(Photos: Jim “K’Tesh” Parsons)
The Oregonian is reporting that Austin Miller’s mother, Stephanie Miller, has filed a $2 million lawsuit against TriMet in the death of her 15 year-old son.
According to the Oregonian, the lawsuit claims that the TriMet driver was, “negligent in failing to keep a proper lookout for bicycle traffic.”
On February 11, Miller was riding his bike home from school and had just re-entered the roadway of SW Farmington Road (after riding on the sidewalk of SW Murray Blvd.) when he collided with a TriMet bus and was killed.
bike he was last riding, before
a memorial ride last week.
In April, a Beaverton police investigation absolved the bus driver and said the collision was “unavoidable.” That report also found that Miller entered the roadway against a pedestrian traffic signal.
Last Saturday (6/14) about 35 people (including Miller’s family and classmates) attended a memorial ride in Beaverton. Performance bike shop presented Austin’s mom with a new bike for the ride and Austin’s brother Tyler rode the same bike Austin was riding on that fateful evening back in February.
A report and photos from that ride have been posted in the Portland Bike Forums.
For more on the lawsuit, read the Oregonian’s blog.
Read more about the Austin Miller tragedy in the archives.
It\’s important to recognize that the lawsuit alleges negligence and the Washington County DA was evaluating the driver\’s actions for criminality or violation of the Oregon traffic code. They are not the same thing, and conceptually negligence can exist without criminal culpability or a traffic violation.
Also, whether a collision was \”unavoidable\” is a conclusion that does not need to be made for one to make a determination of no criminal liability. Nor does such a judgment have any bearing on whether the driver violated the Oregon traffic code.
I thought that because Tri-Met is a \’public corporation\” there is a cap on how much a defendant can be awarded in a successful case (well below $2 million). Has this changed?
Thanks a.O., these civil suits seem to dwell in the gray area for me.For example, the case were the famous person killed his ex and her boyfriend I could not under stand how he was not found guilty in criminal court yet in civil court he was found guilty for something that should have thrown him in jail in criminal court. It doesn\’t compute to simple folk such as myself.
Scout and Keith:
I regret to admit that I may have attended law school in my past (I\’m almost recovered now). The Tort Cap was declared unconstitutional by the Oregon Supreme Court this spring. There is no longer a cap.
A plaintiff can win a civil suit for tort after a defendant has been found not guilty on the same facts. The reason is that the criminal standard of proof is much higher than the civil one. In a criminal trial the jury has to conclude that the defendant violated the law \”beyond a reasonable doubt.\” In a civil trial, the jury need only conclude that the defendant was negligent \”by a preponderence of the evidence.\” It is much easier to prove negligence than guilt. When you think about it, this makes good sense: as a society, we require a much higher standard of proof to take away someone\’s freedom than we do to take away some of their money.
After the sizable amount of information the public had available about this case, I feel safe to say that this is very winnable for the Miller family.
It is also an opportunity (once again) for Tri Met to not only learn a lesson about the manner in which they \”serve\”(lol) the public, but also to admit to and start doing something about the serious problems involved in being a cyclist anywhere near a Tri Met bus or train.
I also hope the Miller\’s and their attorney\’s bring up the combination of multiple prescription, and non prescription (over the counter) drugs she was taking admittedly that day. Along with the strong drug nicotine that was in the cigarette she was caught by a passenger smoking ON THE BUS!!!!!
While she would and did pass the drug/ alcohol test they gave her, logic screams that the combination of drugs in her system (or anyone\’s) could easily impair judgment and driving ability.
Ken\’s absolutely right. There is also another importance difference between criminal guilt and civil liability for negligence (unlike Ken, there is no hope for my recovery – I\’m f*cked):
In a criminal case, the DA has to prove some culpable mental state. This usually means that the defendant \”intentionally\” did something (as that term is defined legally).
In a civil negligence case, your mental state is largely irrelevant. Even if you testify you didn\’t know what you were doing that injured someone else, if the jury believes that a reasonable person in your position *should have known,* then you could be negligent.
So in addition to being easier to prove, it\’s easier to be negligent than to be guilty of a crime.
And here\’s a short editorial on the tort cap: Designed by big business lobbyists and enacted by legislators under the influence of such lobbyists to protect big businesses from fully compensating those they injure. Oh yeah, and definitely unconstitutional.
I posted a comment, but it is awaiting moderation.AARGH!
Thats one strong family! wow..
Time for the completely unrecovered and unrepentant attorney to chime in:
Ken (post #4) – There is most definitely is still a cap on tort claims against public bodies. Last year\’s decision in Clarke v. OHSU held only that, under the specific facts of that case, where the defendant admitted that the plaintiff\’s damages were in the millions of dollars, the $200,000 cap as applied to actions against the individual employees of the public body was an unconstitutional deprivation of the plaintiff\’s right to a remedy under Article 1, section 10, of the Oregon Constitution. The court upheld the constitutionality of the cap as applies to the public body itself (in that case, OHSU), however, and left open the question as to whether a higher cap (or a lower cap to damages ratio) would still be constitutional.
And A.O. (post #6), you are confusing the tort cap at issue here with the movement for tort \”reform.\”
The Oregon Tort Claims Act (aka the tort cap on claims against public bodies) was enacted as a trade-off for the state\’s agreement to waive sovereign immunity in certain cases. Historically, individuals could not sue the state for injuries they suffered as a result of state actions (\”The King can do no wrong.\”) In return for allowing such lawsuits, legislatures enacted caps on damages to ensure that the state coffers (which, I might add, are filled through our taxes) were not depleted by lawsuits.
Tort reform, on the other hand, IS the creature of big business and insurance companies. Oregon has had its share of such laws, and litigation over the constitutionality of such laws, but they should not be confused with the Tort Claims Act.
Time to climb down off my appellate geek soapbox and go ride my bike . . .
I don\’t think I was confusing the Tort Claims Act with tort reform. I understand the distinction you are making, but I think the motivation is the same. Now, feel free to call me a cynic.
I was going to say the same thing.. I also thought the tort cap was only applied to OHSU. To my understanding, it was not applied to government agencies in general. I think the tort cap makes sense in this case. Here was a driver, trained better than most drivers on the road and driving a larger vehicle than most in order to carry the public from one place to another (performing a public service). If the driver was negligent, appropriate action should be taken by TriMet to remove that person from driving a bus in the future. TriMet has done far more than the motoring public at-large to ensure safety on the road. While I lament the death of anyone on bike or foot, I don\’t think a $2 million lawsuit solves anything. If anything, it hampers TriMet\’s ability to provide a crucial public service to hundreds of thousands of Portland Metro riders daily. Maybe those hundreds of thousands of TriMet riders should pay higher transit fares as a result of this one driver\’s incompetence or just get back in their cars and drive themselves? Whether or not you like TriMet, they are a public agency and they serve a public purpose, as determined by our state legislature and governor. Everyone\’s entitled to their own opinion of course.. that\’s what blogs are for.
Since there are so many lawyers around here… Why wouldn\’t the family sue the driver rather than TriMet?
scoot: You don\’t need to be a lawyer to figure that one out. Of the two, which do you think has more money?
cyclist (12): Yeah, I almost prefaced the question with a \’besides the obvious money…\’ But then I wondered, would the driver\’s insurance company have to pay if the driver lost a negligent driving suit? There\’s plenty of money there.
Scoot, your question is actually a very good one – and it implicates the Clarke decision that Ken and I had referred to – before that decision, under Oregon law, the family could NOT sue the driver – they could only sue the public body – again, it had to do with the public body\’s waiver of sovereign immunity. In the Clarke decision, after reviewing what remedies the family would have had at common law in 1859 (the year the Oregon Constitution was adopted), the Supreme Court decided that preventing the family from suing the individual employee, or at least capping the amount they could get by suing the individual employee, violated the remedies clause – at least in that case, where the damages were in the millions.
So now, a plaintiff can name the individual employee as a defendant, but then the question becomes whether it is worth it economically – if the driver has no money, and a low insurance limit then the only recourse is the public body. Anyway, this is all pretty complicated to try explain in any useful detail in a blog posting – suffice it to say that suing the driver here would probably be more trouble than it is worth 😉
Here, here \’East Portlander\’!
You all are kidding me, right?
Incredibly sad ACCIDENT.
Poor family, I support them in their grief, and wish all parties to this tragedy well, including the driver, who I would assume is traumatized; but enough with the talk of suing an already burdened system.
I\’ve been of the belief this incident incapsulates just about all the concerns I have as both motorist and pedaler.
Icarus, you must be kidding about the nicotine, as that is a legal substance (reverse twinkie defense?).
Attempting not to be too crass, but the largest contributing factors to this tragedy are in evidence every day here on Hawthorne – earphone wearing, overly aggressive pedaler breaking the law (blowing stoplight), while passing on the right – the inherent conflicts that arise when pedalers want it both ways by traversing the motorways, rather than take the more defensive move and use the less congested sidestreets, etc., or simply obey ALL the traffic laws.
Peace be with the parties to this, and let\’s all learn something.
Gracious, who knew so many lawyers rode bikes. Cecil is completely correct that I oversimplified the analysis of the Tort Cap (to spare you all the details). I should have said that the cap is effectively gone (though even that is a slight oversimplification). Here\’s the deal. The cap was upheld as to public institutions in Clarke. However, the court struck down a law that prevented one from suing public employees. So, now you can sue the employee. Another state statute requires the state to indemnify state employees for liability (i.e. insure them). So, when the Miller family sues the bus driver, any award will be paid by the state. So, it does not matter how much money the bus driver has, because the state will be paying anyway. The state can certainly afford $2 million. Cecil is also correct that a new Tort Cap could be passed with higher limits than the current $200,000 that might be declared OK by the state supreme court. However, the state has yet to do that. My read is that as it stands now, there is effectively no cap.
East Portlander: The Tort Cap did not apply only to OHSU. It applied to all government agencies including teachers, the police, bus drivers, etc. That\’s why all state institutions are scrambling to buy insurance. They will be paying some big awards in the near future.
And Tri-Met, in particular, will be paying some big awards if they continue to allow their drivers to act as they do on the road. Of course I\’m not saying that all the Tri-Met drivers are bad, or even that they\’re out to get cyclists, I\’m just saying that some of them are clearly negligently or recklessly, or both, putting others at risk of serious injury or death. Tri-Met needs to take responsibility for that – reign them in or pay for the damage they cause.
Y\’all are too smart for me! 🙂
I\’m glad we have so many intelligent people who can explain this stuff to the rest of us…
Not to say the rest of us aren\’t as smart as they are, we\’re just smart in other ways.
Thanks, Cecil, Ken, A.O.! I always learn something from your posts, even if I don\’t always agree with your points-of-view.
Note the headline on oregonlive:
\”Bicyclist wearing iPod blows through stop sign, hits bus, is killed. Mom sues.\”
The story doesn\’t say this, but the link on the main page does.
postmoves, the causes of the Austin Miller tragedy are not so easily explained as you seem inclined to think. There\’s loads of material in the archives of this weblog, the O and the Tribune, and the official police investigators report as well.
You and everyone else inclined to dismiss Miller\’s death as a simple result of a cyclist thinking only of themselves would be helping everyone out if you\’d read and familiarize yourselves with some of the details of the incident before coming to such a conclusion.
\”…the inherent conflicts that arise when pedalers want it both ways by traversing the motorways, rather than take the more defensive move and use the less congested sidestreets, etc.\”
The hypocrisy in this statement is almost beyond belief. What would you think if I suggested that you drive more defensively and take the less congested sidestreets? Or if I told you that you couldn\’t take them because it creates conflict?
We\’re not leaving the \”motorways,\” as you put it. We have the same right to them as you do. Get over it. And share the road. Or else you will end up as a Defendant just like Tri-Met.
Sue Beavertown too, for leaving an ill-designed roadway and bike merge ripe for such a fatal accident.
\”Icarus, you must be kidding about the nicotine, as that is a legal\”
I am not kidding about the nicotine.
My point was that he combination of legal prescriptions, over the counter pain pills, and nicotine, could very well impair judgment.
Everything in her system was considered \”legal\”, or the drug/ alcohol test never would have been passed.
It is very possible to become impaired, no matter how \”legal\” the drugs are.
I get a hell of a buzz off of a cigarette alone, and would barely be able to drive. Add a handful of other substances, and I would hardly be able to find the keys.
I believe it could be used in this case to not only show possible impairment, but also a disregard for the responsibilities of driving a massive metal machine.
Not to mention the disregard for the regulations she works under, as she was caught smoking a cigarette \”ON THE BUS!\”
re postmoves, #16:
> \”…the inherent conflicts that arise when pedalers want it both ways by traversing the motorways, rather than take the more defensive move and use the less congested sidestreets, etc.\”
You may not realize this but there really are no such thing as \”sidestreets\” in Washington County, where Austin lived and went to school.
In Washington County almost all roads that go any significant distance are huge monstrosities of roads, not bike-friendly sidestreets. Pretty much the closest thing we have to \”sidestreets\” in Washington County are spaghetti streets and cul-de-sacs.
Maybe the real question should not be \”Why wasn\’t the bus driver more careful\” or \”Why wasn\’t Austin more careful\”, but:
\”Why doesn\’t someone sue Washington County for failing to provide safe bicycle routes for kids?\” (or adults, for that matter).
I noted back when the investigation report was released by Beaverton Police that the information regarding what medications the driver had been taking at the time of the accident was redacted.
Normally I support an individual\’s right to privacy. However, in the circumstance of their involvement in causing a death – of a teenager, no less – I believe it is irresponsible for them to conceal their medical records. I\’m not a scholar of Oregon state law; I don\’t know whether the court could force her to release those records or give testimony regarding the medications she was taking; I believe the case hinges on whether or not those records are made public.
If those records are still being covered up, and if TriMet or the driver herself refuses to release them, I can\’t help but think the defendant has some damaging information they want to hide.
Additionally, I\’m appalled by the amount of bad journalism I\’ve seen on this development. Austin Miller did not turn left onto Farmington while traveling southbound on Murray; he turned right, exiting the sidewalk and entering the roadway. I\’m very familiar with this intersection and I have been to the site of the accident. The system for directing bike traffic through the Murray/Farmington intersection is shoddy and dangerous, and I agree with Moo: Beaverton bears some responsibility just for that.
I agree with most of what Postmoves said. This entire country is f&^% when lawsuits like these are continually brought forward.
Like Postmoves, I feel just AWFUL for this mom, I can\’t imagine the incredible pain of losing a child and I shudder at the thought. I also can\’t imagine that ANY amount of money could compensate for that loss. If she had actual monetary losses she could lay out – funeral expenses, medical expenses, unpaid time off from work, even counseling for her and her son, I would support that, but I don\’t really see how that can amount to 2 million. I also believe, from my own personal spiritual philosophy, that pursuing this probably delays her own healing.
That is 2 million from all of us folks – 2 million that tri-met could be spending on improved safety precautions or bike hangers on the train or what-not.
And as far as the negligence vs. guilt thing, I honestly think we all get that and it\’s not the point. The point is not whether she can legally do this or if she has a chance of winning because obviously she foudn a lawyer who thought she had a case or she wouldn\’t have filed. The point is what is right and what this does to our country. We are crippled by fear of lawsuits.
Eileen, yes there is a lot of questionable litigation in this country, but have you followed the details of this incident? Should Austin Miller\’s family really have just left things as they are now?
\”That is 2 million from all of us folks – 2 million that tri-met could be spending on improved safety precautions…\” Eileen
But when will that amount of money be spent upon eliminating the obvious hazard inherent in the Murray-Farmington intersection design?
Tri-Met allowed it\’s buses to use that particularly congested bus turn-out even when it\’s clear to anyone that\’s used it or studied it, that an exceptional potential for mishap exists with it\’s proximity to the multi-use path Austin was riding on.
Read the investigators report: Tri-Met allowed a driver that is quoted in the report as not having been familiar with that particular route, to drive it and use that particularly dangerous turn-out. Does that not start to sound a little bit like negligence?
Where had Tri-Met, the county and Beaverton been in affecting safety improvements to this intersection? Did they just wait, and wait, and wait, and dawdle around doing nothing until finally some poor kid goofs up and pays for their slowness to respond? If not a death and a suit, what will it take for them to get on the ball?
Crippled by fear of lawsuits? Please. Give me a break.
Eileen, when someone talking on their cell phone runs over your son, just suck it up and deal with it. Don\’t try to get anyone to pay his medical bills. It\’s ruining our country.
Eileen has been brainwashed by the corporate privateers and their GOP lap dogs.
\”Where had Tri-Met, the county and Beaverton been in affecting safety improvements to this intersection?\”
More importantly, what did the boy\’s mother do, as a voter and citizen, to get that intersection improved if it was so obviously bad? Or did she just plod along in her comfortable life not caring about a thing until her boy got run over? Is there any way she can be sued for not teaching her son how to operate a bike the road properly? Is child protective services listening?
And you, DJ everybody-must-know-where-I-rode-my-bike-once, have been brainwashed by Chairman Mao. In this country, people pay for their own insurance so they can have medical care. And now you know why this is a better place than China.
Um, DJ I don\’t think you read my post. I said,
\”If she had actual monetary losses she could lay out – funeral expenses, medical expenses, unpaid time off from work, even counseling for her and her son, I would support that.\”
And by the way, if my son were run over and killed, I would be devastated. Beyond devastated. And I would expect his medical bills to be paid, funeral expenses, etc. But I wouldn\’t think that a large sum of money would make me feel better. Which is why it\’s ironic that you say I\’m brainwashed by corporations and the GOP – wouldn\’t I like money a lot if that were the case? I don\’t like money at all, I think that people think money will make them happy and it won\’t. The quest for money and stuff is why our country is falling apart. I could go on, but I will start to say things that will really raise eyebrows and I don\’t want to tangent too much. I am just trying to make the point that I am the opposite of \”brainwashed by the GOP\”.
If the tri-met driver had committed a traffic violation or been talking on a cell-phone, it would be a completely different story. I\’m talking about a situation where, in my opinion, it\’s really sad that this happened, but also really hard to pin blame. Sometimes things just happen and we are all so anxious to say it was somebody\’s fault and be compensated for it.
I think the best thing to happen is to learn from it. How about a forum in the courts where civil cases like this can be brought forward and tri-met be forced to make amends for \”negligence\” by fixing the intersection and all other intersections with similar problems? I imagine it would be possible wouldn\’t it? law students? That makes a lot more sense to me.
Outside of the evidence of the case, I personally am morally opposed to suing for anything beyond compensation for actual monetary losses. I don\’t think money for pain and suffering or punitive damages should be allowed. It has nothing to do with the facts of this case, that is my personal opinion. It is not because I want to protect corporations (which is completely laughable), it\’s because a) I dont\’ think money will actually help and b) we all pay for it in the end. I think we need to get out of the mindset of \”something bad happened to me, so fork over the cash.\” There are a lot more reasons behind this which get more and more complicated, philosophical, sociological, religious and so on, so I\’m just gonna shut up now.
This intersection was designed, built and is maintained by Washington County. It just happenes to be inside Beaverton but they have nothing to do with it.
drive bus for a living, commute on bus – often with bike.
driving is bad.
thank the poor sods who choose this as a profession.
they\’re certainly not motivated by the money