Barber v. Sam's Club East, Inc.
6:17-cv-00035
W.D. Va.Oct 6, 2017Background
- Sarah, James, and Jared Barber purchased Taylor Farms "Asian Chopped Salad" from retailers and discovered a severely damaged mouse carcass in the salad after serving it at home; they allege illness and ongoing emotional distress.
- Plaintiffs sued Taylor Farms (producer) for negligence, breach of implied warranty of merchantability, and breach of express warranty.
- Complaint alleges Taylor Farms had prior, widely publicized contamination incidents (including a dead mouse and other contaminants) and failed to undertake reasonable inspection and testing.
- Plaintiffs allege the mouse carcass was contained in the sealed bag when purchased and thus present when it left Taylor Farms’ control.
- Taylor Farms moved to dismiss under Rule 12(b)(6) arguing the complaint fails to plead sufficient facts (including lack of knowledge and lack of express-warranty basis).
- The court denied the motion, finding the complaint’s factual allegations sufficient to state plausible claims on all counts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Negligence (unwholesome food) | Taylor Farms negligently sold unwholesome food; prior contamination incidents show knowledge and failure to test | Prior incidents do not prove knowledge of a mouse in this bag; allegations insufficient to show defendant’s negligence | Denied dismissal — allegations plausibly show negligence and possible gross/willful conduct; question for factfinder |
| Breach of implied warranty of merchantability | Salad was not "wholesome" and unfit for ordinary use; warranty breached | Insufficient pleading that product left defendant defective or that warranty is breached | Denied dismissal — breach and negligence allegations rise and fall together; typically a jury question |
| Breach of express warranty | Package statement "Washed & Ready-to-Enjoy" is an affirmation of fact that formed part of the bargain and was breached by presence of mouse | Label language may be mere product description/opinion and not an express warranty | Denied dismissal — label is an affirmation of fact under Virginia law and plaintiffs pleaded breach |
| Sufficiency under Rule 12(b)(6) (knowledge/gross negligence) | Detailed factual allegations, including prior contamination incidents and testing failures, raise plausible claims | Legal conclusions and some alleged inconsistencies warrant dismissal | Denied — court accepts factual allegations as true and finds claims plausible under Twombly/Iqbal standard |
Key Cases Cited
- King v. Rubenstein, 825 F.3d 206 (4th Cir. 2016) (pleading standard and treatment of factual allegations)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (application of plausibility standard)
- Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d 754 (4th Cir. 2011) (court need not accept legal conclusions or unwarranted inferences)
- Bussey v. E.S.C. Rests., Inc., 270 Va. 531 (Va. 2005) (elements for negligence based on unwholesome food)
- Norfolk Coca-Cola Wks. v. Krausse, 162 Va. 107 (Va. court recognizing foreign substances as evidence of negligence)
- Cowan v. Hospice Support Care, Inc., 268 Va. 482 (Va. 2004) (definition of gross negligence and willful/wanton conduct)
- Bayliner Marine Corp. v. Crow, 257 Va. 121 (Va. 1999) (express warranty and implied warranty of merchantability principles)
- Yates v. Pitman Mfg., Inc., 257 Va. 601 (Va. 1999) (affirmation of fact as part of the bargain; reliance not required for express warranty)
- Parker v. Wendy’s Int’l, Inc., 41 F. Supp. 3d 487 (E.D. Va. 2014) (unwholesome food negligence standard discussion)