Duncan v. Mill Mgmt. Co. of Greenwich,Inc., 18722.

• Decision Date: 19 February 2013
• Docket Number: No. 18722.,18722.
• Citation: 60 A.3d 222,308 Conn. 1
• Court: Connecticut Supreme Court
• Parties: Catherine O. DUNCAN v. MILL MANAGEMENT COMPANY OF GREENWICH, INC., et al.

308 Conn. 1

60 A.3d 222

Catherine O. DUNCAN

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

No. 18722.

Supreme Court of Connecticut.

Argued Oct. 31, 2012.

Decided Feb. 19, 2013.

Victoria de Toledo, with whom was Benjamin Pomerantz, Stamford, for the appellant (plaintiff).

Richard A. Roberts, Cheshire, with whom, on the brief, were Angeline N. Ioannou, Hartford, and Kelly B. Gaertner, Cheshire, for the appellees (defendants).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, EVELEIGH and HARPER, Js.^*

ZARELLA, J.

This appeal arises from a negligence action brought by the plaintiff, Catherine O. Duncan, against the defendants, Mill Management Company of Greenwich, Inc. (management company), and the Greenwich Chateau Condominium Association (condominium association), after the plaintiff fell and was injured when stepping down from the roof deck of the Greenwich Chateau Condominiums (condominium building), where she resided.¹ After the jury returned a verdict in favor of the plaintiff, the defendants appealed to the Appellate Court, which reversed the judgment of the trial court, concluding that the trial court improperly had admitted evidence of subsequent remedial measures taken by the defendants following the plaintiff's injury, and that such evidence was sufficiently harmful to require a new trial. Duncan v. Mill Management Co. of Greenwich, Inc., 124 Conn.App. 415, 418, 424–25, 4 A.3d 1268 (2010). The plaintiff then filed a petition for certification to appeal to this court, which we granted, limited to the following question: “Did the Appellate Court properly conclude that the trial court's admission into evidence of subsequent remedial measures requires reversal of the judgment and remand for a new trial?” Duncan v. Mill Management Co. of Greenwich, Inc., 299 Conn. 918, 10 A.3d 1050 (2010).² The plaintiff claims that the Appellate Court should have concluded that the admission of evidence of subsequent remedial measures taken following her injury was within the trial court's discretion and that, even if it was improper, it was harmless error. The defendants respond that the Appellate Court correctly concluded that the admission of the evidence was both improper and harmful. We reverse the judgment of the Appellate Court.

The jury reasonably could have found the following facts relevant to the plaintiff's appeal. The plaintiff, who also was the president of the board of directors of the condominium association, brought this negligence action after she sustained injuries from a fall while stepping down from the roof deck of the condominium building in which she resided. Residents of the condominium building accessed the roof deck by stepping onto a single concrete step measuring ten inches deep and ten inches high, which led to a door that opened onto the roof deck. On April 17, 2005, the plaintiff's foot missed the step as she descended from the roof deck, and she slipped, sustaining a fractured left ankle and other injuries. Subsequently, the plaintiff instructed the management company's property manager, Richard Deutsch, to do “something ... to remedy the [step]....” Duncan v. Mill Management Co. of Greenwich, Inc., supra, 124 Conn.App. at 418, 4 A.3d 1268. Deutsch then arranged for a contractor to build replacement stairs over the original concrete step. The plaintiff thereafter commenced the present action, alleging, inter alia, that the defendants negligently had maintained the original step in violation of the building code.³ In their answer, the defendants raised as special defenses that, to the extent the plaintiff had been injured, the plaintiff's own negligence proximately caused her fall, and that the plaintiff's status as the president of the condominium associationmeant that the failure to ensure safe access to the roof deck constituted a breach of her fiduciary duty to the condominium association.

In its opinion, the Appellate Court set forth the following additional procedural history relevant to our resolution of this appeal. “The defendants filed a motion in limine to preclude the introduction of any evidence [regarding two] replacement stairs [constructed by the defendants after the plaintiff's injury]. On April 3, 2009, the court denied the motion without prejudice. On April 7, 2009, the plaintiff, through the testimony of Deutsch ... introduced evidence that the new stairs were built after the plaintiff's fall.⁴ 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' counsel] objected to that line of questioning, arguing that the evidence concerning the replacement stairs, [which consisted of] Deutsch's testimony and the accompanying photographs, was evidence of a subsequent remedial measure and, therefore, [was] precluded by [ § 4–7 of] the Connecticut Code of Evidence. The court overruled the ... objection as to the question concerning the actual construction of the new stairs because ‘the problem is that [when asked about whether he could have fixed the stairs without the approval of the board of directors, Deutsch] answered ... 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 [counsel] 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.’ ” Id. at 419–20, 4 A.3d 1268.

After the court overruled the objections, Deutsch described the postaccident repairs. During his testimony, the trial court also admitted into evidence, over objection, two photographs, which were marked as exhibits 5a and 5b, that depicted in part the postaccident repairs. The trial court sustained counsel's objections to two other photographs, exhibits 4a and 4b, which depicted more fully the replacement stairs.⁵

On April 14, 2009, the plaintiff's expert witness, Michael E. Shanok, a consulting engineer, was asked to describe the building code and to give his opinion regarding whether the step on which the plaintiff was injured deviated from the building code. Shanok explained that, in his view, the step on which the plaintiff was injured violated the building code, primarily because the riser exceeded seven inches, the tread was less than eleven inches in depth, and there were no handrails. In explaining the manner in which he conducted his inspection of the accident scene, Shanok testified that the layout of the area had been changed following the plaintiff's injury, and that anew stairway had been constructed over the original concrete step after the accident. ⁶ During Shanok's testimony,the trial court again sustained the objections by the defendants' counsel to exhibits 4a and 4b, the two photographs that depicted the postaccident repairs. At that time, the trial court instructed the jury that, “outside of your presence, I sustained the objection to exhibits 4a and 4b.... It's not necessary to bring to your attention the particulars of my ruling. But I want to make you understand that subsequent remedial measures are not evidence of negligence.”

During summation, the plaintiff's counsel highlighted Shanok's testimony regarding the building code violations. The plaintiff's counsel likewise alluded to Deutsch's testimony by reminding the jury that, after the plaintiff's injury, Deutsch “was able to go right out, get someone to come in within just a few weeks ... to build a system, an alternate system, in just that amount of time, within an amount of money that he didn't have to go back to the board [of directors] to discuss in order to get it done.” Subsequently, during rebuttal argument, the plaintiff's counsel advised the jury that “we know [that] for less than $1000, [the defendants] were able to take care of this really quickly, so they had ample, ample opportunity in more than a year to get this fixed.”

The trial court then charged the jury and specifically cautioned: “Some evidence may have been admitted for a limited purpose only. During the course of the trial, if I told you that certain evidence was being admitted for a limited purpose, you must consider it for that purpose and no other.” As the jury deliberated, it sent notes to the trial court with questions. Among those questions were a request to hear a specific portion of Shanok's cross-examination ⁷ and an inquiry about whether “the term ‘defective condition’ mean[t] that it was not in compliance with the ... current building code.” After the court addressed these questions and replayed a portion of Shanok's cross-examination testimony for the jury, the jury resumed its deliberations.

On April 17, 2009, the jury returned a verdict in favor of the plaintiff and awarded her economic and noneconomic damages of $235,000 and $500,000, respectively. These amounts were reduced to reflect the plaintiff's comparative fault of 25 percent, resulting in a total award of $551,250. In its responses to the jury interrogatories, the jury indicated that the plaintiff had failed to prove her common-law negligence claims because she failed to establish proximate cause as to either defendant but had prevailed with respect to her negligence per se claims against the defendants, having proven that a violation of the building code proximately caused her injuries.

After the trial court denied the defendants' posttrial motions, the defendants appealed to the Appellate Court, claiming that the trial court improperly enabled evidence of subsequent remedial measures to be introduced when it allowed the jury to hear testimony about and see photographs of the construction of the replacement stairs that had been carried out by the defendants following the plaintiff's fall....