United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. GRIMM, UNITED STATES DISTRICT JUDGE
Amended Complaint alleges that Dollar Tree Stores, Inc.
("Dollar Tree") "has policies of loading their
carts very high to the top for storage," and its
"employees are instructed to load the carts high and
move them for storage." Am. Compl. ¶ 7, ECF No.
Such practices have led to injuries and, as a result, Dollar
Tree (albeit at different stores than the one where the
incident giving rise to this lawsuit occurred) has incurred
numerous citations. Id.
¶¶ 18-25. In
keeping with this practice, on May 19, 2016, a Dollar Tree
employee was pushing a cart piled so high with boxes that he
could not see in front of him. Id. 6.
"[S]uddenly and without warning," the
employee's cart struck Plaintiff Delcene Woodberry in the
back, making her fall and severely injuring her. Id.
¶¶ 4-5. The employee then
"ran away." Id. 6. Woodbury has sued
Dollar Tree for negligence and gross negligence while also
seeking punitive damages. Dollar Tree has filed a partial
motion to dismiss the gross negligence claim and the claim
for punitive damages. ECF No. 17. Because
Woodberry has stated a claim for gross negligence but not
punitive damages, I will deny the motion as to the gross
negligence claim but grant it with regard to punitive
to Rule 12(b)(6), a complaint is subject to dismissal if it
"fail(s) to state a claim upon which relief can be
granted." Fed.R.Civ.P. 12(b)(6). Thus, a complaint must
contain "a short and plain statement of the claim
showing that the pleader is entitled to relief,"
Fed.R.Civ.P. 8(a)(2), and must state "a plausible claim
for relief," Ashcroft v. Iqbal, 556 U.S. 662,
678-79 (2009). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Iqbal, 556 U.S. at
678. Rule 12(b)(6)'s purpose "is to test the
sufficiency of a complaint and not to resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses." Velencia v.
Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md.
Dec. 13, 2012) (quoting Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)).
negligence is "something more than simple
negligence, and likely more akin to reckless conduct."
Barbre v. Pope, 935 A.2d 699, 717 (Md. 2007)
(quoting Taylor v. Harford Cty. Dep't of
Soc. Servs., 862 A.2d 1026, 1035 (Md. 2004) (emphasis in
original)). It is
an intentional failure to perform a manifest duty in reckless
disregard of the consequences as affecting the life or
property of another, and also implies a thoughtless disregard
of the consequences without the exertion of any effort to
avoid them. Stated conversely, a wrongdoer is guilty of gross
negligence or acts wantonly and willfully only when he
inflicts injury intentionally or is so utterly indifferent to
the rights of others that he acts as if such rights did not
Id. (quoting Liscombe v. Potomac Edison
Co., 495 A.2d 838, 846 (Md. 1985)). "Ordinarily,
unless the facts are so clear as to permit a conclusion as a
matter of law, it is for the trier of fact to determine
whether a defendant's negligent conduct amounts to gross
negligence." Rodriguez v. State, 98 A.3d 376,
391 (Md. Ct. Spec. App. 2014). Thus, whether or not gross
negligence exists '"is usually a question for the
jury and is a question of law only when reasonable men could
not differ as to the rational conclusion to be
reached.'" Id. (quoting Romanesk v.
Rose, 248 Md. 420, 423 (1968)). "Under the doctrine
of respondeat superior, an employer is jointly and severally
liable for the torts committed by an employee acting within
the scope of employment." See e.g. Oaks v.
Connors, 660 A.2d 423, 426 (1995); see also Smith v.
Gray Concrete Pipe Co., Inc., 297 A.2d 721, 733-34 (Md.
1972) (finding that because the employee was not grossly
negligent the employer could not be liable on the basis of
agency). In addition to this potential
liability on the basis of agency, an employer can be held to
have acted in a grossly negligent manner when their conduct
"reflects a premeditated decision, deliberately arrived
at, by an indifferent employer in possession of facts which
should have indicated almost certain harm to others."
Smith v. Gray Concrete Pipe Co., Inc., 297 A.2d 721,
734 (Md. 1972).
the facts as Ms. Woodberry alleges them, as I must do at this
point in the litigation, see Aziz at 391, an
employee of Dollar Tree ran into her with a cart stacked so
high with boxes that he could not see her in front of the
cart and then proceeded to run away when she fell.
Additionally, other Dollar Tree stores have been fined for
"willful violations" creating "safety
problems," such as "(m]any boxes . .
. stacked precariously and so high they
easily could have fallen on employees or customers,"
which "a state "agency reported that customers
complained." Am. Compl. ¶¶ 23. Another
location was fined "for safety violations ... for
blocking fire exits and other safety violations with the
carts"; there, "[t]he store would pile boxes,
weighing up to 45 pounds to be haphazardly stacked in the
storage room on carts exposing workers to crushing
injuries." Id., 19. Thus, "Dollar [Tree]
has known that pushing and storing its products on carts in
the aisles is very dangerous and unsafe to its customers, and
that the company had done nothing to correct the
violations," and this collision was the result of these
unsafe practices encouraged by Dollar Tree. Id., 25.
A reasonable person could find that, for the employee to push
a cart when he could not see in front of him, and for Dollar
Tree to encourage this practice when it has been placed on
notice of its dangers at other stores is "something
more than simple negligence." Barbre,
935 A.2d at 717. It would be reasonable to find that it shows
"a thoughtless disregard of the consequences without the
exertion of any effort to avoid them." Id.
Therefore, the facts as alleged by Ms. Woodberry are
sufficient to survive Dollar Tree's motion to dismiss. If
the jury finds that the evidence supports these allegations
and that Dollar Tree was negligent, the jury then can
determine if such negligence rose to the level of gross
negligence. Because "reasonable men could . .
. differ as to the rational conclusion to be
reached," it is not for the Court to decide now if the
conduct described does or does not arise to the level of
gross negligence. See Rodriguez at 599.
courts have held that "with respect to both intentional
and non-intensional torts, ... an award of punitive damages
must be based upon actual malice, in the sense of conscious
and deliberate wrongdoing, evil or wrongful motive, intent to
injure, ill will or fraud." Scott v. Jenkins,
690 A.2d 1006 (Md. 1997). Furthermore, these courts have
imposed a strict pleading requirement in punitive damages
cases. See Id. "No bald or conclusory
allegations of 'wanton or reckless disregard for human
life' or language of similar import, shall withstand
attack on grounds of insufficiency." Id.
(quoting Smith v. Gray Concrete Pipe Co., Inc., 297
A.2d 721 at 732 (Md. 1972)) (internal quotation marks
Woodberry's original complaint did not cite to any
examples of actual malice in the actions of the employee or
Dollar Tree. Compl., ECF NO.2. After Dollar Tree identified
the deficiencies in its pre-motion conference request, ECF
No. 11, Ms. Woodberry submitted the Amended Complaint to
rectify. In her view, the fact that the employee ran away
shows malice. See Pl's Opp'n 7. But, he ran away
after the collision; that act cannot support a
finding that he deliberately struck Woodberry. Moreover, as
Dollar Tree argues, "Plaintiff asserts that the Dollar
Tree employee piled his cart so high such that he could
not see Plaintiff and, as a result, ran his cart
into her back. If, as Plaintiff alleges, the employee could
not see her, then it would have been impossible for his
actions to have been completed with actual malice."
Def's Mem. 6.
with the benefit of Dollar Tree's identification of her
pleading deficiencies and the opportunity to amend, Woodberry
still does not allege what made the conduct amount to actual
malice, only that "Dollar Tree, through its employees,
acted with actual malice." Am. Compl. ¶26. This is
insufficient to meet the pleading requirements for punitive
damages and is a clear example of a "bald or conclusory
allegation." See Scott at 1006; Smith
at 732. Ms. Woodberry also alleges that the "employee
knew that he could not see in front of his cart. He did not
care ... for the safety of the plaintiff and the public. The
employee's actions of moving the highly piled cart in his
condition was done intentionally and with recklessness and
malice...." Am. Compl. ¶18. The conduct described
here, intentionally moving a cart piled with boxes, does not
support a finding of an evil or wrongful motive, especially
in light of Woodberry's allegation that the employee
moved the overloaded cart because that is what his employer
told him to do (not because he was motivated by malice or
wrongful motive). Therefore, her claim for punitive damages
must be ...