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Fisher v. Kansas Crime Victims Compensation Board12/9/2005
Reversed.
Greg and Linda Fisher filed a claim for the death of their son Jeremy before the Kansas Crime Victims Compensation Board. Twenty-five percent of the allowed compensation was withheld by the Board based upon "the contributory misconduct" of Jeremy. See K.S.A. 2004 Supp. 74-7305(c)(2). The district court affirmed the Board's determination. The question, one of first impression in this state, is whether Jeremy's conduct on the morning of the accident contributed to his death under the provisions of K.S.A. 2004 Supp. 74-7305(c)(2) and K.A.R. 20-2-8. We hold that his conduct did not contribute to his death, reverse the district court, and remand with directions.
Fifteen-year-old Jeremy Fisher collided with an automobile in his own lane of traffic at approximately 8 a.m. on December 7, 2002. Donny Taylor was driving the other automobile and also died as a result of the collision. Although there were no eyewitnesses, officers were able to determine that the vehicle driven by Taylor in the northbound lane of U.S. Highway 281 crossed the center line into the southbound lane and struck Jeremy's vehicle head-on. Blood samples taken at the scene revealed that Taylor had a blood alcohol concentration (BAC) of .15 grams per 100 milliliters of blood (which exceeds the legal limit) and Jeremy had a BAC of .05 grams per 100 milliliters of blood (which exceeds the .02 legal limit for a person under the age of 21). Further investigation revealed that Taylor had been drinking heavily the night before and that Jeremy had been out with friends the previous night until 12:30 a.m.
On September 25, 2003, Jeremy's parents, Greg and Linda Fisher, filed an application for crime victims compensation in the amount of $5,000 for funeral expenses. After reviewing the claim at its regular meeting on January 16, 2004, the Board initially denied the claim, finding that the victim's action leading up to the incident was a factor that contributed to his injuries in its January 21, 2004, summary proceeding order: "The claimant or victim was involved in 'contributory misconduct' with regard to the incident which gave rise to the claim, as provided in K.S.A. 2001 Supp. 74-7305(c)(2), and K.A.R. 20-2-8."
The Fishers appealed this ruling, and a hearing was set for March 12, 2004, at the Board's offices. At the hearing, the Fishers were represented by counsel and provided testimony, exhibits, and statements. No transcript of this hearing is in the record on appeal even though K.A.R. 20-3-2(e) provides that "a record of the proceedings may be transcribed." Counsel submitted written argument contending that Jeremy's blood alcohol level did not constitute "contributory misconduct." As "contributory misconduct" is not defined, the Fishers urged the Board to apply the principles of "comparative fault," including proximate cause, in its interpretation. They argued that no evidence was presented that Jeremy's blood alcohol level caused or contributed to this accident or to his death.
Part of the agency record before the Board included the Crime Victims Compensation Board Law Enforcement Verification Form prepared by the responding officer, David Golden. It provides in relevant part:
"5a) Was the victim assisting, attempting or committing a criminal act at the time of the crime? No ___ Yes _X_ If yes, please explain. Victim's blood alcohol level at the time of the crash was .05. The legal limit for a person his age is .02.
"5b) If the victim was committing a criminal act, was the victimization a direct result of the criminal act being committed? No ___ Yes ___ If yes, please explain. I cannot determine that."
On March 15, 2004, the Board issued a su
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