Oregon Injury Lawyer Blog

September 19, 2017

After the Hurricanes, Beware of the Fine Print

People throughout the Southeast are struggling to put their lives back together after the damage caused by hurricanes Harvey and Irma over the last few weeks. More trouble, however, is on the way. Most immediately this takes the form of Hurricane Maria. This latest storm is already hitting a number of Caribbean islands hard (some of which were also hit by the earlier storms) and may also strike the US mainland in the coming days.

Some of the trouble, however, will be completely man-made. Over the coming weeks and months many homeowners struggling to rebuild are likely to discover that the policies they counted on are written more with a mind to protecting insurers than helping the insured.

Most media attention concerning hurricanes and insurance focuses on flood insurance. Few private companies are willing to underwrite flood insurance for anyone living in a flood-prone area so it is offered by the federal government instead. At times like these we see many newspaper and television stories about people who should have bought flood insurance but didn’t or, in the wake of massive storms like Harvey and Irma, people who didn’t think they needed flood insurance in the first place and are now discovering that their policies do not cover the damage to their property.

September 12, 2017

Oregon Workplace Lawsuit and 3rd Party Liability

by Matthew D. Kaplan

The well-known organic and health-food manufacturer Amy’s Kitchen is based in California but operates a plant here in Oregon. According to a recent article in the Sonoma Press-Democrat the company is being sued “by four former employees who claim the company systematically put workers at risk through overwork and unsafe conditions.”

At first glance this would appear to be a straightforward worker’s comp dispute. According to the newspaper a key allegation in the lawsuit involves injuries allegedly sustained by one plaintiff while handling large and heavy objects in the plant. While the current lawsuit as reported by the Press-Democrat does not seek damages on the basis of third-party liability issues these are worth exploring on a hypothetical level, because they are a potential factor in many workplace deaths and injury cases.

The key case when considering this sort of third-party liability in Oregon is Kilminster v Day Management Corp (323 Or. 618) which was decided by the Oregon Supreme court in 1996. In that case the estate of a man who died on the job contended that the employer “deliberately did not provide its workers, including decedent, with legally-required safety equipment.” The court also found that the company did not offer necessary safety training to employees and did not have a proper safety plan in place.

August 31, 2017

Case Reinforces Rights of the Mentally-ill, Even When in Custody

by Matthew D. Kaplan

An exposé in the Los Angeles Times has brought renewed focus to something we lose sight of too often here in the United States: prisoners still have rights, and that includes the mentally-ill.

The newspaper notes that “three decades of federal litigation” has conclusively established “that psychiatric care in prison is a constitutional right” and yet it tells the story of a man suffering from schizophrenia who spent 46 hours with his arms and legs “shackled to a chair in the San Luis Obispo County jail.” The man died a short time after being released from the chair and then “dumped on the floor of a nearby cell.”

The case has shocked the local community, and led to “a record $5 million legal settlement” according to the newspaper. But the events that led to this tragedy are worth exploring because of the lessons they hold for the rest of the country, including us here in Oregon. It is essential to understand that the victim was being held at a county facility because of a state program designed to reduce prison overcrowding. The result of that program was to push many prisoners out of state facilities and into municipal and county ones. This is significant because state and local jails are rarely equipped to deal with long-term inmates who have mental health issues.

August 25, 2017

Klamath Falls Dog Bite Case Offers Reminders About Oregon Dog Bite Law

by Matthew D. Kaplan

The sad case of a 10-year-old Klamath Falls girl and the severe injuries she suffered when attacked by four dogs has brought the complex legal questions surrounding Oregon dog attacks back onto the public agenda.

As reported by area newspapers the East Oregonian and the Herald and News the June attack left the girl with “a torn scalp, punctured lung and broken ribs” and required several weeks of in-patient treatment at a Portland hospital. A ‘GoFundMe’ page set up by friends and neighbors to help the family deal with medical expenses quickly raised over $15,000, according to the Herald and News.

Meanwhile, according to the East Oregonian, legal proceedings concerning the dogs moved ahead. Earlier this month the Associated Press reported that the Klamath County Commission “voted unanimously… that it was in the public interest to euthanize the animals.” The paper reported that the commission, after investigating the attack, determined that the owner of the dogs, all English mastiffs, had the “inclination but not the ability” to keep the animals under proper control. It rejected an offer on the owner’s part to move the dogs to a different part of the state.

August 13, 2017

A Quiet Rule Change that Threatens Oregonians’ Rights

by Matthew D. Kaplan

An effort by the Trump administration to roll back an obscure Medicare rule has provoked a loud, and unexpected, backlash according to multiple reports in The Hill, a newspaper that specializes in covering the federal government in general and Congress in particular. The paper reports in June an obscure regulatory body known as the Centers for Medicare and Medicaid Services (CMS) said it intends to repeal a “rule that prohibited nursing homes that accept Medicare or Medicaid funds from including language in their resident contracts requiring that disputes be settled by a third party rather than a court.”

This is an issue that I have been following for some time both in terms of this specific rule (click here to read my blog from last year when it was originally issued) and in terms of the broader question of arbitration ‘agreements’ that seek to deny ordinary Americans access to our courts when they suffer financial or physical neglect at the hands of a rich or powerful company (an issue I first addressed in 2013).

Thus, it is very heartening to see such a widespread backlash against the administration’s proposed rule changes. According to The Hill, 16 states and the District of Columbia filed formal objections to the policy change when these came due early last week. “Pre-dispute binding arbitration agreements in general can be procedurally unfair to consumers, and can jeopardize one of the fundamental rights of Americans; the right to be heard and to seek judicial redress for our claims,” the state attorneys general wrote in objecting to the proposed rule changes, according to The Hill. “This is especially true when consumers are making the difficult decisions regarding the long term care of loved ones. These contractual provisions may be neither voluntary nor readily understandable for most consumers.”

August 9, 2017

Trump Police Comments Raise Fear of Civil Rights Violations

by Matthew D. Kaplan

An almost off-hand remark by President Trump during an address to police officers last week was swiftly denounced by police officials in red and blue states alike. As the Washington Post reports, “some police leaders worried that three sentences uttered by the president… could up-end nearly three decades of fence-mending.”

Speaking to officers gathered on Long Island for an event focused on gang violence, Trump spoke about “roughing up” suspects and said: “When you guys put someone in the car and you’re protecting their head, you know, the way you put their hand over? Like, ‘don’t hit their head’ and they just killed somebody – don’t hit their head. I said, you can take the hand away. Okay?”

Denunciation of the comments came from police departments across the country. Even the department Trump had addressed, in Suffolk County, New York, put out a statement rejecting his suggestion that ignoring the right of people being arrested would be OK in certain circumstances. At the most basic level, an admonition to police to mistreat suspects goes against the presumption of innocence that lies at the base of American law. On a more immediate level it raises fears, as the Post notes, that individual officers will find encouragement in the president’s words, seeing in them a kind of validation for bad, even illegal, behavior.

August 1, 2017

NFL Concussion Study Offers Opportunity to Review Oregon Student Athlete Protections

by Matthew D. Kaplan

A groundbreaking study published last week by the New York Times has reverberated through the sports world. “A neuropathologist has examined the brains of 111 NFL players – and 110 were found to have CTE, the degenerative disease linked to repeated blows to the head,” the paper writes.

A few days later, National Public Radio reported that the NFL was ending a $30 million research partnership with the National Institutes of Health. Citing original reporting by ESPN, NPR said that after almost five years nearly half of the funds the league committed to the study of brain injuries remained unspent “following a bitter dispute in 2015 in which the NFL backed out of a major study that had been awarded to a researcher who had been critical of the League.”

It goes without saying that youth and high school sports are a far cry from the NFL, but with these two stories in the news it is worth revisiting the issue of youth sports and TBI for two reasons. First, anyone playing in the NFL only got there after years of youth, high school and college football. It has long been established that head injuries have a cumulative effect, so it is incumbent on all of us to ask what can be done to minimize these injuries long before young people get to the professional level. Second, and more importantly, whatever one may think of the NFL’s approach and attitude toward concussion issues, professional football players enter each game with the best equipment possible – including helmets built to standards far more exacting than anything a middle or high school student wears onto the field. That, in turn, requires us to look carefully at both the practices and the laws governing youth contact sports to see whether we are doing everything we can to prevent injuries to children.

July 26, 2017

Oregon Parade Death and a Parade Death

by Matthew D. Kaplan

The Associated Press reported earlier this month on a boy who died “after falling off a parade float on his seventh birthday.” The tragic event took place during the Miner’s Jubilee Parade in Baker City. The news agency says the boy “was struck by the rear wheels of a commercial vehicle” after falling from the float.

According to AP the authorities in Baker City are treating the event as an accident. But even if this tragedy was an accident that does not mean that no person or organization bears responsibility for what happened. Indeed, when a child is killed or injured all of us have a special obligation to investigate the circumstances to the fullest possible extent.

From a legal standpoint, this means looking at questions of health and safety in much the same way we might consider any other question of negligence leading to an injury or death. Special attention needs to be paid both to the organization of the parade and to the construction and operation of the float on which the child was riding.

July 18, 2017

Two Supreme Court Decisions Narrow Access to Justice for Ordinary Oregonians

by Matthew D. Kaplan

An important thing to understand about the US Supreme Court is that its rulings can often seem narrow and technical even as they have sweeping repercussions for every American. That was the case with two rulings that were issued late last month, just as the court’s annual term came to an end. In both cases the Court might have appeared to be focused on narrow issues that concern mainly other courts and lawyers when, in fact, it was issuing rulings that will have a profound impact on our justice system in general and on Americans’ ability to seek redress in our courts.

The first case, Ziglar v Abbasi focuses on the arrest and detention of hundreds of Muslim men in the wake of 9/11. Though most of the men were held for immigration violations they were treated as suspected terrorists and, in numerous cases, subjected to unusually harsh interrogations and prison conditions. A group of these men sued the government for damages, citing a 1971 Supreme Court decision that allowed state and local officials to be sued for damages when they violate a person’s constitutional rights. The legal question seemed fairly straightforward: one might assume that if state officials can be sued for violating people’s rights federal officials too can be sued when they do so. By a vote of 4-2, however, the Supreme Court disagreed (two justices recused themselves from the case and the newest justice, Neil Gorsuch, had not yet joined the court when the case was argued).

The important thing to understand is that as a legal precedent effecting ordinary Americans the fact that this case involved egregious rights violations in the aftermath of a terrorist attack is not the point. Using the national security implications of that extreme event as a pretext the court has made it far more difficult for any citizen to sue any employee of the federal government. Put simply: this is not about terrorism and national security, it is about our constitutional right to have access to the courts when a government official abuses his or her power.

July 11, 2017

Beaverton Child’s Injury Spotlights Window Fall Dangers

by Matthew D. Kaplan

The news last week that a 3-year-old Beaverton girl was in critical condition after falling from a 2^nd floor window is the most tragic sort of reminder of the importance of window safety. As I have written on several previous occasions, when children die or are injured in window falls the incidents are especially sad because they are so easily preventable.

According to television station KATU emergency services crews responded to reports of the fall and found that the girl had landed on a concrete surface below the window. She was taken to the Oregon Health and Science University Hospital (OSHU).

This summer, as it has for several years, SafeKids Oregon is promoting a campaign called ‘Stop at 4’ (see link below). The name refers to the maximum distance – 4 inches – that windows should be allowed to open in any place where children are, or even might be, present. The campaign also encourages the installation of safety bars on windows.