Wal-Mart nutria case back in state court

After a brief sojurn in federal court, the case of a couple alleging she incurred pain, suffering and mental anguish when confronted by a nutria in Wal-Mart is back in state court, where the store says if the incident did happen it's at least partly, if not wholly, the woman's fault.

Randal and Rebecca White are seeking damages based on a incident which allegedly happened in the Abbeville store in October 2008. They filed suit in April 2009.

The couple alleges she was startled when a large nutria, allegedly called “Norman”

by those familiar with the varmint, rushed toward her from behind a Coke rack.

Instinctively, the suit claims, she pulled the shopping cart toward her to protect herself from the creature and rolled the car over her foot, causing an stumble and an injury.

As they assisted her, the petition claims, Wal-Mart employees told the plaintiff “she had an encounter with Norman”, the suit alleges.

The lawsuit claims negligence by the company and its employees.

Wal-Mart was successful last May in having the litigation removed to federal court.

It was assigned to Judge Richard Haik and subsequently assigned a trial date of April 5, 2010.

But last August, the parties made a joint motion to have the case remanded to state court, to which the court agreed.

That followed a July 28 protective order issued to Wal-Mart, a motion unopposed by the defense. The basis for the motion is not reflected in documents in the state court file in Abbeville.

Wal-Mart, in documents filed with the court, denies all allegations in the petition.

But should the court find in favor of the Whites, Wal-Mart contends Rebecca White is “guilty of contributory negligence, comparative negligence and victim fault, in causing the shopping cart to roll over her left foot, causing her to stumble.”

The company also claims she reacted in such a way “as to startle the nutria, causing it to startle her.”

White was also guilty of victim fault, the petition contends, for “failing to notice the presence of the nutria from behind the Coke rack when she should have noticed.”

The plaintiff also allegedly bears some burden for “shopping at the Abbeville Wal-Mart by herself when she knew she has a past history of severe and frequent panic attacks, and failing to take all appropriate steps to avoid coming in contact with the nutria.”

The defense claims she failed “to see what she should have seen and to do what she should have done so as not to get injured.”

The company’s response to interrogatories posed by the plaintiff, if completed, is not part of the case file.

Among information the plaintiffs were seeking:

Names of all persons, including employees, who reported seeing a wild nutria or other animal loose in the store prior to the incident, and the dates of any such occurrences;

Names, addresses and dates of anyone who reported emotional or physical injury as a result;

Description of every step taken to catch or kill the nutria and the dates and the results.

Attorneys currently of record in the case are Anthony Fontana, representing the Whites, and Lindsay M. DeBlois and David John Calogero, representing Wal-Mart.

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