OPINION ISSUED DECEMBER 6, 1999
PHILLIP A. WARD
VS.
DIVISION OF CORRECTIONS
(CC-98-289)
Claimant appeared pro se.
Joy M. Cavallo, Attorney at Law, for respondent.
PER CURIAM:
Claimant brought this action for the loss of personal property
by respondent's employees at the Mt. Olive Correctional Center, a
facility owned and operated by respondent in Fayette County.
Claimant is currently incarcerated in this correctional center.
The Court is of the opinion to make an award in this claim for the
reasons more fully stated below.
The incident giving rise to this claim occurred on or about
January 8, 1998. On the date in question, claimant was sent to
lock-up for forty-five days. Claimant's personal property was
placed in a laundry cart and taken to the State Shop, a restricted
area, in order to be inventoried.Respondent uses a cart that
holds approximately twenty bushels and is about three and a half to
four feet high. The cart is on wheels and is moved to a secure
location. Smaller personal property items are placed into plastic
bags and then placed into the cart. Once an inmate's personal
property is placed in the cart, tape is placed over the top of the
cart in a "X" type design. While tape is placed on top of the cart
for security purposes, some smaller items that have been placed in
bags can be removed without breaking the tape. Among claimant's
personal property was a pair of Reebok Kamikaze II basketball shoes
and various legal papers regarding claimant's criminal case.
Claimant's personal hygiene items were removed from the cart before
the rest of his personal property was sent to the State shop to be
inventoried. After removing claimant's personal hygiene items, the
laundry cart containing claimant's personal property remained
outside of the State Shop until inventoried. The inventory of
claimant's personal property was conducted by Corporal Michael H.
Cliver. Cpl. Cliver thoroughly inspected claimant's personal
property and indicated the items on the claimant's personal
property form. According to Cpl. Cliver there were no basketball
shoes or legal papers in claimant's cell, so these items were not
indicated on claimant's personal property form. While Cpl. Cliver
described his documentation process as "meticulous," there were
other personal property items, such as a television and stereo,
that also were not indicated on claimant's personal property form,
but were in his possession at the time.
When claimant's personal property was brought to him at a
later time, the basketball shoes and legal papers were missing.
According to Timothy Ray Moses, Storekeeper I, when he received the cart containing claimant's personal property, the tape that had
been placed on it was still intact. However, when Carl Shillings,
Correctional Counselor I, received the cart that contained
claimant's personal property, the tape had been removed and the box
containing the basketball shoes as well as the envelope containing
the legal papers were empty. After finding his personal property
items missing, claimant followed the proper procedure for filing a
grievance with the appropriate officials. Neither claimant nor
respondent was able to determine the whereabouts of claimant's
property.
The loss suffered by claimant was estimated to be $32.75 which
amount represents the cost of the new Reebok Kamikaze II basketball
shoes were purchased by claimant. While the legal papers of
claimant are described as "priceless," he will be able to obtain
the transcripts of his criminal case free of charge. The other
legal papers of claimant may be obtained by contacting his
attorney.
When personal property of an inmate is recorded for the inmate
and then taken for storage purposes, this Court has previously
viewed such situations as a bailment. According to Black's Law
Dictionary, a bailment is:
"A delivery of goods or personal property, by one person (bailor)
to another (bailee), in trust for the execution of a special object
upon or in relation to such goods, beneficial either to the bailor
or bailee or both, and upon a contract, express or implied, to
perform the trust and carry out such object, and thereupon either
to redeliver the goods to the bailor or otherwise dispose of the
same in conformity with the purpose to the trust. The bailee is
responsible for exercising due care toward the goods." Id 95 (6th
ed. 1990).
Consequently, respondent, the bailee, must have satisfactory
documentation for return of the property to the inmate, the bailor.
Heard vs. Division of Corrections, 21 Ct. Cl. 151 (1997). Claimant
has the burden of proof to demonstrate by a preponderance of the
evidence that there was a delivery of claimant's property to
respondent before a prima facie case is established for the failure
to return items claim accrues. Nolan vs. Division of Corrections,
19 Ct. Cl. 89 (1992).
In the instant claim, claimant has established a prima facie
case of bailment for his basketball shoes and legal papers. The
evidence adduced at the October 7, 1999, hearing demonstrated that
there was a delivery of claimant's property to respondent. The
Court has determined that respondent failed adequately to care for
claimant's personal property since it was not returned to him.
In view of the foregoing, the Court is of the opinion to and
does make an award in the amount of $32.75 to claimant.
Award of $32.75.
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