578 N.E.2d 906
No. V88-44394.Court of Claims of Ohio, Victims of Crime Division.
Decided December 9, 1988.
Larry A. Landis, for applicant.
Anthony J. Celebrezze, Jr., Attorney General, for the state.
PHILIP H. SHERIDAN, Commissioner.
On June 18, 1987, in Cuyahoga County, Ohio, the applicant, Edward V. Uhnak, suffered personal injury as a result of being shot by Jaser Batarseh, the offender.
The incident began at approximately 12:00 a.m. on the date in question. The applicant and the offender became involved in a verbal altercation. The applicant approached the offender with a table in his hands. In response, the offender hit the applicant on the head with an empty bottle. At this point, the offender was escorted out of the bar only to return with a gun. The offender shot the applicant.
The incident was reported to the Cleveland Police Department within seventy-two hours of its occurrence.
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After careful review of the reparations application, the finding of fact and recommendation of the Attorney General, documents and evidence contained in the case file, and the response of the applicant, I make the following determination.
R.C. 2743.60(F) states in part:
“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 deny a claim for an award of reparations if it is determined that there was contributory misconduct by the claimant or the victim.”
R.C. 2743.51(M) states:
“`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.”
In In re Ewing (1987), 33 Ohio Misc.2d 48, 515 N.E.2d 666, the subsequent act of the offender using his car to strike the applicant after the applicant slapped the offender was found not to be foreseeable under the circumstances. The applicant’s conduct was, therefore, found not to be contributory misconduct.
Consequently, just as in Ewing, supra, the act of shooting the applicant is unreasonable and unforeseeable when considering the circumstances. Although the applicant approached the offender with a table in his hands he did not contemplate being shot as a result of his conduct. The applicant could have expected to be hit on the head with a bottle when he approached the offender, but his actions cannot be deemed to constitute contributory misconduct when the offender eventually shot him.
Therefore, the applicant is granted an award of reparations for economic loss in the amount of $9,391, of which $6,276 represents allowable expense, and $3,115 represents work loss.
On November 22, 1988, the applicant filed a motion for additional extension of time and a supplemental response. The motion for an additional extension of time is denied because a decision in this matter has already been made. In addition, this opinion has taken into consideration the applicant’s supplemental response.
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Findings of Fact
1. The applicant was shot by Jaser Batarseh on June 18, 1987, in Cuyahoga County, Ohio.
2. The incident was reported to a law enforcement officer or agency within seventy-two hours after the occurrence.
3. The actions of the applicant are not deemed to constitute “contributory misconduct” as defined in R.C. 2743.51(M).
4. The applicant has suffered a net economic loss in the amount of $9,391, consisting of $6,276 in allowable expense, and $3,115 in work loss.
5. The applicant filed a motion for an additional extension of time on November 22, 1988, which shall be denied because an opinion has been rendered in this matter.
Conclusions of Law
1. The applicant qualifies as a “claimant” as defined by R.C. 2743.51(A).
2. The applicant has suffered “net economic loss,” as defined in R.C. 2743.51(E), in the amount of $9,391, consisting of $6,276 in “allowable expense,” as defined in R.C. 2743.51(F), and $3,115 in “work loss,” as defined in R.C. 2743.51(G).
Order
1. Judgment is rendered against the state of Ohio and the Director of Budget and Management as its agency for payment of the award in the amount of $9,391, in a lump sum.
2. The warrant issued in payment of this judgment to the applicant shall be sent by the Director of Budget and Management to the applicant at the address certified to the director by the Clerk of this court.
3. This order is entered without prejudice to the applicant’s right to file a supplemental reparations application pursuant to R.C. 2743.68 if the applicant incurs economic loss not considered in this determination and not reimbursed from other persons, including collateral sources.
4. Costs assumed by the reparations fund.
So ordered.
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