[Cite as Maag v. Ohio Dept. of Rehab. & Corr., 2011-Ohio-7021.]



                                      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




THOMAS J. MAAG

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTIONS

       Defendant

Case No. 2011-09209-AD

Deputy Clerk Daniel R. Borchert



                                    MEMORANDUM DECISION


                                         FINDINGS OF FACT
        {¶ 1} On February 15, 2011, plaintiff, Thomas Maag, an inmate formerly
incarcerated at defendant’s Toledo Correctional Institution (ToCI), was transferred from
ToCI to Allen Correctional Institution (ACI).
        {¶ 2} Plaintiff’s personal property was inventoried, packed, and delivered into
the custody of ToCI staff incident to his transfer. Plaintiff recalled that when he regained
possession of his property at ACI he discovered that his television set was missing.
        {¶ 3} Plaintiff asserted his property was lost or destroyed as a proximate result
of negligence on the part of ToCI personnel and he has consequently filed this
complaint seeking damages in the amount of $201.00, which includes $193.90 to
replace the television set and $7.50 to purchase the corresponding remote control.
Payment of the filing fee was waived.
        {¶ 4} Plaintiff submitted a copy of his “Inmate Property Record” compiled on
February 15, 2011, when his property was packed incident to his transfer. Items listed
relevant to this claim are one RCA television set. In addition, plaintiff included a copy of
the inmate property record compiled at ACI on February 15, 2011. The ACI record lists
the following notation: “Inmate states that he had an RCA T.V.           Didn’t come with
property.”
       {¶ 5} In the investigation report defendant noted that “[d]efendant admits liability
for the claim * * * Plaintiff’s television was lost by an agent of Defendant who was driving
a state vehicle at the time.” Defendant deferred to the court to establish the reasonable
value of the property for which defendant admits liability.
       {¶ 6} Plaintiff filed a response insisting that he is entitled to all damages
claimed.     Plaintiff pointed out that the television was twenty-three months old, as
opposed to defendant’s contention that the television was two and one-half years old at
the time it was lost.     In addition, plaintiff contended that he was entitled to full
replacement value inasmuch as defendant requires inmates to pay full replacement
value for any state issue property that is lost or damaged by an inmate.
                                  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}    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.
       {¶ 12}    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.
       {¶ 13}    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.
       {¶ 14}    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.
       {¶ 15}    Evidence has shown plaintiff’s television set was nearly two years old
when the incident forming the basis of this claim occurred. Based on the fact the
television   constituted depreciable property, the court finds plaintiff has suffered
damages in the total amount of $125.00.
                                 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




THOMAS J. MAAG

        Plaintiff

        v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTIONS

        Defendant



Case No. 2011-09209-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 $125.00. Court costs are assessed against defendant.



                                                  DANIEL R. BORCHERT
                                                  Deputy Clerk

Entry cc:
Thomas J. Maag, #456-235                          Gregory C. Trout, Chief Counsel
2338 W. North Street                              Department of Rehabilitation
Lima, Ohio 45802                                  and Correction
                                                  770 West Broad Street
                                                  Columbus, Ohio 43222

10/12
Filed 10/25/12
Sent to S.C. reporter 3/13/12
