Ostrander v. Alliance Corp.

• Decision Date: 08 May 2002
• Citation: 45 P.3d 1031,181 Or. App. 283
• Parties: Kenneth M. OSTRANDER, Respondent, v. ALLIANCE CORPORATION, an Oregon corporation, Appellant.
• Court: Oregon Court of Appeals

45 P.3d 1031

181 Or. App. 283

Kenneth M. OSTRANDER, Respondent, v. ALLIANCE CORPORATION, an Oregon corporation, Appellant.

9809-06885; A110739.

Court of Appeals of Oregon.

Argued and Submitted December 6, 2001.

Decided May 8, 2002.

James M. Callahan, Portland, argued the cause for appellant. With him on the briefs was Callahan & Shears, P.C. Rick Klingbeil, Portland, argued the cause for respondent. With him on the brief was Jolles & Bernstein, P.C.

Before EDMONDS, Presiding Judge, and ARMSTRONG and KISTLER, Judges.

EDMONDS, P.J.

Defendant Alliance Corporation, a road construction company, appeals from a judgment in favor of plaintiff in this civil negligence case. A jury found defendant liable for plaintiff's injuries, which occurred when plaintiff, while riding his motorcycle, drove over a steel plate in the road that had been installed by defendant and fell. Defendant contends that the trial court erred in four particulars and that we should reverse the judgment and remand for a new trial. We reverse and remand.

In the fall of 1996, defendant was hired by the City of Portland to assist with a sewer excavation project at the intersection of NE Portland Highway and NE Cully Street. Defendant had several crews working at the site and was using several white Ford pickup trucks as part of the project. Because of the demands at rush hour for use of lanes of the highway, the city imposed a daily 4:00 p.m. deadline, at which time all of defendant's equipment and crews had to be finished working and removed from the site.

Part of defendant's work required cutting trenches across the street. On the day of the accident, the job required defendant's employees to cut the trench, do sewer work, cover the trench with steel plates, install "cold patch" asphalt around the edges of the plates, perform dust containment measures, and then leave the work site by the deadline. A city inspector confirmed in his daily log that the work site was cleared on time, and he also left the site before 5:00 p.m.

At approximately 5:20 p.m., plaintiff rode into the construction area on his Honda Goldwing motorcycle in a line of heavy traffic. A white Ford pickup with construction equipment in it was stopped in the left lane of the street at the construction site. The cars in the line of traffic were braking suddenly and merging into the right lane to avoid running into the back of the pickup. As plaintiff followed the car in front of him, he lost control of his motorcycle as he crossed over the plates and fell. Several other motorists saw the white pickup, the traffic stopping suddenly, and plaintiff's accident. However, no witness saw any person associated with the white pickup, nor could any witness identify the license plate number of the vehicle. Plaintiff sustained serious injuries to his knee and leg. Police officers and paramedics were called to the scene of the accident, but by the time they arrived, the white pickup was gone.

Plaintiff was admitted to the hospital. On his admission chart, West, a nurse, wrote a note to the effect that she smelled the strong odor of alcohol "by-products" on plaintiff's breath. No doctor or other emergency personnel made such an observation. After x-rays were taken and before plaintiff was sedated, he saw his wife, who had just arrived at the hospital. He told her that all he could remember about the accident was seeing "something off the ground four to five inches." At trial, plaintiff testified that he remembered nothing about the accident. In response to her conversation with plaintiff at the hospital, plaintiff's wife went to the accident scene the next morning. She testified at trial that she observed that the edges of the steel plates near the intersection were "bouncing" up in response to the traffic crossing over them. She took pictures of the plates before defendant's crew arrived to begin work.

As a result of the accident, plaintiff brought this action against defendant, alleging negligence in four particulars: (1) the failure properly to place and secure the steel plates in place; (2) the failure properly to place signs and barricades around the white pickup truck in compliance with the Manual of Uniform Traffic Devices; (3) the failure to post warnings concerning the steel plate; and (4) the failure to undertake dust control measures to ensure that the steel plates would not become slick. Defendant, in its answer, denied that the white truck belonged to it. It also claimed that plaintiff was negligent in failing to maintain a proper lookout, in failing to maintain control, in failing to maintain a reasonable rate of speed, and in operating the motorcycle under the influence of intoxicants. Before trial, plaintiff moved to exclude the evidence of West's chart note and her testimony, claiming that he had consumed only one 12-ounce beer two hours before the accident and that admission of that evidence would be unfairly prejudicial. The trial court deferred its ruling until trial.

When plaintiff's wife testified at trial, she was asked about her conversation with plaintiff at the hospital. Defendant objected on the basis of hearsay, but the trial court overruled defendant's objection. Plaintiff's wife then testified before the jury that plaintiff told her that "he'd seen something off the ground four to five inches" when she first saw him at the hospital. Before plaintiff rested his case-in-chief, the trial court held a hearing out of the presence of the jury regarding the admissibility of the evidence of the odor of alcohol on plaintiff's breath when he arrived at the hospital. The parties initially contemplated stipulating to West's testimony, and defendant was prepared to offer the stipulation and the chart note as defendant's offer of proof. The trial court then asked whether plaintiff should have a chance to cross-examine West, and the parties agreed to have West testify as part of the offer of proof. West was not immediately available. Plaintiff offered evidence out of the presence of the jury that he believed negated the relevance of West's chart note. That evidence consisted of testimony from Dr. Grossman and the investigating officer, and it tended to show that one beer could not have impaired plaintiff. After the trial court heard plaintiff's evidence, it made a preliminary ruling sustaining plaintiff's objection to defendant's evidence of an odor of alcohol on plaintiff's breath. When West was available to testify, defendant offered West's testimony and her chart note as part of the offer of proof. West identified her chart note and testified as to her observations about the odor on plaintiff's breath. The trial court ultimately ruled,

"There needs to be other evidence beyond what this woman testified to, to introduce alcohol into this case. If there's going to be evidence from some bartender that the guy had three or four or five beers, or where he came from directly before the accident, or if there had been evidence of a witness saying he was fishtailing down the street, and not paying attention or whatever. But there isn't any of that. There's some subjective appraisal about the strength of an odor, which is far outweighed by any—by the prejudicial introduction into this case of alcohol, even if it is probative in any way, which I find [it is] not. But even if it could be argued to be probative in any way, it's just outweighed by the prejudicial effect. Unless you can do better than that with evidence of alcohol, [defense counsel], this witness's testimony would be excluded."

Plaintiff rested. At the close of plaintiff's case-in-chief, defendant moved for a directed verdict as to the allegation of the alleged failure to place signs around the white truck, arguing that plaintiff had not produced sufficient evidence to allow the jury reasonably to infer that the white truck belonged to defendant. The court denied that motion. Defendant also asked the court to direct a verdict as to the allegation regarding dust control measures. The court allowed that motion. Finally, defendant moved for a directed verdict as to the allegation that its failure to place "obstruction ahead" signs on the road before the steel plates was a violation of the Manual of Uniform Traffic Control Devices. The court denied that motion. Defendant then put on its case-in-chief. The jury found defendant 51% at fault and plaintiff 49% at fault. Defendant appeals from the resulting judgment that awarded damages to plaintiff.

Defendant first argues that the trial court erred in allowing the specification of negligence involving the lack of precautions surrounding the white pickup truck to go to the jury. It argues that the jury could not reasonably have inferred from the evidence that the truck belonged to it. That allegation of negligence was sufficient to go to the jury if, by giving plaintiff the benefit of all reasonable inferences that can be drawn from the evidence, a factfinder could reasonably infer that the truck belonged to defendant. See, e.g., Fieux v. Cardiovascular and Thoracic Clinic, P.C., 159 Or.App. 637, 646, 978 P.2d 429, rev. den. 329 Or. 318, 994 P.2d 123 (1999).

We find instructive what the Supreme Court said in administrative context in City of Roseburg v. Roseburg City Firefighters, 292 Or. 266, 271-72, 639 P.2d 90 (1981). There, the court explained:

"An inference has two parts: a primary fact plus a deduction. The evidence directly establishes only the truth of the primary fact or facts from which an inference may be derived * * *. Rational bases may exist for more than one inference to be drawn from the same primary fact, and the factfinder * * * has the task to decide which one to draw. The court does not substitute its judgment as to which inference should be drawn, but it must review for the existence of a rationale."

In this case, the jury could properly infer from the evidence that plaintiff carried his burden of persuasion that the white truck belonged to defen...