WEST VIRGINIA RECORD

MARTINSBURG – A lawsuit alleging a Long John Silver’s employee suffered burns when he was told to melt ice in a walk-in freezer with hot water has been removed to federal court.

Little Giant Enterprises, the operator of the Long John Silver’s in Charles Town, removed Joshua Shepherd’s lawsuit against it to U.S. District Court for the Northern District on July 8. Records show Shepherd is seeking more than $1 million.

On July 15, the defendants filed their answer to the complaint and a motion to dismiss the individual defendants, while the plaintiff has moved to remand the case back to Jefferson County Circuit Court.

Shepherd sued Hollis, Sidney, Gregory and Cheryl Wormsby, the four individual members of Little Giant.

“The single-count complaint alleges that unidentified ‘supervisors at the store’ ordered the plaintiff to melt ice with hot water in a walk-in freezer, and in doing so, the plaintiff burned himself,” the motion to dismiss the Wormsbys says.

“There are no allegations that any of the individual defendants acted in any wrongful manner.”

The complaint, filed June 3, says the corporate charter of Little Giant Enterprises has been revoked, and as a result, the “corporate veil should be pierced” and the Wormsbys should be held individually responsible for the acts occurring at the restaurant.

The Wormsbys say they were chartered in Alabama, and the West Virginia Secretary of State cannot revoke it.

The complaint says in early June 2011, a water leak had developed in the walk-in freezer and was causing ice to form on the floor. Instead of repairing the leak, supervisors had employees fill large pots with hot water to pour on the ice that had formed, the complaint says.

The water being used was taken from the Rethermalizer, which kept water at a heat of approximately 197 degrees, Shepherd says.

On June 11, he was told to pour the water on the ice, he says.

“The icy floor made Plaintiff Joshua Shepherd slip and fall while holding the large pot of scalding water,” the complaint says.

“As a result, the scalding water poured over Plaintiff Joshua Shepherd’s stomach and legs, causing first-, second- and third-degree burns on 12% of his body.”

Shepherd says he suffered from blisters, open wounds and inflamed skin in the aftermath. He adds that the pain was excruciating despite medication.

The burns affected all of his activities of daily living, including sleep, caring for his child, showering, using the restroom and getting dressed, he says.

“The leaking freezer, icy floor, absence of mats or other slip-preventing materials, and directive to use scalding water to melt the ice created a specific unsafe working condition… which presented a high degree of risk and a strong probability of serious injury or death,” the complaint says.

In the removal notice, the defendants argue the $75,000 threshold for federal jurisdiction was met by a pre-suit settlement demand of more than $1 million. Also, it says the four Wormsbys are citizens of Alabama, New York and Georgia.

The plaintiff says complete diversity doesn’t exist because Cheryl Wormsby’s address, as reported to the Secretary of State’s Office, is shown in Martinsburg.

Shepherd is represented by Peter A. Pentony of the Law Office of F. Samuel Byrer in Charles Town. The defendants are represented by Brian M. Peterson and Tracey A. Rohrbaugh of Bowles Rice in Martinsburg.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.