How often have you found your client in a legal predicament so unfair that justice seems like it’s being turned on its head? The answer is probably that it happens too often. There are various ways to respond. Just deal with it and move on. Allow despair for your client to devolve into cynicism toward the law. Or vow to do something about it. Despair and cynicism are the core of burnout for good people’s lawyers. Or, even better, transform your angst into activism and make the law change to provide better justice. As Harry Philo said, “The law is never settled until it is settled right, the law is never settled right until it is just…” Tony Miller’s story provides inspiration for action when the law is behaving like an ass.
On Feb. 25, 1993, Tony Miller, a 41-year-old father of two and career Oregon Department of Transportation (ODOT) employee, was working with his bridge repair crew near Roseburg in Douglas County. They were setting up a work zone to begin an overpass railing repair along the southbound lanes of I-5. While unloading their equipment, Miller noticed a 2′ long wood 4×4 lying in one of the southbound traffic lanes. It had likely fallen off of a truck. Cars were swerving around it. Miller waited for a break in the traffic, then walked out and picked it up. As he carried it back to the shoulder, he suddenly noticed that a truck was bearing down on him. He took a quick step, but was not fast enough to avoid an impact. He was hit so hard that most of the major bones on the left side of his body were fractured.
Miller’s recovery was long and painful. After months of physical therapy and $70,000 in medical costs, Miller was left with a permanent painful limp and other physical damage that would forever limit his ability to do any type of heavy labor.
Our office filed a negligence action against the driver of the truck. We expected a comparative negligence defense and were prepared for the jury to weigh each party’s respective contribution to the accident. However, we were shocked when the defendant’s answer alleged that Miller was negligent as a matter of law for violating the truck’s right-of-way on the freeway! At the time, ORS 814.040 provided that highway workers and other pedestrians had no legal protection while in the roadway unless they were occupying a crosswalk. Suffice it to say, there is no crosswalk along I-5’s entire path through the State of Oregon. Legal research disclosed that as a member of a work crew performing his official duties, Miller was given no special protection by the law, even though he was in a clearly signed highway work zone, wearing an orange vest and helmet.
At trial, we demonstrated that while Miller’s attention was focused on the block of wood, the truck driver approaching him at highway speed had a clear view. A line of sight accident reconstruction demonstrated that the truck was invisible to Miller when he checked for oncoming traffic because it was hidden behind his crew’s parked ODOT work trucks. The investigating State Police Officer said “The truck driver saw Tony, had the time to avoid him, but when they did their little dance the driver figured that Tony would go in one direction when, in fact, Tony went in the other.” The truck driver’s incorrect guess about which way Miller would leave the highway directly led to the collision.
Application of the pedestrian yield law resulted in what was essentially a no offer case. At trial, the court reluctantly allowed the negligence per se defense, which became the centerpiece of the truck driver’s case. The jury dutifully applied the law at the conclusion of trial and found Tony Miller 49% at fault, but simultaneously followed their conscience and awarded him the full prayer in the complaint of $1,190,833.48. Miller’s lack of legal protection as a highway worker effectively resulted in a halving of his damages. Media interest in the case, combined with a number of high profile accidents in which highway workers were killed and injured during the summer and fall of 1995 created public pressure for the need for increased protection for Oregon’s highway workers.
That winter and the following spring we worked with consumer activist Jason Reynolds (now director of the Oregon Consumer League) to form a broad-based coalition with business, insurance and union groups to highlight the vulnerability and lack of protection for highway workers. The inequities were so clear that even Oregon’s automobile and insurance lobbies decided not to oppose our efforts. We drafted a new statute providing work zone protection, and celebrated a major breakthrough when Jim Dyer, an Oregon citizen lobbyist whose own son had been killed in a work zone while working on a survey crew, agreed to join our all-volunteer effort and shepherd our bill through the legislature. The hurdles to our effort were significant. Oregon’s Republican dominated legislature in 1997 was spearheading the continued wholesale overhaul of our civil justice system, restricting rights to joint and several liability, punitive damages and workers’ compensation benefits. Nevertheless, the single-issue reform of our little coalition had considerable logic and appeal and few legislators were willing to speak out publicly against our measure.
The coalition’s proposal was whisked through committee, passed the legislature and was signed by the Governor during a moving reception in the lobby of the Capitol attended by Miller and his family and other injured highway workers. Media groups recorded Miller’s receipt of a signed plaque from Governor Kitzhaber and the bill became law. In future cases, the jury will receive an entirely different and more just statement of the law.
The new law, ORS 811.233 now reads: “A person commits the offense of failure to yield the right of way to a highway worker who is a pedestrian if the person is operating a motor vehicle in a highway work zone and does not yield the right of way to a highway worker who is a pedestrian.”
Tony Miller’s experience and the jury’s predicament caused by an unfair law would not happen again. Our work in recognizing that the law was not right, and doing something about it, resulted in one of the few legislative enactments from the 1997 Legislature that served the interest of injured people. Though Tony Miller had legal insult added to injury in his own case, his misfortune helped change the law to protect future highway workers.