Bend man’s suit in surfing accident going to trial

Cole Ortega’s severed arm was reattached after collision with a dory

By Chelsea Yarnell / Tillamook Headlight Herald

Published Jul 8, 2014 at 12:01AM

On July 6, 2008, Cole Ortega, of Bend, was out surfing near Cape Kiwanda in Pacific City. An incoming dory operated by Darrell Martin, of Beaver, hit Ortega, then 14. The boat’s propeller severed Ortega’s left arm between the elbow and the shoulder. He was taken by Life Flight to Legacy Emanuel Medical Center in Portland, where surgeons reattached his arm.

Now, almost exactly six years later, a $5.3 million personal injury lawsuit, filed on Ortega’s behalf in 2010, is set to go to trial.

Beginning July 15 in Tillamook Circuit Court, a 12-person jury and Judge Mari Garric Trevino are scheduled to hear Ortega’s case against defendants Martin and the state of Oregon. The trial is expected to last 16 days, according to the Oregon eCourt system.

The lawsuit alleges “the State of Oregon was negligent in failing to provide adequate warnings of the danger of collisions between dory boats and other persons at or near Cape Kiwanda.” It alleges Martin was negligent in failing to keep a proper lookout and in operating his dory unsafely and faster than was reasonable under the circumstances. And the suit alleges Martin failed to control his boat, operated it without a boater’s safety card and that the air horn can aboard the boat was empty.

The Tillamook County District Attorney’s Office reviewed the case in 2008 and said it was an accident and no criminal charges would be filed, according to an Associated Press story from The Bulletin’s archives.

Daniel Dziuba, Ortega’s attorney, said that although most cases settle, this one hasn’t.

The state failed to provide adequate warnings of the danger of collision at Cape Kiwanda, he said, and alleges Martin’s role was “just like an auto collision.”

The lawsuit seeks $5 million in damages for noneconomic losses, $300,000 for economic losses (such as past medical bills) and an amount for future medical bills and loss of earning capacity that would be determined in court for Ortega’s sustained injuries.

According to the complaint, in addition to his severed arm Ortega had rib fractures, a vertebral fracture and scalp laceration. He has limited function and loss of sensation in his left shoulder, arm, wrist and hand.

Ortega, a competitive snowboarder who represented the Mt. Bachelor Sports Education Foundation, became a top golfer at Summit High School, qualifying for Class 5A state golf championships, according to The Bulletin’s archives. He is now 20 and a University of Denver student.

“In terms of his injury, Cole has made an excellent recovery,” Dziuba said. “In terms of a normal arm, he’s nowhere near normal. He faces a lot of surgery in the future and he has nowhere near full function of it.”

Following Ortega’s accident, the Pacific City Dorymen’s Association released statements on its website to provide some education about dories:

“The Dorymen’s Association emphasizes safety … and has always promoted an open dialogue with surfing and jet-ski representatives.”

“The modern dory fleet of today evolved from boats that went to sea from Cape Kiwanda more than 100 years ago. There’s no other marine fishery exactly like this anywhere in the world. … But the Pacific City dory fleet met the technological changes over the past century.”

— Bulletin reporting contributed to this story.