//01 1:1: PM 1CV0 1 1 1 1 1 1 1 1 1 0 1 IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH ANDREA "AMY" LAING, ) ) CaseNo. ) Plaintiff, ) COMPLAINT v. ) ) Personal Injuries - Failure to Exercise the ) Highest Degree of Care and Skill Practicable - TRI-COUNTY METROPOLITAN ) Negligence TRANSIT DISTRICT OF OREGON dba ) Filing Fees Based Upon ORS 1.(1)(e) TRI-MET, and GABE C. SUTHERLAND, ) Amount in Controversy: $,,000.00 ) (Not Subject to Mandatory Arbitration) Defendants. ) (Demand for Jury Trial) Plaintiff alleges: FIRST CLAIM FOR RELIEF (Against Defendant Tri-Met) COUNT ONE (Failure to Exercise the Highest Degree of Care and Skill Practicable) At all times material hereto: a) 1. Defendant Tri-County Metropolitan Transit District of Oregon dba Tri-Met ("TRI-MET"), was a public body owning and operating public transportation, including a light rail train system known as the Metropolitan Area Express ("MAX"), within the counties of Multnomah, Washington, and Clackamas in the state of Oregon, with its principal offices located in the city of Portland, county of Multnomah, state of Oregon; b) Page I - COMPLAINT Defendant Gabe C. Sutherland ("SUTHERLAND") was employed by defendant Tri-Met as a MAX light rail train operator, and was acting within the course and scope of his employment; (0) - Portland, OR 0 /0) -
c) d) Plaintiff was a resident of the city of Beaverton, county of Washington, state of Oregon. The MAX Platform where the incident collision occurred is more particularly described as the "Elmonica/S.W. 10 th Avenue" stop, and serves Eastbound and Westbound Max trains on the Blue Line from a platform ("THE PLATFORM") that runs in east/west directions on both sides of the tracks on the east side of the intersection with S.W. 10 th Avenue, in the city of Beaverton, county of Washington, state of Oregon.. On or about November 1, 01, plaintiff was traveling on foot in a northerly direction on the sidewalk on the east side of S.W. 10 th Avenue, intending to cross the eastbound and IO westbound MAX tracks, and board a westbound MAX train that was stopped on the westbound (north) side of The Platform. 1. 1 In order to cross the eastbound tracks and westbound tracks and enter the westbound 1 MAX Platform, a pedestrian travelling north on the east side of S.W. 10 th Avenue must make a 1 right tum of approximately forty-five degrees ( ), which takes the pedestrian's line of sight 1 away from the crossing gates and flashing lights, that are in place for the purpose of stopping 1 motor vehicles when a MAX train is approaching the Platform. The gates and flashing lights do 1 not block the sidewalk, which continues beyond the gates when the sidewalk meets the tracks. 1 There are no pedestrian safety gates or flashing warning lights in a pedestrian's line of sight 0 and/or line of travel after making the right-hand tum. There are no audible warning signals as 1 pedestrians approach the Platform here, once the bells stop ringing when the gates come down. n. When a MAX train approaches the Platform, automatic warning bells are activated that sound as the crossing arms start corning down for motorists travelling in both directions on S.W. 10 th Avenue. The crossing arms display red flashing lights in order to alert motorists to the danger of an approaching MAX train. Page - COMPLAINT 0 SW Washington Street. Suite 100 (0) - S. W. Morrison Street Portland, OR 0 /0) -
. The audible warning signals stop once the crossing gates reach the down position. At this point, the MAX train is still a significant distance away from the crossing, and at a time which is many seconds before the MAX train arrives at the Platform. While the crossing gates remain in the down position they continue to alert motorists to the danger of an approaching MAX train. However, these warning signals do not alert pedestrians of an approaching MAX train.. Defendant Tri-Met's Public Information Officer, Roberta Alstadt, acknowledged that: "There is a concern in the light rail industry that people may get focused on one train and not look to the other direction." Defendants Tri-Met and Sutherland, and each of them, knew, or in the exercise of reasonable care, should have known, prior to November 1, 01, of this concern 1 in the light rail industry. 1. 1 As plaintiff was crossmg the east-bound MAX tracks while traveling on foot in a 1 northerly direction on the sidewalk to board the stopped westbound Max train at The Station, she 1 was struck by an eastbound MAX "out-of-service" train, operated by defendant Sutherland, 1 traveling in an easterly direction, pulling into the eastbound (south) side of the Platform. 1. 1 After the front portion of the "out-of-service" MAX train struck plaintiff and ran over 0 her, defendant Sutherland activated the braking system. 1. At the time of the incident, plaintiff resided in the city of Beaverton, county of Washington, state of Oregon, just a short distance away from The Platform. Plaintiff frequently used the MAX trains for transportation, and was familiar with the procedures involved in taking the MAX. Plaintiff was on her way to work that morning and was taking the westbound MAX to get there. Page - COMPLAINT (0) - Portland, OR 0 (0) -
. There are numerous businesses, residences, apartment houses, and other types of buildings in the vicinity of the Platform, and a large volume of pedestrian traffic travels regularly through the S.W. 10 th Avenue intersection, and on both sides of The Platform at that location.. The presence of one or more of the following conditions combined to make The Platform unreasonably dangerous: 1 1 1 1 1 1 1 1 0 1 Ill Ill a) b) c) d) e) f) The frequency of catastrophic and/or fatal incidents involving pedestrians/riders at other substantially similar platforms in the MAX light rail system; The dense population in that area, combined with the large amount of pedestrian traffic passing on and around The Platform, due to the number of businesses, residences, buildings, and apartment houses, located in direct proximity to the MAX light rail corridor in Beaverton; The intersection directly adjacent to the Platform had crossing gates equipped with flashing red lights that came down to block vehicular traffic, approaching from both directions on S.W. 10 th Avenue, from crossing the tracks as MAX trains were approaching, but had no similar crossing gates or structures that would close, block access to, or otherwise impede pedestrians on the sidewalk on the east side of S.W. 10 th Avenue when crossing the tracks as MAX trains were approaching; The intersection directly adjacent to The Platform had warning bells that began sounding an audible alarm approximately twenty (0) to thirty (0) seconds before a MAX train arrived at The Platform, but these warning bells would inexplicably stop ringing and sounding an alarm approximately ten () to fifteen (1) seconds prior to the arrival of the MAX train at The Platform; Many pedestrians may be focused on one train and not look for a train coming in the other direction; There were no swing gates for pedestrians that forced the person on foot to stop and open the gate, in order to get pedestrians to look both ways before they cross the tracks; Page - COMPLAINT (0) - Portland, OR 0 (0) -
g) h) Pedestrians entering the Platform on foot on the east side of the tracks travelling from south to north, intending to cross both sets of tracks and enter the westbound Platform, were forced to make an angled tum to the right, which diverted their attention away from the crossing gates and flashing lights that were already in position for motorists travelling on S.W. 10 th Avenue, alerting motorists, but not pedestrians, of a MAX train approaching The Platform. The large number of elderly, physically and developmentally challenged people that use The Platform. 1. The dangerous conditions at The Platform and at other substantially similar platforms located in the MAX light rail system have been repeatedly ignored by Tri-Met employees operating trains or otherwise working in the area of The Platform and other similar platforms in the MAX light rail system. 1 1. 1 There have been numerous catastrophic injuries and fatalities involving pedestrians/riders 1 on the MAX light rail system since it opened in 1. As a result, the employees of defendant 1 Tri-Met, including its MAX train operators, are aware that defendant Tri-Met condones the 1 existence of the dangerous conditions in the vicinity of The Platform and the other substantially 1 similar crossings located in the MAX light rail system. 1 1. 1 As a common carrier, defendant Tri-Met owes its passengers the highest care and skill 0 practicable. Defendant Tri-Met, acting independently and through defendant Sutherland, the 1 train operator who was acting within the course and scope of his employment, failed to exercise the highest degree of care and skill practicable on November 1, 01, in one or more of the following particulars: a) In maintaining the vicinity of The Platform in a dangerous condition for pedestrians/riders on the MAX light rail system; Ill Page - COMPLAINT (0) -ll Portland, OR 0 (0) -
1 1 1 1 b) c) d) e) f) g) In failing to warn the public of the dangerous conditions for pedestrians/riders on the MAX light rail system existing in the vicinity of The Platform; In failing to maintain crossing arms with flashing lights and/or a crossing gate in the intersection directly adjacent to The Platform that would automatically block the entrance of pedestrians on to the MAX tracks or redirect pedestrians as they entered The Platform crosswalk to a position where they could see MAX trains traveling in both directions at The Platform, similar to the system that was in effect to block the entry of motor vehicles on to the MAX tracks as a MAX train was approaching The Platform; In maintaining the intersection directly adjacent to the Platform with warning bells that began sounding an audible alarm signal approximately twenty (0) to thirty (0) seconds before a MAX train arrived at the Platform, but the warning bells inexplicably stopped ringing and sounding an audible alarm approximately ten () to fifteen (1) seconds prior to the arrival of the MAX train, such that pedestrians in general, and plaintiff in particular, was unable to hear any audible warning as she was attempting to cross the MAX tracks to board the westbound MAX train; In failing to keep and maintain a proper lookout; In failing to maintain adequate control over the MAX train; In failing to yield the right-of-way to pedestrians/riders of the MAX light rail system attempting to enter The Platform, including, but not limited to, plaintiff, 1 h) 1 1 i) 1 0 1 j) k) Page - COMPLAINT In failing to sound an adequate audible warning on the train itself to warn pedestrians/riders of the MAX light rail system on or near The Platform as the approaching MAX train entered the area of The Platform; In failing to provide any audible or visual warnings to pedestrians and patrons of the MAX light rail system approaching The Platform, of approaching MAX trains, particularly in light of the fact defendants knew, or in the exercise of reasonable care, should have known, that many pedestrians may be focused on one train and not look for a train corning in the other direction; In entering the area of The Platform at a rate of speed that was greater than was reasonable and prudent considering the conditions then and there existing; In failing to adequately slow or stop the MAX train when the defendant Sutherland observed plaintiff approaching the MAX eastbound track on foot when it was clear to him that he didn't know whether plaintiff would stop for his MAX train; (0) - Portland, OR 0 (0) -
1) m) n) o) In failing to apply the "mushroom" brake on the MAX train when the defendant Sutherland observed plaintiff approaching the MAX eastbound track on foot when it was clear to him that he didn't know whether plaintiff would stop for his MAX train; In failing to maintain a physical barrier of any type to prevent pedestrians in general, and plaintiff in particular, from entering the portion of the sidewalk in the adjacent intersection that crossed the eastbound MAX tracks as an eastbound MAX train was approaching The Platform, particularly at a time when a westbound MAX train was already stopped at The Platform; In failing to maintain swing gates for pedestrians that "forces you to stop and then open the gate, in order to get pedestrians to look both ways before they cross"; In failing to maintain directional gates for pedestrians approaching the Platform that put the pedestrian in a position to see MAX trains coming into the Platform from both directions. 1 1. 1 The failure of defendant Tri-Met to exercise the highest degree of care and skill practicable, 1 in one or more of the particulars set forth in,rt, was a substantial factor in causing plaintiff to 1 suffer the following injuries: 1 1 1 1 0 1 a) b) c) d) e) t) g) h) i) Traumatic amputation of right leg above knee; Fracture of multiple ribs ofleft side; Spleen laceration, acute; Thrombocytosis after splenectomy; Pleural effusion; Liver laceration, grade II, with open wound into cavity, acute; Inferior vena cava injury, acute; Injury of hepatic vein, acute; Extensive facial fractures; j) k) Page - COMPLAINT Open fracture of zygoma, acute; Closed fracture ofleft orbit, acute; (0) - Portland, OR 0 (0) -
1) m) Bilateral pulmonary contusion, acute; Heterotopic ossification at the site of traumatic above-knee-amputation ("AKA"). 1. As a result of the aforementioned injuries, plaintiff underwent the following surgical procedures: 1 1 1 1 1 1 a) b) c) d) e) f) g) h) i) j) k) 1) Exploratory laparotomy; Splenectomy; Repair of the suprahepatic vena cava; Repair/ligation of the left hepatic vein; Vacuum assisted temporary abdominal closure; Guillotine completion of the AKA on the right; Abdominal washout and fascia closure; Serial washouts and debridements of right AKA site; Final wound closure; Closed reduction of nasal bone fracture; Insertion of pigtail catheter into left thoracic cavity for pleural effusion; Heterotopic ossification removal from previous traumatic AKA site. 1 1. 1 The failure of defendant Tri-Met to exercise the highest degree of care and skill practicable, 0 in one or more of the particulars set forth in, was a substantial factor in causing plaintiff to 1 undergo physical and mental pain, suffering, loss of enjoyment of life, and loss of her capacity to engage in her normal and usual activities apart from work, in the past, present, and future, all to her noneconomic damage in a reasonable amount to be determined by the jury, but not to exceed the sum of$0,000,000.00. Ill Ill Page - COMPLAINT (0) - Portland. OR 0 /0) -
1 1 1 1 1 1 1 1 0 1 1. On account of the aforementioned injuries and symptoms, plaintiff has incurred reasonable and necessary medical expenses to date in the approximate sum of $0,000.00, and has lost wages to date in the approximate sum of $,000.00, all to her total economic damage to date in the approximate sum of$,000.00. 1. On account of the aforementioned injuries and symptoms, plaintiff will incur future reasonable and necessary medical expenses in the approximate sum of $,00,000.00, and will incur future lost wages and/or future loss of earning capacity, in the approximate sum of $0,000.00, all to her future economic loss in the approximate sum of$,0,000.00. 0. Plaintiff is entitled to interest at % per annum for her economically verifiable losses from the date of loss to the date of judgment. 1. Plaintiff reserves the right to amend this Complaint at the time of trial to more completely allege her economic losses and/or to conform to proof offered at trial. 01. Ill. Notice of plaintiffs claim against defendant Tri-Met was provided on or about March 1, Plaintiff hereby demands a jury trial.. COUNT TWO (Negligence) Plaintiffrealleges,r,r 1 through of Count One of her First Claim for Relief.. Page - COMPLAINT (0) - Portland. OR 0 (0) -
1 1 1 1 1 1. Defendant Tri-Met was negligent in one or more of the respects set forth in,1 above.. The negligence of defendant Tri-Met, in one or more of the particulars set forth in,1 above, was a substantial factor in causing plaintiff to suffer the injuries set forth in,1, and undergo the surgical procedures set forth in,1.. The negligence of defendant Tri-Met, in one or more of the particulars set forth in,1 above, was a substantial factor in causing plaintiff to incur damages as set forth in,,1 through 1 above. Relief. SECOND CLAIM FOR RELIEF (Against Defendant Sutherland) (Negligence). Plaintiff realleges,, 1 through 1, and 1 through of Count One of her First Claim for. Defendant Sutherland was negligent in one or more of the following particulars: 1 1 0 1 a) b) c) d) In failing to keep and maintain a proper lookout; In failing to maintain adequate control over the MAX train; In failing to yield the right-of-way to pedestrians/riders of the MAX light rail system attempting to enter The Platform, including, but not limited to, plaintiff when it was clear to him that he didn't know whether plaintiff would stop for his MAX train; In failing to sound the audible warning device on the MAX train itself in the form of a bell, to warn pedestrians/riders of the MAX light rail system on or near The Platform as the approaching MAX train entered the area of The Platform; Ill Page - COMPLAINT (0) - Portland, OR 0 (0) -
e) f) g) In failing to sound the audible warning device on the train itself in the form of a horn, to warn pedestrians/riders of the MAX light rail system on or near The Platform as the approaching MAX train entered the area of The Platform; In entering the area of The Platform at a rate of speed that was greater than was reasonable and prudent considering the conditions then and there existing; In failing to adequately slow or stop the MAX train when defendant Sutherland observed plaintiff approaching the MAX eastbound track on foot when it was clear to him that he didn't know whether plaintiff would stop for his MAX train; h) In failing to apply the "mushroom" brake on the MAX train when defendant Sutherland observed plaintiff approaching the MAX eastbound track on foot when it was clear to him that he didn't know whether plaintiff would stop for his MAX train; 1 0. 1 The negligence of defendant Sutherland, in one or more of the particulars set forth in,r 1 above, was a substantial factor in causing plaintiff to suffer the injuries set forth in ill, and 1 undergo the surgical procedures set forth in ill. 1 1. 1 The negligence of defendant Sutherland, in one or more of the particulars set forth in,r 1 above, was a substantial factor in causing plaintiff to incur damages as set forth in,r,rl through 0 1 above in Count One of her First Claim for Relief. 0 Ill 1 /// Ill Ill /// Ill Ill Page - COMPLAINT (0)- Portland, OR 0 (0) -
WHEREFORE plaintiff prays for judgment against defendants, and each of them, in the sum of $,,000.00, together with prejudgment interest on plaintiffs economically verifiable losses at the rate of % per annum from the date of loss to the entry of judgment, for her costs and disbursements incurred herein, and other relief as the court deems just and equitable. DATED this th day of August, 01. \. 1 1 Sonia A. Montalbano, OSB 01 ELLIOTT OSTANDER & PRESTON P.C. of Attorneys for Plaintiff 1 1 1 1 1 1 0 1 Page 1 - COMPLAINT (0)- Portland, OR 0 (0) -