[Cite as Lister v. London Correctional Inst., 2009-Ohio-7185.]

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

CHARLES LISTER 

 Plaintiff 

 v. 

LONDON CORRECTIONAL INSTITUTION 

 Defendant 

Case No. 2009-06524-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

FINDINGS OF FACT 

{¶ 1} 1) Plaintiff, Charles Lister, an inmate incarcerated at defendant, London 

Correctional Institution (LoCI), asserted his Smith Corona typewriter was totally 

destroyed by LoCI staff during a shakedown search conducted on December 18, 2007. 

{¶ 2} 2) Plaintiff explained that under current LoCI policy his broken Smith 

Corona typewriter cannot be sent out of the institution for repairs, but must be replaced 

by a different brand typewriter (Swintee) sold through an approved vendor. 

Consequently, plaintiff maintained all his Smith Corona typewriter supplies along with 

his Smith Corona typewriter must be replaced. Plaintiff contended his typewriter was 

totally damaged as a proximate cause of negligence on the part of LoCI personnel and 

he has therefore filed this complaint seeking to recover $311.75, the stated replacement 

cost of a typewriter along with the value of typewriter accessories he can no longer use. 

The filing fee was paid. 

{¶ 3} 3) Defendant denied liability in this matter asserting plaintiff failed to 

offer sufficient evidence to prove his typewriter was broken by LoCI staff during a 
shakedown search on December 18, 2007. Defendant related “[i]t is just as possible 

that any damage (to the typewriter) occurred prior to, or after, the shakedown.” 

Defendant acknowledged it is possible plaintiff’s typewriter was damaged by LoCI 

employees during the December 18, 2007 shakedown search. Defendant maintained 

plaintiff overstated his damage claim considering the typewriter was purchased for him 

in 2001 and was therefore at least six years old at the time of the shakedown search. 

Additionally, defendant pointed out plaintiff failed to provide evidence of the original 

purchase price of the typewriter and failed to submit evidence to prove the typewriter 

was totally destroyed. Defendant priced a new Smith Corona typewriter at $137.96 and 

$159.98. Defendant argued plaintiff is not entitled to the damages claimed. 

{¶ 4} 4) Plaintiff filed a response insisting his Smith Corona typewriter was 

“dropped by a staff member” during a shakedown search on December 18, 2007. 

Plaintiff submitted a title for a Smith Corona typewriter issued by defendant on May 24, 

2007. Plaintiff described the damage to his property observing, “[t]he case of this 

typewriter is now broke in four (4) locations, making this typewriter inoperative.” Plaintiff 

maintained that his Smith Corona typewriter originally cost much more than the two 

examples of typewriters defendant referenced valued at $137.96 and $159.98, 

respectively. Plaintiff did not submit any evidence regarding the purchase price of his 

typewriter or give any indication when the typewriter was purchased. 

CONCLUSIONS OF LAW 

{¶ 5} 1) It has been determined by this court that when a defendant engaged 

in a shakedown operation, it must exercise ordinary care in doing so. Henderson v. 

Southern Ohio Correctional Facility (1979), 76-0356-AD. 

{¶ 6} 2) 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. 

{¶ 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) Plaintiff has failed to prove a causal connection between the damage 

to his typewriter and any breach of duty owed by defendant in regard to protecting 
inmate property. Druckenmiller v. Mansfield Correctional Inst. (1998), 97-11819-AD. 

{¶ 9} 5) 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. 

{¶ 10} 6) 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. 

{¶ 11} 7) In order to prevail, 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 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. 

{¶ 12} 8) “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. 

{¶ 13} 9) 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, 39 O.O. 2d 366, 227 N.E. 2d 212, paragraph one of the syllabus. This court is 

free to believe or disbelieve, all or any part of each witness’s testimony. State v. Antill

(1964), 176 Ohio St. 61, 26 O.O. 2d 366, 197 N.E. 2d 548. The court does not find 

plaintiff’s assertions particularly persuasive. 

{¶ 14} 10) Plaintiff has failed to prove, by a preponderance of the evidence, that 

any of his property was damaged as a proximate result of any negligent conduct 

attributable to defendant. Fitzgerald v. Department of Rehabilitation and Correction

(1998), 97-10146-AD. 
 

 

 

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 

CHARLES LISTER 

 Plaintiff 

 v. 

LONDON CORRECTIONAL INSTITUTION 

 Defendant 

Case No. 2009-06524-AD 

Deputy 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 defendant. Court costs are assessed against plaintiff. 

 

 ________________________________ 

 DANIEL R. BORCHERT 

 Deputy Clerk 

Entry cc: 

Charles Lister, #351-130 Gregory C. Trout, Chief Counsel 

1580 St. Rt. 56 Department of Rehabilitation 

P.O. Box 69 and Correction 
London, Ohio 43140-0069 770 West Broad Street 

 Columbus, Ohio 43222 

RDK/laa 

10/28 

Filed 12/22/09 

Sent to S.C. reporter 4/7/09