[Cite as Davis v. S. Ohio Correctional Inst., 2010-Ohio-1953.]

                                       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




LEROY DAVIS

        Plaintiff

        v.

SOUTHERN OHIO CORRECTIONAL INSTITUTION

        Defendant

        Case No. 2009-07296-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



                                           FINDINGS OF FACT
        {¶ 1} 1)          On June 30, 2008, plaintiff, LeRoy Davis, an inmate incarcerated at
defendant, North Central Correctional Institution (NCCI), was transferred from the NCCI
general population to a segregation unit. Plaintiff’s personal property was inventoried,
packed, and delivered into the custody of NCCI staff incident to this transfer. Plaintiff
asserted that defendant’s personnel failed to pack his television set when he was
transferred and consequently, the television set is missing.
        {¶ 2} 2)          Plaintiff contended that his television set was lost or stolen as a
proximate cause of negligence on the part of NCCI staff in failing to pack the item.
Consequently, plaintiff filed this complaint seeking to recover $1,000.00 in damages for
the loss of the television set and emotional distress that he has suffered as a result of
this loss. Plaintiff related that he obtained the television set at sometime during 1996.
Payment of the $25.00 was waived.
        {¶ 3} 3)          Defendant denied liability in this matter based on the contention
that plaintiff failed to offer evidence to prove he possessed a television set at the time
that his property was packed on June 30, 2008.          Defendant submitted a copy of
plaintiff’s property inventory compiled when he was transferred to segregation on June
30, 2008. The inventory does not list a television set. Defendant submitted a copy of a
“Theft/Loss Report” dated August 19, 2008 when plaintiff first reported the loss of his
television set. According to a notation on this “Theft/Loss Report,” the property vault at
NCCI was searched and plaintiff’s television set could not be found there. Defendant
maintained that there is no evidence to suggest plaintiff possessed a television set at
the time he was transferred on June 30, 2008.
        {¶ 4} 4)    Plaintiff filed a response insisting that he owned a television set on
June 30, 2008 and the television was either lost or stolen as a result of defendant’s
failure to pack the set when he was transferred. Plaintiff submitted a copy of a property
inventory dated January 3, 2007 showing he possessed a television set on that date.
                               CONCLUSIONS OF LAW
        {¶ 5} 1)   This court does not recognize any entitlement to damages for mental
distress and extraordinary damages for simple negligence involving property loss.
Galloway v. Department of Rehabilitation and Correction (1979), 78-0731-AD; Berke v.
Ohio Dept. of Pub. Welfare (1976), 52 Ohio App. 2d 271, 6 O.O. 3d 280, 369 N.E. 2d
1056.
        {¶ 6} 2)   The standard measure of damages for personal property is market
value. McDonald v. Ohio State University Veterinary Hosp. (1994), 67 Ohio Misc. 2d
40, 644 N.E. 2d 750.
        {¶ 7} 3)   In order to prevail, plaintiff must prove, by a preponderance of the
evidence, that defendant owed him a duty, that defendant breached that duty, and that
defendant’s breach proximately caused his injuries. Armstrong v. Best Buy Company,
Inc., 99 Ohio St. 3d 79, 2003-Ohio-2573,¶8 citing Menifee v. Ohio Welding Products,
Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 472 N.E. 2d 707.
        {¶ 8} 4)   “Whether a duty is breached and whether the breach proximately
caused an injury are normally questions of fact, to be decided by . . . the court . . .”
Pacher v. Invisible Fence of Dayton, 154 Ohio App. 3d 744, 2003-Ohio-5333, ¶41, citing
Miller v. Paulson (1994), 97 Ohio App. 3d 217, 221, 646 N.E. 2d 521; and Mussivand v.
David (1989), 45 Ohio St. 3d 314, 318, 544 N.E. 2d 265.
        {¶ 9} 5)   This court in Mullett v. Department of Correction (1976), 76-0292-AD,
held that defendant does not have the liability of an insurer (i.e., is not liable without
fault) with respect to inmate property, but that it does have the duty to make “reasonable
attempts to protect, or recover” such property.
      {¶ 10} 6)    Although not strictly responsible for a prisoner’s property, defendant
had at least the duty of using the same degree of care as it would use with its own
property. Henderson v. Southern Ohio Correctional Facility (1979), 76-0356-AD.
      {¶ 11} 7)    Plaintiff has the burden of proving, by a preponderance of the
evidence, that he suffered a loss and that this loss was proximately caused by
defendant’s negligence. Barnum v. Ohio State University (1977), 76-0368-AD.
      {¶ 12} 8)    Plaintiff must produce evidence which affords a reasonable basis for
the conclusion that defendant’s conduct is more likely than not a substantial factor in
bringing about the harm. Parks v. Department of Rehabilitation and Correction (1985),
85-01546-AD.
      {¶ 13} 9)    In order to recover against a defendant in a tort action, plaintiff must
produce evidence which furnishes a reasonable basis for sustaining his claim. If his
evidence furnishes a basis for only a guess, among different possibilities, as to any
essential issue in the case, he fails to sustain the burden as to such issue. Landon v.
Lee Motors, Inc. (1954), 161 Ohio St. 82, 53 O.O. 25, 118 N.E. 2d 147.
      {¶ 14} 10) Plaintiff has failed to prove his television set was delivered into
defendant’s custody and control. Plaintiff’s failure to prove delivery of the property to
defendant constitutes a failure to show imposition of a legal bailment duty on the part of
defendant in respect to lost property.     Prunty v. Department of Rehabilitation and
Correction (1987), 86-02821-AD.
      {¶ 15} 11) Plaintiff cannot recover for property loss when he fails to produce
sufficient evidence to establish defendant actually assumed control over the property.
Whiteside v. Orient Correctional Inst., Ct. of Cl. No. 2002-05751, 2005-Ohio-4455 obj.
overruled, 2005-Ohio-5068.
      {¶ 16} 12) Plaintiff has failed to prove, by a preponderance of the evidence, his
television was lost or stolen as a proximate result of any negligent conduct attributable
to defendant. Fitzgerald v. Department of Rehabilitation and Correction (1998), 97-
10146-AD.
                                  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




LEROY DAVIS

      Plaintiff

      v.

NORTH CENTRAL CORRECTIONAL INSTITUTION

      Defendant

          Case No. 2009-07296-AD

Clerk Miles C. Durfey


ENTRY OF ADMINISTRATIVE DETERMINATION



          Having considered all the evidence in the claim file and, for the reasons set forth
in the memorandum decision filed concurrently herewith, judgment is rendered in favor
of defendant. Court costs are assessed against plaintiff.



                                                   ________________________________
                                                   MILES C. DURFEY
                                                   Clerk

Entry cc:

LeRoy Davis, #155-726                              Gregory C. Trout, Chief Counsel
P.O. Box 120                                       Department of Rehabilitation
Lebanon, Ohio 45036                                and Correction
                                                   770 West Broad Street
                                                   Columbus, Ohio 43222
RDK/laa
12/14
Filed 1/8/10
Sent to S.C. reporter 4/30/10
