A Carluzzo Rochkind & Smith note: Following is an excellent article by Virginia Lawyers Weekly. We did not handle this case, but it brings up important points your personal injury lawyers should be familiar with. For more than 30 years our personal injury lawyers in Manassas have helped clients with such matters in Prince William County, Fairfax County, Woodbridge, and throughout Northern Virginia. If you have any questions or would like to schedule an appointment, please contact our law firm at (703) 361-0776.
Negligence: Shopper alleges he was electrocuted by elevator
By Virginia Lawyers Weekly – 9/16/2024
Where a man alleged he was electrocuted by an elevator while shopping at a store, that was sufficient to state a claim for negligence based on the doctrine of res ipsa.
Background
Bryan Hehl took his mother Christmas shopping at the Belk department store in Danville, Virginia, on Nov. 17, 2023. Hehl claims that when they got into the store’s elevator, his arm came in contact with the elevator door and he was electrocuted.
Belk Inc. now argues that, as a matter of law, Hehl has not made out a case for negligence or negligence per se because he has not identified exactly how the elevator door became electrified, what Belk could or should have done to prevent it or what laws Belk violated.
Negligence
Belk argues primarily that, without an explanation as to how the elevator door became electrified, Hehl has failed to state a claim for negligence. Belk’s argument places the cart before the horse.
While Hehl’s allegations do not establish that Belk failed to perform some upkeep that it had a duty to complete, his complaint need not contain that level of specificity. Hehl’s allegations that he was electrocuted by Belk’s elevator while shopping at its store are sufficient, at this early stage, to state a claim for negligence against Belk based on the doctrine of res ipsa. Obviously, in discovery, Hehl will have to put meat on the bones, but the court will not dismiss an entirely plausible claim before he has had the opportunity to prove it.
Negligence per se
Belk argues that, because Hehl has not identified any statute or regulation that was allegedly violated, he has failed to state a claim for negligence per se. Hehl counters, quite logically, that he can’t know what statute or regulation — if any — was violated until he has a chance to inspect the elevator and determine the cause of the malfunction (if any). And he can’t do that prior to discovery because the elevator in question is under Belk’s exclusive control.
While Belk’s allegation is close to an “unadorned, the-defendant-unlawfully- harmed-me accusation” that would be insufficient to state a claim, the court finds that Hehl’s claim falls just over the line into permissible pleading and provides Belk “fair notice” of what the claim is (negligence per se) and the ground upon which it rests (Belk’s elevator electrocuting Hehl because it did not comply with relevant laws and regulations).
Utmost care
On Count Three, Belk argues that there is no standalone claim for “breach of duty of utmost care;” rather, “utmost care” is merely the standard of care applicable to common carriers. Belk is correct (and Hehl does not seriously dispute the argument. Because Count Three is therefore duplicative of Count One, Belk’s motion will be granted as to Count Three.
Doe defendants
Finally, Belk argues that Hehl fails to allege sufficient facts against the John Doe defendants and that, in any event, Virginia law does not permit “John-Doe” pleadings except in uninsured motorist cases. Hehl argues that he can plead against John Does “when the identity of the alleged defendant is not known at the time the complaint is filed and the plaintiff is likely to be able to identify the defendant after further discovery.”
Hehl has the better argument. It is clear that the John Doe defendants are placeholders for the elevator maintenance vendor and the facilities management vendor — whose identities are known to Belk but not to Hehl — and for similar reasons as discussed above for Counts One and Two, the court finds Hehl pleaded sufficient facts to state negligence and negligence per se claims against them.
Additionally, the Federal Rules of Civil Procedure apply to Hehl’s complaint, not Virginia’s pleading standards. As such, the court will deny the motion to dismiss those entities at this time, but the John Doe defendants should be substituted with the correct parties as soon as their identities become known.
Belk’s motion to dismiss granted in part, denied in part.
Hehl v. Belk Inc., Case No. 4:24-cv-00023, Aug. 22, 2204. WDVA at Danville (Cullen). VLW 024-3-446. 9 pp.
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