Savage, S. v. Jacobson, A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SAMANTHA JEAN SAVAGE, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ABBY A. JACOBSON, MS, PA-C A/K/A : No. 3907 EDA 2017
ABRIN ARLENE JACOBSON :
Appeal from the Judgment Entered October 23, 2017
In the Court of Common Pleas of Delaware County
Civil Division at No(s): 15-001881
BEFORE: BOWES, J., OTT, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OTT, J.: FILED AUGUST 09, 2018
Samantha Jean Savage (“Savage”) appeals from the judgment entered
October 23, 2017, in the Delaware County Court of Common Pleas, in favor of
Abby A. Jacobson, MS, PA-C a/k/a Abrin Arlene Jacobson (“Jacobson”), in this
negligence action. After the close of Savage’s case-in-chief, the court granted
Jacobson’s motion for nonsuit. Savage raises four issues on appeal,
challenging the court’s rulings both before and during the jury trial, as well as
its decision to grant Jacobson’s motion for nonsuit. For the reasons below, we
affirm.
The present action stems from a medical procedure performed on
September 25, 2007, by Jacobson, then a physician’s assistant at Aesthetic
Dermatology Associates, P.C. Savage, who was then seven years old, was
brought to Jacobson’s office by her mother and grandmother for treatment of
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“molluscum contagiosum, a condition that included small lesions or warts on
the skin.” Trial Court Opinion, 12/29/2017, at 2. The trial court summarized
the testimony presented during the jury trial as follows:
The testimony at trial established a conflict as to the factual
events that occurred in [Jacobson’s] office. [Mother] testified that
after they had arrived in the office [Savage’s] initial treatment was
with nitrous oxide, but when [Savage] saw the smoke caused by
this substance she became upset and it was determined that the
procedure would proceed with the TCA [trichloracetic acid]
treatment instead of nitrous oxide. [Mother] further testified that
[] Jacobson applied the TCA to [Mother’s] hand to show [Savage]
that its application did not hurt and to help calm [Savage’s]
nerves. [Mother] stated that the instrument [] Jacobson used was
similar to a Q-tip, which contained cotton on one end and an
uncovered stick on the opposite end. The stick end was used on
[Mother’s] hand to demonstrate. [Mother] testified that after the
demonstration, [] Jacobson proceeded to pour TCA into a cup–like
container and used a Q-tip end for her daughter’s treatment.
During the course of the treatment, [Mother] sat on the table with
her daughter and placed her onto her lap. [Mother] stated that
during her daughter’s stomach treatment, her daughter became
upset. [Mother] claimed that as [Jacobson] proceeded to
[Savage’s] neck area for treatment, the TCA spilled. [Mother]
testified on cross-examination that she did not see what caused
the acid to spill. [] Jacobson washed [Savage’s] face before
[Savage] left the office.
[Grandmother] testified that the Q-tip swab was really wet
and drippy and dripped on [Savage’s] stomach and that [Savage]
reacted to it. She further testified that the liquid splashed out of
the cup, but did not see where every drop had landed.
[Grandmother] testified that she saw the cup of TCA in []
Jacobson’s hand move and that she did not know if [Savage] or []
Jacobson jerked [Jacobson’s] arm. [Grandmother] continued that
she did not know how it happened, but he saw the acid splash out
of the cup.
[] Jacobson testified that she had previously treated
[Savage] and that [Savage] had become upset during treatments
and was referred to her for that reason. She claimed that she
initially treated [Savage] with liquid nitrogen but stopped the
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treatment because it hurt. [Jacobson] testified that she applied
the TCA to [Mother’s] hand to show [Savage] that it would not
burn. [Jacobson] testified that she applies TCA on women’s faces
to get rid of wrinkles as part of a cosmetic treatment. [] Jacobson
further testified that she started treating [Savage] when [Savage]
suddenly started flailing, kicking, moving her arms and crying and
that the applicator in her right hand was knocked out of her hand.
[] Jacobson stated that she retrieved the application [sic], put it
away, calmed [Savage] down and then treated [Savage] with
ointment and gave her instructions. [] Jacobson denied that she
had a cup of acid in her hand during the treatment.[1] [] Jacobson
also testified that she applied the TCA with the stick end and not
the Q-tip end for the treatment.
Id. at 5-7 (record citations omitted).
On February 27, 2015, Savage filed a complaint against Jacobson and
Aesthetic Dermatology Associates, P.C., asserting claims of medical
malpractice and ordinary negligence.2 The claims against Aesthetic
Dermatology were later dismissed by stipulation of the parties. See
Stipulation, 3/28/2016. On May 30, 2017, Jacobson filed a motion in limine
seeking to preclude testimony on the issue of the appropriate standard of care
from Savage’s proposed expert witness, Dr. Jeffrey Bomze. Specifically,
Jacobson argued Dr. Bomze, a pediatrician, “does not practice dermatology
and does not assert expertise in working with physician assistants.” Motion
In Limine, 5/30/2017, at ¶ 5. Savage did not file a response to the motion,
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1Although during her deposition Jacobson denied she held a container of acid
during the procedure, at trial, she testified she held the applicator in her right
hand but could not recall if she had a container of the TCA in her left hand.
See N.T., 6/20/2017, at 149, 151, 173.
2We note Savage attached to her complaint a certificate of merit pursuant to
Pa.R.C.P. 1042.3(a).
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but rather, on June 13, 2017, her attorney sent a letter to the trial court
stating Savage would not be proceeding on the medical malpractice count in
the complaint, and would “proceed on the ordinary negligence count, only.”
Motion for Compulsory Nonsuit, 6/16/2017, at Exhibit C, Letter dated
6/13/2017. Accordingly, on June 16, 2017, three days before trial, Jacobson
filed a motion for a compulsory nonsuit, asserting that while Savage pled
counts for medical malpractice and ordinary negligence, “the factual
allegations have borne out through discovery that the only viable claim is
medical malpractice.” Id. at ¶ 5. Because Savage failed to file a timely
response to Jacobson’s motion in limine, and, in fact, indicated she would not
be calling an expert witness, Jacobson asserted the “case must fail as a matter
of law[.]” Id. at ¶ 11.
On the morning of the first day of trial, Savage filed both an (untimely)
answer to Jacobson’s motion in limine, and preliminary objections to the
motion for compulsory nonsuit. The court proceeded to hear argument on
both motions. Savage’s attorney first insisted that, regardless of the letter he
sent to the court on June 13th, he did not waive his right to object to Jacobson’s
motion in limine or present an expert at trial. See N.T., 6/19/2017, at 6.
Furthermore, counsel clarified he still intended to present a medical
malpractice claim at trial, although he acknowledged his expert would not be
available for the next couple of days. See id. at 9-10. Savage’s attorney
maintained the first issue the court had to determine was whether he was
precluded from presenting his expert witness based on the motion in limine.
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See id. at 9. After taking a brief recess, the court denied the motion in limine.
See id. at 12. Consequently, Savage was not precluded from presenting a
medical expert at trial.
Next, the trial court considered Jacobson’s motion for compulsory
nonsuit. Jacobson’s attorney emphasized to the court that: (1) Savage’s
counsel stated he would not be able to produce his expert in time for trial; (2)
the facts of the case did not support a res ipsa loquitur argument; and (3) the
court had to decide if Savage could proceed with a medical malpractice and/or
general negligence claim. See id. at 12-16. In response, Savage’s attorney
insisted the motion was premature since a compulsory nonsuit is available
only after a plaintiff presents her case-in-chief. See id. at 18. After another
brief recess, the trial court denied the motion for a nonsuit. Although the
court permitted Savage to proceed on both counts in the complaint, it stated
“both of those counts sound in medical negligence,” and left the decision up
to Savage whether or not to proceed with an expert. Id. at 23.
The jury trial began that same day. Savage presented the testimony of
her mother and grandmother, testified as to her own recollection of the
incident, and called Jacobson as on cross-examination. She did not present
expert testimony before resting her case. At the conclusion of Savage’s case-
in-chief, Jacobson renewed her motion for a nonsuit. The trial court granted
the motion on June 21, 2017. Savage filed a timely post-trial motion, and the
court held a hearing on September 14, 2017. Thereafter, on October 16,
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2017, the trial court denied Savage’s motion for post-trial relief. This timely
appeal followed the entry of judgment on October 23 2017.3
When considering a trial court’s refusal to remove a nonsuit, we are
bound by the following well-established standard of review:
Nonsuit is properly entered where it is clear that the plaintiff has
not established a cause of action or right to relief. Pa.R.C.P. 230.1.
In determining whether the plaintiff has established a right to
relief,
[t]he 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
the 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).
“This Court will reverse an order denying a motion to remove a
nonsuit only if the court abused its discretion or made an error of
law.” Brinich v. Jencka, 757 A.2d 388, 402 (Pa.Super.2000).
Staiger v. Holohan, 100 A.3d 622, 624 (Pa. Super. 2014).
For ease of disposition, we will address Savage’s third issue first.
Therein, Savage maintains the trial court erred when it “declared” that she
must proceed with her case as a medical malpractice action, and not as one
sounding in ordinary negligence. Savage’s Brief at 25. She emphasizes she
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3 On November 6, 2017, the trial court ordered Savage to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Savage complied with the court’s directive, and filed a concise statement on
November 27, 2017.
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pled two counts against Jacobson in her complaint – one sounding in medical
malpractice and one sounding in ordinary negligence – and pled sufficient facts
to bring a claim of ordinary negligence against Jacobson. Savage asserts the
trial court’s ruling in this case “basically removed ordinary negligence as a
viable cause of action against any doctor, hospital, or other medical provider.”
Id. at 29.
Preliminarily, we note the trial court disputes Savage’s contention that
it precluded her from proceeding on an ordinary negligence claim at trial, and
the record supports the court’s assertion. See Trial Court Opinion,
12/29/2017, at 7-8. As noted supra, the trial court denied both Jacobson’s
motion in limine, and her pretrial motion for a nonsuit. Further, the court
specifically declined to dismiss either count in Savage’s complaint, although it
stated both the medical malpractice and ordinary negligence claims
“sound[ed] in medicine and medical treatment.” N.T., 6/19/2017, at 24. It
was Savage’s choice to proceed without medical expert testimony, which, as
will be discussed infra, was her downfall.
Savage also contests the court’s determination that both counts in her
complaint sounded in medical malpractice. Regarding this issue, the court
stated:
While [Savage’s] counsel sought to escape providing medical
testimony in this case by claiming that the matter was one of
ordinary negligence, an examination of the complaint revealed
otherwise. The pleadings of both counsel sounded in medical
negligence and both counts claimed negligence in the medical
treatment of [Savage].
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Id. at 8.
In Grossman v. Barke, 868 A.2d 561 (Pa. Super. 2005), appeal
denied, 889 A.2d 89 (Pa. 2005), a panel of this Court clarified the averments
a plaintiff makes in her complaint determines her theories of liability. See id.
at 568. The Grossman Court explained:
The underlying elements of negligence in a medical malpractice
claim, mirroring those of a basic negligence claim, are more
specifically described as a “duty owed by the physician to the
patient, a breach of that duty by the physician, that the breach
was the proximate cause of the harm suffered, and the damages
suffered were a direct result of the harm.”
One of the most distinguishing features of a medical
malpractice suit is, in most cases, the need for expert testimony,
which may be necessary to elucidate complex medical issues to a
jury of laypersons. In other words, “[b]ecause the negligence of
a physician encompasses matters not within the ordinary
knowledge and experience of laypersons[,] a medical malpractice
plaintiff must present expert testimony to establish the applicable
standard of care, the deviation from that standard, causation and
the extent of the injury.”
The expert testimony requirement in a medical malpractice
action means that a plaintiff must present medical expert
testimony to establish that the care and treatment of the
plaintiff by the defendant fell short of the required standard
of care and that the breach proximately caused the
plaintiff’s injury. Hence, causation is also a matter generally
requiring expert testimony.
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.” In such cases, “[t]he
cause and effect of a physical condition lies in a field of knowledge
in which only a medical expert can give a competent opinion ....
[Without experts] we feel that the jury could have no basis other
than conjecture, surmise or speculation upon which to consider
causation.”
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Id. at 566-567 (internal citations omitted). However, the Grossman panel
acknowledged expert testimony is not always required in a medical
malpractice case, as, for instance, when “the alleged negligence is obvious or
within the realm of a layperson’s understanding.” Id. at 567.
Drawing upon that precept, Savage insists expert testimony was
unnecessary in her case because Jacobson testified that “she knew the use of
acid ... would likely cause inflammation and she admitted that an inadvertent
act on her part could have caused the acid to drip onto the stomach of
[Savage].” Savage’s Brief at 27. Indeed, Savage analogizes her claim to one
in which a plumber, using acid to clear a drain, walks near a child and
inadvertently spills acid on the child. See id. at 26. She avers “[b]oth acts
are identical and neither one requires any medical expertise [to] come to the
conclusion that there was negligence on the part of the adult.” Id. at 27.
We find Savage’s analogy misplaced. As the trial court noted in its
opinion, “[b]oth the ordinary negligence claim and the medical malpractice
claim against [Jacobson] arose from the medical treatment of [Savage].” Trial
Court Opinion, 12/29/2017, at 11. Indeed, Savage averred the incident took
place in Jacobson’s office, where she “held herself out to the public as an
expert medical care provider in the area of dermatology, dermatologic
surgery, and associated treatments.” Complaint, 2/27/2015, at ¶ 8. With
regard to the ordinary negligence count, Savage averred Jacobson was
negligent for using TCA on a minor child absent, inter alia, taking proper
precautions, adopting policies regarding the use of acid on a minor, and using
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reasonable care. See id. at ¶ 53(a), (c), and (d). Further, she asserted
Jacobson was negligent for “failing to properly apply the acid” and “generally
acting in a negligent, careless and reckless manner by applying [TCA] to the
body of a seven year old girl[.]” Id. at ¶ 53(e), (g). Here, the facts averred
in Savage’s complaint (and testified to during trial) demonstrate that Savage
was injured while undergoing a medical procedure performed by Jacobson, in
her capacity as a physician’s assistant. Whether or not Savage could prove
her claim absent expert testimony is a separate question. We have no
hesitation in finding the trial court properly construed Savage’s claim to be
one of medical malpractice.
Next, we will consider Savage’s first two issues. Savage contends the
trial court erred when it determined she could not invoke the doctrine of res
ipsa loquitur to establish her negligence claim. See Savage’s Brief at 16.
Further, she insists in making that determination, the court also erred when
it considered whether her own conduct, as a seven-year-old patient, could
have been responsible for her injuries, when the law states, “[a] child between
the ages of 7 and 14 years of age is presumed incapable of negligence.” Id.
at 24.
The doctrine of res ipsa loquitur permits an inference that harm suffered
by a plaintiff was caused by the defendant’s negligence when:
(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
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(c) the indicated negligence is within the scope of the defendant’s
duty to the plaintiff.
Restatement (Second) of Torts § 328D(1) (1965). Furthermore, “[it] is the
function of the court to determine whether the inference may reasonably be
drawn by the jury, or whether it must necessarily be drawn.” Id. at §
328(D)(2).
Although a medical malpractice action usually requires expert
testimony,4 the doctrine of res ipsa loquitur may be invoked by a plaintiff,
obviating the need for an expert, “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.” Fessenden v. Robert Packer Hosp., 97 A.3d 1225, 1230 (Pa.
Super. 2014), appeal denied, 113 A.3d 280 (Pa. 2014). See id. (inference of
negligence under res ipsa loquitur doctrine warranted where a sponge was left
in patient’s abdomen following surgery); Quinby v. Plumsteadville Family
Practice, Inc., 907 A.2d 1061 (Pa. 2006) (plaintiff was entitled to inference
of negligence under res ipsa loquitur doctrine when quadriplegic patient, who
was left alone, fell off examination table; there was nothing to explain the fall,
and “[g]iven [plaintiff’s] full-body paralysis, all agree there was no way he
could have been responsible for his fall.”).
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4 “With all but the most self-evident medical malpractice actions there is [a]
requirement that the plaintiff must provide a medical expert who will testify
as to the elements of duty, breach, and causation.” Quinby v.
Plumsteadville Family Practice, Inc., 907 A.2d 1061, 1070–1071 (Pa.
2006).
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Here, the trial court concluded “the inference of res ipsa loquitur could
not reasonably have been drawn by the jury[.]” Trial Court Opinion,
12/29/2017, at 15. The court opined:
Unlike, for example, when a surgical sponge is left in a patient’s
body following surgery, the jury in this matter is left to guess as
to what caused the acid to spill as to the applicable standard of
care. How is the jury to know how the TCA should be handled?
How is the jury to know what strength the acid was and whether
that strength called for a certain handling of the TCA? What
instrument should be used to apply it? What distance should
[Jacobson] have been from [Savage]? What type of container
should have been used? Was this a substance known to cause
burns or a substance that is commonly used during facials? Did
[Jacobson] adhere to the standard of care in reacting to
[Savage’s] poor tolerance for the procedure? There was no ability
of the jury in this case to have [] completely understood the
medical procedure without an expert. [Savage] would have liked
the jury to infer that TCA must have been a highly dangerous
solution and that [Jacobson] must not have handled it properly.
However, this Court cannot permit such speculation. The use of
an expert would have established the exact nature of the TCA and
the standard of care to which [Jacobson] was required to adhere.
Even if the jury could infer causation without expert testimony, a
jury of laypersons lacked the knowledge to determine the degree
of skill required of [Jacobson] and that there was a breach of a
medical standard of care. The alleged negligence is not obvious,
or so simple that ordinary experience would allow a jury to make
such a determination without conjecture.
Id. at 15-16.
In addition, the court found Savage “failed to establish that other
responsible causes were sufficiently eliminated by the evidence[,]” including
the conduct of Savage herself or her mother, who was restraining her. Id. at
16. The court explained that although there was testimony the acid and/or
applicator was knocked out of Jacobson’s hand during the procedure, no
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witness could state what caused that to happen. See id. at 17-18. Indeed,
the court found Savage’s injuries “could have been caused without any
negligence on the part of [Jacobson].” Id. at 16. Accordingly, the trial court
determined Savage “did not satisfy the necessary factors under the
Restatement to proceed under the doctrine of res ipsa loquitur.” Id. at 18.
Savage insists, however, the trial court ignored “three salient facts[]:”
(1) the proof that TCA is a “highly dangerous solution,” as evident by the
permanent scars on Savage’s body; (2) Jacobson’s admission that she
“brought a glass bottle of acid in close proximity to a seven year old little girl,
who she knew from previous encounters was terrified of the process[;]” and
(3) Savage could establish Jacobson’s negligence “totally by circumstantial
evidence” and her burden of proof was only “by a fair preponderance of the
evidence.” Savage’s Brief at 17-19. Furthermore, Savage argues the trial
court improperly focused on “how the acid spilled,” when “[t]he real question
which was ignored by the trial judge, should include whether it was negligence
for [Jacobson] to carry a glass bottle of TCA over to a seven year old girl who
was already scared and upset, in the first place.” Id. at 19-20.
We find no error on the part of the trial court in concluding that the facts
of this case do not support an inference of negligence under the res ipsa
loquitur doctrine. Although Savage focuses on her young age at the time of
the incident, she ignores the fact that Jacobson was performing a medical
procedure when the “dripping” occurred. Moreover, although acid might be
considered a dangerous solution when used in other circumstances, here, the
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TCA was used for a medical procedure in a medical office.5 Indeed, Savage’s
mother testified the dermatologist had performed the acid treatment on
Savage during a prior visit. See N.T., 6/20/2017, at 10. Therefore, we agree
with the trial court it was critical for Savage to provide expert testimony to
determine whether the use of TCA to treat molluscum contagiosum on a
seven-year-old was medically proper, and whether Jacobson’s protocol –
assuming, arguendo, she used the cotton end of the Q-tip stick to apply the
acid, and held a bottle of acid in her other hand – was appropriate under the
relevant standard of care. Jacobson’s admission that “[a]nytime you apply an
acid … to the skin” it will cause “inflammation,”6 is not proof that her use of
TCA for a medical procedure was negligent. Accordingly, without expert
testimony, we find Savage failed to establish the first prong of the res ipsa
loquitur doctrine, that is, “the event is of a kind which ordinarily does not
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5 We note Savage also refers to the Restatement of Torts (First) § 835,
comment i, which she claims “sets forth the ‘highest duty of care’ standard”
when a person engages in an “inherently dangerous activity,” as well at the
accompanying suggested standard jury instruction. Savage’s Brief at 20-21,
citing Pa. SSJI (Civ) § 13.90 (2013). However, the comment specifically
states: “[t]he liability stated in this Section extends only to harm to another’s
interests in the use and enjoyment of land resulting from the dangerous
character of the activity and caused by the independent contractor’s failure to
exercise reasonable care to prevent it.” Restatement (First) of Torts § 835
(1939), Comment I (emphasis supllied). Accordingly, it is not applicable to
the facts herein.
6 N.T., 6/20/2017, at 170.
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occur in the absence of negligence[.]” Restatement (Second) of Torts §
328D(1)(a).
Moreover, we also agree with the trial court’s determination that Savage
failed to establish the second prong of the res ipsa loquitur test, i.e., that
“other responsible causes, including the conduct of the plaintiff and third
persons, are sufficiently eliminated by the evidence[.]” Id. at § 328D(1)(b).
See Trial Court Opinion, 12/29/2017, at 16-18.
Savage insists that because a seven-year-old child cannot be
contributorily negligent, the trial court erred when it found her actions could
have caused the accident. See Savage’s Brief at 24-25. Moreover, she insists
she “only flailed in pain after [Jacobson] spilled acid on [her] stomach.” Id.
at 25.
Savage correctly states that the negligence of a minor, who is between
the ages of seven and 14, is judged by a different standard than that of an
adult.
Both an adult and a minor are under an obligation to
exercise reasonable care; however, the ‘reasonable care’ required
of a minor is measured by a different yardstick—it is that measure
of care which other minors of like age, experience, capacity and
development would ordinarily exercise under similar
circumstances. In applying that yardstick, we place minors in
three categories based on their age: minors under the age of
seven years are conclusively presumed incapable of negligence;
minors over the age of fourteen years are presumptively capable
of negligence, the burden being placed on such minors to prove
their incapacity; minors between the ages of seven and fourteen
years are presumed incapable of negligence, but such
presumption is rebuttable and grows weaker with each year until
the fourteenth year is reached.
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Kuhns v. Brugger, 135 A.2d 395, 401 (Pa. 1957) (footnotes omitted).
Here, the trial court did not conclude Savage was contributorily
negligent in causing the accident. Rather, the court found that, under the res
ipsa loquitur standard, the evidence presented by Savage did not sufficiently
eliminate the conduct of others, including Savage (in flailing about) or her
mother (in attempting to restrain her), as a cause of the accident. Indeed,
both Mother and Grandmother testified that they did not see what caused the
spill,7 and Jacobson testified that Savage, herself, knocked the applicator out
of her hand when she “started flailing, kicking, [and] moving her arms.” N.T.,
6/20/2017, at 173. We agree with the court’s interpretation that while a
seven-year-old minor is presumed incapable of negligence, her conduct may
be considered in determining whether the doctrine of res ipsa loquitur applies.
Further, even if we did not consider Savage’s conduct, the testimony at trial
did not eliminate the possibility that Mother may have bumped Jacobson’s arm
and caused the spillage. Accordingly, we agree with the conclusion of the trial
court that the facts of this case did not support an inference of negligence
under the res ipsa loquitur doctrine, and Savage was required to provide
expert testimony on the appropriate standard of care to prove Jacobson’s
liability.
In her final issue, Savage insists the trial court erred when it granted
Jacobson’s oral motion for a nonsuit because the court did not view the
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7 See N.T., 6/20/2017, at 18, 82-83.
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evidence under the proper standard, that is, in a light most favorable to her,
as the plaintiff. See Savage’s Brief at 30. Our review of the record reveals
this particular argument, implying the trial court reviewed Jacobson’s motion
under an incorrect standard of review, was not raised in either Savage’s post-
trial motion or her concise statement. See Motion for Post Trial Relief,
7/3/2017, at ¶¶ 19-29; Concise Statement of Matters Complained of on
Appeal, 11/27/2017, at ¶ D. Rather, Savage’s argument concerning the
granting of the nonsuit focused on her insistence that she was entitled to an
inference of negligence under the res ipsa loquitur doctrine, a claim we have
already found to be meritless. See id. Accordingly, we conclude Savage’s
final argument is waived for our review. See Crespo v. Hughes, 167 A.3d
168, 181 (Pa. Super. 2017) (issue not included in post-trial motion is waived
for appeal purposes), appeal denied, 184 A.3d 146 (Pa. 2018); Pa.R.A.P.
1925(b)(4)(vii) (“Issues not included in the Statement … are waived.”).
Therefore, finding Savage is entitled to no relief, we affirm the judgment
entered in favor of Jacobson.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/9/18
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