[Cite as Kairis v. Noble Correctional, 2010-Ohio-6322.]

                                       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




MICHAEL J. KAIRIS

        Plaintiff

        v.

NOBLE CORRECTIONAL

        Defendant

        Case No. 2009-07849-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                          FINDINGS OF FACT
        {¶ 1} 1)       On April 27, 2008, plaintiff, Michael J. Kairis, an inmate incarcerated
at defendant, Noble Correctional Institution (NCI), was transferred from the NCI general
population to a segregation unit. Plaintiff alleged that at sometime during the transfer
procedure multiple items of personal property were stolen before the property could be
packed. Plaintiff reported the stolen property included: ten envelopes, four pens, one
walkman, one chess board, one blanket, one towel, one wash cloth, four t-shirts, six
pairs of boxer shorts, two writing pads, one pair of sunglasses, one pair of reading
glasses, one photo album, six pairs of socks, one set of long underwear, two long
sleeve shirts, one mug, one alarm clock, one watch, one trimmer set, one belt, one pair
of sweat pants, one sweatshirt, two pairs of state pants, two state issue shirts, one
deodorant, one mirror, one set of nail clippers, one soap dish, one “double six dominos,”
one tube of toothpaste, and six “pks gt one reds.” Plaintiff implied his property was
stolen as a proximate cause of negligence on the part of NCI staff in failing to
adequately protect the property from theft attempts. Plaintiff filed this complaint seeking
to recover $228.77, the stated replacement cost of his alleged stolen property.
Payment of the filing fee was waived.
      Defendant denied any liability in this matter contending plaintiff failed to offer any
evidence to prove his property was stolen. Defendant denied ever exercising control
over any of the alleged stolen property items. Defendant suggested “plaintiff may have
traded or sold this property to other inmates to pay debts.”        Defendant argued no
evidence has been offered to establish plaintiff suffered property loss as a result of any
act attributable to NCI personnel. Defendant advised NCI staff searched fro plaintiff’s
property and some items were recovered.
                               CONCLUSIONS OF LAW
      {¶ 2} 1)     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.
      {¶ 3} 2)     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.
      {¶ 4} 3)     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.
      {¶ 5} 4)     Plaintiff must produce evidence which affords a reasonable basis for
the conclusion 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.
      {¶ 6} 5)     Plaintiff’s failure to prove delivery of the claimed missing 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.
      {¶ 7} 6)     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.
       {¶ 8} 7)    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.
       {¶ 9} 8)    “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; Mussivand v.
David (1989), 45 Ohio St. 3d 314, 318, 544 N.E. 2d 265.
       {¶ 10} 9)   The allegation that a theft may have occurred is insufficient to show
defendant’s negligence. Williams v. Southern Ohio Correctional Facility (1985), 83-
07091-AD; Custom v. Southern Ohio Correctional Facility (1985), 84-02425. Plaintiff
must show defendant breached a duty or ordinary or reasonable care. Williams.
       {¶ 11} 10) Defendant is not responsible for thefts committed by inmates unless
an agency relationship is shown or it is shown that defendant was negligent. Walker V.
Southern Ohio Correctional Facility (1978), 78-0217-AD.
       {¶ 12} 11) The fact defendant supplied plaintiff with a locker box to secure
valuables constitutes prima facie evidence of defendant discharging its duty of
reasonable care. Watson v. Department of Rehabilitation and Correction (1987), 86-
02635-AD.
       {¶ 13} 12) Generally, defendant has a duty to conduct a search for plaintiff’s
property within a reasonable time after being notified of the theft. Phillips v. Columbus
Correctional Facility (1981), 79-0132-AD; Russell v. Warren Correctional Inst. (1999),
98-03305-AD.
       {¶ 14} 13) However, a search is not always necessary.               In Copeland v.
Department of Rehabilitation and Correction (1985), 85-03638-AD, the court held that
defendant had no duty to search for missing property if the nature of the property is
such that it is indistinguishable and cannot be traced to plaintiff. In the instant case, the
claimed stolen property was indistinguishable and, therefore, no duty to search arose.
Wallace v. Grafton Corr. Inst., Ct. of Cl. No. 2009-01743, 2009-Ohio-5741.
       {¶ 15} 14) Plaintiff has failed to prove, by a preponderance of the evidence, that
defendant was negligent in respect to making any attempts to recover distinguishable or
indistinguishable stolen property. See Williams v. Dept. of Rehab. & Corr., Ct. of Cl. No.
2005-11094-AD, 2006-Ohio-7207.
      {¶ 16} 15) Plaintiff has failed to prove, by a preponderance of the evidence, any
of his property was stolen, undelivered, or unrecovered as a proximate result of any
negligent conduct attributable to defendant. Fitzgerald v. Department of Rehabilitation
and Correction (1998), 97-10146-AD; Hall v. London Correctional Inst., Ct. of Cl. No.
2008-04803-AD, 2008-Ohio-7088.




                               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



MICHAEL J. KAIRIS

      Plaintiff

      v.

NOBLE CORRECTIONAL

      Defendant

      Case No. 2009-07849-AD

Deputy Clerk Daniel R. Borchert


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.



                                                 ________________________________
                                                 DANIEL R. BORCHERT
                                                 Deputy Clerk

Entry cc:

Michael J. Kairis, #556-482                      Gregory C. Trout, Chief Counsel
P.O. Box 56                                      Department of Rehabilitation
Lebanon, Ohio 45036                              and Correction
                                                 770 West Broad Street
                                                 Columbus, Ohio 43222
RDK/laa
8/3
Filed 8/31/10
Sent to S.C. reporter 12/17/10
