Articles Posted in Premises Liability

The February death of a worker at a winery in Dundee, Oregon has resulted in a fine of more than $11,000 being levied by the state Occupational Safety and Health Agency. An OSHA statement issued late last week offered the basic facts of the case, but also left several key questions open.

According to media reports, the victim was a 39-year-old McMinnville man employed as a cellar worker at Corus Estates & Vineyards. The OSHA statement details how the man suffocated and then fell into a 30,000 gallon wine tank as he was moving a portion of the wine from that tank to another. Servicing the tank involved going into a confined space where “low-pressure nitrogen gas was being pumped in from the top of the tank to prevent oxidation of the remnants,” the agency statement explains. “The employee was asphyxiated as a result of the displacement of oxygen due to the low-pressure nitrogen gas in the tank.” After falling in, the worker was found unresponsive.

The total fine of $11,100 was broken down into several parts by the agency, and the details of those elements makes interesting reading. By far the largest portion of the fine – $7500 – was assessed for failing to test the air in the space around the tank before the job got underway and failing to have an attendant and an entry supervisor monitor the work, as required by law. Separate fines of $1200 each were imposed for failures to review and practice safety and rescue procedures, failure to properly renew the required permits and failures of employee training, including not offering safety information in Spanish.

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.”

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.

With the first day of school here in Portland now less than two weeks away this is a good time to focus our attention once again on the issue of lead in school drinking water. As I wrote in a blog last May, the issue emerged with special urgency as the previous school year drew to a close with the citywide scandal in Flint, Michigan drawing national attention to lead poisoning issues nationwide.

Unfortunately if local and national media coverage are anything to go by the answer to the question: ‘Have the Portland schools used the summer months to fix the problem?’ is: hard to say; it isn’t clear. An article published in The Oregonian just this week focused on similar problems in Beaverton – indicating that the problem is not confined to Oregon’s largest city, but with the Portland Schools still trying to finalize selection of an interim superintendent attention appears to have drifted away from the issue of lead in the school system’s drinking water.

As a report last week in The Oregonian detailed, the Portland Public Schools system’s record is not good. “Lead-reducing filters cost about $100 and are proven by independent laboratories to reduce lead to below 10 parts per billion. The district used filters that in 2008 cost $12.87 apiece.” A 2007 plan to install filters directly on drinking fountains went awry when it was discovered that the contractor used the wrong filters. A 2011 attempt using a different company led to filters that were supposed to last seven months failing after only 12 days.

A fatal stabbing at a niteclub in Northeast Portland last week has led to a murder charge, according to a report published in The Oregonian. It also raises a significant civil law question, however, one that deserves greater public attention as the case unfolds in the weeks and months to come.

According to the newspaper a 29-year-old woman was stabbed to death in a club on NE 60th Avenue last week following an argument with a 23-year-old woman. Citing police the newspaper reports that the two women knew each other. The victim died at the scene and the alleged killer was arrested without incident shortly thereafter at a nearby convenience store. In addition to murder the suspect has been charged with unlawful use of a weapon, according to the newspaper.

What makes this case particularly interesting from a civil perspective is the long history of violence in or near the club. According to The Oregonian “the club has been connected with violence in the past. A 33-year-old man died and a 21-year-old woman was injured in an overnight shooting outside the club in 2013. And in January 2011 a man celebrating his 24th birthday was fatally shot outside the club.”

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”

An Associated Press report republished by the Salem Statesman-Journal this month is distressing. According to the news agency, a 3-year-old girl was critically injured in Oregon City when the child “fell into a crawl space.”

This was not, however, an at-home accident. The crawl space was in a house that the girl’s mother was viewing along with a real estate agent. In fact, there is some evidence that the accident could have been worse. “Clackamas County fire officials say the girl was playing with her brother beneath stairs near the hatch to the crawl space” at the time of the accident, according to the news agency.

While controlling one’s children is ultimately a parent’s responsibility, the details of this Oregon child injury accident raise a number of unsettling questions related to Oregon premises liability. A homeowner who places a house on the market for sale has a responsibility to ensure that it is safe – or that potential buyers are warned well in advance that they are visiting an unsafe property. Responsibility for conveying this information to buyers and other potential visitors, in turn, passes to a real estate agent when that agent brings someone onto a property to view it. Parents viewing a potential family home should not be confronted with a safety problem of this seriousness when they are merely visiting the property for a look.

Even as police investigate the death last week of a 33-year-old man outside a Northeast Portland strip club the circumstances surrounding the incident have raised serious questions about how well the club was handling its security arrangements – questions that could eventually expose the club to an Oregon wrongful death claim.

As The Oregonian reported last week, the man “collapsed on the sidewalk outside the club and died from a single gunshot wound to the head.” A 21-year-old woman was also injured in the Portland shooting incident and was treated at an area hospital.

“The homicide marked the second fatal shooting at the location in two years. An inspector from the Oregon Liquor Control Commission has launched an investigation with Portland police to see if alcohol service played any role in the shooting,” the newspaper notes, citing a spokeswoman for the commission.

A fascinating article in The Oregonian last week spotlights an oft-overlooked Portland premises liability issue. The article details how a local non-profit group, Southwest Trails, has spent years creating walking trails throughout the Portland area. Most of the time these trails run along streets. In a few cases, however, they cut through city owned easements behind houses.

When the trails go through an easement they are not supposed to be improved (by, for example, adding a staircase) without both a city building permit and the permission of the adjacent property owners. Property owners could, according to the paper, incur Oregon property liability for accidents on a staircase or path abutting their homes. As the article details, however, it has recently emerged that Southwest Trails often failed to obtain the necessary clearances for its work – and that until recently the city never enforced the requirement for permits.

The issue is an especially serious one because of the liability issues to which property owners might be exposed. When someone is injured on public property, or on a public easement, a Portland premises liability attorney should be consulted immediately to see whether a case exists under Oregon personal injury law.

According to news reports, the Environmental Protection Agency is reconsidering its endorsement that it is okay to use ground-up, recycled tires on kids’ playgrounds and sports fields. The tire mulch has been used to cushion the ground in the event of a fall accident.

Now, however, the EPA says there is not enough information to determine whether use of these recycled tires could actually prove a health hazard, and communities in Oregon and other US states are wondering whether they could lead to the inhalation of metals, lead, and chemicals if children touch, inhale, or swallow the material.

The Centers for Disease Control and Prevention says older fields that are more worn down may pose a greater risk for lead exposure. It’s also important to note, however, that not all turf fibers are made with lead.

With the summer holidays fast approaching, many school kids are likely to spend time outdoors playing in local playgrounds or on playground equipments in residential backyards. It’s a good time to note that recycled tires may not be the only issue of concern when it comes to kids’ safety.

Playground Accidents and Injuries
SafeKids USA calls playground accidents the number one cause of injuries to kids ages of 5 to 14—with 150,000 kids each year ending up in US emergency rooms because they were involved in accidents involving playground equipment. About 10 kids die from playground injuries annually, with many injuries caused by fall accidents or strangulation accidents, such as when a piece of clothing gets caught on playground equipment.

Playground equipment that have been known to cause injuries to kids include:

• Swings with metal or wood seats or half-bucket seats
• Adjustable seesaws with chains
• Merry-go-rounds or roundabouts that lack the proper handgrips
• Poorly secured climbing ropes
• Monkey bars
• Lack of a proper playground surface
A defective playground product that causes personal injury can be grounds for an Oregon products liability case involving injuries to children. A premise that has a hazard that causes injury can be grounds for an Oregon premises liability lawsuit.

EPA rethinks play padding, Chicago Tribune, June 5, 2009
No. 1 Cause of Injury in Elementary School: Playground Accidents, Safe Kids USA
Related Web Resources:
Playground Safety,
US Environmental Protection Agency

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