J-A05015-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

REBECCA CRAWLY AND HENRY PERKINS,              IN THE SUPERIOR COURT OF
CO-ADMINISTRATORS OF THE ESTATE                      PENNSYLVANIA
OF JULIA MAY DIZZLEY, DECEASED

                        Appellees

                   v.

CARE PAVILION OF WALNUT PARK

                        Appellant                   No. 1442 EDA 2014


               Appeal from the Order Entered April 11, 2014
           In the Court of Common Pleas of Philadelphia County
             Civil Division at No(s): April Term, 2006 No. 0229


BEFORE: GANTMAN, P.J., SHOGAN, J., and ALLEN, J.

MEMORANDUM BY GANTMAN, P.J.:                       FILED MARCH 17, 2015

     Appellant, Care Pavilion of Walnut Park, appeals from the order

entered in the Philadelphia County Court of Common Pleas (after remand

from our Supreme Court), which granted a new trial in favor of Appellees,

Rebecca Crawly and Henry Perkins, Co-Administrators of the Estate of Julia

May Dizzley, Deceased. We affirm.

     The relevant facts and procedural history of this appeal are as follows.

        Suit in this matter was filed…following the death of Julia
        May Dizzley, the sister of [Appellees] who are the
        administrators of the decedent’s estate. The decedent had
        entered [Appellant’s] facility in January of 2003 because
        her various mental and physical problems required nursing
        home care.2 In April of 2004, the decedent suffered a fall
        causing traumatic damage to her eye, and [she] was
        hospitalized for a necessary surgical repair. During the
        procedure, she suffered cardiac arrest and anoxic
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         encephalopathy rendering her comatose. After transfer to
         a…hospital for treatment of a medical condition, she died
         without regaining consciousness in August of 2004.
            2
              The decedent, a schizophrenic, suffered from
            congestive heart failure, chronic lung obstruction,
            degenerative joint disease, and hypertension.

Crawley v. Care Pavilion, Inc., No. 2464 EDA 2008, unpublished

memorandum at 1-2 (Pa.Super. filed July 2, 2009).

      On April 4, 2006, Appellees commenced a civil action against Appellant

by filing a complaint. Appellees’ complaint included counts for negligence,

corporate negligence, wrongful death, and a survival action.         Appellees

argued Appellant “failed, refused and/or neglected to perform the duties to

provide reasonable and adequate healthcare to and for [the] decedent….”

(Complaint, filed 4/4/06, at 4). Appellees noted Appellant’s “failure to hire a

sufficient number of trained and competent staff,” the “failure to take

preventative measures including, but not limited to, adequate supervision

and implementation of safety procedures,” and the “failure to properly train

employees to deal with nursing home residents who are unable to care for

themselves….”    (Id. at 5).    Appellees subsequently filed several amended

complaints, refining the corporate negligence claim.

      Prior to trial, the parties litigated numerous motions concerning the

admissibility of evidence.     Appellant’s filings included a motion in limine,

seeking to preclude Appellees from introducing evidence of “care and/or

conditions which are unrelated to the care provided to [Appellees’]


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decedent.”    (Motion, filed 4/9/08, at 1).        In it, Appellant asserted that

Appellees sought to present Appellant’s “disgruntled” former employees to

provide irrelevant testimony “pertaining to their views of care provided to

other residents, [and] general conditions” at Appellant’s facility. (Id. at 2).

The court considered the parties’ pretrial motions at a May 12, 2008 hearing.

Regarding Appellant’s motion in limine, the court announced:

         As I see this case, this is a negligence case. It’s a
         negligence case in which the injury is sustained as a result
         of a fall. And it’s a case in which [Appellees allege] that
         the fall was either caused by or that there was failure to
         prevent it due to a lack of due care by [Appellant]. All
         right.

         I, therefore, rule that the only relevant evidence in this
         case, since it is―the fall is the subject matter of it, all
         right. The only evidence relevant to it is evidence which
         can be shown to establish negligence, which is a
         substantial factor in bringing about the harm. All right.

         And I am, therefore, ruling that the only evidence that can
         come in on this case is evidence concerning the failure to
         prevent the fall or violations of any standards concerning
         safety or falls, okay?

(N.T. Pretrial Hearing, 5/12/08, at 15-16).

      The court’s announcement prompted the following discussion of

Appellees’ corporate negligence claim:

         [APPELLEE’S COUNSEL]:        But   it’s    also   a   corporate
         negligence case.

         THE COURT:                   Well, I disagree with you.       I
         don’t think it is a corporate negligence case.

                                  *     *     *


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         [APPELLEE’S COUNSEL]: Well, under Thompson[ v.
         Nason Hosp., 527 Pa. 330, 591 A.2d 703 (1991)], you
         can bring an action against the defendant corporation for
         certain non-delegable duties that [include]…policies and
         procedure [and] whether they’re adopted.

                                 *    *    *

         And so…in this case there are complaints predating [the
         decedent’s accident] that the state gave notice and
         required [Appellant] to fix [certain things], taking people
         to the bathrooms, so they don’t fall. We’re arguing that
         that notice and in addition, the conditions of failure to
         provide nursing care, which [the decedent] needed in
         order not to fall, toileting which she needed taking her to
         the bathroom every two hours, … were, in fact, the cause
         of her injuries, not that she just got up and fell down.

(Id. at 16-18). The court continued to disagree with Appellees’ counsel:

         Again, I’m ruling it is not a corporate negligence case. I
         know of no cases extending this doctrine to nursing homes
         under…circumstances that are essentially custodial care.
         I’m ruling that it’s a negligence case and I’m ruling that
         the only relevant evidence that can come in has to do with
         negligence in the care of [the decedent] or people similarly
         situated.

(Id. at 22).

      Following trial, a jury returned a verdict in favor of Appellant.

Although the jury found Appellant was negligent in its care of the decedent,

the jury determined that Appellant’s negligence was not a factual cause of

the injury. This Court affirmed the judgment in favor of Appellant on July 2,

2009, and Appellees timely filed a petition for allowance of appeal. On April

17, 2013, our Supreme Court disposed of the matter as follows:

         AND NOW, this 17th day of April, 2013, the Petition for
         Allowance of Appeal is GRANTED, the Order of the

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          Superior Court is VACATED, and the case is REMANDED to
          the court of common pleas for reconsideration in light of
          Scampone v. Highland Park Care Ctr., LLC, [618 Pa.
          363, 57 A.3d 582 (2012)].

(Per Curiam Order, entered 4/17/13, at 1).1

       Upon remand, the court ordered the parties to submit briefs

addressing the applicability of Scampone.2 Appellant filed a brief on March

7, 2014. On March 10, 2014, Appellees filed a brief and motion for a new

trial, contending the original trial court’s rulings were inconsistent with

Scampone, because the court “precluded the introduction of evidence of

systemic failures of [Appellant], including, but not limited to, chronic

understaffing….”      (Motion for New Trial, filed 3/10/14, at 8).    Appellees

argued that understaffing, under-budgeting, and the failure of Appellant’s

employees to supervise the nursing home patients demonstrated a pattern

of corporate negligence.        On April 11, 2014, the court granted Appellees’

motion for a new trial.

       Appellant timely filed a notice of appeal on May 7, 2014. That same

day, the court ordered Appellant to file a concise statement of errors

____________________________________________


1
  Our Supreme Court decided Scampone on November 21, 2012. In
Scampone, the Court held “a nursing home and affiliated entities are
subject to potential direct liability for negligence, where the requisite
resident-entity relationship exists to establish that the entity owes the
resident a duty of care….” Scampone, supra at 366, 57 A.3d at 584.
2
 The original trial judge died while the case was pending on appeal, and the
court assigned the case to a different jurist upon remand.



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complained of on appeal, pursuant to Pa.R.A.P. 1925(b).       Appellant timely

filed a Rule 1925(b) statement on May 28, 2014.

      Appellant raises two issues for our review:

         WHETHER THE REVIEWING COURT ERRED IN GRANTING
         [APPELLEES’]  MOTION   FOR   A   NEW    TRIAL  ON
         RECONSIDERATION BASED ON ITS FINDING THAT THE
         ORIGINAL TRIAL COURT ACTED INCONSISTENTLY WITH
         SCAMPONE…AND MISHANDLED [APPELLEES’] CLAIM
         ENTITLED “CORPORATE NEGLIGENCE,” EVEN THOUGH THE
         ORIGINAL TRIAL COURT ACTED CONSISTENTLY WITH
         SCAMPONE BY ALLOWING [APPELLEES] TO PURSUE (AND
         THE JURY TO CONSIDER) A DIRECT NEGLIGENCE CLAIM
         AGAINST [APPELLANT] BASED ON THE DUTY OF CARE
         THAT [APPELLANT] OWED TO [APPELLEES’] DECEDENT….

         WHETHER THE REVIEWING COURT ERRED IN GRANTING
         [APPELLEES’] MOTION   FOR   A   NEW   TRIAL  ON
         RECONSIDERATION BASED ON ITS FINDING THAT ANY
         ALLEGED ERRORS MADE BY THE ORIGINAL TRIAL COURT
         WITH RESPECT TO [APPELLEES’] CLAIM ENTITLED
         “CORPORATE NEGLIGENCE” WERE NOT HARMLESS, BUT
         INSTEAD   WERE  PREJUDICIAL   AND   CONSTITUTED
         GROUNDS FOR A NEW TRIAL.

(Appellant’s Brief at 4).

      We review an order granting a new trial subject to the following

principles:

         Each review of a challenge to a new trial order must begin
         with an analysis of the underlying conduct or omission by
         the trial court that formed the basis for the motion. There
         is a two-step process that a trial court must follow when
         responding to a request for new trial. First, the trial court
         must decide whether one or more mistakes occurred at
         trial.   These mistakes might involve factual, legal, or
         discretionary matters. Second, if the trial court concludes
         that a mistake (or mistakes) occurred, it must determine
         whether the mistake was a sufficient basis for granting a
         new trial. The harmless error doctrine underlies every

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        decision to grant or deny a new trial. A new trial is not
        warranted merely because some irregularity occurred
        during the trial or another trial judge would have ruled
        differently; the moving party must demonstrate to the trial
        court that [the moving party] has suffered prejudice from
        the mistake.

        To review the two-step process of the trial court for
        granting or denying a new trial, the appellate court must
        also undertake a dual-pronged analysis. A review of a
        denial of a new trial requires the same analysis as a review
        of a grant. First, the appellate court must examine the
        decision of the trial court that a mistake occurred.

                                 *    *    *

        If the mistake involved a discretionary act, the appellate
        court will review for an abuse of discretion. If the mistake
        concerned an error of law, the court will scrutinize for legal
        error.

                                 *    *    *

        If the appellate court agrees with the determination of the
        trial court that a mistake occurred, it proceeds to the
        second level of analysis. The appellate court must then
        determine whether the trial court abused its discretion in
        ruling on the request for a new trial. Discretion must be
        exercised on the foundation of reason.         An abuse of
        discretion exists when the trial court has rendered a
        judgment that is manifestly unreasonable, arbitrary, or
        capricious, has failed to apply the law, or was motivated by
        partiality, prejudice, bias, or ill will. A finding by an
        appellate court that it would have reached a different
        result than the trial court does not constitute a finding of
        an abuse of discretion. Where the record adequately
        supports the trial court’s reasons and factual basis, the
        court did not abuse its discretion.

Ferguson v. Morton, 84 A.3d 715, 719-20 (Pa.Super. 2013), appeal

denied, ___ Pa. ___, 97 A.3d 745 (2014) (internal citations and quotation




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marks omitted) (quoting Harman ex rel. Harman v. Borah, 562 Pa. 455,

467-69, 756 A.2d 1116, 1122-23 (2000)).

          On appeal, Appellant acknowledges the original trial court did not have

the benefit of the Scampone decision at the time of trial.                    Appellant

contends, however, the original trial essentially complied with Scampone,

which “espoused a traditional theory of direct negligence.” (Appellant’s Brief

at 21). Although the original trial court did not permit the jury to consider

Appellee’s corporate negligence claim, Appellant maintains the court allowed

Appellees to pursue a direct negligence claim, which the jury considered and

denied.      Appellant asserts the court on remand improperly focused on the

“title”    of   the   excluded    corporate    negligence   claim    rather   than   the

“substance” of the direct negligence claim Appellees actually advanced at

trial. Appellant claims the court “ignored the fact that the original trial court

allowed a direct negligence claim against [Appellant] based on the duty of

care that [Appellant] owed to [the decedent].” (Id. at 24).

          Even if the original trial court somehow erred, Appellant insists any

errors were harmless.            Appellant argues Appellees’ corporate negligence

claim was duplicative of the direct negligence claim advanced at trial.

Appellant       further   argues that    the   jury   specifically   found Appellant’s

negligence was not the cause of Appellees’ injuries; thus, allowing the jury

to consider Appellees’ corporate negligence claim could not have affected the

verdict on causation. Additionally, Appellant submits the court admitted all


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evidence relevant to the issue of the decedent’s fall, and the claim for

corporate negligence would not have resulted in additional evidence for the

jury’s consideration.    Appellant concludes the court erred in granting

Appellees’ motion for a new trial. We disagree.

      “In trying to recover for an action in negligence, a party must prove

four elements.” Lux v. Gerald E. Ort Trucking, Inc., 887 A.2d 1281, 1286

(Pa.Super. 2005), appeal denied, 587 Pa. 731, 901 A.2d 499 (2006).

         They are:

         1. A duty or obligation recognized by law.

         2. A breach of the duty.

         3. Causal connection between the actor’s breach of the
         duty and the resulting injury.

         4. Actual loss or damage suffered by complainant.

Id. (internal citation omitted).

      “The plaintiff proves the duty and breach elements by showing that the

defendant’s act or omission fell below the standard of care and, therefore,

increased the risk of harm to the plaintiff.” Scampone, supra at 387, 57

A.3d at 596. “The question of duty in tort is ‘a legal determination, assigned

in the first instance to the trial court….’” Thierfelder v. Wolfert, 617 Pa.

295, 317, 52 A.3d 1251, 1264 (2012) (quoting Sharpe v. St. Luke’s

Hosp., 573 Pa. 90, 96, 821 A.2d 1215, 1219 (2003)). “[E]ven when it is

established that the defendant breached some duty of care owed the

plaintiff, it is incumbent on a plaintiff to establish a causal connection

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between defendant’s conduct, and it must be shown to have been the

proximate cause of plaintiff’s injury.” Lux, supra at 1286 (quoting Taylor

v. Jackson, 643 A.2d 771, 775 (Pa.Cmwlth. 1994)).

     “To prove negligence, a plaintiff may proceed against a defendant on

theories of direct and vicarious liability, asserted either concomitantly or

alternatively.” Sokolsky v. Eidelman, 93 A.3d 858, 864 (Pa.Super. 2014)

(quoting Scampone, supra at 388, 57 A.3d at 597).

        Liability for negligent injury is direct when the plaintiff
        seeks to hold the defendant responsible for harm the
        defendant caused by the breach of duty owing directly to
        the plaintiff. By comparison, vicarious liability is a policy-
        based allocation of risk. Vicarious liability, sometimes
        referred to as imputed negligence, means in its simplest
        form that, by reason of some relation existing between A
        and B, the negligence of A is to be charged against B
        although B has played no part in it, has done nothing
        whatever to aid or encourage it, or indeed has done all
        that [it] possibly can to prevent it. Once the requisite
        relationship (i.e., employment, agency) is demonstrated,
        the innocent victim has recourse against the principal,
        even if the ultimately responsible agent is unavailable or
        lacks the availability to pay.

Sokolsky, supra at 864 (quoting Scampone, supra at 388-89, 57 A.3d at

597 (internal citations and quotation marks omitted)).

        Where a corporation is concerned, the ready distinction
        between direct and vicarious liability is somewhat obscured
        because we accept the general premise that the
        corporation acts through its officers, employees, and other
        agents. The corporation, as principal, assumes the risk of
        individual agents’ negligence under the theory of vicarious
        liability.  In this scenario, the corporation’s liability is
        derivative of the agents’ breach of their duties of care to
        the plaintiff. But, this Court has also recognized that
        a corporation may also owe duties of care directly to

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           a plaintiff, separate from those of its individual
           agents, such as duties to maintain safe facilities, and
           to hire and oversee competent staff.             See, e.g.,
           Thompson, supra (corporate hospital owed patient non-
           delegable duty of care to enforce consultation and patient
           monitoring policies); Gilbert v. Korvette, Inc., 457 Pa.
           602, 327 A.2d 94, 102 (1974) (corporation owed customer
           non-delegable duty of care to maintain premises);
           Dempsey v. Walso Bureau, Inc., 431 Pa. 562, 246 A.2d
           418 (1968) (corporation owed employee duty of
           reasonable care in hiring other employees); accord
           Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580,
           812 A.2d 1218 (2002) (if duty exists, corporation may be
           held directly liable for negligence).    Accordingly, as a
           general proposition, the recognition that a corporation acts
           through its agents has not been held to be a fatal
           impediment to haling a corporation into court on direct
           liability tort claims.

Scampone, supra at 389-390, 57 A.3d at 597-98 (some internal citations

omitted) (emphasis added).

      Based upon the foregoing, our Supreme Court held “a nursing home

and affiliated entities are subject to potential direct liability for negligence,

where the requisite resident-entity relationship exists to establish that the

entity owes the resident a duty of care….” Id. at 366, 57 A.3d at 584. To

determine the existence of such a duty, a court must consider several

factors: “(1) the relationship between the parties; (2) the social utility of the

actor’s conduct; (3) the nature of the risk imposed and foreseeability of the

harm incurred; (4) the consequences of imposing a duty upon the actor; and

(5) the overall public interest in the proposed solution.” Id. at 393, 57 A.3d

at 600 (quoting Althaus v. Cohen, 562 Pa. 547, 553, 756 A.2d 1166, 1169

(2000)).     See also Sokolsky, supra at 870 (concluding Scampone

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requires court to analyze Althaus factors to extend corporate liability to

skilled nursing facility).

       Instantly, Appellant concedes the original trial court did not allow

Appellees to advance a corporate negligence claim. (See Appellant’s Brief at

13.)   Our review of the record confirms Appellant’s concession, as the

original trial court issued the following jury instruction regarding negligence:

          Negligent conduct may consist either of an act or a failure
          to act whether there is a duty to do so. In other words,
          negligence is the failure to do something that a reasonably
          careful person would do or doing something that a
          reasonably careful person would not do.

          In light of all of the surrounding circumstances established
          by the evidence in this case, it is for you to determine how
          a reasonable careful person would act in these
          circumstances.

          Ordinary care is the care a reasonable, careful person
          would use under the circumstances present in this case. It
          is the duty of every person to use ordinary care not only
          for his or her own safety and protection of his or her
          property, but also to avoid injury to others.         What
          constitutes ordinary care varies according to the particular
          circumstances and conditions existing then and there. The
          amount of care required by the law must be in keeping
          with the degree of danger involved.

          Now, ladies and gentlemen, I’ve used the word person in
          the definition of negligence and ordinary care. [Appellant],
          of course, is a corporation. And a corporation under the
          law is to be treated equally and fairly as if it were a
          person, but a corporation…cannot do anything itself. A
          corporation acts by people, agents, servants or employees,
          people who are working for that corporation. Any act or
          omission of an employee, officer or agent of [Appellant]
          performed within the scope of that person’s employment
          or agency is chargeable to the corporation.


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           Now, [Appellees] must prove to you that [Appellant’s]
           conduct caused [Appellees’] damages. This is referred to
           as factual cause and the question is, was [Appellant’s]
           negligent conduct a factual cause in bringing about
           [Appellees’] injury.

(See N.T. Trial, 5/19/08, 196-98.)

      Despite Appellant’s insistence that the original trial court effectively

complied with Scampone, Scampone recognized a corporation might owe

additional duties of care to a plaintiff, separate from those of its individual

agents. Scampone, supra at 389, 57 A.3d at 598. Scampone specifically

mentioned the possibility of corporate duties “to maintain safe facilities, and

to hire and oversee competent staff.”         Id.   Here, the original trial court

precluded Appellees from raising similar claims of corporate negligence. The

original trial court also failed to analyze the Althaus factors, which

Scampone mandated. See Sokolsky, supra. Consequently, we disagree

with Appellant’s assertion that the original trial court acted consistently with

Scampone.

      Upon remand, the court evaluated the trial record in light of

Scampone and correctly determined the original trial court’s failure to

analyze the Althaus factors amounted to an error of law. Thereafter, the

court conducted its own analysis of the Althaus factors and concluded as

follows:

           Upon weighing the Althaus factors as applied to this case,
           this court finds the imposition of a duty is warranted.
           Appellant’s work is of great social utility, and the
           imposition of a duty could come at increased cost.

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        However, the relationship of the parties, the public
        interest, and the foreseeability or risk of harm tips the
        scale in favor of Appellees. This court finds the imposition
        of a duty to ensure quality skilled nursing care to be in the
        interests of morals, justice, and society.

(See Trial Court Opinion, dated August 12, 2014, at 11) (internal citation

omitted).

     Moreover, the court found the original trial court’s errors were not

harmless:

        Appellees have shown no charge was given on corporate
        negligence.    In fact, the charge quoted by Appellees
        closely tracks the suggested charge found in § 6.30 of the
        Pennsylvania Suggested Standard Civil Jury Instructions
        which falls under the chapter of Agency with vicarious
        liability. The Opinion of the original trial court clarifies its
        approach, “All the defendant actors were either
        [Appellant’s] employees or agents whose conduct exposed
        the corporation to vicarious liability, and so the jury was
        told.”

        As the Scampone Court made clear, the fact that a
        corporation acts through its agents is not “a fatal
        impediment to haling a corporation into court on direct
        liability tort claims.” The Scampone Court further noted
        that vicarious and direct negligence theories are distinct
        policies, which serve complimentary purposes. As the
        record indicates, only vicarious liability was charged to the
        jury. Appellant’s argument that the verdict would be the
        same is without merit because the jury was precluded from
        considering the claim. Appellant would have this [c]ourt
        believe a charge and verdict on vicarious liability would be
        the same as a charge and verdict on direct liability.
        However, as the Scampone Court clarified, both of these
        theories are distinct. Appellees have been prejudiced by
        the preclusion of their corporate negligence claim.

        Furthermore, Appellees have shown that the original trial
        court precluded evidence, which prevented the jury from
        properly hearing a corporate negligence claim.

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                                  *     *      *

         Notwithstanding the original trial court’s errors in
         preclusion of a corporate negligence claim warranting a
         new trial, this court finds the charge of only vicarious
         liability and preclusion of evidence regarding corporate
         negligence were errors of law, which prejudiced Appellees
         and warranted a new trial.

(Id. at 12-13) (emphasis in original) (internal citations omitted). In light of

the applicable scope and standard of review and the relevant case law, the

court properly granted Appellees’ motion for a new trial. See Scampone,

supra; Ferguson, supra. Accordingly, we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/17/2015




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