Sellwood resident Norma Gabriel died from injuries suffered when hit in a crosswalk in Milwaukie; the driver's penalty was a $260 fine

RAYMOND RENDLEMAN - This is the downtown City of Milwaukie crosswalk in which Sellwood resident Norma Gabriel was struck by a small FedEx Sprinter Van on April 26. She died at OHSU on May 10 of her injuries. The driver of the van pleaded no contest and was fined $260. On June 25, FexEx driver Jason James Fletcher pleaded "no contest", and paid a $260 traffic ticket, for failing to yield to Norma Gabriel, who was using her walker at an intersection on April 26 while trying to catch a bus at the Milwaukie Transit Center.

Gabriel, 83, a longtime Sellwood resident, was rushed by American Medical Response ambulance to Oregon Health & Science University, where she died from her injuries on May 10.

"I can't believe you could take someone's life and walk away from it with only a $260 fine," said Nelson's Nautilus Plus Milwaukie manager Angie Reynolds, an Oregon City resident who saw Gabriel every week as a patron of the exercise facility.

Oregon court records show that Fletcher has previously paid a total of $2,073 for 44 parking tickets in the past 10 years.

"It appears that paying tickets is just part of the cost of doing business for FedEx," remarked former State Rep. Carolyn Tomei, D-Milwaukie.

It wasn't just the fine amount that has shaken the local community. A news release was never issued regarding the case, so the circumstances surrounding Gabriel's death had remained mostly rumor until the publication of this news story.

According to the corporate office, FedEx talked with the Milwaukie Police Department soon after the incident, and officers initially declined to issue a traffic ticket. It was only after Gabriel died in the hospital that police reconstructed the scene of the crash and issued the citation.

FedEx apparently wasn't notified when Fletcher was charged, nor when he paid the fine, and a FedEx corporate spokesperson said she found out about these developments from the Clackamas Review newspaper on June 28. FedEx's office declined to say whether corporate policy could call for the firing a FedEx driver who hit a pedestrian in a crosswalk.

"Our deepest sympathy is extended to the family over the loss of their loved one," said FedEx spokesperson Heather Wilson. "We are looking into additional information about this incident and will withhold further comment pending the outcome of our investigation."

City of Milwaukie resident Benedicta Foley witnessed the FedEx van about to hit Gabriel, but Foley told police that she couldn't bear to watch the van make contact, so Foley turned away before the van actually hit Gabriel. Foley told police that she saw Gabriel having trouble getting off the curb and moving very slowly with her walker into the crosswalk. After Foley turned away, she heard a "thump", and when she turned back around, she saw Gabriel on the ground bleeding.

FedEx driver Fletcher, a 48-year-old Lake Oswego resident, was turning left from Southeast 21st Avenue into the transit center on Jackson Street when he hit Gabriel, a resident of Sellwood. In a 911 call a minute later, he admitted to hitting Gabriel in the crosswalk. When the 911 dispatcher asked Fletcher what happened, he said, "She's very short. I didn't see her over the ... hood of my truck."

Tomei not only knew Gabriel as a fellow Nelson's Nautilus member, but Tomei also saw the incident as something that should forever remain in the memory of citizens and local public-safety advocates. Tomei walks with her 4-year-old great-grandson to the library every Friday, and crosses using the same crosswalk in which Gabriel was killed. Tomei now worries that her great-grandson might be as vulnerable as Gabriel in terms of being small and unseen.

"In my 51 years living in Milwaukie I have never heard of anyone being killed downtown in the transit center, much less in a crosswalk," Tomei remarked. "Frankly I can't understand how this has been handled so quietly and casually, nor why the disability community has not been alerted and involved."

Gabriel's death may have a lasting impact on the City of Milwaukie. Oregon City doesn't allow passenger cars in its TriMet transit center, and now Milwaukie is considering enacting the same rule.

Milwaukie Mayor Mark Gamba said that he will advocate that the city close the transit center to non-bus through traffic, in light of this news. Gamba also is working on a Vision Zero plan with the Milwaukie City Council to develop funding sources and construction projects to make streets safer for pedestrians and bicyclists, with the goal of zero pedestrian fatalities in the future.

Possibility of a lawsuit

The FexEx Mercedes Sprinter Van hit Gabriel in broad daylight, and she died from injuries she sustained in the 10:41 a.m. mishap. Fletcher would have had to stop at a stop sign, at the three-way intersection across from the Waldorf School, before proceeding left across the intersection – and he would have had to yield to any vehicles at the intersection's other two stop signs. In addition, Oregon law also states that he should have yielded to any pedestrians in the two crosswalks he was attempting to cross over.

Mercedes Sprinter vans have large windows and short hoods, and many people familiar with the case have trouble believing that anyone would have been unable to see Gabriel while using such a vehicle to make a left-hand turn across a lane of traffic. However, police did not find any evidence that Fletcher was driving while using a cell phone, nor did Fletcher appear to be driving under the influence of intoxicants. According to a copy of the police report originally obtained by Tomei, officers decided to cite Fletcher for failure to yield, and police declined to take further action.

Josh Lamborn, a former Multnomah County Deputy District Attorney who currently runs an injury law firm in Portland, said that it was "pretty typical" of law enforcement to issue a citation for failing to yield in a case like this. "This isn't a high-speed area; it's a place where you'd expect to find pedestrians," Lamborn said. "But it would be very hard to prove beyond a reasonable doubt, here, a criminal act."

It would be a waste of taxpayer money to try to prosecute Fletcher for a criminally negligent homicide, Lamborn said. Milwaukie Police Chief Steve Bartol told Gamba that Fletcher apologized for killing Gabriel and was sorry about what he had done.

"Juries understand that people make mistakes, and they can all think about times when they have been driving and have not seen someone in a crosswalk, but luckily didn't hit anyone," Lamborn said. "So they tend to relate to the driver absent some other egregious factor."

While he won't face any additional criminal charges now that he's paid the $260 fine for failing to yield, Fletcher and FedEx can still be sued for the pain and suffering that Gabriel experienced during two weeks in the hospital until she died from the injuries she suffered during the crash. If she had just been hurt, she could have brought a lawsuit on her own behalf – but the person who would now be able to sue would be the personal representative of her will, or her next of kin. Her son, Michael Gabriel, who lived with her, also could sue Fletcher and FedEx's insurance company, Protective Insurance, for the loss of companionship that he is now experiencing with his mother's death.

Criminal cases have to be proven "beyond a reasonable doubt," but the standard for proof would be lower in a civil lawsuit.

"In a civil case, they'd just have to prove that he didn't use the reasonable care he was supposed to use in driving the FexEx van," Lamborn explained.

"A family who loses someone like this needs an attorney on a wrongful-death case," Lamborn added. "Wrongful-death cases are complicated, insurance companies can manipulate laypeople (because of the average citizen's lack of experience with the process and the legal system) and wrongful-death cases cannot be settled without court approval.

"In a case like this, which is pretty clear that the driver was negligent, I tend to put all my cards on the table to show them they are in trouble and encourage them to make a decent offer," Lamborn observed. "It is only after I negotiate the case to the point that the adjuster says there is no more money, does my client have a real decision to make: File the lawsuit or take the offer. I almost always encourage them to file the lawsuit. I have never seen the offer go down after filing, only up. With few exceptions, the only way you get the full value of the case is to take it to trial. Unfortunately most clients do not want to risk or endure a trial."

In wrongful death cases in Oregon, there's a cap on noneconomic damages, so $500,000 is probably the most that the Gabriel family could hope to obtain from FedEx. If Gabriel had been killed when she was 50 years younger and while still raising her children, her family would be eligible for economic damages, in addition to up to $500,000 in noneconomic damages.

"Someone who is 83 years old wouldn't probably have any economic damages," Lamborn said. "The biggest measure for economic damages is what you would have made during the rest your lifetime, minus what you consume. You can attach a value to doing the dishes, taking care of the children and the home."

With the support of victim advocates such as Tomei, Oregon Trial Lawyers Association is lobbying to increase the cap on noneconomic damages so that killing people who are old and/or disabled is considered to be just as potentially financially damaging as killing someone who is young and healthy.

"That's pretty shocking, and the current law is very, very cold-hearted," Tomei said.

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