United States District Court, D. Oregon
[Copyrighted Material Omitted]
For Ryan Hammel, Jamie Hammel, Plaintiffs (3:12-cv-00706-MO): Michelle R. Burrows, Michelle R. Burrows, PC, Sherwood, OR.
For Tri-County Metropolitan Service District of Oregon, (Tri-Met), a political subdivision of the State of Oregon, Defendant (3:12-cv-00706-MO): Kimberly A. Sewell, LEAD ATTORNEY, Tri-County Metropolitan, Portland, OR; Erik Van Hagen, Deputy General Counsel, Portland, OR; Keith M. Garza, The Law Office Of Keith M. Garza, Oak Grove, OR.
For Sandi Day, an individual, Defendant (3:12-cv-00706-MO): Jeffrey S. Eden, Ryan P. Boyle, Schwabe Williamson & Wyatt, PC, Portland, OR.
For David B. Sale, personal representative of the Estate of Danielle Nicole Sale, an individual, Jeanette L. Sale, an individual, Plaintiffs (3:12-cv-00708-MO): George L. Kirklin, LEAD ATTORNEY, Stephen C. Thompson, Richard S. Pope, Kirklin Thompson & Pope LLP, Portland, OR.
For Estate of Danielle Nicole Sale, Plaintiff (3:12-cv-00708-MO): Richard S. Pope, Kirklin Thompson & Pope LLP, Portland, OR.
For Tri-Met, a municipal corporation doing business as Tri-County Metropolitan Transportation District of Oregon (3:12-cv-00708-MO, 3:12-cv-00709-MO), Defendant: Erik Van Hagen, LEAD ATTORNEY, Deputy General Counsel, TriMet, Portland, OR; Keith M. Garza, LEAD ATTORNEY, The Law Office Of Keith M. Garza, Oak Grove, OR; Kimberly A. Sewell, LEAD ATTORNEY, Tri-County Metropolitan, Transportation District of Oregon, Portland, OR.
For Sandi L. Day, an individual (3:12-cv-00708-MO, 3:12-cv-00709-MO), Defendant: Jeffrey S. Eden, Ryan P. Boyle, LEAD ATTORNEYS, Schwabe Williamson & Wyatt, PC, Portland, OR.
For Robert Erik Gittingsm, an individual, Plaintiff (3:12-cv-00709-MO): George L. Kirklin, LEAD ATTORNEY, Stephen C. Thompson, Richard S. Pope, Kirklin Thompson & Pope LLP, Portland, OR.
For Vicki Flynn, individually, Estate of Jenee Hammel, Personal Representative, Vicki Flynn, K.M., by and through his Guardian ad Litem, Daniel Marciano, Plaintiffs (3:12-cv-00710-MO): Hala J Gores, LEAD ATTORNEY, Hala J. Gores, PC, Portland, OR.
For TriMet, assumed business name of Tri-County Metropolitan, Transportation District of Oregon, a municipal corporation, Defendant (3:12-cv-00710-MO): Kimberly A. Sewell, LEAD ATTORNEY, Tri-County Metropolitan, Transportation District of Oregon, Portland, OR; Erik Van Hagen, Deputy General Counsel, Portland, OR; Keith M. Garza, The Law Office Of Keith M. Garza, Oak Grove, OR.
For Sandi Day, an individual, Defendant (3:12-cv-00710-MO): Jeffrey S. Eden, LEAD ATTORNEY, Schwabe Williamson & Wyatt, PC, Portland, OR.
MICHAEL W. MOSMAN, United States District Judge.
OPINION AND ORDER
Near midnight on April 24, 2010, bus operator Sandi Day struck five people in a crosswalk while driving a Tri-County Metropolitan Transportation District of Oregon (" TriMet" ) bus. Two of those people died, and the other three were injured. It was the worst bus/pedestrian collision in TriMet history.
Plaintiffs have filed parallel state court and federal court actions. In the state court actions, plaintiffs seek many millions of dollars in damages based on claims for products liability, negligence, and wrongful death. (Pope Decl.  Exs. 5-6, 19.) Those actions are set for trial later this summer. Here, plaintiffs assert claims against Ms. Day and TriMet under 42 U.S.C. § 1983 for violations of their substantive due process rights. (Am. Compls. [42-44, 45].)
After careful consideration of the parties' pleadings and arguments, I find that
Ms. Day did not deprive plaintiffs of their substantive due process rights and, alternatively, that she is entitled to qualified immunity. In addition, I find that municipal liability may not attach in the absence of individual liability in these consolidated actions. Therefore, Ms. Day's motion for summary judgment  is GRANTED, TriMet's motion for summary judgment  is GRANTED, and plaintiffs' motion for partial summary judgment [58, 62] is DENIED.
Summary judgment is appropriate " if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In determining whether a genuine issue of material fact exists, the court must view all facts and reasonable inferences in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). On cross-motions for summary judgment, the court " evaluate[s] each motion separately, giving the nonmoving party in each instance the benefit of all reasonable inferences." ACLU of Nev. v. City of Las Vegas, 333 F.3d 1092, 1097 (9th Cir. 2003).
I. Individual Liability
On April 24, 2010, Ms. Day arrived for work around 3:00 p.m. and began her run on the No. 9 bus line at 5:56 p.m. (Eden Decl.  Ex. 1 at 20.) Sometime before midnight, Ms. Day picked up an elderly male passenger who requested to be dropped off near his home in the Pearl District. Ms. Day agreed to make a courtesy stop at an established bus stop on the No. 17 bus line, just east of N.W. Glisan's intersection with N.W. Broadway. ( Id.  Ex. 1 at 21-24.) This stop was not on her regular bus line, but TriMet policy permitted evening courtesy stops.
Before making the courtesy stop, Ms. Day dropped off her only other passenger on N.W. Sixth Avenue near the intersection with N.W. Flanders. She then continued north on N.W. Sixth Avenue and made a left-hand turn onto N.W. Glisan. Ms. Day made her courtesy stop at the bus shelter on the northern curb of N.W. Glisan, just thirty-two feet short of the intersection with N.W. Broadway. ( Id.  Ex. 1 at 25-27; Thompson Decl.  Ex. 19 at 3-4.)
Although it was late, there was significant foot traffic in the area at that time because a show at a nearby comedy club had just ended. (Thompson Decl.  Ex. 13 at 5; Hysmith Decl.  ¶ ¶ 4-9.) However, visual obstructions on the left side of the bus made it difficult for Ms. Day to see pedestrians crossing N.W. Broadway to her left. These obstructions included a steel and fiberglass pillar, referred to as the " A-pillar," and an exterior rearview mirror set, consisting of a ten-inch by eleven-inch flat mirror above a six-inch diameter convex mirror. (Thompson Decl.  Exs. 7-9.)
After the elderly male passenger exited the bus, Ms. Day waited for the traffic signal to turn green. In this area, N.W. Glisan was a one-way street with two westbound lanes, and N.W. Broadway was a two-way street with one northbound and two southbound lanes. There was one car in each of N.W. Glisan's two lanes that were also waiting at the traffic signal. (Hysmith Decl  Ex. 28.) When the signal turned green, a third car approached from behind Ms. Day's bus in the second lane to her left. Ms. Day waited for the two cars ahead of her to move through the intersection and for the third car approaching
from behind to pass her on the left. ( Id.  Ex. 30.) She then accelerated left across both lanes of N.W. Glisan onto N.W. Broadway at twelve to fourteen miles per hour. (Thompson Decl.  Ex. 14 at 27-28.) Although Ms. Day scanned the area to her left, she did not see a group of five pedestrians in the crosswalk. (Eden Decl.  at 28-30.) Sadly, as Ms. Day completed her turn, she struck all five. Jenee Hammel and Danielle ...