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Pecher v. Distefano

Court of Appeals of Connecticut

September 26, 2017


          Argued January 31, 2017

          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).

          Prescott, Mullins and Bear, Js.


         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. Thereafter, 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 proceedings, 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.

         Procedural History

         Action to recover damages for, inter alia, the defendants' 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and for other relief, brought to the Superior Court in the judicial district of New London, where the complaint was withdrawn in part; thereafter, the court, Cole-Chu, J., denied the named plaintiff's motion to preclude certain evidence; subsequently, the matter was tried to the jury;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.


          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 plaintiff'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 operates 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 member 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] ...

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