Van Gordon v. Portland General Electric Co. , 67 Or. App. 290 ( 1984 )

VAN HOOMISSEN, J.

This appeal is before us on remand from the Supreme Court, 295 Or 811, 670 P2d 1026 (1983), to determine whether the admission of evidence of defendant’s subsequent remedial measures caused prejudice to defendant.¹ The facts are set forth in our previous opinion. Van Gordon v. PGE Co., 59 Or App 740, 652 P2d 817 (1982); rev’d and remanded, 294 Or 761, 662 P2d 714; on remand 64 Or App 135, 667 P2d 532 (1983).

Under prior law, the erroneous admission of evidence was presumed to be prejudical without an affirmative showing by the adverse party that the error was harmless. See, e.g., Elam v. Soares, 282 Or 93, 103, 577 P2d 1336 (1978). This law was changed with the legislature’s adoption of the Oregon Evidence Code.² Our task on remand is to evaluate the effect of the evidence in issue in the light of OEC 103.

The evidence showed that, after plaintiffs accident, defendant replaced old warning signs with new signs that specifically warned of the danger to children of burns from the hot water at Austin Hot Springs. A critical aspect of plaintiffs theory of the case was that defendant was reckless in failing to warn users of the park of the inherent dangers of the springs. Plaintiffs party observed no warning signs along the route they followed to the springs. Thus, the location, as opposed to the wording of the signs, was primarily in issue. Still, that did not prevent the evidence from having a prejudicial impact.

On remand we conclude that the evidence prejudiced and therefore affected a substantial right of defendant. See Van Gordon v. PGE, supra, 59 Or App at 756. The jury could have inferred that the changed wording of the signs constituted an admission by defendant that it had acted recklessly in the past. The new signs specifically warn of the danger to children of burns from the hot water, and they specifically warn parents to monitor their children’s activities. The new warnings mirror the facts of the case before the jury. The evidence could have improperly influenced the jury. It was, therefore, prejudicial.

Reversed and remanded.³

1 Defendant argues that we need not reach this issue that the admission of the evidence was not erroneous because it went to the feasibility of erecting better warning signs and not to whether the remedial measure was an admission that it acted recklessly. It also argues that this was not a subsequent remedial measure because it did not know of plaintiffs accident when it erected new warning signs. We have already decided that the evidence was erroneously admitted. See Van Gordon v. PGE Co., supra, 64 Or App 135, 138, 667 P2d 532 (1983). We decline the invitation to reconsider the issue. Furthermore, the Supreme Court remanded the case solely for us to decide whether the evidence was prejudicial.

2 OEC 103(1) provides in relevant part:

“* * * Evidential error is not presumed to be prejudicial. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected * *

See Travis v. Unruh, 66 Or App 562, 674 P2d 1192 (1984).

3 We reaffirm our conclusion, 64 Or App 135 n 1, that the judgment in favor of third party defendants Barker is final and conclusive.