J-A07012-17

J-A07013-17

2018 PA Super 125

JENNIFER M. STRAW AND THOMAS P. 

STRAW, INDIVIDUALLY AND AS COADMINISTRATORS OF THE ESTATE OF 

ELIJAH C. STRAW, DECEASED; AND 

ROWAN J. STRAW, A MINOR, BY AND 

THROUGH HIS PARENTS AND NATURAL 

GUARDIANS, JENNIFER M. STRAW AND 

THOMAS P. STRAW

IN THE SUPERIOR COURT OF

PENNSYLVANIA

 v.

KIRK A. FAIR AND GOLON MASONRY 

RESTORATION, INC.

 v.

PITTSBURGH LUBES, INC. D/B/A JIFFY 

LUBE, TOWER AUTO SALES & SERVICE, 

NATIONAL AUTOMOTIVE PARTS 

ASSOCIATION-NAPA AUTO PARTS 

T/D/B/A/ NAPA

 v.

THOMAS P. STRAW

APPEAL OF: GOLON MASONRY 

RESTORATION, INC.

No. 742 WDA 2016

Appeal from the Judgment Entered April 28, 2016

In the Court of Common Pleas of Allegheny County

Civil Division at No(s): G.D. NO. 2013-003294

JENNIFER M. STRAW AND THOMAS P. 

STRAW, INDIVIDUALLY AND AS COADMINISTRATORS OF THE ESTATE OF 

ELIJAH C. STRAW, DECEASED; AND 

ROWAN J. STRAW, A MINOR, BY AND 

THROUGH HIS PARENTS AND NATURAL 

IN THE SUPERIOR COURT OF

PENNSYLVANIA
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GUARDIANS, JENNIFER M. STRAW AND 

THOMAS P. STRAW

 v.

KIRK A. FAIR AND GOLON MASONRY 

RESTORATION, INC.

 v.

PITTSBURGH LUBES, INC. D/B/A JIFFY 

LUBE, TOWER AUTO SALES & SERVICE, 

NATIONAL AUTOMOTIVE PARTS 

ASSOCIATION-NAPA AUTO PARTS 

T/D/B/A/ NAPA

 v.

THOMAS P. STRAW

APPEAL OF: KIRK A. FAIR

No. 743 WDA 2016

Appeal from the Judgment Entered April 28, 2016

In the Court of Common Pleas of Allegheny County

Civil Division at No(s): G.D. NO. 13-003294

BEFORE: OLSON, STABILE and STRASSBURGER,* JJ.

OPINION BY OLSON, J.: FILED MAY 11, 2018

Appellants, Kirk A. Fair and Golon Masonry Restoration, Inc. 

(hereinafter “Golon Masonry”), appeal from the judgment entered on April 

28, 2016, in favor of Jennifer M. Straw and Thomas P. Straw, individually 

and as co-administrators of the Estate of Elijah C. Straw, a deceased minor, 

and Rowan J. Straw, a minor, by and through his parents and natural 

____________________

* Retired Senior Judge assigned to the Superior Court.
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guardians, Jennifer M. Straw and Thomas P. Straw (hereinafter, collectively, 

“Plaintiffs”), and against Appellants, in the amount of $35,114,122.78. After 

careful review of this tragic case, we are constrained to vacate the judgment 

and remand.

I. Facts and Procedural History

On February 21, 2013, Plaintiffs filed a complaint against Appellants. 

The complaint sounded in negligence and, within the complaint, Plaintiffs 

averred the following. 

At approximately 7:30 p.m. on May 1, 2012, Thomas Straw was 

driving his Pontiac Vibe automobile north on State Route 28 (hereinafter 

“Route 28”), in Allegheny County, Pennsylvania, near the RIDC Drive exit. 

Plaintiffs’ Complaint, 2/21/13, at ¶ 9. Jennifer Straw (Mr. Straw’s wife) and 

the Straws’ two young sons, Elijah and Rowan, were passengers in the car. 

Id. at ¶ 16. As the Straws were driving down the highway, their “vehicle 

experienced a mechanical malfunction that caused Thomas Straw to reduce 

his speed and . . . bring the vehicle to a controlled stop” in the middle lane 

of the highway; Mr. Straw then turned on his hazard flashers. Id. at ¶¶ 11 

and 14.

At around the same time, Kirk Fair was driving behind the Straws, in a 

2010 Ford F-250 truck that his employer, Golon Masonry, provided him to 

use in his job. Id. at ¶¶ 6-7 and 10. Plaintiffs averred:

At the time Thomas Straw was bringing his vehicle to a 

controlled stop, [Mr.] Fair . . . observed folders and binders 

that had been sitting on the front seat of the Ford truck 
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slide onto the floor of the truck. Upon observing the 

aforementioned items slide to the floor, [Mr.] Fair reached 

for the items and “straightened” them up. As [Mr.] Fair was 

“straightening” the items, he was looking down at the floor 

of the vehicle, not at the highway in front of him. After 

“straightening” the items, [Mr.] Fair looked up and observed

the Straw vehicle stopped in front of him with its hazard 

flashers blinking. 

Id. at ¶¶ 12-13.

Mr. Fair did not stop his truck in time and he crashed into the Straws’ 

stationary vehicle while traveling at a speed in excess of 60 miles per hour. 

Id. at ¶¶ 14-15. The collision caused serious injuries to Thomas, Jennifer, 

and Rowan Straw; horribly, the Straws’ six-year-old son, Elijah, died from 

the injuries he received in the accident.1 Id. at ¶¶ 16-19.

Plaintiffs’ ten-count complaint sought compensatory and punitive 

damages against Appellants. As Plaintiffs claimed: at the time of the 

accident, Mr. Fair was recklessly driving under the influence of narcotics; 

even if Mr. Fair were not under the influence of narcotics, Mr. Fair’s conduct 

was negligent and reckless; Golon Masonry was vicariously liable for Mr. 

Fair’s conduct; and, Golon Masonry was independently negligent for 

improperly hiring, training, and supervising Mr. Fair. Id. at ¶¶ 30-86.

____________________________________________

1 As will be explained below, Mr. Fair later pleaded guilty to multiple crimes 

arising out of the May 1, 2012 accident. On February 18, 2014, the trial 

court sentenced Mr. Fair to serve an aggregate term of six to 23 months in 

jail, followed by ten years of probation, for his convictions. N.T. Guilty Plea 

and Sentencing Hearing, 2/18/14, at 1-14.
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On May 22, 2013, Appellants filed an answer, new matter, and 

cross-claim. Amongst other things: the answer admitted that, “at the time 

of the [] accident[, Mr. Fair] was an employee of [Golon Masonry], and Mr. 

Fair was acting in the course and scope of his employment;” the new matter 

alleged that Thomas Straw was comparatively negligent for his injuries; and, 

the cross-claim, which Appellants asserted against Thomas Straw, alleged 

that Mr. Straw was negligent in causing the accident and was, therefore, 

directly liable to Jennifer Straw, Rowan Straw, and the Estate of Elijah 

Straw, or liable over to Appellants for contribution or indemnity. Appellants’ 

Answer, New Matter, and Cross-Claim, 5/22/13, at ¶¶ 6 and 88 and CrossClaim ¶¶ 1-4. Specifically, Appellants alleged in the cross-claim that Mr. 

Straw stopped his vehicle on Route 28 because the hood of his vehicle 

popped open while he was driving, thus obstructing his vision. Further, 

Appellants alleged, the hood opened because the hood latch failed. 

According to Appellants, Mr. Straw was negligent because he knew that “the 

hood and/or latching mechanism on the vehicle was not in good operating 

condition” and, yet, “continu[ed] to travel and/or remain on the highway [] 

when it was hazardous and unsafe to do so.” Id. at Cross-Claim ¶ 2. In 

addition, Appellants claimed, Mr. Straw was negligent in failing to remove 

his vehicle from the highway and in “allow[ing the vehicle] to remain in the 

lane of travel when it was unsafe and hazardous to do so.” Id.

Appellants also filed complaints to join three additional defendants: 

Pittsburgh Lubes, Inc. d/b/a Jiffy Lube (hereinafter “Jiffy Lube”); Tower Auto 
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Sales and Service (hereinafter “Tower Auto”); and, National Automotive 

Parts Association – NAPA Auto Parts (hereinafter “NAPA Auto Parts”)2

(hereinafter, collectively, “Additional Defendants”). Within their complaints 

to join, Appellants repeated their allegation that, immediately before the 

accident, the hood latch failed on the Straws’ vehicle. Appellants claimed 

that, when the hood latch failed, the vehicle’s hood flew open and obstructed 

Mr. Straw’s vision of the road, thus “result[ing] in him bringing his vehicle to 

a complete stop in the middle of Route 28,” which caused the accident. 

According to the complaints to join, the Additional Defendants negligently 

performed work on the hood latch of the Straws’ vehicle or analyzed the 

vehicle and assured the Straws that the hood latch was safe; therefore, 

Appellants claimed that the Additional Defendants were all directly liable to 

the Plaintiffs or liable over to Appellants for contribution and indemnity. See

Complaint to Join Additional Defendant Jiffy Lube, 6/26/13, at 1-7; 

Complaint to Join Additional Defendants Tower Auto and NAPA Auto Parts, 

9/11/13, at 1-10. 

____________________________________________

2 Appellants incorrectly identified Fayette Parts Services, Inc. as “NAPA Auto 

Parts” and, on January 22, 2014, the parties stipulated that the name NAPA 

Auto Parts “shall be removed from the caption of the lawsuit in lieu of the 

correct Additional Defendant Fayette Parts Services, Inc.” Stipulation, 

1/22/14, at 1. Nevertheless, the caption still employs the name “NAPA Auto 

Parts” to refer to “Fayette Parts Services, Inc.”; therefore, this Court will 

refer to the party as “NAPA Auto Parts.”
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At the close of discovery, the Additional Defendants and Plaintiffs filed 

motions for summary judgment. We summarize these motions below.

I.A. Tower Auto’s Motion for Summary Judgment

According to Tower Auto’s summary judgment motion, on September 

27, 2011, Thomas Straw took his Pontiac Vibe automobile to Tower Auto for 

its required annual state inspection. Tower Auto’s Brief in Support of Motion 

for Summary Judgment, 8/10/15, at 6. “In the course of the state 

inspection, Tower’s owner, [John] Fanto, noticed after he pulled the handle 

inside the vehicle to release the hood latch that the primary hood latch had 

not sprung back into place. . . . The secondary latch, which catches the 

hood when the primary latch is released, functioned properly at all times 

during the inspection, and did not require any service.” Id. at 6-7. 

According to Tower Auto, “[Mr. Fanto] serviced the primary hood latch by 

spraying it with a lubricant, which flushed the debris from the latch, and 

mov[ed] it back and forth with a screwdriver, so that the primary latch 

functioned normally and moved freely again.” Id. at 7. Mr. Fanto then 

closed the hood completely, issued Mr. Straw a certificate of inspection, and 

the Straws did not bring the vehicle back to Tower Auto at any point after 

the September 2011 state inspection. Id. at 7-9. 

Tower Auto claimed that it was entitled to summary judgment 

because “there was no evidence that [it] breached any duty owed to the 

Plaintiffs” and, relatedly, because, under the Pennsylvania Motor Vehicle 

Code, it was entitled to “limited immunity from suit [for work done during] 
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the required state inspection.” Id. at 11-13; Tower Auto’s Motion for 

Summary Judgment, 8/10/15, at ¶ 2; see also 75 Pa.C.S.A. § 4702.1.

I.B. Jiffy Lube’s Motion for Summary Judgment

Jiffy Lube’s summary judgment motion declared:

In January 2012, [] Thomas Straw brought Plaintiffs’ car to 

Jiffy Lube for an oil change. Approximately one week after 

the January 2012 oil change, Plaintiffs began noticing that 

the hood latch was not closing completely. Plaintiffs allege 

that shortly thereafter, still in January of 2012, they went 

back to the same Jiffy Lube location and advised an 

employee of the hood not closing properly. Plaintiff[s] 

further allege that an employee of Jiffy Lube, free of charge, 

performed some sort of work on the hood and got it to close 

properly. Subsequent to the alleged second visit to Jiffy 

Lube in January [] 2012, Plaintiffs drove their car to Ohio on 

a family trip and experienced no problem with the hood. 

On March 16, 2012, Plaintiffs took their car to Additional 

Defendant, NAPA Auto Parts. . . . While at NAPA [Auto 

Parts,] Plaintiffs allege that they had the hood latch 

inspected once again and asked if it should be fixed or was 

safe to drive since they had an inspection upcoming and 

they intended to take another family trip to Ohio. Plaintiffs 

state that they were advised by NAPA [Auto Parts] that the 

hood latch was working properly and was safe to drive. 

Plaintiffs traveled to Ohio after the March 2012 visit to NAPA 

[Auto Parts] and drove hundreds of miles with no problems 

with the hood or hood latch until the accident on May 1, 

2012.

Jiffy Lube’s Motion for Summary Judgment, 6/29/15, at ¶¶ 12-18 (internal 

paragraphing omitted).

Jiffy Lube claimed that, under these facts: it owed no duty of care to

the Plaintiffs because it is not “in the business of fixing hoods or hood 

latches of cars, particularly free of charge;” even if it owed Plaintiffs a duty 
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of care, its negligence was not the proximate cause of the accident or 

resulting injuries; Mr. Fair’s criminal conduct constituted a superseding 

cause of Plaintiffs’ injuries, thus relieving Jiffy Lube of liability; the Straws’ 

“continued operation of the vehicle long after it was last at Jiffy Lube and 

with actual knowledge that the hood was still not closing properly” 

constituted a superseding cause of Plaintiffs’ injuries, thus relieving Jiffy 

Lube of liability; “[t]he examination of the hood latch at NAPA [Auto Parts], 

two months after it was last seen at Jiffy Lube, and the NAPA [Auto Parts’] 

manager’s assurances that it was ‘absolutely’ safe to drive in its condition” 

constituted a superseding cause of Plaintiffs’ injuries, thus relieving Jiffy 

Lube of liability; Appellants “have no right of contribution and/or 

indemnification [] since Jiffy Lube and [Appellants] are not joint tortfeasors;” 

and, Appellants “are not entitled to contribution and/or indemnity from Jiffy 

Lube” because Appellants’ “conduct was reckless while, at best, Jiffy Lube’s 

conduct is alleged to be negligent.” Id. at ¶¶ 20-24; Jiffy Lube’s Brief in 

Support of Motion for Summary Judgment, 6/29/15, at 4-13.

I.C. NAPA Auto Parts’ Motion for Summary Judgment

Within NAPA Auto Parts’ motion for summary judgment, NAPA Auto 

Parts claimed that it “is not an automotive repair facility and does not 

perform repairs on automobiles for the public.” NAPA Auto Parts’ Motion for 

Summary Judgment, 6/26/15, at ¶ 8. According to NAPA Auto Parts, 

Appellants’ cross-claim against it is based upon the allegation that, on March 

16, 2012, Thomas Straw visited a particular NAPA Auto Parts store and 
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purchased a tail light bulb for his car. NAPA Auto Parts claimed that, during 

his visit, Mr. Straw “asked the cashier whether he would mind looking at the 

latch as Mr. and Mrs. Straw were intending to travel to Ohio.” Id. at ¶ 9. 

The cashier then “looked at the vehicle and indicated that the vehicle should 

be able to be taken to Ohio, but that Mr. and Mrs. Straw should have the 

latch fixed.” Id. at ¶ 10. According to NAPA Auto Parts, the Straws drove 

the vehicle “for approximately six [] weeks and [] for between 500 to 600 

miles prior to the accident with no incidents.” Id. at ¶¶ 11-13.

According to NAPA Auto Parts, under this characterization of the facts, 

it could not be held negligent because: it did not owe any duty of care to 

any party; it did not breach any duty of care owed to any party; and, there 

was no evidence that the latch was defective on March 16, 2012. Id. at 

¶¶ 14-15. Further, NAPA Auto Parts claimed that it could not be a joint 

tortfeasor with Appellants, as “[t]he conduct of [Appellants] was reckless 

and the conduct of [NAPA Auto Parts] was [only] allegedly negligent.” Id. at 

¶ 17; see also NAPA Auto Parts’ Brief in Support of Motion for Summary 

Judgment, 6/26/15, at 4.

I.D. Plaintiffs’ Motion for Summary Judgment

Finally, Plaintiffs filed a motion for summary judgment, where they 

requested that the trial court “dismiss the crossclaim [that Appellants] filed 

against Plaintiff Thomas Straw.” Plaintiffs’ Motion for Summary Judgment, 

6/19/15, at “Wherefore” Clause (some internal capitalization omitted). In 

support of their motion, Plaintiffs attached a transcript from Mr. Fair’s 
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February 18, 2014 guilty plea and sentencing hearing, where Mr. Fair 

pleaded guilty to the following crimes arising out of the May 1, 2012 

accident: four counts of recklessly endangering another person (hereinafter 

“REAP”) (18 Pa.C.S.A. § 2705); three counts of aggravated assault by 

vehicle (75 Pa.C.S.A. § 3732.1(a)); one count of homicide by vehicle (75 

Pa.C.S.A. § 3732(a)); and, one count each of exceeding the 

55-miles-per-hour speed limit (by 16 miles per hour) (75 Pa.C.S.A. 

§ 3362(a)(2)) and driving vehicle at safe speed (75 Pa.C.S.A. § 3361). 

During the guilty plea colloquy, the Commonwealth recited the factual 

basis for Mr. Fair’s plea:

Had the Commonwealth proceeded to trial on this case . . . , 

the evidence would have shown that on May 1st of 2012 at 

approximately 7:30 p.m., Thomas Straw was driving on [] 

Route 28 North, in a blue 2004 Pontiac Vibe. . . . The Vibe’s 

hood latch malfunctioned causing the Vibe’s hood to be 

released upwards. Mr. Straw could not see the road due to 

this obstruction. He brought the vehicle to a stop in the 

center lane of Route 28 northbound, just prior to Exit 10 

and activated his hazard lights. 

Thomas Straw would testify that as he brought the vehicle 

to a stop, he looked in his rear view mirror and there were 

no cars approaching. His wife, Jennifer Straw, was seated 

in the front seat. His son, Rowan Straw was seated in the 

back seat on the left side and his son Elijah Straw was 

seated in the back seat on the right side. 

The defendant Kirk Fair was driving North on [Route] 28 in 

a white F250 Ford truck. . . . At an impact point just prior 

to Exit 10 on northbound [] Route 28, Kirk Fair crashed into 

the rear of the Pontiac Vibe while traveling at a speed 

between 54 and 64 miles per hour as indicated by the Ford 

truck’s Powertrain Control Module. The impact of the crash 

resulted in the Pontiac Vibe being totaled. The crash also 
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caused severe injuries to Thomas, Jennifer and Rowan 

Straw, and caused the death of rear seated passenger Elijah 

Straw who was six years old at the time.

Data obtained from the download of Fair’s Ford truck 

indicated that Fair was driving at approximately 71 miles 

per hour for 19 seconds prior to impact. Fair did not apply 

the brakes until .6 seconds prior to the impact with the 

Pontiac Vibe. The speed limit for this stretch of roadway is 

55 miles per hour. The defendant did admit to taking his 

eyes off the road while driving. He stated that when he 

looked up he noticed the blue Pontiac Vibe with its flashing 

lights on, but due to the weight of the truck he could not 

control the truck and avoid the collision. The truck that Fair 

was driving was weighted down with materials that he had 

just loaded for work.

Based on a traffic crash reconstruction conducted by 

Corporal Gregory Brandt of the Pennsylvania State Police, 

who is an expert in the field of accident construction, Fair 

would have been able to see the victim’s vehicle 

approximately 2,058 feet prior to the impact if Fair was 

looking at the road. At a constant speed of 71 miles per 

hour, it would have taken Fair approximately 19 seconds for 

the Ford truck to travel that 2,058 feet and reach the rear 

end of the Vibe. At that speed, the defendant would have 

needed approximately between 6 to 7 seconds to perceive 

the victim’s vehicle, apply the brakes, and stop safely 

before striking the vehicle. Therefore, Fair could have 

safely stopped his truck prior to striking the vehicle if he 

had observed the vehicle within the first 12 to 13 seconds of 

possible perception. The result of his inattentiveness, 

driving reckless and gross[] negligen[ce] caused his vehicle 

to crash into the rear end of the Pontiac Vibe at a high rate 

of speed resulting in serious injuries for all four passengers 

and caus[ing] the death of Elijah Straw. 

N.T. Guilty Plea and Sentencing Hearing, 2/18/14, at 6-9. 

At the conclusion of the factual recitation, Mr. Fair’s attorney declared 

that he did not have “any additions or corrections” to the recitation. Id. at 

9. Mr. Fair then pleaded guilty to the above-mentioned crimes, the trial 
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court accepted Mr. Fair’s plea, and the court sentenced Mr. Fair to serve an 

aggregate term of six to 23 months in jail, followed by ten years of 

probation. Id. at 9 and 12-13.

Within Plaintiffs’ summary judgment motion, Plaintiffs noted that Mr. 

Fair pleaded guilty to four counts of REAP, which requires a mens rea of 

“recklessness.” Plaintiffs argued that Mr. Fair’s REAP convictions constitute 

conclusive proof, in this civil proceeding, that Mr. Fair acted recklessly in 

causing the May 1, 2012 accident and, thus, in causing all harm against 

Plaintiffs. Plaintiffs’ Motion for Summary Judgment, 6/19/15, at ¶ 15. 

Confusing Appellants’ cross-claim against Mr. Straw with Appellants’ 

affirmative defense pleaded in new matter that Mr. Straw was comparatively 

negligent for his own injuries,3 Plaintiffs claimed that, since Appellants did 

not allege reckless behavior on the part of Mr. Straw, Appellants’ cross-claim 

against Mr. Straw must be dismissed. Specifically, Plaintiffs argued: 

a plaintiff’s contributory negligence cannot serve as a viable 

defense if the defendant is found to have acted in reckless 

disregard of the plaintiff’s safety. . . . Accordingly where, as 

here, [Mr.] Fair’s acts were reckless, while Mr. Straw’s acts 

have been alleged to be only ordinary negligence, 

comparative negligence principles are simply inapplicable 

under Pennsylvania law. . . . In light of [this, Appellants] 

cannot prove the elements of their crossclaim against 

Plaintiff Thomas Straw and as such Plaintiffs respectfully 

request that [the trial court] grant Plaintiffs’ motion for 

summary judgment and dismiss the crossclaim.

____________________________________________

3 See infra at **62-69.
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Id. at ¶¶ 15-17 (some internal capitalization omitted).

I.E. Appellants’ Responses to the Summary Judgment Motions

Appellants responded to the motions and argued that none of the 

movants were entitled to summary judgment. Moreover, Appellants 

attached deposition transcripts and documents to their responses that, they 

argued, established genuine issues of material fact that precluded the entry 

of summary judgment. These transcripts and documents included: the 

deposition transcripts of Thomas Straw, Jennifer Straw, John Robert Fanto, 

and Pennsylvania State Police Corporal Gregory Brant; answers to 

interrogatories; a Pennsylvania State Police Crash Report Narrative; a 

Pennsylvania State Police General Investigation Report; and, an expert 

report authored by Edward M. Weber of Rimkus Consulting Group, Inc. 

Viewed in the light most favorable to Appellants as the non-moving parties, 

the attached transcripts and documents presented the following evidence in 

opposition to the summary judgment motions. See Washington v. 

Baxter, 719 A.2d 733, 737 (Pa. 1998) (“as with all summary judgment 

cases, we must view the record in the light most favorable to the 

non-moving party, and all doubts as to the existence of a genuine issue of 

material fact must be resolved against the moving party”).

The owner of Tower Auto, John Robert Fanto, testified that he 

performed the September 27, 2011 state inspection on the Straws’ Pontiac 
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Vibe automobile. Deposition of John Robert Fanto, 6/29/15, at 11-12.4 Mr. 

Fanto testified:

Immediately upon popping the hood . . . [I] determine[d] 

that there was a hood latch assembly issue. . . . I didn’t 

know what the problem was at that point, but when I 

reached down and I pulled the lever to open the hood, the 

little plastic lever did not return. That throws up, to me, a 

red flag. . . . At that point, I carried on with the rest of 

[the] inspection, finished all that, and as I was closing his 

hood, that’s when I serviced that hood latch.

Id. at 19 and 20-21.

Mr. Fanto testified that he serviced the hood latch by “hos[ing] it down 

with a penetrating oil and work[ing] the latch back and forth.” Id. at 21. 

Specifically, Mr. Fanto testified, he hosed the latch down with a penetrating 

oil that was manufactured by a company called Zep; Mr. Fanto then used a 

screwdriver to “work the latch back and forth just to get it moving and 

operating correctly.” Id. at 22 and 26. Mr. Fanto testified that, after he did 

this, he was able to successfully close the hood. Id. at 26. Mr. Fanto then 

issued Mr. Straw a certificate of inspection for the vehicle and wrote, in the 

service invoice, that he was charging Mr. Straw $21.00 for: “repair hood 

latch assembly, hood would not close, cable would not return.” Tower Auto 

Service Invoice, 9/27/11, at 1.5 As Mr. Straw testified, it was at this time 

____________________________________________

4 Appellants attached Mr. Fanto’s deposition transcript as “Exhibit G” to their 

response in opposition to Tower Auto’s summary judgment motion.

5 Appellants attached the September 27, 2011 Tower Auto Service Invoice 

as “Exhibit F” to all responses in opposition to summary judgment.

(Footnote Continued Next Page)
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that he first became aware that there was “an issue with the hood.” 

Deposition of Thomas Straw, 5/13/15, at 29.6 

Mr. Straw testified that he next observed a problem with the Pontiac 

Vibe’s hood in January 2012, following an oil change at Jiffy Lube. According 

to Mr. Straw, after the oil change, he returned to the Jiffy Lube and told the 

employees “I got an oil change here, and the next thing I know my hood 

doesn’t close all the way.” Id. at 33. Mr. Straw testified that a Jiffy Lube 

employee “just kind of grunted and went and got some tools, you know, 

worked with it for a little bit, grunted some more, went and got some other 

tools, worked with it, got it down and that was that.” Id. Upon completion, 

Mr. Straw asked the Jiffy Lube employee, “is [this] safe to drive? It’s not 

going to pop up on me?” Id. at 34 and 71. The employee responded by 

telling Mr. Straw that the vehicle was indeed safe to drive. Id. 

The third time Mr. Straw addressed the problem with the Pontiac 

Vibe’s hood was in March 2012, when he and his family were driving to Ohio. 

In particular, Mr. Straw testified that he stopped his vehicle at a NAPA Auto 

Parts store to purchase a tail light bulb for the vehicle. Id. at 35. While 

there, Mr. Straw asked an employee to “take a look at [the hood] and . . . 

let me know if it’s all right, if it’s safe.” Id. at 36. Mr. Straw testified: “I 

(Footnote Continued) _______________________

6 Appellants attached Mr. Straw’s deposition transcript as “Exhibit B” to all 

responses in opposition to summary judgment. 
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said I have a state inspection coming up in a couple months, is this going to 

make it to the state inspection, is it safe[?] He said absolutely. He said it’s 

metal on metal. They don’t call it a safety latch for nothing.” Id. at 36. 

Mr. Straw testified that he could not remember whether the NAPA Auto 

Parts’ employee did “anything physically with the car,” but Mr. Straw 

testified that he relied upon the employee’s assurances that the hood was 

safe. Id. at 36-37. Mr. Straw also testified that he did not “recall opening 

[the hood] up between the time [he] left NAPA [Auto Parts] and the [May 1, 

2012] accident.” Id. at 39.

Regarding the accident, Mr. Straw testified that the accident occurred 

at around 7:00 p.m. on May 1, 2012 and that, at the time of the accident, 

he was driving his Pontiac Vibe automobile with Jennifer, Elijah, and Rowan 

Straw as his passengers. Id. at 40 and 44. Mr. Straw testified that he was 

driving down the middle lane of Route 28, in daylight, with a clear sky, in 

light traffic, and in an area that had a 55-mile-per-hour speed limit. Id. at 

40-41. As recounted in the Pennsylvania State Police Crash Report 

Supplemental Narrative:7

____________________________________________

7 Appellants attached the Pennsylvania State Police Crash Report 

Supplemental Narrative as Exhibits “E” and “G” to their responses in 

opposition to the motions for summary judgment filed by Jiffy Lube, NAPA 

Auto Parts, and Plaintiffs; Appellants attached the Pennsylvania State Police 

Crash Report Supplemental Narrative as Exhibits “E” and “I” to their 

response in opposition to the motion for summary judgment filed by Tower 

Auto.
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[Mr. Straw] said he was driving north and for a second or so 

before the hood popped he could hear some kind of noise 

under the hood. Then he said the hood popped and the 

hood blocked his view through the front so he [could not] 

see. He said his immediate priority was to bring the vehicle 

to a stop. He said he used his rearview and side mirrors to 

bring the vehicle to a complete stop.

. . . He said that he activated his hazard lights once he was 

stopped. He said he also recalled his wife placing her hand 

on his lap and saying everything is going to be [OK]. He 

said he looked in the rearview mirror and the first thing he 

saw was the truck on the horizon line. He said for a brief 

second he thought to himself [it’s] a good thing he is back 

far enough to react. He said it seemed like an eternity at 

the time but it was probably something like 5 to 8 seconds 

minimum that the truck crashed into him. He said at no 

time was there any cars between him and the truck. In fact 

he said he didn’t recall any traffic in the area around him, or 

even southbound really at the time of this crash.

Pennsylvania State Police Crash Report Supplemental Narrative, 4/24/13, at 

1.

Pennsylvania State Police Corporal Gregory Brandt investigated the 

accident for the Pennsylvania State Police. Following the investigation, 

Corporal Brandt issued a General Investigation Report, where he concluded 

that “[a] mechanical problem with [the] hood latch [on the Straws’ Pontiac 

Vibe automobile] resulted [in] its hood opening while [the vehicle] was 

traveling” on Route 28. Pennsylvania State Police General Investigation 

Report, 1/22/13, at 21.8 Further, Corporal Brandt “concluded with [a] high 

____________________________________________

8 Appellants attached the January 22, 2013 Pennsylvania State Police 

General Investigation Report as “Exhibit K” to their responses in opposition 

(Footnote Continued Next Page)
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level of certainty” that, prior to the accident, the hood latch on the Pontiac 

Vibe had been damaged “for a substantial amount of time.” Id. at 17. 

Finally, Corporal Brandt wrote: “in a post-crash interview with investigators, 

[Thomas Straw] related that he was aware of the faulty hood latch and 

attempted to have the latch repaired one or two weeks prior.” Id. at 21.

Appellants also relied upon an expert report authored by Edward M. 

Weber, of Rimkus Consulting Group, Inc. (hereinafter “the Weber Report”), 

to oppose Additional Defendants’ motions for summary judgment.9 The 

Weber Report declared:

The 2004 Pontiac Vibe Owner’s Manual states . . . that the 

hood latch should be lubricated with multi-purpose 

lubricant, GM part no 12346241, yearly.

It is extremely rare that hood latches fail to lock. The most 

vulnerable areas are the latch release lever (on latch itself) 

and hood release cable. When the hood latch is not 

lubricated at regular intervals, the original grease becomes 

hard and dries out. It also becomes gritty with the 

accumulation of dirt, which causes the lever and latch to 

stick and bind. To properly repair the latch, a de-greasing 

solvent should be used to remove all of the old grease and 

dirt. The debris in the latch should be blown out using 

(Footnote Continued) _______________________

to the motions for summary judgment filed by Plaintiffs and NAPA Auto Parts 

and as “Exhibit J” to their response in opposition to the motion for summary 

judgment filed by Jiffy Lube.

9 Appellants attached the Weber Report as “Exhibit I” to their responses in 

opposition to the motions for summary judgment filed by Jiffy Lube and 

NAPA Auto Parts and as “Exhibit H” to their response in opposition to the 

motion for summary judgment filed by Tower Auto.
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compressed air. Penetrating oil does not last and is not the 

proper lubricant for this application.

When Mr. Fanto of Tower Auto sprayed the penetrating oil 

on the Pontiac’s hood latch, it was just a temporary fix. The 

penetrating oil eventually dried out, which reverted the 

latch back to its malfunctioning condition. After removing 

the old grease with the proper solvent, lithium, or white, 

grease should have been liberally applied. The thicker 

grease serves two purposes: it keeps the latch lubricated 

and prevents dirt and dust from entering the mechanism.

The secondary hood latch should have been degreased and 

lubricated in the same manner. Because its return spring 

was ineffective, vibrations and movement of the hood 

allowed it to move away from the secondary striker plate, 

causing the hood to disengage from the secondary latch, 

which allowed the hood to swing open.

There was not enough information to determine Jiffy Lube’s 

culpability other than it appears that the mechanic just 

manually moved the release lever back so the hood would 

latch. He should have advised Mr. Straw to have the hood 

latch repaired.

[The NAPA Auto Parts] manager[] incorrectly advised Mr. 

Straw that the Pontiac was safe to drive. Although he did 

correctly advise Mr. Straw to have the vehicle fixed, he 

should have advised Mr. Straw to have the hood latch 

repaired as soon as possible.

Weber Report, 8/11/15, at 4.

I.F. Trial Court’s Summary Judgment Rulings, the Trial, and the 

Current Appeal

On August 31, 2015, the trial court heard oral argument on the 

summary judgment motions and, on November 10, 2015, the trial court 

granted all four motions. As the trial court later explained, it granted 

Plaintiffs’ motion for summary judgment because, first, it concluded that Mr. 
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Straw’s conduct was not a proximate cause of the harm. Trial Court 

Opinion, 9/8/16, at 5 n.3. Second, the trial court reasoned that Mr. Fair 

pleaded guilty to REAP and Mr. Fair was, therefore, bound by his admission 

that he acted recklessly in causing the accident. According to the trial court, 

“[f]lowing from [the guilty plea] and the law that contributory negligence 

cannot be weighed or applied to reckless conduct, the claims of contributory 

negligence against Mr. Straw were improper and irrelevant to any contested 

issue. As such, the [trial] court granted summary judgment on this issue.”10 

Trial Court Opinion, 9/8/16, at 4-5. With respect to the summary judgment 

motions filed by Tower Auto, Jiffy Lube, and NAPA Auto Parts, the trial court 

declared that it granted the motions because: 1) the Additional Defendants 

did not owe a duty to the Plaintiffs, and 2) “the conduct of [Appellants] was 

not reasonably foreseeable . . . [and, therefore,] proximate cause could not 

be established against the Additional Defendants.” Id. at 7-9. The trial 

court thus dismissed the cross-claim Appellants filed against Mr. Straw and 

the complaints to join that Appellants filed against Additional Defendants.

____________________________________________

10 On September 9, 2015, Appellants filed a motion for leave to file an 

amended answer, new matter, and counterclaim, so that they could claim 

that Thomas Straw acted recklessly at the time of the accident. Appellants’ 

Motion for Leave to Amend, 9/9/15, at ¶¶ 1-17. According to Golon 

Masonry, when the trial court granted Mr. Straw’s summary judgment 

motion, “[t]he motion to amend filed by Golon [Masonry] and Mr. Fair was 

thereby mooted.” Appellant Golon Masonry’s Brief at 8.
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The case was called for trial and, on December 7, 2015, the trial court 

issued a number of pre-trial rulings, including a ruling bifurcating the trial 

into compensatory and punitive damages phases. With respect to the 

compensatory damages phase of the trial, on December 15, 2015, after six 

days of trial, the jury found in favor of Plaintiffs and against Appellants in an 

aggregate amount of $32,000,000.00. N.T. Trial, 12/15/15, at 1175-1180.

Following the jury’s compensatory damages award, Plaintiffs withdrew 

their punitive damages claim without prejudice to their right to reassert the 

claim if the case were to be remanded after an appeal. Id. at 1201-1202. 

The trial court denied Appellants’ timely post-trial motions and, on April 28, 

2016, the prothonotary entered judgment in favor of Plaintiffs and against 

Appellants in the amount of $35,114,122.78. Appellants filed timely notices 

of appeal and now raise the following claims to this Court:

I. Did the trial court err in granting summary judgment to 

Additional Defendants Tower [Auto], Jiffy Lube, and NAPA 

[Auto Parts], and Plaintiff/Cross-Claim Defendant Thomas 

Straw?

A. Did the trial court err in granting summary judgment 

to Tower [Auto] where there was ample evidence from 

which the jury could have found that Tower [Auto] was 

both negligent and reckless?

B. Did the trial court err in granting summary judgment 

to Jiffy Lube where there was ample evidence from 

which the jury could have found that Jiffy Lube was both 

negligent and reckless?

C. Did the trial court err in granting summary judgment 

to NAPA [Auto Parts] where there was ample evidence 
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from which the jury could have found that NAPA [Auto 

Parts] was both negligent and reckless?

D. Did the trial court err in granting summary judgment 

to Thomas Straw where there was ample evidence from 

which the jury could have found that Thomas Straw was 

both negligent and reckless?

Appellant Kirk Fair’s Brief at 5; see also Appellant Golon Masonry’s Brief at 

5. 

In this appeal, Appellants also raise claims regarding the trial court’s 

pre-trial, trial, and post-trial rulings. As Appellants’ claims on these rulings 

differ somewhat from one another, we will independently quote the parties’ 

claims. Mr. Fair claims: 

II. Did the trial court err in refusing to award a new trial 

based on numerous improper and unfairly prejudicial rulings 

at trial?

A. Did the trial court err in admitting irrelevant, 

inflammatory, and unfairly prejudicial evidence of prior 

convictions and pre-accident and post-accident drug use 

and treatment against Kirk Fair?

B. Did the trial court err in denying [Appellants’] motions 

for a mistrial and permitting [Plaintiffs’] counsel to make 

a number of improper and unfairly prejudicial 

statements in his closing argument, which individually 

and collectively inflamed the jury and tainted the 

verdict?

C. Did the trial court err in submitting a verdict sheet 

which shifted the burden to Appellants[] to disprove 

Decedent Elijah Straw’s claim for conscious pain and 

suffering and improperly directed a verdict against Kirk 

Fair on the issue of recklessness?

D. Did the trial court err in precluding Kirk Fair from 

contesting that he had 19 seconds and 2058 feet of 
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distance in which to avoid the stopped Straw vehicle 

based on Kirk Fair’s criminal plea?

E. Did the trial court err in refusing to grant judgment 

N.O.V., a new trial, or a substantial remittitur because 

the jury’s verdict was shocking, manifestly excessive, 

and unsupported by the trial evidence?

Appellant Kirk Fair’s Brief at 5.

Golon Masonry claims:

II. Did the trial court err in refusing to award a new trial 

based on numerous improper and prejudicial rulings at trial?

A. Did the trial court err in permitting [Plaintiffs] to 

pursue a negligent entrustment claim against Golon 

[Masonry] without the requisite expert testimony to 

explain the applicable standard of care?

B. Did the trial court err in admitting irrelevant, 

inflammatory, and highly prejudicial evidence regarding 

co-defendant Kirk Fair’s drug problems?

C. Did the trial court err in permitting [Plaintiffs’] 

counsel to make a number of improper and highly 

prejudicial statements in his closing argument, which 

individually and collectively inflamed the jury and 

tainted the verdict?

D. Did the trial court err in shifting to [Appellants] the 

burden to disprove decedent Elijah Straw’s claim for 

conscious pain and suffering?

E. Did the trial court err in submitting a jury verdict 

sheet that diluted [Plaintiffs’] burden of proof, directed a 

verdict against Golon [Masonry] with respect to 

causation on the direct claim against it, failed to 

apportion liability between Golon [Masonry] and 

co-defendant Kirk Fair on the direct claims against them, 

and contained numerous other reversible errors?
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F. Did the trial court err in refusing to grant a new trial 

or a substantial remittitur based on the excessiveness of 

the verdict?

Appellant Golon Masonry’s Brief at 5-6 (some internal capitalization 

omitted).

We conclude that the trial court erred when it granted summary 

judgment to Additional Defendants and to Thomas Straw. Therefore, we 

must vacate the judgment and remand. 11

____________________________________________

11 As noted, after the jury found Appellants liable and announced its 

compensatory damage award, Plaintiffs declared that they were withdrawing 

their punitive damages claim “without prejudice” to their right to assert the 

claim if the case were to be remanded following an appeal. See N.T. Trial, 

12/15/15, at 1201-1202. Further, after Plaintiffs declared that they would 

withdraw the claim, counsel for Golon Masonry declared: “[w]e would agree 

to waive [the punitive damages claim] now and allow the [P]laintiffs to bring 

it back up if the case is remanded. That’s fine.” Id. The trial court then 

dismissed the jury. Id. 

As this Court has held, even though Plaintiffs withdrew their punitive 

damages claim “without prejudice,” the withdrawal of the claim means that 

“[t]here are no outstanding claims remaining” in this case. Levitt v. 

Patrick, 976 A.2d 581, 588 (Pa. Super. 2009). Moreover, the subsequent 

denial of Appellants’ post-trial motions and entry of judgment upon the 

verdict give this Court jurisdiction to consider this appeal. As the Levitt

Court explained:

The key inquiry in any determination of finality is whether 

there is an outstanding claim. Pa.R.A.P. 341. . . . If any 

claim remains outstanding and has not been disposed of by 

the trial court, then it does not matter whether the claim is 

classified as a counterclaim or a bifurcated claim, for the 

result is the same: this Court lacks jurisdiction to entertain 

the appeal unless the appeal is interlocutory or we grant 

permission to appeal. Pa.R.A.P. 341.

(Footnote Continued Next Page)
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II. Analysis

II.A. Standard of Review

(Footnote Continued) _______________________

Similarly, if a claim was discontinued prior to trial, we do 

not inquire whether the discontinuance was with or without 

prejudice. The Pennsylvania Rules of Civil Procedure permit 

a party to “commence a second action upon the same cause 

of action” after a discontinuance. Pa.R.C.P. 231. This 

second action is considered a new action and not a 

continuation of the initial action. Because a party may 

initiate a new action upon a discontinued claim, it follows 

that a discontinued claim is not before the trial court for 

resolution.

Instantly, the parties jointly agreed to discontinue Patrick's 

sole bifurcated counterclaim against Levitt. The parties 

further agreed that all issues that were not the subject of 

the trial of this matter have been disposed of. The 

discontinuance constitutes a final judgment as a matter of 

law. Because our finality inquiry has always focused on the 

existence of an outstanding claim, we need not examine 

whether Patrick's bifurcated counterclaim was discontinued 

with or without prejudice. There are no outstanding claims 

remaining and thus we have jurisdiction to consider this 

matter.

Id. (some internal citations, quotations, and corrections omitted); see also 

Bourne v. Temple Univ. Hosp., 932 A.2d 114, 115-116 (Pa. Super. 2007) 

(the Bournes filed a medical malpractice complaint against Temple University 

Hospital, Gail O. Berman, M.D., and three other defendants. However, the 

Bournes failed to file a certificate of merit with their complaint and, thus, 

Temple University Hospital and Dr. Berman filed a praecipe for entry of a 

judgment of non pros. On February 6, 2006, the trial court denied the 

Bournes’ petition to open the judgment of non pros and the Bournes 

appealed. As this Court held: “[o]n April 24, 2006, the trial court approved 

a stipulation withdrawing without prejudice the claims against [the three 

other defendants], thereby rendering the trial court’s February 6, 2006 order 

final for purposes of appeal. See Pa.R.A.P. 341”).
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As this Court has stated:

Our scope of review of a trial court’s order granting or 

denying summary judgment is plenary, and our standard of 

review is clear: the trial court’s order will be reversed only 

where it is established that the court committed an error of 

law or abused its discretion.

Summary judgment is appropriate only when the record 

clearly shows that there is no genuine issue of material fact 

and that the moving party is entitled to judgment as a 

matter of law. The reviewing court must view the record in 

the light most favorable to the nonmoving party and resolve 

all doubts as to the existence of a genuine issue of material 

fact against the moving party. Only when the facts are so 

clear that reasonable minds could not differ can a trial court 

properly enter summary judgment.

Englert v. Fazio Mech. Serv.’s, Inc., 932 A.2d 122, 124 (Pa. Super. 2007) 

(internal citations omitted); see also Summers v. Certainteed Corp., 997 

A.2d 1152, 1159 (Pa. 2010) (“an appellate court may reverse a grant of 

summary judgment if there has been an error of law or an abuse of 

discretion. But the issue as to whether there are no genuine issues as to 

any material fact presents a question of law, and therefore, on that question 

our standard of review is de novo. This means we need not defer to the 

determinations made by the lower tribunals”).

II.B. Analysis Regarding the Trial Court’s Grant of Summary 

Judgment to Additional Defendants

We will first consider the trial court’s grant of summary judgment to 

Additional Defendants. 

As the trial court explained, it granted summary judgment to 

Additional Defendants because, it determined, Additional Defendants did not 
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owe Plaintiffs a duty and because “the conduct of [Appellants] was not 

reasonably foreseeable . . . [and, therefore,] proximate cause could not be 

established against the Additional Defendants.” Trial Court Opinion, 9/8/16, 

at 7-9. Respectfully, we conclude that the trial court erred.

II.B.1. Additional Defendants’ Duties and Breaches of their Duties to 

Plaintiffs

Our Supreme Court has explained:

In Pennsylvania, the elements of a cause of action based on 

negligence are:

(1) a duty or obligation recognized by the law requiring the 

defendant to conform to a certain standard of conduct for 

the protection of others against unreasonable risks;

(2) defendant’s failure to conform to the standard required;

(3) a causal connection between the conduct and the 

resulting injury;

(4) actual loss or damage resulting to the plaintiff.

R.W. v. Manzek, 888 A.2d 740, 746 (Pa. 2005).

As to the element of duty, “[i]t is a fundamental principle of tort law 

[that] there cannot be a valid claim sounding in negligence unless there is a 

duty upon the defendant in favor of the plaintiff which has been breached.” 

Alumni Ass’n v. Sullivan, 572 A.2d 1209, 1210-1211 (Pa. 1990). “The 

existence of a duty is a question of law for the court to decide.” Manzek, 

888 A.2d at 746; see also Restatement (Second) of Torts § 328B(a) and (b) 

(“[i]n an action for negligence the court determines . . . (a) whether the 

evidence as to the facts makes an issue upon which the jury may reasonably 
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find the existence or non-existence of such facts; (b) whether such facts 

give rise to any legal duty on the part of the defendant”). However, “[t]he 

determination of whether an act or failure to act constitutes negligence . . . 

in view of all the evidence has always been particularly committed to 

determination by a jury.” Snead v. SPCA, 929 A.2d 1169, 1183 (Pa. Super. 

2007) (internal quotations and citations omitted).

The Pennsylvania Supreme Court has held that Sections 323 and 324A 

of the Second Restatement of Torts correctly state the law of this 

Commonwealth. Section 323 provides:

§ 323 Negligent Performance of Undertaking to Render 

Services

One who undertakes, gratuitously or for consideration, to 

render services to another which he should recognize as 

necessary for the protection of the other's person or things, 

is subject to liability to the other for physical harm resulting 

from his failure to exercise reasonable care to perform his 

undertaking, if

(a) his failure to exercise such care increases the risk of 

such harm, or

(b) the harm is suffered because of the other's reliance 

upon the undertaking.

Restatement (Second) of Torts § 323; Feld v. Merriam, 485 A.2d 742, 746 

(Pa. 1984) (recognizing that the Supreme Court has “adopted [Restatement 

(Second) of Torts § 323] as an accurate statement of the law in this 

Commonwealth”). 
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Section 323 imposes liability “where a party assumes a duty, whether 

gratuitously or for consideration, and so negligently performs that duty that 

another suffers damage.” Feld, 485 A.2d at 746. It applies:

to any undertaking to render services to another which the 

defendant should recognize as necessary for the protection 

of the other's person or things. It applies whether the harm 

to another or his things results from the defendant's 

negligent conduct in the manner of his performance of the 

undertaking, or from his failure to exercise reasonable care 

to complete it or to protect the other when he discontinues 

it.

Id., quoting Restatement (Second) of Torts § 323 cmt. a.

The rule stated in Section 324A “parallels the one stated in § 323, as 

to the liability of the actor to the one to whom he has undertaken to render 

services. [Section 324A, however,] deals with the liability to third persons.” 

Restatement (Second) of Torts § 324A cmt. a. Section 324A declares:

§ 324A Liability to Third Person for Negligent Performance 

of Undertaking

One who undertakes, gratuitously or for consideration, to 

render services to another which he should recognize as 

necessary for the protection of a third person or his things, 

is subject to liability to the third person for physical harm 

resulting from his failure to exercise reasonable care to 

protect his undertaking, if

(a) his failure to exercise reasonable care increases the 

risk of such harm, or

(b) he has undertaken to perform a duty owed by the 

other to the third person, or

(c) the harm is suffered because of reliance of the other 

or the third person upon the undertaking.
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Restatement (Second) of Torts § 324A; Cantwell v. Allegheny County, 

483 A.2d 1350, 1353 (Pa. 1984) (recognizing that “the essential provisions 

of [Restatement (Second) of Torts § 324A] have been the law in 

Pennsylvania for many years”).

As the comments to the rule state:

[Section 324A] applies to any undertaking to render 

services to another, where the actor's negligent conduct in 

the manner of performance of his undertaking, or his failure 

to exercise reasonable care to complete it, or to protect the 

third person when he discontinues it, results in physical 

harm to the third person or his things. It applies both to 

undertakings for consideration, and to those which are 

gratuitous.

Restatement (Second) of Torts § 324A cmt. b.

Here, Appellants put forth evidence establishing a genuine issue of 

material fact that Additional Defendants owed Plaintiffs duties under 

Sections 323 and 324A of the Second Restatement – and that they breached 

those duties.12

____________________________________________

12 In Althaus ex rel. Althaus v. Cohen, 756 A.2d 1166 (Pa. 2000), our 

Supreme Court held that the issue of duty is “necessarily rooted in often 

amorphous public policy considerations, which may include our perception of 

history, morals, justice and society.” Id. at 1169. The Althaus Court held 

that, to determine whether a duty exists in a particular case, a court must 

weigh “several discrete factors,” including:

(1) the relationship between the parties; (2) the social 

utility of the actor’s conduct; (3) the nature of the risk 

imposed and foreseeability of the harm incurred; (4) the 

consequences of imposing a duty upon the actor; and (5) 

the overall public interest in the proposed solution.

(Footnote Continued Next Page)
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II.B.1.a. Tower Auto’s Duties and Breaches of Its Duties to Plaintiffs

First, with respect to Tower Auto, Appellants put forth evidence that, 

viewed in the light most favorable to Appellants, tends to show the following. 

On September 27, 2011, Thomas Straw took his vehicle to Tower Auto 

for a state inspection. During the inspection, the owner of Tower Auto, John 

Fanto, noticed a problem with the hood latch assembly. Mr. Fanto then 

undertook to repair the hood latch assembly by “hos[ing] it down with a 

penetrating oil and work[ing] the latch back and forth.” Deposition of John 

(Footnote Continued) _______________________

Id. 

However, as our Supreme Court later made clear, the weighing of the 

Althaus factors is “more relevant to the creation of new duties than to the 

vindication of existing ones.” Alderwoods (Pennsylvania), Inc. v. 

Duquesne Light Co., 106 A.3d 27, 40 (Pa. 2014). Thus, the Supreme 

Court held:

It is not necessary to conduct a full-blown public policy 

assessment in every instance in which a longstanding duty 

imposed on members of the public at large arises in a novel 

factual scenario. Common-law duties stated in general 

terms are framed in such fashion for the very reason that 

they have broad-scale application.

Id. at 40-41; see also Scampone v. Highland Park Care Ctr., LLC, 57 

A.3d 582, 586 (Pa. 2012) (holding that “reliance on the principle articulated 

in Section 323 of the Restatement [(Second) of Torts] offered the functional 

equivalent of an Althaus factor analysis”). 

Here, we need not engage in an Althaus factor analysis because the instant 

case concerns a straightforward application of Sections 323 and 324A of the 

Second Restatement and the longstanding law of this Commonwealth.
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Robert Fanto, 6/29/15, at 21. Mr. Fanto issued Mr. Straw a state inspection 

for the vehicle, billed Mr. Straw $21.00 for his work on the hood latch 

assembly, and noted, on the service invoice, that he had “repair[ed the] 

hood latch assembly.” Id. at 21-26; Tower Auto Service Invoice, 9/27/11, 

at 1.

However, as stated in the Weber Report, Mr. Fanto should not have 

used penetrating oil to lubricate the hood latch because “[p]enetrating oil 

does not last . . . [and will] eventually dr[y] out.” Weber Report, 8/11/15, 

at 4. Instead, the Weber Report declared, Mr. Fanto should have: used a 

“de-greasing solvent . . . to remove all of the old grease and dirt;” blown out 

the debris in the latch using compressed air; and, “[a]fter removing the old 

grease with the proper solvent, lithium, or white, grease should have been 

liberally applied.” Id. Moreover, as implied by the Weber Report, when Mr. 

Fanto serviced the hood latch with the penetrating oil, Mr. Fanto actually 

masked the problem with the hood latch by creating a “temporary fix” and 

making the hood latch appear to be properly operational. Id. According to 

the Weber Report, when the penetrating oil “eventually dried out” it 

“reverted the latch back to its malfunctioning condition;” specifically, the 

hood latch became “gritty with the accumulation of dirt” and this “cause[d] 

the lever and latch to stick and bind.” Id. 

Finally, Pennsylvania State Police Corporal Gregory Brandt concluded 

that “[a] mechanical problem with [the] hood latch [on the Straws’ Pontiac 

Vibe automobile] resulted [in] its hood opening while [the vehicle] was 
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traveling” on Route 28. Pennsylvania State Police General Investigation 

Report, 1/22/13, at 21. Corporal Brandt also “concluded with [a] high level 

of certainty” that, prior to the accident, the hood latch on the Pontiac Vibe 

had been damaged “for a substantial amount of time.” Id. at 17.

Viewing the above evidence in the light most favorable to Appellants 

demonstrates that Tower Auto owed Mr. Straw a duty under Section 323 of 

the Second Restatement and that Tower Auto owed Jennifer, Rowan, and 

Elijah Straw duties under Section 324A of the Second Restatement. There is 

also a genuine issue of material fact that Tower Auto breached its duties of 

care to Plaintiffs. Specifically, there is a genuine issue of material fact that: 

 Mr. Fanto “undert[ook], . . . for consideration, to render services 

to [Mr. Straw] which he should [have] recognize[d] as necessary 

for the protection of the other’s person” (Mr. Fanto undertook, 

for consideration, to repair the hood latch on Mr. Straw’s vehicle 

and then informed Mr. Straw that he had “repair[ed the] hood 

latch assembly;” further, Mr. Fanto should have recognized that 

his work and statements to Mr. Straw were necessary for the 

protection of Mr. Straw and Mr. Straw’s passengers because he 

should have recognized that, if the hood latch failed while Mr. 

Straw was driving, the hood would open and obscure the vision 

of Mr. Straw, thus risking harm to Mr. Straw and Mr. Straw’s 

passengers);
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 Mr. Fanto failed to exercise reasonable care in performing his 

work on the vehicle (according to the Weber Report, Mr. Fanto 

utilized the wrong lubricant on the hood latch assembly, which, 

in effect, concealed the problem with the hood latch and allowed 

the problem to manifest when the improper lubricant dried out; 

Mr. Fanto also informed Mr. Straw that he had “repair[ed the] 

hood latch assembly;” further, the hood latch on the vehicle 

failed on May 1, 2012 and, prior to that time, the hood latch had 

been damaged “for a substantial amount of time”);

 Mr. Fanto’s failure to exercise reasonable care increased the risk 

of physical harm to Mr. Straw and Mr. Straw’s passengers (the 

Weber Report, in effect, declared that when Mr. Fanto serviced 

the hood latch with penetrating oil, Mr. Fanto masked the 

problem with the hood latch and allowed the problem to 

manifest when the improper penetrating oil dried out, 

conceivably depriving Mr. Straw of the possibility that Jiffy Lube 

and NAPA Auto Parts would discover the problem); and,

 the Straws suffered harm because of Mr. Straw’s reliance upon 

the undertaking (Mr. Fanto performed work on the hood latch 

and informed Mr. Straw that he had “repair[ed the] hood latch 

assembly;” Mr. Straw drove the vehicle in reliance upon Mr. 

Fanto’s undertaking; the Straws were later rear-ended when 

they were forced to stop, in the middle of Route 28, because the 
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hood on their vehicle unexpectedly popped open; and, the 

Straws all suffered grave harm as a result of the collision).

Thus, a genuine issue of material fact exists that Tower Auto owed 

Plaintiffs duties under Section 323(a) and (b) and Section 324A(a) and (c) of 

the Second Restatement. There also exists a genuine issue of material fact 

that Tower Auto breached its duties of care to Plaintiffs. 

II.B.1.a.i. The Trial Court’s Rationale for Finding No Duty as to Tower 

Auto was Mistaken

According to the trial court, Tower Auto owed Plaintiffs no duty of care 

because: “Tower Auto serviced the vehicle more than [seven] months prior 

to the accident; Plaintiffs experienced no problems with the hood for [three] 

months until after Jiffy Lube changed the vehicle’s oil; and Plaintiffs never 

returned to Tower Auto after experiencing trouble with the hood latch.” Trial 

Court Opinion, 9/8/16, at 7. 

The facts cited by the trial court do not negate the existence of the 

duties Tower Auto owed to Plaintiffs. This is especially true in light of the 

Weber Report. To be sure, according to the Weber Report, Mr. Fanto 

incorrectly used penetrating oil to lubricate the hood latch. Weber Report, 

8/11/15, at 4. According to the Weber Report, servicing the latch with 

penetrating oil was merely a “temporary fix.” The Weber Report declared 

that the oil “eventually dried out” and caused the latch to “revert[] . . . back 

to its malfunctioning condition;” specifically, the hood latch became “gritty 
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with the accumulation of dirt” and this “cause[d] the lever and latch to stick 

and bind.” Id.

Viewing the Weber Report in the light most favorable to Appellants 

demonstrates that Tower Auto breached the duties it owed to Plaintiffs under 

Sections 323 and 324A of the Second Restatement at the time it serviced 

the hood latch. The trial court erred in concluding otherwise.

II.B.1.a.ii. Tower Auto’s Arguments to this Court are Meritless

Within Tower Auto’s appellate brief, Tower Auto claims that “there is 

no evidence that it breached a duty to the Plaintiffs” because: 1) it is 

entitled to limited immunity from suit under 75 Pa.C.S.A. § 4702.1 and, 2) 

the Weber Report, upon which Appellants rely, “is entirely based off of a 

misreading of the owner’s manual for the Straw vehicle” and must be 

disregarded. Appellant’s Brief at 22-23. These claims fail. 

75 Pa.C.S.A. § 4702.1, entitled “limited liability of inspection station or 

mechanic,” declares, in relevant part:

(a) General rule.--An inspection conducted pursuant to 

section 4702(a) (relating to annual inspection) . . . shall not 

be construed as a guaranty of the safety of any vehicle and 

neither the official inspection station issuing the certificate 

of inspection nor the official inspection mechanic performing 

the inspection shall be liable to the owner or occupants of 

any inspected vehicle for any damages caused by the failure 

or malfunction of that vehicle or to the owner or occupants 

of any vehicle involved in an accident with that inspected 

vehicle or to any pedestrian injured in the accident unless 

it can be shown by a preponderance of the evidence 

that the failure was caused by the negligence of the 

inspection station or mechanic.
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75 Pa.C.S.A. § 4702.1 (emphasis added). 

This Section does not entitle Tower Auto to summary judgment 

because, as explained above, there exists a genuine issue of material fact 

that “the failure [of the hood latch] was caused by the negligence of the 

inspection station or mechanic.” Id.

Tower Auto also claims that this Court should “disregard” the Weber 

Report because the Weber Report “is entirely based off of a misreading of 

the owner’s manual for the Straw vehicle.” Appellant’s Brief at 22-23. This 

argument plainly fails at the summary judgment stage, as it constitutes a 

simple attack upon the credibility and weight of Appellants’ expert. 

Summers, 997 A.2d at 1161 (“[i]t has long been Pennsylvania law that, 

while conclusions recorded by experts may be disputed, the credibility and 

weight attributed to those conclusions are not proper considerations at 

summary judgment; rather, such determinations reside in the sole province 

of the trier of fact”).

II.B.1.b. Jiffy Lube’s Duties and Breaches of Its Duties to Plaintiffs

Viewing the record in the light most favorable to Appellants, Appellants 

produced the following evidence that Jiffy Lube owed duties of care to

Plaintiffs and that Jiffy Lube breached those duties.

In January 2012, following an oil change at Jiffy Lube, Mr. Straw 

returned to the Jiffy Lube and told the employees “I got an oil change here, 

and the next thing I know my hood doesn’t close all the way.” Deposition of 

Thomas Straw, 5/13/15, at 33. Mr. Straw testified that a Jiffy Lube 
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employee “just kind of grunted and went and got some tools, you know, 

worked with it for a little bit, grunted some more, went and got some other 

tools, worked with it, got it down and that was that.” Id. Mr. Straw 

testified that, when the employee finished, Mr. Straw asked the employee “is 

[this] safe to drive? It’s not going to pop up on me?;” the employee 

responded by declaring that the vehicle was safe to drive. Id. at 34 and 71. 

Nevertheless, on May 1, 2012, the hood latch failed on the Straws’ 

vehicle, resulting in the “hood opening while [the vehicle] was traveling” on 

Route 28. Pennsylvania State Police General Investigation Report, 1/22/13, 

at 21. Further, as Corporal Brandt concluded, the hood latch on the Straws’ 

vehicle had been damaged “for a substantial amount of time” prior to the 

accident. Id. at 17.

Viewing the record in the light most favorable to Appellants, Jiffy Lube 

owed a duty to Mr. Straw under Section 323, and to Jennifer, Rowan, and 

Elijah Straw under Section 324A, of the Second Restatement; there also 

exists a genuine issue of material fact that Jiffy Lube breached its duties of 

care to Plaintiffs. To be sure, the record demonstrates that:

 a Jiffy Lube employee “undert[ook], gratuitously . . . , to render 

services to [Mr. Straw] which he should [have] recognize[d] as 

necessary for the protection of [Mr. Straw’s] person” (the Jiffy 

Lube employee undertook to repair the hood latch on the Straws’ 

vehicle and then assured Mr. Straw that the vehicle was “safe to 

drive;” further, the employee should have recognized that his 
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work and statements to Mr. Straw were necessary for the 

protection of Mr. Straw and Mr. Straw’s passengers because he 

should have recognized that, if the hood latch failed while Mr. 

Straw was driving, the hood would fly up and obscure the vision 

of Mr. Straw, thus risking harm to Mr. Straw and his 

passengers);

 the Jiffy Lube employee failed to exercise reasonable care in 

performing his work on the vehicle and in advising Mr. Straw as 

to the car’s safety (approximately three or four months after 

Jiffy Lube performed its work and assured Mr. Straw of the 

latch’s safety, the hood latch on the vehicle failed and, at the 

time of failure, the hood latch had been damaged “for a 

substantial amount of time”); 

 the Jiffy Lube employee’s failure to exercise reasonable care 

increased the risk of physical harm to Mr. Straw and Mr. Straw’s 

passengers (the employee’s failure to perform the undertaking in 

a non-negligent manner and his assurances of safety to Mr. 

Straw caused Mr. Straw to believe the latch was safe and to, 

thus, not protect himself or his family against the risk of the 

hood opening while he was driving); and, 

 the Straws suffered harm because of Mr. Straw’s reliance upon 

the undertaking (the Jiffy Lube employee purportedly repaired 

the hood latch and then assured Mr. Straw that the latch was 
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safe; Mr. Straw drove the vehicle; and, the Straws were later 

rear-ended when they were forced to stop, in the middle of 

Route 28, because the hood on their vehicle unexpectedly 

popped open).

The record, as stated above, reveals a genuine issue of material fact 

that Jiffy Lube owed Plaintiffs duties – and breached those duties – under 

Section 323(a) and (b) and Section 324A(a) and (c) of the Second 

Restatement.13

II.B.1.b.i. The Trial Court’s Rationale for Finding No Duty as to Jiffy 

Lube was Mistaken

____________________________________________

13 Our Supreme Court has not adopted the Restatement (Third) of Torts: 

Liability for Physical Harm (Proposed Draft Number One), and although we 

do not express any opinion as to the acceptance of this provision, we note 

that comment f to Section 42 (“Duty Based on Undertaking”) explains:

f. Increasing the risk of harm. The requirement that the 

actor increase the risk of harm means that the risk to the 

other person is increased beyond that which existed in the 

absence of the actor's undertaking.

This requirement is often met because the plaintiff or 

another relied on the actor's performing the undertaking in 

a nonnegligent manner and declined to pursue an 

alternative means for protection. Although reliance is 

merely a specific manner of increasing the risk of harm for 

another, this Section retains reliance as a separate basis for 

imposing a duty because historically it has been treated 

separately.

Restatement (Third) of Torts: Liability for Physical Harm § 42 cmt. f (PFT 

No. 1).
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The trial court reasoned that Jiffy Lube did not owe Plaintiffs any duty 

because: “Jiffy Lube is in the business of changing oil not repairing hood 

latches; Plaintiffs experienced no problems with the hood for a week after 

the oil change; an employee attempted to aid Plaintiffs free of charge upon 

their return; the employee never told Mr. Straw he fixed anything; Plaintiffs 

did not experience any issues with the hood for several weeks later despite 

driving to Ohio multiple times.” Trial Court Opinion, 9/8/16, at 8. We 

conclude that the trial court’s reasoning is mistaken.

First, as to the fact that “Plaintiffs experienced no problems with the 

hood for a week after the oil change,” we conclude that this fact does not 

bear upon the existence of Jiffy Lube’s duty. This is because the employee 

performed the work on the hood latch, and assured Mr. Straw of the hood 

latch’s safety, after the oil change had occurred. Deposition of Thomas 

Straw, 5/13/15, at 32-33 (Mr. Straw explained that he received an oil 

change at Jiffy Lube and then, approximately one week later, he returned to 

the Jiffy Lube because the hood of his car would not close all the way).

Second, the trial court held that “an employee attempted to aid [Mr. 

Straw] free of charge upon [his] return” negated the existence of Jiffy Lube’s 

duty. However, this fact does not negate the existence of a duty, as 

Sections 323 and 324A impose a duty of reasonable care upon “[o]ne who 

undertakes, gratuitously or for consideration, to render services to 

another. . . .” Restatement (Second) of Torts §§ 323 and 324A (emphasis 

added).
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Third, the trial court reasoned, Jiffy Lube did not have a duty to 

Plaintiffs because “Jiffy Lube is in the business of changing oil not repairing 

hood latches.” Trial Court Opinion, 9/8/16, at 8. This reasoning fails 

because the Jiffy Lube employee actually performed work on the hood latch 

and, thus, “undert[ook] . . . to render services to [Mr. Straw] which he 

should [have] recognize[d] as necessary for the protection of [Mr. Straw’s] 

person.” Restatement (Second) of Torts §§ 323 and 324A. Further, 

although Jiffy Lube’s business specialty might create a factual issue 

concerning whether Mr. Straw “relied” upon the employee’s safety 

assurances, this factual issue cannot be resolved at the summary judgment 

stage. See, e.g., Leach v. Phila. Sav. Fund Soc., 340 A.2d 491, 492 (Pa. 

Super. 1975) (“[s]ummary judgment may be entered only in the clearest of 

cases where there is not the slightest doubt as to the absence of an issue of 

material fact. . . . The existence of [an] issue of material fact renders the 

summary judgment procedure premature and inappropriate”). To be sure, 

as explained in the comments to Section 323 of the Second Restatement: 

One who gratuitously gives transportation to another, or 

otherwise renders gratuitous services to him, is not subject 

to liability to him for his failure to have the competence or 

to exercise the skill normally required of persons doing such 

acts, if the other who accepts the services is aware, through 

information given by the actor or otherwise, of his 

incompetence. However, a contract to render services, or a 

gratuitous offer to render them, or even merely giving them 

at the other's request, may carry with it a profession or 

representation of some skill and competence; and if the 

actor realizes or should realize that his competence and skill 

are subnormal, he must exercise reasonable care to inform 
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the other. If he does not do so, he is subject to liability for 

physical harm resulting from his deficiencies.

Restatement (Second) of Torts § 323 cmt. b.

In the case at bar, there is no evidence: that the Jiffy Lube employee 

possessed a “subnormal” skill or competence in general car repair or, 

specifically, in fixing hood latches; that the employee informed Mr. Straw 

that he possessed any such subnormal skill or competence; or, that Mr. 

Straw “realize[d] or should [have] realize[d] that [the employees’] 

competence and skill [was] subnormal.” Id. Therefore, the mere fact that 

“Jiffy Lube is in the business of changing oil not repairing hood latches” does 

not entitle Jiffy Lube to summary judgment. See Trial Court Opinion, 

9/8/16, at 8.

Finally, the trial court reasoned that Jiffy Lube did not have a duty to 

Plaintiffs because “the employee never told Mr. Straw he fixed anything” and 

“Plaintiffs did not experience any issues with the hood for several weeks 

later despite driving to Ohio multiple times.” Id. These reasons do not 

support the trial court’s grant of summary judgment. 

Simply stated, the assertion that “the employee never told Mr. Straw 

he fixed anything” fails to view the record in the light most favorable to 

Appellants. Certainly, under the proper standard of review, the record 

reflects that the employee worked on the hood latch, was able to fully close 

the hood, and then assured Mr. Straw that the hood latch was safe. 

Deposition of Thomas Straw, 5/13/15, at 29-33. Viewing these facts in the 

light most favorable to Appellants demonstrates that the Jiffy Lube employee 
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endeavored to repair the hood latch and then, through his actions and 

words, represented to Mr. Straw that he had repaired the hood latch and 

that the latch was “safe.” 

Further, the fact that “Plaintiffs did not experience any issues with the 

hood for several weeks [] despite driving to Ohio multiple times” does not 

negate the existence of a duty upon Jiffy Lube because the hood latch failed 

three to four months after its employee worked on the latch and assured Mr. 

Straw that it was safe. Moreover, following the accident, Corporal Brandt 

concluded that the hood latch on the Straws’ vehicle had been damaged “for 

a substantial amount of time” prior to the accident. Thus, there is evidence 

that, although the employee manipulated the latch, he did not repair it and 

unreasonably assured Mr. Straw that the latch was safe. The trial court’s 

conclusion to the contrary was in error.

II.B.1.b.ii. Jiffy Lube’s Arguments to this Court are Meritless

On appeal, Jiffy Lube primarily claims that it did not owe Plaintiffs any 

duty because there was “[n]o evidence that [Jiffy Lube] was in the business 

of fixing hoods or hood latches of cars, particularly free of charge.” Jiffy 

Lube’s Brief at 12. As explained above, this claim does not entitle Jiffy Lube 

to summary judgment.14

____________________________________________

14 Within Jiffy Lube’s appellate brief to this Court, Jiffy Lube also claims that 

it did not owe Plaintiffs any duty because the accident was not foreseeable. 

Jiffy Lube’s Brief at 12. We will analyze the foreseeability of the accident 

below. 

(Footnote Continued Next Page)
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II.B.1.c. NAPA Auto Parts’ Duties and Breaches of Its Duties to 

Plaintiffs

Viewing the record in the light most favorable to Appellants as the 

non-moving parties, the evidence as to NAPA Auto Parts’ liability is as 

follows.

In March 2012, Mr. Straw and his family drove to Ohio. During their 

trip, they stopped their Pontiac Vibe automobile at a NAPA Auto Parts store 

to purchase a tail light bulb. Deposition of Thomas Straw, 5/13/15, at 35. 

While there, Mr. Straw asked an employee to “take a look at [the hood] and 

. . . let me know if it’s all right, if it’s safe.” Id. at 36. Mr. Straw testified: 

“I said I have a state inspection coming up in a couple months, is this going 

to make it to the state inspection, is it safe[?] He said absolutely. He said 

it’s metal on metal. They don’t call it a safety latch for nothing.” Id. at 36. 

Mr. Straw testified that he could not remember whether the NAPA Auto 

Parts’ employee did “anything physically with the car,” but Mr. Straw 

testified that he relied upon the employee’s assurances that the hood was 

safe. Id. at 36-37. 

Approximately six weeks later, the hood latch on the Straws’ Pontiac 

Vibe failed, thus leading to the accident. Further, Corporal Brandt 

“concluded with [a] high level of certainty” that, prior to the accident, the 

hood latch on the Pontiac Vibe had been damaged “for a substantial amount 

(Footnote Continued) _______________________
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of time.” Pennsylvania State Police General Investigation Report, 1/22/13, 

at 17.

Viewing this evidence in the light most favorable to Appellants 

establishes a prima facie case under Sections 323 and 324A of the Second 

Restatement. It demonstrates that:

 a NAPA Auto Parts employee “undert[ook], gratuitously . . . , to 

render services to [Mr. Straw] which he should [have] 

recognize[d] as necessary for the protection of [Mr. Straw’s] 

person” (the NAPA Auto Parts employee undertook to analyze 

the hood latch on the Straws’ vehicle and then assured Mr. 

Straw that the vehicle was “safe;”15 further, the employee 

should have recognized that his work and statements to Mr. 

Straw were necessary for the protection of Mr. Straw and Mr. 

Straw’s passengers because he should have recognized that, if 

the hood latch failed while Mr. Straw was driving, the hood 

would fly up and obscure the vision of Mr. Straw, thus risking 

harm to Mr. Straw and Mr. Straw’s passengers);

____________________________________________

15 See Farabaugh v. Pa. Tpk. Comm’n, 911 A.2d 1264, 1284 (Pa. 2006) 

(“the plain language of Section 324A merely requires an undertaking to 

‘render services to another,’ which we find to encompass the rendering of 

inspection services”); Shannon v. McNulty, 718 A.2d 828 (Pa. Super. 

1998) (holding that, under Section 323, the plaintiffs established that the 

defendant “render[ed] services” by issuing “telephonic advice”).
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 the NAPA Auto Parts employee failed to exercise reasonable care 

in performing his analysis on the vehicle and in advising Mr. 

Straw as to the car’s safety (approximately six weeks after the 

NAPA Auto Parts employee looked at the vehicle and assured Mr. 

Straw of the latch’s safety, the hood latch on the vehicle failed 

and, at the time of failure, the hood latch had been damaged 

“for a substantial amount of time”); and,

 the NAPA Auto Parts employee’s failure to exercise reasonable 

care increased the risk of physical harm to Mr. Straw and Mr. 

Straw’s passengers (the employee’s assurances of safety to Mr. 

Straw caused Mr. Straw to believe the latch was safe and to, 

thus, not protect himself or his family against the risk of the 

hood opening while he was driving); and,

 the Straws suffered harm because of Mr. Straw’s reliance upon 

the undertaking (the NAPA Auto Parts employee undertook to 

assure Mr. Straw that the latch was safe; Mr. Straw relied upon 

the advice and drove the vehicle; and, the Straws were later 

rear-ended when they were forced to stop, in the middle of 

Route 28, because the hood on their vehicle unexpectedly 

popped open).

The record thus reveals a genuine issue of material fact that NAPA 

Auto Parts owed Plaintiffs duties under Section 323(a) and (b) and Section 
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324A(a) and (c) of the Second Restatement and that NAPA Auto Parts 

breached its duties of care to Plaintiffs.

II.B.1.c.i. The Trial Court’s Rationale for Finding No Duty as to NAPA 

Auto Parts was Mistaken

The trial court held that NAPA Auto Parts did not owe Plaintiffs any 

duty because: “NAPA [Auto Parts] is an auto parts store not a repair shop; 

the employee was asked to look at the hood latch and did so free of charge; 

[six] weeks elapsed between the NAPA [Auto Parts] visit and the accident; 

and between the NAPA [Auto Parts] visit and the accident, Plaintiffs drove 

their car to Ohio and elsewhere putting hundreds of miles on the car.” Trial 

Court Opinion, 9/8/16, at 8. 

This Court has already explained why the trial court’s rationale fails. 

Nevertheless, we note: there is no evidence that the NAPA Auto Parts’ 

employees’ skill and competence at car maintenance was subnormal or that

Mr. Straw “realize[d] or should [have] realize[d] that [the employees’] 

competence and skill [was] subnormal” (thus, at the summary judgment 

stage, it is immaterial that “NAPA [Auto Parts] is an auto parts store not a 

repair shop”); Sections 323 and 324A impose a duty of reasonable care 

upon “[o]ne who undertakes, gratuitously or for consideration, to render 

services to another” (thus, at the summary judgment stage, it is irrelevant 

that “the employee was asked to look at the hood latch and did so free of 

charge”); and, six weeks after the NAPA Auto Parts’ employee declared the 

Straws’ hood latch “safe,” “[a] mechanical problem with [the] hood latch [on 
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the Straws’ automobile] resulted [in] its hood opening while [the vehicle] 

was traveling” on Route 28 and, at the time of failure, the hood latch had 

been damaged “for a substantial amount of time” (therefore, summary 

judgment is not proper merely because “[six] weeks elapsed between the 

NAPA [Auto Parts] visit and the accident and . . . Plaintiffs drove their car to 

Ohio and elsewhere putting hundreds of miles on the car”). 

II.B.1.c.ii. NAPA Auto Parts’ Arguments to this Court are Meritless

Within its brief, NAPA Auto Parts claims that it had no duty to Plaintiffs 

and, in support, repeats many of the same arguments that the trial court 

made. NAPA Auto Parts’ Brief at 15-18. For the reasons set forth above, we 

reject those arguments. 

NAPA Auto Parts also claims that its employee “could not possibly have 

foreseen that his actions were necessary for the protection of Plaintiff[s]” 

and that NAPA Auto Parts, thus, does not have any duty to Plaintiffs under 

Sections 323 and 324A of the Second Restatement. Id. at 17. This claim 

fails because, viewing the evidence in the light most favorable to Appellants, 

the employee undertook to analyze the Straws’ vehicle and undertook to 

give Mr. Straw advice that the hood latch on the vehicle was “safe.” 

Deposition of Thomas Straw, 5/13/15, at 36. If the employee failed to 

exercise reasonable care in this undertaking and improperly assured Mr. 

Straw that the hood latch was safe, a direct and easily foreseeable result of 

this improper advice would be that the hood would fly open while the vehicle 

was in operation, thus endangering Mr. Straw and his passengers. 
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Therefore, in this case, there exists a genuine issue of material fact that the 

employee “should [have] recognized [that his services were] necessary for 

the protection of” Mr. Straw and Mr. Straw’s passengers. Restatement 

(Second) of Torts §§ 323 and 324A. NAPA Auto Parts’ claim to the contrary 

fails.

II.B.1.d. Conclusion as to Duties and Breaches of Duties

We have thus concluded that there are genuine issues of material fact 

that Additional Defendants owed Plaintiffs duties under Sections 323 and 

324A of the Second Restatement and that Additional Defendants breached 

those duties. We will next address our conclusion that the trial court erred 

in holding that “the conduct of [Appellants] was not reasonably foreseeable . 

. . [and, therefore,] proximate cause could not be established against the 

Additional Defendants.” Trial Court Opinion, 9/8/16, at 7-9. 

II.B.2. Causation

II.B.2.a. Additional Defendants’ Negligence and Factual Cause 

Analysis

To establish a prima facie case of negligence, a plaintiff must produce 

sufficient facts to show that the defendant’s negligence was both the 

cause-in-fact and the legal, or proximate, cause of her injuries. In 

Pennsylvania, 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.” First v. Zem Zem Temple, 686 A.2d 18, 21 n.2 (Pa. Super. 

1996) (internal quotations and citations omitted). 
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In this case, Appellants put forth sufficient evidence to create a jury 

question that, but for Additional Defendants’ alleged negligence, Plaintiffs 

would not have suffered harm. Evidence exists that, if the Additional 

Defendants had not been negligent, Plaintiffs would not have driven the car, 

the hood on Plaintiffs’ car would never have opened, Plaintiffs would never 

have stopped their vehicle on the highway, and Mr. Fair would never have 

crashed into Plaintiffs’ vehicle. Hence, in this case, there is a genuine issue 

of material fact that Additional Defendants’ negligence was a factual cause of 

Plaintiffs’ harm.16

II.B.2.b. Proximate Causation and Intervening Causes

Regarding proximate cause, conduct is a proximate cause of the 

plaintiff’s harm where the conduct “was a substantial factor in bringing about 

the harm inflicted upon a plaintiff.” Jones v. Montefiore Hosp., 431 A.2d 

920, 923 (Pa. 1981). As the Pennsylvania Supreme Court explained:

At its root, the concept of legal cause . . . is an articulation 

of policy related to social and economic considerations. 

Dean Prosser has described proximate or legal causation as 

follows:

Once it is established that the defendant's conduct has 

in fact been one of the causes of the plaintiff's injury, 

there remains the question whether the defendant 

should be legally responsible for what he has caused. 

Unlike the fact of causation, with which it is often 

____________________________________________

16 Further, on appeal, the Additional Defendants do not claim that factual 

causation is lacking.
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hopelessly confused, this is essentially a problem of law. 

It is sometimes said to be a question of whether the 

conduct has been so significant and important a cause 

that the defendant should be legally responsible. But 

both significance and importance turn upon conclusions 

in terms of legal policy, so that this becomes essentially 

a question of whether the policy of the law will extend 

the responsibility for the conduct to the consequences 

which have in fact occurred.

Prosser, Law of Torts § 42 (4th ed.). . . . [The Pennsylvania 

Supreme] Court, in accord with Prosser, has stated: “the 

concept [of proximate cause], like that of negligence itself, 

was designed not only to permit recovery for a wrong but to 

place such limits upon liability as are deemed socially or 

economically desirable from time to time.” Grainy v. 

Campbell, 425 A.2d 379, 382 (Pa. 1981). . . .

As a general rule, however, in the absence of policy 

considerations which would limit liability, if an actor's 

negligence is the legal cause of damages sustained by 

another, the actor is liable for those damages. Under the 

analysis of “legal cause” set forth in the Restatement of 

Torts, Second and adopted by [the Pennsylvania Supreme] 

Court . . . , the question is whether the defendant's conduct 

was a “substantial factor” in producing the injury. 

Restatement (Second) of Torts § 431. 

As [the Pennsylvania Supreme] Court observed in Ford v. 

Jeffries, [379 A.2d 111 (Pa. 1977),] ordinarily the 

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.
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Vattimo v. Lower Bucks Hosp., Inc., 465 A.2d 1231, 1233-1234 (Pa. 

1983) (plurality) (emphasis omitted) (some internal citations omitted).

Section 433 of the Second Restatement of Torts sets forth three 

“considerations [that are] important in determining whether negligent 

conduct is [a] substantial factor in producing harm.” Restatement (Second) 

of Torts § 433. The section declares:

The following considerations are in themselves or in 

combination with one another important in determining 

whether the actor's conduct is a substantial factor in 

bringing about harm to another:

(a) the number of other factors which contribute in 

producing the harm and the extent of the effect which 

they have in producing it;

(b) whether the actor's conduct has created a force or 

series of forces which are in continuous and active 

operation up to the time of the harm, or has created a 

situation harmless unless acted upon by other forces for 

which the actor is not responsible;

(c) lapse of time.

Restatement (Second) of Torts § 433; see also Betz v. Pneumo Abex, 

LLC, 44 A.3d 27, 56 n.36 (Pa. 2012) (“th[e Pennsylvania Supreme] Court 

has cited [Restatement (Second) of Torts §] 433 as consistent with 

Pennsylvania law”). 

“Two or more causes may contribute to and thus be the legal or 

proximate cause of an injury.” Feeny v. Disston Manor Personal Care 

Home, Inc., 849 A.2d 590, 595 (Pa. Super. 2004). Further, and relatedly, 

where an act or force “actively operates in producing harm to [the plaintiff] 
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after [the defendant’s] negligent act [] has been committed,” that 

intervening force does not necessarily relieve the defendant of liability. 

Restatement (Second) of Torts § 441. Instead, for an act to break the 

causal chain and relieve the defendant of liability, the act must be “so 

extraordinary as not to have been reasonably foreseeable.” Von der Heide 

v. Commonwealth, Dep’t of Transp., 718 A.2d 286, (Pa. 1998); Trude v. 

Martin, 660 A.2d 626, 632 (Pa. Super. 1995). In such a case, the act 

constitutes a “superseding cause” and, “by its intervention, [the act] 

prevents the [defendant] from being liable for harm to another which his 

antecedent negligence is a substantial factor in bringing about.” Von der 

Heide, 718 A.2d at 288 (quoting Restatement (Second) of Torts § 440). “A 

determination of whether an act is so extraordinary as to constitute a 

superseding cause is normally one to be made by the jury.” Powell v. 

Drumheller, 653 A.2d 619, 624 (Pa. 1995). 

The Restatement lists a number of considerations that “are of 

importance in determining whether an intervening force is a superseding 

cause of harm to another.” Restatement (Second) of Torts § 442. The 

listed considerations are:

(a) the fact that its intervention brings about harm different 

in kind from that which would otherwise have resulted from 

the actor's negligence;

(b) the fact that its operation or the consequences thereof 

appear after the event to be extraordinary rather than 

normal in view of the circumstances existing at the time of 

its operation;
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(c) the fact that the intervening force is operating 

independently of any situation created by the actor's 

negligence, or, on the other hand, is or is not a normal 

result of such a situation;

(d) the fact that the operation of the intervening force is 

due to a third person's act or to his failure to act;

(e) the fact that the intervening force is due to an act of a 

third person which is wrongful toward the other and as such 

subjects the third person to liability to him;

(f) the degree of culpability of a wrongful act of a third 

person which sets the intervening force in motion.

Id.

The Restatement also declares:

Where the negligent conduct of the actor creates or 

increases the risk of a particular harm and is a substantial 

factor in causing that harm, the fact that the harm is 

brought about through the intervention of another force 

does not relieve the actor of liability, except where the harm 

is intentionally caused by a third person and is not within 

the scope of the risk created by the actor's conduct.

Restatement (Second) of Torts § 442B; see also Ford, 379 A.2d at 115 

(quoting comment b to Section 442B). And:

If the likelihood that a third person may act in a particular 

manner is the hazard or one of the hazards which makes 

the actor negligent, such an act whether innocent, 

negligent, intentionally tortious, or criminal does not 

prevent the actor from being liable for harm caused 

thereby.

Restatement (Second) of Torts § 449.
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In the case at bar, the trial court essentially held that Mr. Fair’s 

reckless17 actions on May 1, 2012 constituted a superseding cause of 

Plaintiffs’ harm as a matter of law – and that, as a result of Mr. Fair’s 

criminal actions, the Additional Defendants were relieved of liability for their 

alleged negligence. Respectfully, we conclude that this holding is incorrect.

II.B.2.b.i. Appellants’ Conduct and Intervening Cause Analysis

As summarized above, Appellants put forth evidence that the 

Additional Defendants negligently: performed work on the hood latch of the 

Straws’ vehicle and/or analyzed the vehicle and assured the Straws that the 

hood latch was safe. Viewing the evidence in the light most favorable to 

____________________________________________

17 As was previously noted, Mr. Fair pleaded guilty to four counts of REAP. 

18 Pa.C.S.A. § 2705 defines REAP in the following manner:

A person commits a misdemeanor of the second degree if 

he recklessly engages in conduct which places or may place 

another person in danger of death or serious bodily injury.

18 Pa.C.S.A. § 2705.

REAP is a non-summary criminal offense and, as is evident in the crime’s 

definition, a necessary element of REAP is the mens rea of “recklessness.” 

Therefore, at least with respect to Mr. Fair and the vicarious liability of Golon 

Masonry, Mr. Fair’s guilty plea to REAP constitutes “conclusive evidence,” in 

this civil proceeding, that Mr. Fair acted recklessly on May 1, 2012. See 

Folino v. Young, 568 A.2d 171, 172-173 (Pa. 1990) (“operative facts 

necessary for non-summary criminal convictions [may] be admitted as 

conclusive facts in civil suits arising from the same event”); Hurtt v. 

Stirone, 206 A.2d 624, 625-627 (Pa. 1965) (holding that the civil 

defendant’s prior conviction for extortion constituted “conclusive evidence of 

the fact of the alleged extortion” in the later, civil trial).
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Appellants, at the time each Additional Defendant performed its services for 

the Straws, the Additional Defendant knew or should have known that a 

foreseeable consequence of any negligence with respect to the hood latch 

would be that: the Straws would drive their vehicle; the air speed at the 

front of the Straws’ vehicle would increase as the Straws increased the 

speed of their vehicle; the increasing air speed at the front of the vehicle 

would increase the drag upon a partially raised, unsecured hood; and, as a 

result of the increased drag upon the hood, the unsecured hood on the 

vehicle would fly open while the Straws were driving. Further, the Additional 

Defendants should have known that a foreseeable risk of their negligence 

would be that the suddenly-raised hood would obscure Mr. Straw’s vision of 

the road, leading to the foreseeable risk that Mr. Straw would hit an object 

in front of him, lose control of his vehicle, or unexpectedly stop his vehicle 

on the roadway and be hit, from behind, by another vehicle – all of which 

could foreseeably cause grave injuries or death to Mr. Straw and his 

passengers. To be sure, these are the precise risks that made the Additional 

Defendants’ actions negligent in the first place. 

Moreover, Appellants put forth evidence that, as a result of Additional 

Defendants’ negligence, Mr. Straw was driving the vehicle and the hood on 

the Straws’ vehicle popped open while Mr. Straw was driving on a highway. 

This led to Mr. Straw unexpectedly stopping his vehicle on the highway, 

which led to Mr. Fair striking the Straws’ stationary vehicle from behind, 

which led to the death of Elijah Straw and injuries to Thomas, Jennifer, and 
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Rowan Straw. In other words, Appellants have put forth evidence that 

Additional Defendants’ conduct created the foreseeable risk of serious injury 

or death to Mr. Straw and his passengers, because Mr. Straw would be 

forced to unexpectedly stop his vehicle on the highway and be hit from 

behind by another vehicle – and Plaintiffs were, in fact, harmed when Mr. 

Straw was forced to unexpectedly stop his vehicle on the highway and was 

hit from behind by Mr. Fair’s vehicle. As such, there is sufficient evidence to 

demonstrate that Plaintiffs’ harm was within the scope of the original risk 

that Additional Defendants’ negligence created.

Undoubtedly, Mr. Fair’s conduct was criminal. However, Plaintiffs 

never claimed that Mr. Fair intentionally struck their vehicle and Mr. Fair’s 

pleas of guilt only establish that he acted recklessly. Moreover, as our 

Supreme Court has held, “criminal conduct does not act as a per se

superseding force.” Powell, 653 A.2d at 624. Instead, the Supreme Court 

held, the focus in every case is not upon the criminal nature of the act, but 

upon “whether the act was so extraordinary as not to be reasonably 

foreseeable” – and that question “is normally one to be made by the jury.” 

Id. at 624-625 (holding: “[i]t is for the jury . . . to determine whether [one 

defendant’s] actions in attempting to pass a car while under the influence of 

alcohol thus crossing into [the plaintiff’s] lane were so extraordinary as to be 

unforeseeable to [defendant] PENNDOT when designing the highway”); 

Crowell v. City of Phila., 613 A.2d 1178, 1185 n.12 (Pa. 1992) (holding 

that a defendant’s drunk driving conviction did not constitute a superseding 
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cause and relieve the City of Philadelphia of liability for placing a dangerous 

street sign because, among other reasons, the defendant’s criminal act of 

drunk driving was foreseeable); Jones v. Chieffo, 700 A.2d 417 (Pa. 1997) 

(plurality) (plaintiffs were struck by a car that was being pursued by the 

Philadelphia police and the plaintiffs sued the City of Philadelphia; the 

Supreme Court held that a jury must decide whether the criminal act of the 

driver constituted a superseding cause, which would relieve the city of 

liability). 

Finally, we note that ordinary human experience tells us that drivers 

may commonly violate the posted speed limits, that they may occasionally 

be inattentive to the road, that they may occasionally drive dangerously, and 

that it may not be “extraordinary” for them to be intoxicated. See also 

Powell, 653 A.2d at 624-625 (holding: “[i]t is for the jury . . . to determine 

whether [one defendant’s] actions in attempting to pass a car while under 

the influence of alcohol thus crossing into [the plaintiff’s] lane were so 

extraordinary as to be unforeseeable to [defendant] PENNDOT when 

designing the highway”). Stated another way, ordinary human experience 

tells us that drivers sometimes act criminally on the roads. Therefore, in 

accordance with our Supreme Court’s precedent, we conclude that a jury 

must determine whether Mr. Fair’s criminal acts and particular combination 

of speeding, inattentive driving, and (alleged) intoxication were “so 

extraordinary as not to be reasonably foreseeable” to the Additional 

Defendants and, relatedly, whether the case falls within Sections 442B or 
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449 of the Second Restatement of Torts. Powell, 653 A.2d at 624; 

Restatement (Second) of Torts §§ 442B and 449; c.f. Ford, 379 A.2d at 115

(holding: “[i]f one engages in negligent conduct toward another, such as 

unreasonably increasing the risk that that person will suffer a particular kind 

of harm, it cannot be said, as a matter of law, that the actor is not liable 

simply because the foreseeable plaintiff suffered the foreseeable harm in a 

manner which was not foreseeable. Appellee's conduct in this case could 

have increased the risk that appellant's house would be damaged by fire.

Such harm in fact occurred. Given these circumstances, it was for the jury 

to determine whether the appellee's conduct, if it was negligent, was 

superseded by the intervening force”). The trial court erred in holding 

otherwise.18

____________________________________________

18 Within their briefs to this Court, Tower Auto and NAPA Auto Parts rely 

upon our Supreme Court’s opinion in Ashworth v. Hannum, 32 A.2d 407 

(Pa. 1943), to support their claims that Appellants’ conduct was a 

superseding cause of Plaintiffs’ harm. However, Ashworth was based upon 

a case and a legal doctrine that the Pennsylvania Supreme Court later 

explicitly overruled. To be sure, Ashworth was based upon the 

Pennsylvania Supreme Court’s earlier opinion in Kline v. Moyer, 191 A. 43 

(Pa. 1937) and upon the doctrine that, “[i]f the defendant has created only a 

passive, static condition which made the damage possible, the defendant is 

said not to be liable.” W. PAGE KEETON, ET AL., PROSSER AND KEETON ON THE LAW 

OF TORTS § 42 (5th ed. 1984); Ashworth, 32 A.2d at 409 (“As we said in 

Kline v. Moyer[]: ‘Where a second actor has become aware of the 

existence of a potential danger created by the negligence of an original 

tort-feasor, and thereafter, by an independent act or negligence, brings 

about an accident, the first tort-feasor is relieved of liability, because the 

condition created by him was merely a circumstance of the accident and not 

its proximate cause.’ Thus, [the first actor’s] negligence in parking the truck 

as he did was superseded by appellant's negligent and unforeseeable 

(Footnote Continued Next Page)
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II.B.2.b.ii. Additional Defendants’ Negligence and Proximate Cause 

Analysis

Further, and for many of the same reasons set forth above, we 

conclude that a jury must determine whether Additional Defendants’ 

negligence was a substantial factor in causing Plaintiffs’ harm. Rabutino v. 

Freedom St. Realty Co., 809 A.2d 933, 941 (Pa. Super. 2002) (“[w]hether 

a defendant’s conduct has been a ‘substantial factor’ in causing plaintiff’s 

harm is ordinarily a question of fact for the jury”). 

First, as explained above, there is sufficient evidence to demonstrate 

that Plaintiffs’ harm was within the scope of the original risk that Additional 

Defendants’ negligence created and that Plaintiffs’ harm was the natural and 

foreseeable result of Additional Defendants’ separate negligence. 

Second, with respect to Additional Defendants, the evidence at the

summary judgment stage demonstrates that they each increased the risk of 

physical harm to Mr. Straw and his passengers. See Restatement (Second) 

of Torts §§ 323(a) and 324A(a); see also supra at **32-50. 

As our Supreme Court has held:

(Footnote Continued) _______________________

conduct and made a remote cause of the accident”). Our Supreme Court 

later adopted Section 447 of the Second Restatement of Torts (and Section 

447’s focus upon “foreseeability”) to deal with the issue of superseding 

cause and, therefore, held: “to the extent that Kline and any cases 

following Kline are in conflict with § 447 they are expressly overruled.” 

Grainy v. Campbell, 425 A.2d 379, 382 (Pa. 1981). Ashworth followed 

Kline and Ashworth is in direct conflict with Section 447 of the Second 

Restatement. Therefore, Ashworth is not good law and neither Tower Auto 

nor NAPA Auto Parts should have relied upon the case.
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[O]nce a plaintiff has demonstrated that defendant's acts or 

omissions, in a situation to which Section 323(a) applies, 

have increased the risk of harm to another, such evidence 

furnishes a basis for the fact-finder to go further and find 

that such increased risk was in turn a substantial factor in 

bringing about the resultant harm; the necessary proximate 

case will have been made out if the jury sees fit to find 

cause in fact.

Jones v. Montefiore Hosp., 431 A.2d 920, 924 (Pa. 1981) (internal 

quotations and citations omitted).

Thus, the evidence, viewed in the light most favorable to Appellants, 

demonstrates that Additional Defendants increased the risk of physical harm 

to Mr. Straw and his passengers; as such, Appellants established a jury 

question that Additional Defendants’ negligence was a substantial factor in 

causing Plaintiffs’ injuries. Jones, 431 A.2d at 924.

Finally, even though Tower Auto, Jiffy Lube, and NAPA Auto Parts 

performed their services weeks or months prior to the accident, the mere 

lapse of time does not take the proximate cause issue away from the jury. 

Viewing the evidence in the light most favorable to Appellants, a jury could 

properly conclude that the hood latch had been damaged “for a substantial 

amount of time” prior to the accident and that it merely took weeks or 

months for the air speed and drag to finally, and foreseeably, open the 

dangerously unsecured hood. See, e.g., W. PAGE KEETON, ET AL., PROSSER AND 

KEETON ON THE LAW OF TORTS § 43 (5th ed. 1984) (“[r]emoteness in time or 

space may give rise to the likelihood that other intervening causes have 

taken over the responsibility. But when causation is found, and other factors 
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are eliminated, it is not easy to discover any merit whatever in the 

contention that such physical remoteness should of itself bar recovery. The 

defendant who sets a bomb which explodes ten years later, or mails a box of 

poisoned chocolates from California to Delaware, has caused the result, and 

should obviously bear the consequences”).

Hence, in the case at bar it is for a jury to determine whether 

Additional Defendants’ negligence was a substantial factor in causing 

Plaintiffs’ harm.

We have thus determined that the trial court erred in granting 

Additional Defendants’ motions for summary judgment. We next explain why 

the trial court erred in dismissing Appellants’ cross-claim against Thomas 

Straw.

II.C. The Trial Court Erred in Dismissing Appellants’ Cross-Claim 

Against Thomas Straw

As explained above, Appellants filed a cross-claim against Mr. Straw 

and alleged that Mr. Straw was directly liable to Jennifer Straw, Rowan 

Straw, and the Estate of Elijah Straw, or liable over to Appellants for 

contribution or indemnity. According to Appellants, Mr. Straw was negligent 

for, among other things, driving his vehicle even though he knew that “the 

hood and/or latching mechanism on the vehicle was not in good operating 

condition” and for “allow[ing the vehicle] to remain in the lane of travel 

when it was unsafe and hazardous to do so.” Appellants’ Cross-Claim, 

5/22/13, at ¶ 2. The trial court granted Mr. Straw’s motion for summary 
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judgment and dismissed the cross-claim against him because, it held: 1)

Mr. Straw’s conduct was not a proximate cause of the harm, and 2) Mr. 

Straw’s alleged “contributory negligence cannot be weighed or applied to 

[Mr. Fair’s] reckless conduct.” Trial Court Opinion, 9/8/16, at 4-5. 

Appellants claim that the trial court erred in dismissing their 

cross-claim against Mr. Straw. We agree.

II.C.1. Mr. Straw’s Conduct and Negligence Analysis

At the outset, the trial court erred in concluding that summary 

judgment was proper because “Mr. Straw’s conduct could not be found to be 

the proximate cause of [the] harm.” Trial Court Opinion, 9/8/16, at 5 n.3. 

Given our earlier discussion in this opinion, we need not speak long on 

the current issue. However, we note that, when the evidence is viewed in 

the light most favorable to Appellants, there is a genuine issue of material 

fact that Mr. Straw knew there was a problem with his hood latch and, 

nevertheless, drove his wife and children on the day in question. See, e.g., 

Pennsylvania State Police General Investigation Report, 1/22/13, at 21 (“in a 

post-crash interview with investigators, [Thomas Straw] related that he was 

aware of the faulty hood latch and attempted to have the latch repaired one 

or two weeks prior”); Weber Report, 8/11/15, at 1 (“Mr. and Mrs. Straw 

knowingly operated the Pontiac with the hood not completely latched. The 

Pontiac should not have been driven at higher speeds until the hood was 

properly repaired and latched.”) (internal paragraphing omitted). Therefore, 
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there is evidence that Mr. Straw violated his duty to his passengers by 

acting unreasonably in light of the recognizable risk. 

Further, as explained above, it is for a jury to determine whether Mr. 

Straw’s alleged breach of his duty to his occupants was the proximate cause 

of the accident and whether Mr. Fair’s conduct constituted a superseding 

cause of the harm. The trial court’s contrary holding was in error.

II.C.2. Apportionment of Liability and Contribution Between Reckless 

and Negligent Co-Defendants

The trial court also granted Mr. Straw’s summary judgment motion 

because, it held, Mr. Straw’s alleged “contributory negligence cannot be 

weighed or applied to [Mr. Fair’s] reckless conduct.” Trial Court Opinion, 

9/8/16, at 4-5. With respect, we conclude that this holding was in error.

Initially, the trial court mistakenly confused Appellants’ cross-claim 

against Mr. Straw with Appellants’ affirmative defense that Mr. Straw was 

comparatively negligent for his own injuries. True, under the plain terms of 

the Comparative Negligence Act, a defendant’s reckless conduct cannot be 

compared to the plaintiff’s negligence. See Johnson v. City of Phila., 808 

A.2d 978, 983 (Pa. Cmwlth. 2002) (“[u]nder the Comparative Negligence 

Act, the only conduct that is statutorily authorized to be compared is 

negligent conduct”) (emphasis in original). To be sure, Section 7102(a) of 

the Comparative Negligence Act declares:

(a) General rule.--In all actions brought to recover 

damages for negligence resulting in death or injury to 

person or property, the fact that the plaintiff may have been 
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guilty of contributory negligence shall not bar a recovery 

by the plaintiff or his legal representative where such 

negligence was not greater than the causal negligence

of the defendant or defendants against whom recovery is 

sought, but any damages sustained by the plaintiff shall be 

diminished in proportion to the amount of negligence 

attributed to the plaintiff.

42 Pa.C.S.A. § 7102(a) (emphasis added); see also McMeekin v. Harry M. 

Stevens, Inc., 530 A.2d 462, 464 (Pa. Super. 1987) (noting that Section 

7102(a) only applies to “actions brought to recover damages for 

negligence”).

However, with respect to Appellants’ cross-claim against Mr. Straw, 

Appellants did not claim that Mr. Straw’s negligence should bar or diminish 

Mr. Straw’s own recovery. Rather, they claimed that Mr. Straw’s 

negligence rendered him directly liable to Jennifer Straw, Rowan Straw, and 

the Estate of Elijah Straw, or liable over to Appellants for contribution or 

indemnity. Under this theory, Mr. Straw was simply another defendant in 

the action and, thus, the plain terms of Section 7102(a) have no application 

to Appellants’ cross-claim against Mr. Straw. See Pa.R.C.P. 1031.1 (“Any 

party may set forth in the answer or reply under the heading “Cross-claim” a 

cause of action against any other party to the action that the other party 

may be (1) solely liable on the underlying cause of action or (2) liable to or 

with the cross-claimant on any cause of action arising out of the transaction 

or occurrence or series of transactions or occurrences upon which the 

underlying cause of action is based”); Pa.R.C.P. 1031.1 cmt. (“[t]he claims 

which may be asserted in a cross-claim are identical to those which serve as 
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bases for joining an additional defendant”); BLACK’S LAW DICTIONARY 404 (8th

ed. 2004) (defining a “cross-claim” as “[a] claim asserted between 

codefendants or coplaintiffs in a case”). 

Moreover, nothing in Section 7102(a.1) or in the Uniform Contribution 

Among Tortfeasors Act (UCATA) would prohibit apportionment of liability or 

contribution between reckless and negligent co-defendants. Section 

7102(a.1) declares:

(a.1) Recovery against joint defendant; 

contribution.—

(1) Where recovery is allowed against more than one 

person, including actions for strict liability, and where 

liability is attributed to more than one defendant, each 

defendant shall be liable for that proportion of the total 

dollar amount awarded as damages in the ratio of the 

amount of that defendant's liability to the amount of liability 

attributed to all defendants and other persons to whom 

liability is apportioned under subsection (a.2).

(2) Except as set forth in paragraph (3), a defendant's 

liability shall be several and not joint, and the court shall 

enter a separate and several judgment in favor of the 

plaintiff and against each defendant for the apportioned 

amount of that defendant's liability.

(3) A defendant's liability in any of the following actions 

shall be joint and several, and the court shall enter a joint 

and several judgment in favor of the plaintiff and against 

the defendant for the total dollar amount awarded as 

damages:

. . .

(ii) An intentional tort.
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(iii) Where the defendant has been held liable for not 

less than 60% of the total liability apportioned to all 

parties.

. . .

(4) Where a defendant has been held jointly and severally 

liable under this subsection and discharges by payment 

more than that defendant's proportionate share of the total 

liability, that defendant is entitled to recover contribution 

from defendants who have paid less than their 

proportionate share. . . .

42 Pa.C.S.A. § 7102(a.1).19

Thus, unlike Section 7102(a), Section 7102(a.1) does not only apply to 

claims sounding in negligence. To the contrary, Section 7102(a.1) expressly 

permits apportionment and contribution between co-defendants in strict 

liability actions. 42 Pa.C.S.A. § 7102(a.1)(1). Further, Section 7102(a.1) 

specifically declares that apportionment (and, potentially, contribution) 

exists between co-defendants “[w]here recovery is allowed against more 

than one person” and “where liability is attributed to more than one 

defendant.” These broad terms do not limit themselves to “negligent” 

conduct – rather, the terms necessarily include “liability” for reckless and 

negligent conduct.20 

____________________________________________

19 42 Pa.C.S.A. § 7102(a.1) became effective on June 28, 2011. Since the 

accident in this case occurred on May 1, 2012, Section 7102(a.1) applies to 

this case.

20 Again, Plaintiffs have never claimed that Mr. Fair acted intentionally in 

causing the accident. Therefore, the case at bar does not concern any 

potential apportionment or contribution between an intentional and a 

negligent tortfeasor.
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Likewise, the UCATA (42 Pa.C.S.A. § 8321 et seq.) “is not geared only 

toward negligence situations.” McMeekin, 530 A.2d at 465 (Pa. Super. 

1987). Rather, as this Court explained:

[Under the UCATA, “joint tortfeasors”] are defined as ‘two 

or more persons jointly or severally liable in tort for the 

same injury to persons or property.’ . . . The statutory 

language does not limit the right of contribution to 

tortfeasors who have been guilty of negligence. 

Contribution is available whenever two [or] more persons 

are jointly or severally liable in tort, irrespective of the 

theory by which tort liability is imposed.

. . .

The Uniform Contribution Among Tort-feasors Act in 

Pennsylvania provides that a joint tortfeasor who has 

discharged more than his pro rata share of a common 

liability may seek contribution from any other tortfeasor 

who contributed to the loss. The doctrine of contribution is 

based on equity. Therefore, the Act must be examined with 

equity in mind.

The focus of the Uniform Act is on the relationship existing 

between tortfeasors rather than the manner in which 

several tortfeasors have been held liable to an injured 

claimant. . . . Thus, a tortfeasor's right to receive 

contribution from a joint tortfeasor derives not from his 

liability to the claimant but rather from the equitable 

principle that once the joint liability of several tortfeasors 

has been determined, it would be unfair to impose the 

financial burden of the plaintiff's loss on one tortfeasor to 

the exclusion of the other. It matters not on which theory a 

tortfeasor has been held responsible for the tort committed 

against the plaintiff. So long as the party seeking 

contribution has paid in excess of his or her share of 

liability, it would be inequitable under the Act to deny that 

party's right to contribution from a second tortfeasor who 

also contributed to the plaintiff's injury.
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McMeekin, 530 A.2d at 465 (quoting Svetz v. Land Tool Co., 513 A.2d 

403 (Pa. Super. 1986)) (some internal quotations, citations, and corrections 

omitted); see also Commonwealth, Dep’t of Transp. v. Popovich, 542 

A.2d 1056, (Pa. Cmwlth. 1988), affirmed, 564 A.2d 159 (Pa. 1989) (holding 

that a “reckless” co-defendant may seek contribution from a “negligent” 

co-defendant).

We conclude that the plain language of 42 Pa.C.S.A. § 7102(a.1) and 

the UCATA permits apportionment and contribution between reckless and 

negligent co-defendants. Therefore, since Appellants’ cross-claim against 

Mr. Straw rendered Mr. Straw a cross-claim defendant in the action – and, 

since Mr. Fair’s recklessness does not preclude apportionment (or, 

potentially, contribution) between him and his (allegedly) negligent 

co-defendants,21 including Mr. Straw – the trial court erred in dismissing 

Appellants’ cross-claim against Mr. Straw.22

____________________________________________

21 Within its brief to this Court, Jiffy Lube contends that it was entitled to 

summary judgment because it cannot be considered a joint tortfeasor with 

Appellants. This argument fails because there is a genuine issue of material 

fact that Plaintiffs suffered indivisible injuries as a result of Jiffy Lube’s 

negligence and Mr. Fair’s conduct. Carrozza v. Greenbaum, 916 A.2d 553, 

556 (Pa. 2007) (“[a]lthough joint and several liability requires an indivisible

injury for which two or more parties are partially responsible, it is the 

indivisibility of the injury, rather than of culpability, that triggers joint

liability”). Therefore, at the summary judgment stage, it is too early to say 

whether Jiffy Lube’s liability is joint and several or several only. 42 

Pa.C.S.A. § 7102(a.1) (“A defendant's liability in any of the following actions 

shall be joint and several . . . (iii) Where the defendant has been held liable 

for not less than 60% of the total liability apportioned to all parties”). 

Further, even if it becomes true that Jiffy Lube and Appellants are not jointly 

(Footnote Continued Next Page)
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Judgment vacated. Case remanded. Jurisdiction relinquished.

Judge Strassburger files a Concurring and Dissenting Opinion.

Judge Stabile files a Dissenting Opinion.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/11/2018

(Footnote Continued) _______________________

liable, this fact alone would not entitle Jiffy Lube to relief. See 42 Pa.C.S.A. 

§ 7102(a.1) (regarding apportionment of liability). 

22 Given our disposition, Appellants’ claims that the “the trial court err[ed] in 

refusing to award a new trial based on numerous improper and prejudicial 

rulings at trial” are moot. See Appellant Kirk Fair’s Brief at 5; Appellant 

Golon Masonry’s Brief at 5-6 (some internal capitalization omitted); 

Banohashim v. R.S. Enter’s., LLC, 77 A.3d 14, 27 n.6 (Pa. Super. 2013) 

(“[t]he grant of a new trial wipes the slate clean of the former trial”), 

quoting Commonwealth v. Oakes, 392 A.2d 1324, 1326 (Pa. 1978). 

Further, reaching the other issues on appeal would be inappropriate in this 

case, as we have vacated the grant of summary judgment to the Additional 

Defendants and Mr. Straw; the Additional Defendants and Mr. Straw are 

entitled to weigh in on the issues before the trial court, if the issues arise 

again.