J-A21037-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JEAN-GILLES THIBAULT AND GLORIA                  IN THE SUPERIOR COURT
THIBAULT, HIS WIFE                                         OF
                                                      PENNSYLVANIA
                         Appellants

                    v.

NANCY KERR

                         Appellee                   No. 596 WDA 2017


                 Appeal from the Order entered April 11, 2017
              In the Court of Common Pleas of Allegheny County
                       Civil Division at No: GD16-5536


BEFORE: BENDER, P.J.E., OLSON, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                          FILED MARCH 9, 2018

     Appellants, Jean-Gilles Thibault (“Jean-Gilles”) and Gloria Thibault, his

wife, appeal from the order entered on April 11, 2017 in the Court of Common

Pleas of Allegheny County, granting summary judgment in favor of Appellee,

their next-door neighbor, Nancy Kerr (“Nancy”).        Following review, we

reverse.

     In Summers v. Certainteed Corp., 997 A.2d 1152 (Pa. 2010), our

Supreme Court explained:

     As has been oft declared by this Court, “summary judgment is
     appropriate only in those cases where the record clearly
     demonstrates that there is no genuine issue of material fact and
     that the moving party is entitled to judgment as a matter of law.”
     Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 812
     A.2d 1218, 1221 (2002); Pa. R.C.P. No. 1035.2(1). When
     considering a motion for summary judgment, the trial court must
     take all facts of record and reasonable inferences therefrom in a
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         light most favorable to the non-moving party.             Toy v.
         Metropolitan Life Ins. Co., 593 Pa. 20, 928 A.2d 186, 195
         (2007). In so doing, the trial court must resolve all doubts as to
         the existence of a genuine issue of material fact against the
         moving party, and, thus, may only grant summary judgment
         “where the right to such judgment is clear and free from all
         doubt.” Id. On appellate review, then,

            an appellate court may reverse a grant of summary
            judgment if there has been an error of law or an abuse of
            discretion. But the issue as to whether there are no genuine
            issues as to any material fact presents a question of law,
            and therefore, on that question our standard of review is de
            novo. This means we need not defer to the determinations
            made by the lower tribunals.

         Weaver v. Lancaster Newspapers, Inc., 592 Pa. 458, 926 A.2d
         899, 902–03 (2007) (internal citations omitted). To the extent
         that this Court must resolve a question of law, we shall review the
         grant of summary judgment in the context of the entire record.
         Id. at 903.

Id. at 1159.

         As reflected in the above passage, the trial court is to take all facts, as

well as reasonable inferences from those facts, in the light most favorable to

Appellants as the non-moving parties. In their brief in opposition to Nancy’s

summary judgment motion, Appellants include the factual background of the

case.     Appellants’ Brief in Opposition to Motion for Summary Judgment,

4/3/17, at 2-3.      Based on our review, we find that Appellants’ summary

adequately presents the facts of record in a light most favorable to Appellants.

Therefore, we repeat here the factual background as set forth in Appellants’

brief.

         [Jean-Gilles], at the time 73 years old, was a neighbor of Lucille
         Kerr, ("Mrs. Kerr") who was 92.[fn]       [Nancy] is Mrs. Kerr’s

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     daughter, both of whom lived together on the property located at
     45 Oakland Street, Etna, Allegheny County, Pennsylvania 15223.
     [Jean-Gilles] testified that on April 11, 2015, Mrs. Kerr requested
     that he come onto her property to cut a limb off of a tree in her
     back yard which was in danger of falling. [Jean-Gilles] brought a
     ladder to assist him in the cutting of the branch. After climbing
     the ladder, [Jean-Gilles] was approximately ten (10) or twelve
     (12) feet off the ground. While he was in the course of cutting
     the branch, for reasons unknown to [Appellants], [Nancy] started
     to walk toward the tree and headed under the branch [Jean-Gilles]
     was cutting. Concerned that she would be injured if the limb he
     was cutting fell, [Jean-Gilles] testified that he called to her and
     made a motion with his hand for her to move out of the way. As
     he was doing so, he lost his balance and fell off the ladder. His
     injuries included eight (8) broken ribs. He was hospitalized for
     five (5) days.

     In her deposition, [Nancy] testified that she told [Jean-Gilles] that
     she did not want him to cut the branch and he responded "get
     away you are going to get hurt." [Nancy] testified that she told
     [Jean-Gilles] she did not want the branch cut down because she
     did not want him to fall and because there was nothing wrong with
     the branch. She testified she did not know how far away she was
     from him at the time he warned her to stay away and that she did
     not see him fall. [Nancy] admitted that she never told [Jean-
     Gilles] to get off the property nor did she tell him he was
     trespassing. She assumed [Jean-Gilles] had a discussion with her
     mother about cutting the branch.

     In a tape recorded statement, however, [Nancy] stated the
     following:

        He came over and he wanted to cut down a branch which I
        didn't want down. He brought his ladder over anyway, and
        he sat it on the tree. He climbed up the ladder and told me
        to get away. I was holding the ladder. The branch is
        only like about two or three inches long or thick. He didn't
        have it tied down and then he just fell with the ladder on his
        back and then I called 911 to get help.

     [Appellants’] Complaint alleged, inter alia, the following acts of
     negligence on the part of [Nancy]: (a) distracting [Jean-Gilles]
     while he was attempting to cut/remove the tree limb; (b) causing


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      [Jean-Gilles] to be distracted while on the ladder; and (c) causing
      [Jean-Gilles] to fall from the ladder.
            fn
                 Mrs. Kerr passed away before litigation commenced.

Id. (references to deposition transcript and recorded statement omitted;

emphasis in original).

      After the pleadings were closed and discovery was completed, Nancy

filed her motion for summary judgment, asserting Appellants could not

produce any evidence of any duty owed by Nancy to Jean-Gilles or any

evidence of any negligent conduct on Nancy’s part that contributed to the

accident.        Motion for Summary Judgment, 1/15/17, at ¶ 12. She claimed

there were no material facts in dispute and she was entitled to judgment as a

matter of law. Id. at ¶ 13.

      In response, Appellants argued that a reasonable jury could find that

Nancy owed a duty not to distract Jean-Gilles while he was on the ladder and

that Nancy’s actions were a proximate cause of Jean-Gilles’ fall. Appellants’

Brief in Opposition to Motion for Summary Judgment, 4/3/17, at 5-10.

      On April 11, 2017, in a one-page order devoid of legal citation, the trial

court granted summary judgment in favor of Nancy, stating:

      [U]pon consideration of the entire record and viewing the
      evidence in the light most favorable to [Appellants], [Nancy’s]
      Motion for Summary Judgment is granted. Regardless of whether
      [Nancy] owed a duty to [Jean-Gilles] and regardless of which
      version of this unfortunate accident the jury would accept, the jury
      could not reasonably find that approaching and addressing a man
      standing 10-12 feet above ground on a ladder constitutes
      negligent conduct.      Nor could the jury reasonably find such
      conduct to be a factual cause of the accident.          Assuming,


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       arguendo, the jury could reasonably find that [Nancy] was holding
       the ladder at the time of the accident (which [Jean-Gilles] denies),
       there is no evidence that the manner in which she did so caused
       him to fall from the ladder. There is no genuine issue of material
       fact as to negligence or causation. All claims against [Nancy] are
       dismissed with prejudice.

Order, 4/11/17, at 1.

       Appellants filed a timely appeal from the April 11 order.1 They ask this

Court to consider one issue:

       Whether, when viewing the evidentiary record in the light most
       favorable to [Appellants] and resolving all doubts against the
       moving party, the trial court erred in concluding that no genuine
       issues of material fact existed as to whether [Nancy] owed a duty
       to [Jean-Gilles] and whether her actions were the proximate cause
       of his injuries?

Appellants’ Brief at 4.

       Appellants contend the trial court erred in determining there was no

genuine issue of material fact as to negligence or causation. As to negligence,

they reiterate that Nancy was negligent for distracting Jean-Gilles while he

was attempting to cut the tree limb, for causing Jean-Gilles to be distracted

while on the ladder, and for causing Jean-Gilles to fall from the ladder.

Appellants’ Brief at 7 (citing Complaint at ¶ 22 (a)-(c)). Appellants recognize



____________________________________________


1 The trial court did not direct Appellants to file a statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial court did
not issue a separate opinion in accordance with Pa.R.A.P. 1925(a), but instead
entered an order on April 24, 2017, indicating that the reasons for entry of
the April 11, 2017 order appear of record in the order itself. Order, 4/24/17,
at 1 (citing Pa.R.A.P. 1925(a)(1)).


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that the elements of a negligence cause of action include (1) a duty recognized

by law requiring the defendant to conform to a certain standard of conduct to

protect others from unreasonable risks; (2) the defendant’s failure to conform

to the required standard; (3) a causal connection between the conduct and

the harm; and (4) actual loss or damages.        Id. at 10 (citing R.W. v. Manzek,

888 A.2d 740, 746 (Pa. 2005)). They contend that all elements exist here.2

       In Walters v. UPMC Presbyterian Shadyside, 144 A.3d 104 (Pa.

Super. 2016), this Court reiterated:

       To establish a common law cause of action in negligence, a
       plaintiff must demonstrate 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. Lux v. Gerald E. Ort Trucking, Inc.,
       887 A.2d 1281, 1286 (Pa. Super. 2005). “[A] duty or obligation
       recognized by the law, requiring the actor to conform to a certain
       standard of conduct[,]” is the first element of negligence.
       Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 812
       A.2d 1218, 1222 (2002). Whether a duty of care exists is a
       question of law assigned initially to the trial court and subject to
       plenary review on appeal. Winschel v. Jain, 925 A.2d 782, 796
       (Pa. Super. 2007); Sharpe v. St. Luke's Hosp., 573 Pa. 90,
       821 A.2d 1215, 1219 (2003). Where, however, the plaintiff
       makes a prima facie showing of a duty, the applicable standard
       of care, whether it was breached, and whether the breach was a
       cause in fact of the injury are questions of fact for the jury. K.H.
       ex rel. H.S. v. Kumar, 122 A.3d 1080, 1094 (Pa. Super. 2015).

Id. at 113. Quoting Althaus ex rel. Althaus v. Cohen, 756 A.2d 1166,

1168-69 (Pa. 2000), we acknowledged that “the concept of duty amounts to



____________________________________________


2 Nancy does not dispute that Jean-Gilles was injured because of his fall. She
disputes the first three elements.

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no more than the sum total of those considerations of policy which led the law

to say that the particular plaintiff is entitled to protection from the harm

suffered[.]” Id. (internal quotations and citation omitted).

      The Althaus Court identified five factors to be weighed in determining

whether a duty exists in a particular case, noting that courts are not required

to weigh each factor equally and further that no one factor is dispositive. Id.

at 113-14 (citing Althaus, 756 A.2d at 1168-69). The five factors include the

relationship between the parties, the social utility of the actor’s conduct, the

nature of the risk imposed and foreseeability of the harm incurred, the

consequences of imposing a duty upon the actor, and the overall public

interest in the proposed solution. Id. Further:

      “[A] duty will be found to exist where the balance of these factors
      weighs in favor of placing such a burden on a defendant.” Phillips
      v. Cricket Lighters, 576 Pa. 644, 841 A.2d 1000, 1008–09
      (2003). “Whether a duty exists is ultimately a question of
      fairness.” Campo v. St. Luke's Hosp., 755 A.2d 20, 24 (Pa.
      Super. 2000).

Id. at 114.

      Although Appellants address the relationship between Jean-Gilles and

Nancy and suggest a duty based on his status as either an invitee or licensee,

Appellants’ Brief at 14-15, we find any such analysis unnecessary for purposes

of our review. Mrs. Kerr, not Nancy, owned the property. However, Appellants

also maintain that Nancy owed a general duty of care to Jean-Gilles, as

addressed in the Restatement (Second) of Torts § 302A. That section provides

that an act may be negligent “if the actor realizes or should realize that it

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involves an unreasonable risk of harm to another through the negligence or

reckless conduct of the other of a third person.” Id. Likewise, § 303 of the

Restatement is instructive. That section provides that “[a]n act is negligent if

the actor . . . should realize that it is likely to affect[] the conduct of another

. . . in such a manner as to create an unreasonable risk of harm to the

other.” Restatement (Second) of Torts § 303.

      Appellants argue Nancy was negligent for failing to take Jean-Gilles’

situation and personal qualities, especially his age, into account when she

walked toward him while he was on the ladder. They contend she should have

realized the risk of harm she created by doing so. Appellants’ Brief at 16-17.

“Clearly, pursuant to [§ 303], a reasonable jury could find [Nancy’s conduct]

here, unnecessarily and unreasonably walking towards an elderly man

precariously perched upon a ladder, and heading under the soon-to-be-falling

branch, . . . negligent.” Id. at 18. “[E]ven though she did not intend him

to fall, she provided the stimulus to make him react in such a manner as to

make the fall more likely. Thus, duty should be imposed.” Id. We agree.

“[N]egligence need not be proved by direct evidence, but may be inferred

from attendant circumstances if the facts and circumstances are sufficient to

reasonable and legitimately impute negligence.” Miller v. Hickey, 81 A.2d

910, 914 (Pa. 1951).

      As for causation, the issue of causation is generally a matter for the

jury. As our Supreme Court recognized in Ford v. Jeffries, 379 A.2d 111


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(Pa. 1977), “[t]he determination of whether the conduct of the defendant was

a substantial cause or an insignificant cause of plaintiff’s harm should not be

taken from the jury if the jury may reasonably differ as to whether the conduct

of the defendant was a substantial cause or an insignificant cause.”     Id. at

114 (citing Restatement (Second) of Torts § 434(1)(a)).         We agree with

Appellants that it is for the jury to decide whether Nancy’s conduct was a

substantial cause or an insignificant cause of the harm suffered by Jean-Gilles.

      In his deposition, Jean-Gilles testified as follows:

      My cut was almost done, and when she came in toward me, and I
      told[] Nancy, I say, move out of the way, move out of the way,
      that branch gonna fall. It’s almost ready to fall. And when I say
      “move out of the way,” I motion like that (indicating). This is why
      I lost the balance and I move, I spin around, and I fall on my back
      about 12 feet, you know.”

Deposition of Jean-Gilles Thibault, 9/15/16, at 17.      He explained he “was

afraid the branch was going to fall on her head.” Id. at 19.

      The trial court was charged with viewing “all facts of record and

reasonable inferences therefrom in a light most favorable to the non-moving

party.”   Summers, 997 A.2d at 1159.             Nevertheless, the trial court

determined “the jury could not reasonably find that approaching and

addressing a man standing 10-12 feet above ground on a ladder constitutes

negligent conduct. Nor could the jury reasonably find such conduct to be a

factual cause of the accident.” Order, 4/11/17, at 1. These conclusions by

the trial court do not consider all facts surrounding this accident, at least as

maintained by Jean-Gilles, when viewed most favorably to him. A jury might

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very well consider that Nancy’s approach under the tree limb that Jean-Gilles

was cutting, and which was about to fall, was conduct that affected Jean-Gilles

and created an unreasonable risk of harm to him so as to sustain an action in

negligence. Consequently, we conclude the trial court committed error of law

by granting summary judgment in Nancy’s favor and dismissing Appellants’

claims with prejudice. Therefore, we reverse the April 11, 2017 order and

remand for further proceedings.

      Order reversed. Case remanded. Jurisdiction relinquished.

      Judge Olson joins this memorandum.

      President Judge Emeritus Bender files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2018




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