Opinion
No. V89-80980.
Decided August 8, 1991.
Cynthia G. Spaulding, pro se.
Lee Fisher, Attorney General, for the state.
This matter came on to be considered upon applicant Cynthia G. Spaulding's appeal from the February 28, 1991 opinion and order issued by a panel of commissioners. The panel's determination affirmed the decision of the single commissioner, which had denied the claim for an award of reparations because of the applicant's contributory misconduct.
The July 27, 1990 order of the single commissioner denied an award of reparations because of the applicant's contributory misconduct when she "voluntarily accepted the challenge of Teresa Shaffer to engage in a physical encounter" and because her conduct "contributed to more than fifty percent of her injuries." Counsel for the applicant filed an objection and notice of appeal from the single commissioner's order that was heard before a panel of commissioners on January 10, 1991. On February 28, 1991, a panel of commissioners approved and affirmed the denial order of the single commissioner, finding that the "act of grabbing an individual's throat in an attempt to choke her had a causal relationship to the criminally injurious conduct that is the basis of this claim." The panel further noted that it was not necessary to address the applicability of R.C. 2315.19 because R.C. 2743.60(F) provides for the reduction or denial of an award of reparations.
On March 22, 1991, counsel for the applicant filed a notice of appeal from the decision of a panel of commissioners, stating that the basis of the appeal is the "determination that § 2315.19 O.R.C. is not a standard which is to be used in the program when reviewing a claim involving contributory misconduct." Counsel for the applicant and the Attorney General argued this matter before the court on May 17, 1991.
In reviewing claims appealed from the panel of commissioners, the court is guided by R.C. 2743.61, which provides, in pertinent part, as follows:
"If upon hearing and consideration of the record and evidence, the court decides that the decision of the commissioners appealed from is reasonable and lawful, it shall affirm the same, but if the court decides that the decision of the commissioners is unreasonable or unlawful, the court shall reverse and vacate the decision or modify it and enter judgment thereon."
"Contributory misconduct" is defined by R.C. 2743.51(M) as:
"`Contributory misconduct' means any conduct of the claimant or of the victim through whom the claimant claims an award of reparations that is unlawful or intentionally tortious and that, without regard to the conduct's proximity in time or space to the criminally injurious conduct, has a causal relationship to the criminally injurious conduct that is the basis of the claim." (Emphasis added.)
Further, one of the grounds for a denial or reduction of a claim is stated in R.C. 2743.60(F) as follows:
"In determining whether to make an award of reparations pursuant to this section, a single commissioner or panel of commissioners shall consider whether there was contributory misconduct by the victim or the claimant. A single commissioner or a panel of commissioners shall reduce an award of reparations or deny a claim for an award of reparations to the extent it is determined to be reasonable because of the contributory misconduct of the claimant or the victim." (Emphasis added.)
At the oral argument, counsel for the applicant stated that the purpose of the appeal was to obtain guidelines as to whether the court was going to apply the comparative negligence statute, R.C. 2315.19, to the Victims of Crime Compensation Program, as suggested by the single commissioner, or the reasonableness standard of reduction or denial consistent with R.C. 2743.60(F).
In his brief and at oral argument, the Attorney General referred to the often cited and misapplied In re Bieri (May 10, 1983), Ct. of Cl. No. V80-36295jud, unreported, for his recommendation of denial of an award of reparations to a victim or claimant where the incident involved a fight or altercation. Bieri, as relied upon by the Attorney General, provides that:
"The rule of law to be applied is: when a `victim' challenges another, or the `victim' accepts the challenge of another, to engage in a physical encounter, or voluntarily participates in a multi-person fracas, wherein either one or both or any of the parties receive physical injuries, whether by fair or foul means, such `victim's' conduct constitutes `contributory misconduct' as a matter of law. Neither such `victim' nor anyone claiming through him is entitled to an award of reparations from the Victims of Crime Fund."
In a published Court of Claims decision, In re Jones (1988), 46 Ohio Misc.2d 15, 546 N.E.2d 978, Judge Russell Leach referred to an earlier decision that found a necessary element of contributory misconduct to be foreseeability, citing In re Ewing (1987), 33 Ohio Misc.2d 48, 515 N.E.2d 666. In Jones at 17, 546 N.E.2d at 980, the court stated that:
"The issue of whether certain actions constitute contributory misconduct is for the finder of fact, i.e., the panel of commissioners, upon consideration of the evidence presented. It is my opinion that whether a prudent, reasonable man would or would not expect retaliation in a violent manner, as in this claim, is a question to be determined based on the evidence and testimony offered."
Effective March 14, 1989, Am. Sub. S.B. No. 308 (142 Ohio Laws, Part I, 1191, 1205) amended R.C. 2743.60(F) to enable a trier of fact to reduce an award of reparations rather than to deny a claim for an award. In view of the statutory language and the case law of In re Ewing and In re Jones, I find that the holding in Bieri, that a challenge, acceptance of a challenge or voluntary participation in a fracas necessitates an automatic denial of any award, is OVERRULED.
This court holds that for an award of reparations to be denied, rather than reduced, as a result of contributory misconduct on behalf of the victim or applicant pursuant to R.C. 2743.60(F), there must be a showing of substantial contributory misconduct. If the single commissioner or panel of commissioners does not find a substantial amount of contributory misconduct by the victim or applicant to deny an award of reparations, an award shall be granted but reduced by a percentage to be determined by the single commissioner or panel of commissioners.
Based upon a review of the file, case law and the evidence presented at the hearing before the panel of commissioners and R.C. 2743.61, it is the court's opinion that the decision of the panel of commissioners to deny an award of reparations because of contributory misconduct on behalf of the victim is neither unreasonable nor unlawful. The acts of the victim, arguing and grabbing the throat of the offender in an attempt to choke her, were causally related to the criminally injurious conduct and amount to substantial contributory misconduct which allows for a denial of an award of reparations. Therefore, this court affirms the decision of the three-commissioner panel and hereby denies the applicant's claim.
Claim denied.
FRED J. SHOEMAKER, J., retired, of the Franklin County Court of Common Pleas, sitting by assignment.