United States District Court, D. Oregon, Portland Division
For JR Fruitts, Marianne Zinzer, Plaintiffs: Michelle R. Burrows, LEAD ATTORNEY, Michelle R. Burrows, PC, Sherwood, OR.
For Union County, a political subdivision of the State of Oregon, Rocky Burgess, Joe Voleck, Steve Wilson, Rich Comstock, Doug Wright, Defendants: Mark C. Sherman, LEAD ATTORNEY, Steven A. Kraemer, Hart Wagner, LLP, Portland, OR.
FINDINGS AND RECOMMENDATION
Patricia Sullivan, United States Magistrate Judge.
JR Fruitts (" Fruitts") and Marianne Zinzer (" Zinzer") (collectively " Fruitts") filed a Complaint against Union County and five named employees of Union County Public Works Department (collectively " County"), Captain Hooks Towing (" Captain Hooks"), and Paul McKaig (" McKaig"), owner and operator of Captain Hooks, alleging claims under federal and state law. Fruitts's Complaint arises from a motor vehicle accident in which Fruitts hit and killed John Rysdam with a Ford Bronco owned by Zinzer while Rysdam was working as part of a County road crew. Specifically, Fruitts alleges a claim under 42 U.S.C. § 1983 against all five individual County employees for a violation of his substantive due process right under the Fourteenth Amendment. Fruitts also alleges three § 1983 claims against the County for failure to train, informal policy custom and practice, and acts of policymaker all in violation of the Fourteenth Amendment. In addition, Fruitts and Zinzer allege a state law claim for negligence against the County; and Zinzer alleges a state law claim for conversion and a state statutory claim for violation of lien foreclosure against Captain Hooks, McKaig and the County. Fruitts and Zinzer seek monetary relief, including attorney fees and costs, and declaratory relief.
The County filed a Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure seeking an entry of judgment against all claims alleged in Fruitts and Zinzer's Complaint.  Oral argument was heard on the motion and, for the reasons that follow, the County's Motion to Dismiss should be granted.
On February 28, 2012, Fruitts was driving a Ford Bronco, owned by Zinzer, to a mechanic for body repairs. (Compl. ¶ 14.) Fruitts was driving on Palmer Junction Road when he came upon a County road crew patching pot holes. (Compl. ¶ 14.) According to the Complaint, there was no posted speed limit and Fruitts was driving approximately 35-40 miles per hour. (Compl. ¶ 15.) Additionally, Fruitts alleges " the basic rule in Oregon permitted driving as fast as 55 miles per hour." (Compl. ¶ 15.)
Fruitts contends the road crew, comprised of four individuals including Burgess, had parked their County vehicle in the middle of the south bound lane. (Compl. ¶ 16.) Fruitts alleges the road crew: " failed to place signage prior to the stopped vehicle warning of a road crew, there was no traffic control device warning drivers, no allowance made to direct traffic around the road crew, no advanced warning whatsoever." (Compl. ¶ 16.) The County vehicle was pulled to a portion of the road that was blocked from view around a corner. (Compl. ¶ 16.) According to Fruitts, the vehicle was parked " in such a manner as to only afford oncoming traffic less than national standards recommend." (Compl. ¶ 16.)
Fruitts alleges he did not see any warning of a road crew nor were there any signs to indicate such work was underway. (Compl. ¶ 17.) Fruitts does concede he took his eyes off to glance at the radio and when he looked up he was coming quickly upon the rear end of the County truck. (Compl. ¶ 17.) Several members of the road crew were standing directly behind the truck and Fruitts braked hard. He tried to control the Bronco and was able mostly to miss the parked truck by sharply turning left, although the right rear panel of the Bronco scraped the County vehicle. (Compl. ¶ 17.) Fruitts asserts that, at the last minute, one of the road crew, Rysdam, " panicked and ran into the front of the Bronco." (Compl. ¶ 17.) Fruitts alleges he was traveling less than 35 miles per hour when he struck Rysdam, throwing Rysdam " several feet away." (Compl. ¶ 17.)
Fruitts immediately began to administer CPR to Rysdam and called 9-1-1. By the time the ambulance arrived Rysdam had died. (Compl. ¶ 18.) Fruitts cooperated with the Oregon State Police investigation but was eventually charged with manslaughter by the Union County District Attorney (" DA"), Tim Thompson. (Compl. ¶ 18.)
During the course of the criminal prosecution, the Oregon State Police seized the Bronco as evidence in the homicide prosecution. (Compl. ¶ 19.) The Bronco was towed by Captain Hooks and held in storage while the case proceeded. As a community service, Captain Hooks, by and through McKaig, does not charge law enforcement or the County for tows related to criminal investigations. (Compl. ¶ 19.)
At all times, the Bronco was the property of Zinzer, the registered owner. The Bronco was held in Captain Hook's secured lot until April 2012, when McKaig called the DA's office to obtain further instructions on the disposition of the Bronco. (Compl. ¶ 20.) At that point, McKaig sought payment for storage fees. DA Thompson advised McKaig the Bronco should be released to Zinzer and he advised Zinzer she could retrieve her Bronco. (Compl. ¶ 20.)
Under oath, McKaig's wife testified she telephoned Zinzer twice and told her the Bronco could be released to her custody if the tow bill was paid. (Compl. ¶ 21.) Fruitts insists there should be no tow bill as Captain Hooks did not charge the County for the towing. He further charges there are no records to confirmation McKaig called Zinzer, and Zinzer denies receiving such a call. (Compl. ¶ 21.)
McKaig's wife called a salvage company and learned they would pay her $500 to salvage the Bronco for scrap. (Compl. ¶ 22.) She admitted under oath she failed to send written notice to Zinzer and did not follow the requirements of Or. Rev. Stat. § § 819.210 et seq., and Or. Rev. Stat. § 87.192. (Compl. ¶ 22.) Fruitts alleges McKaig's wife, on behalf of Paul Mckaig and Captain Hooks, knew the Bronco was not abandoned, there was no tow bill, she had not called the registered owner, she had not sent written notice to the registered owner, and had no legal authority to scrap and destroy the Bronco. (Compl. ¶ 22.)
At some point, and before Fruitts' criminal defense could examine the Bronco, it was destroyed while in the custody of the State. (Compl. ¶ 23.) As a consequence, Fruitts was unable to conduct forensic examination of the Bronco to test the brakes and the vehicle's ability to stop and handle. (Compl. ¶ 23.) This was critical to assess the speed at which the Bronco was traveling at the time of the accident and impact. (Compl. ¶ 23.) Fruitts charges that the decision to destroy the Bronco was made without notice to Fruitts and Zinzer, and with the knowledge its destruction would be prejudicial to Fruitts' criminal defense. (Compl. ¶ 23.) Fruitts alleges the McKaigs were working in concert with the State in the destruction of the Bronco. (Compl. ¶ 23.)
The Bronco would have been tested by the Fruitts' defense and, purportedly, would have shown Burgess " was inaccurate or untruthful when he testified that from the crest of the hill, Fruitts 'stomped' on the gas." (Compl. ¶ 24.) According to Fruitts, access to the Bronco would have enabled him to establish the actual coefficient of friction to establish the speed at impact. (Compl. ¶ 24.) The Bronco, or photos of Zinzer's Bronco, could have been used to show to the jury at Fruitts' criminal trial the location of the stereo and its complicated operating system, which ran the speakers through the engine causing the engine noise to be exaggerated inside the cab of the Bronco and, apparently, to Burgess. (Compl. ¶ 24.)
Fruitts alleges the County is bound by various state law, federal Occupational Safety and Health Administration (" OSHA") regulations, and its own local ordinances and regulations on accessing, repairing and working on operating roadways. (Compl. ¶ 29.) According to County road standards, Palmer Junction Road is a low volume road. (Compl. ¶ 29.) The volume of traffic is approximately 409 Average Daily Traffic (" ADT") vehicles. (Compl. ¶ 29.) The County standards for Temporary Traffic Control during pot hole patching operations do not require advance warning signs on low volume roadways. (Compl. ¶ 30.) According to the County's appeal of a civil fine issued to it by OSHA, the entire pothole patching process takes no more than ten minutes to fill the hole with asphalt and then the crew moves to the next section. (Compl. ¶ 30.) The crew size typically assigned to a pothole patching operation for the type of activity on February 28, 2012, is three to four employees. (Compl. ¶ 30.) Policy permits one person on the crew to watch for traffic while others perform the work. (Compl. ¶ 30.)
On the day of the incident, Burgess was the most senior member of the road crew and, in accordance with County standards, was responsible for defining the scope of work for the crew, and devising and incorporating safety standards, including the traffic warning for that day. (Compl. ¶ 31.) The road crew was patching approximately three to four miles of Lower Palmer Junction Road. Prior to the fatal accident, the crew had patched the northbound side of the road as far as the intersection with Middle Road and were in the process of patching the southbound lane as they traveled back to Elgin, Oregon. (Compl. ¶ 32.)
While some sections of Palmer Junction Road are straight and relatively level, the site distance for the portion of the road involved in the accident was considerably reduced due to road terrain. (Compl. ¶ 33.) The County road crew's flatbed truck had a vehicle-mounted strobe light that was in use at the time of the accident. (Compl. ¶ 33.) In addition, one crew member had access to a 'SLOW" and " STOP" paddleboard used previously in the day, but the paddleboard was not in use at the time of the accident. (Compl. ¶ 33.) There were no other traffic control measures in place at the time. (Compl. ¶ 33.)
The County was cited by Oregon OSHA for violation of OAR 437-002-2224(12), a " serious" violation because traffic controls did not conform to the Millennium Edition of the Federal Highway Administration (" FHWA") Manual for Uniform Traffic Control Devices (" MUTCD"). (Compl. ¶ 34.) The road crew did not have any advance warning device as required for work done in the travel way of a two lane, two-way road. (Compl. ¶ 34.)
According to Fruitts, the primary federal guidelines for road crew work is the MUTCD, which represents the national standard for all fifty states. (Compl. ¶ 44.) By the Oregon Temporary Traffic Control Handbook (" OTTCH"), Oregon adopted additional guidelines to supplement the MUTCD; the OTTCH applies to all short term work done by public entities. (Compl. ¶ 44.)
All of the members of the road crew were interviewed as part of the Oregon OSHA investigation and all admitted they did not typically use signs in conjunction with flaggers or other similar traffic control measures when doing cold-patching work. (Compl. ¶ 35.) They also admitted they use signs together with flaggers in conjunction with " larger" jobs. (Compl. ¶ 35.)
Steve Wilson, the Traffic Specialist for the County, normally decides traffic control measures to be used onsite. Wilson had never evaluated cold-patching work to determine what traffic control measures were required by Oregon's OSHA rules or other references. (Compl. ¶ 36.) Wilson admitted he had never accessed the OTTCH to determine what traffic control would be needed for cold-patching work even though he acknowledged that the OTTCH was the standard relied upon by the County. (Compl. ¶ 36.)
According to OSHA, the manner in which the County conducted cold patching at the time of the incident exposed multiple employees in multiple locations, and the hazardous exposures to vehicular traffic operating under the Basic Rule speed limit could reasonably be expected to cause death. (Compl. ¶ 37.)
There is no general process or procedure for assigning cold-patch repairs within the County. (Compl. ¶ 38.) It appears individuals are assigned work areas and get to the cold patching when they have time. (Compl. ¶ 38.) No overall work plan is required to be prepared or submitted for review by a supervisor, no training is conducted for developing safety procedures for road work requiring a moving work station, no standardized safety measures are imposed, and it appears no supervisors review the performance of road crews for safety or work improvement. (Compl. ¶ 38.) All decisions regarding the equipment needed, the safety measures imposed and the method of the work done by the road crew rests with the senior crew member, Burgess in this instance. (Compl. ¶ 38.) Fruitts alleges that on the day of the incident Burgess " failed to devise any plan for setting up traffic control or warnings and no plan to adjust for the siting of the vehicle." (Compl. ¶ 38.)
Valek is a road supervisor with the County. (Compl. ¶ 39.) During the OSHA investigation, Valek admitted the road crew was a " moving work site" and no warning or safety signage was required by the County. (Compl. ¶ 39.) He was unsure whether workers were wearing safety vests, or whether it was appropriate for the County vehicle to be parked in the middle of the road. (Compl. ¶ 39.) Valek was unfamiliar with the MUTCD. (Compl. ¶ 39.) He was unsure how this road crew and work assignment was made or managed, or how the " work zone" was determined. (Compl. ¶ 39.) Valek ...