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J. A17002/01
2001 PA Super 175
THERESA FAVOROSO KELLY,
:
IN THE SUPERIOR COURT OF
:
PENNSYLVANIA
Appellant
:
:
v.
:
:
ST. MARY HOSPITAL and HILL-ROM
:
CO., INC., A SUBSIDIARY OF
:
HILLENBRAND INDUSTRIES, INC.,
:
:
Appellees
:
No. 3048 EDA 2000
Appeal from the Judgment Entered October 26, 2000
in the Court of Common Pleas of Bucks County,
Civil Division at No. 92-010694-20-2
BEFORE: DEL SOLE, P.J., MONTEMURO* and KELLY, JJ.
OPINION BY DEL SOLE, P.J.:
Filed: June 14, 2001
¶ 1
Appellant, Theresa Favoroso Kelly, appeals from the entry of judgment
after her motion for post-trial relief was denied. Upon review, we affirm.
¶ 2
In March of 1991, Appellant was a patient at St. Mary Hospital in
Langhorne, Pennsylvania. Appellant contends that she was injured when, on
three separate occasions, the bed rail fell and struck her wrist while she
attempted to manipulate the controls on the bed she occupied. Appellant
instituted suit against St. Mary Hospital.1 Appellant's suit was based on
theories of negligence. Specifically, Appellant maintained that the St. Mary
staff was negligent for improperly maintaining the hospital bed and failing to
move her to another bed when she complained.

1 Appellant also instituted suit against Hill-Rom Co., the manufacturer of the bed. By Order
dated November 19, 1999, the Court entered summary judgment in favor of Hill-Rom Co.
Appellant has not appealed that ruling in the instant appeal.
* Retired Justice assigned to the Superior Court.
Justice Montemuro did not participate in the decision of this matter.

J. A17002/01
¶ 3
The case proceeded to trial and, after Appellant had presented her
case in chief, Appellee moved for a compulsory nonsuit. The trial court
granted the compulsory nonsuit because it concluded that Appellant had
failed to set forth a prima facie case. Appellant filed a motion for post-trial
relief seeking removal of the nonsuit. Appellant's motion was denied. This
appeal followed.
¶ 4
On appeal, Appellant presents the following issues:
1.
Was the entering of a compulsory non-suit based on a lack
of evidence improper in light of the evidence that Plaintiff did
present and attempted to present at trial on liability in this
negligence action against St. Mary Hospital?
2.
Is Plaintiff entitled to removal of the non-suit based upon
the Court's error in refusing Plaintiff to call Dale McElhone of St.
Mary Hospital as a witness on cross-examination, at trial despite
the fact that he had exclusive knowledge of evidence crucial to
Plaintiff's case?
3.
Is Plaintiff entitled to a removal of the non-suit based upon
the Court's error in refusing to permit Plaintiff to call Robert
Benowitz as a witness at trial despite the fact that he had expert
evidence to offer in support of Plaintiff's case?
4.
Is the grant of a non-suit improper once the Defendant has
offered evidence?
5.
Is Plaintiff entitled to removal of the non-suit based upon
the Court's error of refusing to apply the doctrine of Res Ipsa
Loquitor in this case?
Appellant's Brief at 3-4.
¶ 5
Our scope and standard of review when determining the propriety of
an entry of nonsuit is well settled:

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J. A17002/01
A motion for compulsory non-suit allows a defendant to
test the sufficiency of a plaintiffs' evidence and may be
entered only in cases where it is clear that the plaintiff has
not established a cause of action; in making this
determination, the plaintiff must be given the benefit of all
reasonable inferences arising from the evidence. When so
viewed, a non-suit is properly entered if the plaintiff has
not introduced sufficient evidence to establish the
necessary elements to maintain a cause of action; it is the
duty of the trial court to make this determination prior to
the submission of the case to the jury. When this Court
reviews the grant of a non-suit, we must resolve all
conflicts in the evidence in favor of the party against whom
the non-suit was entered.
Poleri v. Salkind, 683 A.2d 649, 653 (Pa. Super. 1996), appeal denied,
698 A.2d 595 (Pa. 1997) (internal citations omitted). "A compulsory non-
suit is proper only where the facts and circumstances compel the conclusion
that the defendants are not liable upon the cause of action pleaded by the
plaintiff." Id. See also Reider v. Martin, 519 A.2d 507, 509 (Pa. Super.
1987), appeal denied, 535 A.2d 83 (Pa. 1987).
¶ 6
In order to establish a claim of negligence the plaintiff has the burden
of proving four elements: 1) a duty or obligation recognized by law; 2) a
breach of that duty; 3) a causal connection between the conduct and the
resulting injury; and 4) actual damages. Pittsburgh National Bank v.
Perr, 637 A.2d 334, 336 (Pa. Super. 1994). In finding that Appellant failed
to establish a prima facie case of negligence the trial court stated:
Because Plaintiff failed to adduce any evidence whatsoever that
St. Mary Hospital was using unsafe or defective equipment or
that the hospital staff breached the applicable standard of care,
her claims necessarily failed.
- 3 -

J. A17002/01
Trial Court Opinion, 12/11/00, at 18.
¶ 7
The record supports the decision of the trial court. Appellant failed to
establish the elements necessary to a claim of negligence in her case in
chief. Thus, the trial court properly granted the Appellee's motion for
compulsory nonsuit.
¶ 8
Appellant next insists that she is entitled to removal of the nonsuit
because the trial court erred in refusing to allow her to call Dale McElhone as
a witness. Appellant asserts that McElhone possessed exclusive knowledge
of evidence crucial to her case. McElhone was to testify regarding the record
keeping practices of the hospital when maintenance requisitions were
requested by the nursing staff. Appellant's Brief at 10.
¶ 9
Appellant filed a Rule 1925(b) statement as directed by the trial court.
Appellant's Rule 1925(b) statement referred the trial court to Appellant's
motion for post-trial relief, and stated that she was seeking on appeal the
same relief requested in that motion. The trial court chose to address the
issues raised in the motion for post-trial relief as the issues on appeal in
drafting their Rule 1925(a) opinion. The issue regarding the court's failure
to allow McElhone to testify was not raised in Appellant's motion for post-
trial relief and was not addressed by the trial court.2

2 We note that Appellant addressed this issue in her Memorandum of Law in Support of
Motions for Post-Trial Relief. The failure to raise an issue in post-trial motions, however,
results in the waiver of the issue on appeal.
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J. A17002/01
¶ 10 Appellant also maintains that the trial court erred in refusing to allow
Robert Benowitz to testify on Appellant's behalf and this error entitles her to
removal of the nonsuit. Appellant contends that Benowitz was an expert and
would provide an opinion that would support Appellant's case.
¶ 11 The trial court conducted an in camera examination of Benowitz and
the testimony he was to offer at trial. Benowitz informed the court that his
expert opinion was based on facts providing that the control device for the
bed was located inside the bed rail. When asked whether his opinion would
be affected if he was told that the Appellant's hand was through the bed rail
while she was touching the control device, Benowitz stated that it would.
Benowitz stated that he did not believe that the controls could be
manipulated in that manner and that he believed such action to be
"physically impossible." N.T., 4/25/00, at 60-61. This opinion was at
variance with Appellant's own testimony that the control panel and her left
arm were outside the rail when she was struck. Benowitz, if he were to
testify, would have testified to facts outside the record. An expert cannot
base an opinion on facts which are not warranted by the record. See
Collins v. Hand, 246 A.2d 398, 404 (Pa. 1968). Accordingly, the trial
court properly precluded Benowitz from testifying.
¶ 12 Appellant next maintains that the trial court erred in granting the
nonsuit because Appellee had offered evidence. Appellant asserts that:
. . . St. Mary Hospital, had presented evidence in the form of
pleadings entered into evidence as exhibits during the trial
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J. A17002/01
testimony of the Plaintiff and as to which counsel for St. Mary
elicited testimony regarding the evidence in the exhibits.
Appellant's Brief at 11. Appellant asserts that Appellee offered three exhibits
marked D-1, D-2 and D-3, and that Appellant was cross-examined on this
evidence.
¶ 13 Review of the transcript reveals that Exhibit D-1 is the Complaint,
Exhibit D-2 is the verification page of the Complaint bearing Appellant's
signature and Exhibit D-3 is the Second Amended Complaint. N.T., 4/25/00,
at 32-33. We need not determine whether these documents were evidence
entered by Appellee, however, because the issue is waived.
¶ 14 It is axiomatic that, in order to preserve an issue for review, litigants
must make timely and specific objections during trial and raise the issue in
post-trial motions. Harman ex rel. Harman v. Borah, 756 A.2d 1116,
1125 (Pa. 2000). At the time Appellee moved for a compulsory nonsuit,
Appellant responded to the motion but made no objection on this basis,
thereby waiving the issue. See Hong v. Pelagatti, 765 A.2d 1117 (Pa.
Super. 2000). Furthermore, this issue was not raised in Appellant's motion
for post-trial relief and the trial court noted in its opinion that the issue is
waived. Trial Court Opinion, 12/11/00, at 7.
¶ 15 Finally, Appellant asserts that she is entitled to removal of the nonsuit
because the trial court erred in refusing to apply the doctrine of res ipsa
loquitur in this case. The trial court determined that this issue was also
waived. We agree.
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J. A17002/01
¶ 16 The doctrine of res ipsa loquitur was not a theory of liability Appellant
pursued throughout the case and during trial. In fact, Appellant's counsel
stipulated at trial, after the court precluded testimony from his liability
expert, that the only theory he was pursuing was the failure to transfer
issue. Appellant raised the res ipsa loquitur theory of liability for the first
time after Appellee moved for the compulsory nonsuit. We agree with the
trial court that Appellant cannot ". . . after the fact inject into this case an
entirely new theory." Trial Court Opinion, 12/11/00, at 6.
¶ 17 Furthermore, the doctrine of res ipsa loquitur requires the following:
1)
the event is of the kind which ordinarily does not occur in
the absence of negligence;
2)
other responsible causes, including conduct of the plaintiff
and third persons, are sufficiently eliminated by the evidence;
and
3)
the indicated negligence is within the scope of the
defendant's duty to the plaintiff.
Hightower-Warren v. Silk, 698 A.2d 52, 54 (Pa. 1997). The doctrine of
res ipsa loquitur is inapplicable in this case. Appellant failed to present
evidence that this event was of a kind which ordinarily does not occur in the
absence of negligence or that the alleged negligence was within the scope of
the Appellee's duty to Appellant. Moreover, in this case the Appellant had
control over the hospital bed at the time the incident occurred. Absent any
evidence by Appellant to the contrary, it cannot be reasonably concluded
that the conduct of the Appellant was not a possible cause of the injury. As
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J. A17002/01
such, the trial court did not err in refusing to apply the liability doctrine of
res ipsa loquitur.
¶ 18 Judgment affirmed.
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