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Jett v. Ford Motor Company8/14/2002
consider whether plaintiff failed to observe the company's safety rules in deciding whether [the plaintiff] was negligent.").
In this case, the trial court excluded the evidence of the UPS safety manual on the ground that it is not relevant. As in Hansen and Cole, however, the safety manual was relevant to the reasonableness of plaintiff's conduct in getting out of the delivery truck without first shifting into "park" and shutting off the ignition.
Plaintiffs argue that, even if the trial court erred in concluding that the manual is not relevant, the court nevertheless was correct in excluding it because it expresses "a standard higher than the law" in that it contains rules that are phrased in terms of "absolutes" that do not allow for any exceptions. Ford replies that whether the rules are absolute is immaterial, because they are not being offered as evidence of negligence per se, only as relevant evidence of the reasonableness of plaintiff's conduct. In any event, Ford argues, the fact is that the rules are not inflexible, as the trial court itself recognized.
The short answer to plaintiffs' contention is that the rules at issue in this case are no more or less "absolute" than the ones that were held admissible in Hansen and Cole. Indeed, few, if any, safety manuals merely parrot the legal standard that individuals are to act reasonably under the circumstances. Aside from that, however, plaintiffs ignore the fact that Ford is not arguing that the violation of the rules contained in the safety manual amounts to negligence per se. As in Hansen and Cole, Ford argues only that the rules contained in the safety manual are relevant to the reasonableness of plaintiff's conduct.
We conclude that the trial court erred in excluding the evidence of the UPS safety manual. Such error requires reversal only if it is prejudicial. OEC 103(1). "Prejudicial" error occurs "if the excluded evidence has some likelihood of affecting the jury's result." Cunningham v. Montgomery, 143 Or App 171, 181, 921 P2d 1355, rev den 324 Or 487 (1996). In this case, the defense of comparative fault was central to Ford's case, and its contention that plaintiff failed to follow UPS driver safety rules was an important component of that defense. The jury, in fact, found that she was partially at fault, even without reference to the UPS manual. We cannot say that the exclusion of the manual did not have at least some likelihood of affecting the jury's assessment of comparative fault. We therefore reverse and remand.
Ford contends that we should address the propriety of the Sandford instruction that the trial court delivered to the jury, because it is an issue that is likely to arise on remand. Plaintiffs argue that the issue was not preserved. According to plaintiffs, Ford took exception to the instruction, but it never explained to the trial court the basis for its exception.
We agree with plaintiffs. Ford did say: "We would take exception to that instruction, your Honor. That will be it." It did not, however, explain the basis for the exception. ORCP 59 H requires that exceptions be "particularly stated." That requirement "ensures that trial courts are afforded a fair opportunity to correct possible mistakes." State v. Layton, 163 Or App 37, 40, 986 P2d 1221 (1999), rev den 330 Or 252 (2000). Ford did not provide the trial court such a fair opportunity in this case.
Ford advances other contentions that we need not address in light of our disposition of the appeal.
Reversed and remanded.
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