Complaint too vague, defendants say

By Kelly Holleran | Sep 17, 2009

CHARLESTON -- Two businesses say a complaint a woman and her husband filed against them should be dismissed, alleging the couple only makes vague allegations against the companies, but should be more specific in their complaint.

Aetna Building Maintenance Inc. and Bayer Cropscience were named as defendants in a lawsuit Heather Mills and her husband, Richard Mills, filed in Kanawha Circuit Court.

In their complaint, the Mills say Heather Mills was working as a janitor for Aetna in an industrial facility owned by Bayer on Jan. 14 when she incurred injuries after falling down a staircase.

Because of the incident, Heather Mills says she suffered a fractured right wrist, dislocated pinky and a closed head injury, resulting in seizures and permanent brain damage. In addition, she incurred medical expenses, endured pain and suffering, mental anguish, loss of enjoyment of life, annoyance, inconvenience, embarrassment and humiliation and will lose wages, according to her complaint.

Richard Mills has lost his wife's consortium, the suit states.

Although the Mills say Heather Mills's fall was the result of an unsafe condition of the stairs, they do not specify how the stairs were unsafe.

"The actions of Defendant Aetna in requiring Plaintiff, Heather Mills, to perform work at the office building where the steps to the basement violated applicable building codes and were maintained in an unsafe condition constituted a specific unsafe working condition in the workplace of Plaintiff, Heather Mills, which specific unsafe working condition presented a high degree of risk and strong probability of serious injury or death and, in fact, resulted in serious injury to Plaintiff, Heather Mills," the suit states.

In their four-count suit, the Mills are seeking compensatory and general damages, plus costs, attorneys' fees and other relief the court deems just.

However, Aetna maintains the Mills' complaint should be dismissed as the couple fails to elaborate on the unsafe condition of the stairs in their complaint.

"In Paragraphs 8-12, the Plaintiffs merely recite the elements for deliberate intent but gives no factual support for any of their allegations," the suit states. "While the Plaintiff has very effectively entered in the words 'the Plaintiff, Heather Mills' into the language of a statute, the Complaint lacks specific facts to support this generic recitation of a statute."

To support its motion to dismiss, Aetna cites the case of Bell Atlantic Corp. v. Twombly, in which a court found "a formulaic recitation of the elements of a cause of action" will not suffice in order for a complaint to survive a dismissal. Aetna says the Mills did just that in their complaint.

"The only fact given in the Complaint is the fact that Ms. Mills fell down the stairs and an audacious, factually unsupported, and conclusory declaration that the stairs were hazardous," Aetna's motion says. "However, the Complaint is without a single fact which would support such allegations."

Aetna should not be sued merely because of an accident, it says.
"The Plaintiff has not even identified what condition caused the Plaintiff to fall other than a set of stairs and the existence of stairs at one's workplace does not automatically constitute an unsafe condition," Aetna's motion says.

But the Mills contend the court should not dismiss their complaint because it meets West Virginia pleading standards. Because the lawsuit was originally filed in Kanawha Circuit Court, West Virginia laws should apply to it, the couple says.

In the case the court decides to hold the lawsuit up to federal standards, the Mills say their complaint also survives the federal pleading standards.

"For the first deliberate intent factor, the Mills allege a specific, unsafe, highly dangerous working condition: Mrs. Mills' duty to use the 'steps to the basement [which] violated applicable building codes and were maintained in an unsafe condition," the Mills' response says. "For the second factor, they allege Aetna's actual prior knowledge and subjective realization of the dangerous working condition."

Because the Mills say details are not of critical importance to the claim, particulars should be left out and revealed only in discovery, their response says.

"Requiring a more detailed complaint would be 'inefficient,'" the Mills say in their response.

In its response to the Mills' complaint, Bayer denies the allegations brought against it and also is asking the court to dismiss the lawsuit.

"Plaintiff Heather Mills voluntarily exposed herself to a known risk by failing to use the handrails provided on the staircase," Bayer says in its answer.

Because Aetna is an Ohio business and because Bayer's principal office is in North Carolina and the Mills are residents of West Virginia, diversity of jurisdiction exists. Therefore, the defendants removed the complaint to U.S. District Court for the Southern District of West Virginia. In addition, the Mills are seeking more than $75,000.

The Mills will be represented by Brent K. Kesner and Daniel W. Greer of Kesner, Kesner and Bramble in Charleston and by Kevin C. Harris and Eric J. Holmes of the Law Offices of Harris and Holmes in Ripley.

Bayer will be represented by Timothy M. Miller and Benjamin W. Price of Robinson and McElwee in Charleston.

Aetna will be represented by John R. Fowler, Anna B. Williams and Andrea M. King of Charleston.

U.S. District Court case number: 2:09-910

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