[Cite as Cooney v. Ohio Dept. of Rehab. & Corr., 2010-Ohio-6625.]

                                      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




DANIEL J. COONEY

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant

Case No. 2010-06648-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                         FINDINGS OF FACT
        {¶ 1} 1)         Plaintiff, Daniel J. Cooney, an inmate incarcerated at defendant’s
Madison Correctional Institution (MaCI), filed this action alleging his converter box, CD
player, and adapter were lost or stolen as a proximate cause of negligence on the part
of MaCI staff in handling his property on or about July 17, 2009. Plaintiff recalled he
was transferred from the infirmary at MaCI to defendant’s Allen Correctional Institution
(ACI) on July 17, 2009 and his personal property was inventoried, packed, and sent to
ACI incident to the transfer. Plaintiff further recalled that when he arrived at ACI and
regained possession of his property he discovered his CD player, adapter, and
converter box were not among the returned property items. In his complaint, plaintiff
requested damages in the amount of $155.50, the stated replacement cost of his
alleged missing property. The $25.00 filing fee was paid and plaintiff seeks recovery of
that cost along with his damage claim.
        {¶ 2} 2)         Plaintiff submitted a copy of his “Inmate Property Record-
Disposition and Receipt” (inventory) listing all property packed by MACI personnel on
July 16, 2009 incident to his transfer to ACI on July 17, 2009. This inventory lists a CD
player and an adapter. A television converter box is not listed, but a television is listed.
In a document submitted with his complaint, plaintiff noted that his television converter
box was attached (taped) to his television set.
       {¶ 3} 3)      Defendant denied any of the property items claimed were lost or
stolen during the course of transfer from MaCI to ACI. Defendant submitted a copy of
plaintiff’s property inventory dated July 20, 2009 and compiled at ACI. This inventory
lists a CD player and an adapter as well as a television set. A television converter box
is not listed.   However, defendant pointed out plaintiff previously acknowledged his
television converter box was attached to his television set. Defendant asserted plaintiff
did not produce any evidence to establish any of his property items were lost or stolen
while under the control of MaCI staff incident to a transfer to ACI. Defendant related the
property vault log at MaCI (copy submitted) reflected plaintiff’s television set with
converter box “was logged into the vault on July 16, 2009 by (MaCI employee) Sgt.
Sowers.” Defendant maintained all property claimed was transported from MaCI to ACI
on July 17, 2009.
       {¶ 4} 4)      Plaintiff filed a response advising that he was transferred back to
MaCI from ACI on October 29, 2009 and his converter box, CD player, and adapter
were not among his property items that were transferred with him. Plaintiff submitted a
copy of his property inventory compiled on October 29, 2009 by ACI personnel. This
inventory does not list a converter box, CD player, and an adapter. The inventory does
bear plaintiff’s signature certifying that the items listed represent “a complete and
accurate inventory of all my personal property.”
                                CONCLUSIONS OF LAW
       {¶ 5} 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.
       {¶ 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,¶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)     “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.
       {¶ 8} 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.
       {¶ 9} 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 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.
       {¶ 10} 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.
       {¶ 11} 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.
       {¶ 12} 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.
       {¶ 13} 9)    Plaintiff has failed to show any causal connection between the loss of
any property 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.
      {¶ 14} 10) Plaintiff has failed to prove, by a preponderance of the evidence, that
his property was lost or stolen 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




DANIEL J. COONEY

      Plaintiff

      v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

      Defendant

      Case No. 2010-06648-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:

Daniel J. Cooney, #371-659                      Gregory C. Trout, Chief Counsel
P.O. Box 740                                    Department of Rehabilitation
London, Ohio 43140-0740                         and Correction
                                                770 West Broad Street
                                                Columbus, Ohio 43222
RDK/laa
9/29
Filed 10/13/10
Sent to S.C. reporter 1/21/11
