Head / Brain & Spine Injuries
Our heart goes out to these families and first responders. The horror depicted in the picture above pales in comparison to the inside of those trains, and the path forward after an event like today’s Amtrak 501 disaster involving multiple fatalities and dozens of injuries.
News is starting to break about potential causes. Amtrak President and Co-CEO Richard Anderson said Positive Train Control (“PTC”) was not activated on the tracks at the time of the derailment. PTC automatically slows the train if it senses the train is going too fast or may crash. Railroad investigator John Hiatt told CNN, “If there was no Positive Train Control in effect there, then shame on them.”
Responsibility for this tragedy is likely to be complicated. The train that derailed this morning was owned by both Washington State and Oregon Departments of Transportation. Amtrak is responsible for service and daily operations. The tracks are owned by Sound Transit. Because this was the “inaugural” trip, independent engineering and transit firms are also in the mix.
Our firm represents 39 victims–a substantial majority–of the Ride the Ducks crash, believed to be the worst mass transit disaster in Seattle history. It involves many of the same issues likely to be investigated in the Amtrak 501 disaster: product design and failure, maintenance or operator failure, and fatal public transportation flaws. With numerous parties and distinct legal theories, this is as complex as litigation gets. These cases require dozens of depositions, ten or more forensic experts, lab and engineering testing on an enormous scale, and hundreds of thousands of pages in documentary evidence.
In the Amtrak 501 disaster, the NTSB will most likely release a preliminary statement concerning potential causes in the coming days or weeks. The full NTSB investigation can take months or years. The NTSB will ultimately hold a hearing regarding the information gathered and its conclusions as to the causes and responsibility for the disaster. NTSB conclusions are not directly admissible in court, however, so the victims of a mass transit disaster still must investigate on their own.
A lot can be learned through comprehensive public disclosure requests and extensive fact-finding investigations in litigation. First responders will likely conduct a review of the crash and their response to a mass casualty incident (“MCI”). Although there are several definitions of MCI, it typically refers to an incident where the scope of the injuries and circumstances on scene force first responders to abandon the ordinary standard of care that would apply to one-to-one (or similar ratio) medical response. An incident will often be declared an MCI during the initial response on scene, which signals to medics and other authorities that they need to triage patients and coordinate the scene. From that point forward, first responders employ a chain of command with assigned groups such as Rescue Group and Operations.
In an MCI, documentation and immediate identification of victims can be impossible. We took 19 depositions of first responders in the Ride the Ducks disaster to piece together the carnage of the scene and swift MCI response by the Seattle Fire Department. After 30 more depositions, the truth reveals itself.
That is, after all, the main goal victims have–what happened to me and my family, and why? I hope the victims of the Amtrak 501 disaster get the answers they deserve.
NOTE: This blog post is excerpted from AndrewAckley.com
The purpose of a road shoulder is to provide a safe place for drivers to pull off. This is what Todd Moothart, a 50 year old software engineer, thought as he tried to pull his motorcycle out of traffic. A conscientious motorcyclist, he wanted to wait for his friends to catch up. Motorcyclists know that it’s safer to travel in groups on the highway to increase their visibility to other vehicles.
When Todd got separated from his two friends on a beautiful Saturday afternoon in Fall 2013, he decided to pull off on SR 14 and wait for them. But the road shoulder was far from safe. The broken pavement past the edge of the main road–next to the shoulder–dropped off seven inches.
When Todd pulled his Harley Davidson onto the shoulder, his motorcycle wheel hit the face of the seven-inch broken pavement edge. His motorcycle hit the face of the broken pavement, his front and rear wheels were severely dented, and his body was propelled into the air like he was on a trampoline.
Note that safety standards in the transportation engineering field recommend that pavement edge drop offs be kept to a depth of no greater than two
Todd suffered severe injuries, including a kidney laceration, a concussion, amputation of a part of his right index finger, and broken/fractured bones in his upper and lower body.
The design plans for the on-ramp called for an eight-foot paved shoulder on the right-hand side. At the location where Moothart pulled off, there was no paved shoulder at all beyond the fog line. For unknown reasons, the State’s as-built plans for the on-ramp showed an eight-foot paved shoulder, but the evidence indicated that the on-ramp never had an eight-foot paved shoulder in the area where Moothart pulled off. The on-ramp was built in the mid-90s.
Stritmatter Kessler attorneys represented Todd Moothart in trial against the State of Washington in late October/early November of this year. The jury found that the State had failed to maintain the road in a reasonably safe condition.Todd was awarded $2,993,000. Part of the award was for about $500,000 in undisputed past medical bills and wage loss.
Todd was a conscientious motorcyclist who was at the wrong place at the wrong time. Emergencies and split second decisions happen anywhere and anytime. That’s why the shoulder must be maintained per State of Washington standards. The shoulder needs to be safe to pull over for all vehicles. This is the State of Washington has standards for an eight food shoulder with a minimum drop off of 2 inches.
Kudos to our firm’s roadway safety attorneys for educating the jury and judge about the need to keep the State’s road shoulders safe! The government needs to be held accountable, when its roads don’t meet basic safety requirements.
People walking and biking have a 90% chance of surviving if hit by a car driver going 20 MPH. But at 30 MPH there is only a 50-50 chance of survival.
You can help move Seattle towards safer speed limits, right now.
What’s the proposal? The city council is considering lowering speed limits on non-arterial streets from 25 MPH to 20 MPH, and in downtown on arterial streets from 30 MPH to 25 MPH (see the City’s FAQ).
Why should you care? If you have a young child, elderly family member, or if you are a pedestrian/cyclist in Seattle, this means safer streets for you and your family.
How will this proposal make a difference? This proposal makes sense. Our neighborhood streets are where we raise our families, talk to our neighbors, play in our front yards, and walk to school. Neighborhood streets should be quiet, calm, and safe places that enhance our quality of life. Downtown streets have the highest concentration of collisions between people walking or biking and people driving, and lowering the speed limit will help. Speed limit changes are only a small, but important, part of a comprehensive Vision Zero effort to eliminate serious injuries and fatalities on our streets by 2030. Learn more.
How you can help:
- Tell the City Council why adopting safer speed limits is important to you and your community. Or if you are too nervous to speak, hold signs in support.
- When: 2:00 (show up at 1:50 to sign up), Tuesday, September 20th
- Where: Seattle City Hall’s main council chambers. If you are having trouble finding the chambers, simply ask anyone you see inside the building.
Please let Gordon Padelford know if you can join to support the legislation on Tuesday.
If you can’t make it: Please call your city council members and let them know you are supportive:
Tim Burgess (Citywide): 206.684.8806 | email@example.com
Lorena González (Citywide): 206.684.8802 | firstname.lastname@example.org
Find your city council district here.
Lisa Herbold (Dist 1): 206.684.8803 | email@example.com
Bruce Harrell (Dist 2): 206.684.8804 | firstname.lastname@example.org
Kshama Sawant: (Dist 3) 206.684.8016 | email@example.com
Rob Johnson (Dist 4): 206.684.8808 | firstname.lastname@example.org
Debora Juarez (Dist 5): 206.684.8805 | email@example.com
Mike O’Brien (Dist 6): 206.684.8800 | firstname.lastname@example.org
Sally Bagshaw (Dist 7): 206.684.8801 | email@example.com
Thank you for all that you do!
NOTE: Printed with minor modifications and with permission from my friends at Seattle Greenways, specifically SG Policy Director Gordon Padelford.
Last week Division II Court of Appeals ruled that cities must provide safe roadways for all traffic, including bicycles. The three-judge panel found that cycling is a mode of “ordinary travel,” not just a sport. This means, Div II says, that cities must maintain roads for safe bicycle travel. What’s the big deal about calling bicycles “ordinary travel?” A lot.
In 2012, a Seattle judge dismissed the consolidated cases for injured cyclists. who argued that the South Lake Union Trolley tracks on Westlake were unsafe for cyclists because of the trolley tracks. Their bike tires too easily got trapped in the flangeways, where the trolleys’ wheels travel. However, the court in that case did not address whether bicycling was considered “ordinary travel” for the purposes of Washington Pattern Jury Instruction (WPI) 140.01. WPI 140.01 says that a municipality “has a duty to exercise ordinary care in the design/construction of its public roads to keep them in a reasonably safe condition for ordinary travel. The judge focused on the fact that the plaintiffs’ attorney in that case (not from our firm) has not provided any expert to testify to the standard of care. In other words, not expert argued that the City of Seattle failed to design and construct the road that was reasonably safe for ordinary travel. Thus, the City was let off the hook.
Plaintiff Pamela O’Neill was seriously injured while commuting home on her bike from work in Port Orchard. When her bike hit a patch of road with gaps in the concrete, her body flew onto the road. O’Neill sued the city, claiming it was negligent in maintaining the road, when it should have provided safe travel for bicycles. A Superior Court judge granted the city’s motion to dismiss the case. The appeals court overturned that dismissal and sent the case back to the lower court “for further proceedings consistent with this opinion.”
“Bicycles are an integral part of Washington’s ‘statewide multimodal transportation plan,” so cities must make roads safe for bicycles, the judges said.
O’Neill is an experienced cyclist who regularly commuted by bike to and from work and often took new routes to challenge her abilities, the court ruling said. Before July 18, 2009, she had never ridden down Sidney Avenue, the record said. As she headed down the hill, the road conditions changed from smooth to uneven. Photographs of the site of the accident showed “gaps between concrete slabs of up to 4 inches and height differentials of more than 1 inch,” the court said. At one point, Pamela’s handlebars jerked to the right, throwing her to the ground. She landed on her head and right shoulder and suffered serious injuries.
A city public works director said in his deposition that the city fixes roadways on a “complaint-based system” and the city had not received complaints about that stretch of road.
To challenge that claim, O’Neill offered testimony from an expert witness named James Couch, a U.S. Cycling Federation coach who owned a bicycle store in Tacoma. He said the breaks in the concrete slab were “enough to cause even the most skilled cyclist to lose control of their bike.”
The Superior Court found that Couch did not qualify as an expert witness and excluded his testimony, but the appeals court said Couch’s knowledge, skills and experience qualified him as an expert and the court erred by excluding his statements.
The judges also said the court erred when it said O’Neill “assumed the risk of poor roadway surface conditions” under the doctrine of implied assumption of risk.
“Falling is an inherent and necessary risk of the activity of cycling, and O’Neill assumed the general risk that she would fall off her bicycle and injure herself,” the judges wrote. “She did not, however, assume the enhanced risks associated with the City’s failure to repair an alleged defective roadway of which the City allegedly had constructive notice.”
(Above KOMO News story aired June 20, 2016)
What does it take to make this treacherous stretch of the First Hill Streetcar tracks safer for cyclists? A few weeks ago, we mourned the tragic death of cyclist Desiree McCloud, who crashed her bike only a few blocks away from where our client, cyclist Daniel Ahrendt, crashed his bike and survived after a Metro bus ran over him. Now, we have Jessica Hicks, who crashed on her scooter a few weeks after Denise Chew, a Tukwila nurse, crashed in the same area. To add insult to injury, Denise’s scooter was auctioned off, while she was unconscious and on a ventilator at Harborview. Really. I’m not making this up.
There are a number of ways that we can make this area safer for those riding two wheels. Bicycle advocates have frequently pointed to flange-fillers (used in a less trafficked area of the First Hill Streetcar line in the International District) or a covered-track system such as VeloStrail (currently used in Europe for curved tram tracks that intersect cyclist/pedestrian paths). As much as I would love to see solutions like those embraced, we also have a number of other less dramatic options. Let’s look at what the City has done on the Second Avenue corridor, soon after the horrific death of young attorney and friend Sher Kung.
We should look at options that keep cyclists away from the tracks with bollards, signalization, bright paint, and education–among other ways. In a future post here, I will share more insights with a transportation engineer, who is well versed in the area of cyclist safety along light rail lines.
Last week was National Protected Bike Lane week. Just a few hours south of us, in Portland, a coalition of businesses and residents conducted a one-week test that redesigned nearly a mile with marked crosswalks, a hand built floating bus stop and extra sidewalk space for cafe seating. On the block with the bus stop, the design included a parking-protected bike lane. The interesting point is that, by slowing traffic down a bit, not only does this increase pedestrian and cyclist safety, but it also benefits the local businesses. Freeway-style roads do not encourage people to look around them.
Understanding that protected bike lanes aren’t always feasible, there are a number of other options. Take, for example, timing the traffic so that bikes and other vehicles can alternate on the same roadway. SKW client Daniel Ahrendt is a seasoned cyclist commuter. But last year in May, his bike tire hit a portion of the First Hill Streetcar tracks, causing him to fall. That morning was clear, dry and partly sunny. The issue was not slick roads/tracks, but that he had to compete with the Metro bus that was “sharing” the lane with him and other cyclists headed in the same direction. I cannot help but imagine the difference that a timed light, which would have allowed Daniel to proceed before the bus, allowing him ample time to cross the intersection and avoid the fall that resulted in nearby bus to run over him.
Often my heart swells with pride for the work that my firm does because the results from our cases truly make our state safer for everyone. Today is one of those days: In a unanimous decision in Wuthrich v. King County, the Washington State Supreme Court held that a municipality has a duty to take reasonable steps to address overgrown roadside vegetation that makes the roadway unsafe for drivers approaching an intersection.
Today’s decision advances roadway safety for anyone who travels the roads in Washington State. As our state’s highest court maintains: A municipality has the overarching duty to provide reasonably safe roads and must be held to the same standards as that applied to private parties.
Our state’s supreme court now explicitly rejects old law that held that a municipality’s duty is limited to mere compliance with applicable law. Moreover, an “inherently dangerous condition” does not exclusively depend on a condition that “exists in the roadway itself.” A hazard may exist as a situation along a highway, such as overgrown bushes that obstruct drivers’ view of oncoming traffic.
The decision today stems from a June 2011 lawsuit that Guy Wuthrich filed against Christa Gilland and King County. Guy was riding a motorcycle on Avondale Road NE in King County, approaching an intersection with NE 159th Street on June 20, 2008 at about 5:15 PM. Drivers on 159th St. have a stop sign at the intersection, but drivers on Avondale Road do not. Christa Gilland was driver a car on 159th Street. When she reached the intersection with Avondale Rd., she stopped to wait for passing traffic. She did not see Guy approaching from her left. She turned left onto Avondale Road and collided into Guy’s motorcycle, resulting in serious injuries to Guy. The lawsuit alleged that the County was liable for Guy’s injuries because the wall of overgrown blackberry bushes on County property obstructed Ms. Gilland’s view of traffic at the intersection. The trial court dismissed the action against the County on summary judgment. The Court of Appeals affirmed in a split decision.
Some of you may have already seen our Ray Kahler argue before the Supreme Court. But, in case you missed it and want to hear some stellar arguments, click here. Kudos to the entire team, including Ray, Keith Kessler, Garth Jones and Brad J. Moore.
With the quiet launch of the First Hill Streetcar this weekend, I am reminded of client Daniel Ahrendt‘s amazing recovery from his bicycle crash at an intersection, where the streetcar runs. A seasoned commuter cyclist, Daniel was riding his bicycle on the clear and dry morning of May 4, 2015. However, the streetcar tracks posed the same hazard as they always did for cyclists who wanted to ride on that commuter facility at the intersection of Rainier Avenue South, Boren Avenue South, Jackson and 14th Avenue South.
This past Christmas, KOMO TV aired a “Special Report” on Daniel’s road to recovery, after a horrific incident, where he fell, after his tire was caught in the streetcar tracks and a Metro bus ran over him. The story reveals the strength of Daniel’s character and the amazing family that he had that supported him throughout the most challenging year of his life.
Worth noting is that there are international best practices that could have prevented this catastrophic incident. More to come in future blog posts.
On September 24, 2015, 18-year-old Phuong Dinh snapped photographs from her window seat in a charter bus filled with other North Seattle College students as it motored across the Aurora Bridge.
“And then, ‘Bam,’ ” she recalls. “Nothing else. Just flashes after that. I would faint. Then I would be awake and very bad pain all over. Then I would faint.”
Later in a hospital bed, memories from a deadly crash flooded back: She remembered blood covering her face and dripping down. She saw a bone piercing through the skin of her left leg.
The left side of Phuong’s body was crushed. She suffered a broken wrist, arm, hip, knee, and extensive facial lacerations. Now, four surgeries later and almost three months after the crash, Phuong spends her days in a Central District nursing facility in Seattle, slogging toward recovery and worrying about her future.
Phuong cried often during her initial weeks in the rehab facility. Now she says she doesn’t cry as much because she is getting used to the pain. Phuong’s main concern now is learning to walk again. Still unable to bear weight on her left leg, the bones of which are now reinforced with metal rods and screws, she mostly needs to use a wheelchair.
Aside from the continuing health-care costs which will be in the hundreds of thousands of dollars, Phuong’s parents have paid their own travel from Vietnam to Seattle, and while they’ve had their lodging covered by the Salvation Army, they worry about the future.
Phuongs’s father, Hiep, who runs a family construction business, remains in Seattle. Her mother, Thao, has had to fly back and forth to Vietnam to also care for Phuong’s 3 year old sister and 6 year old brother. The little kids are staying with their grandparents and a nanny.
Once Phuong gets out of the nursing home the family will have to figure out how to care for her so that she can attend school. A host family is probably no longer possible due to Phuong’s physical disabilities and need for accommodation.
A message from Phuong: “Thank you for caring for me and my family. Knowing I have your support means the world to me.” Visit her fundraising site here. Thank you for considering giving, during this difficult time for Phuong.