LEONARD J. STERN, Judge.
Upon review of the referee's report and recommendation the court hereby adopts the same. See Appendix. Accordingly, plaintiff's claim is dismissed. Court costs assessed against plaintiff.
Claim dismissed.
LEONARD J. STERN, J., retired, of the Supreme Court of Ohio, sitting by assignment.
APPENDIX Referee's Report Issued April 15, 1988
MARY P. TOTH, Referee.
On October 28, 1985, David Darst, an inmate at the Southern Ohio Correctional Facility, filed this action alleging that he suffered a severe allergic reaction due to defendant's negligence. Specifically, plaintiff claims defendant was negligent in training corrections officers in the proper use of mace, failing to remove him from his cell when mace was used on other inmates, and failing to provide him with adequate medical treatment for his allergic reaction.
Defendant, the Department of Rehabilitation and Correction, contends it conducts training in the use of mace. In addition, defendant submits it was justified in not removing plaintiff from his cell while mace was being used in the cellblock and also that plaintiff received adequate medical care at the institution.
Findings of Fact
1. Plaintiff was confined to Administrative Control at the Southern Ohio Correctional Facility from March 21, 1985 through March 28, 1986.
2. Although mace was never sprayed directly on plaintiff, he was exposed to mace fallout on April 7, 1985, and on several other occasions during his confinement in Administrative Control.
3. Plaintiff suffered an allergic reaction in the form of contact dermatitis whenever he was exposed to mace fallout.
4. Plaintiff was not moved from his cell to a holding cell whenever mace was used on other inmates.
5. Defendant trains its corrections officers in the proper use of mace.
6. Defendant's policies for the use of mace are within the scope of the guidelines for the use of force and are controlled by Ohio Adm. Code 5120-9-01. Said code section enumerates six situations when the institution's staff may legally use force against an inmate. They are as follows:
A. Self-defense from an assault by an inmate;
B. Defense of third persons, such as other employees, inmates, or visitors, from an assault by an inmate;
C. Controlling or subduing an inmate who refuses to obey prison rules and regulations;
D. Prevention of crime, such as malicious destruction of state property or prison riot;
E. Prevention of escape; and
F. Controlling an inmate to prevent self-inflicted harm.
7. On June 4, 1985, defendant implemented Security Policy 600: Use of Aerosol Chemical Dispenser.
8. After being exposed to mace and with the onset of his allergic reaction, plaintiff requested medical attention.
9. Plaintiff was treated for his allergy to mace by defendant's medical staff on at least thirteen different occasions.
10. Defendant adequately treated plaintiff for his allergic reaction to mace fallout.
Conclusions of Law
In order to establish negligence, it must be shown that defendant owed plaintiff a duty, breached that duty and an injury proximately resulted from defendant's breach. DiGildo v. Caponi (1969), 18 Ohio St.2d 125, 47 O.O.2d 282, 247 N.E.2d 732. The existence of defendant's duty depends on the foreseeability of plaintiff's injury. Thompson v. Ohio Fuel Gas Co. (1967), 9 Ohio St.2d 116, 38 O.O.2d 294, 224 N.E.2d 131. Whether or not plaintiff's injury was foreseeable depends on defendant's knowledge. Id. In the case at bar, defendant owed a duty to plaintiff to protect him from exposure to mace if it was foreseeable that plaintiff would suffer an allergic reaction.
In determining whether defendant should have recognized plaintiff would react to mace fallout, only the circumstances which were perceived or should have been perceived by defendant's agents at the time of the macing are to be considered. Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 15 OBR 179, 472 N.E.2d 707. Evidence presented at trial reveals that during the April 7, 1985 incident involving inmate White, defendant had no knowledge plaintiff was allergic to mace. In fact, it appears plaintiff did not even realize he was allergic to mace prior to said incident.
Furthermore, as demonstrated at trial, the spray from the aerosol canister sprays in a stream rather than as a fog or mist. It is unforeseeable that the stream, being confined to a central area, would reach plaintiff. Therefore, even though fallout from the mace caused plaintiff to experience a reaction, defendant owed no duty to protect plaintiff because it was unknown that plaintiff would come in contact with the fallout and experience medical problems thereafter. Id. On this basis, defendant is not liable for negligence in connection with the April 7, 1985 incident.
Plaintiff's complaint alleges he was exposed to mace fallout on several other occasions during May, June, July and August 1985. Although neither party provided dates or circumstances surrounding the incidents, it is apparent from the medical records that plaintiff was exposed to mace on several occasions. Whether or not the corrections officers who used mace knew about plaintiff's allergy is debatable. Neither party presented sufficient evidence to support its contention.
Nevertheless, even if the corrections officers knew plaintiff was allergic to mace, defendant is not liable to plaintiff if the unreasonableness of the risk to plaintiff is outweighed by the impracticability of avoiding said risk. Thompson v. Ohio Fuel Gas Co., supra. In the case at bar, defendant is the legal custodian of prisoners, some of whom may be dangerous. Defendant is authorized to use force, including mace, to control inmates in six situations. Ohio Adm. Code 5120-9-01(C)(1-6). These situations frequently need immediate attention to maintain order and security within the institution. This is especially true, since all of the alleged incidents occurred in the Administrative Control area of the institution. It often would be a security risk to delay whatever situation is at hand for the purposes of moving plaintiff from his cell.
Since plaintiff has not presented any evidence about the macing incidents between May and August 1985, the court cannot conclude it was practical for defendant to delay controlling the situation to avoid exposing plaintiff to mace. In this vein, plaintiff alleges defendant was negligent in training its corrections officers in the proper use of mace.
Defendant's duty to develop policies and procedures for staff training is embodied in Ohio Adm. Code 5120:1-8-18. Evidence produced at trial shows corrections officers are bound by the policies set forth in Ohio Adm. Code 5120-9-01 regarding the use of force. Furthermore, defendant has drafted Security Policy 600, which specifically guides officers in the use of mace and other aerosol chemical dispensers. In addition, there was testimony by the institution's staff training officer indicating corrections officers actually received training pursuant to the foregoing policies and procedures. Plaintiff has not sufficiently produced evidence showing defendant did not train its officers or that defendant trained them negligently.
It must be noted, plaintiff alleges defendant's procedures for using mace have changed since he was exposed to mace in 1985. However, Ohio Adm. Code 5120-9-01 became effective on December 10, 1979 and Security Policy 600 was implemented beginning June 4, 1985. Furthermore, although plaintiff makes this claim, he did not show how the procedures have changed, thereby proving defendant may have at one time been negligent. Therefore, this claim is without merit.
Finally, plaintiff claims defendant was negligent in treating his allergy. Once again, plaintiff must establish defendant owed him a duty, defendant breached its duty, and an injury proximately resulted from defendant's breach. DiGildo v. Caponi, supra.
Defendant has a statutorily imposed duty to provide plaintiff, and all inmates, with medical care whenever they become ill or injured. R.C. 2921.44(C) provides in part:
"No officer, having charge of a detention facility, shall negligently do any of the following:
"(1) * * *
"(2) Fail to provide persons confined in the detention facility with adequate * * * medical attention."
According to the evidence, plaintiff received medical attention for his contact dermatitis. The medical records reveal plaintiff was treated in some fashion for his allergy on at least thirteen occasions between April and December 1985, including April 7, 1985. However, since no evidence was presented by either party of specific dates and circumstances of the incidents after April 7, 1985, it is impossible to determine whether medical treatment was timely rendered. Furthermore, no evidence was presented regarding whether the treatment given by the institution's medical staff was a proper course of treatment. Therefore, plaintiff has not proved by a preponderance of the evidence that defendant breached its duty to plaintiff to provide medical treatment.
In summary, plaintiff makes three claims of negligence against defendant: failure to remove him from his cell while mace was used in his cellblock, failure to properly train corrections officers in the use of mace, and failure to provide adequate medical treatment. Plaintiff claims said negligence in connection with several alleged incidents when mace was used to control other inmates in the cellblock and also plaintiff's consequential allergic reaction to mace fallout. The only remotely specific evidence presented at trial involves an incident which occurred on April 7, 1985. For this reason, the referee finds plaintiff has failed to prove each of his claims by a preponderance of the evidence.
Based on the foregoing findings of fact and conclusions of law, the referee accordingly recommends that plaintiff's claim be denied on the ground that plaintiff has failed to sustain his burden of proof in showing defendant is liable for his injury.