Yoe v. Ohio Dept. of Agriculture
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[Cite as Yoe v. Ohio Dept. of Agriculture, 2009-Ohio-1568.]
Court of Claims of Ohio
The Ohio Judicial Center
65 South Front Street, Third Floor
Columbus, OH 43215
614.387.9800 or 1.800.824.8263
www.cco.state.oh.us
AUDRA YOE, Admr., et al.
Plaintiffs
v.
OHIO DEPARTMENT OF AGRICULTURE
Defendant
Case No. 2005-09006
Judge Joseph T. Clark
DECISION
{¶ 1} Plaintiffs brought this action asserting survivorship and wrongful death
claims on behalf of the estate of the decedent Greyson Yoe. Plaintiffs’ decedent, an
eight-year-old child, received a severe electrical shock when he came into contact with
a metal railing of a bumper car ride known as the “Scooter” at the Lake County Fair on
August 12, 2003.
{¶ 2} Plaintiffs assert that employees of defendant were negligent when they
inspected the electrical connections associated with the ride and failed to ascertain that
utility power was supplied to the ride through wires that were not properly connected or
grounded. Plaintiffs have requested a determination that the employees who inspected
the ride are not entitled to civil immunity pursuant to R.C. 2743.02(F) and 9.86
inasmuch as they allegedly acted maliciously, in bad faith, and in a reckless, willful and
wanton manner.
inspectors.
Plaintiffs also argue that defendant failed to adequately train the
The issues of liability and damages were bifurcated and the case
proceeded to trial on the issues of liability and civil immunity.
{¶ 3} Defendant, Ohio Department of Agriculture (ODA), contends that the duty
to inspect the ride was a duty owed to the general public and inasmuch as its inspectors
did not have any special relationship to plaintiffs’ decedent, defendant owed no duty to
protect the minor child from the negligent acts of a third party.
In the alternative,
defendant argues that the alleged negligent inspection was not the proximate cause of
the child’s death.
{¶ 4} ODA’s inspector, Ted Brubaker, testified that he was hired by ODA in April
2003 and that he had worked previously as a mechanic for 25 years at Cedar Point
Amusement Park. Brubaker admitted that he had no previous training or experience in
performing electrical inspections. He explained that from April through August 2003, he
had received training on the job while he worked with another, more-experienced
inspector. According to Brubaker, he arrived at the Lake County Fair on August 11,
2003, and began inspecting various games and rides. He recalled that on August 12,
2003, he approached the Scooter with another inspector, Kalin Turner, who had been
assigned to assist him. Both testified that when they first arrived at the Scooter, the ride
was not yet operational so they went on to complete inspections for other rides and then
returned.
{¶ 5} During their inspection, Brubaker and Turner noted some deficiencies and
informed the owner, Mr. Chaffee, that he needed to correct the problems before the ride
could be licensed. One of the deficiencies involved a bank of lights above the entrance
to the ride that was not illuminated.
According to the inspectors, the ride operator or
owner was instructed to repair it, replace it, or remove it. When they returned a third
time, Brubaker and Turner discovered that the ride was open to the public and operating
despite the fact that a license had not been issued. They also noted that the inoperable
panel of lights had been removed and placed on the ground behind the ride. They
allowed the ride to operate temporarily in order to complete their assessment. Once
they finished their inspection of the Scooter, they jointly completed the inspection form,
and then permitted the Scooter ride to resume operation.
{¶ 6} The inspection form allowed for a code of Satisfactory (indicated by a
checkmark), Unsatisfactory (U), Does not apply (X), or Remarks (R) for several
categories including location and installation, structural integrity, and electrical safety.
For any instances where (R) was used, written remarks were added at the bottom of the
page. On the inspection form pertaining to the Scooter, Brubaker placed a checkmark
beside the entries that stated that the ride was properly grounded and that all cables
were properly connected at plugs and boxes. Brubaker testified that he had assumed
that the Scooter was powered by a generator that he had seen on another part of the
fairgrounds. He stated that he had observed the generator and he had verified that the
generator was properly grounded. He admitted, however, that he had not traced the
wires emanating from the Scooter to its source of power.
{¶ 7} Turner corroborated Brubaker’s description of events that had taken place
on August 12, 2003. He testified however, that he never thought that the ride was
powered by a generator, that he knew the ride was powered by utility power from a pole
located near the ride, and that he understood that the connection was completed by an
individual identified to him as the “fair electrician.” He explained that on one site visit he
saw a man in a bucket truck connecting cable to “the secondary” at the top of the utility
pole and that Robby, the Scooter operator, told him that the individual was the
electrician for the fair. Turner testified that he had been employed by ODA for over 20
years, that he had extensive experience in inspecting rides, and that he received annual
training from ODA on topics relevant to his duties. Turner stated that he did not verify
that the wires were properly connected as it was his policy and practice to defer to the
electrician when a ride was powered by utility power.
Nevertheless, he also
acknowledged that this was the first time that he had seen the power cable connected
at the top of the pole.
{¶ 8} Conversely, Brubaker testified that even if he had noticed the power being
connected at the top of the utility pole he would not have had the expertise to discern
whether it was connected properly. Indeed, he testified that he had never before seen a
fair powered by a mix of utility power and generators.
{¶ 9} Lieutenant Ron Walters testified that he was in charge of security for the
fair and that he had worked a security detail there for the previous eight to ten years.
On the night in question, once he learned that a young boy had been seriously injured
near the Scooter he immediately responded and took charge of the scene. He recalled
that the Scooter was still energized and the lights remained on. When he went to the
power pole to disconnect the power to the ride, he realized that the cable did not run
through the disconnect boxes on the pole but rather that the power was connected at
the top of the pole.
He then sought to have the operator cut the power from the
disconnect box at the back of the ride so that the bumper cars were shut down.
{¶ 10} Walters completed an investigation and identified Nicholas Rock as the
retired electrical lineman who had worked for the fair board and who had connected or
set up the rides over the years. Walters determined that Rock had performed the
electrical work to connect the Scooter to utility power on this occasion as well. Walters
also testified that the connection made by Rock was determined to have been improper
in that the green or ground wire was not connected at the secondary access; rather, it
had been looped over and left disconnected at the top of the utility pole. Walters
asserted that as he stood at the base of the pole and looked up, he had been able to
discern from that position that the green wire was hanging loosely and not connected.
{¶ 11} Plaintiffs’ electrical expert, Ralph Dolence, testified that he was asked to
help Lieutenant Walters determine what caused Greyson Yoe to suffer the electrical
shock. Upon inspection, Dolence was able to trace the power cable from the back of the
ride, across the grass, and follow it to the power pole where it was looped around (but
not connected at) the metal disconnect box attached to the pole. Instead, the cable
went up to the top of the pole where it was connected at the secondary access area.
Upon closer inspection from a bucket truck, Dolence noted that the green ground wire
was left dangling at the top of the pole and that it was not connected to a grounding wire
or rod.
{¶ 12} According to Dolence, he then began to isolate various circuits throughout
the ride to discover where the suspected fault was located. As he moved closer to the
front of the Scooter, it became evident that the fault was contained in a circuit that
included the missing panel of lights at the front of the ride. He then questioned the
owner regarding the possibility of any broken or loose wires.
Chaffee responded
immediately that he knew where the problem originated and he took Walters to the top
of the ride to the junction box associated with the inoperative light panel. Chaffee
recalled that during times of assembling and disassembling the ride, an electrical wire
near the light canopy in the front of the ride had been pulled loose and not repaired. In
fact, it was learned through the investigation that this damaged wire accounted for the
inability of Chaffee to make the light panel operational. Dolence concluded that the
severe electrical shock suffered by Greyson Yoe occurred when an exposed wire inside
a connector box became energized and then, due to the jarring movement of the ride,
the tip of the wire came in contact with the metal wall of the junction box causing current
to flow through the metal bonded parts of the ride.
{¶ 13} Dolence explained that when an energized wire unintentionally touches a
metal surface while the entire structure is properly grounded, the energy travels to the
ground and the circuit breaker is tripped.
In this case, with the ground wire not
connected to the grounding rod buried beside the utility pole, when the ride became
energized the breaker was not tripped and the AC (alternating current) continued to flow
through the metal structure. Once Greyson Yoe touched the energized metal railing
and then stepped off the ride ramp onto the ground, all of the current surged through
him.
{¶ 14} Upon cross-examination, Dolence acknowledged that the current which
caused injury to Greyson Yoe was the AC that was powering the lighting panel.
Dolence further conceded that the disconnect boxes attached to the utility pole were
fully in use such that the fair electrician most likely would have had to add another
temporary disconnect box to the pole in order both to connect the cable and to ground it
properly. Dolence then responded that even assuming that the cable could not have
been connected in some manner through one of the disconnect boxes already on the
pole, the electrician still could have rigged a jumper to connect the green wire at the top
of the pole to the grounding wire located at the bottom of the pole and that had he done
so this would have prevented the electrical injury.
{¶ 15} Plaintiffs also presented their safety consultant, Kenneth Martin, who
testified that he was a certified amusement ride inspector for the state of Virginia.
Martin stated that he had inspected over 5,000 rides in Virginia and that he had also
inspected the Scooter twice. He explained that the term Scooter was actually a brand
name but that it referred to bumper car rides, that this particular ride with the same
owner was in Virginia, and that he had previously inspected it. He opined that an
inspection should start from the foundation and work upwards. He further opined that a
reasonably trained inspector should be able both to discern the source of the power
connected to the ride and to assess whether or not the ride is properly grounded. He
further opined that a reasonably competent inspector should have identified that the
power was tapped into at the top of the pole, that the connecting cable or wire was not
brought down the pole through a disconnect box, rather that it flowed directly to the ride
and that this configuration was improper. In addition, he emphasized that the Scooter
was more of an electrical ride than a mechanical ride such that the thoroughness of the
electrical inspection takes on greater significance.
{¶ 16} On cross-examination, however, Martin confirmed that the industry
standard places the ultimate responsibility for safety with the amusement ride owner
and that the inspection process merely verifies that the owner has complied with
industry standards.
{¶ 17} Defendant presented the testimony of its Chief of the Division of
Amusement Ride Safety, James Truex.
Truex acknowledged that the purpose of
having rides inspected by ODA is to protect the riding public from harm. Nevertheless,
Truex explained that rides such as the Scooter are temporary and portable, that the
rides are assembled and disassembled frequently, and that the owners transport the
rides from fair to fair during the summer season. Truex admitted that Brubaker had not
yet attended classroom training on the basics of electrical safety, but he noted that
Brubaker did receive some on-the-job training prior to his being assigned to the Lake
County Fair. Truex explained that inspectors hired by the department are not licensed
electrical contractors or electrical engineers. He related that an inspector performs a
mostly visual inspection of the various applicable inspection points for the particular
ride, be it mechanical, electrical or inflatable. In addition, inspectors assess whether
electrical equipment is grounded in accordance with basic electrical safety standards.
He emphasized, however, that in order to operate in Ohio, an amusement ride need be
inspected only once during a calendar year. Consequently, the mere possession of a
permit or the display of a metal decal affixed to the ride does not serve as a guarantee
to the public that the ride is safe. Rather, according to Truex, the owner is solely
responsible to perform daily pre-opening inspections and to properly set up and
maintain the amusement ride.
I. CIVIL IMMUNITY
{¶ 18} R.C. 9.86 provides, in pertinent part:
{¶ 19} “[N]o officer or employee shall be liable in any civil action that arises under
the law of this state for damage or injury caused in the performance of his duties, unless
the officer’s or employee’s actions were manifestly outside the scope of his employment
or official responsibilities, or unless the officer or employee acted with malicious
purpose, in bad faith, or in a wanton or reckless manner.”
{¶ 20} R.C. 2743.02(F) provides, in pertinent part:
{¶ 21} “A civil action against an officer or employee * * * that alleges that the
officer’s or employee’s conduct was manifestly outside the scope of the officer's or
employee’s employment or official responsibilities, or that the officer or employee acted
with malicious purpose, in bad faith, or in a wanton or reckless manner shall first be filed
against the state in the court of claims, which has exclusive, original jurisdiction to
determine, initially, whether the officer or employee is entitled to personal immunity
under section 9.86 of the Revised Code and whether the courts of common pleas have
jurisdiction over the civil action.”
{¶ 22} The issue whether Brubaker and Turner are entitled to immunity is a
question of law. Nease v. Medical College Hosp., 64 Ohio St.3d 396, 1992-Ohio-97,
citing Conley v. Shearer, 64 Ohio St.3d 284, 292, 1992-Ohio-133.
The question
whether they acted outside the scope of their employment, or with malicious purpose, in
bad faith, or in a wanton or reckless manner is one of fact. Tschantz v. Ferguson
(1989), 49 Ohio App.3d 9.
Plaintiffs bear the burden of proving that the state
employees should be stripped of immunity. Fisher v. University of Cincinnati Med. Ctr.
(Aug. 25, 1998), Franklin App. No. 98AP-142.
{¶ 23} After due consideration of the testimony and evidence presented, the
court finds that plaintiffs failed to establish that the conduct of either Brubaker or Turner
was manifestly outside the scope of their state employment.
Furthermore, in the
context of immunity, in order to find malicious purpose, bad faith, or wanton or reckless
conduct there must be a showing that the employee harbored a willful or intentional
design to do injury; acted upon self-interest or sinister motive; and/or perversely
disregarded a known risk. See, e.g., Jackson v. Butler Cty. Bd. of Cty. Commrs. (1991),
76 Ohio App.3d 448, 453-454; Lowry v. Ohio State Highway Patrol (Feb. 27, 1997),
Franklin App. No. 96API07-835; Hackathorn v. Preisse (1995), 104 Ohio App.3d 768,
771; Thompson v. McNeill (1990), 53 Ohio St.3d 102.
{¶ 24} “Malice” has been defined as the “‘willful and intentional design to do
injury, or the intention or desire to harm another, usually seriously, through conduct
which is unlawful or unjustified.’” Lowry, supra; quoting Jackson, supra, at 453-454.
“Bad faith” was defined in Lowry, as “‘a design to mislead or deceive another, * * * not
prompted by an honest mistake as to one’s rights or duties, but by some interested or
sinister motive.’” Id., quoting Black's Law Dictionary (5 Ed.1979) 127. Finally, the term
“reckless,” refers to when one “‘does an act or intentionally fails to do an act which it is
his duty to the other to do, knowing or having reason to know of facts which would lead
a reasonable man to realize, not only that his conduct creates an unreasonable risk of
physical harm to another, but also that such risk is substantially greater than that which
is necessary to make his conduct negligent.’” Id., quoting Thompson, supra, at 104105. See also Habeeb v. Ohio House of Representatives, Franklin App. No. 07AP-895,
2008-Ohio-2651.
{¶ 25} The court finds that the testimony of both Brubaker and Turner was candid
and credible, and that there was nothing in their testimony or demeanor that compelled
the court to believe that either of them harbored willful, intentional, sinister or perverse
motives or dispositions toward either plaintiffs’ decedent or fair riders in general. In
addition, the court finds insufficient evidence to prove that the electrical safety
inspection of the Scooter was performed with malicious purpose, in bad faith, or in a
wanton or reckless manner. In so holding, the court notes that Turner testified that his
pattern and practice was to rely on the expertise of the electrician in those instances
when he learned that an electrician had performed the work to connect a ride. The court
finds that Turner’s deference to an electrician (based upon his expectation that an
electrician would complete the connections in a proper manner) did not rise to the level
of recklessness.
{¶ 26} Likewise, the court finds that Brubaker’s actions do not rise to the level
necessary to constitute wanton or reckless conduct.
Evidence presented at trial
emphasized that the inspectors have general guidelines to follow rather than specific
requirements as to how the inspections are to be performed. Brubaker testified that he
thought the ride was powered by a generator and that he had verified that the generator
was properly grounded. Truex testified that, in fact, all but two rides at the fair were
powered by the generator. In addition, Brubaker stated that it was not his usual practice
to trace all the wires that were emanating from a generator as they snaked and
crisscrossed throughout the fairgrounds. Thus, upon review, the court finds that the
evidence fails to demonstrate that the conduct of Brubaker or Turner rises to the level
necessary so as to strip them of civil immunity under R.C. 2743.02(F) and 9.86.
II. Negligence
{¶ 27} According to ODA, its licensing and inspection functions are intended to
benefit the public, generally. In the decision denying defendant’s motion for summary
judgment, the court stated that the public-duty rule1 does not apply to the situation
presented in this case. In so ruling, the court relied on the holding of the Supreme
Court of Ohio in Wallace v. Ohio Dept. of Commerce, 96 Ohio St.3d 266, 2002-Ohio4210. The Supreme Court held that pursuant to the express language of former R.C.
2743.02(A)(1) the state’s liability in the Court of Claims must be determined “‘in
accordance with the same rules of law applicable to suits between private parties.’” Id.
¶ 31. The court opined that “[g]iven the unambiguous directive of R.C. 2743.02(A),
there is no legal or logical basis to conclude that the public-duty rule, which is by
definition unavailable to private litigants, can apply to suits against the state in the Court
of Claims.” Id. ¶ 26. Accordingly, the court held that “[i]n negligence suits against the
state, the Court of Claims must determine the existence of a legal duty using
conventional tort principles that would be applicable if the defendant were a private
individual or entity.” Id. ¶ 31.
{¶ 28} Defendant argues that its performance of licensing and inspecting
functions pursuant to statute does not result in a personal guarantee of safety such that
it creates a cause of action to individual members of the public. In Hoffert, et al. v.
Owatonna Inn (1972), 293 Minn. 220, the Supreme Court of Minnesota upheld the
1
The public duty rule provided that “[w]hen a duty which the law imposes upon a public official is
a duty to the public, a failure to perform it, or an inadequate or erroneous performance, is generally a
public and not an individual injury.” Sawicki v. Ottawa Hills (1988), 37 Ohio St.3d 222, paragraph two of
the syllabus.
dismissal of a complaint and a third-party complaint that had been filed against the city
of Owatonna2 by plaintiffs and a motel owner after plaintiffs were injured in a fire at the
motel. The complaints alleged that the building code inspector acted negligently in
issuing a building permit for remodeling to the motel that violated the city’s building
code. The court found that a “building inspector acts exclusively for the benefit of the
public. The act performed is only for public benefit, and an individual who is injured by
any alleged negligent performance of the building inspector in issuing the permit does
not have a cause of action.” Id. at 223. Likewise, in Lemke v. Dept. of Commerce, Ct.
Cl. No. 2004-07093, 2007-Ohio-1869, ¶ 3 the court noted that when the state grants a
license to an exhibitor of fireworks, the state only had a “ministerial duty” to issue or
renew such licenses on an annual basis to applicants who met certain basic
requirements.
Accordingly, the court held that the state agency owed no duty to
spectators who alleged injuries from the explosion of an errant firework.
{¶ 29} ODA also argues that even if a duty were owed to plaintiffs’ decedent, the
state has immunity from liability in tort when it makes policy decisions that involve a high
degree of official judgment or discretion.3 The doctrine of discretionary immunity “has
been applied to immunize the state from liability for discretionary decisions.” (Citations
omitted.) Young v. Univ. of Akron, Franklin App. No. 06AP-1022, 2007-Ohio-4663, ¶ 14.
Despite defendant’s assertion of immunity, the court finds that ODA can be held liable
for negligently implementing such decision.
{¶ 30} Additionally, the negligent implementation of a basic policy decision may
also be actionable, even if such implementation allows state employees to exercise
some degree of discretion. Young at ¶ 15. Thus, the court concludes that ODA may be
found liable for the alleged negligently performed inspection.
{¶ 31} Defendant asserts that the Ohio legislature never intended for the state to
be liable in negligence to any one person with regard to the issuance of licenses and
the performance of inspections. Despite the fact that the legislature has since amended
R.C. 2743.02 to grant the state immunity with respect to the performance of licensing
2
The court noted that the city admitted it had waived any municipal immunity by purchasing
liability insurance. Id. at 222.
and inspection activities; the circumstances forming the basis of this case occurred prior
to the effective date of the amendment and therefore, the court is bound by the
Supreme Court’s holding in Wallace.4
{¶ 32} In order to prevail upon a claim of negligence, plaintiffs must prove by a
preponderance of the evidence that defendant owed plaintiffs’ decedent a duty, that
defendant’s acts or omissions resulted in a breach of that duty, and that the breach
proximately caused injuries to plaintiffs’ decedent. Armstrong v. Best Buy Company,
Inc., 99 Ohio St.3d 79, 81, 2003-Ohio-2573, citing Menifee v. Ohio Welding Products,
Inc. (1984), 15 Ohio St.3d 75, 77.
{¶ 33} “‘The existence of a duty is fundamental to establishing actionable
negligence, without which there is no legal liability.’ Adelman v. Timman (1997), 117
Ohio App.3d 544, 549, 690 N.E.2d 1332. Determination of whether a duty exists is a
question of law for the court to decide. Mussivand v. David (1989), 45 Ohio St.3d 314,
318, 544 N.E.2d 265.” Uhl v. Thomas, Butler App. No. CA2008-06-131, 2009-Ohio-196,
¶ 10.
{¶ 34} Former R.C. 1711.53 states as follows:
{¶ 35} “(A)(1) No person shall operate an amusement ride within the state
without a permit issued by the director of agriculture under division (A)(2) of this section.
The owner of an amusement ride, whether the ride is a temporary amusement ride or a
permanent amusement ride, who desires to operate the amusement ride within the state
shall, prior to the operation of the amusement ride and annually thereafter, submit to the
department of agriculture an application for a permit, together with the appropriate
permit and inspection fee, on a form to be furnished by the department. Prior to issuing
any permit the department shall, within thirty days after the date on which it receives the
application, inspect each amusement ride described in the application.
{¶ 36} “(2) For each amusement ride found to comply with the rules of the
director issued under division (B) of this section and division (B) of section 1711.551
[1711.55.1] of the Revised Code, the director shall issue an annual permit, provided that
3
To the extent that plaintiffs responded to defendant’s assertion of immunity by relying on an
analysis of Chapter 2744 of the Revised Code, the court notes that the statutory language cited therein
refers to political subdivisions and not to the state.
4
The amendment to R.C. 2743.02(A)(3)(a) went into effect on March 31, 2005.
evidence of liability insurance coverage for the amusement ride as required by section
1711.54 of the Revised Code is on file with the department.
{¶ 37} “(3) The director shall issue with each permit a decal indicating that the
amusement ride has been issued the permit. The owner of the amusement ride shall
affix the decal on the ride at a location where the decal is easily visible to the patrons of
the ride. A copy of the permit shall be kept on file at the same address as the location
of the amusement ride identified on the permit, and shall be made available for
inspection, upon reasonable demand, by any person.
An owner may operate an
amusement ride prior to obtaining a permit provided that such operation is for the
purpose of testing the amusement ride or training amusement ride operators and other
employees of the owner and the amusement ride is not open to the public.
{¶ 38} “(B) The director, in accordance with Chapter 119. of the Revised Code,
shall adopt rules providing for a schedule of fines, with no fine exceeding five thousand
dollars, for violations of sections 1711.50 to 1711.57 of the Revised Code or any rules
promulgated pursuant to this division and for the classification of amusement rides and
rules for the safe operation and inspection of all amusement rides as are necessary for
amusement ride safety and for the protection of the general public. Rules adopted by
the director for the safe operation and inspection of amusement rides shall be
reasonable and based upon generally accepted engineering standards and practices.
In adopting rules under this section, the director may adopt by reference, in whole or in
part, the national fire code or the national electrical code prepared by the national fire
protection association, the standards of ASTM or the American national standards
institute, or any other principles, tests, or standards of nationally recognized technical or
scientific authorities. Insofar as is practicable and consistent with sections 1711.50 to
1711.57 of the Revised Code, rules adopted under this division shall be consistent with
the rules of other states. The department shall cause sections 1711.50 to 1711.57 of
the Revised Code and the rules adopted in accordance with this division and division
(B) of section 1711.551 [1711.55.1] of the Revised Code to be published in pamphlet
form and a copy to be furnished without charge to each owner of an amusement ride
who holds a current permit or is an applicant therefor.”
{¶ 39} According to the evidence produced at trial, there was no specific process
that inspectors in Ohio were required to follow when performing an inspection. The
Ohio Administrative Code contains the procedure for safety inspection of amusement
rides or devices. Former Ohio Adm.Code 901:9-1-04 reads as follows:
{¶ 40} “(A) The owner of an amusement ride shall ensure that the ride or device
is well maintained and conforms to the manufacturer's or equivalent specifications or in
the absence of such specifications, generally accepted engineering standards and
practices.
{¶ 41} “(B) Inspection of amusement rides and devices shall be conducted by
authorized inspectors of the department in accordance with the provisions of rules
901:9-1-01 to 901:9-1-47 of the Administrative Code. These inspectors shall file a form
provided for this purpose for every ride or device they inspect. This form shall be kept
on file in the amusement ride safety division of the department for a minimum of two
years following the term of the permit application to that particular ride or device. All
rides submitted for inspection shall show evidence that the ride is in substantial
compliance with all owner requirements of American society for testing and materials,
volume 15.07, 2003 edition, (ASTM) standards regarding amusement rides currently in
effect.”
{¶ 42} While an inspection of the ride must be completed before ODA issues a
license to operate during the calendar year, ODA contends that such act does not
proclaim that the ride is safe and the public does not rely on the ODA inspection as an
assurance of ride safety. ODA argues that once the permit is issued, another inspection
is not required until the following year and it remains the responsibility of the owner to
ensure that the ride is properly assembled and safe to operate on any given day. The
court finds that defendant’s argument might have been more compelling had the injury
to Greyson Yoe happened at some later time after the Scooter had been moved to
another location, rather than mere hours after the inspectors completed their task and
allowed the ride to operate.
{¶ 43} The court takes notice of a limited number of cases upholding a private
cause of action against state actors based upon negligent performance of their
assigned tasks. The Supreme Court of Alaska found in Adams v. Alaska (1976), 555
P.2d 235 that the state could be held liable for its failure to abate fire hazards found
upon inspection of a hotel under construction. In that case, inspectors from the state
fire marshal’s office had inspected the Gold Rush Hotel while the third floor was still
under construction. Several hazards were noted, including an inoperative fire alarm
system, and the hotel manager was informed that he would receive written notification
concerning the deficiencies.
During the following months, the state failed both to
formally notify the hotel of the deficiencies and to order their remedy. A fire caused
injuries and fatalities when the alarms failed to sound and the hotel desk clerks, who
were going room by room to rouse the guests, were halted by smoke and flames and
forced to flee the building. Rather than focusing on the existence of any statutory duty,
the court in Adams, supra, determined that the state owed a common-law duty to act in
a reasonable manner.
{¶ 44} “The responsibility to perform the act may arise from [statute], but the duty
to perform the act with reasonable care arises from principles of common law
negligence.” Brennen v. Eugene (1979), 285 Ore. 401, 407, 591 P.2d 719. (Emphasis
sic.) See also Walls v. City of Columbus (1983), 10 Ohio App.3d 180 (finding potential
common-law tort liability against the state where a state employee negligently furnished
incorrect information to a police officer resulting in plaintiff’s arrest).
{¶ 45} In Reynolds v. State (1984), 14 Ohio St.3d 68, 70, the Supreme Court of
Ohio stated that “the state cannot be sued for its legislative or judicial functions or the
exercise of an executive or planning function involving the making of a basic policy
decision which is characterized by the exercise of a high degree of official judgment or
discretion. However, once the decision has been made to engage in a certain activity or
function, the state may be held liable, in the same manner as private parties, for the
negligence of the actions of its employees and agents in the performance of such
activities.” (Emphasis added.) In this case, the court finds that once ODA instituted a
policy to inspect amusement
rides and specifically to perform electrical safety
inspections of rides, ODA’s employees had a duty to complete each inspection with due
care and in a reasonable manner.
{¶ 46} In order to find defendant liable on plaintiffs’ claim of negligence, the court
must determine that Brubaker and Turner violated a duty of care that was owed to
plaintiffs’ decedent. In Adams, supra, the court found that the inspectors owed a duty to
the hotel guests to detect and to remedy fire hazards. The court noted that plaintiffs
and their decedents, as guests of the hotel that was inspected, “were the intended
beneficiaries of the inspection services provided and the foreseeable victims of the fire
hazards left uncorrected.”
Id. at 241.
“The test for foreseeability is whether a
reasonably prudent person would have anticipated that an injury was likely to result
from the performance or nonperformance of an act. * * * The foreseeability of harm
usually depends on the defendant's knowledge.” Wallace v. Ohio DOC, Franklin App.
No. 99AP-1303, 2003-Ohio-6935, ¶ 24. Likewise, the duty to perform the amusement
ride inspection with reasonable care is a duty owed to those persons or the class of
persons who partake of the fair’s rides. Greyson Yoe was a member of the class of
persons who arrived at the fair and rode the Scooter that day.
{¶ 47} In the instant case, the issue involves the failure to discover that the ride
was not properly grounded, rather than the failure to abate a known hazard.
In
addressing this scenario, the Supreme Court of Alaska opined that “once an inspection
has been undertaken the state has a further duty to exercise reasonable care in
conducting fire safety inspections, and that liability will attach where there is a negligent
failure to discover fire hazards which would have been brought to light by an inspection
conducted with ordinary care. What constitutes reasonable care will, of course, vary
with the circumstances and hazards involved.” Adams, at 240-241.
{¶ 48} Here, both inspectors had a duty to visually inspect the electrical
connections that the owner used. In this case, the inspection process, though episodic,
took place over several hours, and the inspectors relied upon their own independent
observations concerning the source of power to the Scooter. ODA has not authored or
adopted a detailed procedure pertaining to amusement ride inspections; however, ODA
inspectors had access to an employee manual which listed general guidelines for
inspections. There was conflicting testimony as to whether ODA employees, including
Brubaker and Turner, utilized the manual on a regular basis.
{¶ 49} The court finds that the duty to inspect the ride in a reasonable manner
included the performance of a visual inspection of the electrical connections and an
assessment whether, based upon such visual inspection, the ride was properly
grounded. Turner stated that he was not an electrician, that he had assumed that the
electrician would connect the ride to utility power in a proper manner, and that it was his
normal practice when he encountered such a situation to rely on the electrician.
Brubaker testified that he assumed the Scooter was powered by the generator and that
he verified that the generator was properly grounded. Brubaker maintained that it was
not his custom or practice to trace the cables and wires emanating from the ride to the
power source, nor did he routinely follow all the cables from the generator to their
individual insertion point.
{¶ 50} The determination that the ride was properly grounded required some
level of deductive reasoning, and the inspectors compiled information based upon their
visual assessments. The troubling aspect of this case is that the inspectors concluded
that the ride was properly grounded based upon their observations made at the power
source, not based upon their inspection of the electrical connections and other
components originating from the Scooter. Plaintiffs assert that as a result of such failure
to visually inspect the cable and follow it to its power source, the inspectors’ conduct
was negligent. Indeed, plaintiffs insist that the simple act of tracing the thick cable from
the back of the ride to the nearby utility pole would have, at a minimum, raised concerns
for the inspectors about grounding safety inasmuch as the cable was obviously looped
around, and not through, the disconnect boxes. The court agrees.
{¶ 51} After considerable deliberation, the court finds that Brubaker and Turner
performed inadequate visual inspections and failed to complete their responsibilities
with due care. As a result of the failure to visually inspect the cable and to determine
either the true source of power for the Scooter or that the power cable was connected to
a grounding rod or wire, the inspectors failed to perform an adequate inspection. The
court finds that the assertion that the ride is properly grounded required some level of
deductive reasoning, yet the inspectors neglected to compile the visual assurance that
such was accurate. The fact that this ride was entirely dependent upon electrical power
to operate emphasizes to the court the significance of the duty of care that was owed by
the inspectors.
Thus, the court finds that Brubaker and Turner did not perform
adequate inspections or complete their responsibilities with due care.
{¶ 52} In finding that Brubaker and Turner did not act with due care in the
performance of their inspection of the Scooter, the court does not believe that the
inspectors were required to climb to the top of the ride as part of the inspection.
Moreover, the evidence at trial showed that even assuming that they had done so, they
would not have been able to readily observe the exposed wire that was contained in the
connector box. In addition, the court was not convinced that an inspector standing at
the base of the utility pole would be able to see or to recognize the presence of the
green-colored ground wire. Indeed, the court was not persuaded that a person could
determine from that vantage point that the wire was disconnected and hanging loose.
{¶ 53} The court does find, however, that had an adequate inspection been
performed, no reasonable ride inspector would have concluded that the ride was
properly grounded.
Brubaker assumed, incorrectly, that a generator on site at the
fairgrounds was the source of power; whereas, Turner disregarded his duty to perform a
visual inspection of the cables and connections and instead relied upon his observation
of the fair electrician who was in the process of connecting the cable from the Scooter to
the top of the utility pole. Assuring that the ride was properly grounded according to
basic electrical safety standards was a key component of the inspection. The court also
notes that there was abundant testimony and evidence presented concerning the
deterioration in various components of the ride including broken gauges, disabled
bumper cars, and missing insulation from cabled wires. The court realizes that none of
these trouble spots caused or substantially contributed to the injury suffered by the
minor child. In fact, some of these deficiencies were not egregious enough to cause the
ride otherwise to be shut down; however, they did appear to signify a lack of upkeep
and maintenance that, when looked upon as a whole, would prompt a reasonable
inspector to question whether the ride was assembled and ready to operate in
substantial compliance with all owner requirements.
{¶ 54} Based upon the testimony and evidence in toto, the court concludes that
Brubaker and Turner failed to properly perform their inspection with respect to the issue
of the electrical safety of the Scooter on the date in question. Having found both a
common-law duty to those persons who ride amusement rides and a breach of due
care, the court must then address the issue of proximate cause. Plaintiffs have the
burden of proving that the decedent’s injuries were proximately caused by defendant’s
negligent inspection. An injury is proximately caused by a breach of duty when the
injury is the natural and probable consequence of the breach. Jeffers v. Olexo (1989),
43 Ohio St.3d 140. Therefore, a defendant “is not liable for proximately causing an
injury if, under all of the circumstances, he did not foresee and, acting as a reasonably
prudent person, could not have foreseen the consequences of his alleged negligent
acts.” Jeffers, supra, at paragraph one of the syllabus.
Foreseeability is based upon
whether a reasonably prudent person would have anticipated that an injury was likely to
result from the performance or nonperformance of the act. Menifee, supra, at 77.
{¶ 55} Clearly, the negligence of the electrician who failed to properly connect the
ride to its power source was a proximate cause of the harm. The owner also has
significant responsibility shared with the electrician. The owner is responsible for the
daily setup and the overall safety check. He is expected to be familiar with the ride, its
components, and the power source in use at all times. The owner is required to comply
with the manufacturer’s guidebook for safe assembly and safe operation. Indeed, the
owner was in the best position to know from the manufacturer’s specifications, how the
ride operated, how much power it needed to pull and in what manner the power was
supplied.
The owner had firsthand notice of the deplorable condition of the ride,
including the presence of broken gauges, inoperable cars, faulty lighting, and missing
insulation on various parts of the power cable. The evidence showed that the owner
was negligent when despite having actual notice of the damaged wire, he failed to
repair the wire that he knew had been pulled loose and left exposed during prior
disassembly of the light panel canopy.
{¶ 56} As for defendant’s share of responsibility, the court notes that R.C.
1711.53(B) directs defendant to adopt “rules for the safe operation and inspection of all
amusement rides as are necessary for amusement ride safety and for the protection of
the general public.” R.C. 1711.53 states, in relevant part:
{¶ 57} “(B) Rules adopted by the director for the safe operation and inspection of
amusement rides shall be reasonable and based upon generally accepted engineering
standards and practices. * * * The amusement ride owner shall not be issued a permit to
operate unless and until the ride inspector determines that the inspection is
satisfactory.” R.C. 1711.53(A)(1).
{¶ 58} There was some evidence at trial that one or both of the inspectors had
reprimanded the owner for allowing members of the public to ride the Scooter before the
owner had obtained a permit from them certifying that the ride had been inspected. The
inspectors conveyed that they had the authority to prevent the ride from operating.
Former Ohio Adm.Code 901:9-1-02 states, in part:
{¶ 59} “(B) Ride inspectors or other designees of the department are authorized
by the director to prohibit the operation of any ride found to be in an unsafe condition, or
the ride was not set-up, and ready to operate at the time ready for inspection listed on
the ride company’s itinerary on file with the department, by issuing a ‘Stop Operation
Order’ as provided in division (F) of section 1711.55 of the Revised Code.
{¶ 60} “A ‘Stop Operation Order’ may be issued to any owner who is operating an
unlicensed ride based on the premise that under division (F) of section 1711.55 of the
Revised Code no ride can be presumed to be safe until it is inspected.”
{¶ 61} In addition, former Ohio Adm.Code 901:9-1-01, states, in pertinent part:
{¶ 62} “(F) Upon receipt of proper applications and upon completion of a
satisfactory inspection as set forth in paragraphs (A), (B), (C), and (E) of this rule, the
department shall issue a permit in the name of the applicant. All permits shall expire on
the thirty-first day of December following the date of issue. Accompanying such permit
shall be a decal with a unique number corresponding to the unique number noted on the
permit. In addition to the decal referred to in this rule, the department shall issue a
permanent identification plate for all permitted rides. Such plate shall be permanently
attached to the ride as part of the licensing procedures. In the case of the temporary
licensing of a given ride or device, such permanent plate shall not be affixed but rather a
temporary decal with specified expiration date. On all annually licensed rides, the decal
shall be affixed to the permanent plate. In the event that the ride is sold, leased or
transferred to a new owner during the period that the permit is in effect, the decal shall
be removed from the plate by the previous owner prior to the sale, lease or transfer.
{¶ 63} “(G) The department shall, within thirty days of the date of receipt of the
application, determine whether a permit will be issued. If the owner/operator meets all
requirements for a permit, such permit will be issued. If the owner fails to meet these
requirements, the department will inform the owner in writing that the permit is being
denied. In the event of a denial, the owner shall be afforded a hearing in accordance
with Chapter 119. of the Revised Code.”
{¶ 64} Accordingly, the court finds that defendant’s negligent inspection was a
proximate cause of the injury.
Defendant, in adopting rules for amusement ride
operations, was granted the power to deny operations to an owner who failed to meet
basic requirements.
Had the inspectors ascertained that the ride was not properly
grounded, they then had the authority to issue a Stop Operation Order and, to that
extent, thereby prevent the harm that occurred in this case. Accordingly, judgment shall
be rendered in favor of plaintiffs on their claim of negligence.
Court of Claims of Ohio
The Ohio Judicial Center
65 South Front Street, Third Floor
Columbus, OH 43215
614.387.9800 or 1.800.824.8263
www.cco.state.oh.us
AUDRA YOE, Admr., et al.
Plaintiffs
v.
OHIO DEPARTMENT OF AGRICULTURE
Defendant
Case No. 2005-09006
Judge Joseph T. Clark
JUDGMENT ENTRY
This case was tried to the court on the issues of liability and civil immunity
pursuant to R.C. 9.86 and 2743.02(F). Upon hearing all the evidence, and for the
reasons set forth in the decision filed concurrently herewith, the court finds that Ted
Brubaker and Kalin Turner are entitled to immunity pursuant to R.C. 9.86 and
2743.02(F) and that the courts of common pleas do not have jurisdiction over any civil
actions that may be filed against them based upon the allegations in this case. The
court has considered the evidence and, for the reasons set forth in the decision filed
concurrently herewith, judgment is rendered in favor of plaintiffs. The case will be set
for trial on the issue of damages.
_____________________________________
JOSEPH T. CLARK
Judge
cc:
Daniel R. Haude
1400 Midland Building
101 Prospect Avenue, West
Cleveland, Ohio 44115-1093
William C. Becker
Assistant Attorney General
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130
SJM/cmd
Filed March 16, 2009
To S.C. reporter March 31, 2009
Paul R. Malchesky
Timothy P. Cannon
41 East Erie Street
Painesville, Ohio 44077-3747
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