J-A06044-19

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KAYLA M. SUPANCIK, AN 

INCAPACITED PERSON, BY 

ELIZABETH SUPANCIK, PLENARY 

GUARDIAN OF THE PERSON AND 

ESTATE, AND APRIL SUPANCIK, 

INDIVIDUALLY

v.

TYLER M. ROBINSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 295 MDA 2018

Appeal from the Order Entered January 29, 2018

In the Court of Common Pleas of Susquehanna County Civil Division at 

No(s): 2011-374

KAYLA M. SUPANCIK, AN 

INCAPACITED PERSON, BY 

ELIZABETH SUPANCIK, PLENARY 

GUARDIAN OF THE PERSON AND 

ESTATE, AND APRIL SUPANCIK, 

INDIVIDUALLY 

Appellants

v.

TYLER M. ROBINSON

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 358 MDA 2018

Appeal from the Order Entered January 19, 2018

In the Court of Common Pleas of Susquehanna County Civil Division at 

No(s): 2011-374

BEFORE: OTT, J., NICHOLS, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.: FILED APRIL 05, 2019
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All parties in this appeal1 seek review of an order entered in the Court 

of Common Pleas of Susquehanna County which grants a new trial in their 

vehicular negligence action. The central claims of the plaintiffs below (the 

Supanciks) are that the trial court erred in (a) setting aside the jury’s verdict

that the defendant, Tyler Robinson (Robinson), was negligent and (b) denying

their post-trial motions to prevail on the issue of liability as a matter of law.

Conversely, Robinson argues, inter alia, that the trial court erred in setting 

aside the jury’s verdict as to factual cause and ordering that the case be 

entirely retried. We affirm the trial court’s rulings in all respects.

I.

A.

The undisputed facts of the subject auto accident are set forth in the 

trial court’s opinion:

On June 9, 2009, [Robinson] was operating his motor vehicle on 

State Route 92 (SR 92)[.] [He] was traveling in the south bound 

lane of SR 92. There were no adverse, environmental or road 

conditions. At some time near dusk, as Robinson was operating 

his motor vehicle, he observed [Kayla Supancik] and her father, 

Peter Supancik . . . stepping over a guardrail off the northerly side 

of SR 92, which would have been to the left side of SR 92 in 

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1 Robinson filed a notice of appeal on February 14, 2018, in case 295 MDA 

2018. The Supanciks filed a notice of appeal on February 26, 2018, in case 

358 MDA 2018. The two appeals were consolidated in accordance with 

Pennsylvania Rule of Appellate Procedure 2136, which governs cross appeals. 

For the purposes of the briefing schedule, the Supanciks were deemed the 

“Appellants” and Robinson was deemed the “Appellee.” To avoid confusion, 

the parties will be referred to here by name.
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Robinson’s field of vision. [Kayla] was 9 years of age at the time 

of the accident.

When first observed by Robinson, [Kayla and Peter Supancik] 

were approximately 400 to 500 feet away from Robinson’s 

oncoming motor vehicle. [Kayla and Peter] were standing very 

close to the roadway surface of SR 92. While not immediately 

apparent to Robinson, [Kayla’s] little sister was standing across 

the road from [Kayla and her father]. Robinson was eventually 

able to observe what he described as a 2 to 3-year-old child 

[Kayla’s sister] standing unaccompanied in her driveway and in 

close proximity to the southbound lane of SR 92, which would 

have been to the right of Robinson’s field of vision. Upon 

observing [Kayla and her father], Robinson slowed his vehicle 

down to 35 or 40 miles per hour.

Robinson estimated that he continued to watch [them] for another 

8 to 10 seconds as he approached them at his reduced speed. 

When Robinson’s vehicle was approximately 70 to 100 feet from 

[Kayla and her father, Kayla] left her position near the guardrail 

off the eastern side of SR 92, cross through the northbound lane 

of SR 92, and entered the southbound lane of SR 92 into the path 

of Robinson’s motor vehicle. Robinson attempted to brake but 

was unable to avoid striking [Kayla] with his motor vehicle.

Robinson attempted to veer his motor vehicle to the right but 

could not take further evasive action without striking [Kayla’s] 

little sister who was standing close to the roadway in a driveway

area to the westerly side of SR 92. Based upon expert reports, it 

was determined that Robinson was traveling 40 miles per hour 

prior to braking.

It was further determined that if Robinson had been traveling 32 

miles per hour, then [Kayla] would have been able to run safely 

across the road without being struck by Robinson’s breaking 

motor vehicle. It was also determined that if Robinson had slowed 

to 20 miles per hour he would have been able to successfully break 

prior to the point of impact with [Kayla].

Trial Court Opinion, 01/19/18, at 1-2.
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At the close of evidence after a five-day trial, the jury was instructed to 

determine whether Robinson was “negligent.” Neither party objected to the 

following jury instructions on negligence:

A person must act in a reasonably careful manner to avoid injuring 

others.

The care required varies according to the circumstances and the 

degree of danger at a particular time.

A driver owes a duty of care to a pedestrian who is attempting to 

cross a public highway. Likewise, a pedestrian has a duty to 

exercise reasonable care prior to attempting to cross a highway.

As to a child pedestrian, a driver has a higher standard of care 

and is required to give due consideration to the fact that a child 

does not ordinarily exercise the same degree of caution for their 

(sic) own safety that an adult pedestrian normally would.

The degree of care owed to a child pedestrian is determined 

by the following factors:

(1) Whether the child when first observed was located 

in a place of danger or a place of safety;

(2) If the child was in a place of danger, whether the 

driver had sufficient time to observe the child and react 

to the situation so as to avoid striking the child;

(3) If when first observed the child was in a place of 

safety, whether there was a reasonable apprehension 

that the child might run into a place of danger; and

(4) If there was a reasonable apprehension that the 

child might run from a place of safety into a place of 

danger, whether the driver had sufficient time to 

observe the child and react to the situation so as to 

avoid striking the child.

The driver of a motor vehicle is not an insurer of the safety of a 

child. If a child should come suddenly into the path of the motor 

vehicle without warning so that an attentive driver who is 
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exercising due care under the circumstances could not have 

avoided the collision, then the driver is not negligent.

If the driver of a motor vehicle has sufficient time to 

observe a child in a place of danger so as to allow the driver 

who is exercising due care a reasonable opportunity to 

avoid striking the child, then the driver is negligent.

If the driver of a motor vehicle observes a child in a place of safety 

and there is a reasonable apprehension that the child will enter a 

place of danger, but there is not sufficient time to observe the 

child so as to allow the driver who is exercising due care a 

reasonable opportunity to avoid striking the child, then the driver 

is not negligent.

If the driver of a motor vehicle observes a child in a place 

of safety and there is a reasonable apprehension that the 

child will enter a place of danger, and there is sufficient 

time to observe the child so as to allow the driver who is 

exercising due care a reasonable opportunity to avoid 

striking the child, then the driver is negligent.

Where there is a reasonable apprehension that a child will leave a 

place of safety and enter a place of danger, a driver has a duty to 

bring his or her motor vehicle under such control that it can be 

stopped on the shortest possible notice of danger.

You must decide how a reasonably careful person would 

act under the circumstances established by the evidence in 

this case.

A person who does something a reasonably careful person would 

not do under the circumstances is negligent.

A person also can be negligent by failing to act.

A person who fails to do something a reasonably careful person 

would do under the circumstances is negligent.

Trial Transcript, 10/17/17, at 200-02 (emphases added).

The corresponding interrogatory on the jury’s verdict slip asked whether 

Robinson was negligent. The jury eventually determined that he was. What 
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came next is the crux of this appeal – the jury also found that Robinson’s 

negligent conduct was not a “factual cause” of Kayla’s injuries.

The instructions given to the jury on “factual cause” had considerable 

overlap with those in the negligence charge:

In order for Kayla . . . to recover in this case . . . Robinson’s 

negligent conduct must have been a factual cause in bringing 

about harm. Conduct is a factual cause of the harm when 

the harm would not have occurred absent the conduct. To 

be a factual cause, the conduct must have been an actual, 

real factor in causing the harm, even if the result is unusual 

or unexpected. A factual cause cannot be an imaginary or 

fanciful factor having no connection or only an insignificant 

connection with the harm.

To be a factual cause . . . Robinson’s conduct need not be the only 

factual cause. The fact that some other causes concur with . . . 

Robinson’s negligence in producing an injury does not relieve 

[him] from liability as long as his own negligence is a factual cause 

of the injury.

Trial Transcript, 10/17/17, at 202 (emphases added).

By finding that Robinson’s negligence was not the factual cause of 

Kayla’s injuries, the jury did not impose any damages. It also did not answer 

the remaining questions on the verdict slip, including whether Kayla was

contributorily negligent.
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B.

The Supanciks moved for a directed verdict and judgment 

notwithstanding the verdict (JNOV)2 as to factual cause. They argued that 

they were entitled to a new trial as to damages alone, with liability decided in 

their favor because the verdict on factual cause was against the weight of the 

evidence, inconsistent with the negligence verdict, and the result of jury 

confusion. The Supanciks asserted that even though the jury never decided 

the issue of Kayla’s contributory negligence, they should still have won a 

verdict on factual cause as a matter of law. In the alternative, the Supanciks 

moved for a new trial on all issues.

As the prevailing party, Robinson contended that the negligence and 

factual cause portions of the verdict were consistent and supported by the 

evidence. He interpreted the verdict as a reflection of the jury’s intent to find 

him not liable. However, the trial court set aside the verdict of no factual 

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2 JNOV is only proper in two situations. First, the movant may be entitled to 

it if a court reviews the record and concludes that the law requires a verdict 

in his favor, even when resolving all factual inferences against him; second, 

the court may review the record evidence and find that a verdict for the 

movant was “beyond peradventure.” Mirizio v. Joseph, 4 A.3d 1073, 1079 

(Pa. Super. 2010). This standard is intended to prohibit courts from deciding 

a disputed issue of material fact. See Renninger v. A & R Machine Shop, 

163 A.3d 988, 995 (Pa. Super. 2017). Further, a new trial as to liability should 

only be granted where (1) the issue is not “intertwined” with the issue of 

damages, and (2) liability has been “fairly determined” or is “free from doubt.” 

Kraner v. Kraner, 841 A.2d 141, 147 (Pa. Super. 2004) (citing Kiser v. 

Schulte, 648 A.2d 1, 8 (Pa. 1994)).
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cause. It reasoned that where “there is no dispute that an accident caused

physical injury to a plaintiff and the jury concludes that the defendant was 

negligent, then the weight of the evidence requires a finding that the 

defendant’s negligence was the factual cause of the plaintiff’s injuries.” Trial 

Court Opinion, 01/19/18, at 10-11.

The trial court also denied the Supanciks’ motions for JNOV and directed 

verdict, which was based on their contention that the negligence finding

determined that Robinson’s conduct was a factual cause of the accident as a 

matter of law. The trial court instead set aside the finding of negligence due 

to “serious questions as to how the verdict was reached.” Id. at 14-15.

The trial court explained that during deliberations, the jury had 

repeatedly asked about the definition of negligence. At one point, the jury 

even sent a note indicating that it was deadlocked. It was only after the trial 

court ordered the jury to continue deliberating that it found Robinson 

negligent. The trial court determined that the jury’s decision to find Robinson 

negligent but not a factual cause had to be a “compromise verdict.” Id. at

14. Because the verdict was inconsistent, the trial court ordered a new trial:

Given that the record fails to disclose that the verdict was "fairly 

determined" and "free from doubt," and where the record actually 

raises serious questions as to how the verdict was reached, this 

court cannot enter JNOV as to the liability question. Instead, the 

matter will proceed to a new trial on all issues.
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Id. at 14-15.

3 Both the Supanciks and Robinson appealed.4

II.

The parties in this case offer conflicting interpretations of the jury’s 

verdict that Robinson was negligent but that his negligence was not the factual 

cause of Kayla’s injuries. The heart of Robinson’s argument is that he could 

have been both negligent and not the factual cause of the accident if another 

party had been completely responsible. He asserts that he could have driven 

negligently without his conduct being a legal cause of the accident.

The Supanciks argue that the jury necessarily determined Robinson’s

liability in its negligence verdict making the separate verdict on factual cause 

superfluous. In short, the Supanciks and Robinson each claim that the 

respective verdicts in their favor must take precedence over the other.

The instructions and verdict slips provided to the jury in this case are 

central to the disposition of the present appeal. See Maya v. Johnson & 

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3 “Trial courts have broad discretion to grant or deny a new trial.” Harman 

ex rel. Harman v. Borah, 756 A.2d 1116, 1121–22 (Pa. 2000). 

Circumstances which justify the exercise of this discretion include when “the 

original trial, because of taint, unfairness or error, produces something other 

than a just and fair result, which, after all, is the primary goal of all legal 

proceedings.” Id.

4 The trial court also denied the Supanciks’ related post-trial claims that 

Robinson’s liability should have been decided as a matter of law and that the 

issue of Kayla’s contributory negligence should not have been presented to 

the jury. The trial court also denied without prejudice Robinson’s evidentiary 

claims, finding that they could only be addressed at the new trial.
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Johnson, 97 A.3d 1203, 1222 (Pa. Super. 2014) (“The law presumes that the 

jury will follow the instructions of the court.”). Here, the jury was instructed 

in part that a driver of a motor vehicle “is negligent” when:

 [He has] sufficient time to observe a child in a place of 

danger so as to allow the driver who is exercising due care 

a reasonable opportunity to avoid striking the child[.]

 [He] observes a child in a place of safety and there is a 

reasonable apprehension that the child will enter a place of 

danger, and there is sufficient time to observe the child so 

as to allow the driver who is exercising due care a 

reasonable opportunity to avoid striking the child[.]

Trial Transcript, 10/17/17, at 200-02. Further, the jury had to decide whether 

Robinson was negligent based on “the circumstances established by the 

evidence in this case.” Id. The parties did not dispute that all of Kayla’s 

injuries resulted from an accident involving a vehicle operated by Robinson.

The jury marked down Robinson as negligent in the verdict slip. As 

framed by the wording of the above instructions, the jury found that Robinson 

had a chance to avoid striking Kayla with his vehicle, but did strike her 

because he failed to exercise due care. However, the jury was also given 

a separate charge on factual cause which instructed that the element is 

satisfied if “the harm would not have occurred absent the conduct,” and “the 

conduct [was] an actual, real factor in causing the harm.” Id. at 202. The 

jury’s finding that Robinson was not the factual cause cannot be reconciled 

with its finding that his negligent driving caused the accident.
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The instructions and the jury’s understandable confusion resulted in an

inconsistent verdict as to liability. The trial court could not decide that issue

in favor of either party because “a substantial conflict” existed and the trial 

court would have abused its discretion by settling that jury question in the 

absence of an adequate verdict. In light of the jury’s inconsistent findings, 

the trial court granted the only remedy it could, an entirely new trial.

5

Gagliano v. Ditzler, 263 A.2d 319, 320 (Pa. 1970) (affirming order granting 

a new trial in a negligence action because liability was in dispute and “an 

apparently inadequate verdict was returned.”).

6

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 04/05/2019

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5 Robinson argues that since the Supanciks agreed to the instructions and 

verdict slips provided to the jury, they were estopped from seeking to set 

aside the factual cause verdict. However, the Supanciks clearly sought to 

establish Robinson’s liability as a matter of law throughout the trial 

proceedings and on appeal. The Supanciks did not acquiesce to an 

inconsistent verdict by agreeing to instructions and verdict slips which made 

that result possible.

6 Because we affirm the trial court’s order granting a new trial, we need not 

reach the other issues the parties raise in support of their respective appeals.