J-A07007-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KIMBERLY K. KING IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
CANON HILL VETERINARY CLINIC, INC.
LEIGH A. MITCHELL, HILLSIDE STABLES,
INC., AND GAYLENE WALKER, T/D/B/A
HILLSIDE STABLES
Appellee No. 644 WDA 2015
Appeal from the Order March 24, 2015
In the Court of Common Pleas of Washington County
Civil Division at No(s): 2012-1863
BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED MAY 10, 2016
Appellant Kimberly K. King appeals from the order entered in the
Washington County Court of Common Pleas, which granted summary
judgment in favor of Appellees Canon Hill Veterinary Clinic, Inc. and Leah
Mitchell1 (collectively “Appellees”).2
____________________________________________
1
Leigh A. Mitchell is the name listed on the caption and on the cover of the
appellate briefs, but the trial court and Appellee Mitchell note her name is
actually Leah Mitchell.
2
Summary judgment was also granted in favor of Hillside Stables, Inc. and
Gaylene Walker, t/d/b/a Hillside Stables (“other defendants”). Appellant is
not appealing the order of summary judgment as it pertains to those parties.
J-A07007-16
The relevant facts and procedural history of this appeal are as follows.
On April 5, 2010, Appellant was at Hillside Stables attending to her own
horse when her friend’s horse, Ruby, exhibited signs of distress. Appellant
helped walk and calm the horse until Dr. Mitchell arrived in response to
Ruby’s owner’s request. Appellant led Ruby on a lead rope while Dr. Mitchell
removed fecal matter from Ruby and gave her a sedative. At some point,
after Appellant warned Dr. Mitchell the horse was “going down,” Ruby fell
down and kicked Appellant in the face, causing injuries.
Appellant filed a complaint against Appellees and other defendants on
May 23, 2012.3 On December 10, 2014, following completion of the
pleadings, the court ordered Appellant to file an expert report relative to the
claims against Appellees. Appellant did not file an expert report.
On February 17, 2015, Appellees filed a motion for summary
judgment, which maintained Appellant could not carry her burden of proof
because she failed to produce an expert report, as was required in
professional negligence actions. Appellant filed a response, which averred
her claim sounded in ordinary negligence. The court heard argument on the
motion.
____________________________________________
3
Appellant initiated the action by filing a writ of summons on March 29,
2012.
-2-
J-A07007-16
On March 24, 2015, the court granted Appellees’ summary judgment
motion because Appellant’s failure to submit an expert report was fatal to
her action. Appellant timely filed a notice of appeal on April 17, 2015. On
May 6, 2015, the trial court ordered Appellant to file a Pa.R.A.P. 1925(b)
statement, and she timely complied on May 22, 2015.
Appellant raises the following issues for our review:
1 WHETHER THE [TRIAL] COURT COMMITTED ERROR OF
LAW OR AN ABUSE OF DISCRETION IN GRANTING
SUMMARY JUDGMENT IN FAVOR OF [APPELLEES] IN ITS
ORDER OF MARCH 23, 2015[?]
2 WHETHER [APPELLANT’S] COMPLAINT AGAINST
[APPELLEES] ALLEGES ORDINARY NEGLIGENCE - THAT
[APPELLEES] FAILED TO EXERCISE ORDINARY CARE TO
NOT EXPOSE [APPELLANT] TO AN INCREASED RISK OF
HARM[?]
3 WHETHER [APPELLANT’S] COMPLAINT AGAINST
[APPELLEES] SOUNDS IN PROFESSIONAL NEGLIGENCE
SUCH THAT SHE NEED[ED TO] SUBMIT AN EXPERT
REPORT TO SUPPORT HER CLAIM[?]
Appellant’s Brief at 4.
In her combined issues, Appellant argues the court erred in granting
summary judgment based on the fact that she did not have an expert
report, because her claims against Appellees sound in ordinary, not
professional, negligence. Appellant’s claims merit no relief.
Our standard of review for a court’s order granting a motion for
summary judgment is as follows:
We view the record in the light most favorable to the
nonmoving party, and all doubts as to the existence of a
-3-
J-A07007-16
genuine issue of material fact must be resolved against the
moving party. Only where there is no genuine issue as to
any material fact and it is clear that the moving party is
entitled to a judgment as a matter of law will summary
judgment be entered. Our scope of review of a trial
court’s order granting or denying summary judgment is
plenary, and our standard of review is clear: the trial
court’s order will be reversed only where it is established
that the court committed an error of law or abused its
discretion.
Kozel v. Kozel, 97 A.3d 767, 772 (Pa.Super.2014) (quoting Daley v. A.W.
Chesterton, Inc., 37 A.3d 1175, 1179 (Pa.2012)).
The Pennsylvania Rules of Civil Procedure provide, in relevant part:
Rule 1035.2. Motion
After the relevant pleadings are closed, but within such
time as not to unreasonably delay trial, any party may
move for summary judgment in whole or in part as a
matter of law
(1) whenever there is no genuine issue of any material
fact as to a necessary element of the cause of action or
defense which could be established by additional
discovery or expert report, or
(2) if, after the completion of discovery relevant to the
motion, including the production of expert reports, an
adverse party who will bear the burden of proof at trial
has failed to produce evidence of facts essential to the
cause of action or defense which in a jury trial would
require the issues to be submitted to a jury.
Pa.R.C.P. No. 1035.2.
Further, we observe:
The record for purposes of deciding a motion for summary
judgment includes the pleadings, depositions, answers to
interrogatories, admissions, and affidavits, Pa.R.C.P.
1035.1(1), (2), but oral testimony alone, of the moving
party or his witnesses, i.e., affidavits or depositions, even
if uncontradicted, is generally insufficient to establish the
-4-
J-A07007-16
absence of a genuine issue of material fact, see [Karoly
v. Mancuso, 65 A.3d 301, 308–09 (Pa.2013)], 1035.2
note (citing Penn Center House, Inc. v. Hoffman, 553
A.2d 900 ([Pa.]1989); Borough of Nanty–Glo[,
supra.]). Moreover, “[t]he questions of whether there are
material facts in issue and whether the moving party is
entitled to summary judgment are matters of law.”
Alderwoods (Pennsylvania), Inc. v. Duquesne Light
Co., 106 A.3d 27, 34 n. 5 ([Pa.]2014) (citations omitted).
Bailets v. Pennsylvania Tpk. Comm'n, 123 A.3d 300, 304 (Pa.2015).
Under Pennsylvania law:
To prevail in any negligence action, the plaintiff must
establish the following elements: the defendant owed [the
plaintiff] a duty; the defendant breached the duty; the
plaintiff suffered actual harm; and a causal relationship
existed between the breach of duty and the harm. In a
professional malpractice action, the determination of
whether there was a breach of duty requires the plaintiff to
additionally show that the defendant's conduct fell below
the relevant standard of care applicable to the rendition of
the professional services at issue. In most cases, such a
determination requires expert testimony because the
negligence of a professional encompasses matters not
within the ordinary knowledge and experience of
laypersons.
***
[W]e discern that there are two questions involved in
determining whether a claim alleges ordinary as opposed
to professional negligence: (1) whether the claim pertains
to an action that occurred within the course of a
professional relationship; and (2) whether the claim raises
questions of professional judgment beyond the realm of
common knowledge and experience.
French v. Commonwealth Associates, Inc., 980 A.2d 623, 630-31
(Pa.Super.2009) (citation omitted).
-5-
J-A07007-16
This Court has most often discussed the distinction
between ordinary and professional negligence in the
context of medical malpractice cases.
* * *
In order to determine what theory of liability [a plaintiff] is
asserting, this Court must examine the averments she
makes in her complaint.
Merlini ex rel. Merlini v. Gallitzin Water Auth., 934 A.2d 100, 104-05
(Pa.Super.2007) aff'd, 980 A.2d 502 (Pa.2009) (internal citations omitted).
One of the most distinguishing features of a medical
malpractice suit is, in most cases, the need for expert
testimony, which may be necessary to elucidate complex
medical issues to a jury of laypersons. In other words,
because the negligence of a physician encompasses
matters not within the ordinary knowledge and experience
of laypersons, a medical malpractice plaintiff must present
expert testimony to establish the applicable standard of
care, the deviation from that standard, causation and the
extent of the injury.
Yee v. Roberts, 878 A.2d 906, 912 (Pa.Super.2005) (internal quotations
and citation omitted).
As to a cause of action based on the negligence of a
veterinarian in the performance of his/her professional
duties or services, we note at the outset that malpractice
claims have traditionally arisen in the context of services
provided by the legal and medical professions. Similar to
the practice of law or medicine, the vocation of veterinary
medicine involves specialized education, knowledge, and
skills. We conclude, therefore, that professional negligence
concepts also extend to veterinary medicine.
The practice of veterinary medicine is extensively
regulated in Pennsylvania under the Veterinary Medicine
Practice Act, 63 P.S. § 485.1 et seq. “Veterinary medicine”
is defined as the “branch of medicine which deals with the
diagnosis, prognosis, treatment, administration,
prescription, operation or manipulation or application of
-6-
J-A07007-16
any apparatus or appliance for any disease, pain,
deformity, defect, injury, wound or physical condition of
any animal or for the prevention of or the testing for the
presence of any disease.” 63 P.S. § 485.3(9).
* * *
To state a cause of action based upon the negligent acts or
omissions of a veterinarian in the performance of
professional duties or services, the plaintiff must plead (1)
the employment of the veterinarian or other basis for the
duty; (2) the veterinarian’s failure to exercise the
appropriate standard of care; and (3) that the
veterinarian’s departure from that standard was the
proximate cause of the animal’s injury or death. A plaintiff
must specifically allege that the veterinarian was negligent
in the performance of his professional services.
Price v. Brown, 680 A.2d 1149, 1152-53 (Pa.1996).
Appellant concedes that this would be a professional negligence claim
if the horse’s owner asserted liability against the veterinarian for injuries
suffered by the horse, but claims that, because she is a third party who did
not have a direct relationship with the doctor, her action is for ordinary
negligence.
To determine whether Appellant is asserting professional or ordinary
negligence, we need only look to her complaint. See Merlini ex rel.
Merlini, supra.
In her complaint, Appellant alleges:
23. The injuries and damages to Plaintiff King are the
direct and proximate result of the joint and several
negligence, carelessness and recklessness of the
Defendants in the following respects:
(i) As to Defendants Canon Hill Veterinary Clinic, Inc., and
Leigh A. Mitchell, agent, servant and/or employee of
Defendant Canon Hill Veterinary Clinic, Inc.:
-7-
J-A07007-16
(a) In failing to blindfold the horse Ruby to reduce fear;
(b) In failing to hobble the horse to prevent it from
kicking;
(c) In failing to properly restrain the horse;
(d) In failing to administer the appropriate sedative
and/or the appropriate amount of sedative;
(e) In failing to wait until the sedative had fully taken
effect before beginning the procedure;
(f) In failing to seek additional assistance when the
horse became agitated;
(g) In failing to stop and reassess situation before
continuing.
Complaint, filed May 23, 2012 at 4.
These allegations demonstrate that Appellant’s action is for
professional negligence, because they relate directly to Dr. Mitchell’s
improper treatment of Ruby while she was working on the horse as a
veterinarian. Thus, it is an action that occurred while Dr. Mitchell was
engaged in a professional relationship with Ruby, the first hallmark of a
professional negligence case. See French, supra. Next, the claim raises
questions of professional judgment beyond the realm of common knowledge
and experience, the second test for a professional negligence claim. For
example, a layperson would not likely know how much sedative to give a
horse, how the horse would react to a sedative, or how long it would take
the sedative to work.
Because this is a professional negligence case, Appellant was required
to submit an expert report that demonstrated that Dr. Mitchell breached the
-8-
J-A07007-16
relevant standard of care. See Yee, supra. Because Appellant failed to
submit an expert report, the trial court properly granted summary judgment
in favor of Appellees.
Appellant’s citations to cases in which professionals are not acting in
their capacity as professionals and can therefore be held liable for ordinary
negligence are irrelevant. The doctor was clearly acting as a veterinarian
and treating a horse when Appellant was injured, and Appellant claims her
injuries were caused because the doctor was negligent in her veterinary care
of the horse.
In granting Appellees’ summary judgment motion, the trial court
reasoned:
Because these allegations involve care and treatment by
Mitchell, a licensed veterinarian, and [Appellant] does not
claim that Mitchell was otherwise negligent in another
respect unrelated to the care and treatment of Ruby, we
conclude that her complaint sounds in professional
negligence. As a consequence, [Appellant’s] failure to
submit an expert report to establish the applicable
standard of care - and deviation from that standard - is
fatal to her action.
Trial Court Opinion (granting summary judgment motion), filed March 18,
2015, at 4.
The trial court did not err as a matter of law or abuse its discretion in
granting Appellees’ summary judgment motion.
Order affirmed.
-9-
J-A07007-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/10/2016
- 10 -