[Cite as Mead v. London Corr. Inst., 2011-Ohio-6943.]



                                      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 M. MEAD

       Plaintiff

       v.

LONDON CORRECTIONAL INSTITUTION

       Defendant

Case No. 2011-07605-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

                                         FINDINGS OF FACT
        {¶1}    Plaintiff, Thomas Mead, an inmate incarcerated at defendant’s London
Correctional Institution (LoCI) alleges his property was confiscated and lost subsequent
to a shakedown search at his work assignment area on May 14, 2011.
        {¶2}    Plaintiff alleges that his loss consisted of twenty-five music tapes valued at
$375.00, one Casio calculator-$15.99, one small bag of coffee-$2.51, and one jar of
peanut butter-$1.87. During the internal grievance process, plaintiff provided a credible
witness statement from the coordinator of the job assignment area, Mr. Fitzgerald, who
confirmed that plaintiff possessed an unknown quantity of cassettes tapes and the other
missing property items at the time of the shakedown. However, plaintiff did not submit
any evidence other than his own assertions to establish the value of his lost property. In
addition, plaintiff did not establish how recently had purchased the commissary items
and he admitted that he had the tapes for at least ten years.
        {¶3}    Plaintiff asserted his property was lost or destroyed as a proximate result
of negligence on the part of LoCI personnel and he has consequently filed this
complaint seeking damages in the amount of $395.37, the estimated replacement value
of the property. Payment of the filing fee was waived.
       {¶4}   Defendant admitted liability for the loss of one calculator, one bag of
coffee, and one jar of peanut butter. Defendant argued that plaintiff failed to prove the
number of cassettes that he owned prior to the shakedown. In addition, defendant
contended plaintiff was not permitted to possess more than fifteen cassette tapes
pursuant to internal policies and regulations. Accordingly, defendant admitted liability
for the loss of fifteen cassette tapes.
       {¶5}   Defendant contended that the “value of cassette tapes is very minimal due
to age and outdating of the tapes.” As such, defendant deferred to the court to establish
the reasonable value of the property for which defendant admits liability.
       {¶6}   Plaintiff filed a response stating that he can no longer purchase cassette
tapes and that he is limited to the purchase of compact discs which cost between
$15.00 and $21.00 each.         Plaintiff contended that he is entitled to $304.62, “as
reasonable replacement value” for his lost property.
                                   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} 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.
       {¶12} 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.
       {¶13} 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, 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.
       {¶14} 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. The 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 finds plaintiff’s assertions
credible regarding the loss of fifteen cassette tapes, one calculator, one bag of coffee,
and a jar of peanut butter.
       {¶15} Negligence on the part of defendant has been shown in respect to the
issue of protecting plaintiff’s property after the shakedown search.            Billups v.
Department of Rehabilitation and Correction (2001), 2000-10634-AD, jud.
       {¶16} 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.
       {¶17} 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.
       {¶18} 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.
       {¶19} Evidence has shown plaintiff’s cassette tapes were at least ten years old
when the incident forming the basis of this claim occurred. Plaintiff did not provide
sufficient evidence to establish the value of his missing property amounted to $395.37
as alleged in the complaint.      Based on the fact the tapes constituted depreciable
property, and some portion of the commissary items had most likely been consumed by
plaintiff, the court finds plaintiff has suffered damages in the total amount of $60.00.
                                  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 M. MEAD

          Plaintiff

          v.

LONDON CORRECTIONAL INSTITUTION

          Defendant

Case No. 2011-07605-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 $60.00. Court costs are assessed against defendant.




                                                   DANIEL R. BORCHERT
                                                   Deputy Clerk

Entry cc:

Thomas M. Mead, #A286-973                          Gregory C. Trout, Chief Counsel
1580 State Route 56                                Department of Rehabilitation
P.O. Box 69                                        and Correction
London, Ohio 43140                                 770 West Broad Street
                                                   Columbus, Ohio 43222

SJM/laa
8/24
Filed 8/26/11
Sent to S.C. reporter 1/19/12
