Chris Kilcullen
courtesy of the Eugene Police Department

The wife of a Eugene police officer who was shot to death in the line of duty in 2011 filed a $5.75 million lawsuit against the mentally ill woman who killed him.

Officer Chris Kilcullen was 43 when he died on April 22, 2011 after he tried to stop 56-year-old Cheryl Kidd for erractic driving and speeding. Kidd fired a .38-caliber bullet out the window of her Buick Skylark, striking Kilcullen in the chest.

The suit faults Kidd for buying the handgun from a Eugene gun store in May 2010 when she knew or should have known that her schizophrenia and the gun would put others at risk, according to the suit filed Wednesday in Multnomah County Circuit Court. The suit faults Kidd for failing to take her prescription medications.

Cheryl Kidd
courtesy of the Lane County Sheriff’s Office

Kilcullen was survived by his wife, Kristie Sampson-Kilcullen, and their two daughters, who were 4 and 11 at the time of his death.

Kidd was charged with aggravated murder. Six weeks after the shooting, a Lane County Circuit judge found Kidd too mentally ill to stand trial, and she was sent to the state mental hospital. She still resides there today.

The suit doesn’t specify the amount of assets Cheryl Kidd has, or how much policy coverage American Family Mutual Insurance offered. One possibility is that Kidds’ car insurance, if she had it, could pay some for the harm she caused.

“My heart just aches for this family,” said Don Corson, the Eugene attorney who filed the suit.

Half of the $5.75 million sought is for the family’s economic damages — chiefly, lost wages from the rest of Kilcullen’s career. The other half of the money sought is for the family’s pain and suffering from its loss.

However, sometimes a company may hire independent contractors instead of direct employees to perform work that may expose the public to harm.  Oregon common law places substantial barriers against making a corporation pay for the cost of harms caused in the furtherance of its business if the corporation chose to label and pay the person that caused the harm an independent contractor as opposed to an employee.

Indeed, one may never even know when a company uses independent contractors in performing its basic business activities.  For example, when we go to the hospital, the Emergency Room physician may be an independent contractor. Under traditional agency law, the hospital may argue it is not responsible for that doctor’s substandard care of a patient.  Likewise, many trucking companies depend on independent contractor drivers, so that when those drivers fail to drive with reasonable care and cause needless injury to an individual or even a whole family, the company may try to avoid having to bear any of the costs of those human losses.   As a result of this independent contractor liability exception, many corporations in many different kinds of businesses rely substantially on independent contractors rather than direct employees.  Unfortunately for members of the public, independent contractors often do not have adequate insurance to cover the costs of the harms.

The Oregon Supreme Court recently clarified when companies can take advantage of this exception to corporate vicarious liability. In Eads v. Borman,315 Or 729 (2012), the Court explained that if an independent contractor in furtherance of a corporate business causes a harm to a member of the public, then the corporation may nonetheless may be held accountable under a theory of apparent agency. The Court explained that the key questions to determine whether a corporation can be held vicariously liable for harms caused by an independent contractor under a theory of apparent agency are:

• Whether the corporation held itself out, expressly or implicitly, as a direct provider of a service that could lead a reasonable person to conclude that the actor that provided that service was the corporation’s employee in doing so; and
• Whether the plaintiff when seeking out such service looked to the corporation, rather than to the independent contractor, as the provider of the service.

So take for example the case of a taxi passenger who is injured by the bad driving of the cabbie who is an independent contractor to a larger taxi company. If the taxi company represented that it provided a taxi driving service, and the injured person when seeking the taxi service looked to the taxi company for that service as opposed to the individual driver, then the company may be vicariously liable.  Another example would be a patient injured by the substandard conduct of an independent contractor ER doctor. If the hospital represented itself as a direct provider of the emergency room care to that patient, and the patient went to the hospital in reliance on that representation, then the hospital is may be liable for harms caused by the ER doctor’s conduct.

Improperly secured movable soccer goals have long been recognized as a serious safety hazard. Numerous product safety organizations, state and national soccer associations, medical academies, and insurance companies long ago reached the same conclusion: Soccer goal posts must be secured at all times.

Nonetheless, sometime before September 17, 2011, an Oregon youth sports organization chose to disassemble heavy metal soccer goal posts and leave them next to playing fields at a middle school. The goal posts were left in an unsecured area that is fully accessible to children, and only yards away from a nearby soccer field. The organization chose to lean those heavy metal goal posts up against a batting cage. The metal posts were left tipped up against the fencing of the batting cage. There was no cable, chain, lock, or other device to prevent the goal posts from falling over; they were left there without being secured in any manner.

On that day, several little boys started playing next to the batting cage while their sisters played soccer. The mother of a 6-year-old boy saw that her son started to climb up on to a goal post, and told him to get off. He did so immediately, but the unsecured goal post fell on his head, causing a skull fracture that extended into the optic canal behind the child’s left eye. The little boy suffered complete blindness in that eye. We worked with experts in human factors, sports safety, and playground safety to prepare the liability case, and worked with medical experts on vision loss to prepare the damages case. The case eventually had a policy limits settlement for a confidential amount.

We represented the family of Mary O’Meara, an 83-year-old woman with multiple chronic health conditions who was admitted to a nursing home to recover from compression fractures of her back, and to engage in physical therapy to improve her mobility and regain her independence. While there, Mary O’Meara’s pain patches were stolen on at least several occasions by one of the facility’s nursing assistants, resulting in Mary being in pain and unable to participate in the prescribed physical therapy. The nursing home had hired this assistant while she was still on court supervision for a prior drug crime. The facility failed to engage in prompt investigation of complaints of drug theft and then failed to initiate a report to law enforcement when the employee was caught “red handed” until a state agency reminded the facility of its legal obligation to report.

Mary O’Meara’s physical condition deteriorated due to the facility’s failure to provide adequate food, its failure to provide adequate skin care, and its failure to provide physical therapy, resulting in her failure to thrive and her death. The Estate brought a negligence claim for the failure to provide care and the hiring and supervision issues, and claims for Elder Abuse and intentional infliction of emotional distress for the pain patch thefts.

There was an arbitration provision in the nursing home agreement, and the case was eventually decided by a full arbitration hearing after the nursing home refused offers to settle. It was the nursing home’s position that the only harm Mary potentially suffered was some increased pain for a brief period of time. The three arbitrator panel returned an award of a total of $111,667.75 in damages and attorney fees.

However, our client faced an interesting legal problem.  Some trial and appellate courts in Oregon have upheld arguments by trucking companies and their insurers that they should not be held liable for injuries caused to a passenger in the truck. Indeed, as one trucking company defense counsel in our case pointed out to the trial court, an Oregon Supreme Court case from the 1920s appeared to agree that a trucking company could avoid liability in these circumstances.  With that case law behind them, one of the trucking companies long refused any talk of settlement, thinking that it would be immune from liability, no matter how negligent the company and its driver.

We recognized the challenge, but decided that we would not accept a rule that would give trucking companies immunity when its 80,000 pound truck lost control on the public highway and hurt others.  We spent hundreds of hours researching and writing on the issue, reading thousands of pages of court opinions and legal treatises, and took numerous depositions. In the end, we were successful in seeking summary judgment on this issue, arguing that this rule of trucking company immunity does not apply.  With nowhere left for the trucking companies to turn, the case was settled for $766,000.

As we all know, bad driving happens. A careless driver may crash into your car while you are driving down the road. Maybe you or your loved one is severely injured, resulting in enormous medical bills and loss of the ability to earn a living for some time. These type of injuries can cause losses into the six and even seven figures. To make things worse, the careless driver who is liable for causing these harms to you or your family has only the minimum coverage under the law, $25,000.  To say the least, the other driver’s insurance does not start to meet the losses he caused. Because of that risk,  many of us carry additional underinsured motorist (“UIM”) coverage with our own insurance companies, ranging  from $50,000 to $1,000,000. Under these policies your insurance company is supposed to pay you for the total amount of the harm you suffered from the careless driver regardless of the amount of insurance the bad driver carries, up to your own UIM limits. This is one way we protect ourselves and our families.

Many people trust their own insurance companies (after all, we are barraged by commercials that tell us we are in good hands and have good neighbors) and believe that when the insurance company offers a payment on their losses that it is based on a fair investigation of the injuries and losses. However, more and more we see insurance companies refusing to fairly assess the losses that their customers suffer from an underinsured bad driver. Instead, even after the customer has faithfully paid the premiums for years, the insurance company sometimes offers their customer only a fraction of what is due in light of the severity of the injuries and losses. Because of the trust in their own insurance company, some injured persons will take those offers, and as a result the insurance company avoids paying the full amount that it is obligated to pay. Other injured persons recognize the evaluation as unfair and contact an attorney to bring a case against the insurance company so that a neutral third party, such as an arbitrator, will be used to make a fair evaluation.

Recently, we took such a case to arbitration. The Farmers Insurance company had offered our client, who was a doctor, only $50,000 of additional money on her underinsured motorist policy. This was after a driver hit her at a stop light, resulting in her having neck surgery and suffering permanent injury that caused her to lose part of her past and future income. The bad driver’s insurer settled for $100,000. The facts were simple and the insurance company had very weak evidence to counter the overwhelming evidence that the doctor indeed suffered serious medical, physical, and financial losses. The arbitrator fairly evaluated the claim at $380,000.

We have heard of other attorneys in Oregon who have also noticed  similar conduct by Farmers Insurance and other insurance companies, where the insurer refuses to fairly assess their insured’s underinsured motorist claims and the only way for the injured person to fairly recover is to bring the case to trial or arbitration.

In other states, insurance companies would be subject to a bad faith claim if they ever chose to unfairly evaluate their customer’s claims. Those bad faith claims could result in punitive damages. That exposure to punitive damages is a deterrent against such conduct by insurance companies in those states. But in Oregon, that is not the case. Here, there is no punishment for an insurance company to act this way.

The Oregon Legislature  moved forward in its session last February to create common sense protections against harms unique to elders and children.

Protecting Oregon Children from Lead Exposure

Protecting Elders

This segment of The Law and You features Eugene, Oregon personal injury trial lawyer Lara Johnson talks of the growing concern about student athletes’ head injuries.

The Corson & Johnson Law Firm, a Eugene, Oregon personal injury trial law firm, produced and distributes The Law and You as a continuing public service to help Oregon families and consumers answer questions about our legal system and how it works for them. Each week, The Law and You spots are aired on KKNU, KMGE, KEUG, and KODZ in Eugene, Oregon. If you have suggestions of legal questions or topics you would like addressed by The Law and You, please visit our website at CorsonJohnsonLaw.com.

Following is the actual radio broadcast audio (in playable mp3 format) and the script from this broadcast of The Law and You.

Topic: Brain Injury Prevention (The Law and You Final Script-2009 in Eugene, OR)

Joel: This is Joel Block for The Law and You with Eugene attorney Don Corson. Don, you’ve represented people who have suffered brain injuries. I understand that there’s growing concern over student athletes’ head injuries.

Don: Joel, about 300,000 sports-related traumatic brain injuries occur in our country each year. Too many are called concussions, but they actually can mean serious short-term and long-term brain damage to young athletes. Some schools prohibit an athlete who suffers a concussion from returning to the same game or even the sport without a proper evaluation. A proposed Oregon law requires interscholastic coaches to receive annual training to recognize symptoms and treat concussions. I encourage all coaches and parents to download a free copy of the Heads Up: Concussion in High School Sports tool kit through a link on CorsonJohnsonLaw.com.

Joel: Thanks, Don. Please download Heads Up: Concussion in High School Sports at CorsonJohnsonLaw.com. The Law and You is a public service and does not replace the advice of an attorney.

This segment of The Law and You features Eugene, Oregon personal injury trial lawyer Lara Johnson making listeners aware that some generic drugs do not have up-to-date warnings about side-effects.

The Corson & Johnson Law Firm, a Eugene, Oregon personal injury trial law firm, produced and distributes The Law and You as a continuing public service to help Oregon families and consumers answer questions about our legal system and how it works for them.  Each week, The Law and You spots are aired on KKNU, KMGE, KEUG, and KODZ in Eugene, Oregon.  If you have suggestions of legal questions or topics you would like addressed by The Law and You, please visit our website at CorsonJohnsonLaw.com.

Transcript

 
Topic: Generic Drugs (The Law and You Final Script-2008 in Eugene, OR)

Reporter:  This is Joel Block for The Law and You with Eugene attorney Lara Johnson.  Lara, with the costs of medication rising, generic drugs seem like a great option.

Lara:  Joel, generics can literally be lifesavers to one’s health and one’s pocketbook.  However, generic drug manufacturers may not give the most up-to-date information about adverse reactions and side effects.  Patents on drugs last only a limited time before generics can copy their formulas.  During those initial years, the drug may have many reported side effects that were not included in the original instructions and warnings. How a drug affects people is not fully known at first, and any drug will likely need to have its warnings updated.  When you get a generic drug, be sure to ask your pharmacist if the instructions and warnings are up-to-date.  If not, ask where to obtain a current copy.

Joel:  Thanks, Lara.  If you have a legal question or would like to request a speaker for your group on The Law and You, visit CorsonJohnsonLaw.com. This is a community service and does not replace the advice of an attorney.

ORS 20.080 is intended to help someone who has suffered more modest injury or property losses by encouraging wrongdoers and their insurers to fairly and quickly settle their claims, or suffer attorney fee consequences. The 2011 Legislature raised the amount subject to ORS 20.080 to $10,000. Under that statute:

• The injured person (or their attorney) writes a demand, with supporting documentation, for an amount of $10,000 or less to the responsible party, and if known, their insurer;
• The responsible party has 30 days to tender an amount;
• If the responsible party tenders less than the damages later awarded to the plaintiff, the defendant is liable for the plaintiff’s reasonable attorney fees.

ORS 20.080 has two benefits to the injured person. First, because the responsible party may have to pay the attorney fees in February 2012

Recent Case

Insurance Company’s Unfair Offer Rejected by Arbitrator

Our client was injured in a crash that resulted in neck surgery and permanent injuries affecting her past and future income as a doctor. The bad driver’s insurer settled for $100,000. The Farmers Insurance company had offered our client only $50,000 in additional money on her underinsured motorist policy. The facts were simple and the insurance company had very weak evidence to counter the overwhelming evidence that our client indeed suffered serious medical, physical, and financial losses. The arbitrator fairly evaluated the claim at $380,000.

 READ MORE ABOUT OREGON’S UNDERINSURED MOTORIST LAW