Notes From an Oregon Attorney

In 2009, 5,474 people in the United States died due to motor vehicle collisions caused by distracted driving, according to the National Highway Traffic Safety Administration. Despite recent effort to crack down on the practice, this represents only a 6% decline from 2008. “These numbers show that distracted driving remains an epidemic in America, and they are just the tip of the iceberg,” said U.S. Transportation Secretary Ray LaHood.

As I said before here, avoidance of cell phones and other distractions while driving is one of the first pieces of legal advice I would give to clients and friends. Not only do cell phones greatly multiply your chances of causing a car crash, but your use of your phone is recorded by your cell phone company bill, meaning it can be discovered and used against you in court.

Of course, if you are the victim of an auto accident, one of the things our firm does is ask for the at-fault driver’s cell record from the day of the collision.

Distracted driving, which police often fail to track, is now responsible for 16 percent of auto accidents, up from 10 percent 5 years ago. Perhaps surprisingly to some, teen drivers are not the biggest perpetrators of cell phone use in the car. According to Automotive News, “For mobile phones, the 30- to 39-year-old group had the highest involvement.”

There is no question that drinking and driving continues to be a major problem in our society. According to Mothers Against Drunk Driving, somebody is killed by a drunk driver every 45 minutes, and about 30 percent of all Americans will be involved in an alcohol-related crash at some point.

For those injured by a drunk driver, there are usually two courses of action to consider when seeking compensation. The first course involves a standard personal injury claim against the impaired driver. Generally, victims can bring negligence claims for injuries stemming from the accident, and the impaired driver will be held to the same standard of care as a sober driver.

The second, less understood course of action is referred to as a “dram shop” claim. This is a statutory claim brought against businesses that sell alcohol for profit and serve a visibly intoxicated person who then proceeds to injure another person while still impaired.

Oregon’s Dram Statute is codified under O.R.S. 471.565.

It is important to note that you must provide the drinking establishment with appropriate written notice within 180 days of the incident. Otherwise, you lose the ability to bring a claim.

If you have been injured by a drunk driver under any circumstances, feel free to contact me for a free consultation about your case.

Worried about an attorney not taking your “small” case? ORS 20.080 was originally enacted to combat this problem by providing an extra incentive for these cases to settle. The statute originally provided that, for personal injury or property claims of $5,500 or less, a plaintiff could recover reasonable attorney fees if the case went to trial or arbitration and the plaintiff recovered more than what the defendant offered.

As of January 2010, the Oregon State Legislature amended 20.080 to raise the claims it covers to include claims of $7,500 or less, and also added more days (30 instead of 10) to allow the defendant to settle after a demand has been tendered.

This statute gives Oregon attorneys an incentive to take “smaller” cases because it encourages either quick resolution of the claim, or mandates recovery of attorneys fees, if a strong but small claim meets unreasonable resistance.

These are the five things you should do if you are involved in an automobile accident, in Oregon or anywhere else:

First, if you are seriously injured and have any trouble moving around, do nothing and wait for help to arrive. You can make injuries worse by over-exerting yourself in this situation.

Second, if you are able to move around, call for help and exchange names, license numbers and insurance information with anyone else involved in the accident. If another driver doesn’t have a valid license or insurance information, report this to 911 and get as much information — VIN numbers, license plate numbers, etc. — as you can.

Third, submit a DMV report within three days. You are required to submit a report if there is $1,500 in property damage or an injury, but you have no way of telling if the other driver is injured or how much the property damage will be. The safe approach is to submit a report.

Fourth, get the medical care you need. Most auto insurance policies pay for medical expenses, lost wages, and some other expenses for a year after an accident, subject to a limit on how much will be paid.

Fifth, report the accident to your insurance company.

Talking on the cellular telephone while driving a car has not only become extremely common, but it is also a practice that’s often promoted by a range of related businesses, from phone providers to car manufacturers. The Federal Government estimates that, at any given time, 11 percent of drivers are talking on their cell phones. (Based on my own casual observation, this number seems likely to be an underestimate.)

Unfortunately, cell phones and driving make a very poor mix, according to a recent wave of safety research. According to the National Highway Safety Administration:

Driver inattention is the leading factor in most [automotive] crashes and near-crashes, according to a landmark research report released today by the National Highway Traffic Safety Administration (NHTSA) and the Virginia Tech Transportation Institute (VTTI).

Many studies have found that cell phone use while driving is at least as dangerous as drunk driving.

Contrary to conventional wisdom and the claims of many promoters, using hands-free devices does not significantly reduce cell phones’ dangerously distracting effects while driving.

Worse still, talking on the cell phone is far from the only aspect of the problem. Not only is reaching for a loose object while driving a very common cause of car crashes, but a cell phone is an object that is very likely to be reached for. “Reaching for a moving object increases the risk of a crash or near-crash by 9 times,” studies have shown.

And then there’s also texting-while-driving, which a majority of teenage drivers do, and 1 in 7 people in the general population admit to doing. Researchers have found that texting while driving raises the likelihood of a crash by over 23 times!

So, how does all this bad news relate to the legal dimension of car crashes?

In Oregon, as in other states, the law requires every driver always to operate automotive vehicles with the full amount of care that any reasonable person should exercise. Among the sub-rules this general rule includes is a requirement to keep a constant lookout for people and objects on the roadway.

Alas, despite their widespread acceptance, cell phone use while driving, and even reaching for cell phones while driving, are rather obvious violations of this duty to maintain a careful lookout.

There is one bit of good news, though: Since cell phone companies keep detailed time records of cell phone subscribers’ actual use, it is usually possible to obtain billing records that prove whether or not somebody was operating their cell phone at the time of a car crash. So, if you’ve been injured in such a crash, it is often possible to document whether or not cell phone use was a factor in another driver’s negligence.

But, despite this small but important consolation, my strong advice to everybody is

turn off and stow your cell phone whenever you are behind the wheel

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Portland has become one of the best places to bike in the world.  That’s not just this rider’s opinion, it’s also the finding of Virgin Vacations which placed Portland second — behind only Amsterdam — on its list of bike friendly cities.  Portland’s climate can be a challenge for biking, but the rides in Forest Park, on Mt. Hood, along the Deschutes, and many others make it worth braving the cold and rain.

Generally, cyclists have the same rights and obligations as other users of the road.  Thus, for instance, a bike has the right to use a full lane of traffic, and usually has the right to cross intersections under the same rules as a car does.

Cyclists are treated differently that motor vehicles, however, when bike paths or sidewalks are involved.  When there is a marked bike path, cyclists are required to use the path rather than the road.  On sidewalks, the following applies:

(1) A person commits the offense of unsafe operation of a bicycle on a sidewalk if the person does any of the following:

(a) Operates the bicycle so as to suddenly leave a curb or other place of safety and move into the path of a vehicle that is so close as to constitute an immediate hazard.

(b) Operates a bicycle upon a sidewalk and does not give an audible warning before overtaking and passing a pedestrian and does not yield the right of way to all pedestrians on the sidewalk.

(c) Operates a bicycle on a sidewalk in a careless manner that endangers or would be likely to endanger any person or property.

(d) Operates the bicycle at a speed greater than an ordinary walk when approaching or entering a crosswalk, approaching or crossing a driveway or crossing a curb cut or pedestrian ramp and a motor vehicle is approaching the crosswalk, driveway, curb cut or pedestrian ramp. This paragraph does not require reduced speeds for bicycles at places on sidewalks or other pedestrian ways other than places where the path for pedestrians or bicycle traffic approaches or crosses that for motor vehicle traffic.

(e) Operates an electric assisted bicycle on a sidewalk.

(2) Except as otherwise specifically provided by law, a bicyclist on a sidewalk or in a crosswalk has the same rights and duties as a pedestrian on a sidewalk or in a crosswalk.

(3) The offense described in this section, unsafe operation of a bicycle on a sidewalk, is a Class D traffic violation. [1983 c.338 Sec.699; 1985 c.16 Sec.337; 1997 c.400 Sec.7; 2005 c.316 Sec.2]

Unless one of the situations described in these statutes is involved, resolution of bike vs. car accidents comes down to negligence — who was being reasonably careful under the circumstances.

We hope this helps.  Ride carefully.