12 August 21 P1:18
Sherri Adelstein District Clerk
IN THE DISTRICT COURT JUDICIAL DISTRICT DENTON COUNTY, TEXAS
PLAINTIFFS’ ORIGINAL PETITION AND REQUEST FOR DISCLOSURE
TO THE HONORABLE JUDGE:
NOW COMES C SM and SEM (“Mrs. SM” and “Mr. SM” and collectively, the “Plaintiffs”), in the above-numbered and styled cause, complaining of Defendant Target Corporation (“Target”), and files this their Original Petition and Request for Disclosure, and for cause of action would respectfully show the Court as follows:
I. DISCOVERY & NATURE OF CASE
1. Plaintiffs intend to conduct discovery under Level 3 of the Texas Rules of Civil Procedure pending the submission of an agreed scheduling order by the parties and approval and entry of the order by the Court.
2. SM brings this action as a business invitee to recover for the damages she sustained as a direct and proximate result of Target’s failure to use ordinary care to protect her from dangers which Target knew, or should have known, existed on their premises at the time of her injury.
3. Plaintiffs are residents of Plano, Collin County, Texas.
4. Defendant Target Corporation is a foreign business corporation duly authorized to do business in the State of Texas, and may be served with process by and through its registered agent, CT Corporation System, 350 N. St. Paul Street, Suite 2900, Dallas, Texas 75201.
III. VENUE AND JURISDICTION
5. Venue is proper in Denton County, Texas in that the events giving rise to this cause of action and claims in this lawsuit occurred in Denton County, Texas.
6. Jurisdiction is proper in that the damages sought well exceed the minimum jurisdictional limits of the Court.
7. Target owns and operates the Super Target (store no. 2338) located at 4885 Eldorado Pkwy., Frisco, Texas 75034 (“Store 2338”).
8. At all times mentioned herein, Mrs. SM was Target’s business invitee at Store
9. SM visited Store 2338 on the afternoon of August 22, 2010.
10. While walking out of the produce section of Store 2338, Mrs. SM’s left foot slipped on clear fluid on the ground next to a produce refrigeration unit. There were black rubber mats at the base of the refrigeration unit, and Mrs. S was walking next to the mats. As she attempted to correct her balance, her right foot slipped on the fluid and she fell directly on her left knee and then to the ground. The flooring in the area of the produce section where Mrs. SM fell was a solid surface.
11. SM lay on the floor in tremendous pain. She was rendered completely immobile due to the severity of her knee injury and had to be transported to the hospital by ambulance. EMT noted an obvious deformity in her left knee.
12. The fall left Mrs. SM with a left comminuted inferior pole patellar fracture, which required surgical repair. Mrs. SM has a permanent 7 inch scar down the middle of her knee from the surgery.
13. S was mostly bedridden during her initial recovery period, and could only move around with the assistance from others or a walker. Plaintiff then endured months of intensive physical therapy to get her range of motion back. Her left leg was in a full length hinged brace during this time.
14. SM has continued to suffer from the foreseeable residual effects of the severe injury she suffered. Her mobility is limited and is likely permanent. To this day, Mrs. SEM has not regained full use of her left knee. She cannot kneel or squat or put pressure on her knee, and her knee joint has lost its natural shock absorbing capacity so even moderate impact activities are out of the question.
15. SM has continued to need physical therapy and pain management. Mrs. S• has had two steroid injections, multiple MRIs to monitor degenerative changes, and will need continued medical care. As of the date of the filing of the Petition, Mrs. S= is scheduled for an additional open surgery on the knee as a part of the continuing effort to reduce or eliminate pain and increase range of motion. In all reasonable likelihood, Mrs. SM will face future surgeries including but not limited to a total knee replacement.
16. The injury and continued treatment has interfered with Mrs. SM’s family and professional life. Because of the time needed for medical treatment and recovery, she has been forced to take weeks off from work, setting her back financially and disrupting her professional standing.
17. Upon information and belief, the clear fluid on which Mrs. SM slipped was water or coolant leaking from one of the produce refrigeration units at Store 2338. Target placed rubber mats on the floor next to the refrigeration unit, but this was wholly inadequate to contain the escaping fluid. Target did not correct this problem. There was no waterproof barrier at the bottom of the produce refrigeration unit. There was no “Caution — Wet Floor” warning sign.
V. CAUSES OF ACTION
COUNT 1— NEGLIGENCE
18. Plaintiffs adopt and incorporate paragraphs 1-17 above and allege that Target was negligent in one or more of the following respects:
- In failing to warn Mrs. SEM of an unreasonably dangerous condition existing in an area of Store 2338 under Target’s control;
- In failing to maintain an area of Store 2338 under Target’s control in a reasonably safe and prudent manner;
- In creating an unreasonably dangerous condition in an area of Store 2338 under Target’s control; and
- In failing to correct and/or repair an unreasonably dangerous condition existing in an area of Store 2338 under Target’s control.
19. Each of these acts and omissions, whether taken singularly or in combination, constituted negligence by Defendant and is the proximate cause of the incident made the basis of this suit and the injuries and damages sustained by Plaintiffs.
COUNT 2 — PREMISES LIABILITY
20. Plaintiffs adopt and incorporate paragraphs 1-19 above and allege that Target owed them a duty of ordinary care to keep the areas of Store 2338 it controlled in a reasonably safe condition.
21. Target breached the aforementioned duty in one or more of the following respects:
- Failing to inspect the produce department of Store 2338 and warn invitees of the
dangerous condition caused by the leaking refrigeration unit, which they knew or should have known posed an unreasonable risk of harm;
- Failing to cure the dangerous condition posed by the leaking refrigeration unit,
which it knew or should have known posed an unreasonable risk of harm; and
- In failing to place barriers and or warnings to alert Mrs. SM of the hazardous
wet floor near the leaking refrigeration unit.
22. Each of these acts and omissions, whether taken singularly or in combination, was a breach of Target’s duties to Plaintiffs and is the proximate cause of the incident made the basis this suit and the injuries and damages sustained by Plaintiffs.
23. As a direct and proximate cause of Target’s negligence, Mrs. SEM sustained severe bodily injuries which included, but are not limited to multiple contusions and a left comminuted inferior pole patellar fracture. Some of the injuries sustained by Mrs. are permanent in nature. The injuries mentioned have had an adverse effect on Mrs. SM’s health and wellbeing, and as a further result of the nature and consequences of her injuries, Mrs. S has suffered physical pain and suffering, anguish and physical impairment and in all reasonable probability will continue to suffer in this manner into the future, if not for the balance of her natural life. Mrs. SM has also suffered permanent scarring and disfigurement.
24. Mrs. S has incurred past medical expenses which exceed the minimum jurisdictional limits of the court, and, in all reasonable likelihood, she will continue to incur future medical expenses as a result of her injuries.
25. Mrs. SM has also incurred past lost wages, and, in all reasonable likelihood, she will incur future lost wages as a result of her injuries.
26. Mrs. SM would further show that she was married to Mr. S on the date of the incident made the basis of the lawsuit and as a direct and proximate result of the acts and omissions of Defendant described above, there has been a substantial impairment of the marital relationship between Plaintiffs. Accordingly, the Plaintiffs have sustained a loss of the affection, solace, comfort, companionship, society and assistance that they previously received from each other, in an amount which exceeds the minimal jurisdictional limits of the court.
VII. JURY DEMAND
27. Plaintiffs hereby demand trial by jury.
VIII. REQUEST FOR DISCLOSURE
28. Under TEXAS RULE OF CIVIL PROCEDURE 194, Plaintiffs request that Defendant disclose, within 50 days of the service of this request, the information or material described in Rule 194.2.
WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that Defendant be cited to appear and answer herein, and that upon final hearing, Plaintiffs have and recover judgment against the Defendant for past and future medical expenses, past and future physical pain and suffering, past and future emotional distress and mental anguish, past and future scarring and disfigurement, past and future lost wages and lost earning capacity, loss of consortium, prejudgment and post-judgment interest in the highest lawful rate, and any further relief both at law and in equity to which Plaintiffs may be justly entitled.
Respectfully Submitted, ROCHELLE MCCULLOUGH, L.L.P.
Gregory H. Bevel