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$3.7M Suit over Crosswalk Paint Revived

Thursday, February 19, 2015

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The City of Portland, OR, will have to answer in court for degraded markings at a crosswalk where several people have been killed.

A three-judge panel of the Oregon Court of Appeals has reinstated the city as a defendant in a wrongful-death lawsuit brought by the father of a 23-year-old pedestrian who was struck and killed in a poorly marked crosswalk in November 2009.

LindsayLeonard
Family photo via oregonlive.com

Lindsay Leonard, 23, was killed instantly when she was struck by a car in a faded, unlighted crosswalk. Her family is suing the City of Portland over the crosswalk markings.

The accident claimed the lives of Lindsay Leonard and her roommate, Jessica Finlay, 22. Leonard's father, Lane, is the plaintiff in the current case.

Charges and Claims

The long-running suit was originally filed against the driver, Tito Feliciano, 40; his employer, Moran Foods; Moran's parent company, Supervalu Inc.; the City of Portland; and Portland General Electric Company (PGE).

PGE was a defendant because the street light at the scene was not working; the utility settled its claims out of court.

The City of Portland was accused of failing to maintain the crosswalk coatings, which were worn completely away in some areas, creating a "dark zone" at the scene, the court said. The city had received complaints about the walk, and other deaths and accidents had occurred there.

Feliciano was not charged in the case. The lawsuit accused him of being distracted by his cell phone at the time of the accident; cell-phone use violates his employers' policies. Records showed that Feliciano had not been on the phone, but an incoming call went to voice mail around the time of the crash.

CrosswalkDash
ODOT

Pedestrians and motorists share responsibility for pedestrian safety in Oregon. At trial, jurors found Lindsay Leonard 51 percent responsible for the accident that took her life.

A trial-court jury found in favor of the defendants. Leonard was wearing a dark coat, and jurors found that the women (who shared a flashlight) had stepped into the crosswalk without giving the driver time to stop.

Faded Crosswalk

The appellate decision describes the crosswalk as "marked but faded," with ladder bars (vertical reflective stripes) that were worn away "to varying degrees." The central ladder bar was "worn away completely" to black asphalt, and the "stop line" for approaching vehicles was partly worn away, the court said.

Photos "indicate that the crosswalk markings in that lane were sufficiently faded that they were difficult to see, particularly from a distance, and that that part of the crosswalk was very dark," the court noted.

The trial court granted summary judgment to the city, dismissing it as a defendant before the trial began. The court said that the victim's family had not offered sufficient evidence that the markings had caused the accident.

'A Substantial Factor'

The appellate panel, however, found that the trial court had set the evidentiary bar too high. The family need not have shown that the city's negligence "more likely than not brought about the death," as the trial court said.

Crosswalk Crosswalk
pdxcrosswalks / tumblr

On Tumblr, "pdxcrosswalks" documents the state of Portland's crosswalks in photos. These images are from other locations around the city, not from the scene in this case. Oregon law requires a crosswalk at every intersection.

Rather, in cases where multiple factors were involved in a death, the plaintiff had to show only that the defendant's conduct "was a material element and a substantial factor in bringing it about," the appellate court said.

The correct standard, the appellate court said, was whether "a reasonable juror" could find that the failure to maintain the markings was a "substantial factor" in the accident.

Claims Rejected

The city argued that:

  • The appellate court should weigh the earlier dismissal against the evidence presented later, at trial—an argument the panel rejected out of hand; and
  • Jurors would not consider the degraded markings a contributing factor to the accident.

The court disagreed.

"Put simply," the decision said, "the evidence in the summary judgment record would permit a reasonable factfinder to find that the faded crosswalk markings impaired Feliciano’s ability to see Leonard as she crossed Foster Road, causing him to drive into her."

CrosswalkMarkings
Texas Transportation Institute via FHWA

The Federal Highway Administration's Manual on Uniform Traffic Control Devices for Streets and Highways details guidance for crosswalk markings.

Indeed, the court noted, Feliciano testified that he had looked for pedestrians in the crosswalk because of pedestrian warning signs posted at the intersection, but "didn't see any ... in the street."

'Camouflaged'

The decision calls an aerial photo of the accident scene "striking; no trace of white paint is visible from that vantage point, leaving a sizable gap in markings in the middle of the westbound lanes."

Moreover, photos presented at trial showed "dramatic" deterioration in the crosswalk markings between 2008 and 2009, the court said.

The court also cited another photo taken 17 days after Leonard's accident, showing a darkly dressed pedestrian pushing a darkly colored stroller through the same "dark zone."

"In the absence of an intact ladder bar, it is difficult to discern the pedestrian and the stroller from the expanse of pavement surrounding them," the court said.

"[V]isually, it is as if they are camouflaged so as to blend in with the street."

   

Tagged categories: Fatalities; Health and safety; Lawsuits; Maintenance coating work; North America; Quality Control; Roads/Highways; Traffic paint

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