Lowe's wants injury case moved to federal court

CHARLESTON – A Fayette County man has filed suit against Lowes, alleging he was injured after he was struck by a falling 40-pound bucket of chlorinating granules.

William Earl Atkinson was shopping at the Fayetteville Lowe's on Sept. 2 when he was struck by the granules that fell from an overhead shelving unit, according to the complaint he filed Dec. 13 in Kanawha Circuit Court.

Because of the incident, Atkinson incurred medical expenses and experienced pain, suffering, physical limitations, a diminished capacity to enjoy life, annoyance, inconvenience, lost wages and a loss of future earning capacity, the suit states.

Lowe's failed to exercise reasonable care in keeping its store in a safe condition, failed to warn customers of the unsafe conditions and failed to employ protective devices to eliminate the risk of falling merchandise, the suit states.

The store also failed to protect Atkinson from the unsafe condition and failed to make sure Atkinson was outside the zone of danger of falling merchandise, he claims.

"The practice of storing merchandise on overhead shelving units presents significant risks and has resulted in serious and permanent injuries to customers at retail establishments across the country, including retail establishments operated by Defendant Lowe's," the suit states.

However, Lowe's denies that it was responsible for Atkinson's injuries.

"Plaintiff's own actions and/or omissions were the sole cause of his injuries and damages," the suit states. "The sole proximate cause of the incident complained of were conditions beyond the control of Defendant, which were not reasonably foreseeable on the part of Defendant, and for which Defendant is not liable."

Lowe's removed the case to federal court because it is a North Carolina corporation and Atkinson is a West Virginia citizen. Therefore, diversity of citizenship exists. It also removed the case to federal court because Atkinson is seeking more than $75,000.

Atkinson is seeking unspecified compensatory and punitive damages, pre- and post-judgment interest, attorneys' fees and other relief the court deems appropriate.

Atkinson is represented by Robert D. Cline, Robert A. Campbell and R. Chad Duffield of Farmer, Cline and Campbell in Charleston.

Lowes is represented by Nora Clevenger Price and Sarah Shive of Steptoe and Johnson in Huntington.

U.S. District Court case number: 2:09-0102