CHARLESTON — Wendy's argues that a lawsuit against it alleging it failed to maintain a safe environment for customers should be dismissed.
Wendy's contends that the plaintiff failed to state a claim upon which relief may be granted and invokes several defenses, including contributory negligence, comparative negligence, assumption of risk, failure of consideration, among others, according to the defendant's answer.
"The injuries of the plaintiff were caused by the misconduct of the plaintiff or acts of others over which this defendant had no control," the answer states. "No act or omission on the part of this defendant caused or contributed to any of the alleged injuries or damages claimed by the plaintiff."
Wendy's also raised the defense of failure to mitigate if a sufficient or factual basis is developed through continuing investigation and discovery, according to the answer. It argues that it breached no duty at law owed to the plaintiff.
Douglas Hicks filed the lawsuit against Schmidt Family Restaurant Group, which is doing business as Wendy's, claiming he was injured at a Charleston location on Nov. 21, 2020, according to a complaint filed in Kanawha Circuit Court.
Hicks claims he fell and became injured due to negligent maintenance and failure to maintain a safe environment for customers.
Because of the injuries Hicks sustained, he has suffered damages, including physical injury, medical expenses, mental anguish, pain and suffering, annoyance and inconvenience, and loss of enjoyment of life, according to the suit.
Hicks is seeking compensatory damages. He is represented by G. Patrick Jacobs of the Law Offices of G. Patrick Jacobs in Charleston.
Wendy's is represented by Geoffrey A. Cullop and Omar D. Ahmad of Pullin Fowler Flanagan Brown & Poe.
The case is assigned to Circuit Judge Carrie Webster.
Kanawha Circuit Court case number: 21-C-607
