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Decision reached in Albright vs. TriMet

Posted by on November 9th, 2006 at 1:09 pm

[Partly Randy's fault.]

Gregory Zeuthen, the arbitrator brought in to decide the case between Randy Albright and TriMet has come to a decision.

He finds both parties negligent in the infamous events that transpired on January 22, 2004.

Here are key excerpts from the official memo Zeuthen just faxed to the attorneys in the case (hat tip to the Mercury, here’s a PDF of the memo):

I find both TriMet and Plaintiff were at fault for causing Plaintiff’s injuries. Mr. Cooper was negligent because he encouraged the unidentified assailant to leave the bus to confront Plaintiff. One witness overheard the assailant tell Mr. Cooper to “let me off I will take care of this…” In response, Mr. Cooper replied “yeah, go ahead I can’t do anything but you can.” TriMet procedures dictated that Mr. Cooper should have activated an emergency button under these circumstances, which he failed to do. In fact, Mr. Cooper did not notify dispatch until much later.

TriMet suggests that Mr. Cooper acted reasonably by allowing the assailant off the bus. However, this policy does not insulate TriMet from responsibility in this instance…Mr. Cooper had other options, including keeping quiet when first approached by the assailant, notifying the police, notifying his dispatcher and keeping the bus door closed.

Plaintiff (Albright) was negligent because he unlawfully stepped into traffic to block the bus in his unsuccessful effort to talk to Mr. Cooper. Plaintiff already had the information he needed to file his complaint. Plaintiff admitted under cross examination that he acted impulsively by stepping in front of the bus.

TriMet and Mr. Albright are equally responsible for Plaintiff’s subsequent injuries. I award the sum of $500.00 for general damages. The parties stipulated to the economic damages of $702.00. The total damages are $1,202.00, reduced by 50 percent for Plaintiff’s comparative fault. My judgment, therefore, is for Plaintiff for $601.00.”

For the complete memo, download the PDF.

So Randy, got any plans for your windfall? How about some seed money for a bicyclists legal defense fund ;-)?

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  • SKiDmark November 9, 2006 at 2:12 pm

    Windfall? Seems like he’s $101.00 in the hole. This is why you have to sue for such crazy amounts of money, because in the end you get about 1/100th of what you sue for.

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  • pdxrocket November 9, 2006 at 2:26 pm

    Both were at fault, and Randy should have went home and realized he was just as much to blame and never put it to the courts.

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  • Jonathan Maus November 9, 2006 at 2:58 pm

    The Oregonian is covering this story with a headline that reads,

    “Arbitrator rules against bike commuter”

    What’s up with that?

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  • McWorthy November 9, 2006 at 3:08 pm

    This case illustrates three stupid decisions. It also smacks of self promotion.

    A) The tri-met driver should have followed trimet policy and hit the panic button. He probably should have called the cops in the first place.

    B) The red neck should have stayed on the bus. He should have been arrested for assault.

    C) The cyclist should have been assertive of his rights by getting the bus number and filing a complaint or at least catching the bus at the next stop and voicing his concerns about the drivers’ abilities.

    To be honest, I find the whole law suite to be much more egregious than the incident with the bus. Makes cyclists look like a bunch of whiners who get to misbehave while the rest of the system must rigidly conform to the rules.

    The guy almost got run off the road. He can be forgiven for the behavior at that moment. Just don’t beat it to death to get publicity. That kind of self-serving action hurts the community.

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  • Mike November 9, 2006 at 3:30 pm

    Satisfying outcome? I doubt it. Fair? Probably. It would have been nice if the assailant had been identified and charged.

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  • Mike November 9, 2006 at 3:34 pm

    Jonathan:

    I think the Oregonian headline is pretty accurate given that Mr. Albright was seeking close to $50K and only got $601.

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  • Jonathan Maus November 9, 2006 at 3:37 pm

    yeah, I hear you. It’s just funny that they chose that headline because it makes it seem like TriMEt did nothing wrong…even though they were found to be negligent.

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  • John November 9, 2006 at 4:26 pm

    It sounds like an accurate ruling to me. Everyone involved in this event made very bad decisions.

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  • Vladislav Davidzon November 9, 2006 at 7:05 pm

    Does anyone know whether Randy Albright is planning an appeal? It sounds a bit odd legal logic — but perhaps an attorney can fill in.

    Yes, Randy blocked the bus. But to put him even partially at fault for being attacked? It almost sounds like two very separate issues.

    It sounds like he’s got a pretty solid case… Why did this go into arbitration and not open court anyway?

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  • heather andrews November 10, 2006 at 6:17 am

    Is this the text of the entire decision?

    One key piece of this sequence is missing–the bus traveling so close to Randy. If this decision is supposed to address each element in the whole string of events, and decide who is culpable for each, it should have included the incident that started it all.

    By omitting this piece, it is implied that that driving a bus so close to a cyclist is perfectly acceptable. It also makes Randy look completely umprovoked in his actions, just a yahoo blocking traffic for no particular reason.

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  • Jonathan Maus November 10, 2006 at 7:06 am

    Heather,

    I only published an excerpt. Here is a PDF of the entire memo.

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  • heather andrews November 10, 2006 at 7:54 am

    D’oh! That’s what I get for not reading carefully and exploring the links to find answers to burning questions. Apologies!

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  • Matt F November 10, 2006 at 8:32 am

    It’d be nice if more frivilous lawsuits ended with this type of a result…it might deter more of them. Also, Randy totally got what he deserved. I still don’t see how an experienced bike commuter can get this bent out of shape by getting buzzed. It happens sometimes…you just have to ride to minimize these types of occurences. If I remember correctly, the fool wasn’t riding in the bike lane b/c there was gravel in it. C’mon, even the skinniest road tires ride over gravel just fine. So, another thing he was at fault at was being a bad bike commuter. I dunno…I don’t mean to be so harsh…but as an everyday bike commuter…and a critic of our litigious society… this jsut pisses me off…

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  • Jonathan Maus November 10, 2006 at 8:37 am

    Matt F said:

    “but as an everyday bike commuter…and a critic of our litigious society… this jsut pisses me off…

    Matt, as a user of our roadways, what “pisses me off” is that TriMet can nearly run someone off the road and then be complicit in assaulting someone, never report the incident and then get nothing but a soft slap on the wrist.

    Sure Randy acted irrationally, but I still don’t understand how TriMet comes out of this without even covering Randy’s medical costs.

    Negligent operation of a bus and aiding and abetting physical assault should not be overlooked.

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  • Gregg November 10, 2006 at 8:56 am

    Heather, I understand the the bus *may* have been too close and even if it was, it was most likely an accident. However, it was obviously not an accident when Randy stepped in front of the bus, when the driver let that passenger off the bus, and when said passenger smacked Randy around. Unfortunately, the original issue at hand was buried under the actions of a few people who let their adrenaline take over.

    There’s a point where somebody in a dispute has to set aside their ego and instinct to quick reaction, otherwise things will just escalate into a war. From statements on this site, I’ve heard that Randy is generally a sensible person and I have no doubt that he now realizes his own contribution to the chain of events. Why it even made it this far, I don’t know.

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  • Brad November 10, 2006 at 9:40 am

    The ruling seems fair and logical in my opinion. It is like offsetting penalties in football, Tri-Met driver committed an infraction, Randy followed with an infraction, driver committed second infraction, and then bus passenger committed an infraction. Since all three sides were wrong, the penalties offset – replay second down!

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  • adam November 10, 2006 at 10:11 am

    As much as I abhor waste – and, make no mistake, the majority of the money spent obtaining justice in our current system is wasted – the only way we can get the city’s attention is with our lawyers.

    if you want to file a complaint, do so. then, sit back and wait while they ignore you.

    I filed a complaint against Officer Cox 25 days ago – still no response. Then, I filed several commendations for cool officers….I have personal emails from the ibpr thanking me for saying nice things.

    Until officer Cox is fired, it is not over. I don’t want their money – but if I have to sue them to get an answer, well.

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  • Cecil November 10, 2006 at 11:28 am

    Vladislav, I assume it went into arbitration because it was a claim for less than $50K (ORS 36.400(3)). If Mr.Albright is dissatisfied with the arbitrator’s award, he can seek a trial in the circuit court as to all issues of law and fact (ORS 36.425(2)(a)). He would have to pay a $150 fee, which he would forfeit if the trial court ruling does not improve on the arbitration award. (ORS 36.425(2)(c)) He would also have to pay trial and jury fees. (ORS 36.425(2)(b)). In addition, if his position is not improved by the judgment of the circuit court, he would be on the hook for some of Tri-Met’s attorney fees incurred after the filing of the arbitrator’s decision and award. (ORS 36.425(4) and ORS 36.425(5)(b))

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  • SKiDmark November 10, 2006 at 11:56 am

    Yeah, you are right Matt F. Tri-Met bus drivers should totally be allowed to fly by you with their mirrors about 6 inches from your head, and then they should be able to let passengers off to assault you if you decide to confront them for nearly killing you. Nothing wrong with that at all.

    Randy had to pay his lawyer and he had to pay court costs, just like anyone else who goes to court. No taxpayer’s money was wasted because everyone got paid.

    I seriously doubt you were out playing in traffic on that day or the day before, and did not see how much pea gravel the city had put down to combat the freezing rain, gravel which was covering the the lane which was at that point all in the bike lane.

    Also I would like to say that you attitude does not help the bike community at all. Turning against each other does not make us stronger. Saying it is OK for one of us to be assaulted sets a really bad precedent. Why don’t you go DJ for the Playhouse?

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  • Matt Picio November 10, 2006 at 1:33 pm

    I think the verdict was fair, except that Tri-Met should be fined for the actions of its driver, who failed to report a FELONY assault as it occured.

    The dead tree copy of the Oregonian today read “Cyclist and Tri-Met found equally at fault in 2004 incident” – much less biased than the headline Jonathan reported yesterday.

    It’s too bad that no one can be held criminally liable in this – if Tri-Met’s board was liable for the actions of its employees (this is true for all corporations), then maybe they’d keep better control and oversight of its drivers.

    Ok, maybe that’s a bit harsh – I ride the bus as often in the winter as I ride, and it’s a minority of bus drivers that are the problem, just as it is with drivers, cyclists, pedestrians, rollerbladers, skateboarders and cross-country skiers doing their thing on the Springwater in the off-season.

    It would be nice if everyone out there on the road would just relax. Unfortunately, an offense by one usually spurs additional offenses by others who witnessed the first one and so forth until we all get stressed out.

    Everyone needs a valium. Or a massage, or yoga or something.

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  • Cecil November 10, 2006 at 2:01 pm

    “Everyone needs a valium”

    But please not before getting behind the wheel on on top of your two wheels :-)

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  • Martha November 10, 2006 at 3:28 pm

    Matt F, it sounds like you’ve never experienced Portland bike lanes after a snow or ice event. Oregon is a no-salt state, so the road crews use gravel for traction. That gravel piles up in the bike lanes and is a serious hazard for cyclists. Sure, even the skinniest of tires roll over gravel (as you say), but while those tires are rolling over the gravel, the gravel is rolling around under the tires.

    Experienced winter bike commuters will all agree that it is foolish NOT to avoid the gravel and leave the lane. State law specifically allows cyclists to leave the lane when there is debris in it. Better to stay on your bike than to have it slip out from under you.

    You claim to be an “everyday bike commuter.” If you’re an Oregonian, I encourage you to attend one of the BTA’s winter commute workshops so that you can learn to ride safely in winter conditions (if your “everyday” commuting includes winter). Watch out for all of those leaves out there, too.

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  • zenas November 11, 2006 at 9:28 am

    Tri-Met could have pursued criminal charges against Albright at the time for interferring with Public Transportation, but did not–and the statute of limitations is past. The same is true of the passenger’s assault–the statute of limitations is past.

    Had Tri-Met pursued criminal charges, its case would have been much stronger. The driver was suspended for 30 days without pay, so he did not get off Scot Free, even though there is no evidence that he knew that the passenger was going to commit an assault–the asailant, in an interview with Phil Sanford, stated that the driver did not know of his intention.

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  • Macaroni November 11, 2006 at 10:41 am

    Randy should’ve beat the **** out of the assailant.

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  • Adam November 11, 2006 at 12:35 pm

    So, someone knows who the assailant was and the guy hasn’t been found and charged with assault?
    ~Adam

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  • Grant November 11, 2006 at 1:57 pm

    Who is Officer Cox and why do you want him to be fired?

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  • zenas November 11, 2006 at 4:00 pm

    Both Randy Albright and his assailant, “Gator,’ are past the statute of limitations for their crimes.

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  • BURR November 11, 2006 at 5:04 pm

    The bus driver could have been cited for unsafe passing, recless endangerment and aiding and abetting, but that didn/t happen either.

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  • Cate November 11, 2006 at 5:57 pm

    Perspective:
    –this incident happened in Jan 2004
    –the TriMet driver is dead
    –the statute of limitations is past
    –arbitration is over
    –it probably doesn’t make any sense for Randy to appeal
    –it’s over…

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  • Vladislav Davidzon November 11, 2006 at 7:21 pm

    Cate,

    The thing is that without proper punishment, TriMet will not get the message that they must reign in their drivers from buzzing cyclists.

    If they were punished with a couple hundred thousand (or few million) dollar fine, they would have had reason to change their ways. Right now they have absolutely no real reason to ensure their drivers take care around cyclists.

    I, for one, sure as hell do not appreciate being buzzed by TriMet busses, and it happens at least 2-3 times a week for me. The thing is that without a lawsuit, complaints will have no weight — if they do not see the financial liability, they have no reason to act.

    Sigh.

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  • Cate November 12, 2006 at 9:28 am

    Vladislav,

    Challenge yourself to think beyond punishment as a solution. Think beyond being a victim. Think beyond complaining.

    (Hint: Do something constructive.)

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  • Vladislav Davidzon November 12, 2006 at 1:04 pm

    Cate,

    It’s not about punishment! It is about getting changes done. Our legal system can be an incredibly powerful venue for social change.

    I have no interest in punishing tri-met — that’s like yelling at a broken toaster. Only makes one look stupid (although may make the person suing a bit wealthier ;). However the point is that through a lawsuit, you can challenge the behavior and force change.

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  • Cate November 12, 2006 at 2:54 pm

    Vladislav,

    A lawsuit is but one way. Challenge yourself to think beyond. What other ideas do you have? What people have you asked for their ideas? Get your creative mind a-thinkin…

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  • BURR November 12, 2006 at 3:07 pm

    Since you’re asking for constructive solutions, Cate, how about you, what do you think can be done to make cyclists safer by promoting better cooperation on the street between bus drivers and bicyclists?

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  • BURR November 12, 2006 at 3:15 pm

    Oops, I meant to say …’and promote’ better cooperation…

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  • Vladislav Davidzon November 12, 2006 at 3:17 pm

    Cate,

    Different people choose different avenues. Some of us choose to pursue through the legal system, others choose to ride naked through the streets, others lobby, and yet others choose the path of inaction and criticize what everyone else is doing. ;)

    Feel free to make suggestions on how else we can rein in Tri-Met drivers and get ‘em to give us more respect on the road. All avenues are needed, except for the inaction one ;)

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  • Cate November 12, 2006 at 4:00 pm

    I haven’t had any problems with TriMet for awhile, so I haven’t given it much thought. Off the top of my head, I think I’d make a mini-documentary.

    Super Size Me and An Inconvenient Truth did more to wake people up and instigate positive change than most lawsuits. Video cameras are powerful tools – take full advantage.

    I think I’d get knowledgable about TriMet’s policies and procedures, their safety standards, and their training methods. Then I’d start filming TriMet drivers, the good and the bad, when they’re around bicyclists. I’d interview the drivers, the good and the bad, to hear their perspective on bicyclists. I’d listen with an open mind.

    I’d interview TriMet safety people and the people who do driver training (do the drivers get training?). I’d find out what kind of statistics TriMet keeps and how they collect them. I’d ask them what’s the best way to resolve safety issues within their organization.

    I’d interview bicyclists who have had problems with TriMet drivers. What happened? What were the consequences? What could have been done to prevent it?

    I’d ask around to see if any bicyclists have had success resolving issues with TriMet. What did they do? I’d ask the BTA and PDOT if they’ve had any success with TriMet. What did they do? I’d get it all on film.

    Then I’d publicize the film everywhere possible. If the film were done well, it could reach a wide audience and potentially offer the seeds of change you desire.

    Just one idea. Another…

    I’d start a list similar to Jonathan’s close call list except track bicyclists’ interactions with TriMet. Get bicyclists to document the location, bus number and time of their incidents. Help get bicyclists to report every incident to TriMet. Have bicyclists document the results of their formal complaints filed with TriMet. Document cases where TriMet didn’t respond satisfactorily. Find out what recourse there is after that. Provide the information to TriMet. Go to Fred Hansen. Get it on film.

    If I can think of this much verbiage on an issue that isn’t directly affecting me these days, certainly you all can think of more and better ideas…

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  • WEASTSIDER November 14, 2006 at 2:00 am

    Why hasn’t the assailant been found, he’s all over the fn video? I don’t believe the statute of limitations on assualt has expired here. Perhaps it’s time for a wanted poster and a reward.

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  • Dabby November 14, 2006 at 12:04 pm

    Tha assailant came forward one or two days after the statuate of limitations was up, and if I recall was pround of what he did.
    So, he was found, but to late….
    Also, too late for a civil suit I might add.

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  • Matt F November 14, 2006 at 7:43 pm

    OK. I admittedly went a bit far on my earlier post. I apolgize. The only point I wanted to get across is that as a year round, everyday commuter (yes Martha even in the winter after it has snowed…in fact right over the very same bike lane on the Hawthorne bridge), I try everything in my power to avoid confrontations and close calls. This means riding on gravel some times, listening for approaching buses, and keeping my cool when a driver invades my space. I’ve yet to see one instance when confronting a driver does any good. The whole mess could have been avoided if Randy chose to not stop riding, not get off his bike, not get in the middle of the road in front of the bus, and not allow the bus to procede. I hope that we can all at least agree that this was a dumbass move on Randy’s part.

    So, in my opinion, which may be different from yours, Randy caused this b/c he had the power to avoid the confrontation.

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