Oregon Personal Injury Lawyer Blog

Last week, Oregon's Court of Appeals affirmed a $362,000 judgment for a grocery shopper hurt by product that fell from a defective shelf. The case is interesting for a couple of reasons, including the way it distinguishes a slip and fall situation from a defective shelf and falling merchandise.

In Jacqueline Hammer v. Fred Meyer Stores, Inc., Ms. Hammer suffered personal injury and significant medical expenses when half-gallon lemonade cartons fell from a tipsy shelf. Fred Meyer controlled the set up the shelves, how to secure the shelves, and how to stock the cartons on the shelves. When Ms. Hammer got her product, the shelf tipped forward and dumped other cartons out onto her. When a bystander tried to help, the shelf failed on him, too.

The attorney for the store argued that this situation should be treated like a slip-and-fall case when there is stuff on the floor. In those cases, the attorney for the shopper must prove that either (1) the store was responsible for placing the foreign substance on the floor, or (2) the store should have known it was there and should have warned about it or cleaned it up before a customer fell.

The trial court and Oregon Court of Appeals disagreed with the defense attorney. Here, the store controlled the shelf and the stocking of the shelf. That differs from a produce section, where many people are in the area and any of them could have dropped some slippery grapes just moments before a fall. In the Fred Myer case, there was no evidence that any third person did anything to the shelving or products that caused the boxes to fall onto its customer-shopper.

In this case, the courts held responsible the corporation that was, in fact, responsible for the injury to the shopper.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

Oregon's Court of Appeals ruled that there are circumstances when a doctor does not have a right to participate, or "intervene," in a lawsuit alleging he malpracticed. In Dixie Taylor v. Portland Adventist Medical Center, a woman went to the emergency room, was sent home, and died. Her loved ones sued the hospital for medical malpractice, not the two doctors involved in the decision to send her home.

The doctors and hospital were in a bit of a pickle. The doctors were employees of the hospital. But, if the hospital has to pay a judgment because of the doctors' malpractice, then the hospital had a right to reimbursement from the doctors. (This right is called "indemnity.") The hospital could have sued the doctors in the same lawsuit, but decided not to. Certainly, the hospital did not want the jury to witness the family AND the hospital arguing that the doctors screwed up.

The doctors said they wanted to be in court to defend their professional reputations, even though they were not named as defendants.

Oregon's Court of Appeals held that Oregon's rules provide two paths to intervene in a lawsuit. One is as a matter of right: when the jury will make a decision that legally binds you. The other is permissive intervention, when the person has some good reasons to be in the lawsuit, but the there are good reasons to exclude the person. All agreed that this was a permissive intervention situation because even if the jury finds for the family of the woman who died, that decision does not bind the doctors who are not parties to the lawsuit. In other words, if the family wins and the hospital later sues the doctors for reimbursement, then the doctors can still argue that they were not negligent, despite what the first jury ruled.

The court found that the doctors had good reasons to participate in the lawsuit. Nevertheless, it upheld the trial judge's decision to exclude them for the following reasons:

• The hospital was highly motivated to win the lawsuit. If it wins, then the doctors have nothing to worry about.
• Whatever the outcome, the verdict would not prejudice the case between the doctors and the hospital.
• Under our system, the family gets to decide whom to sue.
• If there were three defendants in the case, with three defense lawyers and many more expert witnesses, then the family would suffer at trial. Three defense lawyer would give opening statements; three defense lawyers would cross-examine witnesses; three defense lawyers would deliver closing arguments. The case would become much more complicated, more confusing for the jury, AND much more expensive.

Although it may sound harsh that the doctors could not participate, one wonders if they really wanted to be in the courtroom. Instead, I suspect that the insurance company for the hospital wanted to have all three defense lawyers there to try to overwhelm the lawyer for the family.

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

Yesterday, the Oregon Supreme Court suspended attorney Anthony Robert Lopez, Jr. for eight instances of misconduct, including mishandling personal injury settlements. Attorney Lopez's bad conduct provides reminders of what clients should expect from their attorneys. It also illustrates an important difference between legal malpractice and attorney misconduct that does not amount to malpractice.

Most of the issues involved personal injury settlements. An attorney must (1) promptly inform clients of settlement offers, (2) obtain court approval when settling a child's injury claim (usually), (3) explain how settlement funds will be used, and (4) disburse the funds within a reasonable time. Often, doctors or others who have provided services or funds to the injured person because of the car accident have a claim against the settlement. The lawyer needs to deal with those claims and liens.

Mr. Lopez settled some minors' claims without court approval, which was conduct prejudicial to the administration of justice. When he paid himself out of the unapproved settlement, that constituted collecting an illegal fee.

Mr. Lopez failed to deal properly with payments to medical providers, which constituted a failure to provide competent representation.

If the clients suffered monetary losses from this type of conduct, then they would have a legal malpractice claim against the attorney. However, if the clients got all the money to which they were entitled and it was just a matter of delaying the final payments to others, then there is no attorney malpractice. That's because, for any claim of negligence, one must suffer "damage" before you can go to court and sue.

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.