Panel
Commissioners:
E. Joel Wesp, Presiding
Necol Russell-Washington
OPINION
{¶1} The appeal presently before this panel involves injuries sustained by the applicant, Jodi Wiles, as the result of being a passenger on a motorcycle driven by Joe Bennington. After thoughtful consideration, this panel finds that the applicant's claim should not be barred by R.C. 2743.60(B)(1)(b), since the Attorney General failed to prove the applicant knew or should have known that the driver of the motorcycle was under the influence of alcohol at the time she rode with him. Accordingly, this panel reverses the Attorney General's decision denying the applicant's claim. Procedural History {¶2} On September 7, 2010, applicant, Jodi Wiles, filed a compensation application as the result of an incident that occurred on June 13, 2009. On November 9, 2010, the Attorney General issued a finding of fact and decision denying the applicant's claim for an award of reparations pursuant to R.C. 2743.60(B)(1)(b). The Attorney General's investigation revealed that the applicant witnessed the driver "consume multiple alcoholic beverages" prior to riding with him. Accordingly, the Attorney General asserted the applicant "knew, or reasonably should have known" the driver was under the influence of alcohol prior to accepting the ride which resulted in her injuries. driver was drunk they did not avail themselves of the opportunity to exit the vehicle even though that opportunity was presented to them. In the case at bar, applicant did not have sufficient observable evidence to appreciate the risk she was assuming when she got on the motorcycle with Joe Bennington, and accordingly, the Attorney General's decision should be reversed. Whereupon, the hearing was concluded. V. Controlling Law and Precedent {¶34} R.C. 2743.60(B)(1) states:
a) "(a) The claimant is the offender or an accomplice of the offender who committed the criminally injurious conduct, or the award would unjustly benefit the offender or accomplice.
b) "(B)(1) The attorney general, a panel of commissioners, or a judge of the court of claims shall not make or order an award of reparations to a claimant if any of the following apply:
c) "(b) Except as provided in division (B)(2) of this section, both of the following apply:
d) "(i) The victim was a passenger in a motor vehicle and knew or reasonably should have known that the driver was under the influence of alcohol, a drug of abuse, or both.
e) "(ii) The claimant is seeking compensation for injuries proximately caused by the driver described in division (B)(1)(b)(i) of this section being under the influence of alcohol, a drug of abuse, or both."
{¶35} The Attorney General has the burden with respect to proof of [exclusionary criteria R.C. 2743.60]. In re Williams, V77-0739jud (3-26-79); and In re Brown, V78-3638jud (12-13-79). {¶36} The use of the term "accomplice" in R.C. 2743.60(B) does not require the court to analyze the conduct of an applicant using the Ohio Criminal Code definition of complicity, under section R.C. 2923.03. If an applicant accepts a ride with a legally {¶45} We believe the case at bar is analogous to prior panel holdings in In re Fix, V2004-60369tc (8-3-04), In re Garza, V2004-60610tc (11-2-04); and In re Ohlemacher, V2010-50272tc (11-12-10). {¶46} In Fix, the applicant stated he had the opportunity to observe the offender for approximately one hour. During that time period, he acknowledged viewing the offender consume only one beer. Three other witnesses also stated they watched the offender drink one-to-two beers and he did not appear intoxicated. However, the offender's blood alcohol after the crash was determined to be .138. The applicant became aware of the offender's impaired condition only when, as a passenger on the offender's motorcycle, he experienced the offender driving 80 mph in a 35-mph speed zone and the offender refused to slow down. This occurred shortly before the crash. A panel of commissioners in finding the Attorney General had failed to establish a denial pursuant to R.C. 2743.60(B)(1), reasoned that the applicant only observed the offender drink only two beers at most, and no one thought the offender was inebriated at the time the offender and the applicant departed on the offender's motorcycle. Accordingly, the panel of commissioners decided that a reasonable prudent person would have also concluded that the offender was not drunk. {¶47} In Garza, the applicant, age 18, accepted a ride with the offender which resulted in an accident which caused injury to the applicant. Four witnesses described the offender's condition before the accident: they asserted he did not appear under the influence of alcohol even though they saw him consume between three to five beers on a five-to-five and one-half hour period, while one witness stated the offender exhibited all the signs of intoxication, i.e., slurred speech, red glazed over eyes, unsteadiness, and loud and rambunctious behavior. The panel determined the Attorney General failed to meet the burden of proof with respect to a denial pursuant to R.C. 2743.60(B)(1) based upon the following factors:
a) "1) the victim was under Ohio's legal drinking age (the record is silent concerning whether the victim was familiar with the substance),
2) the victim was significantly younger than the offender and witnesses; 3) the length of victim's and offender's interaction before and during the visit to offender's home is unknown; 4) it appears that the offender and victim were not well acquainted with each other, based on the offender's statement; 5) the offender's blood alcohol level was only slightly higher than the legal limit, which may have prevented him from demonstrating obvious signs of intoxication to the victim or others; and 6) the victim exercised reasonable judgment, just prior to the accident, by declining to ride on the motorcycle with the offender without a helmet."
{¶48} Finally, in
Ohlemacher, a panel of commissioners held that the applicant's claim should not be denied pursuant to R.C. 2743.60(B)(1), since a bar owner who observed both the applicant and the offender prior to the motorcycle crash felt that the applicant was intoxicated but the offender was not. However, information provided by the coroner's office revealed that the offender's blood alcohol level was over the legal limit.
{¶49} In the case at bar, we believe the applicant acting as a reasonable prudent person and based upon her observation of Joe Bennington had no reason to believe Joe Bennington was "under the influence of alcohol" prior to accepting a ride with him.
{¶50} Lastly, we cannot find based solely on the applicant's observation of Joe Bennington that he was under the influence of alcohol by consuming four beers in a period of three and one half hours. A review of the case file reveals that Joe was 73" tall and weighed 202 lbs.
{¶51} Based on the facts and circumstances surrounding this case, we find no reason why the applicant would have known or should have known that Joe Bennington was inebriated, or under the influence of alcohol.
{¶52} Furthermore, the Attorney General has failed to meet his burden of proof with respect to R.C. 2743.60(B)(1). Therefore, we find that the February 4, 2011 decision of
the Attorney General shall be reversed and this claim shall be remanded to the Attorney General for economic loss calculations and decision.
______________
E. JOEL WESP
Presiding Commissioner
______________
NECOL RUSSELL-WASHINGTON
Commissioner
Commissioner Susan G. Sheridan, Dissenting Opinion:
{¶53} I respectfully dissent. I believe the Attorney General's decision of February 4, 2011 should be affirmed since this claim was correctly denied pursuant to R.C. 2743.60(B)(1). {¶54} While I concur with the majority's finding that the testimony of the applicant, Steve Kofod, and Mike DeVore was credible, I believe one who observes a person drink four to five beers and consume no food reasonably should know that that individual was under the influence of alcohol. {¶55} The facts reveal that the applicant and Joe Bennington departed on Joe's motorcycle at approximately 11:30 a.m. on a Saturday morning, for a day of touring various bars that were the sites of a poker run. The applicant knew that alcohol would be consumed and she acknowledged that both she and Joe drank during the trip. She also conceded that neither one had anything to eat during their travels. The applicant admitted she drank two mixed drinks and a storm cloud during this approximately three and one-half hour period. The applicant acknowledged that Joe spent the majority of his time while at Honey Buckets and Freddie's inside the facilities while she remained outside. Certainly, Joe had the opportunity to drink while out of her sight but at no time on the back of Joe's motorcycle. Again, I do not believe the factors in Fix are consistent with the facts in the current case. {¶60} Finally, Ohlemacher, a case where I sat on the panel, approved an agreement reached by the parties and did not involve an extensive analysis of the facts. Accordingly, I do not believe this case has much precedential of value.
a) Lastly, I do not agree with the majority's view that the consumption of four to five beers in three and one half hours does not equate to impairment. I believe based solely on the applicant's testimony that she personally observed Joe drink four beers which is sufficient to prove he was under the influence and accordingly her claim should be denied pursuant to R.C. 2743.60(B)(1). Therefore, I would affirm the February 4, 2011 decision of the Attorney General.
______________
SUSAN G. SHERIDAN
Commissioner
Case No. V2011-60123 IN RE: JODI K. WILES JODI K. WILES Applicant Case No. V2011-60123 Commissioners:
E. Joel Wesp, Presiding
Necol Russell-Washington
ORDER
IT IS THEREFORE ORDERED THAT {¶61} State's Exhibit D is admitted into evidence; {¶62} The February 4, 2011 decision of the Attorney General is REVERSED and judgment is rendered in favor of the applicant; {¶63} This claim is remanded to the Attorney General for calculation of economic loss and decision; {¶64} This order is entered without prejudice to the applicant's right to file a supplemental compensation application, within five years of this order, pursuant to R.C. 2743.68; {¶65} Costs are assumed by the court of claims victims of crime fund.
______________
E. JOEL WESP
Presiding Commissioner
______________
NECOL RUSSELL-WASHINGTON
Commissioner
ID #I:\Victim Decisions to SC Reporter\Panel Decisions\2012\June - Sept 2012\V2011-60123 Wiles.wpd\DRB-tad
A copy of the foregoing was personally served upon the Attorney General and sent by regular mail to Licking County Prosecuting Attorney and to: Filed 9-13-12
Jr. Vol. 2283, Pgs. 196-197
Sent to S.C. reporter 10-18-12