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Cities: Listen up! Bicycles = “ordinary travel” & you must provide safe roadways.

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.”

Bike helmets may cause more harm? Really?

Seattle is one of about 50 cities that require cyclists to wear helmets. Credit: Pronto Cycle Share

Seattle is one of about 50 cities that require cyclists to wear helmets. Credit: Pronto Cycle Share

A recent WSJ article article lends credence to a faction of cyclists who suggest that mandatory bike helmet laws do more harm than good. The thought is that it deters people from cycling and leads people to believe that cycling is unsafe because a helmet is required (in cities such as Seattle).

Personally, I think that what deters people from cycling around the city is because it’s not like San Francisco or DC., where neighborhoods are closer to each other and more densely populated. In those places, it’s more convenient to hop on a bike and cycle from the Castro District to the Haight-Ashbury or SoMa district. Here, only the more athletic and seasoned cyclists can navigate the roads and distracted drivers to get from Magnolia to Greenlake.  That’s my two cents. What do you think?

NOTE: This post was originally published at SKWBikeLaw.com/Blog.

 

Trek Bicycles has recalled almost 1 million bikes for safety issues,

Trek Bicycles is recalling nearly 1 million bikes in the US and almost 100,000 in Canada for a safety issue that resulted in one rider becoming paralyzed.

The Trek bike recall involves a “quick release” lever on the front wheel. The quick release lever is a problem in that it can interfere with the disk brakes, which would cause the wheel to stop turning or to separate from the bike frame, according to the Consumer Product Safety Commission.
Trek said it is aware of three incidents where the problem caused riders to be injured, including one that resulted in quadriplegia. The others involved facial and wrist injuries.

The Trek bikes are from model years 2000 to 2015 and were sold nationwide beginning in 1999. The bikes, made in Taiwan and China, were sold at prices between $480 to $1,650. Trek, a Wisconsin-based bike company, has offered to replace the quick release lever free of charge. It is also offering a $20 coupon good for bike accessories made by Bontrager.

“We sincerely apologize for the inconvenience this has caused you,” Trek says in a notice announcing the recall. “We value you as a customer and want you to safely enjoy cycling on your Trek bicycle.”

Raising the Bar for Nursing Home Ratings

In late February of this year, federal star ratings of almost one-third of the nursing homes in the U.S. took a big hit. This is the result of a major adjustment of the quality standards that the Centers for Medicare and Medicaid Services references.  The goal is to make these ratings more meaningful to those considering long-term care facilities for themselves or for their elderly parents.

The main changes that went live on February 20, 2015 include adjusting the curve for the quality-measures (QM) rating. This rating is based on information about each patient. Here’s what Medicare states on its Nursing Home Compare website.

We have made 3 significant improvements to the Five Star Nursing Home Quality Rating System:

  1. Incorporated the 2 nursing home quality measures for antipsychotic use into the Quality Measure Rating.
  2. Increased the number of points necessary to earn a Quality Measure Star Rating of 2 or more stars.
  3. Changed the scoring method for the Staffing star rating. Nursing homes must earn a 4-star rating on either the RN or total Staffing rating to achieve an overall Staffing rating of 4-stars.

A large number of nursing homes are impacted by this new rating system and will see lower quality measure rating as a result of these changes.

Last fall, The New York Times published a scathing report about the nursing home rating system. The problem was that it relied too much on unverified information that even homes with a documented history of quality problems were earning top ratings. Nursing homes reported on two of the three major criteria used to rate operations — staffing levels and quality measures statistics — which were not audited by the federal government.

Last October, the federal government announced that it begin its requirement for nursing homes to report their staffing levels quarterly viaan electronic system. The new electronic system can verify the reports with payroll data. Moreover, a nationwide auditing program focused on the accuracy of a home’s quality statistic commenced at the same time.

As the New York Times points out: “Before the [Feb. 20, 2015] change, about 80% of the nation’s nursing homes received a four- or five-star rating out of five on their quality measures score; afterward, nearly half did. The number of homes receiving one star in that area increased to 13 percent, from 8.5 percent, after the recalibration.”

Consumer advocates on behalf of elder care applaud this stricter measure. Consumer Voice public policy director, Robyn Grant, told the NYT: “We think that rescaling the quality measures will result in improved reporting of the quality of care a nursing home may provide.” I can’t help but agree.

Could the FDA have done more?

 

Ms. Bigler lost her husband and only learned about the superbug outbreak at Virginia Mason from the news. (Photo:  Steve Ringman/Seattle Times)

Ms. Bigler lost her husband and only learned about the superbug outbreak at Virginia Mason from the news. (Photo: Steve Ringman/Seattle Times)

 

As potential clients continue to call our firm, more details about what the FDA knew and didn’t do with its knowledge continue to surface. When I first learned about the “dirty duodenescope” problem at Seattle’s Virginia Mason, I wondered how much information that the FDA had regarding these duodenescopes used for endoscopic retrograde cholangiopancreatography (ERCP) procedures. Then, when the latest news broke about the UCLA Medical Facility’s similar issues with improperly cleaned duodenescopes, I realized that this issue extends well beyond just a couple of medical facilities. The problem relates to the fact that these thin, flexible scopes are extraordinarily difficult to clean. Even UCLA’s latest announcement of using a toxic gas to clean these duodenescopes are doubtful per the FDA. This begs the question, then, why hasn’t the FDA done more to ensure that devices are not used until a more practicable ways to clean the device are identified?

Now, remember when Obama signed an Executive Order last fall to combat antibiotic resistant bacteria? I do. So do some federal lawmakers, who are now asking Congress to investigate what the U.S. Food and Drug Administration and device makers are doing to prevent further patient deaths and infections. Earlier this week, Rep. Ted Lieu (D-Torrance) sent a letter to the House Committee on Oversight and Government Reform, pointing out that outbreaks related to contaminated medical scopes “have national security ramifications.”

In an LA Times interview, Rep. Lieu reminded us of Obama’ executive order, issued this past September that made it a national security priority to combat antibiotic-resistant bacteria such as CRE (which stands for Carbapenem-resistant Enterobacteriaceae). The California congressman pointed out that an FDA safety alert issued last week post the UCLA incident does not give the public assurance that further outbreaks can be prevented, “While federal agencies such as the Centers for Disease Control and Prevention are combating superbugs, the current recommended sterilization procedures would continue to result in superbug outbreaks and deaths.”

The FDA acknowledged that cleaning the ERCP duodenoscopes to the manufacturers’ specifications may not remove all of the deadly bacteria that can be passed from patient to patient.

In the meantime, family members of Virginia Mason patients who now know about the link between these ERCP procedures and the recent superbug outbreak are asking important questions. For example, the Biglers’ heartbreaking story came out last week in the Seattle Times. Mr. Rick Bigler, a 57 years old insurance exec, was suffering from pancreatic cancer. Only after his wife, Theresa, requested his medical records, did she find out that he had suffered from an E.coli infection. As the Seattle Times article points out, ERCP procedures are linked to these types of infections. What is alarming is that the Seattle outbreak is the largest of its kind in the U.S.  But, unlike the UCLA Medical Facility, which was also recently reported to have similar issues with the superbug-dirty-duodenescope issue, Virginia Mason did not reach out to its patients. While UCLA had informed 180 individuals about the possible contamination, the Seattle medical facility insisted that its situation was somehow different because the outbreak apparently spanned over a larger period of time.

Understandably, family members of Virginia Mason patients who likely contracted the superbug, have many questions that they want answers to: Some of them have contacted our law firm, given SKW’s track record as renowned attorneys in the areas of products liability and medical negligence. If you have questions, we are interested in comparing your stories with the ones that we’ve already learned about. Email us at Counsel@Stritmatter.com or call us at 206.448.1777.

If it is easier, simply complete the following form: 

Seattle’s 2nd Ave Death Trap – Bike Man Dan finds many risks for the uninitiated

As I’ve blogged about a number of times–even before the death of cyclist/attorney Sher Kung–many, including country’s bike expert/Rutgers professor John Pucher, have considered Seattle’s Second Avenue corridor a death trap for cyclists.

After claiming the life of Ms. Kung, the much anticipated changes materialized about a week sooner than planned. Eager to see how the corridor might have improved, we asked Bike Man Dan (a.k.a. SKW attorney Dan Laurence) decided to ride down that very stretch of rode with our new GoPro (something new to him). He was shocked to see the numerous problems with the new design and shared his thoughts and video footage with those of us at the firm. He braved it both ways on this two-way bike lane.

See for yourself: How much of an improvement from before this summer’s fatal accident is the new “protected” bike lane? Does it truly increased safety for cyclists, pedestrians or drivers? Or, is the inconsistent treatment throughout the entire corridor frustrating if not treacherous to all who dare to travel this way?

Watch the clip above and let us know what you think. Do you see the same risks? Or did you perhaps also catch ones that didn’t jump out at us?

Crash course in surviving a plane accident

Despite the tragic Virgin Galactic space plane crash that claimed a test pilot’s life last week, Richard Branson, Elon Musk, Jeff Bezos among other high tech executives still believe in the future of commercial space tourism. In his first press conference after the crash of SpaceShipTwo in the Mojave Desert, Branson likened this new frontier (i.e., commercial space) to commercial flights, which experienced many fatal setbacks in its earliest days.

True, flying on commercial planes is one of the safest means of transportation. Over 8 million people fly each day. But in the past decade there has been no more than 138 crashes with fatalities. SKW has had the privilege of representing plaintiffs on some of those plane crashes.

!Plane Crash stats

In the last decade, there have been less than 140 plane crashes with fatalities.

Despite the statistics that should calm frequent fliers, I admit that I’ve wondered about my fate whenever my plane takes off or when we hit turbulence in the air. When I first started to fly with my husband, I used to secretly chuckle at him for his diligence in following along with the flight attendant’s review of the safety instructions. I hid my chuckling because another part of me knew that Eric was wiser for paying attention. He would know exactly what to do, if our plane was one of those several dozen flights that suddenly crashed into some body of water. At that point, his chances of surviving would greatly increase compared to the rest of the passengers, who had opted to ignore the instructions just to focus on their magazine or Kindle.

As the years go by, ever since I’ve started to fly with my little girl, I too will follow along with Eric and my daughter to review the flight safety instructions. In fact, I have more than once embarrassed my daughter by dancing (while buckled in my seat) and singing along to the new Virgin America flight safety video… hey, I’m not the only one (check out this entertaining video!).

Well, British Airways now offers airplane crash safety courses for the general public.  Those who take this course even get a chance to go down the inflatable slide and learn the proper brace position.

 

Washington State Settles with Owen family for Tree Fall incident on Highway 2

The family members who survived the December 21, 2012 tree fall incident on U.S. 2 have settled their claims against the State of Washington for $10 million.

Steven Mayer, Tim Owen (deceased), Jaime Mayer, Jeremy Owen, Jessica Owen, Cheryl Owen (deceased)

Steven Mayer, Tim Owen (deceased), Jaime Mayer, Jeremy Owen, Jessica Owen, Cheryl Owen (deceased)

 

In the days leading up to the tragedy, a combination of unusual weather events led to a highly dangerous situation in Chelan County.  Soil was soft from earlier warmer and wetter weather.  This increased the tendency for trees to lean.  Heavy snowfall occurred, along with freezing temperatures and light winds.  Trees were covered with especially high snow loads.

As a result, in the days before this tragedy, hundreds of trees were breaking and falling.  Just three days earlier, on December 18, Chelan County had issued a Declaration of Emergency.  The county was taking extraordinary measures to ensure public safety.  Local drivers were asked to restrict travel.  Even utility workers were restricted from restoring power due to the danger of falling trees.  The State DOT did not echo any of these warnings to the general public.  The Owen family was travelling from Bothell to Leavenworth.  The only warning sign issued to the travelling public on U.S. 2 was “traction tires advised.”

Trees had been falling across U.S. 2 in the vicinity of where the Owen vehicle would be hit.  Less than 12 hours before the fatal strike, another large tree fell near the same location.  At around 1:30 p.m. the Owen family was almost at milepost 79, when a leaning, snow- and ice-laden 125-foot-tall grand fir tree, snapped and fell upon them.

Recreation of tree that fell on Owen SUV.

Recreation of tree that fell on Owen SUV.

Tim and Cheryl Owen were killed instantly.  Jessie Owen, Jaime Mayer and Steven Mayer were seated in the middle and severely crushed.  Jeremy Owen was in the rear.  When Jeremy regained consciousness, his first thought was that everyone else had perished.

Later in the day, after the terrible scene was cleared and despite the danger, the State re-opened U.S. 2.  That evening and the next day the trees continued to fall.  A WSP officer twice requested that DOT close the roads.  Each time they said no.  Another tree fell within the same milepost as the Owen incident.  This time, the tree struck a vehicle carrying four people including one who was pregnant.  Only after this second major injury event, did the DOT close U.S. 2.

 

The State is generally not responsible for healthy trees falling and injuring innocent passersby. In this case, based upon casual inspection the tree did not appear to be rotten.  It also was located outside of the required clear zone on the side of the roadway. However, the family claimed that the State should be responsible when it knows of extremely dangerous conditions that prevent its roadways from being reasonably safe for ordinary travel.  In those situations, it has a duty to close its roads.  This has been done regularly by the State in situations of avalanche or wild fire danger.

The State recognized that in this case, it could be found to have failed its duty to protect motorists by not closing a dangerous roadway.  Though it maintained that other forces caused the incident, the State requested that the Owen family hold off on filing a lawsuit.  The State instead requested that the parties participate in non-adversarial mediation.

The family was still reeling from the deaths of Tim and Cheryl Owen in addition to surviving their own catastrophic injuries.  Despite receiving the best medical care possible, Jessie, Jaime and Steven have been left with major lifelong physical disabilities.

Past medical bills were in the several millions of dollars.  Future medical and care expenses were projected to be even greater.

Preparation for the mediation took an entire year. Teresa Wakeen, a professional mediator, was selected to conduct the proceeding.  Each side developed and explained their theory of the case.  From a legal standpoint, there were no other cases where a governmental entity had been found liable for failing to close a road.  The family pursued this case to make a point:   it was not okay for WSDOT to leave the state highway open when Chelan County was closing its local roads because of the same dangers.  The family wanted to ensure this would not happen again.

Ultimately, during the mediation, the State accepted that it was at risk to be found partially responsible for the incident.  The family agreed to compromise their claims and accepted the State’s offer of $10 Million.  The settlement money will be used to pay for past medical expenses and provide for the future needs of the survivors.

The family has issued this joint statement:

“From the moment the tree struck our car to this very day, we have been surrounded by friends, relatives, and even strangers who have done their best to help us.  We can’t thank all of you enough.

The State acted humanely and compassionately towards us during the entire year we worked on the mediation.  There were no accusations.  There was no fighting.  We were treated with dignity and respect, even though at times we agreed to disagree.

We hope that by financially acknowledging our loss, that the State will be more proactive in protecting the travelling public from known dangers.  Temporarily closing a roadway may be an inconvenience.  But a short delay is a small price to pay for the life of a loved one.”

The State’s team included executives from WSP, WSDOT and risk management.  The team of Assistant Attorney Generals was led in the mediation process by AAG Gary Andrews.  The family was represented by attorney Karen Koehler of Seattle law firm Stritmatter Kessler Whelan.  Also assisting from the firm, were attorneys Ray Kahler, Dan Laurence, Paul Stritmatter and Garth Jones.

American Association for Justice CEO Pays Homage to Leonard Schroeter

Below is the full text of a letter from Linda Lipsen, CEO of American Association for Justice (the nation’s largest organization of trial lawyers), writing about the passing of the great Leonard Schroeter:

April 30, 2014

AAJ Recognizes the Passing of Legal Giant, Leonard Schroeter

AAJ Recognizes the Passing of Legal Giant, Leonard Schroeter

Dear Colleagues,

It deeply saddens me to report that longtime American Association for Justice Board member and former President of the Washington State Association for Justice Leonard Schroeter—a man of great vision who was a crusader for his clients and a lifelong advocate for constitutional rights—died on Monday.


Leonard’s roots in the law and his quest for equality and justice formed early. By the 1940s, he was an active advocate for civil rights, organizing lunch counter and bus protests. He was arrested for this work, but persisted, and helped to establish the Congress of Racial Equality (CORE).


His extraordinary legal career began after graduating from Harvard Law School in 1951. Leonard prepared the school segregation cases for the NAACP Legal Defense and Education Fund, then headed by the late Justice Thurgood Marshall.


Leonard joined the American Association for Justice in the early 1970s after his return from Israel, where he had served as principal legal assistant to the Attorney General of Israel. One of his assignments was representing underground writers and human rights advocates in the former Soviet Union.


As a member of AAJ, Leonard led with purpose and vision. Not only was Leonard a long-standing Board member, but he also served on a number of committees, including Amicus Curiae Committee; Legal Affairs Committee; Section on Toxic, Environmental & Pharmaceutical Torts (Chair); and Civil Rights Committee (Chair). 


More than 30 years ago when the anti-civil justice group called the Manhattan Institute was founded, Leonard proposed that AAJ start a “Brooklyn Institute” to develop research in support of the civil justice system. His ideas for a plaintiff-oriented think tank led to the transformation of the Roscoe Pound Foundation, such that it started doing substantive research and tackling topics at its Annual Judges Forum which drew crowds. 


Leonard was a leading voice prompting AAJ to develop a constitutional challenge program to combat tort “reform.” That program was AAJ’s Legal Affairs department, which grew and eventually became what is now the Center for Constitutional Litigation (CCL). 


For his work as a fighter for access to justice and the American jury system, Leonard received many awards throughout his career, including in 1994, AAJ’s Harry M. Philo Award. Other awards include Trial Lawyer of the Year, Washington State Association for Justice; President’s Public Interest Award, Trial Lawyers for Public Justice (which he helped found); and Public Justice Achievement Award, Trial Lawyers for Public Justice.


Lawyers like Leonard Schroeter are rare. We are honored and lucky to have benefited from his leadership and his perseverance in fighting for the rights of individuals and families across this nation. He will be remembered and missed by so many. 

Sincerely,
Linda Lipsen
CEO 

American Association for Justice

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