Sokolowski v. Medi Mart, Inc.

Decision Date19 March 1991
Docket NumberNo. 9086,9086
Citation587 A.2d 1056,24 Conn.App. 276
CourtConnecticut Court of Appeals
PartiesCora SOKOLOWSKI v. MEDI MART, INC.

Barbara B. Sacks, with whom, on the brief, was Edward W. Gasser, Hartford, for appellant (defendant).

Richard C. Mahoney, Hartford, for appellee (plaintiff).

Before DUPONT, C.J., and NORCOTT and LANDAU, JJ.

NORCOTT, Judge.

The defendant, Medi Mart, Inc., appeals from the judgment rendered after a jury trial in favor of the plaintiff. The plaintiff brought the underlying action to recover damages for injuries and losses she allegedly sustained as a result of a fall at the defendant's store in Simsbury on December 30, 1985. On February 28, 1990, the jury returned a verdict of $45,000 in favor of the plaintiff and further determined that there was no comparative negligence involved in the case. On March 5, the defendant moved to set aside the verdict. The trial court denied the defendant's motion on April 4, 1990.

On appeal, the defendant claims that the trial court improperly (1) denied its motion in limine seeking the exclusion of evidence of the defendant's offers to pay the plaintiff's medical bills, (2) allowed the plaintiff to present evidence of the defendant's subsequent failure to pay her medical bills, (3) excluded certain medical reports of the plaintiff's treating physician, (4) allowed the admission of the plaintiff's medical records concerning injuries that were unrelated to her accident, and (5) denied its motion for a directed verdict.

The jury could reasonably have found the following facts from the evidence presented at trial. On December 30, 1985, the plaintiff, a business invitee of the defendant, slipped on a foreign substance and fell to the floor at the defendant's store. The offending substance was located about eight to ten feet from a counter where three of the defendant's employees were working and within a similar distance from at least five customers who had been standing there for a period of approximately fifteen minutes prior to the plaintiff's fall. No witness testified to having heard a bottle break during this time period.

As a result of the fall, the plaintiff sustained a 5 percent permanent partial disability of her cervical spine and incurred $1100 in medical expenses and $500 in lost wages. Other facts pertinent to our decision will be discussed later in this opinion.

The defendant first claims that the trial court improperly denied its motion in limine, filed before trial, which sought to exclude any testimony about the defendant's offers to pay the plaintiff's medical bills. The defendant argues that evidence of such offers was inadmissible because they were offers to compromise or settle.

During the argument on its motion in limine, the defendant unsuccessfully contended that the trial court should rule that any statements made by its assistant manager relating to the store's payment of the plaintiff's medical bills were inadmissible as offers of settlement and compromise. The defendant only briefly argued, however, that the store's assistant manager allegedly told the plaintiff: "Anything you need or want, you know, just let us know," and "If you have any medical bills, bring them in, and we'll take care of them." 1 Given the brevity and substance of the defendant's motion in limine, we cannot say that the trial court's conclusion that the assistant manager's comments were not offers of settlement was clearly erroneous, and that that court therefore should not have denied the defendant's motion.

The defendant further argues, however, that the trial court committed reversible error when it later allowed the plaintiff to testify that the defendant offered to pay her medical bills. At trial, the plaintiff testified that when she returned to the defendant's store two days after the accident, an assistant manager directed another store employee to "give her anything she wants, and [there will] be no charge for it." The plaintiff also testified that the assistant manager then told her concerning "any bills that occurred to bring them in and Medi Mart would take care of them." The defendant did not object to this testimony.

We first address the plaintiff's argument that this claim is unreviewable because the defendant failed to object to the plaintiff's testimony. We disagree. The defendant alerted the trial court to the issue that it now presses on appeal. The plaintiff's testimony at trial clearly raised the issue of whether the defendant had made offers of settlement or compromise. Given the trial court's previously expressed sentiment about the issue, it is not surprising that the defendant did not object. We agree with the defendant that the failure to object to the plaintiff's testimony after its motion in limine was denied is not a waiver of the defendant's claim as long as that claim remains the same on appeal, as it does here. See Practice Book § 4185; 2 see also West Haven Sound Development Corporation v. West Haven, 207 Conn. 308, 311 n. 2, 541 A.2d 858 (1988); Cohen v. Cohen, 11 Conn.App. 241, 248, 527 A.2d 245 (1987).

Turning next to the merits of the defendant's first claim, we conclude that the trial court should not have allowed the assistant manager's hearsay statements into evidence after it had clearly been alerted to the possibility of the introduction of those statements, which could have been interpreted as offers to settle or compromise. "To promote the settling of disputes, offers of compromise, if made to buy peace, are not admissible against the party making them as an admission of liability. Stranahan v. East Haddam, 11 Conn. 507, 512-519 (1836)." C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) § 11.5.4(b). Offers to pay medical bills fall within this principle. See Danahy v. Cuneo, 130 Conn. 213, 33 A.2d 132 (1943). 3 The assistant manager's comments in this case, however, are ambiguous. " 'Where it is not clear whether the statement is an offer of compromise or an admission of liability [or other fact] and the motive of the declarant is subject to speculation and conjecture, the statement must be excluded.' " Simone Corporation v. Connecticut Light & Power Co., 187 Conn. 487, 490, 446 A.2d 1071 (1982). Thus, the trial court should have excluded the assistant manager's hearsay statements, which could have easily been construed as an offer to settle or compromise.

We next turn to the defendant's second, closely related claim. The defendant alleges that, after permitting the plaintiff to testify as to the statements of its assistant manager, the trial court wrongfully allowed her to present evidence of the defendant's failure to pay the medical bills that it had promised to cover.

During direct examination, the plaintiff testified that, after she spoke with the assistant manager, the defendant refused to pay her medical bills for certain X rays. The defendant immediately objected on the ground of relevancy. The trial court first indicated that the evidence might be relevant to the issue of damages or the "out-of-pocket costs as part of [the] case." The court then stated that "testimony has come in that the store has indicated they would take care of bills, so the explanation that at a point they weren't doing that is, I think, in the context of that testimony, acceptable testimony. I'm going to allow that." The defendant again duly excepted to the court's ruling.

Whatever its reasoning, the trial court should not have allowed this evidence because, under our analysis, the exclusion of the improper evidence of settlement or compromise renders the evidence of the failure to pay certain medical bills irrelevant.

In any event, the jury heard testimony that we have found to be inadmissible, and our next inquiry is whether the court's evidentiary rulings constituted harmful error. To be reversible, evidentiary error must be both wrong and harmful. Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 142, 491 A.2d 389 (1985); DeCarufel v. Colonial Trust Co. 143 Conn. 18, 21, 118 A.2d 798 (1955). The appellant bears the burden of establishing the specific harmfulness of the error. See Braun v. Edelstein, 17 Conn.App. 658, 554 A.2d 1102, cert. denied, 211 Conn. 803, 559 A.2d 1138 (1989). We find that the defendant has failed to meet this burden.

We first note that the defendant never identifies any specific harm it may have suffered from the trial court's improper introduction of the challenged evidence. The defendant suggests that the jury was prejudiced because the evidence allowed them to develop a "bad guy" opinion of the drug store. Our review of the record reveals, however, that the defendant itself, on cross-examination of the assistant manager, brought out that it was the store's policy to offer to pay the medical bills of persons in the position of the plaintiff. Thus, the court allowed the defendant, in turn, to offset any "bad guy" impression through this cross-examination, which would tend to suggest to the jury that the store had a humane policy toward accident victims.

We also note that the entirety of the testimony concerning this claim was extremely brief. Indeed, the assistant manager could not even recall having received any X-ray bills for payment from the plaintiff. Neither counsel argued the defendant's alleged promise to pay and subsequent nonpayment of the plaintiff's medical bills to the jury during final arguments, and the trial court did not charge on these issues. Our review leads us to conclude, because of the paucity of this unemphasized testimony, that the jury was not prejudiced by such evidence. Thus, the defendant cannot prevail on these claims.

The defendant's next two claims concern the trial court's rulings on certain medical records introduced by the defendant and the plaintiff respectively.

The first of these claims is that the court should not have excluded the notes of the plaintiff's treating physician offered...

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