Wrongful Death Caused by Exhausted Tow Truck Driver:
$800,000 Recovery to Help the Surviving Children
A tow truck driver was so exhausted and sleepy that his customer offered to buy him a cup of coffee so he could stay awake on the road. Driving while drowsy is an extremely dangerous condition that causes over 100,000 crashes per year, leaving 71,000 people injured and 1,500 dead. A lack of deep, restful sleep can impair the human brain as much as alcohol. Driving while drowsy can result in erratic behavior behind the wheel, including over-correcting, following too close to other vehicles, and crossing the centerline, all of which can lead to collisions with serious injuries or death.
On a beautiful June morning, the exhausted tow truck driver was heading down Marcola Road in rural Lane County. Coming the opposite direction was a 46-year-old professional woman who was the single mother of four children. She was on her way to her eighth-grader’s graduation ceremony. Behind her was another car, driven by a young mother with her three children as passengers. The extremely sleepy tow truck driver crossed the centerline, smashed head-on into the first woman’s car, and then hit the vehicle behind her, injuring the family in that other car.
The force of the crash killed the woman in the first car. Four children lost their mother who was also an incredible daughter, sister, friend, confidant, supporter, and loving person. She was survived by her children, her parents, and her brother. She was a strong member of the community, working to support housing for people in need for the last 21 years of her life. Helping others was what came most naturally to her, whether it was working with Habitat for Humanity or volunteering countless hours for the University of Oregon (she loved her Ducks). She somehow always managed to squeeze in more hours in a day than humanly possible, yet she had time for everyone.
The crash was needless and preventable. The insurance company for the tow truck company and driver recognized early on that there was a strong wrongful death claim and several legitimate personal injury claims arising from the collision. However, there was only a $1 million liability insurance policy to cover all of the losses. Corson & Johnson represented the Personal Representative of the Estate of the woman who was killed in the collision. Another law firm represented the occupants of the second vehicle. Eventually, settlements were negotiated, with $800,000 going to the family of the woman who was killed, and the balance to the people in the second car who were injured.
Road Rage Crash:
ODOT pickup truck nearly kills Eugene man; $1.5 million settlement
The Oregon Department of Transportation (ODOT) has its Santiam Junction Maintenance Station at the junction of Highways 20 and 22. ODOT vehicles leaving the maintenance yard must stop at a stop sign before entering the highway. On a July day, an ODOT employee drove an ODOT pickup truck out of the maintenance yard, turned left, heading west on the McKenzie Highway. He pulled out directly in front of a westbound pickup truck towing a horse trailer, failing to yield the right of way to that other vehicle. Independent witnesses say that the other vehicle narrowly missed being hit by the ODOT pickup truck, only because the other driver jammed on his brakes.
The other driver’s slamming on his brakes to avoid colliding with the ODOT truck caused his horse trailer to fishtail. The other driver then pulled off the highway to his left, to a paved area south of the oncoming lane of travel, and stopped. Multiple witnesses reported that the ODOT driver in a rage, shaking his arm and yelling at the other driver as he continued west on the McKenzie Highway. Then, suddenly, the ODOT driver made the choice to turn left across oncoming traffic, directly in front of a Toyota Corolla occupied by a Eugene couple.
The ODOT employee had a clear view of oncoming traffic If he looked, he would have seen the Corolla traveling towards him.
Earlier that day, the Eugene couple had set out to meet a friend for lunch at Suttle Lake. The wife was driving. Independent witnesses say that the ODOT truck turned suddenly in front of their car, and that the wife did not have time to react and avoid the collision. Nonetheless, she was able to slam on her brakes, laying down a skid mark in the her eastbound lane. But she could not stop in time to avoid the crash with the ODOT truck in her lane, directly in front of her. The crash with the ODOT truck flipped the Corolla up in the air and spun it around. The ODOT truck also plowed into the parked vehicle with the trailer off the side of the road. The impact was horrendous. Those who saw the crash thought that the occupants of the Corolla were dead.Eugene Man Critically Injured in Crash
While both the husband and wife were injured in the crash, the husband’s injuries were more critical. His head was tilted back, with blood streaming from both nostrils and a cut above his left eyebrow. His eyes were rolled back, unfocused. He was moaning. His wife was in a panic to get out of the car and try to help her husband, but her legs would not respond and she couldn’t feel her legs or arms – just a crushing pain in her chest.
What seemed like an eternity to the wife passed before the ambulances arrived. The first responders from the Black Butte Fire Department documented that her husband was trapped within the smashed family car, and required heavy manual extraction before they could start to administer first aid. The EMS report describes multi-system trauma, that the husband was fully immobilized, was suffering back, leg, and arm pain, and had shortness of breath with painful aspirations.
Air transport was called in an attempt to save his life. He was airlifted by helicopter to St. Charles Medical Center in Bend. The Air Life crew documented that he was in respiratory distress with tachypnea, had decreased lung sounds, and had multiple fractures. They also documented that he was awake, alert, and oriented, and then had full recall.
At the crash scene, the ODOT driver acknowledged that he did not look for oncoming traffic before turning across the oncoming lane, that he let the situation with the pickup truck driver get out of hand, and that it was 100% his fault. When a police officer cited the ODOT driver for Careless Driving, he again acknowledged that the crash was his fault, but he told the officer that he would nevertheless challenge the citation. He said that he had received a number of citations and that ODOT had told him that if he received another citation he would lose his ODOT right to drive.
The husband was admitted to St. Charles Medical Center as a full trauma activation. Injuries that were documented by the hospital at that time included:
– Right acetabular (hip) fractureRight segmental femur (thigh bone) fracture
-Right hemipelvis fracture involving the acetabulum
– Right distal comminuted radial (wrist) fractureLeft second digit (finger) dislocation
-Bilateral multiple rib fractures
-Significant seatbelt injury, with chest wall contusions
– Hematuria
-Bilateral atelectasis
-Hypovolemic shock.
The medical records of treatment required for the husband’s collision injuries filled up multiple three ring binders. He spent months in health care facilities: after St. Charles, he was hospitalized at two other hospitals, and was cared for at two different rehabilitation facilities. He went through multiple surgical procedures. Through his hard work, the support of his family and friends, and the expertise of his almost two dozen treating physicians, the husband was convalescing at home a year later. He continued to face the challenges posed by his significant, disabling injuries.
After a year of extensive medical care, instead of rising and readying himself independently for his day, taking care of their house and business, managing their finances, and enjoying the well-earned freedom in his stage of his life, his days were tightly limited by the nature and scope of his injuries. His wife was monitoring his morning self-care tasks of washing, combing his hair, and brushing his teeth. Just getting ready and dressed a year after the crash took the husband about 45 minutes. His wife had to help him get his breakfast, lunch, and dinner, because the frequent small trips between cupboard, refrigerator, stove, and table would be unduly time-consuming with a walker. He could not lift a gallon of milk, open some drawers, wash dishes, or perform the many other daily activities that require strong hands and wrists. He could not do any errands on his own because he could not drive and could not use the walker to go any substantial distance. He had to rely on his wife to bring him everywhere he wanted to go, even to a shop to buy a gift for her. He had frequent medical appointments and daily therapy at a local gym and swimming pool.
When the Government Wrongfully Injures
Our legal traditions trace back to England. There, the “King could do no wrong,” and that idea became what is now known as the doctrine of “sovereign immunity.” As a democracy, the “sovereign” in the United States is the people, and government agencies acting on behalf of the people traditionally were immune from liability for their own wrongful conduct.
There is something disturbing about the idea that the government could harm us and we would not have any ability to hold the government accountable. To address this, the Oregon Legislature modified the doctrine of sovereign immunity. Some government activities still have full immunity from liability, but other activities have what might be called partial immunity. For those other activities, citizens can bring claims in court against a government entity if they first make an Oregon Tort Claims Act notice within the time provided by law (which is a shorter time than a normal statute of limitations: generally, 180 days for an injury, and one year for a death, but there are exceptions and variations to these rules).
However, the Legislature has put a limit on what the government entity can be required to pay. The amount of that limit is higher for state government and lower for local governments, and changes year to year. At the time the Eugene man was injured by the ODOT truck, the limit applicable to the state government was $1.5 million. The man’s case eventually settled for that amount, the maximum amount then allowed under Oregon’s statutes.
Car Crosses Centerline
Neck Injuries
The Crash
One Spring morning a young woman was driving a Toyota 4Runner SUV southbound on Highway 99 in southern Lane County, Oregon. The pavement was dry, and there was full daylight. The SUV lost control on a curve, started fishtailing, went over the centerline, and crashed into an oncoming vehicle.
A local woman had been driving north on Highway 99 when she saw the SUV coming at a high rate of speed, fishtail, cross the centerline, and come at her. She tried her best to get out of the way by quickly pulling to the right, all of the way off the right side of the road. She also braked hard enough to leave skid marks on the highway, but could not avoid having the SUV crash into her on the driver’s side.
The Oregon State Police (OSP) investigated and concluded that the SUV was going too fast for conditions. Local rumor was that she was rushing because she was running late to school. The OSP incident report documents that she “failed to drive within its lane and collided into the front driver side” of the other vehicle, which “had moved off the roadway in an attempt to avoid” being hit by the SUV. The SUV driver was cited for failure to drive within her lane.
Injuries
Ambulance crews were dispatched to the scene. Due to the extensive damage, they had a hard time opening the injured woman’s vehicle to extricate her and get her to the hospital. At the crash scene, the records show that she had neck, back, knee, abdominal, and thumb pain. The ambulance records document that she was placed in a surgical collar, put on a long spine board, and given intravenous Fentanyl for pain. The EMTs called a trauma activation and took her to the closest Level II trauma hospital.
The hospital documented that the woman had suffered the following major injuries: Neck fracture (with closed nondisplaced fracture of a cervical vertebra, and a cervical transverse process fracture), and vertebral artery damage. The thumb fracture was identified later. She also had left anterior chest wall pain and bruising from seat belt trauma, and injury to her left knee where it had hit the emergency brake handle in the crash.
Follow up care was provided by the injured woman’s primary care physician, an orthopedic surgeon, physical therapists, and by a neurosurgeon. She worked hard to get better, and was motivated to return to work at her retail job. After time off from work pursuant to physician orders, because she would not be able to support herself without some income, the woman returned to work despite ongoing pain.
The medical records documented that the woman obtained and followed appropriate medical treatment following the crash. The neck fractures and artery damage were treated conservatively, with immobilization and medication. The collision knee injury was a source of additional concern because she had had outpatient orthopedic knee surgery several months before the crash. The thumb bone fracture was also treated conservatively. Her primary care physician documented moderate to severe neck pain from the cervical fractures, with associated stiffness. She also had headaches, sleep disturbances, anxiety, and depression following the crash, all of which are documented in the medical records.
After considerable physical therapy, the physical therapist noted that the woman still had “guarded neck rotation,” neck stiffness, and pain, with some good days and some bad days. Those notes also document that she was still struggling with headaches and the effects of the neck pain. The therapist put her on a home exercise program for continuing treatment.
The woman’s neurosurgeon noted that she had pre-existing disc degeneration, which is expected for someone of her age. She was not having symptoms requiring treatment for that until this collision caused the spine fractures and artery injury. The neurosurgeon’s report said that “the collision caused her to have the initial cervical spine fracture and artery injury, and was a substantial factor in causing her to have continuing cervical spine pain that I think more likely than not will be permanent.” While the neck injuries were treated conservatively, the woman now is at risk of needing a future neck surgery.
Although the woman continues to perform her home exercise program, the cervical spine pain continues to limit her activities and enjoyment of life, and likely will continue to do so for the remainder of her life. She has been unable to return to her hobbies. She loves gardening, but the time she can spend in her garden is now limited. She has difficulties in such ordinary activities as curling or washing her hair or trying to turn her neck to look behind her when driving. Most nights she cannot sleep through the night because she is awakened by neck pain. She continues to suffer anxiety while driving or riding in a vehicle.
Notes About The Case
This woman’s case highlights recurring issues faced by survivors of car crashes. First of all, she had a “pre-existing” condition: the normal wear-and-tear of the joints, ligaments, tendons, and other parts of the body that all of us experience over time. Everyone after their twenties shows some degree of “degeneration” in their spine. That does not mean that the degeneration caused the sudden onset of symptoms that “happen” to have occurred at the same time as the collision. But there is an industry that is supported by insurance companies that hires physicians (who are often retired or “disabled” from active practice) to write reports saying that the injuries were “preexisting.”
Second, like almost all of us, the woman had to go back to work, no matter the fact that she continued to have pain, discomfort, and limitations. We all have to earn a living, and that fact does not mean that we are “all better” just because we have to go back to work.
Third, the insurance company for the negligent SUV driver lowballed the injured woman for many months. It takes courage and determination for an injured person to hang in there during the discouraging time after an injury. Insurance companies know that some people cannot hold out for a fair settlement, and will take a fraction of what they should, simply because they are at the end of their financial or psychological rope.
By lowballing and delaying, the insurance company knows that a certain percentage of the legitimate claims against it will be resolved on the cheap. This woman’s negotiations took a half a year before her case was finally resolved for $250,000.00.
