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

848 P.2d 104, 118 Or. App. 320, 1993 Ore. App. LEXIS 199
CourtCourt of Appeals of Oregon
DecidedFebruary 24, 1993
DocketCV89-0356; CA A68424
StatusPublished
Cited by7 cases

This text of 848 P.2d 104 (Dyer v. R. E. Christiansen Trucking, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dyer v. R. E. Christiansen Trucking, Inc., 848 P.2d 104, 118 Or. App. 320, 1993 Ore. App. LEXIS 199 (Or. Ct. App. 1993).

Opinions

[322]*322RIGGS, J.

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

Plaintiffs first two assignments of error are related, and we analyze them together. She argues that the trial court [323]*323erred 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 P2d 638 (1969); Hass v. Port of Portland, 112 Or App 308, 314, 829 P2d 1008, rev den 314 Or 391 (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 P2d 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 [324]*324prior conduct or events maybe admissible to prove causation, danger, knowledge or intent,4 the line between causation and plaintiffs 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 P2d 43, rev den 293 Or 801 (1982), and Chance v. Ringling Bros., 257 Or 319,478 P2d 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 break-up 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. 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.

[325]*325The 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 P2d 1276 (1972); Savage Am’x v. Palmer, 204 Or 257, 280 P2d 982 (1955); Southern Pacific Co. v. Consolidated Freightways, Inc., 203 Or 657, 281 P2d 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; Hass v. Port of Portland, supra, 112 Or App at 314. We discuss plaintiffs 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.

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Dyer v. R. E. Christiansen Trucking, Inc.
848 P.2d 104 (Court of Appeals of Oregon, 1993)

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Bluebook (online)
848 P.2d 104, 118 Or. App. 320, 1993 Ore. App. LEXIS 199, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dyer-v-r-e-christiansen-trucking-inc-orctapp-1993.