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* Retired Senior Judge assigned to the Superior Court. NON - PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37 NICHOLL JACKSON, AN INCAPACITATED PERSON BY HER COURT APPOINTED CO

GUARDIANS , ARLENE HINKLE AND THERESA CAINES

Appellants

v. ALLEGHENY VALLEY SCHOOL,

Appellee : : : : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 3042 EDA 2014 Appeal from the Order Entered September 25, 2014 in the Court of Common Pleas of Philadelphia County, Civil Division at No.: April Term, 2013 No. 5171 BEFORE: PANELLA, WECHT, and STRASSBURGER,* JJ. DISSENTING MEMORANDUM BY STRASSBURGER, J.: Filed : December 18, 2015
Because I believe that Appellants came forth with sufficient evidence to survive summary judgment, I respectfully dissent. In their March 22, 2011 behavioral management program for Jackson, the specific behavior AVS sought to target was Jackson’s self

- injurious beh avior. Motion for Summary Judgment, 8/4/2014, at Exhibit I, page 1. The program also noted Jackson’s pica and elopement behaviors. Id. Thus, Jennifer Szopo, the Executive Director of AVS, testified that AVS’s behavioral management program for Jackson was to have her “closely supervised during waking hours 7 days a week[.]” N.T., 6/24/2014, at 29. This closeJ

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supervision included “keeping [Jackson] within staff’s sight and sound at all times. [Jackson] should be no more than [a] 5 foot radius from st aff so that she can be reached in time.” Id. at 29

- 30. The record before the trial court also contained the statements given to police by AVS employees Evangeline Gbargaye, who had assisted Jackson with her shower on the night of May 7, 2011, and Ellen Sloh, who had dressed Jackson on May 8, 2011 at 6:30 am per her usual routine. Ms. Gbargaye indicated that the only injury she observed on Jackson was an old scratch between her breasts. Motion for Summary Judgment, 8/4/2014, at Exhibit EE, page 2. Ms. Sloh similarly saw some faded scratches on Jackson’s chest, but no other marks on her body. Id. at Exhibit FF, page 2. Appellants visited Jackson at AVS at approximately 2:30 pm on May 8, 2011, a 75

- degree Mother’s Day. They had brought sandwiches an d intended to have a picnic outdoors with Jackson. Exhibit B to Answer to Motion for Summary Judgment, 9/4/2014, at 46. Jackson was brought out in a heavy, long

- sleeved shirt, fully buttoned, with her hair combed forward. Id. at 47. Upon lifting Jackso n’s hair from her cheek, Appellants discovered “all knuckle marks, black, yellow, bruised.” Id. Removing Jackson’s shirt, Appellants saw large bruises “like grab marks” on both of Jackson’s upper

arms. Id. at 48. Underneath the tank top Jackson was wea ring, Appellants found bruising “all over her breasts.” Id.J

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Ms. Sloh confirmed, after viewing photographs of the injuries Appellants discovered, that she had not seen the injuries to Jackson’s chest, or any of the other injures depicted in the photogra phs, when she had dressed Jackson that morning. Motion for Summary Judgment, 8/4/2014, at Exhibit FF, page 2. Viewing this evidence in the light most favorable to Appellants, Jackson sustained her injuries sometime between when Ms. Sloh helped Jackson dr ess at 6:30 am and when Appellants arrived at approximately 2:30 pm. During these hours, AVS’s acknowledged standard of care was to have someone supervising Jackson within five feet at all times. Yet, within this time, in AVS’s care, Jackson sustained se rious blunt

- force injuries to her face, breasts, and arms. I would hold that Appellant’s failure to pinpoint the specific way Jackson suffered harm is not fatal to the claims. Indeed, the very fact that AVS does not know how Jackson was injured during the timeframe at issue proves that AVS was negligent: if AVS had provided the constant close supervision it determined was necessary to protect Jackson, someone at AVS would have observed the harm being inflicted upon Jackson, be it by Jackson

or someone e lse. Thus, a jury could conclude that AVS did not act reasonably under the circumstances in allowing Jackson or someone else the opportunity to inflictJ

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the serious injuries Jackson sustained, and that AVS’s breach of that duty of care is what caused Jac kson’s injuries. Accordingly, I would reverse the order which granted summary judgment to AVS.