to S.C Reporter 12/20/17
Timothy M. Miller Assistant Attorney General.
Patrick M. McGrath, Judge.
Currently before the court are plaintiff Scott Payne's
objections which, after obtaining an extension, he filed on
August 29, 2017. Defendants Ohio Department of Rehabilitation
and Correction (DRC) and Office of Risk Management filed a
memorandum contra the objections on September 29, 2017.
Plaintiffs claims stem from an accident that occurred on May
16, 2014, during which plaintiff fell approximately
five-and-a-half feet from a loading dock to the pavement
below after one of DRC's employees drove a truck away
from the dock while plaintiff unloaded it. After the parties
stipulated to liability, the case proceeded to a damages
trial before the court's magistrate. On July 17, 2017,
the magistrate issued a decision recommending judgment for
plaintiff in the amount of $12, 025.00, representing $12, 000
in damages plus the $25 filing fee. Plaintiff delineates
three objections to the magistrate's decision.
Objections to factual findings must be supported by a
transcript or, where a transcript is unavailable, with an
affidavit of evidence, the latter of which plaintiff
submitted with his objections. Civ.R. 53(D)(3)(b)(iii).
Further, Civ.R. 53(D)(3)(b)(ii) provides "[a]n objection
to a magistrate's decision shall be specific and state
with particularity all grounds for objection." As to the
trial court's duty when considering objections, Civ.R.
53(D)(4)(d) provides, in pertinent part:
Action on objections. If one or more
objections to a magistrate's decision are timely filed,
the court shall rule on those objections. In ruling on
objections, the court shall undertake an independent
review as to the objected matters to ascertain that the
magistrate has properly determined the factual issues and
appropriately applied the law. (emphasis added).
The trial court has the ultimate authority and responsibility
over the magistrate's findings and rulings. The trial
court must undertake an independent review of the
magistrate's report to determine any errors.
When reviewing a magistrate's decision, the trial court
does not sit in the position of an appellate court. Instead,
the trial court must conduct a de novo review of the facts
and conclusions in the magistrate's decision. As the
ultimate finder of fact, the trial court must make its own
factual determinations through an independent analysis and
should not adopt the magistrate's findings unless the
trial court fully agrees with them. It is the trial
court's obligation to determine whether the magistrate
properly determined the facts and applied the appropriate
law. If the trial court determines, in its judgment, the
magistrate has failed to do so, the trial court must
substitute its judgment for that of the magistrate.
Ramsey v. Ramsey, 10th Dist. Franklin No. 13AP-840,
2014-Ohio-1921, 2014 Ohio App. Lexis 1868, ¶¶ 16-17
(internal citations omitted).
SUBMITTED AN INCOMPLETE AFFIDAVIT OF EVIDENCE, AFFORDING A
PROPER BASIS UPON WHICH TO OVERRULE OBJECTIONS TO FACTUAL
As noted, plaintiff submitted an affidavit of evidence due to
his inability to pay for a transcript. In Gumins v. Ohio
Dep't of Rehab. & Corr., 10th Dist. Franklin No.
10AP-941, 2011-Ohio-3314, 2011 Ohio App. Lexis 2755, ¶
13; 16, the 10th District indicated that Civ.R.
53(D)(3)(b)(iii) requires a description of all the
relevant evidence and the omission of certain evidence would
be a proper basis for rejecting an affidavit offered in
support of objections. See also Gladden v. Grafton Corr.
Inst, 10th Dist. Franklin No. 05AP-567, 2005-Ohio-6476,
2005 Ohio App. Lexis 5814, ¶ 8 (An affidavit of evidence
does not comply with Civ.R. 53 unless it includes "all
of the evidence presented to the magistrate, not merely
selected portions of the evidence.")
In Gill v. Grafton Corr. Inst, 10th Dist. Franklin
No. 10AP-1094, 2011-Ohio-4251, 2011 Ohio App. Lexis 3562,
¶ 16, the 10th District stated:
An objecting party, therefore, cannot disregard unfavorable
evidence in compiling an affidavit of evidence. Additionally,
nothing prevents an opposing party from pointing out that an
affidavit omits relevant evidence or inaccurately states the
evidence. If a trial court suspects that an affidavit of
evidence is incomplete or incorrect, it may hear the matter
itself, take additional evidence, or return the matter to the
magistrate with a request that the magistrate provide his or
her own recollection of the evidence.
the 10th District has indicated that, when faced with an
affidavit that fails to describe all relevant evidence, the
court's options range from rejection of the affidavit to
conducting further proceedings to requesting that the
magistrate weigh-in on the evidence presented.
Defendants did not take issue with plaintiffs affidavit.
However, a comparison between it and the magistrate's
factual findings makes clear that plaintiff's affidavit
omits certain evidence. For example, the magistrate noted Dr.
Houglan's testimony that plaintiff had not been
purchasing Tylenol from the commissary despite instructions
to do so whereas plaintiff, though contesting this fact,
makes no mention of this testimony in his affidavit. The
magistrate also cited Dr. Houglan's testimony that
plaintiff's limp became exaggerated or "more
theatrical" when plaintiff knew he was being observed,
any mention of which is absent from plaintiff's
affidavit. Further, the magistrate cited plaintiff's
testimony that he suffered another fall subsequent to the May
16, 2014 accident upon which his claims are based and that he
started using a cane after this later fall. Plaintiff's
affidavit makes no mention of the subsequent fall. While