Pecher v. Distefano , 176 Conn. App. 715 ( 2017 )

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STEFANA PECHER ET AL. v. RHEA
DISTEFANO ET AL.
(AC 38287)
Prescott, Mullins and Bear, Js.
Syllabus
The plaintiff P sought to recover damages for personal injuries she sustained
while taking horseback riding lessons at a horse stable owned and
operated by the defendant D, claiming that her injuries were caused
by, inter alia, D’s negligence in failing to warn her concerning certain
dangerous conditions at the stable and the inherent risks of horseback
riding. Following a trial, the jury returned a verdict in favor of D. There-
after, the trial court rendered judgment in accordance with the verdict,
and P appealed to this court. She claimed that the trial court committed
harmful error by admitting into evidence a written agreement between
the parties and a photograph of a sign on the stable’s premises, both
of which purported to release D from all liability for injuries arising
out of horse related activities at the stable. Held that the record was
inadequate to review P’s claim that the trial court committed harmful
error by admitting into evidence the subject agreement and photograph;
P failed to provide this court with various transcripts of the trial proceed-
ings, and without a complete record of the trial, this court could not
make an informed assessment of P’s claim of harmful error pursuant
to the relevant factors for evaluating a claim of evidentiary impropriety,
including an evaluation of the relationship of the agreement and the
photograph to the issue of D’s alleged negligence, whether the trial court
gave any additional curative instructions to the jury that mitigated the
effect of the challenged evidentiary ruling, whether the subject evidence
was cumulative of other validly admitted evidence, and whether the
trial court’s allegedly improper ruling affected the jury’s perception of
the remaining evidence.
Argued January 31—officially released September 26, 2017
Procedural History
Action to recover damages for, inter alia, the defen-
dants’ alleged negligence, and for other relief, brought
to the Superior Court in the judicial district of New
London, where the complaint was withdrawn in part;
thereafter, the court, Cole-Chu, J., denied the named
plaintiff’s motion to preclude certain evidence; subse-
quently, the matter was tried to the jury; verdict for
the named defendant; thereafter, the court denied the
named plaintiff’s motion to set aside the verdict and
for a new trial, and rendered judgment in accordance
with the verdict, from which the named plaintiff
appealed to this court. Affirmed.
James J. Healy, with whom was Christopher P.
Anderson, for the appellant (named plaintiff).
Greg S. Kreiger, with whom was John Stephen Papa,
for the appellee (named defendant).
Opinion
MULLINS, J. The plaintiff, Stefana Pecher,1 appeals
from the judgment of the trial court, following a jury
trial, rendered in favor of the defendant, Rhea
Distefano.2 On appeal, the plaintiff claims that the trial
court committed harmful error, requiring a new trial,
by admitting a document, titled ‘‘Release and Hold
Harmless Agreement,’’ and a photograph of a sign
(photo), both of which, at least in part, purported to
relieve the defendant from all liability for injuries arising
out of horse related activities at Showtime Stables. The
issue in this appeal is whether we can review the plain-
tiff’s claims notwithstanding the fact that she has failed
to provide us with a complete record. We conclude that
the absence of a complete record restricts our ability
to review fully and accurately the plaintiff’s claims of
harmful error. Accordingly, we affirm the judgment of
the trial court.
On the basis of the incomplete record provided to
us on appeal, we conclude that the jury reasonably
could have found the following facts in reaching its
verdict in favor of the defendant. The defendant oper-
ates a horse stable, known as Showtime Stables. As
part of her business, she gives riding lessons to patrons.
The defendant requires riders to sign a ‘‘Release and
Hold Harmless Agreement’’ (document) that provides:
‘‘The Undersigned assumes the unavoidable risks
inherent in all horse-related activities, including but not
limited to bodily injury and physical harm to horse,
rider, and spectator.
‘‘In consideration, therefore, for the privilege or riding
and/or working around horses at ________, located at
________, the Undersigned does hereby agree to hold
harmless and indemnify ________ and further release
them from any liability or responsibility for accident,
damage, injury, or illness to the Undersigned or to any
horse owned by the Undersigned or to any family mem-
ber or spectator accompanying the Undersigned on
the premises.’’
The plaintiff had taken a few riding lessons as a child
and, more recently, had taken approximately twenty
additional lessons as an adult at another stable. She
then began taking riding lessons from the defendant.
On January 23, 2010, the plaintiff, her friend, Audrey
Ulmer, and their two daughters went to the defendant’s
stable for riding lessons. The plaintiff rode a horse
named Pepsi during her riding lesson. Most, if not all,
of the plaintiff’s six lessons with the defendant had
been on Pepsi. Pepsi had a tendency to be rather ‘‘lazy,’’
and, in an effort to get Pepsi to cooperate, the rider
needed to use his or her leg strength to squeeze the
horse or, in the alternative, a crop. Pepsi is ‘‘the couch
potato of horses. . . . Her demeanor is very, very quiet.
She doesn’t get flustered easily. . . . [S]he’s safe, she’s
quiet, she’s reliable.’’ The defendant had never seen
Pepsi bolt or do anything like that.
During the plaintiff’s lesson on January 23, 2010, she
fell off Pepsi, sustaining personal injuries. When an
injury occurred to a rider, the defendant made and kept
a record of that event. That evening, after the plaintiff
had been injured, the defendant recorded the incident
in relevant part as follows: ‘‘[The plaintiff] was riding
Pepsi in first lesson of new package today when Pepsi
became very lazy. I instructed [the plaintiff] to tap
[Pepsi] on [the] shoulder with her crop and Pepsi still
wouldn’t get going. I swapped out [the] short crop with
[a] larger one for her to tap behind [Pepsi’s] leg . . .
on [the] flank area, and Pepsi trotted forward. When
Pepsi went forward she did so quickly at [a] trot, and
[the plaintiff] got bounced forward. She posted for a
few steps and lost her balance and fell forward on
Pepsi’s neck with her legs gripping behind her saddle
on the flank area. She fell forward onto Pepsi’s neck
and was holding [the] neck in [a] bear hug position,
kicking with her legs. This went on for about [five]
steps then Pepsi broke into [a] canter. I was yelling this
whole time for her to sit up, stop kicking, sit back, pull
on your reins. It was clear she was panicked, so I ran
to [the] corner where [the] horse was and grabbed her
outside rein and slowed her back to [a] trot as she went
by me. Pepsi slowed to [a] trot and went toward [the]
center of [the riding] ring and stopped. [The plaintiff]
fell when [the] horse stopped, from [a] ‘hug’ position.
[She] [r]olled onto her left hip [and] shoulder, onto [the]
dirt footing. She laid for a minute and sat up and leaned
against [a] block. I was next to her holding [the] horse
and asked if she wanted [to call] 911. She said no. She
never lost consciousness, was lucid, and could move
all parts. . . . I said can [you] get back on and finish
or is [your] knee [too] sore. She tried to rise and said
[her] knee was too sore.* There didn’t appear to be any
swelling or obvious deviation. She said she had a friend
who was [an] orthopedic [doctor] and that she would
have [Ulmer] drive her there to have it looked at.
[Ulmer] drove her car up . . . and picked her up. We
helped her into [the] car. She was limping on [the] knee
but [was able to put] some weight on it.’’
In addition to the asterisk placed in the middle of her
record of this event, the defendant also placed another
asterisk near the end of the record, seemingly to insert
more information where the previous asterisk was
placed, stating the following: ‘‘*At this point she was
sitting on [a] plastic block. I went down to [the] barn
with [the] horse [and] gave [the horse to the] kids to
untack and went back to give her ice for [her] knee.’’
As a result of her injuries, the plaintiff underwent sur-
gery to repair her knee. She then commenced this
action.
On January 13, 2015, the plaintiff filed a motion in
limine requesting that the court preclude the defendant
from offering any evidence as to the document. The
next day, the court conducted a hearing on the motion.
During the hearing, the plaintiff argued that the docu-
ment was void as a matter of public policy under Rear-
don v. Windswept Farm, LLC, 280 Conn. 153, 905 A.2d
1156 (2006), and that any probative value of the docu-
ment was outweighed by its prejudicial effect. The
plaintiff also argued that the document was cumulative
in light of General Statutes § 52-557p, which provides:
‘‘Each person engaged in recreational equestrian activi-
ties shall assume the risk and legal responsibility for
any injury to his person or property arising out of the
hazards inherent in equestrian sports, unless the injury
was proximately caused by the negligence of the person
providing the horse or horses to the individual engaged
in recreational equestrian activities or the failure to
guard or warn against a dangerous condition, use, struc-
ture or activity by the person providing the horse or
horses or his agents or employees.’’
At the conclusion of the argument on the motion in
limine to preclude the document, the court denied the
plaintiff’s motion but left the issue open to be revisited
if necessary: ‘‘So, I am denying the motion in limine,
which was essentially to keep out the document, and
to bar the defendant from making any reference to it.
How it unfolds in the actual course of things is to be
seen, but I am not going to rule now against the offer
of the release.’’ (Emphasis added.)
Later that day, during the cross-examination of
Ulmer, the defendant’s attorney asked her about her
signing the document. Ulmer stated that she had signed
it, and then the defendant’s counsel offered the docu-
ment into evidence at that time. The plaintiff’s attorney
stated that he had no objection: ‘‘If it’s being offered
as a document signed by . . . Ulmer, I don’t have an
objection to that.’’ (Emphasis added.) The court stated
that it had some trepidation about the relevance of
the document, but ‘‘if there’s no objection, it may be
admitted to show what the witness identified herself
[as signing].’’ (Emphasis added.)
The court then gave the jury a limiting instruction:
‘‘You’re about to see, ladies and gentlemen of the jury,
a document. It’s entitled, ‘Release and Hold Harmless
Agreement.’ Mrs. Ulmer has testified that she signed it,
and that’s the sole—the content of this as signed by
Mrs. Ulmer is all you’re presently allowed to consider
it for. I would also note that—well, I’ll say more about
it if the occasion arises, but that’s all you’re allowed to
consider it for right now.’’ The document then was
published to the jury.
Following its publication to the jury, the plaintiff’s
attorney stated: ‘‘Your Honor, at this time, I’d just like
to state something for the record. I’d like to restate my
objection to this line of inquiry [on] this issue, which
we have discussed on the record earlier this morning,
and, once again, state that my basis is that the prejudi-
cial effect of this, at this time, outweighs any probative
value to the document, and that’s exactly how it’s
unfolding at the present time. I just, for the record, I
wanted to state my objection to the relevancy of this
document and its admissibility in these circumstances.’’
The court immediately responded: ‘‘I said something
about relevance earlier, and that was not the ground
of objection. Your point is noted, sir . . . .’’
Then, during the defendant’s testimony on January
21, 2015, her attorney asked her about the document.
The defendant stated that she had given the document
to Ulmer and the plaintiff to sign, that she saw them
sign it, and that they gave it back to her. That testimony
was offered without objection, and without a further
limiting instruction, as one was not requested at that
time.
The defendant’s attorney also showed the defendant
the photo and asked her if she recognized it. The defen-
dant stated that it was the photo of a sign that she has
posted ‘‘by the doorway as you walk into the barn, right
at eye level.’’ The defendant’s attorney then asked that
the photo be entered as a full exhibit. The plaintiff’s
attorney stated that he objected on the ground of rele-
vance, to which the defendant’s attorney responded:
‘‘The purpose, Your Honor, is to demonstrate that the
plaintiff knew about the inherent risks of riding at the
stable, and it was there for her to see. Also, the plaintiff
testified she never saw it, but this is testimony that it
was present.’’ No further objection was set forth, and
the court admitted the photo. It also gave no limiting
instruction, and the plaintiff did not request such an
instruction at that time.
The plaintiff’s attorney also questioned the defendant
about the document, asking if she was required by law
to have her students sign such documents. The defen-
dant responded that she did not think there was such
a requirement.
The defendant’s attorney followed up by asking the
defendant to recall the questioning of the plaintiff’s
attorney regarding the document, and then asked the
defendant why she had her students sign such docu-
ments. The defendant responded: ‘‘Because horses as a
sport in general are dangerous. There’s risks associated
with riding them, handling them, being around them.
You could get hurt, you could get killed, you could get—
a lot of things could happen. There are so many different
scenarios, so to afford myself some protection, I try to
use that.’’
Following that testimony, the defendant’s attorney
offered the document into evidence ‘‘for the purpose
of showing that [the plaintiff] was warned about the
inherent risks involved with riding.’’ The court asked
if the plaintiff had an objection, and counsel responded:
‘‘With the understanding of what we talked about in
chambers and your prior warnings, Your Honor.’’
The court admitted the document and offered the
following admonishment: ‘‘Now, ladies and gentlemen
of the jury, you’ve already seen defendant’s exhibit A,
because it came [into evidence] with Mrs. Ulmer. Now,
it’s a full exhibit. I’m instructing you that the law does
not allow somebody to waive claims for somebody
else’s negligence in advance. You know, you can do
it, technically, afterwards, but you—if you go into a
restaurant, you can’t be required to sign a release that,
if I get food poisoning because the food’s been out
for three days, you know, the customer can’t sue the
restaurant. This exhibit is only being accepted by the
court and may only be used by you as basically notice
of the hazard. It is not a release of liability. It is not
claimed to be a release of liability by the defense.’’
The court then asked the plaintiff’s attorney if it left
‘‘anything out.’’ The plaintiff’s attorney replied: ‘‘I think
that was perfect, Your Honor,’’ and the defendant’s
attorney replied: ‘‘I think that’s what we discussed in
chambers, Your Honor.’’
During the court’s final charge to the jury, the court
explained to the jury that it had a duty to listen carefully
to the court’s instructions and to follow them. It then
instructed the jury on the law of negligence, including
the duty to invitees and defective premises, and prop-
erly set forth the relevant allegations of the plaintiff’s
complaint and applied those allegations to its instruc-
tion on the law. It also instructed the jury on causation,
damages and the burden of proof, and on the defen-
dant’s special defenses of contributory negligence and
assumption of the risk pursuant to § 52-557p.
When the court gave its limiting instruction on the
proper use of the document, the court admonished the
jury in relevant part: ‘‘As I instructed you when that
document . . . was admitted in evidence, that docu-
ment is not, and is not claimed by the defendant to be,
a release or hold-harmless agreement as to a claim of
negligence of the defendant. As to the defendant—as
the defendant acknowledges, any agreement that pur-
port[s] to release the operator and/or owner of a horse
riding facility from his or her negligent conduct would
violate public policy and, therefore, be unenforceable.
The only significance of that exhibit you could properly
find if you see fit is that the parties . . . were aware
of the general risks and hazards of horseback riding.
In particular, if you find that the defendant was negli-
gent in any of the ways alleged by the plaintiff and that
that negligence caused the plaintiff’s injuries or any of
those injuries, the fact that the plaintiff signed that
document must have no effect on your decision regard-
ing what fair, just, and reasonable damages to award
to the plaintiff.’’
The jury returned a verdict in favor of the defendant.
Thereafter, the court denied the plaintiff’s motion to
set aside the verdict and for a new trial, and rendered
judgment in accordance with the verdict. This appeal
followed.
Our analysis of this appeal begins and ends with our
consideration of the adequacy of the record provided
by the plaintiff. We have examined the record provided
by the plaintiff and conclude that she has failed to
provide a complete and adequate record that would
enable our review of her claims on appeal. The furnish-
ing of a complete record is particularly important to a
reviewing court that is called upon to consider the
extent of the harm, if any, to an appellant who is
requesting that the court reverse the judgment of the
trial court on the basis of an alleged improper eviden-
tiary ruling. See Desrosiers v. Henne, 283 Conn. 361,
367–69, 926 A.2d 1024, (2007) (declining to review evi-
dentiary claim where defendant provided only excerpts
of trial transcripts because it was impossible for
reviewing court to determine whether alleged impropri-
ety 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 testimony of witnesses,
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 this case reveals
that the plaintiff ordered and delivered a paper copy
and an electronic copy of the following seven tran-
scripts: (1) the January 14, 2015 argument on the motion
in limine; (2) the January 14, 2015 cross-examination
of lay witness Ulmer; (3) the January 15, 2015 cross-
examination of the plaintiff; (4) the January 16, 2015
direct examination of the defendant; (5) the January
21, 2015 continued direct examination and the cross-
examination of the defendant; (6) the direct examina-
tion of lay witness Sundy Martin; and (7) the January
22, 2015 jury charge. We also have been provided an
electronic copy of the trial court’s preliminary instruc-
tions to the jury, the January 21, 2015 cross-examination
of Martin, and the May 11, 2015 argument on the plain-
tiff’s postverdict motion to set aside the verdict and for
a new trial. The plaintiff further has provided, in her
appendix, a paper copy of her counsel’s argument on
the plaintiff’s motion to set aside the verdict and for a
new trial.
We know for certain that we have not been provided
the direct examination of Ulmer, the direct examination
of the plaintiff, and the closing arguments of counsel.
Additionally, we are left to speculate about precisely
how many other witnesses may have testified and the
content of their testimony,3 exactly what the plaintiff
said during her direct testimony, what counsel may
have argued during any other part of the trial and during
closing, and whether the court gave additional instruc-
tions or guidance to the jury during other parts of the
trial that could be relevant to our analysis.
Here, as the appellant, it was the plaintiff’s burden
to provide a complete record on appeal. See Practice
Book § 61-10. She also is responsible for establishing
that she was harmed by the alleged improper eviden-
tiary rulings of the trial court. 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.]). This, the plaintiff
cannot do in light of the incomplete record that she
has provided this court.4
‘‘[Our Supreme Court has] held generally that [t]he
trial court has broad discretion in ruling on the admissi-
bility [and relevancy] of evidence. . . . The trial court’s
ruling on evidentiary matters will be overturned only
upon a showing of a clear abuse of the court’s discre-
tion. . . . Additionally, before 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.’’ (Citation omitted; internal quota-
tion marks omitted.) Urich v. Fish, 261 Conn. 575, 580–
81, 804 A.2d 795 (2002).
‘‘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. . . . Thus,
our analysis [would include] a review of: (1) the rela-
tionship of the improper evidence to the central issues
in the case, particularly as highlighted by the parties’
summations; (2) whether the trial court took any mea-
sures, such as corrective instructions, that might miti-
gate the effect of the evidentiary impropriety; and (3)
whether the improperly admitted evidence is merely
cumulative of other validly admitted testimony. . . .
The overriding question [we must answer] is whether
the trial court’s improper ruling affected the jury’s per-
ception of the remaining evidence.’’ (Citations omitted;
emphasis added; internal quotation marks omitted.)
Hayes v. Camel, 283 Conn. 475, 489–90, 927 A.2d 880
(2007); see also Duncan v. Mill Management Co. of
Greenwich, Inc., 308 Conn. 1, 20, 60 A.3d 222 (2013).
Without a complete record, we are unable to fully
apply and appropriately assess the Hayes factors. For
example, even if we assume, arguendo, that the docu-
ment and the photo improperly were admitted into evi-
dence,5 we are unable to assess fully and completely
the first Hayes factor, ‘‘the relationship of the improper
evidence to the central issues in the case, particularly
as highlighted by the parties’ summations’’; (emphasis
added) Hayes v. Camel, supra, 283 Conn. 489; because
we do not have a transcript of the parties’ summations.6
Also, our analysis of the remaining Hayes factors is
equally unfeasible. Indeed, although we know that we
have transcripts for at least some of the witnesses and
some of the court’s curative instructions, we do not
know whether any additional instructions were given
or what was contained in the testimony for which the
plaintiff has not provided transcripts. We also are
unable to fully assess whether the document and the
photo were cumulative of other validly admitted evi-
dence because we do not have a complete record of
the trial, including the plaintiff’s direct testimony. Con-
sequently, we cannot conduct a full and complete analy-
sis of harm pursuant to the Hayes factors. Accordingly,
we conclude that without a complete record of the
trial, we are left with an inability to make an informed
assessment of the plaintiff’s claims on appeal, and we
are unable to consider ‘‘[t]he overriding question [of]
whether the trial court’s [alleged] improper ruling
affected the jury’s perception of the remaining evi-
dence.’’ (Emphasis added; internal quotation marks
omitted.) Hayes v. Camel, supra, 283 Conn. 490.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The original complaint was brought by Pecher, Sophia Pecher-Kohout,
and Jaromir Kohout. Pecher-Kohout and Kohout subsequently withdrew
their claims, and they are not parties to this appeal. We, therefore, refer to
Pecher as the plaintiff.
2
In the original complaint, the plaintiff named Distefano and Showtime
Stables as defendants. Subsequently, all claims against Showtime Stables
were withdrawn. Accordingly, we refer to Distefano as the defendant.
3
We are mindful that the plaintiff represented to the trial court in her
motion to set aside the verdict that ‘‘[t]he jury heard testimony from three
. . . experts and nine . . . lay witnesses.’’ (Emphasis added.) If this repre-
sentation is accurate, and we have no reason to believe that it is not accurate,
we have been provided the testimony or the partial testimony of only four
of the twelve witnesses who testified at trial.
4
Because the plaintiff cannot establish, on the basis of the record that
she has provided to us, that the court’s rulings were harmful, it is unnecessary
for us to decide conclusively whether the document and the photo improp-
erly were admitted into evidence. See Duncan v. Mill Management Co. of
Greenwich, Inc., 308 Conn. 1, 20, 60 A.3d 222 (2013) (‘‘[a]n evidentiary ruling
will result in a new trial only if the ruling was both wrong and harmful’’
[emphasis in original; internal quotation marks omitted]). Nevertheless, we
take this opportunity to recognize an interesting argument raised by the
defendant concerning the relevance of the document and the photo.
General Statutes § 52-557p provides: ‘‘Each person engaged in recreational
equestrian activities shall assume the risk and legal responsibility for any
injury to his person or property arising out of the hazards inherent in
equestrian sports, unless the injury was proximately caused by the negli-
gence of the person providing the horse or horses to the individual engaged
in recreational equestrian activities or the failure to guard or warn against
a dangerous condition, use, structure or activity by the person providing
the horse or horses or his agents or employees.’’ (Emphasis added.)
In the plaintiff’s complaint, she made three allegations concerning the
defendant’s negligent failure to warn against a dangerous condition: (1)
‘‘fail[ure] to warn the plaintiff of the dangerous condition caused by the
use of the crop/whip’’; (2) ‘‘fail[ure] to warn the plaintiff of the dangerous
condition caused by the opening in the arena when it was unreasonable not
to have done so’’; and (3) ‘‘fail[ure] to warn the plaintiff of the dangerous
condition caused by the jumping gate the that injured the plaintiff when it
was unreasonable not to have done so.’’ During oral argument on the plain-
tiff’s motion in limine, the defendant argued that the document was relevant
to demonstrate that the plaintiff had been warned of inherent risks. On
the basis of the arguments presented to it, the trial court expressed some
agreement with that contention. On appeal, the plaintiff argues, for the first
time, that the document had no relevance because § 52-557p already provides
that the plaintiff assumes all inherent risks. The defendant argues, however,
that the plaintiff’s specific allegations of a failure to warn necessitated her
providing proof that she, in fact, did warn the plaintiff.
Although presenting an interesting question as to whether the ‘‘unless the
injury was proximately caused by the . . . failure to guard or warn
against a dangerous condition, use, structure or activity’’ portion of the
statute was implicated by the plaintiff’s allegations of the defendant’s failure
to warn against particular dangerous conditions, and whether the document
and the photo could be evidence sufficient to defend against this portion
of § 52-557p, because we conclude that the plaintiff has failed to establish
harm, we defer our analysis of the statute for another day.
5
Although we do not decide whether the court’s admission of the docu-
ment and the photo was improper, we do recognize that the use of these
types of releases is against public policy; see Reardon v. Windswept Farm,
LLC, supra, 280 Conn. 153; and the admission of evidence that contravenes
public policy generally is not favored.
Our courts have recognized that certain evidence is inadmissible because
it violates the public policy of this state. See Conn. Code Evid. § 4-9, commen-
tary (explaining that rule barring admission of evidence of payment regarding
medical and similar expenses fosters public policy of encouraging assistance
to injured party by eliminating threat that evidence can be used as admission
of liability at trial), citing Danahy v. Cuneo, 130 Conn. 213, 216, 33 A.2d
132 (1943). In denying admission of such evidence, our courts have recog-
nized that the public policy promoted by the exclusion of such evidence
outweighs the minimal relevance of such evidence. Nevertheless, such evi-
dence may be admissible in particular circumstances if it is offered for a
purpose other than that which has been found to violate public policy. See
Duncan v. Mill Management Co. of Greenwich, Inc., supra, 308 Conn. 14–15
(although evidence of subsequent remedial measures is violative of public
policy when used to prove negligence, such evidence may be admissible to
prove some other material issue); Hicks v. State, 287 Conn. 421, 440, 948
A.2d 982 (2008) (same); Miko v. Commission on Human Rights & Opportu-
nities, 220 Conn. 192, 209, 596 A.2d 396 (1991) (although evidence of offers
to compromise is inadmissible as violative of public policy, statements made
during such offers may be admissible as admissions of fact).
Here, as we mentioned in footnote 4 of this opinion, the defendant sought
to admit the subject evidence on a theory other than to prove that the
plaintiff had waived her right to pursue a negligence action, i.e., that she
was aware of the risks and the defendant in fact had warned her of those
risks. Because of the inadequacy of the record, we need not decide, however,
whether the actual purpose for which the evidence was offered provided a
sufficient basis upon which to admit this evidence or whether the trial
court appropriately balanced the probative value of the evidence against
its prejudicial effect.
6
Moreover, despite the plaintiff’s argument that the document and the
photo ‘‘took center stage in the defendant’s trial presentation,’’ the parties
acknowledge that no one attempted to use the document and the photo as
a waiver of negligence at any time during the trial. Furthermore, although
the plaintiff attempts to establish that the document was central to the
defendant’s case because four witnesses were asked about it during the
trial, as we noted previously, the plaintiff stated, in her motion to set aside
the verdict, that ‘‘[t]he jury heard testimony from three . . . experts and
nine . . . lay witnesses’’ in this case. Assuming the truth of that representa-
tion by the plaintiff, we question whether the fact that four of twelve wit-
nesses were questioned about the document signifies its centrality.
The central issue of this case appears to have been whether the defendant
was negligent in one or more of the ways alleged, including for a failure to
warn of particular dangerous conditions; it was not whether the plaintiff
had waived her rights or released the defendant from liability for such
alleged negligence. Compare Reardon v. Windswept Farm, LLC, supra, 280
Conn. 153 (rendering summary judgment in favor of defendants, who had
raised as defense fact that horseback riding student had signed release and
waived claims for liability arising from personal injuries she had sustained
during riding lesson, was reversible error because release from liability was
void as against public policy). There is no indication in the record that the
plaintiff has provided, and the plaintiff, on appeal, sets forth no argument,
that the defendant made any attempt to establish, allege, or in any manner
argue that the plaintiff released the defendant from liability for her injuries.