[Cite as Davis v. Ohio Dept. of Rehab. & Corr., 2010-Ohio-4782.]

                                      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




JAMES A. DAVIS

       Plaintiff

       v.

OHIO DEPARTMENT OF REH. AND CORRECTIONS

       Defendant

        Case No. 2009-08560-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                          FINDINGS OF FACT
        {¶ 1} 1)         Plaintiff, James A. Davis, an inmate, filed this action against
defendant, Department of Rehabilitation and Correction (DRC), alleging his property
was damaged on April 10, 2009 as a proximate cause of negligence on the part of DRC
personnel. Specifically, plaintiff claimed his Swintec typewriter was damaged beyond
repair by DRC staff during a transfer from the Lebanon Correctional Institution (LeCI) to
the Marion Correctional Institution (MCI).                Plaintiff maintained the typewriter was
dropped to the ground and broken as the item was being loaded onto a bus for transport
from LeCI to MCI. Plaintiff requested damages in the amount of $304.40, representing
the replacement cost of a Swintec typewriter and accessories. The $25.00 filing fee
was paid and plaintiff requested reimbursement of that cost along with his damage
claim. Plaintiff submitted a receipt showing he purchased a typewriter and accessories
on July 30, 2008 for $304.40.              Plaintiff claimed one of the DRC transport officers
admitted dropping the typewriter to the ground while attempting to load the property
onto the transport bus.
       {¶ 2} 2)      Defendant denied liability in this matter. Defendant explained the
personnel who transported plaintiff and his property on April 10, 2009 were Warren
Correctional Institution (WCI) employees. Defendant contended there is no evidence
plaintiff’s typewriter was dropped and broken by WCI staff at the time of transfer.
Defendant stated, “[t]he officers at LeCI that packed Plaintiff, and the officers from WCI
who transported Plaintiff both indicate they do not recall a typewriter being dropped or
broken.” Defendant further stated, “there is no report on arrival to MCI that the property
was broken.” Defendant contended plaintiff has failed to prove, by a preponderance of
the evidence, that his typewriter was damaged by any DRC personnel during transport
on April 9, 2010. Defendant did not offer any statements from any DRC employee who
handled plaintiff’s property.
       {¶ 3} 3)      Plaintiff filed a response insisting his typewriter was broken during
transport on April 10, 2009 as a proximate cause of negligence on the part of an
unidentified DRC employee who handled the property. Plaintiff submitted an affidavit
from a fellow inmate, Stanislav Transkiy, who was transferred with plaintiff from LeCI to
MCI on April 10, 2009. Transkiy recorded he was waiting in the loading area at LeCI
awaiting transfer on April 10, 2009 while WCI employees were loading property on the
transport bus and “[a]t one point I heard a loud crash that sounded like something was
dropped on the floor.”      Transkiy noted, “[a] few moments later one of the (WCI
employees) that was loading the bus, came up the steps stated something like: ‘if any
of your (property) is broken, don’t blame me, its not my fault that the bus is overloaded.’”
Transkiy acknowledged, “I did not actually see what fell down or was dropped.”
                                CONCLUSIONS OF LAW
       {¶ 4} 1)     It has been determined by this court that when a defendant engaged
in a shakedown operation, it must exercise ordinary care in doing so. Henderson v.
Southern Ohio Correctional Facility (1979), 76-0356-AD.
       {¶ 5} 2)     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.
       {¶ 6} 3)     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.
       {¶ 7} 4)     Plaintiff has failed to prove a causal connection between the damage
to his typewriter and any breach of duty owed by defendant in regard to protecting
inmate property. Druckenmiller v. Mansfield Correctional Inst. (1998), 97-11819-AD.
       {¶ 8} 5)     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.
       {¶ 9} 6)     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.
       {¶ 10} 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.
       {¶ 11} 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, 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.
       {¶ 12} 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. This 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 does not find
plaintiff’s assertions particularly persuasive.
      {¶ 13} 10) Plaintiff has failed to prove, by a preponderance of the evidence, that
any of 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.




                               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




JAMES A. DAVIS

      Plaintiff

      v.

OHIO DEPARTMENT OF REHAB. AND CORRECTIONS

      Defendant

      Case No. 2009-08560-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 defendant. Court costs are assessed against plaintiff.
                                ________________________________
                                DANIEL R. BORCHERT
                                Deputy Clerk

Entry cc:

James A. Davis, #348-744        Gregory C. Trout, Chief Counsel
P.O. Box 56                     Department of Rehabilitation
Lebanon, Ohio 43150             and Correction
                                770 West Broad Street
                                Columbus, Ohio 43222
RDK/laa
Filed 6/4/10
Sent to S.C. reporter 10/1/10
