Articles Posted in Wrongful Death

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Nine months after an explosion in a West Virginia coal mine left 29 mine worker dead, the Wall Street Journal reports that many families torn apart by the tragedy remain unsure of their next legal steps forward. Their stories contain many lessons for Oregon families thrown into similarly tragic circumstances as the result of an Oregon wrongful death or industrial accident.

As the paper reports, within days of the mine explosion the board of Massey Energy Company, one of the largest and most powerful companies in West Virginia, offered each family a settlement: $3 million in compensation for the death, lost wages and lost companionship of their loved-one, in exchange for giving up any right to sue the company. The Journal reports that, at present, only seven families have agreed to the company’s settlement, and that “in at least two cases family members are at odds and plan to let a court decide which path they should take.”

For the families the choice is a painful one. As the Journal quotes one victim’s father, himself a miner, saying: “I don’t think it’s justifiable that they want to put a dollar sign on my boy.” As the article notes, the families of workers involved in other industrial accidents often face similarly agonizing choices.

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A scathing statement released Tuesday by the National Transportation Safety Board cites “a series of improper actions” by a Grant’s Pass, Oregon contractor leading up to a 2008 crash that killed nine firefighters in California. According to a report in The Oregonian, the NTSB’s chairwoman found some actions by the company, Carson Helicopters, “so distressing that the NTSB has alerted the Department of Transportation’s inspector general to investigate in more detail, looking for possible criminal wrongdoing.”

The NTSB statement (see link below) paints a devastating picture of corporate negligence and deception. Referring to Carson, whose helicopters were contracted out to the US Forest Service for firefighting purposes, the NTSB writes: “The contractor’s actions included the intentional alteration of weight documents and performance charts and the use of unapproved performance calculations.”

Though the NTSB also found fault with actions by both the Forest Service and the Federal Aviation Administration, “Carson’s actions were so egregious – so egregious – that they have to go first,” NTSB member Robert Sumwalt told The Oregonian.

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The death of a young Corvallis man on Thanksgiving Day as the result of an Oregon motor vehicle accident involving an armored car was a sad reminder of the dangers of driving on holiday weekends and has left a number of legal questions potentially unresolved.

Joseph Michael Pablo was riding in the back of an armored car early on the morning before Thanksgiving when the vehicle’s driver lost control, according to reports in the Corvallis Gazette-Times and the Salem Statesman-Journal. The accident took place off Highway 99W near Monmouth, southwest of Salem. The Gazette-Times reports that Pablo’s armored “truck was headed south and veered off the right side of the road, hit a tree and rolled several times before coming to rest on its roof.”

Pablo had been riding in the back of the truck as part of his job as a guard working for the company operating the vehicle. Pablo was transported to an area hospital in critical condition and died of his injuries the following day. The truck’s driver at the time of the Oregon fatal truck accident was not seriously injured and did not require hospitalization. He was cited for Oregon careless driving, according to the Gazette-Times.

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The family of a driver who died in an Oregon truck crash earlier this year has filed an Oregon wrongful death lawsuit against the other driver involved in the accident, according to a report in the Eugene Register-Guard.

Because the driver of the truck that caused the accident is already serving an 18-month prison term in connection with the fatal Oregon big rig crash, this case offers an especially clear reminder of something I have frequently mentioned in this space: the fact that the search for justice does not end in our criminal courts.

According to the Register-Guard the fatal accident on Highway 58 east of Eugene took place last March. Driver Bon Puckett “pleaded guilty last month to criminally negligent homicide and hit-and-run in connection with the pre-dawn wreck.” The accident took place when 28,000 pounds of hay Puckett was hauling that morning came loose and crushed the cab of a paint truck driven by Gregory Muller of Nevada. Prosecutors later contended that Puckett had not secured the hay properly and that his truck had not been properly maintained.

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A 67-year-old woman trying out a “go kart-like” vehicle at a California swap meet was killed last week when she lost control of the vehicle, drove out into traffic and was hit by a car. The sudden and unexpected tragedy raises a host of legal questions, particularly concerning liability and whether the woman’s accident can be defined as a wrongful death.

Family members later told the Orange County Register that Hwa Oh had never driven a go-kart before. The newspaper reports that while visiting the swap meet with her sister she accepted an offer to try out the go-kart in the facility’s parking lot. According to an account of the accident by the Associated Press, moments after taking the wheel the woman “lost control of the cart and ran through some bushes, across a sidewalk and onto a street.” She was pronounced dead at an area hospital a short time after the accident.

The AP report notes that law enforcement did not issue any citations at the scene of the accident. That decision by the local police does not, however, necessarily foreclose the possibility of legal action. One has to ask whether appropriate safety measures were in place in the parking lot before the woman climbed into the go-kart. We know from her surviving relatives that she had never driven such a vehicle, but did the cart’s owner ever ask that question? Should the owner of the property even have allowed people to drive around an active parking lot in small, fast, unsafe vehicles?

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A circuit court ruling issued at the end of last month has the potential to offer significant protections for Oregon families considering wrongful death claims related to Oregon nursing home abuse and neglect or medical malpractice.

The case, formally known as Bradley v Sebelius, turns on a wrongful death claim in Florida. After Charles Burke died in early 2005 his ten surviving children sued the nursing home where he had lived prior to his final hospitalization claiming that the nursing home’s negligence led to the infection that eventually killed their father. The case was settled out-of-court without reaching trial, with the nursing home’s insurer agreeing to a claim of $52,500 – the maximum that the home’s liability insurance policy would allow.

At that point, however, Medicare stepped in demanding that around half of the total settlement be remitted to the government to reimburse Medicare’s expenditures for Burke’s hospital care prior to his death. A probate court ruled against Medicare, deciding that it was entitled only to a share of the wrongful death settlement and awarding the government $787.50. Medicare took the case to federal court and won at the district level. That decision has now been reversed by the 11th Circuit Court of Appeals.

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Yamaha’s Rhino off-road vehicle is emerging as a target of significant personal injury lawsuits here in Oregon and elsewhere around the country, according to a recent article in The Oregonian. The paper notes that the Rhino, first introduced in 2003, is the subject of “about 700 injury and wrongful death claims” nationwide, including several in Oregon.

Only five such cases have gone to trial so far, and the company has won four of those (the exception was in Georgia), but, the paper notes, “Yamaha has quietly paid settlements in at least 40 Rhino cases, some on the eve of trial.” The paper’s reporting, which was compiled by the consumer watchdog organization FairWarning.org, also says the federal government’s Consumer Product Safety Commission “has received reports of 70 deaths in Rhino crashes.” An August 2009 CPSC news release notes that several models of the Rhino were recalled for repairs “in order to enhance stability and reduce the potential for rollover.” At the time of the recall the company also gave Rhino owners free helmets.

The company says the vehicles are safe, and that its winning record at trial proves it. Consumer advocates, according to The Oregonian, counter that the company has, until now, successfully cherry-picked cases it was likely to win: instances in which reckless driving appeared to have played a role in the injuries or deaths resulting from accidents involving Rhinos. A March 2009 CPSC report noted, however, that many of the more recent accident reports “appear to involve turns at relatively low speeds on level terrain,” according to The Oregonian.

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A Portland traffic accident last week that resulted in the death of a 54-year-old pedestrian is still under investigation by Oregon law enforcement authorities, according to The Oregonian and other local media. Though the police are reported to have issued no citations at the site of the accident, the incident raises the possibility of a Portland wrongful death claim.

According to The Oregonian, “Christopher Berard, of Southwest Portland, was crossing SW Barbur at SW Capitol Highway from east to west around 8:45 p.m. against the “Don’t Walk” signal” last Thursday when he was struck by a car headed south on SW Barbur.

Berard was transported to a nearby hospital following the Portland traffic accident, but subsequently died of his injuries, according to television station KPTV. Though the precise circumstances of the fatal Oregon car accident remain under investigation the driver of the car that struck Berard is cooperating with law enforcement, KPTV reports.

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An August 2009 head-on car crash that left two dead in Bethany, near Beaverton, is the subject of a suit brought under Oregon’s dram shop laws, according to an article published last week in The Oregonian.

The Oregon dram shop suit has been brought by the family of Thai Hoang-Williams, who died as a result of a head-on collision with Belinda Lopez, who also died in the Oregon car crash. Lopez’s car crossed the centerline to strike Hoang-Williams’ vehicle. At the time, police blamed speed for the accident, but a private investigator hired by Hoang-Williams’ family also found that Lopez had been drinking heavily at a nearby restaurant, Chen’s Dynasty, shortly before the accident.

According to the newspaper, the Oregon wrongful death lawsuit alleges that Chen’s Dynasty shares responsibility for the accident with Lopez herself because it allegedly continued to serve her alcohol after she was drunk. This claim, according to the newspaper, is based on toxicology reports that were not released publicly at the time of the crash, but which show Lopez to have been significantly over the legal limit for blood alcohol at the time of the accident.

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A logging accident in Chehalis, Washington late last week led to one worker’s death, according to a report by the Associated Press. According to the news agency, 47-year old Michael Messner of Longview, Washington died “while operating a logging processor.”

Quoting police sources, the agency says “Messner died Thursday when a chain broke and rammed through the windshield of the processor’s cab, striking him in the throat.” Washington state officials have begun an investigation. An official of the logging company for whom Messner was working says the company is also conducting its own investigation of the workplace accident.

All of this is noteworthy for Oregonians because of the reported circumstances surrounding Messner’s death. Had a similar accident taken place here in Oregon the victim’s family would be well-advised to consult with a Portland industrial accident attorney to see whether grounds exist for an Oregon wrongful death lawsuit.

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