Using the Right Rulebook

Plaintiff Attorney: Steven Hutchinson, Julie Upton

City, Co., State: Florence, Lane, Oregon

Claims Alleged: Personal Injury

Injuries Alleged: Left Shoulder

Admitted Liability: No

Amount Claimed: $650,000+

The Overview

Smith Freed Eberhard recently achieved an impressive dismissal of a personal injury claim by utilizing an extensive knowledge of tribal court rules and ordinances to invoke its clients’ right to sovereign immunity and achieve a positive result in an efficient and cost effective manner.

The Background

IIn this case, Smith Freed Eberhard’s client was the confederated tribes of Coos, Lower Umpqua, and Siuslaw Indians (“the tribes”).  The tribes own the Three Rivers Casino in Florence, Oregon.  On the night in question, plaintiff tripped over a parking block in the casino’s outdoor parking lot.  The parking block was situated in the walking area between two stalls with parked vehicles, rather than directly in front of a stall.  In addition, a lack of lighting may have contributed to her failure to notice the parking block.  As a result of the trip and fall, plaintiff suffered a full comminuted fracture of the proximal humerus of her left shoulder causing permanent injury, sprain/strain injuries to various parts of her body, an impact trauma to her nose, and mental pain and suffering.  Plaintiff sought over $650,000 in damages.  

Plaintiffs Theme

Plaintiff originally filed suit in tribal court.  After plaintiff recognized the possible issues with timeliness and lack of subject matter jurisdiction, plaintiff opted to refile in Oregon state court. Plaintiff’s counsel, in an attempt to save her claims, then filed a cross-motion to dismiss the tribes’ affirmative defenses of lack of jurisdiction and statute of limitations relying upon the compact between the state of Oregon and the confederated tribes, arguing sovereign immunity is waived up to the limits of the tribes’ liability insurance policy in state court.

Our Strategy

Based on our review of the file material and understanding of this tribal court’s rules and ordinances, we recognized that plaintiff did not commence her lawsuit in a timely manner within the applicable statute of limitations, nor did she file a tort claim notice providing the tribal court with subject matter jurisdiction.  At the initial mandatory court conference, the defense informed the tribal judge of its intent to dismiss the case on these grounds.  Counsel for plaintiff surreptitiously offered to dismiss the case and enter a judgment of dismissal if the tribes agreed not to seek costs, to which our client agreed.  Upon plaintiff’s filing of a new action in Oregon state court, the defense responded by filing a motion to dismiss, invoking the tribes’ right to sovereign immunity and the Oregon state court’s lack of jurisdiction.  The parties held oral arguments and the presiding judge granted the defense’s motion and denied plaintiff’s motion.

The Outcome

Because of an excellent understanding of the tribes’ sovereign immunity rights and a thorough analyses and careful study of this tribes’ relevant law, Smith Freed Eberhard initially was able to remove the case from tribal court, then successfully defeat plaintiff’s aggressive efforts to revive the claims.  This appeared to be a case of at least shared liability by the tribes as the parking block was not properly situated.  Had things progressed, the defense would have had to hire a lighting expert and human factors expert to prove plaintiff’s negligence, and possibly a building code expert.  As such, Smith Freed Eberhard not only protected its client from liability but also from the fees and costs associated with discovery and depositions.  In so doing, we won on the law alone, achieving a quick and economic dismissal for our extremely appreciative clients.  

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