author: MINORA, J.,

text:
    Hudak-Bisset v. County of Lackawanna

      Edward F Choker, for plaintiff.

      Thomas J. Ratchford, for defendants.
    March 19, 2014
   MINORA, J.,

INTRODUCTION

Currently before the court is the plaintiff’s motion for leave of court to file an amended complaint pursuant to Pennsylvania R.C.P. 1033. The motion of the plaintiff is granted with the proviso for a permissive interlocutory appeal pursuant to Pa. R.A.P. 312 due to this opinion’s extension of existing law.

FACTUAL AND PROCEDURAL HISTORY

This case arises from an automobile accident alleged to have caused injuries to George Hudak (“decedent”), on May 13,2005. As originally pled, a bus, a common carrier owned and operated by the County of Lackawanna Transit System (“COLTS” or “defendants”), disregarded a stop sign and struck the vehicle that decedent was operating. Decedent allegedly suffered severe and permanent injuries from the crash. Despite substantial treatment, decedent’s condition allegedly did not improve. Supposedly due to his chronic, severe, permanent and debilitating pain, decedent committed suicide on September 11,2011. Decedent left a suicide note, stating in part that he “could not take the pain he was experiencing every day and that the medicine was not working and he was tired of it.” Decedent had lived with his pain for in excess of six years.

Prior to his death, decedent initiated an action by filing a complaint for negligence on May 2,2007. Decedent also left a will naming Shannon Hudak-Bisset (“plaintiff’) as the executrix of his estate. On December 5, 2011, a notice of death and a substitution of personal representative were both filed with the court. Plaintiff retained new counsel, the Law Offices of Gay, Chacker, & Mittin P.C., on or about August 2, 2013. Present counsel noted that the caption of the action had not been amended to reflect decedent’s death. Counsel further noted that no amendment of the complaint had been sought following decedent’s death to add claims based upon the wrongful death and survival act to their action. Plaintiff seeks leave of court to amend the complaint to add claims based upon the wrongful death act, 42 Pa. C.S.A. §8301, and the survival act, 42 Pa. C.S.A. §8302.

ISSUE

Whether plaintiff’s motion for leave of court to file an amended complaint should be granted, under Pa.R.C.P. 1033, to include claims based upon the wrongful death act and the survival act when the death resulted from plaintiff/ decedent’s suicidal act?

LEGAL STANDARD

Pursuant to Pennsylvania Rule of Civil Procedure 1033, any party may amend its pleading to add new causes of action by stipulation of other parties or by leave of court. Pa.R.C.P. No.1033. The amended pleading may aver transactions or occurrences, which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. Id. Leave to amend is within the sound discretion of the trial court. Reed v. Pray, 53 A.3d 134, 143 (Pa. Commw. Ct. 2012). The trial court’s determination will not be disturbed absent an abuse of that discretion. Ash v. Cont’l Ins. Co., 593 Pa. 523, 525 (2007). Leave to amend pleadings is to be liberally granted. Chaney v. Meadville Med. Ctr., 912 A.2d 300, 303 (Pa. Super. 2006); Balletta v. Spadoni, 47 A.3d 183, 201 (Pa. Commw. Ct. 2012). The policy underlying this rule of liberal leave to amend is to insure that parties get to have their cases decided on the substantive case presented, and not on legal formalities. Chaney at 303. “A party is to be given leave to amend its pleadings when allowing the amendment will not unduly prejudice or surprise the adverse party. Undue prejudice has been defined as something more than a detriment to the other party....” Sarah E. Newman Revocable Trust v. B.E. Newman Inc., No. 2009-3064, 2009 WL 5909308 (Centre Co. 2009).

At issue in this proposed amendment to plaintiff’s complaint is the vexing and complicated question of whether a plaintiff ought to be allowed to recover damages for a suicide allegedly secondary to accident related injuries and chronic pain caused by the tortfeasor’s/defendant.

This issue is both vexing and complicated because it has arisen in the numerous procedural contexts of preliminary objections to a complaint; motions for judgment on the pleadings and motions to amend complaints, motions for summary judgment and in motions in limine. All of these procedural contexts offer differing applicable legal standards which apply.

Additional issue complexity arises in the infinite variety of factual contexts within which our issue has arisen. These factual contexts can often offer a justifiable context for a decision without the resultant decision settling the issue in the context of stare decisis or a uniform statement of the law going forward.

Regardless of the variability of the procedural and factual contexts, what we are called upon to assess is the extent and duration of the duty and proximate cause which our common carrier defendant COLTS owes to the plaintiff decedent. The immediate limiting statement of the law in this area regarding the issue of duty and proximate cause is McPeake v. William T. Cannan, Esq., F.C., 553 A.2d 439, 381 Pa. Super. 227 (1989). In McPeake, the defendant client’s estate brought a legal malpractice action against the defendant alleging negligent legal representation in a criminal case which allegedly caused the criminal defendant to commit suicide. The trial court dismissed the complaint on preliminary objection in the nature of a demurrer. The Superior Court affirmed. In doing so, the Superior Court in McPeake stated that:

“Generally suicide has not been recognized as a legitimate basis for recovery in wrongful death cases. This is so because suicide constitutes an independent intervening act so extraordinary as not to have been reasonably foreseeable by the original tortfeasor.”

Id. at 440-441.

The opinion went on to cite limited exceptions to this rule which are in the context of worker’s compensation and mental health institutions and professionals and custodial relationships none of which are applicable in this case.

The precise issue crafted by the Superior Court in McPeake was, “... the questions is whether an attorney’s duty of representation extends to protecting a client from his own suicidal tendencies.”

The McPeake court went on to describe the elements of a legal malpractice claim; the first being the employment of the attorney or other basis for duty; the second being the failure of the attorney to exercise ordinaiy skill and knowledge; and third and finally, that such negligence proximately caused the plaintiff’s injuries.

Citing Hamil v. Bashline, 481 Pa. 256, 265, 392, A.2d 1280, 1285 (1978), the McPeake court stated that once a plaintiff has established that a duty of care exists and then is breached the plaintiff must still establish a causal connection between the defendant’s negligent conduct and the plaintiff’s injuries. McPeake at 441.

In defining proximate cause or legal causation, McPeake stated:

“’Proximate’ or ‘legal’ causation in turn is defined as ‘[tjhat which, in a natural and continuous sequence, unbroken by a sufficient intervening cause, produces injury and without which the result would not have occurred.’ Wisniewski v. Great Atlantic and Pacific Tea Company, 226 Pa. Super. 574, 582, 323 A.2d 744, 748 (1974).”

The McPeake opinion then cited Prosser on torts noting his comments on proximate cause in which Prosser states that proximate cause, “...becomes essentially a question of whether the policy of the law will extend responsibility for the conduct to the consequences which have in fact occurred.” McPeake at 442, 223.

Framing the proximate cause issue differently, McPeake states, “...so an issue of whether the defendant is under any duty to the plaintiff, or whether his duty includes protection against such consequences.” Id.

Additionally, McPeake states, “[t]hus, a defendant will not be found to have had a duty to prevent a harm that was not a reasonably foreseeable result of the prior negligent conduct.” Id.

The stated rationale was that in the interests of fairness, it would not be fair to impose a duty upon persons to prevent a harm that they could not foresee or avoid.

Concluding, McPeake has determined suicide is generally an independent intervening act so extraordinary as to not have been reasonably foreseeable by the original tortfeasor. Therefore, the court held as a matter of law that the attorney’s alleged negligence could not be the proximate cause of the decedent’s suicidal injuries since said injuries were not foreseeable. They then narrowly concluded that an attorney’s duty to provide adequate representation does not encompass the duty to foresee and protect a client from his own possible suicidal tendencies.

Citing a string of cases which rigidly follow McPeake, common carrier defendant COLTS urges us to come to the same conclusion regarding COLTS responsibility to suicide decedent George Hudalc.

Pennsylvania state courts and federal courts applying Pennsylvania law appear to have consistently relied on the McPeake decision. See Ferris v. Cleveland, Civil Action No. 3:10-1302, 2012 WL 2564782 (M.D. Pa. 2012) (granting a motion in limine that excluded testimony of a neuropsychologist to identify the causal relationship between a motor vehicle accident and the decedents suicide); Puza v. Carbon County, 586 F.Supp.2d 271 (M.D. Pa. 2007) (holding that architects who designed prison were not liable for pretrial detainee’s suicide); Cooper v. Frankford Health Care System, Inc., 960 A.2d 134 (Pa. Super. 2008) (explaining that a hospital did not owe duty to protect anesthesiologist from harming himself after confronting him with drug abuse allegation).

However, there is a singular case that is distinguished from the McPeake case and the cases that follow. In Mackin v. Arthur J. McHale Heating & Air Conditioning Co., Inc., 76 Pa. D. & C.4th 544 (Lacka. Co. 2005), the plaintiff, who was the administratrix of decedent’s estate, claimed that the decedent’s suicide was a direct result of injuries and the decedent’s subsequent inability to alleviate his resulting pain and depression suffered in a motor vehicle accident. The accident was caused by the negligence of the defendant’s employee while working within the course and scope of his employment. The plaintiff amended their complaint to include wrongful death and survival claims and the court denied the defendant’s preliminary objection in the nature of demurrer. The court held that “the view that suicide is always an independent intervening action relieving a tort-feasor of liability is too restrictive...[and the] jury should be given an opportunity to determine whether the defendants’ actions are the proximate cause of the decedent’s suicide.” Id. at 549. In it’s reasoning, the Mackin court distinguished the facts before it from those in McPeake.

Before we adopt McPeake’s position, it is necessary to point out that under McPeake’s unique facts one of the court’s rationale was the public policy of not discouraging attorney’s from representing “unstable” criminal defendants. Once again, this case involved preliminary objections, not a motion to amend, so different legal standards apply.

An additional distinction is that COLTS as a bus company and common carrier is held to a higher degree of care. Lynch v. McStome and Lincoln Plaza Assoc., 548 A.2d 1276, 1279 (Pa. Super. 1988). Some cases say to the highest degree of care. Lebanon Coach Co. v. Carolina Cas. Inc. Co., 675 A.2d 279 (Pa. Super. 1996), appeal denied 687 A.2d 378 (Pa. 1997).

Some cases are also factually distinguishable from our case in that they needed opinion testimony from experts to establish causation whereas our facts are that George Hudak left a suicide note establishing that chronic pain secondary to his accident with common carrier defendant COLTS led him to take his own life.

Exhibit E to plaintiff’s motion for leave to amend complaint is plaintiff/decedent George Hudak’s suicide note. It is marked as “found on deceased by police and/or coroner.” The note is addressed to George Hudak’s mother and in relevant portions it reads as follows:

“Dear Mom,
I’m sorry but I can’t take this pain eveiy day depending on the weather. The pain medication is not working and I am just tired of this.
We will meet again I’m sure.
...There is no passion in my life anymore Woman, sports, lottery games nothing.”

The court surmises that this statement is offered to prove the truth of these matters asserted and to relate the decedent’s represented condition to the motor vehicle accident with COLTS herein.

If so, it would have to qualify as an exception to the hearsay rule in order to be admitted. Our review of the Pennsylvania Rules of Evidence indicates that the hearsay exception at Pa.R.E. 803(3) state of mind exception to the hearsay rule would apply.

The state of mind hearsay exception is set forth in Pa.R.E. 803(3). It states:

“The following statements, as hereinafter defined, are not excluded by the hearsay rule, even though the declarant is available as a witness:
(3) Then existing mental, emotional, or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health. A statement of memory or belief offered to prove the fact remembered or believed is included in this exception only if it relates to the execution, revocation, identification, or terms of declarant’s will.”

This exception is irrelevant if the statement is not being introduced to prove the matter asserted. However, where a statement is being introduced for the truth of the matter asserted, then it may be admissible if it is a declaration concerning “the declarant’s then existing state of mind... such as intent, plan, motive, design, mental feeling, pain, and bodily health.” Pa.R.E. 803(3). Of course, the statement must be relevant to the issue in the case. Schmalz v. Manufacturers & Traders Trust Co., 67 A.3d 800, 803-804 (Pa. Super. 2013).

There are ordinarily three instances in which the state of mind exception is applicable. First, the exception may apply to prove the declarant’s state of mind when that state of mind is an issue directly related to a claim or defense in the case. Second, the exception can apply to demonstrate that a declarant did a particular act that was in conformity with his or her statement after having made the statement. Finally, an out of court statement related to the person’s memory or belief is admissible in the limited instance where it relates to the “execution, revocation, identification or terms of the declarant’s will.” Id. at 804-805. (citation omitted).

In our case, we conclude that Mr. Hudak’s suicide note falls under this hearsay exception. It is being used to prove the matter asserted: that the suicide of Mr. Hudak was factually caused by the automobile accident and the injuries and pain resulting therefrom. However, the suicide note, written by Mr. Hudak, speaks directly to his then existing mental state; including his state of mind, “I can’t take this pain...[t]he pain medication is not working and I’m just tried of this,” intent, plan, motive, mental feeling, pain, and bodily health. He specifically talks about his pain and bodily health in his note. He speaks to how he feels, both mentally and physically. He states his intent and reasoning for committing his eventual suicide, “...no passion in my life anymore...” The suicide note speak directly to what is at issue in the pending litigation: the casual connection between the injuries and pain suffered in the automobile accident and Mr. Hudak’s suicide. The suicide note of Mr. Hudak shows his action, his eventual suicide, is in direct conformity with his written suicide note. For the reasons stated above, Mr. Hudak’s suicide note falls under the “state of mind” exception, 803(3), to the evidentiary hearsay rule.

In the Lackawanna County case of Mackin v. Arthur J. McHale Heating & Air Conditioning Co., Inc., 76 Pa. D. & C.4th 544 (Lacka. Co. 2005), Senior Judge S. John Cottone issued an opinion on May 19, 2005 standing as the only opinion, this court’s research revealed, which is contrary to McPeake. As noted, this case involved preliminary objections to the complaint.

The gravamen of the complaint is that Thomas Mackin was stopped in traffic when he was rear ended by Justin Burkhart driving a truck while in the scope of employment and acting as an agent for defendant. Numerous injuries to the plaintiff caused severe pain requiring narcotic pain medication to control. Plaintiff decedent became dependent upon the medication, eventually committing suicide. Plaintiff argued the suicide was the direct result of injuries caused by the motor vehicle accident and decedent’s inability to alleviate his resulting pain and depression. The complaint was amended to add wrongful death and survival act claims. The defendant filed preliminary objections in the nature of a demurrer and a motion to strike. The court denied defendant’s demurrer and struck an offending paragraph.

The Mackin case also revealed that the Pennsylvania McPeake position, though consistently upheld, is often contradicted by views from other states. Mackin cites cases contrary to McPeake’s position from the states of Delaware, Indiana and California.

Pa.R.C.P. 1033 entitled “amendment” governs our dispute and it states as follows:

“A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, add a person as a party, correct the name of a party, or otherwise amend the pleading. The amendment pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted” (emphasis added).

Plaintiff’s suicide occurred after the cause of action was filed thus necessitating amending the name of the plaintiff and changing the form of the cause of action. Ostensibly, the amendments sought would seem to work within the confines of Pa.R.C.P. 1033, but COLTS says no. COLTS states that McPeake and its’ progeny substantively bar plaintiff’s proposed amendments. Conversely, plaintiff states that they ought to be given the opportunity to try and plead a valid amendment. Therein lies the core of the dispute. Cases interpreting Pa.R.C.P. 1033 provide that trial courts generally ought to exercise their discretion to permit amendment. The Brickman Group. Ltd. v. CGU Ins. Co., 865 A.2d 918, 926-927 (Pa. Super. 2004). That same admonition of liberal construct of civil rules and amendments, likewise also contains limiting advice. Brickman also states where a party will be unable to state a claim upon which relief could be granted, leave to amend should be denied. Id. at 127.

So can the plaintiff state a lawful claim upon which relief can be granted? Strict adherence to McPeake and its progeny would deny that ability but other governing law may leave that door ajar, if not open.

The case of McNeil, Jr. v. Jordan, 586 Pa. 413, 894 A.2d 1260 (2006) dealt with an amendment issue in the context of a testamentary dispute. In this case, plaintiff sought precomplaint discovery in order to further amend a disputed earlier complaint. Our Superior Court determined that in order to achieve their desired result, plaintiffs had to show good faith as well as probable cause that the information sought is both material and necessary to the drafting of the complaint. Id. at 443-444, 894 A.2d at 1278.

In reaching their conclusion, our Supreme Court disagreed and needed to rule out the Superior Court’s erroneous “probable cause” standard. To accomplish this, the Supreme Court referenced the Dragonetti Act at 42 Pa. C.S.A. §8532. They looked at the act’s definition of probable cause and the elements of the offense. They observed that a person has probable cause for initiating suit if he reasonably believes in the existence of the facts upon which his claim is based and either: (1) reasonably believes that under those facts the claim may be valid under the existing or developing law. McNeil at 439, 894 A.2d at 1276 (emphasis added).

Our plaintiff essentially argues that due to factual and procedural variation and due to disputes in other jurisdictions, we ought to view this dispute as an area of developing law and afford liberal view towards amending the complaint.

In this view, the case of Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979) gives us guidance. This case involved recovery of damages for negligently caused mental trauma suffered by a bystander (mother) not being precluded merely on the basis that they were outside of the zone of danger of being struck by the negligent force. The mother observed her child being struck and killed by an automobile. The dispute was over preliminary objections in the nature of a demurrer.

The Sinn court stated that:

“...where the propriety of an order sustaining a demurrer is being reviewed by a court of last resort, the fact that the theory for recovery relied upon has not been previously sanctioned is not conclusive. It must be remembered that [e]very cause of action.... however, was once a novel claim, and the absence of Pennsylvania authority for appellant’s proposition is not an end to the issues. ’Papieves v. Kelly, 437 Pa. 373, 376-377, 263 A.2d 118, 120(1970)” (emphasis added).

Sinn at 150, 404 A.2d at 674.

A review of the evolution of the tort of negligent conduct causing only emotional distress is illustrative of the Sinn court’s proposition. In a period of about twenty years, Pennsylvania evolved from a jurisdiction that barred recovery for the consequences of fright and shock negligently inflicted, absent contemporaneous impact. Bosley v. Andrews, 142 A.2d 263 (Pa. 1958). This was known as the impact rule.

It moved to a less restrictive proposition which afforded plaintiffs a potential recovery where the plaintiff was in personal danger of physical impact because of the direction of negligent force against him and where plaintiff did actually fear the physical impact. Neiderman v. Brodsky, 261 A.2d 84, 90, 436 Pa. 401 (1970). This was otherwise known as the zone of danger theory or rule.

Finally, to the present state of the law which affords potential recovery by a parent who witnesses an injury to his or her child, although not in the zone of danger on the basis that the parents injury is foreseeable. Sinn v. Burd, supra.

In essence, this was the creation of a new type of emotional cause of action or tort because Mrs. Sinn was seeking her own damages for her own emotional injuries sustained as a result merely of witnessing the accident. The contemporaneous observation or perception of the accident has been held to be an absolute requirement for recovery of damages in a negligent infliction of mental distress case.

Our plaintiff seeks the right to amend or pled wrongful death and survival act counts in the context of plaintiff’s suicide despite McPeake and its progeny. Their argument is that like the evolution of the tort noted above this claim may be valid under existing law or developing or evolving law. Mackin, supra {See other states).

That is but one argument, but in order to give this issue more complete treatment it is necessaiy to address the rationale of McPeake which underlies the holding therein that suicide amounts to an independent intervening act so extraordinary as not to have been foreseeable by the original tortfeasor.

In Sinn, Justice Nix stated that as society grows more complex and interwoven in its relationships then, greater responsibility must be accepted for his or her conduct. Sinn at 163-164,404 A.2d at 681. In applying this modem standard to a duty of care analysis, Justice Nix stated, “...the concept of duty amounts to no more than, ‘the sum total of those considerations of policy which led the law, to say that a particular plaintiff is entitled to protection’ from the harm suffered.” Id.

Justice Nix went on to further quote Dean Prosser for the proposition, “There is a duty if the court says there is a duty; the law like the constitution is what we make it. Duty is only a word with which we state our conclusion that there is or is not to be liability....”

Later in Sinn, Prosser is further quoted regarding duty that, “...the problem of duty is as broad as the whole law of negligence, and that no universal test for it ever has been formulated.... ‘duty’... but only an expression of the total sum of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.” Sinn at 165, 404 A.2d at 682 (citing Prosser, Torts 53 (4th Ed. 1971)).

So the threshold issue is whether or not a duty exists and if it is not so should the plaintiff still be allowed to test the limits of the existing law and be allowed to plead it as a developing area of the law. In order to answer this question, we must return to McPeake, supra, and explore more comprehensively not only its conclusions, but the stated rationale for those conclusions.

The facts in McPeake are perhaps more compelling than our facts herein. On July 11,1985, appellant decedent Robert T. McPeake was arrested for burglary, rape, indecent assault, corrupting the morals of a minor and possession of the instruments of a crime. Mr. McPeake chose to go to trial and on August 18, 1986 after a jury found decedent guilty on all counts, he suddenly jumped from a closed fifth floor court room window and killed himself.

Decedent’s estate filed a legal malpractice case against Robert T. McPeake’s criminal defense counsel and included counts for wrongful death and survival act claims which drew preliminary objections in the nature of a demurrer. The trial court granted the objections stating,

“The court concludes as a matter of law, assuming the malpractice or negligence of [appellee] is true as alleged, that jumping out a window is not foreseeable and therefore, the alleged actions or omissions of [appellee] are not the proximate or legal cause of [decedent’s] injuries. The court will not elaborate further as this issue is a matter of common sense. Trial court opinion at 1.”

McPeake at 442.

The Supreme Court concurred with the trial court and stated in quoting the case of McLaughlin v. Sullivan, 123 N.H. 335, 461 A.2d 1231 (1983), a New Hampshire case that:

“The court held that a lawyer’s duty of representation does not extend to protecting a client from his suicidal tendencies and thus proximate causation could not be established as a matter of law. We agree with the McLaughlin court and adopt its holding as a matter of Pennsylvania law.”

McPeake at 442.

When you look at the holding and seek to answer why, both the trial court and the Superior Court answer. The trial court McPeake, op. cit. at 442-233 states, “...jumping out of a window is not foreseeable and therefore the alleged actions or omissions of [appellee] are not the proximate or legal cause of [decedent’s] injury.” Id. The trial court tells us their rationale was that decedent’s actions could not be foreseeable therefore they cannot act as harm which would impose duty on his trial counsel even if trial counsel were wrong. This appears to be a subjective standard arising out of the specific facts of this case.

The Superior Court agrees stating, “Suicide has been recognized as an act that is so extraordinary as to not be reasonably foreseeable and thus courts have held that it is not the type of harm that can proximately result from ordinary negligence.” This appears to be a more objective and blanket statement not related to the specific facts of the case until we later review the Superior Court’s own statement of its findings. In McPeake, the Superior Court states,

“We find the connection between negligence in the practice of law and the harm which befell the decedent in the case to be simply too attenuated to impose legal liability on the part of the defendant.” Emphasis added.
“...because an attorney does not possess the ability either to perceive that a client is likely to commit suicide or to prevent suicide we will not impose liability upon him for failing to prevent a harm that is not a foreseeable result of prior negligent conduct.”

Id. at 443.

The inverse of the above quote can at least be read to presume that the Superior Court would or could impose liability on a defendant in a suicide case if it was the foreseeable result of prior negligent conduct. In fact that is the rationale and basis for holding certain treatment centers and professionals responsible in suicide settings because their training and expertise makes foreseeability more acute.

In applying these McPeake lessons to our facts, is it foreseeable that a motor vehicle accident can cause severe harm and pain to its victims? Is it still foreseeable that the severe harm or pain can defy treatment and become chronic? Finally, is it foreseeable that such severe chronic pain can lead to depression and suicide? As the trial court stated in McPeake, “The court will not elaborate further as this issue is a matter of common sense.” Id. at 442. It is also noteworthy that this was very similar to the Mackin case fact pattern.

Should such a logical and direct chain of causation be determined to be “...too attenuated to impose legal liability on the part of the defendant?” Id. at 443. We think not. We believe such a blanket, all encompassing view to be very narrow and restrictive. Not all suicides in every conceivable procedural and factual posture can totally be deemed to be “...so extraordinary as to not be reasonably foreseeable...” Id. at 442. This brush paints too broadly. We know this to be the case due to the statutory exception in the worker’s compensation statute, 77 P.S. §431 and also due to the exceptions for hospitals, mental hospitals, and mental health professionals.

These exceptions exist because their specialized training and expertise qualifies them with greater foreseeability of the harm that their deviations from the standard of care can cause.

Arguably, one can allege that is why there exists a general rule that suicide is generally deemed not foreseeable with only those delineated and limited exceptions. The response to such an argument is that specific facts generated those cases and statutes which were created to address exceptions and inequities in the general rule. Plaintiff argues their case also needs to be amended to plead and address inequities which arise out of application of the general rule to the facts in their case.

In the case of Campo v. St. Luke’s Hosp., 755 A.2d 20, 23-24 (Pa. Super. 2000), the Superior Court did a duty analysis starting with the elements of a negligence based cause of action stating, “[i]t is axiomatic that the elements of a negligence based cause of action are a duty, breach of that duty, a causal relationship between the breach and the resulting injury and actual loss.” J.E.J. v. TriCounty Big Brothers/Big Sisters, 692 A.2d 582 (Pa. Super. 1991).

Campo, goes on to speak to duty stating that, “[wjhether a duty exists is ultimately a question of fairness. The inquiry involves a weighing of the relationship of the parties, the nature of the risk and public interest in a proposed solution.” Campo at 23-24.

The Campo court goes on to characterize duty as amounting, “...to no more than ‘the sum total of those considerations of policy which led the law to say that the particular plaintiff is entitled to protection’ from the harm suffered.”

Lastly, Campo, tells us, “[i]t is only when the question of foreseeability is undeniably clear may a court rule as a matter of law that a particular defendant did not have a duty to a particular plaintiff.” Id.

COLTS defendant urges that this court should find such clarity in the general rule out of McPeake that suicide is such an independent, unpredictable intervening act that it is not foreseeable. Plaintiff decedent would urge us to allow their complaint amendments to challenge the general rule due to the unbroken logical chain of causation that their facts present, including the note that ties it all together without the need for expert testimony.

To determine whether such duty should be found to exist, the case of Althaus v. Cohen, 562 Pa. 547, 553, 756 A.2d 1166, 1169 (Pa. 2000) written by our Supreme Court establishes a five part test.

“The determination of whether a duty exists in a particular case involves the weighing of several discrete factors which include; (1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and the foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution.”

The case of Commerce Bank/Pennsylvania v. First Union Nat. Bank, 911 A.2d 133 (Pa. Super 2006) also conducted a similar five factor analysis so we too shall attempt a similar exercise.

The Relevance Between the Parties

The first factor we are directed to review is the relationship between the parties. As Commerce Bank, tells us, “[d]uty is predicated on the relationship that exists between the parties at the relevant time.” Id. at 138. According to the facts pled, there was no relationship between the parties until COLTS, a common carrier with a higher standard of care ran a stop sign striking plaintiff’s motor vehicle, thus establishing the relationship of tortfeasor and injured party. Accordingly, this factor would support the finding of a duty. Obviously, the extent of that duty pre and post suicide is debatable.

The Social Utility of the Actor’s Conduct

There exists no social utility that this court can discern when someone runs a stop sign and harms another party. This utility is further diminished when the defendant tortfeasor is a common carrier from which a higher standard of care is expected. This factor, based upon logic and common sense, would seem to support a finding of duty.

The Nature of the Risk and the Foreseeability of the Harm Incurred

Regarding this third factor, it is axiomatic that duty arises only when one engages in conduct which foreseeably creates an unreasonable risk of harm to others. Id. at 139.

The test is whether the harm to our plaintiff/decedent was foreseeable in the first instance. Id. The argument of COLTS seems solely directed to the post suicide related harm.

Here our tortfeasor was operating a bus, a common carrier, which experience tells us is a much larger and heavier vehicle than an automobile. Here our tortfeasor, a common carrier, operating a bus is alleged to have run a stop sign striking plaintiff who was operating his motor vehicle. Applying duty to the conduct thus far seems undisputed. The COLTS bus had a duty to plaintiff/ decedent to operate their bus safely. As a result of this accident, plaintiff/decedent, despite treatment, becomes afflicted with severe, debilitating chronic pain. That pain leads to depression which leads to suicide. Not an unheard of nor necessarily a rare or uncommon occurrence. See Mackin.

Decedent tells us what happened in his suicide note stating in part that he, “could not take the pain he was experiencing every day and that the medicine was not working and he was tired of it.” No need for expert testimony here. The plaintiff tells us that after six years of pain “he was tired of it.”

When you crash into a car while operating a bus is such a chain of causation sufficiently foreseeable? We think that logic and our life’s experience make it sufficiently foreseeable to reexamine the existing suicide doctrine bar and to allow the complaint to be amended. A look at the interpretation of the worker’s compensation exception at 77 P.S. §431 by our Supreme Court in the case of Globe Security Systems v. Workman’s Compensation Appeals Bd.(Guerrero), 518 Pa. 544, 550, 544 A.2d 953,957 (Sup. 1988) is instructive. In that case, our Supreme Court said, “[i]f the injury so acts upon the will that it is not operating independently at the time of the suicide then the chain of causation is clear, since there is no independent intervening cause.”

Using this rationale and based upon our facts, there exists sufficient foreseeablity to support a finding of duty.

The Consequences of Imposing a Duty Upon the Actor

Here the consequences of imposing duty upon the actor would not be onerous. The consequences already exist here and the potential for amendment of plaintiff’s complaint herein would only be expanding the extent of those existing consequences.

In expanding the extent of the duty of the defendant to encompass plaintiff/decedent’s suicide that directly arises out of the chain of causation from the accident, we are placing responsibility where existing law would already place the liability but expanding its’ extent. All the amendments proposed would do would be to potentially encompass suicide causally arising out of the accident. We believe this factor supports a finding of duty.

The Overall Public Interest in the Proposed Solution

The public interest in such a duty analysis which would potentially expand duty to encompass a causally related suicide would seem to be a matter of significant public interest. By entertaining this notion of expanding duty to encompass a causally related suicide as foreseeable and therefore compensable, the impact would seem to potentially impact upon all the motoring public. After all, the plaintiff/decedent did not take his own life because of a failed emotional relationship or some other reason unrelated to the accident. The chain of causation relating back to this accident is clear.

Where should public policy place the risk of liability in such a scenario? Does it belong in the deceased plaintiff whose life was ruined by the chain of consequences and causation solely arising from the accident because it robbed him of his will to live and ultimately he committed a causally related suicide? We think not. The risk of liability ought to remain with the tortfeasor, the common carrier, who began this tragic cascade of circumstances which cumulated in a suicide.

By allowing the expansion of duty to overcome the bar of suicide because the chain of causation implicates the accident related reason for the suicide we are placing responsibility where it belongs on the common carrier tortfeasor.

This factor weighs in favor of finding duty.

Factual Cause Analysis

Much as the concept of negligent infliction of emotional distress has evolved over the years, as noted above, so has the concept of causation as a component part of tort claims.

When addressing causation the substantial factor test from the Restatement (Second) of Torts §431(1) 1965 had been cited with approval by Pennsylvania Courts. Whitner v. Lojeski, 263 A.2d 889 (Pa. 1970). If an action was determined to be a substantial factor in causing harm then the injured party could prevail.

This concept became confusing to jurors who deliberated in tort cases. Therefore other concepts such as foreseeability or the natural and probable consequences of an act were also used. As noted at Pa. S.S.J.I. §13.20 subcommittee note, “natural and probable consequences is merely another synonym for ‘foreseeability.’”

Other terms such as “legal cause,” “efficient cause,” “substantial contributing factor” and “proximate cause” all emerged in an attempt to make the concept of causation understandable to jurors and others.

In Grainy v. Campbell et al., 493 Pa. 88, 89, 425 A.2d 379, 380 (1981) our Supreme Court overruled the case of Kline v. Mover, 325 Pa. 357, 191 A.2d 43 (1937) and decided that the intervening negligent act of a second actor would not discharge nor extinguish the first actor’s liability for antecedent negligence. The rationale was that the first tortfeasor should have had a “realizable likelihood” that their negligent actions could have caused an accident such as occurred with the second tortuous actor. Grainy at 92, 425 A.2d at 382. They said the circumstances were not “highly extraordinary” which was another way of saying that the danger was foreseeable. Id. at 93, 425 A.2d at 382.

The court relied on Prosser for his observations that “this becomes essentially a question of whether the policy of the law will extend the responsibility for the conduct to the consequences which have in fact occurred.” Id.

The issue herein: Is chronic pain, depression and suicide a “realizable likelihood” in our case? If so, should it matter whether the second actor’s conduct is negligent or intentional? This arguable extension goes to the root of Professor Prosser’s policy question. We know it should not extinguish the first actor’s negligence but should the first party’s negligence extend to the consequences which have in fact occurred.

For guidance to answer to this question, I refer to the Pennsylvania Suggested Standard Jury Instructions on Factual Cause at section 1320. The court recognizes that these instructions are not binding statements on the law but they are recognized as “nonetheless instructive.” Gorman v. Costello, 929 A.2d 1208, 1213 (Pa. Super. 2007).

The instruction for §1320 factual cause would read as follows in our case:

In order for the plaintiff, Estate of George Hudak to recover in this case, the defendant, COLTS’ negligent conduct must have been a factual cause in bringing about harm. Conduct is a factual cause of harm when the harm would not have occurred absent the conduct. To be a factual cause, the conduct must have been an actual, real factor in causing the harm, even if the result is unusual or unexpected. A factual cause cannot be an imaginary or fanciful factor having no connection or only an insignificant connection with the harm.
To be a factual cause, the defendant COLTS’ conduct need not be the only factual cause. The fact that some other causes concur with the defendant’s negligence in producing an injuiy does not relive the defendant COLTS from liability as long as his own negligence is a factual cause of the injury.

Clearly, COLTS’ alleged negligence is a factual cause on bringing about the harm because the harm would not have occurred absent the conduct. If we define our harm as the chronic pain alleged to have been sustained by decedent Hudak then the conduct of COLTS would be an actual real factor in causing the harm “...even if the result is unusual or unexpected.” (emphasis added). Doesn’t an unusual or unexpected result define Hudak’s suicidal act?

Further, to be a factual cause of the harm, COLTS’ conduct need not be the only factual cause. The fact that some other causes concur with COLTS’ negligence in producing an injury does not relieve COLTS from liability as long a COLTS’ own negligence is a factual cause of the injury.

Case law supports this instruction as a rule of law and not simply a suggested instruction that is nonetheless instructive. Gorman, supra, at 1213.

“Proximate cause is defined as a wrongful act which is a substantial factor in bringing about the plaintiff’s harm.” Lux. V. Gerald E. Ort Trucking, Inc., 887 A.2d 1281, 1286 (Pa. Super. 2005). The question of whether defendants’ negligence was a proximate cause of the injury is ordinarily one to be decided by the fact finder. Quinby v. Plumsteadville Fam. Prac. Inc., 907 A.2d 1061, 1077 (Pa. 2006).

“In order for the plaintiff to recover in this case, the defendant’s [negligence] [reckless] [intentional] conduct must have been a factual cause in bringing about harm. Conduct is a factual cause of harm when the harm would not have occurred absent the conduct. To be a factual cause, the conduct must have been an actual, real factor in causing the harm, even ifthe result is unusual or unexpected. A factual cause cannot be an imaginary or fanciful factor having no connection or only an insignificant connection with the harm.
To be a factual cause, the defendant’s conduct need not be the only factual cause. The fact that some other causes concur with the negligence of the defendant in producing an injury does not relieve the defendant from liability as long as [his] [her] own negligence is a factual cause of the injuryEmphasis added.

Irey v. Com., Dept. of Transp., 72 A.3d 762,772 (Pa. Commw. 2013) (citations omitted).

The Lux case was also cited in Commerce Bank Pennsylvania v. First Union Nat. Bank, 911 A.2d 133,141 (Pa. Super. 2006).

In Commerce Bank, the court stated the concept of proximate cause at length:

“It is beyond question that the mere existence of negligence and the occurrence of injury are insufficient to impose liability upon anyone as there remains to be proved the link of causation. Furthermore, our Supreme Court has stated that even when it is established that the defendant breached some duty of care owed the plaintiff, it is incumbent on a plaintiff to established a causal connection between defendant’s conduct, and it must be shown to have been the proximate cause of plaintiff’s injury.
Proximate causation is defined as a wrongful act which was a substantial factor in bringing about the plaintiff’s harm. Proximate cause does not exists where the causal chain of events resulting in plaintiff’s injury is so remote as to appear highly extraordinary that the conduct could have brought about the harm.
Proximate cause is a question of law to be determined by the court before the issue of actual cause may be put to the jury. A determination of legal causation, essentially regards whether the negligence, if any, was so remote that as a matter of law, the actor cannot be held legally responsible for the harm which subsequently occurred. Therefore, the court must determine whether the injury would have been foreseen by an ordinary person as the natural and probable outcome of the act complained of.
The following considerations are in themselves or in combination with one another important in determining whether the actor’s conduct is a substantial factor in bringing about harm to another:
(a) the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it;
(b) whether the actor’s conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible; [and]
(c) lapse of time.

Lux at 1286-1288 (citations, brackets, and ellipses omitted), appeal denied, 587 Pa. 731, 901 A.2d 499 (Pa.2006).

In the quote noted above a number of significant features are noted. First, proximate cause is defined as a wrongful act (breach of duty) which was a substantial factor in bringing about the plaintiff’s harm.

Second, proximate cause does not exist where the causal chain of events is so remote as to appear highly extraordinary. Obviously, McPeake says suicide is such a highly extraordinary act. We argue per Grainy, that under the circumstances of our case a suicide can be viewed as a “realizable likelihood” is a synonym foreseeable. Grainy at 381.

Third, abinitio, proximate cause is a question of law to be determined by the court before the issue can be presented to the jury. The court assesses whether the causation and cause would be foreseeable by an ordinary person. Arguably “realizable likelihood” is a term which can be viewed as a synonym for foreseeable.

Finally, there are the three factors which are important in determining whether the actor’s conduct arises to the level of a substantial factor in bringing about harm to another.

The first and second items go to the analysis of whether a suicide can be such a factor or is it so extraordinary as to breack the chain of causation. COLTS urges on the court that suicide is such a factor and it addresses McPeake and its progeny in support.

In Sinn, the court outlines an objective reasonable man standard for foreseeability and it states that a foreseeability analysis:

“...contemplates that courts on a case-to-case basis analyzing all the circumstances will decide what the ordinary man under such circumstances should reasonably have foreseen. The courts thus mark out the areas of liability excluding the remote and unexpected.”

Sinn at 171, 404 A.2d at 685.

This directive by our Superior Court in Sinn, supra. would seem to overrule the subsequent Supreme Court rule in McPeake, supra, as there is no blanket free pass for a suicide act as McPeake espouses. But rather the trial court must assess the areas of liability on a case-to-case basis analyzing all the circumstances and then the court must exclude the remote and unexpected. Arguably, a factual scenario can exist where a suicide may not be remote and unexpected.

In attempting to read Sinn, supra, in a manner which also shows deference to McPeake we must then use the three factors from Commerce Bank, to determine whether the actor’s conduct is a substantial factor in bringing about harm to another. Commerce Bank at 141.

The first factor instructs us to look at the number of factors which contribute to producing the harm and the extent of the effect they have on producing it.

Here, we have decedent’s suicide note and the pleadings to assist our efforts. These documents show the common progression from a motor vehicle accident involving motor vehicles of disproportionate weight.

A bus hits a car, causing injuries to the occupant of the smaller, lighter vehicle result. These injuries cause pain which became chronic and unremitting despite treatment. After six years, plaintiff becomes depressed due to his pain, he grows tired of his condition and kills himself.

The next factor addresses whether the actor’s conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces from which the actor is not responsible.

COLTS believes and argues and urges this court to follow McPeake and its progeny which would cause decedent’s suicide to break the continuous and active operation of the forces.

Plaintiff in essence states that the suicide is the “realized likelihood” of the accident per Grainy. Grainy at 381. They further urge we find per Sinn, that an objective reasonable standard of foreseeability ought to control and the facts ought to be viewed on a case by case basis. Sinn at 171,404 A.2d at 685. Therefore, the McPeake blanket suicide bar automatically applicable in all cases should be overturned.

The last factor here is the lapse of time. While six years is a long time, arguably, in this case, the passage of time only increased the severity of the impact of chronic pain. Doctors cannot tell you a specific time frame when unremitting pain becomes classified as chronic. Nor is there a precise calendar as to when that chronic pain will lead to depression and self harm, if ever. That is precisely why Sinn, contemplates, “...that courts on a case-to-case basis analyzing all the circumstances will decide what the ordinary man under such circumstances should reasonably have foreseen.” Id.

This analysis of foreseeability mandates a case-to-case review and not blanket suicide bar as contemplated by McPeake. Rarely does one size fit all and this doctrine of an absolute bar due to suicide per McPeake screams to be revisited.

CONCLUSION

The Dragonetti Act and Sinn v. Burd tells us that it is allowable to test the law and logical extension of it. Prosser and Justice Nix tell us that there is no universal test for duty. Senior Judge Cottone concluded in Mackin that, “[t]he view that suicide is always an independent intervening act relieving the tortfeasor of liability is too restrictive.” Mackin at 549. For purposes, of allowing the amendments contemplated by Pa.R.C.P. 1033 and its liberal interpretation we concur with all of the above authorities. Plaintiff ought to be allowed to determine that, if a duty exists, and if so, does the duty extend to encompass plaintiff’s alleged causally related suicide.

Finally, in recognition of the expansive view of this area of the law by this trial court, we would favorably entertain a request by either counsel to take an interlocutory appeal to the Superior Court by permission pursuant to Pa.R.A.P. 312.

This course of action is advised to firmly establish this court’s conclusion as to the law of this case and not to have to further test it at the preliminary objection stage, the motion for judgment on the pleadings stage, the motion for summary judgment stage and the motion in limine stage.

It is also this court’s intention that this opinion would act as an opinion in support of our order allowing the proposed amendments to plaintiff’s complaint pursuant to Pa.R.A.P. 1925.

In this court’s sound discretion, plaintiff’s motion for leave of court to file an amended complaint is granted.

MEMORANDUM AND ORDER

And now, this 19th day of March 2014, plaintiff’s motion for leave of court to file an amended complaint is hereby granted.

      . Suicide note Exhibit E to plaintiff’s motion for leave to amend complaint.

      . These quotes and references to Prosser also appear in Althaus v. Cohen, 562 Pa. 547,756 A.2d 1166 (2000).


source: Caselaw Access Project

author: COLINS, J.,

license: Public Domain

text:
    Chiodetti v. Fernandes

      Joseph H. Blum, for plaintiff.

      Kyle N. Thompson, Maureen McBride and James C. Sargent, for defendant.
    March 24, 2014
   COLINS, J.,

On July 27, 2007, a jury rendered a verdict in favor of defendant Eugene Fernandes (Dr. Fernandes) on the medical malpractice claim of plaintiff Gary Chiodetti (Chiodetti) following a trial presided over by the Honorable Judge Gary DiVito, Judge DiVito denied Chiodetti’s motion for post-trial relief and Chiodetti appealed on December 13, 2012. Chiodetti timely filed a statement of matters complained of pursuant to Rule 1925b, Pa. R. App. P.

ISSUES RAISED ON APPEAL

Claiming that he is entitled to either a new trial or judgment notwithstanding the verdict, Chiodetti contends that in ruling on his motions in limine, Judge DiVito erred by:

A. Denying Chiodetti’s motion to preclude Dr. Fernandes from introducing any exhibits where the Dr. Fernandes failed to furnish advance copies to Chiodetti in accordance with certain court orders;
B. Denying Chiodetti’s motion to preclude Dr. Fernandes from introducing the report and testimony of the Dr. Fernandes’s expert, Jay S. Duker, M.D., where Dr. Duker’s report was untimely;
C. Denying Chiodetti’s motion to preclude Dr. Fernandes from introducing the expert report and testimony of Nicholas T. Iliff, M.D., where Dr. Iliff’s report was untimely and cumulative;

In addition, plaintiff claims that during trial Judge DiVito erred in:

D. Precluding Chiodetti’s expert Marvin Kraushar, M.D., from testifying that an article he authored was peer reviewed and published; and
E. Precluding Chiodetti’s counsel from arguing in closing that the Dr. Fernandes had failed to call a witness that he previously promised to produce.

PERTINENT BACKGROUND

The Verdict

The verdict sheet was comprised of three questions:

1. Do you find that the conduct of the defendant doctor fell below the applicable standard of care? In other words, was the defendant doctor negligent?
2. Was the defendant doctor’s negligence a factual cause of any harm to the plaintiff?
3. State the amount of damages sustained by the plaintiff as a result of the negligence of the defendant doctor.

Exhibit A, defendant’s response to plaintiff’s motion for post-trial relief (Defendant’s response).

The jury returned the verdict sheet with an answer of “no” to the first question and, therefore, did not reach questions 2 and 3.

Procedural Background

On April 13, 2007, twenty-six-year-old Chiodetti presented at the Frankford-Torresdale Emergency Room with injuries sustained when he was assaulted in his neighborhood. A CT scan revealed a displaced fracture of the orbit surrounding his right eye, an injury referred to as an “orbital blow-out fracture.” He was admitted with a diagnosis of closed orbital floor, nasal fractures and facial lacerations, and was placed in the care of Dr. Fernandes. On April 15, 2007, Dr. Fernandes operated on Chiodetti’s right eye to repair the orbital fracture. On April 17, 2007, Chiodetti experienced loss of vision in that eye. On April 24, 2007, Chiodetti learned that the loss of sight in his right eye is permanent.

On April 6, 2009, Chiodetti filed a complaint against Dr. Fernandes and Frankford Hospital alleging that the blindness in his right eye resulted from Dr. Fernandes’ negligence in inadvertently injecting local anesthesia into Chiodetti’s eyeball rather than into the surrounding orbit. The defendants denied all claims of negligence. Defendant Frankford Hospital was dismissed from the case on July 12, 2011, a few days before trial.

Background Pertinent to Rulings Regarding the Experts

Judge DiVito denied Chiodetti’s motion in limine to preclude documents that Chiodetti claims were never provided to him. See order of July 14, 2011 (Control no. 10070081), April Term, 2009, No. 0040. On July 18, 2011, the first day of trial, the judge heard argument on Chiodetti’s two other motions in limine regarding expert testimony. He denied Chiodetti’s motion to preclude the evidence and testimony of Jay S. Duker, M.D., a retinal expert, on the ground that he found that Chiodetti suffered no prejudice as a result of Fernandes’ late retention of the expert originally retained by the now-dismissed hospital defendant. N.T., 07.18.2011 at 34. Judge DiVito denied Chiodetti’s motion to preclude evidence from Nicholas T. Iliff, M.D., eye surgeon, on the same grounds, namely lack of prejudice. N.T., 07.18.2011 at 18.

Chiodetti’s expert, Marvin F. Kraushar, M.D., an ophthalmologist with a specialty in the retina, testified that the standard of care when administering anesthesia to the eye requires a surgeon to verify the location of the needle by moving it in such a way to ensure that its tip is not inside the eyeball itself before injecting the medication. N.T., 07.18.2011, at 135-39; 148; 156-57. He opined that since Dr. Fernandes did not use this method — referred to in the case as “wiggling” the needle — he inadvertently injected anesthesia into the eye and that the pressure from this additional fluid cut off blood flow to the retina, causing the Chiodetti’s blindness. Id. at 138; 177-78; N.T., 07.19.2011, at 10. During Dr. Kraushar’s testimony, Judge DiVito sustained an objection on hearsay grounds from defense counsel to testimony that an article authored by Dr. Kraushar was peer reviewed. N.T., 07.18.2011, at 151-52 (“It is hearsay because you cannot cross-examine on the peer review”); N.T., 07.19.2011, at 7.

Dr. Fernandes testified on his own behalf and denied that he perforated the globe (eyeball) or that his injection method fell below the standard of care. N.T., 07.19.2011, at 182-85; 191; 197-98; 205-08. Dr. Fernandes presented the testimony of two experts. The first of these was Jay S. Duker, M.D., an opthamologist specializing in medical and surgical treatment of the retina. N.T., 07.20.2011 at 6; N.T., 07.21.2011 at 6. Dr. Duker concluded upon review of all the pertinent records that Dr. Fernandes’ administered anesthesia to Chiodetti properly. N.T., 07.20.2011 at 29-35. Further, he rejected Dr. Krausahar’s articulation of the standard of care — “wiggling” the needle to verify that it had not perforated the globe — stating, “[tjhat’s a particularly bad idea” that it is based on procedure long ago recognized as presenting unacceptable risk of injury. Id. at 37-40. He also said that it was “highly unlikely” that Dr. Fernandes actually perforated the globe. Id. at 44-46.

Dr. Fernandes’ other expert, Nicholas T. Iliff, M.D., is an ocuplastic eye surgeon N.T., 07.21.2011, at 8 (a surgeon who addresses “problems around the eye that includes some of the difficulties right on the surface of the eyes, but particularly trouble with the eyelids, the bones around the eyes, the tear drain system, the tissues behind the eyes”). Dr. Iliff testified that Dr. Fernandes met the standard of care by directing the needle toward the bone of the orbit, away from the globe in order to reduce risk of perforation. Id. at 23-25. Like Dr. Duker, Dr. Iliff testified that Dr. Kraushar’s proposed “wiggle” method is not the standard of care and that it is a method that poses undue risk of injury. Id. at 27. Dr. Duker also testified extensively on the possible other causes of the Chiodetti’s blindness, many of which could not conclusively be ruled out. N.T., 07.20.2011, at 60-72.

Background Pertinent to the Ruling During Closing Argument

During closing argument, the judge sustained defendant’s objection to Chiodetti’s attorney’s reference to Dr. Fernandes’s failure to present the testimony of Dr. Arunan Sivalingam, Chiodetti’s treating doctor at Wills Eye Hospital, despite Dr. Fernandes’s counsel’s apparent promise during openings to do so. N.T., 07.21.2011 at 211. The judge did not offer the basis for his ruling.

DISCUSSION

The court has reviewed the record and the parties’ post-trial filings. As described more fully below, this court finds ample support for Judge Di Vito’s rulings and recommends affirming his decisions:

- to allow the admission of the defendant’s exhibits and the testimony of his experts, Jay S. Duker, M.D. and Nicholas T. Iliff, M.D.;
- to preclude the plaintiff’s expert from testifying that an article he wrote was peer reviewed; and
- to preclude plaintiff’s counsel from arguing to the jury that the defendant failed to produce an allegedly promised witness.

I. Evidentiary Rulings

Evidentiary decisions, including those on motions in limine, are subject to the trial judge’s sound discretion and shall not be disturbed absent an abuse of that discretion or a misapplication of the law. Klein v. Aronchick, M.D, et al.,_A.3d_, 2014 Pa. Super. 3, 2014 WL 46648, at *2 (Pa. Super. Jan. 7, 2014); Lykes v. Yates, 11 A.3d 27, 30-31 (Pa. Super. 2013). An abuse of discretion arises only when a judgment is “manifestly unreasonable” or where “the record shows that the action is a result of partiality, prejudice, bias or ill will.” Caitlin v. Hamburg, 56 A.3d 914 (Pa. Super. 2012), appeal denied, 74 A.3d 124 (Pa. 2013). Having reviewed the record in this matter, this court concludes that Judge DiYito’s rulings were sound.

A. Admission of Defendant’s Exhibits

Chiodetti complains he was surprised and disadvantaged when Dr. Fernandes disobeyed a case management order dated June 30,2009, and a scheduling order dated March 4, 2011, mandating the exchange of exhibits before April 25, 2011. Chiodetti says that he was ambushed at trial because Dr. Fernandes never exchanged pre-marked exhibits, including slides used at trial to depict the anatomy at of the eye.

Dr. Fernandes responds that he furnished an index of bates-stamped exhibits and that Chiodetti had copies of all those exhibits, including documents obtained by subpoena. Exhibit B (June 29,2011), defendant’s response to plaintiff’s motion for post-trial relief (defendant’s response). As to the “slides,” Dr. Fernandes points out that they were anatomical illustrations that were included in the exhibits list and that, in any event, Chiodetti did not object at trial to their use.

Although Judge DiVito did not state his reasons for denying Chiodetti’s motion, it appears that he acted well within his discretion. Chiodetti was on notice well in advance of trial as to what exhibits the Dr. Fernandes intended to use and if he believed that he had no notice that the Dr. Fernandes was going to use “slides” or illustrations as demonstrative evidence, he failed to object when they were introduced. Since Chiodetti’s claim of prejudice is unsubstantiated, Judge DiVito acted entirely properly in refusing to deprive the Dr. Fernandes of his defense, and Chiodetti has cited no authority requiring a different result.

B. Admission of Testimony of Defendant’s Expert Jay S. Duker, M.D.

Chiodetti claims that mandatory exclusion Dr. Jay S. Duker’s testimony was warranted for two reasons. First, he argues that Dr. Duker’s report was produced 108 days late, in violation of court orders. Specifically, the production of Dr. Duker’s report did not comply with deadlines set forth in three orders dated September 23, 2009, June 30, 2009, and March 4, 2011, respectively. He complains that the report was not submitted until eleven days before the case was scheduled to be trial ready and four days before the pre-trial conference. He argues that since the defendant never identified any extenuating circumstances or requested any extensions, preclusion is mandatory under Rule 4003.5, Pa. R. P.

Defendant counters that Chiodetti received Dr. Duker’s report and curriculum vitae in April of 2011, some three months before trial actually began. Exhibit G, defendant’s response. Further, says Dr. Fernandes, Dr. Duker substantially adopted the opinion on the standard of care articulated by defense expert Dr. Nicholas J. Volpe, whose report was disclosed on January 3, 2011, four months earlier. Finally, Dr. Fernandes points out that by the time of trial, Chiodetti’s own expert, Dr. Marvin F. Karushar, had prepared a report in rebuttal to Dr. Duker.

Following argument on July 18, 2011, Judge DeVito denied Chiodetti’s motion to preclude Dr. Duker’s testimony because he found that the Chiodetti suffered no unfair prejudice, noting in particular that the Chiodetti had submitted a rebuttal. N.T., 07.18.2011, at 34. Chiodetti had notice of Dr. Duker’s report well before trial, he had notice of the liability theory well before that, and he took the opportunity to prepare and submit a rebuttal. Dr. Duker’s evidence predictably weighed against Chiodetti’s theory of the case, but this is not the sort of prejudice against which the rules guard. Rather, the court must ensure that the jury is not presented with evidence that unduly influences its deliberations or makes decisions based on improper evidence. Lykes v. Yates, 77 A.3d 27, 33 (Pa. Super. 2013) (“‘Unfair prejudice’ supporting exclusion of relevant evidence means a tendency to suggest decision on an improper basis or divert the jury’s attention away from its duty of weighing the evidence impartially”). Since Chiodetti made no such showing, Judge DiVito neither erred as a matter of law nor did he abuse his discretion.

C. Admission of Testimony of Defendant’s Expert Nicholas T. Iliff, M.D.

Chiodetti says that Judge DiVito should have precluded the testimony of defense expert Dr. Nicholas T. Iliff because the defendant did not retain Dr. Iliff until the day before trial and that this belated decision constituted unfair surprise — “trial by ambush” — that Chiodetti was powerless to counter. Dr. Fernandes claims his own surprise at Chiodetti’s position because: Dr. Iliff was the expert retained by co-defendants Frankford Hospital which was dismissed on the eve of trial in July of 2011; Dr. Iliff’s report was available to the plaintiff as early as January 3, 2011; Dr. Fernandes listed Dr. Iliff as his own witness in his pre-trial memorandum dated April 12, 2011, and attached a copy of his report (Exhibit D, defendant’s response); and plaintiff cites no authority for the proposition that Dr. Fernandes could not rely on his co-defendant’s expert or retain him directly when the co-defendant was taken out of the case.

Judge DiVito denied plaintiff’s motion because, again, he found that the plaintiff had suffered no unfair prejudice. This court finds no basis to second-guess this judgment. Since Dr. Iliff was in the case long before trial and, according to Dr. Fernandes’ own pre-trial memo and attachments, was expected to serve as his witness, Chiodetti can advance no credible claim to surprise. Chiodetti’s argument is baseless.

Chiodetti also challenges Dr. Iliff’s testimony as cumulative to that of Dr. Duker. Dr. Fernandes correctly points out, however, that the two experts brought the perspectives of differing specialties and that while Dr. Iliff testified as to the standard of care for the surgery in question, Dr. Duker’s testimony also addressed the possible causes of the Chiodetti’s blindness, a separate subject of considerable dispute throughout the trial. In any event, even if the testimony were duplicative, it was well within the discretion of the court to allow it absent any showing of undue prejudice.

D. Preclusion of Testimony of Plaintiff’s Expert That an Article He Authored was Peer Reviewed.

Judge DiVito disallowed testimony from Dr. Kraushar that an article he had written was peer reviewed. N.T., 07.18.2011, at 151-52. Chiodetti argued that since Dr. Karushar’s testimony concerned Dr. Kraushar’s own writing it could not be deemed hearsay. The Judge’s ruling was based on the hearsay inherent in a claim of “peer” review. He reasoned that an endorsement of an article’s contents by a peer is hearsay because, effectively, it is an out-of-court statement by that peer that cannot be subj ected to cross-examination. Id. The decision to preclude such classic hearsay is neither an error of law nor an abuse of discretion.

E. Preclusion of Plaintiff’s Reference in Closing Argument to Defendant’s Failure to Produce Witness he Allegedly Promised Would Appear

The judge sustained defendant’s objection to plaintiff’s counsel attempt during his closing to refer to the fact that Dr. Fernandes did not introduce the testimony of Dr. Sivalingam, Chiodetti’s treating physician at Wills Eye Hospital, even though defense counsel told the jury during his opening that this doctor would appear. N.T., 07.21.2011, at 211. Chiodetti wished to convince the jury that it could draw a negative inference from defense counsel’s change in strategy, namely that Dr. Sivalingam’s testimony would have undermined Dr. Fernandes’s case.

Judge DiVito did not state the reason for his ruling. Defense counsel represents that the parties discussed the use of Dr. Sivalingam’s deposition testimony during an off-the-record conference with the judge, that Chiodetti’s counsel stated that he was considering introducing Dr. Sivalingam’s testimony himself if Dr. Fernandes did not do so, but that ultimately he chose not to. Page 27 (unpaginated), defendant’s brief in response; see an apparent reference to this matter at N.T., 07.20.2011, at 4. This representation stands uncontradicted by plaintiff’s counsel and, if it is accurate, Judge DiVito’s ruling is consistent with the expectation of the parties. In any event, as the experts on both sides testified without objection to the contents of Dr. Sivalingam’s clinical records, and since that testimony was subject to cross-examination, the record does not support a conclusion that precluding the adverse-inference argument was unfairly prejudicial to the plaintiff. The ruling was entirely within the purview of the judge’s discretion.

II. Judgment Notwithstanding the Verdict

Our standard of review when reviewing a trial court’s denial of a motion for judgment notwithstanding the verdict (JNOV) is well settled:

“We must consider all of the evidence admitted to decide if there was sufficient competent evidence to sustain the verdict. In so doing, we must also view this evidence in the light most favorable to the verdict winner, giving the victorious party the benefit of every reasonable inference arising from the evidence and rejecting all unfavorable testimony and inference...A [judgment n.o.v.] should be entered only in a clear case.”

Hatwood v. Hosp. of the Univ. of Pennsylvania, 55 A.3d 1229, 1236 (Pa. Super. 2012) appeal denied, 65 A.3d 414 (Pa. 2013).

This is not a “clear case” warranting JNOV. The only question whether the record was sufficient for the jury’s verdict which was simple and limited to standard of care: by answering “no” to the first question on the verdict sheet, it concluded that Dr. Fernandes either did not actually perforate Chiodetti’s eyeball or, if he did, his method did not fall beneath the standard of care for administering anesthesia to a patient suffering an orbital fracture. On this question the jury was entitled to credit the defendant’s expert testimony over that of Chiodetti’s and that testimony amply supports either conclusion. Judge DiVito’s decision to deny JNOV was sound.

      . Retired.

      . The jury found that Dr. Fernandes’ conduct did not fall beneath the standard of care. Accordingly, it is not necessary to address plaintiff’s arguments regarding causation. Lykes v. Yates, 77 A.3d 27, 33 (Pa. Super. 2013) (stating that where a jury does not reach the issue of causation or damages, a new trial will not be granted on the basis of any erroneous evidentiary ruling regarding those issues).

      . Rule 4003(b) provides for the preclusion an expert witness whose identify has not been disclosed in accordance with the rules. Judge Di Vito did not accept Chiodetti’s claim that Dr. Duker’s identity was untimely.


author: LOVECCHIO, J.,

text:
    In re J.H.

      March 27, 2014
   LOVECCHIO, J.,

Before the court is a petition for mental health review on behalf of J.H. pursuant to 50 Pa. C.S.A. § 7109 (b).

The hearing on said petition was held before this court on March 26, 2014. While petitioner was not present for the hearing, his attorney was and requested that the petition be decided upon a review of the relevant paperwork and a transcript of the commitment hearing held before hearing examiner Steve Sholder on March 17, 2014.

Petitioner argues that the evidence fails to show that he is a danger to himself or others or that a reasonable probability exists that death or serious bodily injury or serious physical debilitation will ensue within thirty (30) days without adequate treatment.

An original involuntary examination and treatment application was filed on March 12, 2014 by petitioner’s mother. Among other things, the mother verified that petitioner told her that that fighting the evil forces in his mind was making him exhausted and he was becoming too tired to fight them. He admitted to hearing voices commanding him to commit suicide. The evil forces, as well, were trying to destroy his family. He referenced as well “Timothy McVeigh.”

An application for extended involuntary treatment was filed on March 14, 2014. Among other things, the physician who examined the petitioner noted that the petitioner suffers from delusions and has expressed a belief that another person could control his mind and he would be helpless to stop a violent command.

Following the hearing on March 17, 2014, the hearing examiner concluded that the petitioner is consumed by the delusions to the point that he can no longer care for his everyday needs without assistance, that he has refused medication for the treatment of said delusions and that inpatient care was the least restrictive alternative to control him from hurting himself or others.

While the tape-recording of the hearing was somewhat difficult to decipher because of its poor quality and witnesses and/or participants speaking over each other, the court was able to decipher some significant portions relevant to the issues at hand.

The petitioner has been compliant with most recommendations except he has had no interest in taking medication. He has specifically expressed a concern that his thoughts “will take him over” such that he couldn’t control himself and could hurt himself or others. While he hasn’t tried to harm himself or anyone since committed and while he doesn’t want to hurt himself or anyone, if he “weakens,” it certainly could happen.

A few days prior to his commitment on March 12,2014, the petitioner, while at home, was having overwhelming and constant delusions. He indicated that he was hearing two voices in his head and he was extremely paranoid. The voices were telling him to commit suicide, murder, rape and other horrible deeds such as those committed by Timothy McVeigh. He indicated that he had to do the horrible deeds if the voices told him to do so. He was not willing to take the medication believing that it was “poison.”

Petitioner expressed that the “mind control people were causing” his concerns and he was too tired to essentially fight them off. He was yelling, screaming, acting erratically and extremely paranoid. He specifically expressed that the voices were telling him to kill himself and he was too tired to fight them off.

His mother testified that it was “no secret that he will harm himself or someone else without taking prescribed medications.”

His treating physician diagnosed the petitioner as suffering from schizophrenia of the paranoid type. He testified that he had “a lot of concern” with respect to the petitioner’s dangerous behavior because of his refusal to take medication, his past and present symptoms and his proclivity to drink alcohol. While in a supportive environment, the petitioner is “okay.”

While the doctor testified that he did not have “much grounds to believe” that the petitioner is a danger to himself or others within the next thirty (30) days or that he would act on the perceived “mind control,” he indicated what is more important is to rely on the direct testimony of the others and their anecdotal evidence.

He testified that there is “good evidence” that he is not doing well outside of a supportive environment, that there is anecdotal evidence of threats, as well as dangerous situations to himself and others and that by him not taking medications, he is essentially a “time bomb.”

This court must first determine whether the procedures prescribed by the act have been followed. An application was made for involuntary treatment pursuant to the act. A follow-up application was made for extended treatment. A hearing was held before a mental health review officer. At said hearing, testimony was presented, the petitioner was represented by counsel and petitioner’s rights pursuant to the act were protected. Following the hearing, an order was entered involuntarily committing the petitioner. An appeal was filed in a timely manner, this court in connection with the appeal reviewed the certifications, reviewed other evidence received at the hearing and reviewed additional evidence requested by the court. This decision is being entered in a timely manner pursuant to the act. Accordingly, this court finds by clear and convincing evidence that the procedures prescribed by the act have been followed.

The court must next determine whether further involuntarily treatment is required. In order to do this, the court must determine whether the petitioner is severely mentally disabled and in need of treatment in that he presents a danger to himself or others.

The court finds that there is clear and convincing evidence that the petitioner is severely mentally disabled and in need of treatment. The medical evidence reviewed by the court clearly supports the conclusion that the defendant suffers from schizophrenia of the paranoid type and is in need of treatment. Said treatment consists primarily of medical management by way of medication on a continual periodic basis.

The court also finds that there is clear and convincing evidence that the petitioner presents a danger to himself and others. While the petitioner is doing well in a supportive environment and while his treating physician cannot predict that he will harm himself or others within the next thirty (30) days, petitioner’s past portends his future. The court cannot and will not ignore the anecdotal evidence which consists of petitioner’s deteriorating behavior, his escalating threats to himself and others, his refusal to take medication and his conduct with respect to himself and others. This is not as his counsel suggests a situation where the time bomb is “not present”; rather this is a situation in which the time bomb is in the petitioner’s pocket.

In the past thirty (30) days, the petitioner has acted in a manner which suggests that he will be unable to satisfy his needs for medical care, self-protection and safety without the assistance of others such as there is a reasonable probability that death, serious bodily injury or serious physical debilitation would occur.

There is credible and in fact substantial evidence that petitioner’s symptoms include hallucinations, delusional thoughts, paranoia, agitation, suicidal ideations, and homicidal ideations. The treating physician’s testimony, the nurse’s testimony and the testimony of his family member support a conclusion that there is a real potential for danger and that the petitioner remains a clear and present danger to himself and others in light of the fact that he cannot maintain his medication directive while even institutionalized let alone not institutionalized. The court cannot ignore his history of non-compliance.

In sum, the court fully agrees with petitioner’s mother that it is “no secret” that the petitioner will harm himself or someone else without appropriate medical intervention.

ORDER

And now, this 27th day of March 2014, following a review of the initial 302 certification and attendant paperwork, a review of the subsequent 303 certification and attendant paperwork and review of the transcript of the hearing before the mental health review officer, the court denies petitioner’s petition for mental health review. Petitioner shall remain involuntarily committed, unless otherwise ordered, for a period not to exceed twenty (20) days from March 17, 2014.


author: WILLIAMSON, J.,

text:
    Flynn v. Miggy’s Corp. Five

      Murray L. Greenfield, for plaintiff.

      Stephen M. Eleck, for defendant.
    March 27, 2014
   WILLIAMSON, J.,

This matter comes before us on a motion for summary judgment filed January 3, 2014 by Miggy’s Food Corp. Five d/b/a Foodtown of East Stroudsburg (hereafter “defendant”). On February 6, 2014, Ana I. Flynn (hereafter “plaintiff’) filed a response to defendant’s motion for summary judgment. In the motion, defendant argues that plaintiff cannot show that the defendant, by the exercise of reasonable care, knew or should have known of the condition in question, or that the condition involved an unreasonable risk of harm to the plaintiff. Specifically, defendant asserts that, following exchange of discovery in this case, there is no evidence that they knew or should have known of a dangerous condition on their premises. The alleged dangerous condition was a tow rope from a plastic sled in a checkout aisle, which caused the plaintiff to fall and sustain injuries. As such, defendant concludes that plaintiff cannot establish the requisite elements of negligence, and therefore defendant is entitled to summary judgment.

The accident occurred on or about January 29, 2011 in defendant’s store located at 9 Fox Run Lane, Middle Smithfield Township, East Stroudsburg, Pennsylvania. According to the complaint, filed on April 16, 2012, plaintiff was caused to trip and fall due to a rope sticking out of a stack of sleds that were lying on the floor of the store in a closed checkout aisle. The complaint avers that plaintiff suffered numerous injuries as a result of the fall. Defendant filed an answer and new matter on May 14, 2012. Plaintiff filed a response to the new matter on June 20,2012. After review of the parties’ briefs and arguments thereon, we are ready to dispose of defendant’s motion for summary judgment.

DISCUSSION

Summaiy judgment may be granted pursuant to Pennsylvania Rule of Civil Procedure 1035.2 where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466, 468-69 (Pa. 1979). Summary judgment is properly entered where the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, demonstrate that no genuine, triable issue of fact exists and that the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035(b); Cosmas v. Bloomingdales Bros., Inc., 660 A.2d 83, 85 (Pa. Super. 1995).

Summary judgment may be granted only in cases where the right is clear and free from doubt Musser v. Vilsmeier Auction Co., Inc., 562 A.2d 279, 280 (Pa. 1989). The court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. Davis v. Pennzoil Co., 264 A.2d 597 (Pa. 1970). Moreover, the burden is on the moving party to prove that no genuine issue of material fact exists. Long v. Yingling, 700 A.2d 508, 512 (Pa. Super. 1997). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Thompson, 412 A.2d at 469.

In response, the non-moving party may not rest upon the pleadings alone, but must set forth specific facts demonstrating a genuine issue for trial. Phaff v. Gerner, 303 A.2d 826 (Pa. 1973). The court may also accept as true all well-pled facts contained in the non-moving party’s pleadings. Mattia v. Employment Mut. Cos., 440 A.2d 616 (Pa. Super. 1982); Ritmanich v. Jonnel Enters, Inc., 280 A.2d 570 (Pa. Super. 1971). A general denial is unacceptable and deemed an admission where it is clear that the non-moving party had adequate knowledge and that the means of information were within the control of the non-moving party. Elia v. Olszewski, 84 A.2d 1889 (Pa. 1951).

In support of the motion, defendant argues that the plaintiff has produced no evidence that the defendant had actual knowledge of the existence or location of the tow ropes on the floor. Defendant also argues there is no evidence they had, or could be imputed with, constructive notice of the location of the ropes at any time prior to the plaintiff’s fall. With regard to the actual notice requirement, defendant asserts that there is no evidence, nor any allegations, that defendant had actual knowledge of the existence of the hazard — that being the ropes from the sleds lying on the floor of a checkout aisle. Defendant also alleges the store manager regularly and routinely patrolled the store and saw no hazard during those patrols. Further, defendant contends that the three witnesses to the incident are unable to establish how long the ropes were in the location and condition which plaintiff alleges they were in at the time of her fall. Therefore, because the hazard cannot be identified as existing for any period of time, defendants claim that constructive notice cannot be established. Finally, to rebut the spoliation argument raised by plaintiff, defendant argues that plaintiff cannot establish all of the requirements for the application of the spoliation doctrine. Specifically, defendant states that notice of the instant lawsuit was provided to them 15 months after the accident occurred, by which time the videotapes that may have shown the area in question were destroyed or taped over. Defendant also acknowledges that there has not been a total destruction of the evidence, as portions of the tape have been preserved and produced as three photographs of the area in question.

In response, plaintiff argues that summary judgment is not appropriate at this time for two reasons. First, plaintiff argues that under the restatement of torts, as interpreted by Pennsylvania courts, if a harmful transitory condition is traceable to the possessor or his agent’s acts, then the plaintiff need not prove any notice in order to hold the possessor accountable for a resulting harm. Plaintiff further argues that an invitee must prove either the proprietor of the land had a hand in creating the harmful conditions, or he had actual or constructive notice of such condition. In support of this position, plaintiff contends that it was the defendant who caused the unsafe condition in the store when they decided to knowingly place the sleds with the long tow ropes in front of an aisle where they knew people would be walking. Moreover, plaintiff argues that the aisle in question was filled with products which distracted shoppers as they walked through and that the tow ropes could easily be dislodged, causing a tripping hazard. For instance, plaintiff believes it was clearly foreseeable that the tow ropes could become dislodged if someone picked up a sled and instead of purchasing it, put it back with the tow rope misplaced and laying on the floor. Therefore, plaintiff argues the transitory condition can clearly be traced back to the defendant who did not exercise reasonable care in protecting the plaintiff from the harmful condition.

Second, plaintiff argues that the spoliation doctrine has precluded plaintiff from being able to prove that defendant had either actual or constructive notice of the rope being in the aisle. Plaintiff argues the video surveillance could have shown the potential hazard, the tripping incident itself, and how often store personnel passed by the location. However, the videos were eventually destroyed. Plaintiff argues that the actions taken by defendant in not preserving the video surveillance from the day of the accident were deliberative and have prejudiced their ability to prove the elements of the cause of action as set forth in the complaint. Plaintiff contends that defendant must have anticipated litigation because they took steps to procure a recorded statement from the store manager shortly after the accident, and they kept some still photographs. Plaintiff asserts that a duty to preserve the video surveillance was clearly established on the day of the accident. Therefore, by not preserving such evidence, plaintiff requests that sanctions or an adverse inference instruction should be entered against defendant, and at the very least, that the motion for summary judgment be denied.

Taking the above arguments into consideration, we find that summary judgment is not appropriate at this time, as there are questions of material fact surrounding the issue of whether defendant had notice or should have known of the condition which caused the plaintiff to fall. Further, we believe a determination of the credibility of both parties’ witnesses needs to be made by the fact finder in order to properly support judgment for either side.

Preliminarily we recognize that, for purposes of application of the type of duty owed, plaintiff in this matter is a business invitee. As such, The Restatement (Second) of Torts §343 applies directly to this case.

In a similar case, the Pennsylvania Superior Court discussed the application of §343 to a situation involving a supermarket’s responsibility to its patrons. In Neve v. Insalaco’s, 771 A.2d 786 (Pa. Super. 2001), the court cited verbatim the language found in §343 and went on to state that an “invitee must present evidence proving that the proprietor deviated from the duty of reasonable care that it owed in the circumstances, i.e., that the proprietor knew or in the exercise of reasonable care should have known of the harmful condition.” Id. at 791. The court found that an invitee “can satisfy this burden by establishing, inter alia, that the proprietor had constructive notice of the harmful condition.” Id. The court also held that an “invitee can also satisfy its burden by establishing that the proprietor helped to create the harmful condition or had actual notice of it.” Id. n.5 (citing Zito v. Merit Outlet Stores, 647 A.2d 573. 575 (Pa. Super. 1994)).

Guided by the Superior Court’s rule in Neve we find that plaintiff could establish the notice requirement of the claim if plaintiff is able to prove either that defendant helped to create the harmful condition in question, (i.e., the tow rope from the sleds in the checkout aisle), had actual notice of the harmful condition, or had constructive notice of the condition. Currently, defendant is unable to meet its burden for summary judgment as questions of material fact with regard to notice still exist. Specifically, whether or not defendant had a hand in creating the harmful condition is an issue of material fact in dispute. An issue for the fact finder is whether or not the defendant placed the sleds in this location with knowledge, or that they should have had knowledge that the ropes could hang to the ground causing a tripping hazard. Furthermore, there are questions as to the location of the tow ropes with respect to the sleds located in the checkout aisle. Plaintiff argued at oral argument that the deposition of Kenneth P. Marino, the assistant store manager on duty at the time of the accident, did not state that the tow ropes were taped or secured to the sleds in the aisle. After review of Mr. Marino’s deposition, we are unable to discern whether or not the ropes were secured, or how they were secured in the sleds at the time of the accident. Therefore, not knowing how the ropes were stored relative to the placement of the sleds in the aisle also presents a genuine issue of material fact, precluding entry of summary judgment at this time.

Moreover, as plaintiff points out in their response to motion for summary judgment, the credibility of each parties’ witnesses is to be judged by the finder of fact. Specifically, we cannot grant this motion based solely upon the depositions submitted by defendant in support of their motion for summary judgment. In the note to Pennsylvania Rule of Civil Procedure 1035.2, we are specifically instructed that “oral testimony alone, either through testimonial affidavits or depositions, of the moving party or the moving party’s witnesses, even if uncontradicted, is generally insufficient to establish the absence of a genuine issue of material fact.” Defendant argues that Mr. Marino walked the store every half hour and at the very most would have been in the area where the plaintiff fell within a half hour before the fall, but he saw no danger. Therefore, defendant argues plaintiff cannot produce evidence to establish that defendant had notice of the tow ropes in the aisle for any amount of time before the accident. However, as plaintiff correctly points out, the credibility of Mr. Marino, as well as other witnesses, is an issue to be determined by a jury, thereby further, precluding the entry of summary judgment at this time.

Finally, with respect to the spoliation argument raised by plaintiff regarding the video surveillance evidence, we do not believe it appropriate at this time to determine whether sanctions should be entered against the defendant. Plaintiff argues that defendant had the duty to preserve the video surveillance once the incident report was filled out. Further, plaintiff contends they are prejudiced by the destruction of the video surveillance because it not only impacts the issue of notice, but also could have determined whether or not defendant fulfilled its duty to plaintiff as a business invitee. As we found above, plaintiff has the ability to establish notice by showing that defendant helped to create the harmful condition in question, had actual notice of the harmful condition, or had constructive notice of the condition. Therefore, although the video surveillance could help establish plaintiff’s claim, we believe plaintiff has ample opportunity to do such without the video in question. We also note the video surveillance could show nothing, or it could hurt the plaintiff’s case. It is an unknown at this time and purely speculative. It would have been prudent for the defendant to have saved video footage knowing an accident took place, and therefore, we will defer final judgment on this issue to any future motion concerning the video and still photographs at time of trial. We will not impose sanctions at this time.

In conclusion, viewing the evidence in a light most favorable to the non-moving party, this court finds there to be genuine issues of material facts as presented through the pleadings, oral arguments, depositions and exhibits of both plaintiff and defendant. As such, summary judgment is not appropriate at this time, and we enter the following order.

ORDER

And now, this 27th day of March, 2014, upon consideration of defendant’s motion for summary judgment, the same is denied.

      . See Pl.’s resp. to mem. of law in supp. of def.’s mot. for summ. j.p. 7 (citing Penn v. Isaly Dairy Co., 198 A.2d 322,324 (Pa. 1964); Finney v. G.C. Murphy Co., 178 A.2d 719 (Pa. 1962)).

      . Id. (citing Moultrey v. Great Atlantic & Pacific Tea Co., 422 A.2d 593, 598 (Pa. Super. 1980)).

      . Restatement (Second) of Torts §343 has been cited with approval in Pennsylvania by the Pennsylvania appellate courts. See, e.g., Carrender v. Fitterer, 469 A.2d 120, 123 (Pa. 1983); Lonsdale v. Joseph Home Co., 587 A.2d 810, 811 (Pa. Super. 1991).

      . See Pa.R.C.P. 1035.2; Nanty-Glo v. American Surety Co., 163 A.2d 523 (Pa. 1932); Penn Center House, Inc. v. Hoffman, 553 A.2d 900 (Pa. 1989).