TORT TIPS – APRIL 2011
Suspended License for Failure to Report Minor Auto Accident
Driver’s license suspended even through injuries unknown
One’s drivers license can be suspended for not reporting an injury the driver did not know about. Hazen v. Driver and Motor Vehicles Services Division. Ms. Hazen had been involved in a three-car traffic accident on a public road. All three cars sustained only minor damage, none exceeding $1,500. One of the drivers, however, was injured in the accident. That driver testified at a suspension hearing that she was injured in the collision but she had not informed anyone of her injuries at the scene, her injuries were not immediately observable, and she denied injuries to the investigating police officer.
Ms. Hazen argued that because she was unaware of the injuries, she was not required to file an accident report. The Administrative Law Judge found that drivers are required to file accident reports when an injury occurs, whether the driver is aware of the injury or not. The Court of Appeals upheld the suspension, noting that there is nothing in the reporting requirement statutes (ORS 811.720 – 811.750) indicating the Legislature intended to limit the reporting requirements and the suspension penalty (ORS 809.417) to circumstances where the driver was or should have been aware of an injury.
This new case prompts us to modify our comments in our June, 2011 Tort Tips about reporting auto accidents. The conservative legal advice to a client after Hazen would be to report any collision that has the possibility of injury to another.
$1.5 Million Personal Injury Recovery Against the State of Oregon
An Oregon Department of Transportation driver involved in a “road rage” incident on the Santiam Highway turned a pickup truck into the oncoming lane of traffic, causing a head-on collision with a small Toyota. The Toyota driver slammed on her brakes, but could not avoid the ODOT truck coming into her lane. The highway-speed collision nearly killed the front seat passenger in the Toyota.
The passenger was life-flighted to the hospital in critical condition, beginning a lengthy health care ordeal that included multiple surgeries, numerous returns to the ICU, several near-death episodes, extensive hospitalizations, and long-term recovery in a skilled nursing facility. His medical bills were about three quarters of a million dollars.
The personal injury case was apparently one of the first to be resolved at the State’s new $1.5 million liability limits set by the revised Oregon Tort Claims Act, ORS 30.260, et seq. The Act was amended in 2009 to address constitutional problems identified in Clarke v. OHSU, 343 Or 581 (2007). (That case found that the statutory limitation on claims against individual public employees would not apply in cases where the OTCA limit would “emasculate” the injured person’s right to an adequate remedy under Section 1, Article 10 of the Oregon Constitution.)
Host Responsible for Teenage Driver’s DUI Car Crash: $350,000 Settlement
A social host liquored up his 19-year old guest, then turned the underaged driver loose on the public. Shortly afterwards, the drunk driver crashed into another car that happened to be on the McKenzie Highway at what turned out to be the wrong time. The drunk driver’s blood alcohol level was later measured at .27, which would have been well over three times the legal limit if the drunk had been old enough to drink.
The force of the collision broke the other driver’s lower leg bones on both sides, and also caused fractures of the bones of the ribs, chest, and hand. The injuries required multiple surgeries, hospitalizations, and skilled nursing care, followed by the better part of a year in an adult foster care home.
The 19 year old drunk driver had only $50,000 of liability insurance, and no real personal assets. The social host gave inconsistent stories to the police and to our investigator, who also learned that this was not the first time the alcohol server had liquored up an underaged driver. The social host had a $300,000 liability insurance policy. The case settled for the combined policy limits.
Nursing Facility Failures Resulted in Death: Confidential Settlement
A skilled nursing facility hired an uncertified nursing assistant to provide care to the elderly residents of its long term care ward. Our client’s mother, M, was a resident of that ward. On Thanksgiving, M’s extended family went to the facility to celebrate the holiday and share a family meal. A photograph taken that day shows an alert and happy 95 year old woman surrounded by three generations of her family.
Because of M’s fall history and unsteadiness on her feet, several months earlier the facility had developed a plan to prevent further falls. That plan was put in writing and placed in her room for each care giver to see. That plan provided that all care givers were to remain with M in the bathroom. The plan was designed to anticipate falls and to prevent injuries from falls (by catching M before she reached the ground).
A few days after Thanksgiving, M rang her call light and the uncertified nursing assistant came to her room, brought her to the bathroom, and then left the room altogether. The uncertified nursing assistant testified at her deposition that she knew that the care plan required her to remain, but that she had been instructed by other care givers at the facility not to follow the care plan. She said she left M in the room alone so she could do paperwork at the nurses’ station.
M fell. She was found on the floor, bleeding from her head, with a laceration of her elbow, and pain in her hip. She was diagnosed with a hip fracture at the hospital. Her condition declined rapidly. She survived the necessary surgery but died within a week of the fall. The case settled for a confidential amount.
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