In re Clapacs

567 N.E.2d 1351, 58 Ohio Misc. 2d 1, 1989 Ohio Misc. LEXIS 14
CourtOhio Court of Claims
DecidedSeptember 5, 1989
DocketNo. V88-41344
StatusPublished
Cited by7 cases

This text of 567 N.E.2d 1351 (In re Clapacs) is published on Counsel Stack Legal Research, covering Ohio Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Clapacs, 567 N.E.2d 1351, 58 Ohio Misc. 2d 1, 1989 Ohio Misc. LEXIS 14 (Ohio Super. Ct. 1989).

Opinion

Leach, J.

On May 11, 1988, the applicant, Bryan Clapacs, filed a reparations application to recoup his lost wages for one day. On October 7, 1988, the single commissioner issued an opinion and order wherein he found the applicant qualified as a “victim” and granted an award of reparations in the amount of $22.67, representing the unreimbursed “work loss.”

The Attorney General filed an objection to said decision and, therefore, the panel of commissioners considered the claim. On April 25, 1989, the panel issued an opinion and order, with one dissent, which reversed the single commissioner’s decision. The panel relied on the holdings of In re Tucker (Dec. 7, 1984), Court of Claims No. V83-56530jud, unreported, and In re Davenport (Oct. 28, 1988), Court of Claims No. V86-52241tc, unreported, to find that the applicant in the instant claim does not qualify as a victim in his own right. The panel noted that the Attorney General did not dispute the claim of Donald Clapacs (claim No. V88-41361), who attempted to apprehend the offender and sustained minor injuries.

[2]*2On May 10, 1989, the applicant filed a notice of appeal from the panel’s decision contending that he was a victim under the circumstances and should receive compensation for said work loss. The matter has been heard and scrutinized by the court and is now ready for a determination.

The record reveals that in the early morning hours of May 12, 1987, an intruder had entered the Clapacs home and eventually found his way into the applicant’s sister’s bedroom. The offender dragged the young woman from her room and into the hallway; she screamed and began to wrestle with the offender in an attempt to escape. The applicant’s father, Donald Clapacs, heard the commotion and thus appeared and confronted the offender. The offender quickly exited the house, with Donald Clapacs in pursuit, and was successful in avoiding being captured at that time. In addition to the aforesaid assault, it was later discovered that the applicant’s mother’s purse was stolen. The applicant, also awakened during the incident, learned of the intruder’s actions and subsequently experienced much tension, fear and anxiety. The applicant’s anxiety reaction to the criminal occurrence caused him to miss one day of work.

It is clear that the issue at bar revolves around the court’s interpretation of the statutory definition of the term “victim.”

R.C. 2743.51(L) defines a “victim” as:

“ ‘Victim’ means a person who suffers personal injury or death as a result of any of the following:
“(1) Criminally injurious conduct;
“(2) The good faith effort of any person to prevent criminally injurious conduct;
“(3) The good faith effort of any person to apprehend a person suspected of engaging in criminally injurious conduct.” (Emphasis added.)

The Attorney General asserts that the panel majority was correct in its analysis of the definition of “victim,” utilizing the holding of Tucker, supra, to preclude the applicant from entitlement to an award. On page three of the Attorney General’s brief, the Attorney General states the following:

“The criminally injurious conduct in the instant claim was the burglary of the appellant’s residence and the threats to his sister. The appellant was asleep when the criminally injurious conduct occurred. Since he was not confronted by the intruder, the ‘criminally injurious conduct’ did not pose a substantial threat of personal injury to the appellant. Thus, the requirements of the statute have not been met, and the appellant cannot be deemed a victim entitled to compensation under the Crime Victims Compensation Act.”

In Tucker, the applicant’s minor daughter was asleep in her bedroom when a crime was committed in another room in the applicant’s home. The child experienced psychological problems when she learned of the incident and therefore sought professional counseling. The court found that the child did not suffer a compensable loss as a result of the incident. It is evident that the decision was based on the court’s interpretation of the phrase “personal injury.” The court did not view the child’s psychological problems as a personal injury and thus denied the claim.

In Davenport, supra, the applicant suffered psychological trauma due to sexual acts committed upon his daughter and incurred economic loss as a result thereof. The panel ruled that such psychological trauma did not constitute a personal injury and denied the claims based on the court’s interpretation in Tucker.

The various branches of this court have obviously struggled with the issue at bar. It appears that the Attorney [3]*3General is also uncertain what direction to follow concerning this issue. On page four of the Attorney General’s brief, he states that “[t]he Attorney General does not disagree that emotional distress, without a contemporaneous physical injury, can constitute personal injury under the Crime Victims Compensation Act” (emphasis added), citing In re Christie (Oct. 30, 1985), Court of Claims No. V84-43091tc, unreported. However, the Attorney General then attempts to draw the court’s attention from Christie by asserting that Tucker is dispositive of the present issue and must be followed.

In Christie, the panel utilized the Supreme Court of Ohio’s logic and holding in Schultz v. Barberton Glass Co. (1983), 4 Ohio St. 3d 131, 4 OBR 376, 447 N.E. 2d 109, to reject the notion that “personal injury” refers only to “physical injury.” The panel stated as follows:

“In essence, the single commissioner’s determination is based on his interpretation of the statutory definition of ‘victim.’ R.C. 2743.51(L) defines a victim as ‘a person who suffers personal injury or death,’ which results from, as in this case, criminally injurious conduct. The single commissioner concluded that the child did not suffer any personal injury and, therefore, was not a victim.
“The single commissioner suggests, therefore, that the phrase ‘personal injury’ refers only to physical injury. A majority of this panel disagrees with such an interpretation and finds that the logic expressed in the recent Ohio Supreme Court case of Schultz v. Barberton Glass Co., 4 Ohio St. 3d 131 (1983) is applicable.
“In Schultz, the court was faced with the issue of whether a cause of action existed for the negligent infliction of serious emotional distress without a contemporaneous physical injury. Upon review of the facts and decisions from numerous other jurisdictions pertaining to the issue, the court held that a contemporaneous physical injury is unnecessary. The court stated that an ‘emotional injury can be as severe and debilitating as physical harm and is deserving of redress.’ (cite omitted) Id. at 135.
“In adopting the reasoning enunciated in Schultz, a majority of this panel finds that emotional distress, experienced as a result of criminal activity, constitutes a personal injury. Therefore, we interpret the phrase ‘personal injury’ to mean psychological injury as well as physical harm.” (Emphasis sic.) In re Christie, supra, at 2-3. See, also Paugh v. Hanks (1983), 6 Ohio St. 3d 72, 6 OBR 114, 451 N.E.

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Bluebook (online)
567 N.E.2d 1351, 58 Ohio Misc. 2d 1, 1989 Ohio Misc. LEXIS 14, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-clapacs-ohioctcl-1989.