Fighting for the Unhoused by Shane Davis, OTLA Guardian In late August 2019, my morning walk to work changed as my usual route through the parking lot between Willamette and Oak Street in downtown Eugene was blocked off with police tape. I didn’t think too much about it, simply heading another block up before cutting over to work. Later, reading the local paper, I learned of the tragic death of an unhoused woman who had been run over by a garbage truck while sleeping in the parking lot that morning. I had only been an associate for a week, not even a lawyer yet, still waiting for bar results, but four years later, this would turn into my first jury trial. It wasn’t too long after the woman’s death that her daughter contacted our office. She lived in Oakland, CA and had no idea her mom was living in Oregon before receiving a call from a police officer to tell her the horrific news. Her mother, having lost her home in the 2008 financial crisis and spending years dealing with progressing mental illness, was homeless for over a decade. She had a falling out with her then-teenaged daughter a few years before that and the two hadn’t seen each other or spoken in close to fifteen years. After our office took the case, we sent a demand letter to the garbage company seeking the statutory wrongful death cap in settlement. Their response: $9,999. They refused to pay five figures “out of principle.” Unfortunately, as every tort practitioner knows, Oregon law does not assign value to the loss of human life for its own sake. Rather, ORS 30.020 provides recovery for the loss of society, companionship and services to the decedent’s family. In our case, this made seeking damages at trial understandably tricky. There were no economic damages and, as the garbage company would argue, there was no loss of society or companionship. During one of our firm’s weekly meetings, Scott Lucas asked the other attorneys for permission to take this case to trial with the full resources and backing of the firm. Even though we thought we would probably lose, we also had to stand behind our principles. There wasn’t a second of hesitation amongst the other lawyers, it was a resounding yes. So, after retaining the best crash reconstructionist in the state, our trial team of Lucas, fellow associate Kevin Yolken and I went to trial. We knew voir dire would elicit a lot of strong language toward the unhoused community. What surprised us was the level of sympathy jurors also felt and described. When asked about their thoughts on homeless people, jurors tended to speak more favorably toward unhoused individuals who were suffering from mental illness, but less sympathetically toward those using drugs or alcohol. We were able to strike one juror who said he could never find against the garbage truck driver who was “only doing his job” and we used our three preemptory strikes on jurors who seemed to indicate a similar opinion. Part of our strategy was to frame the case as much as possible against the corporation and not the driver. After the jury was seated and sworn in, I gave our opening statement. It was my first appearance before a jury. My focus was keeping things brief and staying focused on the facts and why the garbage company was responsible. I described the driver’s path through the parking lot and read the Uniform Civil Jury Instruction on Lookout. The garbage truck entered the parking lot and drove across to a dumpster he emptied before backing up to execute a turn and drive out through an alley. It was when the driver turned that his rear wheels drove over our client’s mom. The defense’s opening rambled over an hour and a half, describing why they thought the driver couldn’t have seen the sleeping woman in his backup camera in the dark parking lot. They argued that another car might have hit her first and ended with blaming the victim for her own death for choosing to sleep where she did. My first witness was the lead investigating officer from the EPD Major Crashes Unit. The officer performed a full FARO 3-D laser scan of the parking lot the morning of the woman’s death and he later performed a reenactment of the driver’s path of travel using the same garbage truck. EPD investigated the case for a potential criminal hit and run because the driver left the scene. The reenactment and scans proved incredibly SHANE DAVIS practices personal injury, medical malpractice and products liability law. He is a Sustaining member of OTLA Guardians. Davis is an attorney in the firm Johnson Johnson Lucas & Middleton, 975 Oak St., Ste. 1050, Eugene, OR 97401. He can be reached at [email protected] and 541-484-2434. 18 Trial Lawyer | Fall 2024
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