West Virginia Record

CHARLESTON – Wal-Mart has requested a federal court dismiss a case brought against it by a Roane County woman who alleged she was seriously injured after a bag of powdered pool chemicals released toxins into the air.

Karen Piasecki was working as a sales associate in the Roane County Wal-Mart on July 3, 2006, and was in the process of checking out a customer who was purchasing the bag of pool chemicals when the chemicals were released into the air, according to a complaint Piasecki filed July 2 in Roane Circuit Court.

Because of the chemicals being released into the air, Piasecki claims her lungs, eyes and skin were exposed to them, which caused her severe and permanent injury, the suit states.

Piasecki claims Wal-Mart violated West Virginia law because an unsafe working condition existed in its store, because it had a subjective realization and appreciation of the existence of the unsafe working condition and of its high risk of serious injury or death and because the unsafe working condition was a violation of state or federal safety statutes.

She also claims the store violated West Virginia code because it exposed Piasecki to the unsafe working conditions and because she was seriously injured as a result of her exposure to the unsafe working conditions, according to the complaint.

Wal-Mart was also negligent because it failed to provide safe premises and working environment, the suit states.

However, Wal-Mart asked the complaint be removed to federal court because the amount in controversy exceeds $75,000 and because the parties are of two different states.

In a separate federal filing, Wal-Mart made a motion to dismiss or a motion for more definite statement of Wal-Mart Stores.

The store claims the complaint should be dismissed for four reasons.

First, it claims Piasecki made no facts supporting any claim against Wal-Mart in her original complaint.

"In this case, Plaintiff seeks to pierce the immunity afforded employers by West Virginia Code 23-2-6," the motion states. "'In civil action where immunities are implicated, the trial court must insist on heightened pleading by the plaintiff.' Plaintiff's complaint certainly does not meet the requirements of heightened pleading."

In its second reason, Wal-Mart alleges the suit should be dismissed because West Virginia code granted employers immunity from employee claims of negligence.

"West Virginia law and the legislature's intent are clear that an employer is immune from liability in suits filed outside the workers' compensation scheme by its employees, except as expressly provided in the workers' compensation statute," the motion states.

Third, Piasecki's complaint does not clearly set forth a cause of action.

"Plaintiff must allege and prove a 'conscious, subjectively and deliberately formed intention' to injure Ms. Piasecki," the motion states.

However, nothing in Piasecki's complaint points toward the fact that Wal-Mart intended to injure its employee, the store claims.

Finally, Wal-Mart alleges Piasecki failed to identify the specific unsafe working condition she claims existed and failed to allege which statute, rule, regulation or standard the unsafe working condition violated.

"Plaintiff's vague statement that Wal-Mart 'exposed the plaintiff to its unsafe work practices' is insufficient to satisfy the required specific unsafe working condition element of a deliberate intent cause of action against Wal-Mart," the motion states.

If the federal court does not dismiss the case, Wal-Mart claims it should require Piasecki to submit a more definite statement of her allegations against the store.

With Piasecki's current allegations, Wal-Mart alleges it cannot form a responsive pleading because there is no specific unsafe working condition mentioned in the suit.

"Plaintiff's generic statement of an unsafe working condition and violations of unidentified safety statutes, rules, regulations or standards is so vague and ambiguous that Wal-Mart cannot possibly know what defenses it may have to the alleged existence of an unknown unsafe working condition," the motion states.

In the July 2 two-count suit, Piasecki is seeking an amount that will fully and adequately compensate her for her injuries, plus punitive damages, costs, attorney's fees and interest.

Piasecki is represented by Kevin C. Harris and Eric J. Holmes of Ripley.

Wal-Mart is represented by Ronda L. Harvey and Thomas M. Hancock of Bowles Rice McDavid Graff and Love in Charleston.

United States District Court case number: 2:08-cv-1302