Shifflett, P. v. Mengel, J. ( 2023 )

J-A19023-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PAMELA D. SHIFFLETT : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
JOAN K. MENGEL :
:
Appellee : No. 1517 MDA 2021
Appeal from the Judgment Entered November 23, 2021
In the Court of Common Pleas of Lebanon County
Civil Division at No(s): 2018-01553
BEFORE: BOWES, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY KING, J.: FILED MARCH 20, 2023
Appellant, Pamela D. Shifflett, appeals from the judgment entered in
the Lebanon County Court of Common Pleas, in favor of Appellee, Joan K.
Mengel, following a jury trial. We affirm.
The trial court opinion set forth the relevant facts of this appeal as
follows:
On September 26, 2016, a collision occurred between
vehicles operated by [Appellant] and [Appellee]. As a result
of that collision, [Appellant’s] vehicle was “spun around”
with its front tires in the road and its rear tires in the grass
adjacent to the road. (N.T. Trial, 8/9/21, at 7). [Appellant]
was not injured while she remained inside the vehicle. (Id.
at 36). [Appellant] was able to leave the vehicle and walk
on her own. After walking on or toward the roadway,
[Appellant] returned to her vehicle to get her phone in order
to dial 911. (Id. at 9, 36). At some point after she called
911, [Appellant] walked into a culvert and twisted her ankle.
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-A19023-22
(Id.)
On October 19, 2018, [Appellant] initiated a Civil Complaint
against [Appellee]. At a pre-trial conference that occurred
on July 13, 2021, [Appellee] acknowledged negligence, but
not causation. In other words, [Appellee] acknowledged
that the collision between her car and the one driven by
[Appellant] was her fault. However, [Appellee] did not
acknowledge that the accident caused any harm to
[Appellant].
Both [Appellant] and [Appellee] produced medical experts
to provide testimony to the jury via videotaped deposition.
[Appellee’s] expert, Dr. Daniel C. Farber, provided
testimony about the seriousness of the injury claimed by
[Appellant]. On cross-examination, [Appellant’s] counsel
endeavored to get Dr. Farber to testify that [Appellant]
suffered some injury as a result of [Appellee’s] negligence.
Dr. Farber would not specifically provide such [testimony].
Rather, Dr. Farber acknowledged that [Appellant] suffered
what he described as a “minor ankle sprain” “at the accident
scene.” Dr. Farber did not—nor could he—render an opinion
about whether the negligence of [Appellee] was a cause of
harm suffered by [Appellant].
At trial, there was significant discussion about the issue of
causation. [Appellant] submitted a request for a directed
verdict on the issue of causation. According to [Appellant’s]
counsel, Dr. Farber’s testimony constituted a binding legal
admission that [Appellant] should be entitled to at least
some damages. (See Motion for Directed Verdict, 8/10/21;
N.T. Trial, 8/9/21, at 43-46; N.T. Trial, 8/10/21, at 4). [The
trial c]ourt consistently denied [Appellant’s] request for a
directed verdict on the issue of causation. However, [it]
agreed with [Appellant] that if the jury found even a minor
injury resulted from the accident, then the jury’s verdict
could not be zero dollars. (N.T. Trial, 8/10/21, at 6).
At trial, [the c]ourt provided both counsel with a complete
copy of everything it planned to communicate to the jury
during its Closing Instructions. (Id. at 4). [Appellant’s]
counsel objected to the [c]ourt’s use of the phrase “a
substantial factor[” in defining causation.] (Id. at 5).
[Specifically, in response to the court’s question as to
-2-
J-A19023-22
whether there were any comments or objections,
Appellant’s counsel stated “I just want to renew my
objection with regards to the use of the old language, a
substantial factor, for purposes of preserving that. Other
than that, I have no problem.” (Id.)] … [N]o other
objection was proffered when the instructions were provided
in advance to both counsel. [The trial c]ourt rejected
[Appellant’s] counsel’s challenge to the words “a substantial
factor.” …
(Trial Court Opinion, 11/3/21, at 1-3).1
On August 10, 2021, the jury returned a verdict in favor of Appellee.
Although the jury found Appellee was negligent by agreement of the parties,
it decided “[Appellee’s] negligence was not a factual cause of any harm to
[Appellant.]” (Id. at 31).
Appellant filed a motion for post-trial relief on August 17, 2021,
requesting a new trial or entry of judgment notwithstanding the verdict
(“JNOV”). In her post-trial motion, Appellant first claimed the court erred in
not entering a directed verdict as to causation. Second, Appellant asserted
that the court’s jury instruction erroneously included the language “substantial
factor” and “caused by the accident.” (Post-Trial Motion, filed 8/17/21, at 4).
After receiving briefs from the parties, the court entered an order on
____________________________________________
1 After the court issued its closing instructions to the jury, Appellant’s counsel
requested “some form of clarification that when [the court] referenced
accident, [it was] referring to negligence as well…. I am simply saying that
the repetitive use of the word ‘accident’ could distract them from that reality.”
(N.T. Trial, 8/10/21, at 28-29). The court responded: “I think we are talking
semantics,” to which Appellant’s counsel then stated: “We can deal with it
later if you don’t want to deal with it now.” (Id. at 29). Thereafter, the court
did not provide any correction or clarification to its instructions.
-3-
J-A19023-22
November 3, 2021, denying post-trial relief. Appellant filed a praecipe to enter
judgment, and judgment was entered on November 23, 2021. Appellant filed
a notice of appeal,2 and on November 26, 2021, the court ordered her to file
a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Appellant timely complied.
Appellant raises the following four issues for our review:
A. Whether the trial court erred by denying [Appellant’s]
motion for a directed verdict on question 2 (causation) when
the trial court told the jury at the start of trial that [Appellee]
conceded [Appellant] suffered injuries as a result of
[Appellee’s] negligence?
B. Where [Appellee] conceded [Appellant] suffered some
injuries as a result of [Appellee’s] negligence, whether the
trial court erred by not granting [JNOV]?
C. Where both [Appellant] and [Appellee] requested the simple
and accurate “factual cause” instruction set forth in Pa. SSJI
§ 13.20, whether the trial court erred by adding more than
either party requested and including the words “substantial
factor” to the jury instructions such that the jury heard
confusing instructions as to causation[?]
D. Whether the trial court erred by instructing the jury that
[Appellant] must prove harm caused “by the accident”
instead of harm caused “by [Appellee’s]
____________________________________________
2 Appellant purported to appeal from the trial court’s order denying her post-
trial motion. An order denying post-trial motions is interlocutory and generally
not appealable. See Levitt v. Patrick, 976 A.2d 581, 584 n.2 (Pa.Super.
2009) (stating that appeal properly lies from entry of judgment, not from
order denying post-trial motions). However, because judgment was entered
on November 23, 2021, we consider the appeal as taken from the entry of
judgment. See Johnston the Florist, Inc. v. TEDCO Const. Corp., 657
A.2d 511, 514-15 (Pa.Super. 1995) (en banc) (stating that appellate courts
may “regard as done that which ought to have been done”) (citations
omitted). We have amended the caption accordingly.
-4-
J-A19023-22
negligence/conduct” when [Appellant’s] ankle injury
occurred moments after the accident because [Appellant]
was forced to walk in a dangerous place due to where her
vehicle was pushed by the accident?
(Appellant’s Brief at 4) (questions reordered for purposes of disposition).
In her first issue, Appellant argues the trial court erred when it denied
her motion for a directed verdict. Appellant claims she was entitled to a
directed verdict as to causation because Appellee’s expert conceded that
Appellant suffered an ankle injury as a result of Appellee’s negligence. (Id.
at 13-19). Based on this concession, Appellant insists the court was required
to enter a directed verdict on the issue of causation, relying on Mano v.
Madden, 738 A.2d 493 (Pa.Super. 1999) (en banc), and Andrews v.
Jackson, 800 A.2d 959 (Pa.Super. 2002), appeal denied, 572 Pa. 694, 813
A.2d 835 (2002). We disagree.
Our standard and scope of review are as follows:
Our standard[s] of review when considering motions for a
directed verdict and [JNOV] are identical. We will reverse a
trial court’s grant or denial of a [JNOV] only when we find
an abuse of discretion or an error of law that controlled the
outcome of the case. Further, the standard of review for an
appellate court is the same as that for a trial court.
There are two bases upon which a [JNOV] can be entered;
one, the movant is entitled to judgment as a matter of law
and/or two, the evidence is such that no two reasonable
minds could disagree that the outcome should have been
rendered in favor of the movant. With the first, the court
reviews the record and concludes that, even with all factual
inferences decided adverse to the movant, the law
nonetheless requires a verdict in [her] favor. Whereas with
the second, the court reviews the evidentiary record and
concludes that the evidence was such that a verdict for the
-5-
J-A19023-22
movant was beyond peradventure.
Reott v. Asia Trend, Inc., 7 A.3d 830, 835 (Pa.Super. 2010), aff’d, 618 Pa.
228, 55 A.3d 1088 (2012) (quoting Campisi v. Acme Markets, Inc., 915
A.2d 117, 119 (Pa.Super. 2006)).
“To prevail in a negligence action, the plaintiff must show that the
defendant had a duty to conform to a certain standard of conduct, that the
defendant breached that duty, that such breach caused the injury in question,
and actual loss or damage.” Barton v. Lowe’s Home Centers, Inc., 124
A.3d 349, 359 (Pa.Super. 2015) (citation omitted).
[T]he determination of whether the defendant’s conduct
was a substantial cause of the injuries complained of should
not be taken from the jury if the jury may reasonably differ
as to whether the conduct of the defendant has been a
substantial factor in causing the harm. See also
Restatement (Second) of Torts § 434. If issues are raised
on which a jury may not reasonably differ, it is proper for
the trial court to decide them. If, on the other hand, a
jury may reasonably differ on whether the
defendant’s conduct was a substantial factor in
causing the injury, generally, the case must go to the
jury on those issues.
Straw v. Fair, 187 A.3d 966, 993 (Pa.Super. 2018) (emphasis added), appeal
denied, 651 Pa. 27, 202 A.3d 49 (2019) (quoting Vattimo v. Lower Bucks
Hosp., Inc., 502 Pa. 241, 247, 465 A.2d 1231, 1233-34 (1983) (plurality)).
In Mano, surpa, this Court held that it was “impermissible for a jury…to
disregard the uncontroverted testimony from experts from both parties that
the plaintiff suffered some injury as a result of the accident in question.”
Mano, supra at 497. Similarly, in Andrews, supra, this Court held that
-6-
J-A19023-22
“[w]here there is no dispute that the defendant is negligent and both parties’
medical experts agree the accident caused some injury to the plaintiff, the
jury may not find the defendant’s negligence was not a substantial factor in
bringing about at least some of plaintiff’s injuries.” Andrews, supra at 962
(emphasis omitted).
Instantly, the trial court explained:
[The court] listened to the entirety of Dr. Farber’s[, the
defense expert’s,] videotaped testimony in [c]ourt.
Nowhere did Dr. Farber link the motor vehicle accident that
[Appellee] admitted causing to the ankle injury suffered by
[Appellant.] Dr. Farber acknowledged that the ankle injury
occurred “at the accident scene,” but he carefully avoided
the semantic trap that [Appellant’s] counsel attempted to
set. Based upon the totality of Dr. Farber’s testimony, we
cannot agree with [Appellant’s] assertion that Dr. Farber’s
testimony required us to remove the issue of causation from
the jury’s hands.
(Trial Court Opinion at 5). The trial court further stated:
To be sure, [Appellee] acknowledged that her negligence
caused her vehicle to collide with the one operated by
[Appellant]. However, at no time did [Appellee] concede
the issue of causation. To argue that [the trial court] should
have taken the issue of causation from the jury based upon
obtuse language from a medical expert who was dealing
primarily with the seriousness of [Appellant’s] injury would
have been profoundly unfair. Causation in this case was
very much a jury issue.
(Id. at 7).
Upon review, we conclude that Appellant’s reliance on Andrews, supra
and Mano, supra is misplaced. Whereas in those cases, experts for both
parties agreed that there was injury caused by the accident, there was no
-7-
J-A19023-22
such agreement between the parties’ experts in the case before us. Thus, the
cases on which Appellant relies are distinguishable, and the court properly
submitted the issue of causation to the jury. See Straw, supra. Appellant’s
first issue affords her no relief.
In her second issue, Appellant again insists that Appellee’s expert
conceded that Appellant’s sprained ankle was caused by Appellee’s
negligence. Based on this assertion, Appellant contends the jury was not
permitted to render a verdict in favor of Appellee on the issue of causation.
Alternatively, Appellant claims that the evidence established she suffered
some “neck, shoulder, and abdomen injuries” in the car crash. Appellant
concludes the jury’s verdict was flawed and against the weight of the evidence,
and the trial court should have granted her motion for JNOV or granted a new
trial. (Appellant’s Brief at 30-31). We disagree.
Regarding a motion for JNOV:
The trial court may award a [JNOV] or a new trial only when
the jury’s verdict is so contrary to the evidence as to shock
one’s sense of justice. In determining whether this standard
has been met, appellate review is limited to whether the trial
judge’s discretion was properly exercised, and relief will only
be granted where the facts and inferences of record disclose
a palpable abuse of discretion. When a fact finder’s verdict
is so opposed to the demonstrative facts that looking at the
verdict, the mind stands baffled, the intellect searches in
vain for cause and effect, and reason rebels against the
bizarre and erratic conclusion, it can be said that the verdict
is shocking.
Haan v. Wells, 103 A.3d 60, 70 (Pa.Super. 2014) (citations and internal
quotation marks omitted).
-8-
J-A19023-22
Here, Appellant testified that she suffered pain in her right ankle about
a week after the accident. (N.T. Trial, 8/9/21, at 12-13). Appellant also
introduced into evidence videotaped deposition testimony from her expert, Dr.
Paul J. Juliano, who treated her for an ankle injury.3 Dr. Juliano opined that
Appellant’s ankle injuries were caused by the accident. (Juliano Dep. at 9).
Appellee introduced into evidence videotaped deposition testimony from
her expert, Dr. Farber. Dr. Farber testified that after “reviewing [Appellant’s]
records and her exam and her story, it appeared that she had some minor
ankle strain at the accident scene.” (Farber Dep. at 21). On cross-
examination the following exchange occurred:
Q. Now, you indicated that you believed [Appellant] suffered
a minor ankle sprain in her right ankle as a result of the
defendant’s negligence; is that correct?
A. Well, at the accident scene she had that injury. I can’t
tell you where it comes from, but...
Q. Well, [Appellant]–
____________________________________________
3 We note that it is Appellant’s responsibility to supply a complete record for
our review. See Pa.R.A.P. 1911(a). The certified record in this matter
contains only a limited excerpt of the trial transcript related to causation.
Appellant did not ensure that the certified record contained the full trial
transcript. Nor did she supply this Court with the official transcripts of
deposition testimony. Cade v. McDanel, 679 A.2d 1266, 1268-69 (Pa.Super.
1996) (stating appellant has duty to supply this Court with official transcripts
of deposition testimony; failure to confirm that original certified record for
appeal contains sufficient information to conduct proper review constitutes
waiver of issues sought to be examined). Although we could deem Appellant’s
issues waived on this ground, Appellant included complete copies of the
experts’ depositions in her reproduced record (the veracity of which Appellee
does not dispute) upon which we can conduct our review. See id.-9-
J-A19023-22
A. –the car and turning her ankle so that’s–
Q. Understand.
A. I’m not a lawyer to tell you that—the—who’s responsible
for it.
* * *
A. I certainly won’t dispute those details. But if you ask me
to describe who’s responsible for the injury, that’s not—I
don’t look at that as my job. My job is to look at her injury
and—and tell you what I think, you know, happened and
what the treatment was, whether the treatment was
appropriate, that sort of thing. That’s all I can—
Q. Well, you did — you did opine that she suffered a minor
ankle sprain?
A. Correct.
Q. Right. And we can agree that she suffered an ankle injury
when she stepped out of the vehicle on the grass after being
pushed into the grass by the defendant’s vehicle? Can we
agree on that?
A. Again, I don’t know—I can’t speak to the—I have not
studied nor remember the details of her accident. But as
she described to me getting out of the car and turning her
ankle when she stepped into the ditch, that would appear to
be the time which she suffered her injury from her
description.
Q. Okay. And do you have any information that would
suggest that she suffered this ankle sprain that you say she
suffered at any time other than when she’s been pushed into
the grass alongside the road at nighttime?
A. No.
Q. So we can agree that the reason she has a sprained ankle
is because she’s in the dark, on the grass, getting out of a
vehicle that’s been pushed off the roadway?
- 10 -
J-A19023-22
A. We can—we can agree that she stepped out of the car
and turned her ankle and suffered an injury.
Q. Okay. And that she didn’t voluntarily walk into that
grassy area at nighttime?
A. No. But, again, that’s not—that’s not my area of
expertise to look at the forensics of the accident—it’s the—
* * *
Q. …My question. Doctor, was really this: That when you
did the—when you did the defense medical exam, you knew
that the parties would be looking at your report to see what
you said about what injuries were suffered as a result of
[Appellee’s] negligence; is that fair?
A. Sure, yes.
Q. And that what you found was that—was that she did, in
fact, suffer an injury. You just characterize it as a minor
sprain; is that fair?
A. True.
* * *
Q. You wrote a report that indicated that [Appellant] did, in
fact, suffer an injury as a result of being pushed into the
grass. And you are here to tell the jury that she did, in fact,
suffer an injury as a result of that incident; is that fair?
A. I mean, I’m here to present the report of my questioning
and exam and review of the records.
Q. Correct. And your—your report indicated that she did, in
fact, suffer a sprain to her right ankle as a result of being
pushed off the road into the grass—
A. Correct.
Q. Correct? So we can agree on that?
A. Okay.
- 11 -
J-A19023-22
(Id. at 31-34, 51-53).
The trial court found that Appellee’s expert did not concede that the
accident was the cause of Appellant’s ankle injury. Our review of the prior
exchange leads us to agree. While Dr. Farber conceded that Appellant
suffered an ankle injury at the accident scene and following the accident,
he did not concede that the accident caused Appellant’s injury. Therefore,
the question of causation was properly left to the jury, and Appellant was not
entitled to JNOV. Further, viewing the evidence in the light most favorable to
Appellee, as verdict winner, Appellant has not established that the “evidence
was such that a verdict [in her favor] was beyond peradventure.” Reott,
supra at 835. Therefore, Appellant’s second issue merits no relief.4 Reott,
supra; Haan, supra.Appellant’s third and fourth issues are related, and we address them
together. Appellant argues that the court erroneously instructed the jury that
it must find Appellee’s conduct was a “substantial factor” in bringing about
Appellant’s injury to render a verdict in favor of Appellant. Appellant
emphasizes that both parties proposed the court use the same instruction
____________________________________________
4 Regarding Appellant’s alternative argument that she suffered some “neck,
shoulder, and abdomen injuries” in the car crash, our review of the certified
record does not reveal any testimony or evidence to support this claim, other
than Appellant briefly describing some “upper torso” pain that she suffered
the day after the accident. (N.T. Trial, 8/9/21, at 10-11). Accordingly, this
alternative argument does not afford Appellant any relief.
- 12 -
J-A19023-22
regarding causation, the Pennsylvania Suggested Standard Jury Instruction
(SSJI) § 13.20 (Factual Cause). Appellant contends that this instruction
replaced the previously used terms “substantial factor” and “legal cause.”
(Appellant’s Brief at 22). Appellant concludes the trial court erred and abused
its discretion when it gave its own instruction, rather than the SSJI instruction,
ultimately confusing the jury and warranting a new trial.5 We disagree.
Our standard of review when considering the adequacy of jury
instructions in a civil case is to determine whether the trial court committed a
clear abuse of discretion or error of law controlling the outcome of the case.
Pringle v. Rapaport, 980 A.2d 159, 165 (Pa.Super. 2009) (citation omitted).
“It is only when the charge as a whole is inadequate or not
clear or has a tendency to mislead or confuse[,] rather than
clarify a material issue[,] that error in a charge will be found
to be a sufficient basis for the award of a new trial.” Id.(quotation and citation omitted); Commonwealth v.
Chambers, 602 Pa. 224, 980 A.2d 35, 49-50 (2009) (“[a]
charge will be found adequate unless the issues are not
made clear, the jury was misled by the instructions, or there
was an omission from the charge amounting to a
fundamental error”). Further:
____________________________________________
5 Appellant claims the trial court further confused the jury during its
instructions by stating that Appellant’s injuries must have been caused “by
the accident” rather than using the phrase “by the defendant’s negligence.”
(Appellant’s Brief at 27). Nevertheless, Appellant has failed to develop this
argument adequately on appeal. (Id. at 27-28). Consequently, we deem this
particular claim waived. See Coulter v. Ramsden, 94 A.3d 1080 (Pa.Super.
2014), appeal denied, 631 Pa. 719, 110 A.3d 998 (2014) (explaining
arguments that are not appropriately developed on appeal are waived;
arguments not appropriately developed include those where party has failed
to cite any authority in support of contention). Because Appellant waived this
argument by failing to develop it in her brief, we need not consider whether
she properly preserved this challenge before the trial court.
- 13 -
J-A19023-22
[i]n reviewing a trial judge’s charge, the proper test is
not whether certain portions taken out of context
appear erroneous. We look to the charge in its
entirety, against the background of the evidence in
the particular case, to determine whether or not error
was committed and whether that error was prejudicial
to the complaining party.
Reilly by Reilly v. S.E. Pa. Transp. Auth., 507 Pa. 204,
[231,] 489 A.2d 1291, 1305 (1985).
Salsgiver Commc’ns, Inc. v. Consol. Commc’ns Holdings, Inc., 150 A.3d
957, 962-63 (Pa.Super. 2016).
Jury instructions must contain correct definitions of legal terms.
Gorman v. Costello, 929 A.2d 1208, 1213 (Pa.Super. 2007) (citation
omitted). Although “the SSJI are not binding on trial courts, the SSJI are
nonetheless instructive.” Id. Nevertheless, our Supreme Court “has never
adopted the Pennsylvania Suggested Standard Jury Instructions, which exist
only as a reference material available to assist the trial judge and trial counsel
in preparing a proper charge.” Jeter v. Owens-Corning Fiberglas Corp.,
716 A.2d 633, 636 (Pa.Super. 1998) (internal citation omitted). Thus, a trial
judge has wide latitude in his choice of language when charging a jury,
provided that the court fully and adequately conveys the applicable law.
Hatwood v. Hospital of the University of Pennsylvania, 55 A.3d 1229,
1235 (Pa.Super. 2012), appeal denied, 619 Pa. 723, 65 A.3d 414 (2013).
In Gorman, supra, this Court considered a court’s instruction to the
jury concerning causation in a negligence case. Similar to the case here, the
- 14 -
J-A19023-22
appellant was injured after her vehicle was struck by the appellee’s vehicle.
At trial, the court instructed the jury by reading a portion of the Pennsylvania
Suggested Standard Civil Jury Instructions. The jury later returned a verdict
finding that the appellee was negligent, but the negligence was not a factual
cause of the appellant’s injuries.
On appeal, the appellant argued the court erred by reading only a
portion of the suggested instruction on factual causation. This Court agreed,
stating the trial court had failed to provide a complete definition of factual
cause, such that the jury lacked “an essential tool needed to make an informed
decision based on correct and complete legal principles relevant to its verdict
on the issue of damages.” Id. at 1213 (internal citations omitted).
Instantly, the SSJI 13.20 regarding Factual Cause that the parties asked
the court to read states:
In order for [name of plaintiff] to recover in this case, [name
of defendant]’s [negligent] [grossly negligent] [reckless]
conduct must have been a factual cause in bringing about
harm. Conduct is a factual cause of harm when the harm
would not have occurred absent the conduct. To be a factual
cause, the conduct must have been an actual, real factor in
causing the harm, even if the result is unusual or
unexpected. A factual cause cannot be an imaginary or
fanciful factor having no connection or only an insignificant
connection with the harm.
To be a factual cause, [name of defendant]’s conduct need
not be the only factual cause. The fact that some other
causes concur with [name of defendant]’s negligence in
producing an injury does not relieve [name of defendant]
from liability as long as [his] [her] [their] own negligence is
a factual cause of the injury.
- 15 -
J-A19023-22
Pa.SSJI (Civ) § 13.20.
During its instructions, the court charged the jury as follows:
There are two general issues that you will have to address:
Causation and damages. Let me describe those to you in
more detail. As I indicated to you at the outset, the first
issue you will have to decide is whether [Appellee’s] conduct
was a factual cause of harm to [Appellant].
This is, again, a different concept than the question of who
caused the accident. [Appellee] admits that she caused the
accident. However, the question is whether the accident
caused some, all or part or none of [Appellant’s] harm. That
is the question that you must answer.
[Appellant] must prove by a preponderance of the evidence
that [Appellee’s] conduct was a factual cause of her harm.
To be a factual cause an event must have been a substantial
factor in bringing about the harm. Notice, that I have been
very careful to use the word “a” instead of the word “[the]”.
There can be more than one cause of a plaintiff’s harm.
The concept of factual cause does not mean that an accident
has to be the only cause, a primary cause, or even the most
important factor in causing an injury. However, in order for
a plaintiff to recover, the accident must be a substantial
factor in bringing about harm to the plaintiff.
A substantial factor is defined as an actual factor, a real
factor. It is not imaginary. It is not one having only an
insignificant connection to the accident. An accident may
be found to be a factual cause so long as it contributes to a
plaintiff’s harm in any way that you find to be substantial.
Now, as you assess damages you will be required to decide
what damages actually resulted from the accident as
opposed to some other factor. It is at that point that you
will assess the degree to which [Appellant] suffered harm
only as a result of the accident. To reiterate, at this point
as you are answering the question regarding causation you
must only decide whether this accident was a factual cause,
a substantial factor in bringing about some harm to
[Appellant.]
- 16 -
J-A19023-22
It is not necessary at this point for you to conduct a
qualitative analysis of all of the different things that may
have come into play to create harm to [Appellant.] That
analysis will occur when you assess damages.
Let me summarize with respect to causation: Number one,
in order to recover a plaintiff must prove by a
preponderance of evidence that the accident was a factual
cause of the harm of which [Appellant] now complains.
Two, an accident will be deemed a factual cause if it is a
substantial factor in bringing about [Appellant’s] harm.
Three, the accident can be a substantial factor even if other
factors also contributed to [Appellant’s] harm. With respect
to causation you do not need to engage in a qualitative
analysis of how all of the many factors related to the
accident and not related to the accident may have combined
to create a plaintiff’s condition.
You only need to decide if the accident was a substantial
factor in bringing about any harm. …
(N.T. Trial, 8/10/21, at 11-14).
Here, Appellant takes issue with the court’s use of the words “substantial
factor” in defining causation, as SSJI 13.20 does not use that verbiage.
Nevertheless, the court fully defined the principle of causation using language
that has been widely used in Pennsylvania. See, e.g., Straw, supra at 993
(defining causation as established when “conduct was a substantial factor in
bringing about the harm inflicted upon a plaintiff”). See also Rost v. Ford
Motor Co., 637 Pa. 625, 654, 151 A.3d 1032, 1049 (2016) (“To establish
proximate causation, a plaintiff must adduce evidence to show that the
defendant’s act was a substantial factor in bringing about the plaintiff’s
- 17 -
J-A19023-22
harm”). Although the court’s language did not mirror that set forth in SSJI §
13.20, the suggested standard jury instructions are not mandatory.6 See
Jeter, supra. Further, this case is distinguishable from the fundamental error
at issue in Gorman because it does not involve a situation where the court
provided an incomplete definition for a relevant legal principle. Thus, the trial
court did not err in denying Appellant’s request for a new trial, and Appellant’s
final two issues merit no relief. Accordingly, we affirm.
Judgment affirmed.
____________________________________________
6 The Subcommittee Note for SSJI 13.20 explains that “[c]onfusion has been
generated, compounded, and perpetuated by various attempts to make clear
to the jury the ramifications of the distinction between a factual cause of an
accident and a legal cause of an accident.” Pa.SSJI (Civ) § 13.20,
Subcommittee Note. The Note goes on to state that the term “substantial”
means only “significant” and does not require any particular quantification.
Id. Because “proximate cause” is “a term that attempts to give substance to
the distinction between factual cause and legal cause but means nothing to
an ordinary juror,” that term has been omitted from the SSJI, as well as
language such as “substantial factor.” Id. Thus, “the subcommittee
recommends that the emphasis be on cause and that the definition of factual
cause be so stated as to emphasize that it need not be so considerable or
large as to be confused with the plaintiff’s burden of proof, which is
considerably higher.” Id. Accordingly, “[i]t is the committee’s belief that the
substitution of ‘factual cause’ for ‘substantial factor’ and ‘legal cause’ would
not change an essential element in the burden of proof charge or create a
prejudice to any party.” Id.
We reiterate that the SSJI are not mandatory, but as the name makes clear,
suggested jury instructions. See Jeter, supra. Thus, the fact that the SSJI
omits the words “substantial factor” does not mean that inclusion of those
words is necessarily erroneous. Our review of the jury instruction in its
entirety makes clear that the court accurately recited the law pertaining to
causation such that a new trial is not warranted under these circumstances.
See Pringle, supra.- 18 -
J-A19023-22
President Judge Emeritus Stevens joins this memorandum.
Judge Bowes files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/20/2023
- 19 -