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Payne v. Ohio Department of Rehabilitation and Correction

Court of Claims of Ohio

November 20, 2017

SCOTT PAYNE Plaintiff
v.
OHIO DEPARTMENT OF REHABILITATION AND CORRECTION, et al. Defendants

          Sent to S.C Reporter 12/20/17

          Timothy M. Miller Assistant Attorney General.

          DECISION

          Patrick M. McGrath, Judge.

         {¶1} 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.

         {¶2} 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).

         In reviewing objections:

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).

         PLAINTIFF SUBMITTED AN INCOMPLETE AFFIDAVIT OF EVIDENCE, AFFORDING A PROPER BASIS UPON WHICH TO OVERRULE OBJECTIONS TO FACTUAL FINDINGS.

         {¶3} 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.")

         {¶4} 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.

         Thus, 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.

         {¶5} 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 plaintiff's ...


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