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Matthew D. Kaplan

An article published this week in The Oregonian focuses on the death of a Jefferson County inmate earlier this year. The newspaper reports that a county judge acquitted three local jail officials on charges of criminally-negligent homicide. Yet the judge also ruled that the officers’ “failure to get medical care for (the inmate) was a ‘gross deviation from the standard of care a reasonable person would have done in this situation.” The clear contradiction between these two conclusions is even more troubling because things like this have happened in Oregon before.

The Oregonian reports that evidence presented at the trial showed that the inmate had been both vomiting and defecating blood for hours before he passed away (the paper reports that the Oregon medical examiner identified a stomach ulcer as the cause of death). A doctor who submitted written testimony for the trial concluded that more timely treatment would have saved the man’s life.

Yet, despite all of this, the court concluded that “there wasn’t enough evidence” linking inaction by the three officers to the man’s death to make the case legally solid. Despite their “deliberate indifference” toward the inmate’s well-being, the guards, according to the judge, bear no legal responsibility for his death. This is outrageous.

Bike share programs have become popular across the country, and it is no surprise that famously bike-friendly Portland is part of the trend. That’s why the news that Motivate, the company that runs Biketown (and many other bike share programs nationwide), has a new owner should be of interest to anyone who cares about Portland as a cycling community.

The buyer is Lyft, a company best known for its car-hailing app. The Oregonian quotes a company statement promising “to help take bike share to the next level” with more bikes and more docking stations. With a single company running the bike share programs in cities across the country there is also the potential for rentals to become nearly seamless nationwide.

But Lyft’s emergence as a major player in bike share also raises questions. Let’s start with maintenance. When you return a rental car it is checked before being sent back out with another customer. When you roll a share bike into a docking station it usually just sits there until someone else checks it out or until the bike share operator moves it to a different location (regular and systematic redistribution of the bikes is a key element of any successful share program). Clearly no one is going to select a bike from the docking station if it has serious, visible damage. But there have always been legal questions about how bike share companies should deal with more subtle mechanical problems. Gears, the chain and the brakes can all be damaged in ways not immediately visible to someone who knows little about bike maintenance. It is worth asking what steps are being taken to guarantee a safe ride for bike share customers.

Most of my recent blogs on injuries to children have focused on day care centers. A recent article in The Oregonian, that many of the same legal issues apply to older children as well, especially teenagers. These involve both ORS Chapter 124, which covers the abuse of vulnerable people, and a broader set of laws focused on the state’s responsibility to keep the public informed.

The newspaper article focuses on a 14-year-old who arrived in a hospital emergency room with a level of blood alcohol “that would have killed many adults.” The Oregonian reports that “Oregon child protection workers decided not to investigate” this incident, despite being provided with the name of the adult who had supplied the alcohol. The boy later died after being “struck and killed by a pickup truck on US-101 while drinking with friends.”

The paper goes on to note: “Any time a child dies from likely abuse or neglect within a year of child welfare workers being asked to check on the child, the public should be informed. Oregon law requires the state to do a prompt review and disclose what went wrong.”

A recent announcement from the American Academy of Pediatrics merits the attention of every parent here in the Pacific Northwest. As reported in the magazine Contemporary Pediatrics the AAP “has changed the age recommendations regarding rear-facing car seats, advising that children remain rear-facing for as long as possible.”

As the article notes, the long-standing guidance for new parents has been to place babies in rear-facing car seats until the age of two. New research, however, showed that “at all agers examined, rear-facing car seat use was associated with a decreased risk for injury; the number overall were insufficient to confidently recommend a specific age to transition. Consequently, the policy, specifically recommending age 2 years, needed to be changed.”

The article quotes an Oregon scientist – Benjamin Hoffman, a senior professor and administrator at the Oregon Health and Science University in Portland – saying: “We knew that if our policy said rear-facing until age 2 and we could not back up specifically… we needed to change our guidance to reflect the best available evidence.”

A recent Oregonian article outlined a North Portland accident involving a 13-year-old girl that could easily have been prevented if local officials had paid more attention to the concerns of Portland parents. As the newspaper reports, the girl was struck by a car while crossing at the intersection of North Russell Street and Flint Avenue. “The girl suffered a leg injury and was taken to a hospital,” the paper reports.

What makes this story stand out is the fact that the unmarked crosswalk near Harriet Tubman Middle School has been identified by both Portland Bureau of Transportation officials and Portland school officials as a potential trouble spot – one that ought to have a marked crosswalk. The Oregonian reports local transportation officials had visited this very intersection only “a couple of weeks” before the accident. The paper quotes a spokesman for the Bureau of Transportation saying: “We believe it’s a good place for a marked crosswalk.”

As the newspaper notes, “in Oregon, every intersection is legally a crosswalk, even if there’s no paint on the asphalt.” That means the girl was crossing the street legally – and doing so in a place that had been flagged by area parents on several occasions since the Tubman school’s recent reopening.

A court hearing in Bend earlier this month is bringing long overdue attention to some of the legal issues surrounding accidents and bike lanes. The Deschutes County proceeding focused on the death last November of a 31-year-old cyclist who was “hit and killed in an intersection by a FedEx truck,” according to a report in The Oregonian.

Prosecutors described bike lanes as the center of the case. “This is cultural,” the newspaper quotes the county prosecutor saying. “Many people just don’t think of them as lanes.”

According to the newspaper, the cyclist sped down a hill and through an intersection, colliding with the side of a FedEx semi-truck as it was making a right-turn from NW Wall Street onto NW Olney Avenue in Bend. The rider “was also traveling north on Wall, in a bike lane alongside the travel lane. (He) intended to go through the intersection and not turn right onto Olney Avenue,” according to The Oregonian.

This summer saw some of the largest and most dangerous wildfires ever recorded here in the West. The fall has brought two of the most destructive hurricanes in modern US history to South Carolina and Florida. So, it is with a kind of grim resignation that I return to the subject of insurance companies.

As I have written in the past – most recently in this post from last February – it is essential to look past the insurance industry’s warm and soothing slogans about how they’re always there when you need them. Insurance companies are businesses and their profitability is inversely related to the number and size of the claims they actually pay. That shouldn’t need to be said but, sadly, it does.

This goes well beyond a simple case of ‘always read the fine print.’ Insurance policies are contracts like any other. But it is one thing for a company to inform a policyholder that they are not covered for something and quite another thing for companies to actively seek ways to get out of paying claims that any reasonable policyholder should expect to be paid.

A recent article in the Oregonian detailed the unfolding story of a four-month-old baby who died at an illegal day care center in Hood River and the disturbing degree of information the state had about it in the months leading up to the tragedy.

The newspaper reports that the baby boy was the youngest of ten children being cared for at the facility. Its owners had their license revoked last year after it emerged that they “gave children ‘little white pills’ of melatonin so that they would sleep during nap times according to court documents.” But after being shut down in 2017 the three owners “soon opened the business back up, this time with a different name.”

All three women have now “been indicted on charges of second-degree manslaughter, criminally negligent homicide and first-degree criminal mistreatment,” according to the paper. Yet that fact does not make the disturbing questions surrounding this case go away. In the wake of the scandal surrounding Southeast Portland’s Sunnyside Sprouts daycare the state was supposed to have put in place better policies. These were designed to address the question of child care providers moving from one jurisdiction to another in an effort to conceal disciplinary action or the suspension of licenses. They were also designed to make it easier for parents to find out about worrying regulatory or licensing issues. The case of Mama Shell’s Daycare (which became “Mama Bear’s”) in Hood River clearly indicates that these new rules are not being implemented in the way most of us thought they would be.

Sometimes it takes a tragedy to push the legal system to close a loophole. In the wake of a 2013 accident that left two little girls dead, Governor Kate Brown has done just that: signing a new law Thursday that clarifies the legal obligations of hit-and-run drivers.

“Anna and Abigail’s Law” is named in honor of 6 and 11-year old sisters from Forest Grove “who were struck as they played in a leaf pile” in 2013, according to an article in The Oregonian. It requires “drivers who suspect that they may have caused personal or property damage after a collision to report it to police.”

“Lawmakers pursued the change after the woman connected with felony hit-and-run in connection to the case… had her three-year probation overturned by the Oregon Court of Appeals,” according to the newspaper. At the time, Oregon law did not “require a driver to return to the scene of an accident if he or she learned someone was injured or killed after the fact. In granting (the) appeal the court also ruled there wasn’t enough evidence to establish without a reasonable doubt that (the driver) had reason to believe anyone was hurt after she ran over the leaf pile.”

The Oregonian puts it bluntly in the very first sentence of a recent article: “The number of people killed on city streets and country roads in Oregon is 13 percent higher so far this year, a death toll driven upward this summer by one of the deadliest crashes in state history.”

The single crash mentioned in that last sentence was an eight-fatality incident last month in Harney County, but, as the article goes on to detail, rather than viewing that crash as a statistical outlier police are concerned because they see it as “part of a worrisome trend this year: Multiple people dying in a single incident.” In all, the state “has seen 12 more fatal crashes than last year, but the number of people killed has increased by 37.” The article (linked below) also includes a table that dramatically illustrates how both road deaths and the number of crashes producing them has changed over the last few years. The increase in both the number of crashes and the number of deaths compared to last year is striking, as is the up-and-down (yet consistently high) nature of the numbers themselves over time.

There are a variety of reasons for this. The newspaper notes that over the last three decades the number of troopers patrolling Oregon’s roads has declined in absolute terms even as the state’s population has grown. The officers who are available focus their efforts on I-5 and other major roads and highways, despite the fact that an increasing number of fatal crashes take place on smaller roads, particularly in rural areas. A state official also tells the Oregonian that “while it’s difficult to prove, distracted driving is likely leading to more deaths and serious injuries.” This is in spite of both education campaigns and recently toughened state laws against distracted driving. And, of course, there is alcohol.

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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