Kroger Green Bean Slip & Fall Case Demonstrates Considerations for whether Personal Injury Cases Remain in Federal or State Court

Many times in personal injury lawsuits involving corporate defendants, an issue will arise as to whether the claim properly belongs in federal or state court. Defendants who maintain offices within different states than where the accident occurred may prefer federal court for many reasons. However, removing a lawsuit to federal court can only occur in one of two scenarios.

The first is when there is a federal issue involved. This means that the underlying cause of action arises out of some federal law or right that has been violated, such as a constitutional right, or in personal injury cases, those claims arising out of the Federal Tort Claims Act, for example.

The second scenario arises when the underlying issue arises out of what would otherwise be considered a state law matter, but the amount in controversy exceeds $75,000 and there is diversity of citizenship– meaning that the plaintiffs and defendants are residents of different states. For purposes of these types of cases, there must be complete diversity, which occurs only “when no party shares common citizenship with any party on the other side.”

In one recent Virginia case, Hall v. Walters, Dist. Ct., ED Va. (2013), there was a disagreement as to whether a premises liability lawsuit was proper in federal court. In the case, Kroger removed the lawsuit to federal court, but then the plaintiffs amended their complaint to include a manager of the store as a defendant. This was noteworthy because the manager was a resident of the same state as the plaintiffs, which had the effect of defeating the complete diversity necessary to keep the case in federal court. Therefore, the manager argued that he had been fraudulently joined solely to achieve this purpose. On this and other bases, the defendant manager filed a motion to dismiss. The subject matter of the decision, then, was regarding the proper venue for the case, and whether to grant the motion to dismiss.

The plaintiff in the case claimed that on the day in question, she slipped and fell on a green bean that was on the floor of a Kroger Supermarket, which caused her to become severely and permanently injured.

In her complaint, she alleged that the manager of the store was working in the green bean area, and that he personally negligently “caused and/or allowed a green bean to be on the floor,” at some point prior to her fall. Plaintiff further alleged that the manager failed to warn her of the potential danger presented by the green bean’s presence on the floor. She also alleged negligence and failure to warn on behalf of Kroger and its employees, agents, and servants. She claimed $250,000 in damages, which included amounts for pain and suffering, injuries, past and future medical expenses, and loss of income and earnings.

The manager argued that he was fraudulently joined to the action as a defendant and that there was insufficient proof that he was involved in the incident, or that the plaintiffs would have an action against him as an employee in a state court action since he did not commit an affirmative act, which he claims was the relevant standard in this type of case.

However, the plaintiff cited the manager’s acknowledgement that he occasionally works with green beans and other produce, and further that plaintiff reported the incident to him initially because according to plaintiff he “had just been working with the green beans.” Therefore, the court held, it was plausible that the plaintiff could allege a successful claim against the defendant personally.

The plaintiff’s allegations regarding him causing a green bean to be on the floor is interpreted by the court as an act of misfeasance, rather than nonfeasance– the latter of which would be a failure to warn, or similar claim, for which the defendant manager arguably would not be liable under state law. This is because of the nature of him being an employee of the store, rather than an independent third party. If the sole act was his negligence as an agent of the store, then he would not be liable as an independent person, and therefore only the store would be liable, on his behalf, which would preserve the complete diversity of jurisdiction necessary to keep the lawsuit in federal court.

Specifically, the court found that:

Both state and federal courts have found that, under Virginia law, a plaintiff who alleges only an employee’s failure to detect, remove, or warn of a danger has failed to state a claim of misfeasance for which the employee may be personally liable.

In this case, however, the plaintiff did not only allege that the defendant failed to warn her of the green bean’s presence, but also that he personally caused the green bean to be on the floor while he was there working, therefore causing her injury.

Therefore, because the defendant failed to prove that he was fraudulently joined to the lawsuit, the court granted the plaintiff’s motion to remand the case to state court, and denied the defendant’s motion to dismiss as being moot.

The premises liability attorneys at Lebowitz & Mzhen represent the rights of people in the Washington, DC area who were injured due to hazardous or dangerous conditions on others’ property. For a free and confidential consultation, contact us today online, or call (800) 654-1949.

More Blog Posts:

Maryland High Court Sides Against Parents, Upholds Liability Waiver, in Case involving 5 Year Old Seriously Injured in Store’s Play Area, Washington DC Injury Lawyer Blog, published December 3, 2013
D.C. Court Dismisses Consumer Product Lawsuit for Lack of Standing, Washington DC Injury Lawyer Blog, published November 27, 2013

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