Lamarr, D. v. Delaware County Memorial Hosp. ( 2023 )

J-A21037-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
DESIREE LAMARR-MURPHY, : IN THE SUPERIOR COURT OF
INDIVIDUALLY AND AS : PENNSYLVANIA
ADMINISTRATRIX OF THE ESTATE OF :
CHRISTOPHER B. MURPHY, :
DECEASED; AND BRIANNAH LAMARR :
:
Appellants :
:
: No. 1846 EDA 2021
v. :
:
:
DELAWARE COUNTY MEMORIAL :
HOSPITAL; PROSPECT DCMH, D/B/A :
DELAWARE COUNTY MEMORIAL :
HOSPITAL; AND PROSPECT MEDICAL :
HOLDINGS, INC. :
Appeal from the Judgment Entered August 18, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 180401968
DESIREE LAMARR-MURPHY, : IN THE SUPERIOR COURT OF
INDIVIDUALLY AND AS : PENNSYLVANIA
ADMINISTRATRIX OF THE ESTATE OF :
CHRISTOPHER B. MURPHY, :
DECEASED; AND BRIANNAH :
LAMARR, :
:
Appellants :
: No. 1847 EDA 2021
:
v. :
:
:
CROZER KEYSTONE HEALTH SYSTEM :
D/B/A CROZER KEYSTONE HEALTH :
SYSTEM EMERGENCY SERVICES; :
PROSPECT CROZER, LLC; CKHS, INC. :
D/B/A CROZER- KEYSTONE HEALTH :
SYSTEM; RYAN ARNOLD AND :
KENNETH BROWN, JR.
J-A21037-22
Appeal from the Judgment Entered August 18, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 171003272
BEFORE: LAZARUS, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED DECEMBER 20, 2023
This consolidated appeal arises out of a negligence action filed by
Desiree Lamarr-Murphy, individually and as administratrix of the Estate of
Christopher B. Murphy (Decedent)1, and Briannah Lamarr (collectively,
Appellants).2 Desiree was Decedent’s wife and Briannah was one of his four
daughters. Their suit concerns the emergency medical services rendered to
Decedent by Appellees, Ryan Arnold, an emergency medicine technician
(EMT), and Kenneth Brown, Jr., a paramedic,3 as well as their employer,
Delaware County Memorial Hospital (DCMH) (collectively, Defendants). At the
conclusion of an eight-day trial, a jury determined that Arnold was 49%
responsible for the harm to Decedent while Decedent himself was 51% liable.
____________________________________________
1 We refer to Desiree and the estate of Decedent collectively as “the Estate.”
2 We note the trial court purported to consolidate two underlying cases.
Judgment was entered in both cases and Appellants filed a separate notice of
appeal at each underlying docket. The appeals were listed consecutively in
this Court. Because the trial court only appeared to be using the caption from
one trial court docket, this Court issued a rule to show cause order directing
the trial court to clarify the correct captions. The trial court responded,
providing the correct captions. We then entered orders directing this Court’s
Prothonotary to correct the captions on this Court’s dockets.
3 We refer to Arnold and Brown collectively as “DCMH EMS.”
-2-
J-A21037-22
Based on the jury’s verdict and its denial of post-trial motions, the court
entered judgments in favor of Defendants on August 18, 2021. On appeal,
Appellants raise the following challenges: (1) the trial court erred in finding
that Defendants were immune from liability under the Pennsylvania
Emergency Response Provider and Bystander Good Samaritan Civil Immunity
Act4 (Good Samaritan Act); (2) the court erred in submitting the issue of
comparative negligence to the jury; (3) the verdict was against the weight of
the evidence; and (4) the court erred in granting a compulsory nonsuit for
Briannah’s claim of negligent infliction of emotion distress (NIED). Based on
the following, we affirm.
I. Facts and Procedural History
The relevant facts and procedural history of this involved case are
gleaned from the certified record. Where there are factual disputes between
the parties, we will highlight them.
At the time of the April 24, 2016, incident, Decedent was 39 years old.
See Complaint, 10/26/17, at ¶ 4. He had a prior history of blood clots in his
legs, otherwise known as a deep venous thrombosis, and was hospitalized in
2005 for treatment. See N.T., 6/15/21, at 116. He did not have a
reoccurrence of a blood clot following that hospitalization. Id. at 122.
____________________________________________
4 See 42 Pa.C.S. § 8332.
-3-
J-A21037-22
During the week prior to the event at issue, Decedent complained of
pain in his right leg due to a flare-up of gout. See N.T., 6/14/21, at 96.
Desiree testified that Decedent would have flare-ups two to three times a year.
N.T., 6/15/21, at 117. Decedent decided to stay home from work, as a United
States Postal Service employee, that week as he had leg and knee pain and
was having difficulty walking. See N.T., 6/14/21, at 173; N.T., 6/15/21, at
118. On Monday, April 18, 2016, Desiree first noticed that Decedent started
using a crutch. N.T., 6/15/21, at 123. At one point, Desiree told Decedent to
go “see his gout doctor[,]” but he did not “listen[.]” Id. at 124-25.. On Friday,
April 22, 2016, his daughter, Briannah, also suggested Decedent go to the
doctor based on his symptoms. See N.T., 6/14/21, at 174. That night, he
was still able to prepare dinner and was singing and dancing. See N.T.,
6/15/21, at 123-24.
On the morning of Sunday, April 24, 2016, while at home on Sellers
Avenue, Upper Darby Township, Decedent began having difficulty breathing.
See N.T., 6/14/21, at 101. One of his daughters, Imani Lamarr, heard a
“thud” and observed her father laying partly on the basement steps. Id. at
99, 101. She then called 9-1-15 and DCMH EMS was dispatched at
approximately 11:16 a.m. to the residence. Arnold indicated “the call came
____________________________________________
5 Imani testified that she told the 9-1-1 operator that her father had fallen,
had gout, and could not get up. See N.T., 6/14/21, at 102.
-4-
J-A21037-22
through . . . as a . . . [basic life support (BLS)] call[,]” which is considered “a
less emergent situation than [an] advanced life support[(ALS) call.]” N.T.,
6/16/21, at 13.
DCMH EMS arrived on the scene at approximately 11:17 a.m. See N.T.,
6/16/21, at 13. At approximately 11:21 a.m., they moved Decedent from the
steps to the kitchen floor. See N.T., 6/14/21, at 103; N.T., 6/22/21, at 31.
They then placed him on a stretcher and transported him to the ambulance.6
See N.T., 6/14/21, at 132-33. Briannah recalled Imani speaking with DCMH
EMS for four to five minutes as they asked her questions about Decedent’s
prior medical history.7 See id. at 104-05, 134. Imani also called Desiree,
who provided certain information regarding Decedent to relay to the
responders. See id. at 106. Desiree was “without a doubt positive” she
shared that Decedent presently was suffering from gout and a history of a
blood clot, but did not understand why he could not breathe. See N.T.,
6/15/21, at 128. She then left her part-time job to meet them at the hospital.
Id.
____________________________________________
6 Arnold described the vehicle as a “mobile intensive care unit” or “MICU[.]”
N.T., 6/16/21, at 9. The MICU is not equipped with heparin, a blood thinner,
or tissue plasminogen activator (TPA), a clot buster.” Id. at 10. These drugs
are not carried on ambulances in the Commonwealth of Pennsylvania. See
N.T., 6/22/21, at 26.
7 Briannah did not remember any discussion regarding deep venous
thrombosis, clotting, or a pulmonary embolism, but did hear her sister and
DCMH EMS speaking about Decedent’s gout. See N.T., 6/14/21, at 176.
-5-
J-A21037-22
Based on Decedent’s status after evaluation, Arnold suspected a
pulmonary embolism. See N.T., 6/16/21, at 15. He also stated there are no
specific embolism protocols, but there are for “seriously ill appearing
patients[.]” Id. at 17, 19. In his EMS report, Arnold described Decedent’s
condition as follows: (1) swollen right knee; (2) pale skin; (3) sweating
heavily; (4) rapid breathing or tachypneic; (5) highly anxious; (6) decreased
lung sounds in all fields bilaterally; and (7) respiratory distress. See id. at
45-47.
Meanwhile, Decedent told the responders he was having trouble
breathing as they placed “leads on his chest” to conduct an electrocardiogram
(EKG) test. See N.T., 6/14/21, at 134; N.T., 6/16/21, at 25. At
approximately 11:24 a.m., they also provided him with several liters of
oxygen after a “capillary refill [was] done on [his] pinkie which show[ed] there
was a delayed capillary response [and Decedent] was deoxygenated.” N.T.,
6/17/21, at 144, 241; N.T., 6/22/21, at 31.
As Crozer EMS was moving Decedent outside towards the ambulance,
Briannah ran into the home to find her father’s wallet before leaving. See
N.T., 6/14/21, at 135.
Arnold and Brown did not initially ventilate Decedent because his
“breathing was adequate,” and placed him in the ambulance for transport at
approximately 11:25 a.m. See N.T., 6/16/21, at 25; N.T., 6/22/21, at 32.
For the next several minutes, Arnold placed a LIFEPAK defibrillator monitor, a
-6-
J-A21037-22
peripheral IV/18-gauge angio catheter, and a 12-lead EKG monitor on
Decedent.8 See N.T., 6/22/21, at 33-35. They also gave Decedent chewable
baby aspirin at approximately 11:30 a.m.9 Id. at 36-37. Two minutes later,
Arnold took a set of Decedent’s vital signs, and noted that Decedent appeared
to “calm down after [the] aspirin administration” and his respiratory rate
decreased so Arnold gave him a “normal saline, 500 milliliter via IV drip.” Id.
at 37. Arnold stated that Decedent’s rapid “heart rate . . . decreased by two
beats a minute. The [oxygen saturation] started out with 88 percent [and
then was] 91 percent. [Decedent was] moving in the right direction in terms
of oxygen saturation.” Id. at 38.
Arnold indicated he made the decision to take Decedent to Lankenau
based on Decedent’s “chest pain and shortness of breath” and because “[h]is
signs and symptoms were extremely consistent not only with pulmonary
embolism but also extremely consistent with . . . acute coronary syndrome[.]”
N.T., 6/16/21, at 55. Moreover, Lankenau had a primary percutaneous
coronary intervention (PPCI) center and an extracorporeal membrane
oxygenation (ECMO) machine which led Arnold to “believe that Lankenau
____________________________________________
8 The information acquired from the 12-lead EKG was transmitted to Lankenau
Medical Center (Lankenau) prior to their arrival, which alerted the emergency
department and mobilized their response team. See N.T., 6/22/21, at 35-36.
9 Briannah testified that when Crozer EMS gave her father baby aspirin, he
spit it out based on his difficulty with breathing. See N.T., 6/14/21, at 133.
-7-
J-A21037-22
would be able to take care [of him] either way.” Id. at 56. DCMH did not
have those machines. Id. at 58.
The ambulance departed at approximately 11:34 a.m. for Lankenau.
See N.T., 6/16/21, at 14. Briannah went with her father to the hospital.10
See N.T., 6/14/21, at 107. As will be discussed below, the ambulance traveled
a different route than Desiree and Briannah would have taken to get to
Lankenau, as there was a “difference of ten traffic lights.”11 N.T., 6/15/21, at
121. Briannah also testified that Crozer EMS stopped at red lights and stop
signs en route to the hospital. See N.T., 6/14/21, at 139. Arnold indicated
the ride from Decedent’s home to Lankenau generally should take
approximately six to eight minutes. See N.T., 6/16/21, at 16. Brown was
____________________________________________
10 Briannah noted that initially the ambulance’s lights and sirens were not
activated but were later turned on at the entrance of Lankenau. See N.T.,
6/14/21, at 135-36, 138. On cross-examination, Briannah acknowledged that
she made this assumption because she did not see Brown “manipulating the
switches[,]” but she also could not see the lights on top of the truck or their
reflections on buildings and stop signs. Id. at 185. A neighbor, Robert
Fedirko, testified that he believed the ambulance’s lights were on when it
pulled away from Decedent’s residence. Id. at 209. Brown averred that lights
were activated and the sirens were used intermittently via the horn. See N.T.,
6/16/21, at 93.
Both daughters testified that they did not observe DCMH EMS act with
any “urgency” regarding their handling of Decedent. See N.T., 6/14/21, at
106-07, 134.
11 Desiree testified the course she would have taken was three miles in
distance, and the route taken by DCMH EMS was 3.7 miles — a difference of
approximately 3,700 feet. See N.T., 6/22/21, at 100-101, 108.
-8-
J-A21037-22
familiar with the neighborhood based on living there for 26 years. Id. at 79.
He intimated that he did not make a U-turn on Sellars Avenue to get to State
Road, which would have been the most direct route, because “it would take a
three to four point with an unrestrained person[, Arnold,] in the back tending
to an ill patient.”12 Id. at 85-86.
At approximately 11:36 to 11:38 a.m., when they were three to four
minutes away from Lankenau, Decedent’s respiratory rate increased suddenly
and he went into cardiopulmonary arrest. See N.T., 6/16/21, at 34, 78; N.T.,
6/22/21, at 39. Arnold ordered Brown to stop the vehicle so that he and
Brown could administer cardiopulmonary resuscitation (CPR). See N.T.,
6/14/21, at 153; N.T., 6/16/21, at 34. Briannah indicated they were stopped
for approximately 15 minutes as she watched them give Decedent chest
compressions and oxygen. See N.T., 6/14/21, at 153, 155. While the two
responders were administering compressions and giving epinephrine, an
adrenaline medication, their supervisor, Jerome Casey, arrived to assist at
approximately 11:44 a.m. See id. at 155; N.T., 6/22/21, at 43. Casey then
assessed the situation and at 11:46 a.m., they gave Decedent another
milligram of epinephrine. See N.T., 6/22/21, at 43. At 11:48 a.m., they
____________________________________________
12 Brown stated that the ambulance at issue is 24 feet in length, it was parked
perpendicularly on Sellers Avenue, and there would be approximately a foot
from the front bumper to the curb — making a U-turn precarious. See N.T.,
6/16/21, at 99.
-9-
J-A21037-22
performed an orotracheal intubation of Decedent. Id. at 44. At 11:50 a.m.,
they conducted another rhythm check on Decedent and he was “in asystole”
so they restarted compressions while giving him more epinephrine. Id. at 44-
45. They then resumed transporting him to Lankenau. See id. at 45. The
ambulance arrived at the Lankenau’s emergency department at 11:56 a.m.
See N.T., 6/16/21, at 15.
Approximately 39 to 40 minutes had elapsed from the time DCMH EMS
arrived at Decedent’s home to when they arrived at the hospital.13 See N.T.,
6/16/21, at 77. Decedent was pronounced dead on arrival. The following
day, an autopsy examination was conducted and Decedent’s cause of death
was “determined to be acute pulmonary thromboembolism due to deep
venous thrombosis.”14 N.T., 6/15/21, at 36.
Appellants filed a complaint and amended complaint in October 2017,
and March 2018,15 respectively, in which they brought a suit against Arnold,
____________________________________________
13 In his deposition which was read to the jury, Supervisor Casey indicated
that time period was “reasonable” for someone who is exhibiting signs of a
pulmonary embolism to get to the hospital. N.T., 6/16/21, at 112.
14 The medical examiner (ME) described the size of the embolus as “large.”
N.T., 6/15/21, at 44. The ME also noted Decedent’s toxicology report revealed
findings of synthetic opiates (hydrocodone) and Delta-9 Carboxy
tetrahydrocannabinol (THC), which is a non-active ingredient in marijuana.
Id. at 41, 46. Nevertheless, the ME stated these toxins were not a
contributing factor to Decedents’ death. Id. at 41.
15 During this time Crozer Keystone and DCMH EMS filed preliminary
objections, which were overruled without prejudice on March 2, 2018. See
(Footnote Continued Next Page)
- 10 -
J-A21037-22
Brown, Defendant Crozer Keystone Health System d/b/a Crozer Keystone
Health System Emergency Medical Services, which operates on behalf of
Defendant Prospect Crozer, LLC, and Defendant CKHS, Inc. d/b/a/ Crozer-
Keystone Health System.16 In the amended complaint, they raised the
following causes of action: (1) negligence and gross negligence against all
defendants by Estate; (2) wrongful death against all defendants by Estate;
(3) survival action by Estate; and (4) NIED against all defendants by Briannah.
Arnold, Brown, and Crozer Keystone filed an answer and new matter,
and alleged, in relevant part, that Arnold and Brown were employees of
DCMH.17 See Answer with New Matter, 4/13/18, at 4-5. They denied any
negligence or gross negligence on their part, and asserted that all medical
care provide by DCMH EMS met the applicable standards of care. Id. at 5-
11. They also denied Briannah’s NIED allegations. Id. at 11-12. In their new
matter, they alleged, in pertinent part, that Appellants’ claims were barred by
____________________________________________
Order, 3/2/18. The court also granted Appellants leave to file an amended
complaint. See id.
16We will refer to Crozer Keystone Health System d/b/a Crozer Keystone
Health System Emergency Medical Services, which operates on behalf of
Defendant Prospect Crozer, LLC, and Defendant CKHS, Inc. d/b/a/ Crozer-
Keystone Health System collectively as “Crozer Keystone.”
17Defendants stated that CKHS EMS is a fictitious name owned by DCMH.
See Defendants’ Answer with New Matter, 4/13/18, at 3. They denied that
Crozer Keystone was responsible for the ambulance that transported Decedent
on April 24th. Id.
- 11 -
J-A21037-22
the Pennsylvania Comparative Negligence Act,18 and Defendants were
immune from liability pursuant to the Good Samaritan Act. Id. at 13, 15.
On June 22, 2018, Appellants filed a second complaint against DCMH,
Prospect DCMH, LLC, and Prospect Medical Holdings, Inc. alleging it is
responsible for the ambulance that transported Decedent. See Complaint,
6/22/18, at ¶ 9. They further alleged that “DCMH EMS inexplicably stopped
the ambulance on the side of the road. . ., rather than activating lights and
sirens and speeding to Lankenau Hospital while [CPR] was initiated by the
non-driving EMS employee.” Id. at ¶ 30. Additionally, they claimed:
Despite the severity and emergent nature of [Decedent]’s
collapse, dire physical condition, and cardiopulmonary arrest,
which was readily known and observable by DCMH EMS and its
employees or agents, DCMH EMS did not: (a) provide immediate
and necessary life-saving first aid; (b) properly perform CPR for
an appropriate amount of time; (c) provide immediate
anticoagulation; and/or (d) promptly and emergently transport
[Decedent] to the nearest medical facility.
Id. at ¶ 37. Like their first complaint, they raised the following causes of
action: (1) negligence and gross negligence against all defendants by Estate;
(2) wrongful death against all defendants by Estate; (3) survival action by
Estate; and (4) NIED against all defendants by Briannah. Id. at ¶¶ 45-64.
____________________________________________
18 See 42 Pa.C.S. § 7102, et seq.
- 12 -
J-A21037-22
DCMH and the related parties19 filed an answer and new matter, denying
Appellants’ allegations and raising defenses, in relevant part, related to the
Comparative Negligence Act and the Good Samaritan Act. Answer, 8/9/18, at
15, 18.
On August 10, 2018, the trial court consolidated the two matters based
on a motion filed by Appellants. On September 3, 2019, Defendants filed a
motion for summary judgment, alleging that they are immune from liability
under the Good Samaritan Act, Appellants failed to establish a prima facie
____________________________________________
19Notably, with respect to the relationship of the defendant parties, they
averred the following:
Prospect DCMH, LLC, did not transact business in the
Commonwealth of Pennsylvania during the relevant times alleged
in [Appellants’] Complaint. On January 8, 2016, Crozer-Keystone
Health System, a not for profit corporation, entered into an Asset
Purchase Agreement with Prospect Medical Holdings, Inc., and
Prospect DCMH, LLC, wherein substantially all of the assets of
Crozer-Keystone Health System would be acquired by Prospect
Crozer, LLC. Pursuant to the asset purchase agreement, Prospect
Crozer, LLC, did not assume the liabilities of Crozer-Keystone
Health System, a not for profit corporation, for claims or potential
claims arising out of events reported prior to July 1, 2016,
including medical professional liability claims. Prospect Crozer,
LLC, and Crozer-Keystone Health System, a not for profit
corporation, closed on the acquisition of certain assets of Crozer-
Keystone Health System, a not for profit corporation, and its
subsidiaries on July 1, 2016. Therefore, Answering Defendant
Prospect DCMH, LLC was not transacting business relative to the
claims raised by [Appellants] or involved in the medical care
and/or treatment of . . . Decedent during the relevant times
alleged in Plaintiffs Complaint. . . .
Answer, 8/9/18, at 3.
- 13 -
J-A21037-22
case of gross negligence or intent to harm. See Defendants’ Motion for
Summary Judgment, 9/3/19, at 14-36. They also claimed Crozer Keystone
Health System d/b/a Crozer Keystone Health System Emergency Medical
Services, Prospect Crozer, LLC, and CKHS, Inc. d/b/a/ Crozer-Keystone Health
System, and Prospect Medical Holdings, Inc. are not proper parties to the
instant action. Id. at 36-38. One month later, Appellants filed a response to
Defendants’ motion for summary judgment. On October 9, 2019, the trial
court denied Defendants’ motion for summary judgment.20
The parties then exchanged multiple motions in limine and responses.
Related to this appeal, the trial court found that the Good Samaritan Act
applied, and consequently, Appellants were required to prove gross negligence
as to all defendants and all claims. See N.T., 6/14/21, at 6, 10, 21-23.
The matter proceeded to a jury trial on June 14, 2021. Two days later,
Arnold, Brown, and DCMH filed a motion for compulsory nonsuit, alleging that
under the Good Samaritan Act, Appellants were required to prove gross
negligence and they failed to do so, offering only evidence of ordinary
negligence. See Defendants’ Motion for Compulsory Nonsuit, 6/16/21, at ¶¶
6-19. Appellants filed a written response one day later. The trial court
____________________________________________
20 During this time, on October 1, 2019, the parties entered a joint stipulation,
which provided that all claims against Crozer Keystone and Prospect Medical
Holdings, Inc. were dismissed with prejudice. See Stipulation of Dismissal of
Less Than All Defendants and to Amend Complaint, 10/1/19, at ¶ 1. The
stipulation also amended the caption. Id. at ¶ 2.
- 14 -
J-A21037-22
granted the nonsuit against Briannah for the NIED cause of action, and in
favor of DCMH on the issue of corporate negligence. See N.T., 6/17/21, at
29; N.T., 6/14/21, at 7. The court denied the motion for compulsory nonsuit
as to all other claims. At trial, Defendants argued that Decedent’s failure to
obtain medical care for his knee pain during the week prior to the incident at
issue constituted comparative negligence. See N.T., 6/14/21, at 90-91.
Appellants objected and argued that because there was purportedly no expert
testimony on the issue of factual causation between Decedent’s knee pain and
his death. See N.T., 6/22/21, at 127-28. The court overruled Appellants’
objection and provided the jury with standard jury instructions on comparative
negligence. See N.T., 6/21/21 (Closing Arguments), at 4.
On June 22, 2021, the jury found the following: (1) Arnold was grossly
negligent in his care and treatment of Decedent; (2) Brown was not grossly
negligent in his care and treatment of Decedent; (3) Arnold’s grossly negligent
act was a factual cause of harm to Decedent; (4) Decedent was negligent and
his ordinary negligence was a factual cause of the harm he sustained; and (5)
Arnold was 49% negligent while Decedent was 51% negligent. See Verdict
Sheet, 6/22/21, at 1-2 (unpaginated).
On June 25, 2021, at both dockets, Appellants filed motions for post-
trial relief, claiming: (1) they were entitled to a judgment notwithstanding the
verdict on the jury’s finding of comparative negligence as to Decedent; (2) it
was improper to charge the jury on comparative negligence; (3) the Good
- 15 -
J-A21037-22
Samaritan Act did not apply to the case; (4) the court’s definition of gross
negligence was in error; and (5) multiple other trial court errors. See
Appellants’ Motions for Post-Trial Relief, 6/25/21, at 1-10 (unpaginated).
Defendants filed a response. On July 27, 2021, the trial court entered orders,
at both dockets, denying Appellant’s post-trial motions. On August 18, 2021,
judgments were entered on behalf of Arnold, Brown, and DCMH. This
consolidated appeal followed.21
II. Issues and Standard of Review
Appellants raise the following issues for our review:
I. Does the “Emergency response provider and bystander good
Samaritan civil immunity” statute apply to a private hospital and
its EMS crew, where the statute: (a) covers only “persons”,
“agencies” and “authorities”, but not hospitals; (b) excludes
“hospitals emergency facilities and related personnel”; and (c)
excludes harm caused by the “operation or use” of a vehicle?
II. Should the trial court have submitted the defense of
comparative negligence to the jury where Defendants failed to
present expert testimony proving that [Appellants’] decedent’s
failure to seek medical care for his knee pain was a factual cause
of his death from a pulmonary embolism in his lung a week later?
III. Whether a jury’s allocation of fault is against the weight of the
evidence where it assigns 49% of the fault to the party found to
be culpable of gross negligence, and 51% of the fault to the party
found to be culpable of ordinary negligence?
IV. Should the trial court have granted a compulsory nonsuit on
[Appellant] Briannah Lamarr’s claim for negligent infliction of
____________________________________________
21 Appellants complied with the trial court’s directive to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. The court issued a
Pa.R.A.P. 1925(a) opinion on March 2, 2022.
- 16 -
J-A21037-22
emotion distress where the evidence showed that she
contemporaneously observed grossly negligent conduct that
caused her father’s death?
Appellants’ Brief at 5-6.
Because Appellants’ claims largely stem from the denial of their post-
trial motions, we emphasize this Court’s review of a trial court’s denial of a
motion for post-trial relief is limited:
Our review is limited to determining whether the trial court abused
its discretion or committed an error of law. An abuse of discretion
exists when the trial court has rendered a judgment that is
manifestly unreasonable, arbitrary, or capricious, has failed to
apply the law, or was motivated by partiality, prejudice, bias, or
ill will. If the alleged mistake concerned an error of law, we will
scrutinize for legal error. On questions of law, our standard of
review is de novo and our scope of review is plenary.
Zaleppa v. Seiwell, 9 A.3d 632, 635 (Pa. Super. 2010) (citations & quotation
marks omitted).
III. Good Samaritan Act
In their first argument, Appellants claim the trial court improperly
applied the Good Samaritan Act to the present case. See Appellants’ Brief at
31. They argue that DCMH is not covered under the language of the statute
“because: (1) a hospital cannot be a ‘person’ nor an ‘emergency response
provider’ as defined in the statute, and (2) the statute expressly excludes
‘hospital emergency facilities’ from protection under the statute.” Id.The Good Samaritan Act provides, in pertinent part:
(a) General rule. — Any person, including an emergency
response provider, whether or not trained to practice medicine,
who in good faith renders emergency care, treatment, first aid or
- 17 -
J-A21037-22
rescue at the scene of an emergency event or crime, or who
moves the person receiving such care, first aid or rescue to a
hospital or other place of medical care, shall not be liable for any
civil damages as a result of rendering such care, except in any act
or omission intentionally designed to harm or any grossly
negligent acts or omissions which result in harm to the person
receiving emergency care or being moved to a hospital or other
place of medical care.
* * *
(c) Exception. — This section shall not relieve a driver of a
vehicle, including an ambulance or other emergency rescue
vehicle, from liability arising from an operation or use of such
vehicle pursuant to subsection (a).
(d) Definition. — For the purposes of this section, the term
“emergency response provider” includes Federal, State and local
emergency public safety, law enforcement, emergency response,
emergency medical services personnel, response teams, agencies
and authorities, excluding hospital emergency facilities and
related personnel.
42 Pa.C.S. § 8332.22
Returning to Appellants’ argument, they claim that the statute “defines
‘emergency response provider’ in a manner that is designed to protect public
officials such as fire and police personnel that respond to an emergency scene
[and it] was also intended to protect private ‘persons’ “(i.e., good Samaritans)
who happen upon an emergency scene, including those that have medical
training.” Appellants’ Brief at 32. They claim, “No reasonable reading of the
____________________________________________
22 Effective September 9, 2022, Subsection (d) was deleted and the definition
of “emergency response provider” was moved to a newly created Subsection
(e) that set forth certain definitions, including “emergency response provider.”
The definition is essentially the same as the prior subsection.
- 18 -
J-A21037-22
statute supports the trial court’s conclusion that it protects a private hospital
from liability arising out of the negligence of its employees.” Id. at 32-33.
Appellants suggest that the Good Samaritan Act is not facially applicable
because DCMH “is not a ‘person’ or ‘agency’ or ‘authority[.’”] Id. at 33.
Moreover, they allege that “[i]f the statue were intended to protect private
hospitals, the legislature would have stated as much[,]” but the statute “does
not” include hospitals in its definition of emergency response providers, and,
in fact, even “excludes ‘hospital emergency facilities.’” Id.
Additionally, Appellants contend that even if Arnold and Brown were
entitled to immunity, “their immunity would not benefit” DCMH. Appellants’
Brief at 33. Relying on Regester v. County of Chester, 797 A.2d 898, (Pa.
2002), they argue that “DCMH is not immune from liability for harm caused
by its own ordinary negligence, or by the ordinary negligence that may be
imputed to it through the conduct of its agents.” Appellants’ Brief at 34.
Appellants further maintain that Arnold and Brown are not protected
under the Good Samaritan Act because the statute states “an ‘emergency
response provider’ is entitled to immunity does not include ‘hospital
emergency facilities and related personnel.’” Appellants’ Brief at 35 (emphasis
omitted), citing 42 Pa.C.S. § 8332(d). They allege Arnold and Brown fall under
the category of “related personnel.” Id. Moreover, Appellants complain that
Brown is not entitled to immunity for his operation or use of the ambulance
because he “failed to activate the ambulance’s lights and sirens; took the
- 19 -
J-A21037-22
wrong route to the hospital; stopped and waited at all red lights; failed to use
his horn; and missed a turn.” Id. at 36. They state, “All these acts and
omissions involved the ‘operation or use’ of a vehicle, rather than ‘care,
treatment, first aid or rescue.’” Id.
Lastly, Appellants argue that in its analysis, the trial court improperly
“relied upon another statute for ‘guidance’, the Emergency Medical Services
System Act (‘EMSSA’)[23 and] pieced together different definitions from
EMSSA to conclude that an ambulance cannot be considered an ‘emergency
response facility.’” Appellants’ Brief at 37. Appellants insist their argument
focused on DCMH not the ambulance and the “court erroneously focused only
on whether the ambulance qualified as a ‘hospital emergency facility’ without
addressing the broader issue of whether . . . DCMH was one.” Id. at 38
(emphasis omitted).
This issue requires us to interpret the Good Samaritan Act, which
implicates the principles of statutory construction. “Since ‘the construction of
____________________________________________
23 The EMSSA provides, in pertinent part:
No EMS agency, EMS agency medical director or EMS provider who
in good faith attempts to render or facilitate emergency medical
care authorized by this chapter shall be liable for civil damages as
a result of an act or omission, absent a showing of gross
negligence or willful misconduct. This paragraph shall also apply
to students enrolled in approved courses of instruction and
supervised pursuant to rules and regulations.
35 Pa.C.S. § 8151(2).
- 20 -
J-A21037-22
the language of the Act is a question of law,’ our standard of review is de
novo.” Stop Blight Inc. v. Dinardo, 303 A.3d 516, 519 (Pa. Super. 2023)
(citation omitted).
We are also mindful of the following principles:
[t]he Statutory Construction Act directs that the object of
all interpretation and construction of statutes is to ascertain
and effectuate the legislature’s intent. 1 Pa.C.S. § 1921(a);
Chanceford Aviation Properties, LLP v. Chanceford
Twp. Bd. of Supervisors, 592 Pa. 100, 923 A.2d 1099,
1104 (2007). Generally, the best indicator of legislative
intent is the plain language of the statute. Walker v.
Eleby, 577 Pa. 104, 842 A.2d 389, 400 (2004).
In construing statutory language, “[w]ords and phrases
shall be construed according to rules of grammar and
according to their common and approved usage[.]” 1
Pa.C.S. § 1903(a). When the words of a statute are clear
and unambiguous, there is no need to look beyond the plain
meaning of the statute “under the pretext of pursuing its
spirit.” 1 Pa.C.S. § 1921(b); Commonwealth v. Conklin,
587 Pa. 140, 897 A.2d 1168, 1175 (2006). Only “[w]hen
the words of the statute are not explicit” may a court resort
to the rules of statutory construction, including those
provided in 1 Pa.C.S. § 1921(c). Chanceford, 923 A.2d at
1104.
A statute is ambiguous when there are at least two
reasonable interpretations of the text under review[.] See
Delaware Cnty. v. First Union Corp., 605 Pa. 547, 992
A.2d 112, 118 (2010). Moreover, “[s]tatutes in pari materia
shall be construed together, if possible, as one statute.” 1
Pa.C.S. § 1932. Finally, it is presumed “[t]hat the General
Assembly does not intend a result that is absurd, impossible
of execution or unreasonable.” 1 Pa.C.S. § 1922(1).
Warrantech Consumer Prods. Servs., Inc. v. Reliance Ins.
Co. in Liquidation, 626 Pa. 218, 96 A.3d 346, 354-55 (Pa. 2014)
(italics added).
- 21 -
J-A21037-22
Turnpaugh Chiropractic Health & Wellness Ctr., P.C. v. Erie Ins. Exch.,
297 A.3d 404, 417-18 (Pa. Super. 2023) (paragraph breaks added).
A review of the record reveals the following. In May of 2021, Defendants
filed a motion in limine supporting the application of the Good Samaritan Act
and alleged that the law “governs all aspects of [Appellants’] claims and
theories in this case, such that ‘gross negligence’ is the applicable standard
for liability.” Motion in Limine of Defendants Supporting Application of the
Emergency Response Provider and Bystander Good Samaritan Civil Immunity
Law, 5/26/21, at 2. Appellants opposed the motion, claiming:
There are exceptions to the blanket use of the gross negligence
standard in the case. [Appellants] allege that the Defendants
were negligent in the use and/or operation of the vehicle which is
a stated exception. Furthermore, prior case law and the plain
wording of the statute exempt hospitals and emergency facilities
from the qualified immunity.
Appellants’ Opposition to the Motion in Limine of Defendants Regarding the
Application of the Emergency Response Provider and Bystander Good
Samaritan Civil Immunity Law, 6/7/21, at ¶ 6.
On June 14, 2021, the trial court initially granted Defendants’ motion in
limine and then heard the following argument on the applicability of the Good
Samaritan Act:
[Appellants’ Counsel:] Our Good Samaritan Act that was in place
at the time of the case does have a vehicle exception in the
[Regester] case. It was rejected.
The claim was that the EMTs, little bit different factually,
went the wrong way, got lost en route to the patient’s house. By
- 22 -
J-A21037-22
the time they got to the patient’s house, he was already in full
blown cardiac arrest.
Our case is different. Our case is, when they arrived at . . .
Sellers Avenue, [Decedent] was still alive and breathing and
although the [Regester] case rejected the vehicle exception
proffered by the plaintiff, there’s an interesting distinction in the
vehicle exception act that was in place at the time of the
[Regester] case.
[T]he Supreme Court in that case said operation of the
vehicle means if you get lost it doesn’t mean if you get into an
accident we all understand that to be, but in the motor vehicle
exception in place for this case, they added some words. It’s
operation or use. It’s no longer mere operation of the vehicle.
Our position is that the failure to use lights and sirens is a
use of the vehicle, and if the jury were to believe that that was a
negligent omission that our case would, therefore, fall within that
vehicle exception. That’s the vehicle exception.
As to the other portion of the acts, the act states under the
general rule any person including an emergency response provider
and the “any person” language at least as far as the [Regester]
case stated they rejected that the any person also applies to the
corporate entity in the [Regester] case and said that it
specifically does not apply because it didn’t say any hospital, a
person, any corporation.
We have [DCMH] as a stand alone defendant in this case,
so I would submit to the Court that when this immunity statute
reads any person, it does not include [DCMH]. Arguably it applies
to drivers and the paramedic.
Furthermore, when you look at the definition of emergency
response provider, it specifically excludes hospital emergency
facilities and related personnel.
It’s our view that [DCMH] is providing, in essence, a
mobile ER. That’s what the legislature was referring to
when they said excluding hospital emergency facilities and
related personnel.
* * *
- 23 -
J-A21037-22
[Defendants’ Counsel]: . . . The [Regester] case is not applicable
here. The [Regester] case dealt with a completely different
statute of the Emergency Medical Services Act which actually was
repealed by the Pennsylvania state legislature. It has no
precedential value.
The [Regester] case, thankfully[,] Your Honor[,] there is
a case from [Judge] Massiah-Jackson in the case of [Kronfeld v.
Sugarhouse HSP Gaming, L.P., 2014 WL 12862634 (Pa. Com.
Pl. Dec. 9, 2014)24]. This is a case that held that the Good
Samaritan Act grants immunity to any person, and they define
any person as, quote, a corporation, partnership or limited liability
company.
This Court can also take guidance from 35 Pa.C.S. [§] 8151
stating that an EMS or medical command are entitled to gross
medical standard as well. DCMH is entitled to protection since the
only connection is that of vicarious liability. In order to get to
DCMH, you have to prove gross negligence between the two
individual providers.
Your Honor, I think you’re on the right track when you
ordered that gross negligence standard applied to all defendants
and all claims.
Now, to the vehicle exception standard, . . . I think it’s really
important to read it in context, Section 8332(b) which provides
that any person who moves the person receiving such care, first
aid or rescue to a hospital or other place of medical care shall not
be liable for any civil damages. Anybody rendering EMS care or
moves a patient to a hospital is not liable for civil damages.
The vehicle use exception . . . has only been applied in a
couple cases cited in our brief. Those instances where the vehicle
exception was actually applied were instances where the
____________________________________________
24 We note this case involved a different subsection of the Statutory
Construction Act. See 1 Pa.C.S. § 1991. Moreover, we are not bound by the
decisions of courts of common pleas. See Jamison v. Concepts Plus, Inc.,
552 A.2d 265, 267 (Pa. Super. 1988).
- 24 -
J-A21037-22
ambulance was driven carelessly, struck a car or struck a
pedestrian. That’s not the case here.
The argument that [Brown] stopped and pulled over to
perform CPR, took too long to the hospital, drove too slowly,
stopped at stop lights, stop signs, didn’t use lights and sirens,
that’s not the purpose of the vehicle use exception[.]
Those are all emergency transport care decisions informed
and directed by the condition of the patient as it exists at that
particular time. That’s a care decision.
If anything, it’s a safe operation of the vehicle, going too
slow, stopping at stop signs. [The] ambulance must abide by rules
of the road. That includes abiding by speed limits and stop signs,
stop lights.
I would respectfully submit to you that the gross negligence
standard applies to all claims and to all defendants, and that
includes DCMH.
N.T., 6/14/21, at 18-23 (emphasis added). The trial court confirmed that its
ruling stood. Id. at 23.
In its Rule 1925(a) opinion, the trial court explained that because the
phrase, “hospital emergency facilities,” was not defined by the Good
Samaritan Act, it looked to the EMSSA and related definitions.25 Trial Ct. Op.,
____________________________________________
25 Under the EMSSA, a “facility” is a “physical location at which an entity
operates a health care facility licensed under Federal or State law.” 35 Pa.C.S.
§ 8103. “Hospital” is defined, in relevant part, as “[a]n institution having an
organized medical staff that is primarily engaged in providing to inpatients, by
or under the supervision of physicians, diagnostic and therapeutic services or
rehabilitation services for the care or rehabilitation of injured, disabled,
pregnant, diseased, sick or mentally ill persons.” Id. Additionally,
“emergency” is defined as:
(Footnote Continued Next Page)
- 25 -
J-A21037-22
3/2/22, at 4-5. The trial court further pointed out that the Good Samaritan
Act extends to “[a]ny person . . . who moves the person receiving such
care[.]” Id. at 6, citing 42 Pa.C.S. § 8332(a). Based on these definitions, the
court found:
According to [Appellants], the “statute does not apply to
[their] claims of negligent operation of the mobile intensive care
unit (failing to use lights and sirens, taking the wrong route),
because the statute explicitly excludes conduct related to the
“operation and use” of the emergency vehicle[.]
To find in favor of [Appellants] on this issue, the court must
broaden the definition of “use” to include what the appellate court
previously labeled as “ambulance service.” The court declined.
The “failing to use lights and sirens” and “taking the wrong route”
do not amount to the negligent operation and/or use of an
ambulance and the exception does not apply.
Trial Ct. Op. at 6-7 (footnotes omitted).
____________________________________________
A physiological or psychological illness or injury of an individual,
such that a prudent layperson who possesses an average
knowledge of health and medicine could reasonably expect the
absence of immediate emergency medical services to result in:
(1) placing the health of the individual or, with respect to a
pregnant woman, the health of the woman or her unborn child, in
serious jeopardy;
(2) serious impairment of bodily functions; or
(3) serious dysfunction of a bodily organ or part.
Id. An “ambulance” is considered a “ground, water or air vehicle which is
maintained or operated for the purpose of providing emergency medical
services to and transportation of patients.” Id.
- 26 -
J-A21037-22
At the outset, we recognize that there is very limited case law
addressing the Good Samaritan Act. Moreover, Appellants’ suggestion that
DCMH provided “a mobile ER[,]” meaning its ambulance constituted a mobile
emergency room, is a novel consideration. See N.T., 6/14/21, at 20.
We now turn to the plain language of the statute. The general rule is
that “[a]ny person, including an emergency provider, . . . shall not be liable
for any civil damages as a result of rendering such care, except in any act or
omission intentionally designed to harm or any grossly negligent acts or
omissions which result in harm to the person receiving emergency care or
being moved to a hospital or other place of medical care.” 42 Pa.C.S. §
8332(a). In other words, an emergency provider is granted immunity unless
that individual’s actions amount to intentional harm or gross negligence. The
term, “emergency response provider,” includes individuals that qualify as
“emergency response, emergency medical services personnel, [and] response
teams, . . . excluding hospital emergency facilities and related personnel.”
42 Pa.C.S. § 8332(d) (emphases added). We observe that Subsection
8332(d) expressly provides an exclusion for hospital emergency facilities and
related personnel. Read in context, the critical word of this exclusion is
“facilities” or “facility.” In construing the word, “facility,” in accordance with
its “common and approved usage[,]” one could readily ascertain that the word
does not account for modes of transportation, like an ambulance. See 1
Pa.C.S. § 1903(a). Additionally, we can also look to the description of the
- 27 -
J-A21037-22
ambulance at issue, which did not contain a surgical team of physicians and
nurses and was not equipped with certain medications like heparin, a blood
thinner, or TPA, a clot buster.26 See N.T., 6/16/21, at 9-10; N.T., 6/17/21,
at 186. Our conclusion is supported by fact that the general rule specifically
states that “an emergency response provider . . . shall not be liable for . . .
harm to the person . . . being moved to a hospital[.]” 42 Pa.C.S. § 8332(a)
(emphasis added).
Moreover, based on the language of the statute, we find that Appellants’
contention — that “[n]o reasonable reading of the statute supports the trial
court’s conclusion that it protects a private hospital from liability arising out
of the negligence of its employees” — is misplaced. Appellants’ Brief at 32-
33. It is clear that the purpose of the Good Samaritan Act is to exclude an ER
facility and those personnel working in an ER from immunity in tort liability
cases with respect to their medical care. Plainly speaking, the Act was not
intended to protect ER facilities from any negligence practices, nor was it
intended to protect treating doctors from medical malpractice claims.
However, emergency responders, like those that work in ambulances and
transport people to a hospital, were provided with immunity protection under
the law. Thus, DCMH, acting in its limited role as a provider of emergency
____________________________________________
26 It merits mention that TPA was described as a dangerous medication due
to its side effects. See N.T., 6/17/21, at 83.
- 28 -
J-A21037-22
ambulatory services, and its emergency responder employees, DCMH EMS,
were protected under the Good Samaritan Act.
We also observe that Appellants did not sue DCMH under a theory of
direct liability but rather under the concept of vicarious liability. Therefore,
their claim against DCMH is derivative of their claim against DCMH EMS. See
Mamalis v. Atlas Van Lines, Inc., 528 A.2d 198, 200 (Pa. Super. 1987) (“A
claim of vicarious liability depends on the life of the claim from which it
derives. Termination of the claim against the agent extinguishes the
derivative claim against the principal. Moreover, a claim of vicarious liability
is indivisible from the direct claim since both are based on the act or acts of
only one tortfeasor.”) (citations omitted).
Lastly, to the extent Appellants allege Brown is not entitled to immunity
for his “operation or use” of the ambulance based on purported negligent
actions like failing to activate the ambulance’s lights and sirens, taking a
different route to the hospital, stopping and waiting at red lights, and failing
to use his horn, we find this argument is misdirected. Appellants’ Brief at 36.
Indeed, Appellants fail to present any case law that Brown’s acts amounted to
gross negligence like intended instances where an ambulance collides with
another vehicle or hits a bystander during transportation. Indeed, the case
Appellants reference, Regester, does not support their argument for several
reasons.
- 29 -
J-A21037-22
First, Regester concerned a different statute, Emergency Medical
Services Act,27 which was repealed in 2009. Second, the Regester Court held
that a paramedic’s failure to follow directions and maintain adequate
familiarity with the area did not implicate the vehicle liability exception.
Regester was previously summarized by our sister court as follows:
In Regester, the [Supreme] Court examined the alleged
negligence of paramedics in failing to follow driving directions
relayed by the paramedics’ dispatch, causing a delayed arrival
that proved critical to the inability of the paramedics to revive a
decedent. The plaintiffs argued for a rule that would have allowed
for all negligent decision-making occurring within the course of
the operation of a vehicle to fall within the vehicle exception. The
Court noted that its own decisions . . . “establish that the vehicle
liability exception encompasses more than merely negligent
driving. However, the Court found that there was no
“controlling authority” for the broad rule that “any and all
decisions made during the operation of a vehicle implicate
the exception.” The Court held that the medics’ failure to
follow directions and maintain adequate familiarity with
the area did not implicate the vehicle exception, stating:
Here, while properly acknowledging that there is some
range of negligence associated with the physical operation
of a vehicle beyond actual driving that will implicate the
vehicle liability exception, the Commonwealth Court
correctly concluded that the form of negligence alleged by
the Regesters does not qualify. To the contrary, such
allegations of negligence...[are] more closely associated
with the public service involved (ambulance service) than it
is with the physical operation of the vehicle as such.
Cornelius v. Roberts, 71 A.3d 345, 352 (Pa. Commw. 2013) (citations
omitted; emphasis added). Therefore, even if we were to apply Regester to
____________________________________________
27 See 35 P.S. § 6931(j)(2) (repealed eff. Aug. 18, 2009).
- 30 -
J-A21037-22
the present matter, the analysis would find in favor of Brown as his acts were
similar to those in Regester. According, Appellants’ first argument fails.
IV. Comparative Negligence
Next, Appellants complain the trial court erred by submitting the issue
of comparative negligence to the jury. See Appellants’ Brief at 39. They
state:
Based on [Decedent]’s failure to seek treatment for his gout-like
symptoms, the jury found that he was comparatively negligent.
The jury also found that [Decedent]’s failure to seek treatment for
his gout-like symptoms was a factual cause of him later dying as
a result of suffering a pulmonary embolism in his lung. Yet there
was no competent testimony showing that [Decedent]’s gout-like
symptoms related to his pulmonary embolism. This result cannot
stand because Defendants failed to introduce competent expert
evidence to support their claim that [Decedent]’s failure to seek
treatment for his gout-like symptoms was a factual cause of him
later dying from a pulmonary embolism.
Id. at 39-40.
Relying on Pascal v. Carter, 647 A.2d 231 (Pa. Super. 1994), and
Angelo v. Diamontoni, 871 A.2d 1276 (Pa. Super. 2005), Appellants
contend the “trial court erred in allowing the jury to consider the affirmative
defense of comparative negligence in the absence of supporting expert
testimony on the issue of medical causation.” Appellants’ Brief at 40. They
maintain that the “determination of whether [Decedent]’s gout-like symptoms
were causally related to the pulmonary embolism is beyond the knowledge of
a layperson” and Defendants “needed to support their affirmative defense of
comparative negligence with competent expert testimony, at least on the
- 31 -
J-A21037-22
issue of factual causation if not also on the standard of care.” Id. at 45-46.
They allege Defendants’ two experts did not provide the requisite testimony.
Id. at 48-49.
Furthermore, they argue that Defendants’ cross-examination of their
own expert witness was insufficient to meet their burden of proof. Id. at 51-
52. Appellants state that the answers given by their expert during cross-
examination “were hardly sufficient to meet Defendants’ burden of proof [as
their] expert stated only that he ‘believed’ that [Decedent’s] knee pain was
the ‘beginning’ of the ‘thrombophlebitis’ that ‘ultimately’ led to the pulmonary
embolism.” Id. at 53 (emphasis omitted). They contend thrombophlebitis
was never defined and the vague terms — “beginning” and “ultimately” —
were not given any contextual meaning. Id. Appellants conclude that
because the trial court erred when it submitted the question of comparative
negligence to the jury, the judgment in favor of Defendants must be vacated
and a new trial on damages only is required. Id. at 57-58. They state that a
“damages only” trial is warranted “because the liability of . . . Arnold has been
‘fairly determined’” and the issue of “Arnold’s gross negligence is not
intertwined with the question of damages.” Id. at 58.28
____________________________________________
28 In their brief, Appellant also asserted Defendants’ counsel did not lay a
proper foundation under Pennsylvania Rule of Evidence 705, and “questioned
[their] expert on the wrong legal standard of causation[,]” asking about the
“increased risk of harm” doctrine. Appellants’ Brief at 54. Appellants state
the court never instructed the jury on this doctrine, which they claim “allows
(Footnote Continued Next Page)
- 32 -
J-A21037-22
We begin with following:
As a general proposition, a court should only charge the jury
on the law applicable to the factual parameters of a particular case
and it may not instruct jury on inapplicable legal issues. More
specifically, when there is no evidence of plaintiff’s negligence, no
instruction to the jury on contributory negligence should be given.
Boyle v. Indep. Lift Truck, Inc., 6 A.3d 492, 495 (Pa. 2010) (citations &
quotation marks omitted)
Here, the trial court found the following:
[Appellants] assert[ ] that “[c]omparative negligence applies only
in cases of ordinary negligence of the defendant.” [Appellants],
however, offer[ ] no caselaw in support of this assertion. The
cases cited by [Appellants] involve wanton conduct, analysis of a
different statute, or reference the dissent.
The parties agree that this case is not about intentional
conduct. Wanton or willful conduct involve intent; comparative
negligence is prohibited in such actions. Gross negligence is
something less; and there is no such bar when a party has
provided evidence to a jury. Comparative negligence was an
available defense here.
____________________________________________
for a lower quantum of proof in some case[;]” rather, it instructed the jury as
to factual causation. Id. at 54-55.
A review of Appellants’ Rule 1925(b) concise statement reveals that they
did not include this Rule 705 issue in their list of trial court errors. Accordingly,
it is waived. See Pa.R.A.P.1925(b)(4)(vii) (“[i]ssues not included in the [Rule
1925(b) s]tatement . . . are waived”); McKeeman v. CoreStates Bank,
N.A., 751 A.2d 655, 658 (Pa. Super. 2000) (“[a]n appellant’s failure to include
an issue in his [Rule] 1925(b) statement waives that issue for purposes of
appellate review”).
- 33 -
J-A21037-22
Trial Ct. Op. at 7-8 (footnotes omitted). We agree with the trial court’s
determination that Appellants should not be granted relief on this issue but on
a different basis.29
Comparative negligence is statutorily defined as follows:
In all actions brought to recover damages for negligence resulting
in death or injury to person or property, the fact that the plaintiff
may have been guilty of contributory negligence shall not bar a
recovery by the plaintiff or his legal representative where such
negligence was not greater than the causal negligence of
the defendant or defendants against whom recovery is
sought, but any damages sustained by the plaintiff shall be
diminished in proportion to the amount of negligence attributed to
the plaintiff.
42 Pa.C.S. § 7102 (a) (emphasis added). “Contributory negligence” is
commonly defined as:
[C]onduct on the part of a plaintiff which falls below the standard
to which he should conform for his own protection and which is a
legally contributing cause, cooperating with the negligence of the
defendant, in bringing about the plaintiff’s harm. Contributory
fault may stem either from a plaintiff’s careless exposure of
himself to danger or from his failure to exercise reasonable
diligence for his own protection.
Thompson v. Goldman, 114 A.2d 160, 162 (Pa. 1955) (citations omitted).30
“In addition, a plaintiff’s negligent conduct must be a proximate cause of his
____________________________________________
29 See Wakeley v. M.J. Brunner, Inc., 147 A.3d 1, 5 (Pa. Super. 2016)
(“[I]t is well settled that if the court’s decision is correct, we may affirm on
any ground.”).
30 See also Columbia Med. Grp., Inc. v. Herring & Roll, P.C., 829 A.2d
1184, 1191 n.7 (Pa. Super. 2003) (“Black’s Law Dictionary defines the
contributory negligence doctrine as follows: ‘The principle that completely bars
(Footnote Continued Next Page)
- 34 -
J-A21037-22
injury if his conduct is to affect his recovery. For negligent conduct to be a
proximate cause of an injury, it must be a substantial factual cause of the
injury for which damages are sought.” Zieber v. Bogert, 747 A.2d 905, 908
(Pa. Super. 2000).
Both comparative negligence and contributory negligence are
considered affirmative defenses. See Pa.R.C.P. 1030(b). “[A]n affirmative
defense is not an action, but rather is the statement of new facts and
arguments that, if true, will defeat a plaintiff’s action.” Bayview Loan
Servicing, LLC v. Lindsay, 185 A.3d 307, 313 (Pa. 2018). “It is well
established that the burden of establishing comparative negligence rests on
the defendant. In demonstrating that the plaintiff was negligent, [a]
defendant has the burden of showing that his conduct was unreasonable under
the circumstances.” Rose v. Annabi, 934 A.2d 743, 746-47 (Pa. Super.
2007).
Turning to the matter sub judice, Appellants present no case law that
states a defendant is required to present its own expert testimony for the
causation element of an affirmative defense. Rather, Appellants circumvent
the issue by relying on a parenthetical in Grossman v. Barke, 868 A.2d 561(Pa. Super. 2005) that indicates “generally causation must be established
____________________________________________
a plaintiff’s recovery if the damage suffered is partly the plaintiff’s own fault.’
Black’s Law Dictionary 330 (7th ed. 1999).”).
- 35 -
J-A21037-22
through expert medical testimony[.]” Id. at 567, citing Lattanze v.
Silverstrini, 448 A.2d 605, 608 (Pa. Super. 1982). See Appellants’ Brief at
41. We find that Grossman is distinguishable from the present matter for
several reasons.
Significantly, Grossman involved a medical malpractice suit, which is
not the same type of case as the case before us, which concerns the treatment
and conduct of EMT responders. The Grossman Court explained:
One of the most distinguishing features of a medical malpractice
suit is . . . the need for expert testimony, which may be necessary
to elucidate complex medical issues to a jury of laypersons.
* * *
Indeed, a jury of laypersons generally lacks the knowledge to
determine the factual issues of medical causation; the degree of
skill, knowledge, and experience required of the physician; and
the breach of the medical standard of care.
Grossman, 868 A.2d at 566-67 (citation & quotation marks omitted).
Nevertheless, the Grossman Court also recognized that “even in a negligence
suit characterized as medical malpractice, expert testimony is not always
required if the alleged negligence is obvious or within the realm of a
layperson’s understanding.” Id. (citation & quotation marks omitted;
emphasis added).
Here, the critical issue, which resulted in the comparative negligence
jury instruction, concerns whether Decedent’s negligence in failing to seek
medical attention for his gout-like symptoms was the proximate cause of his
death. See Appellant’s Brief at 39. Timing is of the essence in this issue and
- 36 -
J-A21037-22
whether a reasonable person in Decedent’s place had a duty to seek urgent
medical care. Thus, although Defendants must prove causation, we find that
it was permissible for them to do so through the cross-examination of
Appellants’ expert witness, Carl W. Adams, M.D.31
At trial, counsel for Defendants questioned Dr. Adams about Decedent’s
actions the week prior to the incident:
Q. Let’s talk about the time in the week before the event.
[Decedent] had been home with right knee pain for
approximately a week; correct?
A. Correct.
Q. And that right knee pain was actually a deep vein thrombosis
of his knee; would you agree with that?
A. Well, his underlying diagnosis was gout, gouty arthritis, but I
believe that it was [the] beginning of a thromboembolic --
thrombophlebitis.
Q. And that ultimately led to the clot traveling to his pulmonary
arteries; correct?
A. Pulmonary artery on the right; correct.
* * *
Q. If [Decedent] had taken his daughter’s advice, he would have
been at the hospital a complete day in advance; correct?
A. Presumably. Correct.
Q. And would that have increased his chance of survivability?
____________________________________________
31 The videotaped deposition of Dr. Adams was played to the jury. See N.T.,
6/15/21, at 98.
- 37 -
J-A21037-22
A. Correct.
Q. In fact, it would have increased it substantially, would you
agree with that?
A. Correct.
Q. And did you read the testimony [of Desiree]?
* * *
[I]n her testimony, she reported that she had told him that he
needed to go to a doctor as early as April 21st, three days before
this incident; correct?
A. Correct.
Q. And she remined him again on the 22nd, which was two days
before the incident; correct?
A. Correct.
Q. And if he had gone on the 21st or 22nd, is your opinion the
same, that he would have had an increase chance of survivability?
A. Correct.
Q. [Desiree testified] that on the 21st [Decedent] said to her that
he needed to get out of bed because he was afraid he was going
to get a blood clot.
Do you remember that testimony?
A. I do. Because he had one before.
Q. And that would indicate [Decedent] himself understood that he
could be having a blood clot; correct?
A. Correct.
Transcript of Videotaped Deposition of Carl W. Adams, M.D., 3/31/21, at 57-
60. Dr. Adams’ testimony amounted to a concession that Decedent’s knee
- 38 -
J-A21037-22
pain was the symptom of a blood clot that began one week prior to the incident
and he was aware of this potential medical issue. More significantly, Dr.
Adams testified that if Decedent had sought treatment a couple days earlier,
his chance of survivability would have increased substantially. We find this
testimony was more than sufficient to put the issue of Decedent’s purported
contributory negligence before the jury.32 See Boyle, 6 A.3d at 495.
Furthermore, Appellants’ reliance on Pascal and Angelo is misplaced.
In Pascal, the plaintiff injured his wrist during a football game. See Pascal,
647 A.2d at 232. He visited the defendant-radiologist for x-rays and the
defendant “reported that there was no evidence of fracture or abnormality.”
Id. As a result of continued pain, another x-ray was taken and the plaintiff
was diagnosed with a fracture. Id. He filed a complaint alleging medical
malpractice against the defendant. Id. A jury returned a verdict in favor of
the defendant. Id. On appeal, the plaintiff argued he was entitled to a new
trial because the trial court erred in charging the jury on contributory
negligence. In granting relief to the plaintiff, a panel of this Court explained:
[The plaintiff] alleged contributory negligence was in failing to
seek treatment for [his] injured wrist earlier. [The defendant]
argued that if [the plaintiff] had sought treatment for the wrist
soon after the initial injury, the treatment could have obviated the
need for surgery. There was testimony presented that earlier
treatment might have made surgery unnecessary. However,
____________________________________________
32We presume that Defendants did not call their own expert because they
were aware that Dr. Adams’ deposition would be admitted at trial, and
believed his testimony could be used to support their defense.
- 39 -
J-A21037-22
there was no testimony presented that a proper diagnosis of the
fracture could have been made at an earlier date. In fact, the
expert testimony indicated that the fracture became clearer over
time. Without any evidence demonstrating that an earlier
diagnosis would have been successful in discovering [the
plaintiff]’s injury, the failure to seek such a diagnosis cannot have
been a cause of the need for surgery on the wrist. Moreover, it
would be entirely speculative to assume without the benefit of
expert testimony on the issue, that simply because it was
negligent for [the defendant] to fail to diagnosis the fracture . . .,
an earlier diagnosis would have been successful in discovering the
injury to the wrist. Thus, as there was no evidence of causation
between [the plaintiff’s] negligence and the injury alleged, the
trial court erred in instructing the jury on contributory negligence.
Pascal, 647 A.2d at 233.
We first point out that Pascal concerned a medical malpractice suit and
the alleged negligent acts of the defendant-doctor. That type of liability action
is not before us. Moreover, there was no expert evidence regarding the
effectiveness of an earlier diagnosis in Pascal. Here, there was expert
testimony regarding Decedent’s failure to seek medical attention for his gout-
like symptoms and causation — albeit from the plaintiff’s expert. We
emphasize that Pascal did not address any limitations regarding the use of
an opposing party’s expert evidence — in other words, it did not rule that a
defendant must present its own expert testimony in order to prove
comparative or contributory negligence. Thus, Pascal does not apply to the
present matter.
Likewise, Appellants’ reliance on Angelo is misguided. Angelo also
concerned a medical practice suit wherein it was alleged that a physician failed
- 40 -
J-A21037-22
to diagnose the decedent’s Type I diabetes, and the decedent died as a result.
Angelo, 871 A.2d at 1278.
At trial, both parties called expert witnesses to testify concerning
the conformity of [the physician’s] treatment of [the decedent’s]
symptoms and condition with the standard of care for family
practice physicians. Neither [the defendants] nor the parties’
experts testified that [the decedent] failed to comply with medical
direction or that he had contributed to his own injuries in any other
way. Moreover, the parties stipulated that the defendants would
not offer [the physician’s] handwritten note suggesting a fasting
blood draw to show contributory negligence in exchange for the
[the plaintiff-administrator’s] agreement not to introduce
circumstantial evidence that [the physician] had written the note
only after she learned of [the decedent’s] death. . . .
Id. The jury found the physician was negligent and her negligence was a
substantial factor, but the plaintiff had been more than 50% responsible for
his own injuries. Id. A panel of this Court noted the following:
[The physician] attempt[ed] to satisfy that standard countering
that, notwithstanding the absence from her own case of testimony
ascribing contributory negligence to [the decedent], [the
decedent’s] own expert testified that [the decedent] was obliged
to monitor his own health as part of the doctor-patient
relationship. [The physician] argue[d] that evidence suggesting
[the decedent’s] purported lack of diligence in self-monitoring,
although slight, enabled the jury to find his actions the cause of
his death. . . .
Angelo, 871 A.2d at 1281 (citation omitted). The panel concluded:
The circumstances in this case, however, do not satisfy that
second crucial element of the test for contributory negligence.
[The decedent] reported his symptoms to [the physician] on two
occasions and she responded each time with a diagnosis, albeit
erroneous. On neither occasion does the evidence suggest that
either [the decedent] or [the physician’ treated the visit as
routine. In point of fact, [the decedent] appeared at the doctor’s
office . . . reporting nausea, vomiting, diarrhea, sweating and
chills over the prior two hours. This factor negates the suggestion
- 41 -
J-A21037-22
that [the decedent] breached a duty in failing to report his
symptoms. Moreover, [the decedent] left each visit assured of a
diagnosis by a medical professional who was ostensibly more
knowledgeable than he under the circumstances, and on whose
expertise he was entitled to rely[.] His questions had been asked
and answered and his duty as a patient satisfied. . . .
* * *
Having concluded that the record does not offer sufficient
evidence to allow a charge to the jury on contributory negligence,
we need only discern whether the charge provided here “probably
misled” the jury. Under the circumstances at hand, we do so
without hesitation. . . .
Id. 1281-82 (citations omitted). We note that Angelo concerned a sufficiency
of the evidence argument — whether there was sufficient evidence to show
the plaintiff breached his duty to report his symptom — as opposed to whether
a party is required to present expert testimony. Therefore, it does not control
the present case. Accordingly, Appellants’ second claim fails.
V. Weight of the Evidence
In Appellants’ third issue, they claim the jury’s allocation of fault
between Decedent and Arnold was against the weight of the evidence.
Appellants’ Brief at 59-60. They state the “problem with the jury’s verdict is
patent” where the trial court instructed the jury on gross negligence. Id.Appellants argue that while the jury found that Arnold’s conduct amounted to
gross negligence and Decedent’s conduct constituted ordinary negligence, it
“inexplicably allocated more fault to [Decedent] than it did to” Arnold. Id. at
60. They insist that “[s]imple logic compels” a conclusion that the verdict was
- 42 -
J-A21037-22
against the weight of the evidence based on the court’s definition of gross
negligence. Id.
When presented with a challenge to weight of the evidence
claim, our standard of review is well-settled.
Initially, we note the following relevant legal precepts:
Appellate review of a weight claim is a review of the
[trial court’s] exercise of discretion, not of the
underlying question of whether the verdict is against
the weight of the evidence. Because the trial judge
has had the opportunity to hear and see the evidence
presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by
the trial judge when reviewing a trial court’s
determination that the verdict is against the weight of
the evidence. One of the least assailable reasons for
granting or denying a new trial is the lower court’s
conviction that the verdict was or was not against the
weight of the evidence and that a new trial should be
granted in the interest of justice.
The factfinder is free to believe all, part, or none of
the evidence and to determine the credibility of the
witnesses. The trial court may award a judgment
notwithstanding the verdict 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.
However, [i]f there is any support in the record for the
trial court’s decision to deny the appellant’s motion for
a new trial based on weight of the evidence, then we
- 43 -
J-A21037-22
must affirm. An appellant is not entitled to a new trial
where the evidence presented was conflicting and the
fact-finder could have decided in favor of either party.
McFeeley v. Shah, 226 A.3d 582, 594 (Pa. Super. 2020)
(citations and quotation marks omitted).
Spencer v. Johnson, 249 A.3d 529, 566 (Pa. Super. 2021).
In disposing of Appellants’ weight claim, the trial court explained:
This point of error can be interpreted two ways: the verdict
goes against the weight of the evidence, or there is an
inconsistency in the jury’s answer. If the latter, this issue was not
preserved at trial and is, therefore, waived.
* * *
The court did not find that the verdict was against the weight of
the evidence. [Defendants] elicited testimony from [Appellants]
and witnesses that . . . Decedent was exhibiting signs and
symptoms that warranted immediate medical attention and that .
. . Decedent failed to seek medical treatment, even against the
suggestion of his family.
Trial Ct. Op. at 10-11 (footnotes omitted).
To the extent that Appellants raise an inconsistent verdict challenge, as
their argument does intertwine suggestions of a discrepancy in the jury’s
decision, we agree with the trial court that they have waived this claim. See
Pa.R.A.P. 302(a).
We now turn to the merits of Appellants’ weight argument. “We are
reminded that it is not the place of this Court to invade the trial judge’s
discretion any more than a trial judge may invade the province of a jury,
unless both or either have palpably abused their function.” Spencer, 249
A.3d at 569 (citation omitted).
- 44 -
J-A21037-22
A review of the record reveals the following. The trial testimony
established that Decedent had a prior history of blood clots in his legs. See
N.T., 6/15/21, at 116. One week prior to the April 24th incident at issue,
Decedent was suffering from such knee pain and difficulty walking that he
decided to stay home from work. See N.T., 6/14/21, at 173. Two of his
family members suggested to him that he contact his treating physician,
including his gout doctor, but he declined to do so. See N.T., 6/14/21, at
174; N.T., 6/15/21, at 124-125. As mentioned above, on the morning of April
24th, Decedent collapsed on his basement steps and DCMH EMS responded
to the 9-1-1 call. See N.T., 6/16/21, at 13.
Based on the circumstances, Defendants presented evidence that Arnold
asked one of Decedent’s daughter about his medical history. See N.T.,
6/14/21, at 104-105, 134. When Decedent told DCMH EMS he was having
trouble breathing, they conducted an EKG test and provided him with oxygen.
See N.T., 6/14/21, at 134; N.T., 6/16/21, at 25; N.T., 6/17/21, at 144.
Arnold then placed a defibrillator monitor, a peripheral catheter, and an EKG
monitor on Decedent. See N.T., 6/22/21, at 33-35. They also gave Decedent
chewable baby aspirin at approximately 11:30 a.m. See id. at 36-37. Two
minutes later, Arnold took a set of Decedent’s vital signs, and noted that
Decedent’s rapid heart rate had decreased and his oxygen saturation was
improving. See id. at 38.
- 45 -
J-A21037-22
Arnold made the decision to take Decedent to Lankenau based on his
symptoms and the medical equipment available at the hospital, but when they
were three to four minutes away, Decedent went into cardiopulmonary arrest.
See N.T., 6/16/21, at 34, 55-56, 78; N.T., 6/22/21, at 39-40. Arnold ordered
Brown to stop the vehicle so that he and Brown could administer CPR. N.T.,
6/14/21, at 153; N.T., 6/16/21, at 34. During this time, while they were
administering compressions and giving epinephrine, Casey arrived to assist.
See N.T., 6/14/21, at 155; N.T., 6/22/21, at 43. They then performed an
orotracheal intubation of Decedent, and conducted another rhythm check on
Decedent, who was “in asystole[,]” so they restarted doing compressions
while giving him more epinephrine. N.T., 6/22/21, at 44-45. They then
resumed transporting him to Lankenau. Id. at 45.
As mentioned above, approximately 39 to 40 minutes had elapsed from
the time DCMH EMS arrived at Decedent’s home to when they arrived at the
hospital. See N.T., 6/16/21, at 77. The jury heard testimony from Casey,
who indicated that the time period was “reasonable” for someone who is
exhibiting signs of a pulmonary embolism to get to the hospital. See id. at
112.
Defense witness, Gregory C. Kane, M.D., an expert in the areas of, inter
alia, pulmonary medicine, myocardial infarction, the performance of
diagnostic testing, the performance of CPR and resuscitation, and the transit
of patients by ambulance crews from the field into the hospital, testified at
- 46 -
J-A21037-22
trial. See N.T, 6/17/21, at 56. He stated DCMH EMS’s “actions were within
the standard of care for what [his] expectation was and [his] awareness of
the Pennsylvania guidelines for providing EMS support, both BLS and ALS, of
[Decedent] in his transport” to Lankenau. Id. at 67. Dr. Kane testified that
Decedent’s blood clot was “large” and “it led him to have a cardiac arrest while
being transported to the hospital.” Id. at 81. The expert disagreed with
Appellants’ expert, Dr. Adams, about Decedent’s medical history and that it
automatically meant he was going to have a pulmonary embolism. Id. at 86-
87. Dr. Kane indicated one can have a heart attack even if that person had a
prior DVT. Id. at 86. He opined:
[W]e have to remember that we still don’t know that there’s
pulmonary embolism at the time that [Decedent] has his arrest,
so if the ambulance had not stopped to do appropriate CPR —
which is the standard in our field when a patient has arrest, to
start CPR right away — they would have arrived in the emergency
room without an understanding of what the condition was and
would have needed to do some of those diagnostic studies to
understand it.
We’ve also seen that the surgeon had difficulty placing the
ECMO, was unable to place the ECMO in the emergency room, so
my opinion is that [Decedent] would not have survived even if the
ambulance crew had just continued driving directly to the hospital.
Id. at 88-89.
When asked “how far in advance would [Decedent] have had to have
arrived in the hospital to have a chance[,]” Dr. Kane responded:
I would have estimated that had [Decedent] called for fire rescue
an hour earlier, perhaps, he could have gotten to the emergency
room in time, or they could have done some of the diagnostic work
- 47 -
J-A21037-22
to figure out he had a [pulmonary embolism] and administer some
of these life saving treatments that we've discussed.
N.T, 6/17/21, at 89.
The expert also stated that Arnold’s request for information regarding
Decedent were “routine questions that you would expect the EMTs to ask so
they could make the best decision to take the patient and a little bit about
what he would need as part of his report for transport.” N.T, 6/17/21, at 91.
Furthermore, he opined that when Brown stopped the ambulance to help
Arnold perform CPR, this was reasonable because
[t]wo-person CPR is highly effective, [it] gives [a responder] a
chance to vent late, give the patient additional oxygen for breathe
for the patient if they’re not breathing, also in this case insert an
endotracheal tube to gain access to lungs, provide high levels of
oxygen and also enables somebody to do effective chest
compressions, which would be very difficult to do in a moving
ambulance, particularly going around corners.
Id. 92-93.
The jury also heard from defense witness, James P. McCans, an expert
in EMT paramedic care, CPR, and operations of the vehicle,33 who testified
that DCMH EMS’s ambulance operation and care and treatment rendered met
the applicable standard of care. See N.T., 6/17/21, at 133-34. He noted that
Pennsylvania “has adopted a less [ambulance] lights and sirens model for EMS
response.” Id. at 137. Moreover, McCans indicated it was standard to “assess
the environment[,] talk to the patient, have communication with the patient’s
____________________________________________
33 See N.T., 6/17/21, at 129.
- 48 -
J-A21037-22
family, build a story as to what’s occurring[.]” Id. at 139. The expert testified
that “[o]ne of the first signs of a cardiac issue is having trouble breathing
because [the] respiratory system will try to compensate for deficiency on the
cardiac side” and DCMS EMS was “following protocol” when they provided
Decedent with oxygen and aspirin. Id. at 143-44. McCans stated it was a
“totally appropriate” amount of time that they spent at Decedent’s residence.
Id. at 147. McCans mentioned he was familiar with the area and testified it
was a “reasonable route” for Brown to take to Lankenau and that responders
“don’t have the right or the permission by the state to just blow through a red
light or a stop sign.” Id. at 149-50. He also indicated that they need to
“[a]void potholes” and “sudden accelerations and decelerations” while
responders are in the back doing CPR. Id. at 167.
Additionally, McCans stated DCMH EMS were “following the American
Heart Association’s advance cardiac life support protocol.” N.T., 6/17/21, at
204. He testified that because Decedent went “into a flat line rhythm[,]” they
could not use a defibrillator and needed to do CPR. Id. at 156. He noted that
Pennsylvania “actually recommends that during pit crew CPR[,] the second
person is set up on the other side of the patient and [does] a minute on, a
minute off, swap back and forth [for] efficacy[.]” Id. at 157. McCans opined
that the decision to pull over and start two-person CPR is not addressed in the
EMS protocols and that it would be up to the paramedic and “his gut response
as to what to do, and if that was to occur at that point[.]” Id. at 200-201.
- 49 -
J-A21037-22
McCans stated that his practice — and what he tells young medics — is that if
he can hold his breath to get to the hospital, “then [he would] continue on”
but if he cannot, then he suggests stopping to conduct CPR. Id. at 201. He
commented that DCMH “worked very hard to save [Decedent’s] life” and they
“did not increase any harm to him.” Id. at 172-73.
Appellants did not call their EMS expert to testify at trial. See N.T.,
6/17/21, at 5. As mentioned above, their other expert, Dr. Adams, conceded
that Decedent’s change of survivability would have increased if he sought
treatment earlier.
In considering these circumstances, we cannot conclude the trial court
abused its discretion in refusing to grant a new trial. We recognize that gross
negligence involves a higher degree of deviation from the standard of care
than ordinary negligence. See Feleccia v. Lackawanna Coll., 215 A.3d 3,
19 (Pa. 2019). However, that does not necessarily equate to a greater amount
of liability. Appellants present no case law to suggest that the legal weight or
ramifications of gross negligence and ordinary negligence creates a scenario
where the former trumps the latter in terms of outcomes. Thus, while the
jury did find Arnold’s actions amounted to gross negligence, it could
reasonably determine that Decedent’s liability in his failure to seek treatment
greatly outweighed Arnold’s liability. “We reiterate it was solely for the [jury],
as the finder of fact, to determine the credibility of witnesses and to resolve
any conflicts or inconsistencies in the evidence. The jury was free to accept
- 50 -
J-A21037-22
all, some, or none of the testimony presented to them.” Spencer, 249 A.3d
at 571 (citations & quotation marks omitted). Thus, we conclude the trial
court did not abuse its discretion in determining that the verdict was not
against the weight of the evidence. Accordingly, Appellants’ weight claim
merits no relief.
VI. Negligent Infliction of Emotional Distress
In their final argument, Appellants assert the trial court erred by
granting a compulsory nonsuit on Briannah’s claim for NIED. Appellants’ Brief
at 61.
The standard of review on appeal from the denial of a motion to
remove a compulsory nonsuit is as follows:
The plaintiff must be allowed the benefit of all favorable
evidence and reasonable inferences arising therefrom, and
any conflicts in the evidence must be resolved in favor of
plaintiff. Further, [i]t has been long settled that a
compulsory nonsuit can only be granted in cases where it is
clear that a cause of action has not been established.
However where it is clear a cause of action has not been
established, a compulsory nonsuit is proper. We must,
therefore, review the evidence to determine whether the
order entering judgment of compulsory nonsuit was proper.
Braun v. Target Corp., 983 A.2d 752, 764 (Pa. Super. 2009) (citation
omitted).
In addressing this issue, we are guided by the following:
As explained in Doe v. Philadelphia Community Health
Alternatives AIDS Task Force, 745 A.2d 25, 26 (Pa. Super.
2000), aff'd, 564 Pa. 264, 767 A.2d 548 (2001), the cause of
action for negligent infliction of emotional distress is restricted to
four factual scenarios: (1) situations where the defendant had a
contractual or fiduciary duty toward the plaintiff; (2) the plaintiff
- 51 -
J-A21037-22
was subjected to a physical impact; (3) the plaintiff was in a zone
of danger, thereby reasonably experiencing a fear of impending
physical injury; or (4) the plaintiff observed a tortious injury
to a close relative.
When proceeding under this theory, a unanimous panel of
this Court observed that
[t]he crux of a negligent infliction of emotional distress
claim is that appellees breached some duty they owed
to appellant and that that breach injured her.
Denton v. Silver Stream Nursing and Rehabilitation Center,
739 A.2d 571, 578 (Pa. Super. 1999) (although Judge McEwen,
P.J.E., filed a concurring and dissenting statement, he joined in
the quoted section). Therefore, under this theory of recovery, a
plaintiff must establish the elements of a negligence claim,
“i.e., that the defendant owed a duty of care to the plaintiff,
the defendant breached that duty, the breach resulted in
injury to the plaintiff, and the plaintiff suffered an actual
loss or damage.”
Toney v. Chester Cty. Hosp., 961 A.2d 192, 197-98 (Pa. Super. 2008) (en
banc) (some citations omitted; emphasis added). After a petition for
allowance of appeal was granted in Toney, the Pennsylvania Supreme Court,
in an evenly-split plurality decision,34 discussed NIED under “special
relationship theory,” stating:
Before 1970, our Court abided by the century-old common law
“impact rule” in cases involving emotional distress claims. The
impact rule “barred recovery for fright, nervous shock or mental
or emotional distress unless it was accompanied by a physical
injury or impact upon the complaining party.” Kazatsky v. King
David Memorial Park, Inc., 515 Pa. 183, 527 A.2d 988, 992
(Pa. 1987); see also, Potere v. City of Philadelphia, 380 Pa.
581, 112 A.2d 100, 104 (Pa. 1955). We acknowledged that the
“common law rationale for the impact rule is embodied in the
____________________________________________
34 We recognize that that while Toney is persuasive, it is not binding.
- 52 -
J-A21037-22
often-quoted statement of Lord Wensleydale in Lynch v. Knight,
9 H.L.Cas. 557, 598, 11 Eng.Rpts. 854, 863 (1861): ‘Mental pain
or anxiety the law cannot value, and does not [pretend to]
redress, when the unlawful act complained of causes that alone.’”
Id.; see also, W. Page Keeton et al., Prosser and Keeton on
the Law of Torts, § 12, at 55 (5th ed. 1984). In Kazatsky, we
further catalogued the concerns regarding recovery for psychic
injury as including “medical science’s difficulty in proving
causation, the danger of fraudulent or exaggerated claims, and
the perception that recognition of such a cause of action would
precipitate a flood of litigation.” Id.
We did not diverge from the impact rule until Niederman
v. Brodsky, 436 Pa. 401, 261 A.2d 84 (Pa. 1970), when we
adopted the “zone of danger” theory of NIED liability, which
provided compensation to those who did not actually suffer a
physical impact resulting in emotional distress so long as they
were in personal danger of the physical impact. We concluded
that the fear of impact resulted in justifiable and compensable
emotional distress. The Court in Niederman allowed this
extension of liability, in part, based upon the evolution of medical
science’s ability to diagnose mental distress. Id. at 86.
The most recent step in the evolution of NIED occurred in
Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (Pa. 1979), where we
adopted the theory of bystander liability. The adoption of the
bystander liability theory of NIED allowed recovery for
emotional distress for plaintiffs who witnessed an accident
causing serious injury to a close family member, even if the
plaintiff was not within the zone of danger of physical
impact. As explained in Sinn, we limited recovery for serious
mental distress to situations “where a reasonable person normally
constituted, would be unable to adequately cope with the mental
stress engendered by the circumstances of the event.” Id. at 683
(internal quotations marks omitted). . . . Later, in Mazzagatti v.
Everingham, 512 Pa. 266, 516 A.2d 672 (Pa. 1986), we refused
to extend bystander liability where a plaintiff did not immediately
witness the traumatic event, but instead came upon the scene
later.
Toney v. Chester Cty. Hosp., 36 A.3d 83, 88-89 (Pa. 2011) (emphasis
added).
- 53 -
J-A21037-22
Turning to Appellants’ arguments, they claim that certain Sinn “factors”
were disputed at trial. See Appellants’ Brief at 62. They state Briannah’s
“observations of Defendants’ lack of urgency and care for her father, while he
was unable to breathe, satisfies the ‘observation’ requirement.” Id. at 63.
They allege she witnessed Arnolds’ and Brown’s negligent acts at her house,
en route to the hospital (where the responders stopped at the red lights and
pulled over to administer CPR to Decedent), and at the hospital (where Arnold
or Brown told her that everything would be okay). Id. at 65-70. They assert
that because of her distress as result of the actions of Arnold and Brown, she
had to move out of her family’s home and live with her grandmother, as well
as seek mental health services. Id. at 71-72. Appellants contend the trial
court “incorrectly asserted that the claim for [NIED] was based only on the
conduct of” Brown. Id. at 73. They maintain the claim also included the
conduct of Arnold. Id. They also suggest the court “improperly focused on
only the following four allegations pertaining to . . . Brown: (1) driving in the
wrong direction; (2) failing to use lights and sirens; (3) waiting for the traffic
lights to turn green; and (4) not using the horn.” Id. They conclude
Briannah’s NIED claim “was based on much more than ‘a driver operating an
ambulance in compliance with the laws.’” Id. at 74.
In finding no relief was warranted on the NIED cause of action, the trial
court explained:
[Briannah] provided that her “claim is not based on the
nature of care. It’s not based on whether they did an EKG[.]”
- 54 -
J-A21037-22
[Her] claim of [NIED] is based on a delay caused by the ambulance
travelling in the “wrong” direction, a failure to employ lights and
sirens during transport, waiting for the traffic lights to turn green
prior to entering an intersection, and not using the horn.
* * *
[Appellants] argued that had the driver taken a different
route, the trip would taken six to eight minutes. However, the
patient went into cardiac arrest four minutes into the transport at
11:38 a.m. According to the parties, the ambulance was parked
for 15 minutes for care[.] Transportation resumed at 11:53 a.m.
The ambulance arrived at the hospital three minutes later, 11:56
a.m. Based upon [Briannah]’s testimony, the transport took
seven minutes.
Pennsylvania statute, 75 Pa.C.S. § 7105(d), provides that
“[t]he driver of an ambulance . . . shall comply with maximum
speed limits, red signal indications and stop signs. After
ascertaining that the ambulance . . . will be given the right-of-
way, the driver may proceed through a red signal indication or
stop sign.” As to the manner of transport, the court cannot find
that a driver operating an ambulance in compliance with the laws
amounts to a breach of duty. Based upon the evidence presented,
the court found that [Briannah] failed to establish a cause of action
for [NIED].
Trial Ct. Op. at 8-10 (footnotes omitted).
We agree with the trial court’s analysis and affirm on its basis while
adding the following, additional commentary. Contrary to Appellants’
argument, at trial, their counsel argued that Briannah’s claim “is based on a
23-minute window of time while she was in the ambulance, and just before
she got into the ambulance, she observed her dad in a critically ill state where
he could not move and he kept saying I can’t breathe[.]” N.T., 6/17/21, at
14-15. Their counsel previously had stated:
- 55 -
J-A21037-22
Our claim has nothing to do with the care. [Briannah is] in no
position to judge whether the care they gave him was negligence.
Her claim has to do with the fact that they made a series of
mistakes in driving to the hospital, not using lights and sirens.
That’s the evidence.
N.T., 6/14/21, at 17. We note that it is clear that a NIED cause of action has
not been established as Briannah failed to present any evidence that
Defendants owed a duty of care to her or that they breached that duty. See
Denton, 739 A.2d at 578. Rather, Briannah’s NIED claim amounted to an
allegation that DCMH EMS were not acting with urgency and made a few traffic
errors. Moreover, as Defendants point out:
[Appellants] failed to come forward with any evidence to
establish that her alleged distress was directly caused by . . .
Brown’s ambulance drive. Beyond feeling anxious because her
father was in the ambulance and she wanted the ambulance to
hurry, . . . Briannah . . . offered no testimony regarding any
discrete, identifiable, action or event of the manner in which the
ambulance drove which specifically caused her emotional distress.
Defendants’ Brief at 41. Accordingly, Appellants’ final claim fails.
Judgment affirmed.
Date: 12/20/2023
- 56 -