1999 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"Estate Zimmerman v. SEPTA" (1999). 1999 Decisions. Paper 52.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/52
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