recovery.
{¶14} Finally, although plaintiff stated that he abandoned any claim for medical malpractice, to the extent such a claim remains, plaintiff failed to support such a claim with expert medical testimony and the claim must fail. Bruni v. Tatsumi, 46 Ohio St.2d 127, 346 N.E.2d 673 (1976), syllabus; Foy v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin Nos. 16AP-723 and 16AP-724, 2017-Ohio-1065, ¶ 23-25.
{¶15} Based upon the foregoing, the magistrate recommends that judgment be entered in favor of defendant.
{¶16} 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).
/s/_________
GARY PETERSON
Magistrate Filed March 15, 2021
Sent to S.C. Reporter 4/30/21