John O'Brien Dec. 31, 2012, 10:34am
HUNTINGTON – Because the plaintiff agreed not to seek more than $35,000, a federal judge has remanded a slip-and-fall lawsuit against Target.
U.S. District Judge Robert Chambers on Dec. 27 remanded the case to Cabell County Circuit Court, where it was first filed in June. Target removed the case to federal court in November.
Shortly thereafter, attorney John Cyrus sought remand on behalf of client Jolinda Howard.
“Plaintiff Jolinda Howard stipulates and agrees that she is not seeking and will not accept any recovery in excess of the sum of $35,000,” a stipulation filed with the court on Dec. 20 says.
“By this stipulation, Plaintiff agrees not seek not to seek an amount in excess of the sum of $35,000 and hereby agrees to remit to the defendant any sum awarded in excess of that amount.”
Since the amount in question cannot exceed $75,000, the case belonged in state court, the parties agreed.
Howard, of Ashland, Ky., claims she slipped on liquid and injured her right leg while at the Barboursville Target on June 14, 2010.
Howard claims the defendant had a legal duty to keep and maintain its business premises in a reasonably safe condition for its business invitees.
In breach of its duties, the defendant negligently failed to inspect and/or maintain the floor of Target’s premises in such a manner so as to constitute a dangerous and unsafe condition for the customary use of its business invitees, according to the suit.
Howard claims the defendant failed to warn her of the dangerous conditions at its Barboursville location.
The defendant’s actions caused Howard severe and permanent injuries to her body and mind, according to the suit.
According to her remand motion, Howard was with her infant son, husband and brother-in-law when the alleged fall took place. Her husband and brother-in-law are physicians.
Howard is a cancer survivor who has a prosthetic right knee and proximal tibia. She was concerned the fall would result in permanent problems.
The doctor who performed her knee replacement, Dr. Ginger Holt of Vanderbilt University Hospital, has been unwilling to provide information about Howard’s condition, the motion says.
“Jolinda and Target’s claim representative were orally advised both prior and subsequent to the filing of the suit in the Circuit Court of Cabell County that without the cooperation and opinions of Dr. Holt, Jolinda’s claim had a relatively small value,” it says.
“Indeed, had (a claims representative) or Target’s counsel simply inquired prior to removal, plaintiff Jolinda Howard and her counsel would have readily stipulated that her claim was worth less than $35,000.”
So far, Howard’s medical bills total approximately $10,000, the motion says.