[Cite as Remillard v. Ohio State Hwy. Patrol, 2013-Ohio-5922.]



                                                        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




STEPHEN REMILLARD

       Plaintiff

       v.

OHIO STATE HIGHWAY PATROL

       Defendant

Case No. 2012-08630-AD

Interim Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                          FINDINGS OF FACT
        {¶1}     1)      Plaintiff, Stephen Remillard, asserted that on November 8, 2012, at
approximately 11:30 a.m., he was stopped by Officer Smart of the Ohio State Highway
Patrol (“OSHP”). Plaintiff related that the officer informed him he was being stopped for
following another vehicle too closely. Plaintiff was directed to step out of the vehicle
and was questioned with respect to his red eyes and his most recent use of marijuana.
Plaintiff contended that he explained to the trooper that he was a new insurance
adjuster traveling from Colorado to the site of storm damage, consequently he had been
driving 24 out of the last 28 hours. Furthermore, he had not smoked marijuana.
        {¶2}     At that point, Trooper Smart questioned him about possession of a red
card. (A red card issued by the state of Colorado allows an individual to legally use
medical marijuana.) Plaintiff replied he did not possess such a card but that his wife
did. Plaintiff was instructed to take a roadside sobriety test and was informed by the
trooper that he believed plaintiff was “high” and a K-9 unit would conduct a search.
Case No. 2012-08630-AD                       -2-            MEMORANDUM DECISION



During the search, the dog alerted on plaintiff vehicle, scratched the rear passenger
door and rear passenger quarter panel. Thereafter, a search was conducted of his
vehicle but no contraband substance was found. After a brief conversation with the
trooper, he was written a warning ticket for following too close and he left the scene of
the search.
       {¶3}   2)     Plaintiff filed this complaint seeking damages in the amount of
$1,370.00 to repair the scratches to his vehicle caused by the K-9. While plaintiff
contended his hood latch was damaged and one of his digital cameras had “what
(appeared) to be thumb or finger prints on the screen that are blacked out and the
digital display no longer works,” he did not request damages for those conditions.
Plaintiff submitted the $25.00 filing fee.
       {¶4}   3)     Defendant denied liability in this matter. Defendant recounted the
reason for and the manner in which plaintiff’s vehicle was stopped which was consistent
with plaintiff’s version of events. However, “Tpr. Smart ask him (plaintiff) to step from
his vehicle and administered field sobriety tests specific to marijuana use. The Plaintiff
failed the tests.” A K-9 was then used to determine if marijuana was present in the
vehicle.   The K-9 alerted to the odor of marijuana “scratching on the right rear
passenger door of the vehicle.” Plaintiff admitted that his wife possessed a red card
from Colorado and in all likelihood his clothing could contain the odor of marijuana. A
search of plaintiff’s vehicle revealed that no contraband was recovered.
       {¶5}   4)     Finally, while OSHP admits that their K-9 scratched the plaintiff’s
vehicle, OSHP contended that the dog caused only “surface scratches.” Defendant
submitted affidavits from Tpr. Smart and Sgt. Chris Coverstone which both indicate the
scratched caused by the K-9 “were surface scratches and did not cut into the paint.”
       {¶6}   5)     Finally, defendant asserted that “even if the Plaintiff had proven that
he suffered a loss, the loss was caused by his own negligent actions. The Plaintiff
Case No. 2012-08630-AD                    -3-                MEMORANDUM DECISION



admits that he had clothing in his car that was exposed to marijuana smoke. Even if the
Plaintiff or his wife exposed the clothes to marijuana that was smoked legally in
Colorado, marijuana is contraband in Ohio. In Ohio police canines, including Chula, are
trained and certified to alert the odor of narcotics, including marijuana. See, O.A.C.
109:2-7-03 and Exhibit A. Tpr. Smart utilized Chula exactly how he was trained and
certified to be used. Chula did exactly what any other police K9 in Ohio would have
done while sniffing a vehicle that contained items with a narcotic odor. He would not
have alerted and scratched at the car if it didn’t contain items that smell like contraband.
Thus, even if the Plaintiff had proven that his vehicle was scratched, his own negligence
proximately caused the damage.”
       {¶7}    6)    Plaintiff submitted a response to defendant’s investigation report.
Plaintiff stated that at the time of being stopped, Tpr. Smart informed him he had
passed the field sobriety test, but informed him they were searching his vehicle anyway.
Furthermore, if plaintiff had truly failed the sobriety test, plaintiff wonders why he was
not arrested. Plaintiff contended that the opinion of two separate body repair shops
concerning the nature of the damage to his vehicle should outweigh the opinion of two
OSHP officers. Plaintiff asserted that OSHP’s K-9 scratched his vehicle and this fact
was admitted by defendant. Accordingly, plaintiff’s claim should be granted.
       {¶8}    7)    Plaintiff submitted an estimate from Al Serra Collision Center which
revealed the cost to repair damage to plaintiff’s vehicle was $1,020.69.            Plaintiff
submitted an estimate from Cliff’s Hi-Tech Body Shop, Inc. with his complaint in the
amount of $1,370.00. Plaintiff also submitted color photographs of the damaged area of
his vehicle.
       {¶9}    8)    Defendant filed an Investigation Report Sur-Reply which stated the
black and white pictures of the body of plaintiff’s vehicle do not establish “proof that the
primer was actually scratched.” Plus, defendant believes the discrepancy in the costs of
Case No. 2012-08630-AD                   -4-               MEMORANDUM DECISION



the two estimates brings into question the extent of the damages involved.
      {¶10} 9)      Plaintiff submitted a response to defendant’s Sur-Reply indicating
he did send color photographs to the court. Two photographs show the damage the
day after the incident and the third shows the condition of the vehicle after buffing the
scratched area twice and washing the vehicle several times. Finally, plaintiff denied that
the estimates he obtained were somehow illegitimate.
                                   CONCLUSIONS OF LAW
      {¶11} 1)      In order to recover in a negligence action, the plaintiff must prove
the defendant owed him a duty, the breach of the duty, and the damages resulting
therefrom.   Strother v. Hutchinson, 67 Ohio St. 2d 282, 423 N.E. 2d 467 (1981).
Defendant, in the instant claim, owed plaintiff the duty of reasonable care in respect to
protecting plaintiff’s car from damage while conducting the search. Berry v. Swanton
Post,, 91-09685-AD (1992). This duty encompasses an exercise of reasonable care to
inhibit or curtail the destructive propensities of canines utilized as vehicle search
enhancers.   Swain v. Ohio State Highway Patrol, 91-07232-AD (1991).           See also,
Baumbick v. Ohio State Patrol, 2007-09291-AD (2008); Pruett v. Ohio State Highway
Patrol, 2006-04962-AD (2006).
      {¶12} 2)      Defendant may be held liable for property damages caused by a
dog under the control of OSHP employees. Spradlin v. Ohio State Highway Patrol,
2002-08971-AD, 2003-Ohio-118.        Also, defendant may bear liability for property
damage caused by the negligent acts of OSHP personnel. See Moro v. Ohio State
Highway Patrol, 2002-04429-AD (2002).
      {¶13} 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, 76-0368-AD (1977). This
court, as trier of fact, determines questions of proximate causation.        Shinaver v.
Case No. 2012-08630-AD                     -5-                 MEMORANDUM DECISION



Szymanski, 14 Ohio St. 3d 51, 471 N.E. 2d 477 (1984).
       {¶14} 4)       Black’s Law Dictionary Sixth Edition (1990), defines preponderance
of the evidence as: “evidence which is of greater weight or more convincing than the
evidence which is offered in opposition to it; that is, evidence which as a whole shows
that the fact sought to be proved is more probable than not.”
       {¶15} 5)       Black’s Law Dictionary Sixth Edition (1990) defines burden of proof
as: “the necessity or duty of affirmatively proving a fact or facts in dispute on an issue
raised between the parties in a case. The obligation of a party to establish by evidence
a requisite degree of belief concerning a fact in the mind of the trier of fact or the court.”
       {¶16} 6)       The credibility of witnesses and the weight attributable to their
testimony are primarily matters for the trier of fact. State v. DeHass, 10 Ohio St. 2d
230, 227 N.E. 2d 212 (1967), 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, 176 Ohio St.
61, 197 N.E. 2d 548 (1964).         This court finds based on the statements given by
defendant’s agents, the plaintiff, the color photographs contained in the case file, and
the body shop repair estimates, plaintiff’s vehicle was damaged as the result of the
actions of the K-9.
       {¶17} 7)       As trier of fact, this court has the power to award reasonable
damages based on evidence presented. Sims v. Southern Ohio Correctional Facility,
61 Ohio Misc. 2d 239, 577 N.E. 2d 160 (Ct. of Cl. 1988).
       {¶18} 8)       Where the existence of damage is established, the evidence need
only tend to show the basis for the computation of damages to a fair degree of
probability. Brewer v. Brothers, 82 Ohio App. 3d 148, 611 N.E. 2d 492 (12th Dist. 1992).
Only 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, 102 Ohio App. 3d 782, 658 N.E. 2d 31 (12th Dist. 1995). The court finds
Case No. 2012-08630-AD                  -6-              MEMORANDUM DECISION



defendant liable to plaintiff for damages in the amount of $1,020.69, plus the $25.00
filing fee, which may be reimbursed as compensable damages pursuant to the holding
in Bailey v. Ohio Department of Rehabilitation and Correction, 62 Ohio Misc. 2d 19, 587
N.E. 2d 990 (Ct. of Cl. No. 1990).
[Cite as Remillard v. Ohio State Hwy. Patrol, 2013-Ohio-5922.]


                                                        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




STEPHEN REMILLARD

       Plaintiff

       v.

OHIO STATE HIGHWAY PATROL

       Defendant

Case No. 2012-08630-AD

Interim 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 $1,045.69, which includes the filing fee. Court costs are
assessed against defendant.




                                                           DANIEL R. BORCHERT
                                                           Interim Clerk

Entry cc:

Stephen Remillard                                          Bridget Coontz
3467 Foxridge Drive                                        Ohio State Highway Patrol
Colorado Springs, Colorado 80916                           1970 West Broad Street, Suite 531
                                                           Columbus, Ohio 43223
DRB/laa
filed 11/15/13
sent to S.C. Reporter 1/30/14
