Dyer v. R. E. Christiansen Trucking, Inc. , 118 Or. App. 320 ( 1993 )

WARREN, P. J.,

specially concurring.

In determining whether certain evidence is admissible, the initial inquiry is whether it is “relevant.” “Relevant evidence” is “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 than it would be without the evidence.” OEC 401. The lead opinion concludes that the testimony of defendants’ expert, Weaver, concerning the general tendency of drivers to cut corners, including the corner at issue in this case, “is too remote from the case at hand to be relevant.” I agree with the dissent that that conclusion is wrong. However, I disassociate myself from the dissent’s reliance on Chance v. Ringling Bros., 257 Or 319, 478 P2d 613 (1970), and Carlson v. Piper Aircraft Corp., 57 Or App 695, 646 P2d 43, rev den 293 Or 801 (1982). As the lead opinion adequately demonstrates, neither case is apposite here. In my view, Weaver’s testimony is relevant, because it pertains to defendants’ claim that plaintiff crossed the center line and makes that fact more probable than it would be without the evidence. Weaver testified that drivers in the southbound lane had a general tendency to cut the corner at issue due to the highway design. From this testimony, it can be logically inferred that plaintiff had the same tendency to cut that corner. Although it is questionable whether drivers’ general tendency to cut corners calls for an expert’s opinion, there was no objection on that basis. See OEC 702.

While Weaver’s testimony is relevant, it does not necessarily follow that it should be admitted. Evidence should be excluded if its probative value is substantially outweighed by its prejudicial effect or other countervailing factors. OEC 403. The lead opinion holds that Weaver’s testimony is irrelevant and thus does not reach the issue under OEC 403. However, the real reason the lead opinion does not decide the OEC 403 question is that plaintiff failed to object on a basis that requires an OEC 403 analysis. 118 Or App at 323 n 3.1 disagree.

When defendants attempted to elicit testimony from Weaver concerning his observation of the traffic flow at the accident scene, plaintiff objected to it as “irrelevant” and “immaterial,” because it related to “other similar conduct and events’ ’ intended to prove negligence or lack of negligence on the occasion in question. He also objected on the ground that “it would be prejudicial.” The trial court sustained the objections. When defendants proceeded to elicit the general tendency evidence at issue, plaintiff again objected:

“Your Honor, I object on the same grounds essentially we’ve gone into before, your Honor. It’s inappropriate, improper and I object to the question as asked and ask it be stricken.” (Emphasis supplied.)

Thereafter, during in-chamber discussions and as Weaver was about to testify, plaintiff continued to object as “irrelevant and immaterial,” because

“if other people at other times cut the corner, it doesn’t mean [plaintiff] would cut the corner just because of her personality, her make up, her driving habits and practices. Nor does it tend to suggest that she would cut the corner if a truck is there * * *.

“We are talking about a particular situation where there was a truck northbound and a car southbound. The visibility is, although it’s wet, it’s been raining, the visibility by all reports is good. [Plaintiff] can see the truck. We’re talking about her particular manner of driving[,] not the general tendency [of] Oregonians in general to cut corners * *

Thus, plaintiff did initially object to Weaver’s testimony on the basis of unfair prejudice, and the trial court was aware of that. Although she later objected to it as “immaterial” or “irrelevant,” the substance of her argument was that the jury might misuse the general tendency evidence. Under the circumstances, unlike the lead opinion and the dissent, I would hold that plaintiff preserved the error below. See State v. Phillips, 314 Or 460, 466, 840 P2d 666 (1992); State v. Hitz, 307 Or 183, 188, 766 P2d 373 (1988); Carlson v. Piper Aircraft Corp., supra, 57 Or App at 700.¹

The probative value of Weaver’s testimony is slight. At most, it shows that plaintiff might have the same tendency as most people to cut corners, even the corner at issue. On the other hand, its prejudice is great. The jury, might be led to conclude, on that testimony alone, that plaintiff in fact cut the corner or crossed the center line, regardless of the actual circumstances surrounding the accident. The prejudice of that kind, although not inflammatory, is one that OEC 403 was designed to prevent. See Kirkpatrick, Oregon Evidence 127 (2d ed 1989). The prejudice is further aggravated by an aerial photograph that the trial court admitted, depicting one of two vehicles over the center line as it entered the corner. On balance, the probative value of the general tendency evidence was substantially outweighed by its unfair prejudice. The trial court should have excluded the evidence on that basis.

Another problem exists in the lead opinion. Because of its conclusion that plaintiff failed to preserve the unfair prejudice issue, the lead opinion relies on a no longer viable doctrine under OEC —“remoteness.” See Kirkpatrick, Oregon Evidence 126. “Remoteness” is a term referring to passage of time that renders certain evidence irrelevant or makes it inadmissible in the light of some countervailing concerns as expressed in OEC 403. McCormick On Evidence § 185, 775 n 10 (4th ed 1992); see also Marshall v. Martinson, 268 Or 46, 52, 518 P2d 1312 (1974); Carter v. Moberly, 263 Or 193, 200, 501 P2d 1276 (1972); State v. Robinson, 104 Or App 613, 616, 802 P2d 688 (1990). Passage of time is not a question in this case. It would be a more straightforward analysis if the lead opinion simply said that the general tendency evidence is not relevant, rather than using the remoteness doctrine to reach that result.

I would hold that the general tendency evidence is relevant but should have been excluded on the basis of unfair prejudice. I therefore concur.

1 In Carlson, testimony concerning spatial disorientation was objected to on the basis of relevancy. 57 Or App at 699. We said that, “[w]hen a relevancy objection is made, the trial court must assess the probative value of the proffered evidence and weigh it against the danger of prejudice, surprise and confusion.” 57 Or App at 700. Although that rule may be questionable, plaintiff made an objection that I believe sufficiently informed the trial judge that she should analyze the issue under OEC 403.