United States District Court, W.D. Virginia, Lynchburg Division
Lynchburg Division James M. Barber, ET AL., Plaintiffs,
Sam's Club East, Inc., et al., Defendants.
K. Moon UNITED STATES DISTRICT JUDGE
case, brought by Plaintiffs James, Sarah, and Jared Barber,
concerns a contaminated bag of salad that Plaintiffs
purchased and consumed in October 2016. The matter is before
the Court upon a partial motion to dismiss for failure to
state a claim on behalf of Defendants Sam's Club East,
Inc. and Wal-Mart Stores, Inc. (“Defendants”).
(Dkt. 7). Defendants ask the Court to dismiss Count 1, which
alleges willful and wanton negligence, as well as Count 2,
which alleges gross negligence. They argue that these Counts
lack sufficient factual detail to state plausible claims for
relief under the Twombly/Iqbal standard. Because the
factual allegations in the Complaint are sufficient to raise
plausible claims for relief, Defendants motion will be
motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the
legal sufficiency of a complaint to determine whether a
plaintiff has properly stated a claim; “it does not,
however, resolve contests surrounding the facts, the merits
of a claim, or the applicability of defenses.” King
v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016).
Although a complaint “does not need detailed factual
allegations, a plaintiff's obligation to provide the
‘grounds' of his entitle[ment] to relief requires
more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
need not “accept the legal conclusions drawn from the
facts” or “accept as true unwarranted inferences,
unreasonable conclusions, or arguments.” Eastern
Shore Markets, Inc. v. J.D. Assocs. Ltd. P'ship, 213
F.3d 175, 180 (4th Cir. 2000). “Factual allegations
must be enough to raise a right to relief above the
speculative level, ” Twombly, 550 U.S. at 555,
with all allegations in the complaint taken as true and all
reasonable inferences drawn in the plaintiff's favor.
Chao v. Rivendell Woods, Inc., 415 F.3d 342, 346
(4th Cir. 2005). Rule 12(b)(6) does “not require
heightened fact pleading of specifics, but only enough facts
to state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570. Consequently,
“only a complaint that states a plausible claim for
relief survives a motion to dismiss.” Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009).
Facts as Alleged
facts contained in the Complaint are relatively
straightforward. Plaintiff Sarah Barber purchased two bags of
“Asian Chopped Salad” from Defendants. (Dkt. 1
¶ 8). The salad in question was produced by Defendant
Taylor Farms. (Id.).
that evening, Plaintiff Sarah Barber tossed the salad and
served it in a large bowl, and all three Plaintiffs served
themselves. (Id. ¶¶ 9-10). As Plaintiff
Sarah Barber was getting herself a second serving, she
noticed a mouse carcass in the salad. (Id. ¶
10-11). The mouse carcass was severely damaged; the head was
missing and innards were scattered throughout the salad.
(Id. ¶ 13).
quickly became nauseated. (Id. ¶ 15). Plaintiff
Matt Barber vomited several times and remained sick the next
day. (Id. ¶¶ 16-18). He continues to have
difficulty sleeping and has experienced disturbing dreams
since the incident. (Id. ¶ 19). Plaintiffs
Sarah and Jared Barber continue to have flashbacks, which
make them nauseated. (Id. ¶¶ 21-23).
Farms is known for producing contaminated food, and stories
of various contaminants found in their food have been covered
widely in the media. (Id. ¶¶ 40-48). In
particular, there was a salmonella outbreak caused by Taylor
Foods salad that had been sold at Defendants' stores.
Defendants “failed to insist on proper procedures [from
Taylor Farms], in spite of years' worth of outbreak of
deadly illnesses tied to Taylor Farm products.”
(Id. ¶ 36). These repeated incidents
demonstrate that Defendants had “actual or constructive
consciousness of the danger involved” with selling
products produced by Taylor Farms. (Id. ¶ 54).
recognizes three degrees of negligence: (1) simple or
ordinary negligence; (2) gross negligence; and (3) willful or
wanton negligence. Simple negligence “involves the
failure to use the degree of care that an ordinarily prudent
person would exercise under similar circumstances to avoid
injury to another.” Cowan v. Hospice Support Care,
Inc., 268 Va. 482, 486 (2004). Gross negligence
“is a degree of negligence showing indifference to
another and an utter disregard of prudence that amounts to a
complete neglect of the safety of such other person. This
requires a degree of negligence that would shock fair-minded
persons, although demonstrating something less than willful
recklessness.” Id. at 487. Willful and wanton
negligence “is defined as acting consciously in
disregard of another person's rights or acting with
reckless indifference to the consequences, with the defendant
aware, from his knowledge of existing circumstances and
conditions, that his conduct probably would cause injury to
another.” Id. (internal quotation marks
contend that Plaintiffs' factual allegations are
insufficient to establish claims for gross negligence or
willful and wanton negligence. They argue that Plaintiffs
have failed to adequately plead that Defendants had the
knowledge necessary to prove “conscious disregard,
” “reckless indifference, ” or “utter
disregard of prudence.” Id. They point out
that the Complaint simply lists a series of high-profile
stories about contaminated products made by Taylor Farms and
then states that Defendants had “actual or constructive
consciousness of the danger.” (Dkt. 1 ¶ 54).
are correct that Plaintiffs' legal conclusions should be
disregarded, EasternShore Markets, Inc.,
213 F.3d at 180, but they undervalue the amount of detail
found in Plaintiffs' factual allegations. Plaintiffs'
allegations, taken as true, outline a lengthy series of
widely-publicized instances where products by Taylor Farms
were found to have contaminants. (Dkt. 1 ¶¶ 40-48).
Most notably, one of the incidents involved a salmonella
outbreak caused by Taylor Farms products sold at
Defendants' stores. (Id. ¶ 48).
Nevertheless, Defendants are alleged to have continued
selling products by Taylor Farms without instituting
additional safeguards. (Id. ¶ 36). While these
allegations may later prove to be unfounded or insufficient
by the fact finder, now is not the time to test the weight or
veracity of factual allegations. See Rubenstein, 825
F.3d at 214. Plaintiffs' allegations establish a
plausible narrative that ...