J-A02028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ESTATE OF CATHERINE GENOVESE                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                        Appellants

                   v.

RITE AID STORES

                        Appellee

APPEAL OF: CRYSTAL J. GENOVESE, AS
EXECUTRIX FOR THE ESTATE OF
CATHERINE GENOVESE, GIUSEPPE
GENOVESE, SR., HUSBAND OF
CATHERINE GENOVESE AND GIUSEPPE
GENOVESE, JR., FRANK GENOVESE AND
CRYSTAL LIA, CHILDREN OF CATHERINE
GENOVESE

                                                        No. 1830 EDA 2014


               Appeal from the Order Entered May 12, 2014
               In the Court of Common Pleas of Pike County
                    Civil Division at No.: 1220-2011 Civil


BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                                FILED APRIL 01, 2015

     Crystal J. Genovese, as executrix for the estate of Catherine Genovese

(“Mrs.   Genovese”);    Giuseppe     Genovese,   Sr.,   husband   of   Catherine

Genovese; and Giuseppe Genovese, Jr., Frank Genovese and Crystal Lia,

children of Catherine Genovese, appeal from the order entered May 12,

2014, granting summary judgment in favor of Rite Aid Stores in this

wrongful death action. We affirm.

     The trial court set forth the following facts:
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        The following facts from the incident on April 24, 2010 are
        undisputed: Mrs. Genovese dropped her husband off at Silver
        Lake Tavern on the afternoon of April 24 and then travelled to
        Lords Valley to shop. At some point during her shopping trip,
        Mrs. Genovese entered Rite Aid. The assistant manager, Richard
        Ramme, noticed Mrs. Genovese looked ill.            Mr. Ramme
        approached Mrs. Genovese and asked if she needed anything.
        After initially saying “no”, Mrs. Genovese requested a glass of
        water, which Mr. Ramme provided. Mr. Ramme again asked if
        he could do anything and Mrs. Genovese stated she’d just like to
        sit. Mr. Ramme told Mrs. Genovese to “flag down” an employee
        if she needed anything and then went back to work. When Mr.
        Ramme returned to check on Mrs. Genovese, she had left the
        store. Thereafter, Mrs. Genovese returned to Silver Lake Tavern
        to meet her family. Mrs. Genovese informed her family that she
        did not feel well and Mr. Genovese decided to drive her to the
        hospital. Shortly after arriving at the hospital, Mrs. Genovese
        passed away from athero sclerotic cardiovascular disease.

Trial Court Opinion (“T.C.O.”), 7/28/2014, at 2.

        On July 21, 2011, Mrs. Genovese’s estate, along with her husband and

children (collectively, “Appellants”), filed a praecipe for writ of summons

against Rite Aid Stores (“Rite Aid”). Thereafter, Appellants filed a two-count

complaint alleging that Rite Aid Store #2702 negligently caused Mrs.

Genovese’s death.     On December 16, 2011, Rite Aid filed an answer with

new matter, and on December 9, 2013, Rite Aid filed a motion for summary

judgment.     Oral arguments were held before the trial court on March 24,

2014.     On May 12, 2014, the trial court granted Rite Aid’s motion for

summary judgment.

        On June 10, 2014, Appellants timely appealed to the Superior Court.

On June 30, 2014, they filed a concise statement of errors complained of on




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appeal pursuant to Pa.R.A.P. 1925(b).     On July 28, 2014, the trial court

entered its opinion pursuant to Pa.R.A.P. 1925(a).

     Appellants raise seven duplicative and overlapping questions for our

review:

     1.    Did the [trial c]ourt commit an error of law by failing to
     recognize . . . Rite Aid owed Mrs. Genovese, as [a] business
     invitee who became ill and injured on its premises, a duty of
     care, pursuant to Restatement of Torts 2d, § 314(a)?

     2.     Did the [trial c]ourt commit an error of law by failing to
     follow Campbell v. Eitak, 893 A.2d 749 (Pa. Super. . . . 2006),
     which imposes a duty on businesses, such as []Rite Aid, to
     summon medical assistance for an ill or injured business invitees
     [sic] on its premises?

     3.    Did the [trial c]ourt commit reversible error by ignoring
     expert and circumstantial evidence read in [Appellants’] best
     light—of the fact that Richard Ramme saw Mrs. Genovese was
     severely ill, and therefore injured, and took it upon himself to
     assist Mrs. Genovese (due to the severity of her ill and injured
     condition), aided [Mrs. Genovese], and then left [Mrs. Genovese]
     alone (contrary to [Rite Aid’s] Safety Manual), and then returned
     to double-check on [Mrs. Genovese], at which point she was
     gone—which if accepted in the light most favorable to
     []Appellants, demonstrates []Rite Aid assumed the duty of
     reasonable conduct and care to Mrs. Genovese?

     4.    Did the [trial c]ourt commit reversible error by making a
     factual determination inconsistent with the Summary Judgment
     standard that “the Trial Court must view the record in the light
     most favorable to the non-moving party and must resolve all
     doubts as to the existence of a genuine issue of material fact
     against the moving party” when the [trial c]ourt failed to
     recognize “reasonable minds would differ” with regard to the
     question of whether, under the circumstances, []Rite Aid
     breached its duty of care arising under either its Safety Manual
     or as it’s [sic] on the job training required, which it owed to Mrs.
     Genovese, as an injured/ill, business invitee on []Rite Aid’s
     premises?



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      5.    Did the [trial c]ourt commit an error of law by not ruling
      that OSHA or Labor and Industry regulation, legislative[ly]
      created, required []Rite Aid to properly train [sic] its personnel
      to handle illness or injury incidents, such as [Mrs.] Genovese’s
      incident on []Rite Aid’s premises?

      6.    Did the [trial c]ourt commit an error of law by not finding
      []Rite Aid had a duty of care to require its employees to properly
      follow [sic] []Rite Aid’s Retail Safety Manuel [sic], and that []Rite
      Aid, therefore failed to train, educate, and/or enforce on its own
      personnel the need to follow its own Retail Safety Manual?

      7.    Did the [trial c]ourt commit an error of law by not finding
      []Rite Aid had a duty of care to require its employees to properly
      follow [sic] []Rite Aid’s Safety Manual, and that []Rite Aid,
      therefore failed to train, educate, and/or enforce on its own
      personnel the need to follow its own Retail Safety Manual?

Appellants’ Brief at 4-6.

      Our standard of review is well-settled:

      This Court may reverse a trial court’s order granting or denying
      summary judgment only if there has been an error of law or an
      abuse of discretion. To the extent that we must resolve a
      question of law, we shall review the grant of summary judgment
      in the context of the entire record. The record includes all
      pleadings, as well as any depositions, answers to interrogatories,
      admissions, affidavits, and expert reports. We examine the
      record in a light most favorable to the non-moving party, and we
      resolve all doubts as to the existence of a genuine issue of
      material fact against the moving party. Summary judgment is
      proper only if the moving party’s right is clear and free from
      doubt.

Scungio Borst & Assocs. v. 410 Shurs Lane Devs., LLC, 106 A.3d 103,

105 (Pa. Super. 2014) (citations and quotation marks omitted). “Failure of a

non[-]moving party to adduce sufficient evidence on an issue essential to his

case and on which it bears the burden of proof establishes the entitlement of




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the moving party to judgment as a matter of law.” Thompson v. Ginkel,

95 A.3d 900, 904 (Pa. Super. 2014).

     In their first issue, Appellants contend that the trial court erred “by

failing to recognize []Rite Aid owed Mrs. Genovese, as [a] business invitee

who became ill and injured on its premises, a duty of care.”      Appellants’

Brief at 15. We disagree.

     Appellants seek to     recover    under the   theory   that, under   the

Restatement (Second) of Torts, Rite Aid was negligent in failing to provide

additional aid to Mrs. Genovese:

     To recover under a claim for negligence, the plaintiff must prove
     the following elements: that the defendant owed a duty of care
     to the plaintiff, the defendant breached that duty, the breach
     resulted in injury to the plaintiff, and the plaintiff suffered an
     actual loss or damage. Whether a duty exists under a particular
     set of facts is a question of law. It has long been hornbook law
     that a duty arises only when one engages in conduct which
     foreseeably creates an unreasonable risk of harm to others.

        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 foreseeability of the harm
        incurred; (4) the consequences of imposing a duty upon
        the actor; and (5) the [over all] public interest in the
        proposed solution.

Montagazzi v. Crisci, 994 A.2d 626, 631 (Pa. Super. 2010) (citations and

quotation marks omitted); see id. at 632-33 (“If it appeared that the

deceased, by his own carelessness, contributed in any degree to the

accident which caused the loss of his life, the defendants ought not to have


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been held to answer for the consequences resulting from that accident.”)

(citing Brown v. French, 104 Pa. 604 (Pa. 1883)).            The Restatement

(Second) of Torts sets for the relevant duty arising between a possessor of

land and members of the public:

      § 314A    Special Relations Giving Rise to Duty to Aid or
      Protect

      (1) A common carrier is under a duty to its passengers to take
      reasonable action

         (a)      to protect them against unreasonable risk of
         physical harm, and

         (b)       to give them first aid after it knows or has reason
         to know that they are ill or injured, and to care for them
         until they can be cared for by others.

                                 *     *     *

      (3) A possessor of land who holds it open to the public is
      under a similar duty to members of the public who enter in
      response to his invitation.

Restatement (Second) of Torts § 314A(1), (3).

      Here, Appellants contend that the court erred in “failing to recognize

[that] Rite Aid owed Mrs. Genovese . . . a duty of care.” Appellants’ Brief at

4.   This is contradicted by the trial court, which in fact agreed that Mrs.

Genovese was a business invitee under the Restatement (Second) of Torts.

See Order, 5/15/2014, at 3 (“Here, there is no question Mrs. Genovese was

a business invitee.”). Accordingly, the trial court did find that Rite Aid owed

Mrs. Genovese a duty of care “to take reasonable action . . . to give [her]

first aid” after it knew she was ill “and to care for [her] until [she could] be



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cared for by others.”     Restatement (Second) of Torts § 314A(1)(b); see

also Order, 5/15/2014, at 3.        Thus, the dispute revolves around whether

Rite Aid took “reasonable action” pursuant to the Restatement in response to

Mrs. Genovese’s illness, and whether that duty rose to the level alleged to

be necessary by Appellants. Id.

       It is undisputed that after speaking to Mrs. Genovese, store manager

Ramme knew that Mrs. Genovese felt unwell.                 Ramme provided Mrs.

Genovese with a glass of water and a seat, and told her to ask any employee

if she required more assistance. When Ramme returned to check on Mrs.

Genovese, she had left. We agree with the trial court that the care provided

to Mrs. Genovese was reasonable as a matter of law.                    See Order,

5/15/2014, at 4.

       The record establishes that Mrs. Genovese received the assistance that

she requested, and that she declined further help. Ramme and Rite Aid had

no way of knowing that Mrs. Genovese’s condition was any more serious

than   indicated    by   the   flu-like   symptoms   she    appeared    to   have.

Furthermore, Mrs. Genovese left of her own accord and drove to another

location.   Rite Aid in no way declined to render reasonable assistance or

otherwise acted to prevent anyone from coming to Mrs. Genovese’s aid.

Montagazzi, 994 A.2d at 632-33. We agree with the trial court that, as a

matter of law, Rite Aid fulfilled its duty of care to Mrs. Genovese as a

business invitee. See Order, 5/15/2014, at 4. Appellants’ first issue does

not merit relief.

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       In their second issue, Appellants contend that the trial court erred in

failing to follow Campbell v. Eitak, 893 A.2d 749 (Pa. Super. 2006).

Specifically, they contend that Rite Aid had a duty to summon medical

assistance for Mrs. Genovese as a business invitee on the premises.

Appellants’ Brief at 17. We disagree.

       In Campbell, supra, a piece of food lodged in the plaintiff’s throat

while he ate at the defendant’s restaurant.     See Campbell, 893 A.2d at

749.    The plaintiff informed the restaurant that he was having difficulty

breathing, and the restaurant owner advised him to drink some water.

When the plaintiff told him that this had not made him feel better, the owner

asked whether the plaintiff wished the restaurant to call 911. The restaurant

then called 911, and the plaintiff was transported to a hospital where the

food was removed from his throat; the plaintiff later underwent surgery to

repair an esophageal tear. Id. at 749-50.

       The plaintiff sued the defendant restaurant, alleging negligence

because the restaurant did not have a procedure in place for responding to a

choking emergency.      The trial court granted the restaurant’s motion for

summary judgment, finding that the restaurant discharged its duty by calling

911.    On review, we affirmed and, after reviewing decisions from other

jurisdictions, concluded that “[i]n absence of any legislative pronouncement,

we hold that the prompt summoning of medical assistance satisfies a

restaurant’s duty to a patron who is choking.” Id. at 753.




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      Campbell is factually inapposite, in that it is specifically limited to

circumstances of “a restaurant’s duty to a patron who is choking.”         Id.

Here, Mrs. Genovese was not choking, nor did she proactively request the

assistance provided by Ramme and Rite Aid. In fact, she initially declined

Ramme’s offers of aid. Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261,

278 (U.S. 1990) (recognizing “general liberty interest in refusing medical

treatment”). Appellants are incorrect to assert that Campbell stands for the

proposition that businesses have a duty “to summon medical assistance for

an ill or injured business invitees [sic] on its premises[.]” Appellants’ Brief

at 17.   Campell merely held that, in the case of a man who choked at a

restaurant, the restaurant fulfilled its duty to take reasonable action to

provide first aid by summoning medical assistance. Campbell, 893 A.2d at

753; see also Restatement (Second) of Torts at § 314A.        This issue does

not merit relief.

      In their third issue, Appellants argue that, viewing the evidence in the

light most favorable to Appellants as the non-moving party, the trial court

erred in granting summary judgment because Rite Aid “assumed the duty of

reasonable conduct and care to Mrs. Genovese[.]” Appellants’ Brief at 20.

We disagree.

      Appellants misstate Rite Aid’s duty owed to Mrs. Genovese.       See id.

As previously discussed, the trial court properly concluded that Rite Aid owed

a duty of “reasonable action” to Mrs. Genovese as a business invitee

pursuant to the Restatement. See Restatement (Second) of Torts § 314A.

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Appellants argue that, because Ramme “took it upon himself to assist Mrs.

Genovese,”    Appellants’    Brief   at    4,      he   performed    negligently        while

undertaking   to   provide   services      to   Mrs. Genovese        pursuant      to    the

Restatement (Second) of Torts at § 323. Section 323 provides:

     § 323     Negligent          Performance            of   Undertaking        to
     Render Services

     One who undertakes, gratuitously or for consideration, to render
     services to another which he should recognize as necessary for
     the protection of the other’s person or things, is subject to
     liability to the other for physical harm resulting from his failure
     to exercise reasonable care to perform his undertaking, if

        (a) his failure to exercise such care increases the risk of
        such harm, or

        (b) the harm is suffered because of the other’s reliance
        upon the undertaking.

Restatement (Second) of Torts § 323.

     Viewing the record in the light most favorable to Appellants, it is

undisputed that Mrs. Genovese refused any additional help offered by

Ramme and the other employees of Rite Aid and that she left of her own

volition. It cannot be said that Mrs. Genovese relied upon the employees’

assistance or that they increased her risk of harm. Any physical harm she

suffered did not result from Ramme’s “failure to exercise reasonable care to

perform his undertaking.” Restatement (Second) of Torts § 323. Cf. Baur

v. Mesta Mach. Co., 168 A.2d 591, 599 (Pa. Super. 1961) (finding no

workmen’s     compensation     liability    where       decedent    complained     of     flu




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symptoms at work and suffered fatal heart attack on his way home). This

issue does not merit relief.

      In their fourth through seventh issues, Appellants allege that Rite Aid

breached its duty to Mrs. Genovese as set forth in its Retail Safety Manual,

Rite Aid’s training policies, and “OSHA or Labor and Industry Regulation[s].”

Appellants’ Brief at 5-6. We disagree.

      Through the expert reports of John Shane, M.D. and Alan Nudelman,

Appellants attempt to cast Rite Aid’s duty owed to Mrs. Genovese as a

genuine issue of material fact that would preclude the award of summary

judgment and require submission to a jury.      Id. at 22, 24.    It is well-

settled that whether a duty exists under a particular set of facts is a

matter of law.    See Charlie v. Erie Ins. Exch., 100 A.3d 244, 250

(Pa. Super. 2014).

      Appellants cannot overcome summary judgment by recasting the

duty of care that Rite Aid owed to Mrs. Genovese.          Appellants claim

that a variety of regulations superseded the Restatement (Second) of

Torts’ common-law duty owed toward a business invitee.                  See

Restatement (Second) of Torts § 323. Rite Aid and its employees fulfilled

the standard of reasonable care toward Mrs. Genovese as a business

invitee.

      Appellants’ suggested application of these regulations to the

instant case lacks support in fact or in law. OSHA specifies the safety

standards an employer owes its employees in the workplace.             See,

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e.g., Stephens v. Paris Cleaners, Inc., 885 A.2d 59, 68 (Pa. Super.

2005). Appellants do not, and cannot, claim that Mrs. Genovese was

an employee of Rite Aid when she fell ill.

     Appellants claim that Rite Aid’s safety manuals specify that 911

should be called when a patron suffers injury.        Nowhere does the

manual so state; it only obligates employees to remain with injured

persons.    See Deposition Exh. 3, Retail Safety Manual, at 3 (“If a

person becomes injured, stay with the injured person and reassure

them until medical personnel arrive.”). Appellants conflate illness and

injury. Even if illness was covered under Rite Aid’s employee safety

manuals and training, the record shows that Mrs. Genovese denied the

assistance that was offered to her. See Deposition of Richard Ramme,

10/16/2012, at 46-47.       Finally, while Appellants make a vague

reference   to   “labor   and   industry   regulation[s],”   they   fail   to

meaningfully develop this claim. See Pa.R.A.P. 2119(a), (b).

     We agree with the trial court that imposing a duty upon a

pharmacy to call 911 any time a patron appears to be ill would impose

an unreasonable burden, and that, under the circumstances of this

case, Rite Aid and its employees fulfilled their obligations to Mrs.

Genovese as a business invitee as a matter of law.           T.C.O. at 8.

Accordingly, the trial court did not err in granting summary judgment

in favor of Rite Aid, and no genuine issues of material fact remain that

would warrant submission to a jury.

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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/1/2015




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