                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-1-1999

Estate Zimmerman v. SEPTA
Precedential or Non-Precedential:

Docket 98-1631




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Filed February 26, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-1631

ESTATE OF AARON ZIMMERMAN; KATHRYN WATKINS,
Administratrix a/k/a CATHERINE WATKINS, Executrix;
LINDA PARDO, Individually and as heir to the ESTATE
OF AARON ZIMMERMAN a/k/a AARON THOMAS
ZIMMERMAN

v.

SOUTHEASTERN PENNSYLVANIA TRANSPORTATION
AUTHORITY; AMTRAK; CONSOLIDATED RAIL; THE CITY
OF PHILADELPHIA

       ESTATE OF AARON ZIMMERMAN and KATHRYN
       WATKINS, Administratrix, a/k/a Catherine
       Watkins, Executrix, and LINDA PARDO, individually
       and as heir to the ESTATE OF AARON
       ZIMMERMAN a/k/a AARON ZIMMERMAN,
       Appellants

Appeal from the United States District Court
For the Eastern District of Pennsylvania
D.C. No.: 96-cv-6907
District Judge: Honorable Jan E. DuBois

Before: BECKER, Chief Judge, and SCIRICA and
ROSENN, Circuit Judges.

(Argued January 28, 1999)

(Filed February 26, 1999)
       Frank J. Marcone (Argued)
       2530 North Providence Road
       Upper Providence, PA 19063
       Counsel for Appellant

       Wilfred T. Mills, Jr. (Argued)
       Gallagher, Reilly & Lachat
       2000 Market Street
       Suite 1300
       Philadelphia, PA 19103
       Counsel for "SEPTA", et al.

       Alan C. Ostrow (Argued)
       City of Philadelphia Law Department
       1515 Arch Street
       One Parkway Bldg., 17th Floor
       Philadelphia, PA 19102
       Counsel for City of Philadelphia

OPINION OF THE COURT


ROSENN, Circuit Judge.

On August 6, 1994, the decedent Aaron Zimmerman,
then twenty-three years of age, entered the area where
trains run between 30th Street Station and Suburban
Station in the City of Philadelphia, Pennsylvania. There he
climbed to the top of a metal structure, which is
approximately twenty-five feet tall and mounted in an
upright position on a concrete foundation that supports a
catenary at the top. A catenary is an arrangement of wires
on a large steel framework. The wires connect the
catenaries and carry high-voltage electricity to provide
electric propulsion power for trains. While seated on the
catenary crossbar, Zimmerman unfortunately received a
fatal electrical shock.

On August 30, 1996, the plaintiffs, administratrix
Kathryn Watkins and the decedent's mother, Linda Pardo,
filed a wrongful death and survival action with the Court of
Common Pleas of Delaware County, Pennsylvania.
Essentially, the plaintiffs alleged that the negligence of
Southeastern Pennsylvania Transportation Authority

                               2
("SEPTA"), Amtrak, Consolidated Rail Corporation
("Conrail"), and the City of Philadelphia ("City") caused
Zimmerman's untimely and tragic death. Amtrak, asserting
federal question jurisdiction under 28 U.S.C. S1331 based
on its status as a federally chartered corporation in which
the United States owns a majority of stock, removed the
matter to the United States District Court for the Eastern
District of Pennsylvania pursuant to 28 U.S.C. S1441(a).

On June 22, 1998, the District Court granted summary
judgment for the defendants. See Estate of Zimmerman v.
Southeastern Penn. Transp. Auth., 17 F. Supp. 2d 372 (E.D.
Pa. 1998). The plaintiffs timely appealed. We affirm.

I.

On August 6, 1994, eyewitnesses observed Zimmerman
climb a concrete wall and an iron fence to gain access to
the general area enclosing railroad tracks on which
commuter trains travel. This section extends from 20th
Street to 30th Street. A bridge at 20th Street and John F.
Kennedy Boulevard bounds the east end of the track area.
The catenary is located in the track area sixty feet west of
the bridge and is raised from the track level and supported
by a concrete foundation on the north side of the track
area.

At midday, Zimmerman climbed the structure, reached
the top, and sat on the crossbar of the catenary, where he
was electrocuted. The electrocution caused a power outage.
Following SEPTA policy, Paul Lazarus, the power director,
quickly re-energized the circuit from his remote location at
Wayne Junction station. Because Zimmerman was sitting
on the catenary crossbar, which was grounded, the circuit
would have been tripped once more if Zimmerman had
been electrocuted again. But, the power was not cut off
until SEPTA did so manually after being informed that
Zimmerman was sitting on the catenary. Thereafter,
firefighters removed Zimmerman from the catenary. Nine
days later, he died from burns caused by the electrocution.

SEPTA admitted to having sole possession and control
over the track area, including the catenary. Amtrak
supplied the electricity to the wires that caused

                                3
Zimmerman's death. According to the uncontradicted
evidence in the record, only SEPTA used the train tracks in
this area.

The plaintiffs produced evidence that homeless people
would enter the track area. Graffiti covered the inside wall
nearby where Zimmerman was electrocuted. Paths led from
John F. Kennedy Boulevard toward the track area. The
plaintiffs secured written statements from witnesses who
observed homeless people encroaching the track area. One
witness wrote that he informed the police of people climbing
the fence and entering the area. Another witness wrote that
homeless people were in the track area "all the time" and
that police periodically chased them away. However, there
was no evidence that people climbed the catenary before
Zimmerman's portentous ascent.

There are several small signs stating "Danger: Live Wire"
on the concrete wall adjacent to the track area at and
around the bridge on 20th Street. One sign also includes
the message "Keep Off." The plaintiffs claim that none of
the warning signs are visible from the accident sight. The
photographic evidence neither confirms nor refutes this
claim.

The District Court granted the defendants' motions for
summary judgment. The Court held that Zimmerman was
a trespasser and that no exception to the wantonness or
willfulness standard for premises liability to trespassers
applied. The Court concluded that the defendants acted
neither wantonly nor willfully. The Court determined that
Conrail and the City could not be liable for Zimmerman's
death because they did not possess the track area or the
catenary. The Court also held that Amtrak did not possess
the land and owed no duty as the electricity supplier
because Zimmerman did not lawfully come into proximity
to the electricity.

II.

Our review of the District Court's grant of summary
judgment is plenary. In re Baby Food Antitrust Litig., ___
F.3d ___, ___ (slip op. at 22) (3d Cir. 1999). "[T]here is no
issue for trial unless there is sufficient evidence favoring

                                4
the nonmoving party for a jury to return a verdict for that
party. If the evidence is merely colorable or is not
significantly probative, summary judgment may be
granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249-50 (1986) (citations omitted).

The plaintiffs' wrongful death and survival action is
founded on a negligence theory of liability.1 Therefore, the
plaintiffs must prove: (1) a duty owed to the decedent; (2) a
breach of that duty by the defendants; (3) a causal
connection between the defendants' breach and the
resulting injury; and (4) injury suffered by the plaintiffs.
See Estate of Swift v. Northeastern Hosp. of Phila., 690 A.2d
719, 722 (Pa. Super. Ct. 1997). The failure to establish any
one of these elements is a ground for summary judgment.
See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) ("In
our view, the plain language of Rule 56(c) mandates the
entry of summary judgment, after adequate time for
discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial.").

A.

Before we ascertain the extent of the duty owed to
Zimmerman, we first decide which defendants, if any, owed
Zimmerman a duty. The plaintiffs maintain that a genuine
issue of material fact existed regarding whether all the
defendants had a duty to prevent harm to Zimmerman
because they purportedly had control over the area where
Zimmerman was injured. The plaintiffs also argue that
Amtrak, because it supplied the electricity that ran through
the wires attached to the catenary, owed an additional duty
to Zimmerman.

The duty to protect against known dangerous conditions
falls upon the possessor of the land. Blackman v. Federal
Realty Inv. Trust, 664 A.2d 139, 142 (Pa. Super. Ct. 1995);
_________________________________________________________________

1. In this action, the District Court applied Pennsylvania law because the
death and events leading up to it occurred in Pennsylvania. We do the
same.

                               5
see also Rolick v. Collins Pine Co., 975 F.2d 1009, 1011 (3d
Cir. 1992); Rossino v. Kovacs, 718 A.2d 755, 756-57 (Pa.
1998). The possessor of land occupies the land with the
intent to control it. Bloom v. Waste Management Corp., 615
F. Supp. 1002, 1015 (E.D. Pa. 1985); Blackman, 664 A.2d
at 142; see also Restatement (Second) of Torts S 328E(a)
(1965).

There is uncontroverted evidence that SEPTA was the
sole possessor of the track area. Therefore, only SEPTA
owed Zimmerman a possessor's duty to entrants on its
land. Nonetheless, the plaintiffs claim that the other
defendants also incurred duties as land possessors. We
disagree.

The plaintiffs argue that Amtrak and SEPTA allegedly had
an agreement related to the maintenance of the catenary
and the surrounding area and to liability for torts
committed in that location. The plaintiffs, however, failed to
produce such an agreement, and defense counsel denies its
existence. No evidence in the record suggests that Amtrak
possessed or controlled the track area or the catenary.

The plaintiffs also assert that Conrail possessed the
property because Conrail used the tracks in the track area.
The plaintiffs offer no evidence that Conrail utilized the
railroad tracks. Besides, Conrail's alleged use of the tracks
does not equate with possession. Access to land need not
entail control over land.

Lastly, the plaintiffs maintain that the City owns the
track area and claim that no evidence shows that the City
did not own the property. The plaintiffs bear the burden of
persuasion, and they failed to present evidence of the City's
alleged ownership. Contrary to the plaintiffs' contention,
they needed to produce that evidence in conjunction with
its opposition to the City's summary judgment motion.

Thus, there is no genuine issue of material fact over
whether Amtrak, Conrail, or the City possessed the track
area. Accordingly, Amtrak, Conrail, and the City did not
owe Zimmerman any duty of care flowing from their
purported position as land possessors.

Nevertheless, Amtrak, as the supplier of electricity, owed
Zimmerman a duty of care. The uncontradicted evidence in

                                6
the record establishes that Amtrak supplied the electricity
that flowed through the wires attached to the catenary.
Suppliers of electricity owe a duty of care to all people in
proximity to the wires through which high-voltage
electricity flows; the degree of care varies with the status of
the injured person on the land. See Heller v. Consolidated
Rail Corp., 576 F. Supp. 6, 12 n.7 (E.D. Pa. 1982), aff'd,
720 F.2d 662 (3d Cir. 1983). We do not agree with Amtrak's
assertion that it owed a duty to Zimmerman only if he was
lawfully in proximity to the electrical lines. Under
Pennsylvania law, electricity suppliers owe a duty, albeit a
limited one, to avoid wanton or willful injury to trespassers.
See id. This rule comports with the notion that trespassers
be given some, however modest, protection against
tortfeasors. See, e.g., Barre v. Reading City Passenger Ry.
Co., 26 A. 99, 100 (Pa. 1893) ("Even trespassers are entitled
to humane consideration.").

Therefore, SEPTA, as the possessor of the track area, and
Amtrak, as the supplier of electricity, owed Zimmerman a
duty of care. As a matter of law, Conrail and the City had
no duty to prevent harm to Zimmerman. Accordingly, the
District Court did not err in entering summary judgment
for Conrail and the City.

B.

Having concluded that SEPTA and Amtrak owed
Zimmerman a duty of care, we must demarcate the extent
of that duty. Zimmerman's status at the site of his injury
plays a crucial role in determining the degree of care SEPTA
and Amtrak owed Zimmerman.

The plaintiffs claim that there was an issue of material
fact whether Zimmerman was a trespasser or a licensee.
They theorize that the defendants, by permitting
Zimmerman and other homeless people to enter and remain
in the track area, may have given Zimmerman implied
consent to be in the track area and, thus, Zimmerman may
have been a licensee.

"A trespasser [is] `a person who enters or remains upon
land in the possession of another without a privilege to do
so created by the possessor's consent or otherwise.' "

                                7
Rossino, 718 A.2d at 756-57 (quoting Restatement (Second)
of Torts S 329 (1965)). "A licensee, on the other hand is `a
person who is privileged to enter or remain on land only by
virtue of the possessor's consent.' " Id. at 757 (quoting
Restatement (Second) of Torts S 330 (1965)).

The plaintiffs cite no authority standing for the
proposition that consent to use property can be implied by
a failure to take sufficient precautions to prevent people
from entering the land. The plaintiffs' theory seeks to turn
every foreseeable trespasser into a licensee. However, the
law recognizes that a foreseeable trespasser is still a
trespasser. See Oswald v. Hausman, 548 A.2d 594, 598-99
(Pa. Super. Ct. 1988) (distinguishing foreseeable
trespassers from licensees). Mere acquiescence to
trespassing does not alter an entrant's status.

Even assuming arguendo that a possessor's assent to
trespassing amounts to implied consent for using the land,
uncontradicted evidence submitted by the plaintiffs
demonstrates that SEPTA, the possessor of the track area,
did not acquiesce to the presence of trespassers upon its
land. Linda Holman, whose statement the plaintiffs
submitted in opposition to summary judgment, wrote:
"Back where [Zimmerman] was burned there are homeless
people all the time. The police chase them and they come
back." Gerald Peterson, whose statement the plaintiffs also
secured, wrote: "I saw kids back there a few days before the
burn incident with bicycles. The Amtrak police caught
them." Thus, the evidence the plaintiffs submitted to show
that people entered the track area also established that
SEPTA utilized police to eject unauthorized persons from
the track area. SEPTA did not acquiesce to the entry and
use of the track area by persons who were not performing
railroad-related work. Consequently, even if knowledge of
people's presence on the land could create implied consent
to use the land, a reasonable factfinder must conclude that
SEPTA did not give Zimmerman implied permission to enter
and remain in the track area.

The plaintiffs also maintain that there was a causeway
that enabled unencumbered access from John F. Kennedy
Boulevard to the track area. They apparently invoke the
permissive crossing doctrine and maintain that the

                               8
causeway created an implied license for Zimmerman to
enter and remain in the track area.

       A permissive crossing is an express or implied license
       to pass over the property of another. It must be
       restricted to a well-defined location and must be shown
       to be used frequently, continuously, and notoriously by
       the public. Essential to the establishment of the
       permissive way is the well-defined location of the way
       in a limited area.

Henry v. Pennsylvania R.R. Co., 84 A.2d 675, 677 (Pa.
1951) (citations omitted).

The permissive crossing doctrine is inapplicable in this
case. The people who entered the track area without
express permission did not briefly pass over the property in
order to get to the other side of the tracks. Rather, they
remained on the property for substantial periods of time. In
cases where Pennsylvania courts have found a permissive
crossing, the property was used as a crossing, not a haven.
See, e.g., Shaw v. Pennsylvania R.R. Co., 96 A.2d 923, 925
(Pa. 1953); Henry, 84 A.2d at 676; Echon v. Pennsylvania
R.R. Co., 76 A.2d 175, 178 & n.4 (Pa. 1950); Gaul v.
Consolidated Rail Corp., 556 A.2d 892, 895 (Pa. Super. Ct.
1989). People, like Zimmerman, who do not intend to cross
the property cannot successfully invoke the permissive
crossing doctrine. See Scarborough v. Lewis, 518 A.2d 563,
565 (Pa. Super. Ct. 1986) (holding permissive crossing
doctrine inapplicable where plaintiff did not intend to cross
railroad tracks), rev'd on other grounds, 565 A.2d 122 (Pa.
1989). In addition, a permissive crossing must have a path
that traverses railroad tracks, and there is no evidence of a
path across the tracks in this case. See Hamley v. George,
76 A.2d 181, 183 (Pa. 1950) ("A permissive crossing is a
defined foot path leading to and crossing over railway
tracks, which is being habitually used and places upon the
railway company a duty of care comparable to that required
at a regular crossing."). Rather, the evidence merely
presents a path leading toward the tracks. See
Scarborough, 518 A.2d at 565, 573 (holding path leading
toward tracks insufficient to create permissive crossing).
Because the people, including Zimmerman, entering and
remaining in the track area without express authorization

                               9
did not use the property as a mere crossing, the permissive
crossing doctrine did not render Zimmerman an implied
licensee.

Further, even if SEPTA had impliedly consented to permit
Zimmerman to enter and remain in the track area, there is
no evidence that SEPTA consented to permit Zimmerman to
climb up and sit atop the catenary. Therefore, there is no
genuine issue of material fact over Zimmerman's entrant
classification. He was a trespasser as a matter of law.
Accordingly, the plaintiffs must show that SEPTA or Amtrak
committed wanton or willful negligence or misconduct. See
Rossino, 718 A.2d at 756.

The plaintiffs contend that exceptions to the general duty
owed to trespassers should heighten the defendants'
standard of care in this case. The plaintiffs argue that the
Restatement (Second) of Torts S 337, pertaining to highly
dangerous artificial conditions encountered by known
trespassers, imposes a more substantial duty on SEPTA
than the duty to refrain from wantonly or willfully injuring
the trespasser.

Section 337 provides:

       A possessor of land who maintains on the land an
       artificial condition which involves a risk of death or
       serious bodily harm to persons coming in contact with
       it, is subject to liability for bodily harm caused to
       trespassers by his failure to exercise reasonable care to
       warn them of the condition if

       (a) the possessor knows or has reason to know of
       their presence in dangerous proximity to the condition,
       and

       (b) the condition is of such a nature that he has
       reason to believe that the trespasser will not discover it
       or realize the risk involved.

Restatement (Second) of Torts S 337 (1965).

The catenary, along with the electric wires, is properly
classified as an artificial condition, rather than an activity
or a force. However, Pennsylvania jurisprudence has not
adopted this section of the Restatement. Under

                                10
Pennsylvania law, there is no heightened duty to
foreseeable trespassers for artificial conditions.
Micromanolis v. Woods School, Inc., 989 F.2d 696, 700 (3d
Cir. 1993); Graham v. Sky Haven Coal, Inc., 563 A.2d 891,
896 & n.8 (Pa. Super. Ct. 1989). Consequently, SEPTA did
not owe Zimmerman a heightened duty because of the
catenary's danger. Besides, even if Pennsylvania adopted
section 337 of the Restatement, SEPTA had no reason to
believe that trespassers could not discover the dangerous
condition or appreciate the risk.

The plaintiffs assert that SEPTA and Amtrak are subject
to a heightened standard of care because the high-voltage
electrical wire formed a dangerous instrumentality.
Generally, the supplier of electricity or the possessor of
land site owes a heightened, rather than an ordinary,
degree of care to an entrant on land with high-voltage
electrical transmission lines. See Stark v. Lehigh Foundries,
Inc., 130 A.2d 123, 128-31 (Pa. 1957); Yoffee v.
Pennsylvania Power & Light Co., 123 A.2d 636, 645 (Pa.
1956); Bailey v. Pennsylvania Elec. Co., 598 A.2d 41, 47
(Pa. Super. Ct. 1991); Beary v. Container Gen. Corp., 533
A.2d 716, 720 (Pa. Super. Ct. 1987). "However, this
heightened duty of care extends only to those lawfully in
proximity to the wires. The standard of care owed to
trespassers by suppliers of electricity is a duty to avoid
wilful and wanton injury." Heller, 576 F. Supp. at 12 n.7
(emphasis in original) (citation omitted); see also Dunnaway
v. Duquesne Light Co., 423 F.2d 66, 69 n.2 (3d Cir. 1970)
("Under Pennsylvania law an electric company as the
supplier of a dangerous agent is under a duty to use the
very highest degree of care practicable to avoid injury to
every one who may be lawfully in proximity to its wires."
(internal quotations omitted)); Graham, 563 A.2d at 897 n.8
(noting Commonwealth's long-recognized rule limiting
landowner's duty to trespasser to refraining from wanton or
willful misconduct). In light of Zimmerman's status as a
trespasser, SEPTA, as possessor of the land, and Amtrak,
as supplier of the electricity, did not owe Zimmerman a
heightened duty of care.

The plaintiffs claim that the child trespasser exception
should apply in this case because, although he was twenty-

                                11
three years old when he was electrocuted, Zimmerman
suffered from bipolar disorder and could not fully
comprehend the danger he faced. The child trespasser
exception, also known as the attractive nuisance doctrine,
is limited to instances in which children unlawfully enter or
remain on land. The law does not impose upon owners and
possessors of land a higher duty to protect from injury
adults with emotional disorders. Furthermore, the plaintiffs
failed to present medical evidence suggesting that
Zimmerman, because he was a manic depressive, had a
diminished capacity to appreciate risks. Hence, the child
trespasser exception does not apply to this case.

Thus, the District Court committed no error in
concluding that the appropriate standard of care was the
duty to refrain from wanton or willful misconduct.

C.

The plaintiffs assert that there was sufficient evidence of
wanton misconduct to survive summary judgment. The
plaintiffs claim that the defendants' insufficient warning of
the wires' danger despite the regular trespassing on to the
track area, as well as the re-energizing of the power lines
without checking to see why the circuit had tripped,
amounted to wanton misconduct.

       Wanton misconduct . . . means that the actor has
       intentionally done an act of an unreasonable character,
       in disregard of a risk known to him or so obvious that
       he must be taken to have been aware of it, and so
       great as to make it highly probable that harm would
       follow.

Evans v. Philadelphia Transp. Co., 212 A.2d 440, 443 (Pa.
1965) (internal quotations omitted); accord Dudley v. USX
Corp., 606 A.2d 916, 922 (Pa. Super. Ct. 1992).

SEPTA did not commit wanton misconduct by allegedly
inadequately posting warning signs pertaining to the
electrical wires' danger. Although SEPTA was aware, or at
least should have been aware, that trespassers entered and
remained in the track area, SEPTA had no knowledge that
trespassers climbed the catenary structure. The plaintiffs

                                12
submitted no evidence that anyone had climbed the
structure or had been electrocuted on it before
Zimmerman. Consequently, the risk of electrocution from
climbing the catenary was not so great that more warning
signs were required.

Knowledge of a specific risk cannot be imputed from
knowledge of a general risk. In Micromanolis, this court
held that the defendant's knowledge that trespassers swam
in a pool did not equate with constructive knowledge of the
risk that someone would dive into the middle of the
unlighted pool at night without checking the water level.
989 F.2d at 702. Likewise, SEPTA's knowledge that people
entered and remained in the track area does not equate
with knowledge of the risk that someone would climb the
catenary structure, sit on top of it, and get electrocuted.

Moreover, SEPTA did not commit wanton misconduct
when Lazarus re-energized the circuit after Zimmerman
had tripped it. The risk of harm caused by re energizing the
circuit was low. Railroad circuits get tripped regularly; only
rarely are they tripped by humans. See Carpenter v. Penn
Central Transp. Co., 409 A.2d 37, 38 (Pa. Super. Ct. 1979)
(noting in 1974 two of 1190 tripped circuits were caused by
humans and most of others had been caused by birds,
icicles, and other small objects contacting power lines). At
the time Lazarus re-energized the line, he had no reason to
believe that a human, rather than a bird, had tripped the
circuit. There was little probability that harm would result
from re-energizing the circuit. Besides, Zimmerman did not
trip the circuit after Lazarus re-energized it; hence,
Zimmerman was not electrocuted after Lazarus restored the
power.

There is no genuine issue of material fact over whether
SEPTA breached its duty to refrain from wanton or willful
misconduct. Accordingly, the District Court did not err in
granting summary judgment for SEPTA.

The plaintiffs presented no evidence that Amtrak, which
was not responsible for the maintenance of the wires in the
track area, committed wanton or willful misconduct with
respect to its role as the supplier of electricity. Hence,
Amtrak did not breach its duty to Zimmerman. Therefore,

                                13
the District Court committed no error in granting summary
judgment for Amtrak.

D.

The plaintiffs argue that they should be able to
demonstrate the defendants' negligence through the
doctrine of res ipsa loquitur. They maintain that the District
Court erred in holding that res ipsa loquitur could not be
used to prove wanton or willful misconduct.

Res ipsa loquitur is "a shorthand expression for
circumstantial proof of negligence." Gilbert v. Korvette, Inc.,
327 A.2d 94, 99 (Pa. 1974).

       (1) It may be inferred that harm suffered by the
       plaintiff is caused by negligence of the defendant 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.

Id. at 100 (quoting Restatement (Second) of Torts S 328D
(1965)).

We need not decide whether the doctrine is applicable to
torts allegedly committed against trespassers because the
plaintiffs have not established every element of the
doctrine. See Micciche v. Eastern Elevator Co., 645 A.2d
278, 281 (Pa. Super. Ct. 1994) (holding plaintiff not entitled
to res ipsa loquitur instruction because he failed to
establish every element of doctrine). Most fundamentally,
the evidence did not eliminate the possibility that
Zimmerman's conduct had caused the electrocution.
Zimmerman trespassed onto SEPTA property, climbed the
catenary, and sat on top of the structure in close proximity
to high-voltage wires. The danger posed by the wires was
obvious. Even if Zimmerman had never seen the warning
signs posted on the bridge at 20th Street, he should have
realized that he was flirting with peril. A reasonable person

                               14
would have recognized that electrical wires running parallel
and above train tracks posed a grave danger. Consequently,
the plaintiffs cannot establish the second element of the res
ipsa loquitur doctrine.

In addition, the plaintiffs have not presented sufficient
evidence that the purported negligence fell within the scope
of the defendants' duty to Zimmerman. SEPTA and Amtrak
had a duty to refrain from wanton or willful conduct. As
discussed above, no reasonable factfinder could conclude
that either SEPTA or Amtrak intentionally injured
Zimmerman or disregarded a known high risk. The District
Court did not err in concluding that the plaintiffs' case
could not survive summary judgment on a res ipsa loquitur
theory.

III.

The judgment of the District Court will be affirmed. Costs
to be taxed against the appellants.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                15
