[Cite as Ward v. Ohio Dept. of Rehab. & Corr., 2010-Ohio-4955.]

                                      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




TIMOTHY WARD

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION CORRECTION

       Defendant

        Case No. 2009-09043-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                         FINDINGS OF FACT
        {¶ 1} 1)         Plaintiff, Timothy Ward, an inmate incarcerated at defendant’s
Mansfield Correctional Institution (ManCI), filed this action alleging his personal property
was lost or stolen as a proximate cause of negligence on the part of ManCI staff.
Plaintiff related he “was put on Suicide Watch on” December 21, 2007 and was
subsequently transferred from ManCI to the Correctional Reception Center (CRC) on
December 27, 2007. Plaintiff explained some of his personal property was forwarded to
CRC and the remainder was stored at ManCI. Plaintiff noted that when he returned to
ManCI on or about March 3, 2008, he regained possession of his property and
discovered multiple items were missing. Plaintiff pointed out his property was originally
packed by ManCI personnel on December 27, 2007, and had apparently been left in his
housing unit from the time he was placed on Suicide Watch until he was transferred to
CRC.
        {¶ 2} 2)         Plaintiff advised he discovered the following items were missing
when he regained possession of his property: a Magnavox television set, a fan, four
cassette tapes, three tubes toothpaste and a toothbrush, a bowl. three boxes of cigars,
two bags Midnight Special, two bottles of Sprite, four Star Crunch, one Vanilla Wafer,
Christmas Cookies, baby powder, an opened bag of French Vanilla coffee, two jars of
coffee, two chewing gum, two Honey Buns, matches, party mix, baby oil, oil, one legal
pad, one lock, and two batteries.       Plaintiff filed this complaint seeking to recover
damages in the amount of $231.43, the stated replacement cost of the missing property
items. The $25.00 filing fee was paid and plaintiff requested reimbursement of that cost
along with his damage claim. Plaintiff also requested $3.50 representing copying costs
and postage expense he incurred. Copying costs and postage expense are not subject
to reimbursement in a claim of this type. Plaintiff’s request is denied and the matter will
not be addressed further. Plaintiff submitted documentation showing he purchased a
Magnavox television set on December 19, 2005 in the amount of $126.60. Plaintiff also
submitted documentation showing he purchased tobacco products, foodstuffs, matches,
batteries, legal pads, coffee, toothpaste, and baby powder at the ManCI commissary on
December 20, 2007. Plaintiff did not supply documentation to establish the purchase
prices and dates he purchased a fan, bowl, baby oil, oil, lock, and toothbrush prior to
December 21, 2007.
       {¶ 3} 3)      Defendant filed an investigation report admitting liability for the loss
of plaintiff’s fan, television set, and various commissary items. However, defendant
contended plaintiff’s damages should be limited to $115.00 due to the fact the television
set and fan “were at least two years old” at the time of loss and constituted depreciable
property. Defendant denied liability for the loss of any cassette tapes stating “there is
no evidence to suggest $40.00 in tapes were lost by Defendant.”
       {¶ 4} 4)      Plaintiff filed a response insisting he should be awarded all
damages claimed for the loss of all property items claimed.
                                CONCLUSIONS OF LAW
       {¶ 5} 1)      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.
       {¶ 6} 2)   “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, 798 N.E.
2d 1121, ¶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.
       {¶ 7} 3)   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} 4)   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} 5)   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} 6) 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.
       {¶ 11} 7) 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.
       {¶ 12} 8) 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 finds plaintiff’s
assertions credible in regard to the loss of all property items claimed.
       {¶ 13} 9) Negligence on the part of defendant has been shown in respect to the
issue protecting plaintiff’s property after he was transferred in December 2007. Billups
v. Department of Rehabilitation and Correction (2001), 2000-10634-AD. Plaintiff has
offered sufficient proof to establish all property claimed was lost or stolen while under
the control of ManCI staff.
       {¶ 14} 10)    The standard measure of damages for personal property loss is
market value. McDonald v. Ohio State Univ. Veterinary Hosp. (1994), 67 Ohio Misc. 2d
40, 644 N.E. 2d 750.
       {¶ 15} 11) In a situation where a damage assessment for personal property
destruction or loss based on market value is essentially indeterminable, a damage
determination may be based on the standard value of the property to the owner. This
determination considers such factors as value to the owner, original cost, replacement
cost, salvage value, and fair market value at the time of the loss. Cooper v. Feeney
(1986), 34 Ohio App. 3d 282, 518 N.e. 2d 46.
       {¶ 16} 12) As trier of fact, this court has the power to award reasonable damages
based on evidence presented. Sims v. Southern Ohio Correctional Facility (1988), 61
Ohio Misc. 2d 239, 577 N.E. 2d 160.
       {¶ 17} 13) Damage assessment is a matter within the function of the trier of fact.
Litchfield v. Morris (1985), 25 Ohio App. 3d 42, 25 OBR 115, 495 N.E. 2d 462.
Reasonable certainty as to the amount of damages is required, which is that degree of
certainty of which the nature of the case admits. Bemmes v. Pub. Emp. Retirement
Sys. Of Ohio (1995), 102 Ohio App. 3d 782, 658 N.E. 2d 31.
       {¶ 18} 14) Plaintiff has suffered damages in the amount of $200.00, plus the
$25.00 filing fee, which may be awarded as costs pursuant to R.C. 2335.19. See Bailey
v. Ohio Department of Rehabilitation and Correction (1990), 62 Ohio Misc. 2d 19, 587
N.E. 2d 990.




                               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
TIMOTHY WARD

        Plaintiff

        v.

OHIO DEPARTMENT OF REHABILITATION CORRECTION

        Defendant

        Case No. 2009-09043-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 plaintiff in the amount of $225.00, which includes the filing fee. Court costs are
assessed against defendant.




                                          DANIEL R. BORCHERT
                                          Deputy Clerk

Entry cc:

Timothy Ward#434-335                      Gregory C. Trout, Chief Counsel
P.O. Box 4501                             Department of Rehabilitation
Lima, Ohio 45802                          and Correction
                                          770 West Broad Street
                                          Columbus, Ohio 43222
RDK/laa
5/13
Filed 6/14/10
Sent to S.C. reporter 10/11/10
