Oregon Personal Injury Lawyer Blog

Death does not extend the time to file a personal injury lawsuit against a public body, held Oregon's Court of Appeals. In yesterday's opinion, the court addressed the interplay between the statute of limitations for lawsuits against public bodies with the statute that keeps alive personal injury claims despite the injured person's death. These are called "continuation actions," because the claim for injury continues after the death of a person.

The source is ORS 30.075(1), which allows the personal representative of the estate to continue or start a lawsuit against the wrongdoer "if the decedent might have maintained an action, had the decedent lived[.]" The confusion came from the last sentence, which requires that the lawsuit be filed within the general two year statute of limitations (ORS 12.110), "or within three years by the personal representatives if not commenced prior to death."

Public bodies have their own statute of limitations - not the general SOL -- even though it also establishes a two-year deadline. ORS 30.275(9) says that its two-year time deadline applies, regardless of any other "statute" of "limitation." In yesterday's case, the lawyer filed the lawsuit 14 days after the two-year anniversary of the injury. He argued that the law allowing up to three years to file continuation actions is not a statute of "limitation." Instead, he urged, it established an extra year, kind of like when minors get extra time to file a lawsuit.

Oregon's Court of Appeals disagreed. The three-year deadline for continuation actions is, in fact, another statute of limitations, which is trumped by the special law for public bodies.

So, when you have a personal injury claim against the government, you can't let death get in the way of filing within two years.

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.

Head and brain injuries among children occur too frequently. The numbers are increasing. On October 28, 2011, the Brain Injury Association of Oregon holds a conference on best practices for diagnosing and treating brain injuries.

I've written about the problems before. At earliest ages, falls cause many pediatric brain injuries, and head injuries, overall cause most of traumatic deaths among children. Statistics indicate that at age 15, head trauma increases significantly, likely due to football and other sports and driving. Although we're getting better at identifying brain injuries after the fact, the number of brain injuries is increasing.

Children's brains differ from adult brains. Their brains are softer because of more water content. This increases the risks of injury.

Speakers at the conference will discuss three general topics: the latest medicine; how educators can better work with students after injury; and tips to the families to get the assistance they need. For more information, please see the Association's website.

If your child was hurt because of the fault of others, please know that there are strict time limits for making legal claims. For example, if a school or public agency is at fault, the time to act may be as short as 270 days. So, although families have much to deal with when confronted with a brain-injured child, sometimes, contacting a brain injury attorney should not wait. If you want to discuss your legal options, please call me.

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, the Oregon Court of Appeals said that the Lake Oswego School District could not be held responsible for the alleged child abuse by a fifth grade teacher that occurred more than 2 years ago. In Does 1-7 v. Lake Oswego School District and Judd Johnson, the Appellate Court upheld the trial court, which threw out the case based upon time limitations under Oregon's Tort Claims Act.

Seven men claimed that a fifth grade teacher molested them between the years 1967-1984. In other cases, against churches, for example, child molestation and sexual battery from decades ago has been the subject of sexual abuse lawsuits in Oregon. There's an exception to the general statute of limitations for child abuse cases if the victim did not comprehend the harm until recently. However, that exception did not win the day against the school, which is a public body protected by the Oregon Tort Claims Act (ORS 30.260 and following).

The OTCA sets forth strict time limitations. First, the victim must notify the public body or government agency within 180 days of an injury. If the person is disabled or a child, then the time limit can be extended for an additional 90 days, to 270 days. The victim must file a lawsuit within two years. Both deadlines start at the time of discovery, which begiins when the person, or any reasonable person, would have been aware of (1) the injury, (2) who is the perpetrator, and (3) the cause of the injury.

The court held that when suing a school or public body, "injury" for sexual touching occurs at the time of the touching. All of the men knew they were touched inappropriately back in the fifth grade, even if they did not comprehend the full consequences of the touching. For that reason, the court held that they all missed the time deadlines under Oregon's Tort Claims Act.

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.

Recently, the Ninth Circuit Court of Appeals resolved an important question in an Oregon case under the Family Medical Leave Act (FMLA). In Diane Sanders v. City of Newport, the city refused to reinstate Ms. Sanders after her doctors said she was fit for duty following her medical leave. Later, the city fired her, claiming that they could not guarantee a workplace that would not trigger her medical reaction to chemical sensitivities. The question was, Who had the burden of proof? Must the employee prove that the employer had no good reason to keep her off work? Or is the burden of proof on the employer to prove a lawful reason to avoid reinstatement after medical leave?

Ms. Sanders alleged discrimination and interference with her rights under FMLA and under Oregon's Family Leave Act. The trial judge instructed the jury that the worker must prove that the employer, without reasonable cause, did not put her back to work.

The Ninth Circuit held that the employee did not have to prove what was in the mind of the employer. Instead, all the employee needed to prove was (1) she qualified for FMLA rights, (2) she was entitled to leave, (3) she followed the rules for reinstatement, and (4) the employer did not provide the FMLA rights. If the employer has a legally-sufficient reason to avoid reinstating the employee, then the EMPLOYER has the burden to prove its good reason.

This was not my case, so I cannot comment on the City of Newport. However, there are some employers who just do not want to deal with employees with medical conditions, especially if they involve workers' compensation claims. Often employers will never reemploy the workers and come up with some bogus reason, or pretext, for not reemploying the worker. The Ninth Circuit got it right. If the employer has some good reason to fire a worker after she had a medical condition, then the employer should prove it.

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, Oregon's Court of Appeals held that Oregon's constitutional protection of free speech prohibits Tri-Met from excluding advertisements based upon issue or political content. In Karuk Tribe and Friends of the River Foundation v Tri-County Metropolitan Transportation Dist., the tribe and the Friends, wanted to post an ad with a graphic showing salmon confronting an impenetrable dam of wall sockets with the tagline, "Salmon shouldn't run up your electrical bill. They should run up the Klamath River."

Tri-Met turned down the business. Tri-Met cited its policy against advertisements containing political campaign speech. Under the policy, one can buy ads to sell stuff, but not to sell ideas.

In court, Tri-Met said it was acting like a business, not in a governmental capacity, so Oregon's Constitution should not apply to it. (Tri-Met also argued that the Tribe should not be able to sue for personal speech rights.) The trial court said, "no." It held that the policy violated Oregon's Constitution and the First Amendment to the U.S. Constitution.

Oregon's Court of Appeals avoided the First Amendment. Oregon's Article I, section 8 prohibits the government from deciding what content is okay, even when acting in a proprietary capacity, it held. There are historic exceptions to that rule. For example, fraudulent speech or assistance in criminal activity. But the exceptions do not include issue ads linking dams, power, rates and salmon.

Perhaps the biggest consequence of this decision is that political candidates can now buy Tri-Met ads on bus lines in their districts.

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 jury award against the City of Milwaukie, which inadvertently pumped sewage into a home when it was cleaning the sewer pipes. In Sharon Dunn v. City of Milwaukie, the homeowner relied upon the legal theory of "inverse condemnation" against the city.

Condemnation is when a governmental agency takes private property for a public purpose. If the homeowner does not like the price offered, then it goes to court. "Inverse condemnation" applies when the government makes no offer to buy, but takes property anyway. Then, the homeowner must sue the government to be paid. One of the questions in Milwaukie case was whether blowing sewage into a house added up to a "taking." Certainly, the homeowner still owned the home.

"Taking" includes more than just dispossessing the homeowner. A "substantial interference with the use and enjoyment of the property is sufficient." The evidence included that Ms. Dunn could not use her furnace for a time, so she had to close off rooms and use space heaters. Hardwood floors might need to be removed and replaced. The sewage damaged the sheet rock in parts of the house, and an appraiser testified that the home lost approximately $100,000 in value. The court held that such evidence is enough for a jury to find a "substantial interference" to require compensation.

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, 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.

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