Wednesday, September 16, 2009

W.D. Va. Applies Twombly to Dismiss Complaint in Slip-and-Fall Case

Per Branham v. Dolgencorp., Inc., CIVIL NO. 6:09-CV-00037 (August 2009):

The Defendant argues that the Plaintiff has failed to allege sufficient facts to allow the Court to draw the reasonable inference that the Defendant is liable in this case. For example, the Defendant argues that the Complaint lacks any allegation of how the Plaintiff slipped and fell, any allegation of the nature of the liquid on the floor of the store, any allegation that the liquid caused the Plaintiff’s fall, and any specific allegations regarding the injuries she suffered as a result of the fall. Therefore, the Defendant argues, the Complaint fails to include factual allegations relating to various elements of the Plaintiff’s claim of negligence.

. . .

In this case, the Plaintiff has failed to allege any facts that show how the liquid came to be on the floor, whether the Defendant knew or should have known of the presence of the liquid, or how the Plaintiff’s accident occurred. Without such allegations, the Plaintiff cannot show that she has a “right to relief above the speculative level.” Twombly, 550 U.S. at 555. While consistent with the possibility of the Defendant’s liability, the Plaintiff’s conclusory allegations
that the Defendant was negligent because there was liquid on the flood, but that the Defendant failed to remove the liquid or warn her of its presence are insufficient to state a plausible claim for relief. See id. at 570.


At 11:15 PM, Anonymous Anonymous said...

Holy Crow! Twombly will eventually be used to rewrite the tort doctrine of res ipsa loquitur.


Post a Comment

<< Home