On February 5, 2014, after three weeks of trial, Kafoury & McDougal settled the case of Cayla Wilson v. Clackamas County and the City of Portland for $9.3 million. It was the largest injury settlement ever against any governmental entity in the State of Oregon. The settlement funds will be put into trust, and administered by a court-appointed conservator.
Cayla Wilson, 19, suffered severe brain damage when a Jeep driven by Jack Dean Whiteaker crossed into her lane. Cayla was pregnant, and a month later her child was delivered by C-section at 26 weeks. Cayla was hospitalized for six months, spent 18 months in rehabilitation, and is now under the 24-hour care of her parents. She has only a minimal state of consciousness. Her child, JaiKyla, suffered brain trauma from the impact, and has cerebral palsy.
Blood tests showed Jack Dean Whiteaker had a near-lethal amount of methamphetamine in his system. Whiteaker was on probation for a felony drug conviction, and was driving while suspended and without insurance.
Kafoury & McDougal filed suit against Whiteaker’s probation officer, Dawn Penberthy, and her employer, Clackamas County.
Whiteaker had been on probation for nine months, with the major conditions that he be evaluated and treated for drugs, that he be employed, and that he maintain a steady residence. Whiteaker gave Penberthy a home address which turned out to be a store, he never provided any evidence of employment, and he never attended a drug evaluation. He had had five drug evaluation appointments scheduled, and blew off each of them. Only in the eighth month, after Multnomah County notified Penberthy that Whiteaker had provided her a false address, did Penberthy ask the Court for an arrest warrant.
The City of Portland and police officer Devonna Dick were later added as defendants when it was discovered that Officer Dick had responded to two 911 calls concerning Whiteaker on the day of the accident, and had interacted with Whiteaker twice within two hours. Officer Dick did nothing to keep Whiteaker from driving, even though she knew that he was on probation and suspended, even though she observed that he was “either manic or high.” The officer made no attempt to contact witnesses at the time of either of her encounters with Whiteaker, and, after the second encounter, she simply left him hiding in some bushes in a residential area, despite the fact that he had been looking into windows, running through backyards, had refused the officer’s order to step out of the bushes, and was essentially incoherent.
The warrant from Clackamas County arrived in the police computer system 12 minutes after Officer Dick left Whiteaker in the bushes.
Portland Police Chief Michael Reese testified that Devonna Dick had neither probable cause to arrest Whiteaker, nor adequate reason to take him in on a civil hold for incapacitation. During cross examination, he was repeatedly confronted with the legal standards for probable cause and civil custody, and he responded by saying that police “policies” forbid the officer from taking action. When it was pointed out that the written policies allowed such action, he repeatedly claimed that certain “unwritten policies” provided more restrictions on the officer than were found in the police manual.
A key part of the defense was the claim that Officer Dick could not have towed Whiteaker’s car for DWS because she had not seen him driving. Her testimony in this regard was contradicted by the initial 911 caller, Dennis Hanna, manager of the Blockbuster store, who testified he called 911 because Whiteaker was engaged in weird and menacing behavior, and intimidating customers outside of his store. Hanna testified that Officer Dick pulled into the Blockbuster lot just as Whiteaker was driving away, that she directed him to pull his car over and park, and that after Whiteaker did so, she parked her police car behind him so as to block him in.
After Officer Dick left Whiteaker after their second encounter, she sent a text to dispatch saying, “Probably get more calls on him today.”