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.”
