[Cite as Russell v. Grafton Correctional Inst., 2011-Ohio-1109.]

                                       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 RUSSELL

        Plaintiff

        v.

GRAFTON CORRECTIONAL INSTITUTION

        Defendant

        Case No. 2010-08080-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION


                                           FINDINGS OF FACT
        {¶ 1} 1)       Plaintiff, David Russell, an inmate incarcerated at defendant, Grafton
Correctional Institution (GCI), filed this action alleging several items of his personal
property were lost as a proximate cause of negligence on the part of GCI staff. On
December 14, 2009, plaintiff was transferred from GCI to an outside hospital and his
personal property was inventoried, packed, and delivered into the custody of GCI staff.
Plaintiff advised that when he returned from the hospital and regained possession of his
property, he discovered his blanket, fan, Bible, cup, and bowl were not among the
returned items.       Plaintiff asserted the above mentioned property items were lost or
stolen while under the control of GCI staff. Plaintiff submitted a copy of his “Inmate
Property Record-Disposition and Receipt” (inventory) compiled on December 14, 2009.
The inventory lists all the claimed missing property with the exception of a personal
blanket. Two “state issue” blankets are listed on the inventory. Plaintiff requested
damage recovery in the amount of $79.11, the stated value of his blanket, fan, Bible,
cup, and bowl. The $25.00 filing fee was paid and plaintiff requested reimbursement of
that cost along his damage claim.
       {¶ 2} 2)    Defendant acknowledged packing plaintiff’s property incident to his
being transferred to an outside hospital on December 14, 2009. However, defendant
denied any packed property was lost while under the control of GCI staff. Defendant
implied all packed property was returned to plaintiff’s possession. Defendant denied
packing a personal blanket and cup at the time plaintiff was transferred on December
14, 2009.     Plaintiff’s submitted property inventory lists defendant packed one
“Mugs/Glasses” on December 14, 2009. The trier of fact shall presume the above
referenced item represents the “cup” plaintiff claimed in his complaint.         Defendant
contended plaintiff did not offer any evidence other than his own statements to establish
any of his property was lost or stolen as a result of any conduct on the part of GCI staff.
       {¶ 3} 3)    Plaintiff filed a response insisting his blanket, fan, and Bible were lost
while under defendant’s control. Plaintiff pointed out defendant provided him with a
replacement blanket; an act plaintiff characterized as an admission of liability. Plaintiff
related, “[t]hey (GCI personnel) searched my property and found no Bible, fan, blanket.”
Plaintiff did not provide any evidence other than his own statement to establish any of
his property was lost incident to his December 14, 2009 transfer.
                                CONCLUSIONS OF LAW
       {¶ 4} 1)    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} 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,¶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} “3)   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} “4)    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} “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.
      {¶ 9} “6)    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} “7)   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} “8)   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
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} “9)   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 personal blanket.
      {¶ 13} “10) Plaintiff’s failure to prove delivery of a personal blanket 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} “11) Plaintiff has failed to show any causal connection between the 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.
      {¶ 15} “12) Plaintiff has failed to prove, by a preponderance of the evidence, any
of his property was stolen or lost 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 RUSSELL

      Plaintiff

      v.

GRAFTON CORRECTIONAL INSTITUTION

      Defendant

      Case No. 2010-08080-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:

David Russell, #192-041                         Gregory C. Trout, Chief Counsel
2500 S. Avon-Belden Road                        Department of Rehabilitation
Grafton, Ohio 44044                             and Correction
                                                770 West Broad Street
                                                Columbus, Ohio 43222
RDK/laa
12/9
Filed 1/7/11
Sent to S.C. reporter 3/4/11
