Articles Posted in Personal Injury

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.

It is getting warmer, which is always a good thing, but the spring also brings dangers – sometimes dangers that may not seem immediately obvious.

I’d like to focus today on water safety, a topic that regular readers will know I have addressed in the past. As a recent article in The Oregonian outlines the temptation to cool off in Oregon and Washington’s rivers at this time of year needs to be accompanied by some simple but important safety precautions.

“Entering cold water can cause swimmers to gasp, inhale water and then go under,” the paper notes. “Currents can keep swimmers from reaching safety.” The key thing to remember is that even on a hot day the water can be very cold. This is something most of us intuitively understand when it comes to the ocean, but which can be easy to forget where rivers are concerned. It is especially important since rivers, with their fast-flowing currents and other obstacles such as rocks and trees, are often even more dangerous than swimming at the beach.

The Associated Press reported earlier this month on a boy who died “after falling off a parade float on his seventh birthday.” The tragic event took place during the Miner’s Jubilee Parade in Baker City. The news agency says the boy “was struck by the rear wheels of a commercial vehicle” after falling from the float.

According to AP the authorities in Baker City are treating the event as an accident. But even if this tragedy was an accident that does not mean that no person or organization bears responsibility for what happened. Indeed, when a child is killed or injured all of us have a special obligation to investigate the circumstances to the fullest possible extent.

From a legal standpoint, this means looking at questions of health and safety in much the same way we might consider any other question of negligence leading to an injury or death. Special attention needs to be paid both to the organization of the parade and to the construction and operation of the float on which the child was riding.

Last week a jury in St. Louis became the fourth in a year to award substantial damages to a plaintiff who believes that consumer goods giant Johnson & Johnson’s talcum power is linked to ovarian cancer. According to a Bloomberg News report, the Missouri jury awarded the woman $110 million in damages. This follows three jury verdicts of $55 to $72 million in similar cases last year (the company has won one case during the same period, according to Bloomberg). Appeals are expected in all of the cases.

The agency quotes the attorney for the plaintiff in the St. Louis case saying: “Once again we’ve shown that these companies ignored the scientific evidence and continue to deny their responsibilities to the women of America… they chose to put profits over people, spending millions in efforts to manipulate scientific and regulatory scrutiny.” In addition to the millions in damages from J&J the jury also Imerys Talc America, a separate company that manufacturers talc sold under the J&J label, to pay $100,000 in damages.

Bloomberg reports that more than 1000 cases alleging a link between J&J’s talc and ovarian cancer have already been filed. Though J&J is headquartered in New Jersey many of these cases have been filed in Missouri because that state’s laws allow for suits like these to be filed in its courts even when the plaintiff has no connection to the state (last week’s $110 million verdict involved a woman from Virginia). But is it necessary for all these cases to head for the Midwest? Are the product liability laws here in Oregon adequate to address cases like this?

A recent article in The Oregonian outlined the details of a $142,000 fine leveled against a Portland excavating company for a fatal job site accident last May.

According to the newspaper a 29-year-old worker died when a trench in which he was working caved-in. Referring to an investigation by the Oregon Occupational Safety and Health Agency the newspaper writes: “The investigation found two employees were working in an improperly shored trench that was about 10 feet deep… the excavation was incorrectly braced because two pieces of shoring were spaced too far apart to handle unstable soil.” Critically, the newspaper reports that “the company’s owner, who was on site, said he was negligent in allowing his employees to work in such a situation. He said he saw that the shoring was set up about 15 feet apart and he knew that it was not set up correctly.”

The fact that the OSHA has acted to impose a fine is important, but it does not mean that the legal consequences surrounding this incident are over. From a civil law perspective the admission by the owner that he knew he was asking his employees to work in unsafe conditions opens up a number of important questions. This case represents a clear violation of the Employment Liability Act (ORS 654.305 and ORS 654.325), a law whose entire purpose is to make sure workers are not exposed to dangerous conditions.

Last Friday was a significant day in Gresham. It marked the first anniversary of the death of 13-year-old Aaron Peters, and also the dedication of what family and friends hope will be the first of many monuments built in his memory.

A gathering in Gresham’s Oxbow Park, near the site on the Sandy River where Aaron drowned last year, marked the dedication of a life jacket kiosk funded with money raised by the Aaron Peters Water Safety Fund. The kiosk offers several dozen life jackets in sizes from infant to adult. They are available for free as loans to anyone using the park who wants or needs them. “We don’t want any family to go through what we did. If one person is saved it’s all worth it,” Aaron’s grandfather, Don Wood, told television station KGW at the ceremony.

Through the fund the family hopes the Oxbow Park kiosk will be only the first of many. Statistics compiled by the Centers for Disease Control indicate that drowning is a surprisingly widespread problem, especially among children and teenagers. “From 2005-2014 there were an average of 3,536 fatal unintentional drownings (non-boating related) annually in the United States – about 10 deaths per day,” the CDC website reports. It goes on to note that while small children are more likely to drown in a swimming pool “the percentage of drownings in natural water settings, including lakes, rivers and oceans increases with age.” Among teens 15 and older 57% of all drownings take place in natural waters. Since rivers are rarely protected by lifeguards the presence of a kiosk like the one dedicated in Gresham last Friday can make all the difference for a child or adult wanting to take advantage of the river.

Something to consider as summer begins: According to The Oregonian there are “more than 300 carnival rides with valid permits in the state.” But it is worth asking what, exactly, those permits mean. Many Oregonians visiting a traveling carnival this summer may assume that the state permit posted prominently on each ride means it has been inspected by the by a government official for safe operation and maintenance. As the newspaper outlines, however, that is not really the case.

“When it comes to carnival ride regulation, Oregon falls somewhere in the middle, between California – a state with a dense thicket of amusement park and carnival regulations – and Alabama, where regulation is essentially nonexistent,” the newspaper reported recently. “Oregon doesn’t have a government-funded inspection program. Instead it relies on insurance companies to verify that each ride has been inspected and is ready for use.” Carnivals send the forms provided by their insurance companies to the state, pay a $28 fee and, in return, receive their permits from the Oregon Building Codes Division. While federal standards for carnival rides do exist (they are issued by the Consumer Product Safety Commission) adherence to them is voluntary, The Oregonian reports.

According to the newspaper, Oregon is lucky in one respect: because Washington has much stricter rules, and because many inspectors work in both states, “almost by default, Oregon ends up following Washington’s more stringent regulations.” The same inspector would be paid by the carnival operator in Oregon but by the state inspections body when working in Washington.

A recent article in the Salem Statesman-Journal highlighted a popular hiking area near the town of Pacific City that has become increasingly dangerous. The newspaper solicited feedback from readers about the best way to make the area around Cape Kiwanda safer.

According to the newspaper, “seven people have died in the popular Oregon coast destination… since 2009, including five during the past eight months. The tragedies have been almost entirely experienced by teenagers, with the average age of victims at 19 years. Most of the time the victims hiked up a sand dune, disregarded fencing and signs, climbed onto a hazardous sandstone bluff and fell into the ocean.”

The article notes that state and county officials are searching for new ways to deal with the problem of drowning in the area. The paper published photos of the existing signs at the Cape, which read simply “Danger: Do not go beyond this point,” and contrasted them with a sign on a different part of the trail which takes a much more forceful approach. That posting reads: “Danger!! Several fatalities have occurred in and around these waters. STAY ON THE TRAIL”

The scandal surrounding defective auto airbags manufactured by the Japanese company Takata got worse this week. According to a story just published by the New York Times “Honda Motor Co. said Friday that it would recall 5.7 million cars worldwide in the latest round of recalls involving Takata Corp. air bag inflators that can explode and hurl shrapnel into the vehicle.”

The paper reports that about 2.2 million of those vehicles are here in the United States. That’s on top of the 24 million units from Honda and other companies that were already on the recall list in the United States alone – and tens of millions more worldwide. It is a scandal that has only grown over the last year. According to the Times 11 deaths and at least 139 injuries have been inked to the shrapnel-laden airbags..

The latest recall notices came just days after senators Edward Markey of Massachusetts and Richard Blumenthal of Connecticut “called on the Obama administration in a letter to force the recall of every Takata airbag that uses a propellant that contains a compound called ammonium nitrate, which can degrade over time and become unstable,” according to a separate Times article published earlier in the week.

Last week the United States Chamber of Commerce released its annual “Lawsuit Climate Survey” – a report the Chamber has published since 2002. The Survey is worth examining because its conclusions can tell us a lot about both the Chamber as an organization and about big business’ priorities and views of our justice system.

According to the website Public Justice, the Chamber’s “report summarizes the answers of a ‘nationally representative sample of 1,203 in-house general counsel, senior litigators or attorneys, and other senior executives who are knowledgeable about litigation matters at companies with annual revenues over $100 million.’” It is, in short, a survey designed to gauge the views of big business toward our courts, and to rank those courts in terms of their favorability toward large companies and their legal agendas.

According to Public Justice, the Chamber finds that state courts are generally more favorable toward companies than federal courts, and that they have become steadily more business-friendly over the last decade, albeit at a slow pace. “In 2003, Corporate America’s lawyers gave the state courts a score of 50.7; in 2015 they gave them a score of 61.7,” the website reports. In assigning letter-grades to states based on the ‘business-friendly’ record of their courts 52% of all state courts were awarded either an ‘A’ or a ‘B’.

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