Ergood v. Ohio Univ. , 2012 Ohio 3240 ( 2012 )

[Cite as Ergood v. Ohio Univ., 2012-Ohio-3240.]
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
BRUCE ERGOOD
Plaintiff
v.
OHIO UNIVERSITY
Defendant
Case No. 2011-12790-AD
Deputy Clerk Daniel R. Borchert
MEMORANDUM DECISION
{¶1} Plaintiff Bruce Ergood filed this action against Ohio University (OU),
alleging plaintiff’s property was lost or stolen while in the custody and control of OU
staff. Specifically, plaintiff asserted that he agreed to allow his personal collection of
Latin American items to be displayed “as an exhibition at the OU Multicultural Center * *
* during the month celebrating Hispanic Heritage.” Plaintiff advised that an inventory
was prepared listing the more than 80 items including clothes, instruments, ceramics,
and wood carvings. Plaintiff recalled that the exhibit was housed in a building on
campus and that an article appeared in the OU newspaper describing the artifacts on
display. According to information in the complaint, after the event ended, an OU
graduate student identified as Erica Harding returned the borrowed items to plaintiff’s
home late in the evening on October 25, 2011. Plaintiff subsequently discovered
several objects were missing, including two pair of juarachis, a handwoven red
tablecloth, and a ceramic ashtray.
{¶2} In filing this action, plaintiff requested damages in the amount of “$650-
680” which represents the estimated cost for plaintiff to return to Mexico and locate
replacement items, if available.
{¶3} Defendant denied liability in this matter contending that “[s]taff members at
the Multi-Cultural Center state that all borrowed items were returned.” In addition,
defendant implied that plaintiff was somehow negligent for failing to unpack and
inventory the returned items in the presence of an OU staff member. Defendant also
indicated it did not dispute the “suggested cost to replace the items listed.”
{¶4} Plaintiff has asserted that OU staff breached a bailment duty resulting in
the property loss claimed. In order to establish a prima facie case for breach of a
bailment duty, the plaintiff bailor must prove: 1) a contract of bailment, 2) delivery of the
bailed property to the defendant bailee, and 3) failure by the bailee to return the bailed
property. David v. Lose (1966), 7 Ohio St. 2d 97, 99, 36 O.O. 2d 81, 218 N.E. 2d 442.
{¶5} Defendant is under a duty to exercise ordinary care to protect personal
property delivered into its possession. Leech v. The Ohio State University Hospital
(1989), 89-07875-AD; Ahmed v. Robert B. Meyers, et al. (1999), 97-10812-AD; Moore
v. Ohio Veteran’s Home, Ct. of Cl. No. 2010-06915-AD, 2010-Ohio-6627. However,
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.
{¶6} Although strict rules of evidence do not apply in administrative
determinations, plaintiff must prove his case by a preponderance of the evidence.
Underwood v. Dept. of Rehabilitation and Correction (1985), 84-04053-AD. “It is the
duty of a party on whom the burden of proof rests to produce evidence which furnishes
a reasonable basis for sustaining his claim. If the evidence so produced furnishes only
a basis for a choice, among different possibilities as to any issue in the case, he fails to
sustain such burden.” Paragraph three of the syllabus in Steven v. Indus. Comm.
(1945), 145 Ohio St. 198, 30 O.O. 415, 61 N.E. 2d 198, approved and followed. Kata v.
Second National Bank of Warren (1971), 26 Ohio St. 2d 210, 55 O.O. 2d 458, 271 N.E.
2d 292, Syllabus 2. This court, as trier of fact, determines questions of proximate
causation. Shinaver v. Szymanski (1984), 14 Ohio St. 3d 51, 14 OBR 446, 471 N.E. 2d
477.
{¶7} 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. The 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. In the instant action, the trier of fact
finds the statements both in the complaint and in plaintiff’s January 30, 2012 response
in regard to defendant receiving delivery of and exercising control over plaintiff’s
artifacts to be persuasive. The elements of a bailment relationship have been
established and consequently, defendant is liable to plaintiff for the loss of his property.
{¶8} The standard measure of damages for personal property loss is market
value. McDonald v. Ohio State Univ. Veterinary Hosp. (1994), 67 Ohio Misc. 2d 40, 644
N.E. 2d 750. In a situation where a damage assessment for lost personal property
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 (1986), 34 Ohio App. 3d
282, 518 N.E. 2d 46. 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. The court finds defendant
liable to plaintiff for the damage claimed $680.00, plus the $25.00 filing fee which may
be reimbursed as compensable costs pursuant to R.C. 2335.19. See Bailey v. Ohio
Department of Rehabilitation and Correction (1990), 62 Ohio Misc. 2d 19, 587 N.E. 2d
990.
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
BRUCE ERGOOD
Plaintiff
v.
OHIO UNIVERSITY
Defendant
Case No. 2011-12790-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 plaintiff in the amount of $705.00, which includes the filing fee. Court costs are
assessed against defendant.
DANIEL R. BORCHERT
Deputy Clerk
Entry cc:
Bruce Ergood George T. Wendt, Risk Manager
6363 Radford Road Ohio University
Athens, Ohio 45701 University Service Center 136
1 Ohio University
Athens, Ohio 45701-2979
011
Filed 4/27/12
sent to S.C. Reporter 7/18/12