Wyoming Co. woman sues Lowe's after fall in store

BECKLEY -- A Wyoming County woman has filed suit against Lowe's, alleging she was forced to lie on the ground of the store for 30 minutes without assistance after she fell while attempting to retrieve merchandise from behind a large metal ladder.

Shirely A. Bullington claims she was shopping at the Lowe's in Beckley on Oct. 29, 2007, when she attempted to maneuver around a 15-foot tall metal ladder to retrieve a product. In her attempts to get the product, Bullington fell, according to her complaint filed March 8 in Wyoming Circuit Court.

"At the time of Plaintiff's fall and resulting injuries, employees of Lowe's of Beckley acted with negligence, willful and wanton misconduct in failing to provide any form of aid or assistance to the Plaintiff, specifically after several requests for aid and assistance by an acquaintence and friend of the Plaintiff that had accompanied the Plaintiff into Lowe's of Beckley, one Mr. Jack Green," the suit states. "That Defendants, Lowe's of Beckley, Lowe's of Beckley's employees, specifically Defendant Jane Doe, an employee of Lowe's of Beckley, and Defendant John Doe, an employee of Lowe's of Beckley, after being informed numerous times that the Plaintiff, Shirley Bullington, had in fact suffered a severe injury and that the Plaintiff was lying in an aisle wreathing and moaning in pain, not thirty feet in plain, unobstructed view from the Lowe's of Beckley's Customer Service Desk, after Mr. Jack Green pleaded for any form of aid and assistance from said Defendant employees of Lowe's of Beckley for the Plaintiff, Defendants Lowe's of Beckley and Defendant Jane Doe, an employee, and Defendant John Doe, an employee, acted with negligence, willful and wanton misconduct in failing to provide any form of aid or assistance by failing to acknowledge Plaintiff's injury or render aid and by failing to contact emergency medical assistance."

Because of the lack of employee assistance at Lowe's, Bullington claims Green was forced to call Bullington's grandson, Rusty Massey, to ask for his assistance at the store.

"That as the approximate result of the deficient and nonexistent assitance from any of the Defendants, each one and all of them, the Plaintiff was forced to lie on her back in the aisle of Lowe's of Beckley for an additional period of approximately thirty to thirty-five minutes until her grandson, Mr. Massey, arrived at Defendant Lowe's of Beckley, before an ambulance was summoned to transport the Plaintiff to Raleigh General Hospital where emergency surgery was performed upon arrival," the complaint says.

Because of her fall and the lack of assistance of Lowe's workers, Bullington suffered prolonged severe pain, suffering, injuries to her right ankle and the right lower region of her leg and inconvenience; lost her earning capacity, society, service, companionship and enjoyment of life; and incurred medical costs, according to the complaint.

In her suit, Bullington is seeking compensatory, general and punitive damages, pre- and post-judgment interest, costs, attorneys' fees and other relief the court deems just.

But Lowe's claims Bullington should be entitled to no damages because it says Bullington caused her own injuries.

"Plaintiff was guilty of comparative negligence," the store's response states. "The alleged incident and damages were caused or contributed to by her negligence, which should either bar Plaintiff's claims or, alternatively, reduce any recovery by the amount of such negligence. Plaintiff assumed the risk so as to bar or reduce Plaintiff's recovery."

The store also denies Bullington's allegations against it.

Lowe's wants the court to dismiss Bullington's complaint and seeks other relief the court deems just.

Lowe's removed the case to U.S. District Court for the Southern District of West Virginia because Bullington is seeking more than $75,000. In fact, before filing the complaint, Bullington's lawyer demanded $3 million to resolve her claims.

In addition, Lowe's is not a citizen of West Virginia and, therefore, a diversity of residency exists. The store claims the court should disregard the citizenship of the two unnamed co-defendants.

Bullington will be represented by Christopher B. Bledsoe of The Bledsoe Law Office in Pineville.

Lowe's will be represented by J. Tyler Dinsmore, Andrew B. Cooke and Michelle B. Hoosier of Flaherty, Sensabaugh and Bonasso in Charleston.

The case has been assigned to Judge Irene C. Berger.

U.S. District Court case number: 5:10-293