[Cite as Davis v. Ohio Dept. of Rehab. & Corr., 2010-Ohio-4782.]

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

JAMES A. DAVIS 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF REH. AND CORRECTIONS 

 Defendant 

Case No. 2009-08560-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

FINDINGS OF FACT 

{¶ 1} 1) Plaintiff, James A. Davis, an inmate, filed this action against 

defendant, Department of Rehabilitation and Correction (DRC), alleging his property 

was damaged on April 10, 2009 as a proximate cause of negligence on the part of DRC 

personnel. Specifically, plaintiff claimed his Swintec typewriter was damaged beyond 

repair by DRC staff during a transfer from the Lebanon Correctional Institution (LeCI) to 

the Marion Correctional Institution (MCI). Plaintiff maintained the typewriter was 

dropped to the ground and broken as the item was being loaded onto a bus for transport 

from LeCI to MCI. Plaintiff requested damages in the amount of $304.40, representing 

the replacement cost of a Swintec typewriter and accessories. The $25.00 filing fee 

was paid and plaintiff requested reimbursement of that cost along with his damage 

claim. Plaintiff submitted a receipt showing he purchased a typewriter and accessories 

on July 30, 2008 for $304.40. Plaintiff claimed one of the DRC transport officers 

admitted dropping the typewriter to the ground while attempting to load the property 
onto the transport bus. 

{¶ 2} 2) Defendant denied liability in this matter. Defendant explained the 

personnel who transported plaintiff and his property on April 10, 2009 were Warren 

Correctional Institution (WCI) employees. Defendant contended there is no evidence 

plaintiff’s typewriter was dropped and broken by WCI staff at the time of transfer. 

Defendant stated, “[t]he officers at LeCI that packed Plaintiff, and the officers from WCI 

who transported Plaintiff both indicate they do not recall a typewriter being dropped or 

broken.” Defendant further stated, “there is no report on arrival to MCI that the property 

was broken.” Defendant contended plaintiff has failed to prove, by a preponderance of 

the evidence, that his typewriter was damaged by any DRC personnel during transport 

on April 9, 2010. Defendant did not offer any statements from any DRC employee who 

handled plaintiff’s property. 

{¶ 3} 3) Plaintiff filed a response insisting his typewriter was broken during 

transport on April 10, 2009 as a proximate cause of negligence on the part of an 

unidentified DRC employee who handled the property. Plaintiff submitted an affidavit 

from a fellow inmate, Stanislav Transkiy, who was transferred with plaintiff from LeCI to 

MCI on April 10, 2009. Transkiy recorded he was waiting in the loading area at LeCI 

awaiting transfer on April 10, 2009 while WCI employees were loading property on the 

transport bus and “[a]t one point I heard a loud crash that sounded like something was 

dropped on the floor.” Transkiy noted, “[a] few moments later one of the (WCI 

employees) that was loading the bus, came up the steps stated something like: ‘if any 

of your (property) is broken, don’t blame me, its not my fault that the bus is overloaded.’” 

Transkiy acknowledged, “I did not actually see what fell down or was dropped.” 

CONCLUSIONS OF LAW 

{¶ 4} 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. 

{¶ 5} 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. 
{¶ 6} 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. 

{¶ 7} 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. 

{¶ 8} 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. 

{¶ 9} 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. 

{¶ 10} 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. 

{¶ 11} 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, 798 N.E. 

2d 1121, ¶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. 

{¶ 12} 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. 
{¶ 13} 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 

JAMES A. DAVIS 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF REHAB. AND CORRECTIONS 

 Defendant 

Case No. 2009-08560-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: 

James A. Davis, #348-744 Gregory C. Trout, Chief Counsel 

P.O. Box 56 Department of Rehabilitation 

Lebanon, Ohio 43150 and Correction 

 770 West Broad Street 

 Columbus, Ohio 43222 

RDK/laa 

Filed 6/4/10 

Sent to S.C. reporter 10/1/10