[Cite as Morris v. Ohio Dept. of Rehab. & Corr., 2011-Ohio-7016.]

                                                        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




KENNETH MORRIS

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTIONS

       Defendant

Case No. 2011-02646-AD

Deputy Clerk Daniel R. Borchert



                                     MEMORANDUM DECISION

                                         FINDINGS OF FACT
        {¶1}    On October 21, 2010, plaintiff, Kenneth Morris, an inmate formerly
incarcerated at defendant’s Hocking Correctional Facility (HCF) was transferred from
the general population to a segregation unit at approximately 1:30 p.m.
        {¶2}    Plaintiff's personal property was packed and delivered into the custody of
HCF staff incident to the transfer. Plaintiff alleges that when he was released from
segregation, some of his property items were missing. Plaintiff listed the following items
as missing: two pair of scissors ($2.40), one Sentry AM/FM cassette player ($20.95),
one TV headphones splitter ($4.42), one RC cola ($.51), one toenail clipper ($1.02), and
one fingernail clipper ($.77).
        {¶3}    Plaintiff asserted his property was lost or destroyed as a proximate result
of negligence on the part of HCF personnel and he has consequently filed this
complaint seeking damages in the amount of $30.07, the estimated replacement value
of the property. Payment of the filing fee was waived.
        {¶4}    Plaintiff submitted an inmate property record dated October 21, 2010,
which lists a Sentry cassette player and two headphones, but does not indicate that any
scissors, cola, or nail clippers were located during the pack-up process.
       {¶5}    In the investigation report defendant admitted “liability for the loss of the
cassette player and headphone splitter for a total of $25.37.” The defendant specifically
denied liability for the other items listed by plaintiff.
       {¶6}    Plaintiff did not file a response.
                                     CONCLUSIONS OF LAW
       {¶7}    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} “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} 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}       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}       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}       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}       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}     Plaintiff’s failure to prove delivery of the scissors, nail clippers and cola
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}     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.
       {¶16}     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.
       {¶17}     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.
       {¶18}     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.
       {¶19}     Upon review of all the evidence submitted, the court finds plaintiff has
suffered damages in the amount of $25.37.
                                                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



KENNETH MORRIS

        Plaintiff

        v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTIONS

        Defendant

Case No. 2011-02646-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 $25.37. Court costs are assessed against defendant.




                                           DANIEL R. BORCHERT
                                           Deputy Clerk

Entry cc:

Kenneth Morris, #348-177                   Gregory C. Trout, Chief Counsel
16759 Snake Hollow Road                    Department of Rehabilitation
P.O. Box 59                                and Correction
Nelsonville, Ohio 45764                    770 West Broad Street
                                           Columbus, Ohio 43222
10/20
Filed 10/25/11
Sent to S.C. reporter 3/13/12
