Van Gordon v. Portland General Electric Co. , 64 Or. App. 135 ( 1983 )

VANHOOMISSEN, J.

This appeal is before us on remand from the Supreme Court, 294 Or 761, 662 P2d 714 (1983), which reversed our decision at 59 Or App 740, 652 P2d 817 (1982), and directed us to consider the other alleged errors claimed by PGE.¹

The facts have been detailed in the Supreme Court’s opinion and in the previous majority and separate opinions of this court. PGE makes six assignments of error, which the Supreme court summarized as:

“* * * [1] [FJailure to grant either the motion to dismiss or the motion for a directed verdict; [2] failure to exclude evidence of new signs as inadmissible post-accident remedial action; [3] admission of evidence of the cost of an attendant; [4] failure to admit a 1949 letter from a governmental agency; and [5 and 6] failure to give two requested instructions regarding the state policy concerning immunity of landowners as indicated by ORS 105.660 and ORS 390.010. * * *” 294 Or at 764.

The first of those assignments was rejected by the Supreme Court. The partly concurring and partly dissenting opinion in our earlier decision correctly analyzes the third, fourth, fifth and sixth assignments, and we adopt the parts of that opinion that address and find no merit in those assignments. See 59 Or App at 748-50.

The remaining issue is whether reversal is necessitated by the trial court’s admission of evidence that, after plaintiffs injury, PGE installed new warning signs. At the time of the injury, PGE maintained three signs that read simply “HOT WATER” and were visible from the main access route to the hot springs but not from the route used by plaintiff and his grandmother. The new signs read:

“CAUTION

“HOT WATER

“SOME WATER & ROCK TEMPERATURES IN THIS AREA ARE HIGH ENOUGH TO CAUSE BURNS

“ACTIVITIES OF CHILDREN & PETS SHOULD BE MONITORED CLOSELY.”

PGE argues that evidence of the change in the language of the signs was inadmissible under the rule excluding evidence of post-accident remedial measures. PGE is correct, for the reasons articulated in the earlier concurring and dissenting opinion. See 59 Or App at 751-55; see also OEC 407.

It remains to be determined whether the error was harmless. We conclude that the error was not harmless for the reasons stated in the earlier concurring and dissenting opinion. See 59 Or App at 755-57.

Reversed and remanded for a new trial.

1 PGE brought a third party action against plaintiffs grandparents, Kino and Helene Barker, alleging that their negligent supervision caused his injuries. The Barkers prevailed on that claim in the trial court. Although the disposition of the third party action is part of the judgment from which PGE appeals and the Barkers are designated as respondents, PGE made no assignment of error pertaining to the third party action, and that case has never been an issue in the Supreme Court’s or in our consideration. See 294 Or at 764 n 1. The Supreme Court’s direction to us on remand is not broad enough to enable us to make a separate disposition at this time of the part of the judgment that decides the third party action. We nevertheless note that that part of the judgment has not been challenged in this appeal and is therefore conclusive. It should be treated accordingly in the trial court’s judgment on remand.