[Cite as Whigham v. Richland Corr. Inst., 2012-Ohio-3217.]



                                                       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




FREDERICK WHIGHAM

       Plaintiff

       v.

RICHLAND CORRECTIONAL INST.

       Defendant

        Case No. 2011-10991-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

                                         FINDINGS OF FACT
        {¶1}    On November 2, 2010, plaintiff, Frederick Whigham, an inmate formerly
incarcerated at Lorain Correctional Institution (LorCI), was transferred from LorCI to
defendant’s Richland Correctional Institution (RiCI).
        {¶2}    Plaintiff’s personal property was inventoried, packed, and delivered into
the custody of LorCI staff incident to his transfer. Plaintiff recalled when he and the
other inmates arrived at RiCI, they discovered that paper bags containing property of
some inmates had broken open during the transport.
        {¶3}    Plaintiff claimed Corrections Officer (CO) Smith ordered inmates to empty
the baggage from the storage area on the transport bus and to carry the paper bags into
the facility where they were placed on the floor.            Institutional Inspector Rose was
notified of the incident, came to the receiving area, and photographed the damage.
According to plaintiff, the following items were missing from his paper bag: one ten-pack
of razors, four embossed envelopes, one shampoo, one lotion, designer reading
glasses, and four soups.            Plaintiff asserted his property was lost or stolen as a
proximate result of
      {¶4}   negligence on the part of either LorCI or RiCI personnel and he has
consequently filed this complaint seeking damages in the amount of $182.89, the
estimated value of the alleged missing property. Payment of the filing fee was waived.
      {¶5}   Plaintiff submitted a copy of his “Inmate Property Record” compiled on
November 2, 2010, when his property was packed incident to his transfer. Items listed
relevant to this claim are one pair reading glasses, four stamped envelopes, two lotions,
fourteen razors, one shampoo, and four soups.           Plaintiff also submitted a LorCI
commissary receipt dated October 19, 2010, listing the following relevant purchases:
lotion ($1.75), razors ($1.60), and soup ($.25/each).
      {¶6}   In the investigation report defendant noted that “[d]efendant admits liability
for $4.35 for 4 soups, 1 lotion, and a pack of razors * * * . There is no evidence that
Plaintiff lost designer eyeglasses as indicated in the Complaint.” Defendant submitted a
report prepared by the RiCI Institutional Inspector, Kelly Rose, who explained that when
he arrived at the scene on November 2, 2010, he photographed the broken bags and
the property items spilling forth. He pointed out that the paper bags usually held small
value items such as hygiene products or foodstuffs. More expensive items, such as
eyeglasses, would be packed in sturdier cardboard containers. Inspector Rose noted
that plaintiff did not complain about the missing eyeglasses until January 12, 2011. In
addition, Inspector Rose asserted plaintiff failed to submit documentation verifying he
“legitimately owned private prescription glasses” nor did he establish the claimed value
of the alleged missing eyeglasses. Finally, defendant indicated plaintiff received state
issue eyeglasses on March 7, 2011.
      {¶7}   Plaintiff filed a response acknowledging that he could not prove he owned
a pair of designer eyeglasses; however, he did establish that he possessed a pair of
reading glasses on November 2, 2010. Plaintiff maintained that the eyeglasses were
lost as a result of defendant’s negligence and he requested the court “determine a fair
market value for his prescription reading glasses.”      Plaintiff further admits that he
received state issued eyeglasses in March 2011.
                                 CONCLUSIONS OF LAW
      {¶8}   In order to prevail, plaintiff must prove, by a preponderance of the
evidence, that defendant owed him a duty, that defendant breached that duty, and that
defendant’s 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.
      {¶9} “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.
      {¶10}      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.
      {¶11}      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.
      {¶12}      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.
      {¶13}      Plaintiff must produce evidence which affords a reasonable basis for
the conclusion 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.
      {¶14}      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, 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.
      {¶15}      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 failed to prove that defendant actually exercised
control over designer eyeglasses.
      {¶16}      Plaintiff’s failure to prove delivery of his alleged missing 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.
       {¶17}     The credibility of witnesses and the weight attributable to their
testimony are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St.
2d 230, 39 O.O. 2d 366, 227 N.E. 2d 212, paragraph one of the syllabus. The court is
free to believe or disbelieve, all or any part of each witness’s testimony. State v. Antill
(1964), 176 Ohio St. 61, 26 O.O. 2d 366, 197 N.E. 2d 548. The court does not find
plaintiff’s assertions credible that he suffered the loss of stamped envelopes, shampoo,
or a pair of prescription reading glasses, regardless of their design or value.
       {¶18}     Negligence on the part of defendant has been shown in respect to the
issue of protecting plaintiff’s property after he was transferred. Billups v. Department of
Rehabilitation and Correction (2001), 2000-10634-AD, jud.
       {¶19}     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.
       {¶20}     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.
       {¶21}     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.
       {¶22}     Upon review of all the evidence submitted, the court finds plaintiff has
suffered damages in the amount of $4.35.
                                               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




FREDERICK WHIGHAM

        Plaintiff

        v.

RICHLAND CORRECTIONAL INST.

        Defendant

        Case No. 2011-10991-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 $4.35. Court costs are assessed against defendant.




                                          DANIEL R. BORCHERT
                                          Deputy Clerk

Entry cc:

Frederick Whigham, #A591-763              Gregory C. Trout, Chief Counsel
P.O. Box 8107                             Department of Rehabilitation
Mansfield, Ohio 44901-8107                and Correction
                                          770 West Broad Street
                                          Columbus, Ohio 43222
011
Filed 3/27/12
sent to S.C. Reporter 7/17/12
