McAfee v. Overberg

• Decision Date: 13 July 1977
• Docket Number: No. 76-0432,76-0432
• Parties: , 5 O.O.3d 345 McAFEE v. OVERBERG, Dir., London Correctional Institute.
• Court: Ohio Court of Claims

Page 86

51 Ohio Misc. 86

367 N.E.2d 942, 5 O.O.3d 345

McAFEE v. OVERBERG, Dir., London Correctional Institute.

No. 76-0432.

Court of Claims of Ohio.

July 13, 1977.

Nicholas J. LaScalea and Michael F. Gehrig, Cincinnati, for plaintiff.

William J. Mooney, Columbus, for defendant.

BAYNES, Judge.

Plaintiff alleged physical injuries received as a result of negligence in the operation of tandem farm wagons hitched to a farm tractor. As a result of falling off the first wagon, a wheel of the second wagon ran over plaintiff's mid-section. His principal injury was a ruptured spleen which had to be surgically removed. The prayer was for $85,000, which at trial was reduced to $32,500.

Defendant generally denied and affirmatively alleged defenses of contributory negligence and assumption of the risk. Following submission of the evidence, the defendant did not allude to the assumption of risk defense. By the evidence, the issues are defendant's negligence, plaintiff's contributory negligence and damages. There was little, if any, conflict in the facts relating to the accidental occurrence. As to the damage issue, there was a substantial conflict.

I.

London Correctional Institute is a medium security place of confinement. The acreage is sufficiently large to permit an extensive live stock and grain operation. From the secured area (distinguished from the honor camp), "gangs" of inmates up to a maximum of nineteen men are placed under the supervision of an armed officer who supervises the inmates in performing work assignments made by the farm manager.

The long-time method of transporting inmate farm "gangs" on February 13, 1976, was on farm wagons pulled by a farm tractor. The inmates occupy the wagon to which the tractor is hitched and the second wagon is occupied by the armed officer, who may, at times, be accompanied by a "water boy" or honor inmate. The farm wagon beds were 7 X 14 feet, or 98 square feet of space. They had no side boards, racks, ladders or standards around the bed or at the ends.

The inmates would stand on the bed of the wagon facing forward. The tractor operator-inmate pulled the wagons at a speed not in excess of 10 m. p. h. on a hard surfaced 20 foot wide roadway in good condition. Between the work area on February 13 and the gate to the secured area, about a mile in length, the tractor operator would slow down at an abrupt curve and also where railroad tracks cross the roadway.

Plaintiff had been assigned to a farm "gang" for about fourteen months and had experienced a jerking from time to time while standing on the wagon, and he had never known an inmate to fall from a wagon in that period.

On the day in question, plaintiff was at the left rear corner of the first wagon, facing forward. His heels were 12 to 18 inches from the bed edge. After the inmate-operator of the tractor was about 100 feet past the railroad tracks, in the process of shifting gears, he, according to the "gang" officer, "released the clutch too fast." At this point, the wagons were jerked. Plaintiff turned to more or less face the rear and attempted to jump, as he was positioned, to the back wagon. He fell to the roadway and grabbed the left front corner of the rear wagon. In some manner, he was dragged under the left rear wheel which ran over his mid-section.

The inmate-operator of the tractor, one Lewis Ramsey, since paroled, was attempted to be subpoenaed by plaintiff to testify as a witness but had not been served by time of trial. The evidence tends to show that he had experience as a motor vehicle operator. That for a period of some three to five days prior to February 13, 1976, he had instruction (of some kind) from another inmate tractor operator. To the "gang" officer's recollection, this was the first day he could recall that inmate Ramsey had operated the tractor. Although yelled at by the inmates to stop the tractor after plaintiff fell, he did not promptly do so.

Plaintiff suffered scratches on his left forearm and on his mid-section. There were small cuts on the left side of his head above the eye and ear. After the spleen was surgically removed, a moderately sized subcapsular hematoma had evacuated itself and had not reformed on the left lobe of the liver. Plaintiff's recovery was excellent. He was released from the hospital and was returned to London on February 24. He had a final check on March 11, 1976, and was released without restrictions. He was returned to the farm "gang" for some period of time prior to June 23, 1976. On his complaint, the London Correctional medical director recommended a work assignment which would avoid lifting until August 22, 1976.

He was paroled February 2, 1977. He consulted a specialist in internal medicine in Cincinnati on March 12, 1977. He complained of easy fatigue, inability to left, lack of stamina and appetite. A keloid has formed at one of the stitches of the incision which is tender and probably will, in the future, require surgical repair or other treatment. Plaintiff saw the doctor two or three additional times to June 10, 1977. The plaintiff was five feet, nine inches tall and weighed 122 to 126 pounds in the March-June, 1977 period. His weight on February 13, 1976 was 120 pounds.

II.

From the evidence, it is our view that the sole question of the case is one of whether defendant was negligent. A liberal analysis of the evidence possibly raises issues of contributory negligence, which is an affirmative defense. There is no evidence sufficient to raise an issue of assumption of the risk.

A recovery by plaintiff must be based on defendant's duty, a breach of that duty, and injury.

With respect to the duty, the state was not required to exercise the highest degree of care. The state was required, if it was necessary to furnish inmates transportation between the work area and resident quarters, to furnish a safe and adequate means. Murray v. State (Ct.Claims 1933), 146 Misc. 417, 262 N.Y.S. 336. From the evidence in the case based upon foreseeability, it cannot be concluded that the means of transportation used was per se unsafe or inadequate.

Allowing a minimum of one foot free space around the perimeter of the bed of the wagon would leave 60 square feet of utilizable standing space (7' X 14' = 98 sq. ft. less 28 and 10 sq. ft. = 60 sq. ft.). With 15 men on the wagon, this would allow each one four square feet of space for standing room, which if adjusted to square inches of rectangular space, and would support plaintiff's estimate that his heels were 12 to 18 inches from the edge of the wagon bed.

The state is not an insurer of the safety of all of its inmates. Therefore, the fact, if it is a fact, the possibility existed that by some means or another, an inmate might be injured by falling off a wagon, for whatever reason, was a mere possibility and not a probability under the circumstances described. The law deals in probabilities and not possibilities.

We next consider whether or not either the inmate-operator's limited experience in operating a farm tractor, or the "too fast" release of the clutch, constituted negligence of the defendant which was a proximate cause of the accident and plaintiff's injuries.

We overruled, at trial, plaintiff's motion for a continuance when it was reported the Sheriff of Licking County had not yet served former inmate Ramsey with a subpoena mailed to the Sheriff by certified mail on June 21, 1977, for trial on June 30, 1977. The return of the Sheriff stated, in response to request to personally serve the subpoena, "I was unable to serve it upon him (Ramsey) for the following reasons: out of the county and don't know when he will return." Plaintiff had the obligation to take every precaution to insure the attendance of his witnesses. The reliability and availability of an inmate, or former inmate, may be considerably less than a reasonable probability.

Moreover, Carl Bailey, defendant's retired farm superintendent, who had sole authority over assignment of tractor operators, was subpoenaed by plaintiff and was present but not called. This case had been assigned since February 24, 1977. There was no reason why Ramsey's deposition could not have been taken as upon cross examination. Even though not an employee of defendant, Ramsey was performing his driver function under the direction and control of defendant's officer. To the extent of his function, the state had made him his agent. Washington v. State (1950), 277 A.D. 1079, 100 N.Y.S.2d 620; Cassidy v. State (Ct. of Claims 1957), 5 Misc.2d 835, 161 N.Y.S.2d 903.

Although letting out the clutch "too fast" might be more likely to happen with a tractor operator of limited experience, it could and did occur otherwise from time to time. So, it was not in and of itself an unexpected event as demonstrated by plaintiff's evidence. This leads to a next substantial question as to whether the wagon from which plaintiff fell was "violently jerked in multiple succession" as claimed in the trial brief and opening statement.

The law with respect to a jerk in the operation of a vehicle is most often the subject of litigation between passengers and common carriers, including elevators and escalators. Welch v. Rollman & Sons Co. (1942), 70 Ohio App. 515, 44 N.E.2d 726; Domany v. Otis Elevator Co. (U.S.C.A.6, 1966), 13 Ohio Misc. 161, 369 F.2d 604; Reiser v. Cincinnati Street Ry. (1952), 92 Ohio App. 24, 109 N.E.2d 284.

The only Ohio case we have noted with respect to an employee is that of Alexander v. N. Y. Cent. Rd. Co. (1963), 1 Ohio App.2d 460, 197 N.E.2d 822, in which Judge Troop of the Tenth District Court of Appeals stated at page 463, 197 N.E.2d at page 824:

"There is testimony here of a jerk that could be said to describe it as unusual."

The observation was made with respect to the necessity of submitting the issue of the negligence to a jury. (The trial court had directed a verdict for defendant.)

The rule stated in a carrier case, Yager v. Marshall (1935), ...