Articles Posted in Motor Vehicle Accidents

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.

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.

A two-vehicle accident involving a Portland police officer earlier this month merits special attention because of what it can teach us about civil options beyond workman’s comp available to people injured on the job.

The Oregonian reports that “a Portland police officer and another driver were seriously hurt” in a crash in I-205 earlier in March. “The officer was working a ‘static detail’ at a construction site on the northbound interstate south of Southeast Division Street when a driver hit the officer’s vehicle from behind. The officer was pinned in the vehicle and was extracted,” the newspaper writes. Injuries to both the officer and the driver of the SUV that allegedly struck his car are described as serious but not life-threatening.

From a legal perspective the officer now has some important choices to make. At this point most readers will rightly assume that the officer, having been injured on the job, will be covered under the police department’s workers’ compensation insurance program. That is true, but it is not the whole story. Under Oregon law the officer also has the right to hire his own attorney and can seek to recover non-economic damages related to the accident. “Non-economic damages” is a broad legal category that includes things such as pain and suffering and changes to the victim’s life. They do not include things like medical bills and lost wages and, as the legal resource website Justia explains “are less concrete than economic damages and are subjectively evaluated” whether by a judge or jury. (see link below) This element of subjectivity makes it especially important for anyone who has been injured in an accident to consult an experienced attorney who can walk victims and their families through the options and the evaluation process.

The Associated Press recently reported on the sentencing of a woman in Deschutes County to more than 12 years in prison following a December 2017 incident in which she struck and killed a 38-year-old Bend woman who was riding a bike.

The news agency, citing local TV station KTVZ, quotes the Deschutes County Circuit Judge overseeing the trial calling it “the most extreme reckless endangerment case:” he had ever seen. The defendant was convicted “for hitting and killing a cyclist while driving under the influence (of)… nearly a dozen prescription drugs, including her dog’s anxiety pills, at the time of the crash,” the AP reports. Clearly there is a case to be made for punitive damages here.

Though the criminal trial is now over, the question of civil damages is one that may still need to be addressed. Obviously there is a strong case to be made for a wrongful death lawsuit on behalf of the victim’s estate. It is also worth noting that, according to media reports, the woman was “riding with two friends” on a road east of Bend at the time of the accident. The survivors, even if they were not physically injured, may have a strong case to make for damages based on the mental distress they have suffered in the wake of their friend’s death. All of these parties – the decedent’s beneficiaries as well as the other two people impacted by the accident – have a strong claim to punitive damages.

Following up on my recent blog about the dangers in Oregon’s system of uninsured and underinsured motorist coverage an incident on Interstate-5 near Olympia, Washington is bringing similar issues into focus north of the Columbia River.

According to The Olympian an arraignment is scheduled to take place next week for a man “whose vehicle crashed into a 16-year-old Oregon girl” killing her and injuring both the driver himself and two other people. The 40-year-old man from Poulsbo, Washington faces vehicular homicide charges “as well as four counts of reckless endangerment.”

The newspaper reports that the accident took place when one car, which multiple witnesses described as driving erratically, hit two other cars that were stopped in a breakdown lane and waiting for assistance. The 16-year-old who had been driving one of those cars was killed in the accident and her mother was seriously injured. Two other people – the girl’s uncle and brother – were not injured. Also injured was the driver of the erratic car along with his 8-year-old daughter.

An article published a few days ago in The Oregonian offers a good opportunity for us to examine the problems with Oregon’s systems for dealing with uninsured and underinsured motorists.

The newspaper reports that “a 29-year-old driver who lost control of his car and hit several parked vehicles, causing traumatic injuries to one of his passengers” fled the scene of the accident on foot and was arrested several days later. The accident took place on 92ndAvenue near the intersection with Powell Boulevard in Southeast Portland. The newspaper quotes police saying a 34-year-old woman was hospitalized with life threatening injuries after the incident. The woman’s fiancé was also injured.

The driver “is accused of two counts of felony failure to perform duties of a driver to injured persons” according to The Oregonian. We do not know for certain, but the driver’s decision to flee strongly implies that he was either uninsured or underinsured. As most readers of this blog are probably aware, Oregon and Washington both require every driver to purchase insurance with a minimum of $25,000 in liability coverage.  Those insurance policies almost always provide coverage against being hit by an uninsured and underinsured motorist for the same $25,000.

In an exciting development for area cyclists, The Oregonian reports that Portland’s city council has “blessed a plan to build a protected two-way bike path on North Greeley Avenue between Interstate 5 and Swan Island.” The $1.9 million project will involve repaving Greeley as part of the construction process. If everything goes according to plan the path will be open in the fall of 2019.

The path will be a significant addition to Portland’s cycling infrastructure, creating a protected cycleway to replace what the newspaper says “might be one of the most dangerous bike lanes in Portland.” I have written in the past about the dangers of cycling on North Greeley. A video on The Oregonian’s website aptly illustrates what a hair-raising experience a ride along this road currently is. Traffic speeds past on a road where the existing shoulder is narrow and in poor condition. The paper notes that “two bicyclists have been seriously injured on the stretch of road between 2007 and 2016.”

Oregon already has strict laws designed to protect cyclists. ORS 811.050 designates failure to yield to a cyclist in a bike lane as a Class B traffic violation (meaning it incurs a fine of up to $1000). That is important to keep in mind on North Greeley where even after the new bike path is constructed drivers headed south will have to cross the bike lane as they enter the I-5 onramp.

A 23-year-old Woodburn woman was arrested and charged with a series of offenses after a single-car accident in Clackamas County. According to The Oregonian the accident took place a few days before Christmas on Highway 211 near South Palmer Road. The woman “is accused of second-degree manslaughter, fourth-degree assault, driving under the influence of intoxicants, reckless driving and recklessly endangering another stemming from a single-car crash that killed one of her three passengers.”

The newspaper reports that the vehicle “veered off the road and struck a tree.” One of the passengers, a 26-year-old Woodburn man, died at the scene of the accident. The driver and the other two passengers were all taken to OHSU hospital, where the driver was later arrested.

New Year’s Eve is next Monday. That means that for many people one of the most dangerous nights of the year to be out on the roads will also be part of an extra-long holiday weekend. As is always the case over New Year’s there will be many options involving both public transport and taxi/ride share systems to help people get home safely. A number of these can be found by clicking the KATU-TV link below.

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.

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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