Green, C. v. Palfrey, J. ( 2023 )

J-A05005-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COREY GREEN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JOHN PALFREY, MONROE ENERGY, : No. 2424 EDA 2022
LLC AND MIPC, LLC :
Appeal from the Judgment Entered November 4, 2022
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 200900435
BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY LAZARUS, J.: FILED MAY 23, 2023
Corey Green appeals from the judgment, entered in the Philadelphia
Court of Common Pleas, in favor of John Palfrey, Monroe Energy, LLC, and
MIPC, LLC (collectively, Appellees). After review, we affirm.
Green, a career truck driver, had been working for Samuel Coraluzzo
and Company (Coraluzzo) transporting fuel when he sustained a shoulder
injury. Green’s job required him to fill up a tanker trailer with fuel at a local
terminal, transport the fuel to a local gas station, and then unload the fuel at
the gas station. See N.T. Jury Trial, 4/19/22, at 57. Green’s job description
required that he be able to lift 60 pounds waist high. See N.T. Deposition of
Richard Zamarin, M.D., 4/14/22, at 44. Green explained the fuel filling
process as follows:
You enter the terminal, and then you pull into what you call a rack.
The racks . . . are where you fuel the trucks up. [] Externals are
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units attached to the trailer that come out, and what I would do,
I would take [the] loading arm, and lock [it] on, make sure it’s
secure, and I would lock it onto each of the units, and that’s how
the fuel comes from the terminal into the trailer[.]
Id. at 57-58.
Green testified that his injury occurred between the late-night hours of
September 18, 2019, and the early morning hours of September 19, 2019,
while filling his tanker trailer with fuel at the G Street Terminal in Philadelphia
for the fourth time that shift. See N.T. Jury Trial, 4/19/22, at 54-55, 71, 87.
At the time, Appellees Monroe Energy and MIPC owned, operated and
managed the G Street Terminal.1 Additionally, Appellee Palfrey, an agent or
employee of Monroe Energy and MIPC, was the person responsible for
operating the G Street Terminal. Green stated the accident occurred as, “[he]
was lifting the arm . . . trying to line it up with the trailer, [when he] felt a
burning sensation, and then [he] felt a pop.” Id. at 68; id. at 69 (Green
testifying “[his shoulder] started stinging and radiating”). Green explained
that the G Street Terminal fill arm, which he used at least four times each
night, was “very hard to move . . . very stiff . . . [and it] required a lot of
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1 MIPC, LLC, a wholly-owned subsidiary of Monroe Energy, owns and operates
Monroe Energy’s fuel storage and distribution networks. MIPC has three
facilities, including the G Street Terminal. See Monroe Energy:
https://www.monroe-energy.com/ (last accessed 4/24/23). John Palfrey is a
terminal operator at MIPC.
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strength to move those particular arms.”2 Id. at 66-67; id. at 56 (Green
recalls using G Street Terminal every day since working at Coraluzzo).
That same day, Green called his supervisor, who told Green to go to
Concentra, a medical clinic, where Green was prescribed pain medicine and
physical therapy. Id. at 71; see Zamarin-4 (Concentra report stating Green
injured while lifting loading arm at work and felt right shoulder pain
immediately). Concentra performed an MRI, which revealed a rotator cuff
tear in his right shoulder. Id. at 71. Concentra advised Green to receive
treatment by an orthopedic specialist. He then saw Richard Zamarin, M.D.,
an orthopedic specialist, who performed arthroscopic (joint) surgery on
Green’s right shoulder on January 10, 2019. Id. at 74. Doctor Zamarin
testified regarding an August 10, 2021 report he had authored, in which he
concluded: “[Green’s partial rotator cuff tear in his right shoulder] was due
to a work-related injury [incurred] o[n] September 19, 2018.” N.T. Deposition
of Richard Zamarin, M.D., 4/14/22, at 20.
Green also testified that on September 15, 2018, four days prior to the
G Street Terminal incident, he had gone to Roxborough Memorial Hospital
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2 Charles Lyons, a self-employed commercial truck driver, presented similar
testimony. He testified that he used the fill arm at the G Street Terminal in
September 2018, when he worked for Coraluzzo, that the arm was “difficult
to maneuver,” and that “[he] had to put some force, some brute force behind
it just to get the arms to [] line up with the loading portals on the truck.” N.T.
Jury Trial, 4/19/22, at 139. Lyons attempted to testify that the G Street
Terminal fill arm was more difficult to maneuver as opposed to other fill arms.
However, defense counsel objected and the court sustained his objection “as
to other locations.” Id.
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complaining of soreness, weakness, and burning in his right shoulder. N.T.
Jury Trial, 4/19/22, at 77-78, 95; see Zamarin-6 (Roxborough Memorial
medical record stating “[Green] reports right shoulder pain for one week.
[Green] was moving heavy objects and fel[t] a pulling/burning sensation in
the shoulder, the plain is starting to cause numbness and tingling down the
arms and fingers.”). Green testified that he did not explain the “arms”
involved in fuel transport to the hospital but told the emergency room
physician that he had “lifted some heavy equipment prior to this.” Id. at 79
(Green stated, “telling [the hospital] about arms and stuff like that[,] they
wouldn’t understand”). Prior to discharging Green, hospital personnel
performed an x-ray and prescribed Green a muscle relaxer. Id. at 105; id.
at 80 (Green explaining doctors at Roxborough Memorial did not tell Green his
shoulder was injured). The following exchange took place during cross-
examination between defense counsel3 and Green:
Attorney Boyle: Do you see on that record where it says you have
a suspected rotator cuff pain on exam?
Green: Yes, I see that highlighted.
Attorney Boyle: And you understood on September 15[, 2018,]
that they suspected you had a rotator cuff injury, correct?
Green: No, I didn’t.
***
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3 Defendant John Palfrey is represented by Christopher Boyle, Esquire.
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Green: I’m telling you that the emergency room discharged me
with a muscle relaxer and did not inform me that I had a torn
rotator cuff.
Id. at 100-01; see id. at 97-98 (Green stated he signed Roxborough Memorial
Hospital document stating “strained right arm, muscle fascia and tendons of
shoulder and upper arm”); see Zamarin-6, at 7 (Roxborough Hospital medical
record stating x-ray shows “minimal spurring at acromioclavicular joint”)
(unpaginated).4
Doctor Zamarin testified that at the time he prepared his report, he was
only aware of the September 19, 2018 incident where Green lifted the metal
hose and suffered a right shoulder injury. See N.T. Deposition of Richard
Zamarin, M.D., 4/14/22, at 25; see id. at 30 (Doctor Zamarin testifying
Green’s September 15, 2018 hospital visit not mentioned in Concentra
records). After learning of Green’s September 15, 2018 hospital visit and
reading the Roxborough Memorial Hospital Emergency Room report, which Dr.
Zamarin testified is the type of report he would normally review and rely on
in his practice, he agreed he would not be able to determine, within a
reasonable degree of medical certainty, whether Green sustained his injury on
September 19, 2018, on September 15, 2018, or a week prior. Id. at 39-40.
Doctor Zamarin testified that treatment would be the same regardless of when
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4 Green also testified regarding his involvement in a July 2018 motor vehicle
accident, in which he was stopped at a stop-sign when an unmarked police
car, driving the wrong way on a one-way street, struck Green’s vehicle. Green
stated that he had been placed on lifting restrictions due to the accident but
he was no longer on lifting restrictions on September 19, 2018. Id. at 118-
19.
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or why the injury occurred, but due to the hospital record, he is unable to
determine whether the injury occurred on the job. Id. at 45 (Doctor Zamarin
testifying, “The record [] from Roxborough Memorial Hospital just says heavy
lifting. So I don’t know where that was. [] My office record from Concentra
stated that he was lifting on the job.”).
On September 14, 2020, Green filed a complaint alleging that Appellees
were negligent in their operation and maintenance of the G Street Terminal.
See Complaint, 9/14/20, at 3-4. Green alleges that Appellees knew or should
have known that the G Street Terminal was in a defective condition, which
constituted a safety hazard to users of the equipment, and that Appellees
failed to abate the dangerous condition. Id. at 5.
Specifically, Green claimed that Appellees’ negligence consisted of the
following: “allowing the fill pipe to be and remain in a dangerous and unsafe
condition;” “failing to repair[, maintain, inspect and adjust] the fill pipe arm
so that it could be [used] safely;” “failing to warn [Green] of the unsafe
condition of the fill pipe;” “failing to properly train employees regarding
maintenance[/use] and [the need to report malfunctions] of the fill pipe;”
“ignoring reports of fill pipe arm malfunctions;” “failing to put in place a
system for tracking reports of [fill pipe] malfunctions;” “failing to supervise
[]G[] Street Terminal staff;” “failing to discipline employees who ignore
equipment malfunctions thereby creating an atmosphere where equipment
malfunctions would be ignored;” and “creating an unsafe work site for
business invitees.” Id. at 6.
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On April 19, 2022, prior to the start of trial, the court granted Appellees’
motion in limine, prohibiting Green from presenting lay testimony, opinion, or
evidence at trial that the G Street Terminal fill arm was defective or
malfunctioned on the date his injury occurred. The court further provided that
observations and personal perceptions or experiences regarding the fill arm
were permitted. Order, 4/19/22.
Green rested his case on April 20, 2022, at which time Appellees moved
for compulsory non-suit due to Green’s failure to prove the standard of care
and deviation therefrom as well as causation in this negligence action. The
trial court entered non-suit on April 26, 2022. Green filed a motion to remove
non-suit on May 1, 2022, which the trial court denied. The trial court entered
judgment on November 4, 2022. This appeal timely followed. Both Green
and the trial court have complied with Pa.R.A.P. 1925. Green presents the
following issues for our review:
1. Did the trial court err as a matter of law when it ruled that to
support a prima facie claim of ordinary negligence, [Green] was
required to present evidence of a standard of care and/or
deviation therefrom?
2. Where [Green’s] medical expert testified, to a reasonable
degree of medical certainty, that the cause of [Green’s]
shoulder injury was heavy lifting at [Palfrey’s] terminal, did the
trial court err in ruling that [Green] had not presented sufficient
evidence of medical causation?
Appellant’s Brief, at 4.
Appellate review of entry of a compulsory non-suit is well-settled:
It is proper only if the fact[-]finder, viewing all of the evidence in
favor of the plaintiff, could not reasonably conclude that the
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essential elements of a cause of action have been established.
When a non-suit is entered, the lack of evidence to sustain the
action must be so clear that it admits no room for fair and
reasonable disagreement. A compulsory non[-]suit can only be
granted in cases where it is clear that a cause of action has not
been established and the plaintiff must be given the benefit of all
favorable evidence, resolving any conflict in the evidence in favor
of the plaintiff. The fact-finder, however, cannot be permitted to
reach a decision on the basis of speculation or conjecture.
Joyce v. Boulevard Physical Therapy and Rehabilitation Center, 694
A.2d 648, 652-53 (Pa. Super. 1997).
To succeed on a negligence claim, a plaintiff is burdened with
demonstrating each of the following: “(1) a duty or obligation recognized by
law; (2) a breach of that duty; (3) a causal connection between the conduct
and the resulting injury; and (4) actual damages.” Grossman v. Barke, 868
A.2d 561, 566 (Pa. Super. 2005) (citations and quotations omitted). Our
Supreme Court has further explained:
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. Once
the plaintiff has carried this burden, [he] must further
demonstrate the causal connection between the breach of a duty
of care and the harm alleged: that the increased risk was a
substantial factor in bringing about the resultant harm.
Scampone v. Highland Park Care Center, LLC, 57 A.3d 582, 596 (Pa.
2012).
Green first argues that he was not required to present expert testimony
to establish a standard of care and deviation therefrom with regard to the G
Street Terminal fill arm incident. See Appellant’s Brief, at 13. Specifically,
Green contends that expert witness testimony was not necessary because he
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raised an ordinary negligence claim and the issues, that the fill arm was too
heavy and was a substantial cause of his injury, were easily understood by,
and not beyond the knowledge of, the average juror. Id. at 15-17. Green
also contends that the trial court erred in sustaining Palfrey’s relevance
objections regarding witness’ comparisons to other fill arms. Id. at 20. Green
is afforded no relief.
It is well-established that expert opinion testimony is proper []
where formation of an opinion on a subject requires knowledge,
information, or skill beyond what is possessed by the ordinary
juror. In negligence actions, expert testimony is not required
where the matter under investigation is so simple, and the lack of
skill or want of care so obvious, as to be within the range of the
ordinary experience and comprehension of even nonprofessional
persons.
Ovitsky v. Capital City Economic Development Corp., 846 A.2d 124, 126
(Pa. Super. 2004) (no expert testimony needed where jury tasked with
determining whether inn’s security measures were reasonable; staying in
hotels is common and jury can use common sense notions of safety and
security).
Green relies on Marling v. Com. Dept. of Trans., 468 A.2d 895 (Pa.
Cmwlth. 1983), for the proposition that expert testimony was not required.5
In Marling, our sister appellate Court determined that expert testimony was
not needed to prove whether the Pennsylvania Department of Transportation
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5 Commonwealth Court cases, while not binding on this Court, may be cited
as persuasive authority. See Commonwealth v. Hunt, 220 A.3d 582, 590
n.6 (Pa. Super. 2019) (Commonwealth Court decisions provide persuasive
authority; our Court not bound by Commonwealth Court decisions).
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was negligent in the maintenance and repair of a state highway. There, the
plaintiff, to avoid colliding with a disabled truck blocking his lane of travel,
drove onto the berm of the road. The berm gave way and plaintiff’s vehicle
tumbled into a ditch. Id. at 896. Lay witnesses testified regarding the
condition of the highway at the time of the accident. Specifically, they stated
that the guardrails were down and the berm was deteriorated. Photographs
of the accident site were introduced into evidence. Id. The Commonwealth
Court concluded that lay witness testimony was sufficient, reasoning that
“worn shoulders and collapsed guardrails are not strangers to users of the
public roads and jurors are perfectly capable of drawing conclusions from such
conditions.” Id.
Conversely, in Brandon v. Ryder Truck Rental, Inc., 34 A.3d 104(Pa. Super. 2011), this Court determined that expert testimony was required
to determine whether a truck rental company had been negligent in failing to
uncover a steering mechanism defect in one of its vehicles. There, the
plaintiff’s only evidence of negligence was that as plaintiff was driving, the
vehicle “pulled to the right.” Id. at 110. This Court reasoned that none of
the following questions was within the range of ordinary knowledge or
experience of the average lay person: whether the defect was latent or
discoverable with reasonable inspection; whether the defect was discoverable
in advance of the accident; and whether it was a design or manufacturing
defect. Id.- 10 -
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Instantly, unlike in Marling, where the Court determined that jurors are
perfectly capable of understanding the issue of dilapidated roads, fuel fill arms
are complicated pieces of machinery, and an average juror is not likely to
possess personal or general knowledge of how they operate. See N.T.
Testimony, 4/19/22, at 58 (Green’s attorney, Anthony Cianfrani, Esquire,
requesting Green “slow-down” while explaining how to load fuel at terminal
because “most people are not [familiar with the process]”). Although we
agree with Green that an average person is able to determine if something is
“heavy,” this subjective inquiry would nevertheless leave the jury to speculate
whether Appellees’ acts or omissions caused the fill arm to be too heavy for
safe lifting.6
Without expert testimony, the jury was left without evidence to answer
the following questions: the standard of care for the setup, inspection and/or
maintenance of fill arms; whether employees or business invitees were
provided proper warning regarding use of the fill arm; whether there was
design or manufacturing defect in the fill arm; and the maximum weight for a
fill arm (and if it is above 60 pounds, the amount of weight Green’s job
description included). These issues require expert testimony because the
proper maintenance, design, and inspection of a fuel fill arm is not within the
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6 We note that Green did not claim res ipsa loquitur, which would allow for an
inference of negligence from the surrounding circumstances. See Quinby v.
Plumsteadville Family Practice, Inc., 907 A.2d 1061, 1071 n.15 (Pa.
2005) (referring to res ipsa loquitur as “raising an inference of negligence”).
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ordinary knowledge or experience of the average lay person. Cf. Ryder Truck
Rental, supra.In light of the foregoing, the trial court did not err in its determination
that expert testimony regarding the standard of care and deviation therefrom
was necessary. Thus, Green failed to establish a cause of action in negligence
and the court properly granted a non-suit. Joyce, supra; Ryder Truck
Rental; supra.
Further, Green’s claim that the trial court erred in sustaining defense
objections to the comparison of the G Street fill arms to other fill arms, see
Appellant’s Brief, at 19, also affords Green no relief.
Our scope of review of a trial court’s admission of evidence is well-
settled.
We must acknowledge that decisions on admissibility are within
the sound discretion of the trial court and will not be overturned
absent an abuse of discretion or misapplication of law. In
addition, for a ruling on evidence to constitute reversible error, it
must have been harmful or prejudicial to the complaining party.
Lykes v. Yates, 77 A.3d 27, 32 (Pa. Super. 2013) (emphasis added).
Additionally, evidence that is not relevant is not admissible. Pa.R.E. 402.
Relevant evidence is evidence that “[has] a tendency to make the existence
of any fact that is of consequence to the determination of the action more
probable or less probable.” Pa.R.E. 401. Relevant evidence may be excluded
if its probative value is outweighed by, inter alia, the danger of unfair
prejudice, confusion or waste of time. Pa.R.E. 403.
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Although we agree that this testimony would be relevant to a
determination of whether the G Street Terminal fill arm was too heavy for safe
lifting, Green mischaracterizes the issue. The relevant inquiry regarding
standard of care and breach requires evidence showing the steps that
Appellees should have taken, but did not, to ensure safe use of the fill arms.
Accordingly, any error here was harmless. Lykes, supra.
Because all prongs of the negligence test must be met to succeed on a
claim, we need not reach the merits of Green’s second issue regarding proof
of causation.7 See Grossman, supra.____________________________________________
7 Green also claims that he, through Dr. Zamarin’s testimony, proved
causation. Green alleges that Dr. Zamarin’s opinion regarding causation was
sufficient where he determined, to a reasonable degree of medical certainty,
that Green’s partial rotator cuff injury was due to a September 19, 2018 work-
related injury. Green argues that regardless of the date the jury occurred—
either September 19, 2018, September 15, 2018 or a week earlier—Dr.
Zamarian was clear that the injury occurred at work. See Appellant’s Brief,
at 24. Green’s claim is belied by the record.
Doctor Zamarin clearly stated that when writing his report, he was unaware
of Green’s September 15, 2018 hospital visit, four days prior to the instant
incident. N.T. Deposition of Richard Zamarin, M.D., 4/14/22, at 20, 25, 30.
Upon learning of this information, Dr. Zamarin conceded that his
determination regarding causation would change depending on where Green
was injured. Additionally, Dr. Zamarin did not challenge Appellees’ claim that
Green was injured as of his September 14, 2018 hospital visit. Further, the
September 15, 2018 Roxborough Memorial Hospital report did not state
where the heavy lifting occurred. See id. at 45-46. Thus, because he did
now know when or where the injury occurred, Dr. Zamarin was unable to
determine whether Green’s injury occurred at work. Moreover, Dr. Zamarin
did not opine that Green’s September 19, 2018 injury was due to aggravation
of a pre-existing condition.
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We conclude that the lack of evidence to sustain the action is so clear
that it admits no room for fair and reasonable disagreement. Therefore, the
trial court properly entered non-suit.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/2023
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