IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA


IN THE MATTER OF:


James Allen Runyan


(CV-03-310)


O R D E R



Claimant appeared in person.

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


GRITT, JUDGE:
An application of the claimant, James Allen Runyan, for an award under the West Virginia Crime Victims Compensation Act, was filed June 23, 2003. The report of the Claim Investigator, filed November 3, 2003, recommended that no award be granted, to which the claimant filed a response in disagreement. An Order was issued on December 23, 2003, upholding the Investigator's recommendation and denying the claim, in response to which the claimant's request for hearing was filed January 5, 2004. This matter came on for hearing September 16, 2004, the claimant appearing in person, and the State of West Virginia by counsel, Robert D. Williams, Assistant Attorney General.
On February 2, 2003, the 43-year-old claimant was the victim of criminally injurious conduct in Marshall County. The claimant was at a bar when he was assaulted by the alleged offender, Roger Garrison.
As a result of the attack, the claimant suffered a head injury. His unreimbursed expenses totaled nearly $50,000.00.
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, he had been taking care of his horse when he decided to drive to the gas station and fill his wife's vehicle with gas and pick up a pack of cigarettes. Mr. Runyan then stopped at a bar, Nick's Lounge, which he had frequented on many occasions. He stated that he probably got to the bar around 9:30 p.m. or a little earlier. He was sitting in the bar and had just finished his first beer when a group of three men entered. Mr. Runyan ordered another beer and the three men asked him if he wanted to play a game of pool. He joined them and after the game they went back downstairs to the bar. One of the men, alleged offender Roger Garrison, began cursing and threatening the barmaid. Mr. Runyan stated that he asked the man to leave the barmaid alone about three or four times. Mr. Runyan testified that Mr. Garrison then shoved him. He grabbed Mr. Garrison's shirt, at which point Mr. Garrison struck the victim over the head with a beer mug. Mr. Runyan fell to the floor where the two other men who had come into the bar with Mr. Garrison began kicking him in the head and back. Mr. Runyan then heard the barmaid tell the men to leave and heard them say that they were going to take him outside to "finish me off." On several occasions, the claimant pleaded with the barmaid to call the paramedics, but she refused. Mr. Runyan then crawled to a telephone but was told to use the pay-telephone. He then crawled to the pay-telephone and dialed 911. Mr. Runyan stated that he then must have passed out, because the next thing he knew the paramedics were there and waking him up. Mr. Runyan stated that he could not see for a day because of his injuries.
According to the police report, the claimant had been talking with the alleged offender and the other men who had accompanied him. Witness statements indicated that the claimant was bothering the individuals and was asked to move. In a statement taken by police at the scene, Bucky Thompson revealed that the claimant had started the fight by grabbing the alleged offender around the neck and shoving him. Witness statements also indicated that Mr. Runyan was intoxicated, having had six beers and one shot of liquor.
Mr. Runyan testified that at no point was he asked to move or asked to leave the bar. The claimant further testified that at no point did he grab Mr. Garrison or shove him. He also stated that during the time he was at the bar, he had about three beers over the course of a half hour or forty-five minutes, but nothing else to drink. He stated that he had only been asking the man to leave the bar- maid alone and had not started the altercation.
Delores Runyan, the claimant's wife, testified that on the date of the incident her husband had been taking care of their horse when he decided to drive and fill up the gas tank of her vehicle. He told her that he would be back shortly. She stated that she did not know what had happened to him until the sheriff's office called to tell her that he was at the hospital. Mrs. Runyan testified that her husband is only a social drinker and that he cannot drink much because of the medications he was taking for a previous injury.
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 he was not guilty of contributory misconduct. It is the Court's opinion that the claimant did not meet this burden. First, his blood alcohol level several hours after the altercation was .15%. The claimant stated on several occasions that he had only three beers while he was at the bar, but his blood alcohol content several hours after he stopped drinking indicates otherwise. Secondly, the claimant presented no eyewitness testimony to rebut the police report nor to rebut eyewitness accounts indicating that he had started the fight.
The Court is constrained by the evidence to stand by its previous ruling; therefore, this claim must be, and is hereby, denied.




ENTER: _____________________________________________



_____________________________________________
JUDGE