[Cite as McCafferty v. Columbus Dev. Ctr., 2009-Ohio-7173.]

                                      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




FRANK W. MCCAFFERTY

       Plaintiff

       v.

COLUMBUS DEVELOPMENTAL CENTER

       Defendant

        Case No. 2009-07253-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} On August 18, 2009, plaintiff, Frank W. McCafferty, an employee of
defendant, Columbus Developmental Center (CDC), sustained body damage to his
1994 Ford Taurus while the vehicle was parked in a parking lot located on CDC
premises. Plaintiff’s property damage incident occurred when an uncontrolled CDC
resident ran outside the CDC residential building, into the parking lot and kicked the left
rear quarter panel of plaintiff’s parked car. Plaintiff implied the damage to his car was
proximately caused by negligence on the part of CDC staff in failing to control a violent
resident. Consequently, plaintiff filed this complaint seeking to recover $1,417.00, the
cost of automotive repair needed resulting from the August 19, 2009 incident. The filing
fee was paid.
        {¶ 2} A report (copy submitted) was filed with the CDC Police Department
incident to plaintiff’s property damage occurrence.           The report contained witness
statements from Latisha N. Pace and Euleetha Pringle as well as photographs depicting
the damage to plaintiff’s car. Pringle related she observed CDC resident Jesse D,
become violent; throwing a coffee pot at another resident, destroying a picture that had
been hanging on the wall of the CDC Broadview residence facility, kicking a wall, and
then kicking another resident in the leg. Pringle noted she then saw resident Jesse D
walk outside the residence facility and kick plaintiff’s car two times. Pace reported she
and Pringle followed Jesse D when he ran outside the Broadview residence facility.
Pace stated “Jesse started running and jumped and kicked staffs (plaintiff’s) car with
both feet leaving a large dent in the rear driver side quarter panel.” Photographs of
plaintiff’s car accompanying the report substantiate the witness statements concerning
the damage to the left rear quarter panel of the vehicle.
       {¶ 3} Defendant filed an investigation report neither admitting nor denying
liability in this matter.     Under the heading “Position of Defendant, Columbus
Developmental Center” defendant provided the following statements:
       {¶ 4} “The Defendant does not dispute the facts outlined by the Plaintiff. A
resident of the Columbus Developmental Center caused damage to the Plaintiff’s
vehicle a blue     Ford Taurus bearing Ohio License plate.”           The investigation file
submitted by the Plaintiff and written by the Columbus Developmental Center Police
Department more fully outlines the details.”
       {¶ 5} Plaintiff filed a response maintaining he has not received any payment
from any collateral source to cover the cost of repairing his car.
       {¶ 6} For plaintiff to prevail on a claim of negligence, he must prove, by a
preponderance of the evidence, that defendant owed him a duty, that it breached that
duty, and that the breach proximately caused his injuries.           Armstrong v. Best Buy
Company, Inc., 99 Ohio St. 3d 79, 2003-Ohio-2573, 788 N.E. 2d 1088, ¶8 citing
Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 472
N.E. 2d 707. 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. However, “[i]t is the
duty of a party on whom the burden of proof rests to produce evidence which furnishes
a reasonable basis for sustaining his claim. If the evidence so produced furnishes only
a basis for a choice among different possibilities as to any issue in the case, he fails to
sustain such burden.”       Paragraph three of the syllabus in Steven v. Indus. Comm.
(1945), 145 Ohio St. 198, 30 O.O. 415, 61 N.E. 2d 198, approved and followed. This
court, as trier of fact, determines questions of proximate causation.           Shinaver v.
Szymanski (1984), 14 Ohio St. 3d 51, 14 OBR 446, 471 N.E. 2d 477.
       {¶ 7} “If an injury is the natural and probable consequence of a negligent act
and it is such as should have been foreseen in the light of all the attending
circumstances, the injury is then the proximate result of the negligence.        It is not
necessary that the defendant should have anticipated the particular injury.          It is
sufficient that his act is likely to result in an injury to someone.” Cascone v. Herb Kay
Co. (1983), 6 Ohio St. 3d 155, 160, 6 OBR 209, 451 N.E. 2d 815, quoting Neff Lumber
Co. v. First National Bank of St. Clairsville, Admr. (1930), 122 Ohio St. 302, 309, 171
N.E. 327. In order to prove the breach of a definable duty, plaintiff must show that the
harm that occurred was foreseeable. Menifee, 15 Ohio St. 3d 75, 15 OBR 179, 472
N.E. 2d 707. The test for feasibility is whether a prudent person would have anticipated
that an injury was likely to occur as a result of some action or inaction. id.
       {¶ 8} Generally there is no duty to control the conduct of a third person by
preventing him from causing physical harm to another. Littleton v. Good Samaritan
Hospital & Health Ctr. (1988), 39 Ohio St. 3d 86, 92, 529 N.E. 2d 449. However, an
exception to this general rule has been found when a special relationship exists
between the actor and the third person that imposes a duty upon the actor to control the
third person’s conduct, or when a special relationship exists between the actor and the
other that gives to the other a right to protection. Littleton. “Such ‘a special relation’
exists when one takes charge of a person whom he knows or should know is likely to
cause bodily harm to others if not controlled.” Littleton, at 92; 2 Restatement of the Law
2d, Torts (1965) at 129, section 319; see 2 Restatement of the Law 2d, Torts, (1965) at
123, Section 315, Comment c. Under the facts of the instant claim, the court finds the
special relationship outlined in Littleton exists and the harm inflicted by the CDC
resident was foreseeable under the circumstances. Consequently, defendant is liable to
plaintiff for the damage claimed, $1,417.00, plus the $25.00 filing fee, which may be
awarded as costs pursuant 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




FRANK W. MCCAFFERTY

      Plaintiff

      v.

COLUMBUS DEVELOPMENTAL CENTER

      Defendant

      Case No. 2009-07253-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 $1,442.00, which includes the filing fee. Court costs are
assessed against defendant.




                                        DANIEL R. BORCHERT
                                        Deputy Clerk

Entry cc:

Frank W. McCafferty                     D. Michael Snow, Superintendent
153 Washington Street                   Columbus Developmental Center
Canal Winchester, Ohio 43110            1601 West Broad Street
                                        Columbus, Ohio 43222
RDK/laa
10/21
Filed 11/20/09
Sent to S.C. reporter 3/12/10
