Smith v. Redding , 177 Conn. App. 283 ( 2017 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
BRANDON V. SMITH v. TOWN OF REDDING ET AL.
(AC 38704)
Sheldon, Mullins and Sullivan, Js.
Syllabus
The plaintiff, who had sustained injuries when he fell off of a municipal
retaining wall, sought to recover damages for absolute public nuisance,
claiming that the defendant town had created a nuisance by causing
the retaining wall to be constructed without a fence on top of it, which,
in turn, caused his fall and resulting injuries. Prior to trial, the plaintiff
filed a motion in limine, seeking a preliminary ruling as to the admissibil-
ity of evidence that, subsequent to his fall, the town had constructed a
fence on top of the wall and that the Department of Transportation had
ordered the installation of the fence. In response, the trial court issued
an order ruling that evidence of any subsequent remedial measures as
to the retaining wall was inadmissible. Following a trial, the jury returned
a verdict in favor of the town, determining that the plaintiff had failed
to prove that the retaining wall was inherently dangerous. Thereafter,
the trial court denied the plaintiff’s motion to set aside the verdict and
rendered judgment in accordance with the verdict, from which the
plaintiff appealed to this court. Held:
1. The record was inadequate to review the plaintiff’s claim that the trial court
abused its discretion by excluding evidence regarding the construction
of the fence on the retaining wall after the plaintiff’s fall; the plaintiff
failed to provide this court with various transcripts of the trial proceed-
ings, and without a complete record of the trial, this court did not know
whether the plaintiff presented other evidence that the retaining wall
without the fence was inherently dangerous, and could not analyze fully
whether the trial court’s exclusion of evidence of subsequent remedial
measures to the retaining wall had affected the jury’s verdict or whether
the plaintiff had been harmed by the trial court’s ruling.
2. This court declined to review the plaintiff’s claim that the trial court
improperly failed to instruct the jury on the town’s zoning regulations
as a safety standard; the record indicated that the trial court did not
address or decide this claim, and, therefore, the plaintiff failed to pre-
serve it for appeal.
Argued May 30—officially released October 17, 2017
Procedural History
Action to recover damages for public nuisance,
brought to the Superior Court in the judicial district of
Fairfield, where the court, Radcliffe, J., granted the
motion to strike filed by the defendant M. Rondano,
Inc.; thereafter, the court, Radcliffe, J., granted the
motion for summary judgment filed by the defendant
BL Companies, Inc.; subsequently, the complaint was
withdrawn as to the defendant M. Rondano, Inc.; there-
after, the court, Kamp, J., issued an order regarding
the admissibility of certain evidence; subsequently, the
court, Kamp, J., denied the plaintiff’s motion to reargue;
thereafter, the matter was tried to the jury before Kamp,
J.; verdict for the named defendant; subsequently, the
court, Kamp, J., denied the plaintiff’s motion to set
aside the verdict and rendered judgment in accordance
with the verdict, from which the plaintiff appealed to
this court. Affirmed.
A. Reynolds Gordon, with whom was Frank A. DeNi-
cola, Jr., for the appellant (plaintiff).
Thomas R. Gerarde, with whom was Emily E. Hol-
land, for the appellee (named defendant).
Opinion
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 reme-
dial measures; and (2) to instruct the jury on the Redd-
ing Zoning Regulations. We affirm the judgment of the
trial court.
On the basis of the record provided, the jury reason-
ably could have found the following facts. After con-
suming 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 Septem-
ber 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 con-
structed, 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 consti-
tuted 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 ten-
dency to inflict injury on person or property. The plain-
tiff 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
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 mea-
sures, 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 natu-
ral tendency to create danger and inflict injury upon
person or property; (2) the danger created was a contin-
uing 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 dam-
ages. . . . [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. Spe-
cifically, the plaintiff sought to introduce evidence at
trial that the Department of Transportation (depart-
ment) ordered the installation of the fence. He also
sought to introduce into evidence photographs of the
fence. The plaintiff argued, inter alia, that the exclusion-
ary rule regarding evidence of subsequent remedial
measures; see § 4-7 of the Connecticut Code of Evi-
dence;3 did not apply because it excludes evidence of
voluntary remedial measures but, in this case, construc-
tion 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 deci-
sion 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 rul-
ing, 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 determi-
nation 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, 119.
We conclude that even if we assumed, arguendo, an
exception for involuntary measures to the rule against
the admission of evidence of subsequent remedial mea-
sures, 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 appel-
lant 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 impossi-
ble 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 chal-
lenged 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 tran-
scripts: (1) the October 14, 2015 argument on the plain-
tiff’s motions in limine; (2) the October 27, 2015
argument on the motion to reargue regarding subse-
quent remedial measures; (3) the October 30, 2015
direct examination and cross-examination of lay wit-
ness 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 plaintiff, or with counsels’
closing arguments. Additionally, we know that we were
not provided with any testimony from Timothy Wilson
or Matthew Cleary, engineers from the department. A
lengthy period passed between jury selection and the
jury’s verdict, suggesting a trial that covered a couple
of weeks. Additionally, we are left to speculate about
who else testified and the scope and content of their
testimony regarding the dangerousness or safety of the
retaining wall without a fence. For example, the defen-
dant disclosed an expert, but we do not know whether
he testified or the content of his testimony relevant to
this issue.
It is the appellant’s burden to provide a complete
record on appeal. Practice Book § 61-10. He also is
responsible for establishing that the allegedly improper
evidentiary ruling of the trial court harmed him. See
Connecticut Light & Power Co. v. Gilmore, 289 Conn.
88, 128, 956 A.2d 1145 (2008) (‘‘Even when a trial court’s
evidentiary ruling is deemed to be improper, we must
determine whether that ruling was so harmful as to
require a new trial. . . . In other words, an evidentiary
ruling will result in a new trial only if the ruling was
both wrong and harmful.’’ [Internal quotation marks
omitted.]). We conclude that the plaintiff has not carried
his burden under the circumstances of this case.
On the record before this court, we are unable to
determine whether the trial court’s evidentiary ruling
affected the jury’s verdict. Even if we assume, arguendo,
that the court improperly excluded the evidence regard-
ing the department’s order to construct a fence atop
the restraining wall, we are unable to assess fully the
impact of this ruling. The jury’s verdict was based upon
its conclusion that the plaintiff failed to prove that the
wall without a fence was inherently dangerous in that
it had a natural tendency to inflict injury on person or
property. Although the department’s order may have
carried some added weight with the jury, the plaintiff
was able to argue that the department’s bridge design
manual called for a fence and that the department called
for a fence during the design of the wall. The bridge
design manual, the state building code, and The BOCA
National Building Code (14th Ed. 1999) were admitted
into evidence. Without the testimony of other witnesses,
including the plaintiff’s expert and at least two state
engineers, and counsel’s closing arguments, we are
unaware of the extent to which the plaintiff was able
to present other evidence that the wall without a fence
was inherently dangerous. Accordingly, we are unable
to analyze whether the other evidence in the case would
have given us the fair assurance that the exclusion of
the evidence of subsequent remedial measures did not
affect the jury’s verdict in order to determine whether
the plaintiff was harmed by the trial court’s ruling.
II
The plaintiff also claims that the trial court improp-
erly failed to instruct the jury on the Redding Zoning
Regulations (zoning regulations).4 He asserts that the
zoning regulations were relevant evidence that the
retaining wall was inherently dangerous without a
fence. First, he argues that the zoning regulations,
which included safety as one of its purposes, applied
to the construction of the wall. Second, he asserts that,
even if the zoning regulations did not apply to the wall,
they established a safety standard, which the court
should have instructed the jury to consider when
determining whether the wall was inherently danger-
ous.5 We conclude that the plaintiff has failed to pre-
serve his claim for appeal.
The record does not reveal a request to charge regard-
ing inherent danger and the zoning regulations, or the
safety standards allegedly evinced by those regulations.
Although the plaintiff filed a written request to charge
and a supplemental request to charge, those requests
did not address the issue of inherent danger as it relates
to the zoning regulations, and we have not been pro-
vided with a record of the charge conference.
Additionally, the plaintiff, in his exception to the
charge, also did not raise these specific issues. After
the court delivered its instructions, it asked the parties
whether they wanted to take exceptions to the charge.
The plaintiff took exception, stating in relevant part:
‘‘Yes, Your Honor. First, Your Honor’s failure to charge
on the Redding zoning violation, making it a violation
to have within the town of Redding a retaining wall
more than four feet tall with no fence.’’ This exception,
as stated, was insufficient to put the court on notice
of the nature of the claimed instructional error, as the
plaintiff did not state any grounds for the exception.
See generally Herrera v. Madrak, 58 Conn. App. 320,
323, 752 A.2d 1161 (2000).
Our review of the record provided reveals that the
first time the plaintiff raised his claim that the court
should have instructed the jury on the zoning regula-
tions as evidence that the wall, as constructed, consti-
tuted an inherently dangerous condition was in his
motion to set aside the verdict. The plaintiff set forth
essentially the same argument in his memorandum of
law in support of his motion to set aside as he does
before this court on appeal. Specifically, as to the wall’s
inherent dangerousness, he first argued to the trial court
that the zoning regulations applied under General Stat-
utes § 13a-80d6 because the wall and the surrounding
project were in a state right-of-way and the defendant
was a tenant or lessee of the state. He cited evidence
from the trial to support this claim. Alternatively, he
argued that the zoning regulations were admissible as
a safety standard to address the inherent danger, even
if the regulations did not apply to the wall. On December
14, 2015, the court heard oral arguments on the motion.
In its memorandum of decision, however, the court
framed the plaintiff’s argument as follows: ‘‘The second
ground upon which the plaintiff seeks to set aside the
verdict is . . . the court’s failure to instruct the jury
that the retaining wall was unlawful in that it violated
the . . . zoning regulations.’’ After setting forth the evi-
dence presented at trial, the court concluded that the
evidence did not support a charge to the jury concerning
the application of the zoning regulations.
Practice Book § 16-20 provides in relevant part: ‘‘An
appellate court shall not be bound to consider error as
to the giving of, or the failure to give, an instruction
unless the matter is covered by a written request to
charge or exception has been taken by the party appeal-
ing immediately after the charge is delivered. Counsel
taking the exception shall state distinctly the matter
objected to and the ground of objection. . . .’’ ‘‘It is
fundamental [however] that claims of error must be
distinctly raised and decided in the trial court before
they are reviewed on appeal. As a result, Connecticut
appellate courts will not address issues not decided
by the trial court.’’ (Internal quotation marks omitted.)
Tompkins v. Freedom of Information Commission, 136
Conn. App. 496, 511, 46 A.3d 291 (2012); see also Crest
Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 444
n.10, 685 A.2d 670 (1996) (claims ‘‘neither addressed
nor decided’’ by trial court not properly before appel-
late tribunal).
In the present case, we have no record that indicates
that the court ever addressed the claim that the plaintiff
is making on appeal, namely, that the court should have
instructed the jury on the zoning regulations as a safety
standard. The court’s decision on the motion to set aside
the verdict addressed the applicability of the zoning
regulations to the third element of nuisance, unreason-
able or unlawful use, rather than the first element, inher-
ent danger. Because the trial court did not address or
decide the plaintiff’s claim regarding the zoning regula-
tions as a safety standard, we decline to address it.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff served his complaint against the defendants, the town of
Redding, M. Rondano, Inc. (Rondano), and BL Companies, Inc. (BL Compa-
nies). On December 5, 2014, the court rendered summary judgment in favor
of BL Companies on the plaintiff’s claims against it. Additionally, on July
21, 2015, the plaintiff withdrew his claim against Rondano. Although the
town brought a cross claim against Rondano, the court bifurcated that claim
to be resolved after the trial between the plaintiff and the town. This appeal
is from the trial on the plaintiff’s claim of absolute public nuisance against
the town. Consequently, Rondano and BL Companies are not parties to this
appeal and, therefore, all references to the defendant herein are to the town
of Redding.
2
The parties agree that the plaintiff’s fall occurred on September 17, 2011.
3
Section 4-7 (a) of the Connecticut Code of Evidence provides in relevant
part: ‘‘[E]vidence of measures taken after an event, which if taken before
the event would have made injury or damage less likely to result, is inadmissi-
ble to prove negligence or culpable conduct in connection with the event.
Evidence of those measures is admissible when offered to prove contro-
verted issues such as ownership, control or feasibility of precautionary
measures.’’
4
The plaintiff also appears to claim that the court abused its discretion
in excluding the zoning regulations from evidence. The record includes,
however, the zoning regulations in their entirety as exhibit 20 and excerpts
thereof were admitted as exhibit 20a; both exhibits were marked as full
exhibits. Corroborating the admission of these exhibits, the limited recorded
provided; see part I of this opinion; includes a trial transcript of the plaintiff’s
attorney requesting exhibits 20 and 20a, reading from the zoning regulations,
and questioning the defendant’s zoning enforcement officer on the regula-
tions. Our examination of the limited record and the parties’ appellate argu-
ments, does not provide any indication that the court limited the admissibility
of the regulations or limited the plaintiff’s ability to argue their relevance.
5
The jury’s verdict was based on its conclusion that the plaintiff had
failed to demonstrate that the wall was inherently dangerous. We interpret
the plaintiff’s arguments that the construction of the wall without a fence
violated the zoning regulations to go to evidence of inherent dangerousness.
As far as the plaintiff argues that the purported violation had some indepen-
dent import, this is irrelevant because the jury did not reach the third element
of a cause of action for nuisance, which requires that ‘‘the use of the land
was unreasonable or unlawful . . . .’’ (Internal quotation marks omitted.)
State v. Tippetts-Abbett-McCarthy-Stratton, supra, 204 Conn. 183.
6
General Statutes § 13a-80d provides: ‘‘The use of any space on, over
or below any state highway right-of-way leased by the Commissioner of
Transportation to a lessee shall conform with zoning regulations and ordi-
nances of the local government in which the land is located or as modified
by a variance pursuant to legal process.’’