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Matthew D. Kaplan

Over the years I have written a lot about the way bikes, pedestrians, cars and public transport all interact on Portland’s streets. In recent weeks something new has joined this mix: e-scooters. As a technology, these have been around for several years they are now appearing around Portland in far greater numbers after the city’s Bureau of Transportation issued permits to two e-scooter rental companies at the end of last month.

According to local TV station KGW, “the introduction of e-scooters is part of the PBOT’s shared scooter pilot program, which will last through November 20. As part of the 120-day program, permitted companies will be able to offer scooters for rent. The total number of permitted scooters will be capped at 2,500… People can rent a scooter through an app and drop it off anywhere in the city when they are finished.”

That all sounds simple and straightforward enough, but, as is so often the case, the details look a lot more complicated. During its recently completed 2018 session the Oregon legislature modified a lengthy list of statutes related to e-scooters (click here for the complete list). Unfortunately, when one looks at the actual text (see links below) several sections are frustratingly vague.

Late last week The Oregonian, citing the Multnomah County Sheriff’s Office, reported that “a Portland man died and two others were injured when a motorcycle and car collided… in Fairview.” The accident took place late at night on Northeast Halsey Street. According to the paper, a westbound motorcycle carrying both an adult and a child “collided with an eastbound car at Halsey and Seventh streets.”

The motorcycle’s driver was pronounced dead at the scene. His passenger (whose age was not announced) was taken “to a local hospital with serious injuries. The car driver had minor injuries and was also taken to a hospital.”

Many of the details of this incident remain unclear. Notably, the media reports do not say in which lane (eastbound or westbound) took place, making it difficult at this point to speculate about who may have been at fault. Two things, however, are clear. First, the accident serves as a reminder of the special responsibilities adults have when they have children as passengers in motor vehicles, or are responsible for an accident in which a child is killed or injured. Second, this incident highlights some disturbing loopholes in Oregon’s child safety laws when it comes to motorcycles.

A recent news release from the US Department of Transportation lays for groundwork for this year’s Child Passenger Safety Week, which is scheduled to be held nationwide from September 23 to 29. The announcement (see link below) contains links to a variety of materials – everything from broadcast-ready public service spots for TV stations and the web to sample op-eds ready for submission to local newspapers.

Perhaps the most important materials, however, are the practical ones: flyers demonstrating the proper way to install a car seat and its accompanying harness or tether, checklists to help new parents make sure they have carried out every step of the process for securing their child, and posters illustrating the stages at which a child should move from a rear-facing child seat to a front-facing one and from there to a booster seat. One might have thought that after decades of educational campaigns all this would not be necessary. But, as the news release reminds us, car crashes remain a “leading cause of death for children ages 1 to 13.”

With that in mind, it is also worth reminding parents and other caregivers that proper child seats are not just a good idea, they are the law. As outlined in ORS 811.210, Oregon law requires all children under the age of two to be “properly secured with a child safety system in a rear-facing position.” Children who are over age two but weigh less than 40 pounds may face forward provided they remain in an appropriate, state and federal-approved, child seat. Anyone weighing more than 40 pounds who is shorter than four feet nine inches must use a booster seat. Failure to comply with any of these laws is a Class D violation, subject to a fine of up to $500.

A recent Associated Press report, republished in The Oregonian, details the legal consequences of a senseless and tragic fire that killed three dozen people in California in December 2016. According to the news agency, 36 people died as a result of “a devastating fire at a dilapidated California warehouse that occurred during an unpermitted concert.”

Under the terms of an agreement with prosecutors two men pled no contest to 36 charges of involuntary manslaughter. Sentencing will take place in August, according to the AP. One man faces up to nine years in prison and the other six years. Both have already been in prison for a year. The defendant facing the longer sentence “rented the warehouse and illegally converted it into an entertainment venue and residences that became known as the ‘Ghost Ship’ before the December 2016 blaze.”

The article quotes a number of the victims’ family members expressing displeasure at the outcome, especially since the defendants are likely to receive credit for time already served and could be released after serving only half of their eventual sentences. It is precisely situations like this that remind us of the importance of our civil courts, where people placed in the kind of impossible situations confronting these family members can seek the justice they feel the criminal system has denied them. Whether in California or Oregon the most obvious claim to be considered here is wrongful death. ORS 30.020 defines this as “the death of a person… caused by the wrongful act or omission of another.” In a case like this the evidence to support such a claim is clear. At the most basic level, the ‘club’ where the fire took place was operating without the proper licenses and permits. Had the owners gone through the required procedures there is every reason to believe that fire marshals would have demanded extensive changes to the facility before allowing it to open to the public.

The scandal surrounding Southeast Portland’s Sunnyside Sprouts daycare center continues to spur efforts to tighten the regulation and oversite of both Oregon childcare centers and the people who work in them.

As I noted in a blog last month, Sunnyside Sprouts was shut down by regulators last May after it emerged that children were being abused there. It was also found to be operating without a license. As the investigation proceeded it emerged that the center’s owner had lost her California childcare license in 2005. When applying for an Oregon license she had acknowledged having worked in childcare in California but lied about her licensing status there. Shockingly, parents were not informed about any of this, even after the state became aware of abuse at Sunnyside Sprouts. Many continued sending their children there after the abuse and licensing issues had been uncovered but before the facility was shut. Governor Kate Brown demanded that state agencies move to address all these issues. According to an article published last week in The Oregonian the first proposals in response to her mandate have now been unveiled.

According to The Oregonian “beginning August 1 the (state) Office of Child Care will contact an out-of-state licensing department any time applicants indicate they provided care elsewhere. State officials have designated a staff person to conduct out-of-state reviews to ensure the license ‘was in good standing.’ If state officials suspect an applicant worked outside Oregon but failed to disclose that information” additional reviews will be conducted. Applicants who indicate that they have worked in child care in another state will also be required to provide their license numbers from that state. Finally, “the Office of Child Care will take steps to ensure parents are better informed about problems at day cares.”

Late last month, as many people were preparing for the holiday week, a story in The Oregonian offered a painful reminder of an issue that arises every summer. The paper reported that a 21-month-old girl in Roseburg died after her mother left her unattended in the back seat of her car for hours. What made the story even more shocking was the mother’s occupation: a nurse, and the car’s location: a medical center parking lot.

The mother later “told police she believed she had dropped her daughter off at day care before arriving at work that morning.” In that respect the case resembles a 2014 incident in Hillsboro that led to the death of a six-month-old baby – and, indeed, dozens of similar cases across the country every year.

As an article published this week at CNN.com noted, “as of July 1, 18 children have already lost their lives this year in hot car death incidents.” The news channel reports that over the last two decades the US has averaged 37 hot car deaths per year with July often proving to be the single deadliest month. That, in turn, raises a deeper question: why has the number of hot car deaths nationwide remained so stubbornly consistent over more than two decades despite widespread public awareness campaigns? A chart on the CNN website (see link below) shows the annual death toll to be remarkably consistent over time. There were a few years (2010, 2005) when it approached 50, and one (2015) when it fell into the low 20s. But, those outliers aside, the figure year-in-year-out is right around that 20-year average of 37 deaths. This is despite the fact that it is an issue nearly everyone who owns a car is aware of, and one about which public information campaigns are conducted every year.

In many ways it is a small thing: the installation of tiny sensors on lampposts, first at a few key intersections and, later, around much of the city. But the Portland Bureau of Transportation believes that what it calls “Smart City PDX” is an essential step toward making the city safer for everyone who walks, bikes or drives a motor vehicle.

As outlined in a recent article in The Oregonian, the initiative initially will involve “installing 200 sensors along three high-crash corridors on the city’s eastside… The traffic  sensors will provide real-time 24/7 data to transportation staff, giving bureaucrats accurate information on the number of cars or pedestrians crossing a road at a given time and how fast people are driving.” This is in contrast to the city’s traditional reliance on “volunteers or infrequent traffic surveys” to collect similar information.

The Oregonian notes that the project is scheduled to last for 18 months, but it is easy to envision a situation in which this kind of data collection is expanded and becomes a regular part of the city’s planning process. Considering the number of accidents we have seen in recent years involving pedestrians and cyclists, any improvement in the data surrounding our streets is to be welcomed. The paper quotes the head of the PBOT saying that the information gathered through this project “will help city leaders ‘improve street design’ and make streets safer for all.” According to The Oregonian as of mid-June “at least 17 people have died on Portland streets in 2018.”

The unfolding scandal surrounding the Sunnyside Sprouts daycare center in Southeast Portland should be a reminder for all of us of the importance of government regulation and action when it comes to helping keep children safe. But it is also the story of a communications system that had broken down badly – something our regulatory and licensing agencies cannot always fix but where the courts can sometimes help.

The childcare center was shut down last month after regulators found its owner to be operating without a license, according to radio station KLCC. In addition, “Oregon childcare regulators believed children at Sunnyside Sprouts daycare were being mistreated,” according to the station’s report. What is shocking is the radio station’s finding that parents were never officially told why the daycare was closed, or the fact that it’s owner had been operating in Oregon for years without a license. As a result, “some of the families continued to place their children” in the care of Sunnyside Sprouts’ owner even as the government was in the process of taking her to court.

In the wake of these revelations, KLCC reports, Governor Kate Brown has “called on the state’s Early Learning Division to create a more robust vetting process for childcare providers coming from a different state” (Sunnyside Sprouts’ owner had moved to Oregon after having her child care license suspended in California). The governor also wants regulators “to alert parents if a facility’s legal status ever changes.”

A recent blog post on the BikePortland website seeks to draw attention to Portland’s NW Broadway and Hoyt intersection, which the author calls “dangerous by design.” It is among the sites that BikePortland has long sought to highlight as the city continues its efforts to make one of America’s most bike-friendly cities even better.

BikePortland’s editor/publisher notes that he has been writing about the dangers posed by NW Broadway and Hoyt for several years. As May came to a close he got an email documenting a very scary incident in which a car making a right turn “tried to thread the needle between two groups of cyclists by speeding up a bit.” This forced one rider to slam on his brakes and crash into a truck (the cyclist was seen limping at the site but apparently did not require medical assistance).

As BikePortland notes “this is a very heavily-used bike route.” That would seem to make it the sort of place where drivers are particularly aware that bikes are part of their surroundings, but because of the way the intersection is laid out the intersection continues to be an especially dangerous spot. The post reminds readers that a car turning across a bike lane cannot simply put on its blinker and go. People in the bike lane have the right of way, and for a moving car to cut through groups of cyclists moving across its path is no more legal or acceptable than a driver “threading the needle” between pedestrians at a crosswalk. ORS 811.065 and ORS 811.050 specifically lay out the responsibilities of drivers when sharing the road with cyclists. The latter specifically concerns how drivers are supposed to act vis-à-vis bike lanes.

A lengthy article published last week in the St. Helens Chronicle details a disturbing case of alleged prison abuse. According to the newspaper “a former inmate has requested a jury trial, seeking $500,000 for damages after an encounter with a K-9 while imprisoned in Columbia County jail this year.”

The case was filed in federal court earlier this month. Like other cases of prison abuse that I have written about in recent months it is a civil action built around 42 United States Code 1983. This statute requires state and local governments to enforce the rights that inmates and others are guaranteed under the eighth amendment to the US Constitution. 42 USC 1983 says that all people are entitled to “any rights privileges or immunities secured by the Constitution and laws” and that state and local governments must acknowledge and enforce these rights. As The Chronicle notes, this interpretation of the statute was upheld in a 1978 US Supreme Court Ruling (Monell v New York City Department of Social Services 436 US 658).

The St Helens case alleges that deputies at the county jail ordered a police dog to attack a prisoner in his cell, claiming falsely that the inmate was violent and uncooperative when, in fact, he had merely insulted a guard. According to the suit “the county and its officials… failed to provide adequate training to sheriff’s deputies with respect to constitutional limits on the use of force, detention, mental health, and inmate cell extractions and failed to adequately discipline or retrain officers involved in misconduct,” the newspaper reports. It also alleges that the deputies conspired to cover up their actions by filing false reports.

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