*1 Argued February 24, and submitted March reversed and remanded August petition pending reconsideration denied for review DYER,

Joan Appellant, TRUCKING, INC., R. E. CHRISTIANSEN an Oregon corporation, Jay Price, Elbert Respondents. CA A68424)

(CV89-0356; Douglas argued Eugene, appel- Schaller, G. cause Johnson, lant. On were the briefs Arthur C. Corson and Don Eugene. Clifton, Johnson, Bolin, Larson & argued Hunsaker, Portland, I. Franklin the cause for *2 respondents. Stephen- him on were With the brief Ronald G. Bailey, Pendergrass son, Bullivant, Houser, Lisa and E. Lear & Hoffman, Portland. Judge, Presiding Riggs Warren, Edmonds,

Before Judges.

RIGGS, J. specially concurring. J.,

Warren, P. dissenting.

Edmonds, J.,

RIGGS, J. out of a car-truck personal injury arising this case collision, from a on a verdict plaintiff appeals judgment jury error to several of the trial assigns for defendants.1 She and to its instructions. We evidentiary rulings jury court’s and remand. reverse 19,1988, plaintiff driving

On December her car highway County. in Douglas southbound a two-lane Price was northbound on the same road travelling Defendant ” ‘ short, trailer. in a truck with a full-size trailer and a ‘pup, rained, passed It had and the road was wet. The two vehicles at a bend the road. The bend was south of just each other left and to Price’s bridge plaintiffs right. narrow and was that, as of his passed Price testified the cab truck car, vehicle in its lane. Price testified that his proper each and, out of as he was it back gear putting gear, truck popped car in a in his mirror and saw plaintiffs he looked side-view His trailer had lost its réar wreck on her side of the road. pup Plaintiff was ground. and was on the dragging wheels not remember the collision. There injured and does severely theory witnesses. Plaintiffs collision were no other *3 into her lane as Price’s truck went swept that the trailer pup is that in the road. Defendants’ theory the bend through into the northbound lane the corner and crossed cut plaintiff verdict returned a jury general the trailer. The pup and into for defendants.2 related, of error are assignments first two

Plaintiffs that the trial court argues She together. them analyze and we 1 Trucking, Price, E. Christiansen the truck and R. the driver of Defendants are employer. Inc., corporate truck and Price’s owner of the the

2 verdict stated:

“We, jury, find: respects in negligent in or more of the claimed one Were the defendants “1. plaintiff? damage complaint to that caused plaintiffs NO”

“ANSWER: using general practice common of frustration on the We with some comment may jury accepted complex It be that as this one. cases such verdict forms that, although pup swept theory concluded trailer of the collision but plaintiffs interrogatories lane, negligent. special of were not The use defendants into concluded, who, anyone, clarify jury That as well as if at fault. what would money plaintiffs, defendants and the courts. save time and information could

323 witness, Weaver, to defendants’ erred in allowing and that generally tend to cut corners testify that drivers corner where the tend to cut the generally drivers that the argues gen- Specifically, plaintiff collision occurred. what she did prove eral is irrelevant tendency testimony the general collision.3 Defendants counter that the time of the causation, because it con- is relevant tendency of drivers tendency effect of highway design cerns the crossed their theory plaintiff to cut corners and supports for errors of We review on relevance rulings the center line. if find error, reverse we may only 401. If we find we law. OEC right party. that the error affected a substantial 103(1). might if the result of the trial That test is satisfied Galvin, have been different. Pearson v. 331, 340, 253 Or 454 Portland, Hass v. Port 308, (1969); P2d 638 of (1992). rev den P2d concerned that the testimony Defendants’ argument of on the tendencies highway design effects couched Although mischaracterizes the evidence. drivers concerned the Weaver’s design, terms of highway road, any all drivers to cut corner on tendency to cut the specific of all drivers and the general did not discuss corner where the collision occurred. Weaver that the road design except any particular aspect highway curved. vein as evidence is in same

General inad events, which is generally evidence of conduct or prior See, e.g., lack of negligence. negligence missible prove Maus, Here, Warner v. used Defendants stronger. is even against admissibility case to show that as a group tendencies of drivers the general Although the collision. and caused negligent trial, objected: At immaterial places is irrelevant and at other times and “[Wlhat traffic does * * * times at other If other probative value in this instance. and has no *4 just of her comer, cut the corner mean she would it doesn’t cut the * * * practices. other driving What up, and habits personality, her make her It has material. relevant or is not in other circumstances do at other times case.” did in this what the two drivers probative value as to no testimony was object probative value of Weaver’s Plaintiff did the testimony had objection simply that the was outweighed by prejudicial effect. Her its and not admissible. relevant therefore was not no probative value and causation, or prior maybe conduct events admissible to prove intent,4 or the line and danger, knowledge between causation beyond is blurred in plaintiffs possible negligence distinction this case. to establish that the By trying plaintiff caused collision, defendants are to establish that trying per se line crossed the center and was negligent through the evidence of tendencies of other people. Piper Corp., on Carlson v. rely Defendants Aircraft rev den 293 Or 801 P2d 43, and (1982), App Ringling Bros., Chance v. 319,478 (1970), P2d 613 to their that the support general tendency evidence argument Those little relevant. cases are of defendants. help Carlson in At issue the cause of the mid-air small We admis- break-up plane. decedent’s the upheld disorientation, sibility of expert testimony concerning spatial when the phenomenon inexperienced pilots that occurs lose horizon, clouds, visual as when so flying and become disoriented their instruments and they disregard aircraft, the “with disastrous conse- abruptly adjust possibly at The on disori- testimony spatial 699. quences.” involuntary entation concerned an reaction to particular at unfamiliar circumstances. general tendency voluntary drivers in by gen- decision issue here concerned driving law cross the center line when eral violate the circum- road, a common and familiar a bend in the through did not concern reactions stance. conditions pre- been might triggered have collision, angle as the bank time of the such sent or, corner, notably, most the weather conditions lane. on-coming of a tractor-trailer presence on Chance dis- barely merits Defendants’ reliance when case, injured In that cussion. of her argu- at her. dog lunged support defendant’s boxer knew of the vicious propensities the defendant ment that evidence present was allowed the plaintiff the dog, tend to jump people. and also to be protective boxers tend defendant’s to demonstrate admitted The evidence was dog tendencies and did not concern knowledge belonged. which the defendant class to or some other owners 1989). (2d Kirkpatrick, Oregon ed Evidence 4 See *5 general tendency corners, of drivers to cut even corner, this is too remote to be relevant. What other drivers times, do at different and locations under different traffic and probative plaintiff might weather conditions is not of what place question. have done at the time Carter See v. Moberly, (1972);Savage 193, 198, 263 Or 501 P2d 1276 Am’x (1955); Palmer, 204 257, v. 280 P2d 982 Southern Pacific Freightways, Co. 693 Inc., v. Consolidated 203 Or (1955).5 general allowing The trial court erred in tendency testimony. jury might

Because we cannot tell whether the have improperly based its verdict for defendants on the general tendency admitted evidence, because “the result might of the trial have been different” had the evidence been supra, excluded, Galvin, we reverse and remand. Pearson v. supra, Portland, 331; 253 Or at Hass v. Port at plaintiffs remaining assignments 314. We error, discuss likely because the will issues arise on remand. assignment, plaintiff argues

In her third that the allowing photo- trial court erred into evidence an aerial graph of collision, the scene of the because Weaver used the photograph to illustrate his that drivers tend to cut photograph may corner. A be excluded if its probative outweighed by danger preju- value is of unfair misleading jury. dice, confusion of the issues or OEC 403. Where the evidence is ruled relevant and the trial court has admissibility presented ruled on issues, other such as those by rulings OEC 403 or OEC we review the latter supports abuse of discretion. If the record either admission or ruling. exclusion, we must affirm the trial court’s Carter v. Moberly, supra, 263 Or at 200. argue photograph properly

Defendants that the proper admitted because a foundation laid, had been it accu- rately depicted helpful the scene ofthe collision and was to the agree proper trier of fact. We that defendants laid a founda- any changes depicted tion and that in the area as in the Moberly, supra, Supreme Carter v. Court said: negligence “[E]vidence place prove at other some time and is inadmissible to * * * negligence question on the occasion in [unless is] there sufficient evidence [negligent to indicate conduct] that the continued to the time of the acci- v. (Citations omitted.) dent.” 263 Or 198. at See DeMaris Whit- were to the photograph explained jury. tier, could photograph have the trier of fact helped by the scene of the illustrating accident, the relative distances involved and the landmarks discussed various However, witnesses. 901. the pho- also two tograph depicted vehicles or near the corner in at least one of which was over the center line as it question, That particular aspect entered the corner. of the photograph raised risk of unfair prejudice misleading jury. However, erroneously because the court allowed tes- timony concerning tendencies of drivers to cut corners, it did rule on whether the risk of unfair prejudice *6 or raised misleading jury by particular aspect of not, its whether commented on photograph, outweighed a value. We cannot review that was not probative ruling made. error, assignment

In her of plaintiff argues fourth that, in in that the trial court erred Weaver to allowing testify drivers, his based on the tendencies of opinion, plain- the corner and with defendants’ tiff must have cut collided lane. Plaintiff does not argue in the trailer northbound pup but opinion, that Weaver was not such an qualified give a which he relied are not rather the facts or data on basis for that proper opinion. of has the burden opinion

The of an proponent expert v. Or Kingsbury Hickey, 56 a foundation. providing proper (1982). The rev den 339, 293 146 492, 496, 642 P2d Or not be on witness need by expert facts or data relied but, foundation, they a evidence provide proper admissible in the experts “a relied on reasonably must be of type 703. Whether that field in OEC opinions.” forming court, we which is a matter preliminary test met Oregon 104; Kirkpatrick, of review for abuse discretion. (2d 1989), to Rule Commentary Evidence Legislative 459 ed 633, rev Baker, v. see State 703; 87 App (1987). in its discretion court abused den if lacked sufficient opinion allowing too speculative. such an foundation, opinion because P2d 948 Johnson, v. Urbanski cross-examination on direct and testified Weaver line and center crossed the his opinion the collision was based on the caused tendencies from solid on their and to cut shy away objects drivers to right corners.6 Defendants that Weaver’s argue prem- well, ised on several other factors as such as his study photographs wrecked car and the accident reports. representation.7 record does not substantiate that State Baker, we the exclusion of supra, upheld expert testimony about the of the defendant’s at the time that it speed motorcycle collided with an automobile. with We the trial court that agreed was too speculative,

“the witness relied on solely police reports photographs of the vehicles involved the accident. He did not inspect testified, part: Weaver “DIRECT EXAMINATION “ * * * * you opinion regarding happened [Do] have an what in this accident?

“Q: Yes, “A: I do. opinion? What is that

“Q: My opinion point impacted “A: is that the vehicle southbound some - - pup back trailer axles of the what was called the of the northbound truck. “ * * * * likely portion “I think it is more than not that it on the northbound

the road. you explain jury your opinion? Can to the the basis for “Q: ‘ driving they’re perceptive ‘A: Part of it is when are down a road less * * are, right something of where the side of their *. vehicles So when there is there, right bridge and in side this case there was there is more of a *7 away people highway design to move that and in from we allow for this, shy unwillingness and as a matter of fact it’s called a distance. It’s an of likely to test limits and I those so think it is more that when confronted other, object with a solid on one side and the center of road on the that a likely object. person away to move from that solid “ ^[*] ^[*] * * EXAMINATION

“RE-CROSS clarify. your opinion physical Let Then me is based not on the evidence “Q: * * * damage you of the to the vehicles but it’s based on what understand tc be of drivers at that location? “A: To the tendencies of drivers at locations similar to this.” photographs plaintiffs The witness also testified that he had reviewed of damaged reports, and accident but could not recall whether he had seen vehicle pup for the photos tractor-trailer or the trailer or the maintenance records of the damage plaintiffs pup that car nor the truck and trailer. He testified neither the opinion damage pup would affect his to the tractor-trailer and trailer in the northbound lane. collision occurred 6, supra. See n He was unaware of the condition of the personally. vehicles at the time and of the accident. He did not hear roadway place He description the witnesses’ of the accident. assumed that motorcycle functioning fully were but defendant’s brakes to their He did personal knowledge had no as effectiveness. motorcycle that defendant’s had collided with not consider before the collision with the auto- another motorcycle at 291. mobile.” 87

If on and of the vehicles police reports photographs reliance accident is an basis for an inadequate expert involved of then reliance on the general as point impact, must also be an basis. inadequate tendencies of other drivers lacked a sufficient foundation based Weaver’s this case. It was too specula- the facts and evidence of physical discretion in therefore the trial court abused its tive and supra; Baker, see also Urbanski v. it. State v. admitting Hickey, Kingsbury supra. supra; Johnson, trial court’s refusal Plaintiff next error to the assigns that evidence of the general her instruction give requested evidence of con- tendencies of other drivers for the Plaintiff is correct duct at the time of the collision. her first and second analysis in our of reasons discussed of error. assignments argues assignment, plaintiff her sixth demonstration videotaped court erred excluding offered The videotape of trailer sweep.

the phenomenon and rebuttal direct, redirect occasions, on on three separate witness, who Limpert, expert of plaintiff’s examination8 offered, it was defendants Each time made the videotape. was out value its probative on the ground objected many due to prejudice, the risk of unfair weighed by place at the time and the conditions between dissimilarities the demonstration. and place at the time the collision and because it videotape and excluded trial court agreed its probative outweighed the risk of prejudice found that 401; OEC 403. value. against defendants’ videotape as rebuttal evidence was offered the conditions witnesses, sweep occur under could not trailer who testified occur, collision; that, sweep did if trailer place

present of the at the time that, sweep possible under it; were always if trailer would feel driver ‘‘catastrophic collision, loss would have been the result conditions at the time rig. *8 entire tractor-trailer of control” of the

The test for the of such demonstrative admissibility in conditions of the demon evidence is whether the differences are so risk great they stration and the event at issue Miemi, Loibl v. jury. the misleading confusing The trial court has broad discretion Inc., Stages, determination. Tuite v. Union making that Pacific (1955). Here, that, trial P2d 333 the court said is suffi [the demonstration] whether or not balancing “[i]n the it would similar the against prejudice collision] ciently [to cannot create, I find it is too dissimilar and too We prejudicial.” excluding that the trial court abused its discretion say note, however, that the trial court on that basis. We videotape at about trailer testify length sweep allowed plaintiffs expert Also, and the demonstration in over particular. the court allowed two still objections, photographs defendants’ demonstration into evidence. trailer-sweep Allowing demonstration is inconsistent with the some evidence of the sufficiently trial court’s that the demonstration ruling accident to be admissible. We decline to similar to the scene on retrial will justify whether the circumstances speculate of the videotape. introduction brief only remaining assignments require

Plaintiffs court erred in failing discussion. She argues the file of defendants to the entire contents of produce order him witnesses, which the witness had with one of their the attorney-client privi- on the stand. Defendants claimed file witness testified that contained lege. attorney with only correspondence defendants’ testify he was asked to took correspondence place before That is within correspondence kind defendants. and need not be disclosed. attorney-client privilege 503(2)(b). trial court did not err. error to the trial court’s

Finally, plaintiff assigns That rule.9 speed on the basic jury instruction to the statement error. It was correct instruction was not was: The instruction rule, you speed I that the statutes the basic instruct “In connection with designated speeds. Speed in excess of the provide also for certain this state you speed designated speed rule unless are satisfied is a violation of the basic existing speed under the circumstances. such was reasonable fifty-five per case, speed hour in applicable designated miles “In this described.” areas not otherwise which were law, was at speed parties travelling issue. *9 and

Reversed remanded.

WARREN, J., P. specially concurring.

In determining whether certain evidence is admis- sible, the initial is whether it is inquiry “relevant.” “Relevant evidence” is “evidence to make the having any tendency that is of existence fact to the determina- consequence more or less than it tion of action would probable probable con- be without the evidence.” OEC 401. lead opinion Weaver, cludes of defendants’ testimony expert, corners, of drivers cut concerning tendency to general case, at issue “is remote from including corner in this too with at be I dissent that the case hand to relevant.” agree However, myself conclusion I disassociate from wrong. is Bros., on Chance v. Ringling the dissent’s reliance Carlson Piper and Corp., (1970), Aircraft rev den 293 Or 801 As the Or App demonstrates, neither case is opinion adequately lead view, relevant, my testimony here. In Weaver’s is apposite it claim that crossed to defendants’ pertains plaintiff because than makes that fact more it probable the center line and testified that drivers be without the evidence. Weaver would cut the lane had a to tendency in the southbound general tes- at to the From this design. corner issue due highway had the same plaintiff it can inferred that timony, logically be it is Although questionable to cut that corner. for an tendency to cut corners calls whether drivers’ See on that basis. objection there no opinion, expert’s 702. OEC relevant, is it does not

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

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

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

Thereafter, during in-chamber discussions as and Weaver was about to testify, continued to as “irrele- object vant immaterial,”

“if other other times cut the it corner, doesn’t *10 mean [plaintiff] just would cut corner because of her her personality, driving make her up, practices. habits and Nor suggest does it tend to she would cut corner if a * * truck is *. there talking

“We are about a particular situation where there was a truck northbound and visibility a car southbound. The is, wet, although it’s it’s been raining, visibility by all reports good. is talking [Plaintiff] can see truck. We’re about her particular driving[,] general manner of not the * * tendency Oregonians in general [of] to cut corners Thus, plaintiff did to initially object testimony Weaver’s the basis of unfair the trial prejudice, and court was aware of that. she later to it as “immaterial” Although objected “irrelevant,” the substance of argument her the jury might misuse the the cir- tendency evidence. Under cumstances, dissent, unlike the lead I would opinion hold that plaintiff preserved the error below. See State v. Hitz, v. Phillips, State 460, 466, (1992); 314 Or 840 P2d 666 Carlson v. Piper 188, (1988); 183, 307 Or 766 P2d 373 Corp., supra, at 700.1 App Aircraft 1 Carlson, testimony concerning spatial objected on the disorientation was that, relevancy objection relevancy. App “[w]hen basis of Or We is 57 699. said made, proffered probative value of the evidence and the trial court must assess the

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

Another exists in problem opinion. the unfair preserve of its conclusion that failed the lead relies on no viable issue, longer prejudice —“remoteness.” See Ore- Kirkpatrick, doctrine under OEC to pas- Evidence 126. “Remoteness” is a gon referring term makes sage time that renders certain evidence irrelevant or concerns as countervailing it inadmissible in the of some light On Evidence 185, § n OEC 403. McCormick 775 expressed Martinson, (4th 46,Or see also Marshall 1992); 268 ed Moberly, Carter v. (1974); Robinson, 613, 616, State v. (1972); is not a this of time question P2d 688 Passage the lead if analysis It a more straightforward would be case. evidence the general said that opinion simply to reach doctrine the remoteness rather than relevant, using *11 result. that evidence is general that the

I would hold unfair the basis of been excluded on should have but relevant concur. I therefore prejudice. App at 57 Or 700. danger prejudice, surprise and confusion.” weigh against of it the objection I believe made an may questionable,

Although be that rule analyze under OEC judge the issue she should sufficiently informed the 403.

333 EDMONDS, J., dissenting.

The lead holds that opinion evidence of the distance,” the “shy tendency of drivers to away move from barrier on their under conditions, certain is right “too to be relevant.” Or remote Weaver, 325. App witness, testified that there is a general tendency of motorists when rounding away curve to move from on objects the case, in right side, this a bridge barrier. He said: “It’s a ‘shy called distance.’ It’s an unwillingness of limits likely test those and so I think it more is that when confronted with a object solid on one side and the center of other, the road on the a person likely is away move object.” from that solid

“Relevant is evidence” evidence that has a tendency to make the of existence fact in issue more or probable less than probable it would be without the evidence. OEC 401. The issue is whether crossed center line of the highway when she went around the corner. All relevant evidence on that issue is admissible it unless conflicts with a statutory, constitutional or decisional rule of evidence. “Evi- dence which not relevant is not admissible.” OEC 402. Thus, inquiry whether evidence of of drivers to move away from a barrier their right while around a corner going makes it more likely than not that plaintiff crossed the center line. In of light we turn to rules decisional of evidence from in arising cases which general tendencies or propensities have been held admissible inadmissible. Bros.,

In Chance v. Ringling P2d 319, 478 (1970), the court held that expert testimony concerning the characteristics of a certain of propensities dog breed admissible, with jurors might be familiar of breed. The evidence was propensities deemed probative, because the could have concluded that jury circus, breed, knowing propensity v. Carlson in a certain area. negligent keeping dogs rev den Piper Corp., Aircraft (1982), we held that the propensity inexperienced to become disoriented clouds was what pilots probative break in mid- decedent’s airplane caused air.

334 “pro-

In contrast to the of admission evidence of a pensity” particular the or natural inclination to react in a Supreme circumstances, manner under certain Court customarily obey has held that evidence that drivers or dis- obey sign prove party a a traffic offered to what did at the time question Savage, in is not admissible. See 257, Adm’x v. Palmer et (1955); al, 272, Or v. 982 Frame Arrow 204 (1937); Towing Or Service, 522, 155 Fromme v. (1929); Lang Myrtle Co., 501, P 120 & 281 Point Coquille 311, River, Trans. v. 86 P Co. Port Or 168 625 562 of (1917). However, Co., in 278 James v. Carnation (1977), holding distinguished P2d the the in court Savage. admitting It said that the trial did err in court usage” how evidence of “custom and as to other drivers used auxiliary right fog plaintiff line an lane to the where the parked, probative evidence was ofthe issue of comparative negligence. summary, rule that evidence

In is of others’ prove negligence generally negligence is not admissible negligence party. However, of often a evidence others’ of issues, causation, as admissible on other relevant such pivotal dangerous knowledge. case, In this condition the center line issue whether defendants’ trailer crossed plaintiff crossed the line. The into lane or whether proceeds whether “traffic that south- witness was asked * * * bridge coming due to bound across has [to highway point design the curve at that cut across affirmatively. highway]?” That evidence is in He answered that, drivers crossed occasions, evidence on other not direct therefore, that, occasion, it and, follows this the center line that plaintiff of a Rather, it is evidence is what did. in a manner because drivers to drive gives Admittedly, highway. rise to the evidence a curve in the negligent, plaintiff did the but so too inference Corp., supra, Piper v. in Carlson evidence offered Aircraft supra.1 Ringling is relevant Bros., The evidence in Chance whether issue, it a fact admissible, because makes and thus voluntary addition, between draws a distinction the lead Chance, lunged that act was a dog involuntary When the at the reactions. therefore, supported majority’s is not voluntary distinction reaction and law. decisional line, crossed the center more than it would probable be without the evidence.

The lead opinion holds that Weaver’s lacked a proper foundation. As relies on State v. it authority, Baker, rev den 304 Or 405 P2d (1987). That case, reliance is In that misplaced. we held the trial court “acted within its discretion in excluding *13 offered testimony 87 Or speculative].” [as 291. Just as it was within the Baker of the trial discretion in range judge’s evidence, here, to exclude the it was within the discretion of the court to admit the evidence. There was a sufficient basis in the record on which the could an give the expert’s awareness of the design of the high- way, location of the bridge and his of how understanding “shy distance” tendency affects motorists.

Also, I with the disagree that an concurring opinion OEC 403 objection was preserved. fact that plaintiffs counsel included the word in his “prejudicial” objection about testimony Weaver’s observation of the traffic flow at the accident scene does objection an to Weaver’s preserve that, in his drivers when opinion, rounding curve have a to move away objects from on the side of right an highway. purpose requiring appellant pre an serve of error assignment by making specific objection court is to the court an to correct provide opportunity An objection its on a as to ruling. specific ground specific does not the court on notice as to the put parties 103(1)(a); testimony. different position regarding Shields v. Campbell, 5.45(2); 71, 77, ORAP 277 Or (1977). Moreover, an on the basis of OEC 401 objection under OEC 403. See State v. does not preserve objection Odoms, Isom, State 391, 406, (1992); 837 P2d 491 Michas, (1992); Wallender v. 76, 84, sum, P2d 72 I would hold that the 587, 591,475 the evidence under trial court did not err when it admitted OEC 402.

I dissent.