NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 
 

PAMELA D. SHIFFLETT       

  IN THE SUPERIOR COURT OF 
           PENNSYLVANIA 

             

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Appellant 

 

 

v. 

OAN K. MENGEL 

 No. 1517 MDA 2021 

Appeal from the Judgment Entered November 23, 2021 
In the Court of Common Pleas of Lebanon County Civil Division at No(s):  
2018-01553 

EFORE:   BOWES, J., KING, J., and STEVENS, P.J.E.* 

DISSENTING MEMORANDUM BY BOWES, J.: 

FILED MARCH 20, 2023 

 

I agree with my esteemed colleagues  that  Appellant is not entitled  to 

judgment notwithstanding the verdict, as I do not believe the trial evidence 

was  such  that  there  was  no  causation  question  for  the  jury  to  resolve.  

However,  I  would  hold  that  the  trial  court’s  jury  instruction  as  to  causation 

had  the  tendency  to  confuse  or  mislead  the  jury  such  that  a  new  trial  is 

warranted.   

 

I have no dispute with the Majority’s recitation of the law applicable to 

review  of  a  challenge  to  a  trial  court’s  charge  to  the  jury.    As  the  Majority 

accurately states,  a new trial is warranted only if  “the charge as a whole is 

inadequate or not clear or has a tendency to mislead or confuse[.]”  Majority 

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* Former Justice specially assigned to the Superior Court. 

   

     

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Memorandum  at  13  (quoting  Salsgiver  Commc’ns,  Inc.  v.  Consol. 

Commc’ns  Holdings,  Inc.,  150  A.3d  957,  962-63  (Pa.Super.  2016)).  

Pennsylvania’s Suggested Standard Jury Instructions (“SSJI”) are instructive, 

although not mandatory.  Id. at 14.  In any event, the language chosen by 

the trial court in instructing the jury must fully and accurately state the law in 

the required clear and unconfusing manner.  Id.   

 

The  pertinent  law  is  that,  to  recover  for  negligence,  a  plaintiff  must 

prove  four  elements:  “(1)  a  legally  recognized  duty  that  the  defendant 

conform  to  a  standard  of  care;  (2)  the  defendant  breached  that  duty;  (3) 

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

damage  to  the  plaintiff.”    Massaro  v.  McDonald’s  Corp.,  280  A.3d  1028, 

1035–36  (Pa.Super.  2022)  (cleaned  up).    We  have  explained  that  “the 

plaintiff’s  burden  of  causation  has  two  components[,  namely]  (1)  cause-in-

fact  and  (2)  legal  or  proximate  cause.”    Pomroy  v.  Hosp.  of  Univ.  of 

Pennsylvania, 105 A.3d 740, 745 (Pa.Super. 2014).  “[A] negligent act is a 

cause-in-fact  of  the  plaintiff’s  injuries  if  the  harmful  result  would  not  have 

come about but for the negligent conduct.”  Straw v. Fair, 187 A.3d 966, 993 

(Pa.Super. 2018) (cleaned up) (quoting First v. Zem Zem Temple, 686 A.2d 

18,  21  n.2  (Pa.Super.  1996)).    “‘Proximate”  or  ‘legal’  causation  in  turn  is 

defined as that which, in a natural and continuous sequence, unbroken by any 

sufficient  intervening  cause,  produces  injury,  and  without  which  the  result 

would not have occurred.”  McPeake v. William T. Cannon, Esquire, P.C., 

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553  A.2d  439,  441  (Pa.Super.  1989)  (cleaned  up).    “Legal  or  proximate 

causation involves a determination that the nexus between the wrongful acts 

(or omissions) and the injury sustained is of such a nature that it is socially 

and economically desirable to hold the wrongdoer liable.”  Zem Zem Temple, 

supra at 21 n.2 (cleaned up).   

 

These concepts are often difficult for people trained in the law to grasp, 

let alone lay jurors.  See Pa. SSJI (Civ) §13.20 at Subcommittee Note (2020) 

(observing that “proximate cause, a term that attempts to give substance to 

the distinction between factual cause and legal cause . . . ‘means nothing to 

an ordinary jury’”) (quoting Rodgers v. Yellow Cab Co., 147 A.2d 611, 617 

(Pa. 1959)).  Our courts have utilized different terminology over the years to 

try  to  express  the  legal  constructs  to  juries,  including  “substantial  factor” 

taken from the Restatement (Second) of Torts § 431 (1965).  Id. (citing Ford 

v. Jeffries, 379 A.2d 111 (Pa. 1977)). 

However, the word “substantial”  is commonly  used outside the law  to 

suggest a quantitative element that does not pertain to legal causation. See 

id.  at  n.d2  (collecting  definitions  for  the  word  substantial,  including 

“considerable in quantity: significantly large” and “being largely but not wholly 

that which is specified”).  Thus, although Pennsylvania courts have cited the 

Restatement’s “substantial factor” test with approval, because it has “led to 

some  confusion  among  jurors,”  the  most  recent  SSJI  concerning  causation 

reflects  “that  the  emphasis  [should]  be  on  cause  and  that  the  definition  of 

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factual cause be so stated as to emphasize that it need not be so considerable 

or  large  as  to  be  confused  with  the  plaintiff’s  burden  of  proof,  which  is 

considerably higher.”  Id. at Subcommittee Note.   

Accordingly,  to  avoid  making  causation  “so  cumbersome  as  to  be 

unintelligible  to  all  but  the  legally  educated  juror,”  “most  of  the  usual  legal 

phrases  have  been  jettisoned”  from  the  suggested  instruction  by  the  SSJI 

subcommittee.    Id.    Instead,  the  factual  cause  instruction  covers  both  the 

concepts of factual and legal causation.  That suggested instruction, faithfully 

quoted by the Majority, provides as follows: 

In order for [name of plaintiff] to recover in this case, [name of 
defendant]’s [negligent] [grossly negligent] [reckless] conduct 
must have been a factual cause in bringing about harm.  Conduct 
is a factual cause of harm when the harm would not have occurred 
absent  the  conduct.    To  be  a  factual  cause,  the  conduct  must 
have been an actual, real factor in causing the harm, even if the 
result  is  unusual  or  unexpected.    A  factual  cause  cannot  be  an 
imaginary  or  fanciful  factor  having  no  connection  or  only  an 
insignificant connection with the harm. 

o be a factual cause, [name of defendant]’s conduct need not 
be the only factual cause.  The fact that some other causes concur 
with  [name  of  defendant]’s  negligence  in  producing  an  injury 
does not relieve [name of defendant] from liability as long as [his] 
[her] [their] own negligence is a factual cause of the injury. 
 

  T

See Majority Memorandum at 15-16 (quoting SSJI (Civ) §13.20) (emphases 

added).   

 

My  emphases  in  the  above  quotation  signal  my  next  point.    Whether 

“factual cause” or “substantial factor” is used to describe causation to a jury, 

it  is  plain  that  the  question  for  the  fact-finder  is  whether  the  defendant’s 

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negligent conduct caused the plaintiff’s harm, not whether the direct physical 

manifestation of the negligent  conduct was the cause.   In many cases they 

are one and the same, as the plaintiff is injured when the automobiles collide, 

the improperly-secured cargo falls on her, or an unsupervised dog bites her.  

However, in cases such as the one sub judice, the lack of a direct, immediate 

connection between the negligent conduct and the injury resulting therefrom 

is  capable  of  confusing  a  jury.    The  suggested  jury  instruction  attempts  to 

clarify this for jurors in its second paragraph, and the trial court’s instructions 

in this case sought to do the same, by specifying that the conduct need not 

be the only cause of the harm, only one of potentially several actual causes.  

In most cases, I believe this clarification would be sufficient to ensure that the 

jury has an accurate explanation of the law. 

 

At the end of the day, as noted above, the question we must decide is 

whether “the charge as a whole . . .  ha[d] a tendency to mislead or confuse” 

the jury.  Majority Memorandum at 13.  In my mind, neither the ambiguity of 

the “substantial factor” terminology nor the conflation of “negligent conduct” 

and “collision” or “accident” necessarily would itself give rise to a jury charge 

so misleading as to warrant a new trial.  However, I believe that the particular 

facts of this case—where the initial negligent conduct manifested in a collision 

that  placed  the  plaintiff  in  a  dangerous  position  that  allegedly  caused  her 

injury after the collision—render the combination of the two confusing aspects 

of the trial court’s choice of language reversible error. 

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Appellee’s  negligent  conduct  was  identified  by  the  trial  court  at  the 

outset  of  the  jury  charge  as  follows:    “The  Defendant  was  negligent.    She 

admits that she was negligent in crossing the center line in the road.”  N.T. 

Trial, 8/10/21, at 11.  Thereafter, however, the trial court’s discussion of the 

negligent conduct substantially (as in both materially and largely) referred to 

“the accident” when indicating the admitted negligent conduct.   

This  use  of  negligence,  negligent  conduct,  collision,  and  accident 

interchangeably is far from uncommon.  Indeed, the use of “accident” in place 

of “negligent conduct” is prevalent in the discussion of factual cause provided 

the subcommittee note to Pa. SSJI (Civ.) § 13.20 itself.  However, although 

the Appellee’s negligent conduct (here driving on the wrong side of the road), 

had  the  immediate  effect  of  causing  a  vehicular  collision  (“car  accident”  or 

“accident” in common parlance), the conduct and the immediate result are not 

determinative of Appellant’s claim.  Appellant contends that she suffered her 

ankle  injury,  the  most  substantial  injury  she  alleged,  not  in  or  during  the 

accident, but after the accident happened as a result of being pushed off the 

road due to the negligent conduct of Appellee.  While the trial court dismissed 

Appellant’s arguments on this point as “semantics,”1 I submit that the facts of 

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1 See N.T. Trial, 8/10/21, at 29. 

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this case are such that the distinction makes a difference in terms of assessing 

the potential for confusion that is apparent from a review of the instructions.2      

 

The  Majority  reproduces  a  sizeable  portion  of  the  trial  court’s  charge 

that I will not reiterate herein.  See Majority Memorandum at 16-17 (quoting 

N.T. Trial, 8/10/21, at 11-14).  I note that the excerpt quoted by the Majority 

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2  The  Majority  finds  that  Appellant  waived  the  issue  of  the  substitution  of 
“accident”  for  “negligent  conduct”  by  failing  to  develop  it  in  her  brief.    See 
Majority Memorandum at 13 n.5.   I disagree.  Appellant clearly presented the 
argument to this court and tied it into her lengthier argument against the use 
of “substantial factor,” contending, inter alia, as follows: 
 

The  trial  court  further  muddled  the  causation  charge  by 
instructing the jury that Plaintiffs injuries must have been caused 
“by  the  accident”  rather  than  “by  the  Defendant’s  negligence.”  
Neither Plaintiff nor Defendant asked the court to instruct the jury 
that Plaintiff must prove harm caused “by the accident.”  The use 
of “by the accident” was yet another decision by the trial court to 
ignore the causation instruction requested both parties.  The SSJI 
instruction  both  parties  requested, 
focuses  on  “negligent 
conduct.”   It does  not use the term “accident.”   Since  this case 
involved an ankle injury suffered after the accident when Plaintiff 
walked in the dark in the dangerous culvert into which Defendant 
had  pushed  her,  the  trial  court’s  decision  to  flip-flop  between 
“substantial  factor”  and  “factual  cause”  was  made  even  more 
confusing by the trial court repeatedly telling the jury that Plaintiff 
must  prove  harm  caused  “by  the  accident”  rather  than  “by 
defendant’s  negligence.”    Instead  of  providing  the  jury  with  the 
clear  instruction  regarding  causation  that  both  parties  agreed 
should  be  used,  the  trial  court  imposed  its  own  confusing  and 
erroneous instruction that ignored the requests of the parties and 
the  reality  that  trial  and  appellate  courts  across  Pennsylvania 
recognize that SSJI §13.20 (Factual Cause) is a clear, complete, 
and accurate instruction. 
 

Appellant’s  brief  at  27  (footnote  omitted).    I  find  the  argument  sufficiently 
developed in the brief to permit review. 

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evinces  the  use  of  the  term  “accident”  sixteen  times  while  referencing 

Appellee’s “conduct” only twice.  The jury was repeatedly told that Appellant 

was  entitled  to  recover  only  if  “the  accident”  was  a  “substantial  factor”  in 

causing the harm of which Appellant complained.  See, e.g., id. at 16 (quoting 

N.T.  Trial,  8/10/21,  at  12)  (“[I]n  order  for  plaintiff  to  recover,  the  accident 

must be a substantial factor in bringing about the harm to the plaintiff.”); id. 

at 17 (quoting N.T. Trial, 8/10/21, at 13-14) (“[A]n accident will be deemed 

a factual cause if it is a substantial factor in bringing about Appellant’s harm.  

. . .  You need only decide if the accident was a substantial factor in bringing 

about any harm.” (cleaned up). 

The impression created in this portion of the jury charge, namely that 

that Appellant could not recover unless her ankle injury was largely linked to 

the  collision  itself,  was  reinforced  by  the  court’s  damages  instructions  and 

summation, which I reproduce in substantial (large) part:   

With respect to medical expenses the parties have agreed 
that [Appellant] has incurred $2,434.16 in medical expenses that 
she will be responsible for paying.  In addition, the parties have 
stipulated  that  [Appellant]  has  already  expended  $3,534.00  in 
out-of-pocket  expenses  relating  to  her  ankle  injury.    These  two 
items total $5,968.16.  . . . 

f  you  agree  that  all  of  [Appellant]’s  problems  that  she 
described to you and that the doctor described to you, if you agree 
that  all  of  them  relate  to  the  accident,  then  you  must 
compensate her in the amount of $5,968.16.   But keep in mind 
that the Defendant disputes that all of these damages relate to 
the automobile accident. 

ou  can  find  that  none  of  these  problems  related  to  the 
accident.  If you find that then you do not have to award anything 

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for  medical  or  out-of-pocket  expenses.    You  can  find  that  only 
some  of  her  problems  related  to  the  accident.  If  you  find  that 
then you are at liberty to award an amount less than $5,968.16.  
It  is  up  to  you,  and  you  alone,  to  decide  how  much  of  these 
claimed expenses related to the accident.  And any amount that 
you find did relate to the accident, you are duty bound to award 
that amount. 

 plaintiff is entitled to recover wages that he or she lost as 
a result of an automobile accident.  This includes lost hours.  
A plaintiff does not have to be completely prevented from working 
in order to receive damages for lost wages or lost earnings.   

hus, if you find that [Appellant] did in fact lose hours as a 
result of the accident, you can compensate her for the money 
that she lost by virtue of losing those hours.  But, as I said to you 
with respect to medical expenses, to the extent that you find that 
[Appellant]’s problems did not relate to the accident, or to the 
extent  that  you  find  she  cut  back  hours  for  reasons  having 
nothing to do with the accident, then to that same extent you 
do not have to award damages for lost wages. 
 

. . . . 

ow, let me summarize.  I have hit you with a lot.  Let me 
summarize, if I can, your role and what you will have to decide 
and the law that governs it.  I will go over five points. 

oint  No.  1:  [Appellant]  is  entitled  to  recover  monetary 
damages  only  if  you  find  the  accident  was  a  factual  cause,  a 
substantial factor, in bringing about some harm to [Appellant]. 

wo,  if  you  find  that  the  accident  did  cause  some 
harm,  then  you  must  award  some  damages.    I  will  repeat 
that:  If  you  find  that  the  accident  did  cause  some  harm,  then 
you  must  award  some  damages.    However,  as  you  analyze 
damages you are not required to find that everything claimed by 
the Plaintiff was related to this accident.  Under the facts of this 
case, you could determine that some of the harm related to the 

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accident.    You  could  determine  that  all  of  the  harm  claimed 
related to the accident. 

n  any  event  you  should  award  damages  only  for  the 
harm that you find to be related to the accident.  I will repeat 
that,  as  well.    If  you  find  causation,  you  must  award  damages.  
But if you find that there were other things in play, if you find that 
[Appellant] did not  suffer all of the harm she claimed,  then you 
should award damages only for the harm that you find to be 
related to the accident. That is Point No. 2. 

oint  No.  3:  Medical  and  out-of-pocket  expenses  total 
$5,968.16.  You determine whether all, none, or a portion of this 
amount related to the accident, and then you award an amount 
that you believe was related to the accident. 

oint No. 4:  In terms of future lost earnings, you determine 
whether [Appellant] is unable to work to her full potential because 
of  the  injuries  she  suffered  in  the  accident.    If  you  find  that 
[Appellant] did suffer lost wages as a result of the accident, you 
should  compensate  her  for  the  difference  between  the  dollar 
amount you believe she would have been able to earn for the rest 
of  her  career  without  the  accident,  and  the  amount  that  you 
believe  she  is  now  able  to  earn  given  the  accident.    The 
difference is what you award. 
 

Point  No.  5:    General  damages  are  awarded  based  upon 
your determination of how [Appellant]’s life was impacted by the 
accident.  To the extent that [Appellant] suffered a degradation 
of her ability to enjoy life, you must compensate her for that loss.  
No  one  can  suggest  a  dollar  figure  to  you  for  pain,  suffering, 
aggravation, inconvenience, et cetera.  You, and you alone, have 
to  determine  an  amount  that  you  believe  is  fair  to  compensate 
[Appellant] for these damages. 
 

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N.T. Trial, 8/10/21, at 15-22 (emphases added).   

 

At the conclusion of the charge, Appellant’s counsel took issue with the 

repeated use of the term “accident” in connection with factual cause: 

I  think  the  jury  verdict  slip  asks  was  negligence  a  factual 
 
cause,  which  is  the  question.    Over  and  over  again  you  said 
accident. 

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I don’t want there to be confusion between your instructions 
that  kept  saying  Accident.    Accident.    Accident.    I  would  like  to 
request  some  form  of  clarification  that  when  you  said  accident, 
you were referencing negligence as well.   
 

Id. at 28-29.   

 

The  trial  court  implicitly  conceded  that  the  charge  as  given  was  not 

sufficient, stating on the record to counsel for both parties: 

THE COURT: 

. . .  I believe that they are probably going 

to come back and ask me to clarify the law. 

When they do, I will talk with both of you.  I still don’t know 
100-percent what I am going to say.  You win if they believe that 
her twisting of her ankle while she was walking around would not 
have occurred but for the fact that she was pushed off the road. 

. . . . 

I’ll tell them that one more time:  The Defendant is negligent 
and that negligence caused the vehicle to go off the road.  That is 
not in dispute.  I am not going to tell them now at this point in 
time that negligence caused her to twist her ankle. 

[Appellant’s counsel]:  I’m not asking you to tell them that.  

That’s not my point, Your Honor. 

My point is that someone could interpret your instructions 
saying  caused  by  the  accident  in  light  of  [Appellee’s]  argument 
that [Appellant] did not injure her ankle in the accident, therefore, 
that is not responsive.  That is not the law.   
 

Id. at 29-30.  The jury did not ask the court to clarify, but instead concluded 

that Appellee’s negligence caused no harm to Appellant.   

Considering the charge as a whole, I am convinced that it is reasonably 

likely  that  the  trial  court’s  choice  of  verbiage  may  have  caused  the  jury  to 

believe that Appellant had not met her burden of proof unless she established 

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that  her  ankle  injury  occurred  in  large  part  during  the  impact  of  Appellee’s 

vehicle  with  Appellant’s  vehicle.    Since  that  is  not  the  law,  the  trial  court’s 

instruction was confusing and misleading and was reasonably likely to have 

impacted the verdict.  Therefore, I would award Appellant a new trial.  Accord 

Carlini v. Glenn O. Hawbaker, Inc., 219 A.3d 629, 644 (Pa.Super. 2019) 

(awarding  new  trial  after  observing  that  such  relief  is  due  only  when  “the 

language  the  court  chose  incorrectly  states  the  law  or  mischaracterizes  the 

evidence  in  a  way  that  prejudiced  the  jury’s  consideration  and  thereby 

undermined the accuracy of the verdict” (cleaned up)).    

 

Therefore, I respectfully dissent. 

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