Duncan v. Mill Management Company of Greenwich, Inc.
Before evidence of subsequent remedial measures may be admitted to prove control or another material issue, the issue for which the evidence is being offered must be controverted. Catherine Duncan, president of the board of directors of the Greenwich Chateau Condominium Association, fell and was injured while stepping off of the roof deck of the Greenwich Chateau Condominiums where she resided. She filed this negligence action against Mill Management Company of Greenwich, Inc., and the Greenwich Chateau Condominium Association. Following trial, the jury found in her favor awarding $235,000 in economic damages and $500,000 in noneconomic damages, reduced by her comparative fault of 25 percent for a total award of $551,250. The defendants appealed. The Appellate Court reversed the judgment finding that evidence of subsequent remedial measures taken by the defendants was improperly admitted and sufficiently harmful to require a new trial. The plaintiff was granted certification to appeal. The Supreme Court reversed the Appellate Court's judgment, concluding that, although improper, the admission was harmless. The plaintiff unsuccessfully argued that the admission of evidence concerning replacement stairs, through the testimony of Richard Deutsch, the management company's property manager, and two photographs, was within the trial court's discretion pursuant to Connecticut Code of Evidence §4-7(a). She first claimed it tended to prove the feasibility of repairs and control, which are permissible purposes if controverted. But, neither control nor the feasibility of repairs was controverted. The layout of the accident scene was not a critical issue, and the plaintiff's stated intention of admitting the photographs for layout purposes could have been accomplished in a far less prejudicial manner. The trial court determined that the evidence could serve to impeach Deutsch's credibility. However, there was not a clear inconsistency in Deutsch's testimony and behavior. The evidence offered limited probative value on Deutsch's credibility and truthfulness. The trial court abused its discretion in admitting the evidence without applying the balancing test in Connecticut Code of Evidence §4-3. However, the improperly admitted evidence was cumulative of evidence properly introduced and similarly probative of a building code violation underlying the jury's breach of duty finding on negligence per se counts. The improper introduction likely would not have affected the result. Additionally, the economic damages award was not excessive as claimed.