(Photo: J. Maus/BikePortland)
The family of a 15-year-old Cleveland High School student who was killed while crossing Southeast Hawthorne Boulevard in 2016 will be paid $395,000 by the City of Portland. The settlement comes from a lawsuit filed by the Estate of Fallon Smart. The suit alleged wrongful death and negligence from the Portland Bureau of Transportation based on conditions at the intersection of Hawthorne and SE 43rd.
The tragic death of this young Portlander and the maddening circumstances surrounding the man who killed her are blights our city will never fully recover from; but this relatively rare and large payment by PBOT could be a positive sign that road agencies will take more responsibility to keep our streets safe.
In August 2016 Smart was struck and killed at that intersection by Abdulrahman Noorah as he sped recklessly down Hawthorne. Noorah was never brought to justice and The Oregonian reported he escaped house arrest with help from the Saudi Arabian government.
The location where Smart was killed had been a source of concern for years from local residents and business owners. Despite being a popular commercial corridor, there were no marked crosswalks and the area was known to be a hot-spot for speeding. Seven months after the tragedy occurred, PBOT installed a painted crosswalk and raised center median island. They also reduced the speed limit from 25 to 20 mph.
Portland lawyer and safe streets activist Scott Kocher, who’s litigated similar cases himself, says the settlement is, “a big deal.” “As tragic as this situation is and as incomplete as the justice is, I think it’s an important result for everyone to take note of.”
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“I believe the legal trend is following the social trend, which is to say that road injuries and deaths are out of control and transportation agencies actually have a part in that.”
— Scott Kocher, Forum Law Group
Historically it’s been very rare for government agencies and road authorities to be found liable for the unsafe condition of their streets. Under a sweeping legal concept known as “discretionary immunity” laws and the courts all but shielded government from responsibility. “There’s always been this fascinating question,” Kocher said in an interview today. “Where do you draw the line between a very dangerous roadway a city knows to be unsafe, versus making them fix every pothole immediately.”
In Kocher’s view, initiatives like Vision Zero and a growing urgency and awareness for safe streets in general, are finally catching up to the legal system. “The implication of vision zero is that you don’t just give the road authority a free pass for anything and everything, you view them as a proprietor of a place just as you’d view a hotel owner as proper of a hotel. If a hotel has rickety old railing, you can’t blame a user for falling on it. It’s the same if you’re a road authority and you know people are going 40-plus mph on Hawthorne past a bunch of cute little shops… at some point you’ve got to do something.”
“I believe the legal trend is following the social trend,” Kocher continued, “which is to say that road injuries and deaths are out of control and transportation agencies actually have a part in that.”
$395,000 is the largest amount Kocher has seen in a case like this. The fact that the City of Portland was willing to pay out this much means they felt a judge and jury would agree with the lawyer representing the Estate of Fallon Smart. He thinks it could have, “A ripple effect through agency decision making.”
Portland City Council will make the settlement official at their meeting tomorrow.
— Jonathan Maus: (503) 706-8804, @jonathan_maus on Twitter and jonathan@bikeportland.org
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4 to 3 diet conversions like this absolutely need to have solid medians about every 3 or 4 blocks. I have seen outrageous driver behavior on many of these streets when barriers are not included in the project (NE Glisan, Hawthorne, Division, etc). Can we have some sort of low-cost solution, like short concrete planters painted yellow? We don’t want to block intersection visibility, but we need to remove the idea that using the middle lane to pass traffic is a viable option.
I am so deeply saddened by the death of Fallon Smart and my condolences go out to all those who knew and loved her.
Initially I thought it would have been impossible for the perpetrator to get back to Saudi Arabia because he would have needed to take a very long flight, which, if direct, would need a large, wide-bodied jet. I clearly did not appreciate the lengths to which the Saudi regime will go to shield their citizens from justice. As a consequence of this, and the revelations of the Saudi government’s involvement, I think that all Saudi citizens should be considered an extreme flight risk when charged with a serious crime, and consequently held in custody until trial.
I think it is well past the time that road traffic planners in the USA started adopting best practices from around the world, including making extensive use of traffic circles/roundabouts and other speed reducing techniques. There is a lot of empirical evidence to show that these engineering techniques cut speed and consequently the frequency and severity of collisions between road users. We also need more extensive enforcement of traffic laws, especially the laws regarding speed, pedestrian crossings, operator impairment and vehicle safety/roadworthiness.
I appreciate your focus on the driver. He was one of the many perps in this death.
The young man behind the wheel was guilty. But even perhaps more guilty are the people who design deadly streets like Hawthorn was, and remains to this day. A cement island was a band aid to the chronic issues that haunt Hawthorne, Division, and the other high crash corridors. We even have chronic issues on side streets where there is not much death data, but there is enough intimidation that people feel it is too unsafe to walk or bike. Most people only feel safe on a bike on Sunday Street events.
What designed could have prevented that lunatic from killing? I’m really curious.
Mike. Your question was answered by other people here if you read first, then post questions.
Google it: zero road deaths norway 2019
so to answer your question: Norway has bad drivers, and the design of their roads and systems keeps them from murdering people like Fallon. Cities must elect and hire leaders who put lives before the agenda to widen roads. Norway has such leaders, that life saving leadership is seen in design all over the world. Norway has cities much more pack that Portland, but their travel times are lower. You just don’t see that life saving design in Portland much.
I bet you a Euro that if someone really wanted to murder someone with a car in Norway, they could.
Most traffic fatalities, including the one that lead to this lawsuit, are not murder.
I’m surprised that a self-proclaimed moderate is taking such a strong leftist, anti-car advocate type position on this.
I was referring to this sentence:
“Norway has bad drivers, and the design of their roads and systems keeps them from murdering people like Fallon. ”
Do you consider Fallon’s death a murder? Personally, I do not. I believe it was a reckless homicide.
My point is that it is behavior and/or culture, and that infrastructure will never be able to prevent someone with a bad intent. Do you think that in Norway, someone in a car could not murder someone if they wanted to?
Missing the point Guy.
clever!
Sorry, Middle o.t.r. Guy, no offense intended. But the claim that “if someone really wanted to murder someone with a car in Norway, they could” seems to be cleverly sidestepping the point of building this median island on Hawthorne.
I think you’re correct that this was an example of reckless homicide rather than outright intentional murder. Which is why I think it also follows that the quote I used above doesn’t necessarily apply here. Do you think most traffic deaths are murders? I don’t. I think they are usually the result of some combination of dangerous, but not categorically murderous, behaviors which in many cases can be influenced by infrastructure design.
If the medians had already been in place back in 2016, it’s likely that they could have prevented or interrupted the reckless behavior that caused Fallon’s death.
Narrow the street so it doesn’t look like an expressway. That’s essentially what PBOT did, and they knew what to do long before they could no longer deny the “why.”
You don’t need a wide-body jet to fly from the West Coast direct to Saudi Arabia – one small executive jet is all that’s needed, they are quite efficient and can fly very far indeed.
Please let me rant! Fallon was my student for 9th grade. I was the one the same night who painted the illegal white zebra crosswalk. Sue me.. Put me in jail. I do not care anymore. MLK talks about the need for maladjusted people who know (after you have attempted to reason with power ) you are compelled BY JUSTICE to take non violent action.
Jonathan, your, friends, and PDX transit leaders go easy on PBOT , Leah Treat and others
Leah is a huge component of why #FallonSmart got killed!
We have the same putrid pattern now as we did then. I feel disgusted by Chris Warner ( Leah’s replacement)
Reply to him on >> Twitter >> http://twitter.com/cwpdx13
Quoting the Oregon Live story:
“420 crashes…one-mile stretch of Hawthorne … 30th Ave and 50th Ave from 2005-2014”
Cities and entire countries have solved Vision Zero with leadership. It’s not money, it is mostly just leadership or lack of it.
>> More ranting >>> Fallon was killed one week before taking a 2nd year of my classes. She signed up! She helped every single kid in class even when they would be too shy to say they were stuck. It took the district 2 weeks to pull her picture off my seating chart. People have no idea what her mom and friends and family have gone through. Nothing. So many families and friends suffer for decades after these avoidable murders. 400k is nothing to the City. Large payouts have never changed Portland or any city. Look at the lack of action on police reform. Black Lives Matter, AND lawsuit payouts do very little to reform the system of power abuse. See footnotes for research on police violence.
PDX lacks leaders. We have bike sheep who go soft on our transit leaders. We should be ashamed of our lack of safety for pedestrians , and lack safe alternatives to driving alone. We should downgrade Portland from every transportation award and magazine. We should be revolted. We should be protesting and donating time/money to candidates who don’t make excuses. We should be revolting in the streets and pouring fake blood on ourselves at ODOT headquarters. I did that, and the result was fake bike activists in a fake group BIKELOUDPDX got all angry at some of us who did the fake blood trick. At every turn it was be less loud and work with the city. aHH PORTLAND where loud means be a sheep, stay in line.
>> more ranting and a picture… Mind you this was a year before Fallon was killed.
That picture above is fake blood. It was a year before Fallon was killed by the combined apathy of PBOT and the the “community” that should be holding PBOT and ODOT accountable.
Screw the system. Do what you can until the leaders of Street Trust and Bike Loud step aside. I have given over 2 Thousand to the BTA and hundreds to Bike Portland over the years. No more. Just buy shit and get it done with friends who don’t act like sheep.
Signed, Joe Rowe, Portland,
http://www.campuscopswithguns.com
Hi Joe,
Completely agree. I do think there’s a third solution that will be more effective than gory protests or politely working with the city: Power in numbers.
I believe our leaders have good intentions, but they don’t feel empowered to act boldly because they don’t have any strong political support to. Large numbers of people supporting a movement can, quite literally, move mountains.
I encourage you to sign this petition and share it with everyone you know: https://www.healthierhawthorne.com/
Please message me through the website if you want a stack of flyers to put up all over the city, or want to help in any other way.
I’m new to this city. I came here after watching TV and knowing that the dream is alive in Portland. Please tell me, how as this larger numbers internet petition working out? Is Portland transit ridership up like Seattle? Is per capita bike use up or down? We need a toolbox. When the first tool fails, keep that around and go on to the next tool. I gave up on Davis CA because there were too many people in bike groups trying to herd people into their way of thinking.
Hi Paul, it’s working great. I’m not exactly sure what you’re asking. Please email me by using the form on healthierhawthorne.com if you want to talk more (I don’t get email notifications for comments here).
Some needs to explain to me how it was the City’s fault that some irresponsible driver sped down the road and killed someone. The lawyer and client took $395,000 from us the taxpayers just because the City was the only entity with deep pockets. This intersection is no different than literally 1000’s of intersections all over this city and every city in the state. How about instead of enriching a lawyer and client have the judgment be used to pay for 3 traffic officers for a year or a couple of speed cameras. Our legal system is turning into some sort of lottery. A judgement like this does not make our streets any safer. It is actually the opposite since the city no longer has those funds to help stop speeders.
How was it the city’s fault? The city had over a decade of
complaints about this specific intersection thanks to the
activism of the neighborhood association, individual residents,
and neighborhood businesses. Because of these complaints, PBOT
twice sent engineers out to perform a site survey. Both times the
engineers filed reports indicating that yes, this intersection
was unsafe and deserves priority. It was slated for safety
improvements at at least one point in recent history, but those
plans did not come to fruition for ostensibly budgetary
reasons. Then Fallon was killed. Within a month of expiration of
the (unenforceable, it turns out) 6-month statute of limitations,
the city built a safety island pedestrian crossing with money
from their discretionary spending. There was not particular
budget line item set aside for it, no grand plan, no thousands of
hours of consulting with squeaky wheel neighbors concerned their
three-block drive to New Seasons would now take a minute
longer. They could have done it before Fallon was killed there,
and they didn’t. Noorah’s outrageous recklessness is the proximal
cause of this tragedy, but the city had every opportunity to take
action to fix this street that their own engineers twice told
them was too dangerous as is.
As we have seen in the past few days with PBOT’s laudable plan to
open up our streets to safer uses on the cheap during this
pandemic, our current failures in street safety do not result
from a lack of capital. They are absolutely the result of a lack
of political will. Citizen activism is one front for reshaping
this political will. Electing courageous, visionary city mayors
and councilors is another. A third, often hidden one, that Scott
Kocher here brings to light is changing the actuarial calculus of
the city’s liability assessments. Allowing Portlanders to die on
our streets _should_ be expensive, because the solutions are
cheap.
What could the city have done? They could have thrown a couple
concrete planter pots in the middle of the road like they did in
recent years at 50th and Lincoln, just a dozen blocks from from
where Fallon was killed. Pocket change to implement. Effectively
stops drivers from doing this kind of dangerous activity.
“Where do you draw the line between a very dangerous roadway a city knows to be unsafe, versus making them fix every pothole immediately.”
Actually the danger (of speeding) comes from too few potholes… if safety were the goal the city should put more in. 🙂
Note how PBOT only takes reactive action, rarely pro-active! Always one of the last cities to get minor safety upgrades:
April 27 The Oregonian reports PBOT and Portland agree to settle out of court for $400k due to PBOT negligence. I would have rather seen Leah Treat put on trial to defend her excuse it was only the driver. Which she noted on the record, and in a meeting I attended after Fallon’s death.
April 28th Noon, Bike Portland Reports on the $400 payout
April 28th 2pm. Bike Portland reports PBOT taking emergency action they should have taken on Mid March to close some streets to cars for safety
April 28th 3pm. PBOT tweets out News release that they are concerned people don’t have enough space to take walks for heath reasons in a virus crisis.
https://bikeportland.org/2020/04/28/portland-launches-100-mile-slow-streets-safe-streets-covid-19-response-effort-314063
https://twitter.com/PBOTinfo/status/1255238509121675267
“People seem not to see that their opinion of the world is also a confession of character.”
― Ralph Waldo Emerson
Unlike Oregon it appears that Norway actually enforces its traffic laws. Of course we don’t want to do anything like that because 1) everyone seems to think that driving is a right when it is not and 2) the liberal hangup on “racial profiling” because in the past racial profiling was used on minorities. The profiling needs to be fixed and we need to get to a point where we can actually enforce the laws instead of just making excuses for allow people to break the laws. According to this Norway has “controls everywhere” with low speed limits and heavy fines. Reddit users say there are many speed cameras. In Portland we have almost no police officers in the traffic division and only a handful of cameras. But we do have a bunch of lawyers ready to make money by sueing the city if anyone gets killed or hurt.
http://www.speedingeurope.com/norway/
Red light and speed cameras don’t distinguish between races, nor perceived quality of vehicle. However, you need to change the law so that the registered owner is presumed to be the driver unless that owner submits an affidavit identifying another driver, which is how they handle it in Victoria, Australia.
And the city will continue getting sued for incidents on this street because they’ve done nothing to address the abuse of the center lane. Every time I’m on this stretch of Hawthorne there are numerous people breaking the law by using this center lane illegally. The city could put a stop to it with some cheap planters and dirt. Cops won’t ticket people because the cops do the same stupid things as everybody else. They won’t ticket commercial vehicles because it’s “bad for business”. So we will continue suing the city until they start taking lives seriously and start taking action. If they ever start being proactive about these things then the lawsuits from their dangerously designed roads might start to dwindle down. Allowing people to go over 2x the speed limit is just asking for more death.
The city allows, and therefore essentially encourages, illegal behavior on this road.
Please keep suing them until they get serious about protecting their citizens.
If you’re reading this and want to help take action to make sure this NEVER happens again, please sign this petition: https://www.healthierhawthorne.com/