Articles Posted in Wrongful Death

For the second time in as many months an infant has died in an Oregon day care facility. More shockingly, this latest tragedy took place “at a Southwest Portland day care previously cited three times for illegally watching children without a license,” The Oregonian reports.

As I detailed in a blog post last month, the earlier death took place in Portland and involved a 10-month-old boy. In that instance, it was the second infant death in the facility in as many years. The incident led state authorities to close the day care center, but left significant questions unanswered. Notably: how had the facility remained open after the first death?

In this instance many of the same questions need to be asked, perhaps even more urgently. The victim at the Southwest Portland facility was not-quite five months old. The Oregonian reports that “police are awaiting results of an autopsy and toxicology report, which could take several months” but the more immediate question is how a care facility with three pervious citations for operating illegally could still be in business in the first place. According to the newspaper, all three of the citations for illegal operation were issued in the last 10 months.

The death of a 13-year-old girl last week in southern Oregon’s Jackson County should prompt a broader discussion about how we keep children safe as they wait for school buses, especially in rural areas.

As detailed by The Oregonian, the girl was waiting for the school bus at the end of her family’s driveway “on a rural Jackson County road… when she was struck by a passing vehicle, something attached to it or the vehicle’s load.” A search is on for the driver, whom police say may not have even been aware of having struck the child. The fact that so many questions remain unanswered about how the girl was hit, and even at a more basic level what hit her, indicates that law enforcement and school officials still have much work to do. But those essential tasks should not cause police, school officials and the wider community to miss addressing another critical question raised by this child’s death: was standing at the end of her driveway a safe and well-thought-out way for her to be waiting for a ride to school?

In an era of near-constant educational cutbacks we should start by asking whether it was really necessary to have a lone girl standing where her family’s driveway met the road? Was this the only way for the bus to pick her up, or was it just the most efficient way to plan the bus driver’s route? When those bus routes were planned how much thought was given to student safety? As winter approaches and the days continue to get shorter this is a particularly pressing question. According to The Oregonian last week’s fatal accident took place before 7:30 am (the time at which the child’s body was discovered by a passer-by). Over the next four months it will not be unusual for children to be waiting for their school buses in the dark or in half-light and for them to be walking home from their bus stops in the afternoon dusk. Such considerations need to be at the forefront of route planning, and cannot merely be an afterthought.

The Oregonian reports that state officials are moving to close the a Portland day care center after a child died at the facility. What makes this incident particularly distressing is the news that this is the second Oregon child death at the center in 18 months.

The newspaper reports that police have not disclosed the circumstances of the fatality, and that the medical examiner is still conducting an investigation. The paper adds, however, that “state regulators immediately suspended all childcare at the facility… concluding that circumstances there presented ‘a serious danger.’”

The paper notes that “Oregon has recorded eight deaths at licensed day cares since 2007, according to the Office of Child Care. With more than 4000 facilities in the state, there have never been two deaths at the same location, the child care office said.” The newspaper quotes an official from the office describing the situation as “unprecedented.”

Families of the people killed and injured in a terrible accident almost exactly a year ago may soon take a first step toward justice with the announcement of an arrest in the case. According to television station KABC “the driver of a big-rig who allegedly caused a passenger bus crash that killed 13 people in 2016 near Palm Springs has been arrested in Georgia.”

As coverage of the accident in USA Today details, the driver “stopped for traffic in the far-right lane of Interstate 10 on October 23, 2016, and dozed off, authorities say. While (he) was sleeping, traffic began moving again, but his vehicle continued to block the westbound lane.” A tour bus hit the stopped semi-truck at a speed of 76 miles per hour the paper reports, citing court filings. The driver now faces “13 counts of felony manslaughter with gross negligence… 11 counts of felony reckless driving with injury and 18 counts of misdemeanor reckless driving with injury.”

Chillingly, USA Today adds: “Charging documents indicate he (the truck driver) has continued to work as a bus driver since the crash.” The paper also notes that the driver “violated federal regulations for truck drivers and falsified his driver’s log.” He had reportedly only had seven hours of “sleep opportunity” during the 24 hours preceding the crash, and “it is unlikely that he actually slept during those opportunities.”

From his hospital bed a Portland man gave a statement to police this week in which he acknowledged drinking, drag racing and a fatal crash that killed a cyclist in Gresham, according to The Oregonian.

The man “told police he had two alcoholic drinks before racing a random driver in Gresham early Sunday (October 8), crashing into another car, then hitting and killing another man riding his bike” the paper reported, citing court records. It notes that despite the 23-year-old man’s claim to have had only two drinks “his blood alcohol content was still above the legal limit when his blood was tested 17 hours after the crash.”

While drag racing another vehicle the man also wound up driving on the wrong side of Southeast Stark Street. According to a witness cited by the paper, the fatal crash involving the cyclist took place when the driver “went into oncoming traffic, hit a Ford Escape, spun around” and struck the bike rider.

The well-known organic and health-food manufacturer Amy’s Kitchen is based in California but operates a plant here in Oregon. According to a recent article in the Sonoma Press-Democrat the company is being sued “by four former employees who claim the company systematically put workers at risk through overwork and unsafe conditions.”

At first glance this would appear to be a straightforward worker’s comp dispute. According to the newspaper a key allegation in the lawsuit involves injuries allegedly sustained by one plaintiff while handling large and heavy objects in the plant. While the current lawsuit as reported by the Press-Democrat does not seek damages on the basis of third-party liability issues these are worth exploring on a hypothetical level, because they are a potential factor in many workplace deaths and injury cases.

The key case when considering this sort of third-party liability in Oregon is Kilminster v Day Management Corp (323 Or. 618) which was decided by the Oregon Supreme court in 1996. In that case the estate of a man who died on the job contended that the employer “deliberately did not provide its workers, including decedent, with legally-required safety equipment.” The court also found that the company did not offer necessary safety training to employees and did not have a proper safety plan in place.

A recent article in the Salem Statesman-Journal outlined a distracted driving conviction in Keizer that was a first for Oregon. According to the newspaper “a Medford woman became the first person ever to be convicted of causing another person’s death by driving while distracted by her cell phone.”

The 50-year-old woman pleaded guilty to criminally negligent homicide earlier this month “and was sentenced to three years of supervised probation,” the newspaper reported. The September 2015 accident took the life of a 68-year-old man who was crossing the street when struck by the woman’s car.

The case highlighted a significant loophole in Oregon’s distracted driving statute. As the Statesman-Journal reports, a 2015 Oregon Appeals Court ruling (State v Rabanales-Ramos – 273 Or App 228 (2015)) took a narrow view of the Oregon distracted driving law (ORS 811.507), essentially creating a loophole for all forms of distracted driving other than talking on the phone or texting. Under this interpretation, for example, using an eReader such as a Nook or Kindle would have been permitted while driving.

The death this month of a 15-year-old Grant’s Pass boy as he waited for his school bus raises serious legal questions that I would like to take a moment to explore. As reported recently in The Oregonian, the boy “was waiting on the sidewalk at his bus stop around 6:50 am” when a pick-up truck “drove over Redwood Avenue’s center turn lane, into the opposite lane of travel and onto the sidewalk, hitting him.”

The driver of the pick-up was a 21-year-old man from Central Point. After hitting the boy, the paper reports, he “drove off the sidewalk and stopped nearby, authorities said.” He is now being held in a local jail and faces both a criminally negligent homicide charge and separate drug possession charges. The Oregonian reports that heroin was found in the pick-up though it does not say whether blood tests indicate that the driver was under the influence of drugs or any other substance at the time of the accident.

Beyond the criminal charges the driver faces this is exactly the sort of case where civil liability is justified to help family members know that justice has truly been served. To that end, it is instructive to examine Oregon’s Wrongful Death statute (ORS 30.020) in greater detail.

A bicyclist died in a Portland accident Monday involving a box truck, according to a report published in The Oregonian. The newspaper reports that the accident took place at the intersection of Farragut Street and Interstate Avenue in North Portland.

The truck driver was “making a right-hand turn and killed a cyclist who was riding in the bike lane beside him,” the paper reports, quoting the police. “(Police) said early information indicates the driver wasn’t distracted or impaired.” Though the newspaper reports that the driver of the truck is cooperating with the authorities it also notes that he was neither arrested nor issued a citation at the scene of the accident.

There are several different sections of the Oregon legal code that might come into play as this case unfolds. At the most basic level ORS 811.135, which covers Careless Driving, could leave the 38-year-old truck driver subject to significant penalties and a loss of his license for up to a year. Under ORS 811.050, “Failure to yield to rider on bicycle lane”, the driver could also be subject to a Class B traffic violation and an accompanying fine.

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.

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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