J-A01016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    MICHAEL J. LATTARI ADMINISTRATOR                 IN THE SUPERIOR COURT
    OF THE ESTATE OF NICHOLAS L.                               OF
    LATTARI, SR., DECEASED                                PENNSYLVANIA

                             Appellant

                        v.

    3180 MJT CORP., D/B/A ALBERT’S CAFÉ,

                             Appellee                    No. 959 EDA 2017


                   Appeal from the Order September 9, 2016,
                  as made final by the Order of March 10, 2017
              in the Court of Common Pleas of Philadelphia County
                        Civil Division at No.: 140900773


BEFORE: LAZARUS, J., OTT, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                   FILED MAY 04, 2018

        Appellant, Michael J. Lattari as administrator of the estate of Nicholas L.

Lattari, Sr., appeals from the order of September 9, 2016, as made final by

the order of March 10, 2017, which granted the motion of Appellee, 3180 MJT

Corp., d/b/a Albert’s Café, for summary judgment in this premises liability

action.1 For the reasons discussed below, we affirm.




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1On April 25, 2014, the parties stipulated to the removal of defendant Indiana
Lumberman’s Mutual Insurance Company from the action. Thus, it is not a
party to this appeal.
J-A01016-18


      We take the underlying facts and procedural history in this matter from

the trial court’s August 17, 2017 opinion and our independent review of the

certified record.

            On February 16, 2013, Nicholas L. Lattari, Sr.
      ([“decedent”]) was working as a disc jockey at 3180 MJT Corp.,
      d/b/a Albert’s Café (“Albert’s Café”). [Decedent] was then a 76-
      year-old man with a medical history of myocardial infarction,
      hypertension,    and     percutaneous    transluminal   coronary
      intervention.

              Prior to starting his work, [decedent] walked to the kitchen
      of Albert’s Café and asked Cesar Lopez, a maintenance worker, to
      help him move his DJ equipment. Lopez directed [decedent] to a
      storage room on the first floor, which contained a mobile lift.
      Lopez then directed [decedent] to load his DJ equipment onto the
      lift and then to send the lift to the second floor. Lopez ascended
      the steps to the second floor with [decedent], helped him remove
      his DJ equipment, and descended the steps to the first floor with
      him. Lopez removed the key from the lift’s ignition and left the
      lift in a raised position. The lift would not operate or move without
      the key. Lopez left [decedent] and did not see him again.

             At some time later, [decedent] fell and struck his head,
      which resulted in a fracture of his skull. No one witnessed
      [decedent’s] fall or how he injured himself. The evidence of record
      is replete with varying statements attributed to [decedent] as to
      how he fell. See, e.g., Ex. “I”, EMS Report (“Pt. stated he was on
      an electric lift and jumped off and felt a jolt.”); Ex. “J”, Pulmonary
      Consult Note (“fell down 4 steps”); Ex. “K”, Trauma History Note
      at 1 (“fell 4 steps, doesn’t remember what happened”); Ex. “L”,
      Aria Trauma Record at 4 (“fall 4 steps”); Ex. “M”, ER Note at 5
      (“brought in . . . after falling off 4-5 ft. lift”); and Ex. “Q”, Kindred
      Hospital Note (“A piece of sound equipment fell on him.”).[a]

            [a]For purposes of deciding [Appellee’s] motion for
            summary judgment, the trial court assumed that
            [decedent’s] statements to [his girlfriend, Elizabeth]
            Bodkin were excited utterances under Pa.R.E. 803(2),
            and that [decedent’s] statements in the medical
            records were statements made for medical treatment
            pursuant to Pa.R.E. 803(4).

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J-A01016-18



             After [decedent’s] fall, waitress Peggy Miller discovered
     [him] sitting in a booth. Miller noticed that [decedent] did not
     seem well and called his girlfriend, Elizabeth Bodkin, who came to
     Albert’s Café and called 911. [Decedent] stated to Bodkin that he
     fell from the lift.

           [Decedent] was taken from Albert’s Café to the Emergency
     Department at Aria Hospital-Torresdale by the Philadelphia Fire
     Department’s Emergency Medical Service.         At Aria Hospital,
     Bodkin noticed that the insides of [decedent’s] shoes were “gritty
     and wet.” [Decedent] underwent an emergency craniotomy due
     to the extensive hemorrhaging and swelling inside his skull.
     [Decedent] did not regain consciousness after the craniotomy and
     was placed on a ventilator. [Decedent] remained unconscious and
     on the ventilator until April 14, 2013, when he passed away.

            As explained earlier, no one witnessed [decedent’s] fall or
     how he injured himself. There is also no direct evidence as to (1)
     the condition of the lift at the time he fell, (2) when [his] shoes
     became wet, i.e., before or after he fell, (3) how [his] shoes
     became wet, and (4) what was the source of water that made
     [his] shoes wet, i.e., was it from rain outside Albert’s Café or was
     it from water that accumulated somewhere inside Albert’s Café.

             In opposition to [Appellee’s] motion for summary judgment,
     [Appellant] submitted an expert report prepared by Richard A.
     Kennedy & Associates. In that report, [Appellant’s] expert opined
     that [Appellee] had routinely used the mobile lift to move material
     from the first floor to the second floor. The expert could not find
     any evidence that [Appellee] performed any maintenance on the
     lift after purchasing it in 2007.

           Among other things, [Appellant’s] expert opined that:

           • [Appellee’s] operation and maintenance of the lift
           deviated from the recommended standards of care set
           forth in the lift’s operation and safety manual.

           • [Appellee] operated the lift in an unsafe work area
           with debris on the floor, with unsafe clearances
           around the lift, and under the supervision of untrained
           individuals.


                                    -3-
J-A01016-18


             • [Appellee] maintained the lift so that its platform
             was not level and its platform was damaged. The lift
             also lacked stabilizer outriggers, a working tilt-
             warning system, and guardrails.

             • A puddle of water surrounded the lift at the time of
             the fall.

      [Appellant’s] expert did not offer any opinion as to the cause of
      [the decedent’s] fall, i.e., the deviation from the standard of care
      in the operation and maintenance of the lift, the unsafe operation
      of the lift, water surrounding the lift, or the lack of safety
      equipment on the lift.        Instead, [Appellant’s] expert simply
      concluded had the “lift been used in the responsible recommended
      manner, in proper operating condition, and with the necessary
      operator training, this incident would not have happened.”

            Notably, [Appellant’s] expert was not qualified as an expert
      on the slipperiness of surfaces including the lift, water or leather
      shoes and did not offer any expert opinions thereon including the
      degree of slipperiness and the coefficient of friction.

(Trial Court Opinion, 8/17/17, at 1-4) (some record citations and subheadings

omitted).

      On September 5, 2014, Appellant commenced the instant action.

Thereafter, Appellee filed an answer. Appellant settled the action with co-

defendant Mobile Lifts, Incorporated.    On August 1, 2016, Appellee filed a

motion for summary judgment. Appellant filed an answer on August 31, 2016.

The trial court granted Appellee’s motion on September 9, 2016.              On

September 19, 2016, Appellant filed a motion for reconsideration and a notice

of appeal.    On October 19, 2016, the trial court denied the motion for

reconsideration and, in a separate order, directed Appellant to file a concise

statement of errors complained of on appeal. See Pa.R.A.P. 1925(b). On


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J-A01016-18


November 2, 2016, the trial court issued an order deeming the September 9,

2016 order to be a final order. On November 8, 2016, Appellant filed a timely

Rule 1925(b) statement. See id. On March 10, 2017, the trial court issued

an order approving the settlement between Appellant and Mobile Lifts, Inc.,

which dismissed all remaining parties except Appellee. On March 13, 2017,

Appellant filed a timely notice of appeal. On August 17, 2017, the trial court

issued an opinion. See Pa.R.A.P. 1925(a).

      On appeal, Appellant raises the following questions for our review.

             1. Did the [t]rial [c]ourt err as a matter of law in granting
      summary judgment to [Appellee] in a premises liability action,
      when it weighed the evidence, served as a fact finder, and held
      that there was insufficient circumstantial evidence to conclude a
      puddling condition surrounding a scissor lift, which the [d]ecedent
      would have had to walk through to access the lift, was a
      substantial factor in causing his fall from the lift which lead (sic)
      to his death?

             2. Did the [t]rial [c]ourt err as a matter of law in granting
      summary judgment to [Appellee] in a premises liability action,
      holding [Appellee’s] (who admitted having no knowledge of the
      proper methods to use this dangerous scissor lift) failure to warn,
      train, or restrict the [decedent] from accessing the lift was [not]
      a substantial factor in causing the [d]ecedent’s fall from the lift
      which lead (sic) to his death?

             3. Did the [t]rial [c]ourt err as a matter of law in granting
      summary judgment to [Appellee] in a premises liability action
      when it held [Appellant’s] expert did not express a factually
      sufficient opinion on causation because he did not cite to any
      violations of the product manual as being a cause of the
      [d]ecedent’s fall from the lift which caused his death, when in fact
      [Appellant’s] expert did express that very opinion?

(Appellant’s Brief, at 5-6).




                                      -5-
J-A01016-18


     In each of the issues on appeal, Appellant challenges the trial court’s

grant of summary judgment. We note our standard of review.

            Our scope of review of an order granting summary judgment
     is plenary. We apply the same standard as the trial court,
     reviewing all the evidence of record to determine whether there
     exists a genuine issue of material fact. We 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. Only where there is no genuine issue
     as to any material fact and it is clear that the moving party is
     entitled to a judgment as a matter of law will summary judgment
     be entered.

            Motions for summary judgment necessarily and directly
     implicate the plaintiff’s proof of the elements of his cause of
     action. Thus, a record that supports summary judgment will
     either (1) show the material facts are undisputed or (2) contain
     insufficient evidence of facts to make out a prima facie cause of
     action or defense and, therefore, there is no issue to be submitted
     to the fact-finder. Upon appellate review, we are not bound by
     the trial court’s conclusions of law, but may reach our own
     conclusions. The appellate court may disturb the trial court’s
     order only upon an error of law or an abuse of discretion.

Dibish v. Ameriprise Financial, Inc., 134 A.3d 1079, 1084-85 (Pa. Super.

2016), appeal denied, 141 A.3d 481 (Pa. 2016) (citation omitted). We have

long stated:

                 To prove their negligence claim, [p]laintiffs[ ]
           [are] required to establish: a legally recognized duty
           or obligation owed them by [defendant]; a breach of
           that duty; a causal connection between the breach of
           duty and the resulting injury; and actual loss or
           damage suffered by plaintiffs. Even with proof of both
           breach of duty as prescribed under statute and the
           occurrence of injury, therefore, [plaintiffs are] still
           obligated to show the two were linked by causation.

                To prove causation, a demonstration that the
           breach of duty was both the proximate cause and

                                    -6-
J-A01016-18


            actual cause of injury [is] required. It is not sufficient
            . . . that a negligent act may be viewed, in retrospect,
            to have been one of the happenings in the series of
            events leading up to an injury.             Even if the
            requirement of actual causation has been satisfied,
            there remains the issue of proximate or legal cause. .
            ..

                   Proximate causation is defined as a wrongful act
            which was a substantial factor in bringing about the
            plaintiffs harm. A determination of proximate or legal
            causation therefore essentially regards whether the
            alleged negligence was so remote that as a matter of
            law, the defendant cannot be held legally responsible
            for the subsequent harm.

            Further:

                   A plaintiff cannot survive summary judgment
            when mere speculation would be required for the jury
            to find in plaintiff’s favor. A jury is not permitted to
            find that it was a defendant’s [negligence] that caused
            the plaintiff’s injury based solely upon speculation and
            conjecture; there must be evidence upon which
            logically its conclusion must be based. 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.
            Additionally, a party is not entitled to an inference of
            fact that amounts merely to a guess or conjecture.

Krishack v. Milton Hershey School, 145 A.3d 762, 765-66 (Pa. Super.

2016) (citations omitted).

      In his first claim, Appellant contends that the trial court improperly

weighed the evidence and found it insufficient to show that the decedent

slipped and fell from the lift because of standing water surrounding the lift.

(See Appellant’s Brief, at 21-34). Specifically, Appellant contends “it is not

only a reasonable inference that the [d]ecedent slipped as a result of the large

                                      -7-
J-A01016-18


puddle of water on the floor, in which the scissor lift fell from sat directly in

(sic), but the only conclusion that can be based upon any evidence in the

record.” (Id. at 27). We disagree.

      Initially, we note that for purposes of summary judgment, the trial court

assumed that Appellee owed a legal duty to the decedent, it breached that

duty, and that the decedent suffered actual damages from his injuries. (See

Trial Ct. Op., at 9). However, the trial court found that Appellant had not

established that any alleged negligence by Appellee caused the fall. (See id.).

The trial court aptly discussed the evidence and its reasoning as follows:

              [Appellant] argues that genuine issues of material fact
      existed regarding whether [Appellee’s] negligence caused [the
      decedent’s] fall because [Appellee]: (1) allowed a puddle of water
      to form around the lift, (2) used the lift as a means of transporting
      material from the first floor to the second floor, (3) misused the
      lift for an improper purpose, (4) failed to restrict [the decedent’s]
      access to the lift, (5) failed to warn [decedent] about the
      dangerousness of the lift, and (6) failed to provide proper
      instructions or training to [decedent] in the safe use of the lift.

            In the absence of direct evidence, however, none of these
      instances of negligence may properly be found by a jury to
      reasonably infer that [Appellee’s] negligence caused [the
      decedent’s] fall because none so preponderate in favor of that
      conclusion as to outweigh in the mind of the fact-finder any other
      evidence and reasonable inferences therefrom which are
      inconsistent therewith. . . . there are no witnesses who can testify
      why or how [the decedent] fell, or how or when his shoes became
      wet. There are also no witnesses who can testify that [decedent]
      was actually using or misusing the lift when he fell.

             Equally important, . . . the evidence of record is at least
      equally consistent with theories of the case that attribute
      [decedent’s] fall to other, non-negligent causes. For example, it
      is reasonable to infer that [decedent] could have fallen from the
      lift because he tripped or stumbled on his own accord. Or, he

                                      -8-
J-A01016-18


      could have fallen because of his significant medical conditions,
      advanced age, or possible consumption of alcohol. Thus, the trial
      court properly determined that the evidence and reasonable
      inferences of negligence cited by [Appellant] do not so
      preponderate or outweigh the evidence and reasonable inferences
      that [Appellee’s] negligence did not cause [the decedent’s] fall.
      As a result, summary judgment was appropriate because — in the
      absence of direct evidence — [Appellant’s] theory of [Appellee’s]
      liability rests on impermissible speculation, conjecture, or a mere
      guess as to the cause of [the decedent’s] fall.

(Id. at 9-10) (citations, quotation marks, and record citations omitted).

      Having thoroughly reviewed the record, we agree. No one witnessed

the decedent fall.   The only person who ever even saw the decedent in

proximity to the lift was restaurant employee Cesar Lopez.          Mr. Lopez’s

uncontradicted testimony at two separate depositions was: (1) you needed a

key to operate the lift; (2) on the evening in question he and the decedent

loaded equipment on to the lift and sent it upstairs; (3) they walked up the

stairs and unloaded the equipment; and (4) Mr. Lopez left the lift on the

second floor, took and retained possession of the key and the two walked

down the stairs and parted. (See Depositions of Cesar Lopez, 5/19/15, at 20,

30; 4/26/16, at 26-27). The decedent’s girlfriend, Elizabeth Bodkin, who was

not present during the incident, alternately testified that the decedent told her

he fell in the water and that he slipped off the lift while loading his equipment

on it. (See Depositions of Elizabeth Bodkin, 4/13/15, at 37; 1/28/16, at 53,

56-57). She admitted that, she did not know what caused him to slip on the

lift, but stated the area around it was wet. (See id. at 37; 60-61). Moreover,

as discussed above, the decedent gave varying explanations of what occurred

                                      -9-
J-A01016-18


to medical personnel. Appellant fails to point to, and we have been unable to

locate, any evidence that the decedent ever told anyone that the lift itself had

water on it or that the standing water on the floor caused his fall as he was

getting off the lift. In fact, there is no direct evidence that Appellant was ever

on the lift except when in the presence of Cesar Lopez.

       In Farnese v. SEPTA, 487 A.2d 887 (Pa. Super. 1985), a passenger in

a SEPTA bus was injured while the bus was traveling over a City of Philadelphia

construction zone and he was jolted from his seat. See Farnese, supra at

889.   The passenger sued SEPTA, which joined the City as an additional

defendant. See id. The trial court granted the City’s motion for a directed

verdict finding SEPTA had failed to show a causal connection between the road

conditions and the passenger’s injury. See id. We affirmed, stating:

                The real issue in this case is how much and what kind of
       circumstantial evidence is sufficient to raise not only the inference
       of negligence on the part of the City but also to raise the inference
       of a causal connection between the City’s negligence and the
       injury which occurred. To prove possibility only or to leave the
       issue to surmise or conjecture is never sufficient to sustain a
       verdict. Where there is no evidence of or the evidence is
       insufficient to justify an inference of negligence and causation, the
       court will direct a verdict in favor or the party against whom
       liability is sought.

             We agree with the court below that, as a matter of law,
       SEPTA failed to offer evidence which was sufficient to raise an
       inference that the negligence of the City was the proximate cause
       of the injuries incurred by plaintiff. While we acknowledge that
       questions of negligence and causation are to be resolved by the
       jury, and not the judge, the question of the sufficiency of the
       evidence before presenting a question to the jury is clearly within
       the discretion of the trial judge. In fact, the trial court has a duty
       to prevent questions from going to the jury which would require it

                                      - 10 -
J-A01016-18


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

                                     *    *    *

            SEPTA offered no specific evidence as to the cause of the
      jolt. It did not offer its driver as a witness in an attempt to pin
      point the site of the accident or the specific cause. The general
      evidence in the record is clearly insufficient to shift the burden of
      proof to the defendant, City of Philadelphia . . . . [w]ith such lack
      of specificity, there is no basis upon which the City could rebut
      SEPTA’s claim. A basic rule of due process is that a plaintiff must
      set forth a prima facie case with sufficient specificity so that the
      defendant is put on notice as to that against which it must defend.
      ...

Id. at 889-90 (citations omitted).

      The holding in Farnese is in line with that of an earlier Pennsylvania

Supreme Court decision, Houston v. Republican Athletic Ass’n., 22 A.2d

715 (Pa. 1941).    In Houston, a man died after falling down stairs at an

athletic club, no one witnessed the fall but his widow sued, claiming that a

splinter of wood on the edge of one of the steps caught the decedent’s foot,

causing the fall. See Houston, supra at 715. At the close of the plaintiff’s

case, the trial court entered a compulsory nonsuit. See id. at 715-16. Our

Supreme Court affirmed stating:

            In the absence of any direct proof as to the manner in which
      the accident occurred, the burden was on appellant to
      produce evidence of circumstances so strong as to preclude
      the possibility of injury in any other way, and provide as
      the only reasonable inference the conclusion that her
      husband’s death was caused by the negligence of appellees
      in the manner alleged. Proving that an accident happened, or
      the existence of an opportunity for it to happen, in the manner
      alleged, is entirely insufficient to establish negligence. Plaintiff
      must go further, and show not only defendant’s negligence, but

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J-A01016-18


      that the injuries complained of were the result of such negligence.
      While it may be that appellant’s hypothesis as to the cause of this
      regrettable accident is a plausible one, for all that appears from
      the evidence, the circumstances relied upon are at least equally
      consistent with theories of the case attributing the accident to a
      variety of causes, not excluded by the evidence, for none of which
      any of appellees could conceivably be held liable, as the court
      below has pointed out, including the possibility that the deceased
      may simply have tripped or stumbled, without such tripping or
      stumbling having any connection whatever with the defects in the
      steps complained of. Under these circumstances, a finding that
      the fatal injuries of appellant’s husband resulted from the
      negligence alleged would, at most, represent nothing but a mere
      guess or conjecture; hence a verdict for appellant could not be
      sustained. Where a defendant is liable for only one of two or more
      equally probable causes and to say which is a mere guess, there
      can be no recovery.

Id. at 716 (citations and quotation marks omitted, emphasis added).

      We see nothing in the instant matter to differentiate it from either

Farnese or Houston. Appellant hypothesizes that the decedent fell from the

lift and that the standing water around the lift caused this alleged fall. (See

Appellant’s Brief, at 21).     There is no direct evidence to support this

contention, and the circumstantial evidence, including the decedent’s various

hearsay statements and the evidence of his wet pants and shoes, as well as

the description of the room in question, “are at least equally consistent with

theories of the case attributing the accident to a variety of causes[.]”

Houston, supra at 716; see also Farnese, supra at 889-90. Appellant’s

first claim lacks merit.

      In his second contention, Appellant argues that the trial court erred in

failing to consider Appellant’s alternate theory of liability, “that [Appellee’s]


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failure to warn [the decedent] of the dangers of using the lift, or train, instruct,

or restrict the decedent’s use of the lift was a substantial factor in causing [the

incident].” (Appellant’s Brief, at 34 (unnecessary capitalization omitted); see

generally id. at 34-41). We disagree.

      We have thoroughly reviewed Appellant’s argument on this issue, and it

suffers from a fatal flaw.       It is completely based on the unsupported

assumption that the decedent fell off the lift. (See id. at 34-41). As discussed

in detail above, the record is simply devoid of direct evidence of this.

Moreover, in order to support this contention, Appellant cherry picks through

the deposition testimony of Cesar Lopez regarding training and warnings

about the lift.   (See id. at 38-39).     Appellant neglects to discuss Lopez’s

testimony that he and the decedent loaded and unloaded the lift without

incident, never rode on the lift, that the lift could not be operated without a

key, and that Lopez retained possession of the key after they were done

unloading the decedent’s equipment.          (See Depositions of Cesar Lopez,

5/19/15, at 20, 30; 4/26/16, at 26-27).

      In Watkins v. Sharon Aerie No. 327 Fraternal Order of Eagles, 223

A.2d 742, 743 (Pa. 1966), the plaintiff fell on the premises of a lodge and

contended that inadequate lighting was the proximate cause of the fall. See

Watkins, supra at 743. The trial court granted a compulsory nonsuit; on

appeal, our Supreme Court affirmed, stating:

      [s]he may have slipped or lost her balance through no fault of the
      defendant, or she may have tripped over her own foot, or she may

                                      - 13 -
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       have become dizzy. In any event, plaintiffs failed to prove the
       proximate cause of her injury, i.e., she failed to prove that her fall
       and injury was due to some particular negligence of the
       defendant-what caused her to fall could only be a guess, and that
       is not sufficient to take a case to the jury.

Id. at 745 (citations omitted).

       Here, Appellant has only guessed at what caused the decedent’s fall,

thus, there is simply insufficient evidence of proximate cause to support his

theory of failure to warn/train. The trial court did not err in granting summary

judgment, because Appellant’s second claim lacks merit. See id. at 45; see

also Fedorczyk v. Caribbean Cruise Lines, 82 F.3d 69, 75-76 (3d Cir.

1996) (affirming grant of summary judgment where plaintiff could not provide

direct evidence of proximate cause of injury stating case cannot go to trial

where jury would have to speculate about cause of injury).2

       In his final claim, Appellant maintains that the trial court’s conclusion

that his expert’s opinion “lacked a basis in fact for his conclusions that

[Appellee’s] actions caused the [d]ecedent’s fall[,]” was in error. (Appellant’s

Brief, at 42; see generally id. at 42-46). We disagree.

       The trial court discussed this issue as follows:

             The Pennsylvania Rules of Evidence prescribe a threshold
       for admission of expert testimony. Pa.R.E. 703. “The facts or
       data in the particular case upon which an expert bases an opinion
       or inference may be those perceived by or made known to the
____________________________________________


2“While we recognize that federal court decisions are not binding on this court,
we are able to adopt their analysis as it appeals to our reason.” Kleban v.
Nat. Union Fire Ins. Co. of Pittsburgh, 771 A.2d 39, 43 (Pa. Super. 2001)
(citation omitted).

                                          - 14 -
J-A01016-18


      expert at or before the hearing.” Id. “If of a type reasonably
      relied upon by experts in the particular field in forming opinions
      or inferences upon the subject, the facts or data need not be
      admissible in evidence.” Id. The opinion of an expert witness is
      incompetent as evidence if it lacks an adequate basis in fact.
      [See] Gillingham v. Consol Energy, Inc., 51 A.3d 841, 849 (Pa.
      Super. [] 2012)[, appeal denied, 75 A.3d 1282 (Pa. 2013)]. An
      adequate basis in fact must enable the expert to opine with a
      reasonable degree of certainty. [See id.] Possibilities that facts
      were as the expert assumes cannot enable him to opine with a
      reasonable degree of certainty. [See id.]

             Here, [Appellant’s] expert’s opinion was incompetent to
      establish causation because it lacked an adequate basis in fact
      because the expert could not have formed his opinion with a
      reasonable degree of certainty. In short, [Appellant’s] expert
      relied on assumptions or mere possibilities that have no basis in
      fact. Specifically, there is no testimony or other evidence that
      [the decedent] fell as a result of any of [Appellee’s] conduct
      including the maintenance and operation of the lift in a manner
      that deviated from the standards of care set forth in the lift’s
      operation and safety manual. Instead, the expert baldly assumes
      that [Appellee’s] conduct caused [the decedent’s] fall without
      eliminating the many non-negligent reasons for [his] fall. Because
      his opinion is unsupported by any facts of record, it cannot serve
      as the basis to prove causation.

(Trial Ct. Op., at 11-12) (footnotes omitted). We agree.

      In Krishack, supra, the plaintiff attended the Milton Hershey School in

the later 1940s through the early 1950s. See Krishack, supra at 763. In

2001, a doctor diagnosed the plaintiff as having asymptomatic calcifications

in his lung, for which he required no treatment. See id. at 764. In 2013, the

plaintiff filed suit against the school claiming that his exposure to hay dust

and farm-related excrement while performing chores at the school caused the

lung disease resulting in the calcification. See id. The trial court granted




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summary judgment, finding that the plaintiff had failed to prove that the

fungus that can cause the disease was ever present at the school. See id.

      On appeal, this Court affirmed, agreeing with the trial court that the

appellant failed to prove proximate cause. See id. at 767. We found that

while the appellant provided expert reports, those expert reports assumed,

without evidence, that because the appellant had the disease that caused the

calcifications at some point in his life, the soil at the school must have been

contaminated. See id. We stated that the expert report was insufficient to

demonstrate proximate causation because it required, “more than simple

deductive reasoning, but instead required impermissible speculation and

conjecture.” Id. (citation and internal quotation marks omitted). Therefore,

we affirmed the grant of summary judgment. See id. at 768.

      We have reviewed the record and see nothing to differentiate this matter

from Krishack. Here, Appellant’s expert simply speculated, without evidence,

that the decedent fell from the lift, and that the alleged fall was caused by the

decedent’s failure to maintain, properly train, or warn.        Thus, it is not

competent to prove causation. See id. at 768. Appellant’s third claim lacks

merit.

      Accordingly, for the reasons discussed above, we find that the trial court

did not err in granting summary judgment in this matter.




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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/18




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