Jury awards Bend surfer $3.8 million

By Chelsea Yarnell Tillamook Headlight-Herald

A jury has awarded Bend resident Cole Ortega more than $3.8 million in economic and noneconomic damages after a 2008 surfing accident that severed his arm.

The jury determined Aug. 1 that the state of Oregon was 70 percent negligent, while Ortega was 30 percent negligent. The dory boat operator, Darrell Martin, was found not to be negligent. Ortega had asked for $5.3 million in the personal injury lawsuit. Instead, the jury has ruled Ortega be awarded $3.1 million in noneconomic damages and $717,250.24 in economic damages.

The lawsuit was filed on Ortega’s behalf in 2010. It sought damages from the state for failure to provide adequate warnings of the danger of collision between dory boats and people near Cape Kiwanda and from Martin for negligence.

In 2008, then 14-year-old Ortega’s left arm was severed after a collision with Martin’s dory boat while Ortega was surfing near Cape Kiwanda in Pacific City. Surgeons at Legacy Emanuel Medical Center in Portland were able to reattach his arm after the accident.

The jury determined that:

• The danger of collisions between dory boats and people at or near Cape Kiwanda was not open and obvious to all people who would encounter it.

• The state was negligent in failing to provide adequate warnings of the danger of collision between dory boats and people at or near Cape Kiwanda.

• The state’s negligence caused damage to Ortega.

• Martin was not negligent as alleged.

• Ortega was negligent in one or more ways.

• Ortega’s negligence caused damage to himself.

In his closing statements Aug. 1, Ortega’s attorney, Dan Dziuba, argued that Oregon had a responsibility to warn people of the danger of dory boats near and around Cape Kiwanda.

“One of the claims of the state of Oregon is that the risks of dory boats was open and obvious to (Mr. Ortega),” Dziuba said. “He’d never been out there when they were coming in and out. … It just didn’t occur to him that a dory boat might hit him.”

Dziuba pointed out that the state did not have a system for sign maintenance, resulting in the absence of a warning sign on the day of Ortega’s accident.

“There wasn’t a program for making sure the signs stay up,” Dziuba told the jury. “Those signs are their only option for safety between surfers and dory boats.”

Dziuba also advised the jury to carefully consider Martin’s fault in the accident.

“I think he was in the same terrible situation as Mr. Ortega on that particular day,” Dziuba said.

In the state’s closing arguments, Jill Schneider asked jury members to not let sympathy and emotions guide their judgment.

“It’s very hard to not let sympathy into this case, but the law doesn’t allow it,” Schneider said in court. “The state is nameless, faceless so there’s no sympathy for it.”

Schneider reminded the jury that this trial was not a case about regulating who uses the water, but instead about warning signs.

“The state has no regulation on surfers,” Schneider said. “The state can only do what it can. It can’t prevent people from using the ocean. … It’s a deeply held tradition that our beaches are open to everyone.”

Schneider asked the jury to rule that the state had no liability in the accident.

“It’s an open and obvious danger at Cape Kiwanda,” Schneider said. “We have no duty to warn of open and obvious dangers.”

Schneider told the jury that even if a sign were posted at Cape Kiwanda on the day of Ortega’s accident, it wouldn’t have changed the outcome.

“Signs don’t help. It’s the body of experience that people have,” Schneider said. “These signs alert people, but they don’t prevent accidents.”

Martin’s attorney, Thane Tienson, focused his closing argument on the fact there were no criminal charges in the case and that the collision was deemed an accident. “There’s a reason this court is packed with dory fishermen. … It could have happened to any of them,” Tienson said in court. “There’s not a single person who’s come up here and pointed the finger at Darrell Martin.”

“Driving a dory boat is not like driving a car,” Tienson continued. “It takes a great deal of skill; it takes a great deal of experiences.”

In his rebuttal, Dziuba left the jury with his final thoughts.

“The state has said it’s an open and obvious danger,” Dziuba said. “Obviously it’s open and obvious to the state because for 40 years it’s been told that it’s dangerous. What we don’t know of (is) the people who were not hurt because of the warning signs.”

— The Bulletin contributed to this report.

Cole Ortega