Opinion
No. V86-42297.
Decided January 14, 1991.
Ronald B. Janes and Nancy Wonnell, for the applicant.
Lee Fisher, Attorney General, for the state.
This cause came to be heard before this panel of three commissioners upon the objection and notice of appeal filed by the applicant to the November 18, 1988 supplemental decision of the single commissioner. On October 23, 1987, the applicant was issued Warrant No. 4409918 in the amount of $1,250 for unreimbursed funeral expense pursuant to the single commissioner's July 7, 1987 order.
On July 18, 1988, counsel for the applicant filed a supplemental reparations application for psychological counseling services received by the applicant since the criminally injurious conduct. The applicant's response to the Attorney General's recommendation of denial stated that the applicant is a victim in her own right whose personal injury of emotional distress has impaired her ability to lead a normal life. On November 18, 1988, the single commissioner denied the applicant's supplemental reparations application finding that the applicant does not qualify as a victim in her own right pursuant to R.C. 2743.51(L) and In re Tucker (Dec. 7, 1984), Ct. of Cl. No. V83-56530jud, unreported.
R.C. 2743.51(L) defines a "victim" as:
"`Victim' means a person who suffers personal injury or death as a result of any of the following:
"(1) Criminally injurious conduct;
"(2) The good faith effort of any person to prevent criminally injurious conduct;
"(3) The good faith effort of any person to apprehend a person suspected of engaging in criminally injurious conduct."
The court in Tucker, supra, at 2, stated that since the applicant "did not suffer personal injury when the criminally injurious conduct occurred, she cannot be considered a victim of criminally injurious conduct."
Subsequent to the judicial ruling in Tucker, a majority of a panel of commissioners found that "emotional distress, experienced as a result of criminal activity, constitutes a personal injury." In re Christie (Oct. 30, 1985), Ct. of Cl. No. V84-43091tc, unreported. Although Christie was decided subsequent to Tucker, the Attorney General did not appeal the decision in Christie to a judge in the court.
Judicial review of the who-is-a-victim issue was addressed by a judge of the court in the matter of In re Clapacs (1989), 58 Ohio Misc.2d 1, 567 N.E.2d 1351. In Clapacs, the court found that the panel decision in Christie was "an equitable and logical approach to this issue." Id. at 3, 567 N.E.2d at 1354. The court further stated that "a case-by-case analysis [should] be utilized to ascertain the impact a criminal incident may have upon a person other than the individual directly involved in the crime." Id.
The court in Clapacs referenced Schultz v. Barberton Glass Co. (1983), 4 Ohio St.3d 131, 4 OBR 376, 447 N.E.2d 109, and Paugh v. Hanks (1983), 6 Ohio St.3d 72, 6 OBR 114, 451 N.E.2d 759, when stating the following for direction in making a determination of who is the victim:
"The factors to be considered are analogous to those enunciated in Paugh, supra, and shall consist of the person's proximity to the location of the crime, the relationship between him and the victim (the person assaulted), and the shock directly attributable to the sensory and contemporaneous observance of the incident. It should be noted that the Paugh court stated `that it is not necessary for a plaintiff to actually see the accident.' Id. at 79, 6 OBR at 120, 451 N.E.2d at 766. Therefore, the court agrees that emotional distress and anxiety due to a direct awareness of a criminal incident must also be classified a `personal injury.' In this regard, a person shall be considered a `victim' of criminally injurious conduct, pursuant to R.C. 2743.51(L), if he experiences psychological injury and/or physical harm. Accordingly, the court hereby adopts the holding enunciated in Christie." Clapacs, 58 Ohio Misc.2d at 3-4, 567 N.E.2d at 1354.
A judge of the court further stated in In re Fife (1989), 59 Ohio Misc.2d 1, 569 N.E.2d 1078, journalized approximately five weeks after the Clapacs decision, that "this court must analyze the nature of an applicant's alleged injury and its relationship to the criminal incident." Id. at 3, 569 N.E.2d at 1081. While not viewing the Clapacs or Fife cases to open a floodgate for fraudulent or imagined injury claims, the Fife court held the following:
"To receive compensation an applicant is required to prove the relationship of an injury to the criminal event by a preponderance of the evidence. It is contemplated that `personal injury' as compensated herein shall require a showing of more than mere sorrow, concern, or mental distress. Psychological injury must be of such a debilitating nature as to impede or prohibit the resumption or enjoyment of day-to-day activities." Id.
On October 18, 1989, the Supreme Court of Ohio rendered its decision in Burris v. Grange Mut. Cos. (1989), 46 Ohio St.3d 84, 545 N.E.2d 83, which held in paragraph three of the syllabus that:
"A complaint which avers only that a mother developed serious emotional and physical injuries as a proximate result of being informed of the death of her son in an automobile accident but fails to aver that she was in the vicinity of the accident, saw the accident, or otherwise sensorially perceived the accident fails to state a claim for negligent infliction of emotional distress upon which relief can be granted."
The court further referred to Paugh, supra, in stating that the essential issue is the reasonable foreseeability of injury and held that "a bystander to an accident may recover if the emotional injuries were both serious and reasonably foreseeable." "Bystander" was defined by the court as one who was at the scene and that would " not include a person who was nowhere near the accident scene and had no sensory perception of the events surrounding the accident." (Emphasis added.) Id., 46 Ohio St.3d at 93, 545 N.E.2d at 91.
The court noted that the only exceptions which allowed recovery for the plaintiff who did not witness the accident himself were where the plaintiff arrived at the scene shortly after the accident. The court in Burris stated its rationale and conclusion as follows:
"The rationale for extension of the right of recovery to bystanders is based upon the existence of reasonable foreseeability that emotional and physical injuries may be incurred by bystanders from the tortfeasor's negligence and, therefore, a duty of ordinary care to bystanders arises. However, we conclude it is not reasonably foreseeable that one who is simply informed of the death of another and has not suffered the traumatic shock of perceiving the accident in some form would also suffer the emotional distress contemplated by Paugh, supra * * *." Id., 46 Ohio St.3d at 93, 545 N.E.2d at 92.
The three-prong test used to determine the foreseeability of emotional injury as derived from Dillon v. Legg (1968), 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, was stated in Paugh, supra, 6 Ohio St.3d at 79, 6 OBR at 120, 451 N.E.2d at 766:
"The factors to be considered in order to determine whether a negligently inflicted emotional injury was reasonably foreseeable include: (1) whether the plaintiff was located near the scene of the accident, as contrasted with one who was a distance away; (2) whether the shock resulted from a direct emotional impact upon the plaintiff from sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence; and (3) whether the plaintiff and victim (if any) were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship. Dillon v. Legg, supra [68 Cal.2d], at 740-741 [ 69 Cal.Rptr. 72, 441 P.2d 912]."
Upon review of the judicial holdings of Clapacs and Fife, which found that a psychological injury and the ramification thereof may be considered a personal injury, and the Supreme Court holdings of Paugh and Burris, which establish and clarify the factors to determine foreseeability of the emotional injury, this panel finds that the decision of the single commissioner shall be set aside and the matter referred to the Attorney General for further investigation and a new recommendation based on the relevant case law that has recently evolved as discussed in this opinion.
Order accordingly.
WILLIAM A. CARROLL, STEVEN A. LARSON and JAMES H. HEWITT, III, Commissioners, concur.