Desher v. Se. Pa. Transp. Auth., 1529 C.D. 2018

• Decision Date: 27 June 2019
• Docket Number: No. 1529 C.D. 2018,1529 C.D. 2018
• Citation: 212 A.3d 1179
• Parties: Nicole DESHER (Guardian ad litem of Patrick Devlin), Appellant v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY (SEPTA)
• Court: Pennsylvania Commonwealth Court

212 A.3d 1179

Nicole DESHER (Guardian ad litem of Patrick Devlin), Appellant

v.SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY (SEPTA)

No. 1529 C.D. 2018

Commonwealth Court of Pennsylvania.

Argued June 6, 2019

Decided June 27, 2019

Robert S. Goggin, III, Philadelphia, for appellant.

Richard K. Hohn, Philadelphia, for appellee.

BEFORE: HONORABLE P. KEVIN BROBSON, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE ELLEN CEISLER, Judge

OPINION BY JUDGE BROBSON

Nicole Desher (Appellant), as guardian ad litem of Patrick Devlin (Devlin), appeals two orders of the Court of Common Pleas of Philadelphia County (trial court). Both orders arise from an action Appellant commenced in the trial court against the Southeastern Pennsylvania Transportation Authority (SEPTA), claiming damages under the statute known as the Federal Employers' Liability Act (FELA).¹ The first order, dated June 18, 2018, granted SEPTA's motion in limine to preclude the testimony of Appellant's expert witness. The second order, dated June 19, 2018, granted SEPTA's renewed motion for summary judgment and dismissed Appellant's case. For the reasons that follow, we affirm trial court' order granting summary judgment in favor of SEPTA.

I. BACKGROUND

At the time of the events giving rise to this case, SEPTA employed Devlin as a welder and rail maintainer. On the morning of October 20, 2014, two other SEPTA employees—Antonio Gonzalez (Gonzalez) and Lafayette Rhoads (Rhoads)—were working at SEPTA's Courtland Yard when they discovered Devlin slumped over in the cab of his welding truck. He was cyanotic, was not breathing, and had no pulse. Gonzalez called 911 from his cell phone, and the emergency dispatcher instructed the men to lay Devlin on the ground and begin CPR and rescue breathing. The two men removed Devlin from the truck, and Gonzalez immediately began to administer CPR and continued to do so until paramedics reached Devlin at 7:54 a.m.—eight minutes after Gonzalez's 911 call. Within two minutes of their arrival, the paramedics detected ventricular fibrillation in Devlin's heart and delivered a defibrillating shock using their own automated external defibrillator (AED). Although at some point during these events someone retrieved and brought to Devlin's location an AED kept in a building within 100 yards of where Devlin was discovered, no one used that AED to treat Devlin before the paramedics arrived. Devlin survived, but his cardiac arrest interrupted the oxygen supply to his brain, causing an anoxic brain injury. That injury impairs Devlin's cognitive and physical functions and renders him incapable of independent living.

The record in this matter also establishes that beginning in 2007 and continuing to the present, SEPTA has had in force an AED policy as part of its Accident and Illness Prevention Program (AIPP). The AIPP directs the placement of 62 AEDs at various SEPTA facilities and provides for maintenance and inspection of AEDs and ongoing training for five employees per AED. (Reproduced Record (R.R.) at 248a.) SEPTA's assistant general manager of safety testified in another proceeding that SEPTA's practice has been to provide AED training to at least one employee per shift at each AED location. (Id. at 230a-31a, 235a-36a.) A former SEPTA employee involved in the implementation of the AIPP avers that employees on each shift were to be informed of the location of the AED at their facility and of the identities of their co-workers who had been trained in its use. (Id. at 252a.)

Appellant filed an action with the trial court, seeking to recover damages for Devlin's injury under the FELA² and alleging that SEPTA failed to meet the proper standard of care by failing to implement the AIPP. Appellant argues that SEPTA's fundamental duty under the FELA to provide its employees with a reasonably safe place to work includes a duty to implement safety rules to address foreseeable harm and that the AIPP is such a safety rule. Appellant further alleges that SEPTA breached that duty by failing to train its employees adequately pursuant to the AIPP.

In anticipation of trial, Appellant secured the expert testimony of Franklin A. Darius (Darius) concerning SEPTA's failure of its alleged duty. Darius' testimony was to include, inter alia , discussion of a first aid regulation promulgated by the Occupational Safety and Health Administration (OSHA), which provides: "In the absence of an infirmary, clinic, or hospital in near proximity to the workplace which is used for the treatment of all injured employees, a person or persons shall be adequately trained to render first aid. Adequate first aid supplies shall be readily available." 29 C.F.R. § 1910.151(b). Darius was to testify that this regulation requires, at a minimum, consideration of AEDs, based on a nonbinding OSHA best-practice publication which provides: "[AEDs] should be considered when selecting first-aid supplies and equipment."³ Darius was to testify that SEPTA failed to implement the AIPP in a manner consistent with the intent of OSHA regulations and also that SEPTA did not fulfil its duty under the FELA.

SEPTA filed a motion in limine to prevent Darius from testifying. The trial court heard oral argument regarding that motion (and 37 other pending motions in limine in this matter) and ultimately granted the motion on June 18, 2018. In a subsequent Pa. R.A.P. 1925(a) opinion, the trial court explained that it precluded Darius' testimony on the grounds that his testimony would be highly prejudicial to SEPTA and have minimal probative value because the OSHA regulations do not, by their terms, require AEDs.

Appellant also secured evidence concerning SEPTA's implementation of the AIPP. Appellant deposed Rhoads and Gonzalez concerning their experiences with the AIPP prior to Devlin's injury. Rhoads, employed by SEPTA at the Courtland Yard for about 12 years before these events,⁴ testified that SEPTA had never informed him of the presence of an AED at the Courtland Yard and that he became aware of it only "after all of it was over." (R.R. at 324a.) Gonzalez, who had worked at the Courtland Yard for six years before these events, testified that he was aware of the presence of an AED at the Courtland Yard, but he added that SEPTA had never informed him of the identities of his co-workers who had been trained in its use and that he did not recall SEPTA definitively communicating the AED's location to him. (Id. at 253a-54a.)

Following the trial court's rulings on various pretrial matters, SEPTA made a renewed motion for summary judgment. The trial court granted summary judgment because it concluded that SEPTA's FELA duty did not include "anticipating [Appellant's] heart attack[,] nor did it mandate providing assistance to him in the form of the use of an AED." (Br. for Appellant, trial court op. at 11.) Essentially, the trial court's conclusion rests on two determinations, both set forth in its Rule 1925(a) opinion: (1) the AIPP is not a "safety rule" which SEPTA has a duty to enforce under the FELA (id. at 10.); and (2) Appellant "failed to show that [SEPTA] had failed to enforce the language of [the AIPP]."⁵ (Id. )

II. ISSUES

On appeal to this Court, Appellant raises three issues: (1) whether the trial court, in granting summary judgment, erred in concluding that SEPTA did not owe a duty to implement the AIPP properly as part of its duty to provide a reasonably safe workplace under the FELA; (2) whether the trial court, in granting summary judgment, erred in deciding on its own, rather than allowing a jury to decide, whether Appellant showed that SEPTA breached its duty under the FELA by failing to implement the AIPP properly; and (3) whether the trial court erred in granting SEPTA's motion in limine to preclude Darius' testimony. SEPTA, in part, responds that Appellant waived these issues on appeal. We first address the question of waiver followed by the issues pertaining to the grant of summary judgment. We address last the issue pertaining to SEPTA's motion in limine , because our analysis of SEPTA's duty as set forth in our summary judgment discussion bears on our disposition of whether the trial court erred in granting SEPTA's motion in limine .

III. DISCUSSION

A. Waiver

SEPTA first argues that Appellant has waived all issues on appeal because the language Appellant used to raise those issues in its brief differs from the language it used in its Pa. R.A.P. 1925(b) statement. Specifically, SEPTA maintains that the inclusion of the phrase "safety rule" in Appellant's Brief—a phrase which does not appear in Appellant's Rule 1925(b) statement—raises a novel issue which should not be considered on appeal. Additionally, SEPTA asserts that "[t]he listed issues in [Appellant's Rule] 1925(b) [s]tatement should, furthermore, be found waived due to vagueness." (Br. for Appellee at 18.) SEPTA does not further develop these waiver arguments.

A party's failure to include an issue in its Rule 1925(b) statement waives that issue on appeal. Pa. R.A.P. 1925(b)(4)(vii). Importantly, however, "[e]ach error identified in the [ Rule 1925(b) s]tatement will be deemed to include every subsidiary issue which was raised in the trial court." Pa. R.A.P. 1925(b)(4)(v). Here, the issues of duty and breach as related to a "safety rule" are subsidiary to the issue of negligence, which Appellant raised, concisely but clearly, in the Rule 1925(b) statement. Before the trial court, Appellant discussed the "safety rule" concept, and SEPTA responded at length with its own arguments on that very issue. (See R.R. at 339a-42a.) Furthermore, the language of Appellant's Rule 1925(b) statement is not vague; it is appropriately concise, given the mandate that the statement "should not be redundant or provide lengthy explanations as to any error." Pa. R.A.P. 1925(b)(4)(iv). Appellant did not, therefore, waive any argument by crafting a brief that focuses on issues subsidiary to the larger issue of negligence that Appellant preserved.

B. Summary Judgment

A...