Good v. Firstenergy Corp.

Filing 99

MEMORANDUM (Order to follow as separate docket entry) re 77 MOTION for Summary Judgment filed by Firstenergy Corp. Signed by Honorable James M. Munley on 11/3/15. (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CONNIE GOOD, Individually and as :
No. 3:13cv149
Parent and Natural Guardian of C.G., :
Plaintiff
:
(Judge Munley)
:
v.
:
:
FIRSTENERGY CORP.,
:
Defendant
:
:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
This state law negligence case involves injuries Plaintiff Connie Good’s
(hereinafter “plaintiff”) daughter, C.G., sustained after gaining access to the
Birchwood Lakes high voltage electrical substation.1 Plaintiff asserts
Defendant FirstEnergy Corp.’s (hereinafter “FirstEnergy Corp.”) negligence
caused her injuries. Before the court for disposition is FirstEnergy Corp.’s
motion for summary judgment. For the reasons that follow, the court will deny
this motion.
Background
On May 22, 2012, eleven (11) year old C.G. played with her nine (9) year
old brother and a friend near the Birchwood Lakes high voltage electrical

1

The court will refer to this minor individual only by her initials. See
Local Rule 5.2(d)(2); FEDERAL RULE OF CIVIL PROCEDURE 5.2.

substation (hereinafter “the substation”). (Doc. 78-5, Dep. of C.G. II.
(hereinafter “C.G. Dep. II”) at 1-3).2 The children were familiar with the
substation because they walked past it on their way to and from their school
bus stop everyday. (Doc. 77-2, Def.’s Concise Stmt. of Facts (hereinafter
“SOF”) ¶¶ 16-17).
While playing with her friend and brother on May 22, 2012, C.G. climbed
to the top of the substation’s front gate, pulled down the barbed wire, and
jumped into the interior of the substation. (Id. ¶ 27). Once inside the
substation, C.G. climbed eight feet up an A-frame structure, which had an
energized power line traversing through its center. (Id. ¶ 28). Shortly
thereafter, C.G. jumped down off the A-frame structure. (Id.) While jumping
down, C.G. made contact with the energized power line. (Id.) C.G.’s contact
with the power line caused her to catch on fire, resulting in serious injuries.
(Id. ¶ 29; Doc. 79-2, Ex. F, Carol Good Dep. I at 100; Doc. 79-3, Ex. F, Carol
Good Dep. II. at 110). Specifically, C.G. received second and third degree
electrical burns over 40.5% of her body including her neck, chest, back and
arms, which caused her treating physicians to place her in a medically induced

2

All deposition citation page numbers refer to the electronic case file
page number located in the upper right-hand corner of the electronically filed
document.
2

coma for seven (7) weeks. (Doc. 79-2, Ex. F, Carol Good Dep. I at 100; Doc.
79-3, Ex. F, Carol Good Dep. II. at 110). The parties dispute how C.G.
received her injuries.
On January 22, 2013, plaintiff filed a two-count complaint seeking over
$75,000 in damages on each count. (Doc. 1, Compl.). Count I alleges
FirstEnergy Corp. negligently installed, maintained and inspected the security
fencing surrounding the substation. (Id. ¶¶ 15-25). Count II claims the
substation is an attractive nuisance. (Id. ¶¶ 26-39). After discovery,
FirstEnergy Corp. moved for summary judgment. (Doc. 77). The parties have
briefed their respective positions and the matter is ripe for disposition.
Jurisdiction
The court has jurisdiction pursuant to the diversity statute, 28 U.S.C.
§ 1332. Plaintiff is a citizen of Pennsylvania. (Doc. 1, Compl. ¶¶ 3-4).
FirstEnergy Corp. 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
(“[D]istrict courts shall have original jurisdiction of all civil actions where the
matter in controversy exceeds the sum or value of $75,000, exclusive of

3

interest and costs, and is between . . . citizens of different States[.]”). 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)).
Legal Standard
Granting summary judgment is proper if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. See Knabe v. Boury,
114 F.3d 407, 410 n.4 (3d Cir. 1997) (citing FED. R. CIV. P. 56(c)). “[T]his
standard provides that the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of
material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)
(emphasis in original).
In considering a motion for summary judgment, the court must examine
the facts in the light most favorable to the party opposing the motion. Int’l Raw
Materials, Ltd. v. Stauffer Chem. Co., 898 F.2d 946, 949 (3d Cir. 1990). The
burden is on the moving party to demonstrate that the evidence is such that a

4

reasonable jury could not return a verdict for the non-moving party. Anderson,
477 U.S. at 248 (1986). A fact is material when it might affect the outcome of
the suit under the governing law. Id. Where the non-moving party will bear
the burden of proof at trial, the party moving for summary judgment may meet
its burden by establishing that the evidentiary materials of record, if reduced to
admissible evidence, would be insufficient to carry the non-movant’s burden of
proof at trial. Celotex v. Catrett, 477 U.S. 317, 322 (1986). Once the moving
party satisfies its burden, the burden shifts to the nonmoving party, who must
go beyond its pleadings, and designate specific facts by the use of affidavits,
depositions, admissions, or answers to interrogatories demonstrating that
there is a genuine issue for trial. Id. at 324.
Discussion
FirstEnergy Corp. moves for summary judgment on plaintiff’s negligence
and punitive damages claims. Plaintiff counters that she can state a prima
facie negligence cause of action and genuine issues of material fact preclude
summary judgment on punitive damages. The court will address these issues
in order, beginning with plaintiff’s negligence claim.

5

I. Negligence
Plaintiff contends FirstEnergy Corp.’s negligence caused C.G.’s injuries.
In Pennsylvania, the elements necessary to plead a negligence action are: (1)
the existence of a duty or obligation requiring a certain standard of conduct; (2)
a failure to conform to that duty, or a breach thereof; (3) a causal connection
between the breach and the harm; and (4) actual loss or damage suffered.
Cavanagh v. Electrolux Home Prods., 904 F. Supp. 2d 426, 429 (E.D. Pa.
2012) (citing Atcovitz v. Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1222
(Pa. 2002)).
FirstEnergy Corp. raises the following three issues pertaining to plaintiff’s
negligence claim: 1) Is FirstEnergy Corp. entitled to summary judgment
because it owed C.G. no duty? 2) Does C.G.’s trespass into the substations
excuse any duty FirstEnergy Corp. owed to C.G.? 3) Should judgment be
granted to FirstEnergy Corp. because any alleged negligence did not cause
C.G.’s injuries? The court will address these issues in seriatim.
A. Did FirstEnergy Corp. owe a duty to C.G.?
Initially, FirstEnergy Corp. challenges the existence of a duty.
Pennsylvania law defines a legal duty in negligence cases as “an obligation, to
which the law will give recognition and effect, to conform to a particular

6

standard of conduct toward another.” Atcovitz, 812 A.2d at 1222. In
Pennsylvania, a supplier of electricity or the possessor of a land site owes a
duty of care to an entrant on land with high-voltage electrical transmission
lines. Stark v. Lehigh Foundries, Inc., 130 A.2d 123, 128-31 (Pa. 1957);
Yoffee v. P.P.&L., 123 A.2d 636, 645 (Pa. 1956); Bailey v. Pa. Elec. Co., 598
A.2d 41, 47 (Pa. Super. Ct. 1991); see also Estate of Zimmerman v. SEPTA,
168 F.3d 680, 685 (3d Cir. 1999) (noting that in Pennsylvania, a supplier of
electricity owes a duty of care to all people in proximity to the wires through
which the high-voltage electricity flows). Thus, Pennsylvania law provides that
FirstEnergy Corp. owes C.G. a legal duty if it supplied electricity to the
substation. Likewise, FirstEnergy Corp. owes C.G. a legal duty if it possessed,
owned and operated the substation.
FirstEnergy Corp. argues that it owed no duty to plaintiff for two reasons:
(1) FirstEnergy Corp. did not supply electricity to the substation; and (2)
FirstEnergy Corp. did not possess, own and operate the substation. Plaintiff
counters that FirstEnergy Corp. may owe a duty to plaintiff as the supplier of
electricity to the substation or possessor of a land site with high-voltage
electrical transmission lines and genuine issues of material fact require a jury
to determine these issues. After careful consideration, the court agrees with

7

plaintiff.
1. Supplier of Electricity3
FirstEnergy Corp. argues that no evidence exists establishing that it
generates, transmits or distributes electricity to anyone. FirstEnergy Corp.’s
corporate designee testified that FirstEnergy Corp. formed in 1996 and holds
all the stock of its subsidiaries, including Met-Ed. (Doc. 92, Ex. A, Dep. of
John Marconi (hereinafter “Marconi Dep.”) at 20-22). FirstEnergy Corp. does
not have any employees. (Id.) Additionally, FirstEnergy Service Company, not
3

In the court’s motion to dismiss memorandum, we determined that
FirstEnergy Corp. failed to contest plaintiff’s allegation that it supplied
electricity to the substation. Good v. FirstEnergy Corp., No. 3:13-cv-149,
2013 WL 2371700, at *3 (M.D. Pa. May 30, 2013). At oral argument for this
summary judgment motion, FirstEnergy Corp. vehemently refuted this
determination and directed the court to paragraph seven (7) of its answer,
which specifically denied that it supplied electricity to the substation. (Doc.
98, Oral Argument dated 9/16/15 at 6-7, 10).
A review of the docket, however, establishes that FirstEnergy Corp. filed
its answer on June 12, 2013 (Doc. 14)–thirteen (13) days after the court
issued the memorandum and order denying FirstEnergy Corp.’s motion to
dismiss (Doc. 13). Furthermore, a review of FirstEnergy Corp.’s motion to
dismiss and supporting brief unequivocally establishes that it never addressed
plaintiff’s allegation that FirstEnergy Corp. supplied electricity to the
substation. (Docs 7 and 8). Therefore, contrary to FirstEnergy Corp.’s
strenuous assertions at oral argument for this summary judgment motion, it
did not contest the issue of supplying electricity to the substation until thirteen
(13) days after the court’s motion to dismiss memorandum.
Regardless of its position at the motion to dismiss stage, FirstEnergy
Corp. presently disputes that it supplied electricity to the substation. As such,
the court will determine whether a genuine issue of material fact precludes
summary judgment on this issue.
8

FirstEnergy Corp., provides FirstEnergy Corp. subsidiaries with legal, account
and engineering services. (Id. at 20-23). FirstEnergy Service Company, not
FirstEnergy Corp., represents FirstEnergy Corp. subsidiaries before the
Pennsylvania Utility Commission. (Id. at 22). Finally, FirstEnergy Solutions
Corp., not FirstEnergy Corp., is a wholesale marketer of electricity. (Id. at 24).
Accordingly, the burden shifts to plaintiff, who must go beyond her pleadings,
and designate specific facts demonstrating the existence of a genuine issue
for trial. Celotex, 477 U.S. at 324.
Here, plaintiff argues FirstEnergy Corp.’s 2013 annual report stands in
direct contrast to FirstEnergy Corp.’s assertion that it does nothing.4
FirstEnergy Corp.’s annual report states “FirstEnergy is a leading regional
energy provider headquartered in Akron, Ohio. Our subsidiaries and
affiliates are involved in the generation, transmission and distribution of
electricity as well as energy management and other energy related services.”
(Doc. 95-1, Ex. A, FirstEnergy Corp.’s 2013 Annual Report at 10) (emphasis

4

FirstEnergy Corp.’s 2013 annual report lists FirstEnergy Corp.’s
financial statements for the years 2011-2013, including 2012–the year C.G.’s
injury occurred. (Doc. 95-1, Ex. A, FirstEnergy Corp.’s 2013 Annual Report at
84-88). At oral argument, FirstEnergy Corp. objected to the court considering
its 2013 annual report. (Doc. 98, Oral Argument dated 9/16/15 at 10-11, 32).
The court, however, will overrule FirstEnergy Corp.’s objection and consider
this exhibit in the interest of justice.
9

added).5 The annual report also states that “[o]ur 10 utility operating
companies form one of the nation’s largest investor-owned electric systems
based on 6 million customers served within a nearly 65,000-square-mile area
of Ohio, Pennsylvania, New Jersey, West Virginia, Maryland and New York.”
(Id.) Therefore, FirstEnergy Corp. holds itself out to the general public as a
supplier of electricity.
In response, FirstEnergy Corp. implicitly asks the court to weigh the
probative value of plaintiff’s competent evidence–the 2013 Annual Report.
Specifically, FirstEnergy Corp. argues that its annual report is just that–a
report painting the overall picture of FirstEnergy Corp.’s financial health and
the financial health of its wholly-owned subsidiaries. (Doc. 98, Oral Argument
dated 9/16/15 at 11-12).
The court, however, cannot, and indeed must not, weigh the evidence
and reach factual inferences contrary to plaintiff’s competent evidence.
Rather, at the summary judgment stage, reasonable inferences must be drawn
in favor of the nonmoving party. Int’l Raw Materials, Ltd. 898 F.2d at 949.
Thus, viewing the annual report in the light most favorable to plaintiff, genuine
issues of material fact exist regarding whether FirstEnergy Corp. is merely a
5

FirstEnergy Corp.’s annual report defines “FirstEnergy” as
“FirstEnergy Corp., together with its consolidated subsidiaries.” (Id. at 13).
10

holding company or a supplier of electricity to the substation. See Link v.
FirstEnergy Corp., 25 N.E.3d 1095, 1100 (Ohio Ct. App. 2014) (allowing the
issue of whether or not FirstEnergy Corp. is merely a holding company to
proceed to trial).
2. Did FirstEnergy Corp. possess and control the substation?
FirstEnergy Corp. next contends that the court should grant summary
judgment on plaintiff’s assertion that it possessed and controlled the
substation. Specifically, FirstEnergy Corp. argues that its wholly-owned
subsidiary, Met-Ed, possessed and controlled the substation.6 Plaintiff claims
FirstEnergy Corp. occupied the land with the intent to control it through MetEd, allowing plaintiff to pierce the corporate veil to prevent injustice.
Pennsylvania provides a strong presumption against piercing the
corporate veil. Lumax Indus. v. Aultman, 669 A.2d 893, 895 (Pa. 1995) (citing
Wedner v. Unemp’t Bd., 296 A.2d 792, 794 (Pa. 1972)). Pursuant to
6

Pennsylvania law provides that “the duty to protect against known
dangerous conditions falls upon the possessor of the land.” Zimmerman, 168
F.3d at 684 (citations omitted). Title ownership is not determinative of
whether a defendant possesses land. Bloom v. Waste Mgmt., Inc., 615 F.
Supp. 1002, 1015 (E.D. Pa. 1985) (citing Bagley v. Phila., 25 A.2d 579, 582
(Pa. 1942)). Rather, courts in Pennsylvania look to Section 328E of the
Restatement (Second) of Torts, which defines a possessor of land as “a
person who is in occupation of the land with intent to control it.” RESTATEMENT
(SECOND) OF TORTS § 328E(a).
11

Pennsylvania law, “a corporation . . . is normally regarded as a legal entity
separate and distinct from its shareholders.” Ashley v. Ashley, 393 A.2d 637,
641 (Pa. 1978); see also Advanced Tele. Sys., Inc. v. Com-Net Prof’l Mobile
Radio, LLC, 846 A.2d 1264, 1278 (Pa. Super. Ct. 2004) (stating that “the
general rule is that a corporation shall be regarded as an independent entity
even if its stock is owned by one person”); Coll. Watercolor Grp., Inc. v. H.
Newbauer, Inc., 360 A.2d 200, 207 (Pa. 1976) (noting that a corporation with a
single shareholder can be an independent entity).
“Nevertheless, ‘a court will not hesitate to treat as identical the
corporation and the individuals owning all its stocks and assets whenever
justice and public policy demand and when the rights of innocent parties are
not prejudiced thereby nor the theory of corporate entity made useless.’”
Advanced Tele. Sys., Inc, 846 A.2d at 1278 (quoting Good v. Holstein, 787
A.2d 426, 430 (Pa. Super Ct. 2001)); see also Zubik v. Zubik, 384 F.2d 267,
272 (3d Cir. 1967) (stating that “the appropriate occasion for disregarding the
corporate existence occurs when the court must prevent fraud, illegality, or
injustice or when recognition of the corporate entity would defeat public policy
or shield someone from liability for a crime”).
FirstEnergy Corp. argues summary judgment is appropriate on this issue

12

for four (4) reasons. First, the record unequivocally establishes FirstEnergy
Corp. holds all of Met-Ed’s stock and is a separate legal entity from Met-Ed.
(Marconi Dep. at 20-22). Second, Met-Ed, not FirstEnergy Corp., owns the
substation property. (SOF ¶¶ 3, 5). Third, FirstEnergy Corp. never inspected
the substation. Rather, David Anschau, a Met-Ed employee, inspected the
substation on a monthly basis over the past eleven (11) years. (Doc. 80, Ex.
K, Dep. of David Anschau I (hereinafter “Anschau Dep. I”) at 13-15, 19, 64-66;
Doc. 80-4, Ex. M, Dep. of Wayne Fatebene (hereinafter “Fatebene Dep.”) at
28-30). Finally, FirstEnergy Corp. argues the Pennsylvania Superior Court has
already addressed this issue and determined that a parent and holding
company of an electrical utility cannot be deemed a possessor and occupier of
a power plant site. See Rudy v. A-Best Prods. Co., 870 A.2d 330, 334 n.4
(Pa. Super. Ct. 2005) (finding that a parent and holding company of an electric
utility failed to possess and control the power plant site).
Plaintiff counters that genuine issues of material fact preclude summary
judgment on this issue. As previously stated, plaintiff argues that FirstEnergy
Corp. is more than a hands-off parent and holding company. Rather,
FirstEnergy Corp. is a leading regional energy provider that owns, possesses
and controls electrical infrastructure–including the substation. (Doc. 95-1, Ex.

13

A, FirstEnergy Corp.’s 2013 Annual Report at 10). FirstEnergy Corp. also
provides electrical services to six (6) million customers within a nearly 65,000square-mile area of Ohio, Pennsylvania, New Jersey, West Virginia, Maryland
and New York. (Id.)
Moreover, in Rudy, the plaintiff failed to present any competent evidence
that the parent and holding company possessed and controlled the land site
with high-voltage electrical transmission lines on it. Rudy, 870 A.2d at 334 n.4.
Here, plaintiff argues FirstEnergy Corp.’s annual report establishes that
FirstEnergy Corp. owns, possesses and controls electrical
infrastructure–including the substation. Rudy, therefore, is distinguishable
from the instant case. Ergo, viewing the evidence in the light most favorable to
plaintiff, FirstEnergy Corp.’s motion for summary judgment arguing that it did
not possess and control the substation will be denied.
B. What duty did FirstEnergy Corp. owe to C.G.?
Having concluded FirstEnergy Corp. may owe a duty to plaintiff as the
supplier of electricity to the substation or possessor of a land site with
high-voltage electrical transmission lines, the court must establish the extent of
that duty. Initially, FirstEnergy Corp. argues that it owed plaintiff no duty

14

because she trespassed into the substation property.7 Plaintiff counters that,
even if she trespassed into the substation, FirstEnergy Corp. still owed her a
duty to avoid willful and wanton injury. Additionally, plaintiff contends that
Pennsylvania’s attractive nuisance doctrine excuses her trespass into the
substation, and therefore, FirstEnergy Corp. owed her a heightened duty of
care. The court will address in turn the issues of what, if any, duty suppliers of
electricity and possessors of land owe trespassers and whether
Pennsylvania’s attractive nuisance doctrine excuses C.G.’s trespass.
1. Trespasser duty of care
Generally, the supplier of electricity or the possessor of a land site owes
a heightened, rather than an ordinary, degree of care to an entrant on land
with high-voltage electrical transmission lines. Stark, 130 A.2d at 128-31;
Yoffee, 123 A.2d at 645; Bailey, 598 A.2d at 47. Pennsylvania law provides
that:
[T]he standard of care imposed upon a supplier of electric
power, particularly when the power is supplied at high voltage,
is among the highest recognized in the law of negligence. A
supplier of electric current is bound not only to know the extent
of the danger, but to use the very highest degree of care
7

“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.’” Rossino v. Kovacs, 718 A.2d 755, 756-57 (Pa. 1998)
(quoting RESTATEMENT (SECOND) OF TORTS § 329).
15

practical to avoid injury to everyone who may be lawfully in
proximity to its wires, and liable to come accidentally or
otherwise in contact with them. . . . That a transmission line is
a dangerous instrumentality is recognized everywhere. No
matter where located it is a source of grave peril and the law
requires that the possessor of such an instrumentality exercise
a high degree of care.
Birt v. FirstEnergy Corp., 891 A.2d 1281, 1286 (Pa. Super. Ct. 2006) (quoting
Colloi v. Phila. Elec. Co., 481 A.2d 616, 620 (Pa. Super. Ct. 1984)) (internal
citations and quotation marks omitted).
This heightened duty of care, however, “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.” Estate of
Zimmerman, 168 F.3d 680, 687 (3d Cir. 1999) (quoting Heller v. Consol. Rail
Corp., 576 F. Supp. 6 at 12 n.7 (E.D. Pa. 1982)) (emphasis added) (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 v. Sky Haven Coal, Inc., 563
A.2d 891, 897 n.8 (Pa. Super. Ct. 1989) (noting Commonwealth’s
long-recognized rule limiting landowner’s duty to trespasser to refraining from
wanton or willful misconduct).

16

“This rule comports with the notion that trespassers be given some,
however modest, protection against tortfeasors.” Zimmerman, 168 F.3d at 685
(citing Barre v. Reading City Passenger Ry. Co., 26 A. 99, 100 (Pa. 1893)
(“Even trespassers are entitled to humane consideration.”)). As such,
Pennsylvania law clearly establishes that, contrary to FirstEnergy Corp.’s
arguments, it owes plaintiff a duty to avoid wanton or willful misconduct even if
plaintiff trespassed into the substation.
2. Duty of care under attractive nuisance
Plaintiff next argues Pennsylvania’s attractive nuisance doctrine excuses
her trespass into the substation, allowing the court to impose a heightened
duty of care on FirstEnergy Corp. Pennsylvania law provides that possessors
of land are liable for damages caused by “Artificial Conditions Highly
Dangerous to Trespassing Children.” RESTATEMENT (SECOND) OF TORTS,
§ 339 (hereinafter “section 339”); see also Bartleson v. Glen Alden Coal Co.,
64 A.2d 846 (Pa. 1949) (adopting section 339); Zimmerman, 168 F.3d at 684
(citations omitted) (holding that the duty to protect against known dangerous
conditions falls upon the possessor of the land.). Section 339 sets forth five
elements, all of which must be satisfied for a possessor of land to be liable.
Jesko v. Turk, 219 A.2d 591, 592 (Pa. 1966).

17

Section 339 provides that:
A possessor of land is subject to liability for physical harm to
children trespassing thereon caused by an artificial condition
upon the land if:
(a) the place where the condition exists is one upon which
the possessor knows or has reason to know that children
are likely to trespass, and
(b) the condition is one of which the possessor knows or
has reason to know and which he realizes or should realize
will involve an unreasonable risk of death or serious bodily
harm to such children, and
(c) the children because of their youth do not discover the
condition or realize the risk involved in intermeddling with it
or in coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition
and the burden of eliminating the danger are slight as
compared with the risk to children involved, and
(e) the possessor fails to exercise reasonable care to
eliminate the danger or otherwise to protect the children.
RESTATEMENT (SECOND) OF TORTS § 339. Here, the parties do not dispute the
substation is an artificial condition. Rather, the parties dispute specific
attractive nuisance elements–namely the first and third elements.8 The court
8

FirstEnergy Corp. contends plaintiff cannot satisfy any of the five (5)
elements necessary to establish an attractive nuisance claim. (Doc. 92, Def.
Reply at 8). FirstEnergy Corp.’s briefs, however, only provide argument
pertaining to elements (a) and (c). (Doc. 77-4, Def. Br. in Supp. Mot. for
Summ. J. at 16-23; Doc. 92, Def. Reply at 8-11). Thus, the court will only
address these two elements.
18

will address in turn the first and third attractive nuisance elements.
i. Notice to FirstEnergy Corp.
FirstEnergy Corp. argues that plaintiff cannot satisfy the first attractive
nuisance element. Specifically, FirstEnergy Corp. had no notice that children
had or were likely to trespass into the substation. Plaintiff asserts genuine
issues of material fact preclude summary judgment on this issue. After a
careful review, the court agrees with the plaintiff.
Pennsylvania law provides that a possessor of land is liable for physical
harm to trespassing children caused by an artificial condition if “the place
where the condition exists is one which the possessor knows or has reason to
know that children are likely to trespass.” RESTATEMENT (SECOND) OF TORTS,
§ 339(a).
FirstEnergy Corp. asserts all deposition testimony of FirstEnergy Corp.
and Met-Ed employees establishes that neither FirstEnergy Corp. nor Met-Ed
had any notice of individuals accessing, or attempting to access, the
substation since the time of its construction in 1970-71 through the date of
C.G.’s accident on May 22, 2012. (Anschau Dep. I at 70-71, 76; Fatebene
Dep. at 65-66). Moreover, FirstEnergy Corp. contends no law enforcement
agency, government employee or neighborhood parent ever filed a complaint

19

to FirstEnergy Corp. or Met-Ed pertaining to children trespassing at the
substation. Accordingly, the burden shifts to plaintiff, who must go beyond her
pleadings, and designate specific facts within affidavits, depositions,
admissions, or answers to interrogatories demonstrating the existence of a
genuine issue for trial. Celotex, 477 U.S. at 324.
Here, plaintiff goes beyond her pleadings and designates several
disputed material facts pertaining to whether FirstEnergy Corp. knew or had
reason to know that children are likely to trespass at the substation. Initially,
C.G.’s brother, Danny Good, testified that he entered the substation five (5)
times in the two months prior to his sister’s injury in May 2012. (Doc. 79, Ex.
E, Dep. of Daniel Good (hereinafter “Daniel Good Dep.”) at 25-35). Each time,
Danny took the following steps: (1) He walked to the front gate; (2) climbed to
the top of the gate; (3) unhooked the top and middle strands of barbed wire
from the gate post; (4) stepped on top of the loosened barbed wire and (5)
climbed down the other side of the gate. (Id. at 27-31). Thus, Danny’s
testimony establishes that he moved the barbed wire from where it belonged.9
Viewing this testimony in the light most favorable to plaintiff, a reasonable juror

9

At Danny Good’s deposition, FirstEnergy Corp. failed to ask Danny if
placed the top two strands of barbed wire back into their support hooks upon
exiting the substation.
20

could conclude that Danny Good visibly altered the position of the barbed wire
above the front gate.
Danny Good’s testimony may contradict the inspector’s testimony and
his inspection reports. Specifically, the March and April 2012 substation
inspections assert the barbed wire was “OK” and failed to mention whether the
top two strands of barbed wire above the front gate were removed from their
hooks or visible altered. (Doc. 80-2, March and April 2012 substation
inspections at 19-20). Moreover, the substation inspector, David Anschau,
testified that, every month, he looked at the barbed wire to make sure that it
was tight. (Anschau Dep. I at 58-59). Mr. Anschau, however, never recalled
noticing unhooked or visibly altered barbed wire during any of his inspections
at the substation, including March and April 2012. (Id. at 59).
Plaintiff also submits the deposition testimony of Corbin Farrell
(hereinafter “Farrell”). Farrell moved into the Birchwood Lake community in
2001, when he was five (5) or (6) years old. (Doc. 87-4, Dep. of Corbin Farrell
at 11). Farrell, along with other kids living in the Birchwood area, created a
path through the woods to their bus stop–a path that still exists today. (Id. at
11-12). The path traversed next to the substation. (Id. at 11-12, 15, 25-26).
Farrell testified that he gained access to the substation on three (3) or (4)

21

occasions, the last of which occurred ten (10) or more years prior to C.G. and
her brother gaining access to the substation. (Id. at 12-13, 22). Farrell stated
that he left a basketball or soccer ball inside the substation and upon returning
to retrieve it, learned that the ball had been removed. (Id. at 16-17).
Viewing Danny Good and Corbin Farrell’s testimony in the light most
favorable to plaintiff, a genuine issue of material fact exists regarding whether
FirstEnergy Corp. knew or had reason to know that children were likely to
trespass at the substation.
ii. Children do not discover the condition or realize the risk involved
FirstEnergy Corp. also argues that plaintiff cannot establish the third
attractive nuisance element, requiring a plaintiff to demonstrate that “the
children because of their youth do not discover the condition or realize the risk
involved in intermeddling with it or in coming within the area made dangerous
by it.” RESTATEMENT (SECOND) OF TORTS, § 339(c).
FirstEnergy Corp. contends the undisputed record establishes that, at
the time of the accident, C.G. knew: (1) the meaning of the words “dangerous”,
“keep out” and “trespass”; (2) that electricity could be dangerous; and (3) that
“Danger” signs were posted on the exterior of the perimeter fence surrounding
the substation. (Doc. 78-4, Ex. C, Dep. of C.G. (hereinafter “C.G. Dep. I”) at

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14-16, 57). This pre-accident knowledge, according to FirstEnergy Corp.,
eliminates, as a matter of law, any possible doubt the court may have
regarding whether or not C.G. appreciated the risk of trespassing inside the
substation.
Plaintiff, interprets the same evidence differently. Plaintiff acknowledges
C.G. knew the meanings of the words “dangerous,” “keep out,” and “trespass.”
(Id.) Plaintiff, however, did not subjectively understand how these words
applied to the substation. Specifically, plaintiff argues that C.G. did not
discover or realize the risks involved in intermeddling with the substation
because she entered the substation twice in May 2012 before suffering her
injuries on May 22, 2012. (C.G. Dep. I. at 64, 66-68, 78, 83, 92-93). The first
time, C.G. played inside the substation for ten to fifteen minutes before
climbing out. (Id. at 79). The second time, C.G. played inside the substation
for over two hours. (Id. at 93-95). While inside the substation the second
time, C.G. touched various poles without sustaining injury. (Id. at 95-97). C.G.
also testified that the substation was their “little hang-out place.” (Id. at 66, 68,
77-78; C.G. Dep. II at 1).
Moreover, C.G. stated that she knew wires went into the substation.
(C.G. Dep. I at 81). C.G., however, did not know those lines carried electricity.

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(Id.) Rather, C.G. believed the electricity “just souped or whatever past and,
like, just powered everything.” (Id.) Stated differently, the fact that C.G.
played inside the substation for over two hours without incident days before
being injured may illustrate her belief that, despite the signage in the area, the
substation was not dangerous. Viewing the evidence in plaintiff’s favor, a jury
could conclude that C.G. did not discover or realize the risks involved in
intermeddling with the substation.
Accordingly, genuine issues of material fact exist regarding whether
FirstEnergy Corp. had notice children were likely to trespass at the substation.
Similarly, genuine issues of material fact exist pertaining to whether C.G.,
because of her youth, did not discover the condition or realize the risk involved
in intermeddling with the substation. Therefore, the court will deny FirstEnergy
Corp.’s motion for summary judgment on the attractive nuisance issue.
C. Did FirstEnergy Corp.’s negligence cause C.G.’s injuries?
Next, FirstEnergy Corp. argues that summary judgment should be
granted as to all of plaintiff’s claims because plaintiff has failed to present any
facts demonstrating that its purported negligence caused plaintiff’s injuries.
Plaintiff argues that genuine issues of material fact preclude summary
judgment on causation. Specifically, plaintiff avers FirstEnergy Corp.’s failure

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to adequately install, maintain and inspect the substation’s enclosure created
an unreasonably dangerous condition which resulted in C.G. burning 40.5% of
her body. After a careful review, the court agrees with the plaintiff and finds
that causation is a question of fact for the jury to determine.
In Pennsylvania, claims of negligence, whether brought as strict liability,
breach of warranty, or traditional negligence actions, require a demonstration
that defendant’s conduct was the proximate cause of plaintiff’s injuries before
liability can attach. See, e.g., Steamfitters Union No. 420 Welfare Fund v.
Philip Morris, 171 F.3d 912, 939 n.23 (3d Cir. 1999); Skipworth v. Lead Indus.
Ass’n, 547 Pa. 224, 690 A.2d 169, 172 (Pa.1997) (holding that “Pennsylvania
. . . follows the general rule that a plaintiff, in order to recover, must establish
that a particular defendant’s negligence was the proximate cause of her
injuries.”). “In order for negligent conduct to be a proximate cause of an injury
it must be a substantial factual cause of the injury for which damages are
sought.” Pascal v. Carter, 647 A.2d 231, 233 (Pa. Super. Ct.1994). “The
defendant’s negligent conduct may not, however, be found to be a substantial
cause where the plaintiff’s injury would have been sustained even in the
absence of the actor’s negligence.” Id.
In the instant matter, plaintiff’s expert determined FirstEnergy Corp.

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failed to adequately maintain the enclosure surrounding the substation. (Doc.
87-6, Pl. Expert Report at 9). Plaintiff’s expert stated that sections of the
enclosure were not within the height requirement and the barbed wire was not
adequately installed or maintained. (Id.) Thus, the expert concluded that
FirstEnergy Corp.’s failure to adequately install, maintain and inspect the
substation’s enclosure created an unreasonably dangerous condition causing
C.G.’s injury on Tuesday May 22, 2012. (Id.)
FirstEnergy Corp. argues that C.G.’s own actions caused her injuries.
Specifically, C.G. climbed into the substation. C.G. scaled an eight-foot steel
I-beam “and then reached over, or leapt, to purposely touch/grasp an
energized power line” causing her injuries. (SOF ¶ 28). FirstEnergy Corp.’s
argument is unconvincing for three reasons.
First, plaintiff disputes that she reached out or jumped to purposely catch
an energized power line. (Doc. 88, Pl. Resp. Def.’s SOF ¶ 28). Second, the
record fails to unequivocally establish that C.G. was aware of the high voltage
carried through the power lines. Third, the Pennsylvania Supreme Court has
stated that it is common knowledge that children will accept an invitation to
climb. Bartleson v. Glen Alden Coal Co., 64 A.2d 846, 851 (Pa. 1949).
Therefore, FirstEnergy Corp.’s argument that C.G. caused her injuries

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because she climbed the A-frame structure is potentially unfounded.
In short, the jury must resolve these disputed issues of material fact.
See Stark, 130 A.2d at 130 (stressing that “the question of what is proximate
cause of an accident is almost always one of fact for the jury”); Yoffee, 123
A.2d at 642 (reiterating Pennsylvania’s long-standing principle that issues of a
factual nature that are in dispute must be resolved by a jury). As such, the
court will deny FirstEnergy Corp.’s motion for summary judgment pertaining to
causation.
II. Punitive Damages
Finally, FirstEnergy Corp. moves for summary judgment on plaintiff's
claim for punitive damages.10 “The Pennsylvania Supreme Court has held that
punitive damages may be awarded in negligence cases if the plaintiff proves
greater culpability than ordinary negligence at trial.” Brand Mktg. Grp., LLC v.
Intertek Testing Servs., N.A., Inc., —F.3d—, 2015 WL 5255078, at *9 (3d Cir.
Sept. 10, 2015) (citing Hutchinson ex rel. Hutchinson v. Luddy, 870 A.2d 766,
(Pa. 2005)). In Hutchinson, the Pennsylvania Supreme Court explained
punitive damages as follows:
10

As a general matter, because the court is sitting in diversity, the
substantive law of Pennsylvania, including the law regarding punitive
damages, applies to the instant case. Chamberlain, 210 F.3d at 158 (3d Cir.
2000) (citing Erie R.R., 304 U.S. at 78 (1938)).
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The standard governing the award of punitive damages in
Pennsylvania is settled. Punitive damages may be awarded for
conduct that is outrageous, because of the defendant’s evil
motive or his reckless indifference to the rights of others. As the
name suggests, punitive damages are penal in nature and are
proper only in cases where the defendant’s actions are so
outrageous as to demonstrate willful, wanton or reckless
conduct.
870 A.2d at 766 (internal citations omitted). “The state of mind of the actor is
vital” in determining whether punitive damages may be awarded. Feld v.
Merriam, 485 A.2d 742, 748 (Pa. 1984). “Ordinary negligence . . . will not
support an award of punitive damages. Rather, to justify an award of punitive
damages, the fact-finder must determine that the defendant acted with a
culpable state of mind, i.e., with evil motive or reckless indifference to the
rights of others.” Hutchinson v. Penske Truck Leasing Co., 876 A.2d 978,
983-84 (Pa. Super. Ct. 2005) (citation omitted).
In the instant matter, plaintiff does not contend that FirstEnergy Corp.
acted with evil motive. Accordingly, the question is whether, viewing the
evidence in plaintiff’s favor, no genuine issue of material fact exists
establishing FirstEnergy Corp. acted with reckless indifference.
The Third Circuit Court of Appeals has noted that it “takes a special type
of recklessness to justify punitive damages in Pennsylvania.” Brand Mktg.
Grp., LLC, 2015 WL 5255078, at *10. “[A] punitive damages claim must be
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supported by evidence sufficient to establish that (1) a defendant had a
subjective appreciation of the risk of harm to which the plaintiff was exposed
and that (2) he acted, or failed to act, as the case may be, in conscious
disregard of that risk.” Hutchison, 870 A.2d at 772. That “conscious
disregard” is critical: “[A]n appreciation of the risk is a necessary element of
the mental state required for the imposition of [punitive] damages.” Martin v.
Johns-Manville Corp., 494 A.2d 1088, 1097 n.12 (Pa. 1985), abrogated on
other grounds by Kirkbride v. Lisbon Contractors, Inc., 555 A.2d 800 (Pa.
1989).
FirstEnergy Corp. argues that plaintiff cannot demonstrate that it acted
recklessly indifferent to plaintiff’s well-being. Specifically, David Anschau’s
actions, as substation inspector, establish that he meticulously inspected the
substation, including the height of the fence and barbed wire monthly over the
past eleven (11) years. (Anschau Dep. I at 58-61, 70-71). Plaintiff counters
that David Anschau’s inspections establish that he consciously disregarded
the grave dangers associated with inspecting a high voltage electrical
substation.
Specifically, Mr. Anschau failed to ensure the fencing surrounding the
substation was in a reasonably safe condition. (Id. at 58-61, 69-71). Mr.

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Anschau also failed to verify the barbed wire was properly attached at the
appropriate height above the fencing. (Id.) Based on this evidence, a jury
could conclude that Mr. Anschau acted with reckless indifference and impose
punitive damages. Ergo, it is inappropriate to grant summary judgment to
FirstEnergy Corp. on this issue.
Conclusion
Based upon the above reasoning, FirstEnergy Corp.’s motion for
summary judgment will be denied. FirstEnergy Corp. may owe a duty to
plaintiff as the supplier of electricity to the substation or possessor of a land
site with high-voltage electrical transmission lines. The extent of FirstEnergy
Corp.’s duty varies with C.G.’s status on the substation property. If a jury
determines C.G. trespassed, FirstEnergy Corp. owed C.G. a duty to avoid
wanton or willful misconduct. If a jury concludes Pennsylvania’s attractive
nuisance doctrine excuses C.G.’s trespass, FirstEnergy Corp. owed C.G. the
same heightened duty of care that Pennsylvania law imposes on suppliers of
electricity or possessors of a land site with high-voltage transmission lines.
Regarding the attractive nuisance issue, the court determines that
genuine issues of material fact exist pertaining to whether FirstEnergy Corp.
had notice children were likely to trespass at the substation. Similarly, genuine

30

issues of material fact exist regarding whether C.G., because of her youth, did
not discover the condition or realize the risk involved in intermeddling with the
substation.
Finally, the court finds that genuine issues of material fact exist regarding
the issues of causation and punitive damages. Thus, the court will deny
FirstEnergy Corp.’s motion for summary judgment in all respects. An
appropriate order follows.

Date:

11/03/2015

s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court

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