Ingram v. Walgreen Co., No. 2:2010cv01813 - Document 27 (D. Nev. 2011)
Court Description: ORDER Granting in part and Denying in part 10 Motion to Dismiss. Granted with respect to Plaintiff's second cause of action for negligence per se and Denied with respect to Plaintiff's third cause of action under the doctrine of res ipsa loquitur. Signed by Judge Edward C. Reed, Jr on 5/3/2011. (Copies have been distributed pursuant to the NEF - SLR)
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Ingram v. Walgreen Co. Doc. 27 1 2 3 4 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 5 6 7 ANGELA INGRAM 8 Plaintiff, 9 vs. 10 WALGREEN CO., DOES 1 through 10 11 inclusive; ROE CORPORATIONS 11 through 20, inclusive, 12 13 Defendant. 14 ) ) ) ) ) ) ) ) ) ) ) ) ) ) 2:10-cv-01813-ECR-RJJ Order 15 Plaintiff claims medical expenses in excess of $300,000 from a 16 trip and fall injury due to the alleged wrongful acts of Walgreen 17 Co. (“Walgreen”). 18 19 I. Factual Background 20 Plaintiff alleges that, on information and belief, Walgreen 21 owns, occupies, operates, controls, maintains and/or manages the 22 real property located at 2451 Hampton Road, Henderson, Nevada 89052 23 on which Walgreens store number 7032 is located (the “Premises”). 24 (Compl. ¶ 8 (#1 Ex. A).) On or about September 19, 2008, Plaintiff 25 was on the Premises and tripped and fell over a bin that was left in 26 an aisle while she was examining items on the shelf. (Id. ¶ 9.) 27 28 Dockets.Justia.com 1 Plaintiff alleges three causes of action: (i) negligence; (ii) 2 negligence per se; and (iii) res ipsa loquitur. 3 4 II. Procedural Background 5 On August 11, 2010, Plaintiff filed a complaint (Notice of 6 Removal Ex. A (#1).) in Nevada state court. Walgreen filed a motion 7 (#1) to remove to Federal District Court on October 19, 2010 on the 8 basis of diversity jurisdiction pursuant to 28 U.S.C. § 1441(b). 9 Walgreen’s agent was served with a copy of the complaint and summons 10 on October 1, 2010. (Notice of Removal ¶ 2 (#1).) Defendant filed a 11 motion (#10) to dismiss Plaintiff’s complaint (#1) on October 25, 12 2010. Plaintiff opposed (#12) and Defendant replied (#13). The 13 motion is ripe, and we now rule on it. 14 15 16 III. Motion to Dismiss Standard Courts engage in a two-step analysis in ruling on a motion to 17 dismiss. Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009); Bell Atlantic 18 Corp. v. Twombly, 550 U.S. 544 (2007). First, courts accept only 19 non-conclusory allegations as true. Iqbal, 129 S. Ct. at 1949. 20 “Threadbare recitals of the elements of a cause of action, supported 21 by mere conclusory statements, do not suffice.” Id. (citing Twombly, 22 550 U.S. at 555). Federal Rule of Civil Procedure 8 “demands more 23 than an unadorned, the-defendant-unlawfully-harmed-me accusation.” 24 Id. Federal Rule of Civil Procedure 8 “does not unlock the doors of 25 discovery for a plaintiff armed with nothing more than conclusions.” 26 Id. at 1950. The Court must draw all reasonable inferences in favor 27 28 2 1 of the plaintiff. See Mohamed v. Jeppesen Dataplan, Inc., 579 F.3d 2 943, 949 (9th Cir. 2009). 3 After accepting as true all non-conclusory allegations and 4 drawing all reasonable inferences in favor of the plaintiff, the 5 Court must then determine whether the complaint “states a plausible 6 claim for relief.” Iqbal, 129 S. Ct. at 1949. (citing Twombly, 550 7 U.S. at 555). “A claim has facial plausibility when the plaintiff 8 pleads factual content that allows the court to draw the reasonable 9 inference that the defendant is liable for the misconduct alleged.” 10 Id. at 1949 (citing Twombly, 550 U.S. at 556). This plausibility 11 standard “is not akin to a ‘probability requirement,’ but it asks 12 for more than a sheer possibility that a defendant has acted 13 unlawfully.” Id. A complaint that “pleads facts that are ‘merely 14 consistent with’ a defendant’s liability...’stops short of the line 15 between possibility and plausibility of ‘entitlement to relief.’” 16 Id. (citing Twombly, 550 U.S. at 557). 17 18 19 IV. Defendant’s Motion to Dismiss (#10) Defendant moves the Court for an order dismissing or striking 20 paragraphs 21 through 34 of the complaint (#1). Defendant claims 21 that Plaintiff’s second cause of action for negligence per se and 22 Plaintiff’s third cause of action for res ipsa loquitur (i) fail to 23 state a claim on which relief can be granted under Federal Rule of 24 Civil Procedure 12(b)(6); and (ii) constitute redundant, immaterial, 25 impertinent or scandalous matter under Federal Rule of Civil 26 Procedure 12(f), as Plaintiff has already pleaded a claim for 27 negligence as her first cause of action. 28 3 1 A. Plaintiff’s Second Cause of Action for Negligence Per Se 2 Defendant argues that Plaintiff failed to set forth a claim for 3 negligence per se because Plaintiff has not specified any statute on 4 which she bases her claim. Further, Defendant contends that there 5 is no statute that could possibly apply to Plaintiff’s claim. 6 7 Plaintiff claims that because no discovery has taken place, it 8 is impossible to decide whether there is an applicable statute to 9 support a claim for negligence per se. (P.’s Resp. ¶ 1 (#12).) She 10 argues that she should be given a fair opportunity to investigate 11 facts pertaining to the bin, the policies and procedures of the 12 Premises, and the identities of possible Doe/Roe defendants before 13 the Court strikes a portion of her complaint (#1). 14 This Court has ruled that to successfully state a cause of 15 action for negligence per se, a plaintiff must identify which 16 statute(s) the defendant(s) allegedly breached. Megino v. Linear 17 Fin., 2011 U.S. Dist. LEXIS 1872 at *21-22 (D. Nev. Jan. 6, 2011); 18 Velasquez v. HSBC Mortg. Servs., 2009 U.S. Dist. LEXIS 68473 at *1519 16 (D. Nev. July 24, 2009). Plaintiff’s failure to identify 20 specific statutory violations is fatal to her negligence per se 21 claim. Id. Plaintiff’s second cause of action will therefore be 22 dismissed. 23 B. Plaintiff’s Third Cause of Action for Res Ipsa Loquitur 24 Defendant contends that Plaintiff’s third cause of action for 25 res ipsa loquitur “should be stricken as redundant, immaterial and 26 impertinent” because the doctrine of res ipsa loquitur does not 27 create an independent cause of action, but is a mechanism for 28 4 1 shifting the burden of proof in the context of a negligence action. 2 (D.’s Resp. at 3 (#10-1).) Further, Defendant argues that res ipsa 3 loquitur is not available when a plaintiff knows how the injury 4 occurred. (Id.) 5 Plaintiff does not respond to Defendant’s argument with respect 6 to her third cause of action in her response (#12). 7 The doctrine of res ipsa loquitur does not create an 8 independent right of recovery, but allows a jury to draw an 9 inference of negligent conduct in the absence of evidence proving 10 the negligent act of the defendant. Ashland v. Ling-Temco-Vought, 11 Inc., 711 F.2d 1431 (9th Cir. 1983). To assert a claim under the 12 doctrine of res ipsa loquitur, a plaintiff must prove that the 13 event: (i) was of a kind that ordinarily does not occur in the 14 absence of someone’s negligence; (ii) was caused by an agency or 15 instrumentality within the exclusive control of the defendant; and 16 (iii) was not due to any voluntary action or contribution on the 17 part of the plaintiff. Id.; Woosley v. State Farm Ins. Co., 18 P.3d 18 317, 321 (Nev. 2001). 19 This Court has rejected the suggestion that res ipsa loquitur 20 may not be applied where Plaintiff also makes a specific pleading of 21 negligence. Hampton v. United States, 121 F. Supp. 303, 305 (D. Nev. 22 1954). As such, Plaintiff’s claim for liability under res ipsa 23 loquitur is not redundant, immaterial or impertinent, and Plaintiff 24 will be allowed to allege negligence under both the standard theory 25 of negligence and the doctrine of res ipsa loquitur. 26 Defendant’s contention that res ipsa loquitur cannot apply 27 where Plaintiff knows how the injury occurred likewise fails. 28 5 While 1 Plaintiff knows that her injury was caused by falling over the bin, 2 she does not know how the bin came to be placed in the aisle where 3 her injury occurred. (P.’s Resp. at 2 (#12).) As such, a negligence 4 claim under the doctrine of res ipsa loquitur is not inappropriate. 5 6 7 V. Conclusion Plaintiff’s failure to identify one or more specific statutory 8 violations by Defendant is fatal to her negligence per se claim. 9 Plaintiff’s second cause of action for negligence per se will 10 therefore be dismissed. 11 Plaintiff’s third cause of action for res ipsa loquitur will 12 not be dismissed. This Court has rejected the suggestion that res 13 ipsa loquitur does not apply where there is a specific pleading of 14 negligence. In addition, while Plaintiff knows that her injury was 15 caused by falling over the bin, she does not know how the bin came 16 to be placed in the aisle where her injury occurred. 17 Defendant’s motion (#10) to dismiss will therefore be granted 18 in part and denied in part. 19 IT IS, THEREFORE, HEREBY ORDERED that Defendant’s motion (#10) 20 to dismiss is GRANTED in part and DENIED in part: GRANTED with 21 respect to Plaintiff’s second cause of action for negligence per se 22 and DENIED with respect to Plaintiff’s third cause of action under 23 the doctrine of res ipsa loquitur. 24 DATED: May 3, 2011. 25 26 ____________________________ UNITED STATES DISTRICT JUDGE 27 28 6
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