Case Information
*0 AUG. 10, 2017 *1 I N THE U NITED S TATES D ISTRICT C OURT FOR THE W ESTERN D ISTRICT OF V IRGINIA L YNCHBURG D IVISION
J AMES M. B ARBER , ET AL . , C ASE N O . 6:17- CV -00035
Plaintiffs, MEMORANDUM OPINION
v.
S AM ’ S C LUB E AST I NC ., ET AL . , J UDGE N ORMAN K. M OON
Defendants.
This 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 dismissed.
I. L EGAL S TANDARD A 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) (citations omitted).
A court 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).
II. F ACTS AS A LLEGED The 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. ).
Later 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).
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. ( ¶¶ 21–23).
Taylor Farms is known for producing contaminated food, and stories of various contaminants found in their food have been covered widely in the media. ( ¶¶ 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).
III. D ISCUSSION Virginia 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.” (internal quotation marks omitted).
Defendants 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.” 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).
Defendants are correct that Plaintiffs’ legal conclusions should be disregarded, Eastern *4 Shore 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. ( ¶ 48). Nevertheless, Defendants are
alleged to have continued selling products by Taylor Farms without instituting additional
safeguards. ( ¶ 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
Defendants had knowledge of the risks caused by products made by Taylor Farms. See
Twombly , 550 U.S. at 556 (“And, of course, a well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of those facts is improbable.”).
With respect to gross negligence, Plaintiffs must show “a complete neglect of the safety” of others and “a degree of negligence that would shock fair-minded persons.” Cowan 268 Va. at
487. Virginia Supreme Court has made clear that the issue of whether particular actions rise
from simple negligence to gross negligence is typically a factual matter. See Koffman v. Garnett ,
265 Va. 12, 15 (2003) (“Whether certain actions constitute gross negligence is generally a factual
matter for resolution by the jury and becomes a question of law only when reasonable people
cannot differ.” (citing Griffin v. Shivley , 227 Va. 317, 320 (1984)); Chapman v. City of Virginia
Beach , 252 Va. 186, 190 (1996) (“Whether gross negligence has been established is usually a
matter of fact to be decided by a jury.”). Here Plaintiffs have alleged that Defendants knew
about the risk posed by Taylor Farms’s products but chose to sell them anyway. Because
reasonable people could differ about whether the decision to continue selling products from
Taylor Farms was gross negligence, dismissal of Count 2 is not appropriate at this time. *5 As for willful and wanton negligence, much of the same analysis applies here. Although willful and wanton negligence is difficult to prove, Plaintiffs’ claim is not implausible or legally
deficient. “The tort of willful and wanton negligence has been characterized as a spirit of
mischief, criminal indifference, or conscious disregard for the rights of others.” Volpe v. City of
Lexington , 281 Va. 630, 640 (2011) (emphasis added). Here, Plaintiffs have alleged that
Defendants had knowledge of the danger inherent in products from Taylor Farms, but chose to
consciously disregard the rights of their customers and sell those products anyway. (Dkt. 1
¶¶ 39–50). Seeing as “ill will is not a necessary element of willful and wanton negligence,
Alfonso v. Robinson , 257 Va. 540, 545 (1999), these allegations—taken as true—elucidate a
course of conduct that a reasonable fact finder could consider willful and wanton negligence. 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.”). Accordingly, dismissal of Count 1 is not
appropriate at this time.
IV. C ONCLUSION Defendants seek dismissal of Counts 1 and 2 of the Complaint because they argue that Plaintiffs have failed to state a claim for gross negligence or willful and wanton negligence.
Although such claims are difficult to prove and recovery on such bases may appear unlikely, the 10th
allegations found in the Complaint state plausible claims upon which relief could be granted.
Therefore, the motion will be denied.
An appropriate Order will issue, and the Clerk of the Court is hereby directed to send a copy of this Memorandum Opinion to Plaintiffs, Defendants, and all counsel of record.
Entered this _____ day of August, 2017.