[Cite as Taylor v. Dept. of Rehab. & Corr., 2011-Ohio-6925.]



                                       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




JOHN TAYLOR

       Plaintiff

       v.

DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant

Case No. 2011-04061-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

                                          FINDINGS OF FACT
        {¶1}     Plaintiff, John Taylor, an inmate formerly incarcerated at defendant, Ross
Correctional Institution (RCI), alleged that several items of personal property were
stolen from his cell housing unit on September 5, 2010, at a time when he was away
from the unit. Plaintiff suggested Officer Elkins unlocked his cell door and allowed
another inmate into his cell without checking the cell identification cards or ascertaining
the identity of such inmate. Plaintiff therefore contended Officer Elkins acted negligently
in opening the cell door and such act facilitated the theft of plaintiff’s property. Plaintiff
noted that upon discovering the missing electronics he immediately reported the theft of
his property,1 which included a Sony AM/FM CD player, Koss equalizer, Koss
headphones, and one compact disc which was inside the CD player at the time it was
stolen. Plaintiff filed this complaint seeking to recover $146.48, the stated replacement
cost of his property. The filing fee was paid.

        1
          According to plaintiff, Officer Elkins indicated he did not have access to the theft loss forms and
instructed plaintiff to report the loss the next day. Plaintiff admitted he waited another full day due to the
Labor Day holiday.
       {¶2}   Plaintiff submitted with the complaint an “Inmate Property Theft/Loss
Report” (theft report) compiled by Sergeant Corey on September 7, 2010, indicating
there were no witnesses to the theft and that a search of plaintiff’s cell was conducted
but none of the missing property was found.         Plaintiff also included copies of his
grievance notifications, his appeal to the chief inspector, and the respective responses.
In addition, plaintiff filed a receipt reflecting the purchase of Koss headphones on May
4, 2006; and a corresponding certificates of ownership dated August 12, 2005. Finally,
plaintiff presented a certificate of ownership dated April 25, 2006, for a Sony CD player.
       {¶3}   Defendant denied liability in this matter asserting that plaintiff failed to
prove his property was lost as a result of any negligence on the part of RCI personnel.
Defendant further asserted that plaintiff was supplied with a locker box in which to
secure his possessions, and that defendant was not an insurer of plaintiff’s property. In
addition, defendant claimed that RCI staff members “conducted an immediate search of
numerous cells.” Thus, defendant contended “the search to recover stolen property
was reasonable and far reaching in scope.” Defendant included a copy of the report
prepared by Robert Whitten, Inspector, who stated that Sergeant Corey conducted a
search of the area on September 7, 2010, and that Officer Elkins verified he would
check identification before letting an inmate into a cell if he was unfamiliar with such
inmate. The claim file is devoid of any statement from Officer Elkins.           Defendant
concluded that plaintiff failed to prove any wrongful act by defendant’s personnel
caused the injury complained of in the complaint.
       {¶4}   Plaintiff filed a response insisting that Officer Elkins neglected to properly
verify the identification of an inmate who was allowed access to plaintiff’s cell and that a
review by defendant of the “security camera footage” for the date and time of the theft
would reveal the identity of the person who stole his property. In addition, plaintiff
maintained that the search conducted by RCI personnel was inadequate and untimely.
                                  CONCLUSIONS OF LAW
       {¶5}   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.
       {¶6}   “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.
       {¶7}   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}   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}   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} 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.
       {¶11} 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
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.
       {¶12} 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 an 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
are not particularly credible regarding the delay in having a theft/loss report completed.
       {¶13} 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.
       {¶14} 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} The fact that defendant supplied plaintiff with a locker box to secure
valuables constitutes prima facie evidence of defendant discharging its duty of
reasonable care. Watson v. Department of Rehabilitation and Correction (1987), 86-
02635-AD.
       {¶16} Defendant is not required to take extraordinary measures to provide
inmates means to secure their property. Andrews v. Allen Correctional Inst., Ct. of Cl.
No. 2008-09732-AD, 2009-Ohio-4268.
       {¶17} Defendant, when it retains control over whether an inmate’s cell door is to
be open or closed, owes a duty of reasonable care to inmates who are exclusively
forced to store their possessions in the cell while they are absent from the cell. Smith v.
Rehabilitation and Correction (1978), 77-0440-AD.
       {¶18} However, in the instant claim, plaintiff has failed to prove defendant
negligently or intentionally unlocked his cell door to facilitate a theft by an unidentified
inmate, and therefore, no liability shall attach to defendant as a result of any theft based
on this contention.   Carrithers v. Southern Ohio Correctional Facility (2002), 2001-
09079-AD.
       {¶19} Generally, defendant has a duty to conduct a search for plaintiff’s property
within a reasonable time after being notified of the theft.          Phillips v. Columbus
Correctional Facility (1981), 79-0132-AD; Russell v. Warren Correctional Inst. (1999),
98-03305-AD.
       {¶20} However, a search is not always necessary. In Copeland v. Department
of Rehabilitation and Correction (1985), 85-03638-AD, the court held that defendant had
no duty to search for missing property if the nature of the property is such that it is
indistinguishable and cannot be traced to plaintiff. Half of plaintiff’s missing property
consisted of indistinguishable items.
       {¶21} Plaintiff has proven, by a preponderance of the evidence, that defendant
was negligent in respect to making a reasonable attempt to recover distinguishable
stolen property. See Williams v. Dept. of Rehab. & Corr., Ct. of Cl. No. 2005-11094-AD,
2006-Ohio-7207. The distinguishable property items included a set of headphones and
a Sony CD player.
        {¶22} Negligence on the part of defendant has been shown in respect to a
failure by NCCI staff to make any reasonable attempts to recover distinguishable
property. Mullett.
        {¶23} Plaintiff has failed to prove, by a preponderance of the evidence, that any
indistinguishable property was stolen or unrecovered as a proximate result of any
negligent conduct attributable to defendant. Fitzgerald v. Department of Rehabilitation
and Correction (1998), 97-10146-AD; Hall v. London Correctional Inst., Ct. of Cl. No.
2008-04803-AD, 2008-Ohio-7088.
        {¶24} 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.
        {¶25} In a situation where a damage assessment for personal property
destruction or loss based on market value is essentially indeterminable, a damage
determination may be based on the standard value of the property to the owner. This
determination considers such factors as value to the owner, original cost, replacement
cost, salvage value, and fair market value at the time of the loss. Cooper v. Feeney
(1986), 34 Ohio App. 3d 282, 518 N.E. 2d 46.
        {¶26} 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.
        {¶27} 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.
        {¶28} Plaintiff has suffered damages in the amount of $60.00, plus the $25.00
filing fee.
                              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




JOHN TAYLOR

      Plaintiff

      v.

DEPARTMENT OF REHABILITATION AND CORRECTION

      Defendant

Case No. 2011-04061-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 $85.00, which includes the filing fee.       Court costs are
assessed against defendant.




                                        DANIEL R. BORCHERT
                                        Deputy Clerk

Entry cc:

John Taylor, #314-564                   Gregory C. Trout, Chief Counsel
2238 North West Street                  Department of Rehabilitation
Lima, Ohio 45802-4501                   and Correction
                                770 West Broad Street
                                Columbus, Ohio 43222
SJM/laa
8/18
Filed 8/23/11
Sent to S.C. reporter 1/19/12
