J-A19023-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PAMELA D. SHIFFLETT 

Appellant

v.

JOAN K. MENGEL

Appellee

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

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.*

MEMORANDUM BY KING, J.: FILED MARCH 20, 2023

Appellant, Pamela D. Shifflett, appeals from the judgment entered in 

the Lebanon County Court of Common Pleas, in favor of Appellee, Joan K. 

Mengel, following a jury trial. We affirm.

The trial court opinion set forth the relevant facts of this appeal as 

follows:

On September 26, 2016, a collision occurred between 

vehicles operated by [Appellant] and [Appellee]. As a result 

of that collision, [Appellant’s] vehicle was “spun around” 

with its front tires in the road and its rear tires in the grass

adjacent to the road. (N.T. Trial, 8/9/21, at 7). [Appellant] 

was not injured while she remained inside the vehicle. (Id.

at 36). [Appellant] was able to leave the vehicle and walk 

on her own. After walking on or toward the roadway, 

[Appellant] returned to her vehicle to get her phone in order 

to dial 911. (Id. at 9, 36). At some point after she called 

911, [Appellant] walked into a culvert and twisted her ankle. 

____________________________________________

* Former Justice specially assigned to the Superior Court.
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(Id.) 

On October 19, 2018, [Appellant] initiated a Civil Complaint 

against [Appellee]. At a pre-trial conference that occurred 

on July 13, 2021, [Appellee] acknowledged negligence, but 

not causation. In other words, [Appellee] acknowledged 

that the collision between her car and the one driven by 

[Appellant] was her fault. However, [Appellee] did not

acknowledge that the accident caused any harm to 

[Appellant].

Both [Appellant] and [Appellee] produced medical experts 

to provide testimony to the jury via videotaped deposition. 

[Appellee’s] expert, Dr. Daniel C. Farber, provided 

testimony about the seriousness of the injury claimed by 

[Appellant]. On cross-examination, [Appellant’s] counsel

endeavored to get Dr. Farber to testify that [Appellant]

suffered some injury as a result of [Appellee’s] negligence. 

Dr. Farber would not specifically provide such [testimony]. 

Rather, Dr. Farber acknowledged that [Appellant] suffered 

what he described as a “minor ankle sprain” “at the accident

scene.” Dr. Farber did not—nor could he—render an opinion 

about whether the negligence of [Appellee] was a cause of 

harm suffered by [Appellant].

At trial, there was significant discussion about the issue of 

causation. [Appellant] submitted a request for a directed 

verdict on the issue of causation. According to [Appellant’s] 

counsel, Dr. Farber’s testimony constituted a binding legal 

admission that [Appellant] should be entitled to at least 

some damages. (See Motion for Directed Verdict, 8/10/21; 

N.T. Trial, 8/9/21, at 43-46; N.T. Trial, 8/10/21, at 4). [The 

trial c]ourt consistently denied [Appellant’s] request for a 

directed verdict on the issue of causation. However, [it]

agreed with [Appellant] that if the jury found even a minor 

injury resulted from the accident, then the jury’s verdict 

could not be zero dollars. (N.T. Trial, 8/10/21, at 6). 

At trial, [the c]ourt provided both counsel with a complete 

copy of everything it planned to communicate to the jury 

during its Closing Instructions. (Id. at 4). [Appellant’s] 

counsel objected to the [c]ourt’s use of the phrase “a 

substantial factor[” in defining causation.] (Id. at 5). 

[Specifically, in response to the court’s question as to 
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whether there were any comments or objections, 

Appellant’s counsel stated “I just want to renew my 

objection with regards to the use of the old language, a 

substantial factor, for purposes of preserving that. Other 

than that, I have no problem.” (Id.)] ... [N]o other 

objection was proffered when the instructions were provided 

in advance to both counsel. [The trial c]ourt rejected 

[Appellant’s] counsel’s challenge to the words “a substantial 

factor.” ...

(Trial Court Opinion, 11/3/21, at 1-3).1 

On August 10, 2021, the jury returned a verdict in favor of Appellee. 

Although the jury found Appellee was negligent by agreement of the parties, 

it decided “[Appellee’s] negligence was not a factual cause of any harm to 

[Appellant.]” (Id. at 31). 

Appellant filed a motion for post-trial relief on August 17, 2021, 

requesting a new trial or entry of judgment notwithstanding the verdict

(“JNOV”). In her post-trial motion, Appellant first claimed the court erred in 

not entering a directed verdict as to causation. Second, Appellant asserted

that the court’s jury instruction erroneously included the language “substantial 

factor” and “caused by the accident.” (Post-Trial Motion, filed 8/17/21, at 4).

After receiving briefs from the parties, the court entered an order on 

____________________________________________

1 After the court issued its closing instructions to the jury, Appellant’s counsel 

requested “some form of clarification that when [the court] referenced 

accident, [it was] referring to negligence as well.... I am simply saying that 

the repetitive use of the word ‘accident’ could distract them from that reality.” 

(N.T. Trial, 8/10/21, at 28-29). The court responded: “I think we are talking 

semantics,” to which Appellant’s counsel then stated: “We can deal with it 

later if you don’t want to deal with it now.” (Id. at 29). Thereafter, the court 

did not provide any correction or clarification to its instructions. 
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November 3, 2021, denying post-trial relief. Appellant filed a praecipe to enter 

judgment, and judgment was entered on November 23, 2021. Appellant filed 

a notice of appeal,2 and on November 26, 2021, the court ordered her to file 

a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. 

Appellant timely complied. 

Appellant raises the following four issues for our review:

A. Whether the trial court erred by denying [Appellant’s]

motion for a directed verdict on question 2 (causation) when 

the trial court told the jury at the start of trial that [Appellee] 

conceded [Appellant] suffered injuries as a result of 

[Appellee’s] negligence?

B. Where [Appellee] conceded [Appellant] suffered some 

injuries as a result of [Appellee’s] negligence, whether the 

trial court erred by not granting [JNOV]?

C. Where both [Appellant] and [Appellee] requested the simple

and accurate “factual cause” instruction set forth in Pa. SSJI 

§ 13.20, whether the trial court erred by adding more than 

either party requested and including the words “substantial 

factor” to the jury instructions such that the jury heard 

confusing instructions as to causation[?]

D. Whether the trial court erred by instructing the jury that

[Appellant] must prove harm caused “by the accident” 

instead of harm caused “by [Appellee’s]

____________________________________________

2 Appellant purported to appeal from the trial court’s order denying her posttrial motion. An order denying post-trial motions is interlocutory and generally 

not appealable. See Levitt v. Patrick, 976 A.2d 581, 584 n.2 (Pa.Super. 

2009) (stating that appeal properly lies from entry of judgment, not from 

order denying post-trial motions). However, because judgment was entered 

on November 23, 2021, we consider the appeal as taken from the entry of 

judgment. See Johnston the Florist, Inc. v. TEDCO Const. Corp., 657 

A.2d 511, 514-15 (Pa.Super. 1995) (en banc) (stating that appellate courts 

may “regard as done that which ought to have been done”) (citations 

omitted). We have amended the caption accordingly.
J-A19023-22

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negligence/conduct” when [Appellant’s] ankle injury 

occurred moments after the accident because [Appellant] 

was forced to walk in a dangerous place due to where her 

vehicle was pushed by the accident?

(Appellant’s Brief at 4) (questions reordered for purposes of disposition).

In her first issue, Appellant argues the trial court erred when it denied 

her motion for a directed verdict. Appellant claims she was entitled to a 

directed verdict as to causation because Appellee’s expert conceded that 

Appellant suffered an ankle injury as a result of Appellee’s negligence. (Id.

at 13-19). Based on this concession, Appellant insists the court was required 

to enter a directed verdict on the issue of causation, relying on Mano v. 

Madden, 738 A.2d 493 (Pa.Super. 1999) (en banc), and Andrews v. 

Jackson, 800 A.2d 959 (Pa.Super. 2002), appeal denied, 572 Pa. 694, 813 

A.2d 835 (2002). We disagree.

Our standard and scope of review are as follows:

Our standard[s] of review when considering motions for a 

directed verdict and [JNOV] are identical. We will reverse a 

trial court’s grant or denial of a [JNOV] only when we find 

an abuse of discretion or an error of law that controlled the 

outcome of the case. Further, the standard of review for an 

appellate court is the same as that for a trial court.

There are two bases upon which a [JNOV] can be entered; 

one, the movant is entitled to judgment as a matter of law 

and/or two, the evidence is such that no two reasonable 

minds could disagree that the outcome should have been 

rendered in favor of the movant. With the first, the court 

reviews the record and concludes that, even with all factual 

inferences decided adverse to the movant, the law 

nonetheless requires a verdict in [her] favor. Whereas with 

the second, the court reviews the evidentiary record and 

concludes that the evidence was such that a verdict for the 
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movant was beyond peradventure.

Reott v. Asia Trend, Inc., 7 A.3d 830, 835 (Pa.Super. 2010), aff’d, 618 Pa. 

228, 55 A.3d 1088 (2012) (quoting Campisi v. Acme Markets, Inc., 915 

A.2d 117, 119 (Pa.Super. 2006)). 

“To prevail in a negligence action, the plaintiff must show that the 

defendant had a duty to conform to a certain standard of conduct, that the 

defendant breached that duty, that such breach caused the injury in question, 

and actual loss or damage.” Barton v. Lowe’s Home Centers, Inc., 124 

A.3d 349, 359 (Pa.Super. 2015) (citation omitted). 

[T]he determination of whether the defendant’s conduct 

was a substantial cause of the injuries complained of should 

not be taken from the jury if the jury may reasonably differ 

as to whether the conduct of the defendant has been a 

substantial factor in causing the harm. See also

Restatement (Second) of Torts § 434. If issues are raised 

on which a jury may not reasonably differ, it is proper for 

the trial court to decide them. If, on the other hand, a 

jury may reasonably differ on whether the 

defendant’s conduct was a substantial factor in 

causing the injury, generally, the case must go to the 

jury on those issues.

Straw v. Fair, 187 A.3d 966, 993 (Pa.Super. 2018) (emphasis added), appeal 

denied, 651 Pa. 27, 202 A.3d 49 (2019) (quoting Vattimo v. Lower Bucks 

Hosp., Inc., 502 Pa. 241, 247, 465 A.2d 1231, 1233-34 (1983) (plurality)).

In Mano, surpa, this Court held that it was “impermissible for a jury...to 

disregard the uncontroverted testimony from experts from both parties that 

the plaintiff suffered some injury as a result of the accident in question.” 

Mano, supra at 497. Similarly, in Andrews, supra, this Court held that 
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“[w]here there is no dispute that the defendant is negligent and both parties’ 

medical experts agree the accident caused some injury to the plaintiff, the 

jury may not find the defendant’s negligence was not a substantial factor in 

bringing about at least some of plaintiff’s injuries.” Andrews, supra at 962 

(emphasis omitted). 

Instantly, the trial court explained:

[The court] listened to the entirety of Dr. Farber’s[, the 

defense expert’s,] videotaped testimony in [c]ourt. 

Nowhere did Dr. Farber link the motor vehicle accident that 

[Appellee] admitted causing to the ankle injury suffered by 

[Appellant.] Dr. Farber acknowledged that the ankle injury 

occurred “at the accident scene,” but he carefully avoided 

the semantic trap that [Appellant’s] counsel attempted to 

set. Based upon the totality of Dr. Farber’s testimony, we 

cannot agree with [Appellant’s] assertion that Dr. Farber’s 

testimony required us to remove the issue of causation from 

the jury’s hands.

(Trial Court Opinion at 5). The trial court further stated:

To be sure, [Appellee] acknowledged that her negligence 

caused her vehicle to collide with the one operated by 

[Appellant]. However, at no time did [Appellee] concede 

the issue of causation. To argue that [the trial court] should 

have taken the issue of causation from the jury based upon 

obtuse language from a medical expert who was dealing 

primarily with the seriousness of [Appellant’s] injury would 

have been profoundly unfair. Causation in this case was 

very much a jury issue. 

(Id. at 7). 

Upon review, we conclude that Appellant’s reliance on Andrews, supra

and Mano, supra is misplaced. Whereas in those cases, experts for both 

parties agreed that there was injury caused by the accident, there was no 
J-A19023-22

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such agreement between the parties’ experts in the case before us. Thus, the 

cases on which Appellant relies are distinguishable, and the court properly 

submitted the issue of causation to the jury. See Straw, supra. Appellant’s

first issue affords her no relief.

In her second issue, Appellant again insists that Appellee’s expert 

conceded that Appellant’s sprained ankle was caused by Appellee’s 

negligence. Based on this assertion, Appellant contends the jury was not 

permitted to render a verdict in favor of Appellee on the issue of causation. 

Alternatively, Appellant claims that the evidence established she suffered 

some “neck, shoulder, and abdomen injuries” in the car crash. Appellant 

concludes the jury’s verdict was flawed and against the weight of the evidence, 

and the trial court should have granted her motion for JNOV or granted a new 

trial. (Appellant’s Brief at 30-31). We disagree.

Regarding a motion for JNOV:

The trial court may award a [JNOV] or a new trial only when 

the jury’s verdict is so contrary to the evidence as to shock 

one’s sense of justice. In determining whether this standard 

has been met, appellate review is limited to whether the trial 

judge’s discretion was properly exercised, and relief will only 

be granted where the facts and inferences of record disclose 

a palpable abuse of discretion. When a fact finder’s verdict 

is so opposed to the demonstrative facts that looking at the 

verdict, the mind stands baffled, the intellect searches in 

vain for cause and effect, and reason rebels against the 

bizarre and erratic conclusion, it can be said that the verdict 

is shocking.

Haan v. Wells, 103 A.3d 60, 70 (Pa.Super. 2014) (citations and internal 

quotation marks omitted).
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Here, Appellant testified that she suffered pain in her right ankle about 

a week after the accident. (N.T. Trial, 8/9/21, at 12-13). Appellant also 

introduced into evidence videotaped deposition testimony from her expert, Dr. 

Paul J. Juliano, who treated her for an ankle injury.3 Dr. Juliano opined that 

Appellant’s ankle injuries were caused by the accident. (Juliano Dep. at 9). 

Appellee introduced into evidence videotaped deposition testimony from 

her expert, Dr. Farber. Dr. Farber testified that after “reviewing [Appellant’s] 

records and her exam and her story, it appeared that she had some minor 

ankle strain at the accident scene.” (Farber Dep. at 21). On crossexamination the following exchange occurred:

Q. Now, you indicated that you believed [Appellant] suffered 

a minor ankle sprain in her right ankle as a result of the 

defendant’s negligence; is that correct?

A. Well, at the accident scene she had that injury. I can’t 

tell you where it comes from, but...

Q. Well, [Appellant]–

____________________________________________

3 We note that it is Appellant’s responsibility to supply a complete record for 

our review. See Pa.R.A.P. 1911(a). The certified record in this matter 

contains only a limited excerpt of the trial transcript related to causation. 

Appellant did not ensure that the certified record contained the full trial 

transcript. Nor did she supply this Court with the official transcripts of 

deposition testimony. Cade v. McDanel, 679 A.2d 1266, 1268-69 (Pa.Super. 

1996) (stating appellant has duty to supply this Court with official transcripts 

of deposition testimony; failure to confirm that original certified record for 

appeal contains sufficient information to conduct proper review constitutes 

waiver of issues sought to be examined). Although we could deem Appellant’s 

issues waived on this ground, Appellant included complete copies of the 

experts’ depositions in her reproduced record (the veracity of which Appellee 

does not dispute) upon which we can conduct our review. See id.
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A. –the car and turning her ankle so that’s–

Q. Understand.

A. I’m not a lawyer to tell you that—the—who’s responsible 

for it.

* * *

A. I certainly won’t dispute those details. But if you ask me 

to describe who’s responsible for the injury, that’s not—I

don’t look at that as my job. My job is to look at her injury 

and—and tell you what I think, you know, happened and 

what the treatment was, whether the treatment was 

appropriate, that sort of thing. That’s all I can—

Q. Well, you did — you did opine that she suffered a minor 

ankle sprain?

A. Correct.

Q. Right. And we can agree that she suffered an ankle injury 

when she stepped out of the vehicle on the grass after being 

pushed into the grass by the defendant’s vehicle? Can we 

agree on that?

A. Again, I don’t know—I can’t speak to the—I have not 

studied nor remember the details of her accident. But as 

she described to me getting out of the car and turning her 

ankle when she stepped into the ditch, that would appear to 

be the time which she suffered her injury from her

description.

Q. Okay. And do you have any information that would 

suggest that she suffered this ankle sprain that you say she 

suffered at any time other than when she’s been pushed into 

the grass alongside the road at nighttime?

A. No.

Q. So we can agree that the reason she has a sprained ankle 

is because she’s in the dark, on the grass, getting out of a 

vehicle that’s been pushed off the roadway?
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A. We can—we can agree that she stepped out of the car 

and turned her ankle and suffered an injury.

Q. Okay. And that she didn’t voluntarily walk into that 

grassy area at nighttime?

A. No. But, again, that’s not—that’s not my area of 

expertise to look at the forensics of the accident—it’s the—

* * *

Q. ...My question. Doctor, was really this: That when you 

did the—when you did the defense medical exam, you knew 

that the parties would be looking at your report to see what 

you said about what injuries were suffered as a result of 

[Appellee’s] negligence; is that fair?

A. Sure, yes.

Q. And that what you found was that—was that she did, in 

fact, suffer an injury. You just characterize it as a minor 

sprain; is that fair?

A. True.

* * *

Q. You wrote a report that indicated that [Appellant] did, in 

fact, suffer an injury as a result of being pushed into the 

grass. And you are here to tell the jury that she did, in fact, 

suffer an injury as a result of that incident; is that fair?

A. I mean, I’m here to present the report of my questioning 

and exam and review of the records.

Q. Correct. And your—your report indicated that she did, in 

fact, suffer a sprain to her right ankle as a result of being 

pushed off the road into the grass—

A. Correct.

Q. Correct? So we can agree on that?

A. Okay.
J-A19023-22

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(Id. at 31-34, 51-53).

The trial court found that Appellee’s expert did not concede that the 

accident was the cause of Appellant’s ankle injury. Our review of the prior 

exchange leads us to agree. While Dr. Farber conceded that Appellant 

suffered an ankle injury at the accident scene and following the accident, 

he did not concede that the accident caused Appellant’s injury. Therefore, 

the question of causation was properly left to the jury, and Appellant was not 

entitled to JNOV. Further, viewing the evidence in the light most favorable to 

Appellee, as verdict winner, Appellant has not established that the “evidence 

was such that a verdict [in her favor] was beyond peradventure.” Reott, 

supra at 835. Therefore, Appellant’s second issue merits no relief.

4

 Reott, 

supra; Haan, supra.

Appellant’s third and fourth issues are related, and we address them 

together. Appellant argues that the court erroneously instructed the jury that 

it must find Appellee’s conduct was a “substantial factor” in bringing about

Appellant’s injury to render a verdict in favor of Appellant. Appellant 

emphasizes that both parties proposed the court use the same instruction 

____________________________________________

4 Regarding Appellant’s alternative argument that she suffered some “neck, 

shoulder, and abdomen injuries” in the car crash, our review of the certified 

record does not reveal any testimony or evidence to support this claim, other 

than Appellant briefly describing some “upper torso” pain that she suffered 

the day after the accident. (N.T. Trial, 8/9/21, at 10-11). Accordingly, this 

alternative argument does not afford Appellant any relief.
J-A19023-22

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regarding causation, the Pennsylvania Suggested Standard Jury Instruction

(SSJI) § 13.20 (Factual Cause). Appellant contends that this instruction 

replaced the previously used terms “substantial factor” and “legal cause.”

(Appellant’s Brief at 22). Appellant concludes the trial court erred and abused 

its discretion when it gave its own instruction, rather than the SSJI instruction, 

ultimately confusing the jury and warranting a new trial.

5 We disagree. 

Our standard of review when considering the adequacy of jury 

instructions in a civil case is to determine whether the trial court committed a 

clear abuse of discretion or error of law controlling the outcome of the case. 

Pringle v. Rapaport, 980 A.2d 159, 165 (Pa.Super. 2009) (citation omitted). 

“It is only when the charge as a whole is inadequate or not 

clear or has a tendency to mislead or confuse[,] rather than 

clarify a material issue[,] that error in a charge will be found 

to be a sufficient basis for the award of a new trial.” Id. 

(quotation and citation omitted); Commonwealth v. 

Chambers, 602 Pa. 224, 980 A.2d 35, 49-50 (2009) (“[a] 

charge will be found adequate unless the issues are not 

made clear, the jury was misled by the instructions, or there 

was an omission from the charge amounting to a 

fundamental error”). Further:

____________________________________________

5 Appellant claims the trial court further confused the jury during its 

instructions by stating that Appellant’s injuries must have been caused “by 

the accident” rather than using the phrase “by the defendant’s negligence.” 

(Appellant’s Brief at 27). Nevertheless, Appellant has failed to develop this 

argument adequately on appeal. (Id. at 27-28). Consequently, we deem this 

particular claim waived. See Coulter v. Ramsden, 94 A.3d 1080 (Pa.Super. 

2014), appeal denied, 631 Pa. 719, 110 A.3d 998 (2014) (explaining 

arguments that are not appropriately developed on appeal are waived; 

arguments not appropriately developed include those where party has failed 

to cite any authority in support of contention). Because Appellant waived this 

argument by failing to develop it in her brief, we need not consider whether 

she properly preserved this challenge before the trial court. 
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[i]n reviewing a trial judge’s charge, the proper test is 

not whether certain portions taken out of context 

appear erroneous. We look to the charge in its 

entirety, against the background of the evidence in 

the particular case, to determine whether or not error 

was committed and whether that error was prejudicial 

to the complaining party.

Reilly by Reilly v. S.E. Pa. Transp. Auth., 507 Pa. 204,

[231,] 489 A.2d 1291, 1305 (1985).

Salsgiver Commc’ns, Inc. v. Consol. Commc’ns Holdings, Inc., 150 A.3d 

957, 962-63 (Pa.Super. 2016).

Jury instructions must contain correct definitions of legal terms. 

Gorman v. Costello, 929 A.2d 1208, 1213 (Pa.Super. 2007) (citation 

omitted). Although “the SSJI are not binding on trial courts, the SSJI are 

nonetheless instructive.” Id. Nevertheless, our Supreme Court “has never 

adopted the Pennsylvania Suggested Standard Jury Instructions, which exist 

only as a reference material available to assist the trial judge and trial counsel 

in preparing a proper charge.” Jeter v. Owens-Corning Fiberglas Corp., 

716 A.2d 633, 636 (Pa.Super. 1998) (internal citation omitted). Thus, a trial 

judge has wide latitude in his choice of language when charging a jury, 

provided that the court fully and adequately conveys the applicable law. 

Hatwood v. Hospital of the University of Pennsylvania, 55 A.3d 1229, 

1235 (Pa.Super. 2012), appeal denied, 619 Pa. 723, 65 A.3d 414 (2013).

In Gorman, supra, this Court considered a court’s instruction to the 

jury concerning causation in a negligence case. Similar to the case here, the 
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appellant was injured after her vehicle was struck by the appellee’s vehicle. 

At trial, the court instructed the jury by reading a portion of the Pennsylvania 

Suggested Standard Civil Jury Instructions. The jury later returned a verdict 

finding that the appellee was negligent, but the negligence was not a factual 

cause of the appellant’s injuries.

On appeal, the appellant argued the court erred by reading only a 

portion of the suggested instruction on factual causation. This Court agreed, 

stating the trial court had failed to provide a complete definition of factual 

cause, such that the jury lacked “an essential tool needed to make an informed 

decision based on correct and complete legal principles relevant to its verdict 

on the issue of damages.” Id. at 1213 (internal citations omitted).

Instantly, the SSJI 13.20 regarding Factual Cause that the parties asked 

the court to read states:

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.
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Pa.SSJI (Civ) § 13.20. 

During its instructions, the court charged the jury as follows:

There are two general issues that you will have to address: 

Causation and damages. Let me describe those to you in 

more detail. As I indicated to you at the outset, the first 

issue you will have to decide is whether [Appellee’s] conduct 

was a factual cause of harm to [Appellant].

This is, again, a different concept than the question of who 

caused the accident. [Appellee] admits that she caused the 

accident. However, the question is whether the accident 

caused some, all or part or none of [Appellant’s] harm. That 

is the question that you must answer.

[Appellant] must prove by a preponderance of the evidence 

that [Appellee’s] conduct was a factual cause of her harm. 

To be a factual cause an event must have been a substantial 

factor in bringing about the harm. Notice, that I have been 

very careful to use the word “a” instead of the word “[the]”. 

There can be more than one cause of a plaintiff’s harm.

The concept of factual cause does not mean that an accident 

has to be the only cause, a primary cause, or even the most 

important factor in causing an injury. However, in order for 

a plaintiff to recover, the accident must be a substantial 

factor in bringing about harm to the plaintiff.

A substantial factor is defined as an actual factor, a real 

factor. It is not imaginary. It is not one having only an 

insignificant connection to the accident. An accident may 

be found to be a factual cause so long as it contributes to a 

plaintiff’s harm in any way that you find to be substantial.

Now, as you assess damages you will be required to decide 

what damages actually resulted from the accident as 

opposed to some other factor. It is at that point that you 

will assess the degree to which [Appellant] suffered harm 

only as a result of the accident. To reiterate, at this point 

as you are answering the question regarding causation you 

must only decide whether this accident was a factual cause, 

a substantial factor in bringing about some harm to 

[Appellant.]
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It is not necessary at this point for you to conduct a 

qualitative analysis of all of the different things that may 

have come into play to create harm to [Appellant.] That 

analysis will occur when you assess damages.

Let me summarize with respect to causation: Number one, 

in order to recover a plaintiff must prove by a 

preponderance of evidence that the accident was a factual 

cause of the harm of which [Appellant] now complains.

Two, an accident will be deemed a factual cause if it is a 

substantial factor in bringing about [Appellant’s] harm.

Three, the accident can be a substantial factor even if other 

factors also contributed to [Appellant’s] harm. With respect 

to causation you do not need to engage in a qualitative 

analysis of how all of the many factors related to the 

accident and not related to the accident may have combined 

to create a plaintiff’s condition.

You only need to decide if the accident was a substantial 

factor in bringing about any harm. ...

(N.T. Trial, 8/10/21, at 11-14).

Here, Appellant takes issue with the court’s use of the words “substantial 

factor” in defining causation, as SSJI 13.20 does not use that verbiage. 

Nevertheless, the court fully defined the principle of causation using language 

that has been widely used in Pennsylvania. See, e.g., Straw, supra at 993 

(defining causation as established when “conduct was a substantial factor in 

bringing about the harm inflicted upon a plaintiff”). See also Rost v. Ford 

Motor Co., 637 Pa. 625, 654, 151 A.3d 1032, 1049 (2016) (“To establish 

proximate causation, a plaintiff must adduce evidence to show that the 

defendant’s act was a substantial factor in bringing about the plaintiff’s 
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harm”). Although the court’s language did not mirror that set forth in SSJI §

13.20, the suggested standard jury instructions are not mandatory.

6

 See 

Jeter, supra. Further, this case is distinguishable from the fundamental error 

at issue in Gorman because it does not involve a situation where the court 

provided an incomplete definition for a relevant legal principle. Thus, the trial 

court did not err in denying Appellant’s request for a new trial, and Appellant’s 

final two issues merit no relief. Accordingly, we affirm.

Judgment affirmed.

____________________________________________

6 The Subcommittee Note for SSJI 13.20 explains that “[c]onfusion has been 

generated, compounded, and perpetuated by various attempts to make clear 

to the jury the ramifications of the distinction between a factual cause of an 

accident and a legal cause of an accident.” Pa.SSJI (Civ) § 13.20, 

Subcommittee Note. The Note goes on to state that the term “substantial” 

means only “significant” and does not require any particular quantification. 

Id. Because “proximate cause” is “a term that attempts to give substance to 

the distinction between factual cause and legal cause but means nothing to 

an ordinary juror,” that term has been omitted from the SSJI, as well as 

language such as “substantial factor.” Id. Thus, “the subcommittee 

recommends that the emphasis be on cause and that the definition of 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. Accordingly, “[i]t is the committee’s belief that the 

substitution of ‘factual cause’ for ‘substantial factor’ and ‘legal cause’ would 

not change an essential element in the burden of proof charge or create a 

prejudice to any party.” Id. 

We reiterate that the SSJI are not mandatory, but as the name makes clear, 

suggested jury instructions. See Jeter, supra. Thus, the fact that the SSJI 

omits the words “substantial factor” does not mean that inclusion of those 

words is necessarily erroneous. Our review of the jury instruction in its 

entirety makes clear that the court accurately recited the law pertaining to 

causation such that a new trial is not warranted under these circumstances. 

See Pringle, supra.
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President Judge Emeritus Stevens joins this memorandum.

Judge Bowes files a dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 03/20/2023