OPINION AND ORDER OF THREE-COMMISSIONER PANEL.
This cause came on to be heard before this panel of three commissioners on July 12, 1990 at 1:00 p.m. upon the objection filed by the applicant to the February 28, 1990 decision of the single commissioner.
The applicant, counsel for the applicant, and the Attorney General attended the hearing and presented testimony, exhibits, and oral argument for the panel's consideration.
Evidence presented by the applicant, Donna J. Thorpe, established the following facts. On October 25, 1988, Raymond Oakford went to meet friends at the Mays Tavern where he consumed alcoholic beverages until approximately 10:00 p.m. At around 10:00 p.m., Oakford left the Mays Tavern with the decedent, Michael Thorpe, as a passenger in his car. Oakford and Thorpe then traveled to the Riverside Bar where they consumed more alcohol — Oakford estimated he had two beers and a Seven and Seven (mixed drink). Oakford and Thorpe met John Simmons, a companion named Rick (last name unknown), and some other acquaintances at the Riverside bar. After about two and one-half to three hours, Simmons, Oakford and Thorpe decided to return to Mays Tavern to have a few more drinks before closing time. Rick was asleep in his car, but awoke when John Simmons got in and began the drive back to Mays.
Although accounts differ, it appears that Oakford attempted to convince Simmons to race him back to Mays Tavern. Simmons indicated that he did not want to race, but Oakford left the Riverside parking lot at a high rate of speed anyway. Simmons lost sight of Oakford's vehicle on Mumford Road in Geauga County — where the accident occurred — and did not see it again until Rick pointed the lights out to him in a field.
At approximately 1:40 a.m., Raymond Oakford lost control of his vehicle, veered off the road, struck several road signs, a mailbox, and a utility pole, and then rolled over. Michael Thorpe, who was thrown from the vehicle, suffered fatal injuries. Oakford was life-flighted to St. Luke's Hospital in Cleveland, Ohio, where he gave a statement to State Trooper R.L. Jones later that morning indicating he argued with Thorpe about not wearing a seat belt despite the facts that he had been drinking and the roads were wet. At the time of the accident, Raymond Oakford was twenty years old. The legal drinking age was twenty-one.
Counsel for the applicant contends that the decedent's death arose from the illegal sale of alcoholic beverages to a minor and the illegal purchase and consumption of those beverages by the minor in a public place in violation of R.C. 4301.21, 4301.22, 4301.63 and 4301.632. R.C. 4301.632 provides the following:
"Except as otherwise provided in this chapter, no person under the age of twenty-one years shall order, pay for, share the cost of, or attempt to purchase any beer or intoxicating liquor, or consume any beer or intoxicating liquor, either from a sealed or unsealed container or by the glass or by the drink, or possess any beer or intoxicating liquor, in any public or private place."
Conversely, the Attorney General asserts that Michael Thorpe was killed in an auto accident and that his death, therefore, arose out of the "ownership, maintenance, or use of a motor vehicle." Furthermore, the Attorney General maintains that the applicant's claim was properly denied by the single commissioner because conduct involving the "ownership, maintenance, or use of a motor vehicle" was specifically excluded from the definition of "criminally injurious conduct" provided by former R.C. 2743.51(C). Former R.C. 2743.51(C)(1) stated the following:
"`Criminally injurious conduct' means either of the following: (1) For the purposes of any person described in division (A)(1) of this section, any conduct that occurs or is attempted in this state; poses a substantial threat of personal injury or death; and is punishable by fine, imprisonment, or death, or would be so punishable but for the fact that the person engaging in the conduct lacked the capacity to commit the crime under the laws of this state or of the United States. Criminally injurious conduct does not include conduct arising out of the ownership, maintenance, or use of a motor vehicle, except when the person engaging in the conduct was using the vehicle to flee immediately after committing a felony or an act that would constitute a felony but for the fact that the person engaging in the conduct lacked the capacity to commit the felony under the laws of this state or of the United States."
Although there are two exceptions to the motor vehicle exclusion, (1) where the offender uses the vehicle as a weapon and (2) where the offender uses the vehicle to flee immediately after committing a felony, neither exception applies in the present claim.
Effective March 14, 1989, however, the legislature specifically expanded the definition of "criminally injurious conduct" to include conduct arising out of the ownership, maintenance, or use of a motor vehicle where "[t]he person engaging in the conduct was using the vehicle in a manner that constitutes an OMVI violation." R.C. 2743.51(C)(1)(c). See Am.Sub.S.B. No. 308, Section 3 (142 Ohio Laws, Part I, 1191, 1215). Concomitantly, R.C. 2743.51(P)(1) defines "OMVI violation," in pertinent part, as follows:
"`OMVI violation' means any of the following:
(a) A violation of section 4511.19 of the Revised Code, of any municipal ordinance prohibiting the operation of a vehicle while under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse, or of any municipal ordinance prohibiting the operation of a vehicle with a prohibited concentration of alcohol in the blood, breath, or urine, if the offender is convicted of or pleads guilty to the violation[.] * * *" (Emphasis added.)
In the instant claim, the offender has not been convicted of, or pled guilty to, an OMVI violation. Furthermore, applicant does not base her claim for an award of reparations solely upon the occurrence of the automobile accident. Rather, the criminally injurious conduct upon which this claim is based is the illegal purchase and consumption of alcoholic beverages by the minor offender and the illegal sale of those beverages by the tavern owners.
Raymond Oakford's conduct, which he intentionally engaged in with full awareness of its illegality, "occurred in this state," was "punishable by fine, imprisonment, or death," and "posed a substantial threat of personal injury or death." In fact, Raymond Oakford's conduct did result in the death of the decedent. Therefore, we must agree with applicant's contentions that the offender engaged in criminally injurious conduct by illegally purchasing and consuming alcoholic beverages.
In In re Jones (Sept. 9, 1981), Ct. of Claims No. V79-3029jud, unreported, the Court of Claims stated the following:
"Accordingly, determination of whether a Victim of Crimes claimant is entitled to an award of reparations for economic loss arising from criminally injurious conduct requires application of principles of traditional proximate cause standards. The trier of the fact, at a minimum, must be provided with evidence that a result is more likely to have been caused by an act, in the absence of any intervening cause. The quantum of evidence required is a preponderance of competent, material and relevant evidence of record on that issue."
In applying these standards to the instant case, we find that the decedent's death was more likely than not the result of Raymond Oakford's illegal conduct. Alcohol is a depressant; it slows a driver's reaction time, releases his inhibitions, clouds his judgment, and reduces his coordination and motor skills. Each of these side effects is demonstrated by the tragedy that led to the decedent's death. The offender, after illegally consuming alcoholic beverages at one bar, set out at a high rate of speed upon a dark, narrow, wet road — a road he had traveled sober many times before without incident — eager to race his companions back to another bar for yet another drink. Along the way, the offender lost control of his vehicle and careened off the road, killing his passenger, Michael Thorpe. The very purpose of statutes establishing a minimum age requirement for drinking is to protect youths from the dangers that accompany alcohol abuse, for example, drunk driving.
Still, the Attorney General maintains that because a motor vehicle was involved in the conduct that caused the death of the decedent and because the conduct occurred prior to the effective date of the amendment expanding R.C. 2743.51(C) to include OMVI violations, the offender's conduct does not constitute criminally injurious conduct for purposes of the Crime Victim Reparation Act. However, the panel commissioners are of the opinion that the mere presence of a motor vehicle in the corpus delicti of the crime does not necessarily require the invocation of the motor vehicle exception. Moreover, the panel does not believe the auto accident was the sole, superseding cause of the decedent's death. While the accident, which occurred on the road between the two drinking establishments involved in this case, was intimately bound up with the criminally injurious conduct, it was but one link in the fatal chain of events that led to the decedent's death. Thus, the occurrence of the accident, alone, does not preclude reliance upon a separate and distinct criminal act as the basis of the applicant's claim for an award of reparations.
In accordance with this contention, 70 Ohio Jurisprudence 3d (1986) 108-109, Negligence, Section 43, states the following principle:
"Clearly, there may be more than one proximate cause of an accident, and in such event any party who puts in motion or sets up any one of such direct and proximate causes may be held for the total damages directly and proximately resulting from such combined causes, in the event such direct and proximate cause amounted to want of ordinary care on the part of the party who put it in motion or set it up, and the injured party was himself in the exercise of ordinary care in the situation." (Footnotes omitted.)
Thus, if a consequence has more than one proximate cause, any one of those causes may form a basis for the imposition of full liability upon the party who set the cause, i.e., the criminally injurious conduct, in motion. An exception to this rule exists when the injured party has suffered personal injury due to his own negligence.
In the instant case, the evidence indicates the decedent was highly intoxicated when he got into Raymond Oakford's car knowing that Oakford was also intoxicated. 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 under the Crime Victim Compensation Act. However, pursuant to R.C. 2743.60(F), a claim for an award of reparations may be denied if the injured party engaged in contributory misconduct. R.C. 2743.51(M) defines "contributory misconduct" as follows:
"`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."
Although the decedent's conduct may have been negligent, it was not unlawful or intentionally tortious and, thus, did not constitute contributory misconduct. Therefore, we find the offender's illegal purchase and consumption of alcoholic beverages was the proximate cause from which the decedent's death arose. The February 28, 1990 decision of the single commissioner shall be reversed and the claim remanded for determination of any economic loss.
ORDER
It is ordered that:
1. The February 28, 1990 order of the single commissioner is reversed;
2. The claim is remanded to the single commissioner and referred to the Attorney General for a new finding of fact and recommendation on or before February 11, 1991;
3. The applicant is afforded an opportunity to respond to the new finding of fact and recommendation within twenty-one days after it is filed by the Attorney General;
4. Costs are to be assumed by the reparations fund.
So ordered.
STEVEN A. LARSON, DALE A. THOMPSON and WILLIAM A. CARROLL, Commissioners, concur.