                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 14-4082
                                     _____________

                                  FRANK CHAPMAN,
                                            Appellant

                                             v.

                                   JERRY CHAON;
                               TEREX CORPORATION
                             __________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D.C. Civil No. 3-13-cv-00885)
                      District Judge: Honorable Richard P. Conaboy
                             __________________________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                     June 5, 2015

           Before: RENDELL, HARDIMAN, and VANASKIE, Circuit Judges

                                 (Filed: August 13, 2015)
                                      _____________

                                       OPINION*
                                     _____________

VANASKIE, Circuit Judge.



       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
       This personal injury suit turns on whether Appellant Frank Chapman, who

suffered injuries in a workplace accident when an employee of Appellee Terex

Corporation fell from a high ladder onto him, may rely on the doctrine of res ipsa loquitur

to permit a jury finding in his favor on the issue of negligence. The District Court

granted summary judgment in favor of Terex. Because we agree that Chapman was not

entitled to rely on res ipsa loquitur on these facts, we will affirm.

                                               I.

       Since 1994, Chapman has been employed as an operating engineer for Fahs

Construction. In April 2011, Chapman was assigned to a bridge-repair jobsite in

Tunkhannock, Pennsylvania. Among the construction equipment at the site was a Bid-

Well 3600 Automatic Roller Paver, which Fahs Construction had recently purchased

from Terex. To access the control console of the Paver, the operator must climb a ladder,

between eight and nine feet in height, mounted on the side of the Paver. On April 11,

2011, Terex sent Jerry Chaon, a service engineer, to the jobsite to train Fahs

Construction’s employees on the use of the Paver.1

       During Chaon’s tutorial, Chapman inquired whether the Paver had a specific kind

of auxiliary power hookup. Chaon recalled that the control panel in the operator’s

compartment had such a hookup, but to confirm that, he decided to ascend the Paver’s

ladder and personally check. Chapman, who had planned to follow Chaon up into the


       1
         Chaon was initially named as a defendant in this lawsuit, but was dismissed by
stipulation in April 2014.

                                               2
operator’s compartment, waited at the bottom of the ladder for Chaon to complete his

climb. As Chaon approached the top rung of the ladder, however, he lost his grip and

fell. Chaon landed on Chapman, who suffered a back injury that caused him to miss

several months of work.

       The record is devoid of evidence as to what caused Chaon to fall. It is undisputed

that Chaon had no grease or oil on his hands; that he was in good physical health and had

not felt dizzy or faint that day; and that the ladder itself was stable, securely attached to

the Paver, and not defective in any apparent way. Chaon’s own description of the fall

was as follows:

              My hands slipped off of—as I remember it, you know, as I
              was climbing up there getting ready to reach for the next
              [rung], my hand came off from there. I’m sitting with both
              hands in the air and my fanny taking me the other direction.

App. 84.

       In April 2013, Chapman filed a complaint in the Middle District of Pennsylvania

in which he alleged that the negligence of Terex and Chaon, its employee, had caused

him to suffer in excess of $75,000 in damages.2 In June 2014, Terex filed a motion for

summary judgment. In a Memorandum and Order filed September 9, 2014, the District

Court granted Terex’s motion. Chapman timely appealed.



       2
         Chapman is a resident of Pennsylvania. Terex is incorporated in Delaware and
its principal place of business is Connecticut. Chaon is a resident of South Dakota.
Because this case arises under diversity jurisdiction, we will apply the substantive law of
the forum state, Pennsylvania. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).

                                               3
                                             II.

       The District Court had jurisdiction under 28 U.S.C. § 1332(a). We have appellate

jurisdiction under 28 U.S.C. § 1291. Our review of the District Court’s order granting

summary judgment is plenary. Trinity Indus., Inc. v. Chi. Bridge & Iron Co., 735 F.3d

131, 134 (3d Cir. 2013). We view the evidence “‘in the light most favorable to the

nonmoving party.’” Id. at 134–35 (quoting Kurns v. A.W. Chesterton Inc., 620 F.3d 392,

395 (3d Cir. 2010)). Summary judgment is appropriate where the movant establishes

“that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a).

                                             III.

       To succeed on a cause of action based on negligence under Pennsylvania law, “the

plaintiff must show that the defendant had a duty to conform to a certain standard of

conduct; that the defendant breached that duty; that such breach caused the injury in

question; and actual loss or damage.” Phillips v. Cricket Lighters, 841 A.2d 1000, 1008

(Pa. 2003) (internal quotation marks omitted). Res ipsa loquitur “is a rule that provides

that a plaintiff may satisfy his burden of producing evidence of a defendant’s negligence

by proving that he has been injured by a casualty of a sort that normally would not have

occurred in the absence of the defendant’s negligence.” Quinby v. Plumsteadville Family

Practice, Inc., 907 A.2d 1061, 1071 (Pa. 2006). Pennsylvania has adopted § 328D of the

Restatement (Second) of Torts, see id., which states that the doctrine applies when:



                                              4
              (a) the event is of a kind which ordinarily does not occur in
              the absence of negligence;

              (b) other responsible causes, including the conduct of the
              plaintiff and third persons, are sufficiently eliminated by the
              evidence; and

              (c) the indicated negligence is within the scope of the
              defendant’s duty to the plaintiff.

Restatement (Second) of Torts § 328D(1).

       To satisfy the first prong—which is the focal point of the case before us—the

plaintiff “must produce evidence which would permit the conclusion that it was more

probable than not the injuries were caused by [the defendant’s] negligence.” Micciche v.

E. Elevator Co., 645 A.2d 278, 281 (Pa. Super. Ct. 1994). This is consistent with the

general rule in Pennsylvania, which is that “the mere happening of an accident or an

injury does not establish negligence nor raise an inference or a presumption of negligence

nor make out a prima facie case of negligence.” Amon v. Shemaka, 214 A.2d 238, 239

(Pa. 1965).

       Here, the District Court concluded that a reasonable jury could not find, based on

the fact of the fall alone, that it was more likely than not that Chaon or Terex acted

negligently. Although we are aware of no Pennsylvania cases directly on point, we agree

with the District Court’s assessment. Courts across the country have concluded, on

similar facts, that a fall or misstep, without more, is not sufficient to warrant an inference

of negligence under res ipsa loquitur. A Massachusetts state court aptly described the

principle as follows:

                                              5
              A person’s fall down a flight of stairs, or any fall, is a familiar
              phenomenon in human experience attributable to losing one’s
              balance, tripping or a myriad of other common causes not
              involving tortious conduct. Such occurrence is dissimilar to
              the events in the res ipsa loquitur cases cited by the plaintiff
              which involve the unexplained fall of objects or material
              debris.

Aceto v. Legg, 1990 Mass. App. Div. 191, at *2 (Mass. Dist. Ct. 1990). See also Smith v.

City of N.Y., 936 N.Y.S.2d 178, 179 (N.Y. App. Div. 2012) (finding res ipsa loquitur

inapplicable “because it is not uncommon for trips and falls to occur without negligence

where there is a misstep or loss of balance”); Thomas v. Bradley, 987 So.2d 1020, 1026

(Miss. Ct. App. 2008) (“[The plaintiff] would have us apply res ipsa loquitor [sic] with no

more proof save that [the defendant] slipped. We are not prepared to find that one who

slips and falls on a roof would never do so but for a lack of reasonable care.”); Cie. Des.

Messageries Maritimes v. Tawes, 205 F.2d 5, 8 (5th Cir. 1953) (finding res ipsa loquitur

inapplicable after plaintiff fell from ladder because “the cause of the accident and the

relation of the appellant to it were matters of mere speculation and conjecture”).3

       The commentary to the Restatement, too, illustrates the same point:

              There are many types of accidents which commonly occur
              without the fault of anyone. The fact that a tire blows out, or
              that a man falls down stairs is not, in the absence of anything

       3
         These cases stand in stark contrast to those in which Pennsylvania courts have
permitted an inference of negligence. See, e.g., Quinby, 907 A.2d at 1072–73 (plaintiff
entitled to inference where quadriplegic patient fell from examination table to floor, and
could not have done so of his own volition); D’Ardenne v. Strawbridge & Clothier, Inc.,
712 A.2d 318, 325 (Pa. Super. Ct. 1998) (plaintiff entitled to inference where foot
became stuck in escalator); Gilbert v. Korvette, Inc., 327 A.2d 94, 102–03 (Pa. 1974)
(same).

                                              6
              more, enough to permit the conclusion that there was
              negligence in inspecting the tire, or in the construction of the
              stairs, because it is common human experience that such
              events all too frequently occur without such negligence.

Restatement (Second) of Torts § 328D cmt. c.

       Chapman directs us to two other cases, Clark v. Darden Restaurants, Inc., No. 14-

2810, 2015 WL 3396807 (3d Cir. May 27, 2015), and Johnson v. United States, 333 U.S.

46 (1948). Both are distinguishable. In Clark, a waiter dropped a “slippery” and

“greasy” plate onto a customer’s table, causing an eye injury, 2015 WL 3396807, at *1,

while in Johnson, a seaman dropped a heavy block onto the head of a shipmate. Both

cases involved accidents that were extremely unlikely to have occurred with the exercise

of reasonable care. See Clark, 2015 WL 3396807, at *2 (“[N]o reasonable, similarly

situated server should have handled the plate as the server did here.”); Johnson, 333 U.S.

at 50 (“[H]uman experience tells us that careful men do not customarily do such an act.”).

Here, by contrast, Chaon fell from a ladder in a manner equally as attributable to fluke

happenstance as to carelessness. The District Court was correct to conclude that there is

simply no basis on which a jury might infer that the accident was caused by one as

opposed to the other.

       Because we agree that Chapman has not come forward with evidence that would

permit a jury to find in his favor on the issue of negligence, and because the jury would

not be permitted to make such a finding on the basis of res ipsa loquitur, we will affirm

the District Court’s grant of summary judgment on Count One of the Complaint.


                                             7
                                          IV.

      For the foregoing reasons, we will affirm the District Court’s judgment of

September 9, 2014.




                                           8
