Gregg LAWRENCE, Petitioner on Review, υ. OREGON STATE FAIR COUNCIL, a State of Oregon public corporation, Respondent on Review.
(CC 18CV05390) (CA A172888) (SC S069473)
OREGON SUPREME COURT
February 24, 2023
370 Or 764 (2023) | 525 P3d 464
Argued and submitted December 1, 2022; decision of Court of Appeals reversed, and case remanded to Court of Appeals for further proceedings February 24, 2023
In this negligence case, defendant filed a pretrial motion to suppress evidence of another person falling in the same area and around the same time as plаintiff under
The decision of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for further proceedings.
On review from the Court of Appeals.*
Kevin T. Lafky, Lafky & Lafky, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs was James P. Francis.
Robert A. Koch, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Flynn, Chief Justice, and Duncаn, Garrett, and DeHoog, Justices, and Balmer and Walters, Senior Judges, Justices pro tempore.**
WALTERS, S. J.
The decision of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for further proceedings.
WALTERS, S.
In this negligence case, the trial court granted defendant‘s pretrial motion to exclude certain evidence. During trial, at plaintiff‘s request, the trial court reconsidered its ruling, but adhered to its decision to exclude the evidence. After a verdict for defendant, plaintiff appealed, assigning error to the trial court‘s evidentiary ruling. The Court of Appeals
FACTS AND PROCEDURAL HISTORY
Plaintiff sued the Oregon State Fair Council (defendant) for negligence, alleging that defendant had failed “to supervise and maintain its premises in a reasonably safe manner” so that guests walking on the property would not be injured. Plaintiff alleged that, as a result, the aluminum bleachers at a show that he attended with his wife and mother were wet and unsafe, causing him to fall and incur injuries.
Before trial, defendant filed a motion in limine to exclude certain evidence that it anticipated that plaintiff might offer at trial, including “any evidence or testimony concerning thе alleged slip and fall of an eight- to ten-year-old girl at or around the time of [p]laintiff‘s fall as unduly prejudicial and minimally probative.” Defendant acknowledged that that evidence would have some probative weight—“to establish that the bleachers [p]laintiff fell on were unreasonably slippery“—but argued that it would be unfairly prejudicial under
In a written response, plaintiff confirmed that he intended to testify that he had witnessed the girl fall, and cited cases for the proposition that evidence of other accidents is probative that a condition or course of action is in fact dangerous and that the defendant had notice of the dangerous condition. Plaintiff acknowledged that, to be admissible, the other accidents must have occurred under similar conditions and circumstances but argued that, in this case, that requirement was met. Plaintiff submitted that defendant‘s stated concerns about the source of the evidence—that the testimony did not come from the girl herself—did not substantially outweigh its probative value.
The court held a pretrial hearing to consider the parties’ arguments. During that hearing, defendant conceded that evidence of the girl‘s fall would become admissible if it offered evidence that no one else had fallen on the bleachers, but defendant insisted that it would not do so. With that understanding, the trial court granted defendant‘s pretrial motion to exclude evidence of the girl‘s fall, with the caveat that, “if it becomes an issue during the testimony[,] I‘ll rеconsider it.” The court also expressly stated that it “underst[ood] the [plaintiff‘s] argument and it‘s preserved.”
At trial, defendant questioned plaintiff about whether his elderly mother had experienced any difficulty navigating the bleachers. Plaintiff confirmed that she had not. Later, however, plaintiff asked the trial court to reconsider its pretrial ruling, arguing that defendant‘s line of questioning had opened the door to the evidence about the girl who had fallen at the same time and place. Defendant countered that plaintiff‘s testimony that his mother had not had difficulty navigating the bleachers was not testimony that nobody else had fallen and that it had not opened the door to testimony about the girl‘s fall. Defendant did not raise any other arguments against the admissibility of the evidence, and the trial court ruled as follows:
“So I do think that the State opened the door to a degree that[,] if there was independent evidence of that slip and fall, that the Court would consider it, likely allow it as some kind of a report, another witness who didn‘t have some self-serving interest. But I think that it lacks that piece if that is the only evidence[,] that either the family member or [plaintiff] himself would testify to it.
“I would not allow that even though I think that the State did do that[;] I don‘t think that form of evidence would be appropriate.”
Later in trial, plaintiff again asked the court to recоnsider, making the following argument:
“[P]art of my consideration *** was the lack of what you call corroborating evidence. Now, here I contend that we have three witnesses independently that will testify to this. I get that it‘s the [p]laintiff, his wife and his mother. But they‘re not impeachable for any standard reason. “*****
“*** [W]e know from [plaintiff‘s] report that *** the fair doesn‘t have a good injury reporting system.
“They didn‘t have a form. They didn‘t have a protocol. They didn‘t appear to have any way to know how to deal with this. And so when you say well, we‘d like to have corroborating evidence of the girl‘s fall, of course we would. But we do have evidence of the girl‘s fall in the form of three different witnesses’ testimony.
“And to me it would go to the weight that could be cross-examined but not to admissibility.”
Defense counsel responded with the following argument:
“Well, Your Honor, I think you‘ve already ruled and it would *** be prejudicial to change that ruling now. I didn‘t go after the issue with the mom any further. *** And for them to bring that up nоw I think is prejudicial to the defense.
“On the second point *** that the fair didn‘t take [plaintiff‘s] information down *** and then by analogy *** we don‘t know whether the girl did or not is a negative pregnant ***.
“It‘s basically putting the burden on us to prove a negative. We don‘t know, assuming this young girl really did fall, that she reported this to anybody.”
The court adhered to its ruling excluding the evidence, stating:
“The problem that I have is that these are all self-serving statements. And granted *** it isn‘t as though they are impeached. But there isn‘t any separate indicia of reliability other than [plaintiff] who *** has an interest in this matter. And his relatives coming in, wife and mom saying, ‘Yes, and this happened.’
“There‘s no way to cross-examine about what that looked like, why she f[e]ll, how that happened. And I think that the fact that there isn‘t a report *** in and of itself doesn‘t mean that there isn‘t a process.”
At the conclusion of the trial, the jury returned a verdict for defendant, and the trial court entered judgment in defendant‘s favor.
Plaintiff appealed, assigning error to the trial court‘s ruling excluding evidence of the girl‘s fall. Plaintiff argued, as he had in his written response to defendant‘s pretrial motion, that that evidence was admissible because it was probative and not unfairly prejudicial. In its answering brief, defendant expressly agreed that the issue was preserved and argued against plaintiff‘s assignment of error on its merits. Defendant argued that the evidence of the girl‘s fall was only minimally probative because it was vague, did not establish that defendant had notice of a dangerous condition, and derived from an unverifiable source (plaintiff‘s self-serving testimony). Defendant took the position that, if the evidence had any probative value, that value was substantially outweighed by the risk of unfair prejudice. Defendant offered no basis for exclusion of the contested evidenсe other than
In a written opinion, the Court of Appeals determined that plaintiff had failed to preserve the issue that he had raised on appeal. The court described the trial court‘s ruling as noting that defendant had opened the door but excluding the evidence because the “form of the evidence,” testimony by witnesses with a “self-serving interest,” was not appropriate. Lawrence v. Oregon State Fair Council, 318 Or App 766, 770, 508 P3d 42 (2022). The Court of Appeals noted that “[p]laintiff did not objеct to the [trial] court‘s conclusion or offer any argument as to why the ‘form of evidence’ was appropriate and the evidence was admissible,” further explaining:
“It may be that the parties were caught off guard by the trial court‘s ruling, given that no party had addressed the form of the evidence (and its apparent self-serving nature) as a reason to admit or exclude the evidence. But it was nevertheless incumbent upon plaintiff to рreserve any arguments that he had about why that ruling was wrong. If plaintiff believed, as he contends
on appeal, that the court erroneously excluded the evidence based on improper balancing under OEC 403 , plaintiff needed to point out that error to the court, thereby giving the court the opportunity to correct the error if necessary and to create a record as to the court‘sOEC 403 assessment, if indeed that was the basis for the court‘s exclusion of the evidence.”
Id. at 770-71. The court affirmed the trial court‘s decision, and plaintiff petitioned this court for review. We allowed review to address the Court of Appeals’ preservation analysis.
ANALYSIS
In the Court of Appeals, plaintiff assigned error to the trial court‘s exclusion of evidence of a girl‘s fall, at the same time and place as his own fall, after defendant opened the door to such evidence. Although defendant did not question preservation in the Court of Appeals, it does so here. Defendant cites State v. Wyatt, 331 Or 335, 343, 15 P3d 22 (2000), for the proposition that, in general, “a party must provide the trial court with an explanation of his or her objection that is specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted.” Defеndant reasons that the specific evidentiary basis for the trial court‘s ruling excluding evidence of the girl‘s fall was unclear, submits that the trial court arguably excluded the proffered testimony for lack of personal knowledge under
We begin our analysis by reviеwing the differing roles that parties have when a party moves to exclude evidence, objecting to its admissibility. The party seeking the exclusion of the evidence bears the burden of identifying the challenged evidence and stating a legal basis for its exclusion. See id. (party objecting to evidence generally must make a timely objection to its admission and state the evidentiary basis for its objection);
In applying those general preservation rules here, it is evident that both parties proceeded as the rules require. Defendant timely filed its pretrial motion to exclude evidence of a girl‘s fall. Defendant cited
During trial, when plaintiff asked the court to reconsider its pretrial ruling on the basis that defendant had opened the door to its admission, defendant apparently stood on its prior motion, objection, and argument. Defendant argued that it had not opened the door but did not voice a new objection to the admission of the evidence or a new basis for its exclusion. When plaintiff later repeated his request for reconsideration, defendant again did no more than note that the girl‘s identity was unknown and that the fact of her fall was contested, stating, “We don‘t know, assuming this young girl really did fall, that she reported this to anybody.” The trial court again considered the arguments of both parties and adhered to its prior decision to exclude the challenged evidence.
Whether the court was correct in doing so depends, of course, on the basis for the trial court‘s ruling. Pretrial, defendant cited
But, even if we were to understand the trial court as expressing a new and different reason for excluding the evidence, we would conclude, for two independent reasons, that plaintiff met his obligation to preserve his challenge to the trial court‘s ruling. First, it was defendant, not plaintiff, that moved to exclude the challenged evidence and that sought affirmance of the trial court‘s ruling granting that motion. If defendant believed that the trial court had a legal basis for that ruling other than
Second, even if we were to take the view that, when the trial court explained its adherence to its decision excluding the challenged evidence, plaintiff was required to address the court‘s statements, we would conclude that plaintiff did what was necessary to preserve the issue. After the court stated that defendant had opened the door to “independent evidence” but not “self-serving” testimony, plaintiff again raised the issue of the admissibility of the evidence with the court, pointing to the court‘s concern about “the lack of what you call corroborating evidence.” Plaintiff argued that the witnesses who would testify were “not impeachable for any standard reason,” and that their interest and the lack of corroboration would impact the evidence‘s “weight and not admissibility.”
It is telling that, having successfully made an argument for excluding evidence of the girl‘s fall under
Thus, on the issue of preservation, we disagree with the Court of Appeals. We presume that the trial court excluded the evidence of a girl‘s fall based on the argument that defendant made—that the court should exclude the evidence under
trial court‘s statements, and defendant was not “ambushed or misled or denied an opportunity” to meet that response. State v. Hitz, 307 Or 183, 189, 766 P2d 373 (1988). On the issue of whether the triаl court was correct in excluding the challenged evidence, we remand this case to the Court of Appeals to allow it to consider that issue on the merits.
The decision of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for further proceedings.
WALTERS, S. J.