Duncan v. Mill Mgmt. Co. Of Greenwich Inc., 31125.

• Decision Date: 12 October 2010
• Docket Number: No. 31125.,31125.
• Court: Connecticut Court of Appeals
• Parties: Catherine O. DUNCAN v. MILL MANAGEMENT COMPANY OF GREENWICH, INC., et al.

124 Conn.App. 415

4 A.3d 1268

Catherine O. DUNCAN

v.MILL MANAGEMENT COMPANY OF GREENWICH, INC., et al.

No. 31125.

Appellate Court of Connecticut.

Argued June 3, 2010.

Decided Oct. 12, 2010.

Richard A. Roberts, with whom were Angeline N. Ioannou and, on the brief, Stephen J. Leary, Cheshire, for the appellants (defendants).

Stewart M. Casper, with whom were Benjamin H. Pomerantz and, on the brief, Victoria de Toledo, Stamford, for the appellee (plaintiff).

ROBINSON, FLYNN and SULLIVAN, Js.

SULLIVAN, J.

The defendants, Mill Management Company of Greenwich, Inc., and Greenwich Chateau Condominium Association, Inc., appeal from the judgment rendered after a jury trial, in favor of the plaintiff, Catherine O. Duncan. The dispositive issue in this appeal is whether the trial court improperly admitted evidence of a subsequent remedial measure taken by the defendants after the plaintiff was injured on a stairway. ¹ We agree with the defendants and, accordingly, reverse the judgment of the trial court.

The following facts are relevant to the resolution of the defendants' appeal. On April 17, 2005, the plaintiff went to a roof deck common area on the top floor of the Greenwich Chateau Condominium building. The deck was accessed by a single step concrete riser measuring ten inches high by ten inches wide leading up to a door that opened to the outside. After spending some time on the deck, the plaintiff reentered the building, and as she attempted to descend the stairs, her foot missed the concrete riser and she fell, resulting in a broken ankle. The plaintiff, who was the president of the board of directors for the condominium association, later contacted Richard Deutsch, a representative of Mill Management Company of Greenwich, Inc., and requested that something be done to remedy the stair situation.

On April 9, 2007, the plaintiff filed a complaint against the defendants, alleging negligence because the access to the roof deck did not comply with the town building code and constituted an unsafe condition. The defendants in their answer denied the allegations of negligence and asserted three special defenses: (1) failure to state a claim on which relief can be granted, (2) contributory negligence and (3) breach of fiduciary duty by the plaintiff in her capacity as president of the board of directors of the condominium association. The jury returned a verdict in favor of the plaintiff on her negligence claims but found that she was 25 percent at fault. The defendants have appealed.

The defendants claim that the court improperly admitted evidence that they constructed a new stairway at the site of the plaintiff's fall, a subsequent remedial measure. The plaintiff argues that she offered the evidence concerning the replacement stairs to prove the feasibility of the construction and for impeachment purposes. The defendants argue that because they conceded the issue of feasibility and no basis existed for impeachment, the evidence was admitted improperly as a subsequent remedial measure to show negligence. We agree with the defendants.

As a preliminary matter, we set forth the well established standard of review. “[T]he trial court has broad discretion in ruling on the admissibility ... of evidence ... [and its] ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion.... We will make every reasonable presumption in favor of upholding the trial court's ruling, and only upset it for a manifest abuse of discretion.” (Internal quotation marks omitted.) Desrosiers v. Henne, 283 Conn. 361, 365, 926 A.2d 1024 (2007).

The following procedural history is relevant to the resolution of the defendants' appeal. The defendants filed a motion in limine to preclude the introduction of any evidence of the replacement stairs. On April 3, 2009, the court denied the motion without prejudice. On April 7, 2009, the plaintiff, through the testimony of Deutsch, the building manager for the defendants, introduced evidence that the new stairs were built after the plaintiff's fall. ² In response to questioning by the plaintiff's counsel, Deutsch testified that he could not have had new stairs built without the approval of the condominium association's board of directors. The plaintiff's counsel then sought to ask about the circumstances of the actual construction of the new stairs following the plaintiff's fall. The defendants objected to that line of questioning, arguing that the evidence concerning the replacement stairs, both Deutsch's testimony and the accompanying photographs, was evidence of a subsequent remedial measure and, therefore, precluded by the Connecticut Code of Evidence. The court overruled the defendants' objection as to the question concerning the actual construction of the new stairs because “the problem is that [Deutsch] answered a question no, and [the plaintiff] says that the real answer is [that] he should have said yes. And that would have closed this discussion down.... So, I'm not going to preclude him from moving into that area as long as that answer remains a no. And I'm going to let him inquire into that because that opens doors.”

The plaintiff subsequently offered two photographs, exhibits 4a and 4b, depicting the newly constructed stairs. The court sustained the defendants' objection and did not allow the jury to see the photographs. The plaintiff then offered two other photographs, exhibits 5a and 5b, depicting the side view of the cement riser as it existed at the time of the plaintiff's accident. ³ Those photographs depicted only a portion of the new staircase. The court allowed those photographs to be shown to the jury.

Section 4-7(a) of the Connecticut Code of Evidence provides in relevant part that “evidence of measures taken after an event, which if taken before the event would have made injury or damage less likely to result, is inadmissible to prove negligence or culpable conduct in connection with the event. Evidence of those measures is admissible when offered to prove controverted issues such as ownership, control or feasibility of precautionary measures.”

“The general rule is that evidence of subsequent repair is not admissible on the issue of negligence.... We have said that [i]t has long been the settled rule in this State that evidence of subsequent repairs is inadmissible to prove negligence or an admission of negligence at the time of the accident.... This court, however, has admitted evidence of subsequent remedial measures if offered for other purposes such as: (1) to establish the defendant's control of the premises where a defect was located ... (2) to show feasibility of repair in product liability cases ... and (3) to show the general area or scene of the injury....

“The rule of exclusion is based on narrow public policy grounds, not on an evidentiary infirmity.... In Rokus v. Bridgeport, [191 Conn. 62, 67 n. 1, 463 A.2d 252 (1983) ], this court stated that the exclusion of subsequent remedial measures based on public policy grounds presupposes that to admit evidence of subsequent repairs to an identified hazardous condition as proof of negligence penalizes the defendant for taking remedial measures. This discourages alleged tortfeasors from repairing hazards, thereby perpetuating the danger. This policy fosters the public good by allowing tortfeasors to repair hazards without fear of having the repair used as proof of negligence, even though it requires the plaintiff to make a case without the use of evidence of the subsequent repairs. The rule's purposes are furthered, however, only when the excluded evidence relates to repairs of a hazardous condition.” (Citations omitted; internal quotation marks omitted.) Hall v. Burns, 213 Conn. 446, 456-57, 569 A.2d 10 (1990).

The plaintiff argues that evidence of the construction of a new staircase at the site of her fall was necessary because Deutsch claimed that he could not have had the construction done without the approval of the condominium association's board of directors. The court agreed that the plaintiff could use the evidence of the new staircase in order to counter Deutsch's claim, and the plaintiff argues that the evidence was, therefore, admissible to show feasibility of construction, an exception under § 4-7 of the Connecticut Code of Evidence.

The plaintiff sought to prove that the defendants could have had a new staircase built, which goes directly to the issue of culpability, not feasibility of construction as claimed by the plaintiff. The plaintiff elicited testimony from Deutsch concerning the replacement staircase in order to prove that the defendants were negligent because they did not do all that they could have done in order to make the entryway safe. The plaintiff could have used other evidence to prove that the defendants did not need the approval of the board of directors to construct the new staircase, including the testimony of the plaintiff. The admission of evidence indicating that the defendants fixed the stairs on which the plaintiff fell was highly prejudicial and not necessary to show feasibility of construction.

The plaintiff also argues that...