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Matthew D. Kaplan

I have said it many times before, but it bears repeating: insurance companies are businesses, not charities. Careful attention to the fine print is important.

An obvious example of this is car insurance. All drivers need to carry it, and the law lays out in great detail what that insurance has to cover and at what level. I want to focus today on Personal Injury Protection, or PIP, insurance. Unlike many states, Washington does not require drivers to carry PIP coverage, though insurance companies are required to offer it as an option. If a Washington driver opts for PIP coverage the legal minimum level is $10,000 (in Oregon, at least $15,000 in PIP coverage is a requirement).

Though many Clark County, Washington drivers may be tempted to waive it, PIP coverage can offer essential financial help in the event of an accident. Washington law requires PIP claims to be paid within a few weeks of being filed. As an analysis by BikePortland explains “few are aware that after a collision an injured person’s automobile insurance pays medical bills first – before health insurance and before the at-fault driver’s auto insurance. The injured party’s own Personal Injury Protection coverage pays these bills.”

We all know that TriMet has its issues, but this one is relatively novel: a driver in Cornelius was charged with DUII last week after “callers reported the bus was swerving” as it headed east on Southwest Baseline Road. The swerving was so bad that it forced another vehicle out of its lane as the bus headed toward Hillsboro, according to The Oregonian, citing a Washington County Sheriff’s Office report.

“No one was on the bus, and the bus was not in service,” according to the newspaper, but those may be the only ‘good’ elements of this story. To state the obvious, even an empty bus can do a lot of damage.

The Oregonian reports that TriMet has opened an investigation. After her arrest the driver “was accused of DUII, but police said alcohol was not a factor. It’s unclear what she was allegedly under the influence of. According to the (police news) release, police are continuing to investigate while toxicology tests are completed,” the newspaper notes.

Just after the Memorial Day holiday weekend, Governor Kate Brown signed HB 2027. This essential legislation has been making its way through the legislature since the beginning of the year, and goes a long way toward closing a legal gap I first wrote about last November.

As The Oregonian notes, quoting one of the bill’s sponsors, this “will give the Office of Child Care the tools to gather information, inspect facilities and hold providers accountable for meeting the highest standards of safety and quality care for children.” Specifically, the new law will strengthen oversight of the day care industry by giving the state Office of Child Care the authority “to issue subpoenas, take depositions, compel witness statements and require the disclosure of records during investigations,” according to the newspaper.

Perhaps even more importantly, it also prevents child care givers who face suspension proceedings from working in the industry.

A shooting incident earlier this month at a teen-focused dance party is raising serious questions about safety and security as we move into summer – a time when the number of youth-focused events always increases.

As outlined in a recent Oregonian article, an argument outside an art space on southeast Madison Street that doubles as a dance club led to a shooting that injured five people, among them a 17-year-old girl. The paper reports that “a man standing outside the warehouse at the corner of Madison and Third Avenue fired at least two shots into the open garage bay and someone fired back at least five shots from inside.” Organizers say “about 200” people were inside the dance venue at the time for what was billed as the “First Official Teen summer Party.” The warehouse is also occupied by a number of other businesses and despite the late hour the newspapers reporting makes it clear that some of those other offices were also occupied at the time.

There were a number of people around the dance venue wearing t-shirts marked ‘Security’ but it is unclear what, if anything, they were doing. Citing police reporting, the newspaper writes that “officers responding to the original call encountered a chaotic scene, with people leaving on foot and in vehicles.”

An incident last summer at a Corvallis athletic club reads like every parent’s nightmare in condensed form. According to a recent article in The Oregonian “the parents of a 5-year-old boy who drowned in a swimming pool at a Corvallis summer camp have filed a $56.6 million lawsuit, claiming the camp didn’t have a lifeguard on duty who might have seen the boy struggling for life over four minutes last summer.”

According to the newspaper the boy went down a waterslide unattended. He was not wearing a life vest, despite his parents having explicitly told the camp that their son would need a flotation device whenever in the water because he cannot swim. The paper reports that he gasped for air and bobbed up and down dozens of times as he struggled. Several camp staff walked past and did not appear to notice. It was only after he was motionless, face-down in the water that anyone tried to save him. From the paper’s account even these efforts leave many questions. Notably, “one staff member pushed an 8-year-old child who was holding onto the side of the pool toward the middle of the pool and urged the child to grab” the drowning boy.

The Oregonian did not detail the exact nature of the family’s lawsuit, though it is fair to infer that an Oregon wrongful death claim under ORS 30.020 is involved. In addition to the athletic club at which the boy was enrolled in a children’s summer day camp, the suit also names several club employees as well as the Oregon Health Authority and Benton County Environmental Health “saying the agencies were responsible for licensing or inspecting swimming pools.”

A bike safety measure that The Oregonian describes as the “top priority in the 2019 legislative session” for cycling advocates has passed both houses of the legislature and is headed to Governor Kate Brown for her approval. Its core is a deceptively simple statement: “A bicycle lane exists in an intersection if the bicycle lane is marked on opposite sides of the intersection in the same direction of travel.”

That might sound like common sense, but a judge in Bend shocked the biking community last fall by ruling otherwise (click here for the blog I wrote on this case at the time). As a matter of law that case turned on ORS 811.415, a statute that defines unsafe passing on the right. In the Bend case a commercial truck driver struck and killed a bike rider in an intersection as the cyclist was following a bike lane through an intersection. The truck was turning. The court held that bike lanes do not exist in places where they are not striped or painted as they pass through intersections, therefore the obligation the truck driver would have had to signal and take due care when turning across another traffic lane did not apply (the newspaper notes that a Multnomah County court issued a similar ruling in a 2009 case). This was a dubious bit of legal reasoning at the time. The legislature has now clarified the question, and deserves credit for moving swiftly to do so.

Under Oregon law a bike lane is just as much a ‘lane’ as one dedicated to cars. ORS 814.400 is titled “Application of vehicle laws to bicycles.” It gives cyclists rights, and just as it requires them to respect the rules of the road in their interactions with cars it requires motorists to respect the rights of cyclists. Indeed, a related law, ORS 814.420, requires that cyclists use bike lanes where they are available. Taking those as a starting point why would one not assume that a bike lane extends across an intersection? To believe it does not would imply that cars need not keep to their lane or turn only in a legal manner when they cross intersections. No one who has passed a driving test would ever believe that is the case.

According to a recent article published on the website of Bend, Oregon TV station KTVZ our country is home to almost 90 million dogs, and “every year, more than 4.5 million people in the United States are bitten by dogs, resulting in an estimated 800,000 injuries that need medical attention.”

Those are pretty extraordinary numbers. Closer to home “insurers in Oregon paid $5.1 million to settle 184 dog bite claims in 2018.” Those numbers do not put our state in the top ten nationwide, according to a recent analysis published by the Insurance Information Institute (III), but they are still significant for a state our size. Perhaps unsurprisingly, the article notes that senior citizens and children are the people most often injured in dog bite incidents.

There is, in fact, an entire chapter of Oregon law (ORS 609) concerning dogs. ORS 609.115 deals specifically with liability issues surrounding “potentially dangerous” animals and ORS 609.098 lays out the liability issues surrounding “dangerous dogs.”

Portland rightly enjoys a reputation as one of the most bike-friendly cities in the country. But fatal accidents still take place, drivers still are not as aware of cyclists as they should be. Even when drivers are trying to do the right thing (as many in Portland are) riders often find themselves struggling through nearly impossible situations.

Take, for example, NW 10thStreet. As a recent article posted on the BikePortland website demonstrates, it is hard for a rider in this part of downtown Portland not to feel endangered. A photo accompanying the article shows a narrow thoroughfare that contains on-street parking, a traffic lane and a streetcar track (with the streetcar and the cars moving in opposite directions). Any cyclist following the law and riding with auto traffic is immediately placed in a highly dangerous situation (as BikePortland notes, the law does allow cyclists to use the streetcar lane, but for obvious reasons many hesitate to do so). The gap between the traffic lane and the parked cars is uncomfortably narrow leaving riders dangerously exposed to drivers who might pull out or open car doors abruptly. There is more space on the opposite side, beyond the streetcar, but that is an area reserved for pedestrians and, in any case, there would usually be no safe place for a cyclist to go in the face of an oncoming tram.

Oregon law is quite explicit about the rights and responsibilities of bike riders. ORS 814.400 begins: “Every person riding a bicycle upon a public way is subject to the provisions applicable to and has the same rights and duties as the driver of any other vehicle.”

In the early part of last week six people died on Portland’s streets over the course of just a few days. At one point, according to The Oregonian, “emergency personnel responded to fatal accidents in North, Southeast and Northeast Portland” in a span of just 11 hours. Going into this holiday week, the newspaper reports, “14 people have died on Portland streets (in 2019), up from 10 deaths at the same time last year.”

City officials urged drivers to slow down, and the police chief announced on Twitter that “I am directing officers to increase enforcement.” “But,” she added, “this is everyone’s responsibility.” The newspaper quotes a city transportation official offering some advice that bears repeating: drivers “need to be alert and to look out for people walking, not drive distracted, not under the influence.”

I have used this space on many previous occasions to note Portland’s efforts to reduce pedestrian and cyclist deaths. A big part of that has been Portland’s participation in the global Vision Zero program (see links below). As The Oregonian explains, Vision Zero aspires to eliminate traffic deaths by 2025 through a combination of “redesigning streets, educating the public about safety concerns and enforcing traffic laws.” As part of Vision Zero Portland has both stepped up enforcement efforts and lowered the speed limit on key streets and roads around the city.

The series begins with several examples of prison and jail deaths, followed by a stark statistic: “Since 2008, at least 306 people across the Northwest have died after being taken to a county jail.” Over the course of a three-part investigation published last week Oregon Public Broadcasting, working in cooperation with other public media outlets in Oregon and Washington, offered a detailed, and disturbing, look at the state of health care available to people jailed here in the Pacific Northwest.

Notably, the death statistic does not come from an official source. As OPB reports, “until now, that number was unknown, in part because Oregon and Washington have not comprehensively tracked those deaths in county jails.” In other words: it took a media investigation to determine the extent of the problem, one that OPB calls “a crisis of rising death rates in overburdened jails that have been set up to fail the inmates they are tasked with keeping safe.”

OPB reports that suicide is “by far the leading cause of jail deaths in the Pacific Northwest, (accounting) for nearly half of all cases with a known cause of death.” Yet the issues the series raises concerning negligence and indifference on the part of jail staff are also significant. The series offers a number of examples of inmates who died after being served food to which they were allergic, or whose complaints about serious medical issues were ignored.

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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