[Cite as Whitt v. Trumbull Corr. Inst., 2011-Ohio-4590.]



                                       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




MICHAEL WHITT, SR.

        Plaintiff

        v.

TRUMBULL CORRECTIONAL INSTITUTION

        Defendant

        Case No. 2011-02433-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                          FINDINGS OF FACT
        {¶1} 1)      On September 21, 2010, plaintiff, Michael Whitt, an inmate
incarcerated at defendant’s Trumbull Correctional Institution (TCI), was transferred from
TCI to a court hearing at an another facility.
        {¶2} 2)      Plaintiff’s personal property was inventoried, packed, and delivered
into the custody of TCI staff incident to his transfer.      Plaintiff recalled he regained
possession of his property on November 29, 2010, and discovered several items were
missing.
        {¶3} 3)      Plaintiff claimed the following items were missing: one bible, one pair
sweat pants, one sweat shirt, three pair boxers, hair trimmer, one fan, one cable splitter,
one universal remote, one “home fixer-upper” book, two toothpaste, seven compact
discs (CDs), nine envelopes, three deodorants, one shampoo, one baby powder, one
wave cap, cotton swabs, laundry detergent, two bars of Dove soap, four bars of Dial
soap, four bars of cocoa butter soap, AAA and AA batteries, one tropical punch Kool-
Aid, five cans of tuna, thirteen packs of noodles, four summer sausage, five honey
buns, six packs of cheese crackers, one Velveeta cheese, one Provolone cheese, one
BBQ sauce, one pizza sauce, one stick of pepperoni, four packs of rice, six bags of
microwave popcorn, and one peanut butter. Plaintiff asserted his property was lost or
destroyed as a proximate result of negligence on the part of TCI personnel and he has
consequently filed this complaint seeking damages in the amount of $314.30, the
estimated replacement value of the property. Payment of the filing fee was waived.
         {¶4} 4)   Plaintiff submitted a copy of his “Inmate Property Record” compiled on
September 21, 2010 when his property was packed incident to his transfer. Items listed
relevant to this claim are one bible, two pair sweat pants, one sweat shirt, seven pair of
undershorts, hair trimmer, one fan, one cable splitter, ten books, one religious book, two
toothpaste, seven CDs, nine envelopes, four deodorants, one shampoo, one powder,
laundry detergent, eight bars of soap, two batteries, one Kool-Aid, five cans of tuna, four
summer sausage, reasonable amount of cakes & pastries-buns, six packs of Ritz
crackers, one Velveeta cheese, one Provolone cheese, one BBQ sauce, one pizza
sauce, one pepperoni, four rice, and one peanut butter.
         {¶5} 5)   In the investigation report defendant noted that “[d]efendant has
previously indicated its liability for the loss of each of the individual items of property
listed in Plaintiff’s complaint, with the exception of two compact discs, a universal
remote, and a ‘home fixer-upper book.’” Defendant explained that although plaintiff
alleges that TCI lost seven CDs, defendant’s record establishes plaintiff owned only five
CDs.      According to defendant, plaintiff has failed to prove he owned two additional
CDs, a universal remote, and a home fixer-upper book.              The investigation report
prepared by the TCI institutional inspector states “[r]eceipts could not be produced for 7
CDs his file showed he had possession of 5 CDs. However, it could not be determined
the price paid, titles or when purchased. Inmate state family/friend purchased for him in
2010.”      Defendant deferred to the court to establish the reasonable value of the
property for which defendant admits liability.
         {¶6} Plaintiff filed a response insisting that he is entitled to all damages claimed.
Plaintiff pointed out that he delivered ten books and seven CDs to defendant as noted
on the September 29, 2010 pack-up sheet. Plaintiff stated that the universal remote
“was somehow overlooked during the pack-up.” Plaintiff maintained he did own seven
CDs and he submitted copies of the purchase orders completed in 2010, including the
titles and prices paid for the seven CDs.
                                CONCLUSIONS OF LAW
      {¶7} 1) 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.
      {¶8} 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.
      {¶9} 3) 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.
      {¶10} 4) 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.
      {¶11} 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.
      {¶12} 6) 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.
      {¶13} 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
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.
       {¶14} 8) Plaintiff’s failure to prove delivery of the universal remote 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.
       {¶15} 9) 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 finds plaintiff’s assertions
credible that he owned seven CDs and a home fixer-upper book.
       {¶16} 10) 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.
       {¶17} 11) 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.
       {¶18} 12) 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.
       {¶19} 13) 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.
       {¶20} 14) Upon review of all the evidence submitted, the court finds plaintiff has
suffered damages in the amount of $195.00.
                                  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




MICHAEL WHITT, SR.

          Plaintiff

          v.

TRUMBULL CORRECTIONAL INSTITUTION

          Defendant

          Case No. 2011-02433-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 $195.00. Court costs are assessed against defendant.




                                                   DANIEL R. BORCHERT
                                                   Deputy Clerk

Entry cc:

Michael Whitt, Sr., #572-552                       Gregory C. Trout, Chief Counsel
5701 Burnett Road                                  Department of Rehabilitation
P.O. Box 901                                       and Correction
Leavittsburg, Ohio 44430                           770 West Broad Street
                                                   Columbus, Ohio 43222

SJM/laa
5/10
Filed 6/7/11
Sent to S.C. reporter 9/12/11
