OPINION AND ORDER OF THREE-COMMISSIONER PANEL.
This cause came on to be heard before this panel of three commissioners on February 2, 1989 at 2:00 p.m., upon the objection and notice of appeal filed by the applicant to the August 31, 1988 decision of the single commissioner.
The applicant, counsel for the applicant and the Attorney General attended the hearing and presented oral testimony and argument. Counsel for the applicant called four witnesses to testify including the applicant, Esker McCallister, Jr., and presented exhibits for the panel's review and consideration. All witnesses were cross-examined by the Attorney General.
The single commissioner had denied the applicant's claim stating that the applicant had clearly engaged in contributory misconduct. The Attorney General has the burden of proving by a preponderance of the evidence that the actions of Esker McCallister constituted contributory misconduct.
From review of the file, exhibits, new information unavailable to the single commissioner, testimony and cross-examination of the witnesses presented, the majority of this panel finds that the Attorney General has failed to prove by a preponderance of the evidence that the acts of McCallister constitute contributory misconduct. Testimony at the proceeding indicated that the applicant drove into a parking lot, heard some girls screaming, walked towards the noise and was confronted with bricks being thrown at himself and others who had gone to investigate the noise. At this time, the applicant and his companions chased the people throwing the bricks "4 or 5 houses down and across the street" until the brick throwers entered "someone's yard."
At this point, the applicant and his companions turned and began their return trip. As they had almost reached the opposite side of the street, the applicant was struck in the back and knocked down with an object swung by an assailant. As he wrestled with this assailant, an unidentified offender stabbed him multiple times in the back. The unidentified offender, who was later identified as Daniel Scott, pled guilty to aggravated assault on February 11, 1989.
On initial review, this event may appear to be a multi-person fracas; however, consistent with In re Ewing (1987), 33 Ohio Misc.2d 48, 515 N.E.2d 666, it is not foreseeable that the action of assisting in the chasing away of a group of attackers and then retreating would be causally related to the criminally injurious conduct of multiple stab wounds in the back by an unknown assailant.
Therefore, the majority of this panel will reverse the order of the single commissioner and grant an award of reparations to Esker McCallister in the amount of $11,822.56, consisting of $8,913.35 in allowable medical expenses and $2,909.21 for work loss incurred. However, only $4,373.21 of this amount shall be paid to the applicant at this time. Review of the file indicates an assignment to Grant Hospital for $7,449.35 which has not been addressed by the Attorney General or the single commissioner and this matter shall be remanded to the single commissioner for determination as to the validity of the assignment and referred back to the Attorney General for a new finding of fact and recommendation as to whether any further unreimbursed economic losses have been incurred.
Order
For the reasons stated in the opinion issued concurrently herewith, it is ordered that:
1. The August 31, 1988 order of the single commissioner is REVERSED;
2. Judgment is rendered against the state of Ohio and the Director of Budget and Management as its agency in the amount of $4,373.21, consisting of $1,464 for allowable medical expenses and $2,909.21 for work loss;
3. The clerk shall certify payment of the applicant's award in the amount of $4,373.21, pursuant to R.C. 2743.191;
4. The remainder of this matter is remanded to the single commissioner for final determination and referred to the Attorney General for verification of the assignment to Grant Hospital in the amount of $7,449.35 and a new finding of fact and recommendation regarding further unreimbursed economic losses;
5. The new finding of fact and recommendation shall be filed on or before July 17, 1989;
6. 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;
7. Costs are to be assumed by the reparations fund.
So ordered.
STEVEN A. LARSON and DALE A. THOMPSON, Commissioners, concur.
JAMES H. HEWITT III, Commissioner, dissents.
LARSON, Commissioner, concurring.
The dissent is correct when he describes this hearing before the panel of commissioners upon appeal as a trial de novo. A trial de novo gives the applicant an opportunity to present evidence as if the issues were being heard for the first time. While the panel may consider prior rulings, it is not bound by the findings of fact made by the single commissioner.
The single commissioner must rely on written evidence such as police reports, field investigations, and documents to establish the facts. The evidence presented to the single commissioner often contains hearsay statements and people's opinions about the event. At the single commissioner level, the evidence is not subject to cross-examination which could sort out the true facts from innuendo and supposition.
Evidence presented to the single commissioner is not necessarily incorrect or unreliable; therefore, most cases can be determined appropriately at the single-commissioner level. If either party views the results at the single-commissioner level as incorrect, they have the right to appeal pursuant to R.C. 2743.55(C) and have the claim heard by a panel of three commissioners who shall make an award or deny the claim upon a majority vote. The evidence presented to the panel is subject to cross- and redirect examination.
The dissent discusses the standard of review held by the panel in terms of the degree of deference given to the single commissioner's decisions. Since the hearing at the panel level may be a trial de novo, the panel is not controlled by any prior decision, but, by definition, may hear the case anew. The appropriate standard utilized by the panel of commissioners in a contributory misconduct claim is, quite simply, proof by a preponderance of the evidence, which is defined as the greater weight of the evidence.
In the hearing before this panel, the applicant presented live testimony, both from himself and other persons having direct knowledge of the events of the evening in question. The Attorney General cross-examined the witnesses presented by the applicant but did not elect to subpoena or present any witness to rebut the applicant's testimony. A review of the file indicates there were summaries of witness statements which contradicted, or at least conflicted, with the oral testimony presented to this panel. Therefore, with no new evidence to contradict the applicant's witnesses' testimony presented to this panel, the result reached by the majority is anything but "unfortunate." I submit that it is the only result that could be reached given the state of the evidence before this panel.
In my opinion, contributory misconduct on the part of the applicant was not proven by a preponderance of the evidence. The applicant interceded in a altercation that he did not create. From his point of view, he was chasing off people who were attacking his friends and neighbors. The applicant chased the people only a short distance and then retreated. While he was retreating the applicant was struck from behind and stabbed in the back by unknown youths.
Therefore, for the reasons stated above, this commissioner concurs with the majority who reverse the order of the single commissioner and grant an award of reparations to the applicant.
HEWITT, Commissioner, dissenting.
A good starting point for this discussion is to focus on the appellate standard of review that the panel of commissioners applies in accordance with our responsibility in supervising the crime victim reparations fund.
Very simply, recognition of the standard of review by this panel is the degree of deference given to us as a reviewing court to a decision rendered by the earlier level, the single commissioner.
When one knows the appropriate standard that will be utilized by the panel of commissioners, a substantial part of the persuasion has been achieved. Contrarily, when one is unaware of the correct standard of review one will aimlessly and wastefully consume the panel's time as well as one's own time. Certainly, this panel is aware of its standard for the particular issue raised on appeal and, consequently, it behooves the applicant or his designated counsel to become equally knowledgeable of the review standards at the panel level.
The review standards are not amorphous phrases used to enhance an already endless string of legalese — they serve a very specific purpose and if seriously appreciated for their useful value, will aid immeasurably in the development of one's presentation before future panel commissioners.
In accordance with R.C. 2743.55(C), the panel of commissioners upon appeal considers cases de novo, which is to say "[a]new; afresh; a second time." Black's Law Dictionary (5 Ed. 1979) 392.
This is precisely what this reviewing court does when it utilizes the standard.
In this case, the single commissioner issued an opinion finding that the applicant had clearly engaged in contributory misconduct and consequently denied the claim on that ground. The applicant alleges in his objection and notice of appeal that his actions did not constitute contributory misconduct.
Therefore, the issue of whether there exists contributory misconduct is one of the decisions that must be made by this panel. It is well-settled authority within the Court of Claims, Crime Victim framework, that the Ohio Attorney General has the burden of proving by a preponderance of the evidence that an applicant's actions constitute contributory misconduct except in certain situations described in R.C. 2743.60(F). In re Williams (Jan. 29, 1987), Ct. of Claims No. V83-65270tc, unreported.
At the hearing, the applicant developed testimony through four witnesses, only two of whom were in any position to view firsthand how this incident occurred. Based on the testimony presented, and considering this matter de novo, the majority would reverse the decision of the single commissioner distinguishing In re Bieri (May 10, 1983), Ct. of Claims No. V80-36295jud, unreported, and authorize an award of reparations to the applicant.
At the hearing before this panel the Attorney General thoroughly questioned those witnesses that appeared; however, he did not deem it necessary to call any witnesses to refute or rebut the testimony presented by the applicant and the one other competent witness (who incidentally was also involved in the fracas). Because the Attorney General neglected to present any contrary evidence, my colleagues reach this unfortunate result.
In my opinion, I would deny the applicant's claim on the requirements set forth in In re Bieri, id. The events leading to the applicant's injury clearly constitute voluntarily contributory misconduct. I reach this conclusion based on the following considerations.
1. The applicant's sidekick, George Widmer, testified that upon hearing two girls scream he ran from his front porch over to the neighbor's house across the street to determine whether anyone needed assistance. Apparently, the neighbor's daughter and several youths that were visiting became involved in a heated verbal discussion. No party appeared to be physically threatened and, thereafter, the youths left. Widmer further testified that while attempting to return to his home, a number of words and eventually insults began to be exchanged between himself and the youths, who had proceeded to an alley adjacent to the neighbor's home. One of the youths began to throw bricks or stones and Widmer was struck in the arm. Throughout this process, the applicant was present, and while not hurling bricks, admitted to an exchange in the throwing of insults. After the supply of rocks and/or bricks was exhausted, the applicant, Widmer and two other friends separated into various different squads of individuals as they attempted to catch the youths that had scattered in different directions throughout the neighborhood. The applicant's search squad was unable to catch anyone and while the applicant was returning from his mission, he was attacked and suffered the specific injury for which he requests reparations.
2. Judge Baynes of the Court of Claims stated in In re Bieri, supra, at 7:
"One who takes the law into his own hands for whatever reason takes his chances as to any unanticipated, but foreseeable, consequences and is in no way deserving of an award."
Judge Baynes continued his analysis in defining "contributory misconduct," stating:
"The rule of law to be applied in cases like these 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."
3. This commissioner is of the view that the applicant, once he determined to initiate in the chase, willingly volunteered to engage in contributory misconduct. We should not be naive to conclude what the applicant and his friends intended to do had they caught one of these youths. Suffice it to say that the applicant determined, right then and there, that the hurling of bricks and exchange of insults required prompt action under the law of his neighborhood.
4. As a panel of commissioners, we agree upon the de novo standard of review for matters like these upon appeal. Our panel also concurs that the Attorney General maintains the burden of proof to prevail on the issue of whether the applicant engaged in contributory misconduct. The majority and I only differ on our interpretation of the facts.
Again, since this panel has heard this matter de novo and because no other witnesses testified offering a contrary point of view, my colleagues reach a different result.
5. By writing this dissent, it is my hope that the Ohio Attorney General, the party charged with the responsibility to protect the legitimate interests of the reparations fund, will assume a more affirmative posture to take those necessary steps to ensure the attendance of witnesses at future scheduled hearings.
6. This commissioner urges more careful attention to these matters and requests that appropriate, reasonable methods be instituted right away. Otherwise, the word will likely spread among other audacious vigilante types to take the law into their own hands, and should injury occur from this combat, the Ohio Reparations Fund will provide the Band-Aids for their wounds and (regretfully) the reward for their pocketbooks.
Clearly, the Ohio Reparations Fund was not designed to satisfy this objective.