Reyes v. Medina Loveras, LLC , 174 Conn. App. 804 ( 2017 )

 STEPHANIE REYES v. MEDINA LOVERAS, LLC
(AC 38682)
Lavine, Keller and Pellegrino, Js.
Syllabus
The plaintiff sought to recover damages from the defendant, M Co., for
alleged negligence when she was in the men’s bathroom on M Co.’s
premises and the bathroom sink collapsed, causing her to fall and land
upon the shattered pieces of the sink and sustain injuries to her buttock.
At trial, it was contested whether at the time the sink collapsed, the
plaintiff was standing at the sink taking a picture of herself or attempting
to urinate in the sink. Following a trial, the jury returned a verdict
finding the plaintiff 90 percent liable and the defendant 10 percent liable,
and the trial court rendered judgment for the defendant, from which
the plaintiff appealed to this court. The plaintiff claimed that the trial
court improperly admitted into evidence a photograph of the plaintiff’s
uninjured buttock because it was irrelevant, and a certain portion of
her hospital emergency room records stating that she was trying to
urinate into the sink because it was inadmissible hearsay. Held:
1. The trial court did not abuse its discretion in admitting into evidence
the photograph of the plaintiff’s uninjured buttock; photographs of the
plaintiff’s injury and subsequent scarring were also admitted into evi-
dence, and the photograph of the uninjured buttock therefore was rele-
vant to helping the jury compare the two buttocks.
2. The trial court properly admitted into evidence the portion of the plaintiff’s
hospital records stating that she was trying to urinate into the sink as
a statement by a party opponent, an exception to the rule barring hearsay,
because there was credited testimony by the hospital physician who
prepared the challenged report attributing the statement to the plaintiff,
and the plaintiff admitted to having told hospital staff how the accident
occurred; alternatively, the statement was also admissible under the
hospital records exception to the hearsay rule, because it was part of
the plaintiff’s medical history in the emergency room report used to
check for any injuries that may initially have been missed by the treating
physician due to the nature of the accident, and thus the statement was
pertinent to the plaintiff’s diagnosis and treatment.
Argued April 10—officially released July 18, 2017
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Lee, J.)
Procedural History
Action to recover damages for personal injuries sus-
tained as a result of the defendant’s alleged negligence,
and for other relief, brought to the Superior Court in
the judicial district of Stamford-Norwalk, where the
court, Lee, J., denied in part the plaintiff’s request for
leave to amend the complaint; thereafter, the matter
was tried to the jury; verdict and judgment for the defen-
dant, from which the plaintiff appealed to this court.
Affirmed.
Maxwell W. Barrand, for the appellant (plaintiff).
Cynthia A. Watts, for the appellee (defendant).
Opinion
PELLEGRINO, J. The plaintiff, Stephanie Reyes,
appeals from the judgment, rendered after a jury trial,
in favor of the defendant, Medina Loveras, LLC. The
plaintiff claimed that she sustained serious physical
injuries when a bathroom sink on the defendant’s prem-
ises collapsed beneath her. The plaintiff claims on
appeal that the trial court improperly admitted into
evidence (1) a photograph of the plaintiff’s uninjured
buttock, and (2) certain portions of her hospital records.
We affirm the judgment of the trial court.
The facts giving rise to the plaintiff’s claim are con-
tested. It is uncontested that on the night of January
7, 2013, the plaintiff was in the men’s bathroom on the
premises of the defendant1 when the bathroom sink
collapsed, causing the plaintiff to injure her buttock.
Whether the plaintiff was standing at the sink, or
whether the plaintiff was urinating in the sink at the
time that the sink collapsed, however, was a disputed
issue at the trial. The plaintiff testified at trial that while
she was using the men’s bathroom, she steadied herself
on the bathroom sink in order to take a picture of
herself. Thereafter, the sink came off the wall, breaking
on the floor and causing the plaintiff to fall upon the
shattered shards, injuring her right buttock.2 An
employee of Discovery Cafe´ testified at trial that he
was near the men’s bathroom, heard a loud noise from
within, pushed the door open, and found the plaintiff
with her pants down to her knees on top of the broken
sink. In contradiction to the plaintiff’s testimony, a
report by a Stamford Hospital employee stated that
the plaintiff was trying to urinate in the sink before it
collapsed, causing her to fall. It is undisputed that the
plaintiff received treatment for her injuries at Stam-
ford Hospital.
On January 28, 2014, the plaintiff commenced the
present action against the defendant. In her amended
complaint filed on February 6, 2015, she alleged that the
defendant was negligent in failing to properly inspect,
secure, and maintain its premises in a reasonably safe
condition and that she suffered serious harm as a result
of this negligence. Following a trial, the jury returned
a verdict finding that the plaintiff was 90 percent liable
for her injuries and the defendant was 10 percent liable.
The court accepted the verdict and rendered judgment
on behalf of the defendant. This appeal followed. Addi-
tional facts will be set forth as necessary.
We begin by setting forth our standard of review for
both of the evidentiary claims the plaintiff has raised
on appeal. ‘‘The trial court’s ruling on evidentiary mat-
ters will be overturned only upon a showing of a clear
abuse of the court’s discretion. . . . We will 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. . . . To the
extent [that] a trial court’s admission of evidence is
based on an interpretation of the [Connecticut] Code
of Evidence, our standard of review is plenary. For
example, whether a challenged statement properly may
be classified as hearsay and whether a hearsay excep-
tion properly is identified are legal questions demanding
plenary review. . . . We review the trial court’s deci-
sion to admit [or exclude] evidence, if premised on
a correct view of the law, however, for an abuse of
discretion.’’ (Citation omitted; internal quotation marks
omitted.) Milford Bank v. Phoenix Contracting Group,
Inc., 143 Conn. App. 519, 532–33, 72 A.3d 55 (2013).
I
The plaintiff first claims that the court abused its
discretion in admitting a photograph of her uninjured
left buttock into evidence at trial.3 She argues that the
photograph was irrelevant to the facts of the case and
that it unduly prejudiced the jury by creating ‘‘the illu-
sion that the plaintiff’s injury completely healed, when
she in fact retains a large scar.’’ We disagree.
At trial, the defendant moved to have the photograph
of the plaintiff’s uninjured buttock admitted as a full
exhibit. The court asked the plaintiff: ‘‘[D]o you have
any problem with the picture itself,’’ to which the plain-
tiff replied, ‘‘[n]o, Your Honor.’’ Once the photograph
was admitted into evidence, but before it was marked
as a full exhibit, however, the plaintiff’s attorney
changed his mind and objected to the photograph on
the ground that it was not relevant. The court overruled
the objection, and the photograph was admitted as a
full exhibit.
‘‘Relevant evidence is evidence that has a logical ten-
dency to aid the trier in the determination of an issue.
. . . One fact is relevant to another if in the common
course of events the existence of one, alone or with
other facts, renders the existence of the other either
more certain or more probable. . . . Evidence is not
rendered inadmissible because it is not conclusive. All
that is required is that the evidence tend to support a
relevant fact even to a slight degree . . . .’’ (Internal
quotation marks omitted.) Drake v. Bingham, 131
Conn. App. 701, 708, 27 A.3d 76, cert. denied, 303 Conn.
910, 32 A.3d 963 (2011).
On the basis of our review of the record, we conclude
that the court did not abuse its discretion in admitting
the photograph of the plaintiff’s uninjured buttock into
evidence. Photographs of the plaintiff’s injury and sub-
sequent scarring were also admitted into evidence, and,
thus, the photograph of the plaintiff’s uninjured buttock
was relevant to helping the jury compare the plaintiff’s
injured and uninjured buttocks. The plaintiff only
objected to the photograph after she specifically told
the court that she did not have a problem with the
photograph, and after the photograph had been admit-
ted into evidence. Accordingly, the plaintiff’s first
claim fails.
II
The plaintiff’s next claim is that the court abused its
discretion when it allowed the tertiary trauma report4
containing the statement ‘‘21 y/o female who was drunk
and trying to urinate into a sink, which broke and she
fell’’ into evidence as an exception to the rule against
hearsay. The tertiary trauma report was prepared by
Kristina Ziegler, a physician at Stamford Hospital, fol-
lowing a surgical procedure in which the plaintiff’s
wound was stapled shut. Ziegler testified at trial regard-
ing her preparation of the report. The plaintiff argues
that the statement could not fall within the admission
of a party opponent exception to the hearsay rule5
because the physician who wrote the report did not
place the sentence in quotation marks and could not
specifically recall speaking with the plaintiff. In addi-
tion, the plaintiff asserts that the statement could not
fall within the hospital records exception6 to the hearsay
rule because the statement had no bearing on the diag-
nosis or treatment of the patient. We disagree with both
of the plaintiff’s assertions.
On November 18, 2015, the plaintiff filed a motion in
limine to preclude all entries concerning liability in the
plaintiff’s hospital records and any testimony based on
those entries. In her request, the plaintiff stated that
the tertiary trauma report should be precluded, insofar
as it pertains to liability, as inadmissible hearsay
because it was not relevant to the plaintiff’s diagnosis
or treatment and because the report directly contra-
dicted the plaintiff’s own deposition testimony and
other hospital records. The defendant objected to the
plaintiff’s motion, arguing that the tertiary trauma
report should be admissible either as a hospital record
or as an admission of a party opponent. The court sus-
tained the defendant’s objection and admitted the ter-
tiary trauma report into evidence as a statement of a
party opponent, noting: ‘‘[A]lmost all admissions that
come in as an exception to the hearsay rule are para-
phrases . . . . The declarant may well have said it dif-
ferently or in slightly different words, but the import
of what the declarant said is what comes in. And
because the declarant is an adverse party and is in
court, she is in a position to refute it and that’s why
it’s fair.’’
‘‘Whether evidence offered at trial is admissible pur-
suant to one of the exceptions to the hearsay rule pre-
sents a question of law. Accordingly, our review of
the [plaintiff’s] claim is plenary.’’ State v. Gonzalez, 75
Conn. App. 364, 375, 815 A.2d 1261 (2003), rev’d, 272
Conn. 515, 864 A.2d 847 (2005). It is an ‘‘elementary
rule of evidence that an admission of a party may be
entered into evidence as an exception to the hearsay
rule.’’ Fico v. Liquor Control Commission, 168 Conn.
74, 77, 358 A.2d 353 (1975). ‘‘There is no requirement
that the statement be against the interest of the party
when made or that the party have firsthand knowledge
of its content. Basically, the only objection to an admis-
sion of a party/opponent is that it is irrelevant or imma-
terial to the issues, or its admission violates a party’s
constitutional rights.’’ C. Tait and E. Prescott, Connecti-
cut Evidence (5th Ed. 2014) § 8.16.4 (a), p. 533.
On appeal, the plaintiff argues that the statement in
the tertiary trauma report was improperly admitted as
a statement by a party opponent. Specifically, she points
to Ziegler’s deposition testimony, which the plaintiff
believes establishes that Ziegler did not have a clear
enough recollection of the statement to establish that
it was indeed given by the plaintiff. The deposition
transcript, however, was not admitted into evidence at
trial because Ziegler appeared in person and provided
live testimony. Accordingly, the deposition transcript
is not a part of the record on appeal and we refuse to
consider any testimony from the deposition.
Turning to the evidence that was admitted at trial,
Ziegler testified regarding her recollection of the plain-
tiff and the preparation of the tertiary trauma statement.
The defendant asked Ziegler specifically if ‘‘it would
have been [the plaintiff] that the information came
from,’’ to which Ziegler responded ‘‘correct.’’ The defen-
dant then asked Ziegler if the information could have
‘‘come from anywhere else?’’ Ziegler replied that she
probably spoke with the physicians who performed the
surgery, and that although she did not recall specifically,
‘‘this documentation would have come from the
patient’s own statement.’’ In addition, the plaintiff testi-
fied that she ‘‘did tell somebody’’ at the hospital regard-
ing how the accident happened. When the defendant
asked the plaintiff to reiterate whether her answer ‘‘was,
yes, I told them exactly how it happened,’’ the plaintiff
responded, ‘‘yeah, when—right.’’
On the basis of our review of this record, we conclude
that the court properly admitted the statement from
the tertiary trauma report as a statement by a party
opponent. Ziegler specifically testified that the state-
ment would have come from the plaintiff, and the plain-
tiff admitted to having told hospital staff how the
accident occurred. Because there is testimony attribut-
ing the statement to the plaintiff, it was correctly classi-
fied by the court as a statement by a party opponent
and was properly admitted into evidence.
Alternatively, the statement was also admissible
under the hospital records exception to the hearsay
rule. The admissibility of hospital records is governed
by General Statutes § 52-180, which provides in relevant
part: ‘‘(a) Any writing or record, whether in the form
of an entry in a book or otherwise, made as a memoran-
dum or record of any act, transaction, occurrence or
event, shall be admissible as evidence of the act, trans-
action, occurrence or event, if the trial judge finds that
it was made in the regular course of any business, and
that it was the regular course of the business to make
the writing or record at the time of the act, transaction,
occurrence or event or within a reasonable time there-
after.’’ Additionally, under General Statutes § 4-104, hos-
pital records are admissible without any preliminary
testimony as to authenticity.
‘‘It should initially be pointed out that a hospital
record as a whole is not necessarily admissible for all
purposes or as proof of all facts found therein. . . .
The real business of a hospital is the care and treatment
of sick and injured persons. It is not to collect and
preserve information for use in litigation. Accordingly,
even though it might be the custom of a hospital to
include in its records information relating to questions
of liability for injuries which had been sustained by its
patients, such entries . . . would not be made admissi-
ble by the statute unless they also contained informa-
tion having a bearing on diagnosis or treatment.’’
(Citation omitted; internal quotation marks omitted.)
Marko v. Stop & Shop, Inc., 169 Conn. 550, 561–62, 364
A.2d 217 (1975).
In the present case, the medical history at issue in
the tertiary trauma report, namely, the portion stating
‘‘21 y/o female who was drunk and trying to urinate
into a sink, which broke and she fell,’’ was admissible
under the hospital records exception to the hearsay
rule so long as it had a bearing on the diagnosis or
treatment of the plaintiff. Ziegler testified at trial that
the purpose of preparing a tertiary trauma report is to
‘‘check on [the patient] again to make sure [they] haven’t
missed any small injuries like a broken finger or any-
thing like that and basically do a top to bottom exam
again. It’s a way to prevent missed injuries.’’ Given the
nature of the accident, it was important for the treating
physician to know what had happened to the plaintiff
in order to check for ‘‘small injuries . . . .’’ For exam-
ple, if the plaintiff had been sitting on the sink when
it broke, she could have suffered injuries consistent
with that specific type of fall. Alternatively, if the plain-
tiff had been standing at the sink when it fell, she may
have suffered a different set of injuries. Moreover,
drunkenness is often medically germane to treatment
and is therefore admissible evidence. See D’Amato v.
Johnston, 140 Conn. 54, 61–62, 97 A.2d 893 (1953).
Accordingly, we conclude that the entire statement in
the tertiary trauma report was pertinent to the plaintiff’s
diagnosis and treatment and that the court did not abuse
its discretion by admitting it into evidence.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant owns and operates a restaurant in Stamford known as
the Discovery Cafe´ (premises).
2
We note that the record is less than clear as to which side of her buttocks
the plaintiff injured. The plaintiff testified at trial that she injured her right
buttock, yet claims in her brief that she injured her left buttock. For clarity
and consistency purposes, we will refer to the plaintiff’s right buttock as
the injured buttock, and the plaintiff’s left buttock as the uninjured buttock.
3
The plaintiff testified at trial that the photograph was taken during the
summer of 2014, after her accident occurred. She further testified that it
depicted her left buttock and did not document her injuries.
4
A tertiary trauma report is a document prepared after a patient’s emer-
gency room visit to alert medical staff to any possible related or consequen-
tial injuries that were not reported by the patient.
5
See Conn. Code Evid. § 8-3 (1) (A).
6
See General Statutes § 52-180.