Intihar v. Bostian

• Docket Number: 500 WDA 2022,J-A08024-23
• Decision Date: 08 September 2023
• Parties: SUZETTE M. INTIHAR Appellant v. BRETT E. BOSTIAN, WAL-MART STORES EAST, L.P.; WAL-MART REAL ESTATE BUSINESS TRUST; AND WAL-MART, INC.
• Court: Pennsylvania Superior Court

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SUZETTE M. INTIHAR Appellant v. BRETT E. BOSTIAN, WAL-MART STORES EAST, L.P.; WAL-MART REAL ESTATE BUSINESS TRUST; AND WAL-MART, INC.

No. 500 WDA 2022

No. J-A08024-23

Superior Court of Pennsylvania

September 8, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

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

SULLIVAN, J.

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 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.

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.

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. Wal-Mart 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 Wal-Mart'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 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, 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 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-in-fact 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 so-called 'philosophic sense,' yet the effect of many of them is so insignificant that no ordinary mind would think of them as causes."

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...