"I got into an accident and was nervous about finding a personal injury attorney after hearing so many awful stories, but from the start, I felt confident with my choice in Kaplan Law, LLC." Read More - Ben
"Matt and Gillian took great care of me during a stressful time of my life. Very caring and knowledgeable group. I would definitely recommend Kaplan Law!" Read More - Kayleigh
"Incredible service and results! Matthew Kaplan and his paralegal Gillian did an amazing job for me. Not only did they resolve my case beyond my satisfaction, they also were very caring and supportive thru my recovery. I couldn't ask for a better attorney." Read More - Jamal
Matthew D. Kaplan

With Memorial Day and the long summer season approaching this is a good time to revisit some difficult truths about drinking, driving and social responsibility.

The Klamath Falls Herald & News published a useful article recently focused on parental responsibility and teen drinking. The story focused on a demonstration staged at an area high school in the run-up to prom. The simulation portrayed “the devastating immediate effects of a serious accident” involving teenagers and alcohol. Though the focus of the demonstration was on teen responsibility, as the paper noted, a key point went unaddressed, specifically “the responsibility assumed by adults who furnish alcohol to underage drinkers.”

As the paper explains: “Any adults who think they are being good parents by hosting parties with underage drinkers would do well to look at the Oregon laws about such things.” Oregon law allows a parent or guardian to serve alcohol to their own underage child in their own home when they are personally present. That does not extend to hosting party where anyone else’s children will be drinking. The article quotes a warning to parents from the Oregon Liquor Control Commission: “If you allow your property and/or home to be used for a party where minors, other than your minor child(ren), consume alcohol in your presence, you may have to forfeit property and may be issued a criminal citation… The power to provide alcohol to a minor can’t be transferred from a parent to other adults.”

It is getting warmer, which is always a good thing, but the spring also brings dangers – sometimes dangers that may not seem immediately obvious.

I’d like to focus today on water safety, a topic that regular readers will know I have addressed in the past. As a recent article in The Oregonian outlines the temptation to cool off in Oregon and Washington’s rivers at this time of year needs to be accompanied by some simple but important safety precautions.

“Entering cold water can cause swimmers to gasp, inhale water and then go under,” the paper notes. “Currents can keep swimmers from reaching safety.” The key thing to remember is that even on a hot day the water can be very cold. This is something most of us intuitively understand when it comes to the ocean, but which can be easy to forget where rivers are concerned. It is especially important since rivers, with their fast-flowing currents and other obstacles such as rocks and trees, are often even more dangerous than swimming at the beach.

Over the last five years I have written about the danger posed by Takata airbags on more than half a dozen occasions. Recently, an article in the Washington Post brought the issue back into focus.

As the newspaper chillingly puts it: “ten years after the biggest safety recall in US history began, Honda says there are more than 60,000 vehicles on the nation’s roads equipped with what experts have called a ‘ticking time bomb’”: defective air bags. As the Post explains, the bags were installed in “37 million vehicles built by 19 automakers. At least 22 people worldwide have been killed and hundreds more permanently disfigured when the airbags that deployed to protect them instead exploded and sprayed shrapnel.”

The company that manufactured these deadly air bags, a Japanese firm called Takata, was once one of the largest car parts suppliers on earth. In the years since the scandal emerged it has acknowledged that it knew about the dangers of its air bags for years before publicly acknowledging them and faced a $1 billion fine from the US Justice Department. Three of the company’s top executives face federal indictments here in the US but have not been extradited from their native Japan.

The speed limit reductions in most of Portland’s residential areas that were approved by the city council early this year have taken effect across Portland. As I wrote at the time of the council vote this initiative – covering almost 70 percent of Portland’s streets and roads – is a key element of Vision Zero, the city’s effort to eliminate pedestrian traffic deaths.

A more recent move by the council, however, is a reminder of two key points. First, that Vision Zero is a flexible, constantly evolving initiative and not just a single set of plans and actions, and, second, that it is designed to apply city-wide: in commercial as well as residential areas.

Until now Vision Zero’s speed limit changes have focused on residential areas. Earlier this month, however, “Portland approved an emergency plan… to reduce by 5 mph the speed limit (from 35mph to 30mph) on a more than 50 block stretch of Stark Street in Southeast Portland,” according to The Oregonian. Noting that this particular stretch of Stark “has long been an area of concern,” the newspaper adds that “two of the city’s 10 traffic fatalities this year happened between 109thand 162ndAvenues on Stark.”

Last month I wrote about private prison companies in a blog focused on prisoner medical care and civil rights issues. I want to return to that issue today, but shift the focus away from the privatization of public services and toward the services themselves.

A few days ago Oregon Public Broadcasting reported that “a Jefferson County grand jury has indicted three of the county sheriff’s deputies in connection with an inmate’s death last April.” The broadcaster reports that the deputies were charged with criminally negligent homicide, a felony. The broadcaster reports that “the attorney for at least one of the deputies said her client plans to plead not guilty.”

The charges stem from the death of a man who had been held in the county jail for two days following his arrest on drug charges in late April 2017. The victim reported to guards that he was not feeling well on the morning of April 26. “He was seen by nurses employed by the sheriff’s office,” but it was only later that same morning when he again reported being ill that an ambulance was called. By then, it was too late. The inmate died a short time later, according to OPB.

Over a two-week period earlier this month five pedestrians were killed on Portland’s streets, an extraordinary number for such a short period of time. One other pedestrian and three motorists had also died in Portland during the first 10 weeks of 2018, according to The Oregonian.

The newspaper quoted the city’s transportation director describing the middle of March as “an awful two weeks,” but also said she “remains hopeful Portland is making progress on improving safety for pedestrians, cyclists and motorists.” She added that the recent spate of deaths “doesn’t discourage us and the work that we’re trying to do.” The paper quoted a representative from a local advocacy group arguing that the deaths showed the need for greater, and faster, investment in safety infrastructure.

Indeed, there is a strong argument to be made that the recent pedestrian deaths in our city make Vision Zero and other safety programs even more important than ever. As I have written in earlier posts, Vision Zero is a program that strives to make the city safer for everyone, whether they are walking, riding a bike or driving a car or truck.

A recent article in New York magazine highlights the ever-growing issue of arbitration clauses and the danger they pose to Americans’ basic rights. Citing reporting that originally appeared in The Guardian, the magazine details a shocking, but all-too-common, story: people who have been treated badly, even criminally, only to discover that they had given away their right to a court hearing without even realizing it.

According to the magazine, “nine women have banded together in a class-action suit against Uber. The women all allege that they were assaulted by their drivers… Uber has argued that this suit should be settled by closed-door arbitration.” According to the original Guardian report “Uber has filed a motion arguing that the riders agreed to privately arbitrate all disputes when they signed up for the ride-share service and have no right to file a lawsuit.”

As I have noted in previous blogs clauses like these pose a number of legal issues. First, there is the simple question of whether people have really agreed to give up their constitutional right to have access to a court of law. However, lengthy terms of service which are not subject to negotiation or reservations raise deeper issues. Most of us ‘agree’ to these in only the most nominal sense. Yet it is an open question whether this system is really compatible with the constitution. Even if we assume that many people are actually reading these dense, jargon-filled documents, there is a broader question, is it appropriate to require citizens to give up basic constitutional rights as a condition of participating in digital (or digitally-based) activities that have become central to modern life?

A recent analysis by NPR News is drawing attention to a traffic safety paradox. Pedestrian deaths nationwide are at near-record high levels and the reason may partly be because of advances in auto safety.

“After two years of marked increases, the number of pedestrian fatalities in the US is holding steady with nearly 6,000 pedestrians killed in 2017, according to estimates from the Governors Highway Safety Association.” NPR writes that these numbers, are “tapering off” over the last year or so but remain at a near 25-year high. Moreover, these high numbers come “as deaths from other types of traffic fatalities are dropping,” a situation that analysts attribute to improved vehicle safety technology. These, NPR writes, “make crashes safer for people inside cars – but just as deadly for pedestrians.”

We all know that cars are far safer than they were a generation or two ago. Better construction, anti-lock braking systems, air bags, more advanced seat belts and better child seats (along with laws requiring drivers and passengers to use them) have all made surviving a crash far more likely. But outside the car things are very different. Cyclists are far more likely to wear helmets than they were 20 or 30 years ago, but in the case of a serious crash involving a bike and a car that may not make much difference. Pedestrians, as NPR notes, are just as likely as they have always been to die or suffer serious injury when hit by a car.

A recent story published by Courthouse News Service details a legal case in Arizona that deserves to be making headlines nationwide. There has been a lot of media coverage over the last few years of the abuses of the private, for-profit prison industry. The Arizona case, however, highlights what can go wrong even when the state is still in charge. It also reminds us of the critical role our courts play in overseeing those with power and ensuring they do their jobs properly and humanely.

In Arizona, according to the news service, the state retained control of the prisons that are the focus of the lawsuit, but contracted out medical services to “Corizon, one of the nation’s largest prison health care providers.” Citing reporting by local NPR affiliate KJZZ, the news service writes that a Corizon staff member told a doctor working with the company part-time “to cancel a pending infectious disease consultation for a prisoner” because the consultation was past due and the company risked being fined for its slow response. The whistleblower also reported instances of critical medication, such as insulin, being withheld from prisoners and of her superior ordering her not to treat an inmate who had suffered a heart attack. She alleges she was told to spend less time with patients and focus on paperwork instead.

This case raises serious political issues, reminding us that the ‘savings’ offered by privatizing public services can sometimes be illusory. It also raises an equally serious civil rights issue. As I have noted in the past, federal, and many state, laws require that inmates receive a level of health care comparable to what they could expect to receive were they free. Failure to provide that level of care is a civil rights issue as defined in 42 US Code 1983. This statute protects anyone who has been deprived of “any rights privileges or immunities secured by the Constitution and laws” by the government at any level. Crucially, that responsibility extends to the government’s agents – in this case, private contractors. Corizon is a private company, but because it is working for the government, the government’s obligation to provide proper medical care extends to the company itself. Corizon, in legal terms, becomes a “state actor” because they are under contract to, in this case, Arizona to treat people who are, ultimately, in the state’s care.

An article published just before the weekend in The Oregonian outlined a new effort to change the way the state handles juvenile jails in general and mental illness among juvenile detainees in particular. “Nearly a dozen organizations, including the ACLU of Oregon, as well as groups that advocate for people with mental illness and juveniles, asked Gov. Kate Brown for ‘support in reducing Oregon’s reliance on youth incarceration’ and ensuring better conditions for juveniles in custody,” the paper reports.

According to The Oregonian the initiative was “prompted by Disability Rights Oregon’s blistering critique of the Northern Oregon Regional Corrections Facility, known as Norcor, in The Dalles. The organization… found that juveniles were locked in their cells for hours at a time and punished ‘for looking around.’”

This new focus on the juvenile detention system follows equally sharp criticisms of Oregon’s child welfare system, something I wrote about at length last month. Taken together they paint a picture of state institutions ill-equipped to protect children who end up in the care of the government. The conditions described in The Oregonian’s account of the juvenile justice system are particularly shocking. The coalition report on Norcor in particular portrays it as an institution using “outdated policies designed to ‘break the will at any cost.’” This way of thinking, it adds, is “out of step with the latest research and practices on juvenile incarceration.”

50 SW Pine St 3rd Floor Portland, OR 97204 Telephone: (503) 226-3844 Fax: (503) 943-6670 Email: matthew@mdkaplanlaw.com
map image