[Cite as Dehler v. Trumbull Correctional Inst., 2010-Ohio-4027.]

                                       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




LAMBERT DEHLER

       Plaintiff

       v.

TRUMBULL CORRECTIONAL INSTITUTION

       Defendant

        Case No. 2009-08390-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



                                          FINDINGS OF FACT
        {¶ 1} 1)         Plaintiff, Lambert Dehler, an inmate formerly incarcerated at
defendant, Trumbull Correctional Institution (TCI), asserted that a TCI employee, Officer
Urbania, entered his cell on August 12, 2009 and deliberately destroyed “two new
plastic coat hangers.”         Plaintiff contended that his coat hangers were “deliberately
broke” by Officer Urbania and he maintained that defendant should bear responsibility
for the damage. Plaintiff filed this complaint seeking to recover $50.00, the stated value
of two plastic hangers. Payment of the filing fee was waived.
        {¶ 2} 2)         Defendant denied liability in this matter contending that plaintiff
failed to offer sufficient evidence to establish that his coat hangers were destroyed as a
proximate cause of negligence on the part of TCI personnel. Defendant referenced a
report from the Assistant Inspector of Institutional Services, Trumbull Correctional
Institution, wherein it was determined that “there is no evidence that the coat hangers
were broken at the time of the shakedown” search of plaintiff’s cell. A copy of this report
was not included with defendant’s investigation report. Defendant neither admitted nor
denied that TCI staff conducted a shakedown search of plaintiff’s cell on August 12,
2009. Defendant argued that plaintiff “provided no proof of ownership or loss at the fault
of” TCI staff.
       {¶ 3} 3)     Plaintiff filed a response attaching an affidavit from a fellow inmate,
James Butcher, who related that he heard Officer Urbania enter plaintiff’s cell on August
12, 2009. Butcher stated that, “I heard him (Officer Urbania) open-up Dehler’s locked
cell and rummaging through Dehler’s personal property and making a lot of noise while
both Dehler and his cell-mate were not in the block.”
                               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, 798 N.E.
2d 1121, ¶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 has failed to show any causal connection between the
damage to his coat hangers 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.
      {¶ 13} 10) Plaintiff has failed to prove, by a preponderance of the evidence, that
his property was damaged as a proximate result of any negligent conduct attributable to
defendant. Fitzgerald v. Department of Rehabilitation and Correction (1998), 97-10146-
AD.
      {¶ 14} 11) Further, an intentional and willful tort committed by an employee for
his own purposes constitutes a departure from the employment, so that the employer is
not responsible. Szydlowski v. Ohio Dept. of Rehab. & Corr. (1992), 79 Ohio App. 3d
303, 607 N.E. 2d 103, citing Vrabel v. Acri (1952), 156 Ohio St. 467, 46 O.O. 387, 103
N.E. 2d 564. The facts of this case, taken in the context of the situation as plaintiff
presented, would constitute an intentional tort committed by defendant’s employee
performed for his own personal purpose.           Following this rationale, plaintiff cannot
maintain a cause of action against defendant for the intentional malicious act of its
employee.
                               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




LAMBERT DEHLER

      Plaintiff

      v.

TRUMBULL CORRECTIONAL INSTITUTION

      Defendant

      Case No. 2009-08390-AD

Clerk Miles C. Durfey


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.



                                                ________________________________
                                                MILES C. DURFEY
                                                Clerk

Entry cc:
Lambert Dehler, #273-819        Gregory C. Trout, Chief Counsel
P.O. Box 788                    Department of Rehabilitation
Mansfield, Ohio 44901-0788      and Correction
                                770 West Broad Street
                                Columbus, Ohio 43222
RDK/laa
3/30
Filed 4/23/10
Sent to S.C. reporter 8/26/10
