By Aimee Green, The Oregonian/OregonLive
A Portland jury awarded nearly $1.6 million to a man who was riding his electric bicycle when he was run over by a TriMet SUV, after the cyclist suffered deep gouges to his leg that worsened as flesh-eating bacteria set in.
But due to Oregon tort claim limits capping the amount that public bodies can pay out, TriMet is on the hook for about half — or $782,600. TriMet officials declined to comment and did not say whether the agency would appeal.
During the five-day trial last week in Multnomah County Circuit Court, Kenneth Flippen and his attorneys, Greg Kafoury and Jason Kafoury, contended a cover-up by TriMet, with the agency forced to change its story only after video evidence showed what it’d previously said was false. TriMet, however, argued Flippen was a careless rider who was responsible for the crash.
The case highlighted the complex, evolving and often misunderstood laws surrounding e-bikes and cars in Oregon, including rules that forbid e-cyclists from riding on sidewalks but give them the same rights as pedestrians when crossing intersections. The Oregon Department of Transportation outlines many of those rules in a pocket guide.
The trial also showcased the devastating effects of flesh-eating bacteria, which ravaged Flippen’s leg and forced doctors to carve away significant portions of discolored and decaying tissue and later graft skin from other parts of his body to patch his wounds. At one point, doctors estimated he faced a 20% chance of dying, said Flippen’s attorneys, who also showed jurors the graphic photos.
“I still have constant pain,” Flippen told The Oregonian/OregonLive this week, three years after the crash. “This is the way it’s going to be.”
Central to the case was video recorded by a GoPro camera that Flippen had mounted to the front of his e-bike.
Flippen, who was 58 at the time, was on a leisure ride under a blue sky along the Portland waterfront and was returning home at the time of the collision on Sept. 16, 2021. He’d been riding the wrong way in a bicycle lane along one-way Southeast 17th Avenue, then moved onto the sidewalk a block before he approached its intersection with Southeast Lafayette Street.
That’s when he saw a TriMet SUV driven by an employee pull up to a stop sign. Video shows the driver at a standstill for about three seconds and Flippen proceeding into the intersection, which Oregon law defines as an unmarked crosswalk. The law requires drivers to yield to walkers, runners and cyclists, including those on e-bikes, who are in crosswalks, whether they are marked or unmarked.
The video, however, shows the TriMet driver suddenly pulling forward and knocking over Flippen. Flippens attorneys said Flippen was initially run over once when the driver struck him, then a second time when the driver backed up over his leg.
Twists and turns emerged in the case, which first went to trial last March, but was declared a mistrial after two days when Flippen realized his GoPro camera had recorded the collision. The case went to trial for a second time last week.
Before TriMet saw the video, TriMet contended that Flippen was the one who rode into the side of the SUV and that he had been riding the wrong way in the bike lane in the instant before impact. But after seeing the video, TriMet argued only that its driver dutifully had looked to the left and the right before proceeding to turn right onto 17th Avenue, as documented in its crash investigator’s report.
Flippen’s attorneys, however, contended that the driver’s — and TriMet’s — story changed as part of a cover-up. They pointed to a police report stating TriMet’s driver said he only looked left before starting his turn.
One of Flippen’s attorneys, Greg Kafoury, said when he asked for the investigator’s notes, TriMet said they’d been thrown away.
“That’s an invitation to corruption,” Kafoury said.
Judge Eric Dahlin instructed jurors on Oregon’s vehicular and pedestrian laws. That included rules that say although drivers are required to yield to all cyclists in intersections known as unmarked crosswalks, bicycles and e-bicycles must proceed across them at walking speeds. Flippen was traveling about 6 mph, slightly faster than walking speeds of 3 or 4 mph, his attorneys said.
Dahlin also instructed the jury that even if Flippen previously had been illegally riding in the bike lane and then illegally rode on the sidewalk in the block before the crash, the issue at hand was what happened in the unmarked crosswalk, where Flippen was struck. (With the exception of its downtown core, Portland allows purely human-powered bicycles to ride on sidewalks. Electric bicycles are allowed only on the road, bike lanes and in unmarked or marked crosswalks).
The jury found Flippen was 10% at fault and TriMet 90%. Jurors awarded him $1.73 million for his medical costs and suffering, which translates to nearly $1.6 million after the 10% reduction.
Oregon’s tort claim caps further reduce the award to $782,600.
TriMet spokesperson, Roberta Altstadt, declined to answer specific questions.
“As further steps remain, TriMet is withholding statement at this time, as we continue to evaluate the case and our future actions,” she said.
In the aftermath, Flippen said he’s battling post traumatic stress disorder. Psychologically, he’s afraid to ride a bicycle on the streets again. Instead, he said, he walks his dog to get exercise. But even then, he stops to rest every couple of blocks.
“If anything looks like it’s approaching me, I get excited,” he said. “It’s better for me to walk, just walk.”
Aimee Green covers breaking news and the justice system. Reach her at 503-294-5119 or agreen@oregonian.com.