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Hamilton v. Oppen12/4/2002
es OSHA, numerous agricultural Safety Standards exist which could have prevented this accident from happening;" Hamilton worked in an environment on Oppen's farm "where safety standards were grossly negligent;" Oppen "failed to provide the required safety training to comply with industry standards;" by allowing his employees to clean grain tanks without shutting off the unloading auger or the combine engine, Oppen "created a serious safety hazard that contributed to the accident;" Oppen "not only failed to train or supervise his employees to perform a safe operation while working with his combines, he demonstrated negligence by his own unsafe operation of the same equipment;" Hamilton was not properly instructed in the safe use and operation of the combine; the unsafe use of combines on the Oppen farm "may have violated" numerous OSHA regulations; it is unlikely "required warning signs" were in place at the time of the accident; " very farmer has a responsibility to provide a safe working environment for his employees, and to train his employees in the safe operations of his farm equipment;" and " ugers are the most dangerous operation on a farm, and have proven to be the cause of the most serious accidents." Hamilton did not offer Gogulski as an expert for a more limited purpose than what his deposition and report suggested.
In its order denying the motion for new trial, the trial court reasoned:
As determined by the Court prior to trial, the record establishes that Mr. Paul Gogulski knew nothing about farming, knew nothing about combines, and knew nothing about augers within the combines. The only testimony that Mr. Gogulski purportedly would have offered would have been his expertise on OSHA safety standards, but such standards were admittedly not applicable to this case. Mr. Gogulski did no independent investigation other than a few phone calls to a few farmers regarding combines. The Court finds that Mr. Gogulski had no expertise with which to assist the trier of fact in understanding the evidence or determining the facts in issue.
The trial court's reasoning is rational, and its decision is not arbitrary, capricious or unconscionable. We conclude the trial court did not abuse its discretion in deciding Gogulski was not qualified as an expert and in disallowing his testimony.
C.
Hamilton argues the trial court erred in refusing to allow in evidence several photographs of his injured leg taken at the hospital before the leg was amputated. The trial court granted Oppen's motion in limine to keep the photographs out of evidence.
The admission or rejection of photographs is within the discretion of the trial court. State v. Ash, 526 N.W.2d 473, 477 (N.D. 1995). "Even gruesome pictures are admissible for a proper proof purpose." State v. Miller, 466 N.W.2d 128, 132 (N.D. 1991). Oppen argues the photographs were not relevant to the issue of liability and were not relevant to the issue of damages because it was undisputed that the amount of damage to the leg was so substantial the leg had to be amputated, and that the leg was only partially attached to Hamilton's body. 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." N.D.R.Ev. 401. The photographs of Hamilton's injured leg were relevant to the issue of pain and suffering, which are elements of non-economic damages. See Albrecht v. Metro Area Ambulance, 2001 ND 61, 11, 623 N.W.2d 367; N.D.C.C. ยง 32-03.2-04(2).
Nevertheless, relevant evidence may be excluded under N.D.R.Ev. 403 if its probative value is sub
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