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Family of woman killed while walking across SE Foster sues for $3.7 million

Posted by Jonathan Maus (Publisher/Editor) on August 17th, 2010 at 9:21 am

Traffic Safety action on SE Foster-7
A makeshift memorial near the site of the collision.
(Photos © J. Maus)

The Oregonian reports that a lawsuit has been filed by the family of Lindsay Leonard, the 23-year old Reed College graduate who was killed by a man who struck her with his car as she walked across SE Foster Road back in November.

The suit seeks $3.7 million and the defendants include the driver, Tito Jose Feliciano, and his employer (he was driving a company car); the City of Portland (for allegedly not keeping the crosswalk maintained); and Portland General Electric (who was responsible for the streetlights).

Traffic Safety action on SE Foster-2
Traffic safety activists at a
demonstration on November 11, 2009.

Leonard was crossing SE Foster at an unsignalized but marked crosswalk at mid-block with her friend Jessica Finlay (who died from injuries weeks later in the hospital). The police investigation found that the driver was not at fault for the collision and no citations were issued. Oregon law states that walkers have the right of way in a crosswalk, but that drivers must have room to stop.

In the complaint filed with Multnomah County on Friday (which I found via The Portland Mercury Blog), Leonard's lawyer, Richard Vangelisti states that Feliciano passed four traffic signs warning of an upcoming crosswalk yet he "took no action to avoid the collision." The complaint also points out that the street light above the crosswalk wasn't working at the time of the collision. Vangelisti zeroes in on the City of Portland's culpability by pointing out that the stop line and crosswalk markings were worn off: "Such disrepair created a hazardous condition." He also claims the City did not adequately take heed of prior complaints about the lack of safety at this crossing.

After the collision, Mayor and Transportation Commissioner Sam Adams issued a statement to reinforce his commitment to traffic safety and vowed to make some immediate, minor changes to the area around the crossing. Nine days after the fatal collision, the Willamette Pedestrian Coalition held a demonstration and rally at the site to bring attention to the issues.

Read more about this lawsuit from The Oregonian and from The Portland Mercury.

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Comments
  • Spiffy August 17, 2010 at 9:34 am

    crosswalks are not required to be lit, painted, or warned about in advance...

    totally frivolous... the family is having a hard time coping with their loved one being an idiot and stepping into traffic... it's always somebody else's fault...

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  • B. Dorr August 17, 2010 at 9:37 am

    Was the pedestrian that was struck at the time wearing light colored or dark colored clothing? And, being in November, was it rainy? Pedestrians wearing dark clothing on a wet night almost blend in with the street, making themselves impossible to see to driver.

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  • poncho August 17, 2010 at 9:55 am

    oh please so i'm supposed to go shopping to find the appropriate clothing for each shade of the sky so that apparently i can have the privilege of using OUR streets as a (god-forbid) non-motorist. how about motorists take some responsibility for their actions while operating a 2 ton hunk of steel?

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  • Nick August 17, 2010 at 9:58 am

    From the Oregonian: "Vangelisti said Feliciano was on his cell phone with store employees minutes before the crash."

    I wonder if he was on it during the crash?

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  • jeff August 17, 2010 at 10:02 am

    If this spurs the City to take a hard look at the traffic conditions (high speed) on SE Foster, than I totally support it. I live a few blocks from Foster and it's completely out of control and not safe for pedestrians at most any time of day.

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  • trail user August 17, 2010 at 10:23 am

    They don't teach people enough situational awareness like they do in the military. 360 degree eyes and ears people! Pay attention when you play in danger, unless of course if you're in a car. YOU ARE THE DANGER!

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  • ecohuman August 17, 2010 at 10:30 am

    Here's a thought problem: how does one determine if a pedestrian is a danger to a driver? If that's one too easy, substitute "bicycle" for "pedestrian".

    If you think that's a weird problem to tackle, consider this: it's one of the main issues that the lawsuit participants will try to determine.

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  • Ely August 17, 2010 at 10:53 am

    I think the lawsuit is appropriate. There was an incident in which the most vulnerable people paid with their lives, even though others were at least equally at fault. In Europe, the heaviest responsibility weighs on those with the greatest power, ie cars. There is no reason why that shouldn't be so here.

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  • eli bishop August 17, 2010 at 11:00 am

    yeesh, victim-blaming much? if that person was on a bike i bet you wouldn't be.

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  • kiwimunki August 17, 2010 at 11:11 am

    I still can't believe that the driver passed four traffic warnings regarding the crosswalk, took two lives, and was not cited with anything. Whoever said "If you want to kill someone in Portland and get away with it, do it with your car" was spot-on.

    If he had even slowed down a little or increased his attention in response to the crosswalk signs...it's not like he didn't have fair warning (from the City), he just ignored it.

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  • wsbob August 17, 2010 at 11:15 am

    From the Oregonians story:

    "...Portland police did not cite Feliciano, and prosecutors didn't charge him with a crime. A witness told traffic investigators that the women entered the crosswalk without giving Feliciano enough time to stop.

    “We completely disagree with that based on our investigation,” Vangelisti said. ..."

    I read that to mean that the family's investigators have somehow been able to deduce that the two women did allow the motor vehicle time enough to stop for them. They believe it did have enough time or room to stop, but for some reason, didn't do so.

    Dangerous, high volume intersection, and the city knows it and acknowledges it by equipping the intersection with some degree of street marking and signage indicating the presence of a crosswalk, and the requirement for vehicle operators to stop for pedestrians using the crosswalk.

    Unfortunately for everyone, the city's efforts at this intersection to make the crosswalk safe, took the cheap route, relying entirely on road users' visual awareness of each other to affect a safe crossing of the street by pedestrians. The city chose this route rather than the installation of a signaled crosswalk that would have further compelled vehicle operators to stop at the intersection, whether or not they could actually see, or happened to be aware of pedestrians attempting to cross the street.

    If it should happen that the city loses this lawsuit and is compelled to pay even as little as half, or a quarter of the $3.7 million that's being asked, the amount paid out will likely be enough to have paid for more than one of red-yellow-green type traffic signals with crosswalk lights, and maintenance of them.

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  • Jason Skelton August 17, 2010 at 11:18 am

    If we only had a system to evaluate the merit of each lawsuit filed. I mean other than random people on the internet telling us.

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  • jon August 17, 2010 at 11:37 am

    As someone that bicycles a lot and walks as much as possible my credo is: I'd rather be safe than right.
    There a lot of things that are my legal right to do on a bicycle or walking that I would never do because it is dangerous.
    People need to take their personal responsibility seriously and not count on lines on the pavement or street lights to stop a car.

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  • Spiffy August 17, 2010 at 11:41 am

    as wsbob quoted from the OregonLive article "A witness told traffic investigators that the women entered the crosswalk without giving Feliciano enough time to stop." and given that this is the only witness testimony available to me I'd say it's the pedestrian's fault...

    it doesn't matter what else the driver was doing... the driver can't stop people from stepping too close in front of their moving car...

    the city has more than tried to make this unneeded crossing safe for people too lazy to walk two blocks in either direction to cross at a signaled intersection...

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  • 151 August 17, 2010 at 11:56 am

    "the driver can't stop people from stepping too close in front of their moving car..."

    Considering this seems to be the popular meme of the day over at O-live for excusing the murder of two pedestrians, I'd say it only makes the case that traffic needs to be slowed down and more stringently controlled so that motorists can safely operate said vehicles.

    "I was going too fast to stop!" is hardly a legitimate reason to kill two pedestrians.

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  • kitten August 17, 2010 at 11:57 am

    relying on ONE eye witness is not sufficient. Seems like the burdon of proof lies on the driver (since it is indisputable that they were physically responsible for killing the pedestrian).

    but i am no lawyer here.

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  • Evan August 17, 2010 at 12:08 pm

    I'll buy the argument that the driver should have been paying better attention. I'll also buy the argument that the two women crossing the street should have been paying better attention. But nothing short of putting up gates and walls to stop drivers and pedestrians (and cyclists) from coming into contact with each other will prevent this sort of thing from happening. As a cyclist or walker, I generally assume that drivers are not paying attention. All to often as a driver, I see pedestrians and cyclists and THEY are not paying attention. So basically, I have to assume that NOBODY is paying attention. No design or maintenance will ever fix that. Suing the City of Portland and PGE won't fix it either, it will only take money away from some potential maintenance and upgrades that might help a little.

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  • wsbob August 17, 2010 at 12:25 pm

    Spiffy...the family's lawyer has said that they have reason to believe the pedestrians did allow the motor vehicle driver time to stop, despite the word of one witness. Of course, the lawyer's going to have to be able to prove that claim. We'll have to wait to see whether he's got the goods to do that.

    Rationalizing that people are lazy isn't a good excuse for the city not making this intersection safer with a signaled traffic light. The crosswalk connects a key shopping center with a big neighborhood to the south of the shopping center. That means residents from that neighborhood wanting to shop at the shopping center have to walk an additional four blocks...two over and two back...to get to their destination.

    If it's only people with no physical ailments that are using this crosswalk, then fine...the additional four blocks is probably good exercise for them. For many other types of people that may well find need to use this crosswalk...older, arthritic, or people with physical disabilities, young mothers with kids in strollers and in tow, etc...a safe, signaled crosswalk that compels cars to stop, whether or not they can visually see a pedestrian attempting to cross, seems to be needed at this location.

    If the city feels it can't afford to spend the public's money to make this intersection safer for pedestrian crossing, it should just eliminate the crosswalk entirely by taking down the light, removing the lines on the pavement and putting up a big concrete Jersey barrier so that pedestrians can't cross there at all.

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  • are August 17, 2010 at 12:27 pm

    isn't this the one where the driver passed a stopped bus? why, yes, yes it is. so i don't really want to hear about the victim being at fault here. take that sh*t to the oregonlive site.

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  • poncho August 17, 2010 at 12:52 pm

    wsbob, yeah not enough money to make it safer for pedestrians but enough money to build a center divider. that makes complete sense. If you are so concerned about cost, here is a cheap option to make it safer for pedestrians... a 20 mph speed limit sign.

    The family should be suing monetarily the person that killed their daughter for their inattentiveness and inability to safety operate a motor vehicle, while suing Portland solely for action both legistlatively and physically for pedestrian safety improvements.

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  • noah August 17, 2010 at 1:31 pm

    @Jason Skelton #12, if only we had that system! Unfortunately, reaching the "judging on merits" phase of a lawsuit, and then passing through it, costs a lot of money. In the defendant's case, that money is almost never recovered, even when the defendant is found to be 0% at fault. It's a big reason, in these personal injury and wrongful death cases, why it's typical for governments and corporations to settle the case before the merits are ever heard, to the detriment of citizens, policyholders, etc. And regardless of a case's legal merits, the tort system for deciding fault and damages seems so far divorced from the moral reasoning that the law is supposed to mirror!

    So we have every (moral) right to judge the family for filing this lawsuit. Of course, we ought to be compassionate, thoughtful and tasteful if we do that in a public forum.

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  • wsbob August 17, 2010 at 1:34 pm

    Info about the driver having passed a stopped bus was corrected here in earlier bikeportland stories on this issue, but also, in todays Oregonian story writer Aimee Green posted the following response to a commenters' question about the presence of a bus in the incident:

    "Hi, lentsres. Some media outlets initially reported that a TriMet bus may have blocked sight lines to or from the crosswalk, but that turned out not to be true, according to Portland police.

    Aimee Green
    Reporter, The Oregonian August 16, 2010 at 3:45PM

    Family of Reed College graduate killed at SE Foster Road crosswalk sues Portland for $3.7 million/Oregonian/aaimee green

    Poncho #20 ...a concrete barrier wouldn't be my choice. I think the city should install a signal, but if it feels it can't justify spending the money to do that, perhaps it should just entirely close the crosswalk. I expect there's plenty of those concrete barriers already made and sitting in a storage yard somewhere, waiting to be trucked over and set into place.

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  • e August 17, 2010 at 1:50 pm

    Kitten,

    Regarding your comment, "seems like the burdon of proof lies on the driver", the burden of proof is always on the party bring the case to court. If X stabs Y, X doesn't have to prove in court that he didn't do it, Y has to prove the he did. Likewise, in this case, the party bringing the lawsuit has to prove the driver was negligent, or whatever it is they are claiming. The burden of proof is on those prosecuting, not those defending. Duh.

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  • spare_wheel August 17, 2010 at 2:14 pm

    "Some media outlets initially reported that a TriMet bus may have blocked sight lines to or from the crosswalk, but that turned out not to be true, according to Portland police.
    Aimee Green - Reporter, The Oregonian"

    Perhaps this lawsuit will motivate the pdx police to dedicate some resources to operations on arterials instead of ladd's addition.

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  • spare_wheel August 17, 2010 at 2:15 pm

    sorry for the duplicate quote -- did not update before posting.

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  • suburban August 17, 2010 at 4:09 pm

    Does anyone know which way the pedestrians were traveling or in which lane the collision happened?

    Can anyone explain why no citations were issued to either or both parties? Skipping this police work was the seed for this lawsuit, forcing the family to seek justice in a town that would not lift a pen for their daughter. I fear that even if Oregon had a modern Vehicular Homicide law on the books, this case would not meet that threshold without the ticket.

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  • are August 17, 2010 at 5:51 pm

    i take the point that "media outlets" now say that the police disconfirm the stopped bus scenario. but i wonder where "media outlets" got this info in the first place?

    re comment 26, according to the court filing, the two would have been crossing from fred meyer on the north side, and the motorist would have been heading west on foster.

    vehicular homicide laws, so called, typically criminalize this kind of thing only where the motorist is driving suspended or impaired or without insurance, etc. no indication that was the case here. the guy was driving for an employer.

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  • wsbob August 17, 2010 at 8:38 pm

    "i take the point that "media outlets" now say that the police disconfirm the stopped bus scenario. but i wonder where "media outlets" got this info in the first place? ..." are #27

    I reposted/copied and pasted O reporter Aimee Greens statement about that in my own comment #22 on this thread. She says it was the police that determined that a bus did not block sight lines as had been reported early on by various media outlets.

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  • are August 17, 2010 at 10:17 pm

    sorry, let me try to be clear. from what source did earlier media reports get the (mis)information that a bus was stopped short of the crosswalk? eyewitnesses?

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  • wsbob August 17, 2010 at 11:40 pm

    "sorry, let me try to be clear. from what source did earlier media reports get the (mis)information that a bus was stopped short of the crosswalk? eyewitnesses?" are #29

    About that, I can't say for sure other than I seem to recall first reading of the collision, and the possibility that a bus may have figured into it, months ago here on stories on bikeportland; in the stories themselves, the comments to them, or both.

    The idea that a bus was somehow relevant to the collision could have been due to initial police investigation inquiries that were subsequently corrected through further inquiries on their part.

    As I recall, the idea that a bus may have figured into the collision persisted here amongst commenters to the bikeportland stories for some time...maybe a couple days...and then, maus posted a comment saying new info was out that said a bus did not figure into the collision as originally thought. Maybe maus will pipe in here with what he remembers about this.

    I'm thinking it was a Trimet spokesperson that came out saying a bus was not there when the car collided with the women.

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  • jim August 18, 2010 at 12:55 am

    I've been buzzed by cars that did not even try and slow down when I am in a marked crosswalk. That is not the cities fault, it is the drivers fault for his bad attitude and bad judgement. Sue the driver if it makes you feal better, it won't bring back your loved one,.... crosswalks are still crosswalks without paint and lights. There are many thousands of lights in portland that have to be changed all the time. There is a number on the pole that you can report (online or phone) to report a burned out light. This is important for reducing crime also.

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  • itsaboutme August 18, 2010 at 1:37 am

    greed

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  • Joe August 18, 2010 at 9:37 am

    only if i had a dollar for every right hook avoided, or near miss by ppl that are in a hurry for what?

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  • wsbob August 18, 2010 at 9:47 am

    "... Sue the driver if it makes you feal better, it won't bring back your loved one,.... crosswalks are still crosswalks without paint and lights. ..." jim #31

    Not all crosswalks are the same in terms of function and safety. Some crosswalks, like this one, in addition to extra precautionary measures taken on the part of pedestrians that use them, require exacting signal hardware to achieve an acceptable level of safety.

    Lawsuits can't bring back loved ones...true...but in some instances like this one, sometimes they're the thing that finally is able to compel government officials to have installed, the safety measures necessary to make the infrastructure adequately safe.

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  • middle of the road guy August 18, 2010 at 11:49 am

    @15 151

    "Murder", as defined in common law countries, is the unlawful killing of another human being with "malice aforethought"

    Seriously, you really want to use that word?

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  • CaptainKarma August 18, 2010 at 3:06 pm

    Enough has already been said, and I sure don't want to take anything from the families involved, however!

    A. The driver/cell phone issue might be able to be resolved by tower triangulation - the cell company's computers can determine if his phone was operating probbly accurate to about 50 ft of the impact. Not sure if that'd be good enough in court though.

    B. Ever since I moved here in the winter of snowpacalypse, I have annoyed my family by stating my desire for a law requiring peds to have a light or at least a reflector. Seriously! I have seen a few folks with enough common sense to actually wear a $2 L.E.D. blinker when it starts getting dark around 4:30 PM. Smart folks. Wasn't trimet or somebody handing out something like that as a freebie? I personally, have a bicycling reflective wrist band with me on my key ring, sometimes two, and often have my knog-lights with me too.

    C. Peds (and bikes) often act with a sense of entitlement and invulnerability. While they have the *legal* entitlement, they are not superman/woman and are actually vulnerable to more than green kryptonite. Knowing how distracted drivers are actually scares me!
    I spent a lot of time in the military and they are often ahead of the power curve when instituting new social reforms. For instance they have been stressing for years pedestrian right-of-way and all that, but at the same time, inform peds that they are dumb-a**es if they step out in front of a moving vehicle. But mainly, most military installations have a MAX 25 mph motor vehicle speed limit if there's even the possibility of pedestrians. THAT'S what would make a difference

    -And of course, hands-free cell phones, which really should be NO cell phones.

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  • mike August 18, 2010 at 10:10 pm

    Uh, Look both ways before crossing?

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  • Merckxrider August 19, 2010 at 10:56 am

    I hope that the murder victims' families kick the city's ass in this one. It would be the best result to have police watch for speeding to the point where the ACLU complains about the PPD's oppression of drivers.

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  • jim August 19, 2010 at 3:46 pm

    the city didnt kill- it was the driver

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  • pdxer August 20, 2010 at 1:34 pm

    Why are they seeking $3 million in noneconomic damages when juries can't award more than $500,000? I get the purpose of negotiating, but this probably not the attention the family wanted.

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  • aaronf August 21, 2010 at 2:09 am

    I think they should sue Daylight Savings Time.

    When crossing, merging, and so on, always assume they don't see you until you make eye contact or are far enough away that it doesn't matter, or eventually you will get hit. And, you might get hit anyway, by someone driving in the bike lane or something. Such is the world we live in.

    I feel awful for the families, and the driver.

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