51 Trial Lawyer • Fall 2022 about road maintenance. A qualified expert will round out your investigation, provide you with new theories of negligence and — most importantly — provide you with a good faith basis to file the ORCP 47E declaration that beats every MSJ. In another recent case, our client struck a pothole created by failed pavement surrounding a manhole cover. As expected, the city’s MSJ and supporting declaration said they’d never gotten a complaint. But according to the expert we hired to investigate the scene, city sewer crews had repeatedly accessed the manhole after the pavement had begun to deteriorate — putting the city on actual notice of the failed pavement. So, with our response, we included both an ORCP 47E declaration and a brief summary of what our expert had found. The city made, and we accepted, a very favorable settlement offer a week before oral argument on the MSJ. For as much success as we’ve had arguing against discretionary immunity recently, it’s important to remember that it’s only one of the “potholes” that public agencies can use to crash your roadway defect case. The statute of ultimate repose may bar any claims based on negligent design and installation. Recreational immunity might apply if your crash was in a state park or on a bike path. And comparative negligence is a baked-in part of every bicycle case. But with each fact-specific challenge — each exception to the general rule of immunity that we can find — we’re hopeful this is one pothole we, as plaintiff lawyers, can start to fill. Charley Gee and TimothyWalsh specialize in personal injury law with a focus on cases involving injured bicyclists and pedestrians. They work at Charley Gee PC, 735 SW 1st Ave., Ste. 201, Portland, OR 97204. Contact them at 503-278-5389 or cgee@injuryoregon.com, twalsh@ injuryoregon.com.
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