*1 and Pandora’s Box would remain closed. I re- Accordingly, spectfully dissent.
907A.2d 1061 QUINBY, Patricia Executrix of the Estate Quinby,
of John Deceased
v. PRACTICE, INC., PLUMSTEADVILLE FAMILY d/b/a Family Practice, Plumsteadville and Charles Burmeister, M.D., Welsh, and Millie R.N.
Appeal Welsh, of Millie R.N. Quinby, Patricia Executrix of the Estate Quinby, of John Deceased Family Practice, Inc., Plumsteadville Plumsteadville d/b/a Family Practice, Burmeister, M.D., and Charles Welsh,
Millie R.N.
Appeal Burmeister, of Charles M.D.
Supreme Pennsylvania. Court of
Argued May 2005. Sept.
Resubmitted 2006. Oct. Decided *6 Schell, P.C., James Michael Doyle, Esq., Post & Sheila Ann Harén, Schell, Esq., P.C., Post & Philadelphia, for Millie Welsh. Zajac, Firm,
Eric G. Esq., Zajac L.L.C., The Law Philadel- phia, for Patricia Quinby. IV,
William H. Pugh, Kane, Knoell, Esq., Pugh, Troy & Kramer, L.L.P., Norristown, for Plumsteadville Family Prac- (d/b/a tice, Inc., Practice”). “Plumsteadville Family James P. Kilcoyne, Esq., Kilcoyne Associates, L.L.C., & Leo, III, John Joseph Nesbitt, Esq., Kilcoyne L.L.C., & for Burmeister, Charles M.D.
James P. Kilcoyne, Associates, Esq., Kilcoyne L.L.C., & Leo, III, Joseph John Esq., Kilcoyne Nesbitt, L.L.C., & Burmeister, Charles M.D. Harén, Post & Esq., Ann Sheila Doyle, Esq., Michael
James Schell, P.C., for Millie Welsh. Philadelphia, NEWMAN, CASTILLE, CAPPY, C.J., and
BEFORE: BALDWIN, EAKIN, JJ. SAYLOR, BAER and OPINION BAER. Justice injures, (Decedent), suffered quadriplegic,
John death, he fell in his when resulted eventually allegedly which a minor after table unattended an examination while from Burmeister, Dr. Charles by procedure performed operative (Nurse Welsh), in the offices of Millie Welsh assisted medical In the subsequent Practice.1 Family Plumsteadville executrix, Patricia his widow action filed malpractice estate, jury returned of his on behalf Quinby (Quinby), *7 grant the Court directed Superior The defense verdict.2 n.o.v.) in (judgment notwithstanding the verdict judgment for a new trial and remanded liability only, on favor Quinby’s damages. on principally of appeal allowance general granted
This Court invo- permitted should have the trial court to decide whether in Quinby to assist res ipsa loquitur the doctrine of cation of Superior the Court and whether proof, her burden of meeting regarding Quinby’s in favor judgment in n.o.v. granting erred encompassed also of allocatur grant The liability. general videotapes admission of evidentiary questions regarding Decedent. trial court Court Superior with the agree
We inference ipsa loquitur the res permitted have should agree of this case. We also under the facts negligence Burmeister, Practice, Welsh are and Nurse Family Dr. 1. Plumsteadville collectively Defendants. to as referred alive; commenced, litigation Decedent At the time this 2. however, Quinby Initially, Decedent and both prior to trial. he died death, his After Decedent's plaintiffs in this action. the named were Quinby’s, as the caption replaced with and was removed from name of Decedent's estate. representative to on plaintiff, Quinby, judgment liability is entitled n.o.v. conclude, that, however, for negligence. contrary We also conclusion, a factual remains re- Superior Court’s issue garding negligence whether Defendants’ caused Decedent’s Act, meaning death within the Death Wrongful that, § Finally, Pa.C.S. we find to the extent it is damages, videotape proffered relevant by Quinby partially by disallowed trial court and then Court, by the be wholly permitted Superior should admitted follow, into for the Accordingly, evidence. reasons that order of the Court is in Superior part affirmed and reversed part, the wrongful and the case remanded for new trial on death for damages count and for survival action based on negligence.
Facts and History Procedural agree 8, 1996, The parties on November Decedent had Burmeister, a small lesion removed from his head Dr. Welsh, assisted Nurse at the office of the Plumsteadville In Family preparation Practice.3 the procedure, Quinby, wife, Decedent’s transferred Decedent from his wheelchair onto an examination table without side or restraints. rails Decedent, Once she moved left the examination room. Decedent, According deposition in a before taken his death, Dr. him positioned Burmeister and Nurse Welsh on the examination right table his side with a pillow behind his back, under head and his between knees. Dr. Burmeister then and, the lesion from temple, removed Decedent’s left course, room, due exited the room. Nurse Welsh also left the leaving open. the door Both Burmeister Dr. Nurse Welsh *8 Decedent; however, returned on to occasion check on at some unattended, point, while fell from Decedent the examination floor, table to the undisputedly suffering Decedent injury.4 3. patient twenty-five years Decedent been Dr. had Burmeister’s for over quadriplegic years. and a for nineteen that, least, undisputed It is at the Decedent suffered broken left femur, knee, thigh running hip which is the bone from the to the facial Quinby lacerations and contusions from the fall. further asserts that spinal injuries, ultimately Decedent suffered and cervical which led to fell, but exactly why he that he did not know how
testified side, roll right body he felt his left on being lying that after the loud noise hearing fall to the floor. After to the and right fall, Welsh, Dr. and from the Nurse Burmeister that resulted helped on the floor discovered Decedent and employees other the table. him back on examination place Decedent, to the testified, contrary that from Defendants’ on his back in the of Decedent was operation placed start the operation, they Following of examination table. center then position they in this and claimed Decedent was left they to check on Decedent until left the room and continued into the to find him on the heard a and rushed room thud employees other agree floor.5 All Defendants and placed Decedent onto the examina- Doctor Burmeister back care. prompt tion table and rendered in the January around complaint filed Quinby alleging that Defen- Bucks Court of Common Pleas County Dece- negligence in their care of professional dants committed alleged negligently provid- that Dr. Burmeister Quinby dent. to Decedent by failing position ed care to Decedent medical table, to use side rails or failing on the examination properly table, system failing to restraining another on examination risk, failing to monitor Decedent subse- assess Decedent’s fall supervise to Nurse quent operative procedure, failing Decedent, not and instructing her to Welsh leave for safety and enforce rules generally failing adopt alleged Quinby separately left on examination tables. patients care providing nursing was negligent Nurse Welsh table, the examination failing properly Decedent position Decedent, fall failing to assess Decedent’s failing to restrain leaving and Decedent operative procedure, risk after the brought against also counts Defendants unattended. distress, infliction emotional loss of consor- for negligent dispute progressive pulmonary and his Defendants failure death. extent, injuries spine vigorously take issue cervical to some fall. death was the result of the the contention that Decedent's herein, theory the case 5. As will be discussed further Defendants' back, provides explanation got how Decedent from the flat of his no table, to the the examination floor. centered on *9 Quinby consent.6 After tium, to obtain informed and failure died, allegedly complica- from Decedent complaint, filed the to fall, filed stipulation and the a arising parties from the tions for death and wrongful to include a count the complaint amend trans- complaint that parties’ understanding reflect Prior to upon Decedent’s death. to a action muted survival death, deposition in pre-trial discovery testified a his Decedent deposition.7 in a de bene esse and February 2003 to January from juryA trial held was trial, her case consistent with presented At Quinby 2003.8 and Nurse had Dr. Burmeister Welsh Decedent’s belief that operative proce- him side to right prior on his positioned as her dure, until fell. called left him there he and Defen- Fenton, opined Fenton that Bradley M.D. Dr. expert care, not the standard which complied had with dants safely left them Decedent was required to ensure Further, times. Dr. on table at all securely the examination how, absent extrinsic stated he was Fenton unaware situation, fall quadriplegic in this could present forces not being there a breach of from an examination table without event, In Dr. testified care.9 Fenton requisite any standard of stayed in the room Decedent that someone should have to the examination table with or he should have been secured that Defendants rails or Dr. Fenton concluded straps. side with a safe environment for provide failed to Decedent Dr. formed Although time he in the office. Fenton entire to Defen- report prior reviewing this his opinion and wrote failure to informed consent count stricken order 6. The obtain 6,May on the court likely deposition is when the will be 7. A de bene esse taken witness hearing. Gardner, A court A. Bryan unable attend a scheduled ed.1995). Legal Usage (2d Dictionary of Modern respect was entered Plumsteadville with 8. A directed verdict negligence. Accordingly, only Quinby's corporate remain- claim for theory liability ing liability against was for vicarious Plumsteadville pertained it the care and treatment rendered Dr. Burmeister as Welsh, agents and Nurse as of Plumsteadville. trunk, or his no use of his 9. Decedent had no use of his lower limbs limb, only very slight range right upper of motion in his left extremity. upper deposition dants’ testimony they left Decedent his back, he stated that upon reviewing these depositions, he concluded that they nothing offered to change opinion conclusion that someone should have remained the room *10 Decedent, or that he should have been placed a table with rails or straps.
Defendants presented expert testimony of Joseph Bend- er, M.D., who asserted that leaving a quadriplegic lying center safe, of the examination table be would and there was simply no reason for Dr. Burmeister to expect, given the circumstances past and Decedent’s medical history of twenty- years office, five with no falls in the that Decedent would be able to himself on the move table.10 Dr. Bender did testify notwithstanding quadriplegic’s general inability to move, some quadriplegic’s do occasionally have muscle spasms. However, Dr. Bender also testified that he was unaware of any spasm strong enough throw Decedent’s motionless off body the table and onto the floor. Dr. Burmeister this regard testified that he cared for Decedent since the accident rendering him a quadriplegic years before, nineteen and was unaware that Decedent had had spasms.11 ever muscle trial,
During the parties also introduced evidence regarding injuries whether the Decedent sustained as a result of the fall eventually caused his death. Additionally, Quinby sought to introduce the portion audio of a videotape Decedent had made twenty-two prior months fall his describing his life and interactions with family and friends as a quadriplegic, which Decedent had intended for use as an educational tool for 10. There is indeed no evidence that capable Decedent was of or did Moreover, move himself on the examination table. Dr. Bender failed to explain if, how this accident could have occurred as Defendant’s claimed, positioned Decedent was on his back in the center of the however, explanation, examination table. Absent such Dr. Bender’s testimony adds creating little to the case in dispute terms of a factual actually over how Decedent fell from the examination table to the floor. Quinby's expert 11. We note that agreed Dr. quadriplegics Fenton spasms could have muscle and if Decedent was on his side this could explain how he fell. Dr. Fenton explanation noted that such would be finding negligence consistent with his straps as side rails or would prevented have the fall. track would allow the audio offered that Quinby students. voice of Decedent’s and character strength hear the jury to also the accident. thereby prior his condition de bene esse of Decedent’s videotape to introduce sought died, would have he which day taken the before deposition, after the acci- before and of his condition contrast permitted refused to the trial court objections, Defendants’ Upon dent. taken of of the video portion of the audio admission permit life a quadri- as depicting to the accident prior Decedent that a demonstration the trial court believed because plegic irrelevant to “the to the fall was strength prior Decedent’s Moreover, permit court refused to the trial issue.”12 ultimate instead, but, tape, de bene esse video showing of the into the to be read transcript deposition allowed record. case, that the trial Quinby requested
At the close of
*11
The trial court
loquitur.13
on res
jury
ipsa
court instruct the
failed to
Quinby
it found that
to do so because
declined
from the examination
that Decedent’s fall
establish either
in
not occur
usually
the kind that
does
table was of
causes, such as Dece
or that other
negligence,
absence of
jury,
The
conduct,
the evidence.
by
dent’s
were eliminated
returned a verdict
loquitur,
on res
being charged
ipsa
without
Defendants,
and Nurse
that Dr. Burmeister
finding
in
favor
18, 2003,
February
Quinby
not
On
negligent.
were
Welsh
ruling baffling,
perplexed with what the trial
We find this
and are
12.
herein,
further discussed
"the ultimate issue.” As will be
court termed
damages
clearly
and should not have been
was
relevant to
the evidence
relevancy grounds.
disallowed on
herein,
ipsa
fully
res
the doctrine of
As will be discussed more
that
the harm suffered was
loquitur
the fact-finder
to infer
allows
negligence
certain circumstances.
of the defendant
in
caused
(1997).
Silk,
According
Second, premised upon conclusion that an inference of warranted, negligence, to res pursuant ipsa loquitor, was that the trial court Quinby argued failing grant erred Defendants, judgment n.o.v. on the issue of liability against because the evidence was such that no two reasonable minds could disagree negligent. Defendants were See Cum- (1967). mings v. Nazareth 427 Pa. Borough, A.2d 874 Again, Superior agreed. Court it reversed Accordingly, the trial liability court’s decision on granting Quinby judgment n.o.v., and remanded the case for a trial on damages. new
Finally, the Superior agreed Quinby’s challenges Court to the trial court’s on the ruling admissibility the video- tapes, finding that the was entitled to listen to the audio jury portion videotape twenty-two Decedent made months before the fall to to see the permit jury pace and extent of *12 Further, Decedent’s decline after the fall. the Superior Court held that trial in denying court erred of admissibility Decedent’s de bene deposition day esse taken the before he died, which, view, in the Superior permit- Court’s would have see, hear, ted the jury testify as well as Decedent on his own behalf. Dr.
Upon request Burmeister’s Nurse Welsh’s decision, Superior review of the granted Court’s we allocatur
197 to the inference Quinby was entitled to determine whether doctrine, the Superi- whether by ipsa loquitur created the res warranted, in n.o.v. was finding judgment or erred Court regarding videotapes the evidentiary rulings and whether proper. were
I. Res ipsa loquitur
the propri
The first issue we must examine involves
circum
Court’s determination
ety
Superior
Quinby
charge
such that
entitled to
stances here were
was
In examining
the doctrine of res
regarding
ipsa loquitur.
instructions,
determining
our
is limited to
jury
scope
review
committed a clear abuse of discretion
whether the trial court
v.
controlling
or error of law
the outcome of the case. Stewart
(1995).
Motts,
596,
535,
Pa.
654 A.2d
540
Error
in a
539
if
ground
charge
is sufficient
for a new trial
as
charge
tendency
or not clear or has a
to mislead
inadequate
whole
clarify
(citing
or confuse rather
than
a material
issue.
Id.
140, 255
Dept.
Hwys.,
v.
435 Pa.
Glider
Commonwealth
542,
(1969));
42,
see also Price v.
558 Pa.
735
Guy,
A.2d
547
(1999) (“[E]rror
668,
the jury
A.2d
be found where
670-71
will
probably
judge charged
mislead
what
trial
charge
an omission in the
A
charge.”).
where there was
will
unless “the issues are not made clear to the
adequate
be found
trial
jury
jury
palpably
judge
or the
misled what the
charge
said or unless there is an omission
which
Stewart,
to a
error.”
ruled out. (2003) al., 245, (plurality),14 A.2d 1140 et 573 Pa. 824 Rogal ipsa loquitur be met before a res three conditions must case, and Quinby in malpractice is a medical charge warranted rely Specifically, to meet of the three conditions. failed two 1150, notwithstanding its non 824 A.2d at ing Toogood, status, ipsa loquitur that res argue Defendants precedential agent arena if the malpractice only in the medical applies harm their exclusive instrumentality the was within causing of negligence. there is no direct evidence control and ipsa loquitur contends that res Quinby In response, at trial developed of this case as to the facts applicable (Second) of Torts § both 328D of the Restatement pursuant to the of the Court announcing judgment and the opinion and, therefore, charge ipsa on res Toogood, requested agree loquitur appropriate. We the three elements of presented at trial satisfies 328D, negligence pursu- § her to an inference of entitling thus Further, for the reasons discussed ant to res ipsa loquitor. herein, this case necessary analyze do not find it we Accord- Toogood. to our decision pursuant prior plurality held that Superior properly conclude that the Court ingly, we refusing ipsa loquitur charge, the trial court erred in the res of an inference of drawing have permitted which would negligence. Defendants’ negligent consists of a or uns malpractice
Medical
of the duties which are
performance by
physician
killful
and incumbent
him on account of his relations
upon
devolved
in the
proper
or of a want of
care and skill
patients,
with his
act. Mutual Ben. Ins. Co. v.
of a
performance
professional
Haver,
534,
(1999);
Bigelow,
v.
Hodgson
555 Pa.
Res ipsa loquitur
juries
allows
to infer negligence
from the circumstances
the
surrounding
injury.15 Res ipsa
loquitur,
“the
meaning literally
thing
itself,”
for
speaks
is “a
shorthand
expression
proof
circumstantial
of negligence—a
Korvette, Inc.,
602,
rule of evidence.”
v.
Gilbert
457 Pa.
327
(1974).16
99
A.2d
It is a rule that provides that a plaintiff
may satisfy his burden of producing evidence of a defendant’s
negligence by
that he
been
proving
injured
has
aby
casualty
of a sort that normally would not have
in
occurred
the absence
of the defendant’s negligence. William L.
Prosser,
Law of
(4th ed.1971)
§§
40
(calling res ipsa loquitur a
Torts
Upon
analysis,
apparent
ipsa loquitur
close
it is
provides
that res
no
plaintiffs obligation
assistance to a
duty,
demonstrate a defendant’s
duty
that a breach of that
was a
causing plaintiff
substantial factor in
harm,
However,
damages.
that such harm resulted in
ipsa
actual
res
loquitur
plaintiff
proving
duty.
does aid a
in
ipsa
a breach of
While res
loquitur
regard,
is
in
useful
this limited
law universally
case
refers to
loquitur
ipsa
raising
res
"negligence”
as
an inference of
rather than an
duty.”
inference of
Accordingly,
"breach of
by
we will abide
this
typical
ipsa loquitur
nomenclature and refer
"raising
to res
as
an
negligence.”
inference of
ipsa loquitur originated
16. The doctrine of res
Byrne
the case of
Boadle,
(Ex. 1863),
Eng.Rep.
2 H. & C.
in which a barrel
warehouse,
story
flour fell from the second
striking
defendant's
a
Gilbert,
pedestrian passing below.
Despite
inability
We “it inferred that harm suffered provides may § 328D be of the defendant when” plaintiff negligence is caused are three elements established. (Second) Rest. Torts 328D(1). element, negligence “the § The third indicated to the is duty plaintiff,” is defendant’s scope within met, argue and Defendants do not otherwise. clearly Rest. 328D(1)(c). Decedent, § quadriplegic, (Second) Torts accident, care at the time of the and they left Defendants’ for on the solely safety while he was responsible were Thus, will the first proceed analyze examination table. we elements, if ipsa loquitur to determine a res inference is two under the circumstances of this case. proper § 328D requires The first element of that “the event is of a not in the ordinarily negli- kind which does occur absence of gence.” Rest. The “event” we 328D(1)(a). (Second) § Torts § must consider to the first element of 328D is pursuant stated, table. As already Decedent’s fall from examination quadriplegic incapable moving Decedent was a his lower limbs, trunk, limb, upper slight and with right only very It upper of his left limb. that to undisputed use allow *16 on temple, the removal of a lesion his left Decedent was on comple- the examination table. After successful positioned Decedent, he according tion of the was left on his surgery, side, Defendants, and, he left on his right according was that Dece- undisputed back and table. It centered dent never side rails restrained with protected was that, somehow, from Decedent fell the table to the straps, floor. facts,
Under these there can be no question that when placed Defendants Decedent table, on the examination they had to do so in a manner insuring that he could not fall. Regardless of believed, which version of the event is there is no factual issue or possible dispute that Decedent’s fall result- ed from something other than Defendants’ negligence. Sim- in ply put, absence negligence, quadriplegic patient such as Decedent could not fall off an examination table. Therefore, we find that the evidence satisfies the first element §of 328D.
We must next determine causes, whether “other responsible including the conduct of the plaintiff persons, and third are sufficiently eliminated the evidence.” Rest. (Second) Torts 328D(1)(b).18 § Jones, Under the teachings of Gilbert critical inquiry as whether this § subsection of 328D is satisfied is whether a particular defendant is the responsible Jones, cause of the injury. 1139; Gilbert, 437 A.2d at A.2d at 101.
It is undisputed that there is explanation no for fall beyond Decedent’s Defendants’ negligence. No one else room; entered the examination break; the table did not noth it; fell ing on or near there no seismic was disturbance in the area, etc. Given full-body Decedent’s paralysis, all agree that there no way he could have been responsible for his fall. Indeed, his condition made it impossible for him to even Thus, understand how or he why fell. Quinby has established that the fall is not the type of event occurs the absence of negligence, and that there explanation is no other than Defendants’ negligence the fall. Accordingly, § 328D’s herein, three elements were met and the Superior Court was correct in ruling that the trial court should have charged the jury on the doctrine of res ipsa loquitur.
We turn next to Defendants’ assertion that Toogood would alter noted, however, this result. As Toogood a plurality 18. This element of adoption the Restatement and our of the Restate specifically ment prior requirement test disavows ipsa for res loquitur Pennsylvania instrumentality law that the be in the defen Gilbert, dant's exclusive control. at A.2d
203 Common- binding precedent. is not and therefore opinion 783, 12 791 n. 855 A.2d 579 Pa. v. Sepulveda, wealth 578, 673 A.2d 543 Pa. (2004); Tilghman, v. Commonwealth Mason, Pa. 322 456 (1996); Commonwealth event, (1974).19 concerned whether any Toogood In A.2d plaintiff could relieve a loquitur res ipsa the doctrine of negli- to demonstrate testimony expert of producing burden the complex, involving medically in a case gence in a that resulted nerve block of a injection paravertebral this at 1150. Because 824 A.2d Toogood, pneumothorax. at a professional treatment “professional involved procedure medical id., anatomy, of level,” issues involving “complex the science, precision performance,” and procedures, invasive the case plaintiffs it essential to held that was opinion lead Therefore, Toogood plu- the Id. expert testimony. introduce case, the determination medically complex in a held that rality injection paravertebral of a whether, the negligence, of absent lay beyond in a pneumothorax, block could result nerve and, dispense could not plaintiff knowledge, accordingly, on the ele- testimony expert of requirement producing ipsa loquitur. on res negligence by relying ments of contrast, legitimate that such Here, in it cannot be said lesion is removing a procedure because the concerns attach De- involves the negligence, which unrelated to the asserted Decedent, quadriplegic, securing positioning fendants’ table, medical scenario. non-complex examination on an testimony, and thus Moreover, expert present did Therefore, sim- Toogood, regard. her burden in this carried assertions of Quinby’s analysis does not to the ply pertain ipsa loquitur. res Judgment
II. N.O.V. held Superior properly that the Court Having decided jury they were informing court erred in not the trial ipsa loquitur, to res we pursuant to infer negligence entitled in grant- Court erred Superior decide must now whether case, joined opinion deciding three justices 19. Of the six Court, in the result announcing judgment two concurred only, and one dissented. ing Quinby judgment liability n.o.v. on the issues of reasons, For negligence wrongful following death. we conclude that the Court Superior properly granted judgment issue, negligence n.o.v. on the because find that no we two *18 reasonable minds could that the outcome disagree should have conclude, however, Quinby. been rendered in favor of alsoWe regarding factual issues remain the fall caused whether death, and, thus, Decedent’s erred in Superior Court directing wrongful verdict on the death count.
There are
bases
upon
may
two
which court
enter a
n.o.v.:(l)
judgment
the movant is entitled to
as a
judgment
law,
Raeuchle,
394,
1003,
matter of Moure v.
529 Pa.
604 A.2d
(1992)
Co.,
1007
(quoting Tremaine v. H. K.
317 Pa.
Mulford
97,
(1935)),
(2),
We have
motion for
n.o.v.,
judgment
“the
in
evidence must be considered
the light
winner,
most favorable to the
and he
given
verdict
must be
every
therefrom,
benefit of
reasonable inference of fact arising
any
conflict in the
in
evidence must be resolved
his favor.”
Moure,
205
1007;
Redevelop
also Atkins v. Urban
id. at
see
winner. See
344,
a. that the sub- argue Superior improperly Defendants Court that of the appraisal jury’s. stituted its of the evidence for argue Superior improperly Defendants that the Court over- establishing looked or credible that Dece- ignored could occurred in the absence of Defendants’ dent’s fall have course, of negligence. Quinby, argues Superior grant judgment entirely Court’s n.o.v. was on the proper case, parties facts of this because all the that Decedent agree table, fell from the and no one could how Decedent explain could have fallen if on his back positioned as Defendants it Essentially, Quinby argues testified. that was incumbent upon allegation Defendants to connect the dots between their that Decedent was left on his back and their properly conces- sion that he fell from the table. We agree Quinby.
Preliminarily, it is necessary specific address Defendants’ argument and the facts on it is based. Specifically, which Nurse argues Superior opinion Welsh that the Court’s was upon based the erroneous conclusion that it been would have for Decedent to have rolled off if impossible table he had been positioned on the center the table on his back. Rather, Nurse Welsh that Quinby’s expert, asserts own Dr. Fenton, testified that fall could if Decedent’s have occurred he record, involuntary had an A at spasm. closer look however, interpretation reveals Nurse Welsh’s testimony erroneous.
Dr. Fenton’s testimony premised on Decedent’s testi- side; that, mony that he on his Dr. Fenton stated from this an position, involuntary spasm may muscle have caused Decedent to fall to the It Dr. position floor. was Fenton’s if this was what occurred Defendant’s had breached their standard care by staying not either in the room with Decedent or side-rails or employing restraining straps. Con- testified, if versely, Decedent was on his back as Defendants Dr. Fenton stated that not change this would his conclusion *20 were, thus, that Defendants breached the of care and duty negligent for the same reasons. to Nurse Contrary Welsh’s assertion, Dr. Fenton did not if testify that Decedent was on back, it would have been for a muscle to possible spasm fact, him move to the floor. In Defendants’ expert own testified in regard this and concluded that a muscle spasm enough “actually would not have been powerful move on a table.” body
Thus, viewing actually presented in the light winners, most favorable to Defendants as the verdict we will proceed to analyze appropriateness granting of judgment for on It liability. important n.o.v. is to note that the regarding applicability above discussion of res ipsa loqui tur to the facts at trial presented implicated is also in our noted, discussion of the propriety judgment n.o.v. As 328D(2) § provides that “It is the function of the court to determine whether the may be dram reasonably inference jury, whether it must be necessarily drawn.” (Empha added). 328D(3) Further, § sis provides that “[i]t function of the jury determine whether the inference is to any be drawn in case where conclusions may reason different added). be ably (Emphasis Therefore, reached.” it is appar ent that contemplates Restatement there be will circumstances such that the inference of negligence must be drawn, circumstances, and in those there where are no materi al facts in dispute and different may conclusions not reason ably reached, be may the court direct the jury to find for the plaintiff. case, and, We believe that this is such a pursuant to 328D(2) (3), § the evidence demonstrates that the infer drawn, ence of negligence must be and different conclusions not may reasonably be reached. Restatement (Second) Torts, § 328D(2) 328D cmt. L (providing (3) § are intended to “make it clear entirely that it is the function of the determine, instance, court to in the first whether the jury can reasonably inference, draw or whether it must necessarily drawn, be and that where different may conclusions reason be ably it is the reached function of the jury to decide whether not.”). the inference is to be drawn or recognize We that res ipsa loquitur involves a permissible inference of negligence, not a legal presumption, and direction of a plaintiff verdict is not the usual outcome where it The applies. inference provides reasonable evidence, in the absence an explanation by Defendants, the accident arose from their negligence. The strength inference necessarily will depend the evidence presented, range and will from reasonable probability practical certain- *21 208 case, may be In the where different conclusions
ty. ordinary reached, jury it is the of the to determine reasonably function is to be the inference drawn. whether however, that a recognize, directed ver alsoWe rise to exceptional give circumstances dict is authorized where on the of defendant which negligence part an inference of be individu rejected so that it cannot reasonable strong is no of fact if not It is there issue only als rebutted.20 when of in order any necessary to the of the conditions as existence may court loquitur res that the withdraw apply ipsa of jury jury from the or direct the to draw inference issue cases, strongly In these rare the evidence will so negligence. be to a that the will entitled support plaintiff the inference directed verdict: cases, the human in the
There are
such as that of
toe
[ ]
tobacco, or
collision of
trains
chewing
railway
of
plug
track,
the same
inference
trying to run on
where
man
clear that no reasonable
could fail to
negligence is so
it;
cases,
no
in such
if the defendant offers
accept
for the
explanation,
plaintiff.
a verdict should be directed
words, the
of a res
case is
procedural
ipsa
In other
effect
drawn,
inference
strength
the matter of the
of the
to be
the circumstances
case.
vary
which will
(2d.
1955). See, e.g.,
212
ed.
William L.
Prosser,
Torts
Prosser,
California,
Ipsa
L.
Res
37 Cal.
Loquitur
William
(“where
(1949)
bespeak
be
negligence
L.Rev. 183
the facts
if
absence of
yond dispute a verdict should be directed
”); Douglas
Kelly
...
v.
contrary
sufficient
Edu.,
473,
Ill.Dec.
468 N.E.2d
Ill.App.3d
Bd.
127
82
(1984)
on
that where a school’s window
fell
(finding
pane
476
desk,
sitting
her
entitled
plaintiff
while she was
at
was
plaintiff
loquitur)-,
Moore v.
ipsa
to a directed verdict based
res
(1960)
Atchison,
(finding
N.E.2d 393
Ill.App.2d
28
171
there
plaintiff
proper
for the
that directed verdict
was
where
collided,
as to
trains
why
no
two
even
direct evidence
equipment
properly
showed that the
though
defendant
Glenn,
See,
generally,
loquitur
ground
B.H.
ipsa
as
direction
Res
(1964).
plaintiff,
The fact that trial was the only dispute during was fact, however, of on the This is positioning Decedent table. Even if inconsequential assessing negligence. to Defendants’ placed on back the center of the table as Decedent was maintain, the fell Defendants fact remains Decedent from floor, the to the have not offered any table and Defendants the fall. to explaining evidence cause of the Pursuant the discussion, above this is not the of event that occurs type the eliminates negligence; sufficiently without other causes; and the of Defen negligence scope the was within to duty Decedent. Restatement dants’ Tokts, (Second) of § 328D.
Thus, taking light all of evidence in the most favorable winners, as verdict believe the inference the Defendants we of no reasonable minds negligence strong is so two could accept no could fail to the inference disagree; jury reasonable of is negligence arising precisely excep- therefrom. This grant § tional case 328D and for which the of contemplated by judgment proper.21 n.o.v. is Wrongful
b. Death death, wrongful In in an action for order recover by must that the death caused violence plaintiff prove that, Thus, properly permitted Quinby it is clear had the trial court ipsa loquitor, of res would use the inference she have been entitled to a directed verdict at trial. 210 8301(a). 42 negligence § the defendant. See Pa.C.S.
Therefore, liability wrongful requires death a determina- a negligence tion that defendant’s caused the death. In our discussion, prior we determined that this case called for a judgment negligence. n.o.v. as to the survival action based on however, Negligence, only is half of the death wrongful equa- question injuries tion. A remains regarding whether caused negligence eventually Defendants’ caused Dece- dent’s death. trial,
At
parties vigorously disputed
whether
the fall caused
subsequent
Decedent’s
death. The
question
negligence
proximate
whether Defendants’
cause
to be
injury
ordinarily
one
decided
fact finder. Kite
Jones,
(1957);
389
Pa.
III. of Evidence As in the prior Superior we conclude section that the properly Quinby Court determined that to judg was entitled on ment n.o.v. the issue of liability negligence, and the matter, therefore, the on will be remanded to trial court the damages issue of and to determine Decedent died as whether fall, remaining a result the final claim the of Defendants admissibility on the ruling Court’s Superior concerns the at trial. be introduced sought Quinby to certain evidence earlier, trial, intro- Quinby sought to as noted at Specifically, made of a Decedent had videotape the portion duce audio the fall in order to show months his twenty-two prior thereby prior his condition of Decedent’s voice and strength Dece- to introduce Additionally, Quinby sought incident. the fall, in taken after the which was videotaped deposition, dent’s after accident. his condition before and the order to contrast not the could introduce The trial ruled court months to the incident twenty-two prior of Decedent audiotape day took one deposition, place of his which or the videotape audiotape, the court ruled Regarding his death. before i.e., tape, to show Quinby’s introducing purpose voice, irrelevant to the “ultimate of Decedent’s was strength which, case, the court as the apparently, in the viewed issue” court deposition, Decedent’s liability. Regarding issue of introduced, deposition could not be videotaped ruled that its jury, be read to finding but it to permitted its for “unfair outweighed by potential value probative was to elicit likely being by Quinby as it used prejudice” jurors. sympathy part rulings. court on Superior The reversed the trial both Court First, the audiotape portion the court noted that of Decedent’s to the to show videotape made accident was relevant prior With physical “the and extent of decline.” pace [Decedent’s] court testimony, to the ruled that such regard deposition particularly important because it was relevant that, if jury credibility for the assess the Decedent’s alive, testimony.22 the court not preclude could *24 argue Superior improperly
Defendants that the Court now claiming the trial court’s that court was rulings, reversed ruling its discretion in on the evidence and that the within trial function usurped Court court’s Superior improperly hand, argues in on the other issuing contrary rulings. Quinby, reversed the trial court’s Superior properly that the Court herein, credibility rulings to 22. Given our Decedent’s is irrelevant liability. important damages. It is to a of nevertheless determination in rulings this because the evidence regard sought that she introduce was particularly jury’s relevant assessment of Decedent before and the fall purposes after for of the issue of causation and damages. agree. We
While the admission of evidence rests within the sound
discretion of the trial
only
court and will
be
upon
reversed
discretion,
showing
it abused its
Commonwealth v. Boc-
zkowski,
(2004),
577 Pa.
Accordingly, based on foregoing, we affirm the order of Superior in part Court and reverse in part, and remand for a damages death, trial on and for wrongful consistent with this opinion.
Chief Justice CAPPY and Justices NEWMAN and join BALDWIN this opinion.
Justice SAYLOR files a concurring and dissenting opinion. Justice EAKIN files a dissenting opinion which Justice joins. CASTILLE SAYLOR,
Justice concurs and dissents. join I the disposition evidentiary matters Part III of the majority opinion, and I agree with the majority’s holding
213 Quinby’s request erred Mrs. by denying that the trial court under the negligence for a to be inferred charge permitting differ, however, doctrine of res I ipsa loquitur. respectfully majority’s conclusion that there was no reasonable with fall due concerning Quinby’s at trial whether Mr. dispute 200-03, A.2d at negligence, Majority Opinion to see at 907 1072-73, notwithstanding its that holding judgment with on the see negligence question, the verdict should be entered 209-10, at A.2d at id. 907 1077. legal
The
describes the
majority aptly
governing
principles.
here are the
particular importance
general functioning
Of
res
as an
rule
ipsa loquitur
evidentiary
supporting
permis-
Korvette, Inc.,
inference of
v.
negligence,
sive
accord Gilbert
611, 618,
94, 99,
(1974),
602,
Pa.
103
457
327 A.2d
and its
mandatory
enhanced role as
effectively establishing
pre-
circumstances,
in
sumption
exceptional
question
where
conclusions,
subject
is not
negligence
reasonably
competing
618,
see id. at
In regard, explained this the Court has previously (and rebut the inference of in a negligence ipsa res case thus to advance a factual not question), identify the defendant need instead, the cause of giving litigation, the accident rise to but on may rely supporting a conclusion he exer- See, 317, 332, e.g., cised due care. Miller v. 368 Pa. 81 Hickey, (1951); Welsh, 392, 395, A.2d 917 Bender v. 344 Pa. 25 (1942). case, A.2d At the trial of this several defense witnesses testified that Mr. Quinby positioned his back table, in the center of the examination and a defense expert testified that Dr. Burmeister complied with standard of care in this placement, expect with no reason to be able to patient would move himself or to fall. See N.T. 4, 2003, circumstances, February at In again, these while I agree Mrs. was entitled to a res instruction ipsa associated, and the I permissible negligence, inference do not that the entirely believe matter should be removed from province jury as fact-finder. See Moure generally (1992) Raeuchle, 394, 402, 604 A.2d 529 Pa. that, judgment notwith- reviewing in a motion
(explaining light in the verdict, must be viewed the evidence standing winner, it the benefit of affording verdict most favorable testimony conflicts resolving doubt and every reasonable *26 favor). its view, dis-
Indeed, impliedly decision my majority’s in the defense of fact witnesses testimony counts the and/or of care. As to standard concerning applicable evidence former, leaving general approach I follow the would fact-finder; latter, as to the to the credibility assessments the standards to review under seems better suited evidence rejec- than testimony admissibility expert governing ipsa theory. tion under res reasons, entirely Superi- I reverse
For the above would notwithstanding the verdict entry judgment or Court’s liability for a new trial on of Mrs. and remand favor damages. and EAKIN, dissents.
Justice cannot direct present In where the plaintiff some cases of action for element of a cause every to establish may an ipsa loquitur support the doctrine of res negligence, See, part. e.g., on the defendant’s negligence inference of 245, 1140 (2003)(plurality); Pa. 824 A.2d Toogood Rogal, v. 573 465, 496 Pa. 437 Harrisburg Polyclinic Hospital, v. Jones Korvette, Inc., (1981); Pa. 457 327 A.2d 1134 Gilbert (1974). harm plaintiffs that the is may It be inferred A.2d 94 if the has plaintiff the defendant by negligence caused (1) the event does not showing: damaging presented evidence (2) responsible all other negligence; occur absent normally (3) eliminated; and the asserted sufficiently causes have been to the duty of the defendant’s scope negligence within (Second) 328D(1)(a)-(c); § of Torts Restatement plaintiff. See Gilbert, no direct evidence to 100-02. there is at “Where the circumstantial evidence injury, of the show cause defendant is the most negligence indicates applies.” the doctrine injury, for the plausible explanation Clothier, Inc., D’Ardenne v. & Strawbridge 712 A.2d (Pa.Super.1998) al., (citing PageW. Keeton et Prosser and (5th ed.1984)). Keeton on § the Law of Torts at Thus, the doctrine requirement relieves the plaintiff that a present direct evidence of each element of a cause of action for negligence those cases where it is negligence obvious has occurred, but cannot be directly proven.
Here, appellee presented direct evidence in support of the allegation that injuries her husband’s and death were caused by specific negligence acts of by appellants. Appellee assert- appellants ed breached their duty due care failing to place Quinby in a stable position on a table with rails or restraints, failing remain in the exam room with him. Majority Slip Op., at 4-5. In support of these allega- tions, appellee presented her deposition husband’s testimony that he was left on lying right table, side the exam along with evidence that the exam table lacked rails or re- straints and appellants failed to remain in the exam room *27 with him. Appellee also presented the expert testimony of Fenton, Dr. Bradley who testified appellants’ failure to “en- sure that [Quinby] was left safely and securely on the exami- nation table at all times” constituted a breach of the standard Id., of care. at 5-6. Appellee presented evidence to establish breach, the duty, causation, and damages elements of a negli- gence action; therefore, the evidence did not require that the jury infer any of these elements. As in any case of ordinary negligence, the evidence here required only that the jury weigh evidence, the make credibility assessments, and deter- mine whether appellants negligent. were I would hold the where, doctrine is here, unavailable as plaintiff the makes specific allegations of negligence presents direct evidence in support of thereof; each element granting the plaintiff an evidentiary in bypass such a case is in not accord with the doctrine’s intended goal. if
Even res ipsa loquitur here, was available appellee failed to satisfy the three requirements 328D(1).1 § set forth in 1. In Joseph 12, Lonsdale v. Company, Horne Pa.Super. 403 587 A.2d (1991) Insalaco’s, 815 (Pa.Su- and Neve v. 771 A.2d showing the dam- required present to evidence
Appellee was negli- not occurred in the absence of aging have event would the had to show fall would gence. differently, appellee Stated if had done due normally appellants not have occurred what Dr. had treated for 25 care Burmeister required. fall, Quinby’s familiar abilities years to this and was prior testimony the Appellants presented expert and limitations. Bender, their actions were consistent opined Dr. who Joseph since, of care under circum- with the standard applicable stances, reason expect Quinby had no would appellants in from falling result experience movement would R.R., at Dr. Bender testified that under the table. 892a. their ac- appellants, circumstances known—and knowable—to evidence, Id. In of this I light tions not unreasonable. were evidence appellee presented cannot sufficient show- agree negli- fall not have occurred absent some ing Quinby’s would appellants If there is did what due care gent act. evidence inference to the con- required, support is the an where trary? happen proper can even care and Misfortunes when exercised, totality of the circumstances skill are and under here, appellee I do met her burden of presented not believe credible, which, if found sufficiently estab- presenting but Quinby’s lished that fall not have occurred for some would negligence part appellants.
per.2001), Superior ipsa loquitur if Court concluded that even res 328D(1). satisfy theory, § plaintiff must also be able to available Lonsdale, presented by supra, more akin the facts at n. This case is defendant, plaintiffs against an action who wherein the filed plaintiffs injured where one of the due a defective owned a store The defendant’s court stated: faucet restroom. that, credible, presented at if found [T]here was no evidence trial *28 (e.g., parties and other store would eliminate third manufacturer Furthermore, patrons) possible of the accident. common as causes experience suggests explanations for a handle human some faucet use) (excessive, breaking improper and which do not inordinate totality negligence. of circumstances cannot be involve The these and, negligence ... as it the viewed to raise an inference of is still [plaintiff's responsibility advance some evidence to buttress her to reversing allegation, justification find the trial court's we no ruling____ Lonsdale, (citation omitted). at 816 meet her burden of failed to addition, I appellee In believe all other sufficiently eliminated which evidence presenting not appellants did Although of fall. Quinby’s causes potential negli- own other than their something that present evidence to fall, appellants require does not the law gence caused ipsa of res showing application a to avoid make such to Rather, appellee squarely upon fell burden loquitur. elimi- sufficiently causes responsible other were show that all any eliminating failed to evidence present nated. Appellee during room party Quinby’s a third entered that possibility Instead, the fall. evidence time in and caused question unguarded. left open room was the exam door showed R.R., at 768a.
Furthermore, present eliminating failed to evidence appellee spasm muscle experienced that a possibility Quinby table. Quinby’s caused him to fall from the seizure which spasms son that experienced leg father testified his were foot of the at strong out wheelchair enough “throw bed, edge if he on the it even would times. Or was controlling it if there edge throw off the the bed we weren’t Id., testified, father “it Quinby’s it.” at 177a. also wouldn’t way these tables which really [examination] matter on narrow have a fall off the laying, easily triggered he was he could Id., The evidence that addressed this only table.” at 179a. he per- statement that possibility appellee’s expert’s was was enough to throw sonally any spasm strong muscle unaware back, from examination table. person, lying their an Thus, sufficiently failed to eliminat- present appellee situated on the Quinby properly ing possibility table, his balance on the but shifted experienced spasm I appellee table caused his fall. Because believe failed other sufficiently eliminating responsible all present evidence causes, an I hold she not entitled to inference would negligence.3 possible, are noteworthy I believe the above scenarios It while occurences under the circum- I do not believe either were foreseeable such, appellants be I do not believe can said to have stances. As failing prevent duty such breached their care to events. unforeseeable
218
The is it is is no applicable doctrine where clear there other for the explanation injury negligence; short defendant’s here, possible explanations presented other were and were not party bearing doing the the so. by eliminated burden of As such, the trial court declined to instruct on properly the doctrine.
A in instructing jury, trial court has wide latitude a jury the should be given point whether instructed a law depends upon the facts and issues in the case. Ferrick v. Excavating Grading Senger Trucking & Company Compa- 181, 744, (1984). ny, 506 Pa. 484 A.2d 748 It is well estab- lished a court’s our examining charge, scope that trial is to determine the trial review whether court committed a clear discretion error of controlling abuse or law the v. Philadelphia Transporta- Williams outcome of the case. (1964) (citation tion 370, 665, Company, 415 Pa. 203 A.2d 667 omitted). An abuse of trial discretion exists the court when unreasonable, has rendered a is judgment manifestly law, arbitrary, capricious, has failed to or apply Coker bias, partiality, motivated or ill prejudice, will. Inc., Flickinger S.M. 1181, 533 Company, Pa. A.2d (citation omitted). (1993) 1184-85 A an finding by appellate court that it would a have reached different result than the result reached the trial does not court support finding abused its discretion. Morrison v. Com- that the court lower monwealth, Department Welfare, Public Mental Office of (Woodville Health State Hospital), 538 Pa. 646 A.2d (1994). “The inquiry strictly directed determining at whether the trial court’s stated reasons factual basis can Coker, be supported.” at 1187. evidence, I upon agree
Based cannot trial court an abuse of it committed discretion when failed to instruct jury on res ipsa loquitur. There was conflicting evidence on breach; whether actions constituted a as appellants’ this is a question of fact and it is a credibility, question jury. If the trial had the jury appellee court instructed entitled to an inference of negligence, the court would have deprived jury of its essential function in a case where consideration. jury’s requiring clearly questions there were law, and determined appropriate applied The trial court since ipsa loquitur a res charge did not warrant the evidence under necessary requirements failed to establish appellee 8/15/03, at 6-7. While 328D(1). See Opinion, Trial Court § *30 a different result reach majority and the Superior Court not court, opinion does trial a difference than that of the abused its discretion. the trial court finding warrant by the reasoning amply supported The trial court’s stated grounds record, present adequate not appellee and does it. overrule court did not commit I hold the trial
Accordingly, would on res ipsa jury to instruct failing error reversible holding Court’s loquitur, Superior and I reverse would regard. this joins dissenting opinion. this CASTILLE
Justice
907A.2d 1083 Fritz, Appellants, Darla FRITZ and Gordon Stuart, WRIGHT, Carolyn Temple, Bonnie Hazel Doing Individually Wright, Business Samuel Wright’s Properties, Appellees. Lane as Pennsylvania.
Supreme Court of April Argued 2006.
Decided Oct.