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

• Decision Date: 24 February 1993
• Citation: 118 Or.App. 320,848 P.2d 104
• Parties: Joan DYER, Appellant, v. R.E. CHRISTIANSEN TRUCKING, INC., an Oregon corporation, and Elbert Jay Price, Respondents. CV89-0356; CA A68424.
• Court: Oregon Court of Appeals

Page 104

848 P.2d 104

118 Or.App. 320

Joan DYER, Appellant, v. R.E. CHRISTIANSEN TRUCKING, INC., an Oregon corporation, and Elbert Jay Price, Respondents.

CV89-0356; CA A68424.

Court of Appeals of Oregon.

Argued and Submitted March 20, 1992.

Decided Feb. 24, 1993.

Douglas G. Schaller, Eugene, argued the cause for appellant. On the briefs were Arthur C. Johnson, Don Corson and Johnson, Clifton, Larson & Bolin, Eugene.

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

Before WARREN, P.J., and RIGGS and EDMONDS, JJ.

RIGGS, Judge.

In this personal injury case arising out of a car-truck collision, plaintiff appeals from a judgment on a jury verdict for defendants. ¹ She assigns error to several of the trial court's evidentiary rulings and to its jury instructions. We reverse and remand.

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 plaintiff's left and to Price's right. Price testified that, as the cab of his truck passed plaintiff's 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 plaintiff's car in a wreck on her side of the road. His pup trailer had lost its rear wheels and was dragging on the ground. Plaintiff was severely injured and does not remember the collision. There were no other witnesses. Plaintiff's 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. ²

Plaintiff's first two assignments of error are related, and we analyze them together. She argues that the trial court erred in allowing defendants' expert witness, Weaver, to testify that drivers generally tend to cut corners and that drivers generally tend to cut the particular corner where the collision occurred. Specifically, plaintiff argues that the general tendency testimony is irrelevant to prove what she did at the time of the collision. ³ Defendants counter that the general tendency testimony is relevant to causation, because it concerns the effect of highway design on the tendency of drivers to cut corners and supports their theory that plaintiff crossed the center line. We review rulings on relevance for errors of law. OEC 401. If we find error, we may reverse only if we find that the error affected a substantial right of the party. OEC 103(1). That test is satisfied if the result of the trial might have been different. Pearson v. Galvin, 253 Or. 331, 340, 454 P.2d 638 (1969); Hass v. Port of Portland, 112 Or.App. 308, 314, 829 P.2d 1008, rev. den. 314 Or. 391, 840 P.2d 709 (1992).

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 P.2d 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 prior conduct or events may be admissible to prove causation, danger, knowledge or intent, ⁴ the line between causation and plaintiff's possible negligence is blurred beyond distinction in this case. By trying to establish that plaintiff caused the collision, defendants are trying to establish that plaintiff crossed the center line and was negligent per se through evidence of the general tendencies of other people.

Defendants rely on Carlson v. Piper Aircraft Corp., 57 Or.App. 695, 646 P.2d 43, rev. den. 293 Or. 801, 653 P.2d 999 (1982), and Chance v. Ringling Bros., 257 Or. 319, 478 P.2d 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 breakup 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, 646 P.2d 43. 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.

The general tendency of drivers to cut corners, even this corner, is too remote to be relevant. What other drivers do at different times, locations and under different traffic and weather conditions is not probative of what plaintiff might have done at the time and place in question. See Carter v. Moberly, 263 Or. 193, 198, 501 P.2d 1276 (1972); Savage Am'x v. Palmer, 204 Or. 257, 280 P.2d 982 (1955); Southern Pacific Co. v. Consolidated Freightways, Inc., 203 Or. 657, 281 P.2d 693 (1955). ⁵ The trial court erred in allowing the general tendency testimony.

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, 454 P.2d 638; Hass v. Port of Portland, supra, 112 Or.App. at 314, 829 P.2d 1008. We discuss plaintiff's 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, 501 P.2d 1276.

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 photograph were explained to the jury. See DeMaris v. Whittier, 280 Or. 25, 569 P.2d 605 (1977). The photograph could have helped the trier of fact by illustrating the scene of the accident, the relative distances involved and the landmarks discussed by various witnesses. OEC 901. However, the photograph also depicted two vehicles at or near the corner in question, at least one of which was over the center line as it entered the corner. That particular aspect of the photograph raised the risk of unfair prejudice or misleading the jury. However, because the trial court erroneously allowed testimony concerning the general tendencies of drivers to cut corners, it did not rule on whether the risk of unfair prejudice or misleading the jury raised by that particular aspect of the photograph, whether commented on or not, outweighed its probative value. We cannot review a ruling that was not made.

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...