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Macklin v. Ohio Department of Rehabilitation and Correction9/26/2002
(REGULAR CALENDAR)
DECISION
. Plaintiff-appellant, Virgil Macklin, appeals from the judgment of the Ohio Court of Claims in favor of defendant-appellee, Ohio Department of Rehabilitation and Correction ("DRC").
. Appellant alleged that DRC was negligent in connection with two unrelated incidents that occurred while appellant was incarcerated. The first incident occurred at the Marion Correctional Institute on October 10, 1997, when appellant tripped over an orange plastic cone in the cafeteria dishwashing area. The second incident occurred at the Ohio State Penitentiary on September 27, 1999, when appellant tripped and fell in the shower. In lieu of a transcript, appellant has provided this court with a statement of evidence, pursuant to App.R. 9(C). According to the App.R. 9(C) statement, the following evidence was offered at trial.
. The first incident occurred in 1997, when appellant was incarcerated at the Marion Correctional Institute ("MCI"). In October 1997, appellant worked in the MCI cafeteria. Appellant testified that there was an orange plastic cone on the floor near the dishwashing machine. He stated that the cone was approximately ten to twelve inches high, and it had the words "wet floor" written on it. Appellant stated that he had seen the cone in the same location for the entire eight-to-ten-day period that he had worked in the cafeteria prior to October 10, 1997.
. Appellant testified that he got to the cafeteria at 11:00 a.m. on October 10, 1997, so that he could eat lunch before the general population of inmates arrived. After he finished his meal, appellant collected his items and walked to the dish room. He testified that the floor was dry. While he was walking to the sink, appellant noticed the orange cone in its usual position, although he did not pay particular attention to the cone. Appellant testified that, when he turned to leave the kitchen, he tripped over the cone and fell to the floor, injuring his neck, back and right knee. He stated that he had thought that if he kicked the cone it would simply move out of his way, although when his foot made contact with the cone, the cone did not move. After he fell, he discovered that the cone had concealed a drainage pipe that protruded approximately four inches above the tile floor. Appellant testified that Sergeant Gary Heaberlin called a nurse, and both Heaberlin and the nurse told appellant that they had also fallen over the cone.
. Sergeant Heaberlin testified that, although he worked in the MCI kitchen area, he did not work on October 10, 1997. He provided a copy of his work schedule, which confirmed that he did not work on October 10, 1997. He denied that he had ever tripped over the cone or that he had ever told an inmate that he had tripped over the cone. Heaberlin testified that the drainage pipe was part of the original kitchen design. He stated that he had observed the wheels of a tray cart catch on the pipe at some time prior to October 10, 1997. Heaberlin testified that he was told to place an orange cone over the pipe so that carts would not catch on the pipe.
. Robin Robinette, a nurse at the facility, testified that she responded to the scene after appellant fell. She testified that she had never fallen over the cone and she did not tell appellant that she had fallen over the cone.
. James Washington, another MCI inmate, testified that no one ever told him what was under the orange cone but that, after appellant's fall, he discovered that the cone concealed a pipe with a cap. He testified that the pipe was two to three inches in height with a three-quarter inch nut on top.
. The second incident occur
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