United States District Court, W.D. Oklahoma
SHAWN F. BYRNE, and AMANDA E. BYRNE, Plaintiffs,
TACO BELL OF AMERICA, LLC, a Delaware corporation, and TACO BELL OF AMERICA, INC., Defendants.
L. RUSSELL UNITED STATES DISTRICT JUDGE.
the Court is Defendants' Motion to Dismiss. Doc. 16.
Plaintiffs have responded, Doc. 17, and Defendants replied.
facts of this case are set out in the Court's earlier
Order. Doc. 14. For context, Shawn Byrne and Amanda Byrne,
husband and wife, have jointly sued Taco Bell for allegedly
contaminating Mr. Byrne's food in February 2017. The
Court previously allowed the Byrnes to amend their Complaint
to add claims for product liability and breach of implied
warranty. Plaintiffs did so and now each assert claims for
(1) negligent supervision and negligent hiring, (2)
negligence, (3) product liability, and (4) breach of
warranty. Doc. 15. Defendants have again moved to dismiss all
Federal Rule of Civil Procedure 8(a)(2), a pleading must
contain a ‘short and plain statement of the claim
showing that the pleader is entitled to relief.'”
Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009).
“The pleading standard Rule 8 announces does not
require ‘detailed factual allegations, ' but it
demands more than an unadorned,
Id. at 678 (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). To survive a motion
to dismiss, a pleading must offer more than “labels and
conclusions” and “a formulaic recitation of the
elements of a cause of action.” Twombly, 550
U.S. at 555. There must be “sufficient factual matter,
[which if] accepted as true . . . state[s] a claim to relief
that is plausible on its face.” Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 570). A
plausible claim is one that “pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. Plaintiffs must “nudge their claims
across the line from conceivable to plausible . . . .”
Twombly, 550 U.S. at 570. Further, the Court
“must accept all the well-pleaded allegations of the
complaint . . . and must construe them in the light most
favorable to the [non-moving party].” Thomas v.
Kaven, 765 F.3d 1183, 1190 (10th Cir. 2014).
first argue that the Byrnes' claims for negligent hiring,
training, and supervision must be dismissed because the
Byrnes failed to plead any facts suggesting that Defendants
in any way knew that their employees were likely to
adulterate or contaminate food. The Court agrees.
“[e]mployers may be held liable for negligence in
hiring, supervising, or retaining an employee, ”
imposing liability on the employer requires that “the
employer had reason to believe that the person would create
an undue risk of harm to others.” N.H. v.
Presbyterian Church (U.S.A.), 998 P.2d 592, 600 (Okla.
1999). Simply put, the Byrnes must, at a minimum, allege that
Taco Bell had “prior knowledge of the servant's
propensities to create the specific danger resulting in
damage.” Id. The Byrnes have not done that.
Instead, their Complaint alleges only that Taco Bell was
“negligent in their action, supervision, and/or hiring
of the three Taco Bell employees who committed the acts as
alleged, ” Doc. 15, at 4, and that two of the three
Taco Bell employees involved in the incident were felons.
Their Response suggests that Taco Bell would have necessarily
known that the employees were felons, thus making the
restaurant a negligent hirer. These are the types of
conclusory allegations that Twombly forecloses. Even
viewing these facts in the light favorable to the Byrnes,
there is no allegation anywhere that Taco Bell was aware that
their employees would be grossly negligent in preparing Mr.
Byrne's food or that they would intentionally contaminate
it. They have therefore failed to “nudge their claims
across the line from conceivable to plausible.”
Twombly, 550 U.S. at 571. Both Shaun's and
Amanda Byrne's claims for negligent supervising and
hiring must therefore be dismissed.
fact, all of Ms. Byrne's remaining claims must be
dismissed because it was Mr. Byrne, not she, who was injured
by the adulterated food. Oklahoma law demands that a
plaintiff alleging product liability or breach of warranty
“show a personal injury directly resulting from the
allegedly defective product.” Slaton v.
Vansickle, 872 P.2d 929, 931 (Okla. 1994). In
Slaton, for example, the Oklahoma Supreme Court
found that a claimant had no cause of action under either of
those theories after his gun accidentally discharged to kill
a bystander. Id. “His injury came about only
after learning the gun's accidental discharge
had caused a death, not, because he was injured from the
discharge.” Id. There, the claimant's
injuries were harm to his business and emotional distress,
injuries the Court equated to a theory of negligent
infliction of emotional distress under some type of bystander
theory. Given this requirement of a personal injury caused by
the defective product itself, Ms. Byrne's claims for
product liability and breach of warranty fail.
unsuccessful is Ms. Byrne's claim for negligence, or
rather, negligent infliction of emotional distress. The two
claims are one in the same, since “negligent infliction
of emotional distress is not an independent tort, but is in
effect the tort of negligence.” Wilson v.
Muckala, 303 F.3d 1207, 1213 (10th Cir. 2002)
(citing Kraszewski v. Baptist Med. Ctr. of Okla.,
Inc., 916 P.2d 241, 243 n.1 (Okla. 1996)). Like the
claimant in Slaton, Ms. Byrne is no more than a
bystander who suffered emotional distress. She alleges that
her husband's injuries caused extreme stress and mental
anguish and greatly affected her emotional state. These
allegations, however, are not adequate to state a claim for
negligence. As the Oklahoma Supreme Court recognized in
Slaton when denying claimant's
emotional-distress claim, Oklahoma has not adopted a
bystander theory: the “rule long recognized in Oklahoma
[is] that recovery for mental anguish is restricted to such
mental pain or suffering as arises from an injury or wrong to
the person rather than from another's suffering or wrongs
committed against another person.” Id. at 931.
While Oklahoma will acknowledge a claim for “physical
injury where it is accompanied by mental stress or mental
stress is accompanied by physical injury, ” that
situation is where “the negligent act created a
breach of duty as to the party.” Id.
(emphasis in original). “This is not what [Ms. Byrne]
is arguing. It is not the [defective food] that created [her]
injury, but rather the result [Mr. Byrne's injuries] that
has caused [her] alleged mental and/or physical
injury.” Id. at 931. Consequently, Ms.
Byrne's claim for negligence is no more viable than her
claims for product liability and breach of warranty and must
therefore be dismissed.
these claims still leaves the Court with Mr. Byrne's
claims for product liability, breach of warranty, and
negligence. Taco Bell does not make any specific argument why
these claims should be dismissed other than that they are not
plausible. The Court already explained in its earlier Order
why Mr. Byrne has stated a claim for negligence. And it is
not difficult to see how he has stated claims for product
liability and breach of warranty considering he suffered
serious burns from Taco Bell's food. The Court declines
to dismiss these remaining claims.
conclusion, Defendants' Motion to Dismiss, Doc. 18, is
GRANTED in part and DENIED in part. The Court dismisses all
of Ms. Byrne's claims as well as Mr. Byrne's claim
for negligent hiring. The Court, however, will allow Mr.
Byrne to amend his Complaint and add a claim for negligent
hiring if in the course of discovery facts are uncovered
which would support such a claim.
 It appears that Plaintiffs improperly
named Taco Bell of America, Inc. as a Defendant in this
action. Taco Bell of America, Inc., converted to a limited
liability company, Taco Bell of America, LLC, in late 2011.
The Oklahoma Secretary of State thus no longer lists Taco
Bell of America, Inc. as an active legal entity. For
simplicity's sake, the ...