What level of responsibility does the City of Portland have to implement a key safety policy — even if they don’t have capacity to address every location that needs it?
That’s one question lawyers sought to answer when they claimed, in a 2020 lawsuit, that the Portland Bureau of Transportation was negligent in the death of Elijah Coe in May 2019. Coe was riding his motorcycle eastbound on East Burnside Street approaching SE 17th as the driver of a car drove up 17th and began to try and turn left (westbound) onto Burnside.
According to the suit, because PBOT didn’t prevent other car users from parking all the way up to the corners at the Burnside and 17th intersection, the driver and Coe were unable to see each other. When the driver entered the intersection, Coe veered suddenly to miss them and was killed in a head-on collision with a driver coming the opposite direction.
Oregon law (ORS 811.550) states that parking is not allowed within 20-feet of crosswalks at an intersection. Portland City Code (16.20.130) also specifies a 50-foot parking buffer at intersections and a prohibition of vehicles over six feet high. Armed with those laws, activists spent years urging PBOT to enforce them. The issue is especially important for vulnerable road users because they can be very hard to see by cross-traffic when tucked behind parked cars.
In part due to the 2020 lawsuit and pressure from advocates, PBOT began to hasten their implementation of intersection daylighting. In 2021, the city announced 350 intersections would get the treatment. But three years later, they hadn’t made the progress they promised. PBOT made another announcement earlier this year about their intention to spend $200,000 on vision clearance work.
Meanwhile, the 2020 lawsuit was dismissed by a Multnomah County Court judge in 2022. Lawyers for the city leaned on the concept of discretionary immunity, a legal concept backed up by state law (Oregon Tort Claims Act, ORS 30.265(6)(c)) which says cities are largely immune from liability for policy decisions that involve the exercise of judgment on behalf of the agency or authority in question.
In the case of intersection daylighting, the city’s attorneys said PBOT was correctly following their adopted policies when it comes to parking setbacks at intersections. Specifically, PBOT lawyers cited three sources of policy: the Comprehensive Plan, which PBOT used to allow parking up to the crosswalk; the PedPDX pedestrian master plan that called for removing parking at the corner of E Burnside and 17th during the next capital improvement or paving project; and the city’s complaint-based system for addressing road safety-related concerns.
Put another way, City of Portland attorneys convinced the trial court that PBOT managers made appropriate judgment calls and should be granted immunity from negligence because, given their limited capacity, they had to use discretion on where they implemented the policy.
But lawyers for Elijah Coe appealed the dismissal and the Oregon Court of Appeals decided in their favor in a judgement released Wednesday.
In a 10-page judgment issued by the Oregon Court of Appeals yesterday, they say the city’s defense focused solely on parking setback policy in proving their immunity — when the court feels there were other factors in the crash that revealed negligence. Here’s an excerpt from the judgment:
“… parking management is only one means by which the city could have addressed sight distance issues at the intersection or exercised reasonable care on which her negligence allegations are premised. Because sight distance depends on various factors, including the allotted speed limit and street design, other means of addressing inadequate sight distances include decreasing the speed limit, installing a traffic signal, eliminating permissive right and left turns, and providing advance warning signage. It follows that, even if the city were to establish that it was entitled to discretionary immunity as to decisions to allow or remove parking at the intersection under those two policies, those decisions would not provide a complete affirmative defense to any one of plaintiff’s alleged specifications of negligence.”
The city’s argument also rested on the fact that PBOT Engineering Supervisor Carl Snyder said their complaint-based system hadn’t reported a parking or visibility-related safety concern at this intersection. However, the court referenced testimony from Snyder where he described a complaint filed with PBOT by the nearby Childroots daycare and preschool in 2010. In that complaint, Childroots said SE 17th at Burnside was too narrow and PBOT responded by removing some parking on 17th.
“From that evidence,” the court wrote in its judgment. “The city had notice and knowledge of broader visibility concerns at the intersection—indeed, of the precise sight distance issue at the south side of the intersection where Whitfield turned left onto East Burnside in front of Coe in this case.”
Based on those findings, the Court of Appeals ruled that the city is not entitled to discretionary immunity.
Now the case can move forward to trial.
One of the lawyers representing the plaintiff is Scott Kocher of Forum Law Group (also a BikePortland advertiser). “The appeals court gave our case a green light to go to trial because it ruled the city has no immunity for allowing parking in sight triangles,” Kocher explain in a message to BikePortland today.
“If the city continues with its lip service approach of fixing only a handful of locations it can be sued and will have to pay.”
Thanks for reading.
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Wonderful news! How can Portland have any standing to discuss safety when the city is desperately trying to weasel out of doing the right (and legally mandated) thing?
“Lawyers for the city leaned on the concept of discretionary immunity…which says cities are largely immune from liability for policy decisions that involve the exercise of judgment on behalf of the agency or authority in question.” How trumpian is this??
As has been brought up before, everyone seems to love trumpian tactics and authoritarianism as long as they themselves benefit from it.
It’s not clear how it applies in this particular case, but discretionary immunity is not Trumpian; it’s an established legal doctrine.
https://www.advocatemagazine.com/article/2017-december/the-federal-tort-claim-act-and-the-discretionary-function-exception
If greenways are the principal pathways for bike travel in Portland, every intersection of a residential street with a greenway needs clear sightlines and signs marking the greenway as a thoroughfare. It is not now evident to motor vehicle operators approaching a greenway that they should expect bike riders and people traveling on foot and that those people have the right of way.
It seems pretty evident to me. Aren’t stop signs and crosswalks (both marked and unmarked) a clear indication of right-of-way? And shouldn’t drivers expect bikes and pedestrians pretty much everywhere?
You would think so. It’s really possible that my ideas about this mark me as an old person. Among other things that have fallen by the way, it’s no longer a consensus opinion that a motor vehicle should reach a full stop in the vicinity of a stop sign, much less behind it. Pedestrians in Portland essentially have no rights.
I sold the last car I owned 29 years ago. Since then over half the miles I’ve traveled and probably over 90% of my time traveling has been on a bike. To be slower, smaller and frailer than the majority of road users changes your ideas and behaviors down to a subconscious level. I’m a kind of slow rabbit out there. Even with many of my friends I won’t have an honest conversation about car use.
I don’t know of people who have died at a residential street crossing of a greenway but I’m pretty sure we have no idea how many people have been hurt. The cost goes beyond dollar loss though. My friend had a $10,000 medical bill, my damage is just lost time, lack of trust, and constant unease.
On a related note: Portland has had some iconic mayors, but Charlie Hales is my hero. This is his monument:
https://bikeportland.org/2013/05/16/as-a-crosswalk-enforcement-decoy-mayor-hales-walks-talk-on-traffic-safety-86862
Was it ever? I can’t recall a time when drivers made a habit of scrupulous adherence to stop signs, but perhaps your memory goes back further than mine.
My experience as a pedestrian in SE Portland is that most drivers are quite respectful and usually do the right thing. It’s certainly no worse than it used to be, and perhaps a bit better.
But, as I’ve noted before, I regard myself as quite lucky.
Those stop signs are frequently blocked by large vehicles and PBOT has resisted painting stop bars or crosswalks. An unmarked crosswalk is very evident, but drivers are not really slowing down for those. Take a ride down Going Greenway at 5 pm on weekday and see if you agree that the greenway is evident. I have had plenty of close calls, and mostly I get apologetic waves or exclamations from people. I don’t think drivers WANT to hurt or harass people biking, jogging or walking, but I have noticed that PBOT’s failure to implement greenway standards into their their greenways routes introduces a lot of unfortunate conflict.
Anyone who bike rides on a greenway even for a short while will inevitably experience drivers who pseudo-stop where they drive past the stop sign, past the line of the sidewalk and the crosswalk, and, while still rolling, glance (I presume the glance; they don’t make eye contact) to see if any automobiles are coming and quickly enter the roadway.
As a regular greenway biker, this is commonplace. These drivers do not presume as a matter of first expectation that bike riders and pedestrians will be present. Or, perhaps more tellingly, they know they will be present, but don’t care.
From my experience, Sacramento doesn’t entirely resemble a greenway, but feels too often like a convenient alternative to Sandy for cut through cars, while Ankeny, especially in the 15th to 20th stretch and certain intersections in the 20s and 30s, suffers far too often from stop-sign car creep as autos dissect the greenway. The speed limit on greenways is regularly exceeded by autos (a Class 1 e-bike which tops out at 19 confirms this).
These driving behaviors of all-too-common drivers’ disregard aren’t exclusive to greenways, but the presence of distracted or disinterested auto users on the greenways highlights the issue in a particularly striking way in places which ostensibly (and by stated policy) prioritize pedestrians and non-auto folks on wheels.
I’d welcome it if PBOT adopted a campaign to install larger “Neighborhood Greenway,” signs, and “May Use Full Lane” signs on every greenway (and not just on Ankeny) and signage at cross streets noting a greenway crossing.
But these won’t move the needle until driving behavior becomes more considerate and conscientious, starting at stop signs and crosswalks.
This is a universal experience in Portland and elsewhere. How would better signage prevent it?
Thanks for noticing the phrase “aren’t exclusive to greenways” in regard to driving behaviors and for catching the reference that signage “wont move the needle until driving behavior becomes more considerate and conscientious.”
Clearly, better signage shouldn’t be dismissed just because it may not exclusively prevent unwanted driving behavior all on its own. The solution will be multifaceted.
“The solution will be multifaceted.”
What are the other facets?
This is neither here nor there, but I’ve noted the new no parking signs ~20′ back from intersections along SE 7th ave south of Belmont are widely ignored by people driving and parking cars. I’ve dodged a lot of heavy metal on that stretch of road.
I do wish my city of Greensboro NC had a 22-section parking ordinance like Portland’s:
Portland City CodeTitle 16 Vehicles and TrafficChapter 16.20 Public Right-of-Way Parking16.20.130 Prohibited in Specified Places.
Except when specifically directed by authority of this Title or when necessary to avoid conflict with other traffic, it is unlawful to park or stop a vehicle in any of the following places:
A. Within 50 feet of an intersection when:
1. The vehicle or a view obstructing attachment to the vehicle is more than six feet in height; or
2. Vehicle design, modification, or load obscures the visibility or view of approaching traffic, any traffic control sign, any traffic control signal, or any pedestrian in a crosswalk.
This regulation does not apply to the area of the street where the direction of traffic is leaving an intersection on a one-way street.
B. Within 15 feet of a driveway to any fire station unless allowed by official signs or markings.
C. Within 10 feet of any fire hydrant, even when not marked by traffic control devices, except attended taxi cabs lawfully occupying properly signed taxi zones.
D. In front of any portion of a handicap access ramp.
E. In front of and 10 feet on either side of a rural (vehicle) delivery mail box between 8:00 a.m. and 6:00 p.m., except Sundays and official postal holidays.
F. Within any city park or golf course except in officially designated parking areas during the time the park is open to the public. This provision does not apply to City or City-authorized vehicles used in park or golf course service, or to vehicles authorized by a written permit from the Bureau of Parks and Recreation.
G. In violation of the provisions of any area parking permit program as defined in this Chapter.
H. On any mass transit lane or street as defined in Section 16.50.
I. On any planting strip, sidewalk, or pedestrian way.
J. On a shoulder unless a clear and unobstructed traffic lane of the roadway adjacent to the vehicle is left for the passage of other vehicles, and:
1. The stopped or parked vehicle is visible from a distance of 200 feet in each direction upon the roadway; or
2. A person, at least 200 feet in each direction upon the roadway, warns approaching motorists of the parked vehicle by use of flag persons, flags, signs or other signals.
K. On the approaches to or upon any restricted access highway, bridge, viaduct, or other elevated structure, unless permitted by authority of this Title.
L. On City-owned or City-operated property designated for vehicle parking by authorized City personnel only, without consent of the City, if there is in plain view on such property a sign prohibiting or restricting public parking.
M. Over, upon, or in such manner as to prevent access to any water meter, gate valve, or other appliance in use on any water meter connection of the Portland Water Bureau, located on public property, the public right-of-way or private property.
N. On any municipal terminal except in the place and manner permitted by official signs or markings.
O. On any pier or dock of a municipal terminal except when loading/unloading freight in compliance with any official signs or markings.
P. On or within an intersection.
Q. On or within a crosswalk.
R. Within any tunnel unless parking in officially designated spaces.
S. Within seven feet of the nearest rail of a railroad track or within 25 feet of the center line of any set of tracks at any railroad or light rail crossing unless parking in officially designated spaces.
T. In the area between roadways of a divided street or highway.
U. On or within a bicycle lane, path, or trail.
V. In front of any portion of a driveway ingress/egress to the public right-of-way.
Is there a benefit to having 22 sections? Out of curiosity I looked up Chapter 16 of Greensboro’s City Code and there are 67 sections that speak to parking: Article II, Division 3 is 8 defined sections (and the customary reserved sections which I won’t include here), A4D1 is 38, A4D2 is 9, A4D3 is 7, and A4D4 is 5. How effective is parking enforcement and compliance with 67 sections?
https://library.municode.com/nc/greensboro/codes/code_of_ordinances?nodeId=COOR_CH16MOVETR
Daylighting intersections will be great.
But we also need to address the new menace of delivery/ride-for-hire vehicles that randomly double park all over the city. Drivers have come to believe they have a right to do this while they’re delivering/dropping off/picking up, and it is dangerous for all of us. I would love to see this get addressed in some serious way, as part of regulating these delivery/ride businesses that increase traffic, aggressive driving, distracted driving, etc. as their core business model.
I agree. It would be great if Portland would enforce its ordinances. Not holding my breath.
Never will happen. A city that actually has rule of law and ordinance is considered FaScIst by waaaay to many people here
One of my, all too frequently employed, snarks is, “I love how people think it’s okay to violate parking rules as long as they turn on their emergency flashers.” Sigh. Far too few people ever read and comprehend the vehicle code before driving the vehicles governed by that code.
The absolute best way to daylight an intersection is to extend the sidewalk out into road for the requisite distance from the crosswalk. Make them bioswales, and they can do double duty: prevent illegal parking and divert away from the drainage system. Too bad those aren’t the inexpensive option. Also too bad that some folks think of them as their personal garden supply shop.
I’d love to see bioswales at every intersection despite the cost.
Stph
I love both curb extensions and bioswales, but many bicycle activists fight against them because they make implementing bike lanes more difficult.
I agree with you with reserving the space to discourage unwanted behaviors. However, elevated intersections which sit higher do not capture runoff well and won’t work universally. It’s a treatment that depends on the local context. It certainly should be evaluated whenever an intersection or street is being rebuilt.
Parking Enforcement does issue citations for these vehicles, and quite aggressively. However, there are only so many “meter readers” to go around and they’re very unlikely to be placed on a route with unmetered parking, where enforcement is based on response to complaints from neighborhood residents. Since these delivery stops are so short in time, it’s nearly impossible for someone to respond and issue a citation before the culprit has moved on.
The only viable solution, in my opinion, is crowd sourcing and citizen citations. We all have smartphones and many of us have helmet cams; photographic evidence of the offending vehicle and its driver (very important because cars can’t be charged, only drivers) is all that’s necessary to file. If getting tickets in the mail becomes common, people will stop believing in “hazard light immunity”.
There are a few cities that have this, and several even have a bounty system where the person gets part of the fine! I always joke with my partner about it, but if they ever implemented that here we could retire early!
Thank you Scott Kocher for continuing to hold feet to the fire in the defense of pedestrians and cyclists.
Is the driver not clearly at fault in this case? If visibility is blocked you do the good ol’ creep and peep instead of just blindly gunning it. No amount of parking removal will get these clueless drivers to look up from their phones.
In the Netherlands, when an accident happens, they dont just go blame the drivers. While they do take some fault, they also do studies on the road to figure out why the crash happened in the first place. Its almost always bed road design that causes the crash, along with people mentalities that are caused by bad road design.
For example, if you have a wide street, that induces people to speed since feel safer to do so due to the wide road. Make the road more narrow, and people will slow down.
We need to stop making personal responsibility be the end all be all, and really emphasise societal responsibility instead.
Drivers are ultimately responsible for their driving behavior. “The road made me do it” is a BS excuse.
Sure, let’s improve our street design, but if you can’t control yourself and your vehicle, please put the keys down slowly and back away from the car.
Exactly. Changing road and street design will take a generation and trillions of dollars. Slowing down and paying attention takes a few seconds and costs nothing.
I’ve never seen a bad driver do this. In fact, most of the time they believe they are good drivers and everyone else is bad at driving.
“Drivers are ultimately responsible for their driving behavior” is a great ideology, but in the real world is pretty useless. Real engineers make designs that account for bad actors, and the amount of carnage and violence we see due to transportation engineering decisions would be absolutely unacceptable in any other discipline. I work as an engineer on robotic systems and I often joke about how we care more about robot safety than transportation engineers do about human safety.
Absolutely — redesign the intersections (as I said) using the money from… somewhere. Just don’t let the driver blame “the system” for their own misbehavior.
Robots do what you tell them to; people do not.
Too true!! Coincidentally enough I was in my car yesterday going zero mph when my car and I (I now appreciate JMs struggles with getting the verbiage right when talking about collisions) were hit by someone in a truck who lost control of their vehicle in the wet, panicked and stepped on the gas rather than the brakes. I certainly wish they had heeded your advice! Now I’m medicated, fortunately without anything broken (so I won’t be joining in on the interesting discussions percolating around the various threads) and my vehicle is destroyed.
Carcentrism absolutely sucks! It pollutes everything, physically and mentally and so many negativities accompany every aspect of it that it breaks my heart (and almost my ribs).
Anyway, I’m enjoying your responses to people and since there’s not as much anger directed at you as normal it seems your arguments might actually be striking a chord. I guess the transportation bill is doing well by being a bad example.
Hope you feel better soon!
Thank you! Your comment a bright spot in the day.
The entire concept of bikes in traffic needs to be rethought.
Bike lanes should be in the center giving vehicles clear vision of bicycles. When turning bikes should be required to merge into traffic ands collision avoidance becomes a shared responsibility as it is with all other vehicles. I’m a motorcycle rider and wouldn’t be caught riding in traffic the way bicyclists do. Many seem to feel entitled blowing through traffic lights and executing aggressive maneuvers in traffic.
So many of Portland’s urban ills would go away if we just enforced existing laws
There’s a bigger issue here that deserves a whole discussion itself, although it extends beyond bicycling–the City’s complaint-driven enforcement system. It’s used for violations of all types–zoning, noise, parking, land use…and it creates huge problems:
Problems don’t get addressed unless someone reports them. But often real problems aren’t reported because people don’t know they’re illegal. I’ve reported really dangerous situations (caused by private companies sometimes, but also by City bureaus) then had to spend weeks to years going all the way to the City attorney or even beyond to the State Land Use Board of Appeals to get the City to acknowledge they’re illegal. If the City’s own people don’t know things are illegal, how do they expect citizens to report them?
Reporting opens people up to retaliation. Reports are meant to be anonymous, but the City also warns people that that’s not guaranteed. Plus, since violators know the system is complaint-based, they know if they get cited that somebody complained. If you try to work out an issue with an uncooperative neighbor, say, and can’t get their attention so file a report, they know it was you (or assume it was even if it wasn’t) so now you’re the focus of retaliation.
So maybe a contractor is creating a dangerous situation on the street you use, and you know if you report it, the contractor may retaliate against you for the next two years of construction. Don’t ask me why I used that example.
It’s crazy that something ranging from this article’s sightline issue to something much larger can be either allowed to remain, or be required to be removed, and the outcome is totally dependent on whether someone reports it.
The City also abuses the system, making citizens do what the City sfaff should be doing, and letting citizens become the bad guys in the eyes of violators, with staff sometimes shielding themselves behind, “Sorry we have to make you do this, but we had to act because someone complained”.
It’s a broad issue, and complicated, but it arises over and over in situations involving biking, walking and driving.
Or how about when you try and do the right thing with the City and follow the rules yourself?
Had electrical work done. Permitted just like you are supposed to. Day of inspection, the inspector comes and spends, I kid you not, 30 seconds looking at the breaker box, and another 30 seconds at the actual work. The “inspector” spent more time looking at the view of the mountains from my front yard than the actual inspection.
So, I did the right thing, but I sure don’t feel like I had a supposed expert making sure the work was done correctly.
And the City bureaus have only gotten worse over the years. Suffice to say, you can’t trust government employees for anything.
I’ve experienced this as well, but I’ve also talked to an inspector about this, and he said that they know the contractors, and know some always do a good job and so they don’t spend much time checking on them because they know they’ll never find a problem. They also know where the problems they’re worried about are likely to occur.
So maybe you had a good contractor. Or a lazy inspector. Or a simple job.
The dark irony is that the City would probably spend more money daylighting intersections, if it had the funds, but the effort to force some accountability has instead forced the City to blow thousands of dollars on legal representation and potentially a lot more in a court ordered judge if the Coe estate wins its case!
Just as a thought experiment, if the City wasn’t spending this money (tens to hundreds of thousands?) on this case, how intersections could it daylight? How many enforcement officers could we hire?
I’m not blaming the Coe family- this is the world we live in. But it’s terribly frustrating to see money just disappear down a black hole, at a time when budget cuts impact street safety, and when PBOT probably does genuinely want to have an effective daylighting program.
While the City HAS been starting to do more daylights at intersections, it would be better if we could get those out of the City more quickly.
Hopefully now the fear of legal consequences if they dawdle will scare the daylights out of the City.