Howard v. Nashville Quality, LLC et al
MEMORANDUM OPINION. Signed by Judge Thomas T. Cullen on 11/14/2023. (ham)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
IMPOSSIBLE FOODS INC. and NASHVILLE )
QUALITY, LLC d/b/a Burger King,
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NOV 14 2023
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Case No. 4:23-cv-00016
Hon. Thomas T. Cullen
United States District Judge
When Plaintiff Lillie Howard (“Howard”) bought lunch at a local Burger King, she
expected to get what she ordered: a meatless burger known as an “Impossible Whopper.”
Instead, she alleges that her Impossible Whopper contained something extra: shards of glass.
When Howard unwittingly swallowed the glass, she lacerated the inside of her throat. Howard
has now sued both the manufacturer of the meatless burger and the restaurant that sold it to
her, contending that at least one of them was negligent by allowing glass to make its way into
her food. The manufacturer now moves to dismiss the claims against it, contending that,
because Howard doesn’t know how the glass got into her Impossible Whopper, she has no
cause of action against it. Because this argument misunderstands Howard’s allegations and
misapplies the applicable standard of review, the manufacturer’s motion to dismiss will be
STATEMENT OF FACTS
On May 31, 2022, Howard visited the Burger King on Bill Tuck Highway in South
Boston, Virginia, and purchased “a vegetarian burger made by Defendant” Impossible Foods
Inc. (“IFI”). (Am. Compl. ¶¶ 9–10 [ECF No. 7].) She took the meal home and began to eat,
but after several bites, “began to feel a searing pain in the back of her throat and a constricted
choking sensation.” (Id. ¶¶ 11–12.) Her daughter took her to the emergency department at a
nearby hospital where “it was discovered that she had a large hematoma in her throat of
unknown origin.” (Id. ¶ 13.)
After she was discharged, Howard returned home and examined her half-eaten burger
(Id. ¶¶ 14–15.) Upon inspection, she “discovered multiple fragments of glass embedded in the
burger.” (Id. ¶ 15.) As a result of swallowing the glass shards, Howard contends she has
“suffered lasting injuries, including the loss of her voice, inability to eat solid food, pain,
suffering, emotional distress, nightmares, and an aversion to store-bought prepared food.” (Id.
On June 28, 2023, Howard brought suit in this court against IFI, the manufacturer of
her vegetarian burger (id. ¶ 10), and Nashville Quality, LLC, the owner and operator of the
Burger King from which Howard purchased the burger (id. Intro.), alleging claims of
“Negligence/Gross Negligence/Willful and Wanton Negligence” (Count 1) and breach of the
implied warranty of merchantability (Count 2). IFI filed a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6), arguing that Howard’s complaint fails to state a claim against
it. (Mot. Dismiss at 1 [ECF No. 21].) The motion was fully briefed by the parties and is ripe
for disposition. 1
The court dispenses with oral arguments because the parties’ positions are adequately set forth in their written
submissions and further argument would not aid the court in deciding the discrete issue before it.
STANDARD OF REVIEW
Motions to dismiss under Rule 12(b)(6) test the legal sufficiency of a complaint. Edwards
v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, the
complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the plaintiff’s
allegations “allow the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id. While a complaint does not need “detailed factual allegations,”
complaints merely offering “labels and conclusions,” “naked assertion[s] devoid of ‘further
factual enhancement,’” or “a formulaic recitation of the elements of a cause of action will not
do.” Id. (alteration in original) (internal quotation marks omitted) (quoting Twombly, 550 U.S.
at 555, 557).
IFI argues that, “[u]nder Virginia law, [Howard]’s claim fails as a matter of law because
there are no allegations to demonstrate IFI’s negligence was the proximate cause of the
claimed harm, and there are no facts to support a presumption of negligence through the
application of the res ipsa doctrine.” (Br. Supp. Mot. Dismiss. at 1, Aug. 11, 2023 [ECF No.
22] [hereinafter “IFI Br.”].) Although IFI is likely correct (though potentially premature) on
its second point, it is wrong on its first.
“[W]here a plaintiff allegedly suffers injury from a deleterious substance in food, the
burden is on the plaintiff to show that the food product contained foreign matter at the time
the retailer sold and delivered the product to the consumer.” Harris-Teeter, Inc. v. Burroughs, 241
Va. 1, 3–4 (Va. 1991). “Thus, in a negligence action such as this one based on ‘unwholesome
food,’ the burden is on the plaintiff to show (1) that the food was unreasonably dangerous for
consumption, and (2) that the unreasonably dangerous condition existed when the [food] left
the defendant’s hands.” Phipps v. Ruby Tuesday, Inc., Civil Action No. 7:12-cv-401, 2013 WL
593483, at *1 (W.D. Va. Feb. 15, 2013) (cleaned up).
“The standard of safety of goods imposed on the seller or manufacturer of a product
is essentially the same whether the theory of liability is labelled warranty or negligence or strict
tort liability: the product must not be unreasonably dangerous at the time that it leaves the
defendant’s possession if employed in the manner in which it was intended to be used or put
to a special use known beforehand by the defendant.” Chestnut v. Ford Motor Co., 445 F.2d 967,
968 (4th Cir. 1971). “The only difference between negligence and strict tort liability is that the
plaintiff attempting to prove negligence must prove an additional element, i.e., not only that
the product was dangerously defective at the time that it left the defendant’s hands, but also
that the defect was the result of the defendant’s failure to exercise due care.” Id. at 969.
IFI argues that Howard’s “allegations fail to explain how or when the glass got into the
burger, and the circumstances do not support the application of the res ipsa doctrine or an
inference of negligence.” (IFI Br. at 5.) Because Howard’s complaint demonstrates that the
burger “was not in IFI’s exclusive possession or control,” IFI contends her “allegations are
insufficient to explain the process from manufacture, to delivery, to distribution, to cooking
and packing at the restaurant.” (Id.)
Here, Howard alleges that her burger contained glass, a dangerous substance that
should not have been in her food. She alleges that, “[b]y manufacturing, preparing, and/or
serving a burger filled with shards of glass . . . , Defendants breached their duty to” her. (Am.
Compl. ¶ 22.) She also states that “[t]he facts and circumstances explaining how broken glass
could come to fill a burger are unknown at this stage, but the possibilities range from the
intentional sabotage of the burger by an employee to the willful disregard of the likelihood
that the burger had been contaminated.” (Id. ¶ 28.) Howard further makes the point that “[i]t
is improbable . . . that an accident involving glass would not have involved one or more of
either Defendant’s employees in either the accident that broke the glass or in cleaning up the
broken glass that self-evidently was in a food preparation or manufacture area.” (Id. ¶ 29.) And
she says, “[u]pon information and belief, one or more employees of either Defendant had
either active or constructive consciousness that a dangerous glass-contaminated burger might
be served to a customer.” (Id. ¶ 30.) As it relates to IFI, then, Howard alleges that: an accident
or sabotage occurred during the manufacture of the vegetarian burger; its employees knew or
should have known of the accident; IFI’s employees failed to remedy the situation; and as a
result, it shipped a glass-filled burger to Burger King, who, in turn, sold it to Howard. These
allegations are more than sufficient to state a claim against IFI. See, e.g., Fed. R. Civ. P. 8(d)(2)
(“If a party makes alternative statements, the pleading is sufficient if any one of them is
IFI takes issue with the fact that Howard pleads that either IFI or Nashville Quality,
LLC were responsible for the accident or sabotage that resulted in glass in her food. IFI argues
that “[b]ecause the allegations concede it is just as probable that the damages were caused by
someone other than IFI and further fails to identify what IFI did or failed to do to cause the
damages, the Complaint fails to state a plausible claim for relief.” (IFI Br. at 5.) This is wrong.
IFI conflates Howard’s burden of proof with the pleading requirements. If her proof at trial
results in it being just as likely that another party caused her injury, then IFI may be entitled
to prevail. But that is not the standard to be applied at this point, as it is well-established that
a party “may plead alternative theories of liability—indeed, ‘as many theories as the facts will
fit.’” Tilson v. Humphrey, Civil Action No. 5:19-CV-033, 2019 WL 6902677, at *10 (W.D. Va.
Dec. 18, 2019) (quoting United States for use & benefit of Tusco, Inc. v. Clark Constr. Grp., LLC, 235
F. Supp. 3d 745, 755 (D. Md. 2016)). And a plaintiff is free to “set out conflicting alternative
theories in its complaint without one constituting an admission against the other.” Zee Co., Inc.
v. Williams, Mullen, Clark & Dobbins, P.C., 547 F. App’x 166, 168 n.3 (4th Cir. 2013) (citing Fed.
R. Civ. P. 8(d)(2)). That is exactly what Howard has done, and there is no basis to dismiss her
claims against IFI for that reason.
Howard may not yet have proven her case, but requiring her to do so at the pleading
stage, as IFI suggests, would be error. No reasonable interpretation of the Federal Rules of
Civil Procedure requires that a plaintiff know exactly how its injury occurred and allege that
with the requisite specificity that IFI asserts is required.
IFI also argues that any claim for gross negligence or willful and wanton negligence
must fail because Howard “cannot allege how or when the burger became contaminated with
glass,” and therefore “cannot in good faith purport to allege that it was done out of an utter
disregard of prudence or with conscious disregard of the safety of another.” (IFI Br. at 6.)
This argument only has merit if it ignores Howard’s allegations. She clearly alleges that the
glass may have been the result of an accident during the manufacturing process of which IFI’s
employees were aware, but that they failed to take care to clean up the dangerous detritus. (See
Am. Compl. ¶ 25.) Such callousness on the part of a food manufacturer would certainly
evidence “a complete neglect of the safety” of others, establishing gross negligence, and
“reckless indifference” to the health and safety of the consumers, establishing willful and
wanton negligence. Cowan v. Hospice Support Care, Inc., 268 Va. 482, 487 (Va. 2004) (citing
Koffman v. Garnett, 265 Va. 12, 15 (Va. 2003); Etherton v. Doe, 268 Va. 209, 213–14 (Va. 2004)).
IFI also contends that the doctrine of res ipsa loquitur does not apply here. “Generally
speaking, that doctrine applies in negligence cases where the instrumentality which caused an
injury is within the exclusive possession and control of the person charged with negligence,
and such person has, or should have, exclusive knowledge of the way that instrumentality was
used, and the injury would not ordinarily have occurred if it had been properly used.” Danville
Comm. Hosp. v. Thompson, 186 Va. 746, 757–58 (Va. 1947). “[T]he mere fact that an accident
occurred does not warrant application of the doctrine. It may be utilized only when the
circumstances of the incident, without further proof, are such that, in the ordinary course of
events, the incident could not have happened except on the theory of negligence.” Lewis v.
Carpenter Co., 252 Va. 296, 300 (Va. 1996). “Res ipsa loquitur ‘never applies in the case of an
unexplained accident that may have been attributable to one of two causes, for one of which
the defendant is not responsible.’” Phipps, 2013 WL 593483, at *1 (quoting Lewis, 252 Va. at
Here, IFI is correct that the doctrine of res ipsa is inapplicable to establish negligence
on the facts alleged. The burger in question is alleged to have been in the possession of two
different defendants, but as Howard concedes, only one may be responsible for the shards of
glass. Because the incident “may have been attributable to one of two causes, for one of which
the defendant is not responsible,” Lewis, 252 Va. at 300, res ipsa does not serve to establish
negligence by either party. But this argument is premature because Howard has not had the
opportunity to conduct discovery regarding her claims to determine which defendant bears
primary responsibility for her injuries. If she can establish that the shards of glass could only
have been introduced into the hamburger during IFI’s manufacturing process, res ipsa might
very well serve to establish negligence against IFI if Howard is unable to show how the glass
Even if IFI is correct that res ipsa does not apply, that does not change the outcome of
its present motion. Howard’s allegations, taken as true, would state a claim for negligence
regardless of the application of the res ipsa doctrine. Because she alleges, as discussed above,
that glass was introduced into her food either through an accident or sabotage that IFI should
have known about in the exercise of due care, her complaint is sufficient on its own without
the presumption of negligence that would be afforded by res ipsa.
B. Breach of Implied Warranty
“In the context of unwholesome food,” the elements of the causes of action for
negligence and breach of warranty are the same: “(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, (Va. 2005)
(quoting Harris-Teeter, 241 Va. at 4); see also Hamilton v. Boddie-Noell Enters., Inc., 88 F. Supp. 3d
588, 592 (W.D. Va. 2015) (“Under Virginia law, claims of negligence or breach of warranty
involving unwholesome food require the same showing . . . .”). For the same reasons discussed
above, Howard’s allegations against IFI are more than sufficient to state a claim for breach of
warranty, and IFI’s motion to dismiss will be denied.
C. Punitive Damages
IFI also seeks to dismiss Howard’s claim for punitive damages, but “punitive damages
is not a ‘cause of action’ subject to dismissal under Rule 12(b)(6).” Charles v. Front Royal
Volunteer Fire & Rescue Dep’t, Inc., 21 F. Supp. 3d 620, 631(W.D. Va. 2014) (citations omitted).
“A plain reading of Rule 12(b)(6) indicates that the rule may be used only to dismiss a ‘claim’
in its entirety.” Janis v. Nelson, No. CR. 09-5019-KES, 2009 WL 4505935, at *7 (D.S.D. Nov.
24, 2009) (citations omitted). “Because ‘a demand for relief is not part of a plaintiff’s statement
of the claim,’ the nature of the relief sought is immaterial to the question of whether a
complaint adequately states a claim upon which relief can be granted.” Charles, 21 F. Supp. 3d
at 631 (quoting Alexander v. Se. Wholesale Corp., 978 F. Supp. 2d 615, 624 n.7 (E.D. Va. 2013)).
Accordingly, IFI’s motion to dismiss Howard’s punitive damages request will be denied.
For the reasons discussed above, Howard’s allegations are more than sufficient to state
a claim for negligence and breach of warranty against IFI at this early stage, and IFI’s motion
to dismiss will be denied.
The clerk is directed to forward a copy of this Memorandum Opinion and the
accompanying Order to all counsel of record.
ENTERED this 14th day of November, 2023.
/s/ Thomas T. Cullen_________________
HON. THOMAS T. CULLEN
UNITED STATES DISTRICT JUDGE
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