Crosswalk crash deja vu in Milwaukie
This online story has been updated from its original version.
Readers of this newspaper hoped that they were learning about an isolated incident: An elderly woman gets hit in a Milwaukie crosswalk in broad daylight and suffers major injuries, while the driver who hit her faces no criminal charges, and the police don't test his blood for alcohol or drugs in his system.
Gillian Hibbs read about this happening to 83-year-old Norma Gabriel on April 26 with a sickening sense of déjà vu. At 3:40 p.m. Oct. 16, 2013, Hibbs (then 70 years old) was biking west along the Springwater Corridor and had just crossed the Johnson Creek pedestrian bridge when a Milwaukie police officer driving an SUV police-patrol vehicle hit her in the marked crosswalk of Johnson Creek Boulevard, near Southeast 45th Avenue.
Hibbs' left leg was shattered by the incident. After years of physical therapy and after metal plates were inserted into her leg to help her heal, Hibbs has not regained her mobility. She can no longer cross-country ski; she can no longer squat down while gardening; she can no longer take the long bike rides that she used to love, from Milwaukie along the Springwater Corridor to Gresham.
Eventually, after nearly going to court over a threatened lawsuit, the city of Milwaukie paid Hibbs' attorney a $400,000 settlement in March 2016, but Hibbs said she only got $236,000 after paying off her medical and attorney bills.
Hibbs, who moved to Oregon City last year, said that her similar incident shows that officers in Milwaukie consider a woman getting badly injured in a crosswalk is not a big deal, since it's just one of the many bad things that police see on a regular basis. In neither the Gabriel nor the Hibbs case did the Milwaukie Police Department issue a news release.
In a written statement to this newspaper, Police Chief Steve Bartol said that losing members of the Milwaukie community is difficult for him and for his officers.
"As we know, Ms. Gabriel was an important, kind and giving member of our Milwaukie family, and we all feel her loss," Bartol wrote. "These are the painful moments of our jobs. Please know, when it occurred, the Police Department believed she would recover from her injuries. It was not our intent to hide the accident. At the time, we simply believed that this did not rise to such attention. Standing where we are today, we see the value of the press release and will be sending press releases in the future if it involves an auto/pedestrian accident."
Protocols in question
Hibbs said she appreciates that the city is pledging to bring more attention to cases involving pedestrians hit by motor vehicles. She thinks that Milwaukie should go a step further, however, and fully investigate and prosecute cases when the driver is at fault. Milwaukie Mayor Mark Gamba has said he's scheduling a meeting with the Clackamas County district attorney to achieve this more aggressive stance from prosecutors toward drivers when they injure pedestrians.
"We need a change of attitude," Hibbs said. "They showed absolutely no shame in the fact that they don't test officers for drugs or alcohol when they're at fault, or that they don't give out citations or reprimands when they're involved in crashes."
Carolyn Tomei, a former Milwaukie state representative who has received apologies over the city's handling of the Gabriel case, was concerned to see a pattern of cases in which pedestrians were hit in the city's crosswalks. Merely by observing the perpetrator's "odor, speech, etc.," police determined that Milwaukie Sgt. Scott Guy was sober when he hit Hibbs, just as the Milwaukie police did when FedEx driver Jason Fletcher ran into Gabriel in a crosswalk.
In neither case did officers ask the perpetrator to submit to a drug-and-alcohol test. Fletcher paid a $260 fine for failing to yield to Gabriel in the crosswalk, but Guy was not given a citation after hitting Hibbs.
"I'm wondering why the protocol was different if the Hispanic man who hit a woman on 99E was taken in for questioning and a drug test in 2014, when the same thing did not occur for the FedEx driver who hit Norma Gabriel in April, or for the Milwaukie police officer who hit Gill Hibbs in 2013," Tomei said.
A spokesman for the Milwaukie Police Department explained that the perpetrator in the 2014 case was asked to submit to testing because Clackamas County's interagency Criminal Reconstruction and Forensic Team (CRAFT) has a different protocol than MPD.
Officers (along with members of the general public) aren't generally asked to submit to a drug test if they are at fault in a crash, said MPD spokesman Greg Elkins. Milwaukie officers can develop probable cause to ask for a drug test in a crash that doesn't cause serious injuries based on "the totality of all evidence that is collected up to that time," Elkins said, including the odor of alcohol and/or marijuana, slurred speech or incriminating statements like about earlier drinking and/or drug use.
If CRAFT had been called in due to Gabriel's or Hibbs' injuries being identified on scene as "serious," officers would have asked Guy or Fletcher to take a drug test, Elkins said. If the injuries suffered by Hibbs had been worse, Elkins added, Guy would have been placed on administrative leave during CRAFT's investigation, just as officers receive paid leave while an officer-involved shooting is being investigated.
CRAFT has 18 on-call crash reconstructionists from eight police agencies (including Milwaukie, plus representatives from the DA's office) who are trained in collision analysis, speed analysis, vehicle dynamics, occupant kinematics, scene photography, surveying equipment, crash-scene mapping and computer-aided drawing programs.
The U.S. Department of Transportation defines a suspected serious injury as any injury other than fatal that results in one or more of the following: severe laceration resulting in exposure of underlying tissues/muscle/organs or resulting in significant loss of blood; broken or distorted extremity (arm or leg); crush injuries; suspected skull, chest or abdominal injury other than bruises or minor lacerations; significant burns (second- and third-degree burns over 10 percent or more of the body); unconsciousness when taken from the crash scene; or paralysis. States are required to comply with the new definition by April 15, 2019.
On that fateful day in 2013, Guy had stopped the Milwaukie police SUV that he was driving to let a man jog across the Springwater Corridor's crossing of Johnson Creek Boulevard. Hibbs thought she was safe to bike across while Guy was stopped for a pedestrian, so she proceeded into the intersection. Guy then stepped on the gas of the SUV. Its front bumper slammed Hibbs off her bike and onto the ground.
Hibbs was hit in a location about 20 feet north of Clackamas County, in Portland, but the case was investigated by the Clackamas County Sheriff's Office as an area described in the police report as "near Milwaukie."
"Sgt. Guy stated he watched the jogger going to his right, but did not look back to the left to see if the roadway was clear before proceeding," CCSO Deputy Bryan Morris wrote in the official police report. "Sgt. Guy failed to yield to a bicyclist in the bicycle lane, resulting in a collision from which Ms. Hibbs sustained physical injury. All of the evidence and statements collected indicate there was no intent to cause injury or reckless behavior contributing to the crash, as Sgt. Guy had been appropriately stopped just prior to the collision."
Hibbs said that she could see Guy calling dispatch from his vehicle to report the crash. Hibbs said she writhed on the ground in pain for minutes before Guy approached her with an apology.
"He said, 'Sorry, I was watching the guy ahead of you,'" Hibbs said Guy told her in deposition for the impending civil case in Multnomah County Court. "'Looks like it's dislocated,' referring to my leg. And I said, 'It's broken.' And he walked away."
Paralegal: Where did he go when he walked away?
Hibbs: To greet eight or 10 police he had called who were all showing up, and they were all laughing and talking and having a reunion.
Paralegal: OK. So there were eight or 10 police officers there all laughing and talking while you're laying there on the ground, and this is before ambulance or fire department arrived?
Paralegal: So you are sitting there alone; is that correct?
Paralegal: And there's eight or 10 police officers standing around talking with each other and laughing. Correct?
Paralegal: And your understanding was that they were what, laughing about your injury?
Paralegal: OK. What did you believe they were laughing about?
Hibbs: I did not know.
Paralegal: Your estimate as to how long it took before the fire department arrived?
Hibbs: Twenty minutes.
For this newspaper article, Hibbs clarified that police vehicles blocking Johnson Creek Boulevard were part of the reason it took so long for paramedics to arrive. She heard parts of what the officers said to one another, and they often approached Guy "to reassure him that everything would be OK."
"Not that he was acting terribly concerned, but I think he was — for himself, not for me," Hibbs said.
Guy is still a sergeant working for the Milwaukie Police Department.
Gabriel's case is drawing comparisons to a case on Aug. 5, 2014, when 25-year-old Kelsey Alexis Zionskowski of Milwaukie was struck by a vehicle as she waited to cross McLoughlin near River Road. Unlike with the Gabriel or Hibbs cases, when Zionskowski suffered massive trauma to both legs, police immediately issued a news release and conducted toxicology tests on the driver, 45-year-old Ramon Avila-Perez.
Witnesses said Avila-Perez had been driving about 32 mph south on McLoughlin when he failed to make the slight left turn that McLoughlin makes near the turnoff to River Road. His 1996 Honda Accord continued straight into the pedestrian island where Zionskowski was waiting to cross after having gotten off the bus.
It was immediately apparent to officers the seriousness of Zionskowski's injuries. She was transported in critical condition to Oregon Health & Science University, where her right leg was reattached, and she eventually got a prosthetic for her left leg.
Meanwhile, CRAFT officers were called in to interview Avila-Perez with the aid of Spanish-speaking officers. He agreed to be interviewed at the Milwaukie Public Safety Building, although he was never arrested. He submitted to CRAFT's request for a breathalyzer, blood and urine tests, which all turned out to be negative for drugs and alcohol.
Avila-Perez told officers that nothing distracted him and there had been nothing in the roadway that caused him to veer off the road. He said that the heat of the sun at 3:15 p.m. might have caused him to relax too much in his car that lacked air conditioning. The Oak Grove resident told officers that he had gone to work at a metal-fabrication shop in Vancouver, Washington, at 4 a.m. that day, and that the heat might have caused him to drift off to sleep for a moment.
"Based on all the information acquired in this investigation, Sgt. Bloomfeld and I, along with the district attorney, came to the conclusion that there was no negligent or reckless behavior on Mr. Avila-Perez's part," wrote Milwaukie Officer Les Hall in the police report.
Avila-Perez was given a citation for careless driving in a construction zone, causing injuries. He paid a total of $460 on June 26, 2015, to the Milwaukie Municipal Court.
An update to this online story corrects the type of citation given to Ramon Avila-Perez, and adds the date and payment amount he made for hitting Kelsey Alexis Zionskowski.