OTLA Trial Lawyer Fall 2022

14 Trial Lawyer • Fall 2022 By Chris Larsen OTLA Guardian On a sunny afternoon, September 23, 2010, three teenage students — Brittany Green, Francisco Cervantes and Jorge Echeverria — were walking with other students near a bus stop on Lancaster Drive NE adjacent to Chemeketa Community College. It was 1:20 p.m. on a typically busy Thursday afternoon on one of Salem’s most heavily traveled roadways, used by motorists, bicyclists and pedestrians. At that time, 31-year-old Sophia Downing was driving her 1994 Chevy Blazer erratically, approaching the students’ location several blocks away on Lancaster Drive NE. Surveillance video captured Downing almost colliding with motor vehicle traffic in front of her, stopping abruptly, then remaining stopped when other traffic drove forward on the green light. Downing accelerated hard and passed a Cherriots public bus, drifting over the dashed white lane divider line without signaling. As the students began to walk across the marked crosswalk onWinema Place NE on the “walk” signal, Downing continued to drift to the right, across the marked bicycle lane, over the curb, and onto the sidewalk of Lancaster Drive. Downing’s Bl azer s t ruck Green, Cervantes and Echeverria as they were crossing the marked and signalized crosswalk. Downing made no attempt to brake or slow down before crashing into them. After stopping her Blazer, Downing failed to render any aid to the students as they lay in the roadway. Downing asked a witness if she could leave. Because they were pedestrians, we describe Green, Cervantes and Echeverria as “vulnerable road users.”We use this term to describe anyone who isn’t shielded by thousands of pounds of metal, air bags and safety restraint systems. “Vulnerable road user” can describe bicyclists, pedestrians or motorcyclists. It can include elderly persons, children and persons with disabilities. Representing these clients who sustain injury in any collision with a vehicle is challenging, in large part due to bias amongst car-centric jurors. Just as challenging is representing a vulnerable road user who has been injured or killed by a person through an intentional or criminal act. Jurors naturally want to hold the person most responsible for causing your client’s damages accountable by attributing all or most of the fault to that defendant. But those defendants are oftentimes uninsured, underinsured or simply judgment proof. In cases where there is a second defendant or multiple defendants responsible for causing or contributing to your client’s injuries — and who do have insurance or assets from which to recover at trial — preventing the jury from allocating fault between judgment proof defendants and other responsible defendants can be critical to obtaining a fair damages award. This can be accomplished under Oregon law which prohibits the apportionment of liability between “negligent” tortfeasors and “wanton” tortfeasors. Green and Cervantes died from their injuries. Echeverria barely survived and suffered life-changing injuries. Downing failed field sobriety and drug recognition testing. Blood and urine samples were obtained from Downing about an hour after the crash. Forensic lab tests of Downing’s blood and urine determined the presence of anti-depressant medication and a muscle relaxant, along with a prescribed sleep-aid medication, lorazepam, a central nervous system depressant. Quantitative testing of Downing’s blood revealed she had 25 nanograms per milliliter of lorazepam. Toxicology experts agreed Downing was under the Chris Larsen When Vulnerable Road Users Are Injured I S O L AT I N G T H E WA N T O N D E F E N D A N T

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