Baby Clare: A Hot Car Story (Nightmare)

August 8, 2014


[NOTE: This post was originally published on Vancouver Family Magazine’s website. You can find the original article here.]

Let me tell you the story of what happened to 7-month-old baby, Clare.

June 2001. Tuesday. Perry, Iowa.

Dennis Engholm, 38, and Kari Engholm, 34, prepare to leave their upper-class home for work. Dennis works for Iowa State University. His wife Kari is CEO of Dallas County Hospital. Dennis leaves first. Today he has to be to work early. He has important responsibilities.

Normally, Dennis would take baby Clare to the baby-sitter before work. Today, he leaves Clare with Kari. She normally takes only her son, 3-year-old Eric, to a day care center near the hospital. Today, Kari will take both kids.

Kari has a busy day too. A 7 a.m. board meeting to discuss selling a medical practice to a doctor. Kari also has other meetings throughout the day. Big plans for a retirement center. Important meetings. Busy schedule. Hectic day.

Sometime before 7 a.m., Kari arrives at the day care center. She takes Eric out of the car and notices the lilac aroma in the air. Baby Clare is sleeping. Kari doesn’t notice her. Kari closes the car door. She walks Eric to day care. She drives to the hospital and prepares for her first meeting.

10 a.m. The baby-sitter calls the Engolm’s residence to see why baby Clare was not dropped off. There is no answer. No one is home. Dennis and Kari are both at work. She leaves a message.

Lunch time. The summer sun beats down outside the air conditioned hospital.

Kari’s afternoon is as busy as was her morning. Finally, she attends her last meeting. She answers her last phone message.

5:40 p.m. Temperatures still hover around 90 degrees. Kari leaves her office. Walks to her car. The steering wheel is hot—too hot. Carefully, Kari drives the short distance to the day care center.  She picks up Eric. She smiles at him when he shows the artwork he completed. His face beaming.

Kari walks Eric to the car. She opens the car door. Baby Clare is sleeping. Only she isn’t. Kari notices her.

She screams. Unnerving screams. Horrified screams. She unbuckles Clare from her child seat. Clare’s body is so limp. It’s so hot. Kari runs back to the day care center. Still screaming. Tears pouring down her cheeks. Employees call 911. They call Dennis. Paramedics arrive. They can do nothing for Clare. It’s too late. Clare is gone. She has been for hours.

The story of Kari Engholm was one of the first of many highly-publicized, highly controversial, stories about the nightmares experienced when young infants and children are unknowingly forgotten by their parents inside a car. Following her baby’s death, Kari Engholm was criminally charged with neglect of a dependent person and involuntary manslaughter. Kari faced up to 12 years in prison.

Though she was ultimately found innocent on all accounts, it is hard to imagine a consequence imposed by the criminal justice system being greater than the loss of her child under such circumstances.

Today, people are more aware than ever of the dangers posed to children by too-hot cars. For the past 20 years, non-profit child safety organization, Kids and Cars, has dedicated itself to preventing injuries and death to children in or around motor vehicles. They track child fatalities from all classes of nontraffic injuries, including the types that killed baby Clare. Last year alone, at least 44 infants and children died inside their car as a result of heat stroke. Kids and Cars calculate that each year 38 deaths—one every 9 days, occur under such circumstances. Although the summer heat has only just begun, there have already been 11 such deaths in the United States alone.

This is way too many.

One is too many.

Even here in the Northwest, temperatures outside can create unsurvivable temperatures inside a car.  When outside temperatures reach 90-degrees, the temperature inside a parked car can soar in just a few short minutes. The following chart from shows the temperature inside a car on a 90-degree sunny day:

Outside the Car Temperature (F) Inside the Car Temperature (F)
0 90 90
10 90 109
20 90 119
30 90 124
60 90 133
90 90 138

Even outside temperatures in the 60s can cause a car temperature to rise higher than 110 degrees F.

Kids and Cars has published a checklist that every parent can follow to plan to keep our children protected from these types of fatalities:

  1. Back Seat: Put something in the back seat of your vehicle that requires you to open the back door every time you park—cell phone, employee badge, handbag, etc.
  1. Every Child: Every child should be correctly restrained in the back seat.
  1. Stuffed Animal: Keep a stuffed animal in your child’s car seat. Place it on the front seat as a reminder when your baby is in the back seat.
  1. Ask Your Babysitter: Ask your babysitter or child care provider to call you if your child hasn’t arrived on time.
  1. Focus on Driving: Avoid cell phone calls and texting while driving.
  1. Every Time You Park: Make it a routine to open the back door of your car every time you park to check that no one has been left behind.

Like everything that threatens the health and safety of our children, we parents have to plan to keep our children safe. Janice Summerson, a close friend of Kari Engholm and witness to the aftermath of Clare’s unfortunate death, noted that she had “never seen the depth of sadness [Kari] showed. It was truly a mistake.” Though I’m sure Ms. Summerson was correct, this was a mistake of unparalleled magnitude, we cannot afford to make the same mistake again. The consequences are too high.

Please plan to keep your children safe this summer.


Proposed Census Changes Dangerous to Area Cyclists

June 27, 2014

For years the U.S. Census Bureau has recorded and analyzed the way in which Americans commute to work. The Census Bureau is considering eliminating the biking and walking questions from the survey. Eliminating these questions would be unfortunate on many levels–but severely so to area cyclists.

Source: 2012 U.S. Census Bureau American Community Survey results

Source: 2012 U.S. Census Bureau American Community Survey results

Portland ranks among the highest in the nation for the percentage of workers who commute to work by bicycle. By percentage, Portland workers bike to work more than ten times more than workers in other parts of the country. Lawmakers here in Portland have used the data collected by the U.S. Census Bureau to petition and support biking infrastructure and biking safety plans. If the Census Bureau were to stop collecting the data, Portland lawmakers will not have the ability to identify areas in need and to seek funding appropriately.

So what?

The Alliance for Biking and Walking, a bike-advocacy group, has created a “Count Us” campaign. The campaign seeks to keep walking and biking data on the US Census. The time for feedback is quickly expiring–today. Click here, follow the instructions, and do your part to make walking and biking in Portland safer for all of us.

Stepping Up To The Plate

June 12, 2014
The 1991 Columbia Little League Giants (your's truly standing in the back with glasses and no hat)

The 1991 Columbia Little League Giants
(your’s truly standing in the back with glasses and no hat)

I was 10 or 11 years old when I stepped from the on-deck circle and looked up the third baseline to get the sign from coach. I hated coming to the plate in these situations. This time was even worse. This time we were down by a run. It was the last inning. The tying run stood on third base. I certainly wasn’t the strongest batter on the team, one might even say I was one of the weaker ones. Coach knew this. Despite my weakness swinging the bat, I was good at laying down a bunt. Coach knew this too. My heart pounded into my throat when I received his sign. Hopeful I had misunderstood, I kept looking, waiting for clarification. Again it came. Coach called the suicide squeeze.

I knew that as soon as the opposing pitcher began his windup, my teammate would sprint from third base toward home plate. He’d be halfway down the baseline when the ball reached the plate. That’s the suicide part. If I don’t do my part, he’s a goner. My part? Square my shoulders, level my bat, make contact with the ball, and run toward first base. No matter what. If everything went as planned, my teammate would cross home plate before the third baseman or the pitcher could retrieve my bunted ball and make the out. That’s the plan anyway.

Nervously, I entered the batter’s box. My knuckles white with anxious courage. I could hear my heart beat in my ears. From the corner of my eye, I saw my teammate begin his trusting sprint toward me. The ball left the pitchers hand. It was time-the moment the game was riding on. Everything I had learned depended on this moment. My team depended on me.

I squared my shoulders. I leveled my bat. Wait! I was in luck, the pitch was a ball! Low and outside! Relieved, I pulled back my bat, grateful I had escaped near certain embarrassment.

Before the catcher even caught the ball, I realized what I had done. I saw my teammate running toward home, a look of surprise and amazement on his face as he realized what I’d done. I had one job. Make contact with the ball. When the moment came, my youthful inexperience and inability to handle the pressure of the situation overcame my training and the expectations of everyone who depended on me. I stepped back from the batter’s box just in time to allow the catcher to easily tag my teammate for the second out of the inning.

A few strikes later, I walked back to the dugout. Frustrated and discouraged, I had struck out for the last out of the game. Game over. At least I went down swinging.

What does one of my childhood’s most shameful moments have to do with anything?

This week marks “the moment” in the lives of many of you high school seniors. After donning cap and gown, you will walk up to the batter’s box. You will step up to the plate with all your training and experience. You will take everything we taught you-everything you learned from parents, teachers, and classmates and you will give this suicide squeeze we call life your best effort. Your part?  Make contact-make those choices that will allow those around you, especially your friends, to safely reach their destination. Wherever that might be.

Along the way, you will face a bad pitch. A bottle of alcohol. A heavy accelerator pedal. A couple of out-of-town parents.

You will probably face several bad pitches and you will have to make the right decisions.

When bad pitches come, and they will come, remember your training. Remember what you’ve learned at school and what your parents taught you. You can handle bad pitches. Square your shoulders and make the safe decision. Make the decisions-the decisions that help your friends reach their destination safely.

If you stumble, if you make a bad choice, if you fall, fix it. Get up, step up to the plate, stand tall and fix it. Make the better choice. You have your whole lives ahead of you. Make the choices that will keep your game going. Be the player your teachers and parents taught you to become.

You Can’t Text 9-1-1 in Clark County….YET.

May 16, 2014

911Much has been circulating throughout the news and in social media about being able to text 9-1-1 from your cellular phone.  You’ve probably heard that you can now text 9-1-1 because yesterday, May 15, 2014, was the deadline for mobile carriers to be technologically ready to allow consumers to text 9-1-1 for emergencies.


Even though you may be able to text to 9-1-1, many government agencies are not yet prepared to receive the text messages.  This is the case with Clark County.  The Clark Regional Emergency Services Agency (CRESA) is currently working on equipment upgrades that will allow it to receive text messages here in Vancouver and the surrounding Clark County area.  They’re not there yet.  Currently, if you try to text 9-1-1 you will receive only a bounce-back reply from your carrier telling you that your text message was not received by a CRESA.

If you’re in an emergency, CRESCA suggests a voice call anyway–its better for the exchange of information and to allow a more efficient response time. That said, its important to know and understand that even if you’re in a situation where you’d prefer not to use your voice (I can think of many, but would rather not), a text message won’t do you any good and should not yet be relied upon as a method of calling for help or assistance.

Hopefully none of us (or our friends) will have to contact 9-1-1 anyway, but if we do, its important to be informed and to know and understand how to call for help in an emergency. Be safe.


Bike Clark County Needs Your Help

May 1, 2014

Bike Clark CountyEric GiacchinoSeveral months ago, I wrote about Bike Clark County–a local non-profit dedicated to “giving kids the skills to safely and responsibly use their bike as an affordable and eco friendly mode of transportation.”  Since writing that historic (I’m always one for the dramatic) post, I have had the opportunity to meet with Bike Clark County President, Eric Giacchino, and other Bike Clark County volunteers on several occasions. Each time, I have been more and more impressed with the organization and what it stands for.  Bike Clark County continues to grow and spread cycling safety to the next generation of riders. It continues to advocate for bicycle safety in our communities.

This summer, Bike Clark County needs your help.

One of Bike Clark County’s annual projects is the Safe Routes to School – Bicycle Safety Programs. These run May 19 through June 17.  Bike Clark County needs volunteers to work with local schools and teachers to provide bicycle handling and safety skills to middle school students in Clark County. The Safe Routes to School program is a national program that was developed by the League of American Bicyclists and is designed to help develop knowledge and expertise in bicycling through their Traffic Skills 101 program.

Vancouver and Evergreen School Districts have been teaching the Safe Routes to School curriculum for over 10 years. The flagship programs are taught at Mcloughlin Middle School and Wy’east Middle School. Discovery Middle School started running the program in 2013. There is now an after school version of the program taught by Bike Clark County volunteers at Hough Elementary School.

The program is focused on teaching basic bicycle safety checks, helmet fitting and proper attire, basic bicycle handling skills, and rules of the road and proper hand signals. The course has both classroom instructional and riding components. The riding portions start in a “traffic free” environment, such as on-campus and parking lot riding.  After basic skills and traffic laws are mastered, an on-road component is initiated.

So where do you come in?

Safe RoutesVolunteers are most needed during the helmet fitting and riding phases, in particular for the on-road components. The school teachers handle the majority of the instruction and discipline, so Bike Clark County volunteers get to focus on encouraging kids, providing additional oversight, minor bicycle maintenance assistance, and helping guide on-street rides.  We really encourage parents of students in each school to get involved and volunteer. The rapport parents have with students is a positive asset. The key dates for this year’s programs are from May 19-June 17th. Find out more on the Bike Clark County Calendar.

What does it take to volunteer?

To volunteer you will need to:

  1. Complete a Volunteer Application form for each of the school districts you plan to help out with. You can pick up the forms at any school in the district or print out on line.  Forms are dropped off at any school in the district. For Evergreen School District, which covers Wy’east Middle School, click here. For Vancouver School District, which covers Discovery, Hough and Mcloughlin Schools, click here.
  2. Have a safe and functional bicycle and helmet. If you need to have your bicycle checked over first or if you need to borrow one from Bike Clark County, contact us a few weeks in advance of the programs or come to one of our bike repair days.
  3. The Rules of the Road that apply to cars also apply to bicycles. Ensure that you are aware and use safe riding techniques in your own riding to be a good example to the students. As we ride on neighborhood streets, volunteer roles are to help ensure that kids are riding safely, maintaining safe following distances, using hand signals, and following rules of the roads. At intersections, volunteers help ensure kids stop at stop signs, signal and check for traffic, and make safe decisions about when to ride across. We don’t stop traffic for the kids, we want them to learn how to ride in a real-world environment.
  4. Have a positive and encouraging attitude! The teachers do the discipline and maintain classroom order, so our job is to help kids have a fun riding experience.
  5. Mechanical skills are a bonus. Prior to the start of the programs, Bike Clark County Volunteer mechanics give every bicycle a tune up and safety check. To participate – see our calendar update for information. At the start of every class we do a basic “ABC” Safety check to make sure bikes are in adjustment and ready to roll. Beyond that, it is helpful if you know how to fix a flat or adjust a derailleur when we are out on the road – but don’t worry – there is always at least one volunteer with some mechanical skills present.
  6. For the truly committed volunteer, you can get certified as an instructor through the League of American Bicyclists. While not required to help with these programs, it’s a great course packed with good information.  There may be opportunities in our area soon.  For more information and background click here.

Bike Clark County is made up entirely of volunteers. If you’re looking for a way to get involved, this would be a great opportunity.

I’m coming Kimberly…

March 31, 2014

ImageI’m on an airplane to Salt Lake City. I can’t post this until I land, but, wanted to write when my feelings and thoughts were still raw and fresh.

I left my home in Vancouver, Washington 30 minutes ago. It’s been a long morning. I woke up to a text message from Jory, my brother-in-law. That was unusual and honestly alarming. In the few minutes it took to wake up, my initial fears were confirmed. In brief and clearly anxious words he wrote:

<em>Kimberly and I were in a really bad car accident this morning. They are taking Kimberly to the SICU, she had a broken leg and a crushed spleen, a liver laceration and a bruised kidney. Can you please try and get a hold of your parents?</em>

You see, my parents are in South Africa picking up my other sister who just finished two-and-a-half years as a volunteer in the Peace Corps. After several attempts, I finally reached them. They had so many questions; the same questions I had. But I had no answers. The only information I had was in the text message above. In my rush to be useful, to do something despite the miles between us, I didn’t even think to find out more before alerting my family. I needed to find out more.

After several phone calls to family members and Salt Lake hospitals, I finally learned that after dropping off their two children (thank goodness), my sister and brother-in-law were driving to work together when suddenly, and without warning, they were T-boned by a large tractor trailer carrying a heavy load of gravel. The truck driver ran a red light and struck their car on the passenger side–my sister’s side. The impact knocked my sister unconscious, and pinned her inside the mangled vehicle. It took 30 minutes for emergency responders to finally get her out of the vehicle. She was taken to the hospital as a “Trauma” patient. She doesn’t remember the collision. My brother-in-law was also taken to the hospital with less-threatening injuries.

I eventually relayed the information to my family in South Africa and have kept them as updated as thousands of miles permits. I know not being here is hard for them. All I can do is communicate and provide information.

Last update I received before boarding the plane was that Kimberly’s injuries were “not life threatening” but that she was still in SICU, for observation and pending a decision on whether to remove her crushed spleen, or to simply “tie it off.” I suppose I’ll know one way or another before too long.

I deal with car crashes every day. I talk daily to victims of car crashes, who suffer physical injuries, and emotional damage in car crashes just like the one that put my sister in the intensive care unit of a hospital. No amount of familiarity or experience can prepare someone for getting “that call.” It’s different when the victim is a close loved one. These things never happen at “convenient” times. To the contrary, they always seem to happen at the worst times–when people are the most vulnerable.

Please, be careful. Please pay attention. Please don’t ignore or take lightly the safety rules that are designed to keep us all safe. Please be vigilant and aware of your surroundings and of other vehicles on the roadway. It only takes a moment of carelessness to forever change the lives of so many people.

Love you sister friend. I’ll see you soon.

Just Turn Right

March 17, 2014

Right-Turn-Only-Traffic-Sign-K-1829I don’t normally publicize my own wrong-doings and misdeeds. What’s the point? I need to do it this time. This may seem trivial to some and possibly unnecessary to most. To me, this is important.

Friday I went to a church activity (I’m one of the leaders of the church I attend). During a break my wife and I were talking to a mother and her daughter in our congregation. You see, the daughter, “M,” and my daughter, Hannah, go to the same elementary school and we are quite close with her family. Each morning before work, I drop Hannah off at school. Last week “M” was volunteering as a student crossing guard. You know, the ones with the bright “STOP” signs on the wooden pole that walk out when students are crossing the street. During the conversation, I mentioned to “M” that I saw her but commented that she didn’t see me. Exasperated, she exclaimed that she did see me. She added that as I turned left out of the school parking lot, the adult crossing guard was “maaaaaad at me.”  I asked why, and she explained that the crossing guard was upset that I didn’t obey the “Right Turn Only” sign that was clearly posted. Confused and somewhat taken aback, I countered (I’m now arguing with an 11-year-old) “but tons of people turn left there, not just me….What did I do that was so much worse than what everybody else did?”  Her reply, was simple and piercing. “Nothing, she gets mad at everybody that turns left there.”  We bantered back and forth as I tried to explain and justify my defiance. My wife added there was even a recent plea in the school newsletter. In the end, I’m not sure how the conversation ended, but ever since it did, I have been unable to shake the guilt and remorse I feel.

First, I’ve been a poor example. I realized the poor example I was setting for “M” and all the other children when I  obey some laws and choose to break others. I magnified my poor example by my attempts to explain away my disobedience. That was not fair to her, and for that I apologize. Obedience to the law is mandatory, and nobody—especially me—is above that requirement. She was the example to me when I should have been to her. I’m sorry “M.”

If not for ourselves, we owe obedience to the driving laws (and other safety rules) to our children. I still remember the time my mom got a speeding ticket. Even though my mom was generally a good driver, this single experience justified my teenage choices to blatantly disobey speeding laws. “If mom can do it, why can’t I?” With every rule we parents choose to break, we justify our children’s future disobedience. We must demand obedience from ourselves today if we ever expect obedience from our children tomorrow.

Second, I’ve been a hypocrite. As a personal injury attorney, a safety advocate, and a community blogger, I preach adherence to safety rules, all of them. Whether related to speed, direction, following distance, impairment or distractions these rules are necessary to keep us safe and to protect us from harm. Me must follow them–there is no option or justification for disobedience. This applies even to the rules that “everybody breaks” or the laws that seem, to us, unimportant.

I shudder to imagine the potential consequences of my choices. Fortunately, the only effect was an embarrassing realization that I was a poor example to someone who looked up to me and a poor example to the adult who knew I should have acted more responsibly. Thankfully I can apologize to them and make more responsible driving choices in the future. Luckily my choice to disobey the law did not cause greater harm or injury to one of my daughter’s classmates. I couldn’t fix that result.

I’m happy to say that I turned right this morning. Thanks “M.”

The “McDonald’s Hot Coffee Case”: 20 Years in the Making

February 17, 2014

hot-coffee-lawsuitIt’s hard to believe, but this year marks the 20-year anniversary of the “McDonald’s Hot Coffee Case.” Recall that the case arose when McDonald’s coffee spilled on the lap of Ms. Leibeck, a passenger in a car going through a McDonald’s drive-thru, causing burns and other injuries. After a jury trial, Ms. Leibeck was awarded $2.9 million dollars for her injuries.

The case is notorious in America, and beyond, for supposedly highlighting all that is wrong with the justice system in America. However, when one really looks back 20-years at what really happened in the case, it is clear that the notoriety is not founded on actual facts but on the biased spinnings of the case by media and corporate America.

Ever since the jury first decided the case in 1994, the insurance industry has grabbed a hold of the media frenzy and wielded the notoriety against persons injured by the negligence of others.  Recently, one insurance defense attorney in Utah tried to inflame a jury against the plaintiff by arguing the McDonald’s Hot Coffee case phenomenon in closing argument.  The plaintiff’s attorney immediately objected to the argument as prejudicial to the plaintiff.

The objection made it all the way to the Utah Supreme Court.  Boyle v. Christensen, 251 P.3d 810 (2011).  The court discussed the McDonald’s case and, rather than summarize their conclusions for you, I provide an excerpt from the court’s opinion:

Before we analyze this statement, it may be useful to explain the cultural context of the McDonald’s coffee case, more formally known as Liebeck v. McDonald’s Restaurants, P.T.S., Inc., [No. CV-93-02419, 1995 WL 360309 (N.M. Dist. Ct. Aug. 18, 1994)]. Few cases have ever achieved as much notoriety among the general public of this country as the McDonald’s coffee case, fueled by its wide-ranging and repeated publicity in national and local news media. It has been mocked in extremely popular entertainment television, including The Tonight Show, The Late Show, and Seinfeld. It has been debated on talk shows, parodied in television commercials, mentioned in congressional debates, and is firmly lodged in the public consciousness. Mark B. Greenlee, Kramer v. Java World: Images, Issues and Idols in the Debate over Tort Reform, 26 CAP.U.L.Rev.. 701, 702-03 (1997). “What made the headlines and what is most commonly recalled by the general populace about the … case is the size of the verdict and the source of the injury—$2.9 million for spilled coffee.” Id. at 718. In U.S. popular culture, the case has come to symbolize greedy plaintiffs and lawyers who file frivolous lawsuits and win hugely excessive sums in a broken legal system. See, e.g., Peter G. Angelos, Commentary, 1996 Spring Commencement Speech, 27 U. BALT. L.F. 19, 21 (1996); Michael McCann, William Haltom & Anne Bloom, Java Jive: Genealogoy of Judicial Icon, 56 U. MIAMI L.REV. 113, 115, (2001).
Athough the public view of the case is understandable when limited to a superficial view of its facts, a deeper look at the details and issues in the case may dramatically alter one’s perspective. Among the many relevant facts generally missing from the public consciousness are the following:
(1) The temperature of the spilled coffee was so hot—180 to 190 degrees—that within seconds it caused third-degree burns that extended through the skin to the fat, muscle, or bone on Ms. Liebeck’s thighs, buttocks, and groin area. She was hospitalized for eight days, underwent skin grafts, was disabled for two years following the accident, and was permanently disfigured with scars on over 16 percent of her body.See Greenlee, supra, at 718–19; see also Angelos, supra, at 21; Brian Timothy Beasley, North Carloina’s New Punitive Damages Statute: Who’s Being Pubished, Anyway?, 74 N.C.L.REV. 2174, 2190 (1996).
(2) The jury heard evidence that McDonald’s had received approximately 700 other complaints about coffee-burn injuries in the previous decade (some of which were settled for a total outlay of over $500,000), but considered the number of injuries statistically insignificant and therefore did not lower the temperature of its coffee. See Marc Galanter, An Oil Strike in Hell: Contemporary Legends About the Civil Justice System, 40 ARIZ. L.REV. 717, 732 (1998); Greenlee, supra at 719-722.
(3) The jury awarded $2.7 million in punitive damages because it believed the extreme temperature of the coffee was unreasonably dangerous and that McDonald’s had callously disregarded the danger even after hundreds of injuries. The $2.7 million figure was based on the approximate revenues from just two days of McDonald’s coffee sales. Shari Seidman Diamond, Truth, Justice, and the Jury, 26 HARV. J.L. & PUB. POL’YY 143, 146-67 (2003).
Given the uniquely iconic nature of this case, the passion it has produced in the media, and the general misunderstanding of the totality of its facts and reasoning among the public, we find it hard to imagine a scenario where it would be proper for a party’s counsel to refer to it before a jury. Generally, as here, such a reference would seem to have the sole purpose of recalling the public outrage over isolated elements of the case—thus improperly appealing to a jury’s passions. It is not the jury’s job to make legal determinations, so no legal arguments from the case are relevant…. It is certainly unfair to require the other party to clarify all the misconceptions about this irrelevant case in the limited time allotted for closing argument. The great latitude provided in closing arguments regards reasonable inferences about evidence properly before the jury and does not extend to misrepresentations or efforts to appeal to a jury’s passions. Thus the reference to the McDonald’s coffee case in closing argument was improper.
Doyle, 251 P.3d 810, 816-19 (2011).
The court required the parties to try the case all over again because of the confusion created by the reference to the McDonald’s case and the likelihood that the jury would improperly reduce the amount awarded to the plaintiff.
As a personal injury attorney, who represents those injured by the negligence of others, I often (always) enter the courtroom to face many of the biases and misconceptions created in the wake of Ms. Leibeck’s jury award. I can’t rightly argue for the appropriateness of Ms. Leibeck’s award–the jury would hate me even more, but I can’t rightly ignore it either–I need to identify jurors with potential biases.  The only way to balance the scales against the public’s misconception is through education and awareness.
The misconceptions highlighted by the court above identify but a few of the important facts relevant to the jury’s ultimate decision to award Ms. Leibeck $2.9 million dollars.  A 2011 award winning HBO Documentary entitled “Hot Coffee” opened the door to a real and honest discussion about the McDonald’s case, and other similar cases spun by corporate America to mislead the public. It highlights the important differences between what is presented to the community throughout the media and the reality surrounding the civil justice system in America. It’s a good watch and worth your time, even if only to quench your curiosity and better understand one of the most debated legal cases of our time.  It’s available to rent on
I’d be interested in knowing your thoughts on this issue, especially after watching the documentary.

Washington Cyclists are More Protected After Yesterday’s Supreme Court Ruling

January 31, 2014
Bollards installed near the I-205 bridge in May 2013, after a woman drove nearly two miles on the I-205 bike path

Bollards installed near the I-205 bridge in May 2013, after a motorist drove nearly two miles on the I-205 bike path

Many cyclists have faced the same danger that paralyzed cyclist Susan Camicia.  I know I have; countless times.  Susan was severely injured while bicycling along the bike trail on I-90.  As she approached an intersection, she had to veer to the left to avoid striking temporary fencing that had been installed by a construction contractor to prevent public access to a nearby construction site.  After navigating around the fencing, she looked up, just in time to see a wooden post that was erected to keep vehicles from entering the paved bike path.  Unfortunately she was unable to change her direction before striking the pole. She fell from her bike and as a result was rendered paraplegic. She brought a claim for injuries against the contractor who installed the fencing (for allowing the fencing to protrude onto the bike path) and the city (for allowing the dangerous condition to exist on the property).  The city responded that it was immune from liability under RCW 4.24.210–which provides immunity from liability for unintentional injuries to landowners who “allow members of the public to use [the land] for the purposes of outdoor recreation…without charging a fee of any kind therefor[e].”  Surprisingly, the trial court agreed with the city and granted summary judgment against Ms. Camicia.  On appeal, the Washington State Court of Appeals reversed the decision and held that the city was not entitled to summary judgment.  The city appealed.  The case made it all the way to the Washington State Supreme Court.  Yesterday, in Susan Camicia v. Howard S. Wright Construction Co. and City of Mercer Island, the court issued a ruling that better protects Washington’s cyclists.

The Washington State Department of Transportation (WSDOT) originally built the I-90 bike trail in the mid-to-late 1980’s.  Like many other bike paths in Washington, small wooden posts were originally installed at intersections with city streets to prevent vehicles from entering the asphalt trail.

After a series of governmental studies in which both the Federal Highway Administration and the Washington State Department of Transportation determined that the bike trail was “primarily for transportation and…an integral part of the local transportation system” and only “minimally and fairly insignificant[ly] used for recreational purposes, WSDOT determined the bike trail was not a public park or recreation area and later transferred the trail to the City of Mercer Island.  As a part of the sale, the contract stated: “It is understood and agreed that the…property is transferred for road/street purposes only, and no other use shall be made of said property without obtaining prior written approval of [WSDOT].”

Despite the above, and in response to Ms. Camicia’s injury claim, the City alleged that it “understood the trail to be primarily recreational in nature” and that recreation immunity follows even  if the land is used for “incidental recreational use.”  Distinguishing many cases relied upon by the city, the Supreme Court disagreed.  The court held:

To establish entitlement to recreational use immunity, the City must prove its portion of the I-90 trail is open to the public for outdoor recreation. Whether the City allowed the public to use the trail for purposes of outdoor recreation is a contested factual issue. Because the trier of fact [the jury] could find that the I-90 trail is open for the public purpose of transportation rather than recreational use, the Court of Appeals correctly held the City was not entitled to summary judgment in its favor.

Essentially, the Court precluded the blind application of recreational immunity unless the landowner (here the city) can prove the land was actually opened for recreational use and not transportation. I, like you, have ridden many times on trails in Vancouver (the Salmon Creek Trail, Padden Parkway Trail, and Burnt Bridge Creek Trail come to mind initially) and in Portland (the Springwater Trail and the Marine Drive Bike Path are fun), that have faced dangers (whether deteriorating asphalt, trail hazards, overgrown bushes and trees, or other unimaginables). Knowing that the cities who own these bike paths cannot simply hide behind the recreational immunity statute offers some level of protection–and assurance that they will keep these trails safer for our use.

As always, remember to be safe out there.

You can see more about Ms. Camicia and her story here (as well as her endorsement for “Outdoors for All”, an organization that provides recreational assistance for those with disabilities).

10 Commonly Misunderstood Rules of the Road

January 22, 2014

In high school, I missed just one question on my Utah State Driver’s Education written test. I still remember the question:

QUESTION:  When passing another vehicle, how many miles per hour can a driver exceed the posted speed limit?

a) 3 mph

b) 5 mph

c) 10 mph

d) None of the above

Looking back, nearly *cough* twenty years, I still cannot believe I answered “B.” But back then, as a 16 year-old high school student, the trickery was too much for me to resist—the answer just “sounded right.”

I have since realized that this same basic principle happens on our roads nearly every day. Many times we follow “a law” that is not actually “the law” and frequently doesn’t even resemble the law. We do this for the same reason I missed the question above; because it “sounds right” or because we “think” its right. Perhaps you are a more knowledgeable driver than I, but there are definitely some commonly misunderstood driving laws that we could all better understand. Many of these laws are state specific, so outside of Washington these rules may not apply:

  1. Cell Phone Use: By now you are aware that it is against Washington law to “send, read, or write a text message” while operating a moving vehicle. RCW 46.61.668(1). Fewer know that a person “does not send, read, or write a text message when he or she reads, selects, or enters a phone number or name in a wireless communications device for the purposes of making a phone call.” RCW 46.61.668(1). Remember, it is against Washington law to hold “a wireless communications device” to one’s ear while operating a motor vehicle. RCW 46.61.667. So to sum it all up, a driver can look at their phone, dial a number, and hold a conversation so long as the driver does not put the phone to his or her ear or send/read a text message.
  2. Four-Way Stops: I’m not sure how much of this is lack of knowledge, and how much is lack of execution, but this definitely seems to be misunderstood, or perhaps ignored. When two vehicles approach or enter an intersection at approximately the same time, “the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right.” RCW 46.61.180.
  3. Stop Signs: Again, I think we all “know” this principle, but here it is good to actually know the specifics. Upon approaching a stop sign, a driver must come to a complete stop behind the “clearly marked stop line, but if none, before entering a marked crosswalk on the near side of the intersection or, if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway.” RCW 46.61.190. Additionally, after coming to a complete stop, the driver must proceed through the intersection “in a careful manner and at a reasonable rate of speed not to exceed twenty miles per hour.” RCW 47.36.110.
  4. Left Turns: This law answers the question unanswered by the “four way” stop law above—who has the right of way when two vehicles arrive at an intersection at the same time from opposite directions. “The driver of a vehicle intending to turn to the left…shall yield the right-of-way to any vehicle approaching from the opposite direction.” RCW 46.61.185.
  5. Emergency Vehicles:  Whenever an “emergency vehicle” is “making use of audible and visual signals” or when a “police vehicle” is “making use of an audible signal” every other vehicle shall yield the right-of-way and “shall immediately drive to a position parallel to, and as close as possible to, the right-hand edge or curb of the roadway clear of any intersection and shall stop and remain in such position until the authorized emergency vehicle has passed.” RCW 46.61.210.
  6. Cross-walks Signals: Pedestrians facing a “WALK” or walking person symbol, may cross the crosswalk in the direction of the signal. Pedestrians facing a flashing “DON’T WALK” or hand symbol shall not enter the crosswalk. RCW 46.61.060.
  7. Yellow Lights: Washington law on this point is relatively unique. In many states, yellow either means “hurry up and stop” or it means “hurry up and go.” A yellow light in Washington means only that “the related green movement is being terminated or that a red indication will be exhibited immediately thereafter when vehicular traffic shall not enter the intersection.” RCW 46.61.055(2). Essentially this means that a driver facing a yellow light “may proceed through intersection when he can do so before the yellow light turns red.” Brummett v. Cyr, 45 Wa.2d 904 (1960).
  8. U-Turns: In Washington, U-turns are allowed except where signs indicate they are not allowed. Still, U-turns are not allowed “unless such movement can be made in safety and without interfering with other traffic.” Further, U-turns are not allowed where “such vehicle cannot be seen by the driver of any other vehicle approaching from either direction within five hundred feet.” RCW 46.61.295.
  9. Embracing Another While Driving: This is a fun one. It is “unlawful for any person to operate a motor vehicle upon the highways of this state when such person has in his or her embrace another person which prevents the free and unhampered operation of such vehicle.” RCW 46.61.665. It’s worth noting, that violating this rule is complete evidence of reckless driving.
  10. Slow Moving Vehicles: Even I learned something while writing this. So I will end, where I began, with passing a slower moving vehicle. First, “no person shall drive a motor vehicle at such a slow speed as to impede the normal and reasonable movement of traffic, except when reduced sped is necessary for safe operation or in compliance with law.” RCW 46.61.425. However, a driver travelling behind another who is “driving at less than the legal maximum speed” down a road, with only one lane of traffic in each direction, “may exceed the speed limit…at only such a speed and for only such a distance as is necessary to complete the pass with a reasonable margin of safety.” RCW 46.61.425. When performing such a pass, the driver must return to his lane of travel as soon as practicable and before coming within two hundred feet of any approaching traffic. RCW 46.61.120.

The important thing to remember is to be safe on the roads; to drive in a manner that is respectable and courteous of other drivers and to pay attention to your surroundings. As my mom always told me, “just because you have the right to do something, doesn’t mean you should.”

Though the content of this post is entirely mine, it was first featured in Vancouver Family Magazine.  It is used here with permission.

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