Vargas v. Kang Sjuen, LLC

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Vargas v. Kang Sjuen, LLC

JESSICA VARGAS v. KANG SJUEN,
LLC, ET AL.
(AC 48235)
Moll, Suarez and Westbrook, Js.

Syllabus

The defendant property owner appealed from the trial court’s judgment
for the plaintiff, a mail carrier, who sustained injuries as a result of a fall
on a staircase at the defendant’s property, which she alleged resulted from
the defendant’s negligence in failing to maintain the stair railings. The
defendant claimed, inter alia, that the court improperly admitted evidence
of subsequent remedial measures, specifically, photographs depicting the
condition of the staircase after subsequent repairs. Held:

The trial court abused its discretion in admitting the photographs depict-
ing the condition of the staircase after the repairs had been made, as the
admission of that evidence was made solely for the purpose of demonstrating
the defendant’s negligence, in violation of § 4-7 of the Connecticut Code of
Evidence, and that improper admission of the photographs was harmful and
likely affected the outcome of the trial; accordingly, a new trial was warranted.

Argued March 10—officially released June 23, 2026

Procedural History

Action to recover damages for personal injuries sus-
tained as a result of the defendants’ alleged negligence,
and for other relief, brought to the Superior Court in
the judicial district of New Haven and tried to the court,
Hon. Juliett L. Crawford, judge trial referee; judgment
for the plaintiff, from which the defendant Kwong Kang
Cheng appealed to this court. Reversed; new trial.
Danielle DiBerardini-Albrecht, for the appellant
(defendant Kwong Kang Cheng).
Vincent J. Mase, Sr., for the appellee (plaintiff).

Opinion

SUAREZ, J. The defendant Kwong Kang Cheng1
appeals from the judgment of the trial court rendered
1
The plaintiff also named as defendants Kang Sjuen, LLC, and Feng
Juan Lin, but the claims against them were previously withdrawn.
Accordingly, all references in this opinion to the defendant are to
Kwong Kang Cheng only.
Vargas v. Kang Sjuen, LLC

after a court trial in favor of the plaintiff, Jessica Vargas,
a mail carrier for the United States Postal Service, for
injuries she sustained after she fell while delivering mail
at certain real property owned in part by the defendant.
The plaintiff claimed that her injuries were caused by the
defendant’s negligence in maintaining the property. On
appeal, the defendant claims, inter alia,2 that the court
improperly admitted evidence of subsequent remedial
measures. We agree and, accordingly, reverse the judg-
ment of the court.
The following facts, as found by the trial court in its
memorandum of decision, and procedural history, are
relevant to our resolution of this appeal. “The plaintiff,
a mail carrier, delivered mail to the premises [located at
383 Whalley Avenue in New Haven] on . . . July 2, 2016,
which has a commercial business on the first floor and
tenants on the second and third floor. The plaintiff went
up the stairs, delivered the mail, and on her way down she
held onto the railing, as she is required to do, pursuant
to [United States Postal Service] policy. The railing was
loose and rusted out at the bottom and it pushed out. She
stumbled, her left ankle rolled out and both her left and
right knees buckled going down.”
The plaintiff thereafter commenced the present action
sounding in negligence against the defendant on June
28, 2018. In her complaint, the plaintiff alleged that
she was caused to “slip and/or trip and/or stumble,”
and that she sustained various injuries as a result of the
defendant’s negligence. Specifically, she alleged that the
defendant was negligent, inter alia, in failing to secure
and/or fasten properly the right-hand railing of the
2
The defendant also claims that the court (1) improperly held that
the plaintiff met her burden of proof regarding notice of a particular
defect, (2) abused its discretion when it precluded the defendant from
offering medical evidence to challenge the plaintiff’s credibility, and
(3) improperly used its personal knowledge in reaching its decision
instead of limiting its decision to the evidence presented. Because our
conclusion that the court improperly admitted evidence of subsequent
remedial measures is dispositive of this appeal and a new trial is required,
we need not address these additional claims.
Vargas v. Kang Sjuen, LLC

staircase where the plaintiff fell, in failing to inspect
the right-hand railing, and in failing to make the right-
hand railing safe for pedestrians descending the stairs.
The defendant filed his amended answer on January 27,
2023, in which he denied the plaintiff’s material allega-
tions of negligence.3
The case proceeded to trial before the court on April
3 and May 29, 2024. During the trial, the plaintiff,
the defendant, and Feng Juan Lin testified, and vari-
ous documents and photographs were admitted into
evidence. During her direct examination, the plaintiff
testified, inter alia, that, at the time of the incident, she
“delivered the mail at the top of the stairs. And then, I
turned around to go down. And, when I went down the
stairs, the railing buckled out . . . like, it gave . . . out.
It was rusted at the bottom.”
During the plaintiff’s direct testimony, two sets of
photographs were admitted into evidence. The plaintiff
testified that she obtained exhibit 9, which consisted of
a set of two photographs from Google Earth, an Inter-
net mapping program, and stated that they accurately
depicted the condition of the exterior staircase at the
time she fell. The plaintiff testified that exhibit 8, a
second set of two photographs, depicted the condition
of the staircase “after [her] injury [and] after [the] rail-
ings got redone.” The defendant’s counsel objected to the
admission of all of the photographs on foundation and
relevance grounds. Following the objection, the court
asked the plaintiff’s counsel to state the purpose of the
proffered admission of the photographs. The plaintiff’s
counsel responded: “To show that the railing and the steps
3
In his amended answer, the defendant admitted that he, Feng Juan Lin,
and Kang Sjuen, LLC, “owned, operated, leased, maintained, pos-
sessed and/or controlled at all times the [subject] premises . . . .”
At trial, however, the defendant disputed the issues of ownership and
control vis-à-vis the subject property and testified that his wife, the
defendant Feng Juan Lin, owned and/or controlled the property. The
court ultimately found that the defendant was a part owner of the
premises and that he had a duty to reasonably inspect and maintain the
premises in order to render them reasonably safe. The defendant has
not challenged that finding on appeal.
Vargas v. Kang Sjuen, LLC

were fixed after she got hurt.” The court overruled the
objection, stating that it went to “weight, rather than
admissibility,” and admitted both sets of photographs
into evidence. The plaintiff further testified that the
premises was a combined business and residence, and
consisted of a “laundromat attached with units above.”
Upon being questioned by the plaintiff’s counsel concern-
ing the subsequent repairs to the staircase, the defendant
testified that “[Feng Juan Lin had] somebody at [the]
laundr[omat]. They want[ed] the building update[d]
. . . .” Feng Juan Lin also was questioned concerning
the photographs of the stairs, and she acknowledged
that exhibit 8 depicted the condition of the stairs after
the repairs were completed. After the plaintiff rested
her case-in-chief, the defendant’s counsel made an oral
motion for dismissal, arguing that the plaintiff had not
established a prima facie case because she had not proved
notice of the allegedly defective condition. The court
denied the defendant’s motion.
Following the trial, the parties submitted posttrial
briefs. In his posttrial brief, the defendant argued that
the plaintiff failed to prove that the railings were defec-
tive, that there was constructive notice of the defect,
and that the defendant had control of the premises. In
her posttrial brief, the plaintiff, concerning the issue
of the defective condition, compared the photographs
depicting the staircase before and after the repairs. The
plaintiff argued that “[i]t is obvious there is a strong
contrast between the conditions of the railings and stairs
before the plaintiff’s accident and after the report of the
injuries.” The plaintiff further stated that “[e]xhibit [9]
clearly shows the condition of the stairs as the concrete
is deteriorating4 at the bottom near the sidewalk and in
the middle of the stairs leading up to the landing. Proper
inspection and a little maintenance would have prevented
the plaintiff from falling. Exhibit [8] illustrates the
4
The plaintiff’s complaint did not allege that the defect in question
was the condition of the stairs but, rather, the railings. On appeal,
the plaintiff similarly argues that the claimed defect was the railings,
rather than the stairs.
Vargas v. Kang Sjuen, LLC

proper set of stairs, which should have been in place before
the plaintiff got hurt.” (Emphasis added; footnote added.)
Finally, the plaintiff asserted that “[t]he defendant only
fixed the stairs and new railings after the . . . accident
(see exhibit 9).” (Emphasis added.)
On November 7, 2024, the court issued a memorandum
of decision in which it rendered judgment in favor of the
plaintiff. Therein, the court noted the two sets of photo-
graphs depicting the stairs before and after the incident.
The court stated that “[Feng Juan Lin] acknowledged at
trial that exhibits 8 and 9 show the older stairs and the
repaired stairs. If the stairs were repaired, then they were
defective and needed to be repaired.” (Emphasis added.)
The court determined that the defendant was negligent
because, “as part owner, manager and the person respon-
sible for maintenance and inspection of the premises . . .
he had a duty to inspect and maintain the stairs and the
railings.” Finally, the court concluded: “The bottom of
the stairs and the railings were rusted out and weakened.
The defendant should have noticed it over time. That
condition could not have occurred slowly and unexpect-
edly. The photographs and testimony show that the stairs
and railings were repaved.” (Emphasis added.) From the
judgment rendered thereon, this appeal followed.
On appeal, the defendant claims that the court improp-
erly admitted evidence of subsequent remedial measures.
Specifically, the defendant argues that, “in direct con-
tradiction to the clear rule of our state, the trial court
concluded [that], ‘[i]f the stairs were repaired, then they
were defective and needed to be repaired.’ ” We agree
with the defendant’s claim.
We begin by setting forth our standard of review.
“The trial court’s ruling on evidentiary matters 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 rul-
ing, 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
Vargas v. Kang Sjuen, LLC

the law and reasonably could have reached the conclu-
sion 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. . . . We review the trial court’s decision to
admit [or exclude] evidence, if premised on a correct
view of the law, however, for an abuse of discretion.
. . . Additionally, [b]efore 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. . . . The harmless error standard in a civil case
is whether the improper ruling would likely affect the
result.” (Internal quotation marks omitted.) LM Ins.
Corp. v. Connecticut Dismanteling, LLC, 172 Conn. App.
622, 627–28, 161 A.3d 562 (2017).
We next identify the relevant legal principles regarding
the defendant’s evidentiary claim. Section 4-7 (a) of the
Connecticut Code of Evidence provides in relevant part:
“[E]vidence of measures taken after an event, which if
taken before the event would have made injury or dam-
age less likely to result, is inadmissible to prove negli-
gence or culpable conduct in connection with the event.
Evidence of those measures is admissible when offered
to prove controverted issues such as ownership, control
or feasibility of precautionary measures.” “Section 4-7,
which is an exception to the general rule of admissibility
of relevant evidence5 . . . reflects the settled rule in this
5
Section 4-1 of the Connecticut Code of Evidence provides that “ ‘[r]ele-
vant evidence’ means evidence having any tendency to make the exis-
tence of any fact that is material to the determination of the proceeding
more probable or less probable than it would be without the evidence.”
Section 4-2 of the Connecticut Code of Evidence further provides that
“[a]ll relevant evidence is admissible” unless there is a legal basis for
its exclusion, and that evidence that is not relevant is inadmissible.
As stated previously, the defendant’s counsel objected to the admis-
sion of the challenged evidence on foundation and relevance grounds.
The plaintiff has not argued on appeal that the defendant’s claim was
inadequately preserved for review. As the rule against the admission
of subsequent remedial measures is an exception to the general rule of
admissibility of relevant evidence in a negligence action; Conn. Code.
Evid. § 4-7, commentary (a) (“evidence of subsequent remedial mea-
sures is of relatively slight probative value on the issue of negligence
Vargas v. Kang Sjuen, LLC

[s]tate that evidence of subsequent repairs is inadmissible
to prove negligence or [as] an admission of negligence
at the time of the accident. . . . [S]uch evidence is likely
to be of relatively minor probative value. . . . A broad
exclusionary rule prohibiting the use of such evidence
to prove negligence [or culpable conduct] therefore fos-
ters the public good by allowing tortfeasors to repair
hazards without fear of having the repair used as proof
of negligence, even though it requires the plaintiff to
make a case without the use of evidence of the subsequent
repairs. . . . [E]vidence of subsequent remedial measures
may be introduced when the party seeking to introduce
the evidence can demonstrate that it is not being used
as evidence of negligence but is instead offered to prove
another material issue.” (Footnote added; internal quota-
tion marks omitted.) Fisk v. Redding, 190 Conn. App.
99, 112–13, 210 A.3d 73 (2019), rev’d on other grounds,
337 Conn. 361, 253 A.3d 918 (2020). Thus, “[t]he central
question is the plaintiff’s purpose in introducing the evi-
dence. The doctrine bars evidence of subsequent repairs
when offered to prove negligence. It does not exclude
such evidence when offered to prove some other mate-
rial issue.” (Internal quotation marks omitted.) Smith
v. Greenwich, 278 Conn. 428, 448, 899 A.2d 563 (2006);
see also E. Prescott, Tait’s Handbook of Connecticut
Evidence (6th Ed. 2019) § 4.18.2, p. 198 (“Evidence of
subsequent remedial measures is excluded only if offered
on the issue of negligence or culpable conduct. If offered
for any other purpose, the exclusionary rule does not
or culpable conduct at the time of the event”); see also Hall v. Burns,
213 Conn. 446, 457–58, 569 A.2d 10 (1990) (“The rule of exclusion
[of evidence of subsequent remedial measures] has . . . been justified
on relevancy grounds. . . . Under the relevancy rationale, changes
made after an accident are not probative of the reasonableness of a
defendant’s conduct prior to the accident.” (Footnote omitted.)); and,
given our plenary review of the court’s ultimate interpretation of the
Connecticut Code of Evidence, we conclude that the defendant’s claim
is sufficiently preserved for review.
Vargas v. Kang Sjuen, LLC

apply, provided the evidence is otherwise relevant to a
material issue.”).
We conclude that the court abused its discretion when
it admitted evidence of the subsequent repairs to the
exterior staircase where the plaintiff fell, namely, the
photographs depicting the condition of the staircase after
the repairs. The admission of evidence that the staircase
had been repaired after the plaintiff’s fall was in viola-
tion of § 4-7 of the Connecticut Code of Evidence, as it
was admitted solely for the purpose of demonstrating
the defendant’s negligence. As stated previously, when
the court asked the plaintiff’s counsel the purpose for
which the photographs depicting the repaired staircase
were offered, he responded: “To show that the railing
and the steps were fixed after she got hurt.” During the
plaintiff’s direct examination at trial, the plaintiff’s
counsel directly juxtaposed the photographs depicting
the staircase after the repairs with the photographs of the
staircase prior to the repairs. In the plaintiff’s posttrial
brief, she asserted that the photographs of the staircase
after the repairs “[illustrate] the proper set of stairs
[that] should have been in place before [she] got hurt.”
Moreover, at oral argument before this court, the
plaintiff’s counsel conceded that the plaintiff intro-
duced the photographs of the repaired staircase to show
that it was defective.6 Specifically, he stated that “we
introduced it to show that . . . the railing was replaced .
. . that because it was repaired, that means it had to be
defective.” “Concessions made during oral argument
may be properly considered by the appellate courts in
rendering their decision.” (Internal quotation marks
6
The plaintiff’s counsel asserted at oral argument before this court that
he did not believe the trial court relied on the subsequent repairs to the
stairs in determining that the defendant was negligent. Specifically, he
argued that the court’s statements concerning the photographs of the
repaired staircase reflected the plaintiff’s argument, rather than the
court’s conclusion. We do not agree with the plaintiff’s interpretation
of the court’s memorandum of decision. The court clearly stated that,
“[i]f the stairs were repaired, then they were defective and needed to
be repaired.” The court did not indicate that this statement was merely
a recitation of the plaintiff’s argument.
Vargas v. Kang Sjuen, LLC

omitted.) Maner v. Commissioner of Correction, 236
Conn. App. 472, 483, 349 A.3d 21 (2025), cert. denied,
354 Conn. 909, 349 A.3d 1094 (2026). Upon our review
of the record, the photographs were not offered for any
permissible purpose, such as those delineated in § 4-7
of the Connecticut Code of Evidence, or for any other
proper reason, such as impeachment, or to demonstrate
another material issue at trial.7 Accordingly, we conclude
that the court abused its discretion in admitting the
photographic evidence.
We next address whether the improper admission of
the evidence of subsequent repairs was harmful to the
defendant. “It is well established that, [b]efore a party
is entitled to a new trial because of an erroneous eviden-
tiary ruling, he or she has the burden of demonstrat-
ing that the error was harmful. . . . In other words, an
evidentiary ruling will result in a new trial only if the
ruling was both wrong and harmful. . . . Moreover, an
evidentiary impropriety in a civil case is harmless only
if we have a fair assurance that it did not affect the [fact
finder’s] verdict. . . . 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.” (Internal quotation marks omitted.) Kovachich
v. Dept. of Mental Health & Addiction Services, 344
Conn. 777, 814–15, 281 A.3d 1144 (2022); see Duncan
v. Mill Management Co. of Greenwich, Inc., 308 Conn.
1, 20, 60 A.3d 222 (2013) (“[t]he standard in a civil case
for determining whether an improper [evidentiary] rul-
ing was harmful is whether the . . . ruling [likely] would
7
In her brief to this court, the plaintiff cites to § 4-7 of the Connecti-
cut Code of Evidence and argues that “[t]his section is on point and
not an abuse of discretion showing that [the defendant] took remedial
measures because [he] controlled and owned the premises.” Although
ownership and/or control of the premises vis-à-vis the defendant were
disputed at trial, the evidence of the subsequent repairs were not offered
to show ownership or control but, instead, per the representations of
the plaintiff’s counsel, “[t]o show that the railing and the steps were
fixed after she got hurt.”
Vargas v. Kang Sjuen, LLC

[have] affect[ed] the result” (internal quotation marks
omitted)).
“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 includes a review of: (1) the relationship
of the improper evidence to the central issues in the
case, particularly as highlighted by the parties’ sum-
mations; (2) whether the trial court took any measures,
such as corrective instructions, that might mitigate the
effect of the evidentiary impropriety; and (3) whether
the improperly admitted evidence is merely cumulative
of other validly admitted testimony. . . . The overriding
question is whether the trial court’s improper ruling
affected the [fact finder’s] perception of the remaining
evidence.” (Internal quotation marks omitted.) Duncan
v. Mill Management Co. of Greenwich, Inc., supra, 308
Conn. 20–21.
Having reviewed the entire record in this case, we are
convinced that the court’s improper admission of the
photographs depicting the staircase after the plaintiff’s
injury was harmful and likely affected the outcome of
the trial. The condition of the staircase, particularly
the railings, was a central issue in the case, because that
was the claimed defect that the plaintiff alleged caused
her injuries, and the evidence of subsequent repairs was
expressly offered to show that there was a defect. As
noted previously, the plaintiff also repeatedly relied on
the evidence of the repairs in her posttrial brief, stating,
inter alia, that there was a “strong contrast” between
the conditions of the railings before and after her fall,
and that the photographs of the stairs after the repairs
“illustrates the proper set of stairs which should have
been in place before the plaintiff got hurt.” Thus, the
improperly admitted evidence related to the central issue
of whether the stairs were defective at the time of the
plaintiff’s fall. See, e.g., Duncan v. Mill Management
Co. of Greenwich, Inc., supra, 308 Conn. 21 (evidence of
replacement stairs related to central issue of whether
Vargas v. Kang Sjuen, LLC

original step complied with building code and, thus, was
improperly admitted).
On appeal from a bench trial, there is a presumption
that the court, acting as the trier of fact, “considered
only properly admitted evidence when it rendered its
decision.” State v. Roy D. L., 339 Conn. 820, 842, 262
A.3d 712 (2021). In this case, however, the court, who
was the fact finder in the present case, expressly relied
on the improperly admitted photographs depicting the
postaccident repairs in concluding that the defendant was
negligent. The court stated: “If the stairs were repaired,
then they were defective and needed to be repaired.” The
court then described the defective condition, stating:
“The bottom of the stairs and the railings were rusted
out and weakened. The defendant should have noticed it
over time. That condition could not have occurred slowly
and unexpectedly. The photographs and testimony show
that the stairs and railings were repaved.”
Moreover, the improperly admitted evidence was not
merely cumulative of other properly admitted evidence.
Although the plaintiff testified that the railing “buckled
out” and was “rusted” at the bottom, she did not provide
any additional specific evidence regarding the alleged
defect. “[I]n the context of a harmless error analysis, it is
not enough that there was other evidence in the record to
support the [court’s judgment].” Prentice v. Dalco Elec-
tric, Inc., 280 Conn. 336, 359, 907 A.2d 1204 (2006), cert.
denied, 549 U.S. 1266, 127 S. Ct. 1494, 167 L. Ed. 2d
230 (2007). The relevant question is “whether the ruling
. . . [likely] would [have] affect[ed] the [trial’s] result . . .
and . . . this assessment can include merely whether the
trial court’s ruling affected [the fact finder’s] perception
of the remaining evidence.” (Citation omitted; internal
quotation marks omitted.) Id. Given the court’s deter-
mination that the photographs conclusively established
that there was a defect, we conclude that the introduction
of the photographs likely affected the trial’s result and
was not wholly cumulative of other evidence. See, e.g.,
Klein v. Norwalk Hospital, 299 Conn. 241, 257–58, 9
Vargas v. Kang Sjuen, LLC

A.3d 364 (2010) (expert’s testimony was “uniquely”
important to central issue in case and was not merely
cumulative of other testimony). We therefore conclude
that the court’s statements concerning the subsequent
repairs constituted an improper application of § 4-7 of
the Connecticut Code of Evidence.
Weighing the totality of the evidence presented at
trial, we are persuaded that the improper introduction
of the evidence of subsequent remedial measures likely
affected the result in this case. Accordingly, we conclude
that the admission of such evidence was harmful and
that a new trial is warranted.
The judgment is reversed and the case is remanded
for a new trial.
In this opinion the other judges concurred.