[Cite as Walker v. Ohio Dept. of Rehab. & Corr., 2010-Ohio-5821.]

                                      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




GLENN M. WALKER

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTIONS

       Defendant

Case No. 2009-05382-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                         FINDINGS OF FACT
        {¶ 1} Plaintiff, Glenn M. Walker, an inmate formerly incarcerated at defendant’s
Ross Correctional Institution (RCI), filed this action alleging RCI personnel honored a
forged cash slip resulting in funds being withdrawn from his inmate account. In his
complaint, plaintiff requested damage recovery of $380.00, the amount the RCI cashier
withdrew from his inmate account when honoring a forged instrument. The filing fee
was paid.
        {¶ 2} At some unspecified date in 2008, an unidentified inmate at RCI obtained
a “cash slip,” forged plaintiff’s name to the “cash slip,” and thereby authorized the
withdrawal of $380.00 from plaintiff’s inmate account.              The forged authorization to
withdraw funds from plaintiff’s inmate account was approved by RCI staff and a check
was issued to an unidentified individual. At the time the forged “cash slip” authorization
was honored, plaintiff was being held in a segregation unit under administrative control.
Subsequently, RCI personnel became aware of the forgery and made attempts to stop
payment on the issued check.               The attempts to stop payment were unsuccessful.
Plaintiff contended defendant should bear liability for the actions of the RCI cashier in
honoring a forged “cash slip.”
       {¶ 3} Defendant did not dispute the fact that the RCI cashier honored a forged
“cash slip” and issued a check drawn on plaintiff’s inmate account in the amount of
$380.00.   Defendant acknowledged the check was subsequently negotiated and no
funds were recovered. However, defendant denied liability in this matter contending it
generally bears no responsibility for the criminal acts of an inmate unless an agency
relationship can be shown or some tortious conduct on the part of defendant’s
personnel was a proximate cause of the loss claimed. Defendant stated, “it is the
position of the Defendant that this complaint should be denied as the Plaintiff has failed
to prove by a preponderance of the evidence, that Defendant breached any duty of care
toward Plaintiff’s property.”
                                 CONCLUSIONS OF LAW
       {¶ 4} 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.
       {¶ 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,¶41;
Mussivand v. David (1989), 45 Ohio St. 3d 314, 318, 544 N.E. 2d 265.
       {¶ 6} 3)     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.
       {¶ 7} 4)     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.
       {¶ 8} 5)     Defendant is not responsible for theft 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.
      {¶ 9} 6)     Negligence on the part of defendant has been shown in respect to
protecting plaintiff’s property. Billups v. Department of Rehabilitation and Correction
(2001), 2000-10634-AD, jud.
      {¶ 10} 7)    Liability on the part of defendant has been established in not
protecting the funds in plaintiff’s inmate account. Nash v. Belmont Correctional Inst., Ct.
of Cl. No. 2006-03907-AD, 2007-Ohio-4507.         Defendant is liable to plaintiff for the
damages claimed, $380.00, plus the $25.00 filing fee which may be reimbursed as
compensable costs pursuant to R.C. 2335.19.          See Bailey v. Ohio Department of
Rehabilitation and Correction (1990), 62 Ohio Misc. 2d 19, 587 N.E. 2d 990.




                               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




GLENN M. WALKER

      Plaintiff

      v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTIONS

      Defendant
      Case No. 2009-05382-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 $405.00, which includes the filing fee. Court costs are
assessed against defendant.




                                          DANIEL R. BORCHERT
                                          Deputy Clerk

Entry cc:

Glenn M. Walker, #476-594                 Gregory C. Trout, Chief Counsel
5787 St. Rt. 63                           Department of Rehabilitation
Lebanon, Ohio 45036                       and Correction
                                          770 West Broad Street
                                          Columbus, Ohio 43222
RDK/laa
7/2
Filed 8/3/10
Sent to S.C. reporter 11/23/10
