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Matthew D. Kaplan

Oregon’s Occupational Safety and Health Administration (OSHA) has levied $31,000 in fines on two contractors whose irresponsible conduct led to the deaths of two workers at a music festival in Happy Valley in the summer of 2019, according to The Oregonian.

The paper reports that the two men “were up in a boom lift taking down a shade installation (when) the lift, which was on an incline, tilted and fell.” Both were wearing safety gear, the paper reports, but that did little to help them considering the shockingly long list of standard precautions that their employers failed to take.

“OSHA said two alarm devices on the boom lift had been disabled, one of which would have alerted users that the machine was on uneven terrain. The other would have stopped the platform from moving upward if an employee became pinned between the platform and something overhead. Each company was fined $12,000 for disabling the alarms,” according to the newspaper. One of the two companies was given an additional fine “for not following the instructions provided by the boom lift manufacturer – including not raising the lift while on an uneven surface, maintaining a firm footing on the platform’s floor at all times and not putting the lift in a raised position while the counterweight, used for balance, was on the downward side of the slope.”

Just seven months ago the governor signed a new law designed to improve safety at daycare facilities around Oregon. Yet shortly after New Year’s “Oregon child care regulators imposed first-of-their-kind restrictions… on a Hillsboro day care where an infant died January 6,” according to reporting by The Oregonian. Calling the facility a “serious danger to the health and safety of children… regulators ordered the 24/7 provider to watch over children who are asleep at all times and to increase staffing beyond the baseline required by law.” The facility will also have to stop accepting children under the age of two.

These are the first penalties imposed under the new law, so one might look at them as a sign that the new measures are working. Yet the fact that they were only imposed after a child had died should be cause for concern throughout Oregon. Abuse and neglect are subject to mandatory reporting requirements for many occupations in our state, including anyone working at a daycare center. If the violations of state law were this serious one has to wonder why they were never reported in the days and weeks before the baby died, and also why it took the state more than two weeks after the baby’s death to sanction the center.

Even after penalties have been imposed by the state a tragedy such as this should prompt the bereaved family to consider what remedies the court system can offer. In civil law there are a number of potential ways to probe more deeply into what happened in Hillsboro and to consider who should be held accountable. These could include a wrongful death action under ORS 30.020. The problems identified by the state in sanctioning the daycare center on their face make a case for a claim under ORS 163.545 (Child Neglect in the Second Degree).

The Pendleton-based East Oregonian began the New Year with an article that offered a useful reminder both of the danger large trucks pose on Oregon and Washington’s roads – especially in rural areas – and of what the government is trying to do to mitigate the problem.

The Salem-datelined piece focused on truck inspections, which it describes as “the primary tool for preventing accidents that disrupt Oregon’s highways, hospitalize thousands and leave hundreds dead each year.” Perhaps surprisingly for some readers, the newspaper draws a connection between truck safety and the Vision Zero program that has become familiar in Portland and numerous other cities around the country.

In the popular mind Vision Zero is usually associated with pedestrian safety. Obviously large trucks are a part of that, but the broader goal of the program has always been to eliminate traffic deaths completely. A point the East Oregonian makes convincingly is that doing this includes taking a close look at big rigs in rural parts of the state, not just at cars and buses in cities.

Last week the retired sheriff of Norfolk, Virginia was arrested and charged with numerous counts of bribery, according to The Washington Post. The newspaper reports Robert McCabe is accused “of taking cash, a loan, travel, gifts and campaign contributions from contractors providing food and medical care at the city jail” over the course nearly a quarter-century as the county’s chief law enforcement officer.

Along with the former sheriff, the founder of a Tennessee company that is part of the private prison and prison services industry was also arrested. The Post reports the Norfolk contract for prison medical services “was worth more than $3 million a year” and the company in question, Correct Care Solutions (now known as Wellpath), “continues to provide medical care at the Norfolk jail.” In exchange for the bribes the sheriff allegedly negotiated with Correct Care’s founder outside normal channels “and instructed employees to give his company inside information on potential contracts, including confidential bids from competitors”

This case caught my eye for two reasons. First, it is yet another example of what is wrong with our system of contracting prison management out to private corporations. Prisons are an unpleasant part of life, but they are also a public trust. It is essential that they be run in both a humane and accountable way, something that is fundamentally at odds with placing management or essential services – such as medical care – in the hands of companies primarily interested in making profits.

A recent article in the Salem Statesman-Journal draws attention to infant deaths, an area where decades of government and private education efforts have both shown dramatic progress and encountered stubborn resistance.

The paper notes that “every year, about 40 babies in Oregon go to sleep and never wake up… deaths can be traced to negligence, substance abuse and unsafe sleep practices. But deaths from dangerous sleeping arrangements – one of the leading causes of infant mortality in Oregon – are preventable.”

The good news is that compared to the rest of the nation Oregon’s infant death rate is relatively low. A chart on the Centers for Disease Control’s (CDC) website (see link below) places both Oregon and Washington in the second-lowest tier for infant deaths nationwide, between 72.1 and 86.8 per 100,000 live births from 2013 to 2017. That puts both states below the national average of 100.5 per 100,000 (the lowest rates are in Vermont and Washington DC, both at 37.4; Alabama had the highest rate at 189.2)

An incident in Colorado, recently recounted by The Oregonian, offers striking insight into the culture of neglect in our prisons and the important role our courts must play in ensuring justice is done.

On the night of July 31, 2018, the newspaper reports, an inmate at a county jail in Denver “gave birth to her son alone in her cell without medical supervision or treatment, despite repeatedly telling the jail’s staff that she was having contractions, according to a federal lawsuit.” The paper reports that the entire incident was “captured on surveillance video.” Yet, astonishingly, “an internal investigation by the Denver Sheriff’s Department cleared its deputies of wrongdoing.”

To call this appalling is an understatement. As I noted in a blog last March, an 8-1 Supreme court ruling dating all the way back to 1976 (Estelle v Gamble) clearly established the right of prisoners to adequate medical care. The court wrote that “deliberate indifference to serious medical needs of prisoners” falls under the constitution’s prohibition of “cruel and unusual punishment.”

The horrific death of a cyclist in New York City earlier this month – a moment captured on video – has brought attention to the way police there and in many other parts of the country treat fatalities brought about by reckless driving.

The New York Times reports that an 18-year-old man has been arrested and charged with manslaughter in the death of a 52-year-old cyclist in Brooklyn earlier this month. Barreling through a red light at high speed, the driver slammed into an SUV that was passing legally through the intersection. The force of the impact flung the SUV caddy-corner across the intersection directly into a cyclist who was patiently waiting for the red light to change on the opposite corner. The entire incident was captured on a dashcam video by another car waiting at the corner where the bike rider died. (Note: the first paragraph of The New York Times story below includes a link to the video. Be warned that it is extremely graphic and unsettling)

The newspaper reports that “bicycle advocates want stronger laws, as well as a cultural change similar to the one around drunken driving.” The question, at its root, is when reckless or negligent behavior crosses the line into criminality. The paper notes that “drivers who cause fatalities are almost never criminally charged, unless there are aggravating circumstances… running a red light is almost never considered reckless driving” even in a case like this where doing so leads to someone’s death.

I first used this space to talk about the importance of life jackets and water safety back in 2016. That’s when a charity I actively support – the Aaron Peters Water Safety fund – set up a free life jacket kiosk in Gresham’s Oxbow Park, near the Sandy River. The fund is named for a 13-year-old boy who drowned in the Sandy River in 2015. It seeks to prevent similar tragedies by making life vests easily available for free to anyone wanting or needing to borrow one.

Sadly, The Oregonian, this week, brings word of another tragedy on the river. The newspaper reports that “the body of a 15-year-old boy who disappeared while wading… in the Sandy River at Oxbow Regional Park was recovered” on Monday. The paper quotes a spokesman for the Gresham fire department who “said the teen was wading in about knee-deep water when he went under at a drop-off in the river.”

This tragedy is a reminder on several levels of just how easily and how quickly something can go wrong around the water. The fact that the victim was not a small child but, rather a teenager, and that the fatal accident began in water that was only knee-deep are troubling reminders that even situations that seem simple and safe can quickly turn deadly. It is especially tragic that the accident took place close to an Aaron Peters Fund safety kiosk. As the TV station KGW noted in a report (see link below) the kiosk is still in place and is being properly maintained and stocked.

A tragedy and a near-tragedy on the other side of the country offer important reminders of a problem that recurs every summer: hot car deaths.

According to The New York Times twin one-year-olds died in the Bronx late last month after their father forgot to drop them off at day care. They were left in the backseat of his car while he worked an entire eight hour shift at a VA hospital. A few days later an off-duty firefighter in the neighboring New York City borough of Queens saved a four-year-old boy by smashing the window of a car in a shopping center parking lot.

According to the website Gothamist, the father in the latter incident later told police that he had only been inside the store for fifteen minutes. That highlights one of the key issues with hot car deaths – something that we all cannot be reminded about too many times: “A car can heat up 19 degrees in just 10 minutes. And cracking a window doesn’t help,” as the website SafeKids notes. Younger children, such as the twins in the Bronx, are at particular risk because “their bodies heat up three to five times faster than an adult’s.”

Two articles published last month in The Oregonian should be drawing our attention to safety issues for pedestrians on Portland’s streets.

Earlier this week the newspaper reported that “more than one-quarter of the pedestrians killed on Portland streets during the last five years were 65 years or older, according to city figures.” It notes that this represents “a dramatic increase from levels seen in recent years.” This followed an article earlier in the month that detailed a rise in traffic deaths in the city even as numbers are falling statewide.

The data related to deaths among elderly pedestrians is particularly alarming. The newspaper writes that roughly 12 percent of Portland’s population is age 65 or older, yet people in this age group account for 16 percent of overall traffic deaths and a shocking 26 percent of pedestrian fatalities. Critically, this is not a short-term anomaly. Those numbers cover the four-and-a-half year period beginning in January 2015, a time-frame during which the city says it has been actively working to reduce traffic fatalities, especially among pedestrians and cyclists. The article also notes that since 2010 more elderly Portlanders “died walking (28) than while driving or in a motor vehicle (23).”

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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