2005-Ohio-7088
No. 2005-05272-AD.Court of Claims of Ohio.
Filed December 7, 2005.
Michael Fulk, #R146-367, P.O. Box 5500, Chillicothe, Ohio 45601-5500, Plaintiff, Pro se.
Gregory C. Trout, Chief Counsel, Department of Rehabilitation and Correction, 1050 Freeway Drive North, Columbus, Ohio 43229, for Defendant.
MEMORANDUM DECISION FINDINGS OF FACT {¶ 1} 1) Plaintiff, Michael Fulk, an inmate, alleged that on some unspecified date in September, 2003, his television set and typewriter were vandalized by an unidentified inmate. Plaintiff also claimed his radio was stolen by an unidentified inmate on some unspecified day in September, 2003. At the time of these alleged incidents, plaintiff was incarcerated at defendant, Richland Correctional Institution (“RiCI”).
{¶ 2} 2) Plaintiff filed this complaint seeking to recover $694.39, the estimated total replacement cost of the alleged damaged and stolen electronic devices. The filing fee was paid.
{¶ 3} 3) Plaintiff did not provide any evidence to establish his property items were damaged or stolen.
{¶ 4} 4) Defendant denied any liability in this matter.
CONCLUSIONS OF LAW {¶ 5} 1) 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.
{¶ 6} 2) 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.
{¶ 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) Allegations that a theft or damage occurred is insufficient to show defendant’s negligence. Williams v. Southern Ohio Correctional Facility (1985), 83-07091-AD; Custom v. Southern Ohio Correctional Facility (1985), 84-02425. Plaintiff must show defendant breached a duty or ordinary or reasonable care. Williams, supra.
{¶ 9} 5) Defendant is not responsible for thefts or property damage committed by inmates unless an agency relationship is shown or it is shown that defendant was negligent. Walker v. Southern Ohio Correctional Facility (1978), 78-0217-AD.
{¶ 10} 6) 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.
{¶ 11} 7) 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 issues in the case, he fails to sustain the burden as to such issue. Landon v. Lee Motors, Inc.
(1954), 161 Ohio St. 82.
{¶ 12} 8) 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, paragraph one of the syllabus. The court is free to believe and disbelieve, all or any part of each witness’s testimony. State v. Anthill (1964), 176 Ohio St. 61. The court does not find plaintiff’s assertions particularly persuasive.
{¶ 13} 9) Plaintiff has failed to prove, by a preponderance of the evidence, his property was stolen or damaged as a proximate result of any negligence on the part of defendant Fitzgerald v. Department of Rehabilitation and Correction
(1998), 97-10146-AD.
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. The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal.