SALEM, Ore. (Legal Newsline) - An Oregon trial court judge must reconsider, possibly, whether she was right to exclude certain evidence from a lawsuit over a fall on aluminum bleachers at the Oregon State Fair.
The state court made that ruling Feb. 24 as Gregg Lawrence tries to breathe life back into his lawsuit. He sued the Oregon State Fair Council and hoped to use evidence that a little girl fell on the bleachers, just as he did.
It was excluded, pre-trial and during trial. The state Court of Appeals affirmed, but wrote Lawrence's lawyers had failed to preserve the issue properly to ask during the trial after being rejected before.
Of course, Marion County Circuit Judge Audrey Broyles might have rejected Lawrence's request during the trial on its merits, without any regard to whether it was properly preserved. The litigants will find out on remand, and her statements during trial indicate she did.
Lawrence said he was hurt when he slipped on bleachers and charged the defendant with negligence. He wanted to point to the alleged fall of a girl, believed to be somewhere between 8-10 years old, but Judge Broyles said that would be unfairly prejudicial to the defendant.
It would illicit "emotional testimony" not related to Lawrence's fall, she said. Plus, her identity was unknown, and she was possibly at fault for her fall.
However, during the trial, lawyers for Attorney General Ellen Rosenblum's office asked Lawrence whether his elderly mother had had any trouble with the bleachers. She had not, but plaintiff lawyer Kevin Lafky felt this opened the door for the introduction of evidence a little girl had fallen.
Broyles declined twice, without addressing whether the issue was properly preserved to be raised during trial. She said she wouldn't enter evidence of a fall that lacked proof and witnesses and was self-serving to Lawrence.
The Court of Appeals rejected Lawrence's appeal, finding he had not preserved the issue of admissibility. Since it wasn't addressed at trial, Broyles will now.