Perhaps adhering to the motto "If at first you don't succeed, try again" plaintiff's attorney Gilbert Adams has filed a second suit against Wal-Mart after a federal judge refused to transfer the first case back to Jefferson County.
In April, the Record reported on a suit filed by Mary Bourne, a local woman who alleged Wal-Mart and one of its assistant managers had a duty to warn her not to step into an unattended shopping basket left on the ground.
The case was transferred to federal court, where Adams fruitlessly fought to have the case remanded.
When the court didn't see things his way, Adams filed a second suit, nearly identical to the first suit against Wal-Mart on Oct. 17 – seven days after the federal court denied his motion to remand.
Adams' first suit faulted Wal-Mart Stores Inc., an out-of-state defendant, and local assistant manger Renee Berryhill. This time the single defendant is Wal-Mart Stores of Texas.
The first suit against the mega-retailer and Berryhill was filed May 29 in the Jefferson County District Court.
In response, the defendants' attorney, Karen Spivey of the Pate & Spivey law firm, successfully had the case removed to federal court July 2.
On July 14 Adams filed a motion to remand, citing that Berryhill is a citizen of the forum state and his client was suing for less than $75,000.
Three months later, on Oct. 10, federal Judge Marcia Crone made her ruling and denied Adams' motion, stating that diversity of citizenship of the parties existed and the amount in question exceeded $75,000.
Wasting no time, Adams filed a second suit on Bourne's behalf on Oct. 17 in Jefferson County – changing the defendants from Wal-Mart Inc. to Wal-Mart Stores of Texas.
Adams also filed a motion to dismiss his first suit on Oct. 20 in federal court, claiming he had sued the wrong corporate defendant.
However, Judge Crone has not made a ruling on the motion to dismiss and the first case is currently in mediation.
While shopping at the Dowlen Road Wal-Mart with her daughter in September 2007, Bourne stepped into a "foreign substance" on the floor which caused her to fall and sustain "serious injuries."
The suit states that she stepped into a hand-held shopping basket near the checkout aisle, "a place the shopping baskets are not to be left." Bourne claims Wal-Mart negligently failed to "instruct" her on how to "avoid the unexpected hazard."
Bourne, 61 years old at the time, claims she was "exercising reasonable care for her own safety and well being," and that the incident was solely caused by the defendants' negligence.
"The hand-held shopping basket posed an unreasonable risk of harm to persons similarly situated, and Defendant actually knew or reasonably should have known of the hazard, risk and danger caused by the presence of the basket," the suit says.
The suit goes on to allege more than 20 acts of negligence allegedly committed by Wal-Mart, including failing to warn customers of the dangerous condition and remedy the hazard.
Bourne is suing for past and future medical expenses, lost earnings, mental anguish, impairment and disfigurement, plus attorneys' fees.
The first case (A181-824) was originally assigned to Judge Bob Wortham of the 58th Judicial District and given Case No. 1:08-cv-00367-MAC when transferred to federal court.
Judge Gary Sanderson of the 60th Judicial District will preside over the new case (B182-555).