Sears seeks to have slip-and-fall case dismissed

By Kelly Holleran | Feb 10, 2009

BLUEFIELD –- Sears claims the federal court should dismiss a suit against it in which a woman is seeking more than $1 million after she claims she slipped and fell in a Kmart store.

Carol F. Farmer filed suit in Mercer Circuit Court on Dec. 8, alleging she was injured after she fell while walking through a Bluefield Kmart on Dec. 17, 2006.

Because of the fall, Farmer sustained severe, permanent and painful injuries to her body and to her well-being and has incurred medical expenses in excess of $44,000, the suit states.

Her ability to enjoy life has been permanently diminished, Farmer alleges.

Sears, who Farmer alleges owns the Kmart in question, was negligent by failing to maintain its premises in a safe manner, Farmer alleges.

However, Sears claims it does not "own operate or control Kmart Retail Stores," so it says the suit should be dismissed.

Because Farmer does not state a claim upon which relief can be granted, Sears also claims the suit should be dismissed.

Sears had no control over Farmer's slip and fall, according to the answer it filed.

Because Sears is a New York corporation and Farmer is a West Virginia citizen, the suit should be removed to federal court, Sears claims in its notice of removal.

In addition, Farmer is seeking more than $75,000, another reason the suit should be removed to federal court, according to the complaint.

In addition to the $1 million, Farmer is seeking attorney's fees in her complaint.

In its answer, Sears is asking the case be dismissed, that Farmer recover no money from it and that it be awarded costs, attorney's fees and other relief the court deems just.

Robert E. Holroyd of Johnston, Holroyd and Associates in Princeton will be representing Farmer.

W. Michael Moore, Rita Massie Biser and Tonya P. Mullins of Moore and Biser in Charleston will be representing Sears.

U.S. District Court case number: 1:09-0050

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