J-A12017-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 SAMANTHA JEAN SAVAGE,                     :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                    Appellant              :
                                           :
                                           :
              v.                           :
                                           :
                                           :
 ABBY A. JACOBSON, MS, PA-C A/K/A          :   No. 3907 EDA 2017
 ABRIN ARLENE JACOBSON                     :

            Appeal from the Judgment Entered October 23, 2017
             In the Court of Common Pleas of Delaware County
                     Civil Division at No(s): 15-001881


BEFORE: BOWES, J., OTT, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.:                              FILED AUGUST 09, 2018

      Samantha Jean Savage (“Savage”) appeals from the judgment entered

October 23, 2017, in the Delaware County Court of Common Pleas, in favor of

Abby A. Jacobson, MS, PA-C a/k/a Abrin Arlene Jacobson (“Jacobson”), in this

negligence action. After the close of Savage’s case-in-chief, the court granted

Jacobson’s motion for nonsuit.        Savage raises four issues on appeal,

challenging the court’s rulings both before and during the jury trial, as well as

its decision to grant Jacobson’s motion for nonsuit. For the reasons below, we

affirm.

      The present action stems from a medical procedure performed on

September 25, 2007, by Jacobson, then a physician’s assistant at Aesthetic

Dermatology Associates, P.C. Savage, who was then seven years old, was

brought to Jacobson’s office by her mother and grandmother for treatment of
J-A12017-18



“molluscum contagiosum, a condition that included small lesions or warts on

the skin.” Trial Court Opinion, 12/29/2017, at 2. The trial court summarized

the testimony presented during the jury trial as follows:

             The testimony at trial established a conflict as to the factual
      events that occurred in [Jacobson’s] office. [Mother] testified that
      after they had arrived in the office [Savage’s] initial treatment was
      with nitrous oxide, but when [Savage] saw the smoke caused by
      this substance she became upset and it was determined that the
      procedure would proceed with the TCA [trichloracetic acid]
      treatment instead of nitrous oxide. [Mother] further testified that
      [] Jacobson applied the TCA to [Mother’s] hand to show [Savage]
      that its application did not hurt and to help calm [Savage’s]
      nerves. [Mother] stated that the instrument [] Jacobson used was
      similar to a Q-tip, which contained cotton on one end and an
      uncovered stick on the opposite end. The stick end was used on
      [Mother’s] hand to demonstrate. [Mother] testified that after the
      demonstration, [] Jacobson proceeded to pour TCA into a cup–like
      container and used a Q-tip end for her daughter’s treatment.
      During the course of the treatment, [Mother] sat on the table with
      her daughter and placed her onto her lap. [Mother] stated that
      during her daughter’s stomach treatment, her daughter became
      upset.     [Mother] claimed that as [Jacobson] proceeded to
      [Savage’s] neck area for treatment, the TCA spilled. [Mother]
      testified on cross-examination that she did not see what caused
      the acid to spill. [] Jacobson washed [Savage’s] face before
      [Savage] left the office.

            [Grandmother] testified that the Q-tip swab was really wet
      and drippy and dripped on [Savage’s] stomach and that [Savage]
      reacted to it. She further testified that the liquid splashed out of
      the cup, but did not see where every drop had landed.
      [Grandmother] testified that she saw the cup of TCA in []
      Jacobson’s hand move and that she did not know if [Savage] or []
      Jacobson jerked [Jacobson’s] arm. [Grandmother] continued that
      she did not know how it happened, but he saw the acid splash out
      of the cup.

              [] Jacobson testified that she had previously treated
      [Savage] and that [Savage] had become upset during treatments
      and was referred to her for that reason. She claimed that she
      initially treated [Savage] with liquid nitrogen but stopped the

                                      -2-
J-A12017-18


       treatment because it hurt. [Jacobson] testified that she applied
       the TCA to [Mother’s] hand to show [Savage] that it would not
       burn. [Jacobson] testified that she applies TCA on women’s faces
       to get rid of wrinkles as part of a cosmetic treatment. [] Jacobson
       further testified that she started treating [Savage] when [Savage]
       suddenly started flailing, kicking, moving her arms and crying and
       that the applicator in her right hand was knocked out of her hand.
       [] Jacobson stated that she retrieved the application [sic], put it
       away, calmed [Savage] down and then treated [Savage] with
       ointment and gave her instructions. [] Jacobson denied that she
       had a cup of acid in her hand during the treatment.[1] [] Jacobson
       also testified that she applied the TCA with the stick end and not
       the Q-tip end for the treatment.

Id. at 5-7 (record citations omitted).

       On February 27, 2015, Savage filed a complaint against Jacobson and

Aesthetic    Dermatology       Associates,     P.C.,   asserting   claims   of   medical

malpractice and ordinary negligence.2                  The claims against Aesthetic

Dermatology were later dismissed by stipulation of the parties.                     See

Stipulation, 3/28/2016. On May 30, 2017, Jacobson filed a motion in limine

seeking to preclude testimony on the issue of the appropriate standard of care

from Savage’s proposed expert witness, Dr. Jeffrey Bomze.                   Specifically,

Jacobson argued Dr. Bomze, a pediatrician, “does not practice dermatology

and does not assert expertise in working with physician assistants.” Motion

In Limine, 5/30/2017, at ¶ 5. Savage did not file a response to the motion,
____________________________________________


1Although during her deposition Jacobson denied she held a container of acid
during the procedure, at trial, she testified she held the applicator in her right
hand but could not recall if she had a container of the TCA in her left hand.
See N.T., 6/20/2017, at 149, 151, 173.

2We note Savage attached to her complaint a certificate of merit pursuant to
Pa.R.C.P. 1042.3(a).


                                           -3-
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but rather, on June 13, 2017, her attorney sent a letter to the trial court

stating Savage would not be proceeding on the medical malpractice count in

the complaint, and would “proceed on the ordinary negligence count, only.”

Motion for Compulsory Nonsuit, 6/16/2017, at Exhibit C, Letter dated

6/13/2017. Accordingly, on June 16, 2017, three days before trial, Jacobson

filed a motion for a compulsory nonsuit, asserting that while Savage pled

counts for medical malpractice and ordinary negligence, “the factual

allegations have borne out through discovery that the only viable claim is

medical malpractice.”     Id. at ¶ 5.   Because Savage failed to file a timely

response to Jacobson’s motion in limine, and, in fact, indicated she would not

be calling an expert witness, Jacobson asserted the “case must fail as a matter

of law[.]” Id. at ¶ 11.

      On the morning of the first day of trial, Savage filed both an (untimely)

answer to Jacobson’s motion in limine, and preliminary objections to the

motion for compulsory nonsuit. The court proceeded to hear argument on

both motions. Savage’s attorney first insisted that, regardless of the letter he

sent to the court on June 13th, he did not waive his right to object to Jacobson’s

motion in limine or present an expert at trial. See N.T., 6/19/2017, at 6.

Furthermore, counsel clarified he still intended to present a medical

malpractice claim at trial, although he acknowledged his expert would not be

available for the next couple of days. See id. at 9-10. Savage’s attorney

maintained the first issue the court had to determine was whether he was

precluded from presenting his expert witness based on the motion in limine.

                                        -4-
J-A12017-18



See id. at 9. After taking a brief recess, the court denied the motion in limine.

See id. at 12. Consequently, Savage was not precluded from presenting a

medical expert at trial.

      Next, the trial court considered Jacobson’s motion for compulsory

nonsuit.   Jacobson’s attorney emphasized to the court that:       (1) Savage’s

counsel stated he would not be able to produce his expert in time for trial; (2)

the facts of the case did not support a res ipsa loquitur argument; and (3) the

court had to decide if Savage could proceed with a medical malpractice and/or

general negligence claim. See id. at 12-16. In response, Savage’s attorney

insisted the motion was premature since a compulsory nonsuit is available

only after a plaintiff presents her case-in-chief. See id. at 18. After another

brief recess, the trial court denied the motion for a nonsuit. Although the

court permitted Savage to proceed on both counts in the complaint, it stated

“both of those counts sound in medical negligence,” and left the decision up

to Savage whether or not to proceed with an expert. Id. at 23.

      The jury trial began that same day. Savage presented the testimony of

her mother and grandmother, testified as to her own recollection of the

incident, and called Jacobson as on cross-examination. She did not present

expert testimony before resting her case. At the conclusion of Savage’s case-

in-chief, Jacobson renewed her motion for a nonsuit. The trial court granted

the motion on June 21, 2017. Savage filed a timely post-trial motion, and the

court held a hearing on September 14, 2017.        Thereafter, on October 16,




                                      -5-
J-A12017-18



2017, the trial court denied Savage’s motion for post-trial relief. This timely

appeal followed the entry of judgment on October 23 2017.3

       When considering a trial court’s refusal to remove a nonsuit, we are

bound by the following well-established standard of review:

       Nonsuit is properly entered where it is clear that the plaintiff has
       not established a cause of action or right to relief. Pa.R.C.P. 230.1.
       In determining whether the plaintiff has established a right to
       relief,

          [t]he plaintiff must be allowed the benefit of all favorable
          evidence and reasonable inferences arising therefrom, and
          any conflicts in the evidence must be resolved in favor of
          the plaintiff. Further, [i]t has been long settled that a
          compulsory nonsuit can only be granted in cases where it is
          clear that a cause of action has not been established.
          However[,] where it is clear a cause of action has not been
          established, a compulsory nonsuit is proper. We must,
          therefore, review the evidence to determine whether the
          order entering judgment of compulsory nonsuit was proper.

       Braun v. Target Corp., 983 A.2d 752, 764 (Pa.Super.2009).
       “This Court will reverse an order denying a motion to remove a
       nonsuit only if the court abused its discretion or made an error of
       law.” Brinich v. Jencka, 757 A.2d 388, 402 (Pa.Super.2000).

Staiger v. Holohan, 100 A.3d 622, 624 (Pa. Super. 2014).

       For ease of disposition, we will address Savage’s third issue first.

Therein, Savage maintains the trial court erred when it “declared” that she

must proceed with her case as a medical malpractice action, and not as one

sounding in ordinary negligence. Savage’s Brief at 25. She emphasizes she
____________________________________________


3 On November 6, 2017, the trial court ordered Savage to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Savage complied with the court’s directive, and filed a concise statement on
November 27, 2017.


                                           -6-
J-A12017-18



pled two counts against Jacobson in her complaint – one sounding in medical

malpractice and one sounding in ordinary negligence – and pled sufficient facts

to bring a claim of ordinary negligence against Jacobson. Savage asserts the

trial court’s ruling in this case “basically removed ordinary negligence as a

viable cause of action against any doctor, hospital, or other medical provider.”

Id. at 29.

      Preliminarily, we note the trial court disputes Savage’s contention that

it precluded her from proceeding on an ordinary negligence claim at trial, and

the record supports the court’s assertion.         See Trial Court Opinion,

12/29/2017, at 7-8. As noted supra, the trial court denied both Jacobson’s

motion in limine, and her pretrial motion for a nonsuit. Further, the court

specifically declined to dismiss either count in Savage’s complaint, although it

stated both the medical malpractice and ordinary negligence claims

“sound[ed] in medicine and medical treatment.” N.T., 6/19/2017, at 24. It

was Savage’s choice to proceed without medical expert testimony, which, as

will be discussed infra, was her downfall.

      Savage also contests the court’s determination that both counts in her

complaint sounded in medical malpractice. Regarding this issue, the court

stated:

      While [Savage’s] counsel sought to escape providing medical
      testimony in this case by claiming that the matter was one of
      ordinary negligence, an examination of the complaint revealed
      otherwise. The pleadings of both counsel sounded in medical
      negligence and both counts claimed negligence in the medical
      treatment of [Savage].


                                     -7-
J-A12017-18



Id. at 8.

      In Grossman v. Barke, 868 A.2d 561 (Pa. Super. 2005), appeal

denied, 889 A.2d 89 (Pa. 2005), a panel of this Court clarified the averments

a plaintiff makes in her complaint determines her theories of liability. See id.

at 568. The Grossman Court explained:

      The underlying elements of negligence in a medical malpractice
      claim, mirroring those of a basic negligence claim, are more
      specifically described as a “duty owed by the physician to the
      patient, a breach of that duty by the physician, that the breach
      was the proximate cause of the harm suffered, and the damages
      suffered were a direct result of the harm.”

             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, “[b]ecause 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.”

            The expert testimony requirement in a medical malpractice
            action means that a plaintiff must present medical expert
            testimony to establish that the care and treatment of the
            plaintiff by the defendant fell short of the required standard
            of care and that the breach proximately caused the
            plaintiff’s injury. Hence, causation is also a matter generally
            requiring expert testimony.

      Indeed, “a jury of laypersons generally lacks the knowledge to
      determine the factual issues of medical causation; the degree of
      skill, knowledge, and experience required of the physician; and
      the breach of the medical standard of care.” In such cases, “[t]he
      cause and effect of a physical condition lies in a field of knowledge
      in which only a medical expert can give a competent opinion ....
      [Without experts] we feel that the jury could have no basis other
      than conjecture, surmise or speculation upon which to consider
      causation.”


                                         -8-
J-A12017-18



Id. at 566-567 (internal citations omitted). However, the Grossman panel

acknowledged expert testimony is not always required in a medical

malpractice case, as, for instance, when “the alleged negligence is obvious or

within the realm of a layperson’s understanding.” Id. at 567.

      Drawing upon that precept, Savage insists expert testimony was

unnecessary in her case because Jacobson testified that “she knew the use of

acid ... would likely cause inflammation and she admitted that an inadvertent

act on her part could have caused the acid to drip onto the stomach of

[Savage].” Savage’s Brief at 27. Indeed, Savage analogizes her claim to one

in which a plumber, using acid to clear a drain, walks near a child and

inadvertently spills acid on the child. See id. at 26. She avers “[b]oth acts

are identical and neither one requires any medical expertise [to] come to the

conclusion that there was negligence on the part of the adult.” Id. at 27.

      We find Savage’s analogy misplaced.     As the trial court noted in its

opinion, “[b]oth the ordinary negligence claim and the medical malpractice

claim against [Jacobson] arose from the medical treatment of [Savage].” Trial

Court Opinion, 12/29/2017, at 11. Indeed, Savage averred the incident took

place in Jacobson’s office, where she “held herself out to the public as an

expert medical care provider in the area of dermatology, dermatologic

surgery, and associated treatments.” Complaint, 2/27/2015, at ¶ 8. With

regard to the ordinary negligence count, Savage averred Jacobson was

negligent for using TCA on a minor child absent, inter alia, taking proper

precautions, adopting policies regarding the use of acid on a minor, and using

                                    -9-
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reasonable care.      See id. at ¶ 53(a), (c), and (d).     Further, she asserted

Jacobson was negligent for “failing to properly apply the acid” and “generally

acting in a negligent, careless and reckless manner by applying [TCA] to the

body of a seven year old girl[.]” Id. at ¶ 53(e), (g). Here, the facts averred

in Savage’s complaint (and testified to during trial) demonstrate that Savage

was injured while undergoing a medical procedure performed by Jacobson, in

her capacity as a physician’s assistant. Whether or not Savage could prove

her claim absent expert testimony is a separate question.            We have no

hesitation in finding the trial court properly construed Savage’s claim to be

one of medical malpractice.

         Next, we will consider Savage’s first two issues. Savage contends the

trial court erred when it determined she could not invoke the doctrine of res

ipsa loquitur to establish her negligence claim.       See Savage’s Brief at 16.

Further, she insists in making that determination, the court also erred when

it considered whether her own conduct, as a seven-year-old patient, could

have been responsible for her injuries, when the law states, “[a] child between

the ages of 7 and 14 years of age is presumed incapable of negligence.” Id.

at 24.

         The doctrine of res ipsa loquitur permits an inference that harm suffered

by a plaintiff was caused by the defendant’s negligence when:

         (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

                                        - 10 -
J-A12017-18


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

Restatement (Second) of Torts § 328D(1) (1965). Furthermore, “[it] is the

function of the court to determine whether the inference may reasonably be

drawn by the jury, or whether it must necessarily be drawn.”                      Id. at §

328(D)(2).

       Although     a    medical     malpractice     action    usually   requires    expert

testimony,4 the doctrine of res ipsa loquitur may be invoked by a plaintiff,

obviating     the       need   for    an       expert,   “in    instances    of     obvious

negligence, i.e., circumstances in which the medical and factual issues

presented are such that a lay juror could recognize negligence just as well as

any expert.” Fessenden v. Robert Packer Hosp., 97 A.3d 1225, 1230 (Pa.

Super. 2014), appeal denied, 113 A.3d 280 (Pa. 2014). See id. (inference of

negligence under res ipsa loquitur doctrine warranted where a sponge was left

in patient’s abdomen following surgery); Quinby v. Plumsteadville Family

Practice, Inc., 907 A.2d 1061 (Pa. 2006) (plaintiff was entitled to inference

of negligence under res ipsa loquitur doctrine when quadriplegic patient, who

was left alone, fell off examination table; there was nothing to explain the fall,

and “[g]iven [plaintiff’s] full-body paralysis, all agree there was no way he

could have been responsible for his fall.”).
____________________________________________


4 “With all but the most self-evident medical malpractice actions there is [a]
requirement that the plaintiff must provide a medical expert who will testify
as to the elements of duty, breach, and causation.”               Quinby v.
Plumsteadville Family Practice, Inc., 907 A.2d 1061, 1070–1071 (Pa.
2006).


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     Here, the trial court concluded “the inference of res ipsa loquitur could

not reasonably have been drawn by the jury[.]”          Trial Court Opinion,

12/29/2017, at 15. The court opined:

     Unlike, for example, when a surgical sponge is left in a patient’s
     body following surgery, the jury in this matter is left to guess as
     to what caused the acid to spill as to the applicable standard of
     care. How is the jury to know how the TCA should be handled?
     How is the jury to know what strength the acid was and whether
     that strength called for a certain handling of the TCA? What
     instrument should be used to apply it? What distance should
     [Jacobson] have been from [Savage]? What type of container
     should have been used? Was this a substance known to cause
     burns or a substance that is commonly used during facials? Did
     [Jacobson] adhere to the standard of care in reacting to
     [Savage’s] poor tolerance for the procedure? There was no ability
     of the jury in this case to have [] completely understood the
     medical procedure without an expert. [Savage] would have liked
     the jury to infer that TCA must have been a highly dangerous
     solution and that [Jacobson] must not have handled it properly.
     However, this Court cannot permit such speculation. The use of
     an expert would have established the exact nature of the TCA and
     the standard of care to which [Jacobson] was required to adhere.
     Even if the jury could infer causation without expert testimony, a
     jury of laypersons lacked the knowledge to determine the degree
     of skill required of [Jacobson] and that there was a breach of a
     medical standard of care. The alleged negligence is not obvious,
     or so simple that ordinary experience would allow a jury to make
     such a determination without conjecture.

Id. at 15-16.

     In addition, the court found Savage “failed to establish that other

responsible causes were sufficiently eliminated by the evidence[,]” including

the conduct of Savage herself or her mother, who was restraining her. Id. at

16. The court explained that although there was testimony the acid and/or

applicator was knocked out of Jacobson’s hand during the procedure, no



                                   - 12 -
J-A12017-18



witness could state what caused that to happen. See id. at 17-18. Indeed,

the court found Savage’s injuries “could have been caused without any

negligence on the part of [Jacobson].” Id. at 16. Accordingly, the trial court

determined Savage “did not satisfy the necessary factors under the

Restatement to proceed under the doctrine of res ipsa loquitur.” Id. at 18.

      Savage insists, however, the trial court ignored “three salient facts[]:”

(1) the proof that TCA is a “highly dangerous solution,” as evident by the

permanent scars on Savage’s body; (2) Jacobson’s admission that she

“brought a glass bottle of acid in close proximity to a seven year old little girl,

who she knew from previous encounters was terrified of the process[;]” and

(3) Savage could establish Jacobson’s negligence “totally by circumstantial

evidence” and her burden of proof was only “by a fair preponderance of the

evidence.” Savage’s Brief at 17-19. Furthermore, Savage argues the trial

court improperly focused on “how the acid spilled,” when “[t]he real question

which was ignored by the trial judge, should include whether it was negligence

for [Jacobson] to carry a glass bottle of TCA over to a seven year old girl who

was already scared and upset, in the first place.” Id. at 19-20.

      We find no error on the part of the trial court in concluding that the facts

of this case do not support an inference of negligence under the res ipsa

loquitur doctrine. Although Savage focuses on her young age at the time of

the incident, she ignores the fact that Jacobson was performing a medical

procedure when the “dripping” occurred. Moreover, although acid might be

considered a dangerous solution when used in other circumstances, here, the

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J-A12017-18



TCA was used for a medical procedure in a medical office.5 Indeed, Savage’s

mother testified the dermatologist had performed the acid treatment on

Savage during a prior visit. See N.T., 6/20/2017, at 10. Therefore, we agree

with the trial court it was critical for Savage to provide expert testimony to

determine whether the use of TCA to treat molluscum contagiosum on a

seven-year-old was medically proper, and whether Jacobson’s protocol –

assuming, arguendo, she used the cotton end of the Q-tip stick to apply the

acid, and held a bottle of acid in her other hand – was appropriate under the

relevant standard of care. Jacobson’s admission that “[a]nytime you apply an

acid … to the skin” it will cause “inflammation,”6 is not proof that her use of

TCA for a medical procedure was negligent.         Accordingly, without expert

testimony, we find Savage failed to establish the first prong of the res ipsa

loquitur doctrine, that is, “the event is of a kind which ordinarily does not




____________________________________________


5  We note Savage also refers to the Restatement of Torts (First) § 835,
comment i, which she claims “sets forth the ‘highest duty of care’ standard”
when a person engages in an “inherently dangerous activity,” as well at the
accompanying suggested standard jury instruction. Savage’s Brief at 20-21,
citing Pa. SSJI (Civ) § 13.90 (2013). However, the comment specifically
states: “[t]he liability stated in this Section extends only to harm to another’s
interests in the use and enjoyment of land resulting from the dangerous
character of the activity and caused by the independent contractor’s failure to
exercise reasonable care to prevent it.” Restatement (First) of Torts § 835
(1939), Comment I (emphasis supllied). Accordingly, it is not applicable to
the facts herein.

6   N.T., 6/20/2017, at 170.


                                          - 14 -
J-A12017-18



occur in the absence of negligence[.]”          Restatement (Second) of Torts §

328D(1)(a).

         Moreover, we also agree with the trial court’s determination that Savage

failed to establish the second prong of the res ipsa loquitur test, i.e., that

“other responsible causes, including the conduct of the plaintiff and third

persons, are sufficiently eliminated by the evidence[.]” Id. at § 328D(1)(b).

See Trial Court Opinion, 12/29/2017, at 16-18.

         Savage insists that because a seven-year-old child cannot be

contributorily negligent, the trial court erred when it found her actions could

have caused the accident. See Savage’s Brief at 24-25. Moreover, she insists

she “only flailed in pain after [Jacobson] spilled acid on [her] stomach.” Id.

at 25.

         Savage correctly states that the negligence of a minor, who is between

the ages of seven and 14, is judged by a different standard than that of an

adult.

                Both an adult and a minor are under an obligation to
         exercise reasonable care; however, the ‘reasonable care’ required
         of a minor is measured by a different yardstick—it is that measure
         of care which other minors of like age, experience, capacity and
         development      would    ordinarily   exercise   under     similar
         circumstances. In applying that yardstick, we place minors in
         three categories based on their age: minors under the age of
         seven years are conclusively presumed incapable of negligence;
         minors over the age of fourteen years are presumptively capable
         of negligence, the burden being placed on such minors to prove
         their incapacity; minors between the ages of seven and fourteen
         years are presumed incapable of negligence, but such
         presumption is rebuttable and grows weaker with each year until
         the fourteenth year is reached.


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Kuhns v. Brugger, 135 A.2d 395, 401 (Pa. 1957) (footnotes omitted).

        Here, the trial court did not conclude Savage was contributorily

negligent in causing the accident. Rather, the court found that, under the res

ipsa loquitur standard, the evidence presented by Savage did not sufficiently

eliminate the conduct of others, including Savage (in flailing about) or her

mother (in attempting to restrain her), as a cause of the accident. Indeed,

both Mother and Grandmother testified that they did not see what caused the

spill,7 and Jacobson testified that Savage, herself, knocked the applicator out

of her hand when she “started flailing, kicking, [and] moving her arms.” N.T.,

6/20/2017, at 173.        We agree with the court’s interpretation that while a

seven-year-old minor is presumed incapable of negligence, her conduct may

be considered in determining whether the doctrine of res ipsa loquitur applies.

Further, even if we did not consider Savage’s conduct, the testimony at trial

did not eliminate the possibility that Mother may have bumped Jacobson’s arm

and caused the spillage. Accordingly, we agree with the conclusion of the trial

court that the facts of this case did not support an inference of negligence

under the res ipsa loquitur doctrine, and Savage was required to provide

expert testimony on the appropriate standard of care to prove Jacobson’s

liability.

        In her final issue, Savage insists the trial court erred when it granted

Jacobson’s oral motion for a nonsuit because the court did not view the

____________________________________________


7   See N.T., 6/20/2017, at 18, 82-83.

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J-A12017-18



evidence under the proper standard, that is, in a light most favorable to her,

as the plaintiff. See Savage’s Brief at 30. Our review of the record reveals

this particular argument, implying the trial court reviewed Jacobson’s motion

under an incorrect standard of review, was not raised in either Savage’s post-

trial motion or her concise statement.       See Motion for Post Trial Relief,

7/3/2017, at ¶¶ 19-29; Concise Statement of Matters Complained of on

Appeal, 11/27/2017, at ¶ D.      Rather, Savage’s argument concerning the

granting of the nonsuit focused on her insistence that she was entitled to an

inference of negligence under the res ipsa loquitur doctrine, a claim we have

already found to be meritless. See id. Accordingly, we conclude Savage’s

final argument is waived for our review. See Crespo v. Hughes, 167 A.3d

168, 181 (Pa. Super. 2017) (issue not included in post-trial motion is waived

for appeal purposes), appeal denied, 184 A.3d 146 (Pa. 2018); Pa.R.A.P.

1925(b)(4)(vii) (“Issues not included in the Statement … are waived.”).

      Therefore, finding Savage is entitled to no relief, we affirm the judgment

entered in favor of Jacobson.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/9/18




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