PELLEGRINO, J.
In this action for damages for personal injuries, the plaintiff Frank Czajkowski
The jury reasonably could have found the following facts. From April 25, 2005, to April 27, 2005, groups of eighth grade students from Derby and Hartford attended an overnight outing at Camp Jewell, a campground in Colebrook owned by the defendant. On the second day of the outing, April 26, the plaintiff, who was fourteen years old, had congregated with other students outside of the dining hall after lunch. The students were waiting to be sent to their next activity. The area where the plaintiff stood was enclosed by a split rail fence. Near the intersection of two sides of the fence was a stone engraved with the word "unless" (unless stone) which, in the spring and summer, is surrounded by flowers.
After all of the students in the plaintiff's group had gathered in the vicinity of the unless stone, a camp counselor said that the group was going down the path to Mount Wood. In order to do so, the students, including the plaintiff, had to maneuver around the fence to reach the path that led to Mount Wood. Some students walked around the fence, while others either stepped or jumped over it. The plaintiff elected to jump over the fence but did not clear the top rail and, as a result, fell and struck his head on the ground. The plaintiff brought the present action seeking to hold the defendant liable for his injuries.
The plaintiff asserts that the court improperly precluded his expert witness from testifying. The plaintiff's expert, Anthony Storace, has a master's degree in mechanical engineering, and was experienced in accident investigation and reconstruction. Storace visited the site of the plaintiff's fall, conducted an investigation, and produced a report detailing his findings. The report described the fence in question: "The subject fence provides a pedestrian barrier intended to prevent pedestrians from walking from [the area of the unless stone to the surrounding paths].... The fence was apparently provided to prevent pedestrians from traversing the raised edges of the walkway step, which presents a tripping hazard.... Although the fence may have been provided to divert pedestrian traffic, the design of the area and the height of the fence created a condition in which it was foreseeable that pedestrians would surmount the fence, either by climbing or jumping. A fence intended as a barrier to pedestrian traffic should be at a height appropriate for such purpose." The report then referenced several building codes which direct that "guards," defined as barriers used to prevent falls, should be at least forty-two inches high.
The defendant filed a motion in limine to preclude Storace's testimony, arguing that the testimony was not helpful to the jury because it was based on irrelevant building codes and the subject matter of the testimony was within the knowledge of the average person. The court granted the motion to preclude and, thereafter, the jury found in favor of the defendant. The plaintiff filed a motion to set aside the verdict, arguing that Storace should have been allowed to testify on the basis of his experience and the building code requirements that the fence was unsafe. The court subsequently denied the plaintiff's motion. In doing so, the court recounted the concession Storace had made in the plaintiff's expert disclosure statement that his opinion was based on codes governing a building's interior "guards," and that these codes do not directly apply to the
"We begin our review of this issue by setting forth the well established standard of review regarding a trial court's ruling on the admissibility of expert testimony. [T]he trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court's decision will not be disturbed.... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did....
"[Our Supreme Court] recently articulated the test for the admission of expert testimony, which is deeply rooted in common law. Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues....
"It is well settled that [t]he true test of the admissibility of [expert] testimony is not whether the subject matter is common or uncommon, or whether many persons or few have some knowledge of the matter; but it is whether the witnesses offered as experts have any peculiar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience any aid to the court or the jury in determining the questions at issue.... Implicit in this standard is the requirement ... that the expert's knowledge or experience must be directly applicable to the matter specifically in issue." (Citations omitted; footnote omitted; internal quotation marks omitted.) Sullivan v. Metro-North Commuter Railroad Co., 292 Conn. 150, 157-59, 971 A.2d 676 (2009); see also Conn. Code Evid. § 7-2. "The essential facts on which an expert opinion is based are an important consideration in determining the admissibility of the expert's opinion." Glaser v. Pullman & Comley, LLC, 88 Conn.App. 615, 624, 871 A.2d 392 (2005).
The issue on appeal is whether Storace's opinion improperly was precluded because the average juror has sufficient knowledge to determine whether the fence was reasonably safe. The plaintiff alleged in his complaint that the defendant breached the standard of care by, inter alia, "creating and/or maintaining a hazardous tripping instrument when alternative safer methods were available." The plaintiff then sought to introduce Storace's testimony regarding the various building codes to demonstrate that the fence was a "hazardous tripping instrument."
The plaintiff argues that Considine v. Waterbury, 279 Conn. 830, 905 A.2d 70 (2006), supports the proposition that Storace could rely on nonbinding building codes in rendering his opinion that the defendant breached the standard of care. In Considine, the plaintiff was injured by a glass window located next to a door. Id., at 833-34, 905 A.2d 70. The plaintiff's expert testified that, according to the state building code, more durable glass should have been installed in the window. Id., at
In the present case, the plaintiff avers that Storace should have been allowed to testify that the fence was unreasonably dangerous based on the industry standards contained in the building codes. The codes upon which Storace relied in his report pertain only to the interior of buildings. The plaintiff argues that, nonetheless, Considine supports the proposition that Storace can testify that the building codes are evidence of the standard of care regarding the fence in question even though the fence was not required to conform to the codes. We disagree. It is significant that the relevant provision of the building code in Considine was precisely on point — the building code section governed the defendant's window. See id., at 856 and n. 15, 905 A.2d 70. By contrast, the plaintiff's expert in the present case relies on code sections that do not dictate the dimensions of an exterior fence, but govern "guards" inside buildings.
Because the building codes were inapplicable, we conclude that the court did not abuse its discretion in precluding Storace's testimony. "Our Supreme Court has held that in cases involving questions of science and skill, or relating to some art or trade, experts are permitted to give opinions, however, that principle does not embrace those questions the knowledge of which is presumed to be common to all men." (Internal quotation marks omitted.) Mroczek v. Kret, 81 Conn.App. 128, 132-33, 838 A.2d 1012 (2004). If presented with the proper exhibits and testimony, it is within the court's discretion to conclude that the average person possesses sufficient knowledge to determine whether a fence is unreasonably dangerous. See id., at 134, 838 A.2d 1012 (within court's discretion to conclude person of ordinary experience could determine whether slope of walkway dangerous when "jury had the opportunity to assess the dangerousness of the sloping walkway through photographs of the area adduced as evidence at trial as well as through the testimony of the physical characteristics offered by [the witnesses]"). The jury in the present case was presented with photographs of the
The plaintiff next claims that the court improperly allowed a lay witness to testify as to her opinion regarding whether the fence was dangerous. On direct examination, the defendant's counsel asked Jody Grove, the assistant director for Camp Jewell, whether she considered the fence dangerous. The plaintiff's counsel objected on the ground of relevancy, and furthermore noted that Grove was "not an expert."
We will not reverse a court's decision to allow lay witness opinion testimony unless the court has abused its discretion. State v. Spigarolo, 210 Conn. 359, 371, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989). When considering whether a court has abused its discretion, "we make every reasonable presumption in favor of upholding the trial court's ruling, and only upset it for a manifest abuse of discretion." (Internal quotation marks omitted.) Duncan v. Mill Management Co. of Greenwich, Inc., 308 Conn. 1, 13, 60 A.3d 222 (2013). "The general rule is that [nonexpert] witnesses must state facts and not their individual opinions, but there are exceptions to this rule as well established as the rule itself.... [T]he opinions of common observers in regard to common appearances, facts and conditions have been received as evidence in a great variety of cases." Sydleman v. Beckwith, 43 Conn. 9, 11 (1875); see also State v. Schaffer, 168 Conn. 309, 318-19, 362 A.2d 893 (1975). Our Supreme Court has recognized that "[e]very trial, as a rule, is filled with so-called opinion evidence from the nonexpert witness.... When such nonexpert opinion evidence will probably aid the triers in their search for the truth, it meets the ultimate test of admissibility, and is not to be excluded because it states the conclusion of the witness based upon his observation and knowledge." (Citations omitted; internal quotation marks omitted.) MacLaren v. Bishop, 113 Conn. 312, 314-15, 155 A. 210 (1931); see also Conn.Code Evid. § 7-1 ("[i]f a witness is not testifying as an expert, the witness may not testify in the form of an opinion, unless the opinion is rationally based on the perception of the witness and is helpful to a clear understanding of the testimony of the witness or the determination of a fact in issue").
In light of our precedent allowing lay witnesses to testify as to their opinion regarding the safety of common outdoor objects about which they have personal knowledge, such as roads, sidewalks and ramps, we conclude that the court did not abuse its discretion in allowing Grove's testimony that she did not consider the fence in question to be dangerous.
Even if the court had abused its discretion in admitting Grove's testimony, that error was harmless and is not ground for reversal. An improper evidentiary
During the plaintiff's direct examination of Zetye, counsel asked: "Is there something about this fence to you that looks like it is going to be dangerous?" The witness responded that there was not. We conclude that Grove's testimony was cumulative of Zetye's because both camp employees opined that the fence was not dangerous. Because Grove's testimony was cumulative of the plaintiff's own witness, Zetye, even if Grove's testimony improperly was admitted any error was harmless.
The judgment is affirmed.
In this opinion the other judges concurred.