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Corson & Johnson

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Wrongful Death: Rafting Company Negligence

 

Autumn Lee died at the age of thirty-three as a result of the negligence of a rafting company. She was a much- loved wife and mother to six children (including two step-children), and a highly respected sales representative at Willamette Valley Winery.

Autumn died on a commercially guided float trip on a family-friendly stretch of the McKenzie River, mainly Class I riffles and Class II waters (rivers are graded from Class 1 waters, which by definition require no skill level and no maneuvering, up to the most dangerous rapids, Class VI). Autumn was joined on the family outing by her two oldest children, her mother, three of her siblings, her best friend, and work colleagues of her mother. On the day of the trip, the guides arrived late and were in a rush to get on the river. The outfitter and guides provided little to no instruction to those in inflatable kayaks, who were mainly children. There was a break for lunch, during which the outfitter and guides never mentioned or warned the kayakers that there was a “strainer” (a submerged log with branches reaching up towards the surface) around a bend in the river, despite the fact that the guides had gone past the strainer the day before. The first kayaker lost sight of the lead raft as it went around the bend. To avoid the strainer, the kayaker would have to have known to keep left and to paddle hard to avoid being pulled by the current into the strainer. The first kayaker, then the second, and then the third were temporarily caught by the strainer. The fourth kayaker, Autumn’s best friend’s son, was pushed hard against the strainer and was crying out for help. The next raft to come around the bend had an inexperienced guide. In the raft with him was Autumn, her best friend, and her three siblings. When they attempted to rescue the boy, the raft flipped and Autumn’s life vest was caught on a branch of the strainer and she was held under water. Autumn’s sister cut her free from the branch with a knife from one of the other rafting clients. Autumn’s brother swam her to shore. Her sister started CPR, then a more experienced guide took over before local EMTs arrived. Autumn was declared brain dead at the hospital and life support was removed.

During litigation, the rafting company provided a copy of an internet registration form originating from one of Autumn’s email accounts. Their position was that Autumn had electronically signed a broad, all-encompassing assumption of risk or release agreement, freeing them from liability. The registration form referenced a release that was to be visible in a box at the rafting company headquarters, but the box was empty. It was our position that even if the rafting company could prove Autumn had seen the release and had signed the form containing the release, the release was overbroad and inconsistent with Oregon law. We hired an independent appellate lawyer who reviewed the case law and submitted an opinion letter as part of the negotiations. The rafting company and the guides all appeared to be judgment proof. The case eventually settled for slightly below the rafting company’s insurance policy limits.

 

Wrongful Death: Assisted Living Facility Negligence

 

Nursing home negligence is a huge concern because of the impact it has on families. In one such case, we represented a local family whose 94-year-old mother resided in an assisted living facility. She had developed post-polio syndrome as a young adult but her condition did not prevent her from raising two children as a single mother and financially supporting herself and her family. She was well-regarded in the community and appreciated for her grace and kindness. As she got older, her weakened limbs made her more at risk for falls and fall injuries, so she moved into an assisted living facility for her comfort and safety. Even without post-polio syndrome in the equation, most fractures in older adults are caused by falls, which are the leading cause of accidental death in people over the age of 65, according to the United States Center for Disease Control and Prevention. As people age, the risk substantially increases: the rate of fall injuries for adults 85 and older is almost four times that for adults 65 to 74.

The assisted living facility knew that she was at a high risk of falls and given its line of business, should have understood the risks of falling for someone of her age. More specifically, the assisted living center had a written care plan for her that required to facility to provide assistance to her when transferring and toileting. One day, when facility staff began to transfer her, she began to fall. One of the aides had just returned from hernia surgery and was not able to hold her. The resident fell hard, thudding as she landed and breaking her femur. Facility staff claimed to the Oregon Department of Human Services (DHS) investigator that she was lowered gently to the ground, but the fall had been seen by an independent observer who saw how hard the fall was.

She did not recover her mobility after the fall but instead remained in bed, first in the hospital and then in a skilled nursing facility. She died two and a half months later. The case settled for a confidential sum.

 

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