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ESTATE OF ZIMMERMAN v. SEPTA

June 22, 1998

ESTATE OF AARON ZIMMERMAN; 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 THOMAS ZIMMERMAN
v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY; AMTRACK; CONSOLODATED RAIL; and THE CITY OF PHILADELPHIA



The opinion of the court was delivered by: DUBOIS

ORDER AND MEMORANDUM

 ORDER

 AND NOW, to wit, this 22nd day of June, 1998, upon consideration of the following Motions:

 
The Motion of defendant Consolidated Rail Corporation ("Conrail") for Summary Judgment (Doc. No. 23, filed November 25, 1997);
 
The Motion of defendant Southeastern Pennsylvania Transportation Authority ("SEPTA") for Summary Judgment (Doc. No. 24, filed November 25, 1997);
 
The Motion of defendant National Railroad Passenger Corporation ("Amtrak") for Summary Judgment (Doc. No. 25, filed November 25, 1997); and
 
The Motion of defendant City of Philadelphia for Summary Judgment (Doc. No. 29, filed November 25, 1997);

 and upon consideration of the following additional submissions of the parties: Supplemental Memorandum in Support of Defendant, Conrail's, Motion for Summary Judgment (Doc. No. 32, filed February 28, 1998), plaintiffs' Response to the Motion for Summary Judgment Filed By the Defendant Conrail (Doc. No. 35, filed April 15, 1998), Supplemental Memorandum in Support of Defendant, SEPTA's, Motion for Summary Judgment (Doc. No. 30, filed February 28, 1998), plaintiffs' Response to the Motion for Summary Judgment Filed By the Defendant SEPTA (Doc. No. 33, filed April 15, 1998), Supplemental Memorandum in Support of Defendant, Amtrak's, Motion for Summary Judgment (Doc. No. 31, filed February 28, 1998), plaintiffs' Response to the Motion for Summary Judgment Filed By the Defendant Amtrak (Doc. No. 36, filed April 15, 1998), plaintiffs' Response to the Motion for Summary Judgment Filed By the Defendant City of Philadelphia (Doc. No. 34, filed April 15, 1998), plaintiffs' Supplemental Response to the Defendants' Motions for Summary Judgment (Doc. No. 38, filed May 29, 1998), defendant Conrail's Reply Brief to Plaintiffs' Initial and Supplemental Response to Conrail's Motion for Summary Judgment (Doc. No. 40, filed June 5, 1998), defendant SEPTA's Reply Brief to Plaintiffs' Initial and Supplemental Response to SEPTA's Motion for Summary Judgment (Doc. No. 42, filed June 5, 1998), defendant Amtrak's Reply Brief to Plaintiffs' Initial and Supplemental Response to Amtrak's Motion for Summary Judgment (Doc. No. 41, filed June 5, 1998), and Reply Memorandum of Law in Support of Defendant City of Philadelphia's Motion for Judgment on the Pleadings (Doc. No. 39, filed June 3, 1998), *fn1" for the reasons set forth in the accompanying Memorandum, IT IS ORDERED as follows:

 
The Motion for Summary Judgment of defendant Consolidated Rail Corporation (Doc. No. 23, filed November 25, 1997), is GRANTED.
 
The Motion for Summary Judgment of defendant Southeastern Pennsylvania Transportation Authority (Doc. No. 24, filed November 25, 1997), is GRANTED.
 
The Motion for Summary Judgment of defendant National Railroad Passenger Corporation (Doc. No. 25, filed November 25, 1997), is GRANTED.
 
The Motion for Summary Judgment of defendant City of Philadelphia (Doc. No. 29, filed November 25, 1997), is GRANTED.
 
JUDGMENT is ENTERED in favor of defendants Consolidated Rail Corporation, Southeastern Pennsylvania Transportation Authority, National Railroad Passenger Corporation, and the City of Philadelphia, and against plaintiffs Kathryn Watkins, a/k/a Catherine Watkins, Administratrix of the Estate of Aaron Zimmerman, and Linda Pardo, individually and as heir to the Estate of Aaron Zimmerman.

 I. Background

 The claims in this case arise out of the death by electrocution of Aaron Zimmerman ("decedent"). On August 6, 1994, Mr. Zimmerman entered an area east of the 30th Street Train Station in Philadelphia - an area through which trains run - where he climbed onto a structure initially characterized as a "tower" by plaintiffs and later referred to as a support structure for a "catenary" by defendants. *fn2" It was upon this catenary structure that decedent received the electrical shock which eventually killed him. Plaintiffs assert that four defendants are liable for this death: SEPTA, Conrail, Amtrak and the City of Philadelphia (the "City"). Plaintiffs claim that each of these defendants had some control, possession or at least access to the area in which Mr. Zimmerman was electrocuted and that liability flows from that control, possession or access. Plaintiffs additionally allege that the City not only had possession, control or access, but had a duty to ensure that members of the public could not reach the area where the catenary structure involved in the accident was located.

 A central issue to resolution of the within Motions is who had possession and control of the catenary structure and the surrounding area. The facts surrounding possession and control are disputed by the parties. Plaintiffs allege that Amtrak had a contractual arrangement with other defendants which governed access to and control of the area of the accident. Defendants deny the existence of any such agreement and plaintiffs have offered no proof of its existence. SEPTA has acknowledged that at the time of the accident it was in sole possession and control of the area and Amtrak has said that it supplied the electricity used by SEPTA, but was not responsible for the maintenance or control of the catenary structure or the electrical system. Defendants have submitted the deposition testimony of SEPTA employees in support of these claims. Plaintiffs offer no proof of their allegations with respect to possession and control of the area.

 Also critical to a resolution of the within Motions is whether the defendants knew, or should have known, of the presence of trespassers in the area of the catenary structure before Mr. Zimmerman's accident. As evidence that defendants were aware, or should have been aware, of the presence of trespassers in that area, plaintiffs have submitted photographs - which they allege, in argument and without substantiation, were taken "almost immediately after" the accident - and a videotape of a television news report broadcast at the time of the accident which show that the wall on one side of the railroad tracks is covered with graffiti.

 Plaintiffs also submitted statements obtained from witnesses shortly after the accident. One witness wrote that he had "called the police at times about people climbing the fence & onto the property" and that he "always knew someone would eventually be killed there - a lot of power over there & a lot of activity. They need a good fence there." Statement of Gerald Peterson, dated October 26, 1994. He also stated that there "were kids back a few days before the burn incident with bicycles. The Amtrak police caught them." Id. Another witness stated that "Back where the man was burned there are homeless people all the time. The police chase them and they come back." Statement of Linda Holman, dated October 26, 1994. A third witness wrote that "I can't say that I have ever had occasion to chase anyone away from that area and I don't know of any other incidents there." Statement of Kenneth Magobet, dated October 26, 1994.

 Plaintiffs additionally allege that there is a "causeway" leading from a bridge running above the tracks to the area in which the electrocution occurred. This "causeway" is, they say, used by homeless people and a tunnel down by the tracks acts as a "magnet" for the homeless, a class in which Mr. Zimmerman is alleged to have been a member. Plaintiffs offer no evidence of these allegations, raised in their Supplemental Response, and the photographs submitted as exhibits to that Response do not show any evidence of such a "causeway."

 Finally, SEPTA acknowledges that after a circuit was initially tripped by Mr. Zimmerman coming into contact with a power line connected to the catenary structure, the "power director," Paul Lazarus, a SEPTA employee, re-energized the circuit. Electricity was thereafter cut off manually after SEPTA was informed by the fire department that a person was on the catenary structure. Plaintiffs allege that this is evidence of willful or wanton misconduct on the part of SEPTA. In response, SEPTA submitted part of a transcript of Mr. Lazarus' deposition in which he stated that had Mr. Zimmerman come into contact with any wires after they had been re-energized, he would have tripped the breaker again. That did not happen. Moreover, plaintiffs offer no evidence that such re-energization of the circuit after the initial outage was out of the ordinary. *fn3"

 Plaintiffs' Complaint sounds in two counts: Count I alleges that the defendants are jointly and severally liable for Aaron Zimmerman's wrongful death (presumably under the Wrongful Death Act, 42 Pa.C.S.A. ' 8301, although plaintiffs do not refer to it in their Complaint); Count II states that the defendants are jointly and severally liable in a survival action (presumably under the Survival Act, 42 Pa.C.S.A. ' 8302, although again, plaintiffs do not cite or refer to the statute.) *fn4"

 Legal Standard

 In deciding a motion for summary judgment the Court must determine whether there exist any triable issues of fact. See Anderson v. Liberty Lobby, 477 U.S. 242, 247-49, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A court must grant the motion if it finds that the pleadings, together with depositions, admissions, answers, interrogatories, and affidavits present "no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In responding to a motion for summary judgment, the non-moving party must present "more than a mere scintilla of evidence in its favor" and may not rely on unsupported assertions or conclusory allegations. See Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989) (citation omitted). "When considering a motion for summary judgment, the court must view all evidence in favor of the non-moving party. . . . Additionally, all doubts must be resolved in favor of the non-moving party." Securities and Exchange Commission v. Hughes Capital Corp., 124 F.3d 449, 452 (3d Cir. 1997) (citations omitted). With these standards in mind, the Court will address each defendant's Motion.

 Discussion

 A. SEPTA's Motion for Summary Judgment

 SEPTA acknowledges that it possessed and controlled the catenary system upon which the decedent was electrocuted but maintains that nonetheless, it cannot be liable to plaintiffs as a matter of law. SEPTA's primary argument is that because the decedent was a trespasser, the only duty it owed the decedent was to refrain from willful or wanton misconduct, which plaintiffs not only cannot demonstrate, but have not even alleged. SEPTA also maintains that this is the proper standard - even though electricity was involved - as there is no special duty owed trespassers as a result of the presence of live electrical wires. Additionally, SEPTA contends that none of the exceptions to the general rule governing a property owner's duty to trespassers is present in this case. Finally, SEPTA argues in the alternative that should a simple negligence standard apply, the decedent assumed the risk of his electrocution, was more than fifty percent negligent (and therefore cannot recover under Pennsylvania law), and is barred from recovery because his behavior was willful or wanton. Plaintiffs' principal response is that they are proceeding under a res ipsa loquitur theory, an assertion that is made in both their initial and supplemental filings. The Court will first address this - frequently reiterated - claim regarding the res ipsa loquitur doctrine.

 In arguing that res ipsa loquitur applies in this case, plaintiffs refer to defendants' "exclusive control" of the catenary system and state that this control "activates" the res ipsa loquitur doctrine. They then state that the "doctrine shifts the burden of proof onto the defendant who has exclusive control to explain what happened . . . ." The Court rejects this argument.

 The "exclusive control" requirement is part of an evidentiary scheme abandoned by the Pennsylvania Supreme Court in Gilbert v. Korvette, Inc., 457 Pa. 602, 327 A.2d 94 (Pa. 1974). In Gilbert, the Supreme Court adopted the Restatement (Second) of Torts ยง 328D which states that:

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

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