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.
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.
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.
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.