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Moore v. Ohio Dept. of Rehab. & Corr.6/15/1993
PETREE, Judge.
Plaintiff, John Moore, an inmate at the Marion Correctional Institution, appeals from the Court of Claims of Ohio. Following a bench trial on his personal injury claim, the trial court found for defendant, the Ohio Department of Rehabilitation and Correction. Plaintiff presents eight assignments of error here, as follows:
"I. The trial court erred in failing to hold that the owner of real property owes a continuing duty to inspect, maintain, and keep its premises in a good state of repair so as not to injure persons lawfully on its premises.
"II. The trial court erred in failing to hold that the defendant was not vicariously liable as an owner performing inherently dangerous work on its premises and by holding that the defendant was immune from liability by reason of its employment of prison labor in performing this inherently dangerous work.
"III. The trial court erred in failing to find that the defendant, as an independent contractor performing construction work on its premises, was liable for its negligence during the course of construction which proximately caused injury to the plaintiff who was rightfully on the premises.
"IV. The trial court erred in failing to apply the doctrine of res ipsa loquitur, thereby shifting the burden of showing the absence of negligence to the defendant.
"V. The trial court erred in failing to find that the plaintiff proved by the greater weight of the evidence that the defendant was negligent, which negligence proximately caused the plaintiff's injuries.
"VI. The trial court erred in holding that the testimony of inmates John Mack and Gregory Qualls concerning the knowledge of supervisors Jan Wolfe and Dan Tripp that the skylight was cracked and in need of repair was inadmissible hearsay.
"VII. The trial court's finding that the sole proximate cause of the injuries to the plaintiff was the negligence of inmate Werner in tripping over the cement block is against the manifest weight of the evidence and contrary to law.
"VIII. The trial court erred and abused its judicial discretion in overruling plaintiff's motion under Civ.R. 53(E)(2) to receive the testimony of supervisor Jan Wolfe and inmate Bobby Dogan."
On July 3, 1990, plaintiff was sitting at a table on break at the prison maintenance building when an inmate named Werner, who was helping to refurbish the roof on the building, tripped over a cement block that was holding down glued rubber roofing material. Inmate Werner fell against one of the building's many wire-reinforced, corrugated glass skylights, causing big chunks of three-eighths-inch-thick glass to fall twenty feet onto plaintiff's bare head. Plaintiff suffered multiple injuries and filed suit in the Court of Claims, alleging that his-injuries would not have occurred if the institution had been careful in selecting and training the inmate roofers, if the skylights in the maintenance building had been properly repaired and their cracked glass changed prior to the roof work being performed, and if inmate Werner had not been careless on the job .
The cause was heard before a referee appointed by the court. In his report, the referee found that plaintiff had failed to prove that defendant had any actual or constructive notice of a dangerous condition concerning the skylight, that plaintiff had failed to prove that defendant was negligent in any respect regarding the inmate roofing crew, and that defendant had proved that the proximate cause of plaintiff's injuries was the sole negligence of inmate Werner, who could not be characterized as an employee of defendant. Though plaintif
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