United States District Court, W.D. Virginia, Lynchburg Division
James M. Barber, ET AL., Plaintiffs,
Sam's Club East, Inc., ET AL., Defendants.
K. MOON UNITED STATES DISTRICT JUDGE.
Sarah, and Jared Barber (“Plaintiffs”) claim that
they bought and ate a bag of salad that contained a shredded
mouse. Plaintiffs sued the producer and retailers of the
salad for negligence, breach of an implied warranty of
merchantability, and breach of an express warranty. The salad
producer Taylor Farms Retail, Inc. (“Defendant”)
moves the Court to dismiss the suit for failure to state a
claim. (Dkt. 26). Because the factual allegations in the
Complaint are sufficient to raise plausible claims for
relief, Defendant's motion is denied.
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).
“[A] plaintiff's obligation to provide the
‘grounds' of his entitle[ment] to relief requires
more than labels and conclusions . . . .” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations
omitted). A court need not “accept the legal
conclusions drawn from the facts” or “accept as
true unwarranted inferences, unreasonable conclusions, or
arguments.” Simmons v. United Mortg. & Loan
Inv., LLC, 634 F.3d 754, 768 (4th Cir. 2011) (quotation
marks omitted). “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. Rubenstein, 825
F.3d at 212. 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
Sarah Barber purchased two bags of “Asian Chopped
Salad” from Defendants Sam's Club East, Inc. and
Wal-Mart Stores, Inc. (Dkt. 1 ¶ 8). Defendant Taylor
Farms produced this salad. (Id.). Later that
evening, Sarah Barber tossed the salad, put it in a large
bowl, and set it out for her family to eat. (Id.
¶¶ 9-10). All three Plaintiffs served themselves.
(Id.). As 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). Plaintiffs
allege that the disemboweled mouse had been entombed in the
salad bag since the salad was purchased. (Id. ¶
71). Plaintiffs 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).
alleges that Defendant is known for producing contaminated
food, and the media has widely covered incidents where
various contaminants were found in their food. (Id.
¶¶ 40- 48). Relevant here, “[i]n 2012, a
woman from Orlando, Florida found a dead mouse in a box of
Taylor Farms organic spinach.” (Id. ¶
41). Other instances involve contamination involving a frog,
bacteria, and pathogens. (Id. ¶ 40). Plaintiffs
allege that these repeated instances put Defendant on notice
that its products had these contaminants, but that Defendant
“failed to undertake reasonable inspection and testing
to ensure that its products were free of foreign
contaminants.” (Id. ¶ 36).
demonstrate that a defendant negligently produced
“unwholesome” food if they show “(1) that
the goods were unreasonably dangerous either for the use to
which they would ordinarily be put or for some other
reasonably foreseeable purpose, and (2) that the unreasonably
dangerous condition existed when the goods left the
defendant's hands.” Bussey v. E.S.C. Rests.,
Inc., 270 Va. 531, 536 (Va. 2005). While “a
plaintiff need not present evidence of a standard of care in
an unwholesome foods case, the plaintiff attempting to prove
negligence must also prove that the defect was the result of
the defendant's failure to exercise due care.”
Parker v. Wendy's Int'l, Inc., 41 F.Supp.3d
487, 491 (E.D. Va. 2014) (quotation marks omitted).
have met this threshold here by alleging (1) that the
Defendant did not adequately test its products even though it
was aware of various contaminants and (2) that the mouse
carcass was present in the bag when the bag was bought.
(Id. ¶¶ 36, 71). See Bussey, 270
Va. at 536; see also Norfolk Coca-Cola Wks. v.
Krausse, 162 Va. 107, 121 (Va. 1934) (“Foreign
substances in food packages not tampered with are in
themselves evidence of negligence.”). While Defendant
is correct that Plaintiffs' legal conclusions should be
disregarded, Simmons, 634 F.3d at 768, it
undervalues the amount of detail found in Plaintiffs'
factual allegations. Plaintiffs' allegations, taken as
true, outline a lengthy series of widely-publicized instances
where Defendant's products were found to have
contaminants. (Dkt. 1 ¶¶ 40-48). These include
incidents where customers found a dead mouse and a dead frog
in their food. (Id. ¶¶ 41, 46). Other
incidents sickened over five hundred people and were reported
in the New York Times. (Id. ¶¶ 42, 43).
Nevertheless, Defendant is alleged to have continued selling
products without “undertak[ing] reasonable inspection
and testing to ensure that its products were free of foreign
contaminants.” (Id. ¶ 36). While these
allegations may later prove to be unfounded, now is not the
time to test the veracity of factual allegations. See
Rubenstein, 825 F.3d at 214. Plaintiffs' allegations
establish a plausible narrative that Defendant had knowledge
of the risks caused by its products and failed to respond
reasonably to those risks.
protests that any alleged negligence was neither gross nor
willful and wanton.Gross negligence requires
“indifference to another and an utter disregard of
prudence that amounts to a complete neglect of the safety of
such other person.” Cowan v. Hospice Support Care,
Inc., 268 Va. 482, 487 (Va. 2004). 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
Plaintiffs have alleged that Defendant had knowledge of the
danger inherent in its products, but chose to consciously
disregard the rights of their customers and sell those
products anyway. (Dkt. 1 ¶¶ 39-50). These
allegations-taken as true-demonstrate negligence that a
reasonable fact finder could characterize as gross or willful
and wanton. Cf. Volpe, 281 Va. at 640-41 (“The
hallmark of this species of tortious conduct is the
defendant's consciousness of his act, his awareness of
the dangers or probable consequences, and his reckless
decision to proceed notwithstanding that awareness.”).
Because reasonable people could differ about the degree of
negligence, dismissal of Counts One and Two is inappropriate
at this time.
Breach of Implied ...