[Cite as Cable v. Ohio Dept. of Rehab. & Corr., 2010-Ohio-5823.]

                                      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




WILLIAM CABLE

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant
       Case No. 2009-09710-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



                                         FINDINGS OF FACT
        {¶ 1} 1)       Plaintiff, William Cable, an inmate incarcerated at defendant’s Allen
Correctional Institution (ACI), filed this action alleging that his television set, keyboard,
CD player, calculator, contact lenses, radio, and photographs were either damaged
beyond repair or stolen as a proximate cause of negligence on the part of ACI staff in
failing to protect the property.          Plaintiff related that, “[o]n August 29, 2009 inmate
Charles Williams (#417-628) tossed my K.T.V. television, my Yamaha Keyboard, and
my locker box over the top rail of my housing unit (2B).” Plaintiff asserted that ACI
personnel then failed to secure the area and consequently, property that was stored in
his locker box was stolen by unidentified inmates. Plaintiff claimed that his television
set, keyboard, CD player and calculator were damaged beyond repair as a result of the
act of Inmate Williams. Additionally, plaintiff claimed that his contact lenses, radio, and
“priceless pictures” were stolen. Plaintiff requested additional damages of $1,039.95 for
“emotional stress, depression, mental anguish, priceless pictures, (and copies).” The
$25.00 filing fee was paid and plaintiff requested reimbursement of that cost along with
his damage claim.
       {¶ 2} 2)     Defendant denied all liability in this matter. Defendant acknowledged
that Inmate Charles Williams did in fact “throw the property complained of off the top
range” of plaintiff’s housing unit. Defendant asserted that plaintiff failed to produce any
evidence to establish that Williams’ intentional act was foreseeable.           Defendant
contended that actionable negligence cannot be shown when harm is caused by the
intentional act of a third party that is not foreseeable. Defendant denied that any ACI
personnel failed to protect plaintiff’s property.
                                 CONCLUSIONS OF LAW
       {¶ 3} 1)     Copying costs are not compensable in a claim of this type. See
Carnail v. Dept. of Rehab. & Corr., Ct. of Cl. No. 2007-06322-AD, 2008-1207; Tyler v.
Ohio Dept. of Rehab. & Corr., Ct. of Cl. No. 2007-07299-AD, 2008-Ohio-3418.
       {¶ 4} 2)     Also, it should be noted that this court does not recognize any
entitlement to damages for mental distress and extraordinary damages for simple
negligence involving property loss.       Galloway v. Department of Rehabilitation and
Correction (1979), 78-0731-AD; Berke v. Ohio Dept. of Pub. Welfare (1976), 52 Ohio
App. 2d 271, 6 O.O. 3d 280, 369 N.E. 2d 1056; Johnson v. Ohio State Penitentiary, Ct.
of Cl. No. 2007-04605-AD, 2008-Ohio-1769; Davis v. Southern Ohio Correctional Inst.,
Ct. of Cl. No. 2009-07296-AD, 2010-Ohio-1953.
       {¶ 5} 3)     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,¶8 citing Menifee v. Ohio Welding
Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 472 N.E. 2d 707.
       {¶ 6} 4)     “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.
       {¶ 7} 5)     “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.
      {¶ 8} 6)    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.
      {¶ 9} 7)    Defendant is not responsible for actions of other 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; Melson v. Ohio Department of
Rehabilitation and Correction (2003), Ct. of Cl. No. 2003-04236-AD, 2003-Ohio-3615;
Jenkins v. Richland Correctional Inst., Ct. of Cl. No. 2003-01768, 2003-Ohio-4483.
      {¶ 10} 8)   Ohio law imposes a duty of reasonable care upon the state to provide
for its prisoner’s health, care, and well-being. Clemets v. Heston (1985), 20 Ohio App.
3d 132, 136, 20 OBR 166, 485 N.E. 2d 287. Reasonable or ordinary care is that degree
of caution and foresight which an ordinarily prudent person would employ in similar
circumstances. Smith v. United Properties, Inc. (1965), 2 Ohio St. 2d 310, 31 O.O. 2d
573, 209 N.E. 2d 142.
      {¶ 11} 9)   Defendant is not liable for the intentional attack on one inmate by
another unless it has adequate notice, either actual or constructive, of an impending
attack. Mitchell v. Dept. of Rehab. & Corr. (1995), 107 Ohio App. 3d 231, 235, 668 N.E.
2d 538.
      {¶ 12} 10) Plaintiff has failed to show any causal connection between the
damage to his property items and any breach of a duty owed by defendant in regard to
protecting inmate property. Druckenmiller v. Mansfield Correctional Inst. (1998), 97-
11819-AD; Tomblin v. London Correctional Inst., Ct. of Cl. No. 2005-03431-AD, 2005-
Ohio-4859; Madden v. Lebanon Correctional Inst., Ct. of Cl. No. 2006-06116-AD, jud,
2007-Ohio-1928; Tolbert v. Lebanon Correctional Inst., Ct. of Cl. No. 2007-06942-AD,
2008-Ohio-5152.
      {¶ 13} 11) The allegation that a theft may have occurred is insufficient to show
defendant’s negligence. Williams v. Southern Ohio Correctional Facility (1985), 83-
07091-AD; Custom v. Southern Ohio Correctional Facility (1986), 84-02425. Plaintiff
must show defendant breached a duty of ordinary or reasonable care. Williams.
      {¶ 14} 12) 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.
      {¶ 15} 13) Plaintiff must produce evidence which affords a reasonable basis for
the conclusion that 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.
      {¶ 16} 14) Plaintiff has failed to prove, by a preponderance of the evidence, that
any of his property was lost or stolen as a proximate result of any negligent conduct
attributable to defendant. Fitzgerald v. Department of Rehabilitation and Correction
(1998), 97-10146-AD; Hall v. London Correctional Inst., Ct. of Cl. No. 2008-04803-AD,
2008-Ohio-7088.




                               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




WILLIAM CABLE

      Plaintiff

      v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

      Defendant

Case No. 2009-09710-AD

Clerk Miles C. Durfey
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.



                                                 ________________________________
                                                 MILES C. DURFEY
                                                 Clerk

Entry cc:

William Cable, #569-457                          Gregory C. Trout, Chief Counsel
2338 N. West Street                              Department of Rehabilitation
Lima, Ohio 45802                                 and Correction
                                                 770 West Broad Street
                                                 Columbus, Ohio 43222
RDK/laa
6/23
Filed 8/9/10
Sent to S.C. reporter 11/23/10
