[Cite as Rachel v. Ohio Dept. of Rehab. & Corr., 2011-Ohio-2732.]

                                      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. RACHEL

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTIONS

       Defendant

        Case No. 2010-02804-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                         FINDINGS OF FACT
        {¶ 1} Plaintiff, Daniel J. Rachel, an inmate formerly incarcerated at defendant’s
Trumbull Correctional Institution (TCI), filed this action alleging his television set was
lost as a proximate cause of negligence on the part of TCI package room personnel.
Plaintiff explained he delivered his television set to a TCI employee, Officer Johnson, on
February 25, 2008 and requested the set be mailed to the vendor, Access “for warranty
replacement or refund.”            Plaintiff pointed out he neither received a replacement
television set nor a refund of the purchase price from Access and he consequently
made a written inquiry concerning the status of his claim. Plaintiff advised Access
responded “claiming they did not receive my tv and asked for confirmation of shipment”
from TCI. Plaintiff asserted his television set was never mailed to Access contending
the set was lost while in the possession of TCI package room staff, specifically, Officer
Johnson.      Plaintiff recalled his inmate account was never charged for shipping his
television set from TCI. Plaintiff maintained TCI should bear responsibility for the loss of
Case No. 2006-03532-AD                        -2-                 MEMORANDUM DECISION



his television set and he has requested damages in the amount of $181.36, the stated
replacement value of the set. Plaintiff also requested $10.26 for postage and copying
costs he incurred in pursuing this claim.1 Plaintiff was not required to pay a filing fee to
prosecute this action. Plaintiff submitted a copy of a receipt for the purchase of a
television set from Access dated December 12, 2007. Information on the receipt shows
the television set was purchased by a Melanie A. Gussett and sent to plaintiff at TCI.
Total purchase price of the set was $181.36. Plaintiff also submitted documentation
signed by Officer Johnson, who wrote “KTV71213032 Sent Back to Access 2-25-08.”
Plaintiff also submitted a document from Access (dated July 17, 2008) indicating, “[a]s
of 7/16/08 no tv has been returned.”
       {¶ 2} Defendant denied liability in this matter arguing plaintiff failed to produce
sufficient evidence to establish his television set was lost while under the control of TCI
personnel. Defendant stated “it was Plaintiff’s own actions in failing to mail his property
via certified mail that resulted in there being no tracking number to help Plaintiff locate
his property.” Defendant noted TCI employee, Officer Johnson sent plaintiff’s television
set back to Access on three separate occasions, including February 2008, Defendant
seemingly maintained plaintiff’s television set was mailed from TCI in February 2008 via
regular mail. Defendant related plaintiff “paid for regular postage” to send his television
set to Access. Defendant did not provide any record of funds being withdrawn from
plaintiff’s account to pay for postage during the month of February 2008. Defendant
contended the television set was mailed from TCI in February 2008 and consequently,

       1
         Postage and copying costs are not compensable in a claim of this type. Carnail v. Dept. of
Rehab. & Corr., Ct. of Cl. No. 2007-06322-AD, 2008-Ohio-1207; Tyler v. Ohio Dept. of Rehab. & Corr.,
Case No. 2006-03532-AD                          -3-            MEMORANDUM DECISION




Case No. 2006-03532-AD                          -3-            MEMORANDUM DECISION



TCI has no responsibility for the item once it leaves the institution.
       {¶ 3} Plaintiff filed a response insisting his television set was never mailed from
TCI via any mail and was lost while under the control of TCI personnel. Plaintiff pointed
out his inmate account was never charged for postage expense in February 2008 for
mailing a television set. Plaintiff submitted documentation showing no shipping costs
were charged to his inmate account from February 24, 2008 through March 26, 2008.
After reviewing all evidence submitted, the trier of fact finds plaintiff’s television set was,
in all probability, lost while under the control of TCI package room 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 owned 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 . . .”

Ct. of Cl. No. 2007-07299-AD, 2008-Ohio-3418.
Case No. 2006-03532-AD                   -4-               MEMORANDUM DECISION



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)    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.
      {¶ 9} 6)    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.
      {¶ 10} 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
Case No. 2006-03532-AD                      -5-            MEMORANDUM DECISION




Case No. 2006-03532-AD                      -5-            MEMORANDUM DECISION



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.
       {¶ 11} 8)    Plaintiff cannot recover for property loss when he fails to produce
sufficient evidence to establish that defendant actually assumed control over property.
Whiteside v. Orient Correctional Inst., Ct. of Cl. No. 2002-05751, 2005-Ohio-4455 obj.
overruled, 2005-Ohio-5068.      Plaintiff offered sufficient proof to establish TCI staff
exercised control over his televison set.
       {¶ 12} 9)    Negligence on the part of defendant has been shown in respect to
the issue of property protection. Billups v. Department of Rehabilitation and Correction
(2001), 2000-10634-AD; Tyler v. Ohio Dept. of Rehab. & Corr., Ct. of Cl. No. 2007-
07299-AD, 2008-Ohio-3418.
       {¶ 13} 10) The standard measure of damages for personal property is market
value. McDonald v. Ohio State Univ. Veterinary Hosp. (1994), 67 Ohio Misc. 2d 40, 644
N.E. 2d 750. The trier of fact finds that the value of plaintiff’s property that has been
confirmed as lost while under the TCI staff amounts to $181.36. Defendant is liable to
plaintiff for that amount.
Case No. 2006-03532-AD                  -6-               MEMORANDUM DECISION




                              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. RACHEL

      Plaintiff

      v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTIONS

      Defendant

      Case No. 2010-02804-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
Case No. 2006-03532-AD                  -7-               MEMORANDUM DECISION




Case No. 2006-03532-AD                  -7-               MEMORANDUM DECISION



of plaintiff in the amount of $181.36. Court costs are assessed against defendant.




                                               DANIEL R. BORCHERT
                                               Deputy Clerk

Entry cc:

Daniel J. Rachel, #530-216                     Gregory C. Trout, Chief Counsel
P.O. Box 788                                   Department of Rehabilitation
Mansfield, Ohio 44901                          and Correction
                                               770 West Broad Street
                                               Columbus, Ohio 43222

RDK/laa
2/9
Filed 3/9/11
Sent to S.C. reporter 5/27/11
