Establishing liability in an accident scenario does not depend on whether someone has broken a traffic ordinance, though it certainly helps. Liability in civil law is a different standard than the standard for traffic or criminal violations. In civil law, an injured party only needs to prove that the other party was negligent, meaning that they violated the duty of care a reasonable person would use in like situations. What makes proving negligence easier is when the other party has already been found to have violated traffic or criminal law pertaining to the activity that caused the injury. In the example used above, if the Sheriffs officer determines that the driver was impaired, the injured parties could use that finding to establish negligence on his part for causing the accident. This is a legal doctrine referred to as negligence per se.

For negligence per se to apply, the plaintiff must prove (1) “the injured person is a member of the class intended by the legislature to be protected”; and (2) “the harm is of the kind which the statute was intended to prevent.” Miller v. City of Portland, 288 Or 271, 276, 604 P2d 1261 (1980); Beeman v. Gebler, 86 Or App 190, 193, 738 P2d 605 (1987). In a drunk driving accident, establishing these two elements is simple. Prohibitions on drunk driving are intended to protect the public from the harm that can be caused from a motor vehicle collision. Put simply, the legislature has outlawed drinking and driving so individuals don’t get drunk and go run into other people or property. If someone is convicted of driving impaired, and injured someone while they were impaired, the injured party can bring a claim under a negligence per se theory.

Establishing a theory of liability is one of the first steps in analyzing a potential car accident claim. No matter how bad someone has been hurt, proving negligence is necessary before pursuing compensation from the other driver’s automobile insurance company.

Your insurance company will begin paying benefits two weeks after submission of an application for PIP benefits so it is paramount that the PIP application is filled out as soon as possible after the accident has occurred. Once the application is approved, medical and other services can be billed directly to the insurer.

One thing to keep in mind is the requirement that the services or treatment must be related to the accident in order to receive payment from PIP. For example, you can receive medical treatment for an injury like PTSD, but if there is no evidence that the PTSD was caused by the accident then your insurer can rightfully cut off benefits. The insurer will make this determination by hiring a medical examiner to determine if the injuries claimed are a result of the accident.

$15,000 is the minimum policy amount an insurer can provide in personal injury protection benefits in Oregon. This number can greatly vary on a state by state basis. There is also a time limit on your PIP benefits, generally one year. So your insurer will pay for accident related expenses until the time limit is up, or you exhaust the policy amount, whichever comes first. As noted, the insurer can also cut-off benefits earlier based on a medical examination.

The Ninth Circuit found that tattooing is an expressive activity and thus afforded the full protection of the first amendment, meaning that a blanket ban on tattoo parlors is a blanket ban on speech. Judge Jay Bybee wrote the opinion for the three judge panel. “We hold that tattooing is purely expressive activity fully protected by the First Amendment, and that a total ban on such activity is not a reasonable `time, place, or manner’ restriction.” Put simply, the crux of the court’s decision was whether the city’s health concerns were great enough to justify a total ban on speech.

For there to be a reasonable “time, place, or manner” restriction on speech, the restriction must serve an important objective (not involving the suppression of speech), that the law is narrowly tailored, and that there remain ample alternative means of communication. In the case at hand it seems pretty clear that the law is not narrowly tailored since it bans all speech and there are no alternative means of communication. However, this case is interesting because the ruling by the Ninth Circuit contradicts numerous other circuit courts that have been faced with an almost identical set of facts. The City of Hermosa Beach indicated that it will analyze the ruling before deciding to appeal, but considering the US Supreme Courts history of accepting free speech appeals and having a considerable split amongst the circuit courts, it seems likely the court would grant certiorari.

I was perusing the comments in a recent article on oregonlive.com about a potential wrongful death claim and found frequent displeasure with the existence of the lawsuit. Here is a sampling of some of the comments:

These are just a few of the comments on one article about a tort claim. The facts of that particular case involve the death of two women in their mid-twenties, one if which was a mother. The women, along with five other people were crossing in a crosswalk when they were struck by a bus. The police determined the accident was caused solely by the negligence of the bus driver. The two women that were killed were stuck underneath the tires of the bus until emergency crews arrived because the bus driver was in shock and unable to move the bus.

No doubt this is a horrific set of facts. One in which claims by injured parties are entirely appropriate.

The comments are clearly an emotional reaction to the reporting of another lawsuit, but they help demonstrate a fundamental lack of understanding of our civil legal system that is all too prevalent today.

Put simply, the tort system is designed to provide compensation for wrongful losses. By requiring responsible parties to compensate others for injuries, the system creates an incentive for avoiding harmful behavior. In turn, creating greater societal health and safety standards. Money is generally how the system provides compensation, although other methods are sometimes implemented. Money is most often used because quantifying injuries through monetary means is the only practical way to address past problems. If courts had the ability to heal injuries or revive the dead, money damages wouldn’t be necessary.

Jury trials, or something like them, are not a recent invention, but have existed for centuries. King Solomon dispensed his wisdom in a trial-like setting and Socrates met his fate at the hands of an Athenian jury, though we don’t agree with the verdict reached. The tried and discarded alternatives to having disinterested community members decide disputes- such as dueling and trial by fire- have obvious flaws. In representing both plaintiffs and defendants, we have found that almost all juries use common sense to reach fair results.

For someone to recover for harm done to them there must be a legally cognizable theory, meaning that the law recognizes the type of harm. In the example provided above, the families of the victims are suing Tri-met under a theory of wrongful death. Wrongful death is a common law claim originally created because a dead person cannot sue, creating a loophole in the legal system that allowed people that caused someone’s death to avoid liability. A wrongful death claim allows the family of the victim to sue the person who caused the injuries. The families claim is probably worth a good deal of money. Enough to raise the eye-brows of critics, like the commentators quoted above. But the claim is potentially worth a lot because of the tragedy of the events. In calculating damage awards in wrongful death claims, the law recognizes both the emotional difficulty and financial difficulty of losing a close relative.

The media has no incentive for explaining the intricacies of the tort system or the public policies driving it. They are more interested in the headline grabbing, eye-popping numbers, and the emotional reactions those numbers create. It’s just unfortunate that most people don’t understand that most of the time those numbers have been arrived at through a just and logical process, one that usually makes sense when properly explained.

It is also unclear where the fault lies here, but this situation brings up an interesting and common problem amongst potential claimants.  Tri-Met is public/private organization, meaning that it is ran like a private organization but receives public funding.  As a publicly funded organization, Tri-Met is afforded some governmental immunities.  Most importantly for instances like the injured biker, he must provide a tort claim notice to Tri-Met within 180 days of the date he was injured.  The notice will preserve the injured bikers ability to bring a claim against Tri-Met.  If notice is not provided, the bicyclist will lose all rights to seek compensation from Tri-Met, for his injuries in court.

It is extremely important for potential claimants to keep the tort claim notice in mind if they wish to bring a lawsuit against a public entity.  Generally, there is a 2 year statute of limitation for most injury related claims and waiting for a majority of the two years to bring a claim is common practice, and this practice generally works out.  But it is critical if you have been injured in a motorcycle accident, car accident, bike accident, or any other kind of accident, to identify the other party and determine whether it is a public entity, in order to provide the 180 day notice.

We recommend that you contact a Portland personal injury attorney in order to evaluate your potential claim and determine what steps need to be taken.