This is the official press release relating to the Owen v. State tree fall claim.
September 5, 2014
**PRESS RELEASE **
Re: Estate of Tim Owen, Estate of Cheryl Owen, Jessica Owen, Jaime Mayer,
Steven Mayer, Jeremy Owen v. State of Washington…
Steven Mayer, Tim Owen, Jaime Mayer, Jeremy Owen, Jessica Owen, Cheryl Owen
The family members who survived the December 21, 2012 tree fall incident on U.S. 2 have settled their claims against the State of Washington for $10 Million.
In the days leading up to the tragedy, a combination of unusual weather events led to a highly dangerous situation in Chelan County. Soil was soft from earlier warmer and wetter weather. This increased the tendency for trees to lean. Heavy snowfall occurred, along with freezing temperatures and light winds. Trees were covered with especially high snow loads.
As a result, in the days before this tragedy, hundreds of trees were breaking and falling. Just three days earlier, on December 18, Chelan County had issued a Declaration of Emergency. The county was taking extraordinary measures to ensure public safety. Local drivers were asked to restrict travel. Even utility workers were restricted from restoring power due to the danger of falling trees. The State DOT did not echo any of these warnings to the general public. The Owen family was travelling from Bothell to Leavenworth. The only warning sign issued to the travelling public on U.S. 2 was “traction tires advised.”
Trees had been falling across U.S. 2 in the vicinity of where the Owen vehicle would be hit. Less than 12 hours before the fatal strike, another large tree fell near the same location. At around 1:30 p.m. the Owen family was almost at milepost 79, when a leaning, snow- and ice-laden 125-foot-tall grand fir tree, snapped and fell upon them.
Tim and Cheryl Owen were killed instantly. Jessie Owen, Jaime Mayer and Steven Mayer were seated in the middle and severely crushed. Jeremy Owen was in the rear. When Jeremy regained consciousness, his first thought was that everyone else had perished.
Later in the day, after the terrible scene was cleared and despite the danger, the State re-opened U.S. 2. That evening and the next day the trees continued to fall. A WSP officer twice requested that DOT close the roads. Each time they said no. Another tree fell within the same milepost as the Owen incident. This time, the tree struck a vehicle carrying four people including one who was pregnant. Only after this second major injury event, did the DOT close U.S. 2.
The State is generally not responsible for healthy trees falling and injuring innocent passersby. In this case, based upon casual inspection the tree did not appear to be rotten. It also was located outside of the required clear zone on the side of the roadway. However, the family claimed that the State should be responsible when it knows of extremely dangerous conditions that prevent its roadways from being reasonably safe for ordinary travel. In those situations, it has a duty to close its roads. This has been done regularly by the State in situations of avalanche or wild fire danger.
The State recognized that in this case, it could be found to have failed its duty to protect motorists by not closing a dangerous roadway. Though it maintained that other forces caused the incident, the State requested that the Owen family hold off on filing a lawsuit. The State instead requested that the parties participate in non-adversarial mediation.
The family was still reeling from the deaths of Tim and Cheryl Owen in addition to surviving their own catastrophic injuries. Despite receiving the best medical care possible, Jessie, Jaime and Steven have been left with major lifelong physical disabilities.
Past medical bills were in the several millions of dollars. Future medical and care expenses were projected to be even greater.
Preparation for the mediation took an entire year. Teresa Wakeen, a professional mediator, was selected to conduct the proceeding. Each side developed and explained their theory of the case. From a legal standpoint, there were no other cases where a governmental entity had been found liable for failing to close a road. The family pursued this case to make a point: it was not okay for WSDOT to leave the state highway open when Chelan County was closing its local roads because of the same dangers. The family wanted to ensure this would not happen again.
Ultimately, during the mediation, the State accepted that it was at risk to be found partially responsible for the incident. The family agreed to compromise their claims and accepted the State’s offer of $10 Million. The settlement money will be used to pay for past medical expenses and provide for the future needs of the survivors.
The family has issued this joint statement:
“From the moment the tree struck our car to this very day, we have been surrounded by friends, relatives, and even strangers who have done their best to help us. We can’t thank all of you enough.
The State acted humanely and compassionately towards us during the entire year we worked on the mediation. There were no accusations. There was no fighting. We were treated with dignity and respect, even though at times we agreed to disagree.
We hope that by financially acknowledging our loss, that the State will be more proactive in protecting the travelling public from known dangers. Temporarily closing a roadway may be an inconvenience. But a short delay is a small price to pay for the life of a loved one.”
The State’s team included executives from WSP, WSDOT and risk management. The team of Assistant Attorney Generals was led in the mediation process by AAG Gary Andrews. The family was represented by Karen Koehler of Stritmatter Kessler Whelan. Also assisting from the firm, were attorneys Ray Kahler, Dan Laurence, Paul Stritmatter and Garth Jones.
Information provided by:
Graphic by Duane Hoffman of Hoffman Design
Walk up to door one. Open and walk through. Door two. Push button. It clicks. Enter. Write name and time on log at front desk. Write name on tag and stick on shirt. Cindy arrives and says hello. Follow her down the linoleum covered hall. Past the man in a wheelchair. An open door reveals a woman in bed watching tv. A hunched over man looks at me from another open door. His leg is bandaged. Walk towards the eating area where several others are congregated. Mostly in wheelchairs. Chatting. Average age probably middle 70s. Or older.
Reach Marissa’s room. She is in a wheelchair. A plastic toy drum on her lap. Eyes closed. Sleeping. Next to her is Brianna, her sister. When I first met Marissa she was 20 and Brianna was in the 4th grade. Brianna is going to be a high school junior in the fall. Cindy sits on the bed.
Marissa had just graduated from high school when she was struck head on by a teenager who crossed the center line. Marissa’s car was pulverized. And so was she. The other teenager exited her vehicle unscathed. We sued the car manufacturer and the negligent driver. Years ago.
Marissa sleeps. Cindy, Brianna and I talk.
Me: Has the other driver ever visited.
Me: Have her parents.
Me: A phone call.
Me: A card.
Me: It is not for me to forgive. Marissa is not my daughter. And I believe in forgiveness. But I do not understand how you can forgive someone who changed your daughter’s life and that of your entire family – who has never even said they are sorry.
Them: We thought that they would. We were waiting for it to happen and wondering if it would make us feel differently. We believed it would. But they never did. And we have given up thinking that they ever will. And we try not to think of it.
Me: I mean, maybe the insurance company or their lawyer told them not to say sorry because that would mean they were at fault. Maybe I could understand that. But this case has been over for how long now.
Them: It happened eight years ago and ended six years ago.
Me: Yeah. No excuse.
Them: Can’t believe eight years have gone by.
Me: It’s not just that Marissa will have to live in a nursing home for the rest of her life. It affected your entire family. Brianna spent so much of her childhood in this nursing home. You still come here every day. You have spent hours, days, weeks, months, years here. And they have never said they are sorry. It just makes me mad.
Them: We see them sometimes out in the community and they never acknowledge us.
Me: It was not intentional. She was a young, inexperienced and bad driver. That did not make her a bad person. But if my child had wrecked a family, I would feel morally obligated to reach out to them – to let them know that I cared and was so sorry.
Them. Us too.
Me: I mean, send a card. Do something. Do anything. Be a decent human being.
Cindy gently shakes Marissa. She opens her eyes. Gets cleaned up. We caravan down the linoleum halls. Past another locked door with a buzzer. Out to an empty courtyard. In the beautiful spring weather. Under a tree with a red robin’s nest. Listening to the chirping. Waving away the occasional bee. As Marissa bangs on her drum.
Photo: Marissa, Brianna and Cindy.
Press conferences before a case ends is one thing. Attorneys have to carefully monitor what can be said or not due to legal ethics rules.
But after a case is over, attorneys need to step to the side and put the clients front and center. It is their case. They are the people whose lives have been impacted. It is their moment.
Cleaning my office, I found this CD. It says: Kime Press Conference 8.15.02. Clips from this interview were played on various television channels around the state. They ranged from one to maybe three minutes in length. This home video is cool because it shows the whole thing before it was edited down.
We’ll never learn exactly what went through the commercial truck driver’s mind. He wanted to take a left turn. He was supposed to yield to oncoming traffic. But he didn’t.
The front of Lynn’s car crushed inwards, breaking her bones and trapping her inside. It took 45 minutes for the fire department to finally extract her. We shared her memories with the jury:
“Suddenly I was conscious that my right leg/ankle were being crushed by the dashboard. I saw my hand going one direction, my forearm going the other, and a large bone ready to break through the skin. Realizing I needed to be my own splint until the medics arrived, I held my right arm with my left hand as best as I could. Then the pain started. I screamed over and over ‘Help me, help me. I’m hurt, I’m in pain’.”
Ten years have now passed. Nine days in the hospital. Years of painful, determined rehabilitation.
Before the wreck, Lynn was the most physically fit person I’ve ever known. She had been a volunteer firefighter, competitive body builder, avid out doors enthusiast, and earned a living as a certified personal trainer.
Lynn’s life profoundly changed. Her biggest challenge is something so many of us take for granted: walking. But she has never given up her vision of helping others achieve fitness. And she is still one of the most amazingly fit people I’ve ever known.
Lynn’s company is Balanced Bodyworks. She is a CHEK Holistic Lifestyle Coach, ISSA Certified Fitness Trainer and Yoga Teacher.
Lynn, you are a hero.
Photo: The Fire Dept. breaking Lynn out of her vehicle.