J-A24020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

NICHOLL JACKSON, AN INCAPACITATED               IN THE SUPERIOR COURT OF
PERSON BY HER COURT APPOINTED CO-                     PENNSYLVANIA
GUARDIANS, ARLENE HINKLE AND
THERESA CAINES

                            Appellants

                       v.

ALLEGHENY VALLEY SCHOOL

                            Appellee                No. 3042 EDA 2014


            Appeal from the Order Entered on September 25, 2014
             In the Court of Common Pleas of Philadelphia County
                Civil Division at No.: April Term, 2013 No. 5171


BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                         Filed December 18, 2015

       Nicholl Jackson’s court appointed co-guardians Arlene Hinkle and

Theresa Caines (collectively, “Appellants”) appeal the September 25, 2014

order granting summary judgment in favor of Allegheny Valley School

(“AVS”). We affirm.

       Nicholl Jackson suffers from profound intellectual disability.1 Jackson

is non-verbal and has a prior well-documented history of seizures,

____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
1
       Although the parties refer to Jackson’s condition as profound “mental
retardation,” see, e.g., Brief for Appellants at 5, we use the term
“intellectual disability” to describe the identical phenomenon. See Hall v.
Florida, 134 S. Ct. 1986, 1990 (2014) (noting that the most recent edition
(Footnote Continued Next Page)
J-A24020-15



maladaptive behaviors, and self-injury.               In March 2011, Jackson was

admitted to AVS, a non-profit residential facility for individuals with

intellectual   and     developmental       disabilities.   AVS   developed       multiple

treatment plans to manage Jackson’s various conditions and symptoms. For

example, AVS completed a psychotropic medication review plan on March

15, 2011, which provided as follows:

       [Jackson] is a 26-year-old female with profound [intellectual
       disability] and diagnoses of impulse control disorder and bipolar
       disorder.      Target behaviors include SIB [(self-injurious
       behavior)], physical aggression, [and] physical disruption. She
       is described as impulsive with variable moods.                She
       demonstrates self[-]injurious behaviors (striking self in face,
       scratching herself, and biting herself) multiple times daily. . . .
       [Jackson] also regularly demonstrates rectal digging, fecal
       smearing, pica,[2] and elopement.

AVS’   Motion    for    Summary       Judgment,      8/4/2014,   at   Exh.   Q    (minor

modifications for clarity).

       On March 21, 2011, AVS also developed a behavior management plan

targeted to Jackson’s pica. That plan called for Jackson to remain within a

five-foot radius of an AVS staff member during all waking hours so that she

                       _______________________
(Footnote Continued)

of the Diagnostic and Statistical Manual of Mental Disorders adopts this
terminology).
2
     Pica is defined as a tendency or craving to consume substances that
have no nutritional value. For example, persons with pica may consume
paper, clay, metal, chalk, soil, glass, or sand.       See Pica (disorder),
Wikipedia, https://en.wikipedia.org/wiki/Pica_(disorder) (last visited Dec. 8,
2015).



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J-A24020-15



could be reached quickly if she attempted to chew or ingest any non-edible

objects.

      Jackson’s self-injurious behavior continued after her admission to AVS.

On April 7, 2011, Jackson hit herself in the face with a cup at lunchtime,

resulting in a laceration and bruise on her eyelid. Id. at Exh. R. One week

later, an AVS nurse observed scattered bruises on Jackson’s arms, which

were consistent with self-injury. Id. at Exh. S. On May 4, 2011, Jackson

was seen by a physician after an AVS staff member noticed that Jackson’s

hand was swollen and that she had a bruise on her left cheek. Both injuries

were attributed to Jackson’s self-injury. Id. at Exh. T.

      On May 8, 2011, Appellants visited Jackson at AVS, and noticed

bruising on her face, arms, and breasts.       Jackson was taken to Nazareth

Hospital.   There, the emergency department physician noted bruising on

Jackson’s cheek, hand, chest, and lower legs, and scratch marks on

Jackson’s neck and back. The Philadelphia Police Department conducted an

investigation   into   Jackson’s   injuries   and   interviewed   multiple   AVS

employees, but did not file any criminal charges.

      On May 11, 2011, Appellants removed Jackson from AVS. On May 3,

2013, Appellants instituted this action against AVS on behalf of Jackson. In

their complaint, Appellants alleged that AVS agents and/or employees

abused and neglected Jackson during her residency at AVS, and that AVS

was negligent in failing to prevent that abuse and neglect.




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J-A24020-15



       On June 21, 2013, AVS filed notice of its intent to enter a judgment of

non pros due to Appellants’ failure to file a certificate of merit.3 In response,

Appellants filed a motion to determine whether a certificate of merit was

necessary in this case. Therein, Appellants explained as follows:

       There are no allegations in [Appellants’] complaint of any
       deviation in medical professional standards regarding the care
       and treatment of [Jackson], but to the contrary, the allegations
       “sound” in ordinary negligence based upon [AVS’] failure to
       supervise the care and treatment of [Jackson] in such a way that
       would prevent any physical assault.

                                         ****

       [Appellants’] only allegations are that [AVS] allowed [Jackson] to
       be assaulted and [that Jackson] suffered serious injury as a
       direct result thereof. . . . [Appellants’] complaint does not raise
       questions of medical judgment, medical care, or any actions
       involving    diagnosis,    care  and     treatment    by   licensed
       professionals.
____________________________________________


3
       Pa.R.C.P. 1042.3(a) requires plaintiffs in medical malpractice cases to
file a certificate of merit, stating that either:

       (1) an appropriate licensed professional has supplied a written
       statement that there exists a reasonable probability that the
       care, skill or knowledge exercised or exhibited in the treatment,
       practice or work that is the subject of the complaint, fell outside
       acceptable professional standards and that such conduct was a
       cause in bringing about the harm, or

       (2) the claim that the defendant deviated from an acceptable
       professional standard is based solely on allegations that other
       licensed professionals for whom this defendant is responsible
       deviated from an acceptable professional standard, or

       (3) expert testimony of an appropriate licensed professional is
       unnecessary for prosecution of the claim.

Pa.R.C.P. 1042.3(a).



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J-A24020-15



Appellants’ Motion to Determine the Necessity of Filing a Certificate of Merit,

7/1/2013, at 2-5 (emphasis in original). On August 15, 2013, the trial court

ruled that Appellants were not required to file a certificate of merit.

      On August 4, 2014, after the completion of discovery, AVS filed a

motion for summary judgment. In that motion, AVS argued that Appellants

failed to produce any evidence establishing a prima facie case of negligence.

AVS additionally argued that the immunity provisions of both the Mental

Health Procedures Act and the Mental Health and Intellectual Disability Act

preclude Appellants’ claims. See 50 P.S. §§ 7114 and 4603, respectively.

      On September 25, 2014, the trial court issued a memorandum opinion

and order granting AVS’ motion for summary judgment. Therein, the trial

court held that Appellants failed to demonstrate a prima facie case of

negligence. The court noted that, “other than conjecture, it does not appear

that any evidence has been put forth that any actual physical assault by a

third party took place.”    Trial Court Opinion (“T.C.O.”), 9/25/2014, at 1

(emphasis in original). The trial court also held that the doctrine of res ipsa

loquitur was not applicable to Appellants’ claim because they did not

establish that Jackson’s injuries were “[of] a sort that normally would not

have occurred in the absence of [AVS’] negligence.” Id. at 2.

      On October 16, 2014, Appellants filed a notice of appeal.           The trial

court did not order Appellants to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellants did

not file one.

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J-A24020-15



       Appellants present six issues for our consideration:

       1. Whether there is sufficient evidence in the pre-trial record
          that raise [sic] any genuine questions of material fact to allow
          this case to proceed to trial?

       2. Whether the doctrine of res ipsa loquitur is applicable?

       3. Whether there was sufficient evidence is [sic] the pre-trial
          record to establish causation?

       4. Whether this       case    is   one    of   ordinary   or   professional
          negligence?

       5. Whether the Mental Health Procedure Act or Mental Health
          Retardation Act are [sic] applicable?

       6. Whether Appellants could recover punitive damages?

Brief for Appellants at 4-5.4

       Appellants’ first four questions can be condensed into a single inquiry,

to wit, whether Appellants adduced evidence sufficient to establish a prima

facie case of negligence. Because we conclude that they did not, we need

not discuss Appellants’ fifth and sixth issues.

____________________________________________


4
      We have reordered Appellants’ issues for ease of disposition. We also
note that, although Appellants identify six distinct questions for our review,
they do not correspondingly divide the argument section of their brief into
six separate sections. Instead, Appellants’ argument section consists of five
sections, some of which do not parallel any of Appellants’ questions
presented. See, e.g., Brief for Appellants at 20 (section entitled “Nicholl
Jackson’s self[-]injurious behavior”).    Our Rules of Appellate Procedure
require that the argument section be “divided into as many parts as there
are questions to be argued.” Pa.R.A.P. 2119(a). Nonetheless, we will
exercise our discretion to overlook this procedural error because it does not
impede substantially our review of the merits of this appeal. See Pa.R.A.P.
105(a), 2101.



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J-A24020-15



      Our standard of review of a trial court’s order granting summary

judgment is well settled:

      A reviewing court may disturb the order of the trial court only
      where it is established that the court committed an error of law
      or abused its discretion. As with all questions of law, our review
      is plenary.

      In evaluating the trial court’s decision to enter summary
      judgment, we focus on the legal standard articulated in the
      summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
      where there is no genuine issue of material fact and the moving
      party is entitled to relief as a matter of law, summary judgment
      may be entered. Where the non-moving party bears the burden
      of proof on an issue, he may not merely rely on his pleadings or
      answers in order to survive summary judgment. 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 the moving party to judgment as a
      matter of law. Lastly, we will view the record in the light most
      favorable to the non-moving party, and all doubts as to the
      existence of a genuine issue of material fact must be resolved
      against the moving party.

JP Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1261-62 (Pa.

Super. 2013) (quoting Murphy v. Duquesne Univ. of the Holy Ghost,

777 A.2d 418, 429 (Pa. 2001)).

      It is axiomatic that the mere occurrence of an injury, standing alone,

is insufficient to establish a cognizable claim for negligence. McDonald v.

Aliquippa Hosp., 606 A.2d 1218, 1220 (Pa. Super. 1992). A plaintiff must

demonstrate the presence of a legal duty or obligation; a breach of that

duty; a causal link between that breach and the injury alleged; and actual

damage or loss suffered by the claimant as a consequence of thereof. Lux

v. Gerald E. Ort Trucking, Inc., 887 A.2d 1281, 1286 (Pa. Super. 2005).

                                    -7-
J-A24020-15



       Although Appellants take note of these elements, see Brief for

Appellants at 13, they do not point to any evidence of record that would

allow a jury to conclude that Appellants demonstrated each of those

elements. Instead, Appellants contend that the doctrine of res ipsa loquitur

would allow the jury “to infer that the harm suffered was caused by the

negligence of [AVS].” Id. at 14. We disagree.

       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, the doctrine of res ipsa

loquitur5 allows a fact-finder to infer from the circumstances surrounding the

injury that the harm suffered was caused by the negligence of the

defendant. Jones v. Harrisburg Polyclinic Hosp., 437 A.2d 1134, 1137

(Pa. 1981). The doctrine applies whenever:

       (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.




____________________________________________


5
     The phrase res ipsa loquitur, translated from Latin, means “the thing
speaks for itself.” Black’s Law Dictionary (9th ed. 2009).



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J-A24020-15



Restatement (Second) of Torts § 328D(1) (1965); Gilbert v. Korvette,

Inc., 327 A.2d 94, 100 (Pa. 1974) (adopting the Restatement’s formulation

of res ipsa loquitur).

       Res ipsa loquitur merely is a shorthand expression for a rule of

evidence that allows a jury to infer negligence and causation where the

injury at issue is one that does not ordinarily occur in the absence of

negligence. Bearfield v. Hauch, 595 A.2d 1320, 1322 (Pa. Super. 1991).

Although res ipsa loquitur was intended to be a “far more realistic, logical,

and orderly approach to circumstantial proof of negligence,” Gilbert, 327

A.2d at 100, it has caused significant confusion.6        Stated simply, where a

plaintiff proves all three of section 328D’s elements, the question of whether

an inference of negligence should be drawn is for the jury.            Leone v.

Thomas, 630 A.2d 900, 901 (Pa. Super. 1993) (citing Restatement

§ 328D(3)).

       Here, Appellants’ discussion of section 328D’s requirements consists

entirely of conclusory assertions.         For example, Appellants maintain that,


____________________________________________


6
      See William L. Prosser, Handbook of the Law of Torts § 39, at 213
(4th ed. 1971) (“Res ipsa loquitur . . . has been the source of so much
trouble to the courts that the use of the phrase itself has become a definite
obstacle to any clear thought, and it might better be discarded entirely.”)
(footnote omitted)); Potomac Edison Co. v. Johnson, 152 A. 633, 636
(Md. 1930) (Bond, C.J., dissenting) (“It adds nothing to the law, has no
meaning which is not more clearly expressed for us in English, and brings
confusion to our legal discussions.”).




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J-A24020-15



“[t]ypically, severe injuries to [incapacitated] person[s] do not occur absent

some negligence.”     Brief for Appellants at 15.    However, it is less clear

whether a person with Jackson’s medical history, which includes an

extensive and well-documented pattern of self-injury, normally would suffer

bodily injury absent the negligence of her caregivers. As explained supra,

res ipsa loquitur allows a fact-finder to infer negligence only in the most

obvious cases, where “the medical and factual issues presented are such

that a lay juror could recognize negligence just as well as any expert.”

Jones, 437 A.2d at 1137.       This is not such a case.     Cf. Fessenden v.

Robert Packer Hosp., 97 A.3d 1225, 1231 n.7 (Pa. Super. 2014), appeal

denied, 113 A.3d 280 (Pa. 2015) (holding that a jury can conclude, “as a

matter of general knowledge,” that laparotomy sponges are not left inside of

a patient’s abdomen after surgery absent negligence).

       Moreover, Appellants cannot rely upon res ipsa loquitur because they

failed to eliminate “other responsible causes, including the conduct of the

plaintiff.”   Restatement (Second) of Torts § 328D(1) (1965).                The

Restatement explains as follows:

       It is never enough for the plaintiff to prove that he was injured
       by the negligence of some person unidentified.          It is still
       necessary to make the negligence point to the defendant. On
       this too the plaintiff has the burden of proof by a preponderance
       of the evidence; and in any case where there is no doubt that it
       is at least equally probable that the negligence was that of a
       third person, the court must direct the jury that the plaintiff has
       not proved his case. Again, however, the plaintiff is not required
       to exclude all other possible conclusions beyond a reasonable
       doubt, and it is enough that he makes out a case from which the


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J-A24020-15


      jury may reasonably conclude that the negligence was, more
      probably than not, that of the defendant.

Restatement (Second) of Torts § 328D, cmt. f (1965).

      In Quinby v. Plumsteadville Family Practice, Inc., 907 A.2d 1061

(Pa. 2006), our Supreme Court applied res ipsa loquitur to a case involving a

quadriplegic patient who was left unaccompanied on a medical examination

table, which lacked safety rails or other restraints, after a surgical

procedure. The plaintiff fell from the examination table and suffered severe

injuries, which purportedly resulted in his death. Finding that the evidence

sufficiently eliminated other responsible causes of the plaintiff’s injuries, the

Quinby Court explained as follows:

      [T]he critical inquiry as to whether this subsection of § 328D is
      satisfied is whether a particular defendant is the responsible
      cause of the injury. Jones, 437 A.2d at 1139.

      It is undisputed that there is no explanation for Decedent’s fall
      beyond Defendants’ negligence.        No one else entered the
      examination room; the table did not break; nothing fell on or
      near it; there was no seismic disturbance in the area, etc. Given
      Decedent’s full-body paralysis, all agree that there was no way
      he could have been responsible for his fall. Indeed, his condition
      made it impossible for him to even understand how or why he
      fell. Thus, Quinby has established that the fall is not the type of
      event that occurs in the absence of negligence, and that there is
      no explanation other than Defendants’ negligence for the fall.

Quinby, 907 A.2d at 1072-73 (some citations omitted).

      Even when viewed in the light most favorable to Appellants, the

evidentiary record before us falls far short of establishing that AVS more

probably than not was negligent.         Appellants’ expert stated only that



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J-A24020-15



Jackson’s injuries were caused by blunt trauma.       He could not determine

whether Jackson’s injuries were the result of abuse or neglect, or whether

they were self-inflicted. Unlike in Quinby, where it was undisputed that no

explanation other than the defendant’s negligence existed, Appellants’ own

evidence clearly leaves open the possibility that Jackson’s injuries were self-

inflicted.   Because Appellants have not eliminated all “other responsible

causes, including the conduct of the plaintiff,” as is required by section 328D

of the Restatement, the trial court held correctly that the doctrine of res ipsa

loquitur was not applicable to Appellants’ claims.

       Finally, Appellants argue that the trial court erred in entering summary

judgment because AVS is liable for Jackson’s injuries regardless of their

genesis. Appellants contend that, “while it could be determined by the jury

that the injuries were the result of self-injurious behavior, this would

nonetheless mean that AVS was negligent in permitting [Jackson] to injure

herself.” Brief for Appellants at 15. This argument is unavailing, for several

reasons. First, Appellants have offered no expert evidence to establish the

applicable standard of care under these circumstances.7 Second, Appellants

____________________________________________


7
      Throughout their brief, Appellants imply that AVS had a duty to
monitor Jackson one-on-one and to remain within a five-foot radius of
Jackson at all waking hours. This language is found within multiple internal
behavior management plans, which AVS drafted and used as a tool to
monitor Jackson’s several coexisting behavioral disorders. Appellants have
not demonstrated that AVS’ internal treatment plans are illustrative of the
standard of care required under the circumstances, and, more importantly,
(Footnote Continued Next Page)


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J-A24020-15



have not produced any evidence that AVS deviated from that standard of

care.    Third, since the earliest stages of this litigation, Appellants have

maintained that their claims do not implicate AVS’ care and treatment of

Jackson.     Indeed, Appellants bypassed the requirement that plaintiffs in

medical malpractice cases file a certificate of merit by arguing that:

        [t]here are no allegations in [Appellants’] complaint of any
        deviation in medical professional standards regarding the care
        and treatment of [Jackson], but to the contrary, the allegations
        “sound” in ordinary negligence based upon [AVS’] failure to
        supervise the care and treatment of [Jackson] in such a way that
        would prevent any physical assault.

                                          ****

        [Appellants’] only allegations are that [AVS] allowed [Jackson] to
        be assaulted and [that Jackson] suffered serious injury as a
        direct result thereof. . . . [Appellants’] complaint does not raise
        questions of medical judgment, medical care, or any actions
        involving    diagnosis,    care  and     treatment    by   licensed
        professionals.

Appellants’ Motion to Determine the Necessity of Filing a Certificate of Merit,

7/1/2013, at 2-5 (emphasis in original). Now, before this Court, Appellants

endeavor to prosecute a professional liability claim against AVS. However,

this theory of liability, just like Appellants’ ordinary negligence claim, lacks

any evidentiary support.

        Appellants work backwards from the premise that AVS must be liable

for Jackson’s injuries because those harms occurred during Jackson’s
                       _______________________
(Footnote Continued)

Appellants have failed to adduce any evidence of AVS’ noncompliance with
its behavior management plans.



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J-A24020-15



residency at AVS. However, it is well settled that the mere occurrence of an

injury, standing alone, is insufficient to establish a cognizable claim for

negligence.   McDonald, 606 A.2d at 1220. “In fact, the trial court has a

duty to prevent questions from going to the jury which would require it to

reach a verdict based on conjecture, surmise, guess or speculation.”

Krauss v. Trane U.S. Inc., 104 A.3d 556, 568 (Pa. Super. 2014). Based

upon the factual inadequacies of the record in this case, the trial court did

not err in concluding that AVS was entitled to judgment as a matter of law.

See Murray, 63 A.3d at 1261 (“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 the moving party to

judgment as a matter of law.”).

     Order affirmed.

     Judge Panella joins the memorandum.

     Judge Strassburger files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/18/2015




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