I am often asked what my arbitration memorandum looks like in relatively simple cases. Given that I just won an arbitration two weeks ago on a small case, I figured that I’d simply post the mediation memorandum that was submitted, and which convinced the arbiter to rule in our favor. (Note: I have removed the involved parties’ names for confidentiality purposes. My client is the “Plaintiff.”). Here it is:
This lawsuit stems from a motor vehicle collision that occurred on August 26, 2009 in Bend, Oregon. Both liability and damages are issues to be decided by the arbitrator.
FACTS OF THE COLLISION
On August 26, 2009, Plaintiff finished shopping at the Bend Petco on 3rd Street, near Appleby’s. She placed her goods into her 2001 Lexus RX 300, got into the driver’s seat, and prepared to back out of her parking spot. About that time, Defendant drove her 2000 Saturn LW through the parking lot, and passed the rear of Plaintiff’s SUV. After Plaintiff saw Defendant pass the rear of her SUV, she proceeded to slowly back out of the parking space, in an “L” pattern, and once she was into the parking lot, she stopped her vehicle in preparation to drive it forward and through the parking lot. At the same time, Defendant realized that she passed a parking spot while cruising through the lot. Not wanting to lose the spot to someone else, Defendant shifted her vehicle into reverse and backed up. Unfortunately, she did not see Plaintiff’s SUV already in the lane of travel, at a full stop, and backed into the rear of Plaintiff’s SUV, pushing it forward some six inches or so.
While the photographs do not show much by way of property damage, Plaintiff had her vehicle professionally evaluated. As the property damage estimate verifies, her SUV sustained nearly $1,100 in property damage. (Tab 4). As the damage estimate and photographs show, a majority of the damage was done to the right quarter panel, bumper assembly, and bumper. (Tabs 4-5). In fact, the photographs clearly depict a large separation between the rear quarter panel and the bumper cover, confirming that the entire bumper assembly was bent downward. As the damage estimate indicates, this caused additional damage to both mud guards. Clearly, this was not a simple “parking lot bump” as the defendant may be inclined to insinuate.
Plaintiff recalls the severity of the impact as a 3-4/10. She recalls her SUV being pushed forward as well. Even though it was pushed less than a foot, it is significant in that both the pushing of the SUV and the property damage indicate that the force of impact was significant enough to injure Plaintiff. Indeed, while Plaintiff did not feel pain at the scene, she began to feel tightness in her neck that night, and the pain really came on the next day, including pain down her right arm and into her hand, as well as headaches. Her injuries and treatment is discussed in further detail below.
DISCUSSION OF LIABILITY
The evidence will show that Defendant is fully liable for the collision, and that Plaintiff bears no liability, despite the fact that Defendant amended her Answer to allege comparative negligence.
1. Defendant admits to failing to exercise due care.
Speed, control, and duty to maintain an adequate lookout are interrelated. As speed increases, the duty to be alert and have one’s automobile under adequate control increases. Troupe v. Ledward, 238 Or 531, 395 P2d 279 (1964). The same holds true for lookout: as lookout (visibility) decreases, the duty to move at a reasonable speed and keep control of one’s vehicle increase. Here, the defendant failed her duty on all three counts, and admits to at least one of those specifications of negligence.
a. Defendant did not keep a lawful lookout.
In Oregon, the driver of a vehicle must keep and maintain a reasonable lookout for other vehicles or persons on the street, highway, or parking lot. A person does not comply with the duty to keep a reasonable lookout by simply looking and not seeing that which is plainly visible and which would have been seen by a reasonably prudent person under the same or similar circumstances. (See UCJI 35.04). After Defendant passed the rear of Plaintiff’s vehicle, then decided to reverse the direction of travel, it was she who bore the burden of keeping a lookout for others who may have backed out of a parking space once she passed. However, she failed to do so. Indeed, she immediately declared to Plaintiff after the crash, “Oh my God, I didn’t see you!” (Ex. 3, Response to RFA No. 2). Indeed, Defendant admits that she was “at least partially” at fault in causing the subject collision. (Ex. 3, Response to RFA No. 3; Amended Answer, paragraph 3).
b. Defendant was not driving at an appropriate speed under the circumstances.
Simply put, Defendant was driving faster than is reasonable considering the traffic, visibility, and unusual manner she was driving (reverse in a parking lot in an attempt to nab a spot she had missed). Given that she clearly couldn’t see well – illustrated by the fact that she backed into a parked SUV – she travelled too fast for the conditions then and there existing. Indeed, if one cannot see in a parking lot, the only safe speed is a dead stop until they can properly see behind them. Otherwise, they should use a spotter, or honk their horn as they slowly back up. None of this was done here. Defendant is only all too lucky she hit an SUV instead of a small child eager to look at puppies in Petco.
c. Defendant did not keep proper control of her vehicle.
Given that she was apparently distracted by the need to nab the missed parking spot, Defendant did not keep proper control of her vehicle, in that she did not give herself an opportunity to avoid, or otherwise stop short of, obstacles behind her in the parking lot. Here, that obstacle was Plaintiff’s vehicle.
2. Plaintiff is not liable, as she was acting reasonable under the circumstances.
Defendant amended her answer to allege an affirmative defense of comparative negligence, claiming that Plaintiff did not keep a proper lookout. This allegation, however, is without merit. Indeed, the evidence will show that Plaintiff was acting as most people would under the circumstances – slowly backing out of a parking space once traffic behind had cleared, and bringing her vehicle to a full stop prior to shifting into “drive.”
Even a cursory review of Oregon law clearly shows that Plaintiff is free from liability for this collision. As UCJI 35.04 states:
It is the continuing duty of a driver of a motor vehicle to keep and maintain a reasonable lookout for other vehicles or persons.
A reasonable lookout means such as would be maintained by a reasonably prudent person under the same or similar circumstances.
In determining this question you should take into consideration the extent or degree of danger reasonably to be expected. A person does not comply with the duty to keep a reasonable lookout by simply looking and not seeing that which is plainly visible and which would have been seen by a reasonably prudent person under the same or similar circumstances.
(emphasis added). Thus, the real question is whether Plaintiff should have reasonably expected Defendant to throw her car in reverse to nab a spot, and further expected that Defendant would not see her SUV when attempting to do so. Significantly, Defendant, in admitting that she failed to keep a proper lookout, admits that, had she been complying with Oregon law, would have seen Plaintiff’s SUV and have stopped short of it. So, the question is whether it is foreseeable to assume that others would not follow their duties obligated to them by law.
Once the lookout instruction is read in conjunction with UCJI 20.05, things become clear. UCJI 20.05 states that “Every person has a right to assume that others will obey the law, unless and until that person knows or in the exercise of reasonable care should know otherwise.” Here, Plaintiff had the right to believe that Defendant would comply with her duties of lookout, control and speed. However, as discussed above, even Defendant admits that she failed to do so.
The law does not require that folks act with perfection – it only requires reasonableness under the circumstances. Here, Plaintiff was quite reasonable. Perhaps the story might be different had she backed into Defendant, but this was not the case. She waited until the coast was clear, slowly backed out, and came to a complete stop before Defendant backed into her. What else could she have done? It was Defendant who chose to back up without looking where she was going, it is Defendant who admits that she was in the wrong, and it is Defendant who bears all responsibility for this collision.
SUMMARY OF INJURIES
As a result of the collision, Plaintiff sustained the following injuries:
- Damage to the muscles, ligaments, tendons, nerves, and other soft tissue of the neck;
- Right arm and right hand pain;
- Pain, discomfort and suffering; and
- Inconvenience and interference with usual and everyday activities, apart from gainful employment.
Defendant has denied any and all injury in both her Answer and Amended Answer.
SUMMARY OF MEDICAL TREATMENT
On August 27, 2009, the day following the incident, Plaintiff presented to The Center for evaluation of her neck pain by neurosurgeon Brad Ward, MD. Dr. Ward noted neck pain, greatest on the right side. Testing was within normal range, and he diagnosed Plaintiff with “Neck pain with whiplash injury.” Notably, he was aware that this was a low speed collision in a parking lot. He prescribed antiinflammatories, and noted that he would send her to physical therapy if things worsened.
On September 2, 2009 (one week post injury), Plaintiff returned to The Center, with complaints of persisting neck pain with a burning sensation of the right trapezius, and an experience of sharp right scapular pain with motion. Examination revealed slight pulling in the right trapezius with lateral rotation. She was assessed with a “cervical strain secondary to motor vehicle whiplash injury.” She was prescribed physical therapy and an Advil regimen, and told to return if symptoms persisted.
On September 9, 2009, Plaintiff started physical therapy with Rebound Physical Therapy. She continued through November 18, 2009, for a total of 15 visits. During this time, she was treated for right-sided neck and trapezius pain and headaches. The therapist noted an apparent right C5-6 facet opening restriction with moderate to marked decrease to sensation to the right upper trapezius and levator scapulae. The therapist noted signs and symptoms “consistent with status post motor vehicle accident” including increased right cervical spine tissue tension, moderate facet joint hypomobility, and mild decrease in cervical spine strength and stability. During the treatment, it was noted an overall slight improvement with therapy, and also some right arm/hand symptoms.
On November 25, 2009, Plaintiff returned to see Dr. Ward at The Center. She reported some relief with physical therapy, but a setback the night prior where her right sided neck pain once again became severe. The pain was noted in the same spot – right side of the neck extending into the right trapezius. Dr. Ward diagnosed continuing cervicalgia (neck pain), and prescribed her medication, with instruction to continue physical therapy. The plan was to send her for an MRI if things did not get better.
On December 9, 2009, an MRI was taken of Plaintiff’s neck, per Dr. Ward’s orders. Thankfully, the MRI showed no disc herniation or significant degenerative changes. It was read as negative. On the same day, Plaintiff followed up with Dr. Ward at The Center. She described her neck pain as improved somewhat since the November 25 visit. His diagnosis was continuing cervicalgia (neck pain), and wanted her back in to physical therapy. If the pain persisted, he noted that he would refer to physiatry.
On December 9, 2009, Plaintiff returned to physical therapy, per Dr. Ward’s instructions. She treated through February 1, 2010, for 11 total visits. During this second course of treatment, the therapist noted significant soreness, particularly after work, though improvement toward the end of the treatment. She was ultimately discharged on February 3, 2010, though the therapist did not indicate whether or not her therapy goals had been met. Notably, however, the last date of service just two days prior indicated that the therapy goals had not been met.
On April 1, 2010, Plaintiff returned to see Dr. Ward at The Center for reevaluation. She reported continued neck pain as before, with a new episode of pain, aching and paresthesia into her right arm that lasted for two days and hadn’t completely resolved. Dr. Ward noted minimal relief of her neck pain with the treatment he had prescribed. Neck pain was noted with extension upon testing. He assessed her with continued cervicalgia (neck pain) and neck strain. He wanted to rule out facet arthrosis, so referred her on for a SPECT scan. He also prescribed anti-inflammatories and considered a physiatry referral if the pain did not get better.
On April 12, 2010, Plaintiff presented for the SPECT scan Dr. Ward had ordered. Thankfully, it was read as normal, with no significant abnormalities.
On April 14, 2010, Plaintiff returned to see Dr. Ward at The Center for follow-up. She reported that she was doing pretty well at that point, with minimal neck pain and still occasional pain in her right arm. She was assessed with intermittent cervicalgia (neck pain) following the MVA. Dr. Ward referred her to physiatry to assess her continued symptoms.
On April 26, 2010, Plaintiff presented to Dr. Hill, a physiatrist at The Center, at the request of Dr. Ward. In the visit, Dr. Hill noted the same history as was previously given, and further notes a waxing and waning symptomology, with spikes in pain in the 7-8/10 range. He noted mid- and upper neck pain, greater right than left, with fairly severe headaches. Indeed, Plaintiff had a headache at that visit. Dr. Hill also noted that simple, everyday activities flared her symptoms, and it was interfering with her sleep. On exam, Dr. Hill noted “no pain behavior” (i.e., she’s not faking), and tenderness in the upper cervical muscles, upper trapezius, and rhomboid. Myofascial type stretching did cause muscular irritation. Dr. Hill assessed:
1). Cervical strain injury with residual myofascial pain syndrome. Imaging studies have been benign.
2). Cervicogenic headaches related to condition #1.
3). Secondary sleep difficulties due to pain which may be contributing to some pain amplification.
Dr. Hill states under Causation/Prognosis: “The above conditions are secondary to the documented MVA of 9/26/2009. Patient is still struggling with some nondisabling pain. I think she will have ongoing improvement with treatment.” Dr. Hill instructed Plaintiff on a home stretching program, prescribed medication, and discussed chiropractic or massage therapy if no improvement. There has been no further treatment since this date of service.
SUMMARY OF MEDICAL BILLS
As a result of her injuries, Plaintiff incurred approximately $8,290.01 in medical and therapy expenses. (See Tab 6). Her auto insurer paid $6,017.50 of this amount, and she makes no claim for the difference. The remaining difference of $2,272.51 was written off, and Plaintiff does not seek reimbursement of that amount.
Evidence of continued pain two years after the injury “establishes a probability that for sometime in the future the plaintiff will suffer pain.” Nelson v. Tworoger, 256 Or 189, 192 (1970). Moreover, if there are observable manifestations of a permanent injury as well as subjective complaints, the question of permanency will likely be submitted to the jury without the necessity of medical testimony. Senkirk v. Royce, 192 Or 583, 593 (1951); Heckler v. Union Cab Co., 134 Or 385 (1930). Here, Plaintiff still exhibits observable pain and weakness in her neck on an intermittent basis. Conservative treatment has made things better, but not perfect. Given that she is now over two years post injury, she will likely have difficulties extending well into the future. Given that Plaintiff is only 27 years old, and if you find the injuries to be permanent in any respect, even in the sense that she will be more subject to re-injury on account of her underlying injuries arising from this collision, she can expect to continue to live with these conditions for an additional 54.2 years. (See Tab 8).
EFFECT ON LIFE
Plaintiff experienced a substantial and dramatic change in her quality of life as a result of her injuries. Most significantly, she had pervasive and continual neck pain, right arm numbness, and headaches for the first eight months following the collision. After that point, the neck pain became more intermittent, waxing and waning two or three times per week. However, and as noted above, it has continued to wax and wane through the present, with no sign of fully resolving.
These symptoms had a significant impact on Plaintiff’s recreational activities. She had to skip an entire season of snowboarding (2009-10) due to her continued neck pain and headaches, and the fear of aggravating those symptoms with the activity she so loved. Moreover, she had to quit bowling with her friends due to the same reasons. The same goes for her other primary hobby: riding her bicycle. Long drives have also been difficult, particularly during those first eight months of symptoms. Thankfully, however, she managed to continue working her job as a switchboard operator for The Center here in town. Quite commendable, given her symptoms, both past and present.
Liability in this case is clear. Defendant has already admitted fault. Indeed, a review of the evidence demonstrates that Defendant’s negligence is the sole cause of the collision. Plaintiff suffered over two years of pain, frustration, and concern as a result. Her damages total more than she prays for in this lawsuit. However, she has chosen to limit her prayer to qualify for the protection of ORS 20.080. Thus, she respectfully asks that you award the prayer in this matter: $7,500 in noneconomic damages.
 ORS 801.305 defines “highway” as every public way, road, street, thoroughfare and place, including bridges, viaducts and other structures within the boundaries of this state, open, used or intended for use of the general public for vehicles or vehicular traffic as a matter of right. This necessarily includes parking lots.
 The chart notes can be found under Tab 6.
 We have every reason to believe that this was a typo. The MVA was 8/26/09, and is the only MVA noted in the entire chart, including in the Subjective section of that very chart note.