Portland Injury Attorney Blog

Portland's Cinco de Mayo Fiesta is Saturday, which gives residents and visitors yet another reason to celebrate the fun-filled holiday this year. How will crowds be celebrating this year? Well, with food, culture, music and tequila, of course!

The Portland Cinco de Mayo Fiesta originally started back in 1984 with just a small gathering. Now, the celebration attracts nearly 500,000 people from across the state. With all of these celebrators, you better believe that a lot of tequila is going to go down. For this reason, we're asking attendees to make safe, sober and responsible plans to help to avoid a potentially fatal car accident in Portland and in the nearby areas.

"It's one of the biggest gatherings for Latino culture," said Karamy Muessig, with the Portland Guadalajara Sister City Association. "A lot of people come downtown from the outlying areas and celebrate Mexican culture."

Our Portland injury lawyers understand that holidays, especially Cinco de Mayo, come with some seriously high risks for alcohol-related auto accidents. For that reason, we are asking residents and visitors to plan out their night's festivities before heading out and to exclude drinking and driving. A safe holiday is only a few steps away. Make the plan and help to save some lives from alcohol-related accidents.

According to Mothers Against Drunk Driving (MADD), someone is killed in a drunk driving car accident every 50 minutes. Another person is injured in an alcohol-related car accident every minute. The most saddening part about these kinds of accidents is that they're 100 percent preventable with just a little bit of planning and yet they're still alarmingly common on holidays like Cinco de Mayo. For that reason, MADD is here to offer your some safety tips and precautions to help make your Cindo de Mayo safe on our roadways!

Safety Tips:

-Before you go out to your Cinco de Mayo events, plan out who will be taking you home if you're planning on drinking. All parties are asked to designate a sober driver, not a driver who has had the least to drink.

-Try enjoying your favorite Mexican foods during your celebration. It will help to keep you from over-drinking.

-If you find yourself without a sober driver, call a cab, call a friend, call a family member, take public transportation or snag a hotel room. Whatever you do, do not get behind the wheel.

-If someone you know has been drinking and has their keys in their hand, take them away! You can help to save lives.

-If you think you've spotted a drunk driver on our roadways, call authorities and help to get them off the streets!

Continue reading "Risks of Drunk Driving Car Accidents in Portland Up through Cinco de Mayo" »

New public service announcements (PSA) are out and they're here to help protect children in the event of a car accident in Portland and elsewhere.

The new PSAs are helping to raise awareness about the importance of keeping kids in the right car seat for their age, size and weight. It's estimated that about 70 percent of children are improperly buckled in during each car ride. When parents and guardians fail to properly restrain young children in the car, fatalities result. In just 2010, there were more than 4,000 kids under the age of 13-years-old who were killed in car accidents across the country. There were another 600,000 injuries from these kinds of accidents. The saddest part of all this is that the leading cause of death for this young age group is completely out of their hands.

Children rely on parents and guardians to keep them safe and alive during every car ride. You have a responsibility and you need to keep up your end of the bargain to keep our young ones safe.

According to the National Highway Traffic Safety Administration (NHTSA), there were more than 8,950 young lives saved from 1975 to 2008 because of properly used car seats. This number could have been much higher if more adults were aware of the correct way to choose and use a car seat. That's why the NHTSA recently released this new batch of PSAs.

Our Portland child injury attorneys understand that parents and guardians have the ability to save lives. Safety should be a top priority for everyone on our roadways. Choosing the right car seat and installing it properly every time can be one of the most effective ways to help ensure child safety.

The NHTSA teamed up with the Ad Council to get this message to parents and guardians nationwide. The PSAs will be found on radio, television, online and outdoor advertising nationwide. It's called "The Right Seat" and it's a useful tool for parents who have children in booster seats, rear-facing seats, forward-facing seats and even adult seat belts. The key message of each of these PSAs is to "make sure their child is in the right car seat."

Right now, the PSAs are only available in English. Later in May, they will also be available in Spanish.

Alongside the release of these PSAs, the NHTSA and the Ad Council launched a new "Parents Central" website to help to offer parents lifesaving information regarding buckling in children. You can find national car seat recommendations, reviews of various car seats and other safety tips to help keep your kid safe during every car ride.

"The proper use of a child seat is the most effective way to keep a child safe in a moving vehicle," said David Strickland, NHTSA Administrator.

Continue reading "Child Injury in Portland and Elsewhere Likely with Confusing Car Seats" »

Our Portland Accident Attorneys recently blogged about a Gresham, Oregon DUII car accident in which the at-fault driver who was sentenced to 11 years for driving under the influence, assault and reckless driving after hitting a car driven by a pregnant woman. The women's family has now filed a $21 million lawsuit against the Clackamas County Community Corrections Department, the State of Oregon, and Multnomah County Department of Community Justice alleging, among other things, that had Whiteaker's probation been properly and promptly revoked and he had been placed in jail, he would not have caused the April 15, 2010 car accident. The lawsuit seeks over $10 million in economic damages and $10 million in non-economic damages for the mother and at least $1 million in both medical expenses and pain and suffering of the prematurely born baby.

During the March 2012 trial, it became a well-known fact that 54-year-old Whiteaker had a criminal history spanning more than 35 years and was serving 18 months of probation for a drug conviction at the time of the accident. It also became obvious that his probation officer knew he had been out of control for quite some time because of his "no-show" to his probation appointments, repeatedly avoided required drug treatment, lied about working, provided a false home addresses, and failed to pay his court-ordered fines/fees. Whiteaker was convicted for heroin possession in June 2009. Shortly thereafter he reported his address to be Southeast 53rd and Powell Boulevard. When Multnomah County Department of Community Justice got around to confirming his address eight months later, they found the address to be an office supply store that rented mailboxes. It was also discovered that Whiteaker failed to attend drug treatment programs several times. Additionally, Whiteaker's Clackamas County probation officer admitted to knowing, as early as November 2009, that he was "being dishonest" by continually failing to provide proof of employment, and failing to show for all probation office appointments after January 29, 2012. It is alleged in the lawsuit that sufficient reason existed as early as January 2010 to revoke his probation and that the proper "one-page" form was finally completed on April 1, 2010. Unfortunately, community corrections had lost track of him by that time.

This is not the first time that the State of Oregon and a county community corrections department has been under fire. Normally, Oregon law (ORS 30.260, et. al.) prevents law enforcement agencies from being sued under discretionary immunity or judicial immunity. Although it is a rare occurrence, exceptions do exist. The Oregon Court of Appeals ruled that in certain circumstances probation departments are not immune to such suits. (See ZAVALAS v. OREGON DEPARTMENT OF CORRECTIONS, 106 Or. App. 444 (1991); JOHNSON v. MULTNOMAH COUNTY DEPARTMENT OF COMMUNITY JUSTICE, 210 Or. App. 591, 152 P3d 927 (2007); affirmed 344 Or. 111, 178 P.3d 210 (2008)). In those few, qualified cases, Oregon law limits the amount of claims against the state to $200,000. Recent court decisions and legislative action allow for a removal of the maximum cap when victims' catastrophic damages exist.

SOURCES:

Parents of Cayla Wilson sue Clackamas County, saying its probation system's failures led to her injuries - Oregonlive.com

Portland car accidents happen every day. What we often forget is how important our insurance policy is as it helps dictate what you are entitled to if you are involved in a car accident.

If you are injured in a car accident you need a Portland injury attorney to help guide you through the process and ensure that your rights are protected.

In a recent Utah case, the court talked questions surrounding the public policy of insurance policies. Courts can shape public policy through careful interpretation of state statute and the generally accepted practices within the state. Through analyzing the legislative intent of statutes, a court is able to identify the harms the legislature was trying to correct with the adoption of the statute.

McArthur v. State Farm Mutual Automobile Insurance Company is a case involving underinsured motorist (UIM) benefits. UIM benefits are given to policyholders who are injured because the negligence of another driver who was underinsured. Where the policyholder is unable to obtain the benefits needed for medical care or damages, the policyholder's insurance company pays the difference between the amount the policyholder needs and the amount that the at-fault insurance company has paid out.

McArthur (Plaintiff) was involved in a car accident caused by the at-fault party. State Farm Mutual Automobile Insurance Company (State Farm) had a contract with the plaintiff to cover him in case of an accident. Upon purchasing this policy, Plaintiff had the option of whether to purchase additional UIM coverage. Plaintiff purchased this UIM coverage but was unaware of a provision called the exhaustion clause.

An exhaustion clause is added to UIM automobile insurance policies to make sure the policy holder seeks benefits first from the at-fault insurance company before seeking benefits from their personal automobile insurance company. Basically the clause states that the policyholder's insurance company will not give the policyholder benefits unless they have exhausted the possible benefits from the at-fault's insurance company. This is commonly referred to as a condition precedent because until the plaintiff exhausts the other party's benefits, the insurance company will not pay UIM benefits.

Plaintiff argued that this exhaustion provision should not be enforceable because it contradicts with the state's public policy. Additionally, Plaintiff argued that by utilizing this provision, harsh consequences are imposed on injured plaintiffs.

The court looked carefully to state statute and legislative history. While the court did not advocate for the use of exhaustion provisions, neither could it find such provisions legally unenforceable. The court supported its decision by citing state statute and prior court decisions.

State Farm thus did not breach its contract with Plaintiff when it avoided paying UIM benefits. Instead the court found they were relying on the provision that established this condition precedent to payment. Because of this and the fact Plaintiff had the option of whether to purchase the coverage; the court found that this provision was enforceable.

Thus the court in McArthur found in favor of State Farm, and the plaintiff was not able to collect the benefits he paid for.

The law governing car insurance policies vary from state to state because each state has its own legislature. If you are involved in a car accident in the Oregon, it is important to understand the law surrounding your policy and what you are entitled to.

Continue reading "Underinsured Motorist Coverage in Oregon Car Accident Cases: McArthur v. State Farm " »

We're in the heart of the Spring Break season and right after this passes, we'll be entering the Summer travel season. Through summer, we can expect a significant increase in the number of teenagers on our roadways. With more traffic and the increase in younger drivers, we can expect even higher risks for car accidents in Portland and elsewhere throughout the state.

These risks are especially high when these young and more inexperienced drivers consume alcohol, take drugs or text at the wheel.

Our Portland car accident attorneys understand that many of the young drivers may see our state's traffic laws as being too strict, but the truth is that they're in place to help save lives. Right now, our state has a zero-tolerance law that makes it illegal for anyone who is underage to possess or drink alcohol and then drive. As a matter of fact, persons under the age of 21 operating a vehicle with any perceptible blood-alcohol level are subject to DUI penalties in the state or Oregon.

When a driver's concentration and skills are impaired because of the consumption of drugs and/or alcohol, the consequences can be fatal. From 2001 to 2010, there were nearly 200 people killed and another 1,300 injured in traffic accidents with an intoxicated driver between the ages of 15- and 20-years-old, according to the Oregon Department of Transportation.

Oregon's Minor in Possession Law (ORS 471.430): Minors who are under the age of 21-years-old who are busted in possession of illegal drugs or alcohol are subject to losing their driver's license for at least a year. This applies even if they don't have a driver's license and if they weren't even driving.

In the state of Oregon, drivers under the age of 18 are prohibited from using a cell phone behind the wheel. Drivers over the age of 18 are only allowed to use a cell phone while driving if the cell phone is hands-free. All drivers are banned from texting while driving.

The most recent decade of records in the state indicate that nearly 10 people in Oregon have been killed and more than 500 have been injured by a driver between the age of 15- and 20-years-old who had been texting or talking on a cell phone while driving.

Drinking, drug consumption and distractions are all considered primary offenses, which means officers can stop a driver suspected of an infraction.

Parents are urged to talk with the teens in their family about the risks associated with these dangerous driving habits before they hit the roadways for school break. Talk with them about the dangers of drugs, alcohol and distractions. Parental input may be some of the most beneficial input. Talk with your teen today. The talk could help to save their life.

Continue reading "Teen Car Accident Risks High During Spring and Summer" »

Car accidents in Grisham happen all of the time. Determining who is responsible for the accident and which insurance should pay can be confusing.

It is important to have the right Grisham personal injury attorney, helping you identify the critical parties in your lawsuit.

The Ninth Circuit recently decided a case presenting the question when an employer should be held liable for the negligence of an employee. See Sharrock v. United States, No. 10-16425 (9th Cir. March 14, 2012). The court in that case looked to California law to guide its analysis decision. These cases of employer liability are common when the business is one involving the transportation of goods or when an employee travels as part of his or her job function.

In Sharrock, there was a car accident on a United States Navy (Navy) base in Guam. An off-duty sailor named McCoy was driving on his way to a basketball practice. This practice was encouraged by the Navy but not required. McCoy was driving negligently and caused a collision with Sharrock (Plaintiff). Plaintiff sued the Navy using the doctrine of respondeat superior, under which liability is imputed to an employer when a negligent employee is acting within the scope of employment.

Thus the plaintiff must show not only that the employee acted negligently, but also that his negligent act was within the scope of employment.

There are four elements in a negligence claim that the plaintiff has the burden of proving: the defendant has a duty of care; the defendant breached that duty of care; the defendant's negligence caused the plaintiff's injuries; and the plaintiff suffered actual measurable damages.

In some cases an employer can be held liable for the negligent actions of their employee where the employee negligently acted as a part of their job duties. This vicarious liability arises from the principal-agent relationship between an employer and an employee and is known as respondeat superior. Courts impose this liability on employers where their employee is recklessly or negligently performing acts related to their job function. The guiding principle is that employers should make sure they do not order, encourage, or condone negligent or reckless actions as part of their employee's job related actions.

The basic question in respondeat superior is to determine whether the employee was acting within the "scope of employment." To make this determination, the court looks to several factors. First the court examines the nature of the employees work and the job functions. Also, the court has to establish whether the employee who acted negligently was trying to further his employers business.

Additionally, the "going and coming rule" is applicable to instances where an employee is negligent while going to or coming from their employment. Thus, the courts have found that when an employee is going to and coming from work and acts negligently, the employer is shielded from liability. The plaintiffs in this case argued that because the sailor was on a "special errand" the employer should be held liable when the employee acts negligently. In order to apply the rules governing employer liability in cases of special errands, the court looks to facts that show that the errand was required as part of the employee's job duties. Because this was not true, the special errand exception to the going and coming rule is inapplicable.

When applying the legal principals of the going and coming rule to the facts, the court looked to McCoy's employment as a sailor. McCoy was employed by the Navy as a sailor but he had been dismissed from duty for the day before this vehicle accident with the plaintiff. Although, the Navy prides itself on physical fitness, the basketball game was not part of the Navy requirements or training. The nature of the basketball practice was to boost sailor morale and serve as recreation.

Thus the Plaintiff's claimed that the Navy should be held liable because as part of their program they encouraged sailors to take part in this morale and recreation program. They further argued that because the Navy concentrated on physical fitness, it could be inferred that basketball practice was part of McCoy's job duties. The US countered plaintiff's argument by explaining that they encouraged but did not require this practice and this practice was not part of McCoy's responsibilities.

Because the practice was not mandatory and because the employee was not on an employer's errand, the court found there was no link to hold the Navy responsible for an off duty employee's negligence.

Continue reading "Employer Liability in Personal Injury Cases -- Sharrock v. United States " »

April is National Distracted Driving Awareness Month. The Oregon State Police (OSP) are joining with the National Highway Traffic Safety Administration (NHTSA), and other law enforcement agencies and traffic safety partners, in an effort to end distracted driving and related traffic crashes on our highways. NHTSA considers distracted driving as:

• texting


• Using a cell phone or smartphone


• Eating and drinking


• Talking to passengers


• Grooming/putting makeup on


• Reading, including maps


• Using a navigation system


• Watching a video


• Adjusting a radio, CD player, or MP3 player

Our Portland personal injury attorneys applaud this effort and present the following YouTube video to provide proof that distracted driving kills.

In Oregon, it appears that motorists fail to understand that distracted driving includes texting or talking on a handheld phone, which happens to be against the law. House Bill 2377 amended ORS 811.507, effective January 1, 2010, to ban the use of mobile communication devices with certain exceptions. Effective January 1, 2012, several changes were made to the law and now limits the legal exceptions to:

• A person who is summoning emergency assistance and no one else in the vehicle is capable;
• If you are operating an ambulance or emergency vehicle, roadside assistance or tow vehicle;
• If you are operating a utility vehicle while servicing a utility.

According to statistics during 2011, OSP stopped 3,782 drivers suspected of violating the law and issued 1,423 tickets. This was a seven percent increase from 2010. The law is a class D traffic violation with a minimum base fine of $142.00.

SOURCES:

Oregon State Police promote 'Distracted Driving Awareness Month'; Canadian man shares his girlfriend's final text - Oregonlive.com

A $5 million lawsuit was filed Wednesday against the Multnomah Education Service District for feeding a student food that she had vomited after choking on it. The student's mother claims the employees at the Reynolds Middle School Functional Living Skills program fed her daughter "too rapidly," causing her to cough and choke, then vomit. The suit also claims she was then re-fed food that she had vomited. The lawsuit additionally alleges that ESD employees failed to administer the girl's medication properly for a period of six months. The student's mistreatment resulted in the need for multiple surgeries and left her with permanent physical and mental impairments. She now must eat through a feeding tube and is required to take anti-seizure medication.

This is not the first time Multnomah County ESD has come under the legal microscope of the court. In 2011, a $1.1 million lawsuit was filed alleging employees of the Pathways Community School failed to supervise an 18-year-old student while he was eating a hamburger and resulted in the student choking and died in December 2010. The lawsuit was dismissed last month as the parties came to an out-of-court settlement of $405,000. The teen was born with a chromosomal disorder, affecting him both physically and mentally; he also couldn't speak. His Individualized Education Plan (IEP) required he be monitored at all times while eating.

Cases such as this, while rare, do occur. It makes parents of special needs children really wonder how many things go on at school that they never find out about, because many special needs children are non-verbal. Sometimes, even the most attentive parents' monitoring can miss a piece of the puzzle. The complexity of these situations take extensive investigation to find out when these incredibly complicated conditions transpire, especially when a school district and its staff are placed under extreme scrutiny for the care of these children. School districts receive special state and federal monies to educate students with special needs and should always be closely monitored by the parents to ensure adequate and proper care is given to prevent life-threatening situations from occurring. When those situations do occur, our Portland personal injury and wrongful death attorneys are able to provide the legal assistance and representation needed to hold those agencies accountable for their negligence.

SOURCES:

Mother of special-needs student in Fairview sues for $5 million after girl was allegedly fed too fast, fed her own vomit - OregonLive.com

A Multnomah County circuit court jury recently awarded $70 million in damages to the surviving pilot, and a widow of one of the fatalities in a helicopter crash during Iron 44 wildfire in 2008. The fire occurred in the Shasta-Trinity National Forest near Weaverville The pilot and widow had filed a lawsuit against General Electric for $177 million in damages. The jury found sufficient facts to conclude that an engine failure caused the helicopter crash killing nine firefighters. Eight families of those killed and three other people who were injured, reached out-of-court settlements prior to the jury's award. The verdict placed over half (57 percent) of the blame on General Electric. It also found partial fault on the helicopter's owner, Carson Helicopters (23 percent) and manufacturer, Sikorsky Aircraft Corporation (20 percent); neither of which were named in the lawsuit and not financially responsible. General Electric has announced plans to appeal the verdict following review of the verdict's written language, as it contradicts the findings of the National Transportation Safety Board investigation. According to AVweb, private "litigants must prove the cause of the crash to a jury without the benefit of the conclusions of the NTSB accident investigations."

In trial, the plaintiffs alleged GE knew, for over six years, that the engines it manufactured for Sikorsky Helicopters had a design flaw in the fuel control valve, making them unsafe for flight. Specifically, GE claims that the cause of the crash was due to overloading and lack of oversight. In a 2010 investigation, the NTSB revealed the helicopter weighed 19,008 pounds at takeoff, which was actually 3,168 pounds heavier than recommended, preventing proper liftoff power to clear the trees near the temporary helipad. The NTSB also concluded that the two "GE" engines were operating normally throughout the multiple trips that had been made on that particular flight.

Our Portland injury attorneys would like to point out that while the jury in this case may have awarded the plaintiffs a substantial monetary award, it's far from over. If the Oregon Court of Appeals affirms the jury's decision, the funds will then be disbursed to the plaintiffs. On the other hand, if the Court rules to "reverse and remand," the case will be handed back to the Multnomah County Circuit Court for a new trial.
Sources:

Multnomah County jury awards more than $70 million for death and injury of pilots in Northern California helicopter crash - Oregonlive.com

GE Engine Faulted for Crash That Killed 9 - Time U.S.

Families, GE, Await Decision By Portland Jury On $177M Helicopter Lawsuit - OPB News

GE to pay $177million for a 2008 helicopter crash that killed eight firefighters en route to a blaze - Mailonline

Our Portland injury attorneys understand that as spring approaches and better weather ahead, there will naturally be an increase in drivers on the road, with many of them being teenagers heading to sports functions, activities, or work. A poll recently conducted by PEMCO Insurance on Oregon's teenage driver rules, explained that Oregon parents take a strong stance supporting the graduated driving laws. it revealed 86 percent of parents claim they enforce the laws on their teens, while 58 percent of parents impose even stricter rules on their teenage drivers than what's legally required and, among other things, include imposition of a driving distance limit, inclement weather driving restrictions. Another 52 percent of parents would welcome harsher consequences on young drivers that violate the laws by raising the violations to a primary offense.

Oregon's graduated driving law restrictions include:
Not operate a motor vehicle while using a mobile communication device, including talking on a cell phone and texting. Hands-free accessories are not allowed.
(First Six Months)
Not drive with a passenger under age 20 who is not a member of your immediate family*; and
Not drive between midnight and 5:00 AM unless you are driving between home and work, driving between home and a school event for which there is no other transportation available, driving for employment purposes, or accompanied by a licensed driver who is at least 25 years old.
(Second Six Months)
Not drive with more than three (3) passengers who are under age 20 who are not members of your immediate family; and
Not drive between midnight and 5:00 AM unless you are driving between home and work,
driving between home and a school event for which there is no other transportation available
driving for employment purposes, or accompanied by a licensed driver who is at least 25 years old.

Among other things, Oregon graduated driver's license law requires all 16 to 17 year-olds to:
Be a 16 to 17 years of age and a resident of or domiciled in Oregon;
Not have a suspended, canceled, revoked or otherwise withdrawn driving privileges in Oregon or any other state;
Have had a valid instruction permit from Oregon, another state or the District of Columbia for at least six months. The instruction permit must have been valid for at least six months in the issuing state or District of Columbia. This requirement does not apply if you submit a valid license from another state;
Complete the required minimum hours of supervised driving experience. This driving must be done with a driver at least 21 years of age who has had a valid license for at least three years. You must certify your driving experience when you apply. This requirement does not apply if you submit a valid driver license from another state. Minimum driving experience required is:
50 hours and an ODOT-approved traffic safety education course, or 100 hours;
Provide proof of school enrollment, completion or exemption if you are applying for an Oregon driving privilege for the first time;
Have passed the Class C knowledge test if you do not have an Oregon Instruction Permit that is valid or expired less than one year;
Pass a Safe Driving Practices knowledge test.
Pass the driving test.

We encourage everyone to be safe out on the roads this spring.

Negligence is a very common claim these days. It seems that so many people are not doing their jobs the way they should be and are not keeping us safe. When you have been injured because of the negligence of someone else, you may be confused about your rights and how to get the award you deserve. Having a knowledgeable Gresham injury attorney who can explain your rights to you is crucial.

As Dubiel v. Montana Department of Transportation shows, it is important to prove your Portland personal injury case with the right evidence. In most personal injury cases that arise because of negligence, there is a burden of proof placed on the plaintiff.

This case arose on a very windy day in Montana. Jerome Dubiel was driving on a highway which had scattered trees on the road because of the wind. The Montana Department of Transportation ("MDT") had employees in that area evaluating the possible danger on the roads, working on power lines that had fallen, and cleaning the trees off of the roads.

An MDT employee temporarily stopped Dubiel as he was clearing debris from the highway. While stopped, a tree fell onto Dubiel's car, injuring him. Dubiel later died of the injuries sustained when the tree fell on his car. Subsequently, and without knowledge of this incident, the MDT closed the highway because of the weather and road conditions.

Dubiel was survived by his wife and his two minor children. His wife, Keevy ("Plaintiff") sued the MDT for negligence and wrongful death. Her main contention is that the MDT was negligent in not closing down the roads earlier, causing Dubiel's death.

The court discussed the requisite proof required when establishing a duty in a negligence claim. The court stresses that in these types of situations, it is critical to present credible experts to establish the scientific and analytical evidence necessary to support the claim.

A negligence action requires proof of four elements: duty, breach, causation and damages. The plaintiff must prove all four of these elements in order to recover. The element often most challenging to establish is that of duty.

In this case, the plaintiff first had to prove the standard of care the MDT owed to people traveling on their roads. Plaintiff then had to prove that the defendants breached that duty of care by not closing the roads earlier. Thirdly, the plaintiff was required to prove that because the defendant's negligent failure to close the roads, the tree fell on her husband's car, killing him. Lastly, she had to prove the damages she is claiming.

To prove all of these components, a plaintiff in a negligence case may provide an affidavit or testimony from an expert. An expert in this case could have analyzed the MDT's practices in relation to road closures, the severity of the weather conditions, communications of MDT employees on the day of the incident, etc. However, plaintiff did not provide any expert affidavits to prove that MDT owed her husband a duty of care and breached that duty.

The court held that without having the requisite evidence, no reasonable jury could find that MDT negligently kept the roads open. Therefore, the court granted summary judgment for the defendants.

Continue reading "Negligent Injury and Dubiel v. Montana DOT: A Lesson in Evidence" »

Thanks! That's what Mothers Against Drunk Driving (MADD) is saying to the U.S. Senate for passing Moving Ahead for Progress in the 21st Century (MAP-21). Included within MAP-21 is the ROADS SAFE Act and a number of other provisions that are working to make roadways safer and helping to reduce the risks of alcohol-related car accidents in Portland and elsewhere.

Spring break is upon us. Summer is just around the corner. It's important to remember the risks, not only for teens and young adults, but for everyone on the road. Our Portland injury attorneys urge you to stay safe, designate a driver, don't drink and drive, and talk to your teenagers.

Great strides have been made in combating the risks of drinking and driving. The U.S. Department of Transportation reports 33,000 were killed in drunk driving accidents in 2009, that's down from nearly 44,000 deaths in 1982 -- a year when 60 percent of all fatal accidents on the road involved someone who was under the influence of alcohol or drugs.

What's most exiting about MAP-21 is the $12 million a year that will be distributed, over a two-year period, to researchers who are designing and developing in-car technologies used to help reduce the risks of drunk-driving accidents. The development of this technology is working to stop drunk drivers before they're even able to turn the key.

Here on our Portland Injury Attorney Blog, we have mentioned the Driver Alcohol Detection System for Safety (DADSS) and its ability to help curb drunk-driving accidents. This technology is currently being worked on by the Automotive Coalition for Traffic Safety and the National Highway Traffic Safety Administration (NHTSA). Even though the number of fatalities resulting from drunk-driving accidents has been cut in half since MADD started its efforts about 30 years ago, the truth of the matter is that there are still more than 10,000 people dying on our roadways every year because of alcohol-related accidents.

More than one-third of all fatal accidents involve a drunk driver.

Many of these accidents are caused by repeat offenders who get behind the wheel and are intoxicated even after they've received a DUI charge. Stricter charges for these offenders will help to reduce their risks of recommitting.

"The safety provisions included in MAP-21 could truly set in motion the elimination of drunk driving and save tens of thousands of lives each year," said MADD National President Jan Withers.

Included in some of the updates that MAP-21 is using to make our roadways safer is the new incentive program that offers federal funds to states that adopt tougher laws regarding ignition interlock programs and DUI offenders. MAP-21 is working toward getting every state to adopt these punishments for all drunk-driving offenders. Luckily, Oregon is already one of these states. Since the adoption of this law, we have seen a more than 50 percent decrease in the number of fatal drunk-driving accidents. This kind of law has been proven to work and MAP-21 is working to have more states join in the effort.

According to the Insurance Institute for Highway Safety (IIHS), strict drunk-driving laws and tough enforcement efforts help to reduce the risks of these kinds of accidents. It's a fact. MAP-21 is offering financial rewards to states that pass tougher laws.

MAP-21 is also continuing to fund the annual high-visibility crackdown efforts among law enforcement officials nationwide. These crackdown efforts include the Drive Sober or Get Pulled Over and the Click it or Ticket campaigns.

Continue reading "Portland Drunk Driving Accidents: MADD, Technology and Your Spring and Summer Risk" »

An at-fault driver was sentenced to 11 years after being found guilty of driving under the influence, assault and reckless driving. The driver admitted on the stand to smoking meth the day of the accident. Shortly after the accident, investigators suspected he had been driving under the influence of heroin. Previously, his alibi was of his innocence, but the jury determined otherwise. He had no license, no insurance, no nothing, except a cocaine/meth pipe found in his jeep.

The accident originally occurred on April 15, 2010 when the at-fault driver, while driving under the influence of meth, crashed into the teen's car along a curve on SE Jenne Road. The teen "mother- to-be" was driving home from a job interview. Experts at OHSU originally gave her a one percent chance to live. She beat the odds along with delivering her 2 lbs, 3 ounce daughter at 26 weeks - one month after the accident. The mother requires around-the clock care at a rehabilitation facility and the daughter also continues to need special medical care.

Our Portland personal injury attorneys are in utter disbelief for several reasons:

The tragedy itself is enough to shock anybody, including a jury. To know that the mother's quality of life will never be the same, let alone the ability to have a relationship with her daughter. What about the pain and suffering that will exist forever? The non-economic damages involved here are priceless by themselves.

The economic damages are inconceivable. The medical bills up to today would understandably be significant, without even considering future reasonable medical costs. The mother was returning home after a job interview. This young woman will incur lost wages that cannot be properly compensated.

What about the daughter? What amount of "loss of relationship" will properly compensate the little girl? The economic and non-economic damages she due her are also priceless.

Our attorneys further point out that the at-fault driver had no license, and no insurance. That means this uninsured driver will force you to make a claim on your own auto insurance policy. It then becomes your Uninsured Motorist Policy that will provide a recovery. Normally, this limit is identical to your Bodily Injury Policy, which The State of Oregon requires a minimum of $25,000 per person/$50,000 per accident.

This means that if someone was in a car accident like the story above, and only had the "State Minimum," the most any one person could receive is $25,000 and the maximum for the all persons combined would be $50,000. It wouldn't even begin to cover the costs.

SOURCES:

Man Who Hit Pregnant Driver Gets 11 Years - KGW.com

A Gresham, Oregon apartment complex has recently come under fire by a civil lawsuit filed against it in Multnomah County Circuit Court, by a resident family for failing to maintain the complex in a habitable condition and landlord retaliation. The defendants include the manager, and joint owners of the complex who, according to the Oregon Secretary of State's Corporation Division, reside in California.

The plaintiffs claim they heard their daughters screaming in another room of the apartment. Upon investigation, they were horrified to find a rat on one of their daughter's face and another one on the other daughter's head. They reported the infestation to the manager and provided proof by a rat they had trapped. Management ignored the complaint by alleging the rats were pets. The family had resided in another unit of the complex previously and had complained of cockroaches. After their complaints fell on deaf ears of management, the family contacted the Gresham Rental Housing Inspection Division, notifying them of the problem. After inspection of the complex, investigators required the owners to exterminate the entire building of insects and rodents, repair openings in the doors and walls, repair the plumbing, and repair inoperable stoves and refrigerators.

While a few improvements were noted by the family, they were forced to throw away their television, microwave, DVD player. According to the lawsuit, the DVD player had stopped working due to number of cockroaches living inside. They were also given a 60-day "no cause" eviction notice that was discovered in a stack of "how to" papers related to the removal of rats.

Our Portland attorneys know that while state and local laws have been implemented to help protect those who rent housing, there are still managers, landlords, and owners who feel exempt from the law. We understand that the laws and local regulations were put in place to protect individuals from conditions that are "unsafe for normal and foreseeable uses," and are unhabitable as defined by Oregon law

Oregon's Residential Landlord and Tenant Act defines "unhabitable" if it substantially lacks:

• Effective weather protection of the roof, exterior walls, windows, and doors;


• Plumbing, in good working order, that provides hot and cold water and proper sewage disposal;


• Adequate heating facilities maintained in good working order;


• Electrical lighting with wiring and electrical equipment maintained in good working order;


• All buildings, grounds and appurtenances at the time of the commencement of the rental agreement in every part safe for normal and reasonably foreseeable uses, clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin, and all areas under control of the landlord kept in every part safe for normal and reasonably foreseeable uses, clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin;


• Except as otherwise provided by local ordinance or by written agreement between the landlord and the tenant, an adequate number of appropriate receptacles for garbage and rubbish in clean condition and good repair at the time of the commencement of the rental agreement, and the landlord shall provide and maintain appropriate serviceable receptacles thereafter and arrange for their removal;


• Floors, walls, ceilings, stairways and railings maintained in good repair;


• Ventilating, air conditioning and other facilities and appliances, including elevators, maintained in good repair if supplied or required to be supplied by the landlord;


• Safety from fire hazards, including a smoke alarm/smoke detector and carbon monoxide alarm;


• Working locks for all dwelling entrance doors and latches for all windows.

Sources:

Rat and roach infestation in Gresham apartment leads to lawsuit - Oregonlive.com

One of the central issues in this case is whether there was sufficient evidence presented by the plaintiff.

In a case where there is a dangerous condition on a shopkeeper's property that causes an injury to another, a shopkeeper can be sued for damages.

This is a principal of premise liability which is based on the legal cause of action for negligence. Because the entrant is a shopper, the shopkeeper owes a specific duty of care to those that enter his property with the intent to shop. Each state defines this shopper and legal duty owed differently, which is why you need a Portland injury attorney following injury on business, public or private property.

Gomez v. Stop Shop is a case involving a plaintiff who was with his wife shopping at his local supermarket which was owned by the defendant. He argued that while walking in the card aisle, he began to feel a strange sensation in his right foot. Due to these uncomfortable sensations, the plaintiff says his right foot was stuck to the floor and he was unable to lift it. Because of this, the plaintiff lost his balance and fell on the floor causing him to fracture his hip and sustain other injuries.

Plaintiff sued the defendant stating that because the sticky foreign substance on the floor, the plaintiff fell and sustained injuries. The basis of this cause of action was that plaintiff believed defendant negligently maintained the premises, which the defendant strongly denied.

This injury occurred in Massachusetts therefore that state law is applied to the facts of this case. Under the applicable Massachusetts statute, the court finds that the plaintiff has to prove two things in order to recover damages under the principal of premise liability. First, the plaintiff must prove that there actually existed a dangerous condition on the defendant's property. Next, the plaintiff must prove that the defendant had actual or constructive notice of this dangerous condition and took no action in order to correct it.

As you can see, this notice element is an either or. The plaintiff must prove that the defendant had actual or constructive knowledge of this condition. Actual notice is a legal term used when there is proof that the defendant was told, saw or heard of the dangerous condition. On the other hand, constructive notice is where the defendant would have knowledge of the dangerous condition if they were performing their duty of inspection under the negligence standard.

Although statutes vary depending on the state, the basic principals surrounding this type of situation are uniform. You cannot collect damages where you are unable to prove that there was a hazardous condition present and that the defendant knew of this condition, or should have know of it, and did nothing to make the condition safe.

What is interesting is that this case discussed a legal refinement that is somewhat unique. Massachusetts has added a specific provision in there statutes surrounding premise liability. This additional provision is called the "mode of operation approach," and it is used in premise liability cases where the nature of the store is self service. Basically, this refinement applies to cases involving stores where the shopper can handle the merchandise without the assistance of store employees.

The idea behind this provision is to help protect the shopkeepers in cases where the shoppers are handling the merchandise. The duty remains on the shopkeeper to inspect and make the conditions safe, but this standard is slightly relaxed.

In order to prove notice in a self-service type of premise liability case, the plaintiff still has the burden of proof. The court states that, "in a mode of operation case, the notice requirement is satisfied if the plaintiff establishes that the injury is attributable to a reasonably foreseeable dangerous condition" on the shopkeepers premises which is related to the self-service nature of the business. Sheehan v Roche Bros. Supermkts., Inc., 863 N.E.2d 1276 (Mass. 2007), 1284. Additionally the plaintiff must prove that the shopkeeper did not take reasonable measures proportionate to the possible risks involved in this shopkeepers self service business.

Considering that the plaintiff in this case did not provide any evidence to prove the elements of this case, the judge entered a judgment for the defendants and dropped the plaintiff's case.

Our Portland injury attorneys know that in personal injury cases, the evidence needed must correlate with the nature of the law.

Continue reading "Oregon Premise Liability Claim: Gomez v. Stop Shop Illustrates Property Injury Claims" »