Wrongful Death

September 7, 2015

Pause on Labor Day to think about Oregon Workplace Deaths

An article published recently by The Oregonian on workplace deaths makes sober reading on this Labor Day Monday. It notes that “altogether 41 men and 5 women died from workplace accidents and injuries” in our state last year. “The number includes both Oregon and out-of-state residents who perished within the state’s borders, but excludes at least 28 others who died on the job from suicide, heart attack, stroke or other natural causes unrelated to their work.”

As the newspaper notes, the rate of workplace deaths both in Oregon and in the country as a whole has declined dramatically over the last three decades. Moreover, while Oregon’s workplace death rate of 2.9 per 100,000 workers is lower than the national average of 3.3 per 100,000 it is noticeably higher than the rates in neighboring California (2.4) and Washington State (1.7).

One can speculate why this might be the case. As I have often documented on this blog, Oregon has an unusually large number of people who work in relatively dangerous occupations – such as logging and truck driving. Whatever its cause, the fact that our state’s workplace fatality rate is unusually high by regional standards is a clear cause for concern.

August 23, 2015

Distracted Driving Cited for Rise in Traffic Deaths

by Matthew D. Kaplan

A summer marked by low gas prices has led to a jump in the number of miles Americans are driving. Unfortunately, it also appears to be leading to a significant increase in traffic deaths, according to a recent Yahoo! News article.

“The National Safety Council reported this week that traffic deaths and serious injuries in the US are on a pace to rise for the first time in nearly a decade. If the trend for the first six months of this year continues, the NSC says traffic fatalities in the nation will exceed 40,000 for the first time since 2007 and deaths per 100 million vehicle miles traveled will also increase,” the news service reports. The key lies in the last part of that sentence – indicating that the number of on-road deaths is not merely a function of the greater number of miles being driven. The article notes that when compared to 2007 the number of mile Americans drive has increased by 3.4% but in the first six months of 2015 alone the number of traffic fatalities has jumped by 14%.

According to the article a number of factors contribute to this – such as higher speed limits – but one might also think that the steadily improving safety gear in modern cars and trucks would, at least to some extent, mitigate that. The big thing that has changed for the worse, according to the study, is the steady rise in distracted driving in general and cellphone use in particular despite laws and educational campaigns here in Oregon and elsewhere designed to curb the practice. From a legal perspective this is especially significant since it, in turn, means that an increasingly large number of drivers are placing themselves at risk of wrongful death charges in the event of an accident.

June 29, 2015

Government and Google Team Up to Prevent Rail Crossing Accidents

by Matthew D. Kaplan

Today the federal government is announcing a partnership with Google aimed at preventing accidents at railroad crossings, according to the New York Times. The newspaper reports that the Federal Railroad Administration will work with the tech giant “to provide the locations of all grade crossings” and make them available on Google’s maps.

The initiative follows “a sharp increase in the number of rail crossing accidents last year,” according to the Times. “Last year, 270 people died in highway-rail collisions, up from 232 the previous year, and 843 people were injured, according to federal safety statistics… Grade crossing accidents are the second-highest cause of rail fatalities after trespassing accidents, which killed 533 people last year.”

The scope of the project, however, is vast, which may be part of the reason why there is no target date for its completion. According to the Times there are well over 200,000 grade crossings nationwide. By pinpointing those locations in the mapping software that runs phones, GPS units and car navigation systems the company hopes, initially, to make it clearer where the danger spots lie. Over time it should eventually be possible to include information warning about oncoming trains in real time. According to the Times the FRA is also reaching out to Apple, MapQuest, TomTom and Garmin with proposals for similar programs.

June 23, 2015

Senate Hearing is Latest Twist in Takata Recall Saga

by Matthew D. Kaplan

On the eve of a US Senate hearing focused on the Takata airbag recall, Senate Democrats have issued “a 45-page report into the nation’s largest-ever recall of about 34 million vehicles by 11 automakers for air bags that can explode and send shrapnel flying,” according to the Detroit News. The paper notes that it was only last Friday that the airbag manufacturer acknowledged an eighth documented death linked to its defective safety equipment.

According to the newspaper, the Senate report found that more than a decade after engineers first became aware of the problem “no one can identify a root cause for the ruptures.” The defect in the Takata airbags causes the gas canisters used to inflate the bags to explode, sending potentially lethal shrapnel flying into the faces and bodies of people riding in the car.

As company executives prepare to face Congress another fact reported by the Detroit News is even more shocking. According to the Senate document, even the replacement parts Takata is providing to millions of families here in Oregon and around the country are not necessarily safe. “Takata is currently producing hundreds of thousands of replacement inflators each month that may or may not completely eliminate the risk of air bag rupture,” the report says. The idea that the company is replacing defective and potentially fatal air bag inflators with parts that may themselves also be defective is difficult to comprehend.

May 17, 2015

Blue Bell Case Shows Emphasis on Profits Over People

by Matthew D. Kaplan

Reports late last week that Blue Bell, the troubled Texas-based ice cream company, “will lay off more than a third of its workforce following a series of listeria illnesses linked to its ice cream,” according to the Associated Press, are the latest example of a company putting its profits ahead of responsibility to its workers or to society at large.

As the news agency reports “the 108-year old company’s production plants in Texas, Oklahoma and Alabama have been closed since Blue Bell issued a full recall in April. The company’s ice cream has been linked to listeria illnesses in four states, including three deaths in Kansas.” Though the article quotes the company’s CEO saying “our employees are part of our family” it is difficult to balance that statement against revelations by the Houston Chronicle that the company knew it was distributing unsafe products two years ago, but kept the matter secret and continued with business as usual.

“Blue Bell Creameries found strong evidence of listeria in its Broken Arrow, Oklahoma plant as early as 2013 but failed to improve its sanitation programs, according to findings released… by the U.S. Food and Drug Administration,” the newspaper reported last week.

February 15, 2015

Fines in Highway Worker Deaths Point toward Broader Issues

by Matthew D. Kaplan

A recent Associated Press article republished by The Oregonian reported that Oregon’s Occupational Safety and Health Division has fined a Salem company and the Oregon Department of Transportation for separate incidents that led to worker deaths. The deaths raise both possible Oregon wrongful death and employment liability law issues but, more immediately, leave open questions about the effectiveness of OSHA’s fines themselves.

According to the news agency, citing the East Oregonian newspaper, OSHA fined a Salem-based concrete company “$840 for not ensuring safe work conditions, which led to the death” of a 64-year old man employed by the company. “The company was installing rumble strips at the paving project on Interstate 84 west of Boardman when (he) was run over by a pickup towing equipment operated by another employee.”

The agency also fined the state transportation agency $3500 over the death of a highway maintenance crew member who was “paving Highway 320 when a dump truck backed up and ran over him.”

December 31, 2014

Oregon Court Access Issues Brought into Focus by GM Case

by Matthew D. Kaplan

An article that appeared this week in the New York Times detailed the legal struggles of some of the victims of General Motors’ corporate negligence – struggles made worse by misguided laws designed to protect corporate bottom lines at the expense of public health and safety.

As I have written about many times this year, the giant auto maker is in serious legal trouble as evidence has emerged that it knew for years about defects in its cars’ ignition switches but did little to fix them. As the Times notes, “Today, at least 42 people are known to have died in crashes linked to the defective ignition switch, and both GM and federal safety regulators have come under fire for allowing the danger to linger for more than a decade.”

What could make a situation like this even worse? A legal system that limits the damages a bereaved family can collect. The Times article details the struggle of two Wisconsin families. Both lost loved ones to the GM defect, but neither was able to get any Wisconsin attorney to take their case because of a state law capping damage awards at $350,000. Every law firm approached by both families eventually decided that the limit on potential damages made it impossible for them to fight a huge company like GM without ultimately losing money.

December 27, 2014

Oregon State Hospital Death Leads to Lawsuit

by Matthew D. Kaplan

The death of a patient at the Oregon State Hospital one year ago next week has led to the filing of a lawsuit, according to a recent article in the Salem Statesman-Journal. The case raises noteworthy Oregon wrongful death issues, and is worth exploring here.

According to the newspaper, the man’s family alleges that his “death was the direct result of hospital staff retaliating when he alerted police and the media to patient sexual abuse in the hospital.” The 48-year-old man died last January “after telling friends and family he feared for his life.”

The newspaper reports that in August 2013 the man had alerted hospital officials to an alleged case of sexual abuse involving a nurse and a patient. When the man felt the hospital did not react appropriately he “told the Oregon State Police, the Statesman-Journal and The Oregonian.” Shortly afterwards the man was allegedly moved to a different ward, put under round-the-clock watch by the hospital staff and given medications that “put him in a state of near-constant sedation.” The lawsuit filed by his family alleges that all of this was unnecessary and significantly contributed to the man’s death.

November 29, 2014

Possible Oregon Industrial Accident Mars Holiday Weekend

by Matthew D. Kaplan

Investigators from Oregon’s Occupational Safety and Health Administration are looking into a possible Oregon industrial accident that claimed the life of a Scappoose woman on Thanksgiving Day.

According to a report in The Oregonian the 43-year-old woman “died Thursday afternoon in an explosion that investigators believe was started by sparks from a metal grinder at an industrial work site.” The fact that, according to the local sheriff’s office, the site of the accident was being leased by a trucking company from a third party may prove to be significant in determining whether this incident meets the legal definition of an Oregon industrial accident.

Third-party liability is often overlooked in reporting on incidents like this, but is important nonetheless. Under Oregon law a company or a property owner’s duty to provide a safe workplace extends to sub-contractors as well as its employees. While we obviously cannot draw any firm conclusions based solely on the short piece in The Oregonian, it will be important for OOSHA investigators and, in turn, the courts to consider where ultimate responsibility for this fatal accident may lie.

November 18, 2014

ODOT Changes Are Welcome, But Should Not Have Required the Nudge of Publicity

by Matthew D. Kaplan

A recent story in the Salem Statesman-Journal highlighted some critical changes the ODOT is now beginning to implement in the name of traffic safety, but did an equally good job of drawing attention to how those changes get approved.

The article focused on the September 24 death of a well-known Salem-area psychiatrist in a fatal Oregon car crash on I-5. According to the newspaper the accident took place when a vehicle traveling the interstate highway in the other direction crossed the median. The psychiatrist died at the scene. A colleague who was travelling with him died at an area hospital a few days later from injuries suffered in the crash.

The circumstances of the accident raise longer-term questions about Oregon wrongful death, and whether the fatal crash may prompt a legal action. More immediately, what made the reaction to this accident different was the outpouring of emotion from the Salem community, an outpouring which only increased when the Statesman-Journal revealed “that in the previous 10 years there had been 20 crashes along I-5 in Salem that involved vehicles crossing the center median into oncoming traffic.” The paper noted that the ODOT has plans to install simple cable-like barriers along that stretch of the highway. Cable barriers have been shown to be a relatively inexpensive way to prevent crossover crashes. The paper also discovered, however, that bureaucracy and political infighting had led to progress implementing the plan to install the barriers moving slowly at best. Indeed, a low-bidder to carry out the work was not scheduled to be selected until next February, even though, the paper reported, a decision in principle to move forward had been reached some time ago.