MEDIA – An individual Wawa store has been dismissed from litigation brought by a woman who alleged she was sickened by a meal she purchased at a there, leaving the convenience store chain at large and its employees as defendants.
Jacqueline Simpson of Philadelphia first filed suit in the Delaware County Court of Common Pleas on July 19 versus Wawa, Inc. of Media, Wawa No. 97 of Lafayette Hill and John Doe of Wilmington, Del.
“At all times relevant to this complaint, defendants owned, operated, maintained, controlled and/or possessed, individually and through their respective agents, the Wawa facility No. 97, located at 406 Germantown Pike Lafayette Hill, PA 19444. On or about Nov. 30, 2022, plaintiff, a business invitee, was lawfully upon the premises,” the suit said.
“At all times relevant herein, specifically, on or about Nov. 30, 2022, plaintiff purchased and consumed a meal consisting of Toasted Tuna on wheat, together with tomato basil bisque soup, that was prepared and offered for consumption by defendants at its restaurant located in Lafayette Hill, Pennsylvania. As a direct and proximate result of consuming the meal prepared and offered for consumption by defendants, plaintiff suffered serious illness and injury, including complications of infection, requiring medical care and urgent care.”
The suit added that at all times herein relevant and on or about Nov. 30, 2022, the meal purchased and consumed by the plaintiff was contaminated with illness-producing bacteria when and while it was in the control of the defendants.
Per the litigation, the defendants failed to use safe and proper food storage, preparation and handling practices, failed to use safe and proper food inspection and handling practices and failed to adequately and/or safely prepare the meal for human consumption.
“As a direct and proximate result of one or more of the foregoing acts or omissions on the part of the defendants, the plaintiff was, on or about Nov. 30, 2022, caused to ingest and/or consume the meal contaminated with illness-producing bacteria, and suffered injuries of a personal and pecuniary nature,” the suit stated.
UPDATE
Defendant Wawa, Inc. answered the complaint and provided new matter on Sept. 11, charging that it was not responsible for the plaintiff’s injuries.
“Plaintiff’s complaint must be barred by the applicable statute of limitations. If plaintiff sustained the injuries and damages as alleged in her complaint, then same must be reduced by the provisions of the Pennsylvania Comparative Negligence Act. Plaintiff’s complaint fails to state a claim upon which relief may be granted. If plaintiff sustained the injuries and damages as alleged in her complaint, then same were not proximately caused by any action or failure to act on behalf of answering defendant or any of its employees acting within the course and scope of their employment and within furtherance of answering defendant’s business. Plaintiff has failed to mitigate her damages,” according to the new matter.
“If plaintiff sustained the injuries and damages as alleged in plaintiff’s complaint, then same were caused by other entities over which answering defendant had no control. At all times material hereto, answering defendant acted with due and proper care under the circumstances. Answering defendant had no notice of the allegedly defective condition. In the event that plaintiff request delay damages pursuant to Pennsylvania Rule of Civil Procedure 238, defendant hereby challenges the applicability and constitutionality of said rule, and places same at issue. Answering defendant avers that any food allegedly consumed by the plaintiff from answering defendant’s premises was prepared with the utmost diligence and care. Plaintiff’s claims must be barred and/or reduced as plaintiff or other parties modified, altered or misused the product in question.”
The answer added that the plaintiffs’ claims are barred and/or pre-empted by the provisions of the Federal Food Drug and Cosmetic Act, the Fair Share Act and the Patient Protection and Affordable Care Act.
The following day, on Sept. 12, the individual Wawa store defendant, Wawa. No. 97, was dismissed from the case with prejudice and through mutual stipulation.
For counts of negligence, strict liability and breach of warranty of wholesomeness, the plaintiff is seeking damages in excess of $50,000, plus such other and further relief as the Court deems just and proper under the circumstances, including interest, costs and delay damages.
The plaintiff is represented by Michael T. van der Veen and Jerry A. Lindheim of van der Veen Hartshorn & Levin, in Philadelphia.
The defendant is represented by Gerard X. Smith of Naulty Scaricamazza & McDevitt, in Philadelphia.
Delaware County Court of Common Pleas case CV-2023-006099
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com