YOUNG, J.
This is a wrongful death action arising out of the mid-air breakup of a single engine airplane during a flight from Martha Lake, Washington, toward Portland during the afternoon of October 13, 1973. Plaintiff is the personal representative of the estate of her husband, James, who was the pilot and sole occupant of the airplane. Plaintiffs seventh amended complaint alleged a cause of action for strict product liability against defendant Piper Aircraft Corporation for design defects and a negligence cause of action against Pacific Northwest Aviation, Inc., dba Hillsboro Aviation Company, for negligence in repair. Defendants contend that the accident was the result of the pilot experiencing spatial disorientation that caused him to overstress the airplane during flight. The jury returned a verdict in favor of both defendants, and plaintiff appeals. We affirm.
Plaintiff first assigns error to the reinstruction of the jury. She contends that the submission of copies of written instructions to the jury during its deliberations constituted error, because the submitted instructions did not include instructions on defendants’ standard of care. Plaintiff objected to the failure to so instruct by moving for a new trial after judgment. Plaintiff had submitted proposed written instructions on defendants’ standards of care. The trial judge rejected those instructions in his original charge to the jury. Instead, the judge summarized in his own words the law on the standard of care. Plaintiff does not assign error to any of the original instructions given or to the original failure to give the requested instructions.
Following an intervening weekend and one day of deliberation, the jury requested copies of the trial court’s instructions. The judge told the jury that he could provide them with copies of the written instructions concerning the issues of negligence and strict liability. Counsel approved the submission of the written instructions to the jury, and the judge submitted them.
Plaintiff argues that the court should have included with the submitted instructions her requested written instructions on the standard of care which the trial judge had earlier rejected. She knew at the time the written instructions were submitted in response to the jury’s request that her requested instructions had been rejected.
However, she did not request that her rejected instructions be submitted. Plaintiff knew that the trial judge, by paraphrasing, had earlier instructed on the standards of care and that those paraphrased instructions were not in writing. In short, plaintiff agreed to “whatever fashion” the trial court chose to submit the written instructions. Plaintiff had the opportunity to examine the written instructions prior to their submission but did not. It was her responsibility to call the trial court’s attention to deficiencies, if any existed, in the instructions submitted.
ORCP 59D regulates further instructions to the jury and provides, in pertinent part:
“* * * [U]pon the jury being brought .into court, the information requested, if given, shall be given either orally or in writing in the presence of, or after notice to, the parties or their counsel.”
One of the functions of the rule is to provide a party an opportunity to make a record of the rulings made by the trial court.
See Huntley v. Reed,
276 Or 591, 594, 556 P2d 122 (1976);
Oien v. Bourassa,
221 Or 359, 370, 351 P2d 703 (1960). The posture of the present case is that there is no record to review to determine what instructions were or were not submitted because those written instructions are not part of the record before us.
Plaintiff next contends that the court erred in overruling her relevancy objections to testimony of four witnesses to the effect that a non-instrument-rated pilot flying in clouds or without visual reference can become spatially disoriented and lose control of the aircraft. Plaintiff argues that the testimony concerning spatial disorientation is analogous to prior acts of negligence and is therefore too remote from the issue of the pilot’s actual conduct. In addition, plaintiff argues that, if the evidence is relevant, there was no foundation to demonstrate that previous incidents of spatial disorientation' occurred under similiar circumstances.
The decedent was a VFR
pilot with limited flying experience. Although he had received a few hours of instrument instruction, he was not licensed to fly by reference solely to instruments. The evidence was that a pilot without visual references, such as would occur when flying in clouds, may become confused and disoriented because of a loss of the visual horizon. Testimony indicated that disorientation can occur in less than 40 seconds. The sensations experienced are so intense that an inexperienced pilot
will’ disregard his instruments, believing them to be inaccurate. In short, the pilot does not know “which way is up” and may adjust the aircraft abruptly, with possibly disastrous consequences.
Given this explanation of spatial disorientation, we do not agree with plaintiffs characterization that it is evidence of other acts of negligence. Even if we were to accept that premise, our analysis is the same. The issue is the
relevancy
of evidence of spatial disorientation.
Relevant evidence is that which in some degree advances the inquiry, is probative and is therefore prima facie admissible. McCormick, Evidence 439-40, § 185 (2d ed 1972). When a relevancy objection is made, the trial court must assess the probative
value of the
proferred evidence and weigh it against the danger of prejudice, surprise and confusion. In
Carter v. Moberly,
263 Or 193, 501 P2d 1276 (1972), the court stated the rule:
“If [the trial judge] finds the evidence to have no probative value, he must exclude it. If, on the other hand, it does tend to establish a fact in issue, and no contrary considerations are present in the particular case, the evidence must be admitted. Between these two extremes, however, is an area in which further judgment must be exercised. If the evidence has some probative value, but also presents difficulties such as [undue prejudice, consumption of undue time, or unfair suprise,] the judge must determine whether the value of the evidence outweighs, or is outweighed by, the offsetting considerations. We sometimes call the exercise of this kind of judgment ‘discretion.’ Its exercise requires the judge to weigh the value of the evidence in light of all the circumstances of the particular case, and his conclusion, if it is reasonable, will not be disturbed on appeal. Precedent is of little value in reviewing such cases, because even when cases involve similar issues and similar types of evidence, the other factors which may properly influence the trial court’s ruling are highly variable. We simply determine whether, on the facts of the particular case, the trial court’s ruling was within the reasonable or permissible range.
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YOUNG, J.
This is a wrongful death action arising out of the mid-air breakup of a single engine airplane during a flight from Martha Lake, Washington, toward Portland during the afternoon of October 13, 1973. Plaintiff is the personal representative of the estate of her husband, James, who was the pilot and sole occupant of the airplane. Plaintiffs seventh amended complaint alleged a cause of action for strict product liability against defendant Piper Aircraft Corporation for design defects and a negligence cause of action against Pacific Northwest Aviation, Inc., dba Hillsboro Aviation Company, for negligence in repair. Defendants contend that the accident was the result of the pilot experiencing spatial disorientation that caused him to overstress the airplane during flight. The jury returned a verdict in favor of both defendants, and plaintiff appeals. We affirm.
Plaintiff first assigns error to the reinstruction of the jury. She contends that the submission of copies of written instructions to the jury during its deliberations constituted error, because the submitted instructions did not include instructions on defendants’ standard of care. Plaintiff objected to the failure to so instruct by moving for a new trial after judgment. Plaintiff had submitted proposed written instructions on defendants’ standards of care. The trial judge rejected those instructions in his original charge to the jury. Instead, the judge summarized in his own words the law on the standard of care. Plaintiff does not assign error to any of the original instructions given or to the original failure to give the requested instructions.
Following an intervening weekend and one day of deliberation, the jury requested copies of the trial court’s instructions. The judge told the jury that he could provide them with copies of the written instructions concerning the issues of negligence and strict liability. Counsel approved the submission of the written instructions to the jury, and the judge submitted them.
Plaintiff argues that the court should have included with the submitted instructions her requested written instructions on the standard of care which the trial judge had earlier rejected. She knew at the time the written instructions were submitted in response to the jury’s request that her requested instructions had been rejected.
However, she did not request that her rejected instructions be submitted. Plaintiff knew that the trial judge, by paraphrasing, had earlier instructed on the standards of care and that those paraphrased instructions were not in writing. In short, plaintiff agreed to “whatever fashion” the trial court chose to submit the written instructions. Plaintiff had the opportunity to examine the written instructions prior to their submission but did not. It was her responsibility to call the trial court’s attention to deficiencies, if any existed, in the instructions submitted.
ORCP 59D regulates further instructions to the jury and provides, in pertinent part:
“* * * [U]pon the jury being brought .into court, the information requested, if given, shall be given either orally or in writing in the presence of, or after notice to, the parties or their counsel.”
One of the functions of the rule is to provide a party an opportunity to make a record of the rulings made by the trial court.
See Huntley v. Reed,
276 Or 591, 594, 556 P2d 122 (1976);
Oien v. Bourassa,
221 Or 359, 370, 351 P2d 703 (1960). The posture of the present case is that there is no record to review to determine what instructions were or were not submitted because those written instructions are not part of the record before us.
Plaintiff next contends that the court erred in overruling her relevancy objections to testimony of four witnesses to the effect that a non-instrument-rated pilot flying in clouds or without visual reference can become spatially disoriented and lose control of the aircraft. Plaintiff argues that the testimony concerning spatial disorientation is analogous to prior acts of negligence and is therefore too remote from the issue of the pilot’s actual conduct. In addition, plaintiff argues that, if the evidence is relevant, there was no foundation to demonstrate that previous incidents of spatial disorientation' occurred under similiar circumstances.
The decedent was a VFR
pilot with limited flying experience. Although he had received a few hours of instrument instruction, he was not licensed to fly by reference solely to instruments. The evidence was that a pilot without visual references, such as would occur when flying in clouds, may become confused and disoriented because of a loss of the visual horizon. Testimony indicated that disorientation can occur in less than 40 seconds. The sensations experienced are so intense that an inexperienced pilot
will’ disregard his instruments, believing them to be inaccurate. In short, the pilot does not know “which way is up” and may adjust the aircraft abruptly, with possibly disastrous consequences.
Given this explanation of spatial disorientation, we do not agree with plaintiffs characterization that it is evidence of other acts of negligence. Even if we were to accept that premise, our analysis is the same. The issue is the
relevancy
of evidence of spatial disorientation.
Relevant evidence is that which in some degree advances the inquiry, is probative and is therefore prima facie admissible. McCormick, Evidence 439-40, § 185 (2d ed 1972). When a relevancy objection is made, the trial court must assess the probative
value of the
proferred evidence and weigh it against the danger of prejudice, surprise and confusion. In
Carter v. Moberly,
263 Or 193, 501 P2d 1276 (1972), the court stated the rule:
“If [the trial judge] finds the evidence to have no probative value, he must exclude it. If, on the other hand, it does tend to establish a fact in issue, and no contrary considerations are present in the particular case, the evidence must be admitted. Between these two extremes, however, is an area in which further judgment must be exercised. If the evidence has some probative value, but also presents difficulties such as [undue prejudice, consumption of undue time, or unfair suprise,] the judge must determine whether the value of the evidence outweighs, or is outweighed by, the offsetting considerations. We sometimes call the exercise of this kind of judgment ‘discretion.’ Its exercise requires the judge to weigh the value of the evidence in light of all the circumstances of the particular case, and his conclusion, if it is reasonable, will not be disturbed on appeal. Precedent is of little value in reviewing such cases, because even when cases involve similar issues and similar types of evidence, the other factors which may properly influence the trial court’s ruling are highly variable. We simply determine whether, on the facts of the particular case, the trial court’s ruling was within the reasonable or permissible range. We need not determine whether his ruling was the only one possible. It may be that the record will support either admission or exclusion; if so, the trial court’s ruling will be affirmed, regardless of which solution we would prefer.” (Footnote omitted.) 263 Or at 200-01.
The question is whether the phenomenon of spatial disorientation is sufficiently probative on the issue of causation to be relevant and admissible. Plaintiff presented evidence that the break-up was the result of a design defect and inadequate and improper repair, which resulted in a high frequency oscillation of the airplane components called “flutter.” There was also evidence that overstress of the flight surfaces was the cause of the breakup. There was evidence that the decedent may have been flying in clouds and turbulent weather at the time of the accident. The conclusion sought by defendants was that the pilot had lost his visual reference in the clouds, became disoriented and overstressed the aircraft, which caused the mid-air breakup. Evidence relating to spatial disorientation tended to establish defendants’ theory of causation and was relevant.
Carter v. Moberly, supra; Byrd v. Lord Brothers,
256 Or 421, 473 P2d 1018 (1970).
The process of balancing the evidence’s probative value against prejudice, possible confusion or time consumption may be reviewed only for an abuse of discretion.
Carter v. Mobely, supra; Byrd v. Lord Brothers, supra; Trook v. Sagert,
171 Or 680, 138 P2d 900 (1943). Furthermore, the latitude granted the trial judge in making that decision is broad in complex cases.
Carter v. Moberly, supra,
263 Or at 202. The complexity of this case is evident: The trial lasted two weeks, producing 43 witnesses, 60 exhibits, and over 2,100 pages of testimony. Aircraft design and operation are beyond the knowledge of most laypersons. The trial judge found the phenomenon of spatial disorientation to be a “fact of life”
that could shed some light on the cause of the accident. He decided that the probative value of the evidence outweighed other considerations. The trial judge was within his discretion in admitting the evidence.
Plaintiff next assigns as error the trial court’s failure to sustain objections to the qualification of a witness to testify concerning the loads and stresses on aircraft. Again, that is a matter within the trial court’s discretion, reviewable only for abuse.
Yundt v. D & D Bowl, Inc.,
259 Or 247, 486 P2d 553 (1971);
Kimball v. Little River Lumber,
44 Or App 497, 606 P2d 660,
rev den
289 Or 155 (1980). The witness had been a pilot since before 1940 and had logged 26,000 hours of flight time. He had witnessed first hand the result of human input on aircraft during his years of flying. The witness was asked what effect pilot over-control of an aircraft has on the loads exerted on its structure. He did not testify about the structural sufficiency of the particular aircraft but rather only about the effects of pilot overcontrol. The court found that the witness was qualified to testify. We agree.
See City of Portland v. Nudelman,
45 Or App 425, 608 P2d 1190,
rev den
289 Or 275 (1980).
Plaintiffs last claim is that the trial court erred in excluding a portion of the deposition testimony of Mr. Powers, an aircraft accident investigator for the National Transportation Safety Board (NTSB).
The testimony was:
“[Question:] My question was simply whether you found any evidence from your investigation indicative of pilot error or misoperation of the aircraft which contributed to the cause of the crash?
“[Mr. Powers:] There was none noted.
“[Question:] You don’t recall any, is that correct?
“[Mr. Powers:] Right.”
The testimony was excluded during plaintiffs case-in-chief on the ground that Powers was not shown to be qualified to express an expert opinion. After defendants rested and during rebuttal, plaintiff made an offer of proof that Powers was qualified to give an expert opinion and reoffered the testimony. The trial court denied the offer and excluded
the testimony because it was not probative of any material fact. The exchange between the court and plaintiffs counsel is set out in the margin.
Defendants objected to the testimony on the additional ground that a NTSB investigator is prohibited by federal law from giving his expert opinion on the cause of the crash.
Defendants rely upon 49 USC, § 1903(c), which provides:
“No part of any report of the Board, relating to any accident or the investigation thereof shall be admitted as evidence or used in any suit or action for damages growing out of any matter mentioned in such report or reports.”
The statute and 49 CFR § 835.3,
supra
n 8, have been interpreted by federal and state courts, which have held that federal investigators may relate factual evidence and give opinions so long as they do not testify to their own or to NTSB’s “ultimate conclusion” concerning the cause of
the accident or the negligence of the tortfeasor.
American Airlines, Inc. v. United States,
418 F2d 180, 196 (5th Cir 1969);
Kline v. Martin,
345 F Supp 31 (ED Va 1972);
Todd v. Weikle,
36 Md App 663, 376 A 2d 104 (1977).
In
Beech Aircraft Corp. v. Harvey,
(Alaska) 558 P2d 879 (1976), the question was whether the aircraft crashed because of structural fatigue or an overload. The expert opinion of a NTSB investigator was excluded because it went to the “ultimate issue” in the case. The excluded testimony was:
“Would you tell me as best you recall what the bottom fittings on the Kodiak accident case that you examined looked like?
“Well, they looked like overload.”
In
Murphy v. Colorado Aviation, Inc.,
41 Colo App 237, 588 P2d 877 (1978), the NTSB investigator was permitted to testify to factual data, weather conditions, and the difference between visual (VFR) and instrument flight ratings (IFR). He said that only an IFR pilot should fly in clouds and that in view of prevailing weather conditions, only an IFR pilot could have been flying properly at the altitude at which the crash occurred. The court held the investigator’s opinion admissible because he did not state that the accident was caused by pilot negligence.
On the basis of the limited record here, our conclusion is that the question called for and elicited an opinion on the cause of the crash which the regulation forbade the witness to give.
See Beech Aircraft Corp. v. Harvey, supra.
On the basis of the authority cited, we conclude that the testimony was property excluded.
Affirmed.