Milwaukie city councilors apologize over Norma Gabriel case
This story has been modified from its original version.
Milwaukie's elected officials have apologized over the city's response to a FedEx driver's killing of Norma Gabriel, an 83-year-old on April 26 to catch a bus in the Milwaukie Transit Center.
To help her balance as she used the crosswalk, Gabriel was pulling a rolling red cart, which also carried her swimsuit and towel between her home in Sellwood and the Nelson's Nautilus Plus Milwaukie.
Meanwhile, Gabriel's son, Michael, said that the family will be suing FedEx, which doesn't carry personal injury insurance for their drivers. Gabriel's medical bills are estimated at $400,000.
The apologies from city councilors came after several friends of the deceased woman signed up to speak at the July 5 City Council meeting. They all said that they would give their allotted three-minutes each to speak in front of City Council to Carolyn Tomei, a former mayor and state representative for Milwaukie.
Gabriel's case is drawing comparisons with the last time that a driver crashed into a pedestrian. On Aug. 5, 2014, 25-year-old Kelsey Alexis Zionskowski of Milwaukie was struck by a vehicle as she waited to cross McLoughlin near River Road. Unlike the Gabriel case, when Zionskowski suffered massive trauma to both legs, police immediately issued a press release and conducted toxicology tests on the driver, 45-year-old Ramon Avila-Perez.
Saying "driving is a privilege and not a right," Tomei pointed out that we may never know whether the FedEx driver, Jason James Fletcher of Lake Oswego, was texting or checking his next delivery address, because his electronic equipment was not checked by police. His blood was never checked for alcohol or drugs in his system. He eventually paid a $260 fine and will not face criminal charges.
"We need to make sure that our officers are trained that when there is an injury, they need to do a blood and alcohol test on the driver, as well as checking all electronic equipment in the vehicle," Tomei said.
"We'll have some conversations about this," Milwaukie Council President Lisa Batey said. "I appreciate you bringing this forward, and you've given us some good food for thought about both transparency, and also frankly about police practice when there's an accident like this."
From the FedEx truck hitting her, Gabriel suffered nine double fractures in her ribs on her left side, a hip fracture and a broken vertebrate in her neck. One of her ribs was completely severed from her spine, which was an irreparable injury, according to information doctors provided the family.
During her 15 days in the intensive care unit, Gabriel had showed a tremendous recovery after undergoing a tracheotomy so she could breathe through a hole in her neck, according to her family. The official cause of death was internal injuries suffered due to the FedEx truck hitting her, causing kidney failure. Gabriel had not had any kidney problems previously. After the family stopped the respirator, according to the wishes in Gabriel's advanced medical directive, Gabriel survived for 10.5 hours without help breathing from a machine.
"It's amazing that after being hit like that she was able to talk to them [giving police and AMR her son's phone number]," Michael Gabriel said. "As it turned out, she never talked again."
Call for transparency
Tomei tried for weeks to to get information about Gabriel's death. She called staff in the police department and city manager's office who failed to call her back, she said.
"Is this the way that we expect citizens of Milwaukie should be treated requesting information that should be made available to them? To me this seems unacceptable," Tomei said. "I contacted paid staff, and sadly, I was not successful. And in my opinion, that must change."
She said that it would have been "cheating" to contact elected city officials when most citizens (who are not a former mayor/state representative) don't have her level of access to city councilors.
"Some people are really paranoid about government — I'm not — and I don't think anyone's trying to screw over anyone else, but they wondered: Was there a cover-up? Was someone trying to cover up for FedEx? I didn't think so, but there is a very serious problem about transparency and public information," Tomei said. "Do you really think that no news is good news?"
"I am sorry about the response you received, because I think we all are for transparency — there's no one here of course who is not," Councilor Shane Abma said. "And when you make requests, you should get answers."
Councilor Angel Falconer said that she now worries more about using the Milwaukie Transit Center regularly with her young daughter. She told Tomei that she was sorry that councilors received notices from the police, and she and others on City Council assumed that the information would get out to the general public.
"I agree of course with Councilor Abma," Falconer said. "I was very disturbed by what happened, but I have to also acknowledge that I was in a position where I wasn't sure if I should broadcast what had happened."
Councilor Wilda Parks said that most of the traffic crashes she's heard of causing injuries in Milwaukie occur on the state highways that run through town, highways 99E and 224.
"Ditto what's already been said [by other city councilors]," Parks said. "Sympathies for the [Gabriel] family and for all of her friends who have lost someone."
Parks said that she also assumed that the information City Council received about Gabriel's death would be disseminated to the general public.
"It was a bit disconcerting to see that intersection or that area branded as a 'death' area, even though obviously that's what happened," Parks said.
Traffic crashes that cause injuries should garner news releases from the police department, said Mayor Mark Gamba.
"At the very least, we should start doing a better job recording where accidents occur, and we need to look at a process around the transparency," Gamba said. "It's pretty hard to get everyone riled up to solve a problem if they don't even know there's a problem to begin with."
Police Chief Steve Bartol said that the officers on scene waited to issue a citation because they hadn't heard the 911 tapes in which the FedEx driver admitted to hitting Gabriel in the crosswalk. Bartol said that police at the time lacked probable cause to perform searches and seizures legally.
"At the time of the incident, there was no indication to us that this was going to be a serious injury or fatal accident," Bartol said. "There is no motivation for the police department to cover that up."
Gabriel was taken from the scene of the crash to OHSU Hospital by AMR ambulance. Gamba pointed out the fact that the incident happened in broad daylight and promised to organize a meeting with Tomei and Clackamas County District Attorney John Foote to demonstrate the city's support for criminal prosecution in such cases.
"If we need to change the laws and the procedures…, we must do that. Drivers must be held accountable," Tomei said. "Let's let drivers know that if you hit a pedestrian or a cyclist in Milwaukie, you will be cited for a crime… you will be fined heavily and prosecuted to the full extent of the law."
The mayor and the police chief then exchanged a dialogue during the City Council meeting.
"You know my exceedingly high level of respect for this department and for you in particular; I do want to push back a tiny bit though," Gamba said.
"Push away," Bartol said.
"I believe in Oregon state law, the pedestrian has the right of way, and in particular, in a crosswalk the pedestrian has the right of way, so if it can be established…" Gamba said before his sentence was interrupted.
"You're getting into a lot of the details of the specific report right now, but at the scene there was a question as to whether she was in the crosswalk or not, and that's what required the additional follow-up on the part of the officer to make that determination. And through that additional follow-up, he made the decision that she was indeed in the crosswalk and issued the citation," Bartol said.
"OK... all right," Gamba said.
"Does that make sense?" Bartol asked.
"It's a complicated enough conversation that maybe this isn't the appropriate time to have it," Gamba said.
Closing street to through traffic
Falconer assured Tomei and the rest of the audience in City Hall chambers that the city was working on closing Jackson Street to through traffic. The problem with closing the street is twofold: City Hall employees access their employee parking lot via Jackson Street, and Dark Horse Comics has its loading dock on Jackson Street.
"That happened as soon as we found out that there was an accident, reaching out to Dark Horse and city staff about what can be done to restrict access so that there are fewer potential conflicts between drivers and pedestrians," Falconer said.
"Our thoughts and prayers go out to her family," said Megan Connor, public-relations specialist for Dark Horse Comics. "As far as we know, the FedEx driver who hit her was not delivering anything to or from Dark Horse."
As to the city closing Jackson Street to through traffic, Dark Horse would support the change. If the city closed the street to through traffic, Dark Horse would still have access to its loading dock, and city employees could still use the City Hall parking lot.
"We haven't heard really anything about that, but we worked with the city before when they put in the transit center, and we're open to working with them again," Connor said on July 7.
Michael Gabriel said he hoped that something good will come of his mother's death, such as the closure of Jackson Street or stricter penalties for drivers who hit pedestrians in crosswalks. Tomei said that she still doesn't understand why Jackson Street isn't closed to through traffic. As a former mayor, she believed that it was in the city's power to close the street as an emergency measure. Gamba said that the city engineer had returned from vacation on July 5, delaying the potential closure further.
Milwaukie's 2040 vision
Just prior to the regular City Council meeting, councilors held a work session to discuss the city's aspirations for 2040. The vision plan is set to be adopted on Aug. 1.
Based on feedback from the community and the Vision Advisory Committee, the city of Milwaukie's vision for 2040 includes the sentence: "Milwaukie's government is transparent and accessible, and it maintains policy that works to reduce disparities based on race and class."
"If we really want safety in this city — and you do, I believe it — let's put our money where our mouth is," Tomei said.
For the specific actions to achieve safe connections for all users of the transportation system in Milwaukie by 2040, the city would "implement [a] Vision Zero [plan] in an effort to eliminate traffic deaths and life-changing injuries on Milwaukie's streets."
Councilor Batey said that the city has never adequately defined Vision Zero and advocated against "using the buzz words that don't mean anything to the average member of the community."
Mayor Mark Gamba said that the Vision Zero concept has been adopted by New York City and the city of Portland. Milwaukie Senior Planner David Levitan agreed that Vision Zero has become mainstream as a concept, and he pointed out that citizens called for the term to be used in Milwaukie's vision document. Because of Milwaukie proximity to Southeast Portland, which according to Levitan "has become a magnet for pedestrian and bicycle deaths unfortunately," Milwaukie citizens are familiar with the concept of Vision Zero implementing street-design and other public-safety measures to reduce crashes.
City Council will hold another work session refining its 2040 vision document on July 18.
To help her balance, Norma Gabriel pulled a rolling cart, which also carried her swimsuit and towel between her home in Sellwood and the Nelson's Nautilus Plus Milwaukie. A police report said she had a "walker or something similar" with her when she was hit by a FedEx truck in a Milwaukie Transit Center crosswalk. We apologize for incorrectly reporting the equipment that she used to help her walk and carry her belongings.