United States District Court, W.D. Virginia, Lynchburg Division
JENNIFER W. PLUNKETT, Plaintiff,
CROSSROADS OF LYNCHBURG, INC., and MERCEDES-BENZ USA, LLC, Defendants.
ROBERT S. BALLOU, Magistrate Judge.
In this slip and fall personal injury case, I deny, in part, the motion to dismiss filed by Defendant Mercedes-Benz USA, LLC ("MBUSA"). I find that Plaintiff, Jennifer W. Plunkett ("Plunkett"), has alleged sufficient facts to state a cause of action against MBUSA for negligence in the selection of certain floor paint used at the Mercedes dealership operated by co-defendant Crossroads of Lynchburg, Inc. ("Crossroads"). However, I grant the motion to dismiss as it relates to any claim that Crossroads was the agent of MBUSA, causing MBUSA to be liable for the negligent acts of Crossroads.
Plunkett alleges that she visited Crossroads to have her vehicle serviced on March 21, 2012, and that as she walked across the service area she slipped on a wet floor causing her to suffer injuries to her hip, wrist and spine. Plunkett maintains that the floor in the service area is painted with a high-gloss paint, making it difficult to detect when liquid substances are on the floor and also making the floor extremely slippery when wet. Plunkett contends that MBUSA required Crossroads to use the high-gloss floor paint as part of MBUSAs mandated design of the Crossroads dealership.
Plunkett alleges in her complaint that MBUSA had a duty not to mandate a retail dealership design and/or display that was inherently hazardous to the customers and/or invitees of Crossroads. Specifically, Plunkett asserts that MBUSA was negligent by: 1) requiring that Crossroads use a high-gloss floor paint in the service area which made it difficult to see liquid on the floor; 2) failing to prevent an unreasonable risk of harm to invitees and the general public; 3) failing to adequately warn its invitees of the dangerous condition presented by the high-gloss paint, although MBUSA knew, or the in exercise of reasonable care shown have known, that the dangerous condition existed; 4) failing to correct the dangerous condition of the floor despite the fact that MBUSA, its agents and employees, knew or should have known that invitees had previously fallen due to the difficulty of detecting liquid on the high-gloss floor; and 5) failing to take the appropriate efforts to protect its invitees and the general public from the dangers presented by a wet, high-gloss walkway. Compl. at ¶ 8.
MBUSA moved to dismiss the complaint, asserting that Plunkett failed to state facts sufficient to establish that it owed any duties to the invitees of Crossroads; that it is not responsible for the maintenance of the dealership, including removing liquid from the floor; and that Plunkett failed to allege facts sufficient to establish that the floor paint was unreasonably dangerous.
I. STANDARD OF REVIEW
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a cause of action may be dismissed for "failure to state a claim upon which relief may be granted." Fed.R.Civ.P. 12(b)(6). The court must accept as true any factual allegations contained in the complaint, and draw all reasonable inferences in Plunketts favor, though it need not accept legal conclusions. To survive a motion to dismiss, a complaint must provide sufficient facts that, if accepted as true, "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Erickson v. Pardus, 550 U.S. 89, 94 (2007). Facial "plausibility" lies on a spectrum between possibility and probability, and it is established when the court is able to draw a reasonable inference that the defendant may be liable for the conduct alleged. Id . The complaint need not include detailed factual allegations, but the factual allegations must be more than a formulaic recitation of the elements of a cause of action and must raise a plausible right to relief above the speculative level. Id . "[Additionally], the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. The complaint must contain sufficient facts from which the court, calling upon "its judicial experience and common sense, " can conclude that the pleader has shown that he is entitled to relief. Id. at 679; Fed.R.Civ.P. 8(a).
A. Duty of Care
To state a cause of action for negligence in Virginia, a plaintiff must prove the existence of a legal duty of care, a breach of that duty, and that such breach was the cause of the injury suffered. King v. Island Creek Coal Co., 339 F.Supp.2d 735, 741 (W.D. Va. 2004). Whether a duty of care exists in a negligence action is a pure question of law. Fox v. Custis, 236 Va. 69, 74 (Va. 1988). The crux of MBUSAs motion to dismiss is whether Plunkett has sufficiently pled a claim that MBUSA is vicariously liable for the negligent acts of its franchisee, Crossroads; or alternatively, that that MBUSA negligently breached an independent duty of care it owed to Plunkett.
1. Vicarious Liability
Virginia courts recognize that a franchisor may be vicariously liable to a third party for personal injury upon proof that an agency relationship exists between the franchisor and franchisee. To establish such vicarious liability a plaintiff must show that the franchisor exercised control over the franchisees operations beyond the standardization of the business identity and uniformity of the commercial service. Rather, a plaintiff must show that the franchisor exercised some control over the daily operations of the franchisees business. See JTH Tax, Inc. v. H & R Block E. Tax Servs., Inc., 128 F.Supp.2d 926, 950 (E.D. Va. 2001) aff'd in part, vacated in part, remanded, 28 Fed.Appx. 207 (4th Cir. 2002); Hayward v. Holiday Inns, Inc., 459 F.Supp. 634, 635-36 (E.D. Va. 1978); Murphy v. Holiday Inns, Inc., 216 Va. 490, 495 (Va. 1975); Hackley v. Teague Enterprises, Inc., 16 Va. Cir. 392 (Va. Cir. Ct. 1989). Here, Plunkett does not assert that MBUSA and Crossroads have an agency relationship,  nor does she assert that MBUSA retained any control over Crossroads' day-to-day operations such that it was responsible for the maintenance and upkeep of the floor where Plunkett slipped and fell. Thus, Plunketts complaint does not sufficiently state a negligence claim against MBUSA for vicarious liability premised on an agency theory.
The motion to dismiss is GRANTED as to Plunketts claim that MBUSA is liable for the actions of Crossroads under an agency theory, and as to any assertion that MBUSA had a duty to maintain Crossroads' premises, including removal of water from the floor or ...