IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA


IN THE MATTER OF:


In re application of:

Anthony Zurzolo, Jr.


(CV-00-247)


O R D E R



Claimant appeared in person.

Joy M. Bolling, Assistant Attorney General, for the State of West Virginia.


WEBB, JUDGE:
An application of the claimant, Anthony Zurzolo, Jr., for an award under the West Virginia Crime Victims Compensation Act, was filed July 3, 2000. The report of the Claim Investigator, filed March 12, 2001, recommended that no award be granted, to which the claimant filed a response in disagreement. An Order was issued on April 16, 2001, upholding the Investigator's recommendation and denying the claim, in response to which the claimant's request for hearing was filed November 26, 2002. This matter came on for hearing September 30, 2003, claimant appearing pro se and the State of West Virginia by counsel, Joy M. Bolling, Assistant Attorney General.
The Claimant, age 47, alleges that he was the victim of criminally injurious conduct on August 5, 1998, in Nutter Fort, Harrison County. The claimant and two co-workers were painting a building near the Go-Mart in Nutter Fort, when he and a coworker were allegedly assaulted by David Shell.
The claimant testified at the hearing of this matter that he and a friend named Jim owned a small painting company which they and another friend, Delbert, operated. They performed mostly small local painting jobs. The claimant testified that at approximately 4:00 p.m. on August 5, 1998, he and his two coworkers were finishing painting the outside of a building when they decided to take a break and get something to drink at the Go-Mart next door. (Transcript, page 19.) According to the claimant, one of his coworkers accidentally stepped on some wet painted lines as they walked across the Go-Mart parking lot. (Transcript, page 20.) The claimant testified that neither he nor his coworkers was aware that one of them had stepped in wet paint. (Transcript, page 20.) Approximately five minutes later, the alleged offender, David Shell, approached them while they were working and pulled on Jim's leg while he was standing on a ladder. The alleged offender started screaming at them for walking across the parking lot and messing up his paint job. (Transcript, page 20.) The claimant began screaming back at the alleged offender when suddenly, Jim fell off the seven to eight -foot ladder. (Transcript, page 20.) Jim injured his arm in the fall. (Transcript, page 20.) At just about the same time, the claimant lost his balance and fell off the "step ladder" which he was standing on while painting. (Transcript, page 20.) The claimant then stood up and continued to scream at the alleged offender, stating that he was going to go get the police and that he (the offender) had better leave the premises. (Transcript, page 28.) According to the claimant, the alleged offender was not coming towards him, but was starting to back away, when the alleged offender's wife yelled, "We're gonna (sic) kill you SOB's." (Transcript, page 21.) After the threat, the claimant allegedly told his two coworkers to go inside the office building where they were working. (Transcript, page 21.) The claimant then got into his vehicle and drove around the block to the Nutter Fort City Police Station, where he saw Lieutenant David Marple, who was on his way to the GO-Mart in response to an emergency call regarding this incident by a Go-Mart employee. (Transcript, page 21.) The claimant testified that he attempted to file a complaint against the alleged offender but no police department would cooperate in doing so. (Transcript, pages 18-19.) The claimant further stated that both Lieutenant Marple and the Chief of Police for Nutter Fort told him that it was "just an assault." (Transcript, page 24.) However, the claimant also admitted that at no time did the alleged offender place his hands on him. (Transcript, page 38.) On cross-examination, the claimant admitted that he got distracted by the alleged attack upon his friend Jim, and that as he was coming down from the ladder he fell and aggravated a preexisting back injury. (Transcript, page 38.) He stated that he received the original back injury while working at his last place of employment. (Transcript, page 20. ) The claimant alleges that he suffered a year's worth of lost wages because of the aggravation of this injury. (Transcript, page 29.) He also testified that he and his coworkers could no longer paint as a result of this incident. (Transcript, page 23.) However, the claimant did not present any medical bills incurred as a result of this incident. He testified that Worker's Compensation paid for the medical expenses because he aggravated a preexisting injury that was already covered by Worker's Compensation. (Transcript, page 25.) According to the claimant, he received medical treatment from Dr. Morton, who had been treating him for the preexisting injury to his back. He stated that Dr. Morton continued treating the same injury that was already covered by the Worker's Compensation Fund. (Transcript, page 39.) In addition, claimant did not produce any tax returns to demonstrate his asserted lost wages. (Transcript, page 41.)
Lieutenant David Marple of the Nutter Fort Police Department in Harrison County testified that he received a telephone call from David Heck, the clerk at the Go-Mart on Buckhannon Pike where this incident occurred. Mr. Heck informed Lieutenant Marple that someone was harassing the painter whom Go-Mart had contracted to paint its parking lots. (Transcript, page 7.) The contracted painter was the alleged offender, David Shell. (Transcript, page 7.) According to Lieutenant Marple, as soon as he walked out the door to go to the scene, the claimant drove up in his vehicle and began to tell him what had happened. (Transcript, page 7.) Lieutenant Marple informed him that he had just received a telephone call regarding the incident and was on his way to the scene. (Transcript, page 7.) He advised the claimant to follow him. (Transcript, page 7.) Upon arriving at the scene, Lieutenant Marple spoke to the clerk who had made the phone call. (Transcript, page 7.) Based upon his observations, Lieutenant Marple thought that the victim of the incident was David Schell, who is the alleged offender. (Transcript, page 8.) According to Lieutenant Marple, Mr. Schell did not wish to file a complaint. All he wanted was for the claimant and his crew to leave him alone so that he could finish his job. (Transcript, page 8.) Lieutenant Marple testified that he was never informed that the claimant was attacked or assaulted by another individual. (Transcript, page 13.) He also testified that to the best of his knowledge, no violent crimes had occurred. (Transcript, page 13.) He stated that at most, there may have been some "harassment," but nothing more. (Transcript, page 14.) Lieutenant Marple was of the opinion that he may have prevented the situation from escalating into a violent altercation. (Transcript, page 14.) He stated that the claimant did not file any type of criminal complaint as a result of this incident. (Transcript, page 14.) Further, Lieutenant Marple testified that the claimant did not indicate to him that he was personally injured during the incident.
W.Va. Code §14-2A-3(c) states, in part, that "Criminally injurious conduct means conduct that occurs or is attempted in this state or in any state not having a victim compensation program which by its nature poses a substantial threat of personal injury or death, and is punishable by fine or imprisonment or death..."
In prior situations, the Court has denied claims based on the vague nature of the asserted criminally injurious conduct where it was impossible to determine the innocence of the victim, or the existence of contributory misconduct on the part of the claimant. In re Keller, CV-88-23 (1989), In re Smith, CV-89-10 (1983); In re Haines, CV-82-37 (1983), In re Black, CV-86-10 (1986).
In the present case, the Claim Investigator's original finding was that the claimant failed to timely respond to the requests of the Claim Investigator. In addition, there was no police report upon which the Claim Investigator could base a recommendation. The claimant did eventually respond and send some information needed by the Claim Investigator. Thus, this hearing was held to determine whether or not the claimant was the victim of criminally injurious conduct. It is the claimant's burden to prove by a preponderance of the evidence that he was the victim of "criminally injurious conduct." The Court is of the opinion that the claimant did not meet this burden. He did not produce any evidence at the hearing that there was any conduct or attempted conduct that, by its nature, posed a substantial threat of personal injury or death. The evidence established that the claimant simply fell from a stepladder while arguing with the alleged offender. There is no evidence of an assault, battery, or any conduct or attempted conduct on the part of the alleged offender that posed a substantial threat of personal injury or death to the claimant. The claimant presented conflicting testimony as to the nature of this incident and admitted that he yelled at the alleged offender while he was on the step- ladder. It was just after he yelled at the alleged offender that he fell and allegedly aggravated his back injury. In addition, the claimant testified that at one point the alleged offender was "backing off" as the claimant was screaming at him. The evidence presented in this claim indicates that the claimant was not the victim of criminally injurious conduct, which bars him from any award. Even if the claimant could establish that he was the victim of criminally injurious conduct, he has no damages for which he could recover from the Crime Victims Compensation Fund, because he did not produce a scintilla of evidence that he suffered any lost wages as a result of this incident, and all of his medical bills were covered by a collateral source.
The Court is constrained by the evidence to stand by its previous ruling; therefore, this claim must be, and is hereby, denied.

ENTER: _____________________________________________
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JUDGE