Lawrence v. Oregon State Fair Council

Under State v. Hitz, a party must not be “ambushed, or misled or denied an opportunity” to respond to an opposing party’s or court’s statements. State v. Hitz, 307 Or 183, 189, 766 P2d 373 (1988).

At trial, Plaintiff wanted to introduce evidence of a non-party's "alleged slip and fall" around the same time of Plaintiff's fall in a negligence case. The evidence was originally excluded with a caveat to reconsider at trial. Defendant had opened the door to the evidence; however, it was not allowed in after Plaintiff asked for reconsideration. Jury returned a verdict for Defendant and Plaintiff appealed, assigning error to the trial court’s exclusion of evidence. The Court of Appeals opined that Plaintiff failed to preserve the issue on appeal without pointing out the error under OEC 403 and effectively creating a record of a OEC 403 assessment. Before the Supreme Court, Plaintiff argued he took proper steps and preserved the issue. In response, Defendant argued Plaintiff did not preserve the issue because Plaintiff failed to make an adequate argument for why the evidentiary ruling was an error. The Court held that Plaintiff had preserved the issue. The Court's reasoning was based on the the roles of parties when moving to exclude evidence, the considerations at the appellate court, and ultimately the Plaintiff's sufficiency in responding to the Defendant's argument at trial which was not improper under State v. Hitz. Under Hitz, a party must not be “ambushed, or misled[,] or denied an opportunity” to respond to an opposing party’s or court’s statements. State v. Hitz, 307 Or 183, 189, 766 P2d  373 (1988). Reversed and remanded.