Miller v. Ohio Dep't of Rehab. & Corr.

MEMORANDUM DECISION

FINDINGS OF FACT

{¶1} Jason Miller ("plaintiff), an inmate, filed a complaint against defendant, Ohio Department of Rehabilitation and Correction ("ODRC"). Plaintiff related on March 9, 2020, at defendant's Belmont Correctional Institution ("BCI"), several of his personal property items were wrongly deemed contraband. These items included: One pair of Timberland boots, one pair of black Nike Air Force, two green sweatsuits, two pairs of navy shorts, one pair of green mesh shorts, two green t-shirts, two green silk shirts, one white silk shirt, one long sleeve Nike performance white shirt, and one pair of black slippers. Plaintiff provided receipts for several of the items including: purchased on March 2, 2016, the Timberland boots ($77.00), navy shorts ($16.95), long sleeve Nike shirt ($21.95), black slippers ($8.95); and purchased on February 27, 2016, the Nike Air Force ($84.44).

{¶2} Plaintiff seeks damages in the amount of $300.15. Plaintiff was not required to submit the $25.00 filing fee with the complaint.

{¶3} Defendant submitted an Investigation Report denying liability. Defendant asserts that all of the property was contraband. According to the documentation attached to defendant's investigation report, plaintiff was in possession of three pairs of altered gym shorts, one altered hoodie, one altered pair of sweatpants, and was over the limit for sweatshirts, t-shirts, and gym shoes. The documentation also states that 1 they were not able to confirm his rightful possession of the Timberland boots and the black Nike Air Force shoes.

{¶4} Plaintiff submitted a response to defendant's Investigation Report reasserting his claim. With his response, plaintiff provided a copy of an invoice from Union Supply Direct, which reveals plaintiff purchased the Timberland boots on March 2, 2016. Accordingly, at the time of their loss, they were over four (4) years old. Plaintiff also submitted an Inmate Property Record dated August 6, 2019, which revealed he was in possession of Timberland boots. Plaintiff also submitted a sales order from Walkenhorst's which revealed he purchased the Nike Air Force shoes on February 27, 2016.

CONCLUSIONS OF LAW

{¶5} In order to prevail in a claim for negligence, 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 damages. 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., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984).

{¶6} "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, 798 N.E.2d 1121, ¶ 41 (2nd Dist.), citing Miller v. Paulson, 97 Ohio App.3d 217, 221, 646 N.E.2d 521 (10th Dist. 1994); Mussivand v. David, 45 Ohio St.3d 314, 318, 544 N.E.2d 265 (1989).

{¶7} 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, 76-0356-AD (1979).

{¶8} This court in Mullett v. Department of Correction, 76-0292-AD (1976), held that defendant does not have the liability of an insurer (i.e., is not liable without fault) 2 with respect to inmate property, but that it does have the duty to make "reasonable attempts to protect, or recover such property.

{¶9} 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).

{¶10} Plaintiff must produce evidence which affords a reasonable basis for the conclusion that defendant's conduct is more likely a substantial factor in bringing about the harm. Parks v. Department of Rehabilitation and Correction, 85-01546-AD (1985).

{¶11} 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., 161 Ohio St. 82, 118 N.E.2d 147 (1954).

{¶12} It is well-established that "a correctional institution cannot be held liable for the loss of contraband property that an inmate has not right to possess." Triplett v. S. Ohio Corr Facility., 10th Dist. No. 06AP-1296, 2007-Ohio-2526, ¶ 7, citing Beaverson v. Ohio Dept. of Rehab. & Corr, 61 Ohio Misc.2d 249, 250577 N.E.2d 166 (Ct. of Cl. 1988). See also, Maxwell v. Richland Corr. Inst, Ct. of Cl. No. 2007-03935-Ad, 2008-Ohio-2868, ¶ 18; Garrett v. Richland Corr. Inst, Ct. of Cl. No. 2003-10872-AD, 2004-Ohio-2622, ¶ 7; and Strutton v. Ohio Dept. of Rehab. & Corr, 61 Ohio Misc.2d 248, 249, 577 N.E.2d 166 (Ct. of Cl. 1988). Here, the three pairs of altered gym shorts, one altered hoodie, one altered pair of sweatpants, and was over the limit for sweatshirts, t-shirts, and gym shoes were all rightfully deemed contraband and thus defendant cannot be liable for their loss.

{¶13} 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 3 disbelieve, all or any part of each witness's testimony. State v. Antill, 176 Ohio St. 61, 197 N.E.2d 548 (1964). The court finds plaintiffs testimony that he presented the receipt for his Timberlands to defendant persuasive. Also, plaintiff has proven he purchased the Nike Air Force shoes in question.

{¶14} The standard measure of damages for personal property loss is market value. McDonald v. Ohio State Univ. Veterinary Hosp., 67 Ohio Misc.2d 40, 644 N.E.2d 750 (Ct. of Cl. 1994).

{¶15} Damage assessment is a matter within the function of the trier of fact. Litchfield v. Morris, 25 Ohio App.3d 42, 495 N.E.2d 462 (10th Dist. 1985). 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).

{¶16} Plaintiff has the burden of proving damages. Walls v. Wildermuth, 10^thDist. No. 98-AP-400 (November 19, 1998). However, Timberland boots and Nike Air Force shoes are depreciable property and this court has authority to depreciate this property based on its purchase price and date of purchase. See Weaver v. Ohio Department of Rehabilitation and Correction, 2011-10134AD (2012); Woodward v. Ohio Dept. of Rehabilitation and Correction, 2016-00267AD (2016); and Bonnette v. Ohio Department of Rehabilitation and Correction, 2017-00187AD (2018). Pursuant to Claims Pages Depreciation Guide, four-year old Timberland boots and Nike Air Force shoes have no value. Accordingly, plaintiff has failed to prove damages.

{¶17} Therefore, judgment is rendered in favor of defendant.

Plaintiff Deputy Clerk Daniel R. Borchert

ENTRY OF ADMINISTRATIVE 4

DETERMINATION

{¶18} 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 shall be absorbed by the court. 5