Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

J.S., A Minor, By and Through His Parent and Natural Guardian, Dawn v. Wal-Mart Stores

March 6, 2012

J.S., A MINOR, BY AND THROUGH HIS PARENT AND NATURAL GUARDIAN, DAWN GILLIS, AND DAWN GILLIS, INDIVIDUALLY, PLAINTIFFS
v.
WAL-MART STORES, INC., DEFENDANT/THIRD-PARTY PLAINTIFF, V. UNARCO INDUSTRIES, LLC, F/K/A, UNARCO INDUSTRIES, INC., THIRD-PARTY DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Blewitt

MEMORANDUM AND ORDER

I. Background.

On April 25, 2011, Plaintiffs J.S., a Minor, by and through his parent and natural guardian, Dawn Gillis, and Dawn Gillis, individually, filed a Complaint against original Defendant, Wal-Mart Stores, Inc. (Doc. 1). On April 28, 2011, Plaintiffs filed an Amended Complaint again solely against original Defendant, Wal-Mart Stores, Inc. (Doc. 5). Both the original Complaint and the Amended Complaint were filed in federal court based on diversity jurisdiction, under 28 U.S.C. §1332, since Plaintiffs are Pennsylvania residents and Defendant Wal-Mart is a Delaware corporation with its principal place of business in Arkansas.*fn1 On May 24, 2011, Defendant Wal-Mart filed its Answer to Plaintiffs' Amended Complaint with Affirmative Defenses. (Doc. 10). On November 2, 2011, the Court issued an Order granting Defendant Wal-Mart's unopposed Motion for Leave to File a Third-Party Complaint against Unarco Industries, LLC, f/k/a Unarco Industries, Inc. ("Unarco"). (Docs. 22 and 25). Defendant/Third-Party Plaintiff Wal-Mart ("Wal-Mart") filed its Third-Party Complaint against Third-Party Defendant Unarco on November 2, 2011. (Doc. 26). On December 12, 2011, Third-Party Defendant Unarco filed a Motion to Dismiss Defendant/Third-Party Plaintiff Wal-Mart's Third-Party Complaint, pursuant to Fed.R.Civ.P. 12(b)(6), with Exhibits, A-C . (Doc. 31). Third-Party Defendant Unarco's Motion to Dismiss has been briefed by the respective parties. (Docs. 32, 35 and 36). Defendant/Third-Party Plaintiff Wal-Mart also submitted Exhibits (A-C) with its opposition brief, including copies of unreported cases, Ex. D. (Doc. 35). Plaintiffs did not file a brief with respect to Third-Party Defendant Unarco's Motion to Dismiss Defendant/Third-Party Plaintiff Wal-Mart's Third-Party Complaint. However, Plaintiffs did not concur with Third-Party Defendant Unarco's Motion to Dismiss. (Doc. 31, p. 12).

Third-Party Defendant Unarco's Motion to Dismiss Defendant/Third-Party Plaintiff WalMart's Third-Party Complaint is ripe for disposition.*fn2

II. Allegations of Complaints.

In their Amended Complaint, Plaintiffs allege that on July 1, 2008, they were business invitees at the Wal-Mart Store located at 2150 Wilkes-Barre Township Marketplace, Wilkes-Barre, Luzerne County, Pennsylvania, and that Plaintiff Gillis strapped and locked her portable car seat, in which the infant Plaintiff J.S. was sitting, onto the top of a Wal-Mart shopping cart. Plaintiffs allege that the shopping cart then suddenly collapsed which caused the infant Plaintiff J.S. to fall into the cart and suffer serious and permanent injuries. (Doc. 5, pp. 2-3). Plaintiffs allege that Defendant Wal-Mart, individually and through its employees, "failed to have adequate warnings on its shopping carts to not place a child's car-seat in the position the Plaintiff 's mother and other mothers shopping with their infant children did and do on a regular basis." (Id., p. 3, ¶ 9).

Both Plaintiffs assert two Counts in their Amended Complaint against Defendant Wal-Mart. In Count I, Plaintiffs allege that Defendant Wal-Mart was negligent as follows:

a. In then and there failing to warn mothers that placing an infant's car seat in the shopping cart in a certain manner can be hazardous to the infant;

b. In then and there allowing shopping carts to exist in the Defendant's parking lot when the Defendant knew or should have known said shopping carts presented a hazardous and dangerous condition to infants being placed in said shopping carts;

c. In then and there failing to inspect shopping carts that may have been in a defective condition;

d. In then and there failing to implement a system of routine maintenance on all shopping carts that may have been in a defective condition so as to protect business invitees from a hazardous condition;

e. In then and there having shopping carts available to business invitees, with infants, when the Defendant knew or should have known that the shopping carts had no labels or warnings against activities like those performed by Ms. Gills and other mothers routinely shopping at WAL-MART; and

f. In then and there allowing defective shopping carts to be available to mothers shopping with infants, when the Defendant knew or should have known that the shopping cart in question was defective.

In Count II, Plaintiffs allege that the injuries sustained by minor Plaintiff J.S. due to the negligent acts of Defendant Wal-Mart have caused Plaintiff Gillis to incur medical bills from several facilities, and that Plaintiff Gillis has been informed that minor Plaintiff J.S. will continue to undergo medical treatment for the injuries and that additional medical bills will be incurred. Thus, Plaintiffs raised a claim for the past and future medical bills which minor Plaintiff J.S. has and will incur as a result of his alleged injuries. (Id., pp. 6-7).

As stated, Defendant/Third-Party Plaintiff Wal-Mart filed its Third-Party Complaint against Third-Party Defendant Unarco on November 2, 2011. (Doc. 26). Wal-Mart contends that Unarco was the supplier of the shopping cart at issue and, that it had a Wal-Mart Realty Supplier Agreement, dated January 22, 2008, with Unarco which contained indemnification provisions. (Doc. 26, Ex. C). Wal-Mart avers that the Realty Supplier Agreement contained the following Indemnification provision: 16) INDEMNIFICATION:

Supplier [Unarco] agrees to and shall defend, indemnify and hold harmless Purchaser [Wal-Mart] and all related or affiliated companies, and all affiliates, officers, directors, shareholders, associates, employees, servants and agents of Purchaser, from and against all Damages, whether such matters are groundless, fraudulent or false, which arise out of or relate to this Agreement for the negligent act or omission, willful misconduct, other fault of any nature of Supplier, its employees, agents, servants or subcontractors. (Doc. 26, p. 3, ¶ 9 and Ex. C, pp. 9-10).

Wal-Mart avers that the Realty Supplier Agreement defined the term "Damages" as follows:

(d) "Damages" shall mean shall mean [sic] lawsuits, claims, actions, suits, injuries, damages, losses, fines, penalties, sanctions, deficiencies, judgments, awards, costs, expenses (including reasonable fees, disbursements, and costs of attorneys, accountants, experts and investigators), settlement payments, liabilities, liens, remediation expenses, loss of goodwill, lost profits, corrective action costs, and other obligations, including, without limitation, property damages and bodily injury or personal injuries, illnesses and deaths (whether or not such injury is physically manifest, or emotional in nature without any attendant physical manifestation of such injury), and in each case regardless of whether such matters are groundless, fraudulent or false. (Doc. 26, p. 3, ¶ 10 and Ex. C, pp. 2-3).

Thus, in Count I of its Third-Party Complaint, Wal-Mart asserts a claim for contractual contribution and indemnification against Unarco. Wal-Mart concludes its averments in Count I by claiming that if Plaintiff minor J.S. sustained the injuries which Plaintiffs allege and Plaintiffs sustained the damages they allege, "then said injuries and damages were caused by the actions, omissions, negligence, and carelessness and other liability-producing conduct of Unarco and were caused in no manner whatsoever by Wal-Mart." (Id., p. 4, ¶ 11). Wal-Mart also avers that "Unarco alone is liable to Plaintiff[s] and/or jointly and severally liable to Wal-Mart and/or liable over to Wal-Mart by way of contractual contribution and/or indemnification." (Id.).

In Count II of its Third-Party Complaint, Wal-Mart asserts a claim for common law contractual contribution and indemnification against Unarco. Wal-Mart avers that if Plaintiff minor J.S. sustained the injuries which Plaintiffs allege and Plaintiffs sustained the damages they allege, "then said injuries and damages were caused by the actions, omissions, negligence, and carelessness and other liability-producing conduct of Unarco and were caused in no manner whatsoever by Wal-Mart." (Id., p. 4, ¶ 11). Wal-Mart also avers that "Unarco alone is liable to Plaintiff[s] and/or jointly and severally liable to Wal-Mart and/of liable over to Wal-Mart by way of common law contribution and/or indemnification." (Id., ¶ 13, p. 5).

III. Motion to Dismiss Standard.

In Reisinger v. Luzerne County,712 F.Supp. 2d 332, 343-344 (M.D. Pa. 2010), the Court stated:

The Third Circuit Court of Appeals recently set out the appropriate standard applicable to a motion to dismiss in light of the United States Supreme Court's decisions Bell Atlantic Corp. v. Twombly, 550 U.S. 433 (2007), and Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937 (2009). "[T]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true to 'state a claim that relief is plausible on its face.' " Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 570). The Court emphasized that "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 1950. Moreover, it continued, "[d]etermining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. (citation omitted). McTernan v. City of York, 577 F.3d 521, 530 (3d Cir.2009). The Circuit Court discussed the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.