Smith v. Town of Redding

177 Conn.App. 283

172 A.3d 318

Brandon V. SMITH

v.TOWN OF REDDING et al.

AC 38704

Appellate Court of Connecticut.

Argued May 30, 2017

Officially released October 17, 2017

A. Reynolds Gordon, with whom was Frank A. DeNicola, Jr., for the appellant (plaintiff).

Thomas R. Gerarde, with whom was Emily E. Holland, for the appellee (named defendant).

Sheldon, Mullins and Sullivan, Js.

SULLIVAN, J.

In this absolute public nuisance action, the plaintiff, Brandon V. Smith, appeals following a jury trial from the judgment of the trial court rendered in favor of the defendant town of Redding.¹ On appeal, the plaintiff claims that the trial court improperly failed: (1) to admit evidence of involuntary subsequent remedial measures; and (2) to instruct the jury on the Redding Zoning Regulations. We affirm the judgment of the trial court.

On the basis of the record provided, the jury reasonably could have found the following facts. After consuming alcoholic drinks over the course of an evening at a couple of establishments in Redding, the plaintiff departed the Lumberyard Pub around 2 a.m. on September 17, 2011.² Departing the pub, the plaintiff walked across the parking lot in front of the pub to the exit onto the street. On the edge of the parking lot was a wooden guardrail and, on the other side of the guardrail, there was a landscaped area atop a retaining wall. The retaining wall began on a plane level with the ground, and the ground then sloped down along the length of the wall. On the night of his fall, the plaintiff stepped onto the wall at ground level and walked the length of the wall before falling off, landing on his head and shoulder.

The retaining wall had been constructed as part of the defendant's federally funded streetscape project in the Georgetown section of the town. The defendant hired BL Companies, Inc., to design the project and J. Rondano, Inc., to construct it. As designed and constructed, the retaining wall was without a fence atop the wall.

On December 27, 2011, the plaintiff commenced this action against the defendant. See footnote 1 of this opinion. He then amended his complaint several times. In his substituted complaint filed on April 15, 2015, the plaintiff alleged that the defendant caused the retaining wall to be built without a fence, that such wall constituted an absolute public nuisance, and that this caused his fall and resulting injuries. Following a jury trial, the jury returned a verdict in favor of the defendant on November 12, 2015, determining in its interrogatories that the plaintiff failed to prove that the retaining wall was inherently dangerous, in that it had a natural tendency to inflict injury on person or property. The plaintiff filed a motion to set aside the verdict, which the court denied on December 22, 2015. Thereafter, the court rendered judgment in favor of the defendant, and this appeal followed. Additional facts will be set forth as necessary to the resolution of this appeal.

I

The plaintiff claims that the trial court abused its discretion when it failed to admit evidence of a fence that the defendant had built atop the retaining wall subsequent to his fall. Although he acknowledges that our courts have not recognized such an exception to the exclusion of evidence of subsequent remedial measures, he argues that the fence was built involuntarily, and, thus, the bar to evidence of subsequent remedial measures is inapplicable. Without deciding whether such evidence could be admitted, we conclude that we are unable to review the plaintiff's claim because the record before this court does not allow us to evaluate whether the trial court's ruling harmed him.

As a preliminary matter, we set forth the standard for public nuisance liability as expressed by our Supreme Court. "Our prior decisions have established that in order to prevail on a claim of nuisance, a plaintiff must prove that: (1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was [the] proximate cause of the plaintiffs' injuries and damages.... [W]here absolute public nuisance is alleged, the plaintiff's burden includes two other elements of proof: (1) that the condition or conduct complained of interfered with a right common to the general public ... and (2) that the alleged nuisance was absolute, that is, that the defendants' intentional conduct, rather than their negligence, caused the condition deemed to be a nuisance." (Citations omitted; internal quotation marks omitted.) State v. Tippetts–Abbett–McCarthy–Stratton, 204 Conn. 177, 183, 527 A.2d 688 (1987).

The following additional procedural facts are relevant to this claim. On September 15, 2015, the plaintiff filed a motion in limine seeking, inter alia, a preliminary ruling as to the admissibility of evidence of a fence constructed atop the retaining wall in April, 2015. Specifically, the plaintiff sought to introduce evidence at trial that the Department of Transportation (department) ordered the installation of the fence. He also sought to introduce into evidence photographs of the fence. The plaintiff argued, inter alia, that the exclusionary rule regarding evidence of subsequent remedial measures; see § 4–7 of the Connecticut Code of Evidence ;³ did not apply because it excludes evidence of voluntary remedial measures but, in this case, construction of the fence was required from the start of the project and was involuntarily built. In an October 14, 2015 order, the court determined that evidence of any subsequent remedial measures as to the retaining wall was inadmissible.

In his motion to set aside the verdict, the plaintiff again raised the issue of the admissibility of evidence of the subsequently built fence, citing arguments made in prior briefs and oral arguments before the court, as a ground to set aside the verdict. The court denied the plaintiff's motion, concluding that any evidence of the fence was inadmissible under § 4–7 of the Connecticut Code of Evidence.

"[Our appellate courts] review the trial court's decision to admit [or exclude] evidence, if premised on a correct view of the law ... for an abuse of discretion.... Under the abuse of discretion standard, [w]e [must] make every reasonable presumption in favor of upholding the trial court's ruling, and only upset it for a manifest abuse of discretion.... [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did." (Citation omitted; internal quotation marks omitted.) Filippelli v. Saint Mary's Hospital, 319 Conn. 113, 119, 124 A.3d 501 (2015). Nevertheless, "[b]efore a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful.... [A]n evidentiary impropriety in a civil case is harmless only if we have a fair assurance that it did not affect the jury's verdict.... A determination of harm requires us to evaluate the effect of the evidentiary impropriety in the context of the totality of the evidence adduced at trial." (Internal quotation marks omitted.) Filippelli v. Saint Mary's Hospital, supra, at 119, 124 A.3d 501.

We conclude that even if we assumed, arguendo, an exception for involuntary measures to the rule against the admission of evidence of subsequent remedial measures, the record before this court would not allow us to analyze whether the plaintiff was harmed by the exclusion of such evidence in this case. When an appellant requests that the court reverse the judgment of the trial court on the basis of an allegedly improper evidentiary ruling, a complete record is particularly important for a reviewing court to consider the extent of the harm suffered, if any. See Desrosiers v. Henne, 283 Conn. 361, 367–69, 926 A.2d 1024 (2007) (declining to review evidentiary claim where defendant provided only excerpts of trial transcripts because it was impossible for reviewing court to determine whether alleged impropriety was harmful); Ryan Transportation, Inc. v. M & G Associates, 266 Conn. 520, 531, 832 A.2d 1180 (2003) (declining to review evidentiary claim where plaintiff did not provide transcript of witness testimony, stating, "even if we assume, arguendo, that the challenged evidentiary ruling was improper, we have no way of discerning whether any such impropriety was harmful in the broader context of the entire trial"); Chester v. Manis, 150 Conn.App. 57, 62–63, 89 A.3d 1034 (2014) (declining to review evidentiary claim because incomplete record left court unable to determine if "alleged impropriety would likely have affected the result of the trial"); Quaranta v. King, 133 Conn.App. 565, 569–70, 36 A.3d 264 (2012) (declining to review plaintiff's evidentiary claim where plaintiff provided only partial transcript of proceedings).

A review of our appellate record in the present case reveals that the plaintiff ordered and delivered a paper copy and an electronic copy of the following six transcripts: (1) the October 14, 2015 argument on the plaintiff's motions in limine; (2) the October 27, 2015 argument on the motion to reargue regarding subsequent remedial measures; (3) the October 30, 2015 direct examination and cross-examination of lay witness Aimee Pardee; (4) the November 3, 2015 direct examination and cross-examination of lay witness Priti Bhardwaj; (5) the November 12, 2015 argument on exceptions to the jury charge; and (6) the December 14, 2015 argument on the motion to set aside the verdict. Additionally, the plaintiff's appendix includes a single page transcript described as an excerpt of the October 30, 2015 testimony of Natalie Ketcham.

We know for certain that we were not provided with the full testimony of Ketcham, the plaintiff's expert, Richard A. Ziegler, and the...