Two weeks ago I blogged about questions surrounding guardrails installed on highways here in Oregon and throughout the country. As I noted then, Oregon has opted not to join several other states in suspending use of “ET-Plus” guardrails made by a Texas company and used nationwide, despite reports, as the New York Times put it this week, of crashes “in essence, turning the rails into spears when cars hit them and injuring people instead of cushioning the blow.”


“’The device is not performing as it is designed and intended,’ a Missouri transportation official wrote of the problematic railheads in an internal communication,” according to a report this week in the Times.


As I reported last month, all this is especially worrisome when we consider Oregon car crashes, not just because the ODOT has opted not to act but because it says it is not really able to act, since it has no reliable records on where the guardrails in question are actually installed. The design change that led to the charges concerning the ET-Plus rails took place in 2005. As a result, the design is now widely in use throughout Oregon and the rest of the United States.


According to the Times, Missouri banned the use of the rails last month, joining Nevada and Massachusetts. The newspaper also reports that several years ago officials at the Federal Highway Administration “drafted a letter asking the manufacturer to conduct additional testing, but the letter was never sent.” It notes that the official who raised concerns about the rails dropped his objections to them after meeting with representatives of the manufacturer. “The federal agency continues to allow states to use federal funds to purchase and install the rail heads. Concern over the guardrails are at the center of a federal lawsuit expected to go to trail” shortly in Texas, the paper notes.


As a Portland auto accident lawyer with a special focus on wrongful death cases I will be watching both the Texas trial and any continued developments in this case closely. Like the situation we have seen unfold with General Motors over the last year it raises serious questions about federal and state regulators and how close they are to the companies they are supposed to oversee.



New York Times: Highway Guardrail May be Deadly, States Say


The Oregonian reports this morning on an Oregon pedestrian death involving a MAX train. The Oregon pedestrian accident took the life of a 71-year-old Portland man Friday night. “Transit police are continuing to investigate the incident,” according to the newspaper.


The man reportedly died when hit by a MAX train early “Friday night near East Burnside and 160th Avenue.” The newspaper quotes a Tri-Met spokesperson saying that “the Blue Line train was eastbound and that trains usually move about 35 mph in the area where the incident took place. She said the accident took place near a pedestrian crossing specifically designed to help make sure that people getting ready to cross the tracks have a good view of oncoming trains.”


The Oregonian quotes family members saying that the victim had lived in the neighborhood since 2001 and was in good health. He was taking his regular evening walk at the time of the accident, according to family members who spoke to the newspaper.


The exact circumstances of this accident need to be investigated thoroughly and carefully. It is possible that the family could find they have cause for an Oregon wrongful death claim depending on the results of the investigation. From a legal perspective, it is especially important to examine whether the train’s operators were following proper procedures as well as the functionality of the switching and signaling equipment along the Blue Line.


As a Portland wrongful death attorney with extensive experience in pedestrian deaths and accidents I will be watching this case closely to see what the investigation eventually concludes and, perhaps equally important, what larger questions the results of the investigation may eventually raise. Safety issues involving Tri-Met trains and busses have emerged far too frequently in the last few years. Though the city and Tri-Met have made some progress in addressing pedestrian safety concerns the bottom line remains that Greater Portland needs and deserves a transit system in which fatalities and serious injuries are never an issue.



The Oregonian: 71-year-old Portland man on nightly walk when he was struck, killed by MAX train, sister says

A report in yesterday’s Oregonian details problems with a common type of guardrail used throughout the country, along with the disappointing revelation that Oregon will not follow the lead of at least three other states and move to replace the rails. This, despite evidence linking them to “grisly deaths and severed limbs” in car crashes around the country.


The guardrails in question are “fitted with so-called ‘ET-Plus’ energy absorbing impact plates on the end… Guardrails with end plates are supposed to lessen the severity of a crash, by absorbing the initial energy while shifting the vehicle to ride down the rail without deflecting back into traffic.” The newspaper reports, however, that a study by The Safety Institute found that a design introduced by the rails’ manufacturer in 2005 and now in widespread use “was 1.36 times more likely to produce a severe injury and 2.86 times more likely to produce a fatality” than the original design.


The article goes on to note that lawsuits in five states “have blamed ET-Plus guardrails for at least four deaths and nine severe injuries.” As a result, Nevada, Missouri and Massachusetts have “suspended use of the barriers.” According to the newspaper, however, Oregon’s DOT plans to keep using them partly because no problems have been reported in our state but also because “even if ODOT wanted to replace its ET-Plus barriers on Oregon highways, the agency wouldn’t know where to start. The agency has apparently lost track of where they’re installed.”


Reading that last sentence it is difficult to decide which part is more troubling. As a Portland car crash attorney I would hope that ODOT was sufficiently aware of safety situations in other states that it did not have to wait for similar problems to arise here in Oregon before acting. It is perhaps more troubling, however, to learn that replacing the rails may not be possible because appropriate records are not being maintained by the ODOT itself.


This story is only a day old, but it seems sure to develop further in the weeks and months to come. I will be keeping a close eye on this, and related developments to see whether media exposure succeeds in moving the ODOT toward both a more forward-looking policy and better record-keeping systems.



The Oregonian: Oregon DOT: No plans to remove ‘sharp spear’ guardrails tied to deaths, severed limbs

An article published in Friday’s New York Times brings the issue of General Motors and its massive recalls sharply back into focus. It tells the story of a 27-year-old Virginia woman who died in a car crash only days after receiving a recall notice on her 2006 Saturn. That notice concerned the ignition switch issue that has received so much media attention this year. It is also noteworthy that it was the third issue for which her car had been recalled. It is useful to be reminded that the GM recall story is far from over – but several details buried deep inside the article are points of special concern.


The victim in the crash highlighted by the article died earlier this year. That fact is significant, because even though the defects in GM cars stretch back many years the fatal crashes associated with them have been seen by most people as something that happened several years ago and is only now traceable to the company’s negligence. The article notes that as of this week the mediator administering a fund to compensate victims “had determined that 21 deaths were eligible, raising GM’s longstanding death tally of 13 by more than 50 percent.”


Equally disturbing (though, admittedly, not a new development for anyone who has followed this issue closely) is the paper’s reporting that “during months of outcry over GM’s handling of the (ignition) switch issue, as investigations and lawsuits mounted, the company has fought any effort to get the recalled cars off the road until they are repaired… To date, hundreds of thousands of cars remain on the road, and the automaker continues to maintain that they are safe.”


One might have thought the company would have concluded by now that the potential damage to its bottom line is far outweighed by the risk to public safety and the ongoing damage to its reputation that this issue is causing. The fact that the compensation fund administrator found a 2014 death to be linked to the ignition switch defect is proof of the on-going seriousness of the situation.


As a Portland car crash victims attorney I am glad to see that the compensation fund is moving forward, offering a sense of justice and closure for those whose lives have been irreparably harmed by GM’s conduct. One must ask, however, why it has taken so long for even this small measure of justice to be served. Taking the longer view, the company’s behavior is a powerful reminder of why we continue to need our courts and the justice system more broadly to help ensure that the rich and powerful cannot simply avoid responsibility for actions that place us all at risk.



New York Times: After a G.M. Recall, a Fiery Crash and a Payout

A mysterious outbreak of E. coli here in Oregon has left one child dead and resulted in injuries to two others, leaving parents and public health officials alike struggling for answers here in the Pacific Northwest.


As The Oregonian reported last week “all three children – ages 3, 4 and 5 – were at birthday parties in Lebanon on August 23. All three were exposed to recreational water and ate watermelon. All three suffered kidney failure.” Though it is worth adding that the children were not all attending the same birthday party (two were at one party and the third child was at a different party) the similarity of the cases does raise significant questions, particularly whether something in the food they ate may have been tainted.


As the newspaper notes, in the wake of these injuries to several children state health officials in both Washington and Oregon have been interviewing the parents as well as other adults in an effort to track and isolate the cause of the outbreak. “Without a solid culprit, such as an undercooked hamburger, epidemiologists can link cases with DNA tests on the bacteria,” the paper notes.


Even as the investigation continues there are some critical lessons that the rest of us can draw. The E. coli outbreak is a reminder of how important public health services are for all of us, and of the important role government plays in ensuring that the food we eat is safe and safely prepared. That includes not only how food is cooked, but how it is processed, transported and stored. From a public health perspective, the most critical stages for many of the things we eat occur long before they reach our plates, or even the shelves of the stores where we shop.


As an Oregon and Washington lawyer who focuses on cases involving injuries to children I’ll be watching developments in this case closely in the weeks and months to come. Officials are working to figure out exactly what tainted items these children consumed, and where those items came from – by which I mean their ultimate sources, not just the stores or restaurants that sold them to the parents. Their conclusions may open up a broader chain of responsibility, highlighting the importance of proper safety and sanitary procedures along our entire food chain.


KCPQ Seattle: Third child sick with E. Coli, parents desperate for answers

The Oregonian: Oregon mothers rack brains on E. coli infection that killed girl, 4, sickened 2 kids



The death this week of a 33-year-old Mill City man is being investigated by the sheriff’s office in Linn County but, based on a report in the Salem Statesman-Journal, there are strong indications that it fits the definition of an Oregon industrial accident.


As I wrote in this space just a few days ago, the lumber industry has one of the highest rates of workplace fatalities here in a state where workplace deaths rose last year, even as they declined nationwide. According to the Statesman-Journal this particular accident took place on Wednesday in Mill City. The victim is reported to have been at work in a lumber mill “repairing a wood press when it activated and crushed him.”


“Police are investigating the situation along with the Oregon Occupational Safety and Health Administration, or OSHA,” according to the newspaper. One of the things they will surely look at is whether this fatality should be classified as an Oregon industrial accident. Oregon law requires that machinery, particularly potentially dangerous machinery, be serviced properly and that workers operating and maintaining it have proper training. It is disturbing to read that a wood press activated at a point when it should not have been connected to a power supply at all. In lumber mills and other potentially dangerous workplaces proper “Lockout/Tagout” procedures, like those outlined by the US Department of Labor (see this link) are essential. Rules like this do not represent onerous government regulation but, rather, are essential safety measures designed to protect workers from employers who might be tempted to cut corners to put a few extra dollars onto the bottom line.


Among the questions that need to be examined will be whether the workers preparing the machinery for repair were not properly trained in the procedures for making the machine safe prior to servicing that could be a cause for legal action. Similarly, if the machine activated due to a fault that can be traced to a failure to maintain it properly that, too, would fit the definition of an industrial accident. Finally, if any party is at fault due to negligence in performing any of these duties, they may also be subject to Oregon wrongful death claims, that includes third parties, such as independent contractors, who may be assigned to set-up and/or maintain machinery.


As an Oregon industrial accident attorney I see cases like this all too frequently. As the police and OSHA conduct their investigations, let us all hope that the cause of this tragedy can be quickly pinpointed and appropriate action taken to ensure that nothing similar happens again.


The Statesman-Journal: Mill City man crushed to death in lumber mill


A report released by the Bureau of Labor statistics earlier this month draws attention to a disquieting trend: though the number of workplace deaths fell nationally last year, here in Oregon the numbers went up.


According to reporting by The Oregonian, the BLS report found that “the number of Oregon work-related deaths increased 12 percent, from 43 to 49, between 2012 and 2013. Yet the number of workplace fatalities decreased by 5 percent nationwide to 4,400.” As someone who has written extensively about Oregon industrial accidents and the importance of workplace safety I find both the numbers and the overall trend disturbing.


The largest single source of Oregon workplace deaths was crashes involving cars, trucks and other vehicles. “Safety regulators tied a majority of the Oregon deaths to traffic- or equipment-related accidents. The report says 19 workers died as a result of vehicular crashes and 12 people were killed by machines or other objects.” The report’s accounting system also takes note of police and firefighters killed or injured in the line of duty. The relatively large number of vehicle crashes (accounting for more than one-third of all workplace deaths) is worth special attention. Under Oregon law there may be a case for a wrongful death action by surviving loved ones if a third party is found to be at fault in the incident.


According to the newspaper, most of the Oregon workplace deaths took place in the “natural resources, construction, transportation and administrative and support services” sectors (the last category is described by the paper as “an umbrella industry that includes trash collectors and cleaning companies”). Natural resources, which includes the logging industry, along with transport and construction are all areas that involve danger and where workplace safety is critical. I have written about the potential dangers of the logging industry on many occasions and also of the hazards that poorly-maintained semi-trucks and over-worked truck drivers pose to everyone who uses our roads and highways. Oregon law regarding industrial accidents requires employers to conduct proper maintenance on all workplace equipment (including vehicles) or to ensure that vendors carry out the proper maintenance and that the people operating the equipment receive appropriate training. With fatality numbers going up, one can question whether these laws are being universally observed.


As an Oregon industrial accidents lawyer I am saddened to see that the number of workplace deaths in our state rose last year after declining from 2011 to 2012. The BLS report is a reminder of how important it is for all of us to remain alert to possible workplace dangers and to hold employers accountable when they fail to do the right thing and protect their employees.


The Oregonian: More Oregonians died on the job last year, new report shows

The extraordinary tragedy that unfolded at Hagg Lake late last month is spurring calls for action. As reported by The Oregonian, four people, representing three generations of the same family, all drowned in the lake on August 25. The bodies of a three-year-old boy along with those of his “mother, grandmother and uncle” were located “about 30 to 40 feet from the shoreline in water that ranged from 8 to 13 feet deep.”


A week later “members of fire agencies across Washington County, as well as invited guests including Washington County Parks Superintendent Todd Winter and Forest Grove Parks and Recreation Director Thomas Gamble, spent about ninety minutes discussing ideas and safety concerns at Hagg Lake.” Their talks came as part of a safety forum organized with the help of SafeKids Washington County. The meeting was called to consider community responses to the drownings and ways to prevent anything like this from happening again, The Oregonian reports.


Prevention emerged as the most significant theme among the participants. Though the focus on safety for children was paramount, last month’s events also show that safety is not something anyone should take for granted.


Among the recommendations to emerge from last week’s forum: “increasing the number of life jacket loaner stations and repositioning the existing stations for greater visibility, roadside electronic reader boards displaying rotating safety messages, establishing safe swimming areas with flotation ropes and stationing life guards at popular swimming areas,” according to the newspaper.


As a Portland attorney I have long supported the work SafeKids does at the local, state and national level and I am proud to see them taking the lead in bringing the Hagg Lake and Washington County communities together. It is only by learning from tragedies like this that we can hope to prevent their recurrence. That is a lesson not just for this one community, but for all of us in Oregon and throughout the Northwest.



The Oregonian: Signs and more life jackets suggested at brainstorm meeting after Hagg Lake drownings

The Oregonian: Hagg Lake drowning: 3 generations of Hillsboro family die in apparent accident


Historically Labor Day weekend is second only to New Years when it comes to driving danger on Oregon’s roads. So it is good that both the Oregon State Police and a number of local departments are going out of their way to remind Oregonians and visitors to drive safely this holiday weekend, and are stepping up patrols designed to intercept Oregon drunk drivers. A news release from the OSP notes that the agency “will put all available sworn personnel assigned to field operations on the road” for a period that began Friday night and will continue through Monday night/Tuesday morning.


We have all, perhaps, become a bit too accustomed to warnings like this. Whenever holiday weekends roll around TV and newspaper stories appear, public service announcements are aired and blogs like this are posted.


So it is useful that the State Police have put the issue into stark perspective for those who might think that holiday drinking-and-driving is overhyped. An OSP news release (see link below) notes that “throughout the year, someone is killed on a road in the United States in an alcohol-impaired-driving crash every 51 minutes. Over the Labor Day weekend, that statistic jumps to one death nationally every 34 minutes.”


The release goes on to note that Oregon suffered only two DUII-related deaths over last year’s Labor Day weekend period (defined as 6pm on Friday to Midnight Monday night/Tuesday morning), but that during that same period “OSP troopers made 54 DUII arrests.”


As a Portland drunk driving victims’ lawyer I hope everyone reading this blog will take these numbers to heart. As the OSP note, “drunk driving takes a particularly heavy toll during nighttime and among young drivers, the age group that is most often at risk.” Indeed, according to National Highway Traffic Safety Administration figures cited by the OSP, 18-to-34 year old drivers accounted for nearly half of all drunk driving crashes nationwide during the 2012 Labor Day holiday weekend (the most recent year for which data is available). Let’s all work to lower those numbers this weekend, even as we all take time off to mark the end of Summer 2014.



Oregon State Police News Release

The Oregonian: West Linn Police steps up drunk driver patrol over Labor Day weekend


Portland residents began to get some sense this week of how the “street fee,” the proposal to help fund city roads and maintenance that has been debated all summer, may eventually help to improve health and safety around our city.


According to an article published this week in The Oregonian, “the (city’s) Transportation Needs and Funding Advisory Committee (this week) produced the most detailed list to date of potential transportation projects.”


Though explicitly described as a “wish list,” – a fact designed to indicate that not all of the projects listed in the report will be funded, and that some may be funded at different levels from those recommended in this report – the document does offer some sense of how city leaders would like to allocate the revenue raised by the Street Fee.  According to the newspaper “The list included an estimated $109 million in dozens of specifically identified sidewalks, pedestrian crossing, bicycle and other safety projects.” The estimate is “based on roughly $35 million annually in net revenue for a six year period.”


I do not want to use this space to debate the merits of the Street Fee, but if we are going to have it here in Portland it is important that the money be spent carefully. According to The Oregonian, over a six-year period the fee may lead to significant sums being invested in safe routes to schools ($24 million), neighborhood greenways ($6 million), protected bike routes ($9.6 million) and improvements to street crossings ($14.4 million).  The key there is the word “may.” For all of us as Portlanders it is important that we get involved in this and other civic affairs to ensure that Street Fee monies are spent wisely.


As a Portland attorney focusing on public safety and personal injuries I am glad to see a proposed Street Fee project list that emphasizes public safety. Perhaps even more importantly, all of these expenditures have the potential to yield secondary benefits that more than justify their cost. The emphasis on improving safety along auto routes where crashes are prone to occur, for example, has the potential to save every Oregonian money down the line in the form of reduced medical and emergency services bills. The same can be said of the money invested in protected bike routes. Especially important for their inclusion in the list are ‘safe routes to schools’ – a category that promises protection for our children, a benefit that any parent puts above and beyond whatever money may ultimately be saved in infrastructure costs.



The Oregonian: Portland street fee: City unveils potential six-year wish list for safety projects topping $109 million