1 Trial Lawyer • Fall 2022 Fall 2022 OREGON TRIAL LAWYERS ASSOCIATION In the Service of Justice Vulnerable Road Users
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1 Trial Lawyer • Fall 2022 Board of Governors Fall 2022 The views expressed in Trial Lawyer are solely those of the authors and do not necessarily reflect the policies or opinions of the Oregon Trial Lawyers Association, its members, Board of Governors or staff. Trial Lawyer is a quarterly publication of the Oregon Trial Lawyers Association and is distributed as a membership benefit. For permission to reprint articles, contact Michael Kesten at 503-246-1126, michael@kestenmedia.com. For advertising rates, contact law@llmpubs.com or 503-445-2240. Publications Committee Co-Chairs — Barb Long, barb@vogtlong.com. 503-228-9858; Faith Morse, faith@andersenlaw.com, 541-773-7000 Editor — Michael Kesten, KestenMedia, michael@kestenmedia.com, 503-804-0668 Oregon Trial Lawyers Association, 812 SW Washington Ste. 900, Portland OR 97205, 503-223-5587, otla@oregontriallawyers.org, www.oregontriallawyers.org Dedicated to protecting people, holding wrongdoers accountable, and promoting a fair and equitable justice system through advocacy and education. Articles Vision Zero: What you should know Scott Kocher. .................................................................................................. 6 The Pedestrian Experience Ashton Simpson............................................................................................ 11 When Vulnerable Road Users are Injured: Isolating the wanton defendant Chris Larsen ................................................................................................. 14 Brain Injury in Vulnerable Road Injury Cases Cynthia Newton. .......................................................................................... 18 Passing a Make Whole Law in Oregon Michelle DuBarry. ........................................................................................ 24 Make Whole: Oregon law investigated Devin Robinson............................................................................................ 28 Daylighting Intersections: A work in progress Rian Peck ..................................................................................................... 34 Bicycle Based Technology: Strengths & limitations of modern cycling tools Mark Ginsberg ............................................................................................. 38 The Story of A Bike Case: Semi vs. cyclists Bill Barton. ................................................................................................... 42 How to Avoid the Biggest "Pothole" in Roadway Defect Cases Charley Gee, Timothy Walsh . ...................................................................... 48 Anti-Bicyclist Bias Chris Thomas................................................................................................ 52 Departments President’s Message: The five-cent screw vs. the eight-cent screw Blair Townsend. .............................................................................................. 2 View from the Bench: Empathy on the road Judge David Rees. ........................................................................................... 4 Annual Partners . .................................................................................................................... 47 OTLA Guardians of Civil Justice . .................................................................................................................... 32 Comp Corner: Insurer’s responsibility Julene Quinn. ............................................................................................... 55 Between the Sheets Cody Hoesly, Lisa T. Hunt, Nadia Dahab....................................................... 56 Officers President Blair Townsend President-elect Rob Kline Secretary-Treasurer Melissa Bobadilla Parliamentarian Brent Barton Immediate Past President Lara Johnson District Governors Talia Guerriero — District 1 Nathan Sosa — District 1 Kelly Andersen — District 2 Brian Dretke — District 2 Rob Beatty-Walters — District 3 Rhett Fraser — District 3 Erin Christison — District 4 Diego Conde — District 4 Derek Johnson — District 5 Tim Williams — District 5 Governors-at-Large Steve Berman Ronn Elzinga Sonya Fischer Neil Jackson Ryan Jennings Quinn Kuranz Paul Loving Jeremiah Ross Thanh Tran Greg Zeuthen New Lawyer Governors Ron Cheng Emily Johnson AAJ Governors Kathryn Clarke Tom D’Amore Nadia Dahab AAJ State Delegates Shenoa Payne Michael Wise Apolinar Montero-Sánchez OTLA Staff Email, (firstname)@oregontriallawyers.org Main phone, 503-223-5587 Kathleen Bergin, 503-223-5587 x108 Membership Director Beth Bernard, 503-223-2558 Chief Executive Officer Nora Fogarty, 503-223-5587 x104 Development Dir. & Publications Mgr. Caroline Greenlaw, 503-223-5587 x100 Education Director Arthur Towers, 503-345-0045 Political Director/Lobbyist
2 Trial Lawyer • Fall 2022 By Blair Townsend OTLA Guardian When I was 11-years-old, my dad, Tommy Townsend, drove me to school and, apparently curious for the first time in my life about his profession, I asked him what he did for a living. At the time, he was executive director of OTLA’s sister organization, the Texas Trial Lawyers Association. However, instead of telling me what he did for a living, he explained his why. Pointing to the seatbelt I was wearing, he explained “a company made that seatbelt to keep you safe. And in making that seatbelt, they had two choices. They could use an eight-cent screw that was strong and durable and did its job or they could use a five-cent screw, an okay screw, not as strong, but it worked most of the time. Well, three cents doesn’t sound like a huge difference but when a company The five-cent screw vs. the eight-cent screw makes hundreds of thousands of cars each year, that company would be tempted to choose the cheaper screw so they could make more money. Problem was, even though the five-cent screw worked most of the time, when it didn’t, that seatbelt might not work and people would get hurt. I work to make sure they use the eight-cent screw.” It didn’t sink in at the time (I mean, if it didn’t involve Saved by the Bell, who cared?), but ultimately, my father's why became my why. Life isn’t always fair, companies and the people within them don’t always make the right choices and our society needs laws and lawyers to even out the playing field. Sometimes, three cents can be the deciding factor in someone’s life, health and safety. With a dad in the trial lawyer world, two older brothers, also lawyers, and a mom who worked in the Texas Legislature, you’d think becoming a plaintiff’s lawyer would be a no-brainer. In reality, because of my family and the feeling that the yellow brick road toward the law was already paved before me, I bristled against it for years before every twist of fate led me here, lending lessons along the way. New identity Being a plaintiff’s lawyer is an identity, not a 9-5 job. That said, given my family’s loud and spirited conversations around the dinner table, it’s not as if I thought I would become an accountant. I just figured the political realm was going to be my launching pad. Nineteen years ago, I worked at a political watchdog group ca l l ed Texas Watch, a consumer advocacy group dedicated to holding insurance companies and corporations accountable. Specifically, I handled opposition research for the “No on Prop 12” campaign, an effort to defeat a measure capping noneconomic damages in medical malpractice cases at $250,000. While Texas is a “tad” more conservative than Oregon, this should be uncomfortably familiar to all of us, particularly those who fought these ballot measures in Oregon. I spent my time studying the propaganda of the insurance companies, i.e., that doctors would flee en masse, that insurance premiums would go up and that greedy trial lawyers were to blame. Again, sound familiar? We lost the campaign by a slim margin but it ignited my belief in politics and its ability to connect people with causes and create change within our institutions. In part, from that experience, I graduated early from college and moved to Washington D.C. While there, I worked for the Center for American Progress, a progressive thinktank, and the American Association for Justice. I was able to attend Senate hearings and draft excruciatingly researched briefs on issues that people in leadership positions would President’s Message Blair Townsend
3 Trial Lawyer • Fall 2022 read while eating their lunch. I met former child soldiers from Sierra Leone and witnessed the inception of the Save Darfur Coalition. I watched wide-eyed as Media Matters, with an efficient frenzy I’ve never seen since, monitor, analyze and correct all the misinformation that was being disseminated by conservative media. For me, D.C. was a chaotic beehive, all order, disorder, gamesmanship and jockeying for position, and I loved every moment of it. Finding the path I started at the University of Texas Law School in Austin the next fall. Everyone was gunning for the big corporate jobs and my 1L year was so competitive, to get ahead, certain students ripped necessary pages out of the legal textbooks in the library. I started a chapter for the American Association for Justice on campus but no one joined. I wondered if I had made a huge mistake. Ultimately, I started working at the Equal Justice Center, a nonprofit organization that provided free legal representation for undocumented immigrants in wage loss claims against their employers. It was hard work, there was a lot of it, particularly in Texas, and the process required a lot of tenacity and bravery from our clients. For me, it was a hybrid of the legal with the social advocacy that I had felt in my political experience and had been looking for, with limited success, in law school. I had found my path— I was going to work for nonprofits. Best laid plans. The smartest choice of my life came the day after the Texas bar exam. Exhausted and unable to function socially after months of study, my dad and I decided to visit the Pacific Northwest and lose ourselves in the mountains and rivers until I shifted back from black letter law robot to human being. Driving across the Morrison Bridge, before even setting foot in Portland, I fell in love and told my dad I was moving to Portland (confirmed a few days later when I walked through Powell’s Books). It was August — I obviously did not read the brochure about the rain. I moved here a month later and learned I had passed the Texas bar exam. Three minutes later, I found out Oregon did not accept the bar exam, put down my champagne, found out I would need to take the Oregon bar exam in February, and picked up the whiskey. After the Oregon bar exam, I attended my first OTLA function, a New Lawyer social hosted by then-OTLA President Michael Wise. I introduced myself at the party, begged him to look at my resume and a few days later, met with him to discuss how to get a job (couldn’t find a nonprofit job to save my life). Four hours later, he said four words that changed my life and brought me into the OTLA family — ”Show up on Monday.” That was eleven years ago, almost to the day. Eventually, Wise & Associates became Wise &Townsend and over the course of my only job in Oregon, I learned the work we do can not only help our clients but can also make an impact on others and future cases. Plaintiff’s work is a sword and a shield that goes hand in hand with political work in protecting and advocating for ordinary folks. OTLA was essential in my journey. OTLA helped me grow and become a leader. I was able to become a member of the inaugural Leadership Academy and spent years on the OTLA board and various OTLA committees and obtained a better appreciation of the myriad ways OTLA supports us and our clients. Full circle Now, as I begin my presidential year at OTLA, I feel a sense of coming full circle. Being OTLA president is a testament to my father who passed away in 2013 and the values he fought for. I write this article on the heels of Wise & Townsend’s first trial back since Covid. I look forward to doing the work to ensure that our members weather this Covid storm and get our cases back into the courtroom. Being OTLA president also carries a sense of political urgency as we face a contentious gubernatorial race and as lawyers seem to be at the forefront more than ever in the fight to protect fundamental rights for ourselves, our profession and our clients. No matter the path we took to get here, we are in it together. I am honored to serve as your OTLA president. Here's to the eight-cent screw! Blair Townsend specializes in personal injury, wrong ful death and medical malpractice litigation as well as strategic business planning and litigation. She contributes to the OTLA Guardians at the Guardians Club level. She is a partner at Wise & Townsend PC, 385 1st St., Ste. 221, Lake Oswego, OR 97034. She can be reached at btownsend@wiseattorneys.com or 503-224-8422. Blair Townsend learned about the work of trial lawyers from her late father, Tommy Townsend, the former execcutive director of the Texas Trial Lawyers Association.
4 Trial Lawyer • Fall 2022 By Judge David Rees Multnomah County Circuit Court In 1994, as a new lawyer, I needed to figure out the best way to commute every workday to my office. As anyone who works in downtown Portland knows, parking is expensive. In the beginning, I rode the bus. But as a young lawyer pressed for time, I was too impaView From The Bench Hon. David Rees Empathy on the road tient to wait the long slow bus ride to and from work. My wife, another young lawyer working downtown, suggested we start riding our bikes. I remember first hearing her suggestion and thinking it to be absurd. How will I manage my lawyer wardrobe (back then formal dress was mandatory). Doesn’t it rain a lot in Portland? What if I need to work late? I discovered that all of these problems have solutions. I set up a portable wardrobe in the basement of my law firm’s building. I bought good rain gear and some very bright lights. And my commuting problem was solved. Although there are lots of good reasons to commute by bike, the truth is my commuting by bike was born out of a stubborn unwillingness to pay for parking or wait for buses. But the benefits I have discovered
5 Trial Lawyer • Fall 2022 over the past 25 years have been numerous. I offer these observations and thoughts about my experiences. Wind up, wind down I can tell you there is nothing better for preparing for an intense workday than the joy and free feeling of riding a bike. And there is nothing better to help process and unwind after a stressful workday than a gentle pedal home in the evening. Of course, bike commuting comes with risks. When you ride, you are not surrounded by tons of steel and I can attest that asphalt is hard when you fall off a bike. I have had a few falls and near misses over the years. I know some very conscientious and careful colleagues who have been seriously injured in accidents while commuting by bike. But on balance, the benefits of bike commuting substantially outweigh the risks. In fact, studies show bicycle commuting is great for mental and physical health and will add years to your life expectancy. Improved infrastructure When I started commuting by bike in 1994, I set up a portable closet in the basement of the office building between the dusty boxes of old files. Over time, many of my colleagues began commuting by bike and my law firm installed great bike parking in the basement along with a nice area to store and change clothes. And now I use the excellent bicycle parking area in the Multnomah County Courthouse, complete with showers and changing rooms. Portland has always been ahead of the curve in making roads better and safer for bicycle commuting, and my regular commute has always been through the low traffic bicycling streets in Portland neighborhoods. But the recent addition of the parking protected bike lanes and green bike boxes has added safety and serenity to my regular commute. Great community I was a regular bicycle commuter for several years when my friends Mark Ginsberg and Ray Thomas separately invited me to participate in some regular lunch time rides affectionately known as the “Lawyers Ride.” There are two separate regular bike rides during the lunch hour onMondays andThursdays leaving from Pioneer Courthouse Square, and believe it or not, those rides have been going for 30 years. Ray Thomas and Jim Coon organized the Lawyers Ride and you can expect to see them out there almost every Monday and Thursday. When I first joined the Lawyers Ride, my bicycling skills were limited. But I already had my bike downtown and it seemed like an efficient way to get some lunchtime exercise. Fortunately, the riders on the Lawyers Ride are welcoming and patient. I have learned a lot on these lunchtime rides and made some great friends. I have increased my knowledge about bike handling, bike maintenance, heart rate monitors and, yes, even some law on the Lawyers Ride. On a warm, sunny day, you can join 50 or 60 other riders, most of them attorneys, on the Lawyers Ride. And on some cold wet days, you can have an intimate ride of four or five riders. Beyond the Lawyers Ride, you will find colleagues that ride with cycling clubs, enjoy cyclocross racing or regularly ride Cycle Oregon. I discovered that bicycling is a great way to connect with other lawyers as well as a great way to get to work. More empathy When we are commuting, we can all fall into a mindset that everyone else is an idiot or working hard to slow us down. I admit I catch myself at my worst and most self-centered when I am trying to get somewhere in a hurry. But being a bicycle commuter, as well as a driver and a pedestrian, has given me multiple perspectives on using our transportation system and helped me to develop more empathy for others using the road. And I think we can all agree that the world can use a little more empathy. No matter what mode of transportation you use, take some deep breaths and be intentional about seeing things from the perspective of others. Remember that the driver looking for a parking space, or the pedestrian crossing the street or the cyclist riding along is not intentionally trying to slow you down. Just like you, they are trying to get to their destination safely. As a bonus, taking some deep breaths and opening your mind to other perspectives on the road is going to help get you to your destination more safely and put you in a much better mood. Judge David Rees serves at Multnomah County Circuit Court, 1200 SW 1st Ave. Portland, OR 97204. He can be reached at david.f.rees@ojd.state.or.us or 971-2740636. Judge Rees began bicycle commuting to avoid downtown parking and slow bus rides.
6 Trial Lawyer • Fall 2022 By Scott Kocher OTLA Guardian Motivated by my work representing injured pedestrians and bicyclists, I began to search out ways to make our communities safer for people using more vulnerable modes of transportation. I learned those of us concerned about traffice safety in Portland are not alone. There is a great deal of work being done around Oregon, around the country and around the world. The model for preventing these collisions before they occur is now widely known as Vision Zero. Several key principles define this vision for safety. Prevention Vision Zero focuses on changing the systems that produce fatal and serious crashes in order to eliminate them. This from the traditional “three E’s” of transportation safety — education, engineering and enforcement. Vision Zero creates safe systems by limiting the places on streets and highways where non-survivable impact forces exist through speed reductions, and protecting people where unsurvivable forces must remain by separation. It expects humans to make human errors, rather than punishing errors with death. Vision Zero streets in urban areas are constructed so that they aren’t conducive to travel faster than 20 MPH, because impacts with people outside vehicles above that speed are likely to be fatal. Reducing speed means speed bumps and chicanes (devices used to slow traffic) on small streets, and timed traffic signals and radar cameras on big streets. Vision Zero streets have lanes that are just wide enough, but no wider because people drive faster in wider lanes. When a street is operated at potentially deadly speeds, Vision Zero means transportation agencies provide people walking, rolling or on bicycles with sidewalks and lanes separated from vehicles. Rural routes are either operated at low enough speeds that a head-on crash would be survivable, or agencies provide a median divider. In a remarkable video, the Nevada Department of Transportation asked people on the street three questions that introduce Vision Zero: How many traffic fatalities do we have Scott Kocher each year in this country? Answers range from 100 to “millions.” The correct answer for 2021 is 42,915. Trying to reduce fatalities, what is a good goal for our state? Several people suggested cutting fatalities by half. What is a good goal for your family? Everyone says, of course, zero. A core principle of Vision Zero is that no loss of life on our streets and roads is acceptable. Zero is possible European countries that had fatality rates similar to the U.S. in the past have achieved dramatic improvements by actually implementing changes to their streets and highways. Sweden has reduced its fatalities by more than half since 2006, and Norway by over 60%. Portland and Oslo have similar populations. In 2019, people in Portland suffered 49 traffic fatalities, of which 18 were people walking or rolling. By contrast in that year, Oslo had one single traffic fatality, when a man drove his car into a pole. The contrast far exceeds anything that can be explained away by cultural or other supposed differences between countries. Oslo achieving “zero” for bicycles and pedestrians is no accident. It is the result of across-the-board changes that remove deadly speeds or provide separated space for people walking, rolling and riding. You can see the difference if you visit Oslo on Google Earth. Oslo, V I S I O N W h a T Y O U S H O U L D K N O W ZERO
7 Trial Lawyer • Fall 2022 at first glance, looks familiar, a bustling city. Keep looking and you won’t find any streets resembling SE Powell, 82nd Avenue or Portland’s other high crash corridors. There is no God-given right to drive fast through neighborhoods. We can achieve the same change here. We’re not doing it You may have heard transportation agencies in Oregon are already adopting Vision Zero. ODOT adopted a Vision Zero mission statement in its 2016 statewide safety plan. (I was on the committee). Also in 2016, Portland City Council adopted a detailed Vision Zero plan. However, little has changed on the ground. Few ODOT highways and very few of the major streets in Portland where most of the bad crashes occur implement Vision Zero principles. As a result, crash trends continue in the wrong direction. Fatalities have increased 42% statewide and tripled (from 21 to 63) in Portland since 2014. Rather than rethink its approach, ODOT simply rolled back its safety goals in its 2021 updated safety plan, which remains toothless and largely unfunded. Portland’s incremental improvements to a handful of streets have been dwarfed by a growing mismatch between legacy arterial streets conducive to high speed and the people and neighborhoods they are supposed to serve. Streets that used to be farm-to-market are still designed and operated like rural highways, despite now bisecting neighborhoods full of businesses, schools, churches and homes. At risk If you are an average American, you and your family members each have a 1 in 200 risk of dying in a traffic crash. That leaves few unaffected. However, the overall numbers mask a disproportionate burden on particular communities. For example, in Portland, people living east of 82nd Avenue are 2.5 times more likely to die as pedestrians compared to their counterparts in the rest of the city. East Portland is where the city and ODOT continue to operate many streets through neighborhoods with features that are known to make those streets dangerous. Multiple, wide lanes with high posted and actual speeds. No signals or physical features, speed cameras or other enforcement to achieve safe speeds. Inadequate or missing sidewalks. No separation for people on bikes. Substandard street lighting and few safe crossings. It also is where more people of color and people with low incomes live, and these groups are disproportionately crash victims. Crashes and their ripple effects are an additive trauma on top of challenges accessing good healthcare, education and jobs and being able to connect with nature. As part of my volunteer work with nonprofit Oregon Walks, we collected information and reviewed police reports for all 48 pedestrian fatalities in Portland from 2017 through 2019. We found that 21% of Portlanders killed as pedestrians were experiencing homelessness. That is perhaps ten times the risk others face. The city does not treat tents as “residences” for the purpose of providing (even temporarily) the safety features of residential streets, such as 20 mph speeds. That means if you live in a tent, there’s a good chance you have to cross lanes of high speed traffic with no lighting or crosswalk to get to and from where you live. Future litigation The most powerful example of the legal impact for all this comes from the highest court of New York. Anthony Turturro, age 12, rode his bicycle across a four-lane highway at night. A car traveling at nearly twice the speed limit struck him, causing severe injuries. Residents had complained of “racetrack” conditions for years. The court upheld a verdict placing 40% of the fault on the city. New York and Oregon have substantially the same standards for discretionary See Vision Zero p 8
8 Trial Lawyer • Fall 2022 Vision Zero Continued from p 7 immunity. By taking a systemic view of the crash rather than limiting accountability to “reckless” individual behavior, the court issued what commentators have described as a powerful Vision Zero ruling. Recent Oregon trial court and Court of Appeals rulings seem out of step with this trend. The Oregon Supreme Court has held agencies to a high standard. Notably, transportation agencies in Oregon have a “duty to make highway travel reasonably safe to the general public.” Little v. Wimmer, 303 Or 580, 589 (1987) (so holding as to ODOT). This duty is non-discretionary. Turner v. State, 359 Or 644, 658 (2016). As society begins to view crashes as systemic, preventable and unacceptable, wholesale carve-outs from accountability such as discretionary immunity become farther out of step with norms. I recently conducted a series of focus groups for a case in which a person driving struck a person on a bicycle. We sued the at-fault driver, but not the roadway authority. The bicycle infrastructure at the crash location was not ideal, but complied with engineering standards, far from the sort of defective condition that would typically make the roadway authority a defendant. To my surprise, many participants across multiple focus groups wanted to assign a significant percentage of fault to the roadway authority for failing to provide a safe place to ride a bicycle. If you find yourself in this situation, you may need to ask the court to instruct the jury not to compare the fault of non-parties who are not the sole and exclusive cause. Language matters Vision Zero exposes the way language normalizes the unacceptable, excuses misconduct, and dehumanizes or blames victims. For years, safety advocates have referred to crashes, not accidents. The term “accident” originated with automakers and insurers seeking to avoid See Vision Zero p 10 assignment of responsibility as crashes spiked in the 1920s. Airplanes crash, they don’t have “plane accidents.” Cars are no different. Oregon should join other states that have replaced “accident” with “crash” in state laws and governmental documents such as police reports. Experienced safety advocates increasingly refer to crashes and collisions as “traffic violence.” This is accurate and descriptive. However, it is unfamiliar, and without context can be poorly received. Like “accident,” other common words are similarly loaded. Person-first language has gained broad acceptance in some areas, such as “people with disabilities.” Language that equates a person’s identity with their mode of travel persists. For example, “cyclist” and “pedestrian” define a person by their activity, unlike “person on a bicycle” or “person walking.” Automobile interests in the early 20th century coined the term “jaywalker” in a campaign to ridicule people who didn’t comply with new laws that criminalized many walking behaviors that had been legal throughout prior human history. Word choices, along with selective framing of the narrative, yield phrases that remain common in news articles, defense briefs and conversations. Consider the phrase, “An accident killed a pedestrian on 82nd Avenue last night.” Using neutral terms and adding context transforms how we understand a crash, “A person driving drunk killed a person using a mobility device as they crossed a dark stretch of 82nd Avenue that has claimed multiple lives.” Chain of causation Vision Zero implements a change that trial lawyers have known about for years. The conclusion you reach depends on where the chain of causation begins. If you describe a case beginning with a driver who was running late and drove over the speed limit, then this seems like the cause of the subsequent crash. By contrast, if you begin with the understanding that a large percentage of drivers on a 50 MPH roadway travel upwards of 60 MPH, and crashes are rampant, it becomes possible to suggest what engineers know — speed is the product of controllable factors: roadway design and configuration, and the level of enforcement. How did we get here? Vision Zero fits into the history of the automobile. In the last century, a network of highways and parking lots bulldozed dense, walkable urban areas where streets had been shared. The vast bulk of vehicle codes, and laws regulating bicycles and pedestrians, are a rarely discussed and massive transfer of rights from people generally to people using the public right-of-way to drive cars. This transfer is perhaps most stark in the exacting regulation of pedestrians — precisely where, when and how they are supposed to cross streets — and criminalization of fundamentally natural behaviors. Unlike licensed car drivers, people on foot and using mobility devices are everyone, from the most capable to least. Even physically and cognitively able people who have the ability are rarely inclined to walk 100 feet out of direction plus another 100 feet back to cross at a corner that is fundamentally no safer than mid-bock. This overregulation, and its disparate application to people of color, are part of the pushback against the domination of communities and individuals by cars and the laws that serve to maximize their speed and numbers as they pass through neighborhoods. Information is power In 2019, Portland’s (current) transportation commissioner questioned the
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10 Trial Lawyer • Fall 2022 need for safer pedestrian infrastructure based on a still often-repeated view that distracted walking, not dangerous roads, is the cause of many crashes killing people on foot. The OregonWalks report examined that issue. While the Portland Police Major Crash Team investigators were not able to make a determination in every case, they did not find any evidence of distracted walking or distracted driving in any of the 26 pedestrian fatality crashes for which they were able to make a determination over the 3-year study period. You can help Here are some ideas for how to get involved: • You may know clients or others who have lost a loved one in a crash. When they are ready, urge them to look up Families for Safe Streets of Oregon and SW Washington on Facebook. The group advocates for policies to prevent fatal crashes, and helps victims’ families. Member Darla Sturdy recently won legislation establishing an outside committee to review TriMe t c r a she s and re commend improvements. Member Michelle DuBarry recently won a “make whole” law in Oregon (see her article page 24), ending health insurers’ practice of taking payments for themselves even when a settlement or verdict is insufficient to make the crash victim whole. (Federal amendment of ERISA likewise is still needed.) • You may see hazardous conditions or roadways that are operated with unsafe conditions. Report them. In Portland, requesting speed bumps and speed limit reductions, or asking for parking to be set back where it blocks sight triangles at side street intersections are advocacy steps that can have some of the most important impacts. Vision Zero Continued from p 8 Lawyers experienced in analyzing crashes can help spot these problems. Try to do this in areas with the greatest need. • You may have opportunities to encourage a local transportation agency to implement speed reductions now authorized by ORS 810.180(7), (8) or (10), replace officer enforcement with automated speed cameras, or establish and fund a traffic calming program for your city (Portland’s was eliminated in the 1990s). • Call out traffic engineers who present themselves as policymakers with authority to maximize automobile speed and volumes, rather than as technicians tasked with implementing the Vision Zero plans approved by actual policymakers. • Ask your legislator to scale traffic fines so the poor are not overburdened and the rich are not undeterred. • Join me in developing a pro bono partnership with volunteers to enforce laws against dangerous driving behaviors where police lack resources to do so, pursuant to ORS 153.058. Take advantage of opportunities to strengthen law and policy for safe streets in your community and statewide. Change takes a long time, and wins can seem few and far between. They’re worth it. Scott Kocher handles catastrophic injury and death cases primarily involving roadway col l i s ions , medical negl igence, premises liability and child welfare agency negligence. Kocher has worked to improve roadway safety through service on state and local bicycle and pedestrian advisory committees, the Oregon Transportation Safety Action Plan and Oregon Walks. He contributes to the OTLA Guardians of Civil Justice at the Guardians Club Level. His firm is Forum Law Group LLC, 811 SW Naito Pkwy., Ste. 420, Portland, OR 97204. You can reach him at 503-4452102 or scott@forumlawgroup.com.
11 Trial Lawyer • Fall 2022 See Pedestrian Experience 12 By Ashton Simpson After three straight days of rain, it is a typical wet spring day in Portland and KemMarks is walking with his fouryear-old on outer Southeast Powell west of 119th Avenue. They suddenly come to an abrupt stop because his daughter, Sasha, has lost her shoe on a muddy trail. “It literally sucked her shoe off!” Marks explains, “There were no sidewalks and it was too dangerous to walk on the edge of the roadway given speeding and reckless driving of motorists in the area.” Marks, an active transportation and disability rights advocate, is no stranger to how the built environment plays a role in not only how pedestrians are able to move but also how it promotes bad driving habits in motorists. Without crosswalks, sidewalks and adequate street lighting, motorists treat arterial streets like Powell as highways, driving at high speeds with little regard for pedestrian and bicycle traffic. To make matters more challenging, Marks has lived his entire life legally blind. He grew up in Peru, Indiana, and, from an early age, learned to navigate a world built for sighted people. Marks decided he wanted to move to Oregon because of our state's progressive values. He attended Willamette University where he earned his Juris Doctorate degree in 1991. While studying for his degree, Marks interned with Oregon Advocacy Center, nowDisability Rights Oregon. At the Oregon Advocacy Center, he learned about the failures of the transportation system. He understood the principle of universal design in the public right of way, meaning pedestrian infrastructure should work for seniors, youth and people living with disabilities first. Prioritizing the most vulnerable people in our society is a serious equity issue that will end up benefiting everyone. Through the years, Marks has fought to ensure equitable outcomes for vulnerable populations in transit. A lack of pedestrian infrastructure and reckless driving are common themes in communities all across east Multnomah County and experiences like Marks’ are often heard and overlooked, causing frustration amongst people who live in outer east county. Drivers turning right on a red light, when the pedestrian crosswalk is active, results in near misses on Marks often. The transportation infrastructure in the community was designed to support auto-centric uses and policies leaving out a key piece to movement — the pedestrian experience. For residents like Marks, who are dependent on public transit, the design of our streets and the availability of buses and trains are about more than convenience, they are a matter of life and death providing access to crucial resources for people living with disabilities, parents of dependent children or caregivers and other vulnerable populations. Room for improvement A complete street is one that has sidewalks, crosswalks, pedestrian lighting, protected bike lanes, street trees, reduced speeds, adequate enforcement and traffic calming devices. This is not the case for a lot of roads in our community with most being built to resemble five-lane highways. That includes Portland’s orphan highways such as Highway 26 (SE Powell Blvd.), US 30E (Sandy Blvd.) and the former Highway 213 (82nd Ave, PBOT took ownership of the corridor in June 2022). Orphan highways are district and regional state highways that are owned by ODOT, but functionally serve as city streets or county roads. These highways cut Ashton Simpson THE PEDESTRIAN EXPERIENCE
12 Trial Lawyer • Fall 2022 through neighborhoods and have resulted in a significant amount of pedestrian fatalities east of 82nd Ave., disproportionately affecting our elders, the unhoused, people with disabilities, low income people and BIPOC communities. This has been documented in a number of reports including the Oregon Walks Fatal Crash Report 20172019 and PBOT’s report “PedPDX: Walking While Black.” The Oregon Walks report focused on the contributions of the built environment to fatal crashes, instead of who is at fault. Task force The East Portland Action Plan was created by the Portland City Council to advocate for improvements to make life better in East Portland. Improving Outer Powell was one of their top priorities. Their task was not easy. ODOT wanted to make Powell an urban highway with four travel lanes and a center turn lane. Ten years of advocacy from the East Portland Action Plan led by advocates Lore Wintergreen and Arlene Kimura and others, including community leaders and elected leaders such as Representative Janelle Bynum and Secretary of State Shemia Fagan, brought in critical resources and investments that resulted in a sidewalk infill project in 2018. Sasha Marks, now 15 years old, finally has actual sidewalks to walk on! Those improvements focused on the section of Powell from 122nd Ave. to 136th Ave. The rest of Powell is slated for improvements as part of HB 2017, which is currently in the design phase. The new design has eight-foot-wide sidewalks, trees, lighting and high-visibility crosswalks, but more could be done such as protected bike lanes and radar cameras to reduce speeding. Marks had been following stories of the Outer Powell Safety Project which was supposed to make Powell a much safer street. So, he about exploded when he read the Oregon Department of Transportation was going to spend $1 million of safety money to repave Powell. No sidewalks, no crosswalks, no extra lights. Instead, they would make wider shoulders for people to walk on. The only separation for people from vehicles would be two white lines. At a community advisory meeting, he declared that people would die because of the plan, and held up his red and white cane to show the distance of how far the cars and trucks would be from him, asking how a white line was going to keep him or others from dying. The section of Powell Blvd between I-205 and 174th Ave was one of the most dangerous stretches of road in the entire state. Two senior citizens would die trying to cross Powell in the next 14 months. They died at SE 134th Ave. and SE 125th Ave. where community activists were demanding crosswalks. Both locations had apartment complexes with high concentrations of seniors (134th) and children (125th). Valentine Khubeyeva was a 70-yearold immigrant from Ukraine. She died on a foggy Dec. 7th night in 2013 trying to cross the road. Her other option was to walk to the light at 136th but that was just as dangerous because she would have to walk in the road anyway due to the cars parked next to Powell by the auto shop that stored extra cars there. She probably chose the least exhausting route and paid with her life. Marks was also out that night. He wanted to go to Plaid Pantry and had his wife drive him, because there was no way he was going to walk Powell in those conditions. Traffic was at a near standstill, and he figured there must have been a crash although he assumed it was probably some cars at the light. He and his wife were both horrified when they discovered there was a body lying in the road just being covered up by a bystander because the police weren’t there yet. Marks doesn’t remember many of the Pedestrian Experience Continued from p 11
13 Trial Lawyer • Fall 2022 details about the man who died at SE 125th other than he was also an older person and was trying to cross the road where a crosswalk was desperately needed. Sadly, he would not be the last to die on Powell between SE 122nd Ave. and SE 134th Ave. before it would undergo significant improvements. Slow change Old design theory emphasizes vehicle flows and de-emphasizes anything that hinders flow. Complete streets emphasize all modes of transportation. For Powell, the lanes would go from two to three with the new one for turning reducing backups or worse passing on the right, which is extremely dangerous. What lighting Powell had was only on one side, was spaced far apart and only illuminated the road surface, not where pedestrians might be. The stretch between 122nd and 136th is just under a half mile. It had no sidewalks and no crosswalks. To more safely cross the road one had to walk through mud and puddles, in the dark, to an intersection with a traffic signal. The new design has eight-foot-wide sidewalks with a green strip or trees between the sidewalk and the street. Streetlights line both sides of the road and illuminate both the street and the sidewalk. Three high visibility signalized crosswalks exist now where there had been none, two of which are located where the people mentioned above died. More could have been done. Advocates wanted protected or elevated bike lanes. Instead, the bike lanes are colored green to delineate them, and they are wider. The speed limit has been reduced but not enough, and there are no radar cameras to deter speeding. These would truly have made this segment of Powell a complete street. Change is happening slowly, but we are moving in the right direction. Much more must be done to make our streets safe for all of our users. The COVID-19 pandemic taught us that access to walking and biking infrastructure is critical to people's health and well-being. This is especially true in lowincome and BIPOC communities, where the conditions are still causing a majority of fatalities and injuries. We must be intentional about how we invest in underserved communities moving forward. We must also be intentional about the legal requirements for operating a motor vehicle to ensure safety is prioritized to keep all users of the public right of way safe. Ashton Simpson is the Executive Director at Oregon Walks, a 501 (c)(3) non-profit membership organization dedicated to promoting walking and making the conditions for walking safe, convenient and attractive throughout the Portland metropolitan region. The address for Oregon Walks is PO Box 2252 Portland, OR 97208. Simpson can be reached at ashton@ oregonwalks.org or 503-729-1221. Kem Marks gestures to the improvements made in the area along Powell near where70-year-old pedestrian Valentine Khubeyeva was killed while trying to cross the street. The redesigned sidewalk, including a dedicated bike lane help make the area safer.
14 Trial Lawyer • Fall 2022 By Chris Larsen OTLA Guardian On a sunny afternoon, September 23, 2010, three teenage students — Brittany Green, Francisco Cervantes and Jorge Echeverria — were walking with other students near a bus stop on Lancaster Drive NE adjacent to Chemeketa Community College. It was 1:20 p.m. on a typically busy Thursday afternoon on one of Salem’s most heavily traveled roadways, used by motorists, bicyclists and pedestrians. At that time, 31-year-old Sophia Downing was driving her 1994 Chevy Blazer erratically, approaching the students’ location several blocks away on Lancaster Drive NE. Surveillance video captured Downing almost colliding with motor vehicle traffic in front of her, stopping abruptly, then remaining stopped when other traffic drove forward on the green light. Downing accelerated hard and passed a Cherriots public bus, drifting over the dashed white lane divider line without signaling. As the students began to walk across the marked crosswalk onWinema Place NE on the “walk” signal, Downing continued to drift to the right, across the marked bicycle lane, over the curb, and onto the sidewalk of Lancaster Drive. Downing’s Bl azer s t ruck Green, Cervantes and Echeverria as they were crossing the marked and signalized crosswalk. Downing made no attempt to brake or slow down before crashing into them. After stopping her Blazer, Downing failed to render any aid to the students as they lay in the roadway. Downing asked a witness if she could leave. Because they were pedestrians, we describe Green, Cervantes and Echeverria as “vulnerable road users.”We use this term to describe anyone who isn’t shielded by thousands of pounds of metal, air bags and safety restraint systems. “Vulnerable road user” can describe bicyclists, pedestrians or motorcyclists. It can include elderly persons, children and persons with disabilities. Representing these clients who sustain injury in any collision with a vehicle is challenging, in large part due to bias amongst car-centric jurors. Just as challenging is representing a vulnerable road user who has been injured or killed by a person through an intentional or criminal act. Jurors naturally want to hold the person most responsible for causing your client’s damages accountable by attributing all or most of the fault to that defendant. But those defendants are oftentimes uninsured, underinsured or simply judgment proof. In cases where there is a second defendant or multiple defendants responsible for causing or contributing to your client’s injuries — and who do have insurance or assets from which to recover at trial — preventing the jury from allocating fault between judgment proof defendants and other responsible defendants can be critical to obtaining a fair damages award. This can be accomplished under Oregon law which prohibits the apportionment of liability between “negligent” tortfeasors and “wanton” tortfeasors. Green and Cervantes died from their injuries. Echeverria barely survived and suffered life-changing injuries. Downing failed field sobriety and drug recognition testing. Blood and urine samples were obtained from Downing about an hour after the crash. Forensic lab tests of Downing’s blood and urine determined the presence of anti-depressant medication and a muscle relaxant, along with a prescribed sleep-aid medication, lorazepam, a central nervous system depressant. Quantitative testing of Downing’s blood revealed she had 25 nanograms per milliliter of lorazepam. Toxicology experts agreed Downing was under the Chris Larsen When Vulnerable Road Users Are Injured I S O L AT I N G T H E WA N T O N D E F E N D A N T
15 Trial Lawyer • Fall 2022 influence of the lorazepam at the time the crash occurred. When interviewed by the police, Downing admitted she took lorazepam earlier that same morning — at 8 a.m. — not at night to help her get to sleep as prescribed by her psychiatrist, Dr. Bradford Ashley. Downing’s psychiatric records revealed she had a documented history of substance abuse and consistent pattern of not taking her medications as prescribed. And the records also revealed that Dr. Ashley had prescribed Downing the lorazepam three days before the crash — at Downing’s request. Downing was prosecuted in state criminal court, and eventually convicted of the crimes of manslaughter in the first degree (two counts) and assault in the second degree. She is currently serving a 220 month prison sentence. The complaint Our firm filed a civil lawsuit against Downing and Dr. Ashley for causing the death of Green and Cervantes and the serious injuries to Echeverria. The obvious problem with our claims against Downing was that she was driving without insurance and had no assets, making her judgment proof. So, our focus was on our claims against Downing’s psychiatrist, Dr. Ashley, who our experts agreed had fallen below the standard of care by prescribing the lorazepam to Downing, given her documented history of substance abuse and consistent pattern of not taking her medications as prescribed. It was clear a jury would find that Downing was, in large measure, at fault for causing the crash and the resulting damages to our clients. We also had medical experts who agreed Dr. Ashley was also, in part, responsible for causing the crash. They agreed his conduct fell below the standard of care and was a substantial factor in causing the resulting crash by prescribing the lorazepam to Downing given her history and at her request just three days prior to crash. To have the best result in obtaining a verdict that held Dr. Ashley responsible for damages to our clients, we alleged in the complaint Downing had acted in “wanton” disregard of the safety of our clients — that she had acted “wantonly” when she took the lorazepam that morning, then a few hours later decided to drive while impaired by the lorazepam that Dr. Ashley prescribed for her. As a matter of law, Downing’s criminal convictions resulted in issue preclusion. Downing’s fault and liability for causing the crash and resulting deaths and injuries were established as a matter of law, so Downing could not contest this at trial. Consequently, as to Downing, the verdict form would look like this: Question 1A: Did defendant Sophia Downing act in a wanton manner in one or more of the ways alleged in plaintiffs’ complaint? ANSWER: Yes (Yes or No) The court had already ruled as a matter of law that defendant Sophia Downing acted in a wanton manner in one or more of the ways alleged in plaintiffs’ complaint. Question 1B: Was the wanton misconduct of Sophia Downing a cause of damage to plaintiffs? ANSWER: Yes (Yes or No) The court had already ruled as a matter of law that the wanton misconduct of Sophia Downing was a cause of damage to plaintiffs. Question 2A: Was defendant Dr. Ashley negligent in one or more of the ways alleged in plaintiffs’ complaint? ANSWER: ___ (Yes or No) * * * If your answer to question 2A is “Yes”, then proceed to question 2B. Question 2B: Was the negligence of defendant Dr. Ashley a cause of damage to the plaintiffs? ANSWER: ___ (Yes or No) * * * If your answer to question 2B is “Yes”, then your verdict is in favor of plaintiffs and against both defendant Sophia Downing and defendant Dr. Ashl ey. Proceed to question 3. Question 3: What are plaintiffs damages? ANSWER: Economic Damages $__________. Noneconomic Damages $__________. The verdict form would not contain any questions asking the jury to compare the proven wanton conduct of defendant Sophia Downing with any proven negligence of defendant Dr. Ashley. Oregon law prohibits the jury from apportioning fault between a negligent tortfeasor and a wanton tortfeasor. Pleading “wanton misconduct” To take advantage of Oregon law that prohibits the jury from apportioning fault to a liable defendant who has injured or killed a bicyclist, pedestrian or other vulnerable road user, you must plead that the tortfeasor acted in a “wanton” manner, followed by the particular allegations of wanton misconduct. Importantly, do not plead that the tortfeasor acted “intentionally” as it is standard See Vulnerable Road Users 16 The red arrow shows the path of the defendant driver as she drove her SUV into three students about to cross Winema Place NE in Salem. Prior to trial, the driver's actions were determined to be “wanton.”
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