### 1999 D e c i sion s O p inion s of the U nit e d

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D ock e t 98-1631

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. e du/thir dc ir c uit_1999/52Filed 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, individ ually

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 wh ere 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 supp orts a catenary at the top. A catenary is an arrangement o f wires on a large steel framework. The wires connect the catenaries and carry high-voltage electricity to pr ovide 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 Pa rdo, filed a wrongful death and survival action with the Court of Common Pleas of Delaware County, Pennsylvania. Essentially, the plaintiffs alleged that the neglig ence 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, asse rting 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. S144 1(a).

On June 22, 1998, the District Court granted summar y judgment for the defendants. See Estate of Zimmerma n v. Southeastern Penn. Transp. Auth., 17 F. Supp. 2d 37 2 (E.D. Pa. 1998). The plaintiffs timely appealed. We affir m.

I.

On August 6, 1994, eyewitnesses observed Zimmerman climb a concrete wall and an iron fence to gain acc ess to the general area enclosing railroad tracks on which

commuter trains travel. This section extends from 2 0th 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 fee t west of the bridge and is raised from the track level and s upported by a concrete foundation on the north side of the t rack

area.

At midday, Zimmerman climbed the structure, reached the top, and sat on the crossbar of the catenary, w here he was electrocuted. The electrocution caused a power outage. Following SEPTA policy, Paul Lazarus, the power dir ector, quickly re-energized the circuit from his remote lo cation at Wayne Junction station. Because Zimmerman was sitti ng on the catenary crossbar, which was grounded, the c ircuit 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 th at Zimmerman was sitting on the catenary. Thereafter, firefighters removed Zimmerman from the catenary. N ine days later, he died from burns caused by the electr ocution.

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

3Zimmerman's death. According to the uncontradicted

evidence in the record, only SEPTA used the train t racks in

this area.

The plaintiffs produced evidence that homeless peop le

would enter the track area. Graffiti covered the in side wall nearby where Zimmerman was electrocuted. Paths led from John F. Kennedy Boulevard toward the track area. Th e plaintiffs secured written statements from witnesse s 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 wr ote that homeless people were in the track area "all the tim e" and that police periodically chased them away. However, there was no evidence that people climbed the catenary be fore 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 inc ludes the message "Keep Off." The plaintiffs claim that n one of the warning signs are visible from the accident sig ht. 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 wantonnes s or willfulness standard for premises liability to tres passers applied. The Court concluded that the defendants ac ted neither wantonly nor willfully. The Court determine d that Conrail and the City could not be liable for Zimmer man's death because they did not possess the track area o r the catenary. The Court also held that Amtrak did not p ossess the land and owed no duty as the electricity suppli er because Zimmerman did not lawfully come into proxim ity to the electricity.

II.

Our review of the District Court's grant of summary judgment is plenary. In re Baby Food Antitrust Liti g., ___ F.3d ___, ___ (slip op. at 22) (3d Cir. 1999). "[T] here is no

issue for trial unless there is sufficient evidence favoring

4the nonmoving party for a jury to return a verdict for that

party. If the evidence is merely colorable or is no t 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 There fore, the plaintiffs must prove: (1) a duty owed to the deced ent; (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 pl aintiffs. See Estate of Swift v. Northeastern Hosp. of Phila. , 690 A.2d 719, 722 (Pa. Super. Ct. 1997). The failure to esta blish any one of these elements is a ground for summary judgm ent. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (19 86) ("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 fail s to make a showing sufficient to establish the existenc e of an element essential to that party's case, and on whic h 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 ge nuine issue of material fact existed regarding whether al l 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 th at Amtrak, because it supplied the electricity that ra n through the wires attached to the catenary, owed an additio nal duty

to Zimmerman.

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

___________________________________________________ ______________

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

same.

5see 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 Cor p., 615 F. Supp. 1002, 1015 (E.D. Pa. 1985); Blackman, 664 A.2d at 142; see also Restatement (Second) of Torts S 32 8E(a) (1965).

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

The plaintiffs argue that Amtrak and SEPTA allegedl y had an agreement related to the maintenance of the cate nary 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 deni es its existence. No evidence in the record suggests that Amtrak possessed or controlled the track area or the caten ary.

The plaintiffs also assert that Conrail possessed t he property because Conrail used the tracks in the tra ck area. The plaintiffs offer no evidence that Conrail utili zed the railroad tracks. Besides, Conrail's alleged use of the tracks does not equate with possession. Access to land nee d not

entail control over land.

Lastly, the plaintiffs maintain that the City owns the

track area and claim that no evidence shows that th e City did not own the property. The plaintiffs bear the b urden of persuasion, and they failed to present evidence of the City's alleged ownership. Contrary to the plaintiffs' cont ention, they needed to produce that evidence in conjunction with its opposition to the City's summary judgment motio n.

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

Nevertheless, Amtrak, as the supplier of electricit y, owed Zimmerman a duty of care. The uncontradicted eviden ce in

6the record establishes that Amtrak supplied the ele ctricity

that flowed through the wires attached to the caten ary. 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 t he status of the injured person on the land. See Heller v. Conso lidated 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 A mtrak's assertion that it owed a duty to Zimmerman only if he was lawfully in proximity to the electrical lines. Unde r Pennsylvania law, electricity suppliers owe a duty, albeit a limited one, to avoid wanton or willful injury to t respassers. See id. This rule comports with the notion that tre spassers be given some, however modest, protection against tortfeasors. See, e.g., Barre v. Reading City Passe nger Ry. Co., 26 A. 99, 100 (Pa. 1893) ("Even trespassers ar e entitled to humane consideration.").

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

B.

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

and Amtrak owed Zimmerman.

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

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

7Rossino, 718 A.2d at 756-57 (quoting Restatement (S econd)

of Torts S 329 (1965)). "A licensee, on the other h and is `a person who is privileged to enter or remain on land only by virtue of the possessor's consent.' " Id. at 757 (q uoting Restatement (Second) of Torts S 330 (1965)).

The plaintiffs cite no authority standing for the proposition that consent to use property can be imp lied by a failure to take sufficient precautions to prevent people from entering the land. The plaintiffs' theory seek s to turn every foreseeable trespasser into a licensee. Howev er, the law recognizes that a foreseeable trespasser is sti ll a trespasser. See Oswald v. Hausman, 548 A.2d 594, 59 8-99 (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 th e land, uncontradicted evidence submitted by the plaintiffs demonstrates that SEPTA, the possessor of the track area, did not acquiesce to the presence of trespassers up on its land. Linda Holman, whose statement the plaintiffs submitted in opposition to summary judgment, wrote: "Back where [Zimmerman] was burned there are homele ss people all the time. The police chase them and they come back." Gerald Peterson, whose statement the plainti ffs also secured, wrote: "I saw kids back there a few days b efore the burn incident with bicycles. The Amtrak police caug ht 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 entr y and use of the track area by persons who were not perfo rming railroad-related work. Consequently, even if knowle dge of people's presence on the land could create implied consent to use the land, a reasonable factfinder must concl ude that SEPTA did not give Zimmerman implied permission to enter
and remain in the track area.

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

8causeway created an implied license for Zimmerman t o

enter and remain in the track area.

A permissive crossing is an express or impli ed license to pass over the property of another. It mus t be

restricted to a well-defined location and mu st be shown to be used frequently, continuously, and not oriously by the public. Essential to the establishment o f 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 (P a. 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 pr operty in order to get to the other side of the tracks. Rathe r, they remained on the property for substantial periods of time. In cases where Pennsylvania courts have found a permis sive crossing, the property was used as a crossing, not a haven. See, e.g., Shaw v. Pennsylvania R.R. Co., 96 A.2d 9 23, 925 (Pa. 1953); Henry, 84 A.2d at 676; Echon v. Pennsyl vania R.R. Co., 76 A.2d 175, 178 & n.4 (Pa. 1950); Gaul v

. Consolidated Rail Corp., 556 A.2d 892, 895 (Pa. Sup er. Ct. 1989). People, like Zimmerman, who do not intend to cross the property cannot successfully invoke the permiss ive crossing doctrine. See Scarborough v. Lewis, 518 A. 2d 563, 565 (Pa. Super. Ct. 1986) (holding permissive cross ing doctrine inapplicable where plaintiff did not inten d 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 evi dence 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 rail way tracks, which is being habitually used and places u pon the railway company a duty of care comparable to that r equired at a regular crossing."). Rather, the evidence mere ly presents a path leading toward the tracks. See Scarborough, 518 A.2d at 565, 573 (holding path lea ding toward tracks insufficient to create permissive cro ssing). Because the people, including Zimmerman, entering a nd remaining in the track area without express authori zation

9did not use the property as a mere crossing, the pe rmissive

crossing doctrine did not render Zimmerman an impli ed

licensee.

Further, even if SEPTA had impliedly consented to p ermit Zimmerman to enter and remain in the track area, th ere is no evidence that SEPTA consented to permit Zimmerma n to climb up and sit atop the catenary. Therefore, ther e is no genuine issue of material fact over Zimmerman's ent rant 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 misconduc t. See Rossino, 718 A.2d at 756.

The plaintiffs contend that exceptions to the gener al 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 know n trespassers, imposes a more substantial duty on SEP TA than the duty to refrain from wantonly or willfully injuring the trespasser.

Section 337 provides:

A possessor of land who maintains on the lan d an

artificial condition which involves a risk o f death or serious bodily harm to persons coming in con tact with it, is subject to liability for bodily harm caused to trespassers by his failure to exercise reaso nable care to

warn them of the condition if

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

and

(b) the condition is of such a nature that h e has reason to believe that the trespasser will n ot discover it

or realize the risk involved.

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

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

10Pennsylvania law, there is no heightened duty to

foreseeable trespassers for artificial conditions. Micromanolis v. Woods School, Inc., 989 F.2d 696, 7 00 (3d Cir. 1993); Graham v. Sky Haven Coal, Inc., 563 A.2 d 891, 896 & n.8 (Pa. Super. Ct. 1989). Consequently, SEPT A did not owe Zimmerman a heightened duty because of the catenary's danger. Besides, even if Pennsylvania ad opted section 337 of the Restatement, SEPTA had no reason to believe that trespassers could not discover the dan gerous condition or appreciate the risk.

The plaintiffs assert that SEPTA and Amtrak are sub ject to a heightened standard of care because the high-v oltage electrical wire formed a dangerous instrumentality. Generally, the supplier of electricity or the posse ssor of land site owes a heightened, rather than an ordinar y, degree of care to an entrant on land with high-volt age 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 4 1, 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 lawfu lly in proximity to the wires. The standard of care owed t o trespassers by suppliers of electricity is a duty t o 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 us e the very highest degree of care practicable to avoid in jury to every one who may be lawfully in proximity to its w ires." (internal quotations omitted)); Graham, 563 A.2d at 897 n.8 (noting Commonwealth's long-recognized rule limitin g landowner's duty to trespasser to refraining from w anton or willful misconduct). In light of Zimmerman's status as a trespasser, SEPTA, as possessor of the land, and Am trak, as supplier of the electricity, did not owe Zimmerm an a heightened duty of care.

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

11three years old when he was electrocuted, Zimmerman

suffered from bipolar disorder and could not fully comprehend the danger he faced. The child trespasse r exception, also known as the attractive nuisance do ctrine,

is limited to instances in which children unlawfull y enter or remain on land. The law does not impose upon owners and possessors of land a higher duty to protect from in jury adults with emotional disorders. Furthermore, the p laintiffs 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 wa s the duty to refrain from wanton or willful misconduct.

C.

The plaintiffs assert that there was sufficient evi dence of wanton misconduct to survive summary judgment. The plaintiffs claim that the defendants' insufficient warning of the wires' danger despite the regular trespassing o n to the track area, as well as the re-energizing of the pow er 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 ob vious that he must be taken to have been aware of it, a nd so great as to make it highly probable that har m would

follow.

Evans v. Philadelphia Transp. Co., 212 A.2d 440, 44 3 (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 th e electrical wires' danger. Although SEPTA was aware, or at least should have been aware, that trespassers ente red and remained in the track area, SEPTA had no knowledge that trespassers climbed the catenary structure. The pla intiffs

12submitted 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 wa rning 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 trespasser s swam in a pool did not equate with constructive knowledg e 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 p eople entered and remained in the track area does not equ ate with knowledge of the risk that someone would climb the catenary structure, sit on top of it, and get elect rocuted.

Moreover, SEPTA did not commit wanton misconduct when Lazarus re-energized the circuit after Zimmerm an had tripped it. The risk of harm caused by re energ izing the circuit was low. Railroad circuits get tripped regu larly; 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 c aused by humans and most of others had been caused by birds, icicles, and other small objects contacting power l ines). At the time Lazarus re-energized the line, he had no r eason to believe that a human, rather than a bird, had tripp ed the circuit. There was little probability that harm wou ld result from re-energizing the circuit. Besides, Zimmerman did not trip the circuit after Lazarus re-energized it; hen ce, Zimmerman was not electrocuted after Lazarus restor ed the

power.

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

The plaintiffs presented no evidence that Amtrak, w hich was not responsible for the maintenance of the wire s 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. Theref ore,

13the District Court committed no error in granting s ummary

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 t he 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. Kor vette, 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 def endant 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 suffici ently eliminated by the evidence; and

(c) the indicated negligence is within the s cope 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 applicab le to torts allegedly committed against trespassers becau se the plaintiffs have not established every element of th e doctrine. See Micciche v. Eastern Elevator Co., 645 A.2d 278, 281 (Pa. Super. Ct. 1994) (holding plaintiff n ot entitled to res ipsa loquitur instruction because he failed to establish every element of doctrine). Most fundamen tally, the evidence did not eliminate the possibility that

Zimmerman's conduct had caused the electrocution. Zimmerman trespassed onto SEPTA property, climbed t he catenary, and sat on top of the structure in close proximity to high-voltage wires. The danger posed by the wire s was obvious. Even if Zimmerman had never seen the warni ng signs posted on the bridge at 20th Street, he shoul d have realized that he was flirting with peril. A reasona ble person

14would have recognized that electrical wires running parallel

and above train tracks posed a grave danger. Conseq uently, the plaintiffs cannot establish the second element of the res ipsa loquitur doctrine.

In addition, the plaintiffs have not presented suff icient evidence that the purported negligence fell within the scope of the defendants' duty to Zimmerman. SEPTA and Amt rak had a duty to refrain from wanton or willful conduc t. As discussed above, no reasonable factfinder could con clude that either SEPTA or Amtrak intentionally injured Zimmerman or disregarded a known high risk. The Dis trict Court did not err in concluding that the plaintiffs ' case could not survive summary judgment on a res ipsa lo quitur 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