[Cite as Smith v. Ross Correctional Inst., 2010-Ohio-6660.]

                                       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




JOSH H. SMITH

        Plaintiff

        v.

ROSS CORRECTIONAL INSTITUTION

        Defendant

        Case No. 2010-05587-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                          FINDINGS OF FACT
        {¶ 1} 1)       Plaintiff, Josh H. Smith, an inmate incarcerated at defendant, Ross
Correctional Institution (RCI), filed this action alleging his television set was stolen and
other property items were lost as a proximate cause of negligence on the part of RCI
staff. Plaintiff explained he was transferred to an isolation unit on December 31, 2009
at approximately 7:30 a.m. for an institution rule violation and his property was left in his
cell. Plaintiff contended that at sometime after he was transferred to the isolation unit
his television set that was left in his cell was taken by his cellmate and either sold to
another inmate or delivered to RCI staff and subsequently lost.                Plaintiff further
contended that defendant’s personnel failed to pack his beard trimmers, radio, food
bowl, three cups, three towels, and a sweatshirt after he was sent to the isolation unit.
Plaintiff submitted a copy of his “Inmate Property Record-Disposition and Receipt”
(inventory) dated December 31, 2009, 12:05 p.m., compiled incident to his transfer to
isolation. This inventory does not list any television set, radio, beard trimmers, bowl, or
cups.     The inventory does list one sweatshirt and two towels.           Plaintiff submitted
documentation showing he had possessed a radio since September 2008 and a
television set since November 2007. Plaintiff also submitted documentation showing he
received a set of beard trimmers on December 18, 2008, two sweatshirts on September
10, 2008, one towel and one sweatshirt on October 26, 2007. In his complaint, plaintiff
requested damages in the amount of $337.00, the estimated value of the claimed
missing property. Plaintiff submitted documentation showing the actual purchase prices
for his television set, radio, beard trimmers, towel, and sweatshirt totaled $252.21. The
filing fee was paid.
       {¶ 2} 2)        Plaintiff filed a copy of an “Inmate Property Theft/Loss Report” (theft
report) dated January 19, 2010 compiled at the time he reported the theft of his
television set. According to information recorded in this theft report, RCI personnel
searched cell 2043B and interviewed the occupant of that cell regarding plaintiff’s
television set after plaintiff reported the set could be found there. The television set was
not in cell 2043B and the occupant denied having any knowledge concerning the
disposition of plaintiff’s television set.    RCI staff did not take any further action or
investigation in regard to the reported theft.        No evidence was submitted to show
plaintiff made a formal report concerning the loss of his radio, beard trimmers, towels,
bowl, cups, and sweatshirt. Plaintiff was assigned to cell 1073B at the time he was sent
to isolation.
       {¶ 3} 3)        Defendant denied any liability in this matter asserting that RCI staff
never exercised control over any of the claimed missing property. Defendant pointed
out plaintiff signed the December 31, 2009 property inventory acknowledging that the
listed items represented a “complete and accurate inventory” of all his personal
property. Defendant advised plaintiff never reported any missing property when he
signed the December 31, 2009 inventory. Defendant argued plaintiff failed to produce
any evidence to establish his property was lost or stolen as a proximate cause of
negligent conduct on the part of RCI personnel.
                                   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 any of the items claimed.
      {¶ 13} 10) 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} 11) The allegation that a theft may have occurred is insufficient to show
defendant’s negligence. Williams v. Southern Ohio Correctional Facility (1985), 83-
07091-AD; Custom v. Southern Ohio Correctional Facility (1986), 84-02425. Plaintiff
must show defendant breached a duty of ordinary or reasonable care. Williams.
      {¶ 15} 12) Defendant is not responsible for thefts committed by inmates unless
an agency relationship is shown or it is shown that defendant was negligent. Walker v.
Southern Ohio Correctional Facility (1978), 78-0217-AD.
      {¶ 16} 13) 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.
      {¶ 17} 14) Plaintiff may show defendant breached its duty of reasonable care by
providing evidence of an unreasonable delay in packing inmate property. Springer v.
Marion Correctional Institution (1981), 81-05202-AD.
      {¶ 18} 15) In the instant claim, plaintiff has failed to prove any delay in packing
his property resulted in any property theft. Stevens v. Warren Correctional Institution
(2000), 2000-05142-AD; Knowlton v. Noble Corr. Inst., Ct. of Cl. No. 2005-06678-AD,
2005-Ohio-4328.
      {¶ 19} 16) Plaintiff has failed to prove, by a preponderance of the evidence, any
of his property was 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




JOSH H. SMITH

      Plaintiff

      v.

ROSS CORRECTIONAL INSTITUTION

      Defendant

          Case No. 2010-05587-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:

Josh H. Smith, #558-678                            Gregory C. Trout, Chief Counsel
P.O. Box 7010                                      Department of Rehabilitation
Chillicothe, Ohio 45601                            and Correction
                                                   770 West Broad Street
                                                   Columbus, Ohio 43222
RDK/laa
11/3
Filed 11/10/10
Sent to S.C. reporter 2/11/11
