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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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 September 25, 2014
            in the Court of Common Pleas of Philadelphia County,
                Civil Division at No.: April Term, 2013 No. 5171

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

DISSENTING MEMORANDUM BY STRASSBURGER, J.:

                                                 Filed: December 18, 2015

      Because I believe that Appellants came forth with sufficient evidence

to survive summary judgment, I respectfully dissent.

      In their March 22, 2011 behavioral management program for Jackson,

the specific behavior AVS sought to target was Jackson’s self-injurious

behavior.   Motion for Summary Judgment, 8/4/2014, at Exhibit I, page 1.

The program also noted Jackson’s pica and elopement behaviors. Id. Thus,

Jennifer Szopo, the Executive Director of AVS, testified that AVS’s behavioral

management program for Jackson was to have her “closely supervised

during waking hours 7 days a week[.]” N.T., 6/24/2014, at 29. This close




* Retired Senior Judge assigned to the Superior Court.
J-A24020-15


supervision included “keeping [Jackson] within staff’s sight and sound at all

times. [Jackson] should be no more than [a] 5 foot radius from staff so that

she can be reached in time.” Id. at 29-30.

      The record before the trial court also contained the statements given

to police by AVS employees Evangeline Gbargaye, who had assisted Jackson

with her shower on the night of May 7, 2011, and Ellen Sloh, who had

dressed Jackson on May 8, 2011 at 6:30 am per her usual routine.         Ms.

Gbargaye indicated that the only injury she observed on Jackson was an old

scratch between her breasts. Motion for Summary Judgment, 8/4/2014, at

Exhibit EE, page 2.     Ms. Sloh similarly saw some faded scratches on

Jackson’s chest, but no other marks on her body. Id. at Exhibit FF, page 2.

      Appellants visited Jackson at AVS at approximately 2:30 pm on May 8,

2011, a 75-degree Mother’s Day.         They had brought sandwiches and

intended to have a picnic outdoors with Jackson.     Exhibit B to Answer to

Motion for Summary Judgment, 9/4/2014, at 46. Jackson was brought out

in a heavy, long-sleeved shirt, fully buttoned, with her hair combed forward.

Id. at 47. Upon lifting Jackson’s hair from her cheek, Appellants discovered

“all knuckle marks, black, yellow, bruised.” Id. Removing Jackson’s shirt,

Appellants saw large bruises “like grab marks” on both of Jackson’s upper-

arms. Id. at 48. Underneath the tank top Jackson was wearing, Appellants

found bruising “all over her breasts.” Id.




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      Ms. Sloh confirmed, after viewing photographs of the injuries

Appellants discovered, that she had not seen the injuries to Jackson’s chest,

or any of the other injures depicted in the photographs, when she had

dressed Jackson that morning. Motion for Summary Judgment, 8/4/2014, at

Exhibit FF, page 2.

      Viewing this evidence in the light most favorable to Appellants,

Jackson sustained her injuries sometime between when Ms. Sloh helped

Jackson dress at 6:30 am and when Appellants arrived at approximately

2:30 pm. During these hours, AVS’s acknowledged standard of care was to

have someone supervising Jackson within five feet at all times. Yet, within

this time, in AVS’s care, Jackson sustained serious blunt-force injuries to her

face, breasts, and arms.

      I would hold that Appellant’s failure to pinpoint the specific way

Jackson suffered harm is not fatal to the claims. Indeed, the very fact that

AVS does not know how Jackson was injured during the timeframe at issue

proves that AVS was negligent: if AVS had provided the constant close

supervision it determined was necessary to protect Jackson, someone at AVS

would have observed the harm being inflicted upon Jackson, be it by Jackson

or someone else.

      Thus, a jury could conclude that AVS did not act reasonably under the

circumstances in allowing Jackson or someone else the opportunity to inflict




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the serious injuries Jackson sustained, and that AVS’s breach of that duty of

care is what caused Jackson’s injuries.    Accordingly, I would reverse the

order which granted summary judgment to AVS.




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