Holbrook v. Precision Helicopters, Inc.

• Decision Date: 15 September 1999
• Citation: 986 P.2d 646,162 Or. App. 538
• Parties: William HOLBROOK and Linda Holbrook, dba Grand and Noble, a Partnership, Respondents, Larry Hilton, Intervenor-Respondent, v. PRECISION HELICOPTERS, INC., Appellant. Precision Helicopters, Inc., Third-Party Plaintiff, v. Gowan Company, L.L.C., Third-Party Defendant.
• Court: Oregon Court of Appeals

986 P.2d 646

162 Or. App. 538

William HOLBROOK and Linda Holbrook, dba Grand and Noble, a Partnership, Respondents, Larry Hilton, Intervenor-Respondent, v. PRECISION HELICOPTERS, INC., Appellant.

Precision Helicopters, Inc., Third-Party Plaintiff, v. Gowan Company, L.L.C., Third-Party Defendant.

(C960901CV; CA A101002)

Court of Appeals of Oregon.

Argued and Submitted March 8, 1999.

Decided September 15, 1999.

Robert J. Ericsson, Portland, argued the cause for appellant. With him on the brief was Ericsson Ridgeway, P.C.

Patty Rissberger, Portland, argued the cause for respondents. On the brief were Leonard D. DuBoff and DuBoff & Ross.

Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, Philip Schradle, Assistant Attorney General, and Janet L. Prewitt, Assistant Attorney General, filed a brief amicus curiae for Oregon Department of Agriculture.

Before LANDAU, Presiding Judge, and LINDER and BREWER, Judges.

LINDER, J.

Defendant, Precision Helicopters, Inc., appeals from a judgment entered in favor of plaintiffs in this action for damages incurred when defendant sprayed plaintiffs' Christmas tree crop with a pesticide. Defendant's primary assignment of error challenges the trial court's conclusion that ORS 634.172(3) does not prohibit the admission of evidence regarding the Oregon Department of Agriculture's (ODA) determination of the source and cause of crop damage. For reasons that follow, we affirm.

In the spring of 1996, plaintiffs' crop of 28,000 trees became infested with aphids. Plaintiffs hired defendant, a helicopter crop-dusting service, to spray the crop aerially with an insecticide. Shortly after being sprayed, the trees began to show signs of damage that followed the swath pattern of the spray. Plaintiffs brought this negligence action against defendants, contending that the chemical mixture used to spray the trees was contaminated. At trial, plaintiffs proffered ODA laboratory reports as evidence and elicited testimony from an ODA investigator regarding the cause and source of the damage to the trees. Defendant objected, arguing that the reports and the investigator's testimony are inadmissible because the ODA is prohibited by ORS 634.172(3) from delving into the source and cause of damage in its investigations.¹

The trial court overruled defendant's objections, concluding that ORS 634.172(3) does not limit the use of ODA investigator testimony or reports as evidence in civil actions. Defendant assigns error to those rulings, arguing that, because ORS 634.172(3) provides that the ODA may not determine the source or cause of damage, ODA investigators are prohibited from testifying regarding the source or cause of damage.² For the same reason, defendant asserts that the ODA's laboratory reports are inadmissible. We review the trial court's interpretation of ORS 634.172(3) for errors of law. As with any issue of statutory interpretation, we begin by examining the statute's text and context. PGE v. Bureau of Labor and Industries, 317 Or. 606, 611, 859 P.2d 1143 (1993).

ORS 634.172(3) is part of an extensive scheme of pesticide regulation, known as the State Pesticide Control Act. ORS ch 634. The ODA's charge is broad and includes registering pesticides, licensing persons for pesticide application, and regulating pesticide use in restricted and protected areas. See ORS 634.016 to ORS 634.042 (registration, labeling, and use); ORS 634.106 to ORS 634.146 (licensing and certification); ORS 634.206 to ORS 634.242 (protected and restricted areas). The duty of enforcing the act also is relegated to the ODA. See ORS 634.322 (enforcement) and ORS 634.900 (penalties). As part of that function, the ODA is authorized to conduct investigations. See generally ORS 561.275 (ODA may inspect licensees' premises); ORS 561.279 (ODA may exercise subpoena power in its investigations, audits, and hearings).

The ODA also serves as a monitor and mediator of private disputes over damage caused by pesticide applications. Before bringing an action based on damage caused in the application of a pesticide, the plaintiff must timely file a report of loss with the ODA and provide notice to the party who allegedly caused the damage. ORS 12.272(1) and ORS 634.172(1). After receiving a report of loss, the ODA "may investigate, examine and determine the extent and nature of the damage alleged to have been caused to property or crops." The ODA is instructed, however, that in the course of such an investigation it "shall not determine the source of the damage, the person who may have caused the damage or the financial extent of the loss or damage." ORS 634.172(3)(a) (emphasis added).

Assuming that ORS 634.172(3) applies to the facts of this case,³ that statute does not prevent plaintiffs from presenting evidence of the ODA's findings on the source and cause of damage. Nor does the statute purport in any other way to be a rule of evidence that applies in civil cases between private parties. Nothing in the language or context of ORS 634.172(3) can plausibly be read to call for an across-the-board prohibition on the use of the ODA's investigatory conclusions as evidence in civil actions. In similar statutory schemes, the legislature has declared expressly that certain accident reports are inadmissible. See, e.g., ORS 654.720 (public utility accident reports may not "be used as evidence in any action for damages in any suit or action arising out of any matter mentioned in the report"); ORS 830.490(3) ("[n]o such report [of the State Marine Board] shall be used as evidence in any trial, civil or criminal, arising out of an accident"). That fact supports our construction of ORS 634.172(3) by demonstrating that the legislature knows how to provide for evidentiary limitations when it intends them. For us to graft a similar evidentiary exclusion onto this statute would violate the rule that, in construing statutes, we are "not to insert what has been omitted, or to omit what has been inserted." ORS 174.010.

The cases that defendant relies on are inapposite because they involve statutes or regulations that expressly limit the evidentiary use of investigatory reports or findings in specified proceedings. In Carlson v. Piper Aircraft Corp., 57 Or.App. 695, 703-05, 646 P.2d 43, rev. den. 293 Or. 801, 653 P.2d 999(1982), for example, we concluded that a National Transportation Safety Board (NTSB) investigator could not testify regarding the cause of the mid-air breakup of an airplane. We based our decision on an NTSB regulation that expressly prohibited NTSB employees from giving opinion testimony concerning the cause of accidents. Id. at 703 n. 8, 646 P.2d 43 (quoting 49 CFR § 835.3); see also Swett v. Schenk, 792 F.2d 1447, 1451 (9th Cir.1986) (outlining NTSB statutory and regulatory framework). That regulation extended statutory prohibitions on the use of NTSB accident reports as evidence in suits arising out of accidents under investigation. See id.; see also Huber v. United States, 838 F.2d 398, 401-02 (9th Cir.1988) (Coast Guard reports inadmissible in negligence action under regulation precluding their use to fix civil responsibility). As already acknowledged, ORS 634.172(3) simply does not contain an express or other textual or contextual basis to limit the use of ODA investigatory findings as evidence. Defendant's argument reduces to an invitation to imply an evidentiary limitation for policy reasons in the guise of statutory interpretation. The trial court properly concluded that ORS 634.172(3) does not require that the reports or the investigator's testimony be excluded.

Defendant also assigns error to the admission of the laboratory reports over its hearsay objection. The trial court concluded that the reports fell under the "business record" exception to the hearsay rule. OEC 803(6). Defendant asserts that plaintiff failed to establish the requisite foundation for admission of the reports because "[n]o one with personal knowledge testified as to how the laboratory work was done nor how the report was prepared." Defendant misunderstands the requirements for establishing a business record. A "business record" includes:

"A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the * * * report, * * * all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method of circumstances of preparation indicate lack of trustworthiness. The term `business' as used in this subsection includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit."

OEC 803(6) (emphasis added). The rule requires that the record be made by a "person with knowledge" but does not require the authenticating witness to be the same person who made the record. On appeal, defendant does not argue that the witness was otherwise unqualified.⁴ The trial court did not err in admitting the evidence over defendant's hearsay objection.⁵ In its six remaining assignments of error, defendant raises various challenges to the trial court's award of damages. On each of those claims of error, defendant fails to set forth sufficient portions of the record to demonstrate that error was adequately raised and preserved below. Failing to demonstrate that error is preserved violates ORAP 5.45. See Don't Waste Oregon Com. v. Energy Facility Siting, 320 Or. 132, 150, 881 P.2d 119 (1994). We are not obligated to take it upon ourselves to review the record to find that matters assigned as error are preserved and may instead decline consideration of those assignments. ORAP 5.45(3). We have, nevertheless, reviewed the record in the course of deciding the other...