[Cite as In re Wodzinski, 2010-Ohio-6709.]


                                              Court of Claims of Ohio
                                                 Victims of Crime Division
                                                                         The Ohio Judicial Center
                                                               65 South Front Street, Fourth Floor
                                                                            Columbus, OH 43215
                                                                    614.387.9860 or 1.800.824.8263
                                                                               www.cco.state.oh.us



IN RE: TIMOTHY H. WODZINSKI


TIMOTHY H. WODZINSKI

            Applicant


 Case No. V2008-31011

Commissioners:
Karl C. Kerschner, Presiding
Thomas H. Bainbridge
Lloyd Pierre-Louis

ORDER OF A THREE-
COMMISSIONER PANEL

          {1}On June 10, 2008, the applicant, Timothy Wodzinski, filed a compensation
application as the result of an altercation which took place on April 22, 2008. On July
21, 2008, the Attorney General issued a finding of fact and decision denying the
applicant’s claim since the applicant engaged in substantial contributory misconduct.
The Attorney General contended that the applicant voluntarily engaged in a physical
altercation which resulted in applicant’s conviction of disorderly conduct. On October
1, 2008, the applicant submitted a request for reconsideration.         On December 11,
2008, the Attorney General issued a Final Decision finding no reason to modify its initial
decision.     On December 18, 2008, the applicant filed a notice of appeal from the
December 11, 2008 Final Decision of the Attorney General. Thereafter, a hearing was
held before this panel of commissioners on December 2, 2009 at 10:40 A.M.
          {2}The applicant, Timothy Wodzinski, and his attorney, Michael Falleur,
appeared at the hearing. Assistant Attorney General Lyndsay Nash represented the
state of Ohio.
Case No. V2008-31011                       - 2 -                                 ORDER


        {3}The only issue on appeal in this matter is whether the applicant engaged in
contributory misconduct at the time of the criminally injurious conduct and, if so, whether
it was substantial enough to bar him from receiving an award of reparations.
Case No. V2008-31011                        - 3 -                                ORDER


         {4}Following opening statements, the applicant, Timothy Wodzinski, took the
witness stand. The applicant related his work experience with McMaster-Carr. He
indicated he worked with the offender Chris Lombardo from the beginning of his tenure
with McMaster-Carr. Approximately four to five years ago they were assigned to the
Returns Department.      Mr. Wodzinski stated he complained about Mr. Lombardo’s
behavior on the job numerous times over the course of their employment together.
After review of personnel records, the witness realized that other employees were
experiencing similar difficulties with Chris Lombardo.     The applicant’s attention was
then directed to April 22, the day of the incident.
         {5}Mr. Wodzinski related that the offender approached him during the morning
break and indicated they needed to talk. However, the offender wanted to have a
conversation off the premises. They agreed to meet after work at Sunny Lake Park.
The applicant believed this would be an opportunity to resolve past differences. He
took the offender at his word. The applicant testified that as he drove into the park, and
before his vehicle had come to a complete stop, the offender reached through his car
window and attacked him. The applicant was surprised by the attack which he claimed
he had not foreseen.      Applicant’s Exhibit 1, a photo of the applicant’s vehicle was
introduced.   The applicant contended that the attack happened so quickly he was
unprepared for the aggressive actions of the offender and was in fear of his life.
Furthermore, the applicant related although he had a strained relationship with the
offender throughout the years, they had never engaged in a physical altercation. The
applicant testified that the damage to his vehicle was caused by the offender throwing
him against the vehicle. Mr. Wodzinski revealed that the altercation was terminated
when he “flashed” the offender a box cutter he had in his pocket. He had inadvertently
felt the box cutter in his pocket when he fell to the ground during the altercation and did
not arm himself prior to his meeting with the offender. He concluded his testimony
concerning the altercation by stating he had no reason to believe that he would be
Case No. V2008-31011                       - 4 -                                    ORDER


assaulted if he went to the park to meet the offender, nor could he have foreseen the
offender’s true intentions when they arranged the meeting.
        {6}Upon cross-examination, the applicant conceded he was charged with
disorderly conduct. He also stated he pled no contest to this charge. Whereupon, the
applicant’s testimony was concluded.
        {7}The applicant’s position is that the fight was not foreseeable. At best it was
a mistake in judgment to meet the offender off the employer’s premises. The applicant
contends that his actions on the day of the incident do not constitute contributory
misconduct.   However, applicant acknowledged if the panel is troubled by the no
contest plea to disorderly conduct and the presence of the box cutter, a minimal
reduction may be warranted.
        {8}The Attorney General asserts that the facts in this case support the
conclusion that the applicant engaged in substantial contributory misconduct which
should result in the complete denial of this claim.         Whereupon, the hearing was
concluded.
        {9}R.C. 2743.51(M) states:
        “(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.”
        {10}R.C. 2743.60(F) states:
        “(F) In determining whether to make an award of reparations pursuant to this
        section, the attorney general or panel of commissioners shall consider whether
Case No. V2008-31011                       - 5 -                              ORDER


        there was contributory misconduct by the victim or the claimant. The attorney
        general, a panel of commissioners, or a judge of the court of claims 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.”
        {11}Under Ohio law, when determining if the unlawful or intentionally tortious
conduct of the victim was causally related to the criminally injurious conduct,
foreseeability is a necessary element. In re Ewing (1987), 33 Ohio Misc. 2d 48. For
an award of reparations to be denied, rather than reduced on the basis of contributory
misconduct, there must be a showing that the contributory misconduct was substantial.
In re Spaulding (1991), 63 Ohio Misc. 2d 39. To determine whether the victim engaged
in substantial contributory misconduct the following considerations should be evaluated
based upon the specific facts of the incident:
        {12}1) Age and corresponding mental capacity of the victim;
        {13}2) The victim’s familiarity/relationship with the offender;
        {14}3) The victim’s mens rea;
        {15}4)    Whether the victim suffered from diminished capacity due to
        intoxication or other mitigating factors;
        {16}5) Whether the victim suffered a disproportionate level of harm compared
        to the victim’s level of misconduct;
        {17}6)   Whether the victim’s degree of misconduct was a de minimus or
        substantial violation of the law; and
        {18}7)   Whether granting an award would violate the public policy of the
        Victims of Crime Compensation Act. In re Kempton, V2006-20640tc (4-2-07),
        2007-Ohio-2929.
Case No. V2008-31011                      - 6 -                                 ORDER


        {19}From review of the file and with full and careful consideration given to the
information and testimony presented at the hearing, we find the applicant engaged in
contributory misconduct as defined in R.C. 2743.51(M), thus warranting a minimal
reduction. After review of the statements submitted by the applicant from Pam Pastva,
Felicia Battle, Doug Hampton, Todd Auldridge, and the applicant’s own statements to
his employer and the police, it is clear there was a history of bad feelings between the
applicant and the offender. The applicant testified that he and his fellow employees
had complained to management about Chris Lombardo’s behavior on numerous
occasions. Accordingly, we believe applicant met with Mr. Lombardo in good faith,
though it was foreseeable that the possibility of a physical altercation existed when an
off-premises meeting was arranged by the parties.
        {20}There can be no question concerning the applicant engaging in unlawful
conduct since he pled no contest to the charge of disorderly conduct. Therefore, we
find the applicant engaged in contributory misconduct at the time he was injured.
        {21}The only question that remains is whether the applicant engaged in
substantial contributory misconduct which would result in a complete denial of his claim.
For assistance we are guided by the considerations contained in the Kempton case.
The Attorney General failed to present substantial and persuasive evidence which
contradicted the applicant’s version of events. The applicant and the offender had a
long-term working relationship which for the most part could be characterized as
strained, although no evidence was presented showing any previous violent
confrontation occurred between the parties. The applicant sustained contusions and
abrasions to the face and a left ankle sprain. Chris Lombardo related to police that he
was punched by the applicant and sustained abrasions to his face, but these statements
were not corroborated by any witness statements. Chris Lombardo was approximately
11 years younger, three inches taller and ten pounds heavier than the applicant.
Finally, the applicant admitted “flashing” a box cutter he had in his possession at the
offender to terminate the fight. However, no evidence exits to show the applicant had
Case No. V2008-31011                      - 7 -                                  ORDER


planned to carry the box cutter to the meeting for self protection or that he used the box
cutter to harm Mr. Lombardo. We believe the applicant became aware the box cutter
was in his possession only after he was initially assaulted by the offender. Finally, the
Attorney General presented no testimony which contradicted or called the veracity of
the applicant into question. We find based on the specific facts set forth above the
applicant’s misconduct was not substantial.          However, we further find that the
applicant’s award should be reduced by 10 percent, because while the applicant
maintains he in good faith wanted to meet and reconcile with Mr. Lombardo, it was
somewhat foreseeable an altercation could have occurred, though not to the extent or
direction which actually culminated from their meeting. Therefore, the December 11,
2008 decision of the Attorney General is modified.
        IT IS THEREFORE ORDERED THAT
        {22}1) Applicant’s Exhibit 1 is admitted into evidence;
        {23}2) The December 11, 2008 decision of the Attorney General is MODIFIED
to find that although the applicant engaged in contributory misconduct, it was not
substantial, and that an award should be GRANTED but reduced by 10 percent;
        {24}3)   This claim is remanded to the Attorney General for calculation of
economic loss and payment in accordance with this decision;
        {25}4) 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;
Case No. V2008-31011                                              - 8 -                              ORDER


             {26}5) Costs are assumed by the court of claims victims of crime fund.




                                                                      _______________________________________
                                                                      KARL C. KERSCHNER
                                                                      Presiding Commissioner



                                                                      _______________________________________
                                                                      THOMAS H. BAINBRIDGE
                                                                      Commissioner



                                                                      _______________________________________
                                                                      LLOYD PIERRE-LOUIS
                                                                      Commissioner

ID #I:\Victim Decisions to SC Reporter\Panel Decisions\2010\Jan - Aug 2010\V2008-31011.wpd\DRB-tad
        A copy of the foregoing was personally served upon the Attorney General and
sent by regular mail to Cuyahoga County Prosecuting Attorney and to:
Filed 3-12-10
Jr. Vol. 2275, Pgs. 14-20
Sent to S.C. Reporter 10-6-11
