Plaintiff sued the Oregon State Fair Council (defendant) for negligence after slipping on wet bleachers while attending the Oregon State Fair. At trial, plaintiff sought to offer evidence that another person had slipped on the same bleachers a few minutes after his own fall. The trial court initially excluded the evidence under OEC 403. However, during trial, the court ruled that defendant had opened the door to that evidence. The court nonetheless excluded the evidence based on the “form of evidence.” Plaintiff assigns error to that exclusion, arguing that the trial court erred in applying OEC 403. Because we conclude that plaintiff failed to preserve his claim of error, we affirm.
For purposes of resolving the issue presented on appeal, the relevant background facts are few. Plaintiff attended the fair with his wife and mother. Plaintiffs mother has difficulties walking long distances and uses a wheelchair. Plaintiff and his family went to see a performance, the seating for which included both covered and uncovered bleacher-style metal seating. Plaintiff saw available seating in the uncovered area. He went to the seats and wiped them off because it had been raining. Plaintiff escorted his mother and wife to the seats. Plaintiff then stood up to move his mothers wheelchair. As he began to make his way down the bleachers, he slipped and fell, bouncing the remaining way down the stairs. Plaintiff suffered a back injury as a result of the fall.
Plaintiff sued defendant for negligence, alleging that defendant had failed to maintain its premises in a reasonably safe manner. In his complaint, plaintiff alleged that he saw another individual slip in a similar manner shortly after he fell.
Before trial, defendant filed a motion in limine to exclude evidence about the other individual who fell. That evidence consisted entirely of plaintiffs description of his observations of seeing another person fall: “It wasnt just me. Within two minutes—90 seconds of me falling a little girl down—on the same bleacher, she fell *** She fell exactly like I did.” In urging the trial court to exclude that evidence, defendant argued that the evidence was minimally probative and would be unduly prejudicial under OEC 403.
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More specifically, in defendants view, to the extent that the evidence was minimally probative to show that the bleachers were unreasonably slippery, the evidence was unfairly prejudicial because the identity of the young girl was unknown, and she was not a witness at trial. In response, plaintiff argued that the evidence was admissible to prove that the wet bleachers were “in an unreasonably dangerous condition” (and thus relevant to his negligence claim) and the fact that the young girl was unknown did not substantially outweigh the probative value of the evidence.
During the hearing on the motion in limine, defendant clarified that, were it to offer evidence that no one else fell on the bleachers, the evidence of the young girl falling would become relevant. But defendant insisted that it was not going to offer such evidence. The trial court thus granted the motion in limine, concluding that “if it becomes an issue during the testimony Ill reconsider it.”
During defendants cross-examination of plaintiff, defendants counsel asked about plaintiffs mothers physical condition. Defendants counsel then asked, “So she didnt have any trouble getting up or down these bleachers herself, did she?” Plaintiff responded that he helped his mother and his wife, to which defendants counsel again asked, “But even with your help your elderly mother didnt have any trouble getting up and down these bleachers?” Plaintiff responded, “Correct.”
During a break following that testimony, plaintiff asserted that defendant had opened the door to the testimony of the young girl falling by asking whether plaintiffs mother had successfully navigated, i.e., had not fallen on, the bleachers. The court agreed. The court noted that it had previously excluded the evidence “because I dont think that that [evidence] is admissible. And I think it complicates and prejudices.” However, the court concluded that defendants counsel had nonetheless opened the door by asking about plaintiffs mother and whether she had climbed the bleachers without falling.
The court then asked plaintiffs counsel how he intended to offer evidence of the young girls fall. Plaintiffs counsel explained that it would be through plaintiffs testimony, and that his wife and mother had witnessed the fall as well. Based on that representation, the trial court excluded the evidence. It concluded that, although defendant had opened the door, because the evidence was coming from plaintiff and his family members who had a “self-serving interest,” it did not “think that form of evidence would be appropriate.” Plaintiff did not offer any objection to the trial courts conclusion that the form of evidence was not appropriate or otherwise request that the court clarify its ruling.
The jury ultimately found that defendant was not negligent, and the trial court entered a judgment in defendants favor.
Plaintiff appeals. In his single assignment of error, he asserts that the trial court erred in excluding evidence of the young girls fall after concluding that defendant had opened the door:
“The trial court erred in excluding relevant evidence regarding another fall at the same time as Plaintiffs fall and at the same location of Plaintiffs fall. While such evidence was relevant to Plaintiffs case, it became even more relevant and necessary once Defendant argued that Plaintiffs mother did not fall at the same time/location. Excluding the evidence after Defendant raised the issue of Plaintiffs mothers lack of falling was error.”
Plaintiff begins his argument with the statement that the trial court “erred in denying plaintiffs request to admit relevant evidence after Defendants questioning opened the door to the admissibility of the evidence.” Thus framed, plaintiff has not assigned error to the trial courts initial decision to grant defendants motion in limine and exclude the evidence of the similar fall. Rather, plaintiffs claim of error is that, after the court concluded that defendant had opened the door, the court erred in nonetheless excluding the evidence.
Although the trial court excluded the evidence on the basis of its “form,” plaintiff frames his argument in OEC 403’s terms, contending that the evidence was probative and not unfairly prejudicial. In response, defendant argues that the evidence, while minimally probative, is outweighed by the danger of unfair prejudice. Both parties assert that plaintiffs claim of error is preserved. For his part, plaintiff points to the memorandum in opposition he filed in response to defendants motion in limine and to the arguments that were made at the hearing on that motion. He also points to the colloquy between the parties and the court after the court concluded that defendant had opened the door to the evidence that the court had previously excluded.
Despite the parties’ agreement that the claim of error is preserved, we have an independent obligation to determine whether an error is preserved. State v. Wyatt, 331 Or. 335, 346-47, 15 P.3d 22 (2000) (concluding that we could not review an unpreserved claim of error, even where the defendant conceded that the error was preserved). “The general requirement that an issue, to be raised and considered on appeal, ordinarily must first be presented to the trial court is well-settled in our jurisprudence.” Peeples v. Lampert, 345 Or. 209, 219, 191 P.3d 637 (2008). “Preservation is a prudential doctrine, and its requirements ‘can vary depending on the nature of the claim or argument; the touchstone in that regard, ultimately, is procedural fairness to the parties and to the trial court.’ ” State v. Weaver, 367 Or. 1, 16, 472 P.3d 717 (2020) (citing Peeples, 345 Or. at 220, 191 P.3d 637). Preservation requirements apply with equal force to the courts OEC 403 balancing. State v. Kelley, 293 Or. App. 90, 96-97, 426 P.3d 226 (2018).
Notwithstanding the parties’ agreement that the claim of error is preserved, we respectfully disagree with their assessment. As set forth above, the trial court concluded that defendant had opened the door, but it nonetheless excluded the evidence, because the evidence was to be offered by plaintiff and his family members, who had a “self-serving interest,” and the court did not believe that “that form of evidence would be appropriate.” Plaintiff did not object to the courts conclusion or offer any argument as to why the “form of evidence” was appropriate and the evidence was admissible. It may be that the parties were caught off guard by the trial courts ruling, given that no party had addressed the form of the evidence (and its apparent self-serving nature) as a reason to admit or exclude the evidence. But it was nevertheless incumbent upon plaintiff to preserve any arguments that he had about why that ruling was wrong. If plaintiff believed, as he contends on appeal, that the court erroneously excluded the evidence based on improper balancing under OEC 403, plaintiff needed to point out that error to the court, thereby giving the court the opportunity to correct the error if necessary and to create a record as to the courts OEC 403 assessment, if indeed that was the basis for the courts exclusion of the evidence. See State v. Hagner, 284 Or. App. 711, 722, 395 P.3d 58, rev. den., 361 Or. 800, 400 P.3d 922 (2017) (a partys failure to request balancing renders the claim of error unpreserved); see also State v. Anderson, 363 Or. 392, 406, 423 P.3d 43 (2018) (“[A] court will make a sufficient record under [State v. Mayfield, 302 Or. 631, 733 P.2d 438 (1987)] if the trial courts ruling, considered in light of the parties’ arguments, demonstrates that the court balanced the appropriate considerations.”); id. at 410, 423 P.3d 43 (“If defendant believed that further explanation than the trial court provided was necessary for meaningful appellate review, it was incumbent on him to request it.”)
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Having failed to do so, we cannot review his claim of error.
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We therefore affirm.
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Affirmed.
FOOTNOTES
1
. OEC 403 provides:“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence.”
2
. That said, it is not clear to us that the courts ruling is grounded in OEC 403. A conclusion that the form of evidence is not “appropriate” could encompass any number of legal bases, which illustrates one of the many rationales for the preservation requirement.
3
. Plaintiff does not request that we review the issue as plain error.
4
. Because we affirm, we do not address defendants cross-assignment of error that the court erred in concluding that defendant had opened the door to the evidence of the other fall.
JOYCE, J.