[Cite as Speakman v. London Corr. Inst., 2011-Ohio-3768.]


                                     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




DAVID SPEAKMAN, JR.

       Plaintiff

       v.

LONDON OHIO CORRECTIONAL INST.

       Defendant

        Case No. 2010-10220-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION


                                         FINDINGS OF FACT
        {¶ 1} Plaintiff, David Speakman, an inmate formerly incarcerated at defendant's
London Correctional Institution (LCI), filed this action alleging that his CD player was
lost or stolen as a proximate cause of negligence on the part of LCI staff in handling his
property on or about December 13, 2009. Plaintiff recalled that he was transferred to
segregation from the visiting room at LCI and that his personal property was packed
and sent to storage incident to the transfer. Plaintiff further recalled that when he was
released from segregation and regained possession of his property he discovered that
his CD player was not among the returned property items. Plaintiff asserted that he “did
all the proper paperwork within the prison first trying to resolve the issue.”            In his
complaint, plaintiff requested damages in the amount of $76.25, the stated replacement
cost of his alleged missing property. Plaintiff submitted a copy of a title to a CD player
issued on February 6, 2009. Plaintiff did not provide any documentation concerning the
value of his alleged lost CD player. Payment of the filing fee was waived.
        {¶ 2} Defendant denied any liability in this matter. Defendant explained that
plaintiff was transferred to security control on December 13, 2009 and that his personal
property was packed incident to this transfer. Defendant further explained that plaintiff
subsequently was placed on disciplinary control and then local control. According to
defendant, plaintiff’s security level was increased and he was transferred to defendant’s
Southern Ohio Correctional Facility (SOCF) on August 4, 2010.         Defendant asserted
that plaintiff did not produce any evidence to establish that any of his property items
were lost or stolen while under the control of LCI staff or incident to a transfer to SOCF.
Defendant submitted a copy of plaintiff’s property inventory compiled on August 4, 2010
by SOCF personnel. This inventory does not list a CD player. The inventory does bear
plaintiff's signature certifying that the items listed represent "a complete and accurate
inventory of all my personal property."
      {¶ 3} Plaintiff did not file a response.
                                   CONCLUSIONS OF LAW
      {¶ 4} For plaintiff to prevail on a claim of negligence, he must prove, by a
preponderance of the evidence, that defendant owed him a duty, that it breached that
duty, and that the 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.
      {¶ 5} “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.
      {¶ 6} If an injury is the natural and probable consequence of a negligent act and it
is such as should have been foreseen in the light of all the attending circumstances, the
injury is then the proximate result of the negligence.      It is not necessary that the
defendant should have anticipated the particular injury. It is sufficient that his act is
likely to result in an injury to someone.” Cascone v. Herb Kay Co. (1983), 6 Ohio St. 3d
155, 160, 6 OBR 209, 451 N.E. 2d 815, quoting Neff Lumber Co. v. First National Bank
of St. Clairsville, Admr. (1930), 122 Ohio St. 302, 309, 171 N.E. 327.
      {¶ 7} 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.
       {¶ 8} 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.
       {¶ 9} 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.
       {¶ 10}    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.
       {¶ 11}    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 issues, as to any 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.
       {¶ 12}    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. Plaintiff failed to prove defendant actually exercised control
over a CD player.
       {¶ 13}    Plaintiff’s failure to prove delivery of the above listed 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.
       {¶ 14}    The credibility of witnesses and the weight attributable to their
testimony are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St.
2d 230, 39 O.O. 2d 366, 227 N.E. 2d 212, paragraph one of the syllabus. The court is
free to believe or disbelieve, all or any part of each witness’s testimony. State v. Antill
(1964), 176 Ohio St. 61, 26 O.O. 2d 366, 197 N.E. 2d 548. The court does not find
plaintiff’s assertions particularly persuasive regarding his claim of property loss.
      {¶ 15}      Plaintiff has failed to show any causal connection between any loss of
his property listed and any breach of a duty owed by defendant in regard to protecting
inmate property. Druckenmiller v. Mansfield Correctional Inst. (1998), 97-11819-AD;
Melson v. Ohio Department of Rehabilitation and Correction (2003), Ct. of Cl. No. 2003-
04236-AD, 2003-Ohio-3615.
      {¶ 16}      Plaintiff has failed to prove, by a preponderance of the evidence, any
of his property was lost or destroyed 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




DAVID SPEAKMAN, JR.

      Plaintiff

      v.

LONDON OHIO CORRECTIONAL INST.

      Defendant

      Case No. 2010-10220-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:

David Speakman, Jr., #559-022   Gregory C. Trout, Chief Counsel
1724 St. Rt. 728                Department of Rehabilitation
Lucasville, Ohio 45699          and Correction
                                770 West Broad Street
                                Columbus, Ohio 43222
SJM/laa
3/8
Filed 4/20/11
Sent to S.C. reporter 7/29/11
