Articles Posted in Wrongful Death

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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.

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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.

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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.

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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.

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A short report over the weekend in The Oregonian regarding an inmate death at Multnomah County’s Inverness jail could mark the beginning of a series of lengthy legal questions. According to the newspaper an inmate “was found dead inside a cell Saturday, according to the county sheriff’s office.” The paper adds that the county medical examiner has begun an investigation.

From this seemingly straightforward beginning there is the potential for significant legal claims to develop. Life in prison, or even in a shorter-term facility like a county jail, can often be difficult and harsh. Many Americans do not take issue with this reality. That essentially political view, however, does not change the fact that when the government at any level takes control of every aspect of an individual’s life by placing them in custody it also takes on certain responsibilities. Leaving aside the quite significant fact that people in custody who have not been convicted of a crime (which is a substantial portion of those in custody at any given moment) remain innocent until proven guilty, there is the equally important fact that the state has a duty of care for those in imprisons even after they have been found guilty of a crime.

A key statute that applies to cases like these, and the legal actions for wrongful death that can sometimes emerge from deaths in custody, is 42 United States Code 1983, a short paragraph that “is invoked so frequently that it is often simply referred to as ‘Section 1983’” according to an analysis published in the Santa Clara Law Review.

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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.

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Two months ago I wrote about the legal issues surrounding traveling carnivals and the fact that in many parts of the country they receive far fewer safety inspections than one might think. The death last week of a 10-year-old boy who was riding what is billed as the world’s largest waterslide, has brought these issues sharply into focus with new attention being paid to fixed-location rides in theme parks, and how they differ, in regulatory terms, from traveling carnivals. The 168-foot-tall waterslide where this month’s tragedy occurred is located at an amusement park near Kansas City, Kansas.

One might expect that large rides designed to induce an adrenaline rush through speed and danger would receive more regular and more careful attention than a traveling show: they offer even greater potential danger (because of the heights and speeds involved) yet are far easier to inspect (since they are not constantly moving from town to town). As the reporting since last week’s tragedy has shown, however, that assumption is badly misplaced.

The Kansas City Star reports that the “responsibility for inspecting Schlitterbahn water park rests primarily with its owners, not any state or federal agency.” The newspaper added that the water slide where the boy died “had not been inspected by the state since it opened two years ago, government records show.” More tellingly, the paper reports that a Kansas law governing amusement park rides requires annual inspections but allows these to be conducted by private-sector inspectors hired by the ride’s owners. The state can audit the inspection records, but is prevented by law from doing so more than twice every six months. According to the Star there have been no state inspections of the waterslide where the boy died in the two years since the ride opened.

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An illegal pass attempted by the driver of a semi-truck near Burns last week left the driver of an oncoming car dead and her passenger hospitalized in critical condition, according to The Oregonian.

The newspaper writes that the Oregon truck crash took place on US-20, near milepost 156. First responders arriving on the scene found the semi-truck “tangled with a Ford Focus to the side of the road.” Citing law enforcement sources, the paper reports that the truck “was towing a flatbed trailer westbound on the highway when (the driver) attempted to pass a slower motorhome in a no-passing area with double yellow lines.” The driver of the Focus, which was traveling in the eastbound lane “attempted to avoid the collision by swerving into a ditch, but (the truck) attempted the same maneuver… they crashed near the edge of the highway.”

The driver of the car died at the scene of the head-on semi-truck crash. Her passenger was flown to a Portland hospital with life-threatening injuries. The truck driver “was taken to the Harney County Hospital, where he was treated for minor injuries,” the newspaper reports.

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Controversy over a $1.45 million settlement between the state and the families of two state employees who died in an Oregon highway crash in 2014 has caused some to lose sight of the real importance of the case. As The Oregonian reported over the weekend, the settlement was relatively large by Oregon standards, but, as lawyers consulted by the newspaper noted, that may be because “the (victims’) estates had a strong case against the state.”

According to the newspaper the couple, both employees of the Oregon State Hospital, died in the fall of 2014 “when a pickup veered across I-5 and hit… (their) 1993 Nissan Sentra head-on. From a legal perspective there were two especially important points to note about this Oregon wrongful death case. The first is something relatively rare – a successful lawsuit focused mainly on faulty road design. The second is the way that this incident demonstrates the careful weighing of responsibility our courts are called on to make in cases like this.

As The Oregonian writes, the argument that the man and woman’s deaths were the result mainly of faulty road design was particularly strong. “In the month after their deaths, an investigation by The Oregonian found that the Oregon Department of Transportation had delayed the installation of a median cable barrier on that 5-mile stretch of freeway despite public recognition of the need for it dating back to 1996.” Had a proper cable barrier been in place there is a strong possibility that the pickup would never have been able to cross all the way into the opposite lane.

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It is an election year, so between now and November we can expect to hear many politicians at the national, state and local levels complain about trial lawyers and call for “tort reform.” As an article published this week in Slate outlines, however, an often disingenuous campaign designed to ‘protect’ big business frequently has an even more shocking effect – protecting child abusers and other people who injure children.

The article begins with the story of an Ohio pastor who was convicted of raping a 15-year-old girl in 2008. In addition to his criminal trial the man was sued by the girl and her family in civil court. As I have written in this space on many occasions, this right alone is important and worth defending. Access to courts for victims and their families is essential if justice is going to be served. As the article notes, quoting a legal scholar at New York University, often “the civil justice system is the only way for a perpetrator to be held directly accountable to the victim.”

A court awarded the victim $3.6 million in damages, but because of award caps required under Ohio’s tort reform laws she was only able to collect $350,000 – less than one-tenth of what the jury decided was her due. The girl and her family are now suing to have those caps declared unconstitutional on the grounds that they are “arbitrary and unreasonable, and thus a denial of due process.” Specifically, there is a strong argument to be made that damage caps violate the US Constitution’s guarantee of a trial by jury. An inherent part of that right is letting the jury decide what is fair – something that the tort reform movement seeks to stifle.

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