CONNIE GOOD, Individually and as Parent and Natural Guardian of C.G., Plaintiff,
FIRSTENERGY CORP., Defendant.
JAMES M. MUNLEY, District Judge.
Before the court is Defendant FirstEnergy Corporation's motion to dismiss. (Doc. 7). The matter has been fully briefed and is ripe for disposition.
C.G. is a minor who lives with her mother, Plaintiff Connie Good (hereinafter "plaintiff") in Dingmans Ferry, Pennsylvania. (Doc. 1, Compl. (hereinafter "Compl.") ¶¶ 3-5). On May 22, 2012, eleven (11) year old C.G. was playing with her nine (9) year old brother and a friend in the area of the Birchwood Lakes high voltage electrical substation ("Birchwood Lakes Substation"). (Id. ¶¶ 9-10). The children were familiar with the Birchwood Lakes Substation because it was located in an area between their homes and school bus stop. (Id. ¶ 11).
While playing with her friend and brother on May 22, 2012, C.G. gained access to the Birchwood Lakes Substation by climbing over a chainlink fence. (Id. ¶¶ 12, 16). Subsequent to climbing over the fence, C.G. caught on fire and sustained serious injuries when an arc of electricity ran through her body. (Id. ¶¶ 10, 13-14). Specifically, C.G. received second and third degree electrical burns over forty-five percent (45%) of her body including her neck, chest, back and arms. (Id. ¶ 21).
Plaintiff alleges that Defendant FirstEnergy Corporation ("FirstEnergy"), through one of its regulated distribution companies, Metropolitan Edison Company ("Met-Ed"), operated the Birchwood Lakes Substation. (Id. ¶ 8). Additionally, plaintiff claims that the security fencing surrounding the substation failed to comply with the National Electric Safety Code ("NES Code"), which establishes the minimum requirements for electrical substation fencing. (Id. ¶¶ 17, 19). According to the NES Code, the security fencing must be made of woven steel fabric on steel posts with barbed wire on extension arms at least seven (7) feet tall. (Id. ¶ 18). Plaintiff avers the security fencing at issue was not seven (7) feet tall in all areas surrounding the substation. (Id. ¶ 19).
On January 22, 2013, plaintiff filed a two-count complaint seeking over $75, 000 in damages on each count. (Id. ¶ 1). Count I alleges FirstEnergy was negligent in the installation, maintenance and inspection of the security fencing surrounding the Birchwood Lakes Substation. Count II claims the Birchwood Lakes Substation is an attractive nuisance. On April 1, 2013, FirstEnergy filed the instant motion to dismiss both counts. The parties then briefed the issues bringing the case to its present posture.
The court has jurisdiction pursuant to the diversity statute, 28 U.S.C. § 1332. Plaintiff is a citizen of Pennsylvania. (Compl. ¶¶ 3-4). Defendant FirstEnergy is incorporated under the laws of the State of Ohio with its principal place of business in Ohio. (Id. ¶ 6). Because complete diversity of citizenship exists among the parties and the amount in controversy exceeds $75, 000, the court has jurisdiction over the case. See 28 U.S.C. § 1332 ("district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and is between... citizens of different States[.]"); 28 U.S.C. § 1441 (A defendant can generally remove a state court civil action to federal court if the federal court would have had original jurisdiction to address the matter pursuant to the diversity jurisdiction statute). As a federal court sitting in diversity, the substantive law of Pennsylvania shall apply to the instant case. Chamberlain v. Giampapa , 210 F.3d 154, 158 (3d Cir. 2000) (citing Erie R.R. v. Tompkins , 304 U.S. 64, 78 (1938)).
Standard of Review
The court tests the sufficiency of the complaint's allegations when considering a Rule 12(b)(6) motion. All well-pleaded allegations of the complaint must be viewed as true and in the light most favorable to the non-movant to determine whether, "under any reasonable reading of the pleadings, the plaintiff may be entitled to relief.'" Colburn v. Upper Darby Twp. , 838 F.2d 663, 665-66 (3d Cir. 1988) (quoting Estate of Bailey by Oare v. Cnty. of York , 768 F.2d 503, 506 (3d Cir. 1985)). The plaintiff must describe "enough facts to raise a reasonable expectation that discovery will reveal evidence of' [each] necessary element" of the claims alleged in the complaint. Phillips v. Cnty. of Allegheny , 515 F.3d 224, 234 (3d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556 (2007)). Moreover, the plaintiff must allege facts that "justify moving the case beyond the pleadings to the next stage of litigation." Id. at 234-35. In evaluating the sufficiency of a complaint the court may also consider "matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman , 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citations omitted). The court does not have to accept legal conclusions or unwarranted factual inferences. See Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc. , 450 F.3d 130, 133 (3d Cir. 2006) (citing Morse v. Lower Merion Sch. Dist. , 132 F.3d 902, 906 (3d Cir. 1997)).
The federal rules require only that plaintiff provide "a short and plain statement of the claim showing that the pleader is entitled to relief, " a standard which "does not require detailed factual allegations, " but a plaintiff must make "a showing, rather than a blanket assertion, of entitlement to relief that rises above the speculative level." McTernan v. N.Y.C., 564 F.3d 636, 646 (3d Cir. 2009) (citations and internal quotations and quotation marks omitted). The "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Twombly , 550 U.S. at 570). Such "facial plausibility" exists "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id . (citing Twombly , 550 U.S. at 556). "[T]he factual detail in a complaint [cannot be] so undeveloped that it does not provide a defendant the type of notice of claim which is contemplated by Rule 8." Phillips , 515 F.3d at 232 (citation omitted). "Though a complaint does not need detailed factual allegations, ... a formulaic recitation of the elements of a cause of action will not do.'" DelRio-Mocci v. Connolly Props., Inc. , 672 F.3d 241, 245 (3d Cir. 2012) (quoting Twombly , 550 U.S. at 555).
The Supreme Court has counseled that a court examining a motion to dismiss should, "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Iqbal , 556 U.S. at 679. Next, the court should make a context-specific inquiry into the "factual allegations in [the] ...