Gamble, S. v. Shaeffer, C.

J-A03015-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
STUART GAMBLE, ADMINISTRATOR : IN THE SUPERIOR COURT OF
OF THE ESTATE OF EVA GAMBLE : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 1330 MDA 2019
COREY SHAEFFER AND KEVIN :
VINTON AND MARIAH MELLOT :
v. :
:
:
JULIO VILLARREAL, LORNE SWOPE :
AND ROBERT HUFFMAN :
Appeal from the Order Entered August 2, 2019
In the Court of Common Pleas of Fulton County Civil Division at No(s):
2017-00262
BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.
MEMORANDUM BY LAZARUS, J.: FILED: JUNE 8, 2020
Stuart Gamble, administrator for the estate of Eva Gamble, appeals
from the order, entered in the Court of Common Pleas of Fulton County,
granting Corey Shaeffer’s motion for judgment on the pleadings. After careful
review, we reverse and remand.
On September 19, 2017, Gamble filed a complaint asserting the
negligence of Defendants Shaeffer, Kevin Vinton, and Mariah Mellot gave rise
to wrongful death and survival actions against each defendant. That
complaint, in relevant part, rested on the following factual averments:
J-A03015-20
The facts and occurrences hereinafter stated took place on
October 19, 2016, at approximately 6:30 [p.m.] on the
southbound lane of State Route 522 (SR-522) (Great Cove Road)
about one (1) mile south of the Borough of McConnellsburg, Fulton
County, Pennsylvania.
[] Shaeffer was the operator of a 1990 Chevrolet Prism, and was
driving south on SR-522, behind a 2005 Kenworth T800 tractor-
trailer, operated by Julio Villarreal.
[] Shaeffer pulled out into the opposing northbound lane in an
attempt to pass [] Villarreal.
A third vehicle, a 2001 Mercury Village, owned and operated by
Lorne Swope, was driving in the northbound lane of SR-522 at the
time of this crash.
In order to avoid a head-on collision with []Shaeffer, []Swope
braked and steered left, into the southbound lane.
In doing so, [] Swope drove into the tractor-trailer being operated
by [] Villarreal.
[] Villarreal pulled his tractor-trailer off to the side of the
southbound lane, while [] Swope’s vehicle came to a final resting
place facing west in the center of the roadway.
[] Shaeffer left the scene of the crash following the collision.
A vehicle, owned and operated by Robert Huffman, was also
driving south on SR-522, and [Huffman] pulled his vehicle
partially off the [roadway] and partially into the travel lane.
[] Huffman’s vehicle was approximately 2/3 off the roadway
(berm), and 1/3 on the roadway in the travel portion and within
the fog line.
Eva Gamble, [now] deceased, was a passenger in [] Huffman’s
vehicle.
The travel portion of the road was blocked by debris from the
accident caused by [] Shaeffer.
-2-
J-A03015-20
Kevin Vinton, operating a 2012 Ford F[-]150, was also driving
south on SR-522, and stopped at the top of a hill, behind []
Huffman’s vehicle.
Mariah Mellot was the right front[-]seat passenger in [] Vinton’s
vehicle.
[] Huffman and [Eva] Gamble exited the Huffman vehicle, in order
to clear the roadway of debris so that traffic would not back up.
[] Vinton also exited his vehicle, and walked towards the crash
scene, while [] Mellot remained in [] Vinton’s vehicle.
[Eva] Gamble was reentering [] Huffman’s vehicle. She was at
the front right bumper. The car was up against an embankment.
She had to squeeze between the vehicle and embankment to open
the door.
[] Vinton’s vehicle started to roll forward, down the hill towards
the Huffman car.
Defendant Vinton’s vehicle struck the back of [] Huffman’s car,
pushing it forward and causing it to run over [] Gamble.
***
The injuries ultimately led to [Eva Gamble’s] death.
Complaint, 9/19/17, at 2-4 (paragraph numerals omitted).
On December 27, 2017, Defendant Shaeffer filed a praecipe to join
additional defendants Villarreal, Swope and Huffman. On February 14, 2018,
Shaeffer filed a joinder complaint, alleging claims of contribution and
indemnification against each additional defendant. Swope filed preliminary
objections in the form of a demurrer to Shaeffer’s complaint. On March 15,
2018, Shaeffer filed both a response to Swope’s preliminary objections and a
-3-
J-A03015-20
motion for judgment on the pleadings, in which he argued Gamble’s complaint
failed to state a valid cause of action against him.
On August 14, 2018, the Honorable Jeremiah D. Zook heard oral
argument from Gamble, Shaeffer, and Swope. On September 13, 2018, Judge
Zook sustained Swope’s preliminary objections and granted Shaeffer’s motion
for judgment on the pleadings. The court found Gamble failed to plead facts
establishing Shaeffer’s conduct was the proximate cause of Eva Gamble’s
injuries.1 On August 9, 2019, Gamble timely filed a notice of appeal. 2 Both
Gamble and the court complied with Pa.R.A.P. 1925.
Gamble raises the following claims on appeal:
1. Whether the trial court erred in its application of Lux v.
Gerald E. Ort Trucking, Inc., 887 A.2d 1281 (Pa. Super.
[] 2005)[,] to this instant case, resulting in the trial court
incorrectly concluding that [Gamble] did not state a cause
of action in tort for Defendant Shaeffer’s driving in a
negligent manner, causing debris to litter the roadway and
mak[ing] it unsafe for other motorists, thereby causing []
Huffman to park his vehicle with Eva Gamble as his
passenger[] along the roadway to help clear the scene and
permitting Eva Gamble to be struck by another vehicle?
2. Whether the trial court erred when it ruled as a matter of
law that the conduct of [] Vinton and [] Huffman were
____________________________________________
1 The court, by extension, found Swope could not be responsible for
indemnification or contribution to Shaeffer.
2 Gamble later settled with Vinton and Mellot. Motion to Discontinue, 7/8/19,
at 2. He timely filed a notice of appeal after the court granted his motion to
discontinue as to Huffman and Villarreal on July 23, 2019, rendering the
September 13, 2018 order final and appealable. See Pa.R.A.P. 341(b)(1) (“A
final order is any order that . . . disposes of all claims and of all parties.”)
-4-
J-A03015-20
superseding and/or intervening causes based on the
allegation in the [c]omplaint?
Brief of Appellant, at 4.
We consider Gamble’s interrelated claims together. The following scope
and standard of review apply:
A motion for judgment on the pleadings should be granted only
where the pleadings demonstrate that no genuine issue of fact
exists, and the moving party is entitled to judgment as a matter
of law. Thus, in reviewing a trial court’s decision to grant
judgment on the pleadings, the scope of review of the appellate
court is plenary; the reviewing court must determine if the action
of the trial court is based on a clear error of law or whether there
were facts disclosed by the pleadings which should properly go to
the jury. An appellate court must accept as true all well-pleaded
facts of the party against whom the motion is made, while
considering against him only those facts which he specifically
admits. Neither party can be deemed to have admitted either
conclusions of law or unjustified inferences. Moreover, in
conducting its inquiry, the court should confine itself to the
pleadings themselves and any documents or exhibits properly
attached to them. It may not consider inadmissible evidence in
determining a motion for judgment on the pleadings. Only where
the moving party’s case is clear and free from doubt such that a
trial would prove fruitless will an appellate court affirm a motion
for judgment on the pleadings.
Wilcha v. Nationwide Mut. Fire Ins. Co., 887 A.2d 1254, 1257 (Pa. Super.
2005) (citations omitted); see also Cornwall Mountain Investments, L.P.
v. Thomas E. Proctor Heirs Trust, 158 A.3d 148, 153 (Pa. Super. 2017)
(“Judgment on the pleadings should only be granted when there are no
genuine issues of fact and the moving party is entitled to judgment as a matter
of law.”).
-5-
J-A03015-20
To recover for an action in negligence, a plaintiff must prove the
elements of duty, breach, causation, and harm. See Lux, supra at 1287
(listing elements of negligence). Under Pennsylvania law, causation
encompasses both “cause-in-fact” and “legal, or proximate, cause[.]” Straw
v. Fair, 187 A.3d 966, 993 (Pa. Super. 2018). A negligent act “is a cause-in-
fact of the plaintiff’s injuries if the harmful result would not have come about
but for the negligent conduct.” Id. “[C]onduct is a proximate cause of the
plaintiff’s harm where the conduct was a substantial factor in bringing about
the harm inflicted upon a plaintiff.” Id. “Proximate cause does not exist
where the causal chain of events resulting in [the] plaintiff’s injury is so
remote as to appear highly extraordinary that the conduct could have brought
about the harm.” Lux, supra at 1286–87; see Dudley v. USX Corp., 606
A.2d 916, 923 (Pa. Super. 1992) (affirming grant of summary judgment,
finding USX’s history of knowingly purchasing stolen copper did proximately
cause trespasser to risk injury by attempting to steal additional copper).
The substantial factor test assesses whether “a party’s negligence was
the proximate or legal cause of another’s injury[.]” Lux, supra at 1286. As
set forth in Wisniewski v. Great Atlantic & Pacific Tea Co., 323 A.2d 744,
748 (Pa. Super. 1974), that test provides:
[T]he actor’s negligent conduct is a legal cause of harm to another
if:
-6-
J-A03015-20
(a) his conduct is a substantial factor[3] in bringing about
the harm[;] and
(b) there is no rule of law relieving the actor from liability
because of the manner in which his negligence has
resulted in harm.
Lux, supra at 1287, quoting Wisniewski, 323 A.2d at 748 (citing
Restatement (Second) of Torts, § 431 (1965)).
In Grainy v. Campbell, 425 A.2d 379 (Pa. 1981), our Supreme Court
addressed the issue of whether an intervening negligent act of a second actor
will discharge the first actor’s liability. The Court stated that, since 1973, the
controlling law in Pennsylvania on “the extent of liability of a negligent actor,
i.e., the law of proximate causation, where that question is presented in the
light of an intervening act of negligence, is contained in section 447 of the
Restatement (Second) of Torts (1965).” Id. at 381, citing Estate of
____________________________________________
3 The following considerations are of importance in evaluating whether
negligent conduct is a substantial factor in producing an injury:
(a) the number of other factors which contribute in producing
the harm and the extent of the effect which they have in producing
it;
(b) whether the actor’s conduct has created a force or series of
forces which are in continuous and active operation up to the time
of the harm, or has created a situation harmless unless acted upon
by other forces for which the actor is not responsible;
(c) lapse of time.
Lux, supra at 1287 (citations omitted).
-7-
J-A03015-20
Flickinger v. Ritsky, 305 A.2d 40 (Pa. 1973) (adopting Restatement (Second)
of Torts, § 447). Under section 447, liability of an initial negligent actor
persists where: 1) “the first actor should have realized that the second actor
might so act[;]” 2) “a reasonable man would not regard the second actor’s
action as highly extraordinary[;]” or 3) “the second actor’s conduct is a normal
consequence of the situation created by the first actor and not extraordinarily
negligent.[4]” Grainy, 425 A.2d at 381 (emphasis added).
____________________________________________
4 Section 447, in full, reads as follows:
The fact that an intervening act of a third person is negligent in
itself or is done in a negligent manner does not make it a
superseding cause of harm to another which the actor’s negligent
conduct is a substantial factor in bringing about, if
a) the actor at the time of his negligent conduct should
have realized that a third person might so act, or
b) a reasonable man knowing the situation existing when
the act of the third person was done would not regard
it as highly extraordinary that the third person had so
acted, or
c) the intervening act is a normal consequence of a
situation created by the actor’s conduct and the
manner in which it is done is not extraordinarily
negligent.
Restatement (Second) of Torts § 447 (emphasis added).
-8-
J-A03015-20
The trial court, relying on Lux, supra, found the facts pleaded in the
instant case required it to grant Shaeffer’s motion for judgment on the
pleadings, as to do otherwise “would essentially render toothless the
requirement that plaintiff plead proximate causation. [In other words, t]he
[c]ourt f[ound] that [Gamble] has plead[ed] ‘a situation harmless’ that was
‘acted upon by other forces for which’ . . . Shaeffer is not responsible.”
Pa.R.A.P. 1925(a) Opinion, 9/13/18, at 13 (quoting Lux, supra at 1287).
We, however, find Lux distinguishable from the instant case. In Lux,
supra, this Court affirmed the trial court’s decision to grant a defendant’s
preliminary objections where the complaint lacked averments that could have
established that the defendant proximately caused the plaintiff’s injuries. See
id. at 1287–88. Lux involved a superficially similar scenario, involving a
plaintiff who was grievously injured while assisting in the aftermath of a
serious car accident, wherein the plaintiff pleaded the following facts: (1)
Eddie Roberts fell asleep at the wheel and collided with objecting defendant
Jaime Parker; (2) Parker fled the scene; (3) James Lux arrived at the scene
in his capacity as a police officer; (4) a state police officer, who had been
securing the scene of the accident, left upon learning Parker was at a nearby
truck stop; and (5) during the state police officer’s absence, Samuel Knight
fell asleep at the wheel and collided with Lux’s rescue vehicle, paralyzing Lux.
See id. at 1284.
-9-
J-A03015-20
The Lux Court found the trial court properly granted preliminary
objections dismissing Parker from Lux’s suit on the grounds that the pleaded
facts failed to establish that Parker’s conduct proximately caused Lux’s injury.
See id. at 1288 (“Proximate cause does not exist between Appellee’s conduct
. . . and Appellant’s injury.”). We determined that “[i]t was the negligence of
Roberts, who fell asleep at the wheel and then wrecked into [Parker’s vehicle],
that was the cause of the first accident.” Id. Further, we found it “highly
extraordinary that [Parker] fleeing from the scene could have caused Knight,
who also fell asleep at the wheel, to collide with Appellant’s vehicle and
ultimately result in Appellant’s injuries.” Id.
The Lux court affirmed the trial court’s decision to dismiss the case
against Parker on the grounds it was Roberts’ negligence that caused the crash
that inadvertently led to Parker’s role in Lux’s accident. See Lux, supra at
1288. This critically differs from the instant situation, wherein Gamble asserts
Shaeffer caused the initial crash and fled. See Complaint, 9/19/17, at 2–3.
The pleadings further assert Shaeffer fled in spite of the accident producing
such a quantity of debris that two drivers and two passengers chose to pull
over and aid in clearing the road. See id. Shaeffer’s role in the accident,
therefore, is not analogous to that of Parker, but to that of Roberts.
Accordingly, we do not find Lux dispositive.
Rather, we find the instant situation controlled by Grainy, supra, and
apply section 447 to determine “when intervening negligence will relieve
- 10 -
J-A03015-20
antecedent negligence.” Grainy, supra at 381. The facts of Grainy are as
follows: A group of Boy Scouts were hiking on a berm alongside a highway.
Id. at 380. A natural gas company, in the process of replacing a gas pipeline,
had obstructed the berm along which the children hiked. Id. An oncoming
truck observed the approaching Boy Scouts and the excavation and moved his
truck partially over the double yellow line. Id. Two Boy Scouts proceeded
around the obstruction and walked along the paved roadway. Id. The truck
driver drifted back into the lane as he passed the boys, striking one, who
suffered severe injuries. Id.
The jury returned a verdict in favor of the injured Boy Scout against the
truck driver, his employer, the contractor and the gas company. Id. This
Court later affirmed the judgment against the truck driver and his employer,
but reversed the judgment against the contractor and gas company, “holding
that the truck driver’s intervening negligence discharged the liability of the
contractor and gas company as a matter of law.” Id. Our Supreme Court,
relying on the section 447, overturned our order reversing judgment on the
grounds that all three rationales under section 447 supported continuing
liability for the initial negligent actor. Id. at 381. Of particular relevance here
is the fact that the Grainy Court found liability persisted because the gas
company and contractor, the initial negligent actor, created “a realizable
likelihood” that another individual would be “forced to use the roadway and
be struck by a negligently driven passing vehicle.”
- 11 -
J-A03015-20
Instantly, we find the facts pleaded by Gamble, averring Shaeffer’s
negligence created a dangerous situation conducive to producing further
negligent acts, give rise to a colorable theory of liability under Grainy. See
id. at 381. We, therefore, find the court erred by granting Shaeffer’s motion
for judgment on the pleadings. See Wilcha, supra at 1257 (“Only where the
moving party’s case is clear and free from doubt such that a trial would prove
fruitless will an appellate court affirm a motion for judgment on the
pleadings.”).
Order reversed. Remanded for further proceedings consistent with this
memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/08/2020
- 12 -