[Cite as Lister v. London Correctional Inst., 2009-Ohio-7185.]

                                       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




CHARLES LISTER

        Plaintiff

        v.

LONDON CORRECTIONAL INSTITUTION

        Defendant

        Case No. 2009-06524-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                          FINDINGS OF FACT
        {¶ 1} 1)       Plaintiff, Charles Lister, an inmate incarcerated at defendant, London
Correctional Institution (LoCI), asserted his Smith Corona typewriter was totally
destroyed by LoCI staff during a shakedown search conducted on December 18, 2007.
        {¶ 2} 2)       Plaintiff explained that under current LoCI policy his broken Smith
Corona typewriter cannot be sent out of the institution for repairs, but must be replaced
by a different brand typewriter (Swintee) sold through an approved vendor.
Consequently, plaintiff maintained all his Smith Corona typewriter supplies along with
his Smith Corona typewriter must be replaced. Plaintiff contended his typewriter was
totally damaged as a proximate cause of negligence on the part of LoCI personnel and
he has therefore filed this complaint seeking to recover $311.75, the stated replacement
cost of a typewriter along with the value of typewriter accessories he can no longer use.
The filing fee was paid.
        {¶ 3} 3)       Defendant denied liability in this matter asserting plaintiff failed to
offer sufficient evidence to prove his typewriter was broken by LoCI staff during a
shakedown search on December 18, 2007. Defendant related “[i]t is just as possible
that any damage (to the typewriter) occurred prior to, or after, the shakedown.”
Defendant acknowledged it is possible plaintiff’s typewriter was damaged by LoCI
employees during the December 18, 2007 shakedown search. Defendant maintained
plaintiff overstated his damage claim considering the typewriter was purchased for him
in 2001 and was therefore at least six years old at the time of the shakedown search.
Additionally, defendant pointed out plaintiff failed to provide evidence of the original
purchase price of the typewriter and failed to submit evidence to prove the typewriter
was totally destroyed. Defendant priced a new Smith Corona typewriter at $137.96 and
$159.98. Defendant argued plaintiff is not entitled to the damages claimed.
        {¶ 4} 4)   Plaintiff filed a response insisting his Smith Corona typewriter was
“dropped by a staff member” during a shakedown search on December 18, 2007.
Plaintiff submitted a title for a Smith Corona typewriter issued by defendant on May 24,
2007.    Plaintiff described the damage to his property observing, “[t]he case of this
typewriter is now broke in four (4) locations, making this typewriter inoperative.” Plaintiff
maintained that his Smith Corona typewriter originally cost much more than the two
examples of typewriters defendant referenced valued at $137.96 and $159.98,
respectively. Plaintiff did not submit any evidence regarding the purchase price of his
typewriter or give any indication when the typewriter was purchased.
                                CONCLUSIONS OF LAW
        {¶ 5} 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.
        {¶ 6} 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.
        {¶ 7} 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.
        {¶ 8} 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.
       {¶ 9} 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.
       {¶ 10} 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.
       {¶ 11} 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.
       {¶ 12} 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.
       {¶ 13} 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.
       {¶ 14} 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




CHARLES LISTER

      Plaintiff

      v.

LONDON CORRECTIONAL INSTITUTION

      Defendant

      Case No. 2009-06524-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:

Charles Lister, #351-130                        Gregory C. Trout, Chief Counsel
1580 St. Rt. 56                                 Department of Rehabilitation
P.O. Box 69                                     and Correction
London, Ohio 43140-0069        770 West Broad Street
                               Columbus, Ohio 43222
RDK/laa
10/28
Filed 12/22/09
Sent to S.C. reporter 4/7/09
