Oregon Personal Injury Lawyer Blog

Carwash fundraisers. We see them all the time. Thirteen-year-old "Jane Doe" was sexually assaulted in the Dairy Queen bathroom when she attended the fundraiser. Her guardian ad litem sued the Organizer, Kids Incorporated of Dallas, Oregon and the Dairy Queen. Oregon's Court of Appeals ruled that the formal complaint did not present a valid legal claim, because it did not allege enough facts to indicate that either Kids Inc. or Dairy Queen should have anticipated the sexual assault. The opinion discussed the dividing line between when someone can sue a business for a crime committed by someone else.

Oregon's negligence law differs a bit from other states' law. The complaint must allege facts that (1) defendant's conduct caused a foreseeable risk of harm, (2) the law protects people from those risks, (3) defendant's conduct was unreasonable in light of the risks, and (4) the conduct actually caused the harm to a person at risk. The court found the complaint lacking on the first part: as a matter of law, it is not foreseeable that merely inviting strangers to a carwash with teenage girls would lead to a sexual assault in the men's bathroom.

When may crime victims sue a landowner for injuries caused by third persons? The Oregon court discussed when a victim may and may not sue. Situations that are "foreseeable" include the following.

If there has been past problems. For example, a high school girl who was raped on school premises was allowed to sue because another girl had been attacked on the school grounds just 15 days before. Another example is a person could sue a bank when robbed at an ATM in a hidden location because a similar crime occurred at another branch.

If the "place or character of the business" raises the possibility that a person might be endangered. I suppose if someone ran an underground dog-fighting establishment visited by a rough and armed crowd, then the "business" owner could reasonably foresee some trouble. By contrast, the "place or character" of a Dairy Queen is not one where an owner would reasonably anticipate a crime absent any prior issues.

In one of my cases, the Court of Appeals held that my client could sue the bar that over-served her alcohol and ejected her while she was in line for a pay phone to call for a ride home. Instead, she tried to hitchhike and was raped.

On the other hand, just the general notion that the world is dangerous and that people are bad is not enough. In fact, Oregon's Supreme Court held that a crime victim could not even sue the state for a crime committed by a state prisoner who escaped from a work crew using a van in which the supervisor was dumb enough to leave the key.

In Stewart for Jane Doe v. Kids Inc. & Dairy Queen, the facts alleged in the complaint added up to no more than (a) the car wash was advertised, (b) which solicited strangers to attend, and (c) there are a lot of strange men who would like to assault teenage girls. The court said, that's not enough to "foresee" a potential crime under Oregon's negligence law such that defendants should have taken special precautions.

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.

Oregon attorneys are generally very helpful to other lawyers. Both sides of the civil bar have listservs, where attorneys post questions, comments, etc. It's very helpful. It's like having hundreds of co-workers down the hallway to whom we may ask questions and share concerns. Sometimes the best answer we can provide a colleague is to refer the case to a lawyer who has more experience.

Case in point: An attorney said he was providing "pro bono" (or free) representation to a client with a "slip and fall" case. He asked about the role of medical testimony in the case and how to prove causation (that the fall caused the injury). I was not the only attorney to think, "Uh oh!" Two colleagues wrote that he needed to refer the case to some other attorney. Here are the "red flags" from that posting.

First, attorneys who represent injured people call these "premises liability" cases, not "slip and fall'' cases. "Premises liability" focuses on the legal obligations of the landowners toward customers or visitors; the other term focuses attention on the injured person.

Second, premises liability cases are not easy. Attorneys who are not familiar with personal injury cases might think they are easy, but they are not. There are many issues including: (1) What is the legal duty of the property owner? (2) How obvious was the problem with the area? (3) Was there any fault on the part of the injured person? (4) How does one develop the medical evidence and limit the potential damage from defense medical examinations?

Third, medical evidence is critical in every injury case. For cases seeking less than $50,000, medical reports might suffice to get through nonbinding arbitration. However, if the case is worth more or if one side requests a court trial, then one needs doctors to testify under oath. This is pretty basic stuff, which made many of us on the listserv cringe at the posting.

What happens if an injured client goes forward with a lawsuit? There are out-of-pocket costs, for which the client remains responsible. If there is a zero verdict, then the client must pay. Also, when the defendant wins, then it has a claim for some of its costs, too. If an attorney gets you into a lawsuit that does not make sense, then you might come out owing money.

So, the moral of the story is that, sometimes, free help is worth even less than the $0 you pay for it. It can cost you.

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, 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

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.

Today, the Safe Kids Committee on which I serve held a community forum on understanding and preventing window falls among children. Hosted by Legacy Emanuel Children's Hospital and emceed by KOIN TV's Kasey Montoya, the conference gathered numerous stakeholders from Oregon and around the United States who want to reduce the epidemic number of children injured by falling out of windows.

Presentations included the following:

• Considering "human factors" in identifying solutions.
• The tragic stories from two moms, one who lost a child, and the other whose child survived with a severe brain injury.
• Data on window falls from Oregon, Chicago and around the United States.
• As an attorney, I spoke about my clients whose lives were changed by window falls. I also spoke about my efforts trying to pass an Oregon law to provide for window guards in rental properties. (See the Bill and legislative history.)
• Safety products were described. In addition to bars, window protection devices include steel screens, curtain-like mesh, and a variety of window stops.
• Existing efforts at education rules and codes, including Oregon's Building Code that requires window fall protection.

Continue reading "Oregon Window Fall Forum Was a Great Success!" »

Monday in Portland, Oregon was typical. The weather changed from nice to rainy, I had my plan to work for four different clients. My plans always get a bit side-tracked by people who call seeking help from an attorney. Today, I reviewed records and spoke with a Salem man who wants to sue his spine surgeon for medical malpractice, a Portland woman who asked me about sexual harassment, and a Portland man who discovered unhealthful mold in his rental condominium. I will not represent any of them.

So, together, I probably gave away 1-½ hours of my time today. I don't mind; it's part of my job. Usually, I'm happy to help. However, sometimes people think that I should give more than my initial screening and initial thoughts. Some get quite indignant, as if I'm wrong to want to be paid for my 30 years of legal study and practice. When I ask them if they would be willing to donate their time to help me with my issues, like yard work or cleaning the garage, often, they get my point.

Pro bono is a term that refers to free help from attorneys for needy people or causes. Typically, attorneys recognized for pro bono work are big firm lawyers who do not bill for a particular job, yet never miss a paycheck. They carefully track their hours (perhaps the firm gets a tax break). Then, they can say they donated 30 hours for a particular cause. That's good, and they deserve recognition.

For lawyers who help people -- "plaintiff's lawyers" as we are known -- we give out free help to people just about every day. In a year, I probably give over 200 hours of time, and other plaintiff's lawyers probably do the same. I help a lot of people: both those who think they have a claim plus those who do not get sued because I explained the law to someone who wanted to sue them.

Here's my best potential client (PC) question:

PC: My boss at work was harassing me and then he fired me. I'm probably the best worker on site. I think I have a case.

Me: Why do you suppose he did that?

PC: I slept with his wife, but they were separated at the time. . . .

Sorry dude, sleeping with the boss's wife is not protected activity.

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

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.

For years, Oregon children have been killed and have suffered Traumatic Brain Injury because they fell from windows. Second story windows are high enough, as I sadly learned while suing a landlord and Portland property management company. In the Portland area, alone, more than a dozen children go to hospitals for window fall injuries each year. Oregon Trauma Registry data indicate a total of close to 50 child window fall injuries per year.

The legal cases I had involving children falling from windows caused me to lead a legislative effort to pass a law requiring landlords to offer window guards to tenants with small children. That law did not pass, but a new Oregon building code is a step in the right direction.

The new regulation became effective February 1, 2010. It is Oregon Residential Specialty Code § R613.2. It applies to windows more than 72 inches above the ground below and offers two protections:

• First, windowsills must at least 24 inches above the floor.
• Second, the windows may not open more 4 inches unless the windows a provided with window guards that meet a certain national standard, called ASTM F 2090-08.

This is an important first step for a couple of reasons. First it acknowledges the serious and continuing problem of children falling from windows. Every year, when the weather gets hot, kids start dropping out of windows. You can count on it.

Second, the window guard requirement might cause stores to stock window guards. Right now, guards are very hard to find. You can see how window guards work at the Legacy Children's Hospital Safety Store, which is borrowing my own window guard displays. The knowledgeable and kind women who staff the store can help you order window guards and other safety devices.

I trust the word will get out to residential homebuilders: Make places safer to prevent tragedy!

Jeff Merrick, Oregon Trial Attorney
503-665-4234

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

A North Bend, Oregon man asked about suing his noisy neighbors who he believed were often drunk, and certainly loud. He'd called the police, but "what else can I do?" he asked.

Oregon law of nuisance covers an invasion of another person's interest in the private use and enjoyment of land. Whether you hold the land as an owner or tenant with a lease does not matter. If it is your property, then you have a right to reasonable peace and quiet.

Here's what you need to win the lawsuit.

First, your neighbors must be doing something that is hurting your use and enjoyment of land. The legal standard is that it must be the kind of harm that a normal person in your community would not put up with. A slight inconvenience or annoyance is not enough. If your neighbors party once per year, then you'd have no claim. If they fight every night and you can't relax in your home, then you could prove "significant harm." If your neighbor's conduct is somewhere in between, then a jury will need to decide if the extent of the harm adds up to a nuisance.

Second, your neighbor's conduct must be intentional. If you are suffering in silence, then you might not be able to show that your neighbor's conduct is "intentional." Make sure your neighbors know that you can hear their fights and it is ruining the use and enjoyment of your home. A certified letter would do. If they do not sign for it, slip one under the door and keep track of when you did it.

Jeff Merrick, Lake Oswego, Oregon
503-665-4234

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

Portland, Oregon's Downtown Greek Cusina closed after being busted for fire code violations. Mr. Papas, the owner, is angry with the enforcer, Commissioner Randy Leonard and wants to sue. On this one, I side with City of Portland, because of what could happen if Portland did not enforce its fire code.

Let's say it is just another bachelor or bachelorette party at the bar / restaurant. Twenty-something women and men are partying the night away when a fire starts. Because of fire code violations, people die and are injured. So, instead of Mr. Papas trying to sue the city, grieving parents or injured people would file significant lawsuits for wrongful death or personal injury.

In Oregon, suing public bodies, such as cities, the state, or school districts, involves special rules and defenses. The first thing is that the injured or aggrieved person must do is send written notice of the intent to sue within a certain time. This is called the Tort Claims Notice. For injuries, it is 180 days. For wrongful death lawsuits, it's one year.

For many types of lawsuits, public agencies can defend by saying their decision, action, or inaction was a "discretionary function." That is, you can't sue a city for making a choice you would not make. But there's no choice when it comes to enforcing known fire code violations: the city has no discretion. If someone is injured or dies because the city fire inspector let things slide, then the city would be subject to a lawsuit for a lot of money.

So, thank you, Commissioner Leonard, for protecting people from injury and protecting taxpayers from lawsuit liability.

Jeff Merrick, Oregon Trial Attorney
503-665-4234