IN RE WALKER, 63 Ohio Misc.2d 242 (1993)

623 N.E.2d 729

In re WALKER.

No. V91-51835.Court of Claims of Ohio, Victims of Crime Division.
Decided April 7, 1993.

Steven Walker, pro se.
Lee Fisher, Attorney General, for the state.

OPINION AND ORDER OF THREE-COMMISSIONER PANEL.

This cause came to be heard before this panel of three commissioners on September 9, 1992 at 11:00 a.m. upon the Attorney General’s March 19, 1992 objection to the February 28, 1992 decision of the single commissioner.

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Neither the applicant, Steven Walker, nor anyone on his behalf appeared at the hearing. The Attorney General attended the hearing and presented oral argument for this panel’s review and consideration. Following a brief discussion of the claim, the panel chairman concluded the hearing.

The single commissioner had granted the applicant an award of reparations for work loss, but reduced the award pursuant to R.C. 2743.60(F) and referred the claim to the Attorney General for further investigation regarding allowable expense. Specifically, the single commissioner found the applicant had engaged in contributory misconduct because the applicant voluntarily got into a car with a drunk driver, thereby placing himself in danger. While conceding the applicant’s conduct constituted contributory negligence, the single commissioner found as follows:

“The spirit of the Victims Act does not permit a person who voluntarily and intentionally subjects himself, unnecessarily, to unreasonable risk of peril to recover unreimbursed economic loss from the reparations fund.”

In accordance with the foregoing discussion, the single commissioner granted the applicant an award but reduced it by thirty percent.

R.C. 2743.60(F) provides, in pertinent part, the following:

“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.”

“Contributory misconduct” is defined in R.C. 2743.51(M) as follows:

“(M) `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.”

Negligence is, by definition, not intentionally tortious conduct. Furthermore, the applicant’s negligent conduct in this case is, so far as these commissioners are aware, not the subject of any criminal statute that would render the applicant’s conduct a crime. Finally, we note the single commissioner’s determination failed to distinguish this panel’s determination in In re Thorpe (1990), 62 Ohio Misc.2d 122, 127, 593 N.E.2d 499, 503, wherein this panel held as follows:

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“While it is arguably negligent to get into a car with a drunk driver, contributory negligence is not a basis for denying an award of reparations [or reducing an award of reparations] under the Crime Victim Compensation Act.”

From review of the file, with full consideration given to the oral argument presented at the hearing as well as this panel’s prior determination in In re Thorpe, we find the Attorney General’s objection is well taken. Therefore, the February 28, 1992 decision of the single commissioner reducing the applicant’s award pursuant to R.C. 2743.60(F) must be reversed. In accordance with the foregoing determination, the applicant will be granted an award of reparations for work loss in the amount of $5,001.92; however, the applicant’s claim for allowable expense will be referred to the Attorney General for further investigation and a new finding of fact and recommendation and remanded to the single commissioner for further determination.

IT IS THEREFORE ORDERED THAT:

1. The February 28, 1992 order of the single commissioner is REVERSED;

2. Judgment is rendered against the state of Ohio and the Office of Budget and Management as its agency for payment of the award in the amount of $5,001.92;

3. The Clerk shall certify this judgment to the Director of the Office of Budget and Management for payment to the applicant pursuant to R.C. 2743.191;

4. This award is expressly conditioned upon the subrogation provisions of R.C. 2743.72, which require any benefits or advantages received from any collateral source, including the offender, be repaid to the state of Ohio;

5. This claim is referred to the Attorney General for further investigation and a new finding of fact and recommendation concerning allowable expense and remanded to the single commissioner for further determination;

6. The Attorney General shall file his amended finding of fact and recommendation on or before June 7, 1993;

7. The applicant may respond to the new finding of fact and recommendation within twenty-one days after it is filed by the Attorney General; and

8. Costs be assumed by the reparations fund.

So ordered.

WILLIAM A. CARROLL, STEVEN A. LARSON and DALE A. THOMPSON, Commissioners, concur.

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