Oregon Personal Injury law is full of tricks and traps. One of the basic issues in Oregon Personal Injury law is the notion of negligence.
Let’s get going
In order to support a claim for negligence in the absence of a “special relationship” between the plaintiff and the defendant in an Oregon Personal Injury cases, a personal Injury claimant must show that the defendant’s actions created a reasonably foreseeable risk of harm, including personal injury, to the plaintiff. What is deemed “reasonably foreseeable” for the purposes of establishing liability is quite broad and may even extend to negligent maintenance by a prior vehicle owner. Bailey v. Lewis Farm, Inc., in the Supreme Court of the State of Oregon (October 11, 2007).
Jerome Bailey was injured when the rear axle assembly broke loose from a passing semi-truck, causing the dual wheels and tires to come off and collide with his vehicle causing personal injury. Bailey sued several parties, including May Trucking Company (May), who was the former owner of the truck, alleging that it was negligent in driving the truck for more than 500,000 miles without performing necessary maintenance on the rear axle. May moved to dismiss the complaint against it for failure to state a claim, arguing that it was not liable in negligence as a matter of law because it had sold the truck more than a year before the collision and exercised no control over it since that time. The trial court agreed and granted May’s motion to dismiss for failure to state a claim.
Bailey appealed. The Oregon Court of Appeals met en banc (i.e. all ten judges heard the case) and split 5 to 5 on whether the plaintiff stated a valid negligence claim under Oregon law. The effect of the split decision was that the trial court’s decision was affirmed without producing a majority opinion to cite as authority in future cases. The Oregon Supreme Court allowed review to consider the issue. Although the Court appeared to conclude that that it might be difficult for Bailey to actually prove that May was liable for his personal injuries given the known facts of this case, it nonetheless held that the allegations in Bailey’s complaint did state a claim for negligence; namely, that May failed to clean and repack the truck’s axle wheel bearings every 25,000 miles, and to perform a more detailed cleaning and inspection every 100,000 miles as recommended by the truck’s manufacturer.
In fact, Bailey’s complaint alleged that May performed only one of the recommended 20 maintenance services to the axle bearings. Noting that if May had negligently maintained the axle when it owned it, and if that negligent maintenance was a substantial contributing cause of Bailey’s injury (as his complaint alleged), a reasonable jury could find the failure of the trailer’s axle, the loss of its wheels, and the resulting injuries to be foreseeable. In short, the Court held that the mere fact that May had not owned the trailer for more than a year prior to the collision did not necessarily excuse it, as a matter of law, from the consequences of its alleged prior negligence.
By: Joe Durkee
Posts Tagged ‘Oregon Personal Injury Attorneys’
Oregon Personal Injury Attorneys Lawyers – Negligence
January 17th, 2010Oregon Personal Injury Attorneys Lawyers – Selecting the Right Attorney
November 20th, 2009
Your first appointment with a personal injury attorney can be intimidating when you do work with lawyers or the legal process on a regular basis. Here are some things to keep in mind when consulting with a lawyer concerning your personal injury case:
Interview different lawyers: There are oodles of personal injury lawyers vying for your business. If you don’t feel supremely confident after you interview a prospective lawyer, go out and interview a different lawyer and keep doing so until you find a lawyer that suits your needs.
Do a gut check: Do you like and respect the lawyer? The lawyer does not have to be “a nice guy or gal” for you to like him or her. They simply need to fit within your needs matrix. Some people need the aggressive “junk yard dog” type lawyer to feel comfortable and some people need the consummate diplomat. No matter what, remember that you will have to work closely with this person through some pretty tough issues so select a lawyer that you like and respect.
Watch out for the sales pitch that tries to compensate for lack of trial experience: Many lawyers say that they are members of organizations in an effort to impress you. WHO CARES? The only thing that matters is the lawyers experience. Most importantly, TRIAL experience. Ask the lawyer about his/her trial experience and ask them to show you their verdict forms if they say they have large verdicts.
Don’t wait too long to look for a lawyer: In personal injury cases there is always a statute of limitations that will bar your claim if you do not act timely. Don’t wait until the last minute to see a lawyer! Many lawyers will turn your case away if you are too close to statute.
By: Joe Durkee
Oregon Personal Injury Attorneys Lawyers – Frequently Asked Questions
November 8th, 2009
There are a few basic questions that are always asked concerning personal injury law. The following questions and answers are my attempt to explain how the lawyer/client relationship works.
Here we go:
Q: What should I do if I have sustained an injury through no fault of my own?
A: First, arm yourself with knowledge. Second, your main job is to get better. Working hard to return to health gives your claim credibility.
Q: How do I pay the medical bills resulting from the car collision?
A: One of the following methods for payment may be available:
Personal Injury Protection (PIP) insurance coverage from your own Oregon automobile policy if you were in your automobile, on a bike or a pedestrian and involved in an automobile collision.
Workers’ compensation insurance if your injury occurred while you were working on the job and occurred as a result of your employment. Your own health insurance. Your own funds if you were not insured and are able to pay medical bills as they are incurred.
The liability insurance coverage for the person who caused your injuries. Such liability insurance coverage will most likely be paid at the time of settlement rather than during the period you incur the bills.
Q: What is a contingent fee agreement?
A: In almost all injury cases, injury attorneys are paid a percentage of the final settlement or judgment resulting from your injury. The percentage will be discussed with you and will be the subject of what is called a contingent fee agreement. The law requires a written contract, which specifies the fee so there will be no misunderstanding about how much your case will cost. The agreement will provide that the attorney will work diligently on your case in exchange for the percentage in the agreement. If there is no recovery, you owe the attorney no fees.
Q: What other costs will there be in addition to the attorney fees?
A: The fee is based on the attorney’s work, time, effort and expertise. In addition, the attorney may advance costs specific to your case. The attorney will make decisions necessary to obtain the reports, opinions or records needed to present your case. The attorney may or may not ask you to reimburse him/her for costs until the case is over. In most small cases, these costs are not very much. Examples of these advanced costs include: Fees that doctors and hospitals charge for medical reports. Costs of photographs. Photograph and other visual documentation (such as videotape) are extremely important in personal injury cases. If your attorney incurs expenses in having visual materials obtained or prepared, you may be responsible for such costs. Reports of experts. Reports from experts other than physicians may be required in your case and, if so, you will have to pay the cost that such experts charge for their reports. Litigation costs. If your case has to proceed to suit or litigation, there will be costs incurred as a result of the filing of such a lawsuit.
Q: How much is my case worth?
A: It is impossible to predict the value of a case until all of the information has been collected and you are medically stationary. Many factors determine the value of a case: The amount of your medical bills. How the medical bills were incurred and whether they are from diagnostic tests, treatments, physical therapy, hospital stays, prescriptions, over the counter medication, chiropractic care, or other care or treatment. How much income and other employment benefits were lost as a result of your injury. This includes lost pay, sick leave used, vacation time used, loss of insurance benefits and other documented losses resulting from your injury. The extent of the injury and how it has affected your daily life. For example: limitations of household activities, sports, leisure activities and social life. Whether or not any aspect of your personal injuries is permanent. Including permanent disfigurement such as scars or blemishes. Whether any of your personal injuries required hospitalization. The extent of liability on the part of the potential defendant. Whether there is any evidence that you were partly at fault in causing your injuries. How the law applies to your case. The quality of your witnesses, including those who will testify about the incident, your injuries and your medical treatment. Pain, suffering, inconvenience and the impact on married life. The particular insurance company involved.
Q: What does Statute of Limitations mean in the injury law context?
A: Every injury claim has what is called a statute of limitations which means that failure to bring a claim within the period of time effectively bans the injured person from ever making a claim. The statute of limitations for Oregon injury cases is generally two years from the date of the accident, however, there are things that can shorten or lengthen the statute of limitations depending on the case. Don’t delay in taking action on your case as the statute of limitations may bar you from making a claim.
Q: Who Should Seek Help from an Attorney / Lawyer?
A: Anyone that has been injured in a collision in Oregon, through no fault of their own.
Q: Why Should You Contact an Attorney / Lawyer?
A: Injury victims need an edge wherever it exists, and the first place to gain that edge is by finding a lawyer / attorney who knows the unique Oregon laws.
Q: When Should An Injury Victim Seek Help?
A: It’s very important to contact a lawyer as soon as possible. The earlier I hear the details of your claim, the more likely I am to win your case. It’s too easy to forget important details, so why risk waiting. Witnesses, victims, medical care providers, and police may not have a clear memory of your collision circumstances weeks or months after.
By: Joe Durkee