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Jarolimek’s family files lawsuit against garbage truck driver

Posted by on June 5th, 2008 at 12:43 pm

(Photo © J. Maus)

The Oregonian is reporting that the family of Brett Jarolimek has filed a $1.5 million lawsuit against the driver of the garbage truck in the fatal collision back in October.

According to reporter Joseph Rose, the family is, “claiming 40-year-old Bryan Lowes of Oregon City was negligent and should have never been behind the wheel.”

Rose also reports that the suit claims Lowes failed to yield the bike lane to Jarolimek and that his truck had a broken mirror that was attached with only a bungee cord (a fact that came out of the DA’s investigation).

Here’s more from Rose:

“…the complaint says, Portland-based AGG Enterprises shouldn’t have allowed Lowe to drive its garbage truck because of past drug convictions and driving violations. AGG is a co-defendant in the suit.

The company “knew or should have known Lowes posed an unreasonable risk of danger to bicyclists, pedestrians and motorists,” the suit states.”

On October 25, I detailed the troubled past of the truck driver in a story titled, Trucker’s problems should lead to reforms.

For more coverage of the Brett Jarolimek tragedy, see my archives.

[Thanks E.S. for the tip.]

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Comments
  • toddistic June 5, 2008 at 12:49 pm

    hell yeah!

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  • Ashley June 5, 2008 at 1:07 pm

    I\’m a little surprised that they\’re sueing the driver instead of the company…does anyone have any thoughts on this, or know why that would be?

    I have mixed feelings about the driver being targeted.

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  • Jerrod June 5, 2008 at 1:13 pm

    I\’m glad at least something is being done here. I couldn\’t believe this happened without anyone being held accountable. I was hit by a guy who ran a red light, and he never even got a citation.

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  • tonyt June 5, 2008 at 1:18 pm

    Yeah, I\’m with Ashley. I think the company is at least as responsible as the driver since they hired someone with so many violations.

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  • Dabby June 5, 2008 at 1:24 pm

    I am sure that through sueing the driver, the company he works for, and their insurance is involved in the suit.

    The driver will not be paying 1.5 million he does not have. In filing against him, you are effectively filing against his employer\’s insurance company.

    Even the little bit of info above eludes to that.

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  • a.O June 5, 2008 at 1:25 pm

    The story says that AGG is a co-defenant.

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  • Toby June 5, 2008 at 1:26 pm

    Ditto #2. While the driver needs to be held accountable, the valid reasons given for the lawsuit are against the company. That just seems odd, of course, I\’m no expert.

    Toby

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  • zac June 5, 2008 at 1:33 pm

    The company is a co-defendant…

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  • patrik June 5, 2008 at 1:55 pm

    since we\’re talking about Brett, anyone know why the ghost bike is gone? It\’s been gone a while.

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  • Fred June 5, 2008 at 1:59 pm

    Not sure in Oregon, but I drove a truck in Arizona and the law states that the driver is responsible for the vehicle if there are safety problems or equipment violations. I was forced to make my employer replace tires, pay the registration, and fix the engine before I drove it. I assuem that\’s why the driver is being sued along with the company.

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  • Hillsons June 5, 2008 at 2:38 pm

    AGG had this coming: perhaps not criminal negligence, but negligence nonetheless. Hopefully the suit details a call for higher safety standards on the companies part.

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  • Toby June 5, 2008 at 2:48 pm

    Missed that, about AGG being a co-defendant. Thanks;-)

    Toby

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  • bahueh June 5, 2008 at 3:02 pm

    hope they\’re awarded every damn penny.

    the driver won\’t have it…and proving negligence by AGG might be tough in this case. …their lawyer probably wouldn\’t have filed the claim if they didn\’t have a good angle though…
    will be intersting to hear the outcome…

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  • Mmann June 5, 2008 at 3:25 pm

    Based on his record the driver should never again be allowed to hold a commercial license, and maybe shouldn\’t be behind the wheel of a car either. Besides accomplishing a lot of other good things, this lawsuit should help ensure he can\’t get hired as a truck driver.

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  • Spanky June 5, 2008 at 3:26 pm

    Re: #13, the company is responsible for the acts of the driver while on the job absent very unusual circumstances. Like every other matter reported by the media (even here, but more notably in the case of the Oregonian) there\’s likely a lot more to the whole situation than gets reported.

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  • Vance June 5, 2008 at 4:00 pm

    If the DAs office would have seen fit to do their job, and charge this operator with a violation of Oregon Revised Statute 811.060, this civil suit would be open and shut; and would likely have been filed against the company, and not the negligent weeny operating a death-machine. I mean, why is this law even on the books, if it is never going to be enforced?

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  • Hillsons June 5, 2008 at 6:01 pm

    Vance this has to be the first time I agree with you, well said.

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  • Aaron June 5, 2008 at 8:50 pm

    I hadn\’t heard about the bungee-corded mirror. Jonathan can you confirm that?
    If true that is beyond despicable.

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  • Joe Rowe June 5, 2008 at 11:55 pm

    I think the laws to protect victims are so weak that the family is forced to sue the driver, the company that hired the driver, the company that should maintain the truck etc. The suit should also look into other distractions and risk factors
    cell phone records
    use of ipod by driver
    hair and blood samples of driver for drug use
    legal medications
    was driver urged to work long shifts/overtime
    etc.

    This was no accident.

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  • 21 speed June 6, 2008 at 12:10 am

    The don\’t have a case in my drunken opinion. (That Gato Negro is good stuff.)

    Didn\’t the rear wheels run him over? If so, that means the truck was 1/2 way thru the bike lane before he hit it. That means it\’s his fault. Clearcut.

    Yup, it would have been courteous for the truck driver to yield, but he didn\’t so it became the cyclists responsibility to stop or swerve left and go around.

    Seems like the drive had previous convictions – that does not mean he\’s guilty in this case.

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  • Bozie June 6, 2008 at 8:05 am

    21 speed – be careful. This was a trageady and the family and friends are still very upset. Brett was an amazing cyclist and if he had any opportunity \”to stop swerve left or go around\” he would have done just that. You have no idea what you are talking about and I can\’t believe you would write something so careless.
    Jonathan can you watch what is published?

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  • a.O June 6, 2008 at 8:40 am

    \”it would have been courteous for the truck driver to yield, but he didn\’t so it became the cyclists responsibility to stop or swerve left and go around.\”

    Yep, you\’re drunk alright. Sh*tfaced, in fact. Maybe when you sober up you\’ll figure out that you got the law backward, but I wouldn\’t bet on it.

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  • Dave June 6, 2008 at 9:42 am

    How is a company hiring someone with 25 moving violations for a driving job NOT negligence?

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  • El Biciclero June 6, 2008 at 10:38 am

    I\’ll bet the failure to invoke ORS 811.060 as mentioned by Vance above (#16) is due to the wording of the definition of \”recklessly\”:

    From ORS 161.085 – (emphasis mine)
    (9) “Recklessly,” when used with respect to a result or to a circumstance described by a statute defining an offense, means that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

    It would seem to be tough to prove awareness and willful disregard, even though the truck driver did have a responsibility to yield to Brett.

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  • JollyOldMan June 6, 2008 at 12:46 pm

    Hogwash

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  • Vance June 6, 2008 at 1:01 pm

    El Biciclero #23. Take a look at the body of statutes that could come into play here. 811.060 does indeed have an intent component. This is where the DAs office really dropped the ball, as far as I\’m concerned. 811.065, and 811.050 both, comprise a relevant intent component had they been enforced. That is to say, that the driver was in violation (possibly) of 811.065, and certainly of 811.050. I\’m no attorney, but doesn\’t breaking the law constitute a behavior that is implicitly, \”Reckless\”?

    So, had the investigating enforcement officer issued citations for violating Oregon Revised Statutes 811.065, and/or 811.050, like the law demands, then there would be significant evidence of reckless behavior, given that these two citations stuck in court. 811.050 was inherently violated, so methinks this allegation would have been indefensible in traffic court.

    811.060 outlines vehicular assault upon a cyclist. 811.065 outlines a safe operation boundary, but is trumped by the bicycle-lane. Would have been a stretch. Nice work there guys. It is arguable that this accident happened a few feet outside of the painted, designated, bike-lane too; but still a stretch. 811.050 outlines traffic protocol and provides that motorists must yield to cyclists in a bike-lane. Again, a conviction on at least one of these traffic-infractions could have provided levity regarding the intent component of 811.060.

    Additionally, this would go to jury trial without a doubt. The, \”contact\”, component of 811.060 would be played up, while the, \”intent\”, component could have been marginalized; and then only if defense could successfully argue that violating 811.050 prior to violating 811.060, did not constitute, \”reckless\”, behavior. Furthermore, with this operator\’s history of violations a, \”Willful disregard.\”, component could be added to the violation of 811.050 and further support the assertion this operator was indeed behaving in a way consistent with the, \”intent\”, component of 811.060.

    I hear ya. 811.060 is meant to make it illegal to ram bicyclists in a fit of rage. It is also meant to protect cyclists from gross, reckless, negligence. Nope. I\’m inclined to believe that a conviction on 811.060 would have been doable by pointing to a violation of 811.050 (At least.) prior to the accident, as being, \”reckless\”; and then serve as sufficient evidence to at least make the charge of violating 811.060; and then to convince a jury. The DAs office didn\’t even try. Wonder why?

    Or, I could just be talking out my behind. One of the two.

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  • DJ Hurricane June 6, 2008 at 2:32 pm

    Vance, unfortunately, it is the latter (talking out of your behind). El Biciclero is correct that the \”reckless\” standard in ORS 811.060 was not met. Given what this standard demands legally, there is no way the DA could get a conviction under these facts and so the DA correctly (IMHO) decided not to bring that charge.

    Also, the driver was not in violation of 811.065, because subsection (1)(a)(A) of that statute states that it does not apply when a driver passes a cyclist in a lane adjacent to a bike lane in which the bicyclist is traveling. Those are the facts here.

    My view is that 811.050 was violated. I had a detailed conversation with the DA as to why they did not issue this citation here. I can\’t go into their reasoning, but it was not satisfactory to me. I can tell you that a hearing on whether the driver violated 811.050 would involve adjudicating issues that will be adjudicated in the civil case, and it is best for complicated legal reasons if those issues are first addressed in the civil case rather than in a traffic citation hearing.

    Again IMHO, this situation reveals two important things: (1) this is why we have a civil justice system (there would have been no criminal punishment for AGG, just the driver); and, perhaps more importantly, (2) we need much stronger criminal laws in Oregon to punish drivers who negligently, recklessly, or intentionally injury vulnerable roadway users.

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  • Vance June 6, 2008 at 3:55 pm

    Thanks for that DJ. I figured the guys/gals with the degrees had it covered. I\’m really just speculating. I can see where 811.060 was just not applicable though, thanks again.

    811.065, by the way BikePortland.org readers, is a mobile, invisible bike lane, that follows you everywhere you go; but is TAKEN AWAY the second you are in a bike-lane, or other bike designated area. Food for thought. It\’s a good law.

    My heart continues to go out to the Jarolemick family.

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  • Mike June 30, 2008 at 4:58 pm

    The suit is an insurance matter. They will settle this claim like any other. I happen to know that this company did feel very bad about this accident and has a history of making large settlements. The problem I have it that the attorney for the Jarolimek\’s sent the insurance company 8 x 10 color photos of the accident scene, including pictures of Brett\’s lifeless, battered and bloodied body at the accident scene. This is not routine protocol and it is egregious, flagrant, self-serving conduct by the attorneys . The insurance company knows this accident was tragic. They are not arguing that fact and sending those photos does nothing to help the families cause. Rather it just shows how low and disrespectful this attorney will go to get a large settlement, which he is bound to get without those pictures (and which he will take a very large cut). I wonder if Brett\’s family knows their attorney sent pictures of their dead son\’s body through the mail, only to be gawked at and passed around. The attorney should be ashamed at his behavior, and should double check his motives.

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  • Icarus Falling July 9, 2008 at 7:47 pm

    A bicycle messenger in Washington D.C., Alice Swanson, lost her life yesterday (July 9th) when she was right hooked by a garbage truck.

    The details have not been made entirely clear, but it appears she was in the bike lane when she was killed.

    Though it was made clear that no charges have been filed against the driver, who was by all accounts at fault. There are also unsubstantiated reports that the driver was an illegal alien.

    This is reported to be the first death of the year in D. C. on a bicycle.

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  • John July 29, 2008 at 10:26 pm

    It seems that now bicyclists are no longer the free wheeling environmentals of yore. They now have real economic impact. Bicyclists have the right to use the highways and biways but until now have not had to shoulder the costs that the public bears to accommodate their needs. Not true you say? You have a car and pay for tabs, fees and gas taxes roads?. Well we don\’t don\’t drive cars on bike paths or bike only thoroughfares yet costs associated with motor vehicle ownership and operation do. It\’s time for bicyclists to start covering costs as motorcyclists do. Bicyclists need to be regulated, licensed and charged their fair share of transportation costs associated with them.

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  • Icarus Falling July 30, 2008 at 5:06 pm

    John,

    Really off the mark there with your comments.

    Luckily it would be clear to absolutely anyone that you have no idea what you are talking about…

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  • Pete July 30, 2008 at 6:56 pm

    John (#31): I make a hefty salary (income taxes) and drive two cars (gas taxes and fees) and several homes and rentals (property and income taxes); I\’d love to compare our \’fair share\’ sometime in the old \”I pay for your bike lanes\” argument. I also pay for a war I didn\’t want, a record budget deficit with interest owed in large to investors in a country we gave our manufacturing industry to, billions of dollars in tax breaks for oil companies to research alternative fuels (the fox guarding the hen house!), and to put other people\’s children through schools with shortening school years and underpaid teachers. Where\’s my rebate? (No, I didn\’t qualify for \’economic stimulus\’).

    First, I\’m guessing your math doesn\’t account for the money bicyclists save by not damaging roadways or requiring such expensive highway maintenance with tons of weight and forceful acceleration and braking and cornering (study Newtonian physics sometime). But here\’s another shocker: you drivers haven\’t paid your fair share either, according to Mary Peters\’ testimony about the $3.2B shortfall in the Federal highway budget. Surely it IS time to rethink how we fund roadways!

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  • Mike August 2, 2008 at 6:31 pm

    It was an accident!!! Perhaps no body was at fault. True, it is tragic that a cyclist lost his life but stop pointing fingers as if cyclists are immune to responsibility. I have come across so many a-hole cyclists who think they deserve more rights than cars. Being on a bike does not make you a saint

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