Tag Archives: personal injury

Kristin Olson and Scott Brooksby recognized in The Best Lawyers in America©

Scott Brooksby is recognized in Best Lawyers in America for his commercial litigation and product liability litigation defense practices.

Kristin Olson is recognized in Best Lawyers in America for her commercial litigation practice.

Best Lawyers® compiles its lists of outstanding attorneys by conducting peer-review surveys in which thousands of leading lawyers confidentially evaluate their professional peers. The current edition of The Best Lawyers in America© 2023 is based on more than 5.5 million detailed evaluations of lawyers by other lawyers.

Best Lawyers is the oldest and most respected peer-review publication company in the legal profession.

Recognition by Best Lawyers is widely regarded by both clients and legal professionals as a significant honor, conferred on a lawyer by their peers. For more than four decades, Best Lawyers has earned the respect of the profession, the media and the public as the most reliable, unbiased source of legal referrals anywhere.

The Best Lawyers in America© lists of outstanding lawyers are compiled by conducting exhaustive peer review surveys in which tens of thousands of leading lawyers confidentially evaluate their professional peers. If the votes for a lawyer are positive enough for recognition by Best Lawyers, that lawyer must maintain those votes in subsequent polls to remain in each edition. Lawyers are not permitted to pay any fee to participate in or be recognized by Best Lawyers.

Olson Brooksby selected as a Tier 1 “Best Law Firm” for Commercial Litigation in the Portland Metropolitan Area by US News

US News designates Olson Brooksby as a Tier 1 Commercial Litigation firm in the Portland Metropolitan Area.

Firms that are included in the 2023 “Best Law Firms” list are recognized for professional excellence with consistently impressive ratings from clients and peers.  Receiving a tier designation reflects the high level of respect a firm has earned among other leading lawyers and clients in the same communities and the same practice areas for their abilities, their professionalism and their integrity.

The first tier in each metropolitan area includes those firms that score within a certain percentage of the highest-scoring firms based on client surveys and peer review.

The Impact of Covid-19 on Aviation: The Economic, Social, Operational, and Litigation Fallout.

Scott Brooksby, the firm’s aviation litigation chair, travels the country giving speeches about the impact of Covid-19 on the airline industry.

Scott has produced a paper for those interested in information about the way Covid-19 has impacted aviation, including the economic, structural, social, and litigation impact of Covid-19 on the aviation industry.

You can download that paper here:

Scott Brooksby moderates American Bar Association panel on the impact of Covid on litigation at the National Institute on Aviation Litigation

On June 9, 2022, Scott Brooksby served as the moderator for a distinguished panel of diverse aviation professionals who discussed the impact of Covid-19 on aviation, and the economic, social, operational, and litigation fallout.   The 90 minute panel-discussion that Scott moderated was a segment of the American Bar Association International Aviation Litigation Institute held in Chicago.  Scott was also the lead author of the supporting paper for the panel.

Key issues discussed are aircrew and passenger class actions against airlines; impact of aircraft manufacturing; airport operations; numerous complex insurance issues; and providing aviation sector clients with Covid-19-related legal advice to challenge the changing local, state, national and international regulations.

kristin olson and scott brooksby recognized in The Best Lawyers in America© for 2022

Olson Brooksby PC is pleased to announce that Kristin Olson and Scott Brooksby have once again been selected by their peers for inclusion in The Best Lawyers in America (2022).

Best Lawyers compiles its lists by conducting peer–review surveys to determine the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical region and legal practice area. 

Recognition by Best Lawyers is based entirely on peer review. Their methodology is designed to capture, as accurately as possible, the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area.

After receiving more than 10,000,000 peer evaluations, Best Lawyers honored approximately 5% of practicing lawyers in the United States, exemplifying the work of the most elite and top-rated lawyers in the country.

Kristin Olson is listed in the practice areas of Commercial Litigation and Litigation-Insurance.

Scott Brooksby is listed in the practice areas of Commercial Litigation and Product Liability Litigation – Defendants

Kristin Olson wins motion to compel documents in a sexual assault case

While representing a victim who was sexually assaulted during a massage at ClubSport Oregon, Kristin Olson won a motion to obtain documentation concerning the Oregon Board of Massage Therapists’ investigation into the assault on her client.  During the discovery phase of the lawsuit, Kristin requested the documents, but the defendant massage therapist refused to produce them.  Kristin filed a motion to compel the documentation and won, and the Court ordered the defendant massage therapist to produce all of the documents.  Freifeld v. Leisure Sports, Inc., et al., Washington County Case No. 18CV12178 (November 9, 2018).

Kristin is an Oregon sexual abuse lawyer who represents sexual abuse and sexual assault survivors in civil lawsuits throughout the state of Oregon.

In a sexual assault case against ClubSport oregon and leisure sports, Kristin Olson wins a motion to preserve allegations in her lawsuit regarding a different, prior sexual assault victim at the same club

While representing a victim of sexual assault in a case against fitness facility ClubSport Oregon and its management company, Leisure Sports, Kristin Olson successfully defeated the defendants’ motion to strike allegations regarding a prior victim of sexual assault at the same ClubSport location.  In the lawsuit brought on behalf of her client, Kristin alleged that her client was the victim of sexual assault during a massage at ClubSport Oregon in Tigard.  The lawsuit also alleged that there was a prior sexual assault involving a different victim by a different massage therapist at the same ClubSport Oregon location.  Therefore, Kristin argued, ClubSport Oregon and Leisure Sports knew or should have known that a sexual assault during a massage at that club location was foreseeable and should have changed their protocol to protect future potential victims of sexual assault during a massage, such as Kristin’s client.  ClubSport and Leisure Sports moved to strike those allegations.  Kristin successfully defeated that motion, and the allegations regarding the prior sexual assault remained in the lawsuit.  Freifeld v. Leisure Sports, Inc., et al., Washington County Case No. 18CV12178 (September 10, 2018).

Kristin is an Oregon sexual abuse lawyer who represents sexual abuse and sexual assault survivors in civil lawsuits throughout the state of Oregon.

While representing a victim of sexual assault against fitness facility ClubSport Oregon, Kristin Olson successfully defeated a motion to strike allegations in the lawsuit regarding a prior victim at the same ClubSport location

Bird Strikes and Aviation: Facts and Fault

From Scott Brooksby’s article, “Bird Strikes and Aviation: Facts and Fault” published in the American Bar Association’s Mass Torts Practice Points on December 7, 2015:

Bird strikes are an increasing danger to commercial aviation and result in death and serious injury to passengers and crew, and soaring costs for aircraft damage.

According to Boeing, the first bird strike was recorded by the Wright Brothers in 1905. Now, aircraft-wildlife strikes are the second leading cause of aviation-related fatalities. Globally these strikes have killed over 400 people and destroyed more than 420 aircraft. In addition to birds, wildlife strikes have been reported involving horses, antelope, moose and many other mammals.

Potential Liability for Airport Operators
The USDA’s Airport Wildlife Hazards Program plays a leading role in the supervision and management of aircraft-wildlife strikes. The USDA notes that airport managers must exercise due diligence in managing wildlife hazards to avoid serious liability issues. The U.S. Code of Federal Regulations requires that Part 139-certificated airports experiencing hazardous wildlife conditions as defined in 14 C.F.R. section 139.337 to conduct formal wildlife hazard assessments. The certificated airports must develop wildlife hazard management plans as part of the certification standards. Airports are required to employ professional biologists trained in wildlife-hazard management. (14 C.F.R. § 139.337 and FAA Advisory Circular 150/5200-36). Failure to comply with the regulations can give rise to liability for airport operators.

Data Sampling
According to Boeing, the relevant wildlife-strike facts include:

1. More than 219 people have been killed as a result of bird strikes since 1988.

2. Between 1990 and 2009, bird and small and large mammal strikes have cost U.S. civil aviation $650 million per year.

3. The Air Force sustains about $333 million dollars in damage per year due to bird strikes.

4. About 5,000 bird strikes were reported by the Air Force in 2012.

5. About 9,000 bird and other wildlife strikes were reported for U.S civil aircraft in 2009.

6. The FAA has identified 482 species of birds involved in strikes from 1990-2012.

Factors Contributing to the Rise in Bird Strikes

1. The North American non-migratory Canada goose population increased from 1 million birds in 1990 to 4 million birds in 2009. Concentrations are particularly high at JFK airport and surrounding regions, with the ample grass and wetlands, but populations of various sizes are found near airports across the country.

2. A 12-pound Canada goose struck by an airplane moving at 150 miles per hour during takeoff generates the kinetic energy of a 1000 pound weight dropped from a height of ten feet.

3. Nesting populations of bald eagles increased from 400 pairs in 1970 to 13,000 pairs in 2010. Between 1990 and 2009, 125 bald eagle strikes were reported. The body mass of a bald eagle is 9.1 pounds for males and 11.8 pounds for females.

4. Finally, the population of European starlings is now the second most prevalent bird in America, numbering over 150 million. Often called “silver bullets,” they fly at high speed and have a body density that is 27 percent greater than gulls.

In January 2009, U.S. Airways Flight 1549 landed on the Hudson River after multiple Canada goose strikes in flight.  As a result, New York City Mayor Michael Bloombergdeclared war on geese. Suzanne Goldenberg, New York Declares War on Geese to Prevent Airport Bird Strikes, The Guardian (June 12, 2009). A mayoral steering committee gave the go-ahead to the USDA to cull geese in a 450-mile area encompassing JFK, LaGuardia, and Newark airports. Other means of control include:

1. Each summer, teams of USDA goose catchers capture geese that, in the molting condition cannot fly, including offspring that are then taken to slaughterhouses and dispatched. Between 2009 and 2010, 2911 geese were killed.

2. The USDA reports that 80 percent of Canada geese are resident, and remain in place, rather than migrate. The government and airport operators strongly advocate for the culling of non-migratory birds.

3. Discouraging nesting and grazing.

4. Letting grass grow taller, planting unpalatable grasses, reducing standing rainwater, and oiling eggs to prevent hatching.

5. Firing pyrotechnics and propane cannons.

Given the rapid growth of non-migratory birds at some of the busiest airports, and the dramatic increase in flights, it may only be a matter of time before a catastrophic bird or wildlife strike will happen again, with more disastrous results than the extraordinary landing of Flight 1549 on the Hudson.

The Elements of a Premises Liability Case in Oregon Depend on the Visitor’s Legal Status at the Time of the Injury

Kolisch steps

As explained in detail below, there are three types of visitor status: business invitee, licensee, and trespasser.  The duty of the person in control (the “possessor”) of the premises where the injury occurred is controlled by the legal status of the injured visitor at the time of the injury.  This may include the obligation of the possessor to protect the visitor against injuries from third parties or animals.

An understanding of negligence law in Oregon requires a brief discussion of pre- and post-1987 common law decisions.  Prior to 1987, Oregon generally held to a conventional approach to negligence cases, requiring the existence of a duty, a breach of that duty, causation, and damages.  However, since the cases decided in the period around 1987, common law negligence in Oregon now depends on whether the defendant’s conduct unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff.

This change from the strict adherence to the traditional common law elements of duty, breach, causation, and damages was a result of the Oregon appellate courts’ perceived overuse of the cliché “duty” or “no duty.”  Oregon courts, therefore, began to encourage juries and judges to decide each case on its own facts.  Duty continues to play an affirmative role when the parties invoke a particular status, relationship or standard of conduct beyond the standards generated by common law.  This was the result of the so-called Fazzolari principle, which now governs negligence law in Oregon.  Fazzolari v. Portland School District 1J, 303 Or 1 (1987).

Fazzolari typically requires a three-part test:

  1. Determine whether a particular status or relationship exists;
  2. If so, analyze that status, relationship, or standard to determine whether a “duty” beyond that of ordinary care exists;
  3. If such a standard, status or relationship is not alleged, then analyze the case under principles of general negligence based on foreseeability of risk of harm.

The General Premises Liability Claim Under Oregon Law

Premises liability is based on the fact that a defect in the land that poses a danger to those who are not in possession of the land, but are present on the land either for their own benefit or the benefit of their host.  The person in possession and control of land is obligated to cause no unreasonable harm to others in the vicinity.  W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 57 at 386 (5th ed 1984 and Supp 1988).  The particular duty owed by an occupier of land to a visitor is dictated by the visitor’s status.  Settle v. PGE, 81 Or App 474, 477 (1986), rev den, 302 Or 460 (1986).

As discussed above, the Oregon Supreme Court has dealt extensively with the concept of duty in common-law negligence cases and, in the series of cases in 1987 discussed above, largely overhauled common-law negligence principles in Oregon.  The same negligence principles apply in premises liability cases.  In other words, as in Fazzolari, 303 Or 1, discussed above, Oregon premises liability law determines whether the defendant’s conduct created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff.

Business Invitees

Three categories of visitor status exist in Oregon:  invitee, licensee, and trespasser.  Stewart v. Kralman, 240 Or App 510, 517 (2011).  Business invitees are, for example, customers in stores, restaurants, gyms, or entertainment events.  Johnson v. Short, 213 Or App 255, 260 (2007) (stating that, “In general, a business invitee is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.”  (Internal citation and quotation marks omitted)).  A possessor of premises has the duty to “warn of latent dangers” and to “protect the invitee against dangers in the condition of the premises about which the [possessor] knows or should reasonably have known.”  Id. (internal citation and quotation marks omitted).


Most cases involving injuries to invitees concern allegedly defective conditions.  Stated simply, a licensee is someone who is on the premises at the possessor’s invitation and for the benefit of the licensee.  A good example might be the guest at a dinner party.  Determining whether the possessor of the premises breached a duty owed the licensee involves a three-part test.  For an injured licensee to recover, he or she must allege and prove all three parts.  The possessor of land is subject to liability for physical harm to a licensee caused by a condition of land if the possessor:

  1. Knows of the condition or by the exercise of reasonable care would discover the condition and realizes or should realize that it involves an unreasonable risk of harm to the invitee;
  2. Expects or should expect that an invitee will not discover or realize the danger or will fail to protect himself or herself against it; and
  3. Fails to exercise reasonable care to protect the invitee against the danger.

Katter v. Jack’s Datsun Sales, Inc., 279 Or 161, 167 (1977).


The possessor of land has no duty to a trespasser to make the premises safe.  However, the possessor of land cannot intentionally create hazards for trespassers.

The Duty To Make a Business Invitee Safe and/or to Protect Him or Her from Acts of Third Persons

A more specific premises liability claim stems from the Oregon common law notion that a possessor of land has a duty to protect invitees from the negligent or intentional acts of third persons or animals.  If the possessor fails to exercise reasonable care to discover acts being done or likely to be done and fails to warn patrons or protect against harm by third persons, he or she is liable.  Restatement (Second) Of Torts §344 (1965).  See also Whelchel v. Strangways, 275 Or 297 (1976) (tavern owner who knows or should know of likelihood of boisterous conduct may be required to provide additional employees for protection of patrons).  A premises liability claimant must first have a premises liability theory to have a cause of action that the possessor of land did not protect him or her from the injuries of third parties.

Recreational Use Immunity

The recreational use statute was enacted by the Oregon legislature in 1995.  Oregon encourages landowners to make their land available to the public for recreational purposes.  ORS 105.676.  See also ORS 105.672-699.  Consistent with that policy, the recreational use statute provides that an owner of land who makes it available for public use is not liable for any personal injury arising out of the injured person’s use of the land.  ORS 105.682(1).  The recreational use statute is a powerful and complete defense.

However, if the injured party paid money to use the land, the statutory immunity is not available to the defendant.  ORS 105.688(3).  In such cases, the possessor must rely on conventional defenses for premises liability.

Assumption of the Risk 

The doctrine of implied assumption of the risk has been abolished in Oregon.  ORS 31.620(2).  A defendant is prohibited from asserting implied assumption of the risk as an affirmative defense that might act as a complete bar to recovery.  Blair v. Mt. Hood Meadows Dev. Corp., 291 Or 293 (reh’g den, modified on other grounds by 291 Or 703 (1981)).  This statutory abolition was largely orchestrated by the powerful skiing industry–economically, the largest recreational industry in Oregon.

A defendant may choose to informally raise arguments that previously would have been allowed as affirmative defenses, e.g., implied assumption of the risk.  However, those arguments are now placed into the comparative fault equation.  In other words, if a defendant can establish that a plaintiff “voluntarily and unreasonably” undertook a risk created by the defendant’s conduct, the fact finder must consider such conduct in comparison to the defendant’s negligent acts.  Id. at 301.

Oregon Law Does Not Permit Experts to Testify in the Form of Legal Conclusions in Product Liability or Negligence Cases

Under Oregon law, witnesses are not allowed to testify as to legal conclusions.  See, e.g., Olson v. Coats, 78 Or App 368, 370 (1986) (excluding testimony by witness that certain road signs complied with statutory requirements).  “Each courtroom comes equipped with a ‘legal expert,’ called a judge, and it is his or her province alone to instruct the jury on the relevant legal standards.” Burkhart v. Washington Metro. Area Transit Auth., 112 F3d 1207 (D.C. Cir. 1997).  Examples of inappropriate testimony in the form of legal conclusions include, but are not limited, to:

  • Defendants were clearly reckless, acted in a reckless manner, or acted in a grossly reckless manner;
  • Plaintiff was negligent; and
  • The helicopter/engine had a known and recognized defect.

Neither plaintiff nor defendant should be permitted to elicit such legal conclusions at trial.  An increasing number of products liability cases have excluded similar expert testimony.  A district court was held to have correctly excluded expert testimony that “the lack of adequate warnings and instructions constituted defects which made the products unreasonably dangerous.”  Strong v. E.I. DuPont de Nemours Co., 667 F2d 682, 685-86 (8th Cir. 1981).  Similarly, in Harris v. Pacific Floor Machine Mfg. Co., 856 F2d 64, 67 (8th Cir. 1988), a district court was held to have properly refused to permit the plaintiff’s expert to opine as to the adequacy of the particular warning on the product.

Likewise, expert testimony that a party was “willful” was excluded in United States v. Baskes, 649 F2d 471, 478 (7th Cir. 1980).  On similar grounds, a federal district court excluded expert testimony that the plaintiff was “negligent.”  The court’s ruling also encompassed “any testimony . . . that contains a variation of the term ‘negligent,’” or any opinions that certain conduct was the “direct, proximate and efficient cause” of an accident.  Hermitage Industries v. Schwerman Trucking Co., 814 F Supp 484, 487-88 (D. S.C. 1993).