J-A08024-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

SUZETTE M. INTIHAR 

Appellant

v.

BRETT E. BOSTIAN, WAL-MART 

STORES EAST, L.P.; WAL-MART REAL 

ESTATE BUSINESS TRUST; AND 

WAL-MART, INC.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 500 WDA 2022

Appeal from the Order Entered April 6, 2022

In the Court of Common Pleas of Cambria County Civil Division at No(s): 

2020-2500

BEFORE: STABILE, J., SULLIVAN, J., and PELLEGRINI, J.*

MEMORANDUM BY SULLIVAN, J.: FILED: September 8, 2023

Suzette M. Intihar (“Intihar”) appeals from the order granting summary 

judgment in favor of Wal-Mart Stores East, L.P., Wal-Mart Real Estate 

Business Trust, and Wal-Mart, Inc. (collectively, “Wal-Mart”) in Intihar’s 

personal injury action.

1

 We affirm. 

Intihar’s personal injury action arises from an accident that occurred in 

front of a Wal-Mart Supercenter (“the store”). Intihar left the store and was

walking in the crosswalk to the store’s parking lot when Brett E. Bostian 

(“Bostian”) struck her with his motor vehicle. See Intihar’s Complaint, 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 The trial court’s order granting Wal-Mart’s summary judgment motion did

not dispose of all claims between all parties in Intihar’s personal injury action. 

See Pa.R.A.P. 341(b)(1). However, as discussed below, the trial court timely 

certified the order for an immediate appeal. See Pa.R.A.P. 341(c). 
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7/6/20, at 3 (unnumbered); see also Intihar’s Deposition Exhibit 11; 

Bostian’s Deposition Exhibit 14.

2

 The paint for the crosswalk’s markings and

instruction to “YIELD” on the roadway was faded. See Intihar’s Deposition

Exhibit 7. There was a yellow “pedestrian crossing” street sign on the curb by 

the crosswalk where the accident occurred. See Intihar’s Deposition, Part I, 

3/26/21, at 45; Intihar’s Deposition, Part II, 4/1/21, at 281-82. 

Bostian remained at the scene and told a police officer that he looked 

away from the roadway before the accident because he thought he heard 

someone call his name. See Bostian’s Deposition, 4/29/21, at 29-31; see 

also Bostian’s Deposition Exhibit 16. Intihar suffered injuries to her leg, foot, 

and knee, including a “[c]omminuted and displaced left tibial plateau.” 

Intihar’s Complaint, 7/6/20, at 3-4. Intihar underwent surgery and spent four 

days in the hospital after the accident. See Intihar’s Deposition, Part II, 

4/1/21, at 197-99. 

Intihar filed a complaint asserting Bostian’s negligent operation of his 

vehicle and Wal-Mart’s negligent design and maintenance of its premises. 

Wal-Mart and Bostian filed separate answers and new matter, as well as 

crossclaims against each other. 

____________________________________________

2 Surveillance cameras recorded the accident and showed two cars passing 

through the crosswalk as Intihar left the store and approached the crosswalk. 

See Intihar’s Deposition Exhibit 11; Bostian’s Deposition Exhibit 14; see also

Bostian’s Deposition, 4/29/21, at 77-81. Moments after the second car passed 

through the crosswalk, Intihar entered the crosswalk, and Bostian struck 

Intihar. See Bostian’s Deposition, 4/29/21, at 55-59, 77-81.
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During discovery, Intihar produced a preliminary letter report from Brad 

Avrit, P.E. (“Avrit”), a civil engineer. Avrit concluded the installation of “traffic 

calming devices,” such as stop signs, could have prevented the accident. 

Letter Report from Brad Avrit, P.E., 12/15/21 at 7 (“Avrit’s report”).

3

 Intihar 

and Bostian subsequently testified at depositions.4 At his deposition, Bostian 

testified he was familiar with store and believed, mistakenly, there were stop 

signs on the roadway at the marked pedestrian crossings in front of the store. 

See Bostian’s Deposition, 4/29/21, at 25. He asserted he thought he had 

stopped, or would have stopped but got distracted immediately before the 

accident because he thought he heard someone call his name and looked away 

from the crosswalk. See Bostian’s Deposition, 4/29/21, at 26-27, 35, 69. 

____________________________________________

3 There had been a total of five accidents involving pedestrians struck in the 

parking lot of the store in the three years before the present accident, two of 

which occurred in the crosswalk. See Avrit’s Report at 6. According to Intihar, 

one of those reports concerned an earlier accident at a different crosswalk by

the same store. Intihar alleged that Wal-Mart subsequently placed stop signs 

at the site of the earlier accident. She also asserted Wal-Mart did the same 

shortly after her accident. The trial court did not rule on Wal-Mart’s assertion 

that evidence of its subsequent remedial measures would be inadmissible. 

See Wal-Mart’s Reply Brief in Support of Summary Judgment, 3/24/22, at 4; 

see also Pa.R.E. 407 (noting that evidence of subsequent remedial measures 

is not admissible to prove negligence, culpable conduct, defects in a design, 

or the need for warning or instructions, but a court may admit such evidence 

for other purposes). 

 

4 At her deposition, Intihar testified that she and Bostian had made eye contact 

just as she entered the crosswalk, but that Bostian proceeded to strike her as 

she was in the crosswalk. See Intihar’s Deposition, Part I, 3/26/21, at 57-58.
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Bostian maintained he did not see Intihar until just before impact. See id. at 

26-27, 35.

5

 

Wal-Mart moved for summary judgment arguing, in part, that it did not 

proximately cause Intihar’s injuries. See Wal-Mart’s Motion for Summary 

Judgment, 2/11/22, at 7. Wal-Mart asserted Bostian’s statement to police 

and his deposition testimony were consistent and uncontradicted and

established Bostian struck Intihar because he looked away from the crosswalk 

when he thought he heard someone call his name. See id. at 5-6, 8. WalMart further argued Avrit’s report did not raise a genuine issue of material fact 

because Avrit ignored Bostian’s testimony concerning his familiarity with the 

roadway, his belief that he thought he needed to stop regardless of the type 

of sign posted at the crosswalk, and his claim that he would have stopped but 

for the distraction caused when he thought someone called his name. See

id. at 6, 11. Intihar answered and generally denied Wal-Mart’s 

characterizations of the record. Intihar maintained that the installation of a 

stop sign could have prevented the accident, and relied on Avrit’s conclusion 

that Wal-Mart’s failure to erect or install reasonable safety measures was a 

substantial contributing factor in the accident. See Intihar’s Answer to WalMart’s Motion for Summary Judgment, 3/9/22, at 8-9 (unnumbered). 

The trial court heard arguments on Wal-Mart’s motion and, on April 6, 

2022, granted Wal-Mart’s motion for summary judgment. The court reasoned 

____________________________________________

5 Wal-Mart produced recordings and still pictures from surveillance cameras 

at the front of the store. 
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that Bostian’s distracted driving was the sole cause of the accident and Avrit’s 

report failed to establish genuine issues of material fact concering whether 

Wal-Mart proximately caused the accident. See Trial Court Opinion, 7/7/22, 

at 11-15. Intihar timely filed a motion to amend the order granting Wal-Mart’s 

summary judgment motion to include a determination of finality,6 which the 

court granted on April 21, 2022. See Pa.R.A.P. 341(c). Intihar timely 

appealed. Both Intihar and the trial court complied with Pa.R.A.P. 1925. 

Intihar raises the following issues for review: 

A. Whether the trial court erred in granting summary judgment in 

favor of [Wal-Mart]?

B. Whether the trial court erred in concluding that Wal-Mart’s 

actions and/or inactions were not the proximate cause of 

[Intihar’s] injuries[?]

C. Whether the trial court erred in concluding that [Bostian] was 

solely responsible for the harm suffered by Intihar?

D. Whether the trial court erred by substituting its own judgment 

as to the allocation of fault between [Wal-Mart and Bostian] 

rather than allowing a jury to make that determination?

Intihar’s Brief at 5 (some capitalization omitted).

Intihar’s issues challenge the trial court’s order granting summary 

judgment in favor of Wal-Mart. This Court’s standard of review requires that 

we reverse a grant of summary judgment only if the trial court commits an 

error of law or abuses its discretion. See Truax v. Roulhac, 126 A.3d 991, 

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6

Intihar, in seeking a certification of finality pursuant to Pa.R.A.P. 341(c), 

asserted that she and Bostian entered into a pro rata joint tortfeasor release 

that released Bostian from all claims in the matter. See Intihar’s Motion to 

Amend Order, 4/21/22, at 3 (unnumbered). 
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996 (Pa. Super. 2015) (en banc). Our scope or review is plenary, and we 

must examine the entire record. See Donegal Mut. Ins. Co. v. Fackler, 

835 A.2d 712, 715 (Pa. Super. 2003). 

It is well settled that “summary judgment is appropriate only in those 

cases where the record clearly demonstrates that there is no genuine issue of 

material fact and that the moving party is entitled to judgment as a matter of 

law.” See Truax, 126 A.3d at 996 (internal citation and quotations omitted). 

“[A] record that supports summary judgment either (1) shows the material 

facts are undisputed or (2) contains insufficient evidence of facts to make out 

a prima facie cause of action or defense.” Olszewski v. Parry, 283 A.3d 

1257, 1263 (Pa. Super. 2022) (internal citation omitted) (italics added). A 

court must examine the factual record of a case in a light most favorable to 

the non-moving party. See Brown v. City of Oil City, 294 A.3d 413, 427 

(Pa. 2023). This includes expert reports. See Bourgeois v. Snow Time, 

Inc., 242 A.3d 637, 652 (Pa. 2020) (noting that a court may not sua sponte

undermine an expert’s opinion if there is sufficient support for the expert’s 

conclusion). 

To establish a claim of negligence, a plaintiff must prove: (1) that the 

defendant owed her a duty of care; (2) the defendant breached that duty; (3) 

causation between the conduct and the resulting injury; and (4) actual 

damage to the plaintiff. See Newell v. Montana West, Inc., 154 A.3d 819, 

822 (Pa. Super. 2017). To establish a prima facie case of negligence, the 

plaintiff must establish a causal connection between defendant’s conduct and 
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the plaintiff’s injury, even when the record demonstrates the defendant 

breached a duty of care owed to the plaintiff. See Hamil v. Bashline, 392 

A.2d 1280, 1284 (Pa. 1978); Straw v. Fair, 187 A.3d 966, 993 (Pa. Super. 

2018). 

Causation has two components: (1) cause-in-fact and (2) legal or 

proximate cause. See Pomroy v. Hosp. of University of Pennsylvania, 

105 A.3d 740, 745 (Pa. Super. 2014) (internal citation omitted). Cause-infact means that the plaintiff would not have suffered a harm “but-for” the 

defendant’s alleged negligence. See First v. Zem Zem Temple, 686 A.2d 

18, 21 n.2 (Pa. Super. 1996). Proximate cause requires that the defendant 

be a “substantial factor” in bringing about the harm suffered by the plaintiff. 

Straw, 187 A.3d at 993 (internal citation omitted). 

As explained by our Supreme Court, proximate cause

involves the making of a judgment as to whether the defendant’s 

conduct although a cause in the “but for” sense is so insignificant 

that no ordinary mind would think of it as a cause for which a 

defendant should be held responsible. Section 431, comment a, 

Restatement [(Second) of Torts], explains the distinction between 

substantial cause and cause in fact as follows:

“The word ‘substantial’ is used to denote the fact that the 

defendant’s conduct has such an [e]ffect in producing the 

harm as to lead reasonable men to regard it as a cause, 

using that word in the popular sense, in which there always 

lurks the idea of responsibility, rather than in the so-called 

‘philosophic sense,’ which includes every one of the great 

number of events without which any happening would not 

have occurred. Each of these events is a cause in the socalled ‘philosophic sense,’ yet the effect of many of them is 

so insignificant that no ordinary mind would think of them 

as causes.”
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Ford v. Jeffries, 379 A.2d 111, 114 (Pa. 1977) (internal citations omitted). 

“[T]he 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.” 

Straw, 187 A.3d at 994 (internal citation and quotations omitted). Factors 

relevant to the consideration of proximate cause include: “the number of other 

factors which contribute in producing the harm and the extent of the effect 

which they have in producing it”; “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; and the “lapse of time.” 

Id. at 994-95 (quoting Restatement (Second) of Torts § 433.)

More than one cause may contribute to and thus proximately cause an 

injury. See id. at 995. However, a co-defendant, like Wal-Mart, is not liable 

to the plaintiff where a third-party co-defendant, like Bostian, is a 

“superseding cause” of the plaintiff’s injury. To constitute a superseding 

cause, the third party’s conduct must be so extraordinary that the defendant 

could not foresee it. See id. Thus,

[i]f 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.
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Id. at 995-96 (internal citation, quotations, and brackets omitted). The 

negligence of the third-party will not relieve the defendant of liability if the 

defendant created the risk of a particular harm and was a substantial factor 

in causing the harm. See id. at 995. 

Determinations of whether the defendant’s conduct was a substantial 

factor and whether a third party’s conduct was “extraordinary” are ordinarily

matters for the finder of fact at trial. See id.; Ford, 379 A.2d at 114. A court 

properly enters summary judgment only where “the facts are so clear that 

reasonable minds could not differ . . ..” Kvaerner Metals Div. of Kvaerner 

U.S., Inc. v. Commercial Union Ins. Co., 908 A.2d 888, 896 (Pa. 2006) 

(internal citation omitted). 

We summarize Intihar’s arguments in this appeal together because they 

are related to the trial court’s conclusion that Bostian was the sole cause of 

the accident and Wal-Mart’s negligence in the design of the crosswalk was not 

a proximate cause. Intihar initially asserts Wal-Mart knew, or should have 

known, that the crosswalk where Bostian struck Intihar was defective, the 

crosswalk constituted a safety hazard for its customers entering and leaving 

the store, and the posting of stop signs could have prevented the accident. 

See Intihar’s Brief at 16-17. 

As to the causation, Intihar argues Bostian’s careless driving was a 

foreseeable risk that did not relieve Wal-Mart of liability because the design of 

the roadway increased the risk of similar accidents occurring. See id. at 18-

20. She asserts the fact that Wal-Mart placed stop signs at the crosswalk 
J-A08024-23

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after prior accidents would allow a reasonable jury to conclude that Wal-Mart

was a substantial factor in bringing about her injuries. See id. at 21. She 

further contends that “[t]raffic calming devices would have caused vehicle 

traffic in front of Mr. Bostian to stop before the crosswalk, would have alerted 

Mr. Bostian to his duty and obligation to stop before the crosswalk, and would 

have prevented the injuries and damages to [her].” Id. at 22.7 She maintains 

that Avrit’s opinion that the accident would not have occurred had Wal-Mart 

installed appropriate traffic calming devices raised a genuine issue of material 

fact concerning causation and any issues concerning Avrit’s methodology, 

analyses, and conclusions were subjects of cross-examination that went to the 

weight of his opinion. See id. at 28-29, 31. 

The trial court, in its Rule 1925(a) opinion, concluded Intihar failed to 

establish a genuine issue or material fact that additional or different signage,

safety designs, or features would have prevented the accident. See Trial 

Court Opinion, 7/7/22, at 12-13. The court reasoned that Bostian’s deposition 

testimony that he only failed to see and stop for Intihar due to his own 

inattentiveness established that Bostian was the sole cause of the accident. 

____________________________________________

7

Intihar also argues the trial court violated Borough of Nanty-Glo v. 

American Surety Co. of New York, 163 A. 523, 524 (Pa. 1932), which 

prohibits a court from entering judgment as a matter of law based exclusively 

on oral testimony, when the court considered Bostian’s deposition testimony. 

See Intihar’s Brief at 25-28. Intihar did not preserve a Nanty-Glo objection 

in her answer to Wal-Mart’s motion for summary judgment. Therefore, we 

find this claim waived. See Krentz v. Consolidated Rail Corp., 910 A.2d 

20, 37 (Pa. 2006) (discussing waiver of a Nanty-Glo issue on appeal); 

Lineberger v. Wyeth, 894 A.2d 141, 149 (Pa. Super. 2006) (same). 
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Id. at 12. The court further concluded Avrit’s report did not raise “material 

questions” concerning causation. See id. at 13-15. The court explained that 

Avrit opined that additional traffic control signals, such as stop signs, could 

have prevented the accident, but Bostian testified that he believed a stop sign 

already governed the crosswalk. The court emphasized that “Avrit’s report 

fail[ed] to take into consideration” Bostian’s deposition testimony that he 

struck Intihar because he got “distracted” when he believed someone had 

called his name and turned his head away from the direction of the crosswalk. 

Id. at 13-14. According to the court, even if Walmart installed stop signs as 

Avrit recommended, Bostian’s deposition testimony established that he would 

not have seen them because of the distraction. See id. at 15. The court, 

among other reasons,8 concluded that a reasonable finder of fact could not 

find Wal-Mart’s design of the parking lot was a proximate cause of Intihar’s 

injuries. See id.

Our review of the record and Intihar’s arguments compels us to conclude 

that no relief is due. As discussed by the trial court, the record demonstrates 

____________________________________________

8 We note that the trial court, when discussing Avrit’s report, cited case law 

concerning the competence of an expert opinion and several factors cited by 

Wal-Mart that would affect the weight of the Avrit’s opinion. See Trial Court 

Opinion, 7/7/22, at 13-14 (discussing the Avrit’s report’s lack of foundation 

and Avrit’s failure to cite applicable industry standards or studies 

demonstrating that stop signs would be superior to yield signs). We disagree 

with the trial court that these factors merited summary judgment. See 

Bourgeois, 242 A.3d at 658 (concluding that this Court erred by failing to 

view expert reports in a light most favorable to the non-moving party and 

disregarding the reports because they failed to define industry standards).

 
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that the critical force giving rise to the accident was Bostian’s belief that he 

heard someone call his name, and there was no indication that additional or 

different signage or markings could have prevented the specific accident

injuring Intihar.

9

 

We acknowledge, as did the trial court, Intihar’s production of Avrit’s

report opining that “Bostian’s careless driving could have potentially been 

ameliorated with a reasonably designed parking lot that included appropriate 

traffic calming devices” and “had such additional traffic calming measures 

been in place, the subject incident would likely have been avoided altogether.” 

Avrit’s Report, 12/15/21, at 7; see also Trial Court Opinion, 7/7/22, at 13-

15. In support of these conclusions, Avrit opined regarding Wal-Mart’s duties 

to maintain the store’s parking lot to (1) “[m]inimize the number of decisions 

a driver needs to make so it reduces the risk of not seeing one thing because 

their attention is distracted by multiple other threats that need to be 

avoided[;]” and (2) “[i]nstall and maintain adequate traffic control or traffic 

calming devices to slow traffic down so there is more time to perceive and 

____________________________________________

9

Intihar does not dispute the evidence that Bostian looked away from the 

crosswalk when he believed he heard someone calling his name. Moreover, 

although there is some indications that Intihar and Bostian may have seen 

each other before Intihar entered the crosswalk and Bostian had been 

following several cars that passed through the crosswalk before the accident, 

Intihar does not develop arguments based on those facts in her arguments 

before this Court; nor did she do so in response to Wal-Mart’s motion for 

summary judgment before the trial court. We recognize this Court’s plenary 

scope of review requires consideration of the entire record. See Fackler, 835 

A.2d at 715. At the same time, we may not develop arguments on behalf of 

an appellant. See 9795 Perry Highway Mgmt., LLC v. Bernard, 273 A.3d 

1098, 1103 (Pa. Super. 2022), appeal denied, 289 A.3d 888 (Pa. 2022). 
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react to all potential threats.” Avrit’s Report, 12/15/21, at 4. Avrit noted, 

“Slowing traffic down gives a driver more time to make decisions (particularly 

when faced with multiple decisions at specific points in the parking lot) and 

avoid all potential threats or interference.” See id. 

Turning to the specifics of the accident that injured Intihar, Avrit noted 

that around the location of the accident, a driver faced “multiple specific 

decisions all at once[,]” including: (1) clearing vehicular traffic from the 

driver’s left; (2) clearing pedestrian traffic in the upcoming crosswalk; (3) 

clearing pedestrian traffic going to and coming from the parking lot from 

multiple directions; and (4) looking for a parking space. Id. Avrit asserted 

because a driver needed to “have their head on a swivel” to take in the 

information and make multiple decisions at one, and without adequate traffic 

controls, it was foreseeable that a pedestrian would go unnoticed. Id. at 5. 

Avrit noted that the lack of sufficient traffic calming measures created “a high 

risk of pedestrian-vehicle interactions which are specifically dangerous for 

pedestrians.” Id. at 6. Avrit proceeded to opine that that “[t]raffic control 

devices, such as stop signs, are means” to clearly communicate the intentions 

of drivers and pedestrians, reduce the speed of traffic, and “significantly 

increases the ability/likelihood of a driver to observe and avoid potential 

hazards such as pedestrians cross through” the driver’s path of travel. Id.

Thus, Avrit’s specific opinions and conclusions were based on a general 

theory that complex decisions a typical driver confronts when driving in front 

of the store. Despite indicating that he reviewed Bostian’s deposition, 
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moreover, Avrit formed no opinions based on the specific and somewhat 

atypical facts of this case. Avrit made no mention of Bostian’s familiarity 

with the parking lot, Bostian’s belief, albeit mistaken, that his movement was 

already controlled by stop signs. Critically, Intihar presented no evidence that 

any of the multiple decisions Avrit discussed caused Bostian’s failure to 

perceive Intihar or stop for the pedestrian crosswalk. Rather, it was Bostian’s 

reflexive reaction to believing someone called his name that caused him to 

look away from the roadway. Based on this record, we agree with the trial 

court that Avrit’s report did not have a sufficient basis in the record to raise a 

genuine issue of material fact that the absence of a traffic control device, such 

as a stop sign, either caused or increased the risk of Bostian failing to see 

Intihar, failing to stop at the crosswalk, and ultimately striking Intihar when 

she in the crosswalk. 

In sum, Intihar’s evidence did not establish genuine issues of material 

facts causally linking the allegedly defective traffic controls to this unfortunate 

accident. Accordingly, she did not establish a prima facie claim of negligence 

against Wal-Mart. Finding no error or abuse of discretion in the trial court’s 

order granting summary judgment in favor of Wal-Mart, we affirm. 

Order affirmed. 

Judge Pellegrini joins this memorandum.

Judge Stabile concurs in the result.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/8/2023