OTLA Trial Lawyer Fall 2022

8 Trial Lawyer • Fall 2022 Vision Zero Continued from p 7 immunity. By taking a systemic view of the crash rather than limiting accountability to “reckless” individual behavior, the court issued what commentators have described as a powerful Vision Zero ruling. Recent Oregon trial court and Court of Appeals rulings seem out of step with this trend. The Oregon Supreme Court has held agencies to a high standard. Notably, transportation agencies in Oregon have a “duty to make highway travel reasonably safe to the general public.” Little v. Wimmer, 303 Or 580, 589 (1987) (so holding as to ODOT). This duty is non-discretionary. Turner v. State, 359 Or 644, 658 (2016). As society begins to view crashes as systemic, preventable and unacceptable, wholesale carve-outs from accountability such as discretionary immunity become farther out of step with norms. I recently conducted a series of focus groups for a case in which a person driving struck a person on a bicycle. We sued the at-fault driver, but not the roadway authority. The bicycle infrastructure at the crash location was not ideal, but complied with engineering standards, far from the sort of defective condition that would typically make the roadway authority a defendant. To my surprise, many participants across multiple focus groups wanted to assign a significant percentage of fault to the roadway authority for failing to provide a safe place to ride a bicycle. If you find yourself in this situation, you may need to ask the court to instruct the jury not to compare the fault of non-parties who are not the sole and exclusive cause. Language matters Vision Zero exposes the way language normalizes the unacceptable, excuses misconduct, and dehumanizes or blames victims. For years, safety advocates have referred to crashes, not accidents. The term “accident” originated with automakers and insurers seeking to avoid See Vision Zero p 10 assignment of responsibility as crashes spiked in the 1920s. Airplanes crash, they don’t have “plane accidents.” Cars are no different. Oregon should join other states that have replaced “accident” with “crash” in state laws and governmental documents such as police reports. Experienced safety advocates increasingly refer to crashes and collisions as “traffic violence.” This is accurate and descriptive. However, it is unfamiliar, and without context can be poorly received. Like “accident,” other common words are similarly loaded. Person-first language has gained broad acceptance in some areas, such as “people with disabilities.” Language that equates a person’s identity with their mode of travel persists. For example, “cyclist” and “pedestrian” define a person by their activity, unlike “person on a bicycle” or “person walking.” Automobile interests in the early 20th century coined the term “jaywalker” in a campaign to ridicule people who didn’t comply with new laws that criminalized many walking behaviors that had been legal throughout prior human history. Word choices, along with selective framing of the narrative, yield phrases that remain common in news articles, defense briefs and conversations. Consider the phrase, “An accident killed a pedestrian on 82nd Avenue last night.” Using neutral terms and adding context transforms how we understand a crash, “A person driving drunk killed a person using a mobility device as they crossed a dark stretch of 82nd Avenue that has claimed multiple lives.” Chain of causation Vision Zero implements a change that trial lawyers have known about for years. The conclusion you reach depends on where the chain of causation begins. If you describe a case beginning with a driver who was running late and drove over the speed limit, then this seems like the cause of the subsequent crash. By contrast, if you begin with the understanding that a large percentage of drivers on a 50 MPH roadway travel upwards of 60 MPH, and crashes are rampant, it becomes possible to suggest what engineers know — speed is the product of controllable factors: roadway design and configuration, and the level of enforcement. How did we get here? Vision Zero fits into the history of the automobile. In the last century, a network of highways and parking lots bulldozed dense, walkable urban areas where streets had been shared. The vast bulk of vehicle codes, and laws regulating bicycles and pedestrians, are a rarely discussed and massive transfer of rights from people generally to people using the public right-of-way to drive cars. This transfer is perhaps most stark in the exacting regulation of pedestrians — precisely where, when and how they are supposed to cross streets — and criminalization of fundamentally natural behaviors. Unlike licensed car drivers, people on foot and using mobility devices are everyone, from the most capable to least. Even physically and cognitively able people who have the ability are rarely inclined to walk 100 feet out of direction plus another 100 feet back to cross at a corner that is fundamentally no safer than mid-bock. This overregulation, and its disparate application to people of color, are part of the pushback against the domination of communities and individuals by cars and the laws that serve to maximize their speed and numbers as they pass through neighborhoods. Information is power In 2019, Portland’s (current) transportation commissioner questioned the

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