Chapman v. Chaon et al

Filing 37

MEMORANDUM (Order to follow as separate docket entry) For the reasons discussed above, we conclude Defendants Motion for Summary Judgment (Doc. 20) is properly granted. An appropriate Order is entered simultaneously with this Memorandum. (See Memorandum) re 20 MOTION for Summary Judgment filed by Terex Corporation Signed by Honorable Richard P. Conaboy on 9/9/14. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FRANK CHAPMAN,

:
:CIVIL ACTION NO. 3:13-CV-0885
Plaintiff,
:
:(JUDGE CONABOY)
v.
:
:
JERRY CHAON and TEREX,
:
CORPORATION,
:
:
Defendants.
:
:
___________________________________________________________________
MEMORANDUM
Here we consider Terex Corporation’s Motion for Summary
Judgment (Doc. 20) filed on June 30, 2014, and accompanied by a
supporting brief (Doc. 21).1

Defendant’s statement of material

facts is filed as part of its motion.

(Doc. 20 at 3-6.)

Plaintiff

filed his answer to the statement of material facts (Doc. 26) and
opposition brief (Doc. 27) on August 14, 2014, after having
requested and received an extension of time within which to do so
(Docs. 22, 23).
2014.

(Doc. 28.)

Defendant filed its reply brief on August 28,

for disposition.

Therefore, this matter is fully briefed and ripe
For the reasons discussed below, we conclude

Defendant’s motion is properly granted.
I. Background
Plaintiff Frank Chapman (“Plaintiff”) was injured in a
workplace incident that occurred at a jobsite located on State

1

Terex Corporation is the only remaining Defendant in this
case, Defendant Jerry Chaon having been dismissed by stipulation on
April 10, 2014. (Doc. 19.)

Route 6 in Tunkhannock Township, Pennsylvania.

(Def.’s St. Mat.

Facts ¶ 1, Doc. 20 at 3; Pl.’s Ans. St. Mat Facts ¶ 1, Doc. 26 at
1.)

At the time, Plaintiff was an operating engineer for Fahs

Construction and was at the jobsite preparing for a deck pour.
(Def.’s St. Mat. Facts ¶¶ 2-3, Doc. 20 at 3; Pl.’s Ans. St. Mat
Facts ¶¶ 2-3, Doc. 26 at 1.)

The machine used for the job was a

piece of new equipment–-a Terex Bid-well 3600 bridge paver-recently sold to Fahs Construction.

(Def.’s St. Mat. Facts ¶ 4,

Doc. 20 at 3; Pl.’s Ans. St. Mat Facts ¶ 4, Doc. 26 at 1.)
Defendant avers that Plaintiff has operated a sister machine many
times previously and reported that he knew how to operate the Bidwell 3600.

(Def.’s St. Mat. Facts ¶ 5, Doc. 20 at 4.)

Plaintiff

admits he had operated a sister machine but states that his
location at the bottom of the ladder was necessitated by the need
for him to see what Defendant’s representative was doing so he
would be fully informed with respect to all aspects of the new
equipment.

(Pl.’s Ans. St. Mat Facts ¶ 5, Doc. 26 at 2.)

As part

of the sale of the new equipment, Defendant includes one visit from
the Service Department to assist in orienting and training the
crew.

(Def.’s St. Mat. Facts ¶ 6, Doc. 20 at 4; Pl.’s Ans. St. Mat

Facts ¶ 6, Doc. 26 at 2.)

At the time of the incident, Jerry Chaon

was at the jobsite commissioning the new machine.

(Def.’s St. Mat.

Facts ¶ 7, Doc. 20 at 4; Pl.’s Ans. St. Mat Facts ¶ 7, Doc. 26 at
2.)

2

When asked a question about a control on the machine, to
answer the question appropriately Mr. Chaon climbed the vertical
ladder affixed to the machine to access the operator’s console.
(Def.’s St. Mat. Facts ¶ 9, Doc. 20 at 4; Pl.’s Ans. St. Mat Facts
¶ 9, Doc. 26 at 2.)

Defendant avers that when Mr. Chaon was on the

second to top rung of the ladder affixed to the machine and
approximately 7-8 feet above the ground, he slipped and fell.
(Def.’s St. Mat. Facts ¶ 10, Doc. 20 at 4.)

Plaintiff maintains

that the precise height from which Mr. Chaon fell is disputed.
Pl.’s Ans. St. Mat Facts ¶ 10, Doc. 26 at 2.)
Mr. Chaon reported at his deposition testimony that
immediately prior to his fall, he was reaching for the next rung,
his hand came off and he found himself with both hands in the air
and his “fanny taking [him] in the other direction.”

(Def.’s St.

Mat. Facts ¶ 11, Doc. 20 at 5; Pl.’s Ans. St. Mat Facts ¶ 11, Doc.
26 at 2.)

Defendant maintains no one knows what caused Mr. Chaon

to fall (Def.’s St. Mat. Facts ¶ 12, Doc. 20 at 5); Plaintiff avers
his inattentiveness was at least one factor that precipitated the
fall (Pl.’s Ans. St. Mat Facts ¶ 12, Doc. 26 at 2).
his back hit Plaintiff in the face.

When he fell,

(Def.’s St. Mat. Facts ¶ 13,

Doc. 20 at 5; Pl.’s Ans. St. Mat Facts ¶ 13, Doc. 26 at 2.)
Plaintiff lost consciousness and was taken from the scene to the
hospital.

(Def.’s St. Mat. Facts ¶ 18, Doc. 20 at 6; Pl.’s Ans.

St. Mat Facts ¶ 18, Doc. 26 at 3.)

3

Mr. Chaon was also injured in

the fall and was taken to the hospital.
19, Doc. 20 at 6;

(Def.’s St. Mat. Facts ¶

Pl.’s Ans. St. Mat Facts ¶ 19, Doc. 26 at 3.)

At the time of the incident, Plaintiff was standing at the
base of the ladder, waiting to go up the ladder next.

(Def.’s St.

Mat. Facts ¶ 14, Doc. 20 at 5; Pl.’s Ans. St. Mat Facts ¶ 14, Doc.
26 at 2.)

Defendant states that Plaintiff knew Mr. Chaon was

climbing the ladder, saw his foot on the first rung, then looked
away.

(Def.’s St. Mat. Facts ¶ 15, Doc. 20 at 5.)

Plaintiff

denies this, asserting Defendant’s statement that Plaintiff was
looking away is taken out of context: immediately after Plaintiff’s
testimony that he was looking away, he indicated that he was
looking in Mr. Chaon’s direction at the time Mr. Chaon struck him.
(Pl.’s Ans. St. Mat Facts ¶ 15, Doc. 26 at 3.)

Immediately before

Mr. Chaon’s back came into contact with Plaintiff’s face, Plaintiff
was looking up to see if Mr. Chaon was clear because “you don’t
enter a ladder until another man is off it.”

(Def.’s St. Mat.

Facts ¶ 16, Doc. 20 at 5; Pl.’s Ans. St. Mat Facts ¶ 16, Doc. 26 at
5.)
II. Dicsussion
A. Summary Judgment Standard
Summary judgment is appropriate when the movant demonstrates
there is no “genuine issue as to any material fact.”
P. 56(a).

Fed. R. Civ.

“[T]his standard provides that the mere existence of

some alleged factual dispute between the parties will not defeat an

4

otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
“An issue is genuine only if there is a sufficient evidentiary
basis on which a reasonable jury could find for the non-moving
party, and a factual dispute is material only if it might affect
the outcome of the suit under governing law.”

Kaucher v. County of

Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson, 477 U.S.
at 248).

In determining whether a genuine issue of fact exists, a

court must resolve all factual doubts and draw all reasonable
inferences in favor of the nonmoving party.

Conoshenti v. Public

Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004) (citation
omitted).
The initial burden is on the moving party to show an absence
of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477

U.S. 317, 330 (1986) (citations omitted).

The moving party may

meet this burden by “pointing out to the district court [] that
there is an absence of evidence to support the nonmoving party’s
case when the nonmoving party bears the ultimate burden of proof.”
Id. at 325.

The non-moving party may not rest on the bare

allegations contained in his or her pleadings, but is required by
Federal Rule of Civil Procedure 56 to go beyond the pleadings by
way of affidavits, depositions, answers to interrogatories or the
like in order to demonstrate specific material facts which give
5

rise to a genuine issue.

Id. at 324.

Where underlying facts are in dispute, the facts are viewed in
the light most favorable to the plaintiff.

Abramson v. William

Patterson College of N.J., 260 F.3d 265, 267 (3d Cir. 2001) (citing
Drinkwater v. Union Carbide Corp., 904 F.2d 853, 854 N.1 (3d Cir.
1990).

“In considering a motion for summary judgment, a district

court may not make credibility determinations or engage in any
weighing of evidence.”

Anderson, 477 U.S. at 255.

Therefore, when

evidentiary facts are in dispute, when the credibility of witnesses
may be in issue, or when conflicting evidence must be weighed, a
full trial is usually necessary.
B. Defendant’s Motion
Defendant asserts that summary judgment in its favor is
appropriate in this case because Defendant neither owed nor
breached any duty to Plaintiff and, therefore, it cannot be held
liable for Plaintiff’s injuries and damages in this negligence
action.

(Doc. 21 at 5-12.)

We conclude Plaintiff has not provided

sufficient evidence for a jury to find liability on the part of
Defendant.
The parties agree that Pennsylvania law applies in this case.
(Doc. 21 at 6-7; Doc. 27 at 13.)

In Pennsylvania, the elements of

a cause of action based on negligence are:
(1) a duty or obligation recognized by the
law requiring the defendant to conform to a
certain standard of conduct for the
protection of others against unreasonable
6

risks;
(2) defendant’s failure to conform to the
standard required;
(3) a causal connection between the conduct
and the resulting injury;
(4) actual loss or damage to the plaintiff.
R.W. v. Manzek, 888 A.2d 740 (Pa. 2005) (citations omitted).

The

Supreme Court of Pennsylvania has noted that “‘[t]he primary
element in any negligence cause of action is that the defendant
owes a duty of care to the plaintiff.’”

Shamnoski v. PG Energy,

Div. of Southern Union Co., 858 A.2d 589, 6002-03 (Pa. 2004)
(quoting Althaus, ex rel. Althaus v. Cohen, 756 A.2d 1166, 1168
(Pa. 2000)).

“The question of whether a duty exists is a legal

one, ‘assigned in the first instance to the trial court and subject
to plenary appellate review.’”

Shamonski, 858 A.2d at 603 (quoting

Sharpe v. St. Luke’s Hosp., 821 A.2d 1215, 1219 (Pa. 2003)).
“[W]hether there has been a neglect of such duty is generally for
the jury.”

Emerich v. Philadelphia Ctr. for Human Dev., Inc., 720

A.2d 1032, 1044 (Pa. 1998).
In determining the existence of a duty of
care, it must be remembered that the concept
of duty amounts to no more than “the sum
total of those considerations of policy which
led the law to say that the particular
plaintiff is entitled to protection” from the
harm suffered. . . . To give it any greater
mystique would unduly hamper our system of
jurisprudence in adjusting to the changing
times. The late Dean Prosser expressed this
view as follows:

7

These are shifting sands, and no
fit foundation. There is a duty if
the court says there is a duty; the
law, like the Constitution, is what
we make it. Duty is only a word
with which we state our conclusion
that there is or is not to be
liability; it necessarily begs the
essential question. When we find a
duty, breach and damage, everything
has been said. The word serves a
useful purpose in directing
attention to the obligation to be
imposed upon the defendant, rather
than the causal sequence of events;
beyond that it serves none. In the
decision whether or not there is a
duty, many factors interplay: The
hand of history, our ideas of
morals and justice, the convenience
of administration of the rule, and
our social ideas as to where the
loss should fall. In the end the
court decides whether there is a
duty based on the mores of the
community, always keeping in mind
the fact that we endeavor to make a
rule in each case that will be
practical and in keeping with the
general understanding of mankind.
Althaus, 756 A.2d at 1168-69 (quoting Sinn v. Burd, 404 A.2d 672,
681 (1979) (citing Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1,
14-15 (1953))).

Althaus identified relevant factors.

The determination of whether a duty exists in
a particular case involves the weighing of
several discrete factors which include: (1)
the relationship between the parties; (2) the
social utility of the actor’s conduct; (3)
the nature of the risk imposed and
foreseeability of the harm incurred; (4) the
consequences of imposing a duty upon the
actor; and (5) the overall public interest in
the proposed solution.

8

756 A.2d at 1169 (citations omitted).
Defendant asserts that here there is no duty and no breach.
(Doc. 21 at 8.)

Defendant maintains that Jerry Chaon was climbing

a ladder and accidentally slipped and fell–-“[t]here is no evidence
that Mr. Chaon was careless or acted in an unreasonable manner
[and] no evidence that Mr. Chaon’s fall was intentional.”

(Id.)

Defendant further maintains that the mere happening of an accident
does not impose liability and that no legal duty should be imposed
on Terex or Mr. Chaon because it was not foreseeable that Mr. Chaon
would fall off the machine and injure himself and Plaintiff: “It
was an accident and plaintiff has no evidence to the contrary.”
(Doc. 21 at 11 (citation omitted).)
Plaintiff maintains that the facts of this case indicate
Defendant owed a duty to Plaintiff, asserting that Defendant
conflates the concept of duty with the assertion that Defendant was
not negligent.

(Doc. 27 at 16.)

Plaintiff states that Defendant

could have a duty toward Chapman.
rests upon:

Such duty

The responsibility which each
person bears to exercise care in
his conduct to avoid unreasonable
risk of harm to another. As a
general rule, ‘anyone who does an
affirmative act is under a duty to
others to exercise the care of a
reasonable man to protect them
against an unreasonable risk of
harm to them arising out of the
act.’ Restatement (Second) of Torts
s 302, Comment a at 82 (1965). . .
. See, generally, W. Prosser, Torts
9

s 53 (4th ed. 1971).
(Doc. 27 at 18) (quoting Suchomajcz v. Hummel Chemical Co., 524
F.2d 19, 24 (3d Cir. 1975); citing Restatement (Second) of Torts §
324A (1965)).

Plaintiff further avers that the doctrine of res

ipsa loquitor supports the denial of summary judgment.

(Doc. 27 at

29-31.)
Defendant replies that Plaintiff’s assertions regarding duty
and the application of res ipsa loquitor are without merit.
28.)

(Doc.

Defendant also asserts that, assuming arguendo Plaintiff

could identify a duty, there is no evidence of unreasonable or
careless action.

(Id. at 8.)

Plaintiff raises three bases to support a finding that
Defendant owed him a duty.

The first two bases are related:

Plaintiff maintains that an individual’s “interest in bodily
integrity dictates that another individual in close proximity has
an affirmative duty to refrain from conduct harmful to those close
by.”

(Doc. 27 at 15 (citing Restatement (Second) of Torts § 281).)

Plaintiff also refers to the duty identified in Restatement
(Second) of Torts § 302, comment a: “anyone who does an affirmative
act is under a duty to others to exercise the care of a reasonable
man to protect them against an unreasonable risk of harm to them
arising out of the act.”

(Doc. 27 at 18.)

Assuming Defendant had a duty to exercise the care of a
reasonable man in climbing the ladder so as to avoid injury to
10

anyone standing at or near the base of the ladder, we agree with
Defendant that Plaintiff has shown no evidence of a breach of that
duty.

(See Doc. 28 at 12.)

Without citation, Plaintiff lists nine

precautions Mr. Chaon should have been cognizant of when climbing
the ladder.

(Doc. 27 at 19-20.)

Plaintiff does not point to

evidence that Mr. Chaon was not cognizant of these precautions or
that failure to adhere to these precautions related to his fall.2
Nor does Plaintiff point to any authority to support a proposition
that failure to adhere to a proposed precaution would support a
finding of negligence.3
To the extent Plaintiff is asserting that Mr. Chaon had a duty
to refrain from climbing the ladder when Plaintiff was standing at
its base or had a duty to warn Plaintiff not to stand at the base,
we would find such an assertion similarly unsupported.

(Doc. 27 at

2

Some of Plaintiff’s proposed precautions relate to the
length and location of the ladder and use of top steps of the
ladder. (Doc. 27 at 19.) Because the ladder at issue is
permanently affixed to a paving machine as a means of access to
certain areas of the machine, no evidence suggests these
considerations would be relevant as this is not a products
liability/defective design case.
3

Plaintiff posits that it is for the jury to determine
whether Mr. Chaon exercised the requisite caution in his
affirmative duty to refrain from harmful conduct. (Doc. 27 at 15.)
Whether Mr. Chaon exercised caution would be for the jury if there
were evidence that he did not. Plaintiff points to no such
evidence. As discussed in the text, a list of precautions
applicable to the climbing of ladders, without more, does not
constitute evidence. It is well-established that a jury’s verdict
cannot be based on mere conjecture. Amon v. Shemanka, 214 A.2d
238, 239 (Pa. 1965) (citation omitted).
11

18.)

This conclusion applies to Plaintiff’s argument proffered

both in the context of the general principles set out above (id.)
and in the context of obligations of one subcontractor to another
(id. at 23-26).
First, we note that some of the parties’ assertions regarding
the relationship between Mr. Chaon and Mr. Chapman do not
accurately reflect the record.

Defendant’s averment that Mr. Chaon

was not instructing Mr. Chapman (Doc. 21 at 9) is not consistent
with the fact that Mr. Chaon was at the site because Defendant
includes one visit from the Service Department to assist in
orienting and training the crew as part of the sale of the new
equipment.

See supra p. 2.

Plaintiff’s statement that Defendant

should have provided Plaintiff with binoculars to view what Mr.
Chaon was doing from a safer distance if Defendant thought
Plaintiff’s proximity to the machine was unreasonable infers that
Mr. Chaon was training or instructing Mr. Chapman at the time of
the fall (Doc. 27 at 18), an inference that is not consistent with
the facts of the case.

The record shows that Plaintiff was waiting

his turn to climb the ladder to join Mr. Chaon in the control area
of the machine after Plaintiff had asked a question about a control
on the machine and, to answer the question appropriately, Mr. Chaon
climbed the vertical ladder affixed to the machine to access the
operator’s console.

See supra pp. 2, 4.

Because facts show that Plaintiff was standing at or near the

12

base of the ladder of his own volition for the purpose of waiting
his turn to climb the ladder and no evidence or authority suggests
this presented an unreasonable risk to Plaintiff, we find no basis
to conclude Defendant a duty to warn Plaintiff not to stand there.4
Plaintiff’s argument that Defendant owed Plaintiff a duty as
one subcontractor to another (Doc. 27 at 14-29) is also unavailing.
Even if we assume that the stated principles of subcontractor
liability apply, Plaintiff presents no basis for finding a duty
and/or breach in the context of potentially applicable restatement
provisions.
Restatement (Second) of Torts § 384, “Liability of Persons
Creating Artificial Conditions on Land on Behalf of Possessor for
Physical Harm Caused While Work Remains in Their Charge,” provides
the following:
One who on behalf of the possessor of
land erects a structure or creates any other
condition on the land is subject to the same
liability, and enjoys the same freedom from
liability, as though he were the possessor of
the land, for physical harm caused to others
upon and outside of the land by the dangerous
character of the structure or other condition
while the work is in his charge.
Restatment (Second) of Torts § 384 (1965).

Restatement (Second) of

Torts § 343, “Dangerous Conditions Known to or Discoverable by

4

Positioning an individual at the base of a ladder is a
practice sometimes recommended in the context of ladder safety
rules. See
https://engineering.purdue.edu/AAE/InfoFor/Safety/laddersafety.
13

Possessor,” provides the following:
A possessor of land is subject to
liability for physical harm caused to his
invitees by a condition on the land if, but
only if, he
(a) knows or by the exercise of
reasonable care would discover the
condition, and should realize that it
involves an unreasonable risk of harm to
such invitees, and
(b) should expect that they will not
discover or realize the danger, or will
fail to protect themselves against it;
and
(c) fails to exercise reasonable care to
protect them against the danger.
Restatement (Second) of Torts § 343 (1965).
Plaintiff does not specifically identify how these provisions
apply to the facts of this case.

Rather, he generally avers that

two Pennsylvania Supreme Court cases outlining workers’
responsibilities to one another “are apposite to the situation in
the case at bar.”

(Doc. 27 at 26.)

In the first case, MacKenzie

v. Cost Brothers, 409 A.2d 362 (Pa. 1979), an employee for a
subcontractor at a construction site was unable to complete the
installation of a precast concrete block weighing nine hundred
pounds (known as a lintel) by the end of the workday on Friday.
409 A.2d at 363.

“The lintel was not left in the flush position,

but rather supported by a brick.

No mortar was placed to secure

the lintel to the brick nor to seal the void between the lintel and
the wall. . . . No notice of the condition was posted.”
14

Id.

He

planned to complete the installation on the next scheduled workday,
Monday.

Id.

On Saturday, the plaintiff stepped on the unstable

lintel and fell, sustaining serious injury.

Id.

The Pennsylvania

Supreme Court held that, under the theory of sections 384 and 343,
the evidence provided a basis for presenting the dispute for
resolution by a jury.

Id. at 364.

In Stringent v. Lastik Products Co., 155 A.2d 625 (Pa. 1959),
the Pennsylvania Supreme Court held that the liability of one
subcontractor to the employee of another was a jury question where
the plaintiff fell through a hole in a roof which had been left
unguarded when smaller holes had been curbed or barricaded.
625.

Id. at

In analyzing the case, the court compared the facts with

those of other cases involving a plaintiff’s fall into a hole.

155

A.2d at 626-27.
We cannot conclude that the findings of the Pennsylvania
Supreme Court are apposite to the case at bar given the disparate
facts.

Here there is no hole, no suggestion that a dangerous

condition was left unattended, or that a dangerous condition
existed at all.

As noted previously in the margin, this is not a

products case and there is no suggestion that the machine on which
Mr. Chaon was climbing was dangerous.

Given the facts of this

case, we conclude Plaintiff has presented no basis upon which a
jury could find Defendant liable under the theory of sections 384
and 343.

15

Finally, we reject Plaintiff’s assertion that the doctrine of
res ipsa loquitor applies in this case.

(Doc. 27 at 29-31.)

The

doctrine allows the inference that a defendant’s negligence caused
the harm to the plaintiff only when:
(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.
Restatement (Second) of Torts § 328D (1965).
Plaintiff does not directly apply these elements to the facts
of the case but equates falling human beings with the application
of the doctrine in cases where a plaintiff is injured by falling
objects, asserting that the proof necessary to establish negligence
in these cases need only be slight.

(Doc. 27 at 30.)

We do not

find that the cited cases present the suggested support: Quinn v.
Funk Building Corp., 263 A.2d 458 (Pa. 1970), is not a res ipsa
loquitor case, the plaintiff was injured when bar joists gave way
and, together with bundles of decking, fell on the plaintiff, and
testimony showed that the bundles of decking were not properly
placed on the joists; in Doerflinger v. Davis, 194 A.2d 897 (Pa.
1963), the Pennsylvania Supreme Court held that res ipsa loquitor
did not apply where a box six feet high and two and one-half feet

16

wide left standing on the floor beside an aisle in a store fell on
the plaintiff’s head and shoulder although, given the dangerous
condition of the huge box by the aisle, the evidence was sufficient
to take the case to the jury; in Garber v. Great Atlantic & Pacific
Tea Co., 155 A.2d 346 (Pa. 1959), the Pennsylvania Supreme Court
did not base its finding on res ipsa loquitor but found sufficient
evidence for the case to go to a jury where the plaintiff was
injured by a can which fell from a display and evidence indicated
the cans were stacked in a dangerous manner and their construction
would make them likely to fall.

In each of these cases, some

evidence suggested wrongdoing on the part of the defendant, i.e.,
participation in the creation of a dangerous sitation.
As discussed above, Plaintiff has presented no evidence which
suggests that Mr. Chaon did not exercise caution when climbing the
ladder or that he engaged in any unsafe practice; there is no
evidence that Defendant participated in creating a dangerous
situation.

Defendant’s citation to Johnson v. Walker, 559 A.2d 947

(Pa. Super. Ct. 1988), regarding the impropriety of finding fault
based on a plaintiff’s injury in an accident points to the problem
with Plaintiff’s position.

None of the cases cited by Plaintiff

presents an analogous situation in that here the fall could have
occurred without any negligence on the part of Defendant.

As the

court found in Aceto v. Legg, No. 9060, 1990 WL 254934 (Mass. App.
Div. Nov. 8, 1990), a fall “is a familiar phenomenon in human
experience attributable to losing one’s balance, tipping or a
17

myriad of other common causes not involving tortious conduct.”
at *2.

Id.

Aceto noted that the plaintiff’s fall was dissimilar to

events in res ipsa loquitor cases which involve the fall of
unexplained objects or material debris.

Id.

In the absence of evidence suggesting that Plaintiff’s
injuries were caused by a lack of due care on the part of
Defendant, no reasonable juror could find that Defendant is liable
for the harm suffered by Plaintiff.

While it is not necessary

under Pennsylvania law “that every fact or circumstance point
unerringly to liability[,] . . . there must be sufficient facts for
the jury to say reasonably that the preponderance favors
liability.”

Garber, 155 A.2d at 347-48.

The fact that Mr. Chaon

fell is insufficient to defeat summary judgment.

As noted above,

it is axiomatic that the mere occurrence of an accident is not
evidence of negligence.

See Amon v. Shemanka, 214 A.2d 238, 239

(Pa. 1965) (“[T]he mere happening of an accident or an injury does
not establish negligence nor raise an inference or a presumption of
negligence nor make out a prima facie case of negligence.”)
(citations omitted).
III. Conclusion
For the reasons discussed above, we conclude Defendant’s
Motion for Summary Judgment (Doc. 20) is properly granted.

An

appropriate Order is entered simultaneously with this Memorandum.

Date: September 9, 2014

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
18