[Cite as Sage v. Ohio Dept. of Rehab. & Corr., 2010-Ohio-6682.]

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

GORDON SAGE 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION 

 Defendant 

Case No. 2010-02529-AD 

Clerk Miles C. Durfey 

MEMORANDUM DECISION

FINDINGS OF FACT 

{¶ 1} Plaintiff, Gordon Sage, an inmate formerly incarcerated at defendant’s 

Warren Correctional Institution (WCI), filed this action alleging that articles of personal 

property he owned were either lost or stolen as a proximate cause of negligence on the 

part of WCI staff in handling the property items on two separate occasions. Plaintiff 

related that both he and his cellmate, Towson, had their property “combined together” 

and packed by WCI staff on March 16, 2009. Plaintiff further related that when Towson 

regained possession of his property on March 19, 2009, WCI employee Officer 

“Pottinger allowed Towson to retrieve property (that was not Towson’s-nor titled to 

Towson) but was clearly titled to me.” Plaintiff identified the titled property that was 

allegedly forwarded to Towson as a fan and a CD player (Sony brand). Additionally, 

plaintiff asserted that WCI personnel permitted Towson to retrieve other untitled 

property items owned by plaintiff. According to plaintiff, these items included two 

blankets, one crock pot, one pair of Adidas gym shorts, one belt, two hundred magic 
cards, five containers of coffee, one digital antenna, one converter box, and assorted 

commissary items purchased on March 16, 2009. Plaintiff recalled that he discovered 

his property was missing on or about March 30, 2009. In another matter involving 

property loss, plaintiff explained that he was transferred to a segregation unit on March 

31, 2009 and his property was stored under the control of WCI personnel. Plaintiff 

advised that when he was released from segregation and regained possession of his 

property on May 1, 2009, he discovered five CDs, one pair of Reebok shower shoes, 

and a rabbit ears antenna were not among the returned articles. Plaintiff requested 

damage recovery in the amount of $584.87, the stated replacement cost of all claimed 

missing property. Payment of the filing fee was waived. 

{¶ 2} Defendant denied liability in this matter contending that WCI staff “acted in 

accordance with policy and procedures regarding the packing of Plaintiff’s personal 

property.” Defendant argued that plaintiff did not offer sufficient evidence to prove that 

any of his property was lost or stolen while under the control of WCI staff. Defendant 

acknowledged packing plaintiff’s property on March 16, 2009. Defendant asserted that 

all property packed on March 16, 2009 was returned to plaintiff’s possession on March 

30, 2009. Defendant did not provide any documentation (property inventory) reflecting 

the type and quantity of property WCI personnel packed on March 16, 2009. Defendant 

denied WCI employee, Officer Pottinger gave plaintiff’s property to inmate Towson. 

{¶ 3} Plaintiff filed a response attaching four separate copies of his property 

inventories completed by WCI staff on March 16, 2009, March 19, 2009, March 31, 

2009, and April 30, 2009. The March 16, 2009 inventory lists property of both plaintiff 

and inmate Towson. Property items listed on this inventory relevant to the instant claim 

include: one CD player, one fan, one crock pot, two blankets, two pairs of gym shorts, 

one belt, cards, eight containers of coffee, two pairs of shower shoes, two CDs, and 

various items that were purchased at the WCI commissary. Plaintiff submitted a receipt 

dated March 16, 2009, from the WCI commissary reflecting that he purchased eight 

packs of Ramen noodles, one box of crackers, two bags of nacho chips, four AA 

batteries, two pouches of drink mix, two bottles of soda pop, one candy bar, and one 

bottle of mayonnaise. The March 16, 2009 inventory lists twenty-five Ramen noodles, 

beverages, and chips. Other packed items are listed but the listings appear illegible to 
the trier of fact. Plaintiff submitted a copy of a second inventory dated March 19, 2009. 

Property items listed relevant to this claim include one blanket, three CDs, one pair of 

shower shoes, four batteries, one television antenna, one pair of gym shorts, cards, and 

one container of coffee. Plaintiff submitted a third inventory dated March 31, 2009 

compiled at WCI listing property packed, which includes one pair of shower shoes, one 

tv antenna, five CDs, and one pair of gym shorts. Plaintiff submitted a fourth inventory 

compiled at WCI dated April 30, 2009. Items listed on this inventory relevant to this 

claim include a crock pot, card game, batteries, and a pair of gym shorts. Plaintiff filed a 

copy of a receipt dated April 28, 2007 showing he obtained, among other items, a fan, a 

Sony CD player, a blanket, and a pair of Reebok shower shoes from an outside vendor. 

Plaintiff submitted a second receipt dated June 26, 2008 showing he obtained a second 

pair of shower shoes and a belt from an outside vendor. Plaintiff submitted a 

commissary receipt dated June 26, 2008 showing that he purchased a fan on that date. 

Also, plaintiff submitted documentation showing that he owned a converter box, two 

fans, and a CD player. 

{¶ 4} On October 21, 2010, plaintiff filed a motion for default judgment. 

CONCLUSIONS OF LAW 

{¶ 5} 1) Plaintiff’s motion for default judgment was not timely filed. The 

interest of justice require the investigation report be considered when it has previously 

been filed. 

{¶ 6} 2) For plaintiff to prevail on a claim of negligence, he must prove, by a 

preponderance of the evidence, that defendant owned him a duty, that it breached that 

duty, and that the 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. 

{¶ 7} 3) “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. 

{¶ 8} 4) “If an injury is the natural and probable consequence of a negligent 
act and it is such as should have been foreseen in the light of all the attending 

circumstances, the injury is then the proximate result of the negligence. It is not 

necessary that the defendant should have anticipated the particular injury. It is 

sufficient that his act is likely to result in an injury to someone.” Cascone v. Herb Kay 

Co. (1983), 6 Ohio St. 3d 155, 160, 6 OBR 209, 451 N.E. 2d 815, quoting Neff Lumber 

Co. v. First National Bank of St. Clairsville, Admr. (1930), 122 Ohio St. 302, 309, 171 

N.E. 327. 

{¶ 9} 5) 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} 6) 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. 

{¶ 11} 7) Plaintiff must produce evidence which affords a reasonable basis for 

the conclusion that 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. 

{¶ 12} 8) 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. (1954), 161 Ohio St. 82, 53 O.O. 25, 118 N.E. 2d 147. 

{¶ 13} 9) Plaintiff cannot recover for property loss when he fails to produce 

sufficient evidence to establish that defendant actually assumed control over property. 

Whiteside v. Orient Correctional Inst., Ct. of Cl. No. 2002-05751, 2005-Ohio-4455 obj. 

overruled, 2005-Ohio-5068. Plaintiff failed to prove that defendant actually exercised 

control over a digital antenna and converter box as well as several commissary items 

purchased on March 16, 2009. 

{¶ 14} 10) Plaintiff’s failure to prove delivery of the above listed 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. Department of Rehabilitation and 
Correction (1987), 86-02821-AD. 

{¶ 15} 11) Also, plaintiff has failed to prove his television antenna, batteries, 

magic cards, and crock pot were lost as a result of any negligence on the part of 

defendant. Fitzgerald v. Department of Rehabilitation and Correction (1998), 97-10146-

AD. 

{¶ 16} 12) However, negligence on the part of defendant has been shown in 

respect to the loss of a CD player, five CDs, shower shoes, fan, blankets, gym shorts, 

belt, five coffees, and some items purchased from the WCI commissary on March 16, 

2009. Billups v. Department of Rehabilitation and Correction (2001), 2000-10634-AD, 

jud. Tyler v. Ohio Dept. of Rehab. & Corr., Ct. of Cl. No. 2007-07299-AD, 2008-Ohio3418. 

{¶ 17} 13) 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} 14) 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} 15) The standard measure of damages for personal property is market 

value. McDonald v. Ohio State Univ. Veterinary Hosp. (1994), 67 Ohio Misc. 2d 40, 644 

N.E. 2d 750. The trier of fact finds that the value of plaintiff’s property that has been 

confirmed as lost while under the control of WCI staff amounts to $205.00. Defendant is 

liable to plaintiff for that amount. 

 

 

 

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 
GORDON SAGE 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION 

 Defendant 

Case No. 2010-02529-AD 

Clerk Miles C. Durfey 

ENTRY OF ADMINISTRATIVE

DETERMINATION

 Plaintiff’s motion for default judgment is DENIED. 

 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 $205.00. Court costs are assessed against defendant. 

 

 

 MILES C. DURFEY 

 Clerk 

Entry cc: 

Gordon Sage, #458-271 Gregory C. Trout, Chief Counsel 

1150 North Main Street Department of Rehabilitation 

Mansfield, Ohio 44903 and Correction 

 770 West Broad Street 

 Columbus, Ohio 43222 

RDK/laa 

10/7 

Filed 12/17/10 

Sent to S.C. reporter 2/25/11