Oregon Personal Injury Lawyer Blog

Last week, the Oregon Court of Appeals confirmed the one-beneficiary-per-cap interpretation of the Oregon Tort Claims Act. In Stephanie Miller v. Tri-County Metropolitan District, a Tri-Met driver killed Austin Miller with his bus, and his mom filed a wrongful death lawsuit.

The wrongful death statute permits lawsuits to recover the losses of certain beneficiaries named in the statute. Austin's mom and dad were the only statutory beneficiaries. The wrongful death statute requires a personal representative be named to pursue the claims of all beneficiaries.

Tri-Met is a public agency, and the Oregon Tort Claims Act (ORS 30.260 - 30.300) controls claims against it. The OTCA sets limits for how much one can claim against a public agency. Tri-Met argued that there is a single cap for a single death, regardless of the number of grieving heirs. At the time the cap was $200,000. (It's more now.)

Oregon's Court of Appeals disagreed. It held that the wrongful death statute doesn't provide for a single cap for a single death. Instead, all of the statutory heirs have separate claims, and the wrongful death statute merely requires they all be made in one lawsuit by one personal representative. So, in this case, the claim for mom's loss was separate from the claim for dad's loss. Consequently, two caps were in play, meaning the total cap was $400,000.

We'll see if Tri-Met wants to appeal this to the Oregon Supreme Court.

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, Oregon's Supreme Court declared the circumstances under which a trial court may keep secret the names, addresses and employers of jurors. In this day when a name is the key to finding out so much about someone on Facebook, Twitter and other sources, the ruling is very important. The trial court justified anonymity by telling the lawyers that purpose of the jury selection process, "isn't about your knowledge of them (prospective jurors); it's about their knowledge of you and your case or type of case." The supreme court disagreed.

When anonymity is not the norm, instructing jurors NOT to disclose their names or employers can suggest that the court thinks the defendant is a very dangerous dude. Without some clear explanation to neutralize that impression, Oregon's Supreme Court held that the alleged scumball did not get a fair trial.

The court said that anonymity might be okay in some circumstances, such as if there is a history of juror intimidation or the defendant is linked with a dangerous group. First, however, trial court must identify those reasons and then do its best to minimize the negative inference from secrecy. A sufficient reason does NOT include blanket juror privacy from Facebook research. Or, in the words of the court. A good reason for anonymity is NOT a "generalized desire to protect the anonymity of all jurors in all cases in the interests of juror privacy."

Jury service is an important civic duty. We respect and honor those who serve. We must protect them if their service could imperil them. Yesterday, the court confirmed that only when jurors are at risk may they perform their service anonymously.

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

Oregon has suffered high unemployment, including for lawyers. Young people graduate law school in debt and cannot find work. Some decide to open their own law practice, which concerns me because law schools do not teach people how to practice law. This means that people who hire freshly-minted lawyers must beware.

In decades past, most of us could find jobs with big firms or experienced attorneys. In effect, many of my generation enjoyed a type of apprenticeship, even though no one called it that. Our responsibility grew only as we grew in our knowledge and skill.

Unfortunately, some young lawyers "don't know what they don't know." I've received many calls from people who believed their attorney committed legal malpractice, causing them to lose their right to sue or suffer a bad result at trial. I've helped some of them recover their losses from their former attorney.

The good news for consumers that Oregon requires all lawyers to have malpractice insurance of $300,000. Also, leaders in the bar recognize the problem of inexperienced lawyers practicing law, and we are trying our best to match them up with experienced mentors.

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

For about a decade, the general manager of an Oswego, NY, grocery story harassed his workers, many of whom where teenagers. Sex talk, touching, and sexual propositions created a very hostile working environment.

Finally, some of the women took on this guy. They went after him criminally, and he pleaded guilty to a charge in 2008. The women went to the EEOC, who took him to court. Although the EEOC only won awards of about $10,000 per woman for compensatory damages (which seems low to me), it won a whopping punitive damage award of $1.25 million. No doubt, that will be appealed.

Too often, employers try to take advantage of teenage girls on their first jobs. Not just sexual harassment, but violations of wage and hour laws. Unfortunately, the young women are not sure what to expect and what is legal.

When young people proudly report to parents that they got their first job, parents should make sure that their children know to ask them when something questionable happens. Sometimes, what is wrong is as simple as asking them to wait in the break room "off the clock." Other times, the problem can be a serious as rape. If prevention does not work, then contact an attorney, Oregon's Bureau of Labor and Industries, or the EEOC.

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, a Portland, Oregon company paid $85,000 to settle a claim that it fired Jesus Perez in retaliation for questioning whether he received a smaller raise than non-Hispanic co-workers. The same day Mr. Perez asked about the raise, his employer, Pacific Seafood Company, sent him packing with his final paycheck after telling him that if he was going to accuse the company of discrimination, they "should part ways."

Retaliation is not uncommon in Oregon. Currently, I represent five former employees of a construction company. One was fired after he filed a workers' compensation claim. One was fired after challenging his wage rate by going to the Oregon Bureau of Labor and Industries (BOLI), and others were fired when the bosses learned they were going to contact a lawyer about other issues at work.

This employer, from the Oregon coast, constantly threatened employees with termination whenever they questioned anything. In years past, the company got away with it. But, finally, these employees decided to take on the company, and I'm proud to represent them.

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

Yesterday, Oregon's Court of Appeals ruled that a landowner was not liable for a severe injury to a snowmobiler caused by riding into a cable placed across the driveway. The case highlights Oregon's "recreational use" statute (ORS 105.672-700) and the duty owed landowners to those on their land.

Just because a person gets hurt on the land of another does not mean the injured person has a right to sue the landowner. That applies whether it is a fall at a grocery store, or, as here, a serious injury on a snowmobile. Oregon law divides people into different groups: trespassers, invitees, and licensees. Additionally, Oregon has a specific law that provides landowners immunity from suit if they open their land for recreational use and the injury "arose out of" that use of the land.

For decades recreational use immunity has been important for those of us who want to camp or hike on private forest land, for example. Otherwise, the logical thing is for the landowner to post "no trespassing" signs everywhere.

In this snowmobile lawsuit, the estate of Mr. Stewart argued that although part of the land was open for recreational use, where he got hurt was closed. Therefore, it argued, the landowner was not immune from suit. Instead, it argued that the landowner was negligent for not making the cable more visible or using some other method to block access from the road.

Oregon's court said, in effect, "either way, you lose." If the landowner were not totally immune from suit, then he only owed Mr. Stewart only what he would owe a trespasser. A trespasser may sue a landowner for injury only if the landowner causes the injury "by willful or wanton conduct." A cable across the driveway is not like setting a gun to blow off the head of someone who opens a door. The cable was not placed with the intent to injure anyone.

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.