[Cite as Bass v. Belmont Corr. Inst., 2011-Ohio-3852.]



                                       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




RODGER M. BASS

        Plaintiff

        v.

BELMONT CORRECTIONAL INSTITUTION

        Defendant


        Case No. 2010-09655-AD


Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

                                          FINDINGS OF FACT
        {¶ 1} Plaintiff, Rodger Bass, an inmate formerly incarcerated at defendant's
Belmont Correctional Institution (BeCI), filed this action alleging several items of his
personal property were lost or stolen as a proximate cause of negligence on the part of
BeCI staff in handling his property from February 14, through February 22, 2010.
Plaintiff recalled he was transferred to segregation at BeCI 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, he was then transferred to
Southeastern Correctional Institution (SCI) where he regained possession of his
property. Plaintiff asserted he discovered the following items were missing: one AM/FM
radio and CD player, eight compact discs, two boxes Tide detergent, three Dial soaps,
two packs of AA batteries, four Alka-Seltzer Plus, ten disposable razors, two Shick
razors, one cocoa butter stick, one petroleum jelly, and one coffee creamer. In his
Case No. 2010-09655-AD                            -2-                   MEMORANDUM DECISION



complaint, plaintiff requested damages in the amount of $500.00, for the stated
replacement cost of his alleged missing property and for “stress and mental anguish
over the loss of said items.”1 Plaintiff submitted a copy of a property pack-up inventory
dated February 14, 2010.2 The following items claimed as missing are listed on the
February 14, 2010 inventory: a CD player, eight compact discs, sixteen razors and six
bars of soap. Payment of the filing fee was waived.
        {¶ 2} Plaintiff submitted documentation showing he purchased three bars of Dial
soap and one ten pack of disposable razors at the BeCI commissary on January 14,
2010. Plaintiff also submitted an invoice for the purchase of an Access CD player at a
cost of $50.00 bearing plaintiff’s signature and dated April 29, 2008. Plaintiff did not
submit documentation to establish the price and dates he purchased the missing
compact discs.
        {¶ 3} Defendant denied any liability in this matter. Defendant asserted plaintiff
did not produce any evidence to establish any of his property items were lost or stolen
while under the control of BeCI staff or incident to a transfer to SCI. Defendant argued
plaintiff waived his right to dispute the alleged missing items when he signed the
inventory prepared at SCI. Nonetheless, the report submitted by the inspector at BeCI
states “Two of the commissary receipts provided by inmate Bass were from 12/11/2009
and 11/17/2009. Both of these receipts were invalid as they were well outside the time


        1
           Initially, it should be noted that this court does not recognize 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. Consequently, the court shall address
plaintiff’s claim based on the standard measure of damages for property loss.
limits * * * .        This left only the commissary receipt of 01/14/2010 that could be
considered in this investigation. * * * I next checked the pack up slips provided by
inmate Bass.         I found that there were indeed items listed on the BeCI pack up of
02/14/2010 that were not listed on the pack up slip completed at SCI on 02/22/2010.”
Defendant submitted a copy of plaintiff’s property inventory compiled on February 22,
2010, by SCI personnel. This inventory does not list a CD player, compact discs, soap,
or razors. The inventory does bear plaintiff's signature certifying that the items listed
represent "a complete and accurate inventory of all my personal property."
       {¶ 4} Plaintiff filed a response insisting all of his personal property listed as
missing in the complaint was delivered to defendant’s personnel and was subsequently
lost or stolen while in the custody and care of defendant. In reference to the signature
on the inventory sheet, plaintiff related that he signed part one of the release stating all
of the property listed on the form belonged to him, but he had refused to sign the
second part of the form which includes the waiver language cited by defendant.
                                            CONCLUSIONS OF LAW
       {¶ 5} 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.
       {¶ 6} “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.
       {¶ 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

       2
           The court notes the copy submitted is nearly illegible.
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} 8) 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 Tide detergent, AA batteries, Alka Seltzer Plus, Cocoa butter, petroleum jelly, or
coffee creamer.
      {¶ 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} Negligence on the part of defendant has been shown in respect to the
issue of protecting plaintiff’s property after he was transferred to segregation on
February 14, 2010.     Billups v. Department of Rehabilitation and Correction (2001),
2000-10634-AD. Plaintiff has offered sufficient proof to establish defendant is liable for
the loss of a CD player, eight compact discs, three bars of soap, and ten disposable
razors.
      {¶ 15} 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.
      {¶ 16} In a situation where a damage assessment for personal property
destruction 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.
      {¶ 17} 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.
      {¶ 18} 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.
      {¶ 19} Evidence has shown plaintiff’s CD player was nearly two years old when
the incident forming the basis of this claim occurred. Based on the fact the CD player
constituted depreciable property, the court finds plaintiff has suffered damages in the
total amount of $69.13.




                              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




RODGER M. BASS

      Plaintiff

      v.

BELMONT CORRECTIONAL INSTITUTION

      Defendant
         Case No. 2010-09655-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 $69.13. Court costs are assessed against defendant.




                                                  DANIEL R. BORCHERT
                                                  Deputy Clerk

Entry cc:

Rodger M. Bass, #A496-912                         Gregory C. Trout, Chief Counsel
5900 B.I.S. Road S.W.                             Department of Rehabilitation
Lancaster, Ohio 43130                             and Correction
                                                  770 West Broad Street
                                                  Columbus, Ohio 43222
SJM/laa
3/16
Filed 4/21/11
Sent to S.C. reporter 8/5/11
