IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA


IN THE MATTER OF:


Cara Olako-Burt


(CV-02-88)


O R D E R



Sherrilyn Farkas VanTassel, Attorney at Law, for the Claimant.

Robert D. Williams, Assistant Attorney General, for the State of West Virginia.


GRITT, JUDGE:
An application of the claimant, Cara Olako-Burt, for an award under the West Virginia Crime Victims Compensation Act, was filed March 7, 2002. The report of the Claim Investigator, filed August 13, 2002, recommended that no award be granted, to which the claimant filed a response in disagreement. An Order was issued on September 18, 2002, upholding the Investigator's recommendation and denying the claim, in response to which the claimant's request for hearing was filed October 10, 2002. This matter came on for hearing September 16, 2004, the claimant appearing in person and by counsel, Sherrilyn Farkas VanTassel, and the State of West Virginia by counsel, Robert D. Williams, Assistant Attorney General.
On November 24, 2001, the 23-year-old claimant was the victim of criminally injurious conduct in Wheeling, Ohio County. The claimant was standing outside a bar when the alleged offender, Veronica Pitts approached, grabbed her hair, and began punching her in the face.
As a result of the attack, the claimant suffered traumatic ear avulsion and multiple contusions and abrasions. Her unreimbursed expenses totaled $7,647.32.
This Court's initial denial of an award was based on the Claim Investigator's finding that the claimant was not an innocent victim of crime. W.Va. Code §14-2A-3(l) states: " 'Contributory misconduct' means any conduct of the claimant ... 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 causal relationship to the criminally injurious conduct that is the basis of the claim and shall also include the voluntary intoxication of the claimant, either by the consumption of alcohol or the use of any controlled substance when the intoxication has a causal connection or relationship to the injury sustained."
The claimant testified at the hearing of this matter that on the evening in question, she had left work around midnight. She drove to the Coconut Bar, where she saw a couple of friends' cars so she decided to stop and see them. Ms. Olako-Burt testified that she went in the bar to see her friends, have a couple of drinks, and then catch a ride home. She arrived at the bar sometime between 12:30 a.m. and 1:00 a.m. When she got to the bar she did not find her friends, but instead met John Jackson, a cousin of her husband. The two sat and talked about her marriage until between 2:30 a.m. and 2:40 a.m. During their talk, Ms. Olako-Burt testified that she had probably two beers and one shot of liquor. Sometime after 2:30 a.m., Mr. Jackson walked outside the bar to finish his beer. Ms. Olako- Burt followed him to finish their conversation. While outside, Mr. Jackson became engaged in an argument with a blonde female whom the claimant did not know. The woman then started screaming at Ms. Olako-Burt. The claimant stated that she said, "Look, I don't even know you. I don't know what your problem is. I have nothing to do with this." She started to walk away when another woman, Veronica Pitts, walked up to the claimant and said, "If you have a problem with her then you have a problem with me." Ms. Pitts then grabbed the claimant by her ponytail and started hitting her. Ms. Olako-Burt fell to the ground and Ms.Pitts kept hitting her. The police arrived shortly thereafter and had to pull Ms. Pitts off of the claimant. The claimant had blood down the front of her. An ambulance arrived to take Ms. Olako-Burt to the hospital. It was at this point that she was made aware of the fact that part of her ear had been bitten off, as someone came over to the ambulance stating that they had found it (the part of her ear that had been bitten off). She was taken to the emergency room where she had surgery on her ear.
In the police report there was an eyewitness who claimed that Ms. Olako-Burt was the aggressor. The witness stated that Ms. Pitts was getting into a car when the claimant grabbed her and struck her in the head. The claimant testified that the first time she saw Ms. Pitts was when she was approached by the alleged offender. Ms. Olako-Burt further testified that she did not have a chance to get away from Ms. Pitts before the fight ensued. She tried to get away from the fight but was grabbed by the hair.
The Claim Investigator's original finding was that the claimant was guilty of contributory misconduct within the meaning of the statute. The original Order upheld the Claim Investigator's finding, disallowing the claim. Thus it became the claimant's burden to prove by a preponderance of the evidence that she was not guilty of contributory misconduct. The claimant testified that she had been drinking while at the bar, but that she only had two beers and one shot of liquor. Ms. Olako- Burt further testified that she did not know either the first woman who started yelling at her or the alleged offender, Ms. Pitts, who approached and attacked her. She testified that she was approached by Ms. Pitts, who then grabbed her by the hair and struck her in the face. In the light of the evidence put forth by the claimant, the Court is of the opinion that the claimant has met her burden of proof. The evidence adduced at the hearing of the matter establishes that while the claimant had been drinking, she was not guilty of contributory misconduct.
The Court is constrained by the evidence to reverse its previous ruling and find that the claimant was not guilty of contributory misconduct. The Court hereby grants an award in the amount of $6,195.93 for the claimant's unreimbursed allowable expenses as set forth in the Claim Investigator's memorandum of January 21, 2005. Should the claimant later submit documentation of additional unreimbursed allowable expenses relating to this incident, they will be reviewed by the Court at that time.




ENTER: _____________________________________________



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JUDGE