As we all prepare for another school year, SafeKids Oregon, an organization that regular readers will know I admire and support, is distributing an important report that is worth every parent’s attention. “Changing the Culture of Youth Sports” (see link below) offers essential information and perspective on injuries to children here in Oregon and elsewhere. The report is distributed by the umbrella organization SafeKids Worldwide. A summary can be found on the SafeKids Oregon homepage.

 

Among the report’s key findings are the disturbing fact that “One in four young athletes reported it is normal to commit hard fouls and play rough to ‘send a message’ during a game. This norm leads to a disturbing number of injuries: 33 percent of athletes report being hurt as the result of ‘dirty play’ from an opponent.” Among the report’s other key findings: “that athletes hide injuries to stay in the game” and that parents often try to get coaches to let their injured children participate in sports.

 

On one level none of this should be particularly surprising. From Hollywood’s images of sports in movies and TV shows to the sports broadcasts that can be found on television every night, sports culture celebrates toughness, ‘playing through the pain’ and a give-no-quarter attitude. Earlier this summer during the World Cup soccer tournament one player was celebrated for remaining in a game despite suffering a hard kick to the head – and despite the fact that TV viewers around the world could see that he was visibly woozy.

 

It is one thing for highly-paid professionals to insist on playing through an injury. Doing so may be unwise but professionals know the game better than the rest of us and they are, after all, adults. It is another thing entirely for a child to do so, and it is simply irresponsible for the adults running a game to allow, let alone encourage, that kind of behavior.

 

As a Portland personal injury attorney with a particular interest in helping prevent injuries to children I recommend that every parent of a young athlete look closely at the SafeKids report and talk to their children’s coaches about the “culture-changing strategies” the organization recommends. These include setting clear ground rules before a season gets started and emphasizing education for the athletes themselves about potential injuries and the best ways to avoid them. Most importantly, however, the recommended strategies call on parents and coaches to “encourage athletes to speak up when they’re injured. Remove injured athletes from play” and to “put an end to dirty play and rule-breaking.” Sports can be an excellent way for children to keep fit while learning lessons like teamwork – but only if the adults in charge teach the right lessons to begin with.

 

SafeKids Worldwide: The Changing Culture of Youth Sports

SafeKids Oregon Homepage

 

A story from Ohio last week highlights the danger of industrial accidents throughout the United States and the need for all of us to be vigilant. According to Ohio.com, the website of the Akron Beacon-Journal newspaper, “a 45-year-old man was killed after he was pulled into a machine while working at a northeast Ohio industrial company.”

 

The article goes on to note that the man died “after his clothing was stuck in the machine and he was pulled into it. A fire official said that when rescuers arrived… (the victim) had been freed from the machine by co-workers, but he died from crushing injuries.”

 

Had this industrial accident taken place here in Oregon there would be a number of clear-cut legal issues that would merit examination. In particular, we would have to consider whether the deceased and his co-workers were properly trained in the use of the equipment they were hired to operate and whether the employer maintained that equipment properly. The latter point is especially important because it highlights the responsibility of employers not only to give their staff the necessary and appropriate knowledge to do their jobs but also the employers’ responsibility to maintain the machinery in a safe manner.

 

As a Portland industrial accident lawyer I see cases like this all too often. It is important for employers to understand that their responsibility does not end with establishing a workplace. All employees, whether here in Oregon or anywhere else around the country, deserve a safe workplace. It is unfortunate that we as a society need courts and laws to ensure that companies do the right thing, but also reassuring that we as Americans have the right to have our complaints heard by a court when employers fail to live up to their responsibilities.

 

 

Ohio.com: Man dies in northeast Ohio industrial accident

 

A recent article in Slate highlighted an important but little noticed executive order signed by President Obama on the last day of July. According to the online magazine, the “Fair Play and Safe Workplaces” order, as it is formally known, “requires companies bidding for federal contracts worth more than $500,000 to make previous violations of labor law public, if they have any to report.” A less well-publicized, but potentially further-reaching, provision “says that companies with federal contracts worth more than $1 million can no longer force their employees out of court, and into arbitration, to settle accusations of workplace discrimination.”

 

As the article goes on to note, arbitration clauses buried deep in the fine print have been spreading widely since a Supreme Court ruling (focused on cellphone contracts) upheld them in 2011. The result has been a loss of court access for many Americans. This trend reached both absurd and frightening proportions earlier this summer when food giant General Mills tried to contend that by ‘liking’ any one of its many products on Facebook or other social media sites, or simply by purchasing an item, customers would surrender the right to sue the company ever, over anything.

 

General Mills later retreated in the face of a storm of public criticism, but the incident highlighted a trend in corporate America that is little-noticed but deeply disturbing: efforts to use ‘terms of service’ to force ordinary Americans to surrender our constitutional right to a trial by jury, as guaranteed by the 7th Amendment. Slate, citing figures compiled by the watchdog group Public Citizen, notes that since that 2011 Supreme Court decision “at least 139 class action suits have died” including cases “brought by consumers who said they’d been stung by predatory lenders, or misleading mortgages, or false promises by vocational schools. And also on the line are complaints by employees of discrimination on the job.”

 

Why are companies so eager to avoid a real courtroom in favor of arbitration? Because, as Slate lays out, in arbitration the table is tilted in the management’s direction: “a study of 4,000 arbitration cases found that employees complaining of on-the-job discrimination won only about 21 percent of the time. In court, they win discrimination suits 50 to 60 percent of the time, other studies show, and receive damage awards that are five times higher, on average.”

 

In my practice as an attorney here in Portland I have always focused on court access – a basic right without which many of our other rights as Americans can be rendered meaningless. In the world of federal contracting $1 million is a comparatively small sum – meaning that many, perhaps most, workers on federal contracts are already enjoying the protections put in place by the president’s executive order. Companies may hate it, but the “Fair Play and Safe Workplaces” order promises to be a powerful new tool for ordinary Americans seeking to protect their rights.

 

Slate: Obama is on a Pro-Labor Roll

 

A significant case involving alleged negligence leading to an industrial accident became more serious last week when obstruction of justice charges were added to it, according to the Associated Press. The news agency reports that a San Francisco-based “federal grand jury charged Pacific Gas & Electric… with lying to federal investigators in connection with a fatal pipeline explosion that killed eight people and leveled a suburban Northern California neighborhood in 2010.”

 

The AP reports that the new charge sheet lists a total of 28 counts against the utility giant, replacing an earlier indictment containing only 12 charges. It accuses PG&E of “lying to National Transportation Safety Board investigators after the blast.” In particular, it alleges that the company sought to mislead government officials about “pipeline testing and maintenance procedures.” A spokesman for PG&E told AP that he had not yet seen the charges, but that the company was expecting them. The company disputes the allegations.

 

If these charges are proven they reflect about as clear a case of bad corporate citizenship as one could imagine. Lying to federal investigators not before but after the company’s negligence has led to the deaths of eight people gives new meaning to the idea of putting profits before people. Righting wrongs like this is why we have an independent court system.

 

According to AP, the allegations, if proven, could leave PG&E liable for more than $1 billion in fines. This is on top of what it may have to pay as a result of lawsuits that are already pending plus “$2.5 billion in civil fines from regulators, including the (California) state public utilities commission.”

 

As an Oregon industrial accident attorney I look at cases like this and am angry that companies feel so secure about engaging in this kind of conduct. PG&E now faces billions of dollars in fines, legal fees and potential negligence and industrial accident damages. All this could have been avoided by simply doing the right thing, but the company apparently believed that it would not get caught – or that if it did the consequences would be slight. We can all be thankful that our courts are here to help average Americans challenge corporate negligence, but mounting those challenges requires constant vigilance from all of us.

 

 

AP via Yahoo! News: PG&E charged with obstruction over San Bruno blast

An article published earlier this month by Al Jazeera America looks at a new academic study focusing on the costs and benefits of bike lanes and other publicly-funded spending on cycling infrastructure. Living in Portland, a city often cited as one of the most bike-friendly in North America, its findings are not likely to be particularly controversial. Still, they are a useful reminder of how bike riding benefits the community at large and not just cyclists themselves.

 

The study (see link below) was published in Environmental Health Perspectives, an academic journal sponsored by the National Institutes of Health. It comes with the ponderous title “The Societal Costs and Benefits of commuter bicycling: Simulating the Effects of Specific Policies Using System Dynamics Modeling” but reaches, Al Jazeera reports, a fairly straightforward conclusion: “for every dollar spent on bike-related infrastructure, cities can receive anywhere from $6 to $24 in cost savings in the form of reductions to pollution and traffic congestion, as well as lowered health care costs from decreased traffic fatalities and increased exercise.”

 

Some of those conclusions may seem obvious to an audience here in bike-friendly Oregon, but they are a reminder that it is important to get the details of infrastructure right. More importantly, in focusing on the big picture – by, for example, citing long-term benefits such as lower health-care costs the study is especially useful.

 

Both the ODOT and local groups are constantly collecting data in an effort to refine Portland and Oregon’s approach to the increasing number of bikes on our roadways. For example, in 2012 evidence emerged that the green bike boxes at many Portland intersections – which seem like a common-sense move – may set in motion a surprising number of Portland bicycle accidents. Discoveries like that do not mean that spending on bike infrastructure is a bad thing – only that more and better data can help us spend the money in more useful ways. That also echoes one of the study’s main conclusions: that dedicated bike lanes, though more costly to build, often offer greater long-term health and safety benefits. Al Jazeera reports the study’s conclusion that dedicated bike lanes are one of the most cost-effective ways to realize these benefits. “The study found that these lanes could increase bike commuting by 20 percent by 2040. Separated bike lanes alongside car traffic also decrease injuries by 50 percent, the study said.”

 

As a Portland bike accident lawyer I am glad to see both the state and the federal government taking these matters seriously. We should all be proud of Portland’s embrace of bike culture – but that does not mean we should not stop trying to improve on our existing record of success.

 

 

Al Jazeera America: Study: Bike lanes save money and lives

 

Link to the Study at the National Institutes of Health website

 

Portland Mercury: City finds bike boxes may actually increase crashes (2012)

 

In an effort to raise awareness regarding distracted driving Allstate, the insurance giant, is touring the country with a driving simulator designed to highlight the dangers of texting while behind the wheel.

 

According to a recent news release issued by the company (see below) the program, known as “Reality Rides,” was launched last summer and is expanding this year. It involves “a driving simulator that utilizes a real – but stationary – vehicle equipped with virtual reality technology, including a new curved LED television embedded in the car windshield. The television displays an animated environment and reacts to the driver’s motions.” Participants are invited to ‘drive’ the car while texting and/or talking on the phone as a way to experience just how significant the danger of distracted driving can be. Allstate plans to take the simulator to 40 cities over the course of the summer following what the company describes as a successful rollout of the program last year. This represents a significant expansion from the 26 “Reality Rides” events the company organized in 2013.

 

“Last year, the first tour surveyed more than 1,700 people… Seventy-three percent (of whom) said they learned more about distracted driving after experiencing the simulation,” the company says. The same survey – conducted at the simulator sites last year – found that “more than one-third of drivers say they text and drive at least some of the time.” The company is also using the simulator to promote Graduated Drivers License laws, under which teen drivers face more restrictions on their driving than adults. “Stronger teen driving laws… have been shown to reduce traffic fatalities by as much as 40 percent in the states where they have been adopted,” the company says.

 

While teens are not the only drivers prone to text or talk on a hand-held cellphone while driving almost every study focused on distracted driving indicates that, as a group, they engage in this behavior more often than more experienced drivers. Indeed, the risk of Oregon injuries to children associated with distracted driving are especially troubling when one also considers that teen drivers in general have a noticeably higher accident rate than adults. This is an issue not only for young drivers and their passengers but for those they may injure through their negligence.

 

As a Portland distracted driving lawyer I’m pleased to see Allstate backing an initiative like this. The company, of course, is ultimately doing this mainly to benefit its own bottom line, but they do deserve a nod for an effort that may, in the long run, benefit society as a whole. Oregon has had a strong distracted driving law on the books for several years but like DUI this appears to be a problem which will never entirely go away and, therefore, must be countered by both consistent enforcement and constant education.

 

 

Asbury Park Press: Allstate Reality Rides pit-stops in Freehold

 

Allstate news release on the Summer 2014 Reality Rides Tour

 

As anyone who has watched the news over the last few weeks knows hot car deaths have once again been commanding attention this summer. Consider this one of those things regarding Oregon injuries to children that should not need to be said but, unfortunately, needs to be reinforced as we approach the hottest time of the year. As SafeKids Oregon reminds us all: “Hot weather and vehicles can be a deadly combination.”

 

The group’s latest news release continues: “There have been no overheating deaths in Oregon since 2004. Regrettably, 17 children have died from being left or trapped inside hot vehicles nationally in 2014 alone. In addition, there have been many ‘near misses.’” That national number is especially shocking when one considers that there is at least another six weeks of hot weather remaining pretty much everywhere in the country.

 

As they so often do, SafeKids offers easy and common sense advice on the best ways to avoid trouble. However, in addition to tips that are common knowledge – such as the fact that on a hot day the temperature inside a sealed car can rise by 20 degrees in just 10 minutes – they also offer some warnings that may come as news to many readers. Specifically, many people might not be aware that “cracking a window does little to keep the car cool.” This is an important point because it contradicts what many people think they know about hot cars and summer weather. Similarly, many readers might not be aware that the temperature outside need not be especially ‘hot’ for hot car deaths to occur. “With temperatures in the 60s, your car can heat up to well above 110 degrees.”

 

What makes hot car deaths and injuries to children especially tragic is how easily preventable they are. SafeKids offers some easy to remember pointers: Call 911 if you see something that looks wrong. “When transporting your child, place a cell phone, purse, gym bag or whatever is to be carried from the car near the child in the back seat. This will force the driver to open the back door and see the child.” The organization also stresses the importance of every parent knowing how to reach their child care provider in an emergency.

 

As an Oregon attorney who has handled many cases involving injuries to children, and as a long-time supporter of SafeKids Oregon and the important work they do, I recommend that every parent click the link below and remind themselves of the easy, indeed common sense, ways they can avoid becoming the latest sad, and avoidable, tragedy of the summer.

 

Resource:

SafeKids Oregon

A ruling last week by the Oregon Court of Appeals broadens the traditional interpretation of our state’s dram shop laws and merits closer examination. According to an account published in The Oregonian the decision in a wrongful death lawsuit established that “party hosts whose invitees bring their own alcohol can still be held liable if drunken guests hurt themselves or others.”
The case is formally known as Baker v Croslin. As detailed by the newspaper, the facts of this important case are as follows: a man died in a 2010 shooting incident “after a night of extensive drinking and gunplay at a house party in Northeast Portland.” The party host “was convicted of criminally negligent homicide” but the victim’s widow also filed an Oregon wrongful death lawsuit.

“Under Oregon law, a party host can be held liable for damages caused by intoxicated guests if the host provided the alcohol to a visibly intoxicated guest, and if the host ‘substantially contributed to the intoxication of the guest,’” the newspaper notes. This is a succinct description of Oregon dram shop law – something about which I have written on this blog on numerous occasions. The Dram Shop Law is designed to encourage responsibility on the part of people serving or selling alcohol. We often talk about it in the context of drunk driving, though the details of this case are a powerful reminder that the consequences of reckless alcohol use extend far beyond cars and roads.

According to The Oregonian, the victim’s widow argued that in this particular case, that responsibility extended to the host of a BYOB party on the grounds that while guests brought their own alcohol the host effectively had “control” of what was being served in his home. She lost in the trial court, but last week that ruling was overturned on appeal.

As a Portland wrongful death attorney I applaud this important decision, which extends the responsibility our laws have long demanded of party hosts, bartenders and liquor store clerks in a common sense way. A homeowner who allows a house party to get out of control (as this party obviously did) should not be able to avoid responsibility for his or her negligence simply by claiming that they themselves did not buy the alcohol that led to trouble. Oregon has dram shop laws precisely to ensure that people serving alcohol take proper responsibility for their actions.

The Oregonian: Party host liable for guests, even at BYOB party, Oregon appeals court rules

Just as the July 4 holiday weekend got underway news broke of a sweeping recall of school buses. According to an Associated Press report, republished by ABC News, “Blue Bird is recalling more than 2,500 All American school buses and some transit buses to fix a problem that could make steering more difficult. The company also is recalling a smaller number of school buses that may be prone to a propane fuel leak, according to paperwork filed with the National Highway Traffic Safety Administration.”
It will be worth keeping an eye on the NHTSA vehicle recall website over the next week or two for further details as this story develops. At this writing the NHTSA had not posted information about the Blue Bird recall, presumably because the company’s paperwork has not yet been completely processed. In the meantime, however, it is safe to say that it is difficult to imagine a clearer risk of injuries to children than a school bus with a steering or a fuel leak issue.

The AP story did not say how many school buses are affected by the steering-related recall notice, only that it involves “some buses made between 2011 and last May.” The story put the number of transit buses affected at 400, but did not say in which cities they are currently on the road. The fuel leak issue involves “388 Vision school buses made in 2012 or 2013,” the news agency reports.

As a Portland attorney who has written in the past about both injuries to children and vehicle recalls of various sorts I’m happy to see the recall notice being issued well before the beginning of the school year – with luck all of the vehicles in question can be fixed before classes begin again – but I am also disturbed to read that “the company has been monitoring the issue since last September” when it first received reports of problems. In other words: it knew about these issues throughout the just-concluded academic year but kept that information to itself. If there is any lesson that car, truck and bus manufacturers ought to have learned over the last few years – especially in light of General Motors’ current troubles – it is that earlier disclosure is almost always better when it comes to safety issues.

Whenever a company is found to have sat on information like this it is difficult for ordinary Oregonians not to conclude that the company is putting its business interests ahead of the public’s safety. At the very least the company might let Americans know in which cities the transit buses are being used, since those will be on the road year-round and not just during the school year.

AP via ABC News: Blue Bird Recalls School Buses for Steering Issue

When July began on Tuesday an important new Oregon law also went into effect. As reported by The Oregonian a new “mediation program… (gives) patients and their families an option besides suing when medical errors happen.”
The measure was a priority for Gov. John Kitzhaber and, as the newspaper notes, became law following input from both trial lawyers and the Oregon Medical Association. The new law “is intended to cut down on lawsuits and boost the reporting of medical errors to help improve health care practices.”
Some practical details remain to be worked out, and it will take months if not several years before we can say with certainty how well the program is working in practice, but as a public health matter we should all hope that the Early Discussion and Resolution Program, as it is formally known, performs as expected. As I have written in this space as recently as last month, medical mistakes remain far too common in our state and reducing or eliminating them is made more difficult by a reporting system that remains, to a great extent, voluntary. As a result, doctors and patients alike are often working from inadequate data. A system that improved both the volume and the quality of data on medical mistakes would be a huge boon to everyone.

As described by The Oregonian, patients or family members will now be able to file formal notices when they believe a medical mistake has occurred. “The notice triggers what is intended to be a confidential discussion in which a provider or health care facility can even offer an apology or financial settlement. If that is not successful the patient or their family can sue.” While the system does potentially make suits more difficult to file, especially if doctors or hospitals choose to drag the process out, it is important to remember that under this law Oregonians have not lost their right to take grievances to our courts for a fair hearing.

As an Oregon attorney who has worked on medical mistake cases in the past I will be watching this new law closely. If it lives up to the expectations of its strongest advocates it could prove to be a win-win situation for patients, doctors and public health in general. That is provided, however, that a well-intentioned measure does not become a way for negligent doctors and hospitals to avoid responsibility for their own mistakes.

The Oregonian: New Oregon program allows mediation for medical errors instead of suing

More information on the Early Discussion and Resolution Program