J-A07007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KIMBERLY K. KING                               IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellant

                       v.

CANON HILL VETERINARY CLINIC, INC.
LEIGH A. MITCHELL, HILLSIDE STABLES,
INC., AND GAYLENE WALKER, T/D/B/A
HILLSIDE STABLES

                            Appellee               No. 644 WDA 2015


                     Appeal from the Order March 24, 2015
              In the Court of Common Pleas of Washington County
                       Civil Division at No(s): 2012-1863


BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                           FILED MAY 10, 2016

       Appellant Kimberly K. King appeals from the order entered in the

Washington County Court of Common Pleas, which granted summary

judgment in favor of Appellees Canon Hill Veterinary Clinic, Inc. and Leah

Mitchell1 (collectively “Appellees”).2



____________________________________________


1
 Leigh A. Mitchell is the name listed on the caption and on the cover of the
appellate briefs, but the trial court and Appellee Mitchell note her name is
actually Leah Mitchell.
2
 Summary judgment was also granted in favor of Hillside Stables, Inc. and
Gaylene Walker, t/d/b/a Hillside Stables (“other defendants”). Appellant is
not appealing the order of summary judgment as it pertains to those parties.
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       The relevant facts and procedural history of this appeal are as follows.

On April 5, 2010, Appellant was at Hillside Stables attending to her own

horse when her friend’s horse, Ruby, exhibited signs of distress. Appellant

helped walk and calm the horse until Dr. Mitchell arrived in response to

Ruby’s owner’s request. Appellant led Ruby on a lead rope while Dr. Mitchell

removed fecal matter from Ruby and gave her a sedative. At some point,

after Appellant warned Dr. Mitchell the horse was “going down,” Ruby fell

down and kicked Appellant in the face, causing injuries.

       Appellant filed a complaint against Appellees and other defendants on

May 23, 2012.3         On December 10, 2014, following completion of the

pleadings, the court ordered Appellant to file an expert report relative to the

claims against Appellees. Appellant did not file an expert report.

       On February 17, 2015, Appellees filed a motion for summary

judgment, which maintained Appellant could not carry her burden of proof

because she failed to produce an expert report, as was required in

professional negligence actions.        Appellant filed a response, which averred

her claim sounded in ordinary negligence. The court heard argument on the

motion.



____________________________________________


3
  Appellant initiated the action by filing a writ of summons on March 29,
2012.




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      On March 24, 2015, the court granted Appellees’ summary judgment

motion because Appellant’s failure to submit an expert report was fatal to

her action. Appellant timely filed a notice of appeal on April 17, 2015. On

May 6, 2015, the trial court ordered Appellant to file a Pa.R.A.P. 1925(b)

statement, and she timely complied on May 22, 2015.

      Appellant raises the following issues for our review:

         1 WHETHER THE [TRIAL] COURT COMMITTED ERROR OF
         LAW OR AN ABUSE OF DISCRETION IN GRANTING
         SUMMARY JUDGMENT IN FAVOR OF [APPELLEES] IN ITS
         ORDER OF MARCH 23, 2015[?]

         2   WHETHER    [APPELLANT’S] COMPLAINT  AGAINST
         [APPELLEES] ALLEGES ORDINARY NEGLIGENCE - THAT
         [APPELLEES] FAILED TO EXERCISE ORDINARY CARE TO
         NOT EXPOSE [APPELLANT] TO AN INCREASED RISK OF
         HARM[?]

         3   WHETHER   [APPELLANT’S]  COMPLAINT AGAINST
         [APPELLEES] SOUNDS IN PROFESSIONAL NEGLIGENCE
         SUCH THAT SHE NEED[ED TO] SUBMIT AN EXPERT
         REPORT TO SUPPORT HER CLAIM[?]

Appellant’s Brief at 4.

      In her combined issues, Appellant argues the court erred in granting

summary judgment based on the fact that she did not have an expert

report, because her claims against Appellees sound in ordinary, not

professional, negligence. Appellant’s claims merit no relief.

      Our standard of review for a court’s order granting a motion for

summary judgment is as follows:

         We view the record in the light most favorable to the
         nonmoving party, and all doubts as to the existence of a

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        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. Our scope of review of a trial
        court’s order granting or denying summary judgment is
        plenary, and our standard of review is clear: the trial
        court’s order will be reversed only where it is established
        that the court committed an error of law or abused its
        discretion.

Kozel v. Kozel, 97 A.3d 767, 772 (Pa.Super.2014) (quoting Daley v. A.W.

Chesterton, Inc., 37 A.3d 1175, 1179 (Pa.2012)).

     The Pennsylvania Rules of Civil Procedure provide, in relevant part:

        Rule 1035.2. Motion

        After the relevant pleadings are closed, but within such
        time as not to unreasonably delay trial, any party may
        move for summary judgment in whole or in part as a
        matter of law

           (1) whenever there is no genuine issue of any material
           fact as to a necessary element of the cause of action or
           defense which could be established by additional
           discovery or expert report, or

           (2) if, after the completion of discovery relevant to the
           motion, including the production of expert reports, an
           adverse party who will bear the burden of proof at trial
           has failed to produce evidence of facts essential to the
           cause of action or defense which in a jury trial would
           require the issues to be submitted to a jury.

Pa.R.C.P. No. 1035.2.

     Further, we observe:

        The record for purposes of deciding a motion for summary
        judgment includes the pleadings, depositions, answers to
        interrogatories, admissions, and affidavits, Pa.R.C.P.
        1035.1(1), (2), but oral testimony alone, of the moving
        party or his witnesses, i.e., affidavits or depositions, even
        if uncontradicted, is generally insufficient to establish the

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        absence of a genuine issue of material fact, see [Karoly
        v. Mancuso, 65 A.3d 301, 308–09 (Pa.2013)], 1035.2
        note (citing Penn Center House, Inc. v. Hoffman, 553
        A.2d 900 ([Pa.]1989); Borough of Nanty–Glo[,
        supra.]). Moreover, “[t]he questions of whether there are
        material facts in issue and whether the moving party is
        entitled to summary judgment are matters of law.”
        Alderwoods (Pennsylvania), Inc. v. Duquesne Light
        Co., 106 A.3d 27, 34 n. 5 ([Pa.]2014) (citations omitted).

Bailets v. Pennsylvania Tpk. Comm'n, 123 A.3d 300, 304 (Pa.2015).

     Under Pennsylvania law:

        To prevail in any negligence action, the plaintiff must
        establish the following elements: the defendant owed [the
        plaintiff] a duty; the defendant breached the duty; the
        plaintiff suffered actual harm; and a causal relationship
        existed between the breach of duty and the harm. In a
        professional malpractice action, the determination of
        whether there was a breach of duty requires the plaintiff to
        additionally show that the defendant's conduct fell below
        the relevant standard of care applicable to the rendition of
        the professional services at issue. In most cases, such a
        determination requires expert testimony because the
        negligence of a professional encompasses matters not
        within the ordinary knowledge and experience of
        laypersons.

        ***

        [W]e discern that there are two questions involved in
        determining whether a claim alleges ordinary as opposed
        to professional negligence: (1) whether the claim pertains
        to an action that occurred within the course of a
        professional relationship; and (2) whether the claim raises
        questions of professional judgment beyond the realm of
        common knowledge and experience.

French v. Commonwealth Associates, Inc., 980 A.2d 623, 630-31

(Pa.Super.2009) (citation omitted).




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         This Court has most often discussed the distinction
         between ordinary and professional negligence in the
         context of medical malpractice cases.

                                  *    *    *

         In order to determine what theory of liability [a plaintiff] is
         asserting, this Court must examine the averments she
         makes in her complaint.

Merlini ex rel. Merlini v. Gallitzin Water Auth., 934 A.2d 100, 104-05

(Pa.Super.2007) aff'd, 980 A.2d 502 (Pa.2009) (internal citations omitted).

         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,
         because 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.

Yee v. Roberts, 878 A.2d 906, 912 (Pa.Super.2005) (internal quotations

and citation omitted).

         As to a cause of action based on the negligence of a
         veterinarian in the performance of his/her professional
         duties or services, we note at the outset that malpractice
         claims have traditionally arisen in the context of services
         provided by the legal and medical professions. Similar to
         the practice of law or medicine, the vocation of veterinary
         medicine involves specialized education, knowledge, and
         skills. We conclude, therefore, that professional negligence
         concepts also extend to veterinary medicine.

         The practice of veterinary medicine is extensively
         regulated in Pennsylvania under the Veterinary Medicine
         Practice Act, 63 P.S. § 485.1 et seq. “Veterinary medicine”
         is defined as the “branch of medicine which deals with the
         diagnosis,     prognosis,    treatment,      administration,
         prescription, operation or manipulation or application of


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        any apparatus or appliance for any disease, pain,
        deformity, defect, injury, wound or physical condition of
        any animal or for the prevention of or the testing for the
        presence of any disease.” 63 P.S. § 485.3(9).

                                 *    *     *

        To state a cause of action based upon the negligent acts or
        omissions of a veterinarian in the performance of
        professional duties or services, the plaintiff must plead (1)
        the employment of the veterinarian or other basis for the
        duty; (2) the veterinarian’s failure to exercise the
        appropriate standard of care; and (3) that the
        veterinarian’s departure from that standard was the
        proximate cause of the animal’s injury or death. A plaintiff
        must specifically allege that the veterinarian was negligent
        in the performance of his professional services.

Price v. Brown, 680 A.2d 1149, 1152-53 (Pa.1996).

     Appellant concedes that this would be a professional negligence claim

if the horse’s owner asserted liability against the veterinarian for injuries

suffered by the horse, but claims that, because she is a third party who did

not have a direct relationship with the doctor, her action is for ordinary

negligence.

     To determine whether Appellant is asserting professional or ordinary

negligence, we need only look to her complaint.        See Merlini ex rel.

Merlini, supra.

     In her complaint, Appellant alleges:

        23. The injuries and damages to Plaintiff King are the
        direct and proximate result of the joint and several
        negligence, carelessness and recklessness of the
        Defendants in the following respects:

        (i) As to Defendants Canon Hill Veterinary Clinic, Inc., and
        Leigh A. Mitchell, agent, servant and/or employee of
        Defendant Canon Hill Veterinary Clinic, Inc.:

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             (a) In failing to blindfold the horse Ruby to reduce fear;

             (b) In failing to hobble the horse to prevent it from
             kicking;

             (c) In failing to properly restrain the horse;

             (d) In failing to administer the appropriate sedative
             and/or the appropriate amount of sedative;

             (e) In failing to wait until the sedative had fully taken
             effect before beginning the procedure;

             (f) In failing to seek additional assistance when the
             horse became agitated;

             (g) In failing to stop and reassess situation before
             continuing.

Complaint, filed May 23, 2012 at 4.

     These     allegations   demonstrate     that   Appellant’s   action   is   for

professional negligence, because they relate directly to Dr. Mitchell’s

improper treatment of Ruby while she was working on the horse as a

veterinarian. Thus, it is an action that occurred while Dr. Mitchell was

engaged in a professional relationship with Ruby, the first hallmark of a

professional negligence case. See French, supra. Next, the claim raises

questions of professional judgment beyond the realm of common knowledge

and experience, the second test for a professional negligence claim.            For

example, a layperson would not likely know how much sedative to give a

horse, how the horse would react to a sedative, or how long it would take

the sedative to work.

     Because this is a professional negligence case, Appellant was required

to submit an expert report that demonstrated that Dr. Mitchell breached the

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relevant standard of care. See Yee, supra. Because Appellant failed to

submit an expert report, the trial court properly granted summary judgment

in favor of Appellees.

      Appellant’s citations to cases in which professionals are not acting in

their capacity as professionals and can therefore be held liable for ordinary

negligence are irrelevant.   The doctor was clearly acting as a veterinarian

and treating a horse when Appellant was injured, and Appellant claims her

injuries were caused because the doctor was negligent in her veterinary care

of the horse.

      In granting Appellees’ summary judgment motion, the trial court

reasoned:

         Because these allegations involve care and treatment by
         Mitchell, a licensed veterinarian, and [Appellant] does not
         claim that Mitchell was otherwise negligent in another
         respect unrelated to the care and treatment of Ruby, we
         conclude that her complaint sounds in professional
         negligence. As a consequence, [Appellant’s] failure to
         submit an expert report to establish the applicable
         standard of care - and deviation from that standard - is
         fatal to her action.

Trial Court Opinion (granting summary judgment motion), filed March 18,

2015, at 4.

      The trial court did not err as a matter of law or abuse its discretion in

granting Appellees’ summary judgment motion.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/10/2016




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