Opinion
01 C 50357
February 26, 2003
MEMORANDUM OPINION AND ORDER
Plaintiff, Carla S. Brewer, filed this action against defendant, Wal-Mart Stores, Inc. Her third amended complaint contains three counts: negligence (Count I), res ipsa loquitur (Count II) and wilful and wanton conduct (Count III). The court has diversity jurisdiction pursuant to 28 U.S.C. § 1332 (a)(1) as the amount in controversy exceeds $75,000 and plaintiff is a citizen of Illinois and defendant is a citizen of Delaware (its place of incorporation) and Arkansas (its principal place of business). Defendant moves to dismiss Count III under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted.
The court will not consider the evidentiary material submitted in opposition to the motion to dismiss. See Loeb Industries, Inc. v. Sumitomo Corp., 306 F.3d 469, 479 (7th Cir. 2002) (considering material outside the pleadings requires treating the motion as one for summary judgment).
A 12(b)(6) motion is granted only when, taking all well-pleaded factual allegations in the complaint as true and drawing all reasonable inferences in favor of plaintiff, no set of facts could be proved entitling plaintiff to relief. See American United Logistics. Inc. v. Catellus Development Corp., No. 01-1711, 2003 WL 291890, * 3 (7th Cir. Feb. 12, 2003). Under Illinois law, which the parties agree applies, an "individual acts wilfully or wantonly if he or she displays a reckless disregard for the safety of others after knowledge of impending danger."Reid v. Norfolk W. Ry. Co., 157 F.3d 1106, 1111 n. 5 (7th Cir. 1998) (applying Illinois law). Federal pleading requirements must "simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) quoting, Conley v. Gibson, 355 US. 41, 47 (1957). "Malice, intent, knowledge, and other conditions of mind of a person may be averred generally." Fed.R.Civ.P. 9(b).
Plaintiff has alleged defendant knew of the impending danger of injury from the way it stacked its merchandise, that it recklessly disregarded the safety of plaintiff and others despite this knowledge, and that plaintiff was injured because of defendant's actions. Plaintiff has given defendant sufficient notice of the claim against it and the grounds on which the claim is based. See Swierkiewicz, 534 U.S. at 512. Plaintiff could prove a set of facts entitling her to relief. If defendant believes this claim lacks merit, summary judgment is the means to address unmeritorious claims. Id. at 514.
Defendant's motion to dismiss Count III is denied.