The Law Offices of Michael L. Jacobs, Personal Injury Law Blog for Seattle, Washington

Unsafe Driving Around Trucks Targeted By W.S.P. (07/08/09)

Wed, 08 Jul 2009 00:00:00 -0400

The Washington State Patrol reports that between 2005 and 2007, there were almost 5000 commercial truck accidents in Washington alone. These accidents involved drivers of cars who drive unsafely around large commercial trucks. In two-thirds of the accidents, statistics show that the driver of the car was at-fault. These accidents resulted in 175 fatalities and 450 injuries. According to the Patrol, drivers need to leave space for trucks and learn ways to share the road.

John R. Batiste, chief of the Washington State Patrol, says, “Motorists who drive recklessly, or are unsafe around these big rigs, are asking for trouble. When a car and a commercial vehicle are involved in a collision, the car will lose.”

Given these statistics, the Patrol has a worked with other law enforcement agencies to create the Ticketing Aggressive Cars and Truck (TACT) project. In an effort to reduce accidents, the Washington State Patrol is trying to increase the public's awareness of unsafe driving behaviors around commercial vehicles. These dangerous driving behaviors include:

cutting off trucks

tailgating

failure to yield the right of way

speeding

aggressive driving

The Patrol will be targeting routes in Western Washington along State Route 8 and State Route 12, and in Eastern Washington, along State Route 2.

The TACT project is a grant from the Federal Motor Carrier Safety Administration.

Bellevue Car Accident on West Lake Sammamish Parkway (08/14/09)

Fri, 14 Aug 2009 00:00:00 -0400

The Seattle Times reports that a driver in his 20s was killed in a single-car accident on the night of August 2, 2009 on West Lake Sammamish Parkway in Bellevue.

According to Bellevue police, the man was driving north at a high rate of speed and lost control on a curve, hitting a fence and smashing into a light pole shortly after 7 p.m.

He was trapped in his car and attempts by witnesses to rescue him were unsuccessful.

The accident closed the roadway for several hours. Police said there was no immediate signs of alcohol or drugs in the accident.

The driver's name hasn't been released.

D.O.T. Conducting Bicyclist and Pedestrian Survey (09/21/09)

Mon, 21 Sep 2009 00:00:00 -0400

According to the Seattle Times, volunteers across Washington State will be out on street corners next week counting the number of people who walk or bike to their destinations.

The information will be used to track progress toward the state's goal of increasing bicycling and walking in Washington and reducing the number of cars on the road.

The state Department of Transportation (DOT) is doing this count as part of the National Documentation Project, an annual bicycle and pedestrian count and survey effort that is sponsored by the Institute of Transportation Engineers Pedestrian and Bicycle Council, and to determine progress toward its goal of increasing nonmotorized trips.

The DOT and the Cascade Bicycle Club have enlisted volunteers and organizations such as FeetFirst and the Bicycle Alliance of Washington to count the numbers of people bicycling and walking on paths, bike lanes, sidewalks and other routes on Sept. 29 and 30 and Oct. 1.

Those who are interested in helping can learn more by visiting DOT's Web site, www.wsdot.wa.gov/bike/Count.htm, or by e-mailing Cascade Bicycle Club at organizer@cascadebicycleclub.org or calling 206-957-0689.

Seattle Residents Confused By Sea-Tac Airport Signs (09/21/09)

Mon, 21 Sep 2009 00:00:00 -0400

The following is an excerpt from a recent Seattle Times article (the full article may be found at http://seattletimes.nwsource.com/html/bumpertobumper/2009909441_bumper21m.html):

Here's a question: How many people does it take to be confused by airport signs before those signs are considered confusing?

In last Monday's Bumper, a reader, a Seattle woman, complained that signs on approach roads to Seattle-Tacoma International Airport were inadequate to direct drivers to the correct lanes for parking, rental returns, arrivals, departures and such until it's almost too late to change lanes easily.

Each time she's driven to Sea-Tac, she said, she's witnessed drivers making risky last-minute lane changes on airport approaches.

An airport spokesman replied that the signs seemed adequate to airport officials, and indeed conform to what's considered adequate by state and national standards for signage, including the Federal Highway Administration's Manual on Uniform Traffic Control Devices, which defines standards used by road managers nationwide to install and maintain traffic-control devices on all streets and highways.

Thurston County Pays $2.375 Million in Wrongful Death Lawsuit (11/01/09)

Sun, 01 Nov 2009 00:00:00 -0400

The Olympian reports that Thurston County has agreed to pay $2.375 million to the family of an Elma man who died after a 2006 crash that occurred as an off-duty Thurston County sheriff's deputy pursued another vehicle onto Interstate 5.

The county's attorney in the suit, John Justice, confirmed Tuesday that the county settled the case rather than take it to trial, because if a jury believed that the deputy's actions contributed even minimally to the crash that resulted in the man'd death, the county would be responsible for 100 percent of the damages he and his family suffered.

“The risk of going to trial was significant,” Justice said.

Justice explained that under Washington law, a “fault-free” plaintiff would be entitled to 100 percent of damages from any liable party.

A car that off-duty sheriff’s deputy Jason Casebolt was following on June 15, 2006, “steered erractically from lane to lane and back several times” on I-5, and wound up colliding with a third vehicle, a red 1990 Geo Metro being driven by Michael Wynn of Elma, court papers state.

Wynn, in his mid-20s at the time of the crash, suffered a spinal neck injury and became a quadraplegic. He received plastic surgery to his eye socket and was placed on a ventilator, but died from his injuries on Dec. 1, 2006, court papers state. Wynn’s attorney, Tom West of Tacoma, filed a lawsuit on behalf of Wynn’s then-1-year-old daughter after the crash.

West’s civil wrongful death complaint states that Casebolt and the driver of the vehicle he was following, Otto Messmer, “negligently, wantonly and/or intentionally operated their vehicles in such a manner as to cause a collision.” Casebolt was driving a personal vehicle, a Ford F-350 pickup, at the time he was following Messmer, West said. The lawsuit argues that Casebolt “was acting within the scope of his employment” as a law enforcement officer at the time of the crash.

An attorney who represented the county in the lawsuit argued Tuesday that even though Casebolt followed Messmer, his actions did not meet the legal definition of a law enforcement pursuit.

Messmer, 28, now faces a vehicular homicide charge for his role in the crash, according to court papers filed Aug. 9.

Charges were initially filed against Messmer in 2006, then were dismissed without prejudice. Messmer’s pending vehicular homicide charge was not refiled until August of this year. Andrew Toynbee of the Thurston County Prosecuting Attorney’s Office said Tuesday that the delay in refiling the criminal charge against Messmer had nothing to do with the civil lawsuit against the county that was recently settled.

The State Patrol did not return a phone call Tuesday seeking comment on why it took so long to refile the charge against Messmer.

Messmer had two central nervous system depressants, Topiramate and Citalopram, in his bloodstream at the time of the crash, according to the probable cause statement in support of the vehicular homicide charge against him.

According to a summary of deposition testimony that was given during the litigation against the county and provided by West:

• Casebolt first noticed Messmer’s Honda Civic after it cut him off in a roundabout on Marvin Road, according to Casebolt’s deposition statement. Casebolt said he then witnessed the Honda nearly hit a vehicle at a second roundabout. Casebolt said in the deposition that he wanted to identify the driver for the purpose of citing him for “at least negligent driving.”

• Casebolt said in his deposition that Messmer’s vehicle cut in front of his truck on I-5, and was behind Wynn’s Geo, “with less than a foot of space between each vehicle.

“Finally, Casebolt alleges that Messmer drifted all the way across the freeway, past the fog line into the shoulder of the freeway and then shot back across the freeway to make contact with Wynn’s vehicle.”

Messmer disputes Casebolt’s version of how the crash occurred, and alleges in his deposition that Casebolt’s truck bumped him slightly from behind before the crash. Justice, the county’s attorney in the suit, said Tuesday that State Patrol investigators found no evidence Casebolt’s pickup touched Messmer’s Honda.

• Casebolt, who called 911 and gave his call number to dispatchers as he followed Messmer, left the scene after Messmer’s vehicle struck Wynn’s car.

According to Justice, Casebolt’s two children, ages 5 and 10, were in his pickup with him at the time of the collision, and because Casebolt knew that the State Patrol was en route to the scene, he elected to leave rather than leave his children unattended alongside I-5. Justice said Casebolt was unaware that Wynn was seriously injured in the collision.

Messmer’s insurer paid Wynn’s estate $50,000 under the settlement agreement, and a private insurer paid $25,000, Justice added.

West said Tuesday that from the information his hired experts provided him in depositions, it is clear that Casebolt either did not follow the Sheriff’s Office’s standards for off-duty officer activities following drivers, or those standards were overly broad and “did not give sufficient guidance.”

Thurston County Sheriff Dan Kimball said Tuesday, “Detective Casebolt, from our investigation, did not violate Sheriff’s Office policy. You can always get experts to testify to the other side of the coin. Beyond that, I’ll let the settlement speak for itself. It’s a tragedy, we all recognize that.”

Casebolt, who is now one of the Sheriff’s Office’s detectives for the Thurston County Narcotics Task Force, was unavailable for comment Tuesday.

Jeremy Pawloski: 360-754-5465

jpawloski@theolympian.com.

Seattle Organization Raises Bicyclist Accident Awareness (10/12/09)

Mon, 12 Oct 2009 00:00:00 -0400

According to their website (http://www.ghostcycle.org/), the organization known as GhostCycle is dedicated to raising awareness for everyone regarding bicyclists on the streets of Seattle.

The group states on their website that "[o]ur city is one of the most bike-friendly cities in North America, but things can always improve. We began to use this website to collect data from cyclists in the Seattle area who have been involved in an accident while bicycling...[w]e, the GhostCycle team, are all familiar with bad roads, poor traffic conditions, and dangerous intersections. We have to contend with them every day, but this project isn't about just our group of cyclists. It's about all cyclists in Seattle, and they are speaking for us through the reports they have submitted. It's their information, experiences, and (unfortunately) their accidents that reveal the areas in need of improvement in Seattle. This project would not have been possible without their help, and we thank them all.

Marybeth Turner, a spokesperson for the Seattle Department of Transportation, told the Seattle Times that Seattle is consistently rated one op five cities for bicycle safety, and she applauds the group's efforts to make a statement.

About 300 bicycle-car accidents are reported annually in Seattle, and one to three cyclists are killed here every year, Turner said.

Nationwide, 622 bicyclists were killed in 2003, according to the National Highway Traffic Safety Administration.

Those numbers are significantly down from the 816 fatalities reported in 1993, and exemplify a shift in the nation's attitudes toward transportation and safety, said Craig Raborn, program manager at the Pedestrian and Bicycle Information Center in North Carolina.

Stricter guidelines for the construction of roads, better driver education and awareness, and continued funding for roadway improvements have helped reduce the numbers, Raborn said.

Congress has approved $612 million over five years for the Safe Routes to School initiative, which provides safer access for young bicyclists or pedestrians on their way to and from class, Raborn said.

Gonzaga University Law Professor Nominated to U.S. Court (10/24/09)

Sat, 24 Oct 2009 00:00:00 -0400

According to the Gonzaga University School of Law website, President Barack Obama has nominated GU Law professor Rosanna Peterson to Eastern Washington’s U.S. District Court.

If approved by the Senate, Prof. Peterson will be the first woman to serve the 19 counties of Eastern Washington in that position. She would replace Judge Fred Van Sickle, who moved to Senior Status last year.

“I’m very honored and extremely appreciative of the vote of confidence from President Obama,” Peterson told The Spokesman-Review following the announcement of her nomination.

At Gonzaga Law, Prof. Peterson teaches Evidence, Federal Jurisdiction, and Trial Advocacy. She also runs the school’s Externship program.

Peterson has served as president of the Federal Bar Association for Eastern Washington and the Washington Women Lawyers State Bar Association. She was selected by a bipartisan merit selection committee as one of three finalists, from among more than two dozen applicants for the judgeship, and she is the only finalist nominated by the president for the judgeship.

“I’m proud to support her and I’m proud that our bipartisan Washington State Selection Committee process continues to produce exceptional candidates,” Sen. Maria Cantwell, D-Wash. told the newspaper.

“You hate to lose her,” said Earl Martin, Dean of the Law School, “but at the same time this is wonderful for her and frankly wonderful for the institution; it’s a great honor for the place."

Seattle Hit and Run Accident Results in Pedestrian's Death (11/15/09)

Sun, 15 Nov 2009 00:00:00 -0500

According to the Seattle Times, a 31-year-old Seattle man died at Harborview Medical Center after he was struck by a car Friday morning (10/09/09) near the James Street exit of Interstate 5.

According to the Washington State Patrol, the unidentified man was struck by a car leaving the freeway at James Street.

A Bremerton man driving behind the car that hit the pedestrian followed the vehicle as it re-entered the freeway and called 911. He described the make and model of the car and followed it until the vehicle was stopped by troopers.

The driver, a 45-year-old woman, was booked into jail for investigation of hit and run and drunken driving.

Washington Motorists: Please Drive Carefully In Adverse Weather (11/19/09)

Thu, 19 Nov 2009 00:00:00 -0500

The Law Offices of Michael L. Jacobs would like to give a friendly reminder to all Washington State drivers to exercise caution and care when driving during this wet and windy November.

The following weekend weather update was posted on the KING5 News website on November 19, 2009:

Another round of heavy rain and gusty winds moved through western Washington overnight as a front moved through and then stalled just south of Puget Sound. This front is lifting back northward today giving us some steady rain on into early this afternoon. Winds have decreased. The front will continue to lift northwestward eventually taking most of the rain to the coast and north of Seattle later this afternoon. Winds will increase again during the afternoon but shouldn't be as strong as last night.

The cold front will move through western Washington early on Friday morning followed by numerous showers. Winds will decrease early in the day Friday for a calmer day. Snow levels in the Cascades may briefly rise to 4 to 5,000 feet early morning Friday but drop back to 2,000 feet by Friday afternoon with heavy snow showers. Yet another storm will push in on Saturday for increasing rain and wind once again . Sunday will give a little bit of a break with just a few showers and quite a few sunbreaks. Monday will bring more rainy and windy weather. However, it does look like Tuesday onward through Thanksgiving will see quieter weather with less rain and wind.

Marysville I-5 Accident Caused By Driver Falling Asleep at Wheel (11/27/09)

Fri, 27 Nov 2009 00:00:00 -0500

According to the Seattle Times, a 34-year-old British Columbia man fell asleep at the wheel early Thursday morning (11/26/09), causing a crash in which his cargo was strewn across northbound lanes of Interstate 5 in Marysville, according to the State Patrol.

Just after 5 a.m., a semi-truck driven by Kuljinderpal Perhar of Surrey drifted off the freeway, striking two trees along the right-hand shoulder at mile post 203, according to the patrol. Though his truck and trailer were both totaled, Perhar suffered only minor injuries and was treated and released from an Everett hospital.

According to KING 5, Perhar was driving a load of general cargo, including food and auto parts, from California to British Columbia. As of 2:40 p.m., all lanes of Interstate 5 were clear of debris, the station reported.

Strict Laws Sought for Drivers Injuring Bicyclists or Pedestrians (12/02/09)

Wed, 02 Dec 2009 00:00:00 -0500

The following news excerpt is taken from a Seattle Times article originally published on October 15, 2009:

Susanne Scaringi was biking to work in West Seattle in 2006 when a van drove into her path. She slammed against the van, suffered a head injury and died hours later.

King County prosecutors declined to charge the driver with a crime. But eight months after the fatal crash, the city of Seattle charged him with misdemeanor assault for causing Scaringi's death by failing to yield the right of way.

Then a ruling in King County Superior Court said the city ordinance was invalid because it violated a state law that decriminalized most traffic offenses.

That law needs to be changed, argued more than 100 people who crowded into Seattle City Hall Wednesday evening.

The city asked the Legislature earlier this year to toughen the state's negligent-driving laws to include infractions that cause death or serious injury to bicyclists or pedestrians. It would have made these infractions gross misdemeanors, which could mean a year in jail.

City Attorney Tom Carr, speaking to the crowd Wednesday, said it's frustrating trying to get the proposal through the Legislature. "We tried to make changes," he said. "We will go back."

Adam Kline, chairman of the state Senate Judiciary Committee, agreed.

"There's a difference between ordinary negligence and criminal negligence and it has political ramifications," Kline said, adding that it will probably take several years to get the law changed.

Some who attended the meeting said a tougher punishment for motorists who injure bicyclists or pedestrians with their cars through negligence might be a steeper fine and revocation of driver's licenses. But Kline pointed out that 85 percent of those who lose their licenses drive anyway.

Toughening bicycle-accident laws is a top priority for the Cascade Bicycle Club, which sponsored Wednesday's meeting.

Susan Gilmore: 206-464-2054 or sgilmore@seattletimes.com

Seattle Motorists: Friday Traffic Update for A Safe Drive Home (12/11/09)

Fri, 11 Dec 2009 00:00:00 -0500

The following friday (12/11/09) traffic updates for the Seattle area have been posted on the Kiro 7 website:

Blocking Incidents

I-5 northbound just north of Swift Ave collision blocking HOV lane, verified with camera 3:11 PM
Update 3:24 PM : I-5 northbound off-ramp to Mercer St collision blocking left lane, verified with camera 3:13 PM - Incident Response Team, State Patrol on scene

Construction Closures

SR 11 (Chuckanut Drive) both directions just south of the Whatcom/Skagit county line (MP 11) closed due to rockslide
SR 11 both directions at MP 18 (California Ave to Spokane St. in Bellingham) reduced to one lane until further notice.

Special Events

None reported

Motorists Must Stop for Pedestrians at Unmarked Crosswalks (01/11/10)

Mon, 11 Jan 2010 00:00:00 -0500

The following excerpt is taken from a Seattle Post-Intelligencer article written by Scott Gutierrez entitled "Do You Have to Stop for Pedestrians at Unmarked Crosswalks?":

Question:

Robin Asher asks: "Are we required by law to stop for pedestrians waiting at an unmarked crosswalk such as a street corner? Or only at marked ones?"

Answer:

Seattle police spokeswoman Renee Witt points to the Seattle Municipal Code, which has the answer. Essentially, you're supposed to stop at both marked and unmarked crosswalks as long as the pedestrian is within one lane of your side of the road.

SMC 11.40.040 specifically says: "The operator of an approaching vehicle shall stop and remain stopped to allow a pedestrian using an unmarked or marked crosswalk or a disabled person using a curb ramp as provided in Section 11.40.090 to cross the roadway when the pedestrian or disabled person is upon or within (1) lane of the half of the roadway upon which the vehicle is traveling or onto which it is turning. For purposes of this section, "half of the roadway" means all traffic lanes carrying traffic in one (1) direction of travel and includes the entire width of a one-way roadway. This section shall not apply to pedestrians crossing a roadway at a point where an accessible pedestrian tunnel or overhead pedestrian crossing has been provided."

"If there is a pedestrian on the sidewalk and they're showing they're about to step off the curb or they're about to cross, then vehicles need to stop," Witt says. Drivers should watch to see if the pedestrian makes eye contact or a steps toward the intersection, she says.

Washington State Senate Bill 5838 Targets Negligent Drivers (02/05/10)

Fri, 05 Feb 2010 00:00:00 -0500

The following news excerpt is from a Seattle Times article originally published on January 26, 2010 (for the full article, please visit http://seattletimes.nwsource.com/html/localnews/2010898786_bicyclists27m.html):

OLYMPIA — Lawmakers are considering tougher penalties for drivers whose negligence causes serious injury or kills pedestrians and bicyclists.

Currently, if a driver is distracted and forgets to yield to a cyclist, and the cyclist is killed, the only likely consequence is a traffic infraction. More severe charges are brought only if a criminal act, such as driving under the influence, is involved.

The Vulnerable Users Bill, Senate Bill 5838, seeks to change the law without criminalizing the action. In cases when a "vulnerable user" — pedestrians, cyclists or skateboarders — is substantially harmed or killed by a driver's failure to exercise "ordinary care," drivers would still face a traffic infraction, but the punishment would be more substantial.

In addition to being subject to a $250 fine for negligent driving in the second degree, the driver would be required to appear in court, complete a traffic-safety course and perform up to 100 hours of community service that relates to driver improvement and traffic safety. In lieu of these penalties the driver would pay a fine of up to $5,000 and lose his or her license for 90 days.

"There are cases where a driver is not filled with criminal intent but truly does cause death or serious injury to a biker, to a walker," state Sen. Joe McDermott, D-West Seattle, a sponsor of the bill, said at Tuesday's Judiciary Committee hearing.

Citizens' request and headlines, McDermott said, compelled him to try to put in place an appropriate penalty, on the infraction level, that would provide justice for victims and their families.

According to the U.S. Department of Transportation, more than two- thirds of bicyclist fatalities occur in urban areas. And in the city of Seattle, which estimates that on an average weekday 4,000 to 8,000 people cycle to work or school, there is an increased focus on safety.

Obama: Plan to Regulate Increases in Health Insurance Rates (02/22/2010)

Mon, 22 Feb 2010 00:00:00 -0500

The following news story was written by Associated Press writer Ricardo Alanso-Zaldivar and was featured in the Wenatchee World. To view the original article, please visit http://www.wenatcheeworld.com/news/2010/feb/22/obamas-last-ditch-health-plan-regulates-insurance/:

President Barack Obama today put forward a nearly $1 trillion, 10-year compromise that would allow the government to deny or roll back egregious insurance premium increases.

Posted this morning on the White House Web site, the plan would provide coverage to 31 million Americans now uninsured without adding to the federal deficit. It comes just four days before Obama’s one-of-a-kind, televised health care summit with Democrats and Republicans.

Even with the latest changes, it’s highly uncertain such an ambitious proposal can get through Congress. Republicans are virtually all opposed, and some Democrats who last year supported sweeping health care changes are having second thoughts in an election year. After a year in pursuit of what was once his top domestic priority, Obama may have to settle for a modest fallback.

Weeks ago, the president and congressional Democrats were on the verge of an historic step — a long-sought remake of the nation’s health care system after a half-century of unsuccessful attempts by scores of politicians. Then Republican Scott Brown stunned Washington with an upset win in the Massachusetts Senate race, denying Democrats their 60-seat majority and reversing any political momentum.

Determined to avoid facing voters empty-handed, Obama offered a fresh proposal based on Democratic-passed bills.

The plan conspicuously omits a government insurance plan sought by liberals and viewed as a non-starter by conservatives and some congressional moderates. It includes Senate-passed restrictions on federal funding for abortion adamantly opposed by abortion foes as well as abortion rights supporters.

The new White House plan would give the federal government the power to regulate the health insurance industry much like a public utility. The Health and Human Services Department — in conjunction with state authorities — would be able to deny egregious premium increases, limit them or demand rebates for consumers.

Obama, who deferred to Congress on the specifics for more than a year, has finally put forward a detailed plan of his own. By and large, it follows the bill passed by Senate Democrats on Christmas Eve, with changes intended to make it acceptable to their House counterparts.

It would require most Americans to carry health insurance coverage, with federal subsidies to help many afford the premiums. Insurance companies would be barred from denying coverage to people with medical problems or charging them more.

Estimated to cost about $1 trillion over 10 years, Obama’s plan would be paid for by a mix of Medicare cuts, tax increases and new fees on health care industries.

Washington State House Legislation Targets Texting Drivers (03/05/10)

Fri, 05 Mar 2010 00:00:00 -0500

The following news article was written by staff reporter Lillian Tucker for the Seattle Times. To view the original article, please visit http://seattletimes.nwsource.com/html/localnews/2011249939_cellphones04m.html:

OLYMPIA — The House approved a ban on texting and cellphone use by teen drivers Wednesday, watering down the Senate's plan to tighten restrictions on motorists of all ages.

In a 86-12 vote, the House approved a measure barring 16- and 17-year-old drivers from texting or using any cellphone — handheld or hands-free. Members did take some action concerning adults, making texting while driving a primary offense for everyone.

Talking and texting teens could be pulled over and ticketed $124, as could adult motorists caught texting.

The House rejected the Senate's effort to change the current law for adult cellphone use from a secondary to a primary offense.

"I don't like the government being in all aspects of our business," said Senate Minority Leader Mike Hewitt, R-Walla Walla.

"The libertarian in me comes out with these types of issues," said Rep. Dan Roach, R-Bonney Lake, who offered the amendment that changed the Senate bill.

For legislation to go to Gov. Chris Gregoire, the House and Senate will now need to reach agreement.

Since July 2008, using a handheld device while driving has been a secondary offense, meaning police must see another violation before making the traffic stop and writing a ticket for the cellphone violation.

Sen. Tracey Eide, D-Federal Way, has been working for 10 years to get Washington motorists to put down their phones. She was not happy with the change by the House, which was made in part because House Republicans and some Democrats refused to support the original bill — which had managed to grab a few conservative votes in the Senate, where it passed 33-15.

"That is unreasonable and uncalled for," said Eide about the lack of support from House Republicans. "People need to wake up. I'm disappointed in the House of Representatives at this time."

Eide said Wednesday evening she was not sure what position she would take on the amended version.

House Democrats and Republicans said it was a happy medium.

"It's a good compromise," said Roach. "It's not a Democrat and Republican issue. It's a personal-choice issue."

Roach said his colleagues found the Senate bill vague. He noted that the measure would have made it illegal to hold the phone to your ear but that holding it 10 inches from your face would be fine.

Just as it is now, it would be legal for adults to use a hands-free device.

Nationally, the debate is heating up over whether there is much difference between holding a cellphone and using a Bluetooth — or whether the focus should be on the bigger issue of distracted driving.

In 2009 the State Patrol caught 5,141 drivers using their handheld cellphone when they were stopped for other offenses. Of those drivers, 1,607 were given a ticket for the violation, and the rest received a warning in addition to a fine for their primary infraction.

Sgt. Freddy Williams of the State Patrol said that often troopers don't like to hit a driver with two tickets during one stop.

A new study by Pemco Insurance suggests that Washington motorists have largely ignored the state's current ban. The poll shows that 41 percent of drivers admit to using their cellphone while behind the wheel.

That is more than double the 17 percent of Washingtonians who fessed up when Pemco asked the same question in 2007.

Those who say they text while driving shot from 3 percent to 20 percent. The poll also reveals that hands-free use has doubled.

Other states that ban handhelds and texting have seen declines in the numbers of drivers using the devices, according to the Insurance Institute for Highway Safety.

Immediately after New York made it a secondary offense in 2001, nearly half of its drivers put down their phones, the institute reports. Seven years later the number of New York motorists using handheld cellphones was 24 percent lower than would have been expected without the law.

Connecticut, which made it a primary offense, has seen much more compliance; handheld-cellphone usage by drivers there is 65 percent lower.

Support for these laws has been fueled by the general notion that chatting and texting on the cellphone while driving increases the risk of crashing. Oprah Winfrey has launched a crusade against the practice, dubbing it "America's New Deadly Obsession," and is asking her audience, staff and guests to sign a pledge to make their cars a "No Phone Zone."

Last year the National Safety Council called for lawmakers to ban the use of cellphones — including the hands-free kind — by drivers, citing the statistic that the risk of being in an auto accident grows fourfold when the driver is using a cellphone.

There is no shortage of studies that speak to this danger. The University of Utah has likened it to drunken driving. The Harvard Center for Risk Analysis was less dramatic about it but agreed that the increased risk is there.

However, a study by the Highway Loss Data Institute of jurisdictions with the bans and those without found that there was not a decrease in auto accidents after anti-cellphone laws went into effect.

"There is a lot of reasons why people get distracted," said state Sen. Joe Zarelli, R-Ridgefield. The senator voted against the bill, he said, because law enforcement already has the ability to stop people who are driving recklessly, whether it is because they are talking on their phone or eating lunch.

"Distracted driving is a contributory factor in many of our collisions," Williams of the State Patrol said in support of making cellphone use a primary offense. "Anything that the Washington State Patrol can do to reduce the number of collisions we are in favor of."

Lillian Tucker: 360-236-8266 or ltucker@seattletimes.com

Washington State Lawsuit Over Traffic Camera Tickets Dismissed (04/01/10)

Thu, 01 Apr 2010 00:00:00 -0400

The following news article was written by staff reporter Emily Heffter for the Seattle Times. To view the original article, please visit: http://seattletimes.nwsource.com/html/localnews/2011249700_cameras04m.html.

Cities are using red-light cameras legally in Washington, and drivers caught by them are not being overcharged, a federal judge has ruled.

U.S. District Court Judge John Coughenour this week rejected the claims of a group of plaintiffs who filed a class-action suit last June. They said drivers were paying millions of dollars more than they should as cities sought to make the cameras a moneymaking venture. Cities fine drivers caught by the cameras between $101 and $124, according to the lawsuit.

The group also claimed cities entered into illegal deals with two companies that review photos of cars and pick out drivers violating the law.

Seattle and other cities say the cameras improve public safety because they deter drivers from running lights at intersections.

Coughenour on Tuesday dismissed the claim against 18 cities, including Seattle, Tacoma and Bellevue and Redflex Traffic Systems and American Traffic Solutions.

Rob Williamson, an attorney for the plaintiffs — people who had been ticketed — said Wednesday he will appeal the ruling this week.

"I was disappointed," Williamson said. "I think that on the most critical issue, which is that the fines are excessive, (the judge) really didn't pay attention to or analyze the legislative history."

Cities have taken in millions in fines since 2005, when the Legislature OK'd the cameras.

Seattle put up six cameras at four intersections in 2006. Now there are more than 30. In the first three years of operation, Seattle's cameras led to $5 million in fines collected from 58,000 drivers, according to city data.

State law says drivers can be fined only as much as they could be for a parking ticket, but some cities were fining drivers as much as if they had been caught by a police officer. In Seattle, drivers are fined $124.

Cities argued they were within the range of fines charged for parking tickets. While run-of-the-mill parking tickets cost between $25 and $40, the fine in Seattle for parking in a disabled space without a permit was $250.

The judge agreed with the cities.

"The Code does not require a traffic-camera infraction to be treated like a parking infraction in every single respect," Coughenour wrote in his order.

In many cases, cities don't have to pay the companies until the amount they collect in fines covers the cost of the services. That way, cities never lose money on a contract.

The plaintiffs argued that provided an unfair incentive for the companies to find people running lights. But the judge ruled that the contracts with those companies were legal because the amount collected in fines affected when the companies were paid, not how much.

The cities named in the lawsuit were: Auburn, Bellevue, Bonney Lake, Bremerton, Burien, Federal Way, Fife, Issaquah, Lacey in Thurston County, Lake Forest Park, Lakewood, Lynnwood, Puyallup, Renton, SeaTac, Seattle, Spokane and Tacoma.

R.C.W. 46.61.210: Washington State's Move-Over Law Amended (06/20/10)

Sun, 20 Jun 2010 00:00:00 -0400

The Washington State Legislature has amended R.C.W. 46.61.210 (i.e., operation of vehicles on approach of emergency vehicles) to read the following, in part:

The driver of any motor vehicle, upon approaching a stationary authorized emergency vehicle that is making use of audible and/or visual signals or of a police vehicle properly and lawfully displaying a flashing, blinking, or alternating emergency light or lights, shall:

(1) On a highway having at least four lanes, at least two of which are intended for traffic proceeding in the same direction as the approcahing vehicle, proceed with caution and, if reasonable, with due regard for safety and traffic conditions, yield the right-of-way by making a lane change or moving away from the lane or shoulder occupied by the stationary authorized emergency vehicle or police vehicle; or

(2) If changing lanes or moving away would be unreasonable or unsafe, proceed with due caution and reduce the speed of the vehicle.

The penalty for violating this new law is $101.00.

A Day Without Collisions: Drive Nice Day in Washington State (05/27/10)

Thu, 27 May 2010 00:00:00 -0400

The Law Offices of Michael L. Jacobs attorneys and staff believe that every day should be a "Drive Nice Day" in Washington and encourage all drivers to exercise the utmost care and regard when operating any vehicle.

The following Seattle Times news article was written by Seattle Times staff columnist Jerry Large (http://seattletimes.nwsource.com/html/jerrylarge/2011938597_jdl24.html):

Thursday (05/27/10) is Drive Nice Day in Washington.

The name is cute, but the goal is to avoid the bitter tragedies that can come when people don't drive with awareness, courtesy and consideration. In 2009, 492 people died as a result of collisions on public roads in Washington state, and thousands were injured. We can do better. "There are no accidents," the Drive Nice website says. In 80 percent of collisions and near collisions, inattention is a factor.

This year the focus of Drive Nice Day is on teenage drivers and on cellphone use by teen and adult drivers. Traffic fatalities have declined for years. It would be a shame to let cellphone use move us backward. June 10 a new state law will make it a primary offense to talk on a cellphone while driving if you are holding the phone. No one can fully concentrate on driving and deal with a phone at the same time. Attention goes back and forth and it takes only a fraction of a second for a crash to happen.

Texting while driving will also be illegal. Pitiful that we needed a law to tell us that's not a good idea.You wouldn't read a book or knit while driving, would you? That line comes from a video made by some students at Newport High School. They're competing with teens from several area high schools for best public-service announcement about driving. Each year, there's a Puget Sound-area safe-driving competition for teens. Each year, the competition's judges watch drivers in Tacoma and Seattle and decide which city has the best drivers. This year judges will also rate young people arriving at a couple of high schools.

Safe driving is about good habits, which is why there is such an emphasis on young people in the fifth year of Drive Nice Day. Arthur Van Dyke is an instructor and driver-training manager for Swerve, a regional driving school that got the day started, along with the Washington State Patrol, the Department of Licensing and the state Traffic Safety Commission.

"Sometimes adult drivers have formed more bad habits," he said. "What's nice with teenagers is that they are just forming habits, and we can build good ones." He tells his young students to get in the habit of turning the phone off when they get into their cars. He said friends should offer to take the phone from a driver who's talking or texting: Let me help you with that.

Van Dyke cautions all drivers against following too closely. It's easy for drivers to keep shrinking the distance they feel comfortable with, but it doesn't feel good if you're the one being tailgated, and it's dangerous. Also, he said, think about smoothness, slowing and speeding up gradually. "It's more predictable to other drivers, you get better gas mileage and passengers will appreciate the smoother ride." Van Dyke said, "How you control your car tells people about you." What statement do you make about yourself behind the wheel? "I hope that everyone looks at this day and is open to improving their driving," he said. "Think about driving as a life skill and try to improve it."

There are driving tips and other information at driveniceday.org, where you can also watch student videos.

Be nice. You might save a life.

Washington State Cellphone Law Promotes Roadway Safety (07/05/10)

Mon, 05 Jul 2010 00:00:00 -0400

Under Washington State's new cellphone law, motorists caught using a cellphone (i.e., holding a phone to their ear or texting) while driving will be issued a $124 ticket. Officials state the law operates to promote highway and roadway safety. The following Seattle Times news article regarding the law was written by Seattle Times staff reporter Carly Flandro (http://seattletimes.nwsource.com/html/localnews/2012079811_cellphonelaw11m.html):

As she chatted on her cellphone Thursday morning, a woman driving a Prius on a Highway 520 onramp looked over at the car next to her, then did a double take — it was a Washington State Patrol trooper. She quickly hung up, but it was too late.

She became the first offender Trooper Michael Conroy ticketed under the state's new cellphone law.

The law, which makes it a primary offense to use a handheld cellphone to talk or text while driving, took effect Thursday. Drivers caught holding a phone to their ear or with their fingers on the keys can be fined $124, though violations will not become part of a person's driving record. The law also bans all cellphone use for those with instructional permits and for drivers younger than 18.

Washington joins five other states in making such distracted driving a primary offense. Conroy hopes the change will make roads and highways safer. "Ideally, it will reduce the amount of collisions," he said. Conroy said troopers weren't given any special instructions to look for cellphone-holding drivers Thursday morning, but they were reminded in a morning e-mail that the law had taken effect.

Seattle police officers also weren't told specifically to look for violators. "There's no special effort; it's just routine," said Seattle Police Detective Renee Witt, adding that officers can cite offenders they happen to see. Neither agency tallied official numbers Thursday to say how many cellphone offenders they'd cited.

Previously, talking on a cellphone or texting while driving was a secondary offense, so officers could only ticket people if they also violated another traffic law, such as speeding or failing to use turn signals. "People used to just look at me and keep talking as they drove by because they knew I couldn't pull them over," Conroy said. In the past few weeks, he said, he's noticed more people have been throwing their phones down or hanging up when they see him. He said a drifting car is the most obvious sign of a multi-tasking driver.

The last time Conroy pulled over a driver for talking on a phone as a secondary offense, he followed her for two miles and saw her change lanes twice and drift off the road twice. When he stopped her, she told Conroy she hadn't been aware he was behind her. Conroy searched for phone-holding offenders for more than an hour Thursday morning, but more people were holding coffee cups than cellphones. Most people talking on the phone were wearing headsets, which likely will become more popular now that the law has changed.

Phone retailers such as Radio Shack and Verizon Wireless have already noted increased sales for hands-free phone options throughout the state. "There has been a lot of increase, more conversation and certainly more sales," said Scott Charlston, public-relations manager for Verizon Wireless. According to a recent survey released by Car Toys, a car-audio-and-wireless-electronics retailer, 24 percent of the 634 people polled will continue using handheld cellphones and take their chances at getting a ticket. More than 80 percent of responders admitted to driving with a phone in hand before Thursday's law took effect.

The distractions don't stop at cellphones, though. Drivers admitted to applying makeup, changing clothes and shaving while driving. Conroy said patrollers can't ticket people for putting on lipstick or trimming their beards behind the wheel unless they violate a traffic law.

Conroy sat in his vehicle Thursday morning after pulling over the Prius and wrote a ticket for the first time under the new law. Though he can choose to give warnings rather than citations, Conroy said, he won't.

"Now she'll tell her friends," he said about the driver. "Word travels faster when people are cited."

Carly Flandro: 206-579-3013 or cflandro@seattletimes.com

King County Jury Awards $30M to Man Paralyzed in I-405 Accident (10/20/10)

Wed, 20 Oct 2010 00:00:00 -0400

The following news article was written by staff reporter Jennifer Sullivan for The Seattle Times. To view the original article, please visit: http://seattletimes.nwsource.com/html/localnews/2013204780_verdict20m.html.

A King County jury has awarded $30 million to a man who was left paralyzed after his car was struck by a pickup on an Interstate 405 onramp.

Koti Hu sued the owner of the truck as well as the state Department of Transportation (DOT) over the design of the onramp after the July 28, 2007, crash. His father said on Tuesday that the jury award will pay for a lifetime of care.

"He's still in a lot of pain. He's paralyzed from the chest down," said Yalung Hu.

Since the crash, Koti Hu, 30, has moved home to be cared for by his parents, his father said.

Hu's vehicle was rear-ended by a private painting truck while waiting at the metering light at the Northeast 70th Street onramp to Northbound I-405, according to KING-TV.

Yalung Hu said that his son's legal team argued that the design of the onramp was flawed, leading to the accident. "The evidence was just very strong," Yalung Hu said.

Michael McKinstry, Hu's lawyer, told KING-TV the suit focused on the poor design of the metered onramp. The stop line is in shadows and is visible to drivers only after coming around a 180-degree curve, KING reported.

The jury found the company that owns the truck was 60 percent responsible for the accident, with the DOT responsible for the remaining $12 million, KING reported.

DOT spokesman Steve Pierce said that an appeal is likely.

"It was an unfortunate incident," Pierce said. "With all due respect to the jury, we strongly object to the finding."

Since the crash, Koti Hu started a website to document "my life as I grapple, struggle, succeed and fail in my life and journey." On the site he explains that he was struck by a pickup traveling at 60 mph while he was "at a standstill."

"My neck was broken by severe whiplash in the force of the collision, and my spinal cord badly damaged," the website said.

Before the crash, Hu lived on his own and was a musician who played guitar, violin and other instruments. He regularly performed with his family's church, his father said.

"Now, I live my life in a wheelchair, I can't use my fingers, and I can't walk," Hu's website said. Hu said on the site that he has recently returned to college and still works closely with his church.

Red-Light Camera Restrictions Proposed in Washington State (02/07/11)

Mon, 07 Feb 2011 00:00:00 -0500

The following news article was written by Associated Press writer Curt Woodward and was published by The Seattle Times on February 1, 2011. To view the original article, please visit: http://seattletimes.nwsource.com/html/localnews/2014101607_redlights02.html.

OLYMPIA — Washington lawmakers are wading into a growing debate over the use of cameras to ticket speeders and people who run red lights.

Last week, initiative promoter Tim Eyman and local activists filed initiatives in Bellingham, Longview, Monroe and Wenatchee that would limit ticket prices and require public votes before new cameras are installed. That follows Eyman's successful campaign in Mukilteo last fall to pass a similar initiative restricting traffic-enforcement cameras.

Traffic enforcement cameras are currently allowed at arterial intersections, railroad crossings and school speed zones, along with some pilot projects.

Camera opponents say the devices can be turned into a cash cow for governments, with fines of $100 or higher depending on the city and the violation. At a House Transportation Committee hearing on the bills Tuesday, Eyman said voter opposition to camera enforcement will eventually lead to a statewide voter-initiative ban if lawmakers don't make changes.

"Once the city gets hooked on the money, they have every incentive to maximize the number of violators," Eyman told the House Transportation Committee on Tuesday. "Having a profit motive for the government to have lawbreakers incentivizes the government to create lawbreakers."

Supporters, however, argue that traffic cameras have clearly improved safety. Bolstering that argument was a new study by the Insurance Institute for Highway Safety concluding that red-light cameras have reduced the rate of fatal crashes by 24 percent in 14 large cities that introduced them between 1996 and 2004, saving dozens of lives.

Rep. Chris Hurst, D-Enumclaw, is sponsoring legislation that would put local red-light camera projects up for public votes before installing them. Hurst also wants to change how fines are distributed and put limits on payments to camera vendors.

A separate bill by Rep. Connie Ladenburg, D-Tacoma, would expand the use of cameras to catch speeders near transit stations, public parks or recreation facilities. But her bill also would limit the use of cameras to catch speeders outside of school hours or target drivers making right turns. Ladenburg's bill also would require local officials to conduct studies before installing traffic cameras and issue annual reports about their performance once installed.

Both lawmakers want to adopt standard yellow-light timing at traffic lights.

R.C.W. Ch. 74.34: Protecting Vulnerable Adults from Abuse (02/15/11)

Tue, 15 Feb 2011 00:00:00 -0500

The following article was written by attorney Roger J. Leslie and was published in the February 2011 edition of Trial News (Volume 46, No. 6):

Washington State legislators enacted the Abuse of Vulnerable Adults Statute (VAS) (R.C.W. 74.34.005 et seq.) to protect elderly and disabled residents of nursing homes and other health care facilities. The statute helps counteract a power imbalance between helpless elderly residents and powerful corporate nursing homes. The statute provides for quick action by Washington courts and by the Washington Department of Social and Health Services (DSHS) in response to complaints from interested persons regarding the safety of a vulnerable adult.

In addition to the criminal and administrative protections for vulnerable adults, the statute provides for civil actions for damages based on the neglect, abandonment, abuse, or financial exploitation of vulnerable persons. R.C.W. 74.34.200. The Legislature included a requirement for attorneys' fees and costs to a prevailing plaintiff as added incentive for plaintiffs' attorneys to pursue damages on behalf of people in the last years of their lives. The following discussion is focused on civil claims for damages available under the VAS.

A vulnerable adult is a resident in a DSHS licensed facility or a person who receives home health care from DSHS licensed individuals. "Facilities" are nursing homes, boarding homes, adult family homes, soldiers' homes, residential habilitation centers, and any other facility licensed by DSHS. A vulnerable adult must meet one or any of the criteria that follow:

(1) 60 years of age or older who has the functional, mental, or physical inability to care for himself or herself; or

(2) Found incapacitated under R.C.W. 11.88 (the guardianship statute); or

(3) Who is developmentally disabled under R.C.W. 71A.10.020; or

(4) Admitted to any DSHS licensed facility; or

(5) Receiving services from home health, hospice, or home care agencies licensed or required to be licensed under chapter 70.127 R.C.W.; or

(6) Receiving services from an individual provider who is under contract by DSHS under R.C.W. 74.09 or 74.39A (medical assistance statutes).

Under the statute, some of the terms have technical meanings. An "individual provider" is defined as someone under contract to DSHS to provide care in the home. A "facility" is defined as one of the healthcare entities licensed by DSHS.

The civil action survives the death of a vulnerable adult. R.C.W. 74.34.210. The executor or administrator of the deceased's estate may recover all damages for the benefit of the deceased person's statutory beneficiaries under R.C.W. 4.20.020 or, if there are no statutory beneficiaries, economic damages may be recovered for the deceased person's estate.

At first blush, the word "abuse" implies an overt physical act, but under the Abuse of Vulnerable Adults Statute, simple neglect that causes injuries, pain and suffering, and loss of property is actionable. Abandonment, abuse, financial exploitation, and neglect are all bases for a lawsuit. Neglect is the most commonly employed basis for a lawsuit, but where there is neglect there is often an abandonment claim. A nursing home that neglects to provide adequate nutrition or health care to a vulnerable adult is liable under the statute for abandonment as well for leaving "...the person without the means or ability to obtain necessary food, clothing, shelter, or health care." These terms are defined in R.C.W. 74.34.020.

Neglect under the statute has two alternative definitions. First, neglect is a "pattern of conduct or inaction by a person or entity with a duty of care that fails to provide the goods and services that maintain physical or mental health of a vulnerable adult, or that fails to avoid or prevent physical or mental harm or pain to a vulnerable adult." Or second, neglect is "an act or omission that demonstrates a serious disregard of consequences of such a magnitude as to constitute a clear and present danger to the vulnerable adult's health, welfare, or safety."

Under the first definition of neglect, the plaintiff must prove that the defendant engaged in a pattern of conduct or inaction. The statute does not define what establishes a pattern and over what time course the conduct or inaction must occur. Courts generally define these terms liberally to be consistent with the intent of the legislature. Warner v. Regent Assisted Living, 132 Wn.App. 126 (Div. I, 2006). Analogous provisions in criminal statutes define a pattern of conduct as a "series of acts over a period of time, however short" R.C.W. 10.14.020 (harassment statute) or "two or more actions or incidents closely related in time." Ohio R.C. 2903.211 (stalking statute). The language that describes the conduct that triggers a VAS claim closely tracks the language of state and federal statutes regulating nursing home care.

Defendant nursing homes may assert that a plaintiff has a high burden of proof under the VAS and that the VAS claim is susceptible to dismissal on summary judgment. This position is contrary to the decisions in Conrad and Warner that were influenced by the primary legislative intent behind the statute, which was to protect vulnerable adults.

Proving a pattern of conduct or inaction is not usually difficult in nursing home cases. Most nursing home cases will result from multiple acts or omissions. A resident does not develop a stage 4 decubitus ulcer, become dehydrated or malnourished, or die of an intestinal blockage without multiple opportunities for the nursing home staff to observe and correct the problem. Each day, a resident is cared for by three shifts of nurses and nursing assistants. The resident who continues to be dehydrated or malnourished is neglected three times a day, which establishes a pattern of conduct or inaction. Defendants may argue or imply that the pattern of conduct or inaction requires proof of general conduct in the facility. Under the plain language of the statute, the pattern of conduct or inaction applies to care provided to a "vulnerable adult" and does not require proof of a generalized facility-wide pattern of conduct.

The second type of neglect involves an act or omission that constitutes a clear and present danger to the vulnerable adult. Usually, a finding of an act or omission by a person with a duty of care for a dependent person that creates a clear and present danger to the vulnerable adult will fulfill the "serious disregard of consequences" element of the statutory neglect. A caregiver who left several vulnerable adults completely unattended while he went to a store to get headache medication met the statutory neglect definition. Kabbae v. DSHS, 144 Wn.App. 432 (Div. I, 2008).

Neglect under the VAS is not the same as the common law tort of negligence. Conrad v. Alderwood Manor, 119 Wn.App. 275 (Div. III, 2003). 93-year-old Enid Conrad suffered a fractured leg and a fractured neck while recovering from a stroke at Alderwood Manor. A jury returned a verdict against Alderwood for neglect under the VAS and also for negligence. The verdict was in excess of $4 million. On appeal, the Division III Court held that whether a plaintiff may recover for both common law negligence and for VAS statutory neglect is a question for the jury. Id. at 291.

It is generally more difficult for a plaintiff to prevail in a medical negligence claim than in a claim against a nursing home corporation that has created a danger to residents by under staffing the facility and by under training the staff. In practice, I rarely bring a lawsuit against a nurse or doctor where they are agents for a corporate nursing home. A jury or judge is usually more receptive to a complaint of neglect caused by corporate greed rather than a complaint that a doctor or nurse was negligent.

A nursing home case does not necessarily need expert testimony. Warner v. Regent Assisted Living, 132 Wn.App. 126 (Div. I, 2006). In Warner, the Division I court concluded that the jury would know from common experience that a resident who repeatedly was left in a soiled bed had experienced pain and suffering as a result. Mr. Warner was so humiliated by his condition that he did not want his daughter to clean up the mess for him. Cases of humiliation may not have great case value; however, the Warner case is the type that benefits most from the VAS requirement for attorneys fees and costs.

The legislative findings in the statute describe that a vulnerable adult may be subjected to neglect by a family member, care provider, or other person who has a relationship with the vulnerable adult." R.C.W. 74.34.005. However, the civil cause of action for damages under the VAS is limited to defendants who are entities licensed by DSHS, employees of the entity, or an individual contracted by DSHS:

This action shall be available where the defendant is or was a corporation, trust, unincorporated association, partnership, administrator, employee, agent, officer, partner, or director of a facility, or of a home health, hospice, or home care agency licensed or required to be licensed under chapter 70.127 R.C.W., as now or subsequently designated, or an individual provider. R.C.W. 74.34.200(1)(a).

Under the statute, a family physician who gives negligent advice in response to a telephone call from a nursing home regarding a resident, is not subject to civil damages under the VAS. R.C.W. 74.34.200. The physician is licensed by the Department of Health and, unless he is under contract with DSHS, he is not included as a possible defendant in a VAS case.

A closer question arises when a medical director for a nursing home provides negligent care. Medical directors may characterize themselves as independent contractors but they often satisfy the factors that prove either actual or apparent agency. Adamski v. Tacoma General Hosp., 20 Wn.App. 98 (Div. II, 1978). The consideration from Adamski that is most relevant to medical directors is that they provide an inherent function of the nursing home. The State Administrative Code mandates that a nursing home must designate a physician to serve as medical director and he or she is responsible for implementation of resident care policies and the coordination of medical care. W.A.C. 388-97-1700. A nursing home will have a difficult time arguing that a titled member of their staff is not their agent. The agent status makes the nursing home subject to a civil claim under the VAS under the theory of respondeat superior for the actions of its medical director. You will generally find the medical director listed prominently on the nursing home's website.

A prevailing plaintiff is entitled to actual damages and attorney's fee and costs. The provision for attorney's fee and costs is important in light of the often limited economic damages for the injury or death of a person in their last years or months of life. High judgments are not unheard of in elder care cases (See Conrad v. Alderwood Manor, 119 Wn. App. 275 (2003)); however, generally large plaintiffs' verdicts are rare. The provision for attorney's fee and costs is added incentive for plaintiff's attorneys to take elder cases.

In the coming years, we can anticipate that corporate interests will make unending efforts to undercut the civil justice system, including those corporations that profit from ownership of nursing home facilities nationwide. The VAS gives vulnerable residents of nursing homes and their families power to demand competent care from the unresponsive corporate owners. The VAS must be maintained because it is the best protection the elderly have against the corporate business model that places profits before patients. Despite the legal fiction that corporations are individuals, corporations are not human. They are not humane.

Enforceability of Liability Waivers in Washington State (06/16/11)

Thu, 16 Jun 2011 00:00:00 -0400

There are various times in our lives when we are required to sign an agreement (e.g., a gym membership, rental contract for equipment, etc.) which purports to release the party providing the service from all future negligence claims for injuries sustained by the signing party during the course of service. Sometimes these agreements are called liability waivers; other times they are referred to as releases for liability or hold harmless agreements.

Because Washington case law holds that private parties are afforded freedom to contract, many times these agreements are enforced in court in essentially exculpating a negligent party of its own wrongdoing against the injured party. However, there is also applicable Washington case law that helps the injured party invalidate such exculpatory clauses. Provided below are examples of state laws and cases which help injured parties effectively void liability waiver agreements:

The function of a waiver provision is to deny an injured party the right to recover damages from the negligent party causing the injury. Johnson v. UBAR, L.L.C., 150 Wn.App. 533, 537-38, 210 P.2d 1021, 1023 (2009). The general rule in Washington is that a liability waiver is unenforceable if (1) it violates public policy, (2) the negligent act falls greatly below the legal standard for protection of others, or (3) it is inconspicuous. Id. at 538. All three of these conditions are further discussed below.

(1) Public Policy

Exculpatory clauses in liability waivers are invalid if they violate a public policy interest of this state. Shields v. Sta-Fit, Inc., 79 Wn.App. 584, 585, 903 P.2d 525, 526 (1995). An agreement that has a tendency to be against the public good, or to be injurious to the public, violates public policy. Scott v. Cingular Wireless, 160 Wn.2d 843, 851, 161 P.3d 1000, 1005 (2007). Contract provisions that exculpate the author for wrongdoing undermine the public good. Id. at 854, 161 P.3d at 1006. Furthermore, “[c]ontracts against liability for negligence are not favored by law” and are strictly construed against parties relying thereon. Glant v. Lloyd’s Register of Shipping, 141 Wn. 253, 262, 251 P. 274, 277 (1926) (emphasis added). Courts are therefore reluctant to allow those charged with a public duty, which includes the obligation to use reasonable care, to rid themselves of that obligation by contract. Wagenblast v. Odessa Sch. Dist., 110 Wn.2d 845, 849, 758 P.2d 968, 970 (1988).

In Wagenblast v. Odessa School District, the Washington Supreme Court held that conditioning participation in public school interscholastic athletics on the students and their parents releasing the school district from all potential future negligence claims violated public policy. Id. at 856, 758 P.2d at 973. The Wagenblast court set out a series of six non-exclusive factors in determining whether a liability waiver violates public policy. Id. at 851-52, 758 P.2d at 971. Under Wagenblast, the enforceability of a release depends on whether: (1) the agreement concerns an endeavor of a type thought suitable for public regulation; (2) the party seeking to enforce the release is engaged in performing an important public service, often one of practical necessity; (3) the party provides the service to any member of the public, or to any member falling within established standards; (4) the party seeking to invoke the waiver has control over the person or property of the party seeking the service; (5) there is a decisive inequality of bargaining power between the parties; and (6) the release is a standardized adhesion contract. Id. (emphasis added). The first four Wagenblast factors address the substance of the exculpatory clause, while the last two factors concern the procedural fairness of the release. Chauvlier v. Booth Creek Ski Holdings, Inc., 109 Wn.App. 334, 343, 35 P.3d 383, 387 (2001). “[T]he more of the foregoing six characteristics that appear in a given exculpatory agreement case, the more likely the agreement is to be declared invalid on public policy grounds.” Id. (quoting Wagenblast at 852, 758 P.2d at 971).

There is a common characteristic shared in cases in which exculpatory clauses in waiver provisions have been found to be void as against public policy. Shields, 79 Wn.App. 589, 903 P.2d at 528. That common characteristic is that they are all important public services – hospitals, housing, public utilities, and public education. Id. (emphasis added). In fact, the Washington Supreme Court has noted that “a survey of cases assessing exculpatory clauses reveals that the common determinative factor for Washington courts has been the services’ or activities’ importance to the public.” Wagenblast at 344, 35 P.3d at 388 (citing Vodopest v. MacGregor, 128 Wn.2d 840, 858, 913 P.2d 779, 788 (1996).

(2) Negligent Act Falls Greatly Below Legal Standard

A party may not exempt itself from liability for its own negligence if its negligent act falls greatly below the standard established by law for the protection of others against unreasonable risk of harm. McCutcheon v. United Homes Corp., 79 Wn.2d 443, 447, 486 P.2d 1093, 1095 (1971). Courts are reluctant to allow those charged with a public duty, which includes the obligation to use reasonable care, to rid themselves of that obligation by contract. Wagenblast v. Odessa Sch. Dist., 110 Wn.2d 845, 849, 758 P.2d 968, 970 (1988).

In McCutcheon v. United Homes Corp., the Washington Supreme Court struck down as being against public policy a disclaimer of liability agreement which purported to relieve a lessor of a multi-family dwelling complex, and his agents, from all liability resulting from their own negligence in maintaining the common passageways, stairs, and other areas of the premises under their dominion and control but available for the tenants’ use. Id. at 450, 486 P.2d at 1097. The plaintiffs in McCutcheon were month-to-month tenants of the building who were injured as a result of the condition of negligently maintained stairways. Id. Basic to the entire discussion is the common law rule that a lessor has an affirmative obligation and duty to exercise reasonable care to inspect and repair premises defects for protection of the lessee. Id. The Washington Supreme Court in McCutcheon made the following public policy statement in its decision:

[A] clause which exculpates the lessor from liability to its lessee, for personal injuries caused by lessor’s own acts of negligence, not only lowers the standard imposed by the common law, it effectively destroys the landlord’s affirmative obligation and duty to keep or maintain the ‘common areas’ in a reasonably safe condition for the tenant’s use.

Id. at 447, 486 P.2d at 1096.

(3) Inconspicuousness of Waiver

The general rule in Washington is that a waiver provision is unenforceable if it is inconspicuous. Johnson v. UBAR, L.L.C., 150 Wn.App. 533, 538, 210 P.2d 1021, 1023 (2009). Exculpatory clauses contained in liability waivers are strictly construed under Washington law and are unenforceable if their language is insufficiently clear. Chauvlier v. Booth Creek Ski Holdings, Inc., 109 Wn.App. 334, 339-40, 35 P.3d 383, 385 (2001). A court determines the sufficiency of the language contained in an exculpatory clause as a matter of law. Id. at 340, 35 P.3d at 386. A liability waiver will not be upheld if the releasing language is so inconspicuous that reasonable persons could reach different conclusions as to whether the document was unwittingly signed. Id. at 341, 35 P.3d at 386. Factors in deciding whether a waiver and release provision is conspicuous or inconspicuous include: (1) whether the waiver is set apart or hidden within other provisions, (2) whether the heading is clear, (3) whether the waiver is set off in capital letters or in bold type, (4) whether there is a signature line below the waiver provision, (5) what the language says above the signature line, and (6) whether it is clear that the signature is related to the waiver. Johnson, 150 Wn.App. at 538, 210 P.2d at 1023 (citing Baker v. City of Seattle, 79 Wn.2d 198, 484 P.2d 405 (1971)).

In Baker v. City of Seattle, the Washington Supreme Court invalidated a disclaimer inconspicuously placed in the middle of a golf rental agreement. 79 Wn.2d at 202, 484 P.2d at 407. The releasing language at issue in Baker was in the middle of a paragraph in exactly the same print as the rest of the rental agreement. Id. at 199-200, 484 P.2d at 406. The Court stated the following in holding that the disclaimer clause in the rental agreement was void:

[T]he disclaimer was contained in the middle of the agreement and was not conspicuous. To allow the respondent to completely exclude himself from liability by such an inconspicuous disclaimer, would truly be unconscionable.

Id. at 202, 484 P.2d at 407.

How Our Firm Deals With Low Insurance Company Offers (10/12/11)

Wed, 12 Oct 2011 00:00:00 -0400

Many of the nationally known insurance companies are using a formulaic approach to evaluating personal injury claims. They arrive at a very low dollar amount and will not increase their offer even in the face of higher court-ordered arbitration awards to the injured party. When the insurance company appeals an arbitration award to superior court and fails to secure a more favorable result from a jury, they're required to pay attorneys' fees and costs.

Our firm has achieved success in multiple cases where the insurance company has appealed. By way of example, in one case the insurer could have settled the case for $26,040.16; however, they ended up writing a check for $84,436.75 to satisfy the judgment after an unsuccessful appeal. In another case, the same insurer could have paid the arbitration award of $24,126.40, but was required to pay $74,114.84 to satisfy the jury verdict. In a third case, the same insurer appealed a $19,145.00 arbitration award and was required to write a check for $52,598.18 to satisfy the jury verdict.

Our firm has a track record and reputation of fighting insurance companies who refuse to fairly compensate victims of negligence for their injuries and damages.

Sincerely,

Michael L. Jacobs, Esq.

Jeffery M. Jacobs, Esq.