Czajkowski v. Ymca of Metro. Hartford, Inc.

• Decision Date: 15 April 2014
• Docket Number: No. 35085.,35085.
• Citation: 89 A.3d 904,149 Conn.App. 436
• Court: Connecticut Court of Appeals
• Parties: Frank CZAJKOWSKI et al. v. YMCA OF METROPOLITAN HARTFORD, INC.

149 Conn.App. 436

89 A.3d 904

Frank CZAJKOWSKI et al.

v.YMCA OF METROPOLITAN HARTFORD, INC.

No. 35085.

Appellate Court of Connecticut.

Argued Jan. 9, 2014.

Decided April 15, 2014.

Alinor C. Sterling, with whom were, Cynthia C. Bott, and, on the brief, David M. Bernard and J. Craig Smith, Bridgeport, for the appellants (plaintiffs).

Michael T. Ryan, with whom, on the brief, was Maciej A. Piatkowski, Stamford, for the appellee (defendant).

LAVINE, SHELDON and PELLEGRINO, Js.

PELLEGRINO, J.

In this action for damages for personal injuries, the plaintiff Frank Czajkowski ¹ appeals from the judgment of the trial court rendered after a jury verdict in favor of the defendant, YMCA of Metropolitan Hartford, Inc., doing business as YMCA of Greater Hartford. The plaintiff claims that the court improperly (1) precluded the testimony of his expert witness, and (2) permitted the defendant's lay witness to testify as to her opinion.² We conclude that the court did not abuse its discretion by precluding the expert's testimony or by admitting the lay witness's testimony. We therefore affirm the judgment of the court.

The jury reasonably could have found the following facts. From April 25, 2005, to April 27, 2005, groups of eighth grade students from Derby and Hartford attended an overnight outing at Camp Jewell, a campground in Colebrook owned by the defendant. On the second day of the outing, April 26, the plaintiff, who was fourteen years old, had congregated with other students outside of the dining hall after lunch. The students were waiting to be sent to their next activity. The area where the plaintiff stood was enclosed by a split rail fence. Near the intersection of two sides of the fence was a stone engraved with the word “unless” (unless stone) which, in the spring and summer, is surrounded by flowers.³ The portion of the fence surrounding the unless stone was approximately eighteen inches high. On the other side of the fence was a path that led to “Mount Wood,” a climbing tower. Raymond Zetye, the executive director of Camp Jewell, testified that the purpose of the fence was to prevent people from walkingon the flowers that grow around the unless stone.

After all of the students in the plaintiff's group had gathered in the vicinity of the unless stone, a camp counselor said that the group was going down the path to Mount Wood. In order to do so, the students, including the plaintiff, had to maneuver around the fence to reach the path that led to Mount Wood. Some students walked around the fence, while others either stepped or jumped over it. The plaintiff elected to jump over the fence but did not clear the top rail and, as a result, fell and struck his head on the ground. The plaintiff brought the present action seeking to hold the defendant liable for his injuries.⁴ The matter was tried to a jury, which returned a verdict in favor of the defendant. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff asserts that the court improperly precluded his expert witness from testifying. The plaintiff's expert, Anthony Storace, has a master's degree in mechanical engineering, and was experienced in accident investigation and reconstruction. Storace visited the site of the plaintiff's fall, conducted an investigation, and produced a report detailing his findings. The report described the fence in question: “The subject fence provides a pedestrian barrier intended to prevent pedestrians from walking from [the area of the unless stone to the surrounding paths].... The fence was apparently provided to prevent pedestrians from traversing the raised edges of the walkway step, which presents a tripping hazard.... Although the fence may have been provided to divert pedestrian traffic, the design of the area and the height of the fence created a condition in which it was foreseeable that pedestrians would surmount the fence, either by climbing or jumping. A fence intended as a barrier to pedestrian traffic should be at a height appropriate for such purpose.” The report then referenced several building codes which direct that “guards,” defined as barriers used to prevent falls, should be at least forty-two inches high.⁵ On the basis of the information in the report Storace concluded that the subject fence, because it was being used to prevent pedestrians from tripping on the “raised edges” of the path, was a “guard” that should have been forty-two inches high.

The defendant filed a motion in limine to preclude Storace's testimony, arguing that the testimony was not helpful to the jury because it was based on irrelevant building codes and the subject matter of the testimony was within the knowledge of the average person. The court granted the motion to preclude and, thereafter, the jury found in favor of the defendant. The plaintiff filed a motion to set aside the verdict, arguing that Storace should have been allowed to testify on the basis of his experience and the building code requirements that the fence was unsafe. The court subsequently denied the plaintiff's motion. In doing so, the court recounted the concession Storace had made in the plaintiff's expert disclosure statement that his opinion was based on codes governing a building's interior “guards,” and that these codes do not directly apply to the fence at issue. The court determined that the building codes were irrelevant because they do not apply to the fence and, furthermore, found that the average person possessed sufficient knowledge to determine whether the fence at issue was unreasonably dangerous. On appeal, the plaintiff argues that the building codes are relevant to determining whether the fence was safe, and therefore whether the fence was unreasonably dangerous is beyond the knowledge of the average juror who is not familiar with the building code standards. As a result, the plaintiff reasons, the court improperly precluded Storace's testimony. We are not persuaded.

“We begin our review of this issue by setting forth the well established standard of review regarding a trial court's ruling on the admissibility of expert testimony. [T]he trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court's decision will not be disturbed.... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did....

“[Our Supreme Court] recently articulated the test for the admission of expert testimony, which is deeply rooted in common law. Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues....

“It is well settled that [t]he true test of the admissibility of [expert] testimony is not whether the subject matter is common or uncommon, or whether many persons or few have some knowledge of the matter; but it is whether the witnesses offered as experts have any peculiar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience any aid to the court or the jury in determining the questions at issue.... Implicit in this standard is the requirement ... that the expert's knowledge or experience must be directly applicable to the matter specifically in issue.” (Citations omitted; footnote omitted; internal quotation marks omitted.) Sullivan v. Metro–North Commuter Railroad Co., 292 Conn. 150, 157–59, 971 A.2d 676 (2009); see also Conn.Code Evid. § 7–2. “The essential facts on which an expert opinion is based are an important consideration in determining the admissibility of the expert's opinion.” Glaser v. Pullman & Comley, LLC, 88 Conn.App. 615, 624, 871 A.2d 392 (2005).

The issue on appeal is whether Storace's opinion improperly was precluded because the average juror has sufficient knowledge to determine whether the fence was reasonably safe. The plaintiff alleged in his complaint that the defendant breached the standard of care by, inter alia, “creating and/or maintaining a hazardous tripping instrument when alternative safer methods were available.” The plaintiff then sought to introduce Storace's testimony regarding the various building codes to demonstrate that the fence was a “hazardous tripping instrument.”

The plaintiff argues that Considine v. Waterbury, 279 Conn. 830, 905 A.2d 70 (2006), supports the proposition that Storace could rely on nonbinding building codes in rendering his opinion that the defendant breached the standard of care. In Considine, the plaintiff was injured by a glass window located next to a door. Id., at 833–34, 905 A.2d 70. The plaintiff's expert testified that, according to the state building code, more durable glass should have been installed in the window. Id., at 855–57, 905 A.2d 70. The subject building, however, was built before the code was enacted, and the property owner was not required to change the glass in the window to conform to the code. Id., at 856 n. 15, 905 A.2d 70. Our Supreme Court concluded that the court properly admitted the expert's testimony regarding the building code as some evidence of the standard of care, even though the plaintiff was not required to comply with the code. Id., at 867–68, 905 A.2d 70.⁶

In the present case, the plaintiff avers that Storace should have been allowed to testify that the fence was unreasonably dangerous based on the industry standards contained in the building codes. The codes upon which Storace relied in his report pertain only to the interior of buildings. The plaintiff argues that, nonetheless, Considine supports the proposition that Storace can testify that the building codes are evidence of the standard of care regarding the fence in...