Patrick S. Wolfe v. Ohio Department of Rehabilitation and Correction

• Decision Date: 07 January 1992
• Docket Number: 91AP-554,92-LW-0487
• Parties: Patrick S. Wolfe, Plaintiff-Appellant v. Ohio Department of Rehabilitation and Correction, Defendant-Appellee
• Court: Ohio Court of Appeals

Patrick S. Wolfe, Plaintiff-Appellant v. Ohio Department of Rehabilitation and Correction Defendant-Appellee

No. 91AP-554.

92-LW-0487 (10th)

Court of Appeals of Ohio, Tenth District Franklin.

January 7, 1992

APPEAL from the Ohio Court of Claims.

MR RICHARD F. SWOPE, for appellant.

MR. LEE FISHER, Attorney General, and MS. VELDA K. HOFACKER, for appellee.

OPINION

STRAUSBAUGH J.

This is an appeal by plaintiff from a decision of the Court of Claims which adopted the report of its referee who found that plaintiff had failed to prove, by a preponderance of the evidence, that his injuries resulted from the negligence of defendant.

The case at bar arises out of an accident involving plaintiff which occurred on March 6, 1989.

On that day, plaintiff, an inmate, was on his way to the Ross Correctional farm to perform his farming duties, for which he was granted an allowance of $22 per month. When the accident occurred, plaintiff was attempting to exit the back of a truck in which he was riding when he slipped on some ice that had formed on the truck. He grabbed a chain which stretched across the back of that vehicle and fell as the snap holding the chain to the truck broke. Plaintiff alleges he was injured as a result of this fall.

There was evidence that the ice upon which plaintiff slipped as well as the chain with its snap were all there when he entered the truck that morning. Plaintiff testified that he had used the chain to lift himself up onto the truck and had walked on that ice when he entered the truck that morning. There was further evidence that the accumulation of the ice in and about the truck, was there naturally as a result of inclement weather.

The case sub judice is now before us on appeal from the decision of the trial court as to liability. The trial court had bifurcated this issue from the issue of damages prior to trial. Plaintiff sets forth eleven assignments of error:

"1. The Referee and the trial court erroneously applied the standard regarding falls on real property in parking areas and walkways to vehicles used to transport prison workers by motor vehicle.

"2. The Referee and the trial court erroneously found the State did not have actual or constructive notice when an ice sheet had formed on a loading area and bumper of the truck and thereby violated the duty imposed by the policies of the institution to take all actions necessary to correct safety hazards.

"3. The Referee and the trial court erroneously held that the Plaintiff was not an employee in spite of clear evidence that he received compensation for his work in the beef barn which was credited to his account on a regular monthly basis.

"4. The Referee and trial court erroneously held that the Plaintiff-Appellant was not subject to the provisions of the Workers Compensation Act, and did not qualify as a frequenter because he was not involved with a pursuit involving mechanical power, in light of the fact that the activity was agricultural in nature.

"5. The Referee and trial court erred in ruling that Section 5120.03, Ohio Administrative Code does not impose upon a penal institution the duty to meet a standard of care at least as great as that provided for frequenters when the evidence demonstrates total lack of standards for safety of inmate workers as well as violation of the understood rules that there should be inspection and correction of any safety hazard.

"6. The Referee and trial court erroneously applied the standard of care applicable to real property in relation to ice and snow and not the standard applicable where a company or prison provides transportation and controls the egress and ingress to the means of transportation.

"7. The Referee and trial court erred by improperly casting the burden on an inmate who was under the exclusive control of the Department of Rehabilitation and Correction to remove a hazard created by ice and snow to correct a potential dangerous condition.

"8. The Referee and trial court erroneously failed to apply existing regulations for safety chains directly controlling which established an accepted standard of care in [the] industry.

"9. The Referee and trial court erroneously failed to apply the doctrine of res ipsa loquitur when it [is] clear that the Department of Rehabilitation and Correction had the sole responsibility for the installation, maintenance, and inspection of the safety chain and connecting device.

"10. The Referee and trial court ignored and failed to follow the Court of Claims ruling in Rippey v. Department of Rehabilitation & Correction (1987), Case No. 85-11037AD, that provides a prison must provide inmates with a safe place to work.

"11. The Referee's decision approved by the trial court is erroneous as a matter of law."

In his first, sixth, and seventh assignments of error, plaintiff claims that the trial court erred in deciding the issues of duty of care and the standard of care. In particular, he argues that the trial court did not apply the proper case law in determining the duty of care owed by defendant to plaintiff; that the duty of care discussed in Ohio case law concerning natural accumulations of ice and snow should not have been used by the trial court; and that such case law applies to accumulations of ice and snow on real property and not on personalty. Plaintiff maintains that the standard of care applied to common carriers should have been used to determine if defendant was negligent. Thus, plaintiff asserts that the highest standard of care should have been applied by the trial court.

We find that the trial court did not err in applying the so-called "ice and snow" cases to the facts at bar. Debie v. Cochran Pharmacy-Berwick, Inc. (1967), 11 Ohio St. 2d 38, holds that where an owner is not shown to, have notice, actual or implied, of the natural accumulation of ice on his property which makes his property more dangerous than could be anticipated by the users of his property, given their knowledge of the prevailing conditions in the area, there is a failure of the proof of actionable negligence, i.e., there is no duty to the user concerning the icy condition of the property. (See, also, Borchers v. Baltes (Sept. 19, 1991), Montgomery App. No. 12688, unreported.) Although these cases have traditionally been applied to cases involving premises liability, their rationale applies equally well to the natural accumulation of ice and snow on personalty. Where a user of property, whether realty or personalty, can fully appreciate a risk brought about by "mother nature," and the user exposes himself to that risk, he relieves the owner of the property of his duty. Such users have a primary duty of self-protection since they undoubtedly have knowledge of the dangers of ice and snow.

We find the trial court applied the proper standard of care. We disagree with plaintiff's argument that defendant was acting as a common carrier at the time of the accident. A "common carrier" is an entity which transports persons or property for hire. See Words and Phrases, Ohio Jurisprudence 3d (1991), Common Carrier, 260-261. There is no evidence in the record that defendant was transporting plaintiff for hire at the time of the accident.

Accordingly, plaintiff's first, sixth and seventh assignments of error are overruled.

In his second assignment of error, plaintiff argues that the trial court made a factual error in determining that the defendant had no notice of the formation of ice on or about the truck on the day of the accident. The referee stated, "the supervisor did not observe the accumulation of ice on the truck until after *** [the] accident. Perhaps more importantly, he had not been informed of the icy condition either before the inmates boarded the truck or after it stopped at their destination."

In reviewing the transcript of trial, we find there is no evidence to support plaintiff's argument that defendant had knowledge, either actual or constructive, of the ice. The evidence demonstrates that the icy state of the truck was not brought to defendant's attention by plaintiff nor by any of the other inmates riding the truck the day of the accident, nor did defendant observe the ice. Further, it cannot be said that the weather conditions the day of or the day before the accident were sufficient to place defendant on notice of the truck's icy condition. Even assuming that defendant had some knowledge of the ice, this would not impose a duty upon defendant since there was no evidence to demonstrate that defendant's property, i.e., the truck, would have been more dangerous than expected by plaintiff. Plaintiff, himself, testified that he saw no great danger from the ice. Accordingly, plaintiff's second assignment of error is overruled.

In his third assignment of error, plaintiff argues that the trial court erred in not finding that he was an employee. Plaintiff contends that the payment of the stipend of $22 per month was evidence of his employment.

We do not agree that plaintiff was an employee of defendant at the time of his injury. A contract of employment contemplates at least two parties capable of giving their consent. Plaintiff did not consent to the work he was doing, but was performing the task as a convict by operation of law and not by consent or contract of hire. There is no evidence of agreement voluntarily entered into, no consideration, no mutuality of agreement, or intent to contract between competent parties. The small reward of $22 per month was merely an inducement to this inmate to cooperate with the corrections program. See Fondern v. Dept. of Rehabilitation (1977) 51 Ohio App. 2d 180; McCoy v. Ohio Dept. of Rehabilitation & Correction (1986), 31 Ohio App. 3d 228, and Schwartz v. Ohio Dept. of Adm. Services (June 4, 1981), Richland App. No. CA-...