Sent to S.C. Reporter 6/21/23
MEMORANDUM DECISION
FINDINGS OF FACT
{¶1} Antonio Wright ("plaintiff), an inmate, filed a complaint against the defendant, Ohio Department of Rehabilitation and Correction ("ODRC"). Plaintiff related on or about March 9, 2022, at defendant's Trumbull Correctional Institute ("TCI"), he was placed in the Transitional Program Unit ("TPU") and defendant's employees packed up his property. Plaintiff asserted that when he was released from TPU, defendant had given all his property to another inmate with the same last name. Plaintiff stated that due to defendant's negligence, his property was either sold or destroyed and was thus rendered unrecoverable. Plaintiff claimed to have lost all of his property, including: 300 family photos, legal mail, a self-written book, 2 pairs of shoes, a TV, a JP6 player, a pair of sunglasses, $75.00 in commissary, a pair of Timberland Boots, lamp, 2 fans, beard trimmer, 6 towels, 5 washcloths, doo rag, Super 3 AMP, pair of eyeglasses, phonebook, clock, velour blanket, and a keyboard. Plaintiff asserts defendant offered him $79.31 for the loss of his personal property, which plaintiff refused.
{¶2} Plaintiff submitted an invoice from Union Supply Direct dated December 9, 2022, which reveals the purchase of a towel, two washcloths, and Nike running shoes. Plaintiff submitted no other invoices.
{¶3} Plaintiff seeks damages in the amount of $2,000.00. Plaintiff submitted the $25.00 filing fee with the complaint.
{¶4} Defendant submitted an Investigation Report denying liability in this matter. Defendant asserted that plaintiff failed to demonstrate that defendant was the proximate cause of his lost property and that he failed to prove that he owned all of the property in question. Specifically, defendant asserted that plaintiffs alleged loss of "family photos, legal mail, and a book" were not on the January 6, 2022 Inmate Property Report. Defendant stated that inmates are only allowed to retain two weeks' worth of commissary food under ODRC policy; defendant attached the receipts for plaintiff's commissary for the two weeks prior to March 9, 2022, which totaled $44.15. Defendant asserted that the T.V. was sold to plaintiff for nominal value, $1.00, and attached a receipt signed by plaintiff dated May 6, 2021 to the Investigation Report.
{¶5} However, on April 14, 2022, ODRC offered plaintiff a settlement in the amount of $79.31, for the loss of the following property items: hat, GTL tablet with headphones, 6 long sleeve T-shirts, 1 pair of ankle socks, a towel, 3 bowls, lotion, toothbrush, TV, sweatshirt, thermal bottom, Vaseline, 2 deodorants, toothpaste, and a wooden hair brush. Plaintiff refused to sign this Release of Claim form.
{¶6} Therefore, defendant stated it is willing to acknowledge the loss of plaintiff's property and grant plaintiff judgment in the amount of $79.31.
{¶7} Plaintiff did submit a response to defendant's Investigation Report, wherein plaintiff asserts that the book, letters, and assorted photos that were noted as being a "reasonable amount" were the family photos, legal mail, and book he reported as property lost by the defendant.
CONCLUSIONS OF LAW
{¶8} 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).
{¶9} "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).
{¶10} 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).
{¶11} 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) with respect to inmate property, but that it does have the duty to make "reasonable attempts to protect or recover" such property.
{¶12} 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).
{¶13} 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).
{¶14} In addition, prison regulations, including those contained in the Ohio Administrative Code, "are primarily designed to guide correctional officials in prison administration rather than to confer rights on inmates." State ex rel. Larkins v. Wilkinson, 79 Ohio St.3d 477, 479, 1997-Ohio-139, 683 N.E.2d 1139, citing Sandlin v. Conner 515 U.S. 472, 481-482, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Additionally, this court has held that "even if defendant had violated the Ohio Administrative Code, no cause of action would exist in this court. A breach of internal regulations in itself does not constitute negligence." Williams v. Ohio Dept. of Rehab. and Corr., 67 Ohio Misc.2d 1, 3, 643 N.E.2d 1182 (10th Dist. 1993). Accordingly, to the extent that plaintiff alleges that ODRC somehow violated internal prison regulations and the Ohio Administrative Code, he fails to state a claim for relief. See Sharp v. Dept. of Rehab. & Corr., Ct. of Cl. No. 2008-02410-AD, 2008-Ohio-7064, ¶ 5.
{¶15} 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).
{¶16} 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). The court finds plaintiffs statements credible.
{¶17} Both plaintiff and defendant acknowledge TCI staff packed up plaintiffs property while plaintiff was in TPU. Thus, a bailment relationship was created. Little v. Ohio Department of Rehabilitation and Correction, 2019-00395-AD (9-26-19). Furthermore, defendant has the duty to use ordinary care in packing and storing property even if it is due to disciplinary confinement. Gray v. Department of Rehabilitation and Correction, 84-01577-AD affd jud (1985).
{¶18} Plaintiff signed the Inmate Property Record of January 6, 2022, stating: "I certify that the above listed items are a complete and accurate inventory of all my personal property." Plaintiff was present during this pack-up. A review of this Record reveals the following items are not listed: 2 pairs of shoes, 1 pair of sunglasses, $75.00 in commissary, 1 pair of Timberland Boots, 6 towels, 5 washcloths, 1 Super 3 AMP, 1 pair of eyeglasses, 1 clock, 1 velour blanket, and 1 keyboard. The Record reveals the Stationary Items plaintiff listed are: one address book, a reasonable amount of books, a reasonable amount of letters and paper, a reasonable amount of assorted pictures. State Issued items included: one hat. Clothing items included: one hat stocking, two pairs of pants/sweats, two shirts/sweat, three shirts, two pairs of socks, one thermal-bottom, one towel, and three long-sleeve shirts. Other items included: one can of Vaseline, one petroleum jelly, one ChapStick, one spork, one nasal spray, two earbuds, four bowls, a reasonable amount of brushes/combs, a reasonable amount of deodorant, two mugs/glasses, five soap bars, one soap dish, two toothbrushes, and a reasonable amount of toothpaste. Commissary items included: ten packs of ramen, and two bags of chips.
{¶19} Defendant admits that plaintiff was given a Cleartunes TV. However, it was sold to plaintiff for a nominal amount of $1.00 as it was an outdated model.
{¶20} By virtue of this bailment relationship, defendant must exercise ordinary care in handling and storing the property. Buhrow; Sallows. If property is lost or stolen while in defendant's possession, it is presumed, without evidence to the contrary, defendant failed to exercise ordinary care. Merrick v. Ohio Department of Rehabilitation and Correction, 85-05029-AD (1985); Cox v. Southern Ohio Training Center, 84-03740-AD (1986). Further, plaintiffs failure to prove delivery of the property to defendant constitutes a failure to show imposition of a legal bailment duty on the part of defendant in respect to lost property. Prunty v. Ohio Department of Rehabilitation and Correction, 86-02821-AD (1987). Plaintiff cannot recover for property loss when he fails to produce sufficient evidence to establish that defendant actually assumed control over the property. Whiteside v. Orient Correctional Inst, Ct. of Cl. No. 2002-05751, 2005-Ohio-4455; obj. overruled, 2005-Ohio-5068.
{¶21} This court has found clear evidence of purchase and ownership of a ClearTunes TV. The court further determined ownership of: one address book, one book, an indeterminate amount of letters and paper, at least 300 assorted pictures, one hat, one doo rag (hat stocking), two pairs of pants/sweats, two shirts/sweat, three shirts, two pairs of socks, one thermal-bottom, one towel, three long-sleeve shirts, one can of Vaseline, one petroleum jelly, one ChapStick, one spork, one nasal spray, two earbuds, four bowls, an indeterminate number of brushes/combs, an indeterminate number of deodorant sticks, two mugs/glasses, five soap bars, one soap dish, two toothbrushes, and an indeterminate amount of toothpaste, and assorted commissary items.
{¶22} The only issue left is damages. 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).
{¶23} In a situation where damage assessment for personal property destruction or loss based on market value is essentially indeterminable, a damage determination may be based on the standard value of the property to the owner. This determination considers such factors as value to the owner, original cost, replacement cost, salvage value, and fair market value at the time of the loss. Cooper v. Feeney, 34 Ohio App.3d 282, 518 N.E.2d 46 (12th Dist. 1986).
{¶24} The parties agreed on the ownership of the ClearTunes TV and the purchase price of $1.00. Plaintiff has owned the TV for roughly three years, thus at a depreciation of 8.33% per year, the ClearTunes TV is valued at $0.75. Thus, the court finds the damages for the ClearTunes TV are $0.75.
{¶25} According to ODRC policy, inmates are only allowed to keep two weeks' worth of commissary items. Therefore, plaintiffs damages for the food items are $44.15.
{¶26} This court in the past has determined that $1.00 per photograph is a reasonable amount of damages. Owens v. Ohio Department of Rehabilitation and Correction, 2011 -04665-AD aff'd jud (2011); Small v. Department of Rehabilitation and Correction, 2013-00714-AD (2014); Dixon v. Ohio Department of Rehabilitation and Correction, 2018-01443AD, 2019-Ohio-1914. Therefore, the damage for the photos is $300.00.
{¶27} The address book, self-written book, and legal mail are depreciable items. This court has the authority to determine depreciation based on the age of the property in question. See Weaver v. Ohio Department of Rehabilitation and Correction, 2011-10134AD (2012); and Woodward v. Ohio Dept of Rehabilitation and Correction, 2016-00267AD (2016); and Bonnette v. Ohio Department of Rehabilitation and Correction, Ct. of Cl. 2017-00187AD (2018). However, plaintiff failed to present the purchase date of the items and the value of a self-written book is indeterminable so, accordingly, plaintiff cannot recover for these items.
{¶28} Plaintiff was unable to provide a receipt for the hat, doo rag, pants/sweats shirts/sweat, shirts, socks, thermal-bottom, towel, long-sleeve shirts, Vaseline, petroleum jelly, ChapStick, spork, nasal spray, earbuds, bowls, brushes/combs, deodorant sticks mugs/glasses, soap bars, soap dish, toothbrushes, and toothpaste. 61-PRP-01 V1.A7 states: "Incarcerated individuals may be required to provide proof of ownership for any item of their personal property at any time." Plaintiff was unable to do this.
{¶29} In their Investigation Report, however, defendant admits fault for the lost property and offered plaintiff $79.31, the fair market value determined by defendant for the uncontested lost property. Therefore, damages for the uncontested lost property are $79.31.
{¶30} Therefore, judgment is rendered in favor of plaintiff in the amount of $424.21, plus $25.00 for reimbursement of the filing fee 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. 1990).
ENTRY OF ADMINISTRATIVE DETERMINATION
{¶31} 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 $449.21, which includes reimbursement of the filing fee. Court costs are assessed against defendant.