[Cite as In re Wodzinski, 2010-Ohio-6709.]

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: TIMOTHY H. WODZINSKI 

TIMOTHY H. WODZINSKI 

 Applicant 

 

 Case No. V2008-31011 

Commissioners: 

Karl C. Kerschner, Presiding 

Thomas H. Bainbridge 

Lloyd Pierre-Louis 

COMMISSIONER PANEL ORDER OF A THREE-

 {1}On June 10, 2008, the applicant, Timothy Wodzinski, filed a compensation 

application as the result of an altercation which took place on April 22, 2008. On July 

21, 2008, the Attorney General issued a finding of fact and decision denying the 

applicant’s claim since the applicant engaged in substantial contributory misconduct. 

The Attorney General contended that the applicant voluntarily engaged in a physical 

altercation which resulted in applicant’s conviction of disorderly conduct. On October 

1, 2008, the applicant submitted a request for reconsideration. On December 11, 

2008, the Attorney General issued a Final Decision finding no reason to modify its initial 

decision. On December 18, 2008, the applicant filed a notice of appeal from the 

December 11, 2008 Final Decision of the Attorney General. Thereafter, a hearing was 

held before this panel of commissioners on December 2, 2009 at 10:40 A.M. 

 {2}The applicant, Timothy Wodzinski, and his attorney, Michael Falleur, 

appeared at the hearing. Assistant Attorney General Lyndsay Nash represented the 

state of Ohio. 
Case No. V2008-31011 - 2 - ORDER

 {3}The only issue on appeal in this matter is whether the applicant engaged in 

contributory misconduct at the time of the criminally injurious conduct and, if so, whether 

it was substantial enough to bar him from receiving an award of reparations. 
Case No. V2008-31011 - 3 - ORDER

 {4}Following opening statements, the applicant, Timothy Wodzinski, took the 

witness stand. The applicant related his work experience with McMaster-Carr. He 

indicated he worked with the offender Chris Lombardo from the beginning of his tenure 

with McMaster-Carr. Approximately four to five years ago they were assigned to the 

Returns Department. Mr. Wodzinski stated he complained about Mr. Lombardo’s 

behavior on the job numerous times over the course of their employment together. 

After review of personnel records, the witness realized that other employees were 

experiencing similar difficulties with Chris Lombardo. The applicant’s attention was 

then directed to April 22, the day of the incident. 

 {5}Mr. Wodzinski related that the offender approached him during the morning 

break and indicated they needed to talk. However, the offender wanted to have a 

conversation off the premises. They agreed to meet after work at Sunny Lake Park. 

The applicant believed this would be an opportunity to resolve past differences. He 

took the offender at his word. The applicant testified that as he drove into the park, and 

before his vehicle had come to a complete stop, the offender reached through his car 

window and attacked him. The applicant was surprised by the attack which he claimed 

he had not foreseen. Applicant’s Exhibit 1, a photo of the applicant’s vehicle was 

introduced. The applicant contended that the attack happened so quickly he was 

unprepared for the aggressive actions of the offender and was in fear of his life. 

Furthermore, the applicant related although he had a strained relationship with the 

offender throughout the years, they had never engaged in a physical altercation. The 

applicant testified that the damage to his vehicle was caused by the offender throwing 

him against the vehicle. Mr. Wodzinski revealed that the altercation was terminated 

when he “flashed” the offender a box cutter he had in his pocket. He had inadvertently 

felt the box cutter in his pocket when he fell to the ground during the altercation and did 

not arm himself prior to his meeting with the offender. He concluded his testimony 

concerning the altercation by stating he had no reason to believe that he would be 
Case No. V2008-31011 - 4 - ORDER

assaulted if he went to the park to meet the offender, nor could he have foreseen the 

offender’s true intentions when they arranged the meeting. 

 {6}Upon cross-examination, the applicant conceded he was charged with 

disorderly conduct. He also stated he pled no contest to this charge. Whereupon, the 

applicant’s testimony was concluded. 

 {7}The applicant’s position is that the fight was not foreseeable. At best it was 

a mistake in judgment to meet the offender off the employer’s premises. The applicant 

contends that his actions on the day of the incident do not constitute contributory 

misconduct. However, applicant acknowledged if the panel is troubled by the no 

contest plea to disorderly conduct and the presence of the box cutter, a minimal 

reduction may be warranted. 

 {8}The Attorney General asserts that the facts in this case support the 

conclusion that the applicant engaged in substantial contributory misconduct which 

should result in the complete denial of this claim. Whereupon, the hearing was 

concluded. 

 {9}R.C. 2743.51(M) states: 

“(M) ‘Contributory misconduct’ means any conduct of the claimant or of the 

victim through whom the claimant claims an award of reparations 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 a causal 

relationship to the criminally injurious conduct that is the basis of the claim.” 

 {10}R.C. 2743.60(F) states: 

“(F) In determining whether to make an award of reparations pursuant to this 

section, the attorney general or panel of commissioners shall consider whether 
Case No. V2008-31011 - 5 - ORDER

there was contributory misconduct by the victim or the claimant. The attorney 

general, a panel of commissioners, or a judge of the court of claims shall 

reduce an award of reparations or deny a claim for an award of reparations to 

the extent it is determined to be reasonable because of the contributory 

misconduct of the claimant or the victim.” 

 {11}Under Ohio law, when determining if the unlawful or intentionally tortious 

conduct of the victim was causally related to the criminally injurious conduct, 

foreseeability is a necessary element. In re Ewing (1987), 33 Ohio Misc. 2d 48. For 

an award of reparations to be denied, rather than reduced on the basis of contributory 

misconduct, there must be a showing that the contributory misconduct was substantial. 

In re Spaulding (1991), 63 Ohio Misc. 2d 39. To determine whether the victim engaged 

in substantial contributory misconduct the following considerations should be evaluated 

based upon the specific facts of the incident: 

 {12}1) Age and corresponding mental capacity of the victim; 

 {13}2) The victim’s familiarity/relationship with the offender; 

 {14}3) The victim’s mens rea; 

{15}4) Whether the victim suffered from diminished capacity due to 

intoxication or other mitigating factors; 

{16}5) Whether the victim suffered a disproportionate level of harm compared 

to the victim’s level of misconduct; 

{17}6) Whether the victim’s degree of misconduct was a de minimus or 

substantial violation of the law; and 

{18}7) Whether granting an award would violate the public policy of the 

Victims of Crime Compensation Act. In re Kempton, V2006-20640tc (4-2-07), 

2007-Ohio-2929. 
Case No. V2008-31011 - 6 - ORDER

 {19}From review of the file and with full and careful consideration given to the 

information and testimony presented at the hearing, we find the applicant engaged in 

contributory misconduct as defined in R.C. 2743.51(M), thus warranting a minimal 

reduction. After review of the statements submitted by the applicant from Pam Pastva, 

Felicia Battle, Doug Hampton, Todd Auldridge, and the applicant’s own statements to 

his employer and the police, it is clear there was a history of bad feelings between the 

applicant and the offender. The applicant testified that he and his fellow employees 

had complained to management about Chris Lombardo’s behavior on numerous 

occasions. Accordingly, we believe applicant met with Mr. Lombardo in good faith, 

though it was foreseeable that the possibility of a physical altercation existed when an 

off-premises meeting was arranged by the parties. 

 {20}There can be no question concerning the applicant engaging in unlawful 

conduct since he pled no contest to the charge of disorderly conduct. Therefore, we 

find the applicant engaged in contributory misconduct at the time he was injured. 

 {21}The only question that remains is whether the applicant engaged in 

substantial contributory misconduct which would result in a complete denial of his claim. 

For assistance we are guided by the considerations contained in the Kempton case. 

The Attorney General failed to present substantial and persuasive evidence which 

contradicted the applicant’s version of events. The applicant and the offender had a 

long-term working relationship which for the most part could be characterized as 

strained, although no evidence was presented showing any previous violent 

confrontation occurred between the parties. The applicant sustained contusions and 

abrasions to the face and a left ankle sprain. Chris Lombardo related to police that he 

was punched by the applicant and sustained abrasions to his face, but these statements 

were not corroborated by any witness statements. Chris Lombardo was approximately 

11 years younger, three inches taller and ten pounds heavier than the applicant. 

Finally, the applicant admitted “flashing” a box cutter he had in his possession at the 

offender to terminate the fight. However, no evidence exits to show the applicant had 
Case No. V2008-31011 - 7 - ORDER

planned to carry the box cutter to the meeting for self protection or that he used the box 

cutter to harm Mr. Lombardo. We believe the applicant became aware the box cutter 

was in his possession only after he was initially assaulted by the offender. Finally, the 

Attorney General presented no testimony which contradicted or called the veracity of 

the applicant into question. We find based on the specific facts set forth above the 

applicant’s misconduct was not substantial. However, we further find that the 

applicant’s award should be reduced by 10 percent, because while the applicant 

maintains he in good faith wanted to meet and reconcile with Mr. Lombardo, it was 

somewhat foreseeable an altercation could have occurred, though not to the extent or 

direction which actually culminated from their meeting. Therefore, the December 11, 

2008 decision of the Attorney General is modified. 

 IT IS THEREFORE ORDERED THAT 

 {22}1) Applicant’s Exhibit 1 is admitted into evidence; 

 {23}2) The December 11, 2008 decision of the Attorney General is MODIFIED 

to find that although the applicant engaged in contributory misconduct, it was not 

substantial, and that an award should be GRANTED but reduced by 10 percent; 

 {24}3) This claim is remanded to the Attorney General for calculation of 

economic loss and payment in accordance with this decision; 

 {25}4) This order is entered without prejudice to the applicant’s right to file a 

supplemental compensation application, within five years of this order, pursuant to R.C. 

2743.68; 
Case No. V2008-31011 - 8 - ORDER

 {26}5) 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\2010\Jan - Aug 2010\V2008-31011.wpd\DRB-tad 

 A copy of the foregoing was personally served upon the Attorney General and 

sent by regular mail to Cuyahoga County Prosecuting Attorney and to: 

Filed 3-12-10 

Jr. Vol. 2275, Pgs. 14-20 

Sent to S.C. Reporter 10-6-11