Oregon Personal Injury Lawyer Blog

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