Shifflett, P. v. Mengel, J.

J-A19023-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PAMELA D. SHIFFLETT : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JOAN K. MENGEL : No. 1517 MDA 2021
Appeal from the Judgment Entered November 23, 2021
In the Court of Common Pleas of Lebanon County Civil Division at No(s):
2018-01553
BEFORE: BOWES, J., KING, J., and STEVENS, P.J.E.*
DISSENTING MEMORANDUM BY BOWES, J.: FILED MARCH 20, 2023
I agree with my esteemed colleagues that Appellant is not entitled to
judgment notwithstanding the verdict, as I do not believe the trial evidence
was such that there was no causation question for the jury to resolve.
However, I would hold that the trial court’s jury instruction as to causation
had the tendency to confuse or mislead the jury such that a new trial is
warranted.
I have no dispute with the Majority’s recitation of the law applicable to
review of a challenge to a trial court’s charge to the jury. As the Majority
accurately states, a new trial is warranted only if “the charge as a whole is
inadequate or not clear or has a tendency to mislead or confuse[.]” Majority
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* Former Justice specially assigned to the Superior Court.
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Memorandum at 13 (quoting Salsgiver Commc’ns, Inc. v. Consol.
Commc’ns Holdings, Inc., 150 A.3d 957, 962-63 (Pa.Super. 2016)).
Pennsylvania’s Suggested Standard Jury Instructions (“SSJI”) are instructive,
although not mandatory. Id. at 14. In any event, the language chosen by
the trial court in instructing the jury must fully and accurately state the law in
the required clear and unconfusing manner. Id.
The pertinent law is that, to recover for negligence, a plaintiff must
prove four elements: “(1) a legally recognized duty that the defendant
conform to a standard of care; (2) the defendant breached that duty; (3)
causation between the conduct and the resulting injury; and (4) actual
damage to the plaintiff.” Massaro v. McDonald’s Corp., 280 A.3d 1028,
1035–36 (Pa.Super. 2022) (cleaned up). We have explained that “the
plaintiff’s burden of causation has two components[, namely] (1) cause-in-
fact and (2) legal or proximate cause.” Pomroy v. Hosp. of Univ. of
Pennsylvania, 105 A.3d 740, 745 (Pa.Super. 2014). “[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.” Straw v. Fair, 187 A.3d 966, 993
(Pa.Super. 2018) (cleaned up) (quoting First v. Zem Zem Temple, 686 A.2d
18, 21 n.2 (Pa.Super. 1996)). “‘Proximate” or ‘legal’ causation in turn is
defined as that which, in a natural and continuous sequence, unbroken by any
sufficient intervening cause, produces injury, and without which the result
would not have occurred.” McPeake v. William T. Cannon, Esquire, P.C.,
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553 A.2d 439, 441 (Pa.Super. 1989) (cleaned up). “Legal or proximate
causation involves a determination that the nexus between the wrongful acts
(or omissions) and the injury sustained is of such a nature that it is socially
and economically desirable to hold the wrongdoer liable.” Zem Zem Temple,
supra at 21 n.2 (cleaned up).
These concepts are often difficult for people trained in the law to grasp,
let alone lay jurors. See Pa. SSJI (Civ) §13.20 at Subcommittee Note (2020)
(observing that “proximate cause, a term that attempts to give substance to
the distinction between factual cause and legal cause . . . ‘means nothing to
an ordinary jury’”) (quoting Rodgers v. Yellow Cab Co., 147 A.2d 611, 617
(Pa. 1959)). Our courts have utilized different terminology over the years to
try to express the legal constructs to juries, including “substantial factor”
taken from the Restatement (Second) of Torts § 431 (1965). Id. (citing Ford
v. Jeffries, 379 A.2d 111 (Pa. 1977)).
However, the word “substantial” is commonly used outside the law to
suggest a quantitative element that does not pertain to legal causation. See
id. at n.d2 (collecting definitions for the word substantial, including
“considerable in quantity: significantly large” and “being largely but not wholly
that which is specified”). Thus, although Pennsylvania courts have cited the
Restatement’s “substantial factor” test with approval, because it has “led to
some confusion among jurors,” the most recent SSJI concerning causation
reflects “that the emphasis [should] be on cause and that the definition of
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factual cause be so stated as to emphasize that it need not be so considerable
or large as to be confused with the plaintiff’s burden of proof, which is
considerably higher.” Id. at Subcommittee Note.
Accordingly, to avoid making causation “so cumbersome as to be
unintelligible to all but the legally educated juror,” “most of the usual legal
phrases have been jettisoned” from the suggested instruction by the SSJI
subcommittee. Id. Instead, the factual cause instruction covers both the
concepts of factual and legal causation. That suggested instruction, faithfully
quoted by the Majority, provides as follows:
In order for [name of plaintiff] to recover in this case, [name of
defendant]’s [negligent] [grossly negligent] [reckless] conduct
must have been a factual cause in bringing about harm. Conduct
is a factual cause of harm when the harm would not have occurred
absent the conduct. To be a factual cause, the conduct must
have been an actual, real factor in causing the harm, even if the
result is unusual or unexpected. A factual cause cannot be an
imaginary or fanciful factor having no connection or only an
insignificant connection with the harm.
To be a factual cause, [name of defendant]’s conduct need not
be the only factual cause. The fact that some other causes concur
with [name of defendant]’s negligence in producing an injury
does not relieve [name of defendant] from liability as long as [his]
[her] [their] own negligence is a factual cause of the injury.
See Majority Memorandum at 15-16 (quoting SSJI (Civ) §13.20) (emphases
added).
My emphases in the above quotation signal my next point. Whether
“factual cause” or “substantial factor” is used to describe causation to a jury,
it is plain that the question for the fact-finder is whether the defendant’s
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negligent conduct caused the plaintiff’s harm, not whether the direct physical
manifestation of the negligent conduct was the cause. In many cases they
are one and the same, as the plaintiff is injured when the automobiles collide,
the improperly-secured cargo falls on her, or an unsupervised dog bites her.
However, in cases such as the one sub judice, the lack of a direct, immediate
connection between the negligent conduct and the injury resulting therefrom
is capable of confusing a jury. The suggested jury instruction attempts to
clarify this for jurors in its second paragraph, and the trial court’s instructions
in this case sought to do the same, by specifying that the conduct need not
be the only cause of the harm, only one of potentially several actual causes.
In most cases, I believe this clarification would be sufficient to ensure that the
jury has an accurate explanation of the law.
At the end of the day, as noted above, the question we must decide is
whether “the charge as a whole . . . ha[d] a tendency to mislead or confuse”
the jury. Majority Memorandum at 13. In my mind, neither the ambiguity of
the “substantial factor” terminology nor the conflation of “negligent conduct”
and “collision” or “accident” necessarily would itself give rise to a jury charge
so misleading as to warrant a new trial. However, I believe that the particular
facts of this case—where the initial negligent conduct manifested in a collision
that placed the plaintiff in a dangerous position that allegedly caused her
injury after the collision—render the combination of the two confusing aspects
of the trial court’s choice of language reversible error.
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Appellee’s negligent conduct was identified by the trial court at the
outset of the jury charge as follows: “The Defendant was negligent. She
admits that she was negligent in crossing the center line in the road.” N.T.
Trial, 8/10/21, at 11. Thereafter, however, the trial court’s discussion of the
negligent conduct substantially (as in both materially and largely) referred to
“the accident” when indicating the admitted negligent conduct.
This use of negligence, negligent conduct, collision, and accident
interchangeably is far from uncommon. Indeed, the use of “accident” in place
of “negligent conduct” is prevalent in the discussion of factual cause provided
the subcommittee note to Pa. SSJI (Civ.) § 13.20 itself. However, although
the Appellee’s negligent conduct (here driving on the wrong side of the road),
had the immediate effect of causing a vehicular collision (“car accident” or
“accident” in common parlance), the conduct and the immediate result are not
determinative of Appellant’s claim. Appellant contends that she suffered her
ankle injury, the most substantial injury she alleged, not in or during the
accident, but after the accident happened as a result of being pushed off the
road due to the negligent conduct of Appellee. While the trial court dismissed
Appellant’s arguments on this point as “semantics,”1 I submit that the facts of
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1 See N.T. Trial, 8/10/21, at 29.
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this case are such that the distinction makes a difference in terms of assessing
the potential for confusion that is apparent from a review of the instructions.2
The Majority reproduces a sizeable portion of the trial court’s charge
that I will not reiterate herein. See Majority Memorandum at 16-17 (quoting
N.T. Trial, 8/10/21, at 11-14). I note that the excerpt quoted by the Majority
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2 The Majority finds that Appellant waived the issue of the substitution of
“accident” for “negligent conduct” by failing to develop it in her brief. See
Majority Memorandum at 13 n.5. I disagree. Appellant clearly presented the
argument to this court and tied it into her lengthier argument against the use
of “substantial factor,” contending, inter alia, as follows:
The trial court further muddled the causation charge by
instructing the jury that Plaintiffs injuries must have been caused
“by the accident” rather than “by the Defendant’s negligence.”
Neither Plaintiff nor Defendant asked the court to instruct the jury
that Plaintiff must prove harm caused “by the accident.” The use
of “by the accident” was yet another decision by the trial court to
ignore the causation instruction requested both parties. The SSJI
instruction both parties requested, focuses on “negligent
conduct.” It does not use the term “accident.” Since this case
involved an ankle injury suffered after the accident when Plaintiff
walked in the dark in the dangerous culvert into which Defendant
had pushed her, the trial court’s decision to flip-flop between
“substantial factor” and “factual cause” was made even more
confusing by the trial court repeatedly telling the jury that Plaintiff
must prove harm caused “by the accident” rather than “by
defendant’s negligence.” Instead of providing the jury with the
clear instruction regarding causation that both parties agreed
should be used, the trial court imposed its own confusing and
erroneous instruction that ignored the requests of the parties and
the reality that trial and appellate courts across Pennsylvania
recognize that SSJI §13.20 (Factual Cause) is a clear, complete,
and accurate instruction.
Appellant’s brief at 27 (footnote omitted). I find the argument sufficiently
developed in the brief to permit review.
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evinces the use of the term “accident” sixteen times while referencing
Appellee’s “conduct” only twice. The jury was repeatedly told that Appellant
was entitled to recover only if “the accident” was a “substantial factor” in
causing the harm of which Appellant complained. See, e.g., id. at 16 (quoting
N.T. Trial, 8/10/21, at 12) (“[I]n order for plaintiff to recover, the accident
must be a substantial factor in bringing about the harm to the plaintiff.”); id.
at 17 (quoting N.T. Trial, 8/10/21, at 13-14) (“[A]n accident will be deemed
a factual cause if it is a substantial factor in bringing about Appellant’s harm.
. . . You need only decide if the accident was a substantial factor in bringing
about any harm.” (cleaned up).
The impression created in this portion of the jury charge, namely that
that Appellant could not recover unless her ankle injury was largely linked to
the collision itself, was reinforced by the court’s damages instructions and
summation, which I reproduce in substantial (large) part:
With respect to medical expenses the parties have agreed
that [Appellant] has incurred $2,434.16 in medical expenses that
she will be responsible for paying. In addition, the parties have
stipulated that [Appellant] has already expended $3,534.00 in
out-of-pocket expenses relating to her ankle injury. These two
items total $5,968.16. . . .
If you agree that all of [Appellant]’s problems that she
described to you and that the doctor described to you, if you agree
that all of them relate to the accident, then you must
compensate her in the amount of $5,968.16. But keep in mind
that the Defendant disputes that all of these damages relate to
the automobile accident.
You can find that none of these problems related to the
accident. If you find that then you do not have to award anything
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for medical or out-of-pocket expenses. You can find that only
some of her problems related to the accident. If you find that
then you are at liberty to award an amount less than $5,968.16.
It is up to you, and you alone, to decide how much of these
claimed expenses related to the accident. And any amount that
you find did relate to the accident, you are duty bound to award
that amount.
....
A plaintiff is entitled to recover wages that he or she lost as
a result of an automobile accident. This includes lost hours.
A plaintiff does not have to be completely prevented from working
in order to receive damages for lost wages or lost earnings.
....
Thus, if you find that [Appellant] did in fact lose hours as a
result of the accident, you can compensate her for the money
that she lost by virtue of losing those hours. But, as I said to you
with respect to medical expenses, to the extent that you find that
[Appellant]’s problems did not relate to the accident, or to the
extent that you find she cut back hours for reasons having
nothing to do with the accident, then to that same extent you
do not have to award damages for lost wages.
....
Now, let me summarize. I have hit you with a lot. Let me
summarize, if I can, your role and what you will have to decide
and the law that governs it. I will go over five points.
Point No. 1: [Appellant] is entitled to recover monetary
damages only if you find the accident was a factual cause, a
substantial factor, in bringing about some harm to [Appellant].
Two, if you find that the accident did cause some
harm, then you must award some damages. I will repeat
that: If you find that the accident did cause some harm, then
you must award some damages. However, as you analyze
damages you are not required to find that everything claimed by
the Plaintiff was related to this accident. Under the facts of this
case, you could determine that some of the harm related to the
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accident. You could determine that all of the harm claimed
related to the accident.
In any event you should award damages only for the
harm that you find to be related to the accident. I will repeat
that, as well. If you find causation, you must award damages.
But if you find that there were other things in play, if you find that
[Appellant] did not suffer all of the harm she claimed, then you
should award damages only for the harm that you find to be
related to the accident. That is Point No. 2.
Point No. 3: Medical and out-of-pocket expenses total
$5,968.16. You determine whether all, none, or a portion of this
amount related to the accident, and then you award an amount
that you believe was related to the accident.
Point No. 4: In terms of future lost earnings, you determine
whether [Appellant] is unable to work to her full potential because
of the injuries she suffered in the accident. If you find that
[Appellant] did suffer lost wages as a result of the accident, you
should compensate her for the difference between the dollar
amount you believe she would have been able to earn for the rest
of her career without the accident, and the amount that you
believe she is now able to earn given the accident. The
difference is what you award.
Point No. 5: General damages are awarded based upon
your determination of how [Appellant]’s life was impacted by the
accident. To the extent that [Appellant] suffered a degradation
of her ability to enjoy life, you must compensate her for that loss.
No one can suggest a dollar figure to you for pain, suffering,
aggravation, inconvenience, et cetera. You, and you alone, have
to determine an amount that you believe is fair to compensate
[Appellant] for these damages.
N.T. Trial, 8/10/21, at 15-22 (emphases added).
At the conclusion of the charge, Appellant’s counsel took issue with the
repeated use of the term “accident” in connection with factual cause:
I think the jury verdict slip asks was negligence a factual
cause, which is the question. Over and over again you said
accident.
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I don’t want there to be confusion between your instructions
that kept saying Accident. Accident. Accident. I would like to
request some form of clarification that when you said accident,
you were referencing negligence as well.
Id. at 28-29.
The trial court implicitly conceded that the charge as given was not
sufficient, stating on the record to counsel for both parties:
THE COURT: . . . I believe that they are probably going
to come back and ask me to clarify the law.
When they do, I will talk with both of you. I still don’t know
100-percent what I am going to say. You win if they believe that
her twisting of her ankle while she was walking around would not
have occurred but for the fact that she was pushed off the road.
....
I’ll tell them that one more time: The Defendant is negligent
and that negligence caused the vehicle to go off the road. That is
not in dispute. I am not going to tell them now at this point in
time that negligence caused her to twist her ankle.
[Appellant’s counsel]: I’m not asking you to tell them that.
That’s not my point, Your Honor.
My point is that someone could interpret your instructions
saying caused by the accident in light of [Appellee’s] argument
that [Appellant] did not injure her ankle in the accident, therefore,
that is not responsive. That is not the law.
Id. at 29-30. The jury did not ask the court to clarify, but instead concluded
that Appellee’s negligence caused no harm to Appellant.
Considering the charge as a whole, I am convinced that it is reasonably
likely that the trial court’s choice of verbiage may have caused the jury to
believe that Appellant had not met her burden of proof unless she established
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that her ankle injury occurred in large part during the impact of Appellee’s
vehicle with Appellant’s vehicle. Since that is not the law, the trial court’s
instruction was confusing and misleading and was reasonably likely to have
impacted the verdict. Therefore, I would award Appellant a new trial. Accord
Carlini v. Glenn O. Hawbaker, Inc., 219 A.3d 629, 644 (Pa.Super. 2019)
(awarding new trial after observing that such relief is due only when “the
language the court chose incorrectly states the law or mischaracterizes the
evidence in a way that prejudiced the jury’s consideration and thereby
undermined the accuracy of the verdict” (cleaned up)).
Therefore, I respectfully dissent.
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