Oregon Personal Injury Lawyer Blog

The Oregonian reported the settlement of a lawsuit against Gresham's Golden Star Restaurant & Lounge of at least $1.35 million dollars because it over-served alcohol to the drunk driver who killed two young girls. According to a witness, the bar served the drunken driver four to six drinks. The woman was not standing straight (swaying) and even flashed her bra to the entire bar.

The drunken woman drove on the wrong side of the road when she smashed into the two 21 year olds returning home from a birthday party. The grief-stricken parents (the Shaddixs and the Blancks) sued and had the courage to reject any settlement that included a confidentiality provision.

Despite the fact that everyone knows better, people still drive drunk, people still let others drive drunk, and people serve alcohol to visibly intoxicated people who they know will likely drive while intoxicated. The lesson from this case, and the Linda Cunningham case, is that people who make a living serving alcohol (and social hosts, too) are responsible for the damage they cause when they get people drunk.

For information on your legal rights when injured by a drunk driver, see this summary of Oregon Law.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

In a lawsuit against the maker of Ryobi saws, a jury awarded Carlos Osorio a verdict of $1.5 million. In the product liability case, the jury determined that the old saw designs are defective because they do not incorporate the new technology invented in Oregon. In fact, it was a Portland lawyer who invented a way to stop power saws upon contact with flesh.

When I moved to Oregon in the 1980s, the sight of men missing fingers was not uncommon. Back then, Oregon was known more for logging and mills than Nike or Intel. Stephen Gass, a Portland patent lawyer, came up with his own invention and offered it to the big saw manufacturers in 2000. The big companies decided that customer safety was not primary, and rejected the technology. Mr. Gass and others started their own company, Sawstop, which manufactures and sells the safer saws.

Product liability cases, typically, are no fault cases. By contrast, in negligence cases, defendants argue that the injured person was at fault for his own injury. However, in product liability cases, when the user's momentary inadvertence is what makes the product dangerous, the law does not give manufacturers an out. The law says that the inadvertence of the user is precisely the reason for providing a guard, dead man's switch, or in this case, a flesh-detecting instant brake.

So, if any Oregonians out there lost their fingers in the past two years, the door is now wide open to seek monetary compensation from the manufacturers who ignored the superior safety design. A jury has found that the old designs are "defective."

By the way, even if your injury occurred on the job, you may still file a lawsuit because you would be suing the manufacturer, not your employer.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
http://www.jeffmerrick.com 503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

Today, the Consumer Product Safety Commission announced that one of the three 2009 suffocation deaths from sling baby carriers was a Salem, Oregon newborn.

Last week, I wrote about the ten-year history of baby carrier recalls. That post details some of the risks and provides practical guidance on how to shop for and test baby carriers.

This is a photo of one of the products recalled today:

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

Last week, the Consumer Product Safety Commission warned of infant suffocation deaths from sling baby carriers. This is just the latest alert. Moms in Oregon and everywhere should know that defectively designed baby carriers have hurt or killed children for years. I've been following this Pediatric Law topic for a decade, and this post covers the various defects that CPSC has identified.

Suffocation Risk.

Three deaths in 2009 from sling baby carriers prompted CPSC's latest warning. Of 14 total deaths identified over many years, 12 of the babies were 4 months of age or less. CPSC identified two suffocation risks. First, covering a baby's mouth and nose with cloth can suffocate a baby within two minutes. Second, when an infant's head bends forward and her chin presses toward her chest, the airway becomes constricted, causing suffocation.

Baby Falls Through Openings.

Babies fell through leg openings of a baby carrier that was recalled in Y2K. These were backpack carriers. Babies, as they sometimes do, did not sit still. When they moved around, they fell through the holes. Some serious brain injuries were reported. So, whatever baby carrier you use, test it with your own baby in a safe spot to make sure that there is no hole big enough for him or her to fall through.

Baby Falls Because of Attachment Failure.

CPSC recalls highlight at least three modes of attachment failure.

Bad Buckles

To make sure baby does not fall out, we synch up the buckles. But what if the buckle loses tension? That problem caused the 2008 recall of a front-side baby carrier (pictured above). The shoulder buckles loosened fast without warning. I suppose one way to check the security of the carrier is to play around with a bag of potatoes.

CPSC warned of a buckle detachment problem with a different front-side baby carrier recalled in 2004.

Parts bend or break.

A rather elegant-looking sling carrier (top picture) was recalled because the aluminum ring that held it together bent and broke. The fabric gave way, and the baby could fall out.

Other failures

Yet another recall from 2008 involved a front-side carrier. CPSC described the failure as the chest strap coming loose from the shoulder strap. Once again, the baby could fall out.

Conclusion

It's great that moms and dads can keep their babies with them when they enjoy Portland's Farmers' Market or hike in the Columbia Gorge. After following the issue for a decade, here's what I'd recommend:

• Look for a tried & true product that has been on the market for years.
• Experiment with it before using. Make sure YOUR baby will not fall through. Jostle it around with a bag of potatoes from every position you can imagine.
• NO SLING CARRIERS.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

Oregon families are suffering financially from unemployment and underemployment, making it difficult to pay that motor vehicle insurance policy premium. Today, I received a call from someone who was injured in a car accident, and the police ticketed her for driving uninsured. This post covers the legal consequences of driving while uninsured in Oregon.

First, Oregon law prohibits (1) driving without insurance and (2) not providing proof of insurance to Oregon's Department of Transportation. A violation of either is a Class B traffic violation. Currently, that will cost you up to $360. (Who knows when that might change.)

Second, if you are involved in a motor vehicle accident, then an Oregon court could suspend your driver's license.

Third, if you are injured in the car accident, then you can lose your right to recover money for noneconomic damages, which include compensation for pain, inability to engage in activities, emotional suffering, etc. In other words, if you get hurt so bad that you must limp for the rest of your life, you get no money damages for the limping. There are exceptions to this "Bar of Nonecomomic Damages," including if the insurance recently lapsed (within 180 days) or if the guy who caused the accident was reckless.

Fourth, an Oregonian convicted of driving without insurance must file a special document with the Oregon Department of Transportation to show proof of future insurance for three years.

Fifth, you need to carry your insurance card if you are insured and show it to the police if asked. Failure to carry proof of insurance is also a Class B traffic violation. Fortunately, if you get proof of insurance to the court clerk before the date listed on the citation, the court will dismiss the charge.

Exemptions from mandatory insurance include snowmobiles, farm tractors, antique cars with the proper registration, and motor-assisted scooters or other personal mobility devices. Also, no insurance is required if you are driving on private property not open to the public.

However, even if you don't need insurance for some of these vehicles, especially snowmobiles, you should get it for the reasons set forth in my other post. Do you really want to put at risk your home and life's savings if something unexpected happens while snowmobiling?

Get insurance, whether or not the law requires it or you think you can afford it.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
http://www.jeffmerrick.com 503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

The Oregon Supreme Court ruled that Ruth McCollum may not receive a new trial, because the trial court accidentally missed a strict time deadline. The lawsuit involved a slip and fall at the Sandy Boulevard KMart store in Portland, Oregon. Ruth fell because of a slippery foreign substance on the floor. The jury ruled against her, but Ms. McCollum's lawyer asked for a new trial based on the fact that the jury never got to see an internal KMart report about another accident in about the same location.

A key fact in any slip and fall case is whether the store should have known that the floor was dangerous. If there were evidence of a prior fall in the same location, that evidence could have swayed the jury in favor of Ms. McCollum. However, Ms. McCollum never had the chance to present the prior incident report to the jury. The trial judge agreed that mistakes were made, and Ms. McCollum should have the chance to retry her case.

The rule controlling a motion for a new trial is ORCP 64. It requires that the trial judge "determine" the motion within 55 days. If the judge does not "hear and determine" the motion by day 55, then the law considers the motion denied. After all, we all need to get on with our lives.

On Day 54, a court clerk officially entered into the record the Judge Baldwin's letter enclosing the "Order Allowing New Trial." However, the clerk did not enter the actual order, just the letter. The clerk recognized the issue, and entered the actual order on Day 59.

The Oregon Supreme Court said, "Sorry." Even though the judge had "determined" that Ms. McCollum should have a new trial before 55 days, "determined" does not have the dictionary meaning in this situation. Instead, the court said, "determines" means an "effective order," and an "effective order" is "effective" when it is entered in the record. The court found that the order was entered in the record on day 59, so Ms. McCollum did not get her chance for a new trial, and KMart succeeded in keeping evidence away from the jury.

Lessons from the above:

1. Get the stores to disgorge their accident reports early in the case.
2. Push the trial judge and clerk to meet the 55-day deadline.

The lawyers for Ms. McCullom worked extremely hard for her for many years. This result must be terribly disappointing for Ruth McCullom and her attorneys.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

The authors of a new study of brain-injured children found that doctors most often used the term "concussion" and not "traumatic brain injury." The authors theorize that the doctors use the "concussion" label to minimize the worry of parents. However, the lead author, Carol A De Matteo, believes that the concussion label misleads parents and coaches, which could cause inferior follow up precautions and care. Oregonians should know that a concussion IS a traumatic brain injury and should act accordingly.

The Canadian study noted that there is no universal agreement on how to grade concussions. There are 6 different categories of concussions plus 8 different grading scales. Doctors use "concussion" to describe brain injuries ranging from (1) a brain injury where the child or teenager returns to preexisting levels of functioning to (2) severe, permanent brain damage or even death. So, Oregonians should know that the "concussion" label does not mean your child is necessarily going to be okay.

The authors fear that a diagnosis of concussion may affect a parent's decision on how soon to return the child to school, or even sports. When the child has some symptoms associated with brain injury, the symptoms might be ignored or pooh-poohed, because everyone thinks the person is "over" the concussion. Consequently, the child might not receive the help he needs in school. In Oregon a proper diagnosis and classification of symptoms might be critical determining whether the school must work on an Individualized Educational Program (IEP).

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.