Dyer v. R.E. Christiansen Trucking, Inc.

• Decision Date: 10 March 1994
• Citation: 868 P.2d 1325,318 Or. 391
• Parties: Joan DYER, Respondent on Review, v. R.E. CHRISTIANSEN TRUCKING, INC., an Oregon corporation, and Elbert Jay Price, Petitioners on Review. CC CV89-0356; CA A68424; SC S40300.
• Court: Oregon Supreme Court

Page 1325

868 P.2d 1325

318 Or. 391

Joan DYER, Respondent on Review, v. R.E. CHRISTIANSEN TRUCKING, INC., an Oregon corporation, and Elbert Jay Price, Petitioners on Review.

CC CV89-0356; CA A68424; SC S40300.

Supreme Court of Oregon In Banc.

Argued and Submitted Jan. 5, 1994.

Decided March 10, 1994.

I. Franklin Hunsaker, of Bullivant, Houser, Bailey, Pendergrass & Hoffman, Portland, argued the cause for petitioners on review. With him on the petition were Lisa E. Lear and Ronald G. Stephenson.

Douglas G. Schaller, of Johnson, Clifton, Larson, Corson & Phillips, P.C., Eugene, argued the cause for respondent on review. With him on the responses to the petition were Arthur C. Johnson and Kathryn H. Clarke.

GRABER, Justice.

This personal injury case arises from a vehicular accident that occurred on a rainy December day in 1988. ¹ Plaintiff was driving her car south on a two-lane highway, Highway 99 in Douglas County. Defendant Price was driving north on the same highway in a tractor-trailer combination owned by defendant R.E. Christiansen Trucking, Inc., Price's employer. The tractor was pulling a full-length trailer and a "pup" or short trailer. At the area where the car and the tractor-trailer combination collided, Highway 99 crosses over a bridge and makes a curve to the right for northbound traffic and to the left for southbound traffic.

The two vehicles passed at the curve. Price was driving 40 to 45 miles per hour on the straight road before the curve, and he began to slow down at a gravel pile located about 250 feet before the curve. Price testified that he took his foot off the brake before entering the curve and did not apply the brake in the curve. There was no contrary testimony.

Price testified that each vehicle was in its own lane as his tractor passed plaintiff's car. Price testified that, after completing the curve, he heard a noise and felt his vehicle pop out of gear. He put it back in gear and looked in the sideview mirror. Price saw plaintiff's car wrecked against the guard rail on her side of the highway. The pup trailer, which had hit the guard rail on Price's side of the highway, had lost its rear axle and rear wheels and was dragging on the ground. Most of the debris from the collision, including parts of the trailer, was located in Price's northbound lane.

Price did not see the collision. Plaintiff was badly injured and remembers nothing about the collision. There were no other witnesses to it.

Plaintiff brought this personal injury action. Her theory of the case was that the pup trailer swept into her lane as the tractor-trailer combination rounded the curve. Defendants' theory was that plaintiff cut the corner at the curve in the road, crossing into the northbound lane and causing the collision with the pup trailer. Each side called expert witnesses. The jury returned a general verdict for defendants.

Plaintiff appealed from the resulting judgment. In her first two assignments of error, plaintiff argued that the trial court erred in allowing one of defendants' expert witnesses to answer a question about the effect of the highway's design on southbound traffic at the curve where the collision occurred. Plaintiff also assigned as error the trial court's admission of the same expert witness' testimony, in the form of an opinion, as to the location of the point of impact between the car and the tractor-trailer. In addition, plaintiff argued that the trial court erred in excluding a videotape demonstrating the phenomenon of "trailer sweep." ²

On the basis of plaintiff's first two assignments of error, the Court of Appeals reversed and remanded the case for a new trial. Dyer v. R.E. Christiansen Trucking, Inc., 118 Or.App. 320, 848 P.2d 104 (1993). The court concluded that "[g]eneral 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." 118 Or.App. at 323, 848 P.2d 104. The court also concluded that the evidence was "too remote to be relevant." Id. at 325, 848 P.2d 104. The court held that, as a result, the trial court erred in admitting the evidence and that the error prejudiced plaintiff. Accordingly, the Court of Appeals reversed the judgment below. Id. at 323-25, 848 P.2d 104.

Because they were likely to arise on remand, the Court of Appeals also considered plaintiff's other assignments of error. As pertinent here, the court held that the trial court erred in admitting expert opinion testimony concerning the point of impact of the two vehicles. Id. at 326-28, 848 P.2d 104. The court held that the trial court did not err in excluding plaintiff's videotape demonstrating the phenomenon of "trailer sweep." Id. at 328-29, 848 P.2d 104.

Defendants sought review in this court, and we allowed the petition. We reverse the decision of the Court of Appeals and affirm the judgment of the circuit court.

We first consider the issue whether the question put to defendant's expert--about the effect of the highway's design on southbound traffic at the curve where this collision occurred--sought relevant evidence. OEC 401 provides:

" 'Relevant evidence' means 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 that it would be without the evidence."

OEC 402 provides:

"All relevant evidence is admissible, except as otherwise provided by the Oregon Evidence Code, by the Constitutions of the United States and Oregon, or by Oregon statutory and decisional law. Evidence which is not relevant is not admissible."

"Whether the proffered evidence satisfies the minimum threshold of relevancy required by OEC 401 is a preliminary question for the trial judge under OEC 104(1)." ³ Dept. of Trans. v. Lundberg, 312 Or. 568, 575, 825 P.2d 641 (1992). ⁴

We apply those principles to the challenged question in this case. At trial, defendants called as a witness a licensed traffic engineer. On direct examination, the witness detailed his experience in the planning, location, design, construction, maintenance, and operation of highways and stated that he was familiar with the section of highway where the collision occurred. The witness testified about various elements of highway design at the location of the collision, including the "coefficient of friction" ⁵ at the curve, the "degree of curvature," and the "superelevation" ^{6 6} of the roadway at the curve. After asking the witness several questions about the manner in which northbound trucks "would track going around the corner" where the collision occurred and about the maintenance of highways, defense counsel began to ask the challenged question:

"Can you tell the jury, in relation to [the scene of the collision], whether traffic that proceeds southbound coming across the bridge has any tendency--"

Plaintiff objected on the ground that the question was "inappropriate" and "improper." The court asked to hear the complete question. Outside the presence of the jury, the following exchange took place:

"THE COURT REPORTER: 'Question: Can you tell the jury, in relation to [the scene of the collision], whether traffic that proceeds southbound coming across the bridge has any tendency'--

"[DEFENSE COUNSEL]: (Continuing)--has any tendency due to the design of the highway at that point?

"[PLAINTIFF'S COUNSEL]: I restate the objection, Your Honor. It would be irrelevant and immaterial as to what [plaintiff] did [in this case].

" * * * * *

"[DEFENSE COUNSEL]: Your Honor, I haven't asked him what [plaintiff] did on that date. I'm asking him, in the position that he holds, the purpose of the traffic engineer, * * * is to notice exactly this type of pattern, this type of wear. This is part of the function and I think it's relevant to show how traffic flows through that area." (Emphasis added.)

The court ruled:

"The question--I haven't written down the entire question but the essence of the question is whether or not there is any tendency due to the design and the court would feel that the issue of design is relevant, so I would overrule that objection." (Emphasis added.)

In aid of the objection, plaintiff's counsel then asked the witness several questions and renewed the objection, on the ground that the challenged question sought evidence of

"a general tendency of drivers on curves and highways in this state to tend to turn, to cut on the inside of the curves and cut the corner. That has no probative value. * * * We're talking about [plaintiff's] particular manner of driving[,] not the general tendency that Oregonians in general [have] to cut corners * * *."

The trial court stated:

"I will limit the issue only to the design, which was the original question. So the original question can be answered." (Emphasis added.)

The challenged question solicited information about the typical movements of vehicles traveling in the same direction as plaintiff was traveling, over the same section of highway where the collision occurred, that resulted from the physical configuration of the highway in that area. The question did not seek evidence of other drivers' supposed negligence to prove plaintiff's negligence; rather, it sought evidence about the manner in which physical properties of the highway affected vehicles. The question sought evidence that was relevant, under OEC 401, to the issue of what caused the collision. The trial court did not err in overruling plaintiff's relevance objection to the challenged question.

Plaintiff also argues that the trial court abused its discretion in allowing the witness to answer the challenged question because, even if the evidence sought by that question was relevant, its probative value was substantially outweighed by the danger of unfair prejudice. See OEC 403 (providing in part that, "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice"). ...