J-A24020-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

NICHOLL JACKSON, AN INCAPACITATED 

PERSON BY HER COURT APPOINTED COGUARDIANS, ARLENE HINKLE AND 

THERESA CAINES

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellants

v.

ALLEGHENY VALLEY SCHOOL

Appellee No. 3042 EDA 2014

Appeal from the Order Entered on September 25, 2014

In the Court of Common Pleas of Philadelphia County

Civil Division at No.: April Term, 2013 No. 5171

BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.: Filed December 18, 2015

Nicholl Jackson’s court appointed co-guardians Arlene Hinkle and 

Theresa Caines (collectively, “Appellants”) appeal the September 25, 2014 

order granting summary judgment in favor of Allegheny Valley School 

(“AVS”). We affirm. 

Nicholl Jackson suffers from profound intellectual disability.1 Jackson 

is non-verbal and has a prior well-documented history of seizures, 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 Although the parties refer to Jackson’s condition as profound “mental 

retardation,” see, e.g., Brief for Appellants at 5, we use the term 

“intellectual disability” to describe the identical phenomenon. See Hall v. 

Florida, 134 S. Ct. 1986, 1990 (2014) (noting that the most recent edition 

(Footnote Continued Next Page)
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maladaptive behaviors, and self-injury. In March 2011, Jackson was 

admitted to AVS, a non-profit residential facility for individuals with 

intellectual and developmental disabilities. AVS developed multiple 

treatment plans to manage Jackson’s various conditions and symptoms. For 

example, AVS completed a psychotropic medication review plan on March 

15, 2011, which provided as follows: 

[Jackson] is a 26-year-old female with profound [intellectual 

disability] and diagnoses of impulse control disorder and bipolar 

disorder. Target behaviors include SIB [(self-injurious 

behavior)], physical aggression, [and] physical disruption. She 

is described as impulsive with variable moods. She 

demonstrates self[-]injurious behaviors (striking self in face, 

scratching herself, and biting herself) multiple times daily. . . . 

[Jackson] also regularly demonstrates rectal digging, fecal 

smearing, pica,[2]and elopement. 

AVS’ Motion for Summary Judgment, 8/4/2014, at Exh. Q (minor 

modifications for clarity). 

On March 21, 2011, AVS also developed a behavior management plan 

targeted to Jackson’s pica. That plan called for Jackson to remain within a 

five-foot radius of an AVS staff member during all waking hours so that she 

(Footnote Continued) _______________________

of the Diagnostic and Statistical Manual of Mental Disorders adopts this 

terminology). 

2

Pica is defined as a tendency or craving to consume substances that 

have no nutritional value. For example, persons with pica may consume 

paper, clay, metal, chalk, soil, glass, or sand. See Pica (disorder), 

Wikipedia, https://en.wikipedia.org/wiki/Pica_(disorder) (last visited Dec. 8, 

2015). 
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could be reached quickly if she attempted to chew or ingest any non-edible 

objects. 

Jackson’s self-injurious behavior continued after her admission to AVS. 

On April 7, 2011, Jackson hit herself in the face with a cup at lunchtime, 

resulting in a laceration and bruise on her eyelid. Id. at Exh. R. One week 

later, an AVS nurse observed scattered bruises on Jackson’s arms, which 

were consistent with self-injury. Id. at Exh. S. On May 4, 2011, Jackson 

was seen by a physician after an AVS staff member noticed that Jackson’s 

hand was swollen and that she had a bruise on her left cheek. Both injuries 

were attributed to Jackson’s self-injury. Id. at Exh. T. 

On May 8, 2011, Appellants visited Jackson at AVS, and noticed 

bruising on her face, arms, and breasts. Jackson was taken to Nazareth 

Hospital. There, the emergency department physician noted bruising on 

Jackson’s cheek, hand, chest, and lower legs, and scratch marks on 

Jackson’s neck and back. The Philadelphia Police Department conducted an 

investigation into Jackson’s injuries and interviewed multiple AVS 

employees, but did not file any criminal charges. 

On May 11, 2011, Appellants removed Jackson from AVS. On May 3, 

2013, Appellants instituted this action against AVS on behalf of Jackson. In 

their complaint, Appellants alleged that AVS agents and/or employees 

abused and neglected Jackson during her residency at AVS, and that AVS 

was negligent in failing to prevent that abuse and neglect. 
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On June 21, 2013, AVS filed notice of its intent to enter a judgment of 

non pros due to Appellants’ failure to file a certificate of merit.3 In response, 

Appellants filed a motion to determine whether a certificate of merit was 

necessary in this case. Therein, Appellants explained as follows:

There are no allegations in [Appellants’] complaint of any 

deviation in medical professional standards regarding the care 

and treatment of [Jackson], but to the contrary, the allegations 

“sound” in ordinary negligence based upon [AVS’] failure to 

supervise the care and treatment of [Jackson] in such a way that 

would prevent any physical assault. 

* * * *

[Appellants’] only allegations are that [AVS] allowed [Jackson] to 

be assaulted and [that Jackson] suffered serious injury as a 

direct result thereof. . . . [Appellants’] complaint does not raise 

questions of medical judgment, medical care, or any actions 

involving diagnosis, care and treatment by licensed 

professionals. 

____________________________________________

3

Pa.R.C.P. 1042.3(a) requires plaintiffs in medical malpractice cases to 

file a certificate of merit, stating that either:

(1) an appropriate licensed professional has supplied a written 

statement that there exists a reasonable probability that the 

care, skill or knowledge exercised or exhibited in the treatment, 

practice or work that is the subject of the complaint, fell outside 

acceptable professional standards and that such conduct was a 

cause in bringing about the harm, or

(2) the claim that the defendant deviated from an acceptable 

professional standard is based solely on allegations that other 

licensed professionals for whom this defendant is responsible 

deviated from an acceptable professional standard, or

(3) expert testimony of an appropriate licensed professional is 

unnecessary for prosecution of the claim.

Pa.R.C.P. 1042.3(a). 
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Appellants’ Motion to Determine the Necessity of Filing a Certificate of Merit, 

7/1/2013, at 2-5 (emphasis in original). On August 15, 2013, the trial court 

ruled that Appellants were not required to file a certificate of merit. 

On August 4, 2014, after the completion of discovery, AVS filed a 

motion for summary judgment. In that motion, AVS argued that Appellants 

failed to produce any evidence establishing a prima facie case of negligence. 

AVS additionally argued that the immunity provisions of both the Mental 

Health Procedures Act and the Mental Health and Intellectual Disability Act 

preclude Appellants’ claims. See 50 P.S. §§ 7114 and 4603, respectively. 

On September 25, 2014, the trial court issued a memorandum opinion 

and order granting AVS’ motion for summary judgment. Therein, the trial 

court held that Appellants failed to demonstrate a prima facie case of 

negligence. The court noted that, “other than conjecture, it does not appear 

that any evidence has been put forth that any actual physical assault by a 

third party took place.” Trial Court Opinion (“T.C.O.”), 9/25/2014, at 1 

(emphasis in original). The trial court also held that the doctrine of res ipsa 

loquitur was not applicable to Appellants’ claim because they did not 

establish that Jackson’s injuries were “[of] a sort that normally would not 

have occurred in the absence of [AVS’] negligence.” Id. at 2.

On October 16, 2014, Appellants filed a notice of appeal. The trial 

court did not order Appellants to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellants did 

not file one. 
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Appellants present six issues for our consideration:

1. Whether there is sufficient evidence in the pre-trial record 

that raise [sic] any genuine questions of material fact to allow 

this case to proceed to trial?

2. Whether the doctrine of res ipsa loquitur is applicable?

3. Whether there was sufficient evidence is [sic] the pre-trial 

record to establish causation?

4. Whether this case is one of ordinary or professional 

negligence? 

5. Whether the Mental Health Procedure Act or Mental Health 

Retardation Act are [sic] applicable?

6. Whether Appellants could recover punitive damages?

Brief for Appellants at 4-5.4 

Appellants’ first four questions can be condensed into a single inquiry, 

to wit, whether Appellants adduced evidence sufficient to establish a prima 

facie case of negligence. Because we conclude that they did not, we need 

not discuss Appellants’ fifth and sixth issues. 

____________________________________________

4 We have reordered Appellants’ issues for ease of disposition. We also 

note that, although Appellants identify six distinct questions for our review, 

they do not correspondingly divide the argument section of their brief into 

six separate sections. Instead, Appellants’ argument section consists of five 

sections, some of which do not parallel any of Appellants’ questions 

presented. See, e.g., Brief for Appellants at 20 (section entitled “Nicholl 

Jackson’s self[-]injurious behavior”). Our Rules of Appellate Procedure 

require that the argument section be “divided into as many parts as there 

are questions to be argued.” Pa.R.A.P. 2119(a). Nonetheless, we will 

exercise our discretion to overlook this procedural error because it does not 

impede substantially our review of the merits of this appeal. See Pa.R.A.P. 

105(a), 2101.
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Our standard of review of a trial court’s order granting summary 

judgment is well settled: 

A reviewing court may disturb the order of the trial court only 

where it is established that the court committed an error of law 

or abused its discretion. As with all questions of law, our review 

is plenary. 

In evaluating the trial court’s decision to enter summary 

judgment, we focus on the legal standard articulated in the 

summary judgment rule. Pa.R.C.P. 1035.2. The rule states that 

where there is no genuine issue of material fact and the moving 

party is entitled to relief as a matter of law, summary judgment 

may be entered. Where the non-moving party bears the burden 

of proof on an issue, he may not merely rely on his pleadings or 

answers in order to survive summary judgment. Failure of a 

non-moving party to adduce sufficient evidence on an issue 

essential to his case and on which it bears the burden of proof 

establishes the entitlement of the moving party to judgment as a 

matter of law. Lastly, we will 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.

JP Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1261-62 (Pa. 

Super. 2013) (quoting Murphy v. Duquesne Univ. of the Holy Ghost, 

777 A.2d 418, 429 (Pa. 2001)). 

It is axiomatic that the mere occurrence of an injury, standing alone, 

is insufficient to establish a cognizable claim for negligence. McDonald v. 

Aliquippa Hosp., 606 A.2d 1218, 1220 (Pa. Super. 1992). A plaintiff must 

demonstrate the presence of a legal duty or obligation; a breach of that 

duty; a causal link between that breach and the injury alleged; and actual 

damage or loss suffered by the claimant as a consequence of thereof. Lux 

v. Gerald E. Ort Trucking, Inc., 887 A.2d 1281, 1286 (Pa. Super. 2005). 
J-A24020-15

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Although Appellants take note of these elements, see Brief for 

Appellants at 13, they do not point to any evidence of record that would 

allow a jury to conclude that Appellants demonstrated each of those 

elements. Instead, Appellants contend that the doctrine of res ipsa loquitur 

would allow the jury “to infer that the harm suffered was caused by the 

negligence of [AVS].” Id. at 14. We disagree. 

In instances of obvious negligence, i.e., circumstances in which the 

medical and factual issues presented are such that a lay juror could 

recognize negligence just as well as any expert, the doctrine of res ipsa 

loquitur5allows a fact-finder to infer from the circumstances surrounding the 

injury that the harm suffered was caused by the negligence of the 

defendant. Jones v. Harrisburg Polyclinic Hosp., 437 A.2d 1134, 1137 

(Pa. 1981). The doctrine applies whenever: 

(a) the event is of a kind which ordinarily does not occur in the 

absence of negligence;

(b) other responsible causes, including the conduct of the 

plaintiff and third persons, are sufficiently eliminated by 

the evidence; and

(c) the indicated negligence is within the scope of the 

defendant’s duty to the plaintiff. 

____________________________________________

5 The phrase res ipsa loquitur, translated from Latin, means “the thing 

speaks for itself.” Black’s Law Dictionary (9th ed. 2009). 
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Restatement (Second) of Torts § 328D(1) (1965); Gilbert v. Korvette, 

Inc., 327 A.2d 94, 100 (Pa. 1974) (adopting the Restatement’s formulation 

of res ipsa loquitur). 

Res ipsa loquitur merely is a shorthand expression for a rule of 

evidence that allows a jury to infer negligence and causation where the 

injury at issue is one that does not ordinarily occur in the absence of 

negligence. Bearfield v. Hauch, 595 A.2d 1320, 1322 (Pa. Super. 1991). 

Although res ipsa loquitur was intended to be a “far more realistic, logical, 

and orderly approach to circumstantial proof of negligence,” Gilbert, 327 

A.2d at 100, it has caused significant confusion.6 Stated simply, where a 

plaintiff proves all three of section 328D’s elements, the question of whether 

an inference of negligence should be drawn is for the jury. Leone v. 

Thomas, 630 A.2d 900, 901 (Pa. Super. 1993) (citing Restatement 

§ 328D(3)). 

Here, Appellants’ discussion of section 328D’s requirements consists 

entirely of conclusory assertions. For example, Appellants maintain that, 

____________________________________________

6 See William L. Prosser, Handbook of the Law of Torts § 39, at 213 

(4th ed. 1971) (“Res ipsa loquitur . . . has been the source of so much 

trouble to the courts that the use of the phrase itself has become a definite 

obstacle to any clear thought, and it might better be discarded entirely.”) 

(footnote omitted)); Potomac Edison Co. v. Johnson, 152 A. 633, 636 

(Md. 1930) (Bond, C.J., dissenting) (“It adds nothing to the law, has no 

meaning which is not more clearly expressed for us in English, and brings 

confusion to our legal discussions.”). 
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“[t]ypically, severe injuries to [incapacitated] person[s] do not occur absent 

some negligence.” Brief for Appellants at 15. However, it is less clear 

whether a person with Jackson’s medical history, which includes an 

extensive and well-documented pattern of self-injury, normally would suffer 

bodily injury absent the negligence of her caregivers. As explained supra, 

res ipsa loquitur allows a fact-finder to infer negligence only in the most 

obvious cases, where “the medical and factual issues presented are such 

that a lay juror could recognize negligence just as well as any expert.” 

Jones, 437 A.2d at 1137. This is not such a case. Cf. Fessenden v. 

Robert Packer Hosp., 97 A.3d 1225, 1231 n.7 (Pa. Super. 2014), appeal 

denied, 113 A.3d 280 (Pa. 2015) (holding that a jury can conclude, “as a 

matter of general knowledge,” that laparotomy sponges are not left inside of 

a patient’s abdomen after surgery absent negligence). 

Moreover, Appellants cannot rely upon res ipsa loquitur because they 

failed to eliminate “other responsible causes, including the conduct of the 

plaintiff.” Restatement (Second) of Torts § 328D(1) (1965). The 

Restatement explains as follows:

It is never enough for the plaintiff to prove that he was injured 

by the negligence of some person unidentified. It is still 

necessary to make the negligence point to the defendant. On 

this too the plaintiff has the burden of proof by a preponderance 

of the evidence; and in any case where there is no doubt that it 

is at least equally probable that the negligence was that of a 

third person, the court must direct the jury that the plaintiff has 

not proved his case. Again, however, the plaintiff is not required 

to exclude all other possible conclusions beyond a reasonable 

doubt, and it is enough that he makes out a case from which the 
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jury may reasonably conclude that the negligence was, more 

probably than not, that of the defendant. 

Restatement (Second) of Torts § 328D, cmt. f (1965). 

In Quinby v. Plumsteadville Family Practice, Inc., 907 A.2d 1061 

(Pa. 2006), our Supreme Court applied res ipsa loquitur to a case involving a 

quadriplegic patient who was left unaccompanied on a medical examination 

table, which lacked safety rails or other restraints, after a surgical 

procedure. The plaintiff fell from the examination table and suffered severe 

injuries, which purportedly resulted in his death. Finding that the evidence 

sufficiently eliminated other responsible causes of the plaintiff’s injuries, the 

Quinby Court explained as follows: 

[T]he critical inquiry as to whether this subsection of § 328D is 

satisfied is whether a particular defendant is the responsible 

cause of the injury. Jones, 437 A.2d at 1139. 

It is undisputed that there is no explanation for Decedent’s fall 

beyond Defendants’ negligence. No one else entered the 

examination room; the table did not break; nothing fell on or 

near it; there was no seismic disturbance in the area, etc. Given 

Decedent’s full-body paralysis, all agree that there was no way 

he could have been responsible for his fall. Indeed, his condition 

made it impossible for him to even understand how or why he 

fell. Thus, Quinby has established that the fall is not the type of 

event that occurs in the absence of negligence, and that there is 

no explanation other than Defendants’ negligence for the fall. 

Quinby, 907 A.2d at 1072-73 (some citations omitted). 

Even when viewed in the light most favorable to Appellants, the 

evidentiary record before us falls far short of establishing that AVS more 

probably than not was negligent. Appellants’ expert stated only that 
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Jackson’s injuries were caused by blunt trauma. He could not determine 

whether Jackson’s injuries were the result of abuse or neglect, or whether 

they were self-inflicted. Unlike in Quinby, where it was undisputed that no 

explanation other than the defendant’s negligence existed, Appellants’ own 

evidence clearly leaves open the possibility that Jackson’s injuries were selfinflicted. Because Appellants have not eliminated all “other responsible 

causes, including the conduct of the plaintiff,” as is required by section 328D 

of the Restatement, the trial court held correctly that the doctrine of res ipsa 

loquitur was not applicable to Appellants’ claims. 

Finally, Appellants argue that the trial court erred in entering summary 

judgment because AVS is liable for Jackson’s injuries regardless of their 

genesis. Appellants contend that, “while it could be determined by the jury 

that the injuries were the result of self-injurious behavior, this would 

nonetheless mean that AVS was negligent in permitting [Jackson] to injure 

herself.” Brief for Appellants at 15. This argument is unavailing, for several 

reasons. First, Appellants have offered no expert evidence to establish the 

applicable standard of care under these circumstances.7 Second, Appellants 

____________________________________________

7

Throughout their brief, Appellants imply that AVS had a duty to 

monitor Jackson one-on-one and to remain within a five-foot radius of 

Jackson at all waking hours. This language is found within multiple internal 

behavior management plans, which AVS drafted and used as a tool to 

monitor Jackson’s several coexisting behavioral disorders. Appellants have 

not demonstrated that AVS’ internal treatment plans are illustrative of the 

standard of care required under the circumstances, and, more importantly, 

(Footnote Continued Next Page)
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have not produced any evidence that AVS deviated from that standard of 

care. Third, since the earliest stages of this litigation, Appellants have 

maintained that their claims do not implicate AVS’ care and treatment of 

Jackson. Indeed, Appellants bypassed the requirement that plaintiffs in 

medical malpractice cases file a certificate of merit by arguing that:

[t]here are no allegations in [Appellants’] complaint of any 

deviation in medical professional standards regarding the care 

and treatment of [Jackson], but to the contrary, the allegations 

“sound” in ordinary negligence based upon [AVS’] failure to 

supervise the care and treatment of [Jackson] in such a way that 

would prevent any physical assault. 

* * * *

[Appellants’] only allegations are that [AVS] allowed [Jackson] to 

be assaulted and [that Jackson] suffered serious injury as a 

direct result thereof. . . . [Appellants’] complaint does not raise 

questions of medical judgment, medical care, or any actions 

involving diagnosis, care and treatment by licensed 

professionals. 

Appellants’ Motion to Determine the Necessity of Filing a Certificate of Merit, 

7/1/2013, at 2-5 (emphasis in original). Now, before this Court, Appellants 

endeavor to prosecute a professional liability claim against AVS. However, 

this theory of liability, just like Appellants’ ordinary negligence claim, lacks 

any evidentiary support. 

Appellants work backwards from the premise that AVS must be liable 

for Jackson’s injuries because those harms occurred during Jackson’s 

(Footnote Continued) _______________________

Appellants have failed to adduce any evidence of AVS’ noncompliance with 

its behavior management plans. 
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residency at AVS. However, it is well settled that the mere occurrence of an 

injury, standing alone, is insufficient to establish a cognizable claim for 

negligence. McDonald, 606 A.2d at 1220. “In fact, the trial court has a 

duty to prevent questions from going to the jury which would require it to 

reach a verdict based on conjecture, surmise, guess or speculation.” 

Krauss v. Trane U.S. Inc., 104 A.3d 556, 568 (Pa. Super. 2014). Based 

upon the factual inadequacies of the record in this case, the trial court did 

not err in concluding that AVS was entitled to judgment as a matter of law. 

See Murray, 63 A.3d at 1261 (“Failure of a non-moving party to adduce 

sufficient evidence on an issue essential to his case and on which it bears 

the burden of proof establishes the entitlement of the moving party to 

judgment as a matter of law.”). 

Order affirmed.

Judge Panella joins the memorandum.

Judge Strassburger files a dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/18/2015