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Woodbury v. CH2M Hill9/10/2003
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The short answer to defendant's argument is that, since the briefing in this case, the Oregon Supreme Court has abandoned the "we can't tell" rule and overruled Whinston, or at least that aspect of the decision, in Shoup v. Wal-Mart Stores, Inc., 335 Or 164, 168-74, 61 P3d 928 (2003). We reject the assignment of error without further discussion.
B. Admissibility of the videotape
During trial, plaintiff offered a videotape that purported to demonstrate the proper construction and dismantling of a platform. Included in the videotape is a depiction of a worker donning a safety harness. Defendant objected to the introduction of the videotape on the ground that the manner in which the worker connected his harness to a guardrail violated state safety regulations:
" he belt, the line that runs for the holding of the harness runs up to the guardrail system, around the catwalk, the platform above the stairwell. And the OSHA, the 29 CFR 1926.502 as incorporated by Oregon law, specifically provides in subparagraph 23 that personal fall protection systems shall not be attached to guardrail systems."
Defendant further argued:
"* * * e don't contest that the work could be done with a harness on, we contest that there was a legitimate connection for it. And that is an issue that the--that the experts or the witness should--should be contesting in their respective opinions. But the video adds absolutely nothing to that."
Defendant also objected that the videotape was prejudicial. The trial court overruled the objection.
Experts from both sides then testified without objection concerning the propriety of attaching a safety harness to a guardrail. Plaintiff's expert testified that a safety harness should not be attached to guardrails "unless certain other qualifications are met." He testified that qualified persons can authorize attachments of harnesses to appropriately supported guardrails. He explained that an appropriately supported guardrail would hold 5,000 pounds or maintain a safety factor of two and that the guardrail depicted in the video could hold 72,000 pounds with a safety factor of approximately 20. Defendant's expert testified that the attachment depicted in the video was improper and that the exception that plaintiff's expert described was "very tricky."
On appeal, defendant assigns error to the admission of the videotape, in particular, the depiction of the worker attaching the safety harness to the guardrail. Defendant argues that the evidence is irrelevant, given that attaching a safety harness to a guardrail in the manner depicted in the videotape violates applicable OSHA regulations, and that, even if relevant, is unduly prejudicial. Plaintiff responds that the evidence is relevant and is not unfairly prejudicial. Even if the videotape was erroneously admitted, plaintiff argues, the error was harmless in light of the extensive testimony from the expert witnesses as to the very same matter. We agree with plaintiff that the error, if any, was harmless.
OEC 103(1) provides that " rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected[.]" In Jett v. Ford Motor Co., 335 Or 493, 72 P3d 71 (2003), the defendant objected to the introduction of a safety manual in a personal injury case involving a plaintiff truck driver who had left a delivery truck without first engaging the emergency brake. The Supreme Court held that, even assuming that the trial court erred in admitting the evidence of the safety manual, the error was harmless in light of expert testimony about the standard of care for a delivery truck driver in the plainti
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