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Krishack v. Milton Hershey Sch.

Superior Court of Pennsylvania

May 25, 2016, Argued; August 15, 2016, Decided; August 15, 2016, Filed

No. 1408 MDA 2015


 [*763]  OPINION BY PLATT, J.:

Appellant, Edward R. Krishack, appeals from the trial court's order granting summary judgment in favor of Appellee, Milton Hershey School (MHS), in this negligence action. We affirm.

We take the following background from our review of the certified record. From 1948 through 1953, Appellant resided at MHS, which provides free education and a home for children "from families of low income, limited resources, and social need[.]" (Amended Complaint, 10/22/13, at unnumbered page 1).2 While Appellant was at MHS, the students lived in farm homes with house parents and, in addition to attending school, they performed farm chores, including putting up hay and cleaning the chicken coop. (See id. at unnumbered pages 3-5). The children did their chores in the mornings before school, and upon returning home after school. (See Official Handbook for MHS House Parents, at 37).

After leaving MHS in 1953, Appellant lived at an unrelated Pennsylvania farm for three weeks, where he also performed chores such as milking, and cleaning up after, cows. (See Appellant's Deposition, 6/27/13, at 21-22). Thereafter, Appellant lived with a foster family in Pennsylvania until his graduation from high school in 1955. (See id. at 23). After graduating, Appellant lived in Ohio, where he worked in construction performing general labor such as raking and shoveling dirt. (See id. at 24, 61). Appellant then lived in several locations throughout the United States before returning to Ohio, where he resided from 1961 through 2005. (See Appellant's Answers to Interrogatories, at 3-4). While in Ohio, Appellant purchased his first horse in 1969; and he owned and worked with horses at dirt race tracks, until 2005. (See id. at 8; Appellant's Deposition, at 41, 45, 51-52).

In 1998, Appellant sought treatment from pulmonologist, Dr. Randall Harris, for emphysema resulting from his "long-standing tobacco abuse." (Deposition of Dr. Randall Harris, 1/07/14, at 16-17). Appellant was sixty-one years [**3]  old at the time, and had "an extensive smoking history[,]" which included smoking one-and-a-half packs a day for approximately forty years, beginning at the age of eighteen. (Dr. Harris Medical Record for Appellant, 7/13/98, at unnumbered page 1; see also  [*764]  Expert Report of Dr. David Laman, 9/11/14, at unnumbered page 1; Appellant's Deposition, at 142-44). While treating Appellant for emphysema, Dr. Harris diagnosed him with an old granuloma, or stable calcified deposit, detected on his lung in a 2001 x-ray. (See Deposition of Dr. Randall Harris, at 37-38). Dr. Harris noted that there were no symptoms associated with the stable calcified deposits, and that no treatment was necessary. (See id. at 38; see also id. at 41 ("It's stable. It's calcified. It's chronic.")). The calcified deposit resulted from a history of interstitial fibrosis, for which Dr. Harris did not know the cause. (See id. at 44).

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145 A.3d 762 *; 2016 Pa. Super. LEXIS 454 **; 2016 PA Super 180


Prior History:  [**1] Appeal from the Order of the Court of Common Pleas, Dauphin County, Civil Division, No.: 2013-CV-08243-CV. Before BRATTON, J.


fungus, Deposition, histoplasmosis, capsulatum, unnumbered, conjecture, farm, chicken coop, trial court, speculation, causation, chores, soil, expert report, proximate, exposure, lived, summary judgment motion, summary judgment, granulomatous, calcified, disease, opine

Civil Procedure, Appeals, Standards of Review, Abuse of Discretion, Summary Judgment Review, Standards of Review, Judgments, Summary Judgment, Evidentiary Considerations, Entitlement as Matter of Law, Appropriateness, Burdens of Proof, Nonmovant Persuasion & Proof, Torts, Negligence, Elements, Breach of Duty, Duty, Causation, Proximate Cause, Causation, Trials, Jury Trials