Oregon Personal Injury Lawyer Blog

Oregonians enjoy great winter recreation areas. Forest roads and paths become snowmobile and cross-country ski trails when the snow flies. As with car crashes, snowmobile accidents can lead to serious injuries. Last week's news from Washington, DC, identified a risk of crash because of defective snowmobiles manufactured by Arctic Cat.

Arctic Cat recalled several models 2010 snowmobiles because suspension arms cracked, according to reports. When that happens, it can mean the driver loses control, posing a risk of injury or death.

So, what to do if you have one of those models?

If you have not been involved in a crash, then stop using it, report it to the dealer, and have them fix it.

If you were involved in a crash and you are considering a lawsuit, then DO NOT have the dealership fix it. The most important evidence in a product liability lawsuit is the product itself. An expert must examine the machine to determine whether the snowmobile had the defect. An attorney should be involved to negotiate the terms of the inspection. So, if you think you were hurt because of a defective snowmobile, carefully preserve the snowmobile, preferably in a garage, until you hire an attorney to help you evaluate the pros and cons of a lawsuit and to counsel you on what to do with the critical evidence.

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.

Yesterday, the Oregon Court of Appeals held that a person must respond timely to a summons and complaint even though overwhelmed by other personal and business issues.

In Estrelia Saldivar v. Ken Roberts and Bridge Homes, LLC., Ms. Saldivar sued for fraud, misrepresentation, unfair labor practices and conversion. Defendant did not respond, and her attorney obtained a default judgment. Only after her attorney garnished defendant's bank account did he show up in court and ask to lift the default judgment because of "excusable neglect."

Mr. Roberts told the court of his personal problems: divorce, terrible economic times for his real estate business, a barrage of other certified letters demanding things. He confessed that he should have responded, but that he was overwhelmed. The trial judge gave him a break, recognizing that this has truly been an unusual time of recession.

I've been critical of the unfairness of holding plaintiffs to tight time deadlines imposed by the statute of limitations, but letting defendants off the hook. It is to the point where we lawyers think it is a waste of time to default defendants, because it so easy overturn the default judgment. On this occasion, however, the Court of Appeals said the trial judge abused his discretion; he was too easy on defendant.

The court explained that personal problems might be enough IF they amount to psychiatric problems making a person incapable of taking care of affairs. However, Mr. Roberts did not claim that. Instead, Mr. Roberts, basically, said that this claim never rose to the top of his "to do list."

I notice that Mr. Roberts was not represented by an attorney in the Court of Appeals. I suppose that defense lawyers will learn from this case. In the future, when defendants want to lift a default judgment, they better submit a note from a psychologist saying that the defendant was, effectively, paralyzed.

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.

In Oregon, buyers of real estate may sue real estate agents when the home they bought has unexpected problems, under certain circumstances. The buyer has several rights to sue, this post discusses only one of them: claims under Oregon's Unlawful Trade Practices Act (UTPA).

The recent case of Scott Fowler v. Cheri Cooley from Oregon's Court of Appeals illustrates the UTPA claim. When Mr. Fowler inspected the house, he saw two men repairing the walls near the sump pump. The workers said they did "not know anything," so Mr. Fowler asked the real estate agent, Ms. Cooley. When asked if there had been any water leaks, Ms. Cooley said the sump pump was just precautionary. Yet, she sold the house previously, and the seller took it back after the previous buyer had problems with water leaks.

One of my clients has a similar situation. In our case when the realtor signed up the listing, she saw that the carpets had been pulled up and fans were blowing. Consequently, her claim to being dumb to the problem of previous flooding did not fool the arbitrator, and we won the case.

Under the UTPA, a consumer may sue people in a business or trade, such as Realtors®. The UTPA does not apply to claims against the average seller, because it is not their business to sell real estate. (However other laws apply to sue the seller.) The UTPA allows suits when a defendant (1) misrepresents real estate, goods or services, (2) fails to disclose material defects, and (3) many other situations. To read up on the other situations, see ORS 646.605 through 646.652.

Oregon's Unlawful Trade Practices Act provides advantages compared to claims for negligence. Most important is that the UTPA provides for attorney fees when consumers win.

The moral of the story: signing those papers at closing might not be the end, if the buyers were induced to buy because of misconduct by the real estate agent (or the seller).

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.

Like other Oregonians, you've resolved to get fitter in 2011. Maybe you bought a new treadmill. With persistence, you'll achieve your goals, unless a defective treadmill causes injury and disables you. According to the Consumer Product Safety Commission (CPSC) treadmills have been recalled for decades.

A recurring problem has been uncontrolled speeding or rapid acceleration. For example, a component in the control panel caused rapid acceleration leading to reports of people falling from a Horizon Fitness treadmill. A 2008 recall involved sudden acceleration because of the lower control board in a Cybex International treadmill. In 2005 after 110 reports of unexpected acceleration, the CPSC announced a recall of 12,000 Tredex treadmills.

For the most part, the CPSC relies on manufacturers and sellers to report problems, but sometimes the reports are slow in coming. In 2001, Icon Health & Fitness, Inc. agreed to pay a $500,000 civil penalty for failing to report safety hazards and injuries, from its "glider" machines. Some of the injuries resulted in spinal injuries and disabilities. Some incidents occurred right in the Wal-Mart stores.

Oregon's product liability law allows consumers to sue both the seller of the product and the manufacturer. This is important, especially when the manufacturer is from China or Taiwan. If you are injured from treadmills - or any defective product - it is important to keep the product, because it is the single most important piece of evidence in a product liability lawsuit.

So, good luck with your resolution. If you notice an issue with your new machine, don't assume that it is user error. Stop using it until you confirm that the product is safe for use.

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.