[Cite as Fraley v. Dept. of Rehab. & Corr., 2019-Ohio-2804.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Duane Fraley, :
Plaintiff-Appellant, :
v. : No. 18AP-731
(Ct. of Cl. No. 2016-00709JD)
Ohio Department of Rehabilitation :
& Correction, (REGULAR CALENDAR)
:
Defendant-Appellee,
:
D E C I S I O N
Rendered on July 9, 2019
On brief: Swope and Swope, and Richard F. Swope, for
appellant. Argued: Richard F. Swope.
On brief: [Dave Yost], Attorney General, and Eric A. Walker,
for appellee. Argued: Eric A. Walker.
APPEAL from the Court of Claims of Ohio
SADLER, J.
{¶ 1} Plaintiff-appellant, Duane Fraley, appeals from a judgment of the Court of
Claims of Ohio, in favor of defendant-appellee, Ohio Department of Rehabilitation and
Correction ("DRC"). For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} The facts of the case are largely undisputed. At all relevant times, appellant
was an inmate at DRC's Pickaway Correctional Institution ("PCI"). On June 14, 2016,
appellant and the other inmates from appellant's unit were walking to the dining hall along
the concrete walkway adjacent to the dormitory. The sidewalk passed alongside an exterior
concrete stairwell with a set of concrete stairs descending to the lower tier of the unit, below
No. 18AP-731 2
ground level, and an opposing set of concrete stairs ascending to the upper tier of the
dormitory.
{¶ 3} The descending stairwell was guarded by a handrail constructed of round
metal pipes with a long horizontal top rail connected to shorter vertical rails at either end.
The vertical pipes were screwed into a metal flange bolted into the concrete sidewalk.
Another metal pipe ran horizontally under the top handrail and was connected to the two
vertical rails by a T-shaped metal fitting. A magistrate of the Court of Claims described the
events of June 14, 2016 as follows:
[Appellant] asserted that he was having trouble with his foot
and paused by the end of the railing close to a concrete
abutment for the descending stairwell to give his foot a break.
[Appellant] estimated that he traveled approximately 50 feet
when he stopped to rest his foot. Initially [appellant] testified
that he was bumped, tried to catch himself on the "structure,"
and regained consciousness while he was lying at the bottom
of the stairwell. (Plaintiff's Exhibit 2). However, [appellant]
admitted that in a deposition he stated that he did not
specifically remember someone bumping into him.
[Appellant] further admitted that he did not remember any
bumping or pushing prior to falling in the stairwell.
[Appellant] added that he does not recall any part of his body
coming into contact with the handrail by the stairwell and that
he does not recall the handrail breaking. Ultimately,
[appellant] acknowledged that he does not know how or why
he fell.
(May 18, 2018 Mag.'s Decision at 2.)1
{¶ 4} On September 22, 2016, appellant filed a complaint against DRC asserting a
claim of negligence. The complaint alleges that "the handrail was old and defective, all of
which was known to [DRC] before June 14, 2016," and that DRC was "negligent in failing
to warn or repair, replace, or direct inmates away from the defective railing, all of which
[DRC] was aware of, and in fact directed heavy pedestrian traffic past this dangerous area."
(Sept. 22, 2016 Compl. at ¶ 1-2.)
{¶ 5} DRC denied liability and the case was tried to a magistrate of the Court of
Claims on the issue of liability. The magistrate issued a decision recommending judgment
in favor of DRC as to appellant's negligence claim. Appellant filed an objection to the
1 For purposes of appeal, appellant agrees with the magistrate's findings regarding the incident.
No. 18AP-731 3
magistrate's decision. In his objection, appellant alleged that "[t]he [m]agistrate erred, as a
matter of law, finding the concrete to which the rail was attached did not contribute to the
handrail breaking," and "[t]he [m]agistrate erred in determining the [DRC] did not have
constructive notice that the handrail was defective and posed an unreasonable hazard to
inmates." (July 13, 2018 Objs. to Mag.'s Decision at 1.)
{¶ 6} Appellant filed a partial transcript of the proceedings before the magistrate
in support of the objections. The partial transcript contains the trial testimony of PCI
employees Justin Swanson and Larry Parker. The Court of Claims overruled appellant's
objections and adopted the magistrate's decision as its own.
{¶ 7} Appellant appealed to this court from the judgment of the Court of Claims.
II. ASSIGNMENTS OF ERROR
{¶ 8} Appellant assigns the following as trial court error:
[1.] THE TRIAL COURT AND THE MAGISTRATE ERRED,
AS A MATTER OF LAW, FINDING THE CONCRETE TO
WHICH THE RAIL WAS ATTACHED DID NOT
CONTRIBUTE TO THE HANDRAIL BREAKING.
[2.] THE TRIAL COURT AND MAGISTRATE ERRED IN
DETERMINING THE DEFENDANT-APPELLEE DID NOT
HAVE CONSTRUCTIVE NOTICE THAT THE HANDRAIL
WAS DEFECTIVE AND POSED AN UNREASONABLE
HAZARD TO INMATES.
[3.] THE TRIAL COURT AND MAGISTRATE ERRED IN
FINDING DESPITE REGULAR INSPECTIONS BY
DEFENDANT-APPELLEE'S EMPLOYEES, DEFENDANT-
APPELLEE DID NOT HAVE CONSTRUCTIVE NOTICE OF
THE HAZARD THE HANDRAIL PRESENTED TO INMATES
USING THE WALKWAY ADJACENT TO THE HANDRAIL.
[4.] THE TRIAL COURT AND MAGISTRATE ERRED AS A
MATTER OF LAW IN RULING PLAINTIFF-APPELLANT
FAILED TO PROVE DEFENDANT-APPELLEE DID NOT
HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE
DEFECTIVE HANDRAIL.
[5.] THE DECISIONS OF THE MAGISTRATE AND TRIAL
COURT ARE AGAINST THE MANAIFEST WEIGHT OF THE
EVIDENCE AND ARE CONTRARY TO LAW.
No. 18AP-731 4
III. STANDARD OF REVIEW
{¶ 9} When reviewing objections to a magistrate's decision, the trial court must
undertake an independent de novo review of the matters objected to in order "to determine
whether the magistrate has properly determined the factual issues and appropriately
applied the law." Williams v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 18AP-720, 2019-
Ohio-2194, ¶ 16, citing Civ.R. 53(D)(4)(d). "However, ' "the standard of review on appeal
from a trial court judgment that adopts a magistrate's decision varies with the nature of the
issues that were (1) preserved for review through objections before the trial court and
(2) raised on appeal by assignment of error." ' " Williams at ¶ 16, quoting Starner v.
Merchants Holding LLC, 10th Dist. No. 17AP-621, 2018-Ohio-1165, ¶ 15, quoting In re
Guardianship of Schwarzbach, 10th Dist. No. 16AP-670, 2017-Ohio-7299, ¶ 14; Feathers
v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 16AP-588, 2017-Ohio-8179, ¶ 10; In re
Adoption of N.D.D., 10th Dist. No. 18AP-561, 2019-Ohio-727, ¶ 27; Bickerstaff v. Ohio
Dept. of Rehab. & Corr., 10th Dist. No. 13AP-1028, 2014-Ohio-2364, ¶ 10.
IV. LEGAL ANALYSIS
A. Appellant's First Assignment of Error
{¶ 10} In appellant's first assignment of error, appellant contends that the trial court
erred when it found that the crumbling concrete on the stairway abutment and elsewhere
around the stairway complex did not cause or contribute to the failure of the handrail. We
disagree.
{¶ 11} Appellant's claim against DRC is predicated on negligence. To prevail on a
negligence claim, a plaintiff must establish the existence of a duty, a breach of the duty, and
an injury resulting proximately therefrom. Skorvanek v. Ohio Dept. of Rehab. & Corr.,
10th Dist. No. 17AP-222, 2018-Ohio-3870, ¶ 27, citing Menifee v. Ohio Welding Prods.,
Inc., 15 Ohio St.3d 75, 77 (1984); Strother v. Hutchinson, 67 Ohio St.2d 282, 285 (1981).
The plaintiff has the burden to prove each element of their negligence claim by a
preponderance of the evidence. Skorvanek at ¶ 27, citing Forester v. Ohio Dept. of Rehab.
& Corr., 10th Dist. No. 11AP-366, 2011-Ohio-6296, ¶ 7.
{¶ 12} "In the context of a custodial relationship between the state and its inmates,
the state owes a common-law duty of reasonable care and protection from unreasonable
risks of physical harm." McElfresh v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 04AP-
No. 18AP-731 5
177, 2004-Ohio-5545, ¶ 16. "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." Id.
{¶ 13} "Although the state is not an insurer of inmate safety, 'once it becomes aware
of a dangerous condition it must take reasonable care to prevent injury to the inmate.' "
Skorvanek at ¶ 28, quoting Briscoe v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 02AP-
1109, 2003-Ohio-3533, ¶ 20. Inmates are also required, however, to use reasonable care to
ensure his or her own safety. Macklin v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 01AP-
293, 2002-Ohio-5069, ¶ 21.
{¶ 14} Appellant's primary theory of liability in this case is that the crumbling
concrete on the abutment of the ascending stairway caused or contributed to the failure of
the handrail. The magistrate concluded that the crumbling concrete on the stairway
abutment could not have caused or contributed to the failure of the handrail because the
evidence showed that the handrail was not secured to the crumbling concrete. The evidence
supports the magistrate's finding and conclusion.
{¶ 15} For purposes of this appeal, appellant accepts the magistrate's summary of
the trial testimony of PCI corrections officer, Kenneth Battle, and PCI corrections
lieutenant, Todd Sickles. Battle testified that on June 14, 2016, he "found plaintiff who was
lying at the bottom of the stairwell with his arms extended above his head and the handrail
was on top of his body," and that he removed the handrail with the help of an inmate.
(Mag.'s Decision at 3.) The magistrate's decision further states:
Regarding the stairwell, Battle stated that it was previously
taped off due to ongoing work on the crumbling concrete.
Battle added, however, that prior to this incident he was not
aware of whether the handrail was unsafe. According to
Battle, the tape was to prevent anyone from descending the
stairwell. Battle could not recall exactly how the tape was
hung on the handrail, but agreed that inmates are not allowed
to sit on any of the handrails.
(Emphasis added.) (Mag.'s Decision at 3.)
{¶ 16} As for Sickles testimony, the magistrate's decision provides as follows:
Sickles observed that caution tape was hanging down to the
ground. Sickles explained that the stairwell was previously
No. 18AP-731 6
closed for repairs and that the caution tape had been there for
a few weeks prior to this incident. Sickles asserted that when
he arrived, he saw [appellant] lying at the bottom of the
stairwell. * * * According to Sickles, he never received any
reports that the handrail was unsafe prior to this incident.
Sickles stated that he does not recall any warning that
officers should not sit on the handrails because they are
unsafe, but he added that officers should not sit on any of the
handrails.
(Emphasis added.) (Mag.'s Decision at 3.)
{¶ 17} Larry Parker is the Maintenance Superintendent at PCI. Parker testified that
PCI was constructed in the 1920's but he did not know whether the handrail in question
was the original handrail. Parker testified that the same type of handrails are installed in
the stairway complexes in both D dormitory and C dormitory. On cross-examination,
Parker was shown a photograph of the stairwell in question taken subsequent to appellant's
fall but prior to repair. (Pl.'s Ex. 1.) When Parker was asked how the handrail had been
attached, the following exchange took place:
Q. Mr. Parker, look again at Plaintiff's Exhibit 1.
A. Yes, sir.
Q. You'll see that in the lower right-hand corner a piping that
appears to be a broken portion of what was once a handrail. Is
that the kind of material that was used to erect the handrail that
was across this stairwell before this fall?
A. Yes, round pipe.
***
Q. Okay. * * * Obviously somewhere the handrailing had to be
attached to something, either to a hole in the concrete at the
base of the tethered concrete or to the concrete itself. Do you
know how it was attached?
A. It looks like there was a flange on the ground right here.
Q. Okay. So there was a piping that ran up along the
deteriorated concrete, right?
A. It come up, yes.
No. 18AP-731 7
Q. Okay. And was it merely suspended in the air or was it
attached the wall that shows where it's deteriorating and –-
A. It was attached to the floor flange right here. There's a flange
on the ground right there that it was attached to.
Q. Okay. Where was it attached at the top? Was it just attached
freely so that it went back to the piping that shows at the lower
right-hand corner?
A. I believe it was freestanding.
(Trial Tr. Excerpt at 7-8.)
{¶ 18} Though the transcript of Parker's testimony is difficult to follow because
Parker is referring to a photographic exhibit, Parker's testimony along with Plaintiff's
Exhibit 1 supports a finding that both ends of the handrail were attached to a metal flange
which was bolted to the concrete sidewalk. In other words, Parker's testimony and
Plaintiff's Exhibit 1 show that the handrail is not attached to the crumbling concrete base
for the ascending stairway.
{¶ 19} DRC employee, Justin Swanson, held the position of Maintenance Worker 3
at PCI on the date of appellant's fall. When he heard that an inmate had fallen in a stairway
and that the handrail had broken, he went to the stairway to take the measurements needed
to fabricate a replacement handrail. When he arrived at the stairway, the broken handrail
had already been removed. Swanson was not sure where the broken handrail had been
taken and he was never asked to perform any investigation to determine the cause of the
breakage.
{¶ 20} Swanson was unable to determine the cause of the handrail failure by looking
at Plaintiff's Exhibit 1, but he did offer that the handrail appeared to have broken off at the
flange. He observed that a piece of the flange was still sticking out of the ground at the point
where the handrail had been attached to the concrete sidewalk nearest the entry to the
descending stairs. Swanson agreed that the handrail must have broken loose from the
flange. When appellant's counsel asked Swanson how the handrail was attached at the
No. 18AP-731 8
other end nearest the concrete abutment, he answered that it was attached "to the ground"
in the same manner as the other end. (Tr. at 21.)2
{¶ 21} The testimony of Parker and Swanson supports a finding that the handrail
was attached to the concrete sidewalk at both ends and was not attached to the crumbling
concrete at the stairway abutment. Unlike the concrete base of the ascending stairway, the
concrete sidewalk as shown in Plaintiff's Exhibit 1 does not appear to be in a considerable
state of deterioration or disrepair. This being the case, appellant's primary theory of
liability is not supported in the record. Accordingly, we hold that the trial court's conclusion
that the crumbling concrete shown in Plaintiff's Exhibit 1 did not cause or contribute to the
failure of the handrail is supported by sufficient evidence in the record and not against the
manifest weight of the evidence. Appellant's first assignment of error is overruled.
B. Appellant's second, third, and fourth assignments of error
{¶ 22} In appellant's second, third, and fourth assignments of error, appellant
argues, for various reasons, the Court of Claims erred when it found that DRC did not have
prior notice of a defect in the handrail. Accordingly, we will consider them together.
1. Actual notice
{¶ 23} "Actual notice exists where, from competent evidence, the trier of fact can
conclude the pertinent information was personally communicated to, or received by, the
party." Kemer v. Ohio Dept. of Transp., 10th Dist. No. 09AP-248, 2009-Ohio-5714, ¶ 21,
citing In re Fahle's Estate, 90 Ohio App. 195, 197 (6th Dist.1950). "Actual notice may be
(1) express or direct information, or (2) implied or inferred from the fact that the person
had means of knowledge which he did not use." Id. at 198.
{¶ 24} As this court has determined in resolving appellant's first assignment of
error, appellant failed to prove that the crumbling concrete at the stairway abutment caused
or contributed to the failure of the handrail in question. Had appellant proven that the
crumbling concrete caused or contributed to the failure of the handrail there would be no
question that DRC had actual notice of the defect. Appellant maintains that the evidence
establishes that DRC, nevertheless, had actual notice, prior to appellant's fall, that the
2 We note that Defendant's Exhibit C is a photograph of another PCI exterior stairway complex of the same
configuration as the stairway complex at issue in this case. The photograph appears to corroborate the
testimony of Swanson and Parker that the handrail is attached to the concrete sidewalk at both ends, and is
not attached to the abutment to the ascending stairway.
No. 18AP-731 9
handrail was defective and unreasonably dangerous to inmates using the sidewalk. We
disagree.
{¶ 25} Parker testified that shortly after appellant's fall, he searched for the broken
handrail but could not locate it. He later learned that the broken handrail had been taken
to the Captain's office, but he did not know whether anyone inspected it. Parker
acknowledged that the handrail should not have broken in the course of normal usage, but
he had no personal knowledge whether the handrail in question was in a state of disrepair
or deterioration.
{¶ 26} With regard to the PCI maintenance and repair procedures, Parker testified
that repairs are typically commenced pursuant to a work order, unless an emergency issue
arises. On the date of appellant's fall, he initiated the handrail replacement following a
telephone call because it was an emergent situation. On direct examination, Parker testified
that he checked PCI's computerized maintenance records and found no work orders
pertaining to stairway handrails. Parker told appellant's counsel that the database records
go back "[a] few years. I don't know the exact date." (Tr. at 26.)
{¶ 27} Parker testified that PCI health and safety personnel perform monthly
inspections of the premises, and that the dormitory correction officers also perform
inspections. Parker was not asked to describe the inspection procedures. According to
Parker, any staff member can submit a work order. Parker maintained that prior to
appellant's fall no one at PCI had ever informed him that a stairway handrail was defective
or unsafe.
{¶ 28} Swanson testified that he was aware in June 2016 that concrete was chipping
off of the stairway abutment as shown in Plaintiff's Exhibit 1, but he was not aware of any
problems with the handrail in D dormitory or in any of the other dormitories at PCI. He
was also unaware if anyone at PCI conducted an investigation to determine why the
handrail failed on June 14, 2016. Swanson did acknowledge that the stairway handrails at
PCI should be of sufficient strength to withstand a person merely bumping against them.
{¶ 29} The evidence in the record supports the determination by the Court of Claims
that DRC did not have actual notice of a defect in the stairway handrail that caused or
contributed to the failure of the handrail on June 14, 2016. There is also no evidence to
support a finding that any inmate at PCI ever complained to PCI that the stairway handrail
No. 18AP-731 10
was unsafe or defective, and there is no evidence that any PCI staff member submitted a
work order pertaining to the handrail in question or any other exterior stairway handrail at
PCI prior to appellant's fall. Thus, the testimony in the record supports the determination
of the Court of Claims that DRC did not have actual notice, prior to appellant's fall, of a
defect in the handrail that would have rendered the stairway unsafe for inmates walking on
the sidewalk.
2. Constructive notice
{¶ 30} Constructive notice is that which the law regards sufficient to give notice to a
party; it is a substitute for actual notice. In re Fahle's Estate at 197-98. "Constructive notice
of a defective condition can be imputed to a defendant when the plaintiff presents evidence
establishing that the defect could or should have been discovered." Kemer at ¶ 24, citing
Nanak v. Columbus, 121 Ohio App.3d 83, 86 (10th Dist.1997), citing Beebe v. Toledo, 168
Ohio St. 203 (1958). "To support an inference of constructive notice, a plaintiff may submit
evidence that the condition existed for such a length of time that the owner or its agent's
failure to warn against it or remove it resulted from their failure to exercise ordinary care."
Jenkins v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 12AP-787, 2013-Ohio-5106, ¶ 12,
citing Presley v. Norwood, 36 Ohio St.2d 29, 31-32 (1973).
{¶ 31} In an effort to establish that a defect in the stairway handrail had existed for
a sufficient amount of time that DRC should have known of the danger, appellant presented
the testimony of fellow inmates Chris Kenney, Todd Smith, and George Jones. Inmate
Kenney was acquainted with appellant because he was housed in D-1 dormitory. He saw
people removing appellant and the broken handrail from the stairwell after appellant fell,
but he did not see appellant fall. He remembered that there had been yellow caution tape
across the stairwell due to the crumbling concrete, but he did not see any such tape across
the stairwell on the date appellant fell. Kenney had never complained to anyone at PCI
about the condition of the stairway handrail.
{¶ 32} Inmate Jones testified that he had been incarcerated in PCI since 2014 and
he was familiar with the handrail at issue. Jones did not see appellant fall and could not
remember whether there was any yellow caution tape across the stairway on the date
appellant fell. He did testify that he had seen inmates either leaning on or sitting on top of
the handrail in the past.
No. 18AP-731 11
{¶ 33} Inmate Smith was the only witness who claimed to have knowledge that the
handrail itself was defective prior to appellant's fall. Smith did not see appellant fall and
had never complained to anyone at PCI about the condition of the handrail. Nevertheless,
on direct examination, Smith testified as follows:
Q. Could you tell from looking at the area what caused the rail
to fall?
A. I just knew that the rail was always loose or barely on there,
so I figured that's what happen when --
Q. How do you know it was loose?
A. I just -- several times people would just say something about
it or laugh about it or said things about it.
(Pl.'s Ex. 7, Smith Depo. at 7.)
{¶ 34} On cross-examination, Smith expanded on his observations regarding the
handrail as follows:
Q. And how did you know it was loose and wobbly?
A. Because I've seen people try to, you know, push on it. You
could just tell the way it sat there, you know.
Q. Did you observe that yourself?
A. Just from walking past it from day to day.
Q. You observed that prior to the date of the incident involving
[appellant]?
A. Yeah.
Q. Did you see inmates shake it or anything really?
A. Somebody would lean up against it or stop there and talk,
and people would say things like, you know, like, I wouldn't do
that.
Q. What does that mean? You said, "I wouldn't do that."
Explain what that means.
A. Oh, they would say, I wouldn't sit on that or I wouldn't lean
against that or something. They would say stuff like that or,
No. 18AP-731 12
like, don't get around that thing, you know -- you know, it's just
things likes that.
(Pl.'s Ex. 7, Smith Depo. at 11.)
{¶ 35} Smith was not sure how long the handrail had been in the condition he
described, but he stated that it had been that way since he arrived at PCI, two years earlier.
{¶ 36} The magistrate found that Smith's testimony regarding the alleged defect in
the stairway was not credible because it was "based on what he had learned from other
inmates," and "not based on the inmate's personal interaction with the handrail." (Mag.'s
Decision at 8-9.) The Court of Claims did not mention Smith's testimony in the decision
overruling appellant's objections and adopting the magistrate's decision as its own, but did
find that the magistrate "properly determined the factual issues." (Sept. 4, 2018 Jgmt.
Entry at 4.) Our review of Smith's deposition testimony reveals nothing that would cause
us to doubt the credibility determination made by the Court of Claims. Smith's testimony
that the handrail was "loose" and "wobbly" was not corroborated by Kenney, or any other
witness, and Jones testified that he had seen inmates leaning against or sitting on top of the
handrail in the past. Moreover, none of the inmate witnesses who testified, including
appellant, ever complained to the PCI staff about an alleged defect in the handrail.
{¶ 37} Appellant cites Camp v. Ohio Dept. of Rehab. & Corr., Ct. of Cl. No. 2014-
00992JD (Aug. 1, 2016), in support of his claim that DRC had constructive notice of a defect
in the handrail which rendered that stairway unsafe for inmate's using the sidewalk. We
find the case distinguishable.
{¶ 38} In Camp, an inmate, Camp, sustained injuries when he fell on an unstable
plank on a set of bleachers at Chillicothe Correctional Institution ("CCI"). A magistrate
found in favor of the inmate on the issue of liability and DRC filed an objection. In
overruling DRC's objection, the Court of Claims agreed with the magistrate's finding that
DRC had constructive notice that the bleacher plank had detached from the support
underneath because the evidence showed that the defect had existed for at least one year
prior to Camp's fall. The magistrate based a finding of constructive notice on the testimony
of two inmates who had personal knowledge of the loose bleacher plank years prior to
Camp's fall and another inmate who had nearly fallen due to the loose bleacher plank more
than one year prior to Camp's fall. The Court of Claims agreed with the magistrate's
No. 18AP-731 13
conclusion that the defect existed for a sufficient length of time that DRC employees should
have discovered it upon conducting a reasonable inspection of the bleachers, and either
repaired the defect or took other appropriate action to prevent inmates from being injured.
The Court of Claims also agreed with the magistrate's conclusion that there was "no credible
evidence that any agent or employee of [CCI] otherwise performed any kind of inspection,
maintenance or upkeep of the bleachers at any time." (Ct. of Cl. No. 2014-00992JD Nov. 14,
2016 Jgmt. Entry at 3.) The magistrate had noted that CCI corrections officers conducted
occasional visual inspections of the bleachers, but only for the presence of contraband.
{¶ 39} The facts of this case are quite different from those in Camp, and a different
result is required. Here, appellant did not present sufficient evidence to establish the
nature of the defect in the handrail. And, as previously noted, neither the magistrate nor
the Court of Claims believed Smith's testimony that the handrail was "loose" and "wobbly"
for some period of time prior to appellant's fall. We can find no fault with that
determination on this record. Moreover, under Ohio law, "[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. No.
06AP-81, 2006-Ohio-4075, ¶ 12. On this record, it would be pure speculation to make any
finding as to the length of time a defect in the handrail existed.
{¶ 40} We also find no support in the record for appellant's contention that DRC's
failure to discover the defect in the handrail was the result of the negligent performance of
inspections by PCI's employees. As previously stated, DRC is not an insurer of inmates'
safety. Skorvanek, 2018-Ohio-3870, at ¶ 28, Briscoe, 2003-Ohio-3533, at ¶ 20. A
landowner, such as DRC, " ' "has a duty to undertake reasonable inspections, not to inspect
everything that might conceivably cause injury." ' " (Emphasis sic.) See Rowe v. Pseekos,
10th Dist. No. 13AP-889, 2014-Ohio-2024, ¶ 7, quoting Aldamen v. Sunburst USA, Inc.,
10th Dist. No. 08AP-235, 2008-Ohio-5071, ¶ 17, quoting Tarkany v. Bd. of Trustees of Ohio
State Univ., 10th Dist. No. 90AP-1398 (June 4, 1991). A landowner who undertakes an
inspection is not held to a 100 percent success rate if the inspection was reasonable under
the circumstances. Rowe at ¶ 8, citing Fitch v. Lake Cty. Historical Soc., 11th Dist. No.
2001-L-135, 2002-Ohio-4223, ¶ 31. What constitutes a " 'reasonable inspection' " under
No. 18AP-731 14
the circumstances of a given case is ordinarily a question for the trier of fact. Rowe at ¶ 8,
quoting Aldamen at ¶ 17.
{¶ 41} In the Camp case, the evidence established that the bleacher plank failed
because it had detached from the support underneath and that the plank had been in that
condition for at least one year prior to Camp's fall. The evidence in Camp also established
that the inspections conducted of the bleachers were limited to a visible search for
contraband. Based on that evidence, the Court of Claims found that DRC's inspection
procedure with regard to the bleachers was not reasonable and DRC had constructive notice
that the broken bleacher plank created an unreasonably dangerous condition for inmate's
using the bleachers.
{¶ 42} Here, appellant presented insufficient evidence to establish the nature of the
defect in the stairway handrail. While the testimony at trial established that PCI employees
regularly conduct inspections of the premises, there is no evidence as to scope of the
inspections in general, and no evidence as to the inspection procedures employed with
regard to stairway handrails in particular. The fact that PCI had cordoned off the stairway
descent with yellow caution tape at some point in time establishes that PCI exercised some
degree of care with regard to known defects. On this record, however, there is insufficient
evidence to support a finding that reasonable inspection would have uncovered the defect
in the handrail prior to appellant's fall. Any such finding, on this record, would require
speculation and guesswork.
{¶ 43} For the foregoing reasons, we hold that the Court of Claims did not err when
it determined that DRC did not have actual or constructive notice of a defect in the stairway
handrail that rendered the stairway unreasonably dangerous for inmates using the
sidewalk. Accordingly, appellant's second, third, and fourth assignments of error are
overruled.
C. Appellant's fifth assignment of error
{¶ 44} In appellant's fifth assignment of error, appellant contends that the judgment
of the Court of Claims is against the manifest weight of the evidence. We disagree.
{¶ 45} "Judgments supported by some competent, credible evidence going to all the
essential elements of the case will not be reversed by a reviewing court as being against the
manifest weight of the evidence." C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279
No. 18AP-731 15
(1978), syllabus. "In determining whether a civil judgment is against the manifest weight
of the evidence, an appellate court is guided by the presumption that the findings of the
trial court are correct." Williams, 2019-Ohio-2194, at ¶ 10, citing Seasons Coal Co., Inc. v.
Cleveland, 10 Ohio St.3d 77, 80 (1984). "The underlying rationale of giving deference to
the findings of the trial court rests with the knowledge that the trial judge is best able to
view the witnesses and observe their demeanor, gestures and voice inflections, and use
these observations in weighing the credibility of the proffered testimony." Id. "Thus, the
relative weight to be given witness testimony and the credibility to be afforded each of the
witnesses is a question for the trier of fact." Williams at ¶ 17, citing Rahman v. Ohio Dept.
of Transp., 10th Dist. No. 05AP-439, 2006-Ohio-3013, ¶ 36.
{¶ 46} In overruling appellant's objections and adopting the magistrate's decision as
its own, the Court of Claims reviewed the magistrate's decision, the partial transcript filed
by appellant, and the trial exhibits admitted into evidence. The Court of Claims held that
appellant had failed to prove by a preponderance of the evidence that DRC breached a duty
of care it owed to appellant with respect to his fall that occurred on June 14, 2016. We have
also reviewed the partial transcript filed by appellant, and the trial exhibits admitted into
evidence, including the deposition testimony of inmates Kenney, Smith, and Jones. Based
on our review of the submitted evidence, and for the reasons set forth in connection with
our ruling on appellant's other assignments of error, we hold that the trial court's decision
in favor of DRC is not against the manifest weight of the evidence.
{¶ 47} We recognize that the record does not disclose any evidence of an
investigation into the cause of the handrail failure or an examination of the broken handrail.
Appellant, however, has not attributed the lack of such evidence in this case to any
wrongdoing on the part of DRC or its employees. Under Ohio law, the burden of proof in a
premises liability case predicated on negligence falls squarely on plaintiff. Harris v. Ohio
Dept. of Rehab. & Corr., Ct. of Claims No. 2016-00883JD, 2018-Ohio-2276, ¶ 11, quoting
Woods v. Ohio Dept. of Rehab. & Corr., 130 Ohio App.3d 742, 744 (10th Dist.1998).
Appellant failed to meet his burden of proof in this case. Accordingly, appellant's fifth
assignment of error is overruled.
No. 18AP-731 16
V. CONCLUSION
{¶ 48} Having overruled appellant's five assignments of error, we affirm the
judgment of the Court of Claims of Ohio.
Judgment affirmed.
KLATT, P.J., and BEATTY BLUNT, J., concur.
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