Carlson v. Piper Aircraft Corp.

• Decision Date: 09 June 1982
• Docket Number: No. 418-692,418-692
• Citation: 57 Or.App. 695,646 P.2d 43
• Parties: Anna Louise CARLSON, Personal Representative of the Estate of James D. Carlson, Deceased, for the benefit of Anna Louise Carlson, surviving wife of the deceased, and Dee Ann Carlson, a dependent child of the deceased, Appellant, v. PIPER AIRCRAFT CORPORATION, a Pennsylvania corporation, and Pacific Northwest Aviation, Inc., dba Hillsboro Aviation Company, an Oregon corporation, Respondents. ; CA 17263.
• Court: Oregon Court of Appeals

Page 43

646 P.2d 43

57 Or.App. 695

Anna Louise CARLSON, Personal Representative of the Estate of James D. Carlson, Deceased, for the benefit of Anna Louise Carlson, surviving wife of the deceased, and Dee Ann Carlson, a dependent child of the deceased, Appellant, v. PIPER AIRCRAFT CORPORATION, a Pennsylvania corporation, and Pacific Northwest Aviation, Inc., dba Hillsboro Aviation Company, an Oregon corporation Respondents.

No. 418-692; CA 17263.

Court of Appeals of Oregon.

Argued and Submitted Oct. 9, 1981.

Decided June 9, 1982.

Randall L. Dunn, Portland, argued the cause for appellant. With him on the briefs were Martin Schedler, Robert B. Hopkins and Keane, Harper, Pearlman and Copeland, Portland.

William B. Crow, Portland, argued the cause for respondent Piper Aircraft Corp. With him on the brief were Grant T. Anderson, James N. Westwood and Miller, Nash, Yerke, Wiener & Hager, Portland.

John R. Barker, Portland, argued the cause for respondent Pacific Northwest Aviation, Inc., dba Hillsboro Aviation Co. On the brief were Margaret H. Leek Leiberan and Lang, Klein, Wolf, Smith, Griffith & Hallmark, Portland.

Before GILLETTE, P. J., JOSEPH, C. J., ^* and YOUNG, J.

YOUNG, Judge.

This is a wrongful death action arising out of the mid-air breakup of a single engine airplane during a flight from Martha Lake, Washington, toward Portland during the afternoon of October 13, 1973. Plaintiff is the personal representative of the estate of her husband, James, who was the pilot and sole occupant of the airplane. Plaintiff's seventh amended complaint alleged a cause of action for strict product liability against defendant Piper Aircraft Corporation for design defects and a negligence cause of action against Pacific Northwest Aviation, Inc., dba Hillsboro Aviation Company, for negligence in repair. Defendants contend that the accident was the result of the pilot experiencing spatial disorientation that caused him to overstress the airplane during flight. The jury returned a verdict in favor of both defendants, and plaintiff appeals. We affirm.

Plaintiff first assigns error to the reinstruction of the jury. She contends that the submission of copies of written instructions to the jury during its deliberations constituted error, because the submitted instructions did not include instructions on defendants' standard of care. Plaintiff objected to the failure to so instruct by moving for a new trial after judgment. Plaintiff had submitted proposed written instructions on defendants' standards of care. The trial judge rejected those instructions in his original charge to the jury. Instead, the judge summarized in his own words the law on the standard of care. Plaintiff does not assign error to any of the original instructions given or to the original failure to give the requested instructions.

Following an intervening weekend and one day of deliberation, the jury requested copies of the trial court's instructions. The judge told the jury that he could provide them with copies of the written instructions concerning the issues of negligence and strict liability. Counsel approved the submission of the written instructions to the jury, and the judge submitted them. ¹

Plaintiff argues that the court should have included with the submitted instructions her requested written instructions on the standard of care which the trial judge had earlier rejected. She knew at the time the written instructions were submitted in response to the jury's request that her requested instructions had been rejected. ² However, she did not request that her rejected instructions be submitted. Plaintiff knew that the trial judge, by paraphrasing, had earlier instructed on the standards of care and that those paraphrased instructions were not in writing. In short, plaintiff agreed to "whatever fashion" the trial court chose to submit the written instructions. Plaintiff had the opportunity to examine the written instructions prior to their submission but did not. It was her responsibility to call the trial court's attention to deficiencies, if any existed, in the instructions submitted.

ORCP 59D regulates further instructions to the jury and provides, in pertinent part:

" * * * (U)pon the jury being brought into court, the information requested, if given, shall be given either orally or in writing in the presence of, or after notice to, the parties or their counsel."

One of the functions of the rule is to provide a party an opportunity to make a record of the rulings made by the trial court. See Huntley v. Reed, 276 Or. 591, 594, 556 P.2d 122 (1976); Oien v. Bourassa, 221 Or. 359, 370, 351 P.2d 703 (1960). The posture of the present case is that there is no record to review to determine what instructions were or were not submitted because those written instructions are not part of the record before us.

Plaintiff next contends that the court erred in overruling her relevancy objections to testimony of four witnesses to the effect that a non-instrument-rated pilot flying in clouds or without visual reference can become spatially disoriented and lose control of the aircraft. Plaintiff argues that the testimony concerning spatial disorientation is analogous to prior acts of negligence and is therefore too remote from the issue of the pilot's actual conduct. In addition, plaintiff argues that, if the evidence is relevant, there was no foundation to demonstrate that previous incidents of spatial disorientation occurred under similar circumstances.

The decedent was a VFR ³ pilot with limited flying experience. Although he had received a few hours of instrument instruction, he was not licensed to fly by reference solely to instruments. The evidence was that a pilot without visual references, such as would occur when flying in clouds, may become confused and disoriented because of a loss of the visual horizon. Testimony indicated that disorientation can occur in less than 40 seconds. The sensations experienced are so intense that an inexperienced pilot will disregard his instruments, believing them to be inaccurate. In short, the pilot does not know "which way is up" and may adjust the aircraft abruptly, with possibly disastrous consequences.

Given this explanation of spatial disorientation, we do not agree with plaintiff's characterization that it is evidence of other acts of negligence. Even if we were to accept that premise, our analysis is the same. The issue is the relevancy of evidence of spatial disorientation.

Relevant evidence is that which in some degree advances the inquiry, is probative and is therefore prima facie admissible. McCormick, Evidence 439-40, § 185 (2d ed. 1972). When a relevancy objection is made, the trial court must assess the probative value of the proferred evidence and weigh it against the danger of prejudice, surprise and confusion. In Carter v. Moberly, 263 Or. 193, 501 P.2d 1276 (1972), the court stated the rule:

"If (the trial judge) finds the evidence to have no probative value, he must exclude it. If, on the other hand, it does tend to establish a fact in issue, and no contrary considerations are present in the particular case, the evidence must be admitted. Between these two extremes, however, is an area in which further judgment must be exercised. If the evidence has some probative value, but also presents difficulties such as (undue prejudice, consumption of undue time, or unfair surprise,) the judge must determine whether the value of the evidence outweighs, or is outweighed by, the offsetting considerations. We sometimes call the exercise of this kind of judgment 'discretion.' Its exercise requires the judge to weigh the value of the evidence in light of all the circumstances of the particular case, and his conclusion, if it is reasonable, will not be disturbed on appeal. Precedent is of little value in reviewing such cases, because even when cases involve similar issues and similar types of evidence, the other factors which may properly influence the trial court's ruling are highly variable. We simply determine whether, on the facts of the particular case, the trial court's ruling was within the reasonable or permissible range. We need not determine whether his ruling was the only one possible. It may be that the record will support either admission or exclusion; if so, the trial court's ruling will be affirmed, regardless of which solution we would prefer." (Footnote omitted.) 263 Or. at 200-01, 501 P.2d 1276.

The question is whether the phenomenon of spatial disorientation is sufficiently probative on the issue of causation to be relevant and admissible. Plaintiff presented evidence that the break-up was the result of a design defect and inadequate and improper repair, which resulted in a high frequency oscillation of the airplane components called "flutter." There was also evidence that overstress of the flight surfaces was the cause of the breakup. There was evidence that the decedent may have been flying in clouds and turbulent weather at the time of the accident. The conclusion sought by defendants was that the pilot had lost his visual reference in the clouds, became disoriented and overstressed the aircraft, which caused the mid-air breakup. Evidence relating to spatial disorientation tended to establish defendants' theory of causation and was relevant. Carter v. Moberly, supra; Byrd v. Lord Brothers, 256 Or. 421, 473 P.2d 1018 (1970).

The process of balancing the evidence's probative value against prejudice, possible confusion or time consumption may be reviewed only for an abuse of discretion. Carter v. Mobely, supra; Byrd v. Lord Brothers, supra; Trook v. Sagert, 171 Or. 680, 138 P.2d 900 (1943). Furthermore, the latitude granted the trial judge in making that decision is broad in complex cases. Carter v. Moberly, supra, 263 Or. at 202, 501 P.2d 1276. The complexity of this case is evident: The trial lasted two weeks, producing 43 witnesses, 60 exhibits, and over 2,100 pages of...