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Woodbury v. CH2M Hill9/10/2003
ff's situation. Id. at 500-01.
So also in this case, even assuming that it was error for the trial court to have admitted the videotaped depiction of a worker attaching a safety harness to a guardrail, the fact remains that there was expert testimony that it was proper to do so. The error, if any, was harmless.
C. Evidence of the absence of a guardrail
Before trial, defendant moved to exclude any evidence that the platform lacked a guardrail. According to defendant, evidence of the absence of a guardrail was irrelevant, because the lack of a guardrail had nothing to do with the manner in which plaintiff fell. Defendant argued that the evidence also was a prior bad act inadmissible under OEC 404(3). Plaintiff agreed that the lack of a guardrail had nothing to do with the manner in which he fell. Plaintiff argued that the evidence was relevant to the lack of proper supervision and training as to the proper assembly, use, and disassembly of such platforms. The trial court agreed with plaintiff:
"If the handrail is indeed required, and [that's] contested, its absence is certainly some evidence of failure to supervise, to properly train, and to design--let's see, failing to supervise--failing to inspect and supervise assembly adequately, and failing to establish and train workers when following a plan.
"* * * * *
"For example, if somebody is injured as a result of an electrical hazard on a worksite, and the allegation is that there was no inspection or supervision to deal with the electrical hazards, the fact that there was an exposed hot wire swinging back and forth over the work space is some evidence that nobody inspected and remedied such hazards. Nobody was looking for those hazards.
"It's not a prior bad act. It's evidence of a degree of inattention to that detail. So the motion is denied."
On appeal, defendant assigns error to the denial of the motion in limine. It reiterates its argument that, because the absence of a rail had nothing to do with plaintiff's fall, such evidence is inadmissible. Plaintiff reiterates its argument that defendant has missed the point, that the evidence is relevant to its allegations of failure to inspect and supervise and that, even if erroneously admitted, the evidence was harmless. We agree with plaintiff.
We review rulings on relevance for errors of law. State v. Minchue, 173 Or App 520, 523, 24 P3d 386 (2001). Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." OEC 401. The rule "establishes a very low threshold for the admission of evidence." State v. Titus, 328 Or 475, 481, 982 P2d 1133 (1999) (internal quotation marks omitted).
In this case, plaintiff's allegations of negligence are not limited to the specific mechanism of his fall from the platform during its disassembly and included allegations that, among other things, defendant "fail to adequately inspect and supervise the assembly, use, and disassembly operation of the platform or scaffold." The failure to maintain a guardrail during the use of the platform is at least minimally relevant to that allegation.
Under OEC 404(3), evidence of a prior bad act of negligence is not admissible to prove a specific, other act of negligence. It is, however, admissible "to prove the existence of a continuing defect or a continuing course of negligent conduct, and that the condition or course of conduct is in fact dangerous, or that the defendant had notice of its dangerous character." Rader v. Gibbons and Reed Company, 261 Or 354
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