Opinion
J-A10007-14 No. 1630 MDA 2013
06-05-2014
RICHARD L. PLEGER, INDIVIDUALLY AND AS THE ADMINISTRATOR OF THE ESTATE OF PATRICIA A. PLEGER, DECEASED, Appellant v. FRANK E. PHILLIPS AND VERA R. PHILLIPS AND RICHARD STEWART, Appellees
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P 65.37
Appeal from the Order August 22, 2013,
Court of Common Pleas, Lancaster County,
Civil Division at No. CI-10-12622
BEFORE: DONOHUE, ALLEN and STABILE, JJ. MEMORANDUM BY DONOHUE, J.:
Appellant, Richard L. Pleger ("Richard"), individually and as the administrator of the estate of Patricia A. Pleger ("Patricia"), appeals from the order dated August 22, 2013 entered by the Court of Common Pleas, Lancaster County, granting Frank E. Phillips ("Frank") and Verla R. Phillips's ("Verla") motion for summary judgment. We affirm.
The facts and procedural history in this matter are as follows. On October 6, 2008, at 451 East Ross Street, Lancaster, Pennsylvania, Patricia was leaving work through the front door of the building in which her employer was a tenant. As she began walking down the stairs outside of the front door, she fell and sustained several fractures in her leg and ankle. On October 12, 2008, Patricia died after suffering a pulmonary embolism. Patricia's death certificate lists her ankle fracture as one of the causes of her pulmonary embolism.
On October 5, 2010, Richard filed a complaint against Frank and Verla, PE Enterprises, and Richard Stewart ("Stewart") alleging that Patricia's fall, injuries, and death were the result of negligence. Specifically, Richard alleged that the failure to remove the overgrown shrubs adjacent to the front stairs that Patricia used made the handrail inaccessible, which resulted in her fall. On January 25, 2011, Richard filed an amended complaint. On January 11, 2012, Richard discontinued his action against PE Enterprises. On July 17, 2012, the trial court entered a default judgment against Stewart because he never filed an answer to Richard's complaint.
Frank and Verla are the owners of 451 East Ross Street. Answer and New Matter of Defendants' Frank E. Phillips and Verla R. Phillips, Individually and as Husband and Wife, to Plaintiff's Amended Complaint at ¶ 6.
PE Enterprises is a partnership between Frank and Larry Miller. PE Enterprises is the entity that allegedly managed and possessed 451 East Ross Street at the time of Patricia's fall. Amended Complaint at ¶ 67.
Stewart was the independent contractor allegedly responsible for maintaining the lawn and shrubs and 451 East Ross Street. Amended Complaint at ¶ 87.
Richard discontinued his action against Stewart on August 22, 2013. Richard's Brief at 7.
On July 31, 2012, Frank and Verla motioned for summary judgment against Richard. On December 6, 2012, the trial court granted Frank and Verla's motion for summary judgment. The trial court held that Richard failed to present any evidence that the lack of access to the handrail caused Patricia's fall. Trial Court Opinion, 12/6/12, at 4, 7. The trial court further held that the testimony Richard presented in an attempt to demonstrate that the inaccessible handrail caused Patricia's fall was hearsay and, as a result, Richard's claim must fail as a matter of law because the jury could only reach a verdict based on speculation and conjecture. Id. at 4-6.
On January 2, 2013, Richard filed a notice of appeal. In his appeal, Richard raises four issues for our review:
1. Whether the Trial Court erred by granting summary judgment to [Frank and Verla], when the evidence of record supports a genuine issue of material fact establishing each element of [Richard]'s negligence claim?Richard's Brief at 3. Richard's first three issues each involve whether or not he failed to prove a prima facie case of negligence, specifically, whether he failed to prove that the inaccessible handrail was the proximate cause of Patricia's fall. See id. Accordingly, we will address Richard's first three issues together.
2. Whether the Trial Court erred by granting summary judgment to [Frank and Verla], on the basis that [Richard] failed to present evidence of causation, necessary to support his negligence claim?
3. Whether the Trial Court erred by granting summary judgment to [Frank and Verla], when the evidence of record contains circumstantial evidence to raise a genuine issue of material fact sufficient to support the issue of causation?
4. Whether the Trial Court erred by granting summary judgment to [Frank and Verla] where the Court usurped the function of the jury and rendered credibility assessments to the deposition testimony of witnesses, which were improper considerations for summary judgment and determinations only to be made by the fact finder?
With respect to the grant of summary judgment, this Court has recently stated:
'[A] proper grant of summary judgment depends upon an evidentiary record that either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense[.]' Under [Civil] Rule 1035.2(2), 'if a defendant is the moving party, he may make the showing necessary to support the entrance of summary judgment by pointing to materials which indicate that the plaintiff is unable to satisfy an element of his cause of action.' Correspondingly, '[t]he non-moving party must adduce sufficient evidence on an issue essential to its case and on which it bears the burden of proof such that a jury could return a verdict favorable to the non-moving party.'Sass v. AmTrust Bank, 74 A.3d 1054, 1059 (Pa. Super. 2013), appeal denied, 85 A.3d 484 (Pa. 2014) (quoting Montagazzi v. Crisci, 994 A.2d 626, 629-30 (Pa. Super. 2010)). Furthermore,
Basile v. H & R Block, Inc., 777 A.2d 95, 100-01 (Pa. Super. 2001) (citations omitted). Thus, a plaintiff's failure to adduce evidence to substantiate any element of his cause of action entitles the defendant to summary judgment as a matter of law.
In reviewing an order granting summary judgment, our scope of review is plenary, and our standard of review is the same as that applied by the trial court. Our Supreme Court has stated the applicable standard of review as follows: An appellate court may reverse the entry of a summary judgment only where it finds that the lower court erred in concluding that the matter presented no genuine issue as to any material fact and that it is clear that the moving party was entitled to a judgment as a matter of law. In making this assessment, we view the record in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. As our inquiry involves solely questions of law, our review is de novo.Majorsky v. Douglas, 58 A.3d 1250, 1257 (Pa. Super. 2012), appeal denied, 70 A.3d 811 (Pa. 2013) (quoting Jones v. Levin, 940 A.2d 451, 452-54 (Pa. Super. 2007)).
Thus, our responsibility as an appellate court is to determine whether the record either establishes that the material facts are undisputed or contains insufficient evidence of facts to make out a prima facie cause of action, such that there is no issue to be decided by the fact-finder. If there is evidence that would allow a fact-finder to render a verdict in favor of the non-moving party, then summary judgment should be denied.
In any case alleging negligence, the plaintiff has the burden to prove the following four elements: "'1. [a] duty or obligation recognized by law[,] 2.[a] breach of the duty[,] 3. [c]ausal connection between the actor's breach of the duty and the resulting injury[, and] 4. [a]ctual loss or damage suffered by complainant.'" Wilson v. PECO Energy Co., 61 A.3d 229, 232 (Pa. Super. 2012) (quoting Cooper v. Frankford Health Care System, Inc., 960 A.2d 134, 140 n.2 (Pa. Super. 2008) (citation omitted), appeal denied, 970 A.2d 431 (Pa. 2009)). Importantly, "it is incumbent on a plaintiff to establish a causal connection between defendant's conduct, and it must be shown to have been the proximate cause of plaintiff's injury." Lux v. Gerald E. Ort Trucking, Inc., 887 A.2d 1281, 1286 (Pa. Super. 2005) (quotations and citation omitted). A court must grant summary judgment "where the evidence is such that a jury would have to reach a verdict on the basis of speculation or conjecture." InfoSAGE, Inc. v. Mellon Ventures, L.P., 896 A.2d 616, 632 n.12 (Pa. Super. 2006) (citing Cade v. McDanel, 679 A.2d 1266, 1271 (Pa. Super. 1996)).
Richard argues that the trial court erred when it found that there was no evidence showing that the inaccessible handrail was the proximate cause of Patricia's fall. Richard's Brief at 19-25. Richard contends that although there was no direct evidence regarding the cause of Patricia's fall, there was sufficient circumstantial evidence showing that the inaccessible handrail was the proximate cause of her fall. Id.
This Court has previously found that "circumstantial evidence alone may suffice to prove a claim of negligence by the requisite preponderance of the evidence." Wright v. Eastman, 63 A.3d 281, 290 (Pa. Super. 2013). A plaintiff does not need to show "that the only reasonable inference is that defendant's negligence was the proximate cause of the accident" in order for the case to proceed to the jury. Id. (quoting Lewis v. U.S. Rubber Co., 202 A.2d 20, 22-23 (Pa. 1964)) (quotations omitted; emphasis in the original). The plaintiff need only provide evidence that
. . . may properly be found by the jury to justify an inference that the defendant's negligence was the proximate cause of the accident because such evidence outweighs, even though it does not exclude[,] an inference that the defendant was not negligent or that his negligence was not the proximate cause of the accident.Id. (quoting Lewis, 202 A.2d at 22-23) (quotations omitted). The plaintiff must present sufficient evidence "for the jury to say reasonably that the preponderance favors liability." Id. (quoting Lewis, 202 A.2d at 22-23) (quotations omitted).
In this case, there was no direct evidence of Patricia's fall. The circumstantial evidence that Richard provided in support of his assertion that the inaccessible handrail was the proximate cause of Patricia's fall included the deposition testimony of Patricia's father, mother, sister, co-worker Sandra Dotter ("Dotter"), and paralegal Loraine Liuzzo ("Liuzzo"), who took a phone call from Patricia in the week following her fall. Richard's Brief at 21-22, 24, 35. However, none of this circumstantial evidence could allow a jury to justify the inference that the inaccessible handrail was the proximate cause of Patricia's fall because the offered evidence constitutes inadmissible hearsay.
Hearsay is an out-of-court statement that "a party offers in evidence to prove the truth of the matter asserted in the statement." Pa.R.E. 801(c). Hearsay is inadmissible unless it falls within an exception prescribed by the Pennsylvania Rules of Evidence or otherwise recognized by law. Pa.R.E. 802. Importantly, this Court has previously held that "a motion for summary judgment cannot be supported or defeated by statements that include inadmissible hearsay evidence." Turner v. Valley Hous. Dev. Corp., 972 A.2d 531, 537 (Pa. Super. 2009) (quoting Botkin v. Metropolitan Life Ins. Co., 907 A.2d 641, 649 (Pa. Super. 2006)) (quotation omitted).
We agree with the trial court's conclusion that the deposition testimony Richard presented in response to the motion for summary judgment is hearsay. The testimony of Patricia's father, mother, sister, Dotter, and Liuzzo conveys only what Patricia had told them about her fall. See Deposition of Sandra Dotter, 6/14/12, at 30-34; Deposition of Dennis Kaiser, 4/24/12, at 5; Deposition of Blanche Kaiser, 4/24/12, at 5; Deposition of Elizabeth Nye, 4/23/12, at 5; Deposition of Loraine Liuzzo, 3/22/12, at 19. It does not represent their own perceptions of the accident. Patricia made these statements to them out-of-court and Richard seeks to use them to prove the truth of the matter contained therein, i.e., that the cause of Patricia's fall was overgrown bushes that made the handrails of the stairway she was using inaccessible. See Pa.R.E. 801(c). Therefore, this evidence is hearsay. See id. Because the above-referenced testimony constitutes inadmissible hearsay, Richard cannot use it to defeat a motion for summary judgment. See Turner, 972 A.2d at 537.
The circumstantial evidence that Richard seeks to use to prove causation also includes the notes Liuzzo took during her phone conversation with Patricia. Richard's Brief at 35-36. Richard argues that the notes Liuzzo wrote during that phone call, in which she told Liuzzo how her fall happened, were not hearsay because he did not offer the contents of those notes to prove the truth of the matter asserted. Id. Richard asserts that he was not offering the portion of the note stating, "(outside railing in bushes) could not use it" to prove its truth, i.e., that Patricia could not use the handrail because the bushes covered it, rather, he claims that he was offering this statement to support the notion that Patricia believed the inaccessible handrail caused her injury. Id. at 36.
Similarly, Richard contends that the portion of Liuzzo's notes stating, "told NOT work related - building owner's problem" was also not hearsay. Id. (emphasis in original). Richard argues that he was not offering this statement to prove the truth of the matter asserted, i.e., that the fall was not work related and that it was the building owner's problem, rather, he was offering this statement to prove that Patricia had the understanding that the building owner may have been responsible for her fall. Id. Even if Richard is correct, and these notes do not constitute hearsay, they still do not help him prove causation. Patricia may have believed that the inaccessible handrail caused her injury and she may have had the understanding that the building owner was responsible for her fall. However, none of this proves that the inaccessible handrail caused Patricia's fall. Accordingly, to the extent that Richard does not offer these notes to prove the truth of the matters asserted, they are still not proof of causation.
Richard also seeks to use the expert reports completed by Frank Mullen, AIA ("Mullen") and Lila Laux, Ph.D. ("Laux") as circumstantial evidence of causation. Richard's Brief at 22. Mullen and Laux's reports, in which each opines that the cause of Patricia's fall was the inaccessible handrail, are not sufficient evidence of causation to overcome Frank and Verla's motion for summary judgment. See Architect's Report of the Patricia Pleger Incident, 5/31/12, (hereinafter "Mullen Report") at 3, 6; Report of Lila F. Laux, 7/28/12, (hereinafter "Laux Report") at 4-5. The Pennsylvania Supreme Court has set forth the following standard of review regarding consideration of expert testimony when deciding a motion for summary judgment:
It has long been Pennsylvania law that, while conclusions recorded by experts may be disputed, the credibility and weight attributed to those conclusions are not proper considerations at summary judgment; rather, such determinations reside in the sole province of the trier of fact, here, a jury. Miller v. Brass Rail Tavern, Inc., 541 Pa. 474, 664 A.2d 525, 528 (1995); In re Estate of Hunter, 416 Pa. 127, 205 A.2d 97, 102 (1964)Summers v. Certainteed Corp., 997 A.2d 1152, 1161 (Pa. 2010).
("The credibility of witnesses, professional or lay, and the weight to be given to their testimony is strictly within the proper province of the trier of fact."). Accordingly, trial judges are required 'to pay deference to the conclusions of those who are in the best position to evaluate the merits of scientific theory and technique when ruling on the admissibility of scientific proof.' Grady v. Frito-Lay, Inc., 576 Pa. 546, 839 A.2d 1038, 1045 (2003) (citing Frye, 293 F. 1013).
At the summary judgment stage, a trial court is required to take all facts of record, and all reasonable inferences therefrom, in a light most favorable to the non-moving party. Toy v. Metro. Life Ins. Co., 928 A.2d 186, 195 (Pa. 2007). This clearly includes expert testimony and reports submitted by the nonmoving party or provided during discovery; and, so long as the conclusions contained within those reports are sufficiently supported, the trial judge cannot sua sponte assail them in an order and opinion granting summary judgment. Contrarily, the trial judge must defer to those conclusions, see Grady, Frye; and should those conclusions be disputed, resolution of that dispute must be left to the trier of fact. Miller, 664 A.2d at 528.
In support of his conclusion that the inaccessible handrail caused Patricia's fall, Mullen relies on the deposition testimony of Patricia's father, mother, and sister. Mullen Report at 2-3. Mullen also points to the fact that the handrail was allegedly in violation of the Lancaster Building Code and characterizes handrails as a critical piece of safety equipment. Id. at 4. Although Mullen concludes that the inaccessible handrail caused Patricia's fall, the evidence Mullen relies on does not sufficiently support this conclusion. See Summers, 997 A.2d at 1161. Mullen relies on the inadmissible hearsay testimony of Patricia's father, mother, and sister, which we have already determined cannot be used to defeat a motion for summary judgment. See pp. 7-9, supra. Additionally, even if Frank and Verla are in violation of the Lancaster Building Code, Richard still must prove that this violation was the proximate cause of Patricia's fall. See Schemberg v. Smicherko, 85 A.3d 1071, 1074 (Pa. Super. 2014) (holding that recovery under a negligence per se theory requires proof of proximate cause). Although Mullen demonstrates that handrails are a critical piece of safety equipment, this does not lead to the conclusion that the inaccessibility of a handrail caused Patricia's fall. Therefore, we conclude that Mullen's report does not provide evidence of causation.
Section 1012.6 of the Lancaster Building Code provides:
1012.6 Clearance. Clear space between a handrail and a wall or other surface shall be a minimum of 1.5 inches (38 mm). A handrail and a wall or other surface adjacent to the handrail shall be free of any sharp or abrasive elements.
A clear space is needed between a handrail and the wall or other surface to allow the user to slide his or her hand along the rail with fingers in the gripping position without contacting the wall surface, which could have an abrasive figure.
In support of her conclusion that the inaccessible handrail caused Patricia's fall, Laux states that the inaccessible handrail created a stairway that "was unreasonably dangerous." Laux Report at 5. Laux further states that had there been an accessible handrail for Patricia to use, "she would have been able to prevent herself from losing her balance and falling." Id. If the inaccessibility of a handrail made the stairway unreasonably dangerous, that alone is still not enough to prove that the inaccessible handrail caused Patricia's fall. Moreover, we do not have, and Laux's report does not provide, any evidence of what caused Patricia to begin falling. Patricia could have started to fall because she tripped over something, because the handrail was inaccessible, or because, as Laux suggests, Patricia lost her balance. See id. Therefore, we conclude that Laux's report also does not provide evidence of causation.
Richard attempts to argue that the trial court erred when it ruled that he presented no evidence of causation because the record shows that Patricia was in the habit of using handrails when ascending and descending stairs due to a knee injury that she had sustained. Richard's Brief at 21-22. Pa.R.E. 406 provides:
Evidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or there was an eyewitness.Pa.R.E. 406. However, the fact that Patricia was in the habit of using handrails when she used stairs does not prove that the inaccessible handrail at issue in this case caused her fall. It only shows that she likely used handrails when ascending and descending stairs. Therefore, this argument fails.
Richard also argues that the trial court erred "by failing to recognize that, under Pennsylvania law, a possessor of land may be liable for failing to provide accessible handrails." Richard's Brief at 25. The trial court, however, made no such determination. See Trial Court Opinion, 12/6/12, at 7. In its opinion, the trial court stated, "Pennsylvania case law stands for the proposition that the absence of a handrail cannot form the basis for a claim of negligence unless the plaintiff can prove that it was the proximate cause of the injury." Id. (emphasis added) (citing Wisniewski v. Chestnut Hill Hosp., 170 A.2d 595 (Pa. 1961)). Thus, the trial court never stated that a possessor of land could not be liable for failing to provide accessible handrails, rather, it stated that a plaintiff must prove that the absence of a handrail was the proximate cause of the injury. See id.
Richard also asserts that he does not have to show that the handrail was the sole cause of Patricia's fall. Richard's Brief at 26-31. Richard argues Frank and Verla cannot avoid liability merely because the deposition testimony of Patricia's father indicated a previous knee injury might have caused her fall. Id. at 26; see Deposition of Dennis Kaiser, 4/24/12, at 5. Richard contends that accessible handrails still could have prevented Patricia's injury. Richard's Brief at 27-31. While it is true that Richard does not have to prove that the inaccessible handrail was the sole cause of Patricia's fall, however, our negligence case law does require Richard to prove that the inaccessible handrail was the proximate cause of Patricia's fall. See Lux, 887 A.2d at 1286. Because Richard has not presented evidence of the proximate cause of Patricia's fall, this argument fails. See pp. 7-13, supra.
Richard further contends that the inaccessible handrail constituted negligence per se because the overgrown bushes around the handrail was a violation of Lancaster Building Code § 1012.6. Richard's Brief at 31-33. This Court has previously stated the rule of negligence per se as follows:
The concept of negligence per se establishes the elements of duty and breach of duty where an individual violates an applicable statute, ordinance, or regulation designed to prevent a public harm. However, a plaintiff, having proven negligence per se cannot recover unless it can be proven that such negligence was the proximate cause of the injury suffered.Schemberg, 85 A.3d at 1074 (quotations and citation omitted). Even if we assume that Frank and Verla have violated the Lancaster Building Code by allowing the bushes to cover the handrail, Richard has failed to provide any evidence that the lack of access to the handrail was the proximate cause of Patricia's injuries. See pp. 7-13, supra. Therefore, we agree with the trial court that Richard's negligence per se claim fails.
In his final issue on appeal, Richard argues that the trial court exceeded its authority by making credibility determinations about the evidence presented by Richard relating to the cause of Patricia's fall. Richard's Brief at 39. Specifically, Richard claims that the trial court usurped the role of the jury by determining that the testimony of Patricia's father, mother, and sister, was inconsistent as to whether Patricia's knee giving out caused her fall or whether the inaccessible handrail caused her fall. See id. at 39-40; Trial Court Opinion, 12/6/12, at 5; Deposition of Dennis Kaiser, 4/24/12, at 5; Deposition of Blanche Kaiser, 4/24/12, at 5; Deposition of Elizabeth Nye, 4/23/12, at 5. However, the trial court's determination that this testimony was inconsistent was not the basis of its decision. See Trial Court Opinion, 12/6/12, at 4-7. Rather, the trial court based its decision to grant summary judgment in favor of Frank and Verla on Richard's inability to provide any evidence regarding the cause of Patricia's fall. See id. Therefore, we conclude that the trial court did not err by stating that this testimony was inconsistent.
Viewing the evidence in the light most favorable to Richard, and for all of the foregoing reasons, we agree with the trial court's conclusion that Richard has failed to present a prima facie case for negligence because he has failed to present evidence that the inaccessible handrail was the proximate cause of Patricia's fall.
Order affirmed. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary
Lancaster Building Code § 1012.6.