Smith v. Town of Redding, 172 A.3d 318

Plaintiff Brandon V. Smith fell from a municipally constructed retaining wall in Redding that had no fence atop it and sued the Town of Redding for absolute public nuisance, alleging the lack of a fence made the wall inherently dangerous.
The wall was part of a federally funded streetscape project designed by BL Companies and constructed by J. Rondano, Inc.; the wall as built lacked a fence.
Plaintiff sought to admit evidence that, after his fall, the Department of Transportation ordered and the town erected a fence atop the wall; the trial court excluded evidence of subsequent remedial measures under Conn. Code Evid. § 4-7.
After a jury trial the jury found for the town, answering interrogatories that plaintiff failed to prove the wall was inherently dangerous.
Plaintiff moved to set aside the verdict and appealed, arguing (1) the court abused its discretion by excluding evidence of involuntary subsequent remedial measures (the fence), and (2) the court should have instructed the jury on Redding zoning regulations as a safety standard.
The Appellate Court affirmed, holding the record was inadequate to review the evidentiary claim and the zoning-regulation jury-instruction claim was not preserved/decided below.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of evidence that a fence was installed after the accident (allegedly involuntary remedial measure)	Excluding evidence was error because the fence was built involuntarily at the DOT's order, so the rule barring subsequent remedial measures should not apply	Evidence of subsequent remedial measures is barred by Conn. Code Evid. § 4-7; plaintiff failed to preserve record showing harm	Record incomplete; appellate court cannot determine whether exclusion was harmful, so claim not reviewable — judgment affirmed
Jury instruction that Redding Zoning Regulations establish a safety standard for inherent-danger inquiry	Zoning regs (which list safety as a purpose) applied or, alternatively, should have been used as a safety standard instruction	Trial court did not err; the claim was not properly raised or decided below and plaintiff’s exception was insufficiently specific	Not preserved/decided below; appellate court declines to review that claim

Filippelli v. Saint Mary’s Hospital, 319 Conn. 113 (standard of review for evidentiary rulings and harmless-error analysis)
Desrosiers v. Henne, 283 Conn. 361 (appellate review requires full trial record to assess harm from evidentiary rulings)
Ryan Transportation, Inc. v. M & G Associates, 266 Conn. 520 (declining review when transcript gaps prevent harm assessment)
Chester v. Manis, 150 Conn. App. 57 (incomplete record can preclude appellate review of evidentiary claims)
Quaranta v. King, 133 Conn. App. 565 (same)
Connecticut Light & Power Co. v. Gilmore, 289 Conn. 88 (even erroneous evidentiary rulings require a showing of harm to warrant new trial)
Tompkins v. Freedom of Information Commission, 136 Conn. App. 496 (appellate courts generally do not consider issues not decided by the trial court)
Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437 (issues not addressed or decided by trial court are not properly before an appellate tribunal)
State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177 (elements required to prove public nuisance)