In re Haverstick

[Cite as In re Haverstick, 2009-Ohio-7218.]
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: DAVID HAVERSTICK
DAVID HAVERSTICK
Applicant
Case No. V2009-40285
Commissioners:
Karl C. Kerschner, Presiding
Thomas H. Bainbridge
Lloyd Pierre-Louis
ORDER OF A THREE-
COMMISSIONER PANEL
{1}On June 27, 2008, the applicant, David Haverstick, filed a compensation
application as the result of being injured while on duty as an Akron Police Officer. The
applicant related that on February 28, 2008, while assisting in the serving of a search
warrant he injured his back (herniated disc L4, L5) running with a battering ram across a
snow-covered courtyard. He asserted he slipped on ice and snow causing him to twist
and stumble and subsequently injure his back. On October 24, 2008, the Attorney
General issued a finding of fact and decision denying the claim because all medical,
work loss, and mileage expenses had been reimbursed from the Bureau of Workers’
Compensation and the Police and Fireman’s Insurance Association, readily available
collateral sources. On October 24, 2008, the applicant submitted a request for
reconsideration. On April 2, 2009, the Attorney General rendered a Final Decision
finding the applicant was not a victim of criminally injurious conduct. On April 13, 2009,
the applicant filed a notice of appeal from the April 2, 2009 Final Decision of the
Attorney General. Hence, a hearing was held before this panel of commissioners on
September 2, 2009 at 9:50 A.M.
Case No. V2009-40285 - 2 - ORDER
Case No. V2009-40285 - 3 - ORDER
{2}The applicant, David Haverstick, and his attorney, Kevin Sanislo, appeared
at the hearing while Assistant Attorneys General Amy O’Grady and Lyndsay Nash
represented the state of Ohio.
{3}The sole issue before this panel of commissioners was whether the applicant
qualified as a victim of criminally injurious conduct pursuant to R.C. 2743.51(C)(1).
{4}Officer David Haverstick was called as a witness. He testified that on
February 28, 2008, he was assisting in serving a narcotics search warrant at a
metropolitan housing unit in the city of Akron. His job assignment was to carry a
battering ram, weighing approximately 65 lbs., to break down the door of the suspected
drug offender’s residence. However, due to the fact that the door of the residence was
unlocked, the battering ram was not used. Officer Haverstick stated he believed he
sustained injury to his back either slipping on the ice while running through the
courtyard or bringing the battering ram back in his attempt to open the door. Officer
Haverstick then described the pain he suffered and his subsequent transportation to the
hospital. Officer Haverstick outlined the medical treatment he received as a result of
his injuries.
{5}Upon cross-examination, Officer Haverstick stated that there was
approximately 6 to 10 inches of snow in the courtyard. This condition caused him to
slip and twist while carrying the battering ram. The suspect was not at the residence at
the time entry was made. The officer had no contact with the suspect. Officer
Haverstick was shown an incident report which stated the cause of the incident was
listed as behavior of employee, weather and ice. The accident type indicated slip, trip,
fall, walking and climbing. Officer Haverstick admitted he filled out the incident report
and signed the document. Whereupon, the cross-examination of the witness was
concluded.
Case No. V2009-40285 - 4 - ORDER
{6}The applicant asserted that the injury occurred while Officer Haverstick was
in the zone of danger. Accordingly, the injury he sustained was the result of criminally
injurious conduct. The Attorney General countered that it was the intervening act of
running through the courtyard which caused his injury and further asserted it was the
accumulation of ice and snow rather than any criminal conduct which caused his injury.
The Attorney General asserts that this panel should look for direction in the holding in In
re Kallay (1997), 91 Ohio Misc. 2d 148. Furthermore, the Attorney General contends
the applicant was not in the zone of danger because he never confronted the suspect.
Whereupon, the hearing was concluded.
{7}R.C. 2743.51(C)(1) in pertinent part states:
“(C) ‘Criminally injurious conduct’ means one of the following:
“(1) For the purposes of any person described in division (A)(1) of this section,
any conduct that occurs or is attempted in this state; poses a substantial threat
of personal injury or death; and is punishable by fine, imprisonment, or death,
or would be so punishable but for the fact that the person engaging in the
conduct lacked capacity to commit the crime under the laws of this state.”
{8}Under an analogous case, a police officer who was securing the back of a
residence in an attempt to serve a warrant for felony rape when he stepped in a hole
and injured his foot was not a victim of criminally injurious conduct . The Kallay court
asserted in its rationale that the officer was not a victim of criminally injurious conduct
because: “[t]he criminally injurious conduct of felony rape was not the proximate cause
of the applicant's injuries; nor was the attempted execution of the arrest warrant. The
injury sustained by the applicant was not the result of any criminally injurious conduct,
any attempt to prevent criminally injurious conduct or as a result of a good faith effort to
apprehend a person engaging in criminally injurious conduct. The injuries sustained by
Case No. V2009-40285 - 5 - ORDER
the applicant were simply the result of an intervening act of the applicant stepping in a
hole and twisting his ankle.” In re Kallay (1997), 91 Ohio Misc. 2d 148, 150.
{9}Similarly, the May court held that an officer who slipped and fell prior to the
execution of a search warrant was not a victim of crime since the slip and fall was a
superseding, intervening cause of his injuries. Furthermore, the Victims of Crime Act
was never intended as a police and firefighters occupational hazard insurance fund or
as a supplement to Workers’ Compensation. In re May, V94-43540tc (2-29-96)
affirmed jud (5-10-96).
{10}From review of the file and with full and careful consideration given to the
testimony presented at the hearing, we find the applicant failed to prove, by a
preponderance of the evidence, that he was a victim of criminally injurious conduct.
The applicant was injured as the result of the superseding, intervening act of slipping on
the snow and ice covered courtyard. He did not confront the suspect and, moreover,
the suspect was not present at the residence. Furthermore, the injury was not
sustained breaking down the door. We find this case is analogous to the prior holdings
in In re Kallay and In re May. It is distinguishable from In re Bassett since there was no
confrontation with the suspect and the door was not opened with the use of the
battering ram. Therefore, the April 2, 2009 decision of the Attorney General is affirmed.
IT IS THEREFORE ORDERED THAT
{11}1) The April 2, 2009 decision of the Attorney General is AFFIRMED;
{12}2) This claim is DENIED and judgment is rendered for the state of Ohio;
Case No. V2009-40285 - 6 - ORDER
{13}3) 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\2009\Nov-Dec 2009\V2009-40285 Haverstick.wpd\DRB-tad
A copy of the foregoing was personally served upon the Attorney General and
sent by regular mail to Summit County Prosecuting Attorney and to:
Filed 11-12-09
Jr. Vol. 2273, Pgs. 183-187
Sent to S.C. Reporter 9-30-11