[Cite as Tate v. Ohio Dept. of Rehab. & Corr., 2002-Ohio-424.]
IN THE COURT OF CLAIMS OF OHIO
PHILLIP TATE :
Plaintiff
:
CASE NO. 2001-04956
v.
:
MAGISTRATE DECISION
:
Steven A. Larson, Magistrate
DEPARTMENT OF REHABILITATION
AND CORRECTION
:
Defendant
: : : : : : : : : : : : : : : : :
On November 29, 2001, this case was tried to a magistrate of
the court on the issues of defendant’s liability for negligence
and the civil immunity of Lieutenants Brock and Cox.
At all times relevant hereto, plaintiff was an inmate in the
custody and control of defendant pursuant to R.C. 5120.16.
His
complaint alleges that defendant was negligent for failing to
adequately clothe him in sub-zero weather during his transfer
from Madison Correctional Institution (MaCI) to Grafton
Correctional Institution (GCI); for failing to properly train and
supervise its employees; and for failing to establish policies in
regard to providing adequate winter clothing.
Plaintiff further alleges that actions of Lieutenants Brock
and Cox were malicious and intentional and, therefore, on
July 26, 2001, he moved for an immunity determination.
On
August 10, 2001, the court ordered that the issue of the immunity
of Lieutenants Brock and Cox be determined in conjunction with
the trial on the merits.
The court considered the evidence presented at trial to
determine whether Lieutenants Brock and Cox are entitled to civil
immunity pursuant to R.C. 2743.02(F) and 9.86.
R.C. 2743.02(F) provides, in part:
A civil action against an officer or employee,
as defined in section 109.36 of the Revised
Code, that alleges that the officer’s or
employee’s conduct was manifestly outside the
scope of his employment or official
responsibilities, or that the officer, or
employee acted with malicious purpose, in bad
faith, or in a wanton or reckless manner shall
first be filed against the state in the court
of claims, which has exclusive, original
jurisdiction to determine initially, whether
the officer or employee is entitled to personal
immunity under section 9.86 of the Revised Code
and whether the courts of common pleas have
jurisdiction over the civil action. ***
R.C. 9.86 provides, in part:
*** no officer or employee (of the state) shall
be liable in any civil action that arises under
the law of this state for damages or injury
caused in the performance of his duties, unless
the officer’s or employee’s actions were
manifestly outside the scope of his employment
or official responsibilities or unless the
officer or employee acted with malicious
purpose, in bad faith, or in a wanton or
reckless manner. ***
In Thomson v. University of Cincinnati College of Medicine
(October 17, 1996), Franklin App. No. API-02260, unreported, at
pgs. 10-11, the court noted that:
Under R.C. 9.86, an employee who acts in the
performance of his duties is immune from
liability. However, if the state employee acts
manifestly outside the scope of his or her
employment or acts with malicious purpose, in
bad faith, or in a wanton or reckless manner,
Case No. 2001-04956
-3-
MAGISTRATE DECISION
the employee will be liable in a court of
general jurisdiction. ‘It is only where the
acts of state employees are motivated by actual
malice or other such reasons giving rise to
punitive damages that their conduct may be
outside the scope of their state employment.’
James H. v. Dept. of Mental Health & Mental
Retardation (1980), 1 Ohio App.3d 60, 61. Even
if an employee acts wrongfully, it does not
automatically take the act outside the scope of
the employee’s employment even if the act is
unnecessary, unjustified, excessive, or
improper. Thomas v. Ohio Dept. of Rehab. and
Corr. (1988), 48 Ohio App.3d 86. The act must
be so divergent that its very character severs
the relationship of employer and employee.
Wiebod Studio, Inc. v. Ohio World Restorations,
Inc. (1985), 19 Ohio App.3d 246.
Based upon the totality of the evidence presented, the court
finds that both Lieutenants Brock and Cox acted within the scope
of their employment with ODRC at all times relevant hereto.
The
court further finds that neither Lieutenant Brock or Cox acted
with malicious purpose, in bad faith, or in a wanton or reckless
manner toward plaintiff.
Consequently, they are entitled to
civil immunity pursuant to R.C. 9.86 and R.C. 2743.02(F).
Therefore, the courts of common pleas do not have jurisdiction
over civil actions against them based upon the allegations in
this case.
In order for plaintiff to prevail upon his claim of
negligence, he must prove by a preponderance of the evidence that
defendant owed him a duty, that it breached that duty, and that
the breach proximately caused his injuries.
Hutchinson (1981), 67 Ohio St.2d 282, 285.
Strother v.
In the context of a
custodial relationship between the state and its prisoners, the
state owes a common law duty of reasonable care and protection
Case No. 2001-04956
-4-
from unreasonable risks.
204, 207.
MAGISTRATE DECISION
McCoy v. Engle (1987), 42 Ohio App.3d
Reasonable or ordinary care is that degree of caution
and foresight which an ordinarily prudent person would employ in
similar circumstances.
2 Ohio St.2d 310.
Smith v. United Properties, Inc. (1985),
Accordingly, the issue is whether defendant
breached its duty of reasonable care under the circumstances of
this case.
In the early morning hours of December 18, 2000, plaintiff
was told to get dressed and gather his personal items in
preparation for his transfer from MaCI to GCI.
Plaintiff
testified that he dressed warmly, gathered his personal items,
including a box marked “legal,” and proceeded as directed to the
receiving and discharge area at MaCI to await a bus for transfer.
The outside temperature that day was unusually cold, ranging
from a low of minus 12.8 degrees to a high of only minus 3.8
degrees.
(Plaintiff’s Exhibit F.)
Plaintiff testified that while he was waiting for the bus,
Lieutenant Brock noticed plaintiff’s box marked “legal” and
became upset, apparently because the box exceeded plaintiff’s
allocation of space.
Plaintiff claims that in retaliation for
transporting the extra box, Lieutenant Brock ordered him to
discard his underwear and travel in only light coveralls without
a coat.
The bus first traveled about one mile to London Correctional
Institution (LCI) to pick up additional inmates for transfer.
Although the distance was short, it took eight to ten minutes to
enter LCI through a sally port and an additional ten to fifteen
minutes to exit.
While the inmates at LCI boarded, plaintiff was
required to remain on the bus.
Plaintiff testified that the bus
Case No. 2001-04956
-5-
MAGISTRATE DECISION
was turned off upon entering and exiting LCI and while waiting
for inmates to board, thus, further extending the duration of
plaintiff’s exposure to freezing temperatures.
Instead of traveling directly to GCI, the bus made an
additional stop at the Correctional Medical Center (CMC) in
Franklin County, a trip that took approximately one hour.
Plaintiff testified that his prior trips to CMC took less time;
therefore, he believed that the bus driver, CO Gillespie,
purposely took a longer route to prolong plaintiff’s exposure to
freezing temperatures.
Plaintiff stated that there was no heat
on the bus, the windows were frosted inside and out, and the
plastic seats were cold and hard.
He shivered the entire trip
and arrived at CMC in agony.
Upon arrival at CMC, a well-equipped medical center,
plaintiff complained of headache, chest pain, and shivering.
reported that he had a history of high blood pressure.
He
Nurse
Supervisor Alvin Braddy examined plaintiff and the other fourteen
inmates who had arrived on the bus to determine if any had
received either frostbite or injuries during the trip from LCI.
(Plaintiff’s Exhibit D.)
Although plaintiff’s blood pressure was
elevated, an EKG excluded a cardiac problem.
In addition,
plaintiff showed no signs of frostbite.
Plaintiff was treated with Tylenol for his headache and
blood pressure medication for his elevated blood pressure.
Plaintiff and the other fourteen inmates were provided coats,
socks, underwear and undershirts for the final leg of the trip to
GCI.
After reaching GCI, the inmates were again medically
evaluated as part of the intake process.
Plaintiff’s medical
Case No. 2001-04956
-6-
MAGISTRATE DECISION
records confirm that he reported the bus being cold and that he
had to travel dressed in only a jumpsuit.
was “freezing all over.”
He complained that he
However, the medical record also
contains the notation “inmate has no complaints now, is dressed
in warm clothing, underwear & winter jacket.”
Exhibit 2.)
(Defendant’s
Plaintiff conceded that he did not seek medical
treatment for exposure to the cold after his arrival at GCI;
however, he testified that he remained in his dorm for two weeks
recovering from exposure to the cold during his transfer.
CO Gillespie testified that he transported the inmates by
bus from MaCI and LCI to GCI on December 18, 2000.
He started
the bus at approximately 5:50 a.m. and entered MaCI between 6:20
and 6:30 a.m.
He allowed the bus to idle long enough to warm up
prior to boarding inmates at MaCI at approximately 6:40 a.m.
CO
Gillespie explained, contrary to plaintiff’s testimony, that the
bus was operated by a diesel engine that was never shut off
except for two short periods of time while passing through
security at MaCI and LCI.
The bus also had an independent heater
located on the floor in the middle of the bus that had been
checked by CO Gillespie and found to be operating properly.
During the trip, no inmates complained of cold temperature or
requested additional clothing.
CO Gillespie testified that defendant’s policies require him
to alter his route of travel for security reasons and, therefore,
his route from LCI to CMC was selected for that reason and not to
prolong plaintiff’s exposure to the cold.
Based upon the evidence presented, the court finds that
defendant did not breach its duty of reasonable care to plaintiff
under the circumstances.
Temperatures on the day of plaintiff’s
Case No. 2001-04956
-7-
transfer were extremely cold.
MAGISTRATE DECISION
The COs participating in the
transfer followed established procedures with respect to
preparing the bus and inmates for transfer.
heater were operating properly.
The bus and its
The court finds that the claim
that plaintiff and inmate Stewart were singled out and required
to travel in only light coveralls is not credible.
The court further finds that as a result of the extreme
cold, despite being on a heated bus, the inmates were somewhat
affected by the cold.
In fact, medical personnel were waiting
for the bus to evaluate the condition of the inmates when they
arrived at CMC.
All fifteen inmates arriving at CMC were
evaluated and three, including plaintiff, were provided minor
medical treatment.
All inmates were issued coats, socks,
underwear and undershirts for the remainder of the trip to GCI.
The court finds that defendant’s response to the unusual
situation of extreme cold was reasonable and, in fact, prevented
any injury to the inmates.
The court concludes that plaintiff did not prove that
defendant failed to establish policies regarding provision of
adequate winter clothing or that defendant failed to properly
train and supervise its employees regarding the transfer of
inmates in cold weather.
In fact, the execution of defendant’s
policies under the extreme weather conditions ultimately
prevented any injuries to inmates.
Accordingly, judgment is recommended in favor of defendant
on the issue of liability.
________________________________
STEVEN A. LARSON
Case No. 2001-04956
-8-
Magistrate
MAGISTRATE DECISION
[Cite as Tate v. Ohio Dept. of Rehab. & Corr., 2002-Ohio-424.]
Entry cc:
Phillip Tate, #183-479
Grafton Correctional Institution
2500 South Avon Beldon Road
Grafton, Ohio 44044
Pro se
Lisa M. Donato
65 East State St., 16th Fl.
Columbus, Ohio 43215
Assistant Attorney General
SAL/cmd
Filed 1-16-2002
To S.C. reporter 2-5-2002
