Coogan-Golden v. Wal-Mart Stores East, LP et al

Filing 133

MEMORANDUM OPINION. Signed by District Judge Elizabeth K. Dillon on 3/13/2017. (bw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
HARRISONBURG DIVISION
ELIZABETH COOGAN-GOLDEN,
Plaintiff,
v.
WAL-MART STORES EAST, LP, et al.,
Defendants.

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Civil Action No. 5:15-cv-00054
By: Elizabeth K. Dillon
United States District Judge

MEMORANDUM OPINION
This case is before the court on defendant Wal-Mart’s motion to dismiss plaintiff’s claim
for punitive damages, which is contained in her second amended complaint (Dkt. No. 125).
(Dkt. No. 128.) Although the time for responding to the motion to dismiss has not yet elapsed,
the court wants to rule on the motion expeditiously, in order to maintain both the current dates
set for briefing of summary judgment and the trial date. Furthermore, the court previously
received the benefit of briefing from the parties on the issue of the availability of punitive
damages, because that very issue was briefed in conjunction with plaintiff’s motion to amend the
complaint to add a request for punitive damages. Thus, the court believes it has sufficient
information to rule on the motion without extensive briefing. For the reasons set forth herein, the
court will deny the motion to dismiss.
I. BACKGROUND
According to the second amended complaint, Ms. Coogan-Golden was injured while
shopping in the Wal-Mart store in Staunton, Virginia on or about August 20, 2013. At the time,
defendant Mountain Top was performing roofing work at the store, and plaintiff alleges that the
vibrations from the roofing contractor’s tools caused a hard object to fall from the ceiling and

strike her. She suffered injuries as a result of the incident. Her second amended complaint
contains two counts, a count of “negligence” and a count of “willful, wanton and/or reckless
negligence,” the latter of which also includes a request for punitive damages.
In support of her second count, plaintiff alleges that in the three weeks leading up to
incident in which she was injured, Wal-Mart had three other incidents in which objects fell from
the ceiling of the Staunton store during roofing work. In one, “debris fell from the ceiling . . .
into a customer’s eyes.” (Second Am. Compl. ¶ 21.) In the second, a mounted security camera
cover fell from its attachment to the ceiling and struck a customer. Plaintiff alleges that the
camera fell “due to the roofing work and because it was improperly secured.” (Id. at ¶ 23.) In
the third, a piece of conduit fell from the ceiling. Plaintiff alleges that all of these incidents were
known to Wal-Mart before plaintiff was injured, and plaintiff repeatedly alleges that, in response
to these incidents, “nothing was done to protect the plaintiff or other customers at Wal-Mart.”
(Id. at ¶¶ 25, 26; see also ¶ 24 (“Wal-Mart did nothing to protect its customers.”).) Instead, she
alleges that Wal-Mart considered implementing various safety precautions, “all of which were
feasible prior to [her] injuries and would have prevented [her] injuries,” but declined to do so.
(Id. at ¶ 33.)
II. DISCUSSION
A. Rule 12(b)(6) Is Not An Appropriate Procedural Tool for Dismissing a Specific Remedy
As a threshold matter, the court notes that Rule 12(b)(6) “does not provide a vehicle to
dismiss a portion of relief sought or a specific remedy, but only to dismiss a claim in its
entirety.” Meeks v. Emiabata, No. 7:14-cv-534, 2015 WL 1636800, at *2 (W.D. Va. Apr. 13,
2015) (collecting authority from this court and others so holding). The basic rationale for this
holding is that Rule 12(b)(6) is the proper procedural tool to dismiss a “claim” in its entirety, but

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not a specific “demand for relief,” which is only one part of the claim for relief. Id. at *2–3; see
also Charles v. Front Royal Volunteer Fire & Rescue Dep’t, Inc., 21 F. Supp. 3d 620, 631 (W.D.
Va. 2014).
Pursuant to the ruling in Meeks, Charles, and the authority on which those cases rely, if
the plaintiff here had simply added the allegations of willful and wanton conduct in her
negligence claim and added a claim for punitive damages, the court would deny the motion to
dismiss on the same grounds as it did in Meeks. In this case, though, plaintiff has set forth as a
separate count a claim for willful, wanton &/or reckless negligence. So, the court must
determine if that form of pleading makes a difference such that it is a separate “claim for relief”
subject to dismissal. In view of all the circumstances in this case, the court concludes that the
form of her pleading cannot control here. The only difference between her willful and wanton
negligence claim and her claim for negligence in count I is that proof of willful and wanton
conduct would render punitive damages available. So, it would make little sense to the court to
allow dismissal under Rule 12(b)(6) of this “claim” simply because the plaintiff had set it forth
as a separate count, when it is really just a request for additional relief, namely punitive damages.
Accordingly, for the same reasons set forth in Meeks, the court will deny the motion to dismiss
plaintiff’s claim for punitive damages.
B. Plaintiff Has Adequately Pleaded Facts Sufficient to Support a Claim of Willful and
Wanton Negligence
Even if the plaintiff’s choice to plead willful and wanton negligence as a separate claim
meant that her claim could be subject to dismissal under Rule 12(b)(6) for failure to state a claim,
the court would still deny the motion to dismiss. As the court noted at the March 1, 2017
hearing, and for the reasons stated on the record, the court believes that plaintiff plausibly has

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alleged enough facts to at least be entitled to additional discovery as to the issue of what WalMart knew, when it knew it, and what steps it took in response to its knowledge.
In Owens-Corning Fiberglas Corp. v. Watson, 413 S.E.2d 630 (Va. 1992), the Supreme
Court of Virginia defined willful and wanton 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.” 413 S.E.2d at 640 (citations omitted). In Watson, the court
concluded that the defendant “committed certain positive acts which the jury could have
concluded constituted willful or wanton conduct . . . .” Id. at 641. Specifically, there was
evidence from which the jury could have concluded that “Owens-Corning knew that inhalation
of dust from its . . . product could cause lung disease in humans, that it actively concealed this
danger, and it did not warn insulators [like the plaintiff] of this hazard even though it warned its
own employees.” Id. at 642.
As Wal-Mart properly notes, wanton and willful negligence is a high threshold for a
plaintiff to satisfy. It requires conduct even more egregious than gross negligence, which shows
indifference to others and disregards prudence to the level that the safety of others is completely
neglected. Harris v. Harmon, 486 S.E.2d 99, 101–02 (Va. 1997) (stating that willful and
wanton negligence “generally involves some type of egregious conduct . . . going beyond that
which shocks fair-minded people” and explaining that gross negligence, which occurs when a
defendant “disregard[s] prudence to the level that the safety of others is completely neglected”
and “shocks fair-minded people,” is insufficient to state a punitive damages claim). Indeed, even
in a case in which it concluded sufficiently willful and wanton conduct had been shown where a
defendant drove the wrong way on the interstate and had a blood alcohol content of .22%, the

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Supreme Court of Virginia nonetheless emphasized its “general reluctance to allow punitive
damages in run-of-the-mill personal injury cases.” Booth v. Robertson, 374 S.E.2d 1, 3 (Va.
1988).
Facts, adduced in discovery in this case as to what Wal-Mart knew and what it did in
response, may well render plaintiff’s claim for punitive damages subject to summary judgment.
But plaintiff has alleged that Wal-Mart knew of a danger of objects falling from the ceiling and
striking customers and that it knew the falling objects were related to roofing operations.
Critically, plaintiff has repeatedly alleged that Wal-Mart did “nothing” in response to that known
danger. See, e.g., Russell v. Wright, 916 F. Supp. 2d 629, 660 (W.D. Va. 2013) (explaining that
“[c]onduct that evinces some concern for the safety of others, such as attempts to neutralize
dangers once they are known, will weigh against an award of punitive damages”) (citing Philip
Morris, Inc. v. Emerson, 368 S.E.2d 268 (Va. 1988)). At this stage of the case, then, plaintiff has
pleaded sufficient facts to entitle her to discovery on her request for punitive damages.
III. CONCLUSION
For the foregoing reasons, defendant’s motion to dismiss will be denied. An appropriate
order will be entered.
Entered: March 13, 2017.

/s/ Elizabeth K. Dillon
Elizabeth K. Dillon
United States District Judge

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