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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
REBECCA CRAWLY AND HENRY PERKINS, IN THE SUPERIOR COURT OF
CO-ADMINISTRATORS OF THE ESTATE PENNSYLVANIA
OF JULIA MAY DIZZLEY, DECEASED
Appellees
v.
CARE PAVILION OF WALNUT PARK
Appellant No. 1442 EDA 2014
Appeal from the Order Entered April 11, 2014
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): April Term, 2006 No. 0229
BEFORE: GANTMAN, P.J., SHOGAN, J., and ALLEN, J.
MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 17, 2015
Appellant, Care Pavilion of Walnut Park, appeals from the order
entered in the Philadelphia County Court of Common Pleas (after remand
from our Supreme Court), which granted a new trial in favor of Appellees,
Rebecca Crawly and Henry Perkins, Co-Administrators of the Estate of Julia
May Dizzley, Deceased. We affirm.
The relevant facts and procedural history of this appeal are as follows.
Suit in this matter was filed…following the death of Julia
May Dizzley, the sister of [Appellees] who are the
administrators of the decedent’s estate. The decedent had
entered [Appellant’s] facility in January of 2003 because
her various mental and physical problems required nursing
home care.2 In April of 2004, the decedent suffered a fall
causing traumatic damage to her eye, and [she] was
hospitalized for a necessary surgical repair. During the
procedure, she suffered cardiac arrest and anoxic
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encephalopathy rendering her comatose. After transfer to
a…hospital for treatment of a medical condition, she died
without regaining consciousness in August of 2004.
2
The decedent, a schizophrenic, suffered from
congestive heart failure, chronic lung obstruction,
degenerative joint disease, and hypertension.
Crawley v. Care Pavilion, Inc., No. 2464 EDA 2008, unpublished
memorandum at 1-2 (Pa.Super. filed July 2, 2009).
On April 4, 2006, Appellees commenced a civil action against Appellant
by filing a complaint. Appellees’ complaint included counts for negligence,
corporate negligence, wrongful death, and a survival action. Appellees
argued Appellant “failed, refused and/or neglected to perform the duties to
provide reasonable and adequate healthcare to and for [the] decedent….”
(Complaint, filed 4/4/06, at 4). Appellees noted Appellant’s “failure to hire a
sufficient number of trained and competent staff,” the “failure to take
preventative measures including, but not limited to, adequate supervision
and implementation of safety procedures,” and the “failure to properly train
employees to deal with nursing home residents who are unable to care for
themselves….” (Id. at 5). Appellees subsequently filed several amended
complaints, refining the corporate negligence claim.
Prior to trial, the parties litigated numerous motions concerning the
admissibility of evidence. Appellant’s filings included a motion in limine,
seeking to preclude Appellees from introducing evidence of “care and/or
conditions which are unrelated to the care provided to [Appellees’]
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decedent.” (Motion, filed 4/9/08, at 1). In it, Appellant asserted that
Appellees sought to present Appellant’s “disgruntled” former employees to
provide irrelevant testimony “pertaining to their views of care provided to
other residents, [and] general conditions” at Appellant’s facility. (Id. at 2).
The court considered the parties’ pretrial motions at a May 12, 2008 hearing.
Regarding Appellant’s motion in limine, the court announced:
As I see this case, this is a negligence case. It’s a
negligence case in which the injury is sustained as a result
of a fall. And it’s a case in which [Appellees allege] that
the fall was either caused by or that there was failure to
prevent it due to a lack of due care by [Appellant]. All
right.
I, therefore, rule that the only relevant evidence in this
case, since it is―the fall is the subject matter of it, all
right. The only evidence relevant to it is evidence which
can be shown to establish negligence, which is a
substantial factor in bringing about the harm. All right.
And I am, therefore, ruling that the only evidence that can
come in on this case is evidence concerning the failure to
prevent the fall or violations of any standards concerning
safety or falls, okay?
(N.T. Pretrial Hearing, 5/12/08, at 15-16).
The court’s announcement prompted the following discussion of
Appellees’ corporate negligence claim:
[APPELLEE’S COUNSEL]: But it’s also a corporate
negligence case.
THE COURT: Well, I disagree with you. I
don’t think it is a corporate negligence case.
* * *
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[APPELLEE’S COUNSEL]: Well, under Thompson[ v.
Nason Hosp., 527 Pa. 330, 591 A.2d 703 (1991)], you
can bring an action against the defendant corporation for
certain non-delegable duties that [include]…policies and
procedure [and] whether they’re adopted.
* * *
And so…in this case there are complaints predating [the
decedent’s accident] that the state gave notice and
required [Appellant] to fix [certain things], taking people
to the bathrooms, so they don’t fall. We’re arguing that
that notice and in addition, the conditions of failure to
provide nursing care, which [the decedent] needed in
order not to fall, toileting which she needed taking her to
the bathroom every two hours, … were, in fact, the cause
of her injuries, not that she just got up and fell down.
(Id. at 16-18). The court continued to disagree with Appellees’ counsel:
Again, I’m ruling it is not a corporate negligence case. I
know of no cases extending this doctrine to nursing homes
under…circumstances that are essentially custodial care.
I’m ruling that it’s a negligence case and I’m ruling that
the only relevant evidence that can come in has to do with
negligence in the care of [the decedent] or people similarly
situated.
(Id. at 22).
Following trial, a jury returned a verdict in favor of Appellant.
Although the jury found Appellant was negligent in its care of the decedent,
the jury determined that Appellant’s negligence was not a factual cause of
the injury. This Court affirmed the judgment in favor of Appellant on July 2,
2009, and Appellees timely filed a petition for allowance of appeal. On April
17, 2013, our Supreme Court disposed of the matter as follows:
AND NOW, this 17th day of April, 2013, the Petition for
Allowance of Appeal is GRANTED, the Order of the
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Superior Court is VACATED, and the case is REMANDED to
the court of common pleas for reconsideration in light of
Scampone v. Highland Park Care Ctr., LLC, [618 Pa.
363, 57 A.3d 582 (2012)].
(Per Curiam Order, entered 4/17/13, at 1).1
Upon remand, the court ordered the parties to submit briefs
addressing the applicability of Scampone.2 Appellant filed a brief on March
7, 2014. On March 10, 2014, Appellees filed a brief and motion for a new
trial, contending the original trial court’s rulings were inconsistent with
Scampone, because the court “precluded the introduction of evidence of
systemic failures of [Appellant], including, but not limited to, chronic
understaffing….” (Motion for New Trial, filed 3/10/14, at 8). Appellees
argued that understaffing, under-budgeting, and the failure of Appellant’s
employees to supervise the nursing home patients demonstrated a pattern
of corporate negligence. On April 11, 2014, the court granted Appellees’
motion for a new trial.
Appellant timely filed a notice of appeal on May 7, 2014. That same
day, the court ordered Appellant to file a concise statement of errors
____________________________________________
1
Our Supreme Court decided Scampone on November 21, 2012. In
Scampone, the Court held “a nursing home and affiliated entities are
subject to potential direct liability for negligence, where the requisite
resident-entity relationship exists to establish that the entity owes the
resident a duty of care….” Scampone, supra at 366, 57 A.3d at 584.
2
The original trial judge died while the case was pending on appeal, and the
court assigned the case to a different jurist upon remand.
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complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant timely
filed a Rule 1925(b) statement on May 28, 2014.
Appellant raises two issues for our review:
WHETHER THE REVIEWING COURT ERRED IN GRANTING
[APPELLEES’] MOTION FOR A NEW TRIAL ON
RECONSIDERATION BASED ON ITS FINDING THAT THE
ORIGINAL TRIAL COURT ACTED INCONSISTENTLY WITH
SCAMPONE…AND MISHANDLED [APPELLEES’] CLAIM
ENTITLED “CORPORATE NEGLIGENCE,” EVEN THOUGH THE
ORIGINAL TRIAL COURT ACTED CONSISTENTLY WITH
SCAMPONE BY ALLOWING [APPELLEES] TO PURSUE (AND
THE JURY TO CONSIDER) A DIRECT NEGLIGENCE CLAIM
AGAINST [APPELLANT] BASED ON THE DUTY OF CARE
THAT [APPELLANT] OWED TO [APPELLEES’] DECEDENT….
WHETHER THE REVIEWING COURT ERRED IN GRANTING
[APPELLEES’] MOTION FOR A NEW TRIAL ON
RECONSIDERATION BASED ON ITS FINDING THAT ANY
ALLEGED ERRORS MADE BY THE ORIGINAL TRIAL COURT
WITH RESPECT TO [APPELLEES’] CLAIM ENTITLED
“CORPORATE NEGLIGENCE” WERE NOT HARMLESS, BUT
INSTEAD WERE PREJUDICIAL AND CONSTITUTED
GROUNDS FOR A NEW TRIAL.
(Appellant’s Brief at 4).
We review an order granting a new trial subject to the following
principles:
Each review of a challenge to a new trial order must begin
with an analysis of the underlying conduct or omission by
the trial court that formed the basis for the motion. There
is a two-step process that a trial court must follow when
responding to a request for new trial. First, the trial court
must decide whether one or more mistakes occurred at
trial. These mistakes might involve factual, legal, or
discretionary matters. Second, if the trial court concludes
that a mistake (or mistakes) occurred, it must determine
whether the mistake was a sufficient basis for granting a
new trial. The harmless error doctrine underlies every
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decision to grant or deny a new trial. A new trial is not
warranted merely because some irregularity occurred
during the trial or another trial judge would have ruled
differently; the moving party must demonstrate to the trial
court that [the moving party] has suffered prejudice from
the mistake.
To review the two-step process of the trial court for
granting or denying a new trial, the appellate court must
also undertake a dual-pronged analysis. A review of a
denial of a new trial requires the same analysis as a review
of a grant. First, the appellate court must examine the
decision of the trial court that a mistake occurred.
* * *
If the mistake involved a discretionary act, the appellate
court will review for an abuse of discretion. If the mistake
concerned an error of law, the court will scrutinize for legal
error.
* * *
If the appellate court agrees with the determination of the
trial court that a mistake occurred, it proceeds to the
second level of analysis. The appellate court must then
determine whether the trial court abused its discretion in
ruling on the request for a new trial. Discretion must be
exercised on the foundation of reason. An abuse of
discretion exists when the trial court has rendered a
judgment that is manifestly unreasonable, arbitrary, or
capricious, has failed to apply the law, or was motivated by
partiality, prejudice, bias, or ill will. A finding by an
appellate court that it would have reached a different
result than the trial court does not constitute a finding of
an abuse of discretion. Where the record adequately
supports the trial court’s reasons and factual basis, the
court did not abuse its discretion.
Ferguson v. Morton, 84 A.3d 715, 719-20 (Pa.Super. 2013), appeal
denied, ___ Pa. ___, 97 A.3d 745 (2014) (internal citations and quotation
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marks omitted) (quoting Harman ex rel. Harman v. Borah, 562 Pa. 455,
467-69, 756 A.2d 1116, 1122-23 (2000)).
On appeal, Appellant acknowledges the original trial court did not have
the benefit of the Scampone decision at the time of trial. Appellant
contends, however, the original trial essentially complied with Scampone,
which “espoused a traditional theory of direct negligence.” (Appellant’s Brief
at 21). Although the original trial court did not permit the jury to consider
Appellee’s corporate negligence claim, Appellant maintains the court allowed
Appellees to pursue a direct negligence claim, which the jury considered and
denied. Appellant asserts the court on remand improperly focused on the
“title” of the excluded corporate negligence claim rather than the
“substance” of the direct negligence claim Appellees actually advanced at
trial. Appellant claims the court “ignored the fact that the original trial court
allowed a direct negligence claim against [Appellant] based on the duty of
care that [Appellant] owed to [the decedent].” (Id. at 24).
Even if the original trial court somehow erred, Appellant insists any
errors were harmless. Appellant argues Appellees’ corporate negligence
claim was duplicative of the direct negligence claim advanced at trial.
Appellant further argues that the jury specifically found Appellant’s
negligence was not the cause of Appellees’ injuries; thus, allowing the jury
to consider Appellees’ corporate negligence claim could not have affected the
verdict on causation. Additionally, Appellant submits the court admitted all
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evidence relevant to the issue of the decedent’s fall, and the claim for
corporate negligence would not have resulted in additional evidence for the
jury’s consideration. Appellant concludes the court erred in granting
Appellees’ motion for a new trial. We disagree.
“In trying to recover for an action in negligence, a party must prove
four elements.” Lux v. Gerald E. Ort Trucking, Inc., 887 A.2d 1281, 1286
(Pa.Super. 2005), appeal denied, 587 Pa. 731, 901 A.2d 499 (2006).
They are:
1. A duty or obligation recognized by law.
2. A breach of the duty.
3. Causal connection between the actor’s breach of the
duty and the resulting injury.
4. Actual loss or damage suffered by complainant.
Id. (internal citation omitted).
“The plaintiff proves the duty and breach elements by showing that the
defendant’s act or omission fell below the standard of care and, therefore,
increased the risk of harm to the plaintiff.” Scampone, supra at 387, 57
A.3d at 596. “The question of duty in tort is ‘a legal determination, assigned
in the first instance to the trial court….’” Thierfelder v. Wolfert, 617 Pa.
295, 317, 52 A.3d 1251, 1264 (2012) (quoting Sharpe v. St. Luke’s
Hosp., 573 Pa. 90, 96, 821 A.2d 1215, 1219 (2003)). “[E]ven when it is
established that the defendant breached some duty of care owed the
plaintiff, it is incumbent on a plaintiff to establish a causal connection
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between defendant’s conduct, and it must be shown to have been the
proximate cause of plaintiff’s injury.” Lux, supra at 1286 (quoting Taylor
v. Jackson, 643 A.2d 771, 775 (Pa.Cmwlth. 1994)).
“To prove negligence, a plaintiff may proceed against a defendant on
theories of direct and vicarious liability, asserted either concomitantly or
alternatively.” Sokolsky v. Eidelman, 93 A.3d 858, 864 (Pa.Super. 2014)
(quoting Scampone, supra at 388, 57 A.3d at 597).
Liability for negligent injury is direct when the plaintiff
seeks to hold the defendant responsible for harm the
defendant caused by the breach of duty owing directly to
the plaintiff. By comparison, vicarious liability is a policy-
based allocation of risk. Vicarious liability, sometimes
referred to as imputed negligence, means in its simplest
form that, by reason of some relation existing between A
and B, the negligence of A is to be charged against B
although B has played no part in it, has done nothing
whatever to aid or encourage it, or indeed has done all
that [it] possibly can to prevent it. Once the requisite
relationship (i.e., employment, agency) is demonstrated,
the innocent victim has recourse against the principal,
even if the ultimately responsible agent is unavailable or
lacks the availability to pay.
Sokolsky, supra at 864 (quoting Scampone, supra at 388-89, 57 A.3d at
597 (internal citations and quotation marks omitted)).
Where a corporation is concerned, the ready distinction
between direct and vicarious liability is somewhat obscured
because we accept the general premise that the
corporation acts through its officers, employees, and other
agents. The corporation, as principal, assumes the risk of
individual agents’ negligence under the theory of vicarious
liability. In this scenario, the corporation’s liability is
derivative of the agents’ breach of their duties of care to
the plaintiff. But, this Court has also recognized that
a corporation may also owe duties of care directly to
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a plaintiff, separate from those of its individual
agents, such as duties to maintain safe facilities, and
to hire and oversee competent staff. See, e.g.,
Thompson, supra (corporate hospital owed patient non-
delegable duty of care to enforce consultation and patient
monitoring policies); Gilbert v. Korvette, Inc., 457 Pa.
602, 327 A.2d 94, 102 (1974) (corporation owed customer
non-delegable duty of care to maintain premises);
Dempsey v. Walso Bureau, Inc., 431 Pa. 562, 246 A.2d
418 (1968) (corporation owed employee duty of
reasonable care in hiring other employees); accord
Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580,
812 A.2d 1218 (2002) (if duty exists, corporation may be
held directly liable for negligence). Accordingly, as a
general proposition, the recognition that a corporation acts
through its agents has not been held to be a fatal
impediment to haling a corporation into court on direct
liability tort claims.
Scampone, supra at 389-390, 57 A.3d at 597-98 (some internal citations
omitted) (emphasis added).
Based upon the foregoing, our Supreme Court held “a nursing home
and affiliated entities are subject to potential direct liability for negligence,
where the requisite resident-entity relationship exists to establish that the
entity owes the resident a duty of care….” Id. at 366, 57 A.3d at 584. To
determine the existence of such a duty, a court must consider several
factors: “(1) the relationship between the parties; (2) the social utility of the
actor’s conduct; (3) the nature of the risk imposed and 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.” Id. at 393, 57 A.3d
at 600 (quoting Althaus v. Cohen, 562 Pa. 547, 553, 756 A.2d 1166, 1169
(2000)). See also Sokolsky, supra at 870 (concluding Scampone
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requires court to analyze Althaus factors to extend corporate liability to
skilled nursing facility).
Instantly, Appellant concedes the original trial court did not allow
Appellees to advance a corporate negligence claim. (See Appellant’s Brief at
13.) Our review of the record confirms Appellant’s concession, as the
original trial court issued the following jury instruction regarding negligence:
Negligent conduct may consist either of an act or a failure
to act whether there is a duty to do so. In other words,
negligence is the failure to do something that a reasonably
careful person would do or doing something that a
reasonably careful person would not do.
In light of all of the surrounding circumstances established
by the evidence in this case, it is for you to determine how
a reasonable careful person would act in these
circumstances.
Ordinary care is the care a reasonable, careful person
would use under the circumstances present in this case. It
is the duty of every person to use ordinary care not only
for his or her own safety and protection of his or her
property, but also to avoid injury to others. What
constitutes ordinary care varies according to the particular
circumstances and conditions existing then and there. The
amount of care required by the law must be in keeping
with the degree of danger involved.
Now, ladies and gentlemen, I’ve used the word person in
the definition of negligence and ordinary care. [Appellant],
of course, is a corporation. And a corporation under the
law is to be treated equally and fairly as if it were a
person, but a corporation…cannot do anything itself. A
corporation acts by people, agents, servants or employees,
people who are working for that corporation. Any act or
omission of an employee, officer or agent of [Appellant]
performed within the scope of that person’s employment
or agency is chargeable to the corporation.
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Now, [Appellees] must prove to you that [Appellant’s]
conduct caused [Appellees’] damages. This is referred to
as factual cause and the question is, was [Appellant’s]
negligent conduct a factual cause in bringing about
[Appellees’] injury.
(See N.T. Trial, 5/19/08, 196-98.)
Despite Appellant’s insistence that the original trial court effectively
complied with Scampone, Scampone recognized a corporation might owe
additional duties of care to a plaintiff, separate from those of its individual
agents. Scampone, supra at 389, 57 A.3d at 598. Scampone specifically
mentioned the possibility of corporate duties “to maintain safe facilities, and
to hire and oversee competent staff.” Id. Here, the original trial court
precluded Appellees from raising similar claims of corporate negligence. The
original trial court also failed to analyze the Althaus factors, which
Scampone mandated. See Sokolsky, supra. Consequently, we disagree
with Appellant’s assertion that the original trial court acted consistently with
Scampone.
Upon remand, the court evaluated the trial record in light of
Scampone and correctly determined the original trial court’s failure to
analyze the Althaus factors amounted to an error of law. Thereafter, the
court conducted its own analysis of the Althaus factors and concluded as
follows:
Upon weighing the Althaus factors as applied to this case,
this court finds the imposition of a duty is warranted.
Appellant’s work is of great social utility, and the
imposition of a duty could come at increased cost.
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However, the relationship of the parties, the public
interest, and the foreseeability or risk of harm tips the
scale in favor of Appellees. This court finds the imposition
of a duty to ensure quality skilled nursing care to be in the
interests of morals, justice, and society.
(See Trial Court Opinion, dated August 12, 2014, at 11) (internal citation
omitted).
Moreover, the court found the original trial court’s errors were not
harmless:
Appellees have shown no charge was given on corporate
negligence. In fact, the charge quoted by Appellees
closely tracks the suggested charge found in § 6.30 of the
Pennsylvania Suggested Standard Civil Jury Instructions
which falls under the chapter of Agency with vicarious
liability. The Opinion of the original trial court clarifies its
approach, “All the defendant actors were either
[Appellant’s] employees or agents whose conduct exposed
the corporation to vicarious liability, and so the jury was
told.”
As the Scampone Court made clear, the fact that a
corporation acts through its agents is not “a fatal
impediment to haling a corporation into court on direct
liability tort claims.” The Scampone Court further noted
that vicarious and direct negligence theories are distinct
policies, which serve complimentary purposes. As the
record indicates, only vicarious liability was charged to the
jury. Appellant’s argument that the verdict would be the
same is without merit because the jury was precluded from
considering the claim. Appellant would have this [c]ourt
believe a charge and verdict on vicarious liability would be
the same as a charge and verdict on direct liability.
However, as the Scampone Court clarified, both of these
theories are distinct. Appellees have been prejudiced by
the preclusion of their corporate negligence claim.
Furthermore, Appellees have shown that the original trial
court precluded evidence, which prevented the jury from
properly hearing a corporate negligence claim.
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* * *
Notwithstanding the original trial court’s errors in
preclusion of a corporate negligence claim warranting a
new trial, this court finds the charge of only vicarious
liability and preclusion of evidence regarding corporate
negligence were errors of law, which prejudiced Appellees
and warranted a new trial.
(Id. at 12-13) (emphasis in original) (internal citations omitted). In light of
the applicable scope and standard of review and the relevant case law, the
court properly granted Appellees’ motion for a new trial. See Scampone,
supra; Ferguson, supra. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/17/2015
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