Dyer v. R. E. Christiansen Trucking, Inc.
Dyer v. R. E. Christiansen Trucking, Inc.
Opinion of the Court
In this personal injury case arising out of a car-truck collision, plaintiff appeals from a judgment on a jury verdict for defendants.
On December 19,1988, plaintiff was driving her car southbound on a two-lane highway in Douglas County. Defendant Price was travelling northbound on the same road in a truck with a full-size trailer and a ‘ ‘pup, ” or short, trailer. It had rained, and the road was wet. The two vehicles passed each other at a bend in the road. The bend was just south of a narrow bridge and was to plaintiffs left and to Price’s right. Price testified that, as the cab of his truck passed plaintiffs car, each vehicle was in its proper lane. Price testified that his truck popped out of gear and, as he was putting it back in gear, he looked in his side-view mirror and saw plaintiffs car in a wreck on her side of the road. His pup trailer had lost its réar wheels and was dragging on the ground. Plaintiff was severely injured and does not remember the collision. There were no other witnesses. Plaintiffs theory of the collision is that the pup trailer swept into her lane as Price’s truck went through the bend in the road. Defendants’ theory is that plaintiff cut the corner and crossed into the northbound lane and into the pup trailer. The jury returned a general verdict for defendants.
Plaintiffs first two assignments of error are related, and we analyze them together. She argues that the trial court
Defendants’ argument that the testimony concerned the effects of highway design on the general tendencies of drivers mischaracterizes the evidence. Although couched in terms of highway design, Weaver’s testimony concerned the general tendency of all drivers to cut any corner on any road, and the general tendency of all drivers to cut the specific corner where the collision occurred. Weaver did not discuss any particular aspect of highway design except that the road curved.
General tendency evidence is in the same vein as evidence of prior conduct or events, which is generally inadmissible to prove negligence or lack of negligence. See, e.g., Warner v. Maus, 209 Or 529, 304 P2d 423 (1956). Here, the case against admissibility is even stronger. Defendants used the general tendencies of drivers as a group to show that plaintiff was negligent and caused the collision. Although
Defendants rely on Carlson v. Piper Aircraft Corp., 57 Or App 695, 646 P2d 43, rev den 293 Or 801 (1982), and Chance v. Ringling Bros., 257 Or 319,478 P2d 613 (1970), to support their argument that the general tendency evidence is relevant. Those cases are of little help to defendants.
At issue in Carlson was the cause of the mid-air break-up of the decedent’s small plane. We upheld the admissibility of expert testimony concerning spatial disorientation, a phenomenon that occurs when inexperienced pilots lose the visual horizon, as when flying in clouds, and become so disoriented that they disregard their instruments and abruptly adjust the aircraft, “with possibly disastrous consequences.” 57 Or App at 699. The testimony on spatial disorientation concerned an involuntary reaction to particular and unfamiliar circumstances. The general tendency testimony at issue here concerned a voluntary decision by drivers in general to violate the law and cross the center line when driving through a bend in the road, a common and familiar circumstance. The testimony did not concern any reactions that might have been triggered by the particular conditions present at the time of the collision, such as the bank or angle of the corner, the weather conditions or, most notably, the presence of a tractor-trailer in the on-coming lane.
Defendants’ reliance on Chance barely merits discussion. In that case, the plaintiff was injured when the defendant’s boxer dog lunged at her. In support of her argument that the defendant knew of the vicious propensities of the dog, the plaintiff was allowed to present evidence that boxers tend to be protective and also tend to jump on people. The evidence was admitted to demonstrate the defendant’s knowledge and did not concern the general tendencies of dog owners or some other class to which the defendant belonged.
Because we cannot tell whether the jury might have based its general verdict for defendants on the improperly admitted general tendency evidence, and because “the result of the trial might have been different” had the evidence been excluded, we reverse and remand. Pearson v. Galvin, supra, 253 Or at 331; Hass v. Port of Portland, supra, 112 Or App at 314. We discuss plaintiffs remaining assignments of error, because the issues will likely arise on remand.
In her third assignment, plaintiff argues that the trial court erred in allowing into evidence an aerial photograph of the scene of the collision, because Weaver used the photograph to illustrate his testimony that drivers tend to cut that particular corner. A photograph may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury. OEC 403. Where the evidence is ruled relevant and the trial court has ruled on other admissibility issues, such as those presented by OEC 403 or OEC 702, we review the latter rulings for abuse of discretion. If the record supports either admission or exclusion, we must affirm the trial court’s ruling. Carter v. Moberly, supra, 263 Or at 200.
Defendants argue that the photograph was properly admitted because a proper foundation had been laid, it accurately depicted the scene of the collision and was helpful to the trier of fact. We agree that defendants laid a proper foundation and that any changes in the area as depicted in the
In her fourth assignment of error, plaintiff argues that the trial court erred in allowing Weaver to testify that, in his opinion, based on the general tendencies of drivers, plaintiff must have cut the corner and collided with defendants’ pup trailer in the northbound lane. Plaintiff does not argue that Weaver was not qualified to give such an opinion, but rather that the facts or data on which he relied are not a proper basis for that opinion.
The proponent of an expert opinion has the burden of providing a proper foundation. Kingsbury v. Hickey, 56 Or App 492, 496, 642 P2d 339, rev den 293 Or 146 (1982). The facts or data relied on by an expert witness need not be admissible evidence but, to provide a proper foundation, they must be of “a type reasonably relied on by experts in the particular field in forming opinions.” OEC 703. Whether that test is met is a preliminary matter for the court, which we review for abuse of discretion. OEC 104; Kirkpatrick, Oregon Evidence 459 (2d ed 1989), Legislative Commentary to Rule 703; see State v. Baker, 87 Or App 285, 291, 742 P2d 633, rev den 304 Or 405 (1987). The trial court abused its discretion in allowing expert testimony if the opinion lacked a sufficient foundation, because such an opinion is too speculative. Urbanski v. Johnson, 283 Or 169, 581 P2d 948 (1978).
Weaver testified on direct and cross-examination that his opinion that plaintiff crossed the center line and
“the witness relied solely on police reports and photographs of the vehicles involved in the accident. He did not inspect the*328 vehicles personally. He was unaware of the condition of the roadway at the time and place of the accident. He did not hear the witnesses’ description of the accident. He assumed that defendant’s motorcycle brakes were functioning fully but had no personal knowledge as to their effectiveness. He did not consider that defendant’s motorcycle had collided with another motorcycle before the collision with the automobile.” 87 Or App at 291.
If reliance on police reports and photographs of the vehicles involved in an accident is an inadequate basis for an expert opinion as to point of impact, then reliance on the general tendencies of other drivers must also be an inadequate basis. Weaver’s testimony lacked a sufficient foundation based on the facts and physical evidence of this case. It was too speculative and therefore the trial court abused its discretion in admitting it. State v. Baker, supra; see also Urbanski v. Johnson, supra; Kingsbury v. Hickey, supra.
Plaintiff next assigns error to the trial court’s refusal to give her requested instruction that evidence of the general tendencies of other drivers is not evidence of plaintiffs conduct at the time of the collision. Plaintiff is correct for the reasons discussed in our analysis of her first and second assignments of error.
In her sixth assignment, plaintiff argues that the trial court erred in excluding a videotaped demonstration of the phenomenon of trailer sweep. The videotape was offered on three separate occasions, on direct, redirect and rebuttal examination
Plaintiffs remaining assignments require only brief discussion. She argues that the trial court erred in failing to order defendants to produce the entire contents of the file of one of their expert witnesses, which the witness had with him on the stand. Defendants claimed the attorney-client privilege. The witness testified that the particular file contained only correspondence with defendants’ attorney and that the correspondence took place before he was asked to testify for defendants. That kind of correspondence is within the attorney-client privilege and need not be disclosed. OEC 503(2)(b). The trial court did not err.
Finally, plaintiff assigns error to the trial court’s instruction to the jury on the basic speed rule.
Reversed and remanded.
Defendants are Price, the driver of the truck and R. E. Christiansen Trucking, Inc., the corporate owner of the truck and Price’s employer.
The verdict stated:
“We, the jury, find:
“1. Were the defendants negligent in one or more of the respects claimed in the plaintiffs complaint that caused damage to plaintiff?
“ANSWER: NO”
We comment with some frustration on the common practice of using general verdict forms in complex cases such as this one. It may be that the jury accepted plaintiffs theory of the collision but concluded that, although the pup trailer swept into plaintiffs lane, defendants were not negligent. The use of special interrogatories would clarify what the jury concluded, as well as who, if anyone, was at fault. That information could save time and money for plaintiffs, defendants and the courts.
At trial, plaintiff objected:
“[Wlhat traffic does at other times and places is irrelevant and immaterial and has no probative value in this instance. * * * If other people at other times cut the comer, it doesn’t mean she would cut the corner just because of her personality, her make up, her driving habits and practices. * * * What other people do at other times in other circumstances is not relevant or material. It has no probative value as to what the two drivers did in this case.”
Plaintiff did not object that the probative value of Weaver’s testimony was outweighed by its prejudicial effect. Her objection was simply that the testimony had no probative value and therefore was not relevant and not admissible.
See Kirkpatrick, Oregon Evidence 111 (2d ed 1989).
In Carter v. Moberly, supra, the Supreme Court said:
“[E]vidence of negligence at some other time and place is inadmissible to prove negligence on the occasion in question * * * [unless there is] sufficient evidence to indicate that the [negligent conduct] continued v. to the time of the accident.” 263 Or at 198. (Citations omitted.)
Weaver testified, in part:
“DIRECT EXAMINATION
“ * * * *
“Q: [Do] you have an opinion regarding what happened in this accident?
“A: Yes, I do.
“Q: What is that opinion?
“A: My opinion is that the vehicle southbound at some point impacted the back trailer axles of the - - what was called the pup of the northbound truck.
“ * * * *
“I think it is more likely than not that it was on the northbound portion of the road.
“Q: Can you explain to the jury the basis for your opinion?
‘ ‘A: Part of it is when people are driving down a road they’re less perceptive of where the right side of their vehicles are, * * *. So when there is something on the right side and in this case there was a bridge there, there is more of a tendency for people to move away from that and in highway design we allow for this, and as a matter of fact it’s called a shy distance. It’s an unwillingness of people to test those limits and so I think it is more likely that when confronted with a solid object on one side and the center of the road on the other, that a person is likely to move away from that solid object.
“ * * * *
“RE-CROSS EXAMINATION
“Q: Let me clarify. Then your opinion is based not on the physical evidence of the damage to the vehicles * * * but it’s based on what you understand tc be the tendency of drivers at that location?
“A: To the tendencies of drivers at locations similar to this.”
The witness also testified that he had reviewed photographs of plaintiffs damaged vehicle and accident reports, but could not recall whether he had seen any photos of the tractor-trailer or the pup trailer or the maintenance records for the truck and pup trailer. He testified that neither the damage to plaintiffs car nor the damage to the tractor-trailer and pup trailer would affect his opinion that the collision occurred in the northbound lane.
See n 6, supra.
The videotape was offered as rebuttal evidence against defendants’ expert witnesses, who testified that trailer sweep could not occur under the conditions present at the time and place of the collision; that, if trailer sweep did occur, the driver would always feel it; and that, if trailer sweep were possible under the conditions at the time of the collision, the result would have been a ‘ ‘catastrophic loss of control” of the entire tractor-trailer rig.
The instruction was:
“In connection with the basic speed rule, I instruct you that the statutes of this state also provide for certain designated speeds. Speed in excess of the designated speed is a violation of the basic speed rule unless you are satisfied that such speed was reasonable under the existing circumstances.
“In this case, the applicable designated speed is fifty-five miles per hour in areas not otherwise described.”
Concurring Opinion
specially concurring.
In determining whether certain evidence is admissible, the initial inquiry is whether it is “relevant.” “Relevant evidence” is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” OEC 401. The lead opinion concludes that the testimony of defendants’ expert, Weaver, concerning the general tendency of drivers to cut corners, including the corner at issue in this case, “is too remote from the case at hand to be relevant.” I agree with the dissent that that conclusion is wrong. However, I disassociate myself from the dissent’s reliance on Chance v. Ringling Bros., 257 Or 319, 478 P2d 613 (1970), and Carlson v. Piper Aircraft Corp., 57 Or App 695, 646 P2d 43, rev den 293 Or 801 (1982). As the lead opinion adequately demonstrates, neither case is apposite here. In my view, Weaver’s testimony is relevant, because it pertains to defendants’ claim that plaintiff crossed the center line and makes that fact more probable than it would be without the evidence. Weaver testified that drivers in the southbound lane had a general tendency to cut the corner at issue due to the highway design. From this testimony, it can be logically inferred that plaintiff had the same tendency to cut that corner. Although it is questionable whether drivers’ general tendency to cut corners calls for an expert’s opinion, there was no objection on that basis. See OEC 702.
While Weaver’s testimony is relevant, it does not necessarily follow that it should be admitted. Evidence should be excluded if its probative value is substantially outweighed by its prejudicial effect or other countervailing factors. OEC 403. The lead opinion holds that Weaver’s testimony is irrelevant and thus does not reach the issue under OEC 403. However, the real reason the lead opinion does not decide the OEC 403 question is that plaintiff failed to object on a basis that requires an OEC 403 analysis. 118 Or App at 323 n 3.1 disagree.
“Your Honor, I object on the same grounds essentially we’ve gone into before, your Honor. It’s inappropriate, improper and I object to the question as asked and ask it be stricken.” (Emphasis supplied.)
Thereafter, during in-chamber discussions and as Weaver was about to testify, plaintiff continued to object as “irrelevant and immaterial,” because
“if other people at other times cut the corner, it doesn’t mean [plaintiff] would cut the corner just because of her personality, her make up, her driving habits and practices. Nor does it tend to suggest that she would cut the corner if a truck is there * * *.
“We are talking about a particular situation where there was a truck northbound and a car southbound. The visibility is, although it’s wet, it’s been raining, the visibility by all reports is good. [Plaintiff] can see the truck. We’re talking about her particular manner of driving[,] not the general tendency [of] Oregonians in general to cut corners * *
Thus, plaintiff did initially object to Weaver’s testimony on the basis of unfair prejudice, and the trial court was aware of that. Although she later objected to it as “immaterial” or “irrelevant,” the substance of her argument was that the jury might misuse the general tendency evidence. Under the circumstances, unlike the lead opinion and the dissent, I would hold that plaintiff preserved the error below. See State v. Phillips, 314 Or 460, 466, 840 P2d 666 (1992); State v. Hitz, 307 Or 183, 188, 766 P2d 373 (1988); Carlson v. Piper Aircraft Corp., supra, 57 Or App at 700.
Another problem exists in the lead opinion. Because of its conclusion that plaintiff failed to preserve the unfair prejudice issue, the lead opinion relies on a no longer viable doctrine under OEC —“remoteness.” See Kirkpatrick, Oregon Evidence 126. “Remoteness” is a term referring to passage of time that renders certain evidence irrelevant or makes it inadmissible in the light of some countervailing concerns as expressed in OEC 403. McCormick On Evidence § 185, 775 n 10 (4th ed 1992); see also Marshall v. Martinson, 268 Or 46, 52, 518 P2d 1312 (1974); Carter v. Moberly, 263 Or 193, 200, 501 P2d 1276 (1972); State v. Robinson, 104 Or App 613, 616, 802 P2d 688 (1990). Passage of time is not a question in this case. It would be a more straightforward analysis if the lead opinion simply said that the general tendency evidence is not relevant, rather than using the remoteness doctrine to reach that result.
I would hold that the general tendency evidence is relevant but should have been excluded on the basis of unfair prejudice. I therefore concur.
In Carlson, testimony concerning spatial disorientation was objected to on the basis of relevancy. 57 Or App at 699. We said that, “[w]hen a relevancy objection is made, the trial court must assess the probative value of the proffered evidence and
Dissenting Opinion
dissenting.
The lead opinion holds that opinion evidence of the “shy distance,” the general tendency of drivers to move away from a barrier on their right under certain conditions, is “too remote to be relevant.” 118 Or App at 325. Weaver, an expert witness, testified that there is a general tendency of motorists when rounding a curve to move away from objects on the right side, in this case, a bridge barrier. He said:
“It’s called a ‘shy distance.’ It’s an unwillingness of people to test those limits and so I think it is more likely that when confronted with a solid object on one side and the center of the road on the other, that a person is likely to move away from that solid object.”
“Relevant evidence” is evidence that has a tendency to make the existence of any fact in issue more probable or less probable than it would be without the evidence. OEC 401. The issue is whether plaintiff crossed the center line of the highway when she went around the corner. All relevant evidence on that issue is admissible unless it conflicts with a statutory, constitutional or decisional rule of evidence. “Evidence which is not relevant is not admissible.” OEC 402. Thus, the inquiry is whether evidence of the general tendency of drivers to move away from a barrier on their right while going around a corner makes it more likely than not that plaintiff crossed the center line. In the light of OEC 402, we turn to decisional rules of evidence arising from cases in which general tendencies or propensities have been held admissible or inadmissible.
In Chance v. Ringling Bros., 257 Or 319, 478 P2d 613 (1970), the court held that expert testimony concerning the characteristics and propensities of a certain breed of dog was admissible, because jurors might not be familiar with the propensities of that particular breed. The evidence was deemed probative, because the jury could have concluded that the circus, knowing of the propensity of the breed, was negligent in keeping the dogs in a certain area. In Carlson v. Piper Aircraft Corp., 57 Or App 695, 646 P2d 43, rev den 293 Or 801 (1982), we held that the propensity of inexperienced pilots to become disoriented in clouds was probative of what caused the plaintiffs decedent’s airplane to break v. in midair.
In summary, the rule is that evidence of others’ negligence is generally not admissible to prove the negligence of a party. However, evidence of others’ negligence is often admissible on other relevant issues, such as causation, a dangerous condition or knowledge. In this case, a pivotal issue is whether defendants’ trailer crossed the center line into plaintiffs lane or whether plaintiff crossed the line. The witness was asked whether “traffic that proceeds southbound coming across the bridge has any tendency * * * due to the design of the highway at that point [to cut across the curve in highway]?” He answered affirmatively. That evidence is not direct evidence that, on other occasions, drivers crossed the center line and, therefore, it follows that, on this occasion, that is what plaintiff did. Rather, it is evidence of a general tendency of drivers to drive in a particular manner because of a curve in the highway. Admittedly, the evidence gives rise to an inference that plaintiff was negligent, but so too did the evidence offered in Carlson v. Piper Aircraft Corp., supra, and in Chance v. Ringling Bros., supra.
The lead opinion holds that Weaver’s testimony lacked a proper foundation. As authority, it relies on State v. Baker, 87 Or App 285, 742 P2d 633, rev den 304 Or 405 (1987). That reliance is misplaced. In that case, we held that the trial court “acted within its discretion in excluding the offered testimony [as speculative].” 87 Or App at 291. Just as it was within the range of the trial judge’s discretion in Baker to exclude the evidence, here, it was within the discretion of the court to admit the evidence. There was a sufficient basis in the record on which the expert could give an opinion because of the expert’s awareness of the design of the highway, the location of the bridge and his understanding of how the “shy distance” tendency affects motorists.
Also, I disagree with the concurring opinion that an OEC 403 objection was preserved. The fact that plaintiffs counsel included the word “prejudicial” in his objection to testimony about Weaver’s observation of the traffic flow at the accident scene does not preserve an objection to Weaver’s testimony that, in his opinion, drivers when rounding a curve have a tendency to move away from objects on the right side of the highway. The purpose of requiring an appellant to preserve an assignment of error by making a specific objection to the trial court is to provide the court an opportunity to correct its ruling. An objection on a specific ground as to specific testimony does not put the court on notice as to the parties position regarding different testimony. OEC 103(1)(a); ORAP 5.45(2); Shields v. Campbell, 277 Or 71, 77, 559 P2d 1275 (1977). Moreover, an objection on the basis of OEC 401 does not preserve an objection under OEC 403. See State v. Isom, 313 Or 391, 406, 837 P2d 491 (1992); State v. Odoms, 313 Or 76, 84, 829 P2d 690 (1992); Wallender v. Michas, 256 Or 587, 591,475 P2d 72 (1970). In sum, I would hold that the trial court did not err when it admitted the evidence under OEC 402.
I dissent.
In addition, the lead opinion draws a distinction between voluntary and involuntary reactions. When the dog lunged at the plaintiff in Chance, that act was a voluntary reaction and therefore, the majority’s distinction is not supported by the decisional law.
Reference
- Full Case Name
- Joan DYER, Appellant, v. R. E. CHRISTIANSEN TRUCKING, INC., an Oregon Corporation, and Elbert Jay Price, Respondents
- Cited By
- 7 cases
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- Published