Hackenburg, P. v. Grane Healthcare ( 2016 )

J-S17040-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PAMELA HACKENBURG, ADMINISTRATOR : IN THE SUPERIOR COURT OF
OF THE ESTATE OF FRANK T. MOTYL, : PENNSYLVANIA
DECEASED :
:
Appellant :
:
v. :
:
GRANE HEALTHCARE CO. AND ALTOONA :
CENTER FOR NURSING CARE, LLC, AND :
AMBER TERRACE :
:
:
: No. 1364 WDA 2015
Appeal from the Order August 5, 2015
in the Court of Common Pleas of Blair County Civil Division
at No(s): 2011-GN 2346
BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MAY 27, 2016
Appellant, Pamela Hackenburg, Administrator of the Estate of Frank T.
Motyl, Deceased (“Decedent”), appeals from the order entered in the Blair
County Court of Common Pleas granting Appellees’, Grane Healthcare Co.,
Altoona Center for Nursing Care, LLC, and Amber Terrace’s, motion for
summary judgment. Appellant contends that there were material issues of
fact as to whether Decedent was capable of independently entering and
leaving the personal care home, Amber Terrace. Appellant avers that it was
*
Former Justice specially assigned to the Superior Court.
J-S17040-16
reasonably foreseeable that Decedent would be struck by an impaired driver
while crossing the street. We affirm.
The trial court summarized the facts and procedural posture of this
case as follows:
Altoona Center for Nursing Care, LLC, and Amber
Terrace (“Amber Terrace”) are the same entity functioning
as a personal care home.
* * *
Decedent . . . became a resident of Amber Terrace on
August 13, 2004. On July 9, 2010, [D]ecedent was fatally
injured by an impaired driver[1] while walking across the
intersection of 17th Street and Ninth Avenue in Altoona.
[Appellant] was appointed Administrator of the estate of
[Decedent] on November 1, 2010. [Appellant] began the
instant action with the filing of a Writ of Summons on July
19, 2011. This [c]ourt issued a Writ Notice on August 27,
2013 instructing [Appellant] to file a Complaint within
thirty days. [Appellant] filed a Complaint on September
26, 2013 to which [Appellees] filed Preliminary Objections
on October 17, 2013. [Appellant] filed an Amended
Complaint on November 4, 2013. [Appellees] again filed
Preliminary Objections which the [c]ourt denied on January
23, 2014.
The Amended complaint alleges that [Appellee] Amber
Terrace knew or should have been aware of [D]ecedent’s
propensity to wander and run away and was negligent in
failing to monitor and implement a support and care plan
to address [D]ecedent’s habits, including home rules
regarding when a resident could leave and return to the
facility. [Appellant] further averred that [Appellee] Grane
Healthcare Co. failed to require a support plan for
1
The police criminal complaint stated that the accused was driving under the
influence of a controlled substance. R.R. at 160a. Where applicable, we
refer to the reproduced record for the parties’ convenience.
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[D]ecedent and employ competent staff despite provided
consultation, advice, administrative support, and skilled
nursing care at Amber Terrace. In response, [Appellees]
denied the allegations and asserted that there was no duty
to restrict [D]ecedent’s movement nor were [Appellees]
the proximate cause of [Decedent’s] injuries.
Trial Ct. Op., 8/5/15, at 1-2 (citations omitted).
Appellees filed a motion for summary judgment. Argument was held
on the motion on July 29, 2015. On August 7, 2015, the court granted the
motion. On August 27, 2015, a praecipe to enter judgment was filed and
judgment was entered on the same date. This timely appeal followed.
Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement of errors
complained of on appeal.2 The court filed a letter, in lieu of an opinion,
relying on the existing record.
Appellant raises the following issues for our review:
A. Whether the trial court erred in finding no duty on a
personal care home to limit a resident’s movement when
the resident has a history of wandering?
B. Whether the trial court erred in making factually [sic]
determinations as opposed to determining whether
genuine issues of material fact exists?
2
We note that Appellant's Rule 1925(b) statement contains issues that are
not raised on appeal. See Gurley v. Janssen Pharm., Inc., 113 A.3d 283,
288 n.11 (Pa. Super. 2015) (issues raised in Rule 1925(b) and not
addressed in the statement of questions or body of brief held abandoned on
appeal).
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C. Whether it is reasonably foreseeable to a personal care
home that a resident with a history of wandering would be
struck by a vehicle at 5:30 a.m. unaccompanied?
Appellant’s Brief at 3.
Appellant argues that Appellees breached the duty of care to
Decedent, as a resident of a personal care home. Id. at 9. Appellant
contends the report of Mark Levine,3 an expert in senior care administration,
indicates “that Amber Terrace was negligent in failing to assess [Decedent’s]
risk of unsafe walking as well as its failure to develop behavioral strategies
to minimize his risk and monitor those through interventions to increase his
safety.” Id. at 14. Appellant claims that “[t]he fact that the driver that
struck and killed [D]ecedent was impaired does not change the fact that it
was reasonably foreseeable that [Decedent] would be struck by a vehicle
while walking.” Id. Appellant avers that there is a material issue of fact as
to whether Decedent’s “condition had significantly changed to prompt an
additional assessment or to update his support plan.” Id. at 18. Appellant
states that as “Mr. Levine indicates, both [Decedent’s] son and daughter
indicated they recognized cognitive changes in [him] during his stay at
[Amber Terrace].” Id. Lastly, Appellant contends that it was reasonably
foreseeable to Appellees that Decedent would be struck by a vehicle at 5:30
a.m. Id. at 19. Appellant is due no relief.
3
See R.R. at 171a-79a.
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We address Appellant’s issues together because they are interrelated.
Our review is governed by the following principles:
The standards which govern summary judgment are well
settled. When a party seeks summary judgment, a court
shall enter judgment whenever there is no genuine issue of
any material fact as to a necessary element of the cause of
action or defense that could be established by additional
discovery. A motion for summary judgment is based on an
evidentiary record that entitles the moving party to a
judgment as a matter of law. In considering the merits of
a motion for summary judgment, a court views 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.
Finally, the court may grant summary judgment only when
the right to such a judgment is clear and free from doubt.
An appellate court may reverse the granting of a motion
for summary judgment if there has been an error of law or
an abuse of discretion. . . .
Varner-Mort v. Kapfhammer, 109 A.3d 244, 246-47 (Pa. Super. 2015)
(citation omitted).
It is well established that
[i]n Pennsylvania, the elements of a cause of action based
upon negligence are:
(1) a duty or obligation recognized by the law
requiring the defendant to conform to a certain
standard of conduct for the protection of others
against unreasonable risks;
(2) defendant's failure to conform to the standard
required;
(3) a causal connection between the conduct and the
resulting injury;
(4) actual loss or damage resulting to the plaintiff.
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R.W. v. Manzek, 888 A.2d 740, 746 (Pa. 2005) (citations omitted).
It is beyond question that the mere existence of
negligence and the occurrence of injury are
insufficient to impose liability upon anyone as there
remains to be proved the link of causation.
Furthermore, our Supreme Court has stated that “. .
. even 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 between defendant’s conduct, and it must
be shown to have been the proximate cause of
plaintiff’s injury.”
“Proximate causation is defined as a wrongful act which
was a substantial factor in bringing about the plaintiff’s
harm.” Proximate cause does not exist where the causal
chain of events resulting in plaintiff’s injury is so remote as
to appear highly extraordinary that the conduct could have
brought about the harm.
Lux v. Gerald E. Ort Trucking, Inc., 887 A.2d 1281, 1286-87 (Pa. Super.
2005) (citations omitted).
A personal care home is statutorily defined as follows:
“Personal care home” means any premises in which
food, shelter and personal assistance or supervision are
provided for a period exceeding twenty-four hours for four
or more adults who are not relatives of the operator, who
do not require the services in or of a licensed long-
term care facility but who do require assistance or
supervision in such matters as dressing, bathing, diet,
financial management, evacuation of a residence in the
event of an emergency or medication prescribed for self
administration.
62 P.S. § 1001 (emphasis added).
The Pennsylvania Administrative Code addresses the rights of
residents of personal care homes. The Code provides that “[a] resident has
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the right to leave and return to the home at times consistent with the home
rules and the resident’s support plan.” 55 Pa. Code § 2600.42(m).
Furthermore, “[a] resident shall be free from restraints.” Id. § 2600.42(p).
The Code provides the criteria for a care plan.
(c) The resident shall have additional assessments as
follows:
(1) Annually.
(2) If the condition of the resident significantly changes
prior to the annual assessment.
55 Pa. Code § 2600.225(c)(1), (2).
Morgan Wiser, a “LPN and a personal care administrator,” was
deposed. Dep., 5/11/15, at 9.4 She worked at Amber Terrace from January
of 2006 until September 2011. Id. at 12. She testified, inter alia, as
follows.
[Counsel for Appellant]: In 2009 and 2010, let’s talk
about those time periods. You were the personal care
administrator; correct?
A: Uh-huh (yes).
Q: Whose responsibility would it have been to do the
support plan?
A: I did the support plan.
Q: . . . What information did you take into account in
preparing the support plan for [Decedent]?
4
We note that the reproduced record does not contain the first twenty pages
of the deposition.
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A: Can you be more specific?
Q: . . . Did you utilize the nurse’s notes, for example . . . .
A: Yes. [Decedent] was very independent, I’m sure as you
know, through reading through his chart. . . .
* * *
Q: Would you rely on the medical evaluations done by a
doctor on a yearly basis?
A: For the support, yes.
Q: . . . Would you rely on the daily notes that were
provided as far as, for example, the people that dealt with
him on a daily basis?
A: Possibly. We were a small unit and, I mean, we really
knew our residents incredibly well. . . .
* * *
Q: Now, in the support plan, there are things you want to
accomplish; correct? For example, goals and things like
that are established for [Decedent]; correct?
A: Sure.
Q: . . . Who’s responsible for making sure those goals are
met or obtained, is my question?
A: Well, [Decedent’s] support plan, everybody’s support
plan is different based on what their goals may be. Okay.
[Decedent] was very independent. I don’t believe there
was a whole lot of goals in [Decedent’s] support plan
where anybody needed to be monitoring.
Q: Well, you said that [Decedent] was independent. Were
you aware of what he got there [sic] that it was a result of
an automobile accident involving him as a pedestrian.
A: Uh-huh (yes).
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* * *
Q: . . . You’re aware that in 2007, I believe it was, he was
bit by a dog and didn’t know where he was bit?
A: . . . I don’t know what you mean by he did not know
where he was bit, but that happened because [Decedent]
was a volunteer with nursing services who provided Meals
on Wheels. And it was a consumer’s dog that bit him. So
maybe he meant in that statement he did not know the
consumer by name. . . .
* * *
Q: As part of the home rules and regulations, were there
any specific hours when the residents were permitted to
leave the premises?
A: No.
Q: So if they wanted to leave at three o’clock in the
morning, that was okay?
A: It’s a personal care home. Absolutely. It’s not a
lockdown unit.
R.R. at 75a-79a, 84a-85a.
Counsel showed Ms. Wiser the resident handbook. Id. at at 85a.
Q: . . . This indicates that there’s an escort service
available for residents who have appointments in the
community; correct?
A: That is for the nursing home section of the building.
Q: . . . That’s what?
A: This is for the long─term care section of the building . .
..
* * *
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Q: What were the home rules relative to times that
[Decedent] could leave and come back?
A: . . . [P]eople are free to come and go as they choose.
It’s a personal care home. Again, it’s not a lock[down]
unit.
* * *
Q: Now, this residential personal care home support plan is
dated August 4th, 2009; correct?
A: Yes.
Q: Is this your writing?
A: It looks [sic] to me.
* * *
Q: . . . So you indicate that [Decedent’s] socially
independent and visits with friends in the community.
When you say community, are you referring to community
as in the building or community as in─
A: No.
* * *
Q: . . . What friends did he have living in the community
he was going to visit, if you know?
A: He made frequent rounds to the library. He was at the
library multiple times a week, and he became friends with
the people who worked there. So he would visit them
often.
Grannie’s was one of his favorite restaurants that he
would go to, same thing, as well as our Waffle King. He
was also involved with St. Vincent DePaul. Shields
Trophies, he would go to Shields Trophies often. He liked
to give people little plaques if he thought you did an
excellent job.
* * *
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Q: You were involved with [Decedent] from 2006 through
the time of his death; correct?
A: Correct.
Q: Did you see or notice any changes in his mental outlook
or his abilities?
A: No, not at all.
Q: Okay.
A: Not at all.
Q: Were you aware that in October of 2007, he was
walking on the Interstate after dark and was brought back
by the police?
A: I recall that.
Q: Were you aware that he was gone over eight hours?
A: Yes.
Q: Was there something out of the ordinary or unusual for
[Decedent]?
A: Well, [Decedent] would often be gone for long periods
of time. Now, when that says the Interstate, that does not
mean I-99. [Decedent] went to Juniata College. Again, he
really loved to donate books. He was donating books to
the library at Juanita College. He did not walk there. I
can’t remember now if it was a friend, a pastor friend, he
had that took him there. And [Decedent] lived in that
area, if you know where Juniata College is in Huntington,
he lived in Milroy at some point in time. I believe it was
called Milroy. It’s right past Huntington.
So [Decedent] was familiar with walking . . . . And I
can remember the conversation with him. He walked part
of that way because he wanted to save money before he
called for the taxi to come pick him up. And that was an
area he had walked throughout his life. It wasn’t on a true
like I-99.
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* * *
Q: Now, did you ever take any steps to prevent
[Decedent] from leaving prior to six o’clock in the
morning?
A: No.
Q: . . . Were there ever any complaints from any family or
friends about [Decedent] leaving prior to 6:00 a.m. in the
morning.
A: No.
* * *
Q: Would he go by himself or was there someone with
him?
A: Oh, no. [Decedent] was very independent and came
and left on his own.
Q: When you tell me he’s independent, explain to me
exactly what you mean.
A: He was able mentally and physically to come and go as
[sic] his own free will, as documented through all the
physician notes in that medical record, including the day
before he died.
* * *
Q: How were you notified that [Decedent] was hit by a
vehicle?
* * *
Q: My question is, were you at the facility when
notification came from the police?
A: I was.
Q: Were you the one that was notified?
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A: What happened that day was people noticed driving into
work that there was an accident on 17th Street.
Immediately a staff member had a concern, could that be
[Decedent] because that’s an area he normally walks. You
know, somebody was injured. We wanted to make sure
[Decedent] was okay. So Roger, my boss, took a picture
to the police, because at that time, and this is a little bit of
an example of what good health [Decedent] was in, he
didn’t have identification on him and they thought it was a
58-year-old man.
So Roger took a picture of [Decedent]. Well, first Roger
went to see─. I can’t remember exactly what all he did,
but he went first or he called and they said could you bring
a picture. And he brought a picture and then Roger came
back and said it was [Decedent] who was hit.
Q: And that’s an area you said he liked to walk on a
regular basis?
A: . . . It was on the way to our Waffle King, St. Vincent
DePaul where he would go often.
Q: Now, based on your observations of him, you said that
you thought he was healthy at the time?
A: Oh, my goodness, yes.
Q: . . . No problems with his vision or anything like that?
A: No, he didn’t wear glasses.
Q: No problems with his gait?
A: . . . He would take the steps from the lobby to the
seventh floor multiple times a day.
* * *
Q: What else can you tell me about [Decedent’s] condition
just before he passed away, health-wise?
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A: He was wonderful. I mean, do you mean how he got
around?
Q: Yes.
A: He could probably out walk me. And I’m not just saying
that. He was alert and oriented, you know. He did quite
well.
Id. at 88a, 92a, 94a, 96a-97a, 99a-100a, 102a-03a, 107a-11a.
Ms. Wiser was questioned by Appellees’ counsel and testified as
follows.
Q: . . . When we talked about the structure of the personal
care home, what was it that you or your staff did for
[Decedent] on a daily basis . . .?
A: Well, we provided him his meals if he wasn’t going out
to eat. A lot of time he’d help set up the dining room
actually. He would get the coffee ready or set things out
on the tables. And his medication. That was it. He
showered himself. He did everything himself.
Q: You talked about some of the places he would go in the
community. How often would he make those social trips
that you discussed?
A: He was out and about daily.
Q: Every day.
A: Every day he was out and about.
* * *
Q: Now, as the personal care administrator who worked in
that facility every day, you got to know a lot of the
residents, I take it?
A: Yes.
Q: Did you get to know their families?
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A: Oh, yeah.
Q: Did you get to know the people that came to visit?
A: Absolutely.
Q: Pam Hackenburg is [Decedent’s] daughter who’s sitting
in the room. Have you ever met Ms. Hackenburg before?
A: No, I have not.
Q: Did you ever see her at the facility?
A: No, I have not.
Q: Do you ever recall talking to Ms. Hackenburg?
A: No.
Q: Do you recall looking at [Decedent’s] chart and seeing
that at some point in time Ms. Hackenburg was reflected
as his emergency contact?
A: . . . At one point in time, and I don’t remember when
exactly. I know we went around with face sheets just to
make sure any information we had with all the residents
was correct on their face sheets. And [Decedent] said that
this was not his emergency contact. He didn’t recognize
her as being his daughter anymore.
Q: And you’re pointing to a document. . . . Could you
describe what that document is?
A: It’s a face sheet. And what’s on that is the resident’s
name, the date of admission, his date of birth, age,
religion, who his doctor is, his Social Security number, and
his emergency contact.
Q: . . . And Ms. Hackenburg’s name is crossed out and
there’s the writing there that says removed by resident
request. Is that your handwriting?
A: It is.
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Q: And did [Decedent] ask you to remove Ms.
Hackenburg’s name from there?
A: He did.
* * *
Q: Do you recall looking through the chart and seeing an
incident about [Decedent’s] Social Security payments not
being received by the facility?
A: I do.
Q: And can you tell me what you recall about that?
A: The administrator who was there prior to me,
[Decedent] was upset, I believe, because he still didn’t
receive his money. And I believe at one point called the
Social Security office. They had determined that his
checks were cashed. They were being mailed to his
residence. And I know that [Decedent] felt that his
daughter was involved with that . . . .
Q: . . . We’re looking at─are these progress notes for
residents?
A: Yeah.
Q: They would be nurse’s progress notes?
A: Correct.
Q: . . . Now, do you know whose handwriting this is?
A: This was Nora Pennington. She was the administrator
prior to me.
Q: . . . And that is dated January the 17th of 2005?
A: Correct.
* * *
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Q: . . . In the context of your plans of care, [Appellant’s
counsel] asked you if you would rely upon the physician
evaluations?
A: Right.
Q: And you would rely on those; correct?
A: Oh, absolutely.
Q: And in reviewing the most recent physician evaluation
prior to [Decedent’s] passing, can you tell us who it was
that performed that evaluation?
A: That was Dr. Mextorf.
* * *
Q: Now, you mentioned that the day before [Decedent’s]
passing, he was out of the building in Pittsburgh. Can you
expound upon that for us? Why was he in Pittsburgh?
A: He had an outpatient procedure done in Pittsburgh the
day before.
Q: And do you recall knowing about that in advance of the
procedure.
A: Yes.
Q: And what was that procedure?
A: It was a TURP.
Q: T─U─R─P.
A: Correct.
Q: And do you know what that means?
A: Yes, he was having problems with his prostate.
Q: . . . And so they would perform this TURP procedure at
the VA Hospital in Pittsburgh?
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A: Correct.
Q: And do you know how he got to Pittsburgh?
A: He used a shuttle from the VA.
Q: To your knowledge, did any family member take him to
this medical appointment?
A: No, no.
Q: He used the shuttle to get from Altoona to Pittsburgh?
A: Correct.
Q: Did he go by himself?
A: Correct.
Q: Did he have the procedure done to your knowledge?
A: Yes, he did.
Q: Did the VA Hospital release him independently?
A: They did.
Q: And do you know how he got back from the VA Hospital
in Pittsburgh to Altoona?
A: The shuttle.
Q: The VA shuttle?
A: Correct.
Q: And do you know where the VA shuttle would pick him
up?
A: The VA Hospital.
Q: And where is the VA Hospital in relation to Amber
Terrace?
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A: Probably maybe three miles.
* * *
Q: Were you interviewed by the police at any time for this
incident?
A: Yes, the police and the state inspection or the state
inspector, the people who inspect personal care homes,
the Department of Public Welfare, also came to our
building that day because I called to notify them of the
incident. About two hours later, two of them came in.
Q: Why would you notify the Department of Health about
the incident.
A: It’s a regulatory [sic].
Q: So if one of your residents passes away, you have to
notify the department?
A: Correct, correct.
* * *
Q: And what transpired in response to the phone call?
A: They ended up showing up for an onsite review of his
medical record. They interviewed myself, other staff, and
some residents to make sure that, you know, everything
was accurate, that he was alert and oriented, you know,
that he was able to come and go as he pleased.
* * *
Q: They came the same day?
A: Same day.
Q: And was there any action taken by the Department of
Health regarding [Decedent’s] passing?
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A: No. We were not found at any fault for anything that
happened.
Q: They felt that everything was in order?
A: Yes.
Id. at 119a-20a, 122a-25a, 127a-33a.5
The Adult Residential Licensing Personal Care Home Support Plan
indicated that Decedent had no mental health needs. Id. at 138a. He did
not require any behavioral care services. Id. He was socially independent
and visited with friends in the community. Id. at 139a.
In the case sub judice, the trial court opined:6
[Appellant] argues that [Appellees] had the duty to
restrict [D]ecedent from leaving the facility, particularly in
the early morning hours. This position is contrasted by the
personal care home assessments and evaluations that
indicated that [D]ecedent was mentally and physically
5
We note that at the conclusion of the deposition, the record indicates that
“Dr. Mextorf’s resident medical evaluation dated August 5 of ’09 was marked
as Exhibit B.” Id. at 133a-34a. Our review of the certified record reveals
that this medical evaluation was marked as Exhibit “F.” Ms. Wiser testified
that Dr. Mextorf was “the house doctor.” Id. at 74a. The resident medical
evaluation form indicated that [Decedent] “walks without assistance” and
“can self-administer medications with no assistance from others.” Id. at
149a. Dr. Mextorf’s recommendation for appropriate level of care was
“Personal Care Home.” Id.
6
We note that the trial court addressed the issue of whether Appellees had a
duty to restrict Decedent’s movement and therefore breached its duty of
care in part based upon its examination of “the history of corporate
negligence claims particularly in the context of nursing homes.” Trial Ct.
Op., 8/5/15, at 4. “We are not bound by the trial court’s rationale, and may
affirm its ruling on any basis.” The Brickman Grp., Ltd. v. CGU Ins. Co.,
865 A.2d 918, 928 (Pa. Super. 2004) (citation omitted).
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capable to come and go as he desired. Moreover, the
alleged risk of allowing [D]ecedent to leave the facility at
any time was not the cause of [D]ecedent’s fatal injuries;
instead, the harm was caused by an impaired driver. . . .
[Appellees] did not create nor could reasonably foresee the
possibility that [D]ecedent would have left Amber Terrace
on his daily outing and been struck and killed by an
impaired driver.
. . . A consequence of imposing a duty upon [Appellees]
on the facts on [sic] this case would infringe on the
resident’s rights to leave the facility despite the
recommendations of the support plan. . . . Here, Amber
Terrace’s home rules did not restrict the residents from
leaving the premises at specified hours. . . .
Decedent’s personal care home annual assessment
dated August 8, 2008[7] designated [D]ecedent as a
“mobile resident” who[ ] had no impairments as to
judgment, comprehension, communication, memory, and
mobility; wandering was not a problem. Similarly,
Decedent’s personal care home plan dated August 4,
2009[8] provides [D]ecedent had no needs in regards to his
dental, vision, mental health, and behavioral care services
. . . . Significantly, [D]ecedent’s 2009 plan noted that
“[r]esident is socially independent” and “visits with friends
in the community.” As part of these needs, [D]ecedent
was to “sign in and out on 4th floor when entering or
leaving the building.” These sign in sheets accounted for
residents during fire drills.
* * *
[Appellees] alternatively argued that they neither
caused [D]ecedent’s injuries and the impaired driver’s
conduct was a superseding cause that relieved [Appellees]
of any liability. Although it is not necessary for the [c]ourt
7
See R.R. at 142a-47a. The personal care home assessment document’s
pagination indicates that it contained seven pages. However, page seven is
not in the certified record or in the reproduced record.
8
See R.R. at 137a-40a.
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to address the argument, the [c]ourt does so . . . as an
additional basis for granting [Appellees’] Motion for
Summary Judgment.
[Appellant] must establish a causal connection between
[Appellees’] conduct and that such was the proximate
cause of [D]ecedent’s injuries.
* * *
[I]n viewing the evidence in the light most favorable to
[Appellant], the [c]ourt finds that the fatal accident caused
by the impaired driver was not foreseeable as a natural
and probable outcome of [D]ecedent leaving Amber
Terrace whenever he desired.
* * *
[T]he drunk driver’s actions constituted a superseding
cause that relieved [Appellees] of liability.
Trial Ct. Op. at 6-7, 9-11 (citations omitted). We agree no relief is due.
Ms. Wiser prepared the support plan for Decedent. She was involved
with him from 2006 until the time of his death. She testified that Decedent
was independent and visited with his friends in the community. She did not
observe any changes in his mental outlook or his abilities. He was able to
come and go as he pleased. The day before he died, he went independently
to the VA Hospital in Pittsburgh for an outpatient procedure. He took walks
on a regular basis. She stated that she never met Decedent’s daughter and
in fact Decedent did not recognize her as being his daughter.
We find no merit to Appellant’s claim that Appellees should have
restricted Decedent’s walking because it was unsafe. See 55 Pa. Code §
2600.42(m), (p). Appellant has not established that Appellees were
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negligent in failing to establish a care plan for Decedent that would restrict
his movement. See R.W., 888 A.2d at 746. Appellant’s contention that it
was reasonably foreseeable that Decedent would be struck and killed by an
impaired driver at 5:30 a.m. is without merit. See Lux, 887 A.2d at 1286-
87. We find no error of law or abuse of discretion by the trial court. See
Varner-Mort, 109 A.3d at 246-47. Therefore, we affirm the order granting
Appellees’ motion for summary judgment.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/27/2016
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