Mercer, et al v. Wal-Mart Stores, Inc.

Filing 20

ORDER denying 11 Motion to Dismiss Claims for Punitive Damages - As per the court's initial order regarding planning and scheduling, the parties joint report and plan is due August 18, 2015. Signed by District Judge Louise Wood Flanagan on 08/12/2015. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:15-CV-311-FL

DORIS MERCER and STEPHEN
MERCER,
Plaintiffs,
v.
WAL-MART STORES, INC.,
Defendant.

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ORDER

This matter is before the court on defendant’s motion to dismiss claims for punitive damages.
(DE 11). The court has considered the issues raised without awaiting response by plaintiffs, and for
the following reasons denies defendant’s motion.
Where nothing in the complaint suggests malice or fraud, the court considers whether the
complaint alleges willful or wanton conduct. See N.C. Gen. Stat. 1D-15(a). The scattered,
conclusory allegations of recklessness in themselves do not raise a genuine issue of willful or
wanton conduct. Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th
Cir.2009). Nor are allegations that defendant violated safety codes and internal procedures, without
alleged facts suggesting that defendant consciously violated these procedures with knowledge of the
probable consequences. See Yancey v. Lea, 354 N.C. 48, 52-53 (2001); see also Faris v. SFX
Entertainment, Inc., No. 3:04-CV-8, 2006 WL 3690632, at *5 (W.D.N.C. Dec. 12, 2006); Schenk
v. HNA Holdings, Inc., 170 N.C. App. 555, 561 (2005); Cacha v. Montaco, Inc., 147 N.C. App. 21,
33 (2001).

The complaint contains allegations that defendant’s managers allowed employees who were
unpacking to take a lunch break without cleaning up debris caused by the unpacking, which led to
plaintiff’s fall. While this may show some degree of manager participation or condoning of the
conduct that led to injury, see N.C. Gen. Stat. 1D-15(c), it does not show that the managers or the
employees unpacking the crate acted willfully or wantonly. Similarly, allegations that the managers
apologized and recognized that they should have taken different steps to prevent the accident, may
be sufficient to show negligence, but not willful or wanton conduct.
However, the punitive damages claim is sustained by paragraph 15 of the complaint. This
paragraph alleges that, after viewing plaintiff’s fall, an employee of defendant told plaintiff that he
had seen people fall before, and he “had even slipped on debris that was left on the floors after
unpacking crates.” He allegedly stated that Wal-Mart “was never concerned about boxes or debris
in aisles or in the middle of the floor where customers had to walk” and that Wal-Mart “didn’t even
care for their employees’ safety.” When viewed in the context of plaintiff’s recent slip, and when
all of these statements are considered together and viewed in the light most favorable to plaintiff,
the complaint permits an inference that defendant acted with conscious disregard of its customers’
safety with respect to maintaining its premises.
Accordingly, based on the foregoing, defendant’s motion to dismiss plaintiff’s claim for
punitive damages (DE 11) is DENIED. As per the court’s initial order regarding planning and
scheduling, the parties’ joint report and plan is due August 18, 2015.
SO ORDERED, this the 12th day of August, 2015.

_____________________________
LOUISE W. FLANAGAN
United States District Judge

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