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Lawsuit says City of Portland was negligent in Greeley Ave crash

Posted by on August 31st, 2018 at 8:19 am

The crash scene on the I-5 on-ramp.
(Photos: Portland Police Bureau)

A notorious stretch of North Greeley Avenue where it crosses over an on-ramp to Interstate 5 is the subject of a lawsuit filed yesterday by a Portland law firm.

The blue Surly ridden by plaintiff Robert Smith.

Thomas, Coon, Newton & Frost lists three defendants — the City of Portland, the State of Oregon and the driver, Brandon Swiger — and asks for $1.36 million on behalf of their client, Robert Smith.

Smith sustained life-altering injuries as a result of being hit by Swiger while bicycling on Greeley on December 21st, 2017. Smith’s medical expenses to treat a traumatic brain injury, multiple bone fractures, collapsed lungs, and injuries to internal organs have totaled over $359,229.

The complaint (below) filed yesterday in Multnomah County makes claims of negligence against Swiger for his careless driving and against the city and state for their failure to manage and maintain the roadway.

p-Complaint- Robert Smith-CONFORMED

According to the police report, Swiger was driving southbound on Greeley on his way home from work at about 1:45 pm in his Honda Crossover (a mid-sized SUV) prior to the crash. There are two driving lanes at this location; the left lane curves eastward toward Interstate Avenue and the right lane goes onto the I-5 ramp. According to witnesses and Swiger’s own statement to the responding police officer, Swiger had moved into the left lane prior to the merge to pass another driver and then moved back into the right lane just before making impact with Smith’s body.

“In addition to this location being a known safety hazard, there was plenty of notice to the responsible authority that it should be fixed or somebody was going to get hurt, so was pretty frustrating when it actually happened.”
— Ray Thomas, attorney for Robert Smith

The police report states that Swiger estimated his speed to be around 55-60 mph. The posted speed limit is 45 mph.

One witness who saw the collision told police that Swiger and another driver both passed her, “As if we were standing still.” Another witness said Swiger had been “tailgating” her prior to changing lanes. As a result of his behavior, Swiger was issued a citation for Careless Driving with Serious Injury to a Vulnerable Road User (ORS 811.135(3)).

Swiger’s careless driving was amplified by an intersection with well-known design flaws that have been flagged as a hot-spot for collisions and close-calls for years.

Greeley is a busy, four-lane “freeway” (a term for the road used by a Portland Bureau of Transportation staff person in a meeting last year) where people using bicycles are required to merge from a relatively narrow curbside lane across a lane where people often drive 50-60 mph. The crossing is not signalized or marked except for a small caution sign off to the side of the road. In February 2016, in a report on a separate serious injury collision at this same location, I wrote that this is a completely unacceptable design for a bikeway.

The design is so dangerous, PBOT wants to shift the bikeway to the other side of the road.

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In February of 2017, 10 months before Smith was hit, PBOT announced plans to build a physically protected, bi-directional multi-use path on the east side of Greeley. However, that project was delayed in July 2017 due to a contracting technicality and the timeline for completion was pushed back to this past spring. In June of this year PBOT announced another delay and the project is now expected to be built in spring 2019.

The lawsuit says PBOT and ODOT (the agencies have overlapping jurisdiction of the roads at this location) are negligent for six reasons:

a. Designing the intersection so as to require a cyclist in the southeast bound bike lane to cross a freeway entrance ramp where traffic routinely travels at 55-60 miles per hour;
b. Establishing a bike lane on N. Greeley Avenue southeast bound, knowing that bike lane would cross the freeway on-ramp;
c. Failing to provide a means of traveling on the southeast bound bike lane on N. Greeley Avenue without crossing the freeway on-ramp;
d. Failing to provide a bike lane on the northeast side of N. Greeley Avenue to accommodate both northwest and southeast-bound bicycle traffic;
e. Failing to warn approaching traffic of the bike lane crossing; and
f. Failing to close the bike lane until a safe design could be implemented

Smith’s attorneys are asking for $358,229 to pay his medical expenses and $1 million in non-economic damages.

In an interview yesterday, attorney Ray Thomas, a rider himself and well-known cycling advocate, said, “In addition to this location being a known safety hazard, there was plenty of notice to the responsible authority that it should be fixed or somebody was going to get hurt, so it was pretty frustrating when it actually happened.”

To win in court, Thomas and his partner on the lawsuit, Cynthia Newton, are likely to face an attempt by attorneys for the city and state to dismiss the case at the outset. They’re likely to argue their clients can’t be held liable by way of discretionary immunity, as outlined in ORS 30.265(6)(c). That statute says a public body is immune from liability for, “Any claim based upon the performance of or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.”

According to the Oregon Court of Appeals (John v. City of Gresham, 2007) discretionary immunity applies to policy decisions, “that involve a balancing of competing policy considerations in determining the public interest.”

Put another way, government agencies make decisions about how to allocate funds and design and maintain their roads, and the law protects them from being sued for making bad decisions. But there are exceptions. Among the reasons a judge might conclude that immunity does not apply are: if a public body decides on a course of action then fails to follow it; if their actions were based merely on fact (like whether or not a design conforms to national standards) and not a conscious judgment of policy; if they fail to respond to changing conditions; or if they fail to follow an established maintenance program.

Recent cases where PBOT and ODOT have been sued for negligence did not go to trial and resulted in settlements. In February 2017 the State of Oregon and the City of Portland agreed to pay the family of Martin Greenough $23,000 for their role in his death that resulted from an intoxicated driver hitting him in a bike lane gap on North Lombard. And in March of 2017, Portland paid a settlement of $525,000 to a man who was seriously injured while biking on a dangerous section of North Interstate Ave.

Win or lose, Thomas believes lawsuits are an effective way to hold government agencies accountable.

“I think these design and maintenance cases are important,” he shared with me earlier this week. “And if things go as they should with this case, what will happen is that the next time the city decides to dither on something, they’ll say, ‘Remember what happened on Greeley? We put it off and a guy got nailed just like everybody said was going to happen, and we got sued. So maybe this time we should expedite the process. We have a safer design, let’s expedite the process.’

— Jonathan Maus: (503) 706-8804, @jonathan_maus on Twitter and jonathan@bikeportland.org

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Matthew in PDX
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Matthew in PDX

N Greeley is so dangerous that I will not cycle on it, and am loathe to drive on it. When I do drive on it, I usually set my cruise control to 45 mph, so that I don’t speed. Speeding is so prevalent, that any driver can subconsciously speed up to keep up with traffic. I don’t care if everyone is passing me, I drive the speed limit. Even at 45 mph, that road is very dangerous for cyclists in the unprotected cycle lanes. There are numerous large UPS trucks heading to/from the UPS depot in Swan Island and, as noted, most drivers think that it is appropriate to travel 55 – 60 mph on that stretch, even though there are bike lanes on both sides of the road. Its just a horrible stretch of road that is best avoided if possible.

billyjo
Guest
billyjo

I just don’t see how the city can be responsible when it is known to everyone how dangerous this area is.

Chris I
Guest
Chris I

The externalized societal costs of driving in action here. We need a state law requiring $500,000 minimum liability coverage for all drivers. Our existing minimums are not enough. This lowers the cost of driving for drivers, and foots the rest of us with the bill for their carnage.

dan
Guest
dan

Earlier this summer, when they were doing construction on the I-5 entrance ramp, the contractor had placed barricades to force bicycles into the lane with motor vehicles! This despite the fact there was clearly room to allow bicycles past where the barriers were set up before the actual construction zone.

I e-mailed the city and got zero response. So, while I think that waiting for someone to suffer life-changing injuries (or death) and then suing the pants off of PDOT is a shitty way to get improved facilities, the city certainly deserves to get their pants sued off, and if this is the only way to get them to care, then so be it. I look at so much of the bike infrastructure in town and say “really? Would you ever ask a motorist to go out of their way like this / put themselves at risk like this?”

Dan Forester
Guest
Dan Forester

I know this route, and this specific hazard, very well. Best wishes for his recovery, and I hope he gets every penny.

ricochet
Guest
ricochet

yo J.Maus- the driver who killed Martin Greenough was intoxicated, but not drunk. The article you link to was also corrected to reflect this.

Ken S
Guest
Ken S

This intersection is insane and, sadly, fits into the usual layout of ODOT roads with bike lanes.
I’ve seen dozens of roads where there’s a bike lane having to cross an onramp and the default design seems to be
*put the crossing far down the ramp, where cars are building up speed
*give the cars zero opportunity or incentive to yield to cyclists
*force cyclists to slow, make awkward turns to cross the onramp at a 90 degree angle, OR
*force cyclists to ride diagonally across the auto lane, making their time of exposure as long as possible, with their backs to the oncoming traffic.

I’ve ridden Greeley a few times and if there’s not a long enough gap in traffic to safely move across the auto lane, you just have to pull up and stop, then wait however long for a gap in traffic to then sprint across, from a dead stop. Could be a few seconds, could be 15 minutes. Who knows!

I agree with the sentiments of other commenters:
City, County, State, and the driver all need to get sued into the ground.
If it’s not motivating enough that “it’s their job” or “the right thing to do” maybe they’ll respond to an extremely painful monetary penalty.

I hope Robert recovers. It’s pretty remarkable he survived getting hit at 60mph.

maxD
Guest
maxD

I truly hope that they win this lawsuit and that PBOT will wake up to the reality of Greeley. Their proposal to “fix” Greeley for bikes is totally inadequate and merely swaps one set of dangerous conditions for different dangerous conditions. Meanwhile, their proposed work does NOTHING to address the problem on Greeley: The median speeds are above 55 mph in each direction. At the behest of the freight community (the project is being funded with money earmarked for freight access) PBOT is actually widening lanes to INCREASE speeds. When asked about Vision Zero, PBOT explains that this is not identified as a Vision Zero Project. When asked about the high speeds making it unsafe to drive here, PBOT shrugs. When asked how they will address the myriad shortcomings of 1/3 of the bike route, PBOT says it is not in the scope of the project [FYI, the proposed 2-way bike lane only extends 2/3’s of the length of this new bike route, then it becomes a concrete walkway that is less than 10-feet wide and shared with motorized vehicles servicing Hazelnut Grove, either personal vehicles or dealing with trash pickup/portable toilets. The walkway also will dead-end into the 5-foot bike lane at the bottom of the hill on Interstate where 2-way bike traffic using Greeley will have to share a single curb cut, and southbound users will have to negotiate a curb cut on to a 5-foot bike lane adjacent to traffic coming down a big, steep hill, and possibly merge with bikes/scooters. It is all just so shitty and poorly thought out that one can only conclude that this is a cynical ploy to remove bikes from the road to make space for faster freight driving. I cannot see how this road design meets any safety standards for any user and it has not place in an urban environment. This stretch of Greeley is less than one mile long. Traffic speeds should be reduced to 30 mph, lanes reduced to 10-11 feet, and barrier-protected bike lanes should be on both sides of the road. Instead of a new expensive signal at Going Greeley with added time for a diagonal bike crossing, there should be a new signal to get on to the ramp to 405.

bikeninja
Guest
bikeninja

I agree that PBOT and ODOT’s days of sacrificing cyclists on the alter of happy motoring needs to come to an end. If they can’t come to this conclusion via logic, and vision then they may have to be sued in to making the right decisions. I am only sad that more good and righteous cyclists will have to be sacrificed to drag the traffic authorities in to the future.

Bald One
Guest
Bald One

A bi-directional bike path on this section of Greeley is not a good idea. It will create many new problems for cyclists. This issue in this intersection can be fixed in other ways. The city should not implement their bi-directional bike path on N. Greeley but should instead continue to work on better design solutions and find a way to slow speeding vehicle traffic and prevent dangerous and illegal driving behavior.

David Hampsten
Guest

Was PBOT negligent for not designing this section correctly for cars going well over the speed limit as they commonly do, or did PBOT in fact correctly design and execute the project for the posted speed limit? The driver was apparently driving intoxicated and well over the speed limit, something no jurisdiction can actually design anything for.

This case remind me of the one a few years ago on Hawthorne when a young woman was killed by a speeding Saudi Arabian national using the median as a high-speed lane. No city can afford to design, let alone build, for every environment to handle every kind of stupid or insane driver.

And of course this begs the question of enforcement. Was PPD enforcing the speed limit? Did the producer of the driver’s car have speed governing technology installed?

The sad reality is that if any huge lawsuit succeeds, PBOT’s bike infrastructure budget will likely get slashed further – $1 million is a lot of money for PBOT – and the car-oriented budget will expand “to make driving safer.”

Lawsuits kill innovation at public agencies – designers are too scared to try anything new.

SD
Guest
SD

20 is plenty.
What is the point of having high speed roads like this in the city?
The seconds that are saved from driving fast are meaningless when compared to the years of life lost due to high speed collisions.

maxD
Guest
maxD

“Was PBOT negligent for not designing this section correctly for cars going well over the speed limit as they commonly do, or did PBOT in fact correctly design and execute the project for the posted speed limit? The driver was apparently driving intoxicated and well over the speed limit, something no jurisdiction can actually design anything for.”

I think it would be a gross overstatement to say PBOT “designed” this- the current design is lame retrofit that barely accommodates bikes but does nothing to address the speeding and unsafe driving that is routine here. To say lawsuits stifle creativity seems to fly in the face of experience: PBOT has unveiled plans to “re-design” this stretch of road, but the “re-design” is in reality just a shunting of bikes off the road and a simultaneous widening of traffic lanes. I think a lawsuit could actually prompt PBOT to embrace creativity and address real and known safety issues instead of pandering solely to freight interests.

Caoimhín
Guest
Caoimhín

Several years ago I was riding with my daughter for her first bike ride to her high school. As we approached that crossing, we heard tires screeching behind us as it tried to avoid hitting a biker ahead of us as he crossed that ramp. The biker thought he was clear to cross, as the car had been in the left lane, but just as the biker made his move, the car had switched to the right lane for the ramp at the last second. The car avoided hitting the biker, but with locked wheels, it nearly lost control and almost hit my daughter and me in the bike lane. My daughter got such a scare that has never ridden that route since then.

pruss2ny
Guest
pruss2ny

any precedent for a municipality, in recognition of what a lawsuit like this portends for future liability costs vs. the large price tag for providing truly safe/separate infrastructure, instead opts to ban bikes on “dangerous” roadways? ie. any roadway where traffic moves > 20mph? …enforcement could be a blind eye, but future liabilities could be sidestepped.

Dave
Guest
Dave

Too bad we don’t just have an automatic assignment of guilt, beyond any appeal, for drivers who are exceeding the speed limit at the time of an assault on another road user. And, let’s get rid of this candyass “accident” language, call these incidents assaults and murders. Let’s start loading the language we use to presume guilt and hopefully stigmatize the drivers involved.

Mark smith
Guest
Mark smith

What’s it called? Stockholm syndrome? This strode/road/highway is an abomination of horrors in Portland’s back yard. The strode is like the crazy neighbor down the street who invites tweakers to their house for weekend parties. The neighbors turn away their eyes week, after week. Until they find a dead body in the back yard and and the neighbors say “why didn’t we do something?”

This road has no business. It’s a deadly mess. The road needs to be shrunk down now. It will happen when everyone who reads this post, calls. Or more will be dead.

Mark smith
Guest
Mark smith

Middle of the Road Guy
I find it strange that you lecture other people on traffic infractions when you yourself have admitted to running stop signs and ignore other traffic laws that don’t work for you.Recommended 13

I find it strange that anyone who attempts to discredit others over a minor traffic infraction, obviously has no argument. Can you research the pile of deaths and maiming caused by a bike rolling a stop sign?

Now, let’s talk about the genocide that is caused by vehicles….

Mark smith
Guest
Mark smith

Bald One
A bi-directional bike path on this section of Greeley is not a good idea. It will create many new problems for cyclists. This issue in this intersection can be fixed in other ways. The city should not implement their bi-directional bike path on N. Greeley but should instead continue to work on better design solutions and find a way to slow speeding vehicle traffic and prevent dangerous and illegal driving behavior.Recommended 7

A wide enough path will serve cyclists fine. Bidirectional paths are everywhere. It’s not the Helter skelter hail Mary you portray.

Zeppo
Guest
Zeppo

I regularly ride a loop that takes me from UP down the Waud’s Bluff (?) Trail and over the RR tracks to Swan Island. I visit a business there and then ride on N Basin to N Going and take the narrow on-ramp to Greeley. I ride south on Greeley and say my prayers before hopping over the I-5 on-ramp and continuing to Interstate.

As many have noted, crossing the I-5 on-ramp is incredibly dangerous. I’ve had what I thought was a long gap in traffic, checked my mirror, waited three seconds and checked again – and the cars were right on top me. Someone mentioned that the only safe way to cross is to stop at the narrowest point, paste yourself against the jersey barrier, and wait for the right moment to skip across the lane from a dead stop.

The root cause of the problem is speeding traffic on Greeley – some of it going over 70 mph. If you ever cycle on Swan Island at 3pm, you’ll practically be run over by people driving cars and trucks who are in a hurry to get home. They drive as fast as they can on N Basin (four narrow lanes), do a race-track turn to get onto N Going (it really does look like a race-track there, with jersey barriers protecting the bus stop), and then zoom up the hill in the 7-8 lanes that narrow to 6 lanes that cross the RR tracks.

Amazingly, drivers have been mostly considerate of me as I have crossed the RR bridge, by merging into the two left-hand lanes and giving me the narrow right-hand lane. Also I’ve been surprised by how accommodating many drivers have been on the Greeley on-ramp. The nicest are the commercial big-rig drivers, who could actually squeeze past me but so far none have taken the chance. Maybe they’re on the clock and not worried about the time they are “losing” to follow a cyclist.

But I’ve noticed that once drivers are on Greeley, all bets are off. It’s like a raceway out there. I would never want to be a cyclist coming DOWN Greeley as cars and trucks come shooting onto Greeley from the N Going on-ramp. You must have to come to a dead stop there, just as you do for the I-5 on-ramp.

In summary, everything about this roadway says to auto and truck drivers: “You are now free to drive as fast as you want to reach I-5 and get home or deliver your freight or whatever you need to do.” But it’s also an important route for cyclists and we should be able to use it safely also.

q
Guest
q

Leaving Swan Island around 3 PM is scary enough DRIVING–total drag race from light to light. I’d guess there are more than a few drivers who’d like to see traffic slowed some on those streets.

BradWagon
Subscriber

g. Failing to close the auto lane until a safe solution could be implemented.

Bennett Shane
Guest
Bennett Shane

This might have been mentioned above somewhere, but taking the sharrowed, super chill bikeway through overlook costs all of 2-3 minutes versus taking Greeley, and actually saves having to ride uphill to get to the interstate intersection, after the dangerous merge where this poor guy got hit. It’s just not worth it, or even neccessary to ride on Greeley. I’m honestly not sure we need a bike path there, when we have interstate and overlook. What would be better would be to have the spiraly-overpass thingy rebuilt to be safer for bikes!!!!