Jackson, N. v. Allegheny Valley School

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
NICHOLL JACKSON, AN INCAPACITATED IN THE SUPERIOR COURT OF
PERSON BY HER COURT APPOINTED CO- PENNSYLVANIA
GUARDIANS, ARLENE HINKLE AND
THERESA CAINES
Appellants
v.
ALLEGHENY VALLEY SCHOOL
Appellee No. 3042 EDA 2014
Appeal from the Order Entered on September 25, 2014
In the Court of Common Pleas of Philadelphia County
Civil Division at No.: April Term, 2013 No. 5171
BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*
MEMORANDUM BY WECHT, J.: Filed December 18, 2015
Nicholl Jackson’s court appointed co-guardians Arlene Hinkle and
Theresa Caines (collectively, “Appellants”) appeal the September 25, 2014
order granting summary judgment in favor of Allegheny Valley School
(“AVS”). We affirm.
Nicholl Jackson suffers from profound intellectual disability.1 Jackson
is non-verbal and has a prior well-documented history of seizures,
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Although the parties refer to Jackson’s condition as profound “mental
retardation,” see, e.g., Brief for Appellants at 5, we use the term
“intellectual disability” to describe the identical phenomenon. See Hall v.
Florida, 134 S. Ct. 1986, 1990 (2014) (noting that the most recent edition
(Footnote Continued Next Page)
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maladaptive behaviors, and self-injury. In March 2011, Jackson was
admitted to AVS, a non-profit residential facility for individuals with
intellectual and developmental disabilities. AVS developed multiple
treatment plans to manage Jackson’s various conditions and symptoms. For
example, AVS completed a psychotropic medication review plan on March
15, 2011, which provided as follows:
[Jackson] is a 26-year-old female with profound [intellectual
disability] and diagnoses of impulse control disorder and bipolar
disorder. Target behaviors include SIB [(self-injurious
behavior)], physical aggression, [and] physical disruption. She
is described as impulsive with variable moods. She
demonstrates self[-]injurious behaviors (striking self in face,
scratching herself, and biting herself) multiple times daily. . . .
[Jackson] also regularly demonstrates rectal digging, fecal
smearing, pica,[2] and elopement.
AVS’ Motion for Summary Judgment, 8/4/2014, at Exh. Q (minor
modifications for clarity).
On March 21, 2011, AVS also developed a behavior management plan
targeted to Jackson’s pica. That plan called for Jackson to remain within a
five-foot radius of an AVS staff member during all waking hours so that she
_______________________
(Footnote Continued)
of the Diagnostic and Statistical Manual of Mental Disorders adopts this
terminology).
2
Pica is defined as a tendency or craving to consume substances that
have no nutritional value. For example, persons with pica may consume
paper, clay, metal, chalk, soil, glass, or sand. See Pica (disorder),
Wikipedia, https://en.wikipedia.org/wiki/Pica_(disorder) (last visited Dec. 8,
2015).
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could be reached quickly if she attempted to chew or ingest any non-edible
objects.
Jackson’s self-injurious behavior continued after her admission to AVS.
On April 7, 2011, Jackson hit herself in the face with a cup at lunchtime,
resulting in a laceration and bruise on her eyelid. Id. at Exh. R. One week
later, an AVS nurse observed scattered bruises on Jackson’s arms, which
were consistent with self-injury. Id. at Exh. S. On May 4, 2011, Jackson
was seen by a physician after an AVS staff member noticed that Jackson’s
hand was swollen and that she had a bruise on her left cheek. Both injuries
were attributed to Jackson’s self-injury. Id. at Exh. T.
On May 8, 2011, Appellants visited Jackson at AVS, and noticed
bruising on her face, arms, and breasts. Jackson was taken to Nazareth
Hospital. There, the emergency department physician noted bruising on
Jackson’s cheek, hand, chest, and lower legs, and scratch marks on
Jackson’s neck and back. The Philadelphia Police Department conducted an
investigation into Jackson’s injuries and interviewed multiple AVS
employees, but did not file any criminal charges.
On May 11, 2011, Appellants removed Jackson from AVS. On May 3,
2013, Appellants instituted this action against AVS on behalf of Jackson. In
their complaint, Appellants alleged that AVS agents and/or employees
abused and neglected Jackson during her residency at AVS, and that AVS
was negligent in failing to prevent that abuse and neglect.
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On June 21, 2013, AVS filed notice of its intent to enter a judgment of
non pros due to Appellants’ failure to file a certificate of merit.3 In response,
Appellants filed a motion to determine whether a certificate of merit was
necessary in this case. Therein, Appellants explained as follows:
There are no allegations in [Appellants’] complaint of any
deviation in medical professional standards regarding the care
and treatment of [Jackson], but to the contrary, the allegations
“sound” in ordinary negligence based upon [AVS’] failure to
supervise the care and treatment of [Jackson] in such a way that
would prevent any physical assault.
****
[Appellants’] only allegations are that [AVS] allowed [Jackson] to
be assaulted and [that Jackson] suffered serious injury as a
direct result thereof. . . . [Appellants’] complaint does not raise
questions of medical judgment, medical care, or any actions
involving diagnosis, care and treatment by licensed
professionals.
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3
Pa.R.C.P. 1042.3(a) requires plaintiffs in medical malpractice cases to
file a certificate of merit, stating that either:
(1) an appropriate licensed professional has supplied a written
statement that there exists a reasonable probability that the
care, skill or knowledge exercised or exhibited in the treatment,
practice or work that is the subject of the complaint, fell outside
acceptable professional standards and that such conduct was a
cause in bringing about the harm, or
(2) the claim that the defendant deviated from an acceptable
professional standard is based solely on allegations that other
licensed professionals for whom this defendant is responsible
deviated from an acceptable professional standard, or
(3) expert testimony of an appropriate licensed professional is
unnecessary for prosecution of the claim.
Pa.R.C.P. 1042.3(a).
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Appellants’ Motion to Determine the Necessity of Filing a Certificate of Merit,
7/1/2013, at 2-5 (emphasis in original). On August 15, 2013, the trial court
ruled that Appellants were not required to file a certificate of merit.
On August 4, 2014, after the completion of discovery, AVS filed a
motion for summary judgment. In that motion, AVS argued that Appellants
failed to produce any evidence establishing a prima facie case of negligence.
AVS additionally argued that the immunity provisions of both the Mental
Health Procedures Act and the Mental Health and Intellectual Disability Act
preclude Appellants’ claims. See 50 P.S. §§ 7114 and 4603, respectively.
On September 25, 2014, the trial court issued a memorandum opinion
and order granting AVS’ motion for summary judgment. Therein, the trial
court held that Appellants failed to demonstrate a prima facie case of
negligence. The court noted that, “other than conjecture, it does not appear
that any evidence has been put forth that any actual physical assault by a
third party took place.” Trial Court Opinion (“T.C.O.”), 9/25/2014, at 1
(emphasis in original). The trial court also held that the doctrine of res ipsa
loquitur was not applicable to Appellants’ claim because they did not
establish that Jackson’s injuries were “[of] a sort that normally would not
have occurred in the absence of [AVS’] negligence.” Id. at 2.
On October 16, 2014, Appellants filed a notice of appeal. The trial
court did not order Appellants to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellants did
not file one.
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Appellants present six issues for our consideration:
1. Whether there is sufficient evidence in the pre-trial record
that raise [sic] any genuine questions of material fact to allow
this case to proceed to trial?
2. Whether the doctrine of res ipsa loquitur is applicable?
3. Whether there was sufficient evidence is [sic] the pre-trial
record to establish causation?
4. Whether this case is one of ordinary or professional
negligence?
5. Whether the Mental Health Procedure Act or Mental Health
Retardation Act are [sic] applicable?
6. Whether Appellants could recover punitive damages?
Brief for Appellants at 4-5.4
Appellants’ first four questions can be condensed into a single inquiry,
to wit, whether Appellants adduced evidence sufficient to establish a prima
facie case of negligence. Because we conclude that they did not, we need
not discuss Appellants’ fifth and sixth issues.
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4
We have reordered Appellants’ issues for ease of disposition. We also
note that, although Appellants identify six distinct questions for our review,
they do not correspondingly divide the argument section of their brief into
six separate sections. Instead, Appellants’ argument section consists of five
sections, some of which do not parallel any of Appellants’ questions
presented. See, e.g., Brief for Appellants at 20 (section entitled “Nicholl
Jackson’s self[-]injurious behavior”). Our Rules of Appellate Procedure
require that the argument section be “divided into as many parts as there
are questions to be argued.” Pa.R.A.P. 2119(a). Nonetheless, we will
exercise our discretion to overlook this procedural error because it does not
impede substantially our review of the merits of this appeal. See Pa.R.A.P.
105(a), 2101.
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Our standard of review of a trial court’s order granting summary
judgment is well settled:
A reviewing court may disturb the order of the trial court only
where it is established that the court committed an error of law
or abused its discretion. As with all questions of law, our review
is plenary.
In evaluating the trial court’s decision to enter summary
judgment, we focus on the legal standard articulated in the
summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
where there is no genuine issue of material fact and the moving
party is entitled to relief as a matter of law, summary judgment
may be entered. Where the non-moving party bears the burden
of proof on an issue, he may not merely rely on his pleadings or
answers in order to survive summary judgment. Failure of a
non-moving party to adduce sufficient evidence on an issue
essential to his case and on which it bears the burden of proof
establishes the entitlement of the moving party to judgment as a
matter of law. Lastly, we will view the record in the light most
favorable to the non-moving party, and all doubts as to the
existence of a genuine issue of material fact must be resolved
against the moving party.
JP Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1261-62 (Pa.
Super. 2013) (quoting Murphy v. Duquesne Univ. of the Holy Ghost,
777 A.2d 418, 429 (Pa. 2001)).
It is axiomatic that the mere occurrence of an injury, standing alone,
is insufficient to establish a cognizable claim for negligence. McDonald v.
Aliquippa Hosp., 606 A.2d 1218, 1220 (Pa. Super. 1992). A plaintiff must
demonstrate the presence of a legal duty or obligation; a breach of that
duty; a causal link between that breach and the injury alleged; and actual
damage or loss suffered by the claimant as a consequence of thereof. Lux
v. Gerald E. Ort Trucking, Inc., 887 A.2d 1281, 1286 (Pa. Super. 2005).
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Although Appellants take note of these elements, see Brief for
Appellants at 13, they do not point to any evidence of record that would
allow a jury to conclude that Appellants demonstrated each of those
elements. Instead, Appellants contend that the doctrine of res ipsa loquitur
would allow the jury “to infer that the harm suffered was caused by the
negligence of [AVS].” Id. at 14. We disagree.
In instances of obvious negligence, i.e., circumstances in which the
medical and factual issues presented are such that a lay juror could
recognize negligence just as well as any expert, the doctrine of res ipsa
loquitur5 allows a fact-finder to infer from the circumstances surrounding the
injury that the harm suffered was caused by the negligence of the
defendant. Jones v. Harrisburg Polyclinic Hosp., 437 A.2d 1134, 1137
(Pa. 1981). The doctrine applies whenever:
(a) the event is of a kind which ordinarily does not occur in the
absence of negligence;
(b) other responsible causes, including the conduct of the
plaintiff and third persons, are sufficiently eliminated by
the evidence; and
(c) the indicated negligence is within the scope of the
defendant’s duty to the plaintiff.
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5
The phrase res ipsa loquitur, translated from Latin, means “the thing
speaks for itself.” Black’s Law Dictionary (9th ed. 2009).
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Restatement (Second) of Torts § 328D(1) (1965); Gilbert v. Korvette,
Inc., 327 A.2d 94, 100 (Pa. 1974) (adopting the Restatement’s formulation
of res ipsa loquitur).
Res ipsa loquitur merely is a shorthand expression for a rule of
evidence that allows a jury to infer negligence and causation where the
injury at issue is one that does not ordinarily occur in the absence of
negligence. Bearfield v. Hauch, 595 A.2d 1320, 1322 (Pa. Super. 1991).
Although res ipsa loquitur was intended to be a “far more realistic, logical,
and orderly approach to circumstantial proof of negligence,” Gilbert, 327
A.2d at 100, it has caused significant confusion.6 Stated simply, where a
plaintiff proves all three of section 328D’s elements, the question of whether
an inference of negligence should be drawn is for the jury. Leone v.
Thomas, 630 A.2d 900, 901 (Pa. Super. 1993) (citing Restatement
§ 328D(3)).
Here, Appellants’ discussion of section 328D’s requirements consists
entirely of conclusory assertions. For example, Appellants maintain that,
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6
See William L. Prosser, Handbook of the Law of Torts § 39, at 213
(4th ed. 1971) (“Res ipsa loquitur . . . has been the source of so much
trouble to the courts that the use of the phrase itself has become a definite
obstacle to any clear thought, and it might better be discarded entirely.”)
(footnote omitted)); Potomac Edison Co. v. Johnson, 152 A. 633, 636
(Md. 1930) (Bond, C.J., dissenting) (“It adds nothing to the law, has no
meaning which is not more clearly expressed for us in English, and brings
confusion to our legal discussions.”).
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“[t]ypically, severe injuries to [incapacitated] person[s] do not occur absent
some negligence.” Brief for Appellants at 15. However, it is less clear
whether a person with Jackson’s medical history, which includes an
extensive and well-documented pattern of self-injury, normally would suffer
bodily injury absent the negligence of her caregivers. As explained supra,
res ipsa loquitur allows a fact-finder to infer negligence only in the most
obvious cases, where “the medical and factual issues presented are such
that a lay juror could recognize negligence just as well as any expert.”
Jones, 437 A.2d at 1137. This is not such a case. Cf. Fessenden v.
Robert Packer Hosp., 97 A.3d 1225, 1231 n.7 (Pa. Super. 2014), appeal
denied, 113 A.3d 280 (Pa. 2015) (holding that a jury can conclude, “as a
matter of general knowledge,” that laparotomy sponges are not left inside of
a patient’s abdomen after surgery absent negligence).
Moreover, Appellants cannot rely upon res ipsa loquitur because they
failed to eliminate “other responsible causes, including the conduct of the
plaintiff.” Restatement (Second) of Torts § 328D(1) (1965). The
Restatement explains as follows:
It is never enough for the plaintiff to prove that he was injured
by the negligence of some person unidentified. It is still
necessary to make the negligence point to the defendant. On
this too the plaintiff has the burden of proof by a preponderance
of the evidence; and in any case where there is no doubt that it
is at least equally probable that the negligence was that of a
third person, the court must direct the jury that the plaintiff has
not proved his case. Again, however, the plaintiff is not required
to exclude all other possible conclusions beyond a reasonable
doubt, and it is enough that he makes out a case from which the
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jury may reasonably conclude that the negligence was, more
probably than not, that of the defendant.
Restatement (Second) of Torts § 328D, cmt. f (1965).
In Quinby v. Plumsteadville Family Practice, Inc., 907 A.2d 1061(Pa. 2006), our Supreme Court applied res ipsa loquitur to a case involving a
quadriplegic patient who was left unaccompanied on a medical examination
table, which lacked safety rails or other restraints, after a surgical
procedure. The plaintiff fell from the examination table and suffered severe
injuries, which purportedly resulted in his death. Finding that the evidence
sufficiently eliminated other responsible causes of the plaintiff’s injuries, the
Quinby Court explained as follows:
[T]he critical inquiry as to whether this subsection of § 328D is
satisfied is whether a particular defendant is the responsible
cause of the injury. Jones, 437 A.2d at 1139.
It is undisputed that there is no explanation for Decedent’s fall
beyond Defendants’ negligence. No one else entered the
examination room; the table did not break; nothing fell on or
near it; there was no seismic disturbance in the area, etc. Given
Decedent’s full-body paralysis, all agree that there was no way
he could have been responsible for his fall. Indeed, his condition
made it impossible for him to even understand how or why he
fell. Thus, Quinby has established that the fall is not the type of
event that occurs in the absence of negligence, and that there is
no explanation other than Defendants’ negligence for the fall.
Quinby, 907 A.2d at 1072-73 (some citations omitted).
Even when viewed in the light most favorable to Appellants, the
evidentiary record before us falls far short of establishing that AVS more
probably than not was negligent. Appellants’ expert stated only that
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Jackson’s injuries were caused by blunt trauma. He could not determine
whether Jackson’s injuries were the result of abuse or neglect, or whether
they were self-inflicted. Unlike in Quinby, where it was undisputed that no
explanation other than the defendant’s negligence existed, Appellants’ own
evidence clearly leaves open the possibility that Jackson’s injuries were self-
inflicted. Because Appellants have not eliminated all “other responsible
causes, including the conduct of the plaintiff,” as is required by section 328D
of the Restatement, the trial court held correctly that the doctrine of res ipsa
loquitur was not applicable to Appellants’ claims.
Finally, Appellants argue that the trial court erred in entering summary
judgment because AVS is liable for Jackson’s injuries regardless of their
genesis. Appellants contend that, “while it could be determined by the jury
that the injuries were the result of self-injurious behavior, this would
nonetheless mean that AVS was negligent in permitting [Jackson] to injure
herself.” Brief for Appellants at 15. This argument is unavailing, for several
reasons. First, Appellants have offered no expert evidence to establish the
applicable standard of care under these circumstances.7 Second, Appellants
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7
Throughout their brief, Appellants imply that AVS had a duty to
monitor Jackson one-on-one and to remain within a five-foot radius of
Jackson at all waking hours. This language is found within multiple internal
behavior management plans, which AVS drafted and used as a tool to
monitor Jackson’s several coexisting behavioral disorders. Appellants have
not demonstrated that AVS’ internal treatment plans are illustrative of the
standard of care required under the circumstances, and, more importantly,
(Footnote Continued Next Page)
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have not produced any evidence that AVS deviated from that standard of
care. Third, since the earliest stages of this litigation, Appellants have
maintained that their claims do not implicate AVS’ care and treatment of
Jackson. Indeed, Appellants bypassed the requirement that plaintiffs in
medical malpractice cases file a certificate of merit by arguing that:
[t]here are no allegations in [Appellants’] complaint of any
deviation in medical professional standards regarding the care
and treatment of [Jackson], but to the contrary, the allegations
“sound” in ordinary negligence based upon [AVS’] failure to
supervise the care and treatment of [Jackson] in such a way that
would prevent any physical assault.
****
[Appellants’] only allegations are that [AVS] allowed [Jackson] to
be assaulted and [that Jackson] suffered serious injury as a
direct result thereof. . . . [Appellants’] complaint does not raise
questions of medical judgment, medical care, or any actions
involving diagnosis, care and treatment by licensed
professionals.
Appellants’ Motion to Determine the Necessity of Filing a Certificate of Merit,
7/1/2013, at 2-5 (emphasis in original). Now, before this Court, Appellants
endeavor to prosecute a professional liability claim against AVS. However,
this theory of liability, just like Appellants’ ordinary negligence claim, lacks
any evidentiary support.
Appellants work backwards from the premise that AVS must be liable
for Jackson’s injuries because those harms occurred during Jackson’s
_______________________
(Footnote Continued)
Appellants have failed to adduce any evidence of AVS’ noncompliance with
its behavior management plans.
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residency at AVS. However, it is well settled that the mere occurrence of an
injury, standing alone, is insufficient to establish a cognizable claim for
negligence. McDonald, 606 A.2d at 1220. “In fact, the trial court has a
duty to prevent questions from going to the jury which would require it to
reach a verdict based on conjecture, surmise, guess or speculation.”
Krauss v. Trane U.S. Inc., 104 A.3d 556, 568 (Pa. Super. 2014). Based
upon the factual inadequacies of the record in this case, the trial court did
not err in concluding that AVS was entitled to judgment as a matter of law.
See Murray, 63 A.3d at 1261 (“Failure of a non-moving party to adduce
sufficient evidence on an issue essential to his case and on which it bears
the burden of proof establishes the entitlement of the moving party to
judgment as a matter of law.”).
Order affirmed.
Judge Panella joins the memorandum.
Judge Strassburger files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/2015
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