Before The State Of Wisconsin DIVISION OF HEARINGS AND APPEALS FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

Transcription

1 Before The State Of Wisconsin DIVISION OF HEARINGS AND APPEALS In the Matter of the Crime Victim Compensation Application of GP Case No. CV FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER On February 12, 2001, GP filed an application for crime victim compensation with the Wisconsin Department of Justice for losses related to injuries received on January 22, 2001, in Stevens Point, Wisconsin. The Department of Justice, Office of Crime Victim Services, denied the claim for said award as outlined in a letter sent to GP on April 4, A request to hold a formal hearing in regard to this matter was received by the Office of Crime Victim Services from GP on April 13, On June 17, 2002, the Department of Justice forwarded the file to the Division of Hearings and Appeals for hearing. Pursuant to due notice hearing was held at Stevens Point, Wisconsin, on August 20, 2002, Jeffrey D. Boldt, administrative law judge (the ALJ) presiding. In accordance with Wis. Stat and (1)(c), the PARTIES to this proceeding are certified as follows: GP, by Attorney Louis J. Molepske 1525 Church Street Stevens Point, WI Department of Justice Office of Crime Victim Services, by Robert M. Hunter, Assistant Attorney General David Friebus, Law Clerk P. O. Box 7857 Madison, WI

2 Page 2 FINDINGS OF FACT 1. On February 12, 2001, GP (the Claimant) filed an application for crime victim compensation with the Department of Justice, Office of Crime Victim Services (DOJ-OCVS), for losses related to injuries received on January 22, 2001, in Stevens Point, Wisconsin The DOJ-OCVS denied the claim as outlined in a letter sent to GP on April 4, 3. On January 22, 2001, GP was travelling north on County Highway J on his bicycle. The Claimant was struck by an unknown vehicle and sent sprawling into a snow bank on the side of the road. The vehicle did not stop to render any aid to the Claimant. He was transported by ambulance and taken to St. Michael s Hospital. 4. As a direct result of the incident, the Claimant sustained a left tibia fracture, a right clavicle fracture, and a right scapular fracture. He had a surgery to repair the fractures, and this included the placement of pins and plates. 5. The parties stipulated on the record that, if a compensable crime occurred, the claimant had incurred compensable damages totaling $26,863.53, representing $20, in medical bills and $5, in lost wages. 6. Dr. James Banovetz presented unrebutted medical evidence that the claimant had suffered permanent injures as a result of the accident. First, his leg has not aligned perfectly and this has resulted in a limp which is likely to be permanent. Second, the claimant has numerous permanent scars, including a six-inch long scar on his knee. The claimant testified that his leg swells up at work, and that this makes it painful for him to stand for long periods of time. Based upon the testimony of Dr. Banovetz and the claimant, it is clear that he suffered great bodily harm as a direct result of the car/bike accident. Further, Dr. Banovetz opined that immediately after the accident GP was at great risk for losing his leg as a result of his injuries. 7. Little is known as to how the accident occurredgp looked back at the intersection of County Highway J and HH. He continued northbound on J. The next thing he remembers was moaning and finding himself seriously injured just off the road. (See: Ex. 11) There were no skid marks at the scene. There was no testimony relating to any attempt to reconstruct the accident and/or its cause. On this record, there is no showing of criminal negligence other than the failure to report the accident. DISCUSSION The claimant was clearly the victim of a crime, hit and run. (Wis. Stat (1)) However, both parties agree that this does not constitute a compensable crime because the claimant was operating his bicycle at the time of the hit and run and was thus not a pedestrian.

3 Page 3 (See Wis. Stat (1)(c)) Instead, the claimant argues that the compensable crime was Wis. Stat (4), relating to reckless driving. The claimant has proven he suffered great bodily harm. Dr. Banovetz provided unrebutted expert testimony that GP suffered a permanent injury to his leg. The only question is whether the claimant has shown criminal negligence within the meaning of the statute. Criminal negligence is defined as ordinary negligence to a high degree, consisting of conduct that the actor should realize creates a substantial and unreasonable risk of great bodily harm to another. Wis. Stat (2) With respect to the action of leaving the injured claimant in a ditch by the side of the road the hit and run aspects of the incident there is no question that this is the case. Hitting a bicyclist and then leaving the injured person in a snow bank in zero degree weather involves an action which the perpetrator must realize creates a substantial and unreasonable risk of bodily harm to another. This risk was clear in the testimony of Dr. Banovetz, who opined that GP might have lost his leg if his leg had not been treated when it was. However, this is not a hit and run claim because the claimant was riding a bike and thus not a pedestrian under Wisconsin law. (See: (4)) The claimant must show that the reckless driving of the perpetrator was the result of criminal negligence. The record does not provide much help with respect to the actions of the driver that struck GP. GP looked back and saw three cars at the intersection of County Highways J and HH. After that, the last thing the claimant remembers was moaning after he and his bicycle had been hit. As Deputy Sorensen reported, GP could not provide any information about either the vehicle or driver that struck him. Further, there was no evidence, like skid marks or vehicle parts left at the scene to indicate what type of vehicle struck him. (Ex. 9) There is also no evidence as to why the vehicle struck him. Unfortunately for GP, this means that he has not carried his burden of proof or the issue of criminal negligence. To his credit, GP did not make any effort to distort or spin the cause of the accident. It is an unknown. We don t know if the driver had a seizure or equipment failure, or if the driver willfully hit the claimant. Under these circumstances, it would be a distortion of the record for the Division to find criminal negligence. The legislature has seen fit to exclude victims of hit and run accidents other than pedestrians from the reach of the compensation scheme. If this distinction seems unfair to law abiding, bike-riding victims such as GP, it strikes the ALJ that way, too. However, it is up to the legislature to create the law and for state agencies to fairly apply it. With regret, I conclude that the claimant has not carried his burden of proof on the issue of causation and criminal negligence. Accordingly, the decision of the OCVS to deny the claim is affirmed.

4 Page 4 CONCLUSIONS OF LAW 1. The Division of Hearings and Appeals has the authority to hear contested cases and issue necessary orders involving awards for the victims of crimes pursuant to Wis. Stat (2) and In order for the Office of Crime Victim Services to make a payment to an innocent victim of a crime, the crime must be one specified in Wis. Stat (1)(b). Wisconsin Stat (4) is a compensable crime under the Act. 3. No person may cause great bodily harm to another by the negligent operation of a vehicle. Wis. Stat (4) For purposes of this section negligence has the meaning designated in Wis. Stat (2). 4. Great bodily harm means bodily injury which creates a disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury. Wis. Stat (14) The claimant suffered great bodily harm as a result of the incident on January 22, Criminal negligence, as defined, by Wis. Stat (2) requires a showing of ordinary negligence to a high degree, consisting of conduct that the actor should realize creates a substantial and unreasonable risk of great bodily harm to another. There was no showing of criminal negligence other than the hit and run. ORDER WHEREFORE IT IS HEREBY ORDERED, that the crime victim compensation claim of GP be denied, and the petition for review dismissed. Dated at Madison, Wisconsin on August 26, STATE OF WISCONSIN DIVISION OF HEARINGS AND APPEALS 5005 University Avenue, Suite 201 Madison, Wisconsin Telephone: (608) FAX: (608) By JEFFREY D. BOLDT ADMINISTRATIVE LAW JUDGE

5 Page 5 NOTICE Set out below is a list of alternative methods available to persons who may desire to obtain review of the attached decision of the Administrative Law Judge. This notice is provided to insure compliance with Wis. Stat and sets out the rights of any party to this proceeding to petition for rehearing and administrative or judicial review of an adverse decision. 1. Any party to this proceeding adversely affected by the decision attached hereto has the right within ten (10) days after entry of the decision, to submit a written petition for review by the Attorney General. The petition shall specify in detail the grounds for review and the relief being sought. The petition for review must be served either personally or by registered or certified mail upon the Attorney General and upon all other parties to the action. A petition for review under this section is not a prerequisite for judicial review under Wis. Stat and Any person aggrieved by the attached order may within twenty (20) days after service of such order or decision file with the Department of Justice a written petition for rehearing pursuant to Wis. Stat The petition shall specify in detail the grounds for the relief sought and supporting authorities. Rehearing may only be granted for those reasons set out in Wis. Stat (3). A petition under this section is not a prerequisite for judicial review under Wis. Stat and Any person aggrieved by the attached decision which adversely affects the substantial interests of such person by action or inaction, affirmative or negative in form is entitled to judicial review by filing a petition therefor in accordance with the provisions of Wis. Stat and Said petition must be served and filed within thirty (30) days after service of the agency decision sought to be reviewed. If a rehearing is requested as noted in paragraph (2) above, any party seeking judicial review shall serve and file a petition for review within (30) days after service of the order disposing of the rehearing application or within thirty (30) days after final disposition by operation of law of the application for rehearing. Since the decision of the Administrative Law Judge in the attached order is by law a decision of the Department of Justice, any petition for judicial review shall name the Department of Justice as the respondent. Persons desiring to file for judicial review are advised to closely examine all provisions of Wis. Stat and to insure strict compliance with all its requirements.