McCoy v. Ohio Dept. of Rehabilitation & Correction, 85AP-773

• Decision Date: 13 May 1986
• Docket Number: No. 85AP-773,85AP-773
• Citation: 31 Ohio App.3d 228,511 N.E.2d 398,31 OBR 511
• Court: Ohio Court of Appeals
• Parties: , 31 O.B.R. 511 McCOY, Appellee, v. OHIO DEPARTMENT OF REHABILITATION & CORRECTION, Appellant. *

Page 228

31 Ohio App.3d 228

511 N.E.2d 398, 31 O.B.R. 511

McCOY, Appellee, v. [The State of Ohio,] OHIO DEPARTMENT OF REHABILITATION & CORRECTION, Appellant. ^*

No. 85AP-773.

Court of Appeals of Ohio, Tenth District, Franklin County.

May 13, 1986.

Syllabus by the Court

In an action in the Court of Claims by an inmate of a state correctional facility injured while performing labor of an agricultural nature on a prison farm located on prison premises, R.C. 4101.11 and 4101.12 are not applicable where the evidence fails to show (1) that the inmate was an "employee," as defined by R.C. 4101.01(D), and (2) that the injury occurred during agricultural pursuits involving "mechanical power," as that term is used in R.C. 4101.01(A) and (B).

Jaffy, Livorno, Kaufmann & Arnett Co., L.P.A., and Walter Kaufmann, Columbus, for appellee.

Anthony J. Celebrezze, Jr., Atty. Gen., and Mark T. D'Alessandro, Columbus, for appellant.

WHITESIDE, Judge.

Defendant, the state of Ohio, Department of Rehabilitation and Correction, appeals from an $18,000 judgment entered against it in the Court of Claims as the result of an injury sustained by plaintiff, Russell McCoy, an inmate of the Chillicothe Correctional Institute, while he was working on the prison farm located on prison premises.

Yearling bulls, each weighing four hundred to five hundred fifty pounds, were enclosed in a fenced corral while waiting to undergo castration. Two chutes parallel to one another opened off the corral, and it was the responsibility of plaintiff to operate a "collar," in reality a set of lever-activated gates, which would enclose the neck of the bull, restraining it while it underwent the castration process. Plaintiff, assisted by another inmate who was to operate the collar situated at the end of the other chute, stood inside another corral located at the opposite end of the chute from the corral in which the bulls awaited castration. Plaintiff was injured when the other inmate failed to collar his bull, thus permitting it to run into the area where plaintiff stood. The bull butted plaintiff in the biceps region, causing a partial avulsion of the right biceps muscle.

Defendant, the state of Ohio, raises two assignments of error as follows:

"1. The trial court erred in holding that Chapter 4101 Ohio Revised Code is applicable to a cause of action against the Department of Rehabilitation and Correction brought by an inmate for personal injury sustained while working at a penal institution.

"2. The finding of the trial court that the defendant negligently operated its farm operation is against the manifest weight of the evidence."

Although plaintiff contends that he also presented a claim predicated upon common-law negligence, the Court of Claims did not predicate its finding of liability thereon. Instead, the trial court concluded that the state violated R.C. 4101.11 and 4101.12, which read as follows:

"Every employer shall furnish employment which is safe for the employees engaged therein, shall furnish a place of employment which shall be safe for the employees therein and for frequenters thereof, shall furnish and use safety devices and safeguards, shall adopt and use methods and processes, follow and obey orders, and prescribe hours of labor reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees and frequenters." (R.C. 4101.11.)

"No employer shall require, permit, or suffer any employee to go or be in any employment or place of employment which is not safe, and no such employer shall fail to furnish, provide, and use safety devices and safeguards, or fail to obey and follow orders or to adopt and use methods and processes reasonably adequate to render such employment and place of employment safe. No employer shall fail to do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees or frequenters. No such employer or other person shall construct, occupy, or maintain any place of employment that is not safe." (R.C. 4101.12.)

The court further concluded that, notwithstanding plaintiff's status as an inmate in a correctional institution, the definitions of employment, employer and employee contained in R.C. 4101.01(B), (C) and (D) are applicable. Those sections provide as follows:

"(B) 'Employment' means any trade, occupation, or process of manufacture or any method of carrying on such trade, occupation, or process of manufacture in which any person may be engaged, except in such private domestic service or agricultural pursuits as do not involve the use of mechanical power.

"(C) 'Employer' means every person, firm, corporation, agent, manager, representative, or other person having control or custody of any employment, place of employment, or employee.

"(D) 'Employee' means every person who may be required or directed by any employer, in consideration of direct or indirect gain or profit, to engage in any employment, or to go, or work, or be at any time in any place of employment."

The court then concluded that:

"As a result of the negligence by the state the plaintiff suffered a partial avulsion of the muscle belly of the bicep[s] muscle at the distal portion of the muscle belly in his right arm."

While conceding that R.C. 2743.02 imposes liability upon the state upon the same basis as it would rest upon a private person, defendant argues that a prisoner and the state do not share an employee-employer relationship within the meaning of R.C. 4101.11 and 4101.12. We agree that plaintiff's status as a prisoner does not make him an employee of the institution in which he is incarcerated even though he may be required to perform services in connection with his incarceration. See Fondern v. Dept. of Rehabilitation & Correction (1977), 51 Ohio App.2d 180, 5 O.O.3d 325, 367 N.E.2d 901. However, plaintiff's prisoner status does not preclude his becoming an employee of the institution for purposes of R.C. 4101.11 and 4101.12 if other indicia of employment are present. R.C. 4101.11 places a duty upon an employer to furnish a safe place of employment for employees, while R.C. 4101.12 prohibits an employer from maintaining or requiring, permitting or suffering an employee to be in a place of employment which is not safe and from failing to take adequate safeguards to insure the safety of employees.

Pursuant to R.C. 4101.01(D), one is an employee only if required or directed to engage in employment or work in consideration of direct or indirect gain or profit. A prisoner performing services required as one of the conditions of imprisonment does not ordinarily do so for gain or profit but, rather, as a requirement of his involuntary servitude. However, if a prisoner performs services for a consideration of direct or indirect gain or profit, he may become an employee of the institution within the contemplation of R.C. 4101.01(D). Here, there is no evidence that plaintiff performed the services in consideration of direct or indirect gain or profit rather than as involuntary servitude required because of his prisoner status. The only evidence on the subject is a statement by an unidentified person during argument on defendant's motion to dismiss at the conclusion of plaintiff's case to the effect that they are paid "$20 a month." Even assuming such a meager payment is made, such payment does not indicate that the prisoner is performing services for a consideration of direct or indirect gain or profit rather than performing involuntary servitude as a condition of his imprisonment. Employment connotes a voluntary relationship, even though while that relationship exists the employer may exert control over the employee who remains free to discontinue the relationship rather than perform services he does not wish to perform. A prisoner, however, has no such option but is required to perform services as involuntary servitude as one of the conditions of his having been sentenced to incarceration.

Plaintiff argues to the effect that the consideration involved may flow to the employer; however, R.C. 4101.01(D) refers to...