J-S44005-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PATRICK J. MCHALE, III, EXECUTOR OF IN THE SUPERIOR COURT OF
THE ESTATE OF BETTY JANE MCHALE, PENNSYLVANIA
DECEASED AND PATRICK J. MCHALE, III,
IN HIS OWN RIGHT,
Appellant
v.
RIDDLE MEMORIAL HOSPITAL AND MAIN
LINE HEALTH, INC. AND JOHN S.
MCMANUS INC., SHEWARDSHIP
PARTNERSHIP, LLC, TIMOTHY HAAHS &
ASSOCIATES, INC. AND TRAFFIC &
SAFETY SIGNS, INC. AND STRIPE-A-LOT,
INC.
Appellee No. 3749 EDA 2016
Appeal from the Order Entered September 22, 2015
In the Court of Common Pleas of Delaware County
Civil Division at No(s): 13-5890
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 22, 2017
Appellant, Patrick J. McHale, III, Executor of the Estate of Betty Jane
McHale, deceased, and in his own right, appeals from the trial court’s order
entered September 22, 2015, granting summary judgment in favor of
Appellees, Riddle Memorial Hospital and Main Line Health, Inc. (referred to
collectively herein as “RMH/MLH”).1,2 We affirm.
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1
The trial court explains why Appellant is presently contesting the
September 22, 2015 order infra.
J-S44005-17
The trial court summarized the procedural and factual history of this
case as follows:
Appellant initiated the instant action against [RMH/MLH] with the
filing of a complaint on June 14, 2013[,] seeking damages for an
alleged accident that occurred in a multileveled garage owned by
[RMH/MLH]. Appellant filed an amended complaint on October
10, 2013. Appellant claims that the decedent, Betty McHale
[(“Decedent”)], tripped and fell over a parking bumper while
returning from her cardiac rehabilitation appointment to her
vehicle, which was parked in a handicap spot. There were no
witnesses to the accident and [D]ecedent slipped into a coma
following the accident and never regained consciousness.
[RMH/MLH] filed a joinder complaint on November 6, 2013[,]
joining John S. McManus, Inc., Sheward Partnership, LLC[,] and
Timothy Haahs & Associate, Inc. as additional defendants. John
S. McManus filed a joinder complaint on April 28, 2014[,] joining
Traffic & Safety Signs, Inc. and Stripe-A-Lot as additional
defendants. [RMH/MLH] filed their motion for summary
judgment on January 16, 2015. Appellant filed a response to
that motion on March 25, 2015[,] and [RMH/MLH] filed a reply
memorandum on April 7, 2015. A hearing on the motion for
summary judgment was held on August 13, 2015. Pursuant to
the additional case law provided by Appellant at the hearing,
[RMH/MLH] filed a second reply memorandum on August 24,
2015. The motion for summary judgment was granted by Order
dated September 21, 2015[,] and docketed on September 22,
2015. Appellant filed a notice of appeal on September 29, 2015.
On August 2, 2016, the Superior Court quashed the September
21, 2015 appeal as it was not based on a final order that
disposed of all claims. The August 2, 2016 Order stated, “[o]ur
review of the record in this case reveals that a claim against …
Stripe-A-Lot remains pending in the trial court.” On November
17, 2016, Appellant filed a Praecipe to Discontinue the action
against … Stripe-A-Lot, rendering the September 21, 2015 Order
_______________________
(Footnote Continued)
2
On appeal, Appellant only challenges the propriety of the entry of summary
judgment in favor of RMH/MLH, and not the entry of summary judgment in
favor of any of the additional defendants. See Appellant’s Reply Brief at 1.
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granting Summary Judgment final to all parties. Appellant filed
the instant notice of appeal on November 29, 2016.
Trial Court Opinion (TCO), 1/24/2017, at 2-3 (internal citations omitted).
Following Appellant’s November 29, 2016 notice of appeal, the trial
court did not direct Appellant to file a Pa.R.A.P. 1925(b) statement of errors
complained of on appeal. The trial court subsequently issued an opinion
dated January 24, 2017, setting forth its reasoning for granting summary
judgment in favor of RMH/MLH. As discussed further infra, the trial court
explained that “Appellant failed to provide any evidence to [his] claim that
the negligence of [RMH/MLH] caused [D]ecedent’s accident and injuries….”
Id. at 1-2 (emphasis added).
Presently, on appeal, Appellant raises the following issues for our
review:
1. Did the trial court commit an error of law by failing to
apply the appropriate standard of review when deciding
the motions for summary judgment?
2. Did the trial court commit an error of law in concluding
that Appellant did not present sufficient direct and
circumstantial evidence to create a genuine issue of
material fact requiring submission to the jury of issueas
[sic] to whether [RMH/MLH] had breached its duty of care
to Decedent…?
3. Did the trial court commit an error of law in substituting its
own, incorrect version of the facts, usurping the province
of the jury, to conclude that there was no basis upon which
a jury could properly find that [Decedent] fell over the five
and one-half inch high concrete colored parking bumper as
she walked from the handicapped designated walkway to
the driver’s side door of her car?
4. Were the multiple statements made by [Decedent] to
medical personnel both at the scene of her fall and in the
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Emergency Room immediately thereafter admissible as
substantive evidence under Pennsylvania law?
Appellant’s Brief at 3.
Initially, we set forth our standard of review:
[S]ummary judgment is appropriate only in those cases where
the record clearly demonstrates that there is no genuine issue of
material fact and that the moving party is entitled to judgment
as a matter of law. When considering a motion for summary
judgment, the trial court must take all facts of record and
reasonable inferences therefrom in a light most favorable to the
non-moving party. In so doing, the trial court must resolve all
doubts as to the existence of a genuine issue of material fact
against the moving party, and, thus, may only grant summary
judgment where the right to such judgment is clear and free
from all doubt.
Truax v. Roulhac, 126 A.3d 991, 996 (Pa. Super. 2015) (en banc) (internal
citations and quotations omitted). We additionally note:
[O]ur responsibility as an appellate court is to determine
whether the record either establishes that the material facts are
undisputed or contains insufficient evidence of facts to make out
a prima facie cause of action, such that there is no issue to be
decided by the fact-finder. If there is evidence that would allow
a fact-finder to render a verdict in favor of the non-moving
party, then summary judgment should be denied.
Id. at 997 (citations omitted). “[F]ailure of a non-moving party to adduce
sufficient evidence on an issue essential to his case and on which he bears
the burden of proof establishes the entitlement of the moving party to
judgment as a matter of law.” Id. (citation omitted). Finally, “an appellate
court may reverse a grant of summary judgment if there has been an error
of law or an abuse of discretion.” Id. at 996 (citation omitted).
As stated above, Appellant claims that the trial court committed an
error of law “by failing to apply the appropriate standard of review when
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deciding the motions for summary judgment[.]” Appellant’s Brief at 14
(emphasis and unnecessary capitalization omitted). He challenges the trial
court’s finding that “any conclusions concerning the cause of [D]ecedent’s
fall would necessarily be the result of pure speculation and conjecture.” Id.
at 15 (citation omitted). Appellant cites to the expert report of John S.
Posusney, P.E., in which Mr. Posusney “opine[s] that the placement of the
low, hard to discern, unpainted parking bumpers was a breach of
[RMH/MLH’s] duty to [their] business invitee, [Decedent], and created a
trap, in conjunction with the non-compliant handicapped walkway, for the
unwary pedestrian.” Id. at 9; see also id. at 16-20. Thus, Appellant claims
that “the logical, favorable inference which [Decedent] was entitled to as a
matter of law in a ruling on a [m]otion for [s]ummary [j]udgment was that
she fell over the low, hard to see parking bumper as she attempted to get to
the driver’s side door of her vehicle.” Id. at 21.
In granting summary judgment in favor of RMH/MLH, the trial court
determined that Appellant failed to provide evidence that RMH/MLH’s alleged
negligence (i.e., the condition of the parking bumper or walkway) caused
Decedent’s fall and resulting injuries. See TCO at 1-2. Specifically, it
explained:
In the instant action, Appellant only provided proof of the alleged
negligence and that an accident occurred. The only evidence
produced shows that [D]ecedent was found on the ground near
an unknown vehicle, that she told someone she tripped over a
curb, which that person interpreted to mean a parking bumper,
and that the parking spaces in the garage had unpainted parking
bumpers. Appellant failed to produce evidence concerning how
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[D]ecedent tripped, how [D]ecedent fell or the location of the
fall. There is no evidence to show why [D]ecedent believed it
was a parking bumper she fell or tripped over or how long it took
her to reach such a conclusion. There is also no evidence to
show what path [D]ecedent took to her vehicle, which parking
bumper, if any, [D]ecedent fell over or near or what [D]ecedent
was doing at the time of her fall. Even if [D]ecedent did, in fact,
trip and fall over a parking bumper, there is no evidence to
establish that it was the condition of the garage or the parking
bumper that caused her to trip and fall. Furthermore, there is
no evidence of whether [D]ecedent saw or was aware of the
parking bumper prior to or at the time of her fall or, if
[D]ecedent did not see the parking bumper, whether [D]ecedent
could have seen the parking bumper with reasonable due care
(i.e., whether the parking bumper was in plain sight or hidden).
Any conclusions concerning the cause of [D]ecedent’s fall would
necessarily be the result of pure speculation and conjecture.
Appellant attempts to support [his] conclusions with the fact that
one of the parking bumpers may not have been centered in one
of the parking spaces and that one of several available pathways
to [D]ecedent’s vehicle was not code compliant. However, there
is no factual support for the conclusion that [D]ecedent used the
defective pathway since it was one of at least two (2) paths to
her vehicle, or that [D]ecedent tripped over any particular
parking bumper.[3] Any such conclusions would be the result of
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3
Appellant’s expert, Mr. Posusney, specifically stated:
Given the direction that [Decedent] was walking before she
tripped, the parked vehicle in the third handicap parking [space]
would have impeded her view. Furthermore, there was an
encroachment into the accessible route as the result of a
concrete column near the third handicap space. This caused
[Decedent] to be further to her right to avoid this obstruction on
her left, closer to the parked vehicle and the incident concrete
wheel stop. Additionally, the accessible route had an excessive
cross slope away from the wall on her left. This also directed her
to her right, to the bottom of the “hill.” The accessible route was
an un[-]level walking surface and difficult to walk on. Her left
leg was uphill and her right leg was down hill [sic]. As
[Decedent] turned to her right to access her vehicle, she was
tripped by the end of the concrete wheel stop15 that projected
(Footnote Continued Next Page)
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pure speculation and conjecture. Therefore, any evidence
concerning that walkway or particular parking bumper is not
relevant and allowing a jury to consider those facts as proof of
causation would be extremely prejudicial to [RMH/MLH].
Furthermore, without evidence that [D]ecedent did in fact use
the subject walkway and did in fact trip over that particular
parking bumper, there is no proof that those alleged defects
caused [D]ecedent’s fall and injuries, as Appellant’s theory is one
of many possibilities that could have reasonably caused
[D]ecedent to fall. As such, Appellant has failed to meet their
burden and summary judgment in [RMH/MLH’s] favor is proper.
TCO at 8-10 (internal citations omitted). We agree with the trial court’s
analysis.
This Court has previously explained:
In trying to recover for an action in negligence, a party must
prove four elements. 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.
_______________________
(Footnote Continued)
beyond the side of the vehicle in the third handicap parking
space.
15
It cannot be ascertained if the concrete wheel stop was
centered in the parking space at the time of the accident.
See Appellant’s Brief at 18-19. Based on our review of the record, we agree
with the trial court and RMH/MLH that “Mr. Posusney predicated his findings
and conclusions on facts not found in the record.” See RMH/MLH’s Brief at
13; TCO at 9. We note that, “[E]xpert testimony is incompetent if it lacks an
adequate basis in fact. While an expert’s opinion need not be based on
absolute certainty, an opinion based on mere possibilities is not competent
evidence. This means that expert testimony cannot be based solely upon
conjecture or surmise.” Helpin v. Trustees of University of
Pennsylvania, 969 A.2d 601, 617 (Pa. Super. 2009) (citation omitted).
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4. Actual loss or damage suffered by complainant.
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 establish a
causal connection between defendant’s conduct, and it must be
shown to have been the proximate cause[4] of plaintiff’s injury.”
Lux, 887 A.2d at 1286 (emphasis in original; internal citations omitted).
In their briefs, both parties discuss the case of First v. Zem Zem
Temple, 686 A.2d 18 (Pa. Super. 1996). In that case, while at a wedding
reception, a woman fell while dancing on a dance floor “consist[ing] of
numerous panels which were made of a wooden parquet-type material[.]”
Id. at 20 (citation omitted). The woman subsequently sued multiple
defendants connected to the dance floor, alleging, in part, that they “were
negligent in failing to insure that the dance floor was safe, failing to install it
properly, failing to inspect the floor properly and failing to warn [the woman]
of the dangerous condition.” Id. During discovery, the disc jockey at the
wedding testified that “a section of the dance floor … was discolored and
extremely, extremely slippery[,]” and that “in one area where the panels of
the dance floor were connected there was a metal lip, which was raised
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4
“Proximate causation is defined as a wrongful act which was 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) (citation omitted).
“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.” Id. at 1287 (citation
omitted).
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higher than the other areas of the floor.” Id. (internal quotation marks and
citations omitted). The woman also testified that “she fell because the heel
of her shoe slipped on the dance floor’s wooden surface, and that she
observed that the dance floor had a section which was lighter in color than
the other areas of the floor.” Id.
The defendants moved for summary judgment, arguing that the
woman “did not fall until she was approximately three or four feet away from
these areas[,]” and therefore “the slippery or raised areas of the dance floor
could not have caused [her] to fall.” Id. at 20-21 (citation omitted). The
trial court agreed and entered summary judgment in favor of defendants,
determining that the woman “could not identify the reason she fell … and
could not prove directly that the identified ‘hazards’ on the floor caused her
to fall.” Id. at 21.
On appeal, we reversed, concluding that the woman “presented
sufficient circumstantial evidence from which a jury could infer reasonably
that a slippery or raised area of the floor caused [her] to fall.” Id. (footnote
omitted). We observed:
Although it is clear that a jury is not permitted to reach a verdict
based upon guess or speculation, it is equally clear that a jury
may draw inferences from all of the evidence presented. Cade
v. McDanel, 451 Pa.Super. 368, 679 A.2d 1266 (1996).
It is not necessary, under Pennsylvania law, that every fact
or circumstance point unerringly to liability; it is enough
that there be sufficient facts for the jury to say reasonably
that the preponderance favors liability....The facts are for
the jury in any case whether based upon direct or
circumstantial evidence where a reasonable
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conclusion can be arrived at which would place
liability on the defendant. It is the duty of [the]
plaintiffs to produce substantial evidence which, if
believed, warrants the verdict they seek. The right of
a litigant to have the jury pass upon the facts is not to be
that a reasonable man might properly find either way. A
substantial part of the right to trial by jury is taken away
when judges withdraw close cases from the jury.
Therefore, when a party who has the burden of proof
relies upon circumstantial evidence and inferences
reasonably deductible therefrom, such evidence, in
order to prevail, must be adequate to establish the
conclusion sought and must so preponderate in favor
of that conclusion as to outweigh in the mind of the
fact-finder any other evidence and reasonable
inferences therefrom which are inconsistent
therewith.
Cade, 679 A.2d at 1271 (quoting Smith v. Bell Telephone Co.
of Pennsylvania, 397 Pa. 134, 153 A.2d 477, 480 (1959)).
First, 686 A.2d at 21 (emphasis added). Based on the foregoing, the First
Court determined that “[w]ithout resort to conjecture, the jury would have
had a rational basis to choose, over any other inference suggested by the
evidence, the inference that there was a defect in the dance floor, that the
dance floor was unsafe and that [the woman] fell as a result thereof.” Id. at
22.
Assuming arguendo that Decedent did trip over a parking bumper in
the case sub judice, it is totally ambiguous why Decedent may have tripped
over it. Unlike in First where there was evidence that the woman fell
because her shoe’s heel slipped on the dance floor’s surface and the disc
jockey confirmed that sections of the dance floor were “extremely
slippery[,]” First, 686 A.2d at 20, there is no similar evidence in this case
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that Decedent tripped over the parking bumper because it was allegedly
unpainted or off-centered, as argued by Appellant. As discerned by the trial
court, “[t]he only evidence produced shows that [D]ecedent was found on
the ground near an unknown vehicle, that she told someone she tripped
over a curb, which that person interpreted to mean a parking bumper, and
that the parking spaces in the garage had unpainted parking bumpers.” TCO
at 8.5 Thus, it would be conjecture to find that RMH/MLH’s purported failure
to maintain painted parking bumpers or compliant walkways caused
Decedent to fall. Further, as the trial court emphasized above, “Appellant’s
theory is one of many possibilities that could have reasonably caused
[D]ecedent to fall.” Id. at 9. In contrast to First — where the woman could
testify to the nature and location of her fall, and there was a witness to it —
the jury here would have no rational basis to choose Appellant’s theory of
causation over any other theory suggested by the evidence given the
meager factual record. See First, 686 A.2d at 21, 22. We therefore
conclude that Appellant has not proffered sufficient evidence to establish a
causal connection between RMH/MLH’s allegedly non-compliant parking
bumper and walkway, and Decedent’s injuries. As Appellant has not
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5
Accord Appellant’s Brief at 4-7, 33 (“[Decedent] was on her way to her car
to get home; her car was parked in the fourth handicapped space from the
walkway, she was found on the ground, in the area of the handicapped
parking spaces, sitting up after having fallen and injured her hand, shoulder,
chest, face and head in a fall which she consistently and repeatedly
described as a trip over the parking curb.”).
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persuaded us that the trial court committed an error of law or abused its
discretion, we affirm the trial court’s order granting summary judgment to
RMH/MLH.6
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/22/2017
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6
Because we deem this issue to be dispositive, we do not address
Appellant’s other issues.
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McHale, P. v. Riddle Memorial Hospital
Combined Opinion