CAUSE NO420136- 0254
13 March 7 A11:38 Jean Brittain District Clerk Henderson District Accepted By: Carmen Delgado
and,IN THE DISTRICT COURT
V.L ‘,JUDICIAL DISTRICT
JERROLD HOWELL, individually, and
JERROLD HOWELL ENTERPRISES INC. d/b/a JC’S TIRE SERVICE
HENDERSON COUNTY, TEXAS
PLAINTIFFS’ ORIGINAL PETITION
TO THE HONORABLE JUDGE:
NOW COME G Rand SRM, (“Plaintiffs”) and file this Original
Petition (“Petition”) complaining of Defendants Caterpillar, Inc. (“Caterpillar”), Jerrold Howell, individually (“Howell”), and Jerrold Howell Enterprises Inc. doing business as JC’s Tire Services (“JC’s Tire Services”) and for cause of action would respectfully show the Court:
1. Plaintiffs are Texas residents residing in Kaufman County, Texas.
2. Defendant Caterpillar, Inc., a Delaware corporation, maintains a principal office at 100 North East Adams Street, Preoria, Illinois 61629, is licensed to practice business in Texas, and may be served with process by serving CT Corporation, its Registered Agent, at 350 North St. Paul Street, Dallas, Texas 75201.
3. Defendant Jerrold Howell, an individual, may be served with process at his usual place of business, 103 E Golden Oaks Drive Mabank, Texas 75156, Henderson County, Texas.
4. Defendant Jerrold Howell Enterprises d/b/a JC’s Tire Service, a Texas corporation, maintains a principal office at 103 E Golden Oaks Drive Mabank, Texas 75156, Henderson County, Texas, and may be served with process by serving its registered agent, Jerrold Howell, at 103 E Golden Oaks Drive Mabank, Texas 75156, Henderson County, Texas.
II. VENUE AND JURISDICTION
5. Venue is proper in Henderson County, Texas, pursuant to TEx. CIV. PRAC. & REM. CODE § 15.002, because it is the county in which all or a substantial part of the events or omissions giving rise to the claim occurred. Venue is proper in Henderson County against all Defendants pursuant to TEX. CIV. PRAC. & REM. CODE § 15.005 because venue is proper against at least one Defendant and all claims and causes of action in this case arise out of the same transaction, occurrence, or series of transactions or occurrences.
6. The Court has subject matter jurisdiction over this case as the amount in controversy exceeds the minimum jurisdictional limits of the Court.
7. Plaintiffs intend to conduct discovery under Level 3 of the Texas Rules of Civil Procedure pending the submission of an Agreed Scheduling Order between the parties and approval and entry of the. Order by the Court.
8. Mr. RM is a residential and commercial plumber by trade. During his years as a plumber, he acquired other laborer-related skills, making him a self-proclaimed “jack-of-all-trades.” Outside of work, GM enjoyed race car building, repairing and driving. Gil was the breadwinner for his household, consisting of his wife, Ste, and three grandchildren. His income as a plumber declined sharply during the onset on the 2008 recession. In order to support his family, he sought the help of a family friend, Jerrold Howell, for extra income. Beginning in 2009, GE was hired as a personal assistant to Defendant Jerrold Howell. He was paid $400 cash every week by Defendant Howell to run errands, repair plumbing on various properties, paint vehicles, deliver checks, feed Defendant Howell’s cows, build hog cages on his farm, and perform other personal tasks at the request of Howell, GIIlwas not, however, an employee of Jerrold Howell Enterprises, Inc. doing business as JC’s Tire Services.
9.On January 4, 2012, Mr. R=was at Defendant JC’s Tire Services. While at the tire shop, Howell summoned Gto assist by inflating a flat tire on a Caterpillar road grader. This tire had a multi-piece rim wheel. At that time, GE had some general experience changing and inflating tires of passenger vehicles and trucks. However, during the course of his career, he had never been exposed to a multi-piece rim tire. GM balked at the task because he lacked specialized knowledge, to which Defendant Howell replied, “The best time to learn is now.” Mr. approached the Caterpillar and began to change the tire himself, Neither Howell nor the shop employees directed, supervised, or warned GE of the potential dangers of improperly changing and inflating a multi-piece rim wheel tire. Defendant JC’s Tire Services did not offer any warnings, safety equipment, or a proper air hoses extension for servicing this equipment, ‘ did not see any warning signs or posters on Defendant JC’s Tires Services premises. Industry-wide safety guidelines and standards exist for servicing multi-piece rim tires, which include four main components: (1) training for all tire servicing employees; (2) the use of industry-accepted procedures that minimize the potential for employee injury; (3) the use of proper equipment such as clip-on chucks, restraining devices or barriers to retain the wheel components in the event of an incident during the inflation of tires; and (4) the use of compatible components.
10. Upon information and belief, this Caterpillar road grader was designed, manufactured, and equipped by Caterpillar Inc., with a multi-piece wheel assembly consisting of a wheel rim base, a side ring and lock ring, said assembly designed, manufactured, distributed, marketed, and sold by the Defendant Caterpillar Inc. The multi-piece wheel assembly was sold by Caterpillar Inc. as an option on the grader. Standard equipment on a grader is a single-piece wheel which is a safe design alternative to the unreasonably dangerous multi-piece wheel assembly. The multi-piece assembly consisting of the rim base, side ring and lock ring were manufactured, distributed, marketed, and sold by the Defendant Caterpillar Inc., in the year 1998.
11. Multi-piece rims were historically called “widow makers.” They have been largely outlawed in North America because of the thousands of fatalities and catastrophic injuries incurred by unsuspecting users since the 1970s. Newspapers are riddled with stories of severe injuries and tragic deaths resulting from this rim design. The design of the wheel has been deemed “inherently dangerous.” The Caterpillar road grader causing Mr. RM’s injuries was manufactured in 1998 with multi-piece tire rims. The risk of deadly explosions involving multi-piece wheel assemblies was well-known and well-documented within the manufacturing industry long before this road grader was designed, manufactured, and delivered into the stream of commerce by Caterpillar. This road grader, a functional commercial vehicle rather than an aesthetic consumer product, had no warning labels on its vast exterior to warn the user of its multi-piece rims. The only warning for changing and inflating this type of tire was found in an instructional booklet in the cab of the Caterpillar. The booklet contained graphic illustrations regarding the hazard of standing in front of a multi-piece rim during inflation. However, G was not the owner of the Caterpillar road grader or its operator. GE never saw the owner’s manual.
12. GEN Rwas a reasonably foreseeable third-party “user” (servicing mechanic) of the Caterpillar road grader asked to change one of its tires. Had GM been given a graphic warning on the outside of the road grader near the tires, he would have comprehended it and heeded it.
13. Upon information and belief, at the time and place of the injuries suffered by GE the multi-piece rim assembly, side ring and lock ring were in substantially the same condition as when manufactured. It was being used in a manner anticipated and intended by the Defendant Caterpillar Inc.
14. With no background information of his own and without an adequate and reasonable warning, GNI tried to inflate the multi-piece rimmed tire in the same manner as the other vehicle tires he had commonly serviced in the past. While standing directly in harm’s way, GM inflated the tire just as he did every other tire he filled on a vehicle, standing in the center of the explosion trajectory path of the multi-piece rim. At that moment, the multi-piece rimmed wheel separated and exploded with life-threatening force in GM’s face, propelling his body across the tire shop, splitting open his face, and knocking him unconscious. Like the many other victims of multi-piece rim explosions, he should have died in that moment. Amazingly, GE survived the explosion and has been released from the hospital.
15. As a direct and proximate result of the violent and unexpected explosion of the multi-piece rim assembly, Mr. R= has sustained several permanent injuries, causing tremendous pain, anxiety, and humiliation. GM suffered a traumatic brain injury, concussive retinopathy and vitreous detachment; a severed bulging disk in his back causing pinched nerves and shooting pain in his legs; loss of motor skills; significant loss of taste, smell, and hearing; he suffers from severe mood disturbances, including depression, aggression, anxiety, frustration; short-term memory loss; inability to cope with new or unfamiliar situations; impaired judgment. He takes multiple medications daily; he cannot lift more than ten pounds; he cannot drive; he cannot handle finances; he cannot provide income for his the five members of his household; he no longer has a sexual relationship with his wife; he cannot live without the supervision of a full-time, around the clock caretaker. This delineated list cannot begin to reflect the sorrow, agony, frustration, and emasculation that Mr. R= now experiences every single day of his life. A former jack-of-all-trades, go-getter, and family hero now spends his days confined to a recliner. Even limited to his home, Mr. R cannot cook; because he has lost his sense of smell and combined with his limited attention span, he has accidentally set several meals on fire. He cannot clean; because GE has suffered permanent trauma to his back, he cannot support his own weight for long periods of time without collapsing to the floor. He cannot make minor repairs; because of his neurological damage, he has lost many of fine motor skills. He cannot run errands; because of the brain damage, he cannot remember where he is and his purpose for being there. His life will never be normal again; he will always be entirely dependent upon another person for his care and well-being.
V. NEGLIGENCE DEFENDANT JERROLD HOWELL, INDIVIDUALLY
16.The incident made the basis of this lawsuit referred to in paragraphs 8 – 15 and Mr. Res resulting injuries and damages were proximately caused by the negligent conduct of Defendant in one or more of the following respects:
- In failing to train and educate Mr. RM on the proper procedures and equipment to be used in the replacement of a flat tire with a multi-piece wheel rim.
- In failing to advise/inform and warn an untrained Mr. Rof dangers of inflating a multi-piece wheel rim.
- In failing to supervise Mr. R=I during the changing and inflating of the multi-piece wheel rim.
- In failing to place adequate and sufficient instructional and warning labels on any and all equipment with split and multi-piece rims.
- In failing to take extra precautionary measures to ensure the endangered Mr. R= would not incur injury from inflating a multi-piece tire rim.
- In failing to hire someone with special knowledge of changing and inflating tires with multi-piece rims.
17.The lack of training, education, supervision, research, cautionary practices and indifference on the part of Defendant Howell exposed Mr. R= to and Unreasonable risk of harm which subsequently has been detrimental to his well-being and lifestyle and in all likelihood has diminished his years of life expectancy.
18. Each of these acts and omissions, whether taken singularly or in combination, constituted negligence on behalf of Defendant which were the proximate cause of the incident made the basis of this lawsuit and the subsequent injuries and damages sustained by Mr. GE.
VI. NEGLIGENCE DEFENDANT JERROLD HOWELL ENTERPRISES, INC. dlb/a JC’S TIRE SERVICES
19. The incident made the basis of this lawsuit referred to in paragraph 8 – 15 and Mr. s resulting injuries and damages were proximately caused by the negligent conduct of Defendant JC’s Tire Service in one or more of the following respects:
- By allowing a non-employee to be present inside the explosion trajectory of a multi-piece rim during the inflation process.
- By allowing a non-employee to assist in the inflation of a multi-piece rim tire.
- In failing to place adequate and sufficient instructional and warning labels and posters on any and all equipment with split and multi-piece rims explaining the proper procedures, safety hazards, and precautions to be used during the removal and inflation of a tire with a multi-piece rimmed tire rim.
- In failing to provide protective gear, such as a cage or other restraining device, while inflating the multi-piece rimmed tire.
- In failing to provide a remotely controlled inflation device for use in inflating a multi-piece rimmed tire.
- In failing to hire knowledgeable, experienced personnel to service and inflate multi-piece rim tires.
20.Each of these acts and omissions, whether taken singularly or in combination, constituted negligence on behalf of Defendant which were the proximate cause of the incident made the basis of this lawsuit and the subsequent injuries and damages sustained by Mr. F.
VII. NEGLIGENCE CATERPILLAR INC.
21.The incident made the basis of this lawsuit referred to in paragraph 8 – 15 and Mr. RM’s resulting injuries and damages were proximately caused by the negligent conduct of Defendant Caterpillar Inc. in one or more of the following respects:
- In incorporating multi-piece wheel rims in their product design.
- In failing to exercise the duty of reasonable care to design, manufacture, distribute, market, sell, and otherwise supply to the general public, including Mr. R products which were not defective and unreasonably dangerous.
- In defectively warning consumers of the lethal risk associated with servicing and inflating multi-piece rims that have a proclivity to explosively separate and injure its users.
- In failing to advise/inform and warn all users with a warning label on the exterior of its equipment.
- In failing to monitor the incident of injury and death occurring between 1998 and 2012 from multi-piece rimmed heavy equipment.
- In failing to create, distribute, and issue post-sale warning labels to dealers, intermediaries, and buyers with instructions to place warning labels on the exterior of Caterpillar road graders.
22.The lack of training, education, supervision, research, cautionary practices and indifference on the part of Defendant Caterpillar Inc. exposed Mr. Rto an unnecessary and unreasonable risk of harm which subsequently has been detrimental to his well-being and lifestyle, and in all likelihood has diminished his years of life expectancy.
23. Caterpillar Inc. had actual knowledge of the dangerous and defective condition of the multi-piece wheel assembly and its proclivity to explosively separate causing grievous injury or death. Notwithstanding the actual knowledge of the dangerous and defective condition of the multi-piece wheel assembly, Caterpillar Inc. continued to market the defective and dangerous multi-piece wheel assembly without safety modification or adequate warning. Also, Caterpillar Inc. failed to sell exclusively the single-piece wheel assembly which was available as standard equipment to purchasers of the road grader. Caterpillar Inc.’s conduct in continuing to distribute the road grader with the unmodified multi-piece wheel assembly installed rather than the available and safe, single-piece wheel assembly and Caterpillar Inc.’s failure to warn of the dangers of the multi-piece wheel assembly were willful, reckless and wanton acts and such conduct justifies an award of punitive damages no less than ten times the award of compensatory damages awarded to the Plaintiffs in this matter in order to punish Caterpillar Inc, for its wrongful conduct and to deter other entities similarly situated from continuing to market dangerous and defective machinery where an alternative and safe design is available.
24. Each of these acts and omissions, whether taken singularly or in combination, constituted negligence on behalf of Defendant which were the proximate cause of the incident made the basis of this lawsuit and the subsequent injuries and damages sustained by Mr. RM.
VIII. PRODUCT LIABILITY CATERPILLAR INC.
25. The Defendant manufactured, sold and distributed a dangerously defective product, placing the product into the stream of commerce in a manner in which it is likely to cause harm to the end user of the product as well as innocent bystanders.
26. The product is defectively marketed as it fails to adequately warn the end user of the risk associated with inflating multi-piece wheel rims.
27. Caterpillar knew or reasonably should have foreseen the risk of harm at the time the product is marketed.
28. The Caterpillar road grader contained no exterior warning labels regarding the multi-piece rims.
29. The lack of instructions or warnings renders the product unreasonably dangerous to the ultimate user or consumer of the product.
30. The failure to warn or instruct caused Mr. and Mrs. F=’s injuries.
31. Split and multi-piece tire injuries, mutilations, and fatalities occur on an annual basis. These kinds of rims have acquired the moniker “widow maker.”
32. Without a sane appreciation of the dangers associated with the product, Mr. BM failed to take adequate precautions to avoid harm.
33. Had Defendant used a warning label on the exterior or the machine, Mr. R= would have understood and heeded the warning upon reading it.
34. Creating a safer rim alternative was economically and scientifically feasible.
35. Making the product safer would not have destroyed the utility of the wheel and the overall function of the machine.
36. A bright, prominent label would have mitigated Mr. RM’s injuries, along with potentially thousands of others who have died or suffered as a result of tire explosions. As leaders in the industry, Caterpillar should be obligated to make products safer by placing cheap, yet effective, labels on its multi-piece rim wheels.
37. Caterpillar owed Mr. RMa duty to warn. The Defendants failure to warn was the producing cause of G•R=’s injuries.
IX. STRICT PRODUCT LIABILITY CATERPILLAR INC.
38. The Plaintiffs reallege each and every allegation contained in paragraphs 8 – 15 as if fully set forth herein.
39. At the time of the violent and unexpected explosion of the multi-piece rim assembly, the multi-piece rim assembly was being used in a manner anticipated or intended, or reasonably expected by the Defendant Caterpillar Inc. Also, the multi-piece rim assembly was in substantially the same condition as when manufactured by said Defendant.
40. At the time of the design, manufacturing, distribution, marketing and sale of the multi-piece rim assembly by the Defendant Caterpillar Inc., the rim assembly components were unreasonably dangerous and defective and not reasonably safe when being used in a reasonably foreseeable manner and were defective in one or more of the following ways:
- The aforementioned multi-piece rim assembly was unreasonably dangerous and defective in its design because of its proclivity to explosively separate and injure Mr. RM and others within the range of the explosion while being put to the use intended and anticipated by GERand members of the general public.
- The aforementioned multi-piece rim assembly was unreasonably dangerous and defective because of the Defendant Caterpillar Inc., failure to adequately warn and instruct concerning the assembly, handling, dangers, and defects inherent in the use of the multi-piece rim assembly when being used in a manner intended and anticipated by GE R=.
41. Caterpillar Inc. had available an alternative single-piece wheel design which was sold as standard equipment on the Caterpillar road grader. The single-piece wheel assembly was a safe design which was available and reasonable design which, if implemented, would have completely eliminated the danger created by the proclivity of the multi-piece wheel assembly to explosively separate causing serious injury or death to unknown users of the equipment. Also, Caterpillar Inc. took no steps to modify the multi-piece wheel assembly to diminish the danger of explosive separation of the wheel assembly.
42. Caterpillar Inc. had actual knowledge of the dangerous and defective condition of the multi-piece wheel assembly and its propensity to explosively separate causing grievous injury or death. Notwithstanding the actual knowledge of the dangerous and defective condition of the multi-piece wheel assembly, Caterpillar Inc. continued to market the defective and dangerous multi-piece wheel assembly without safety modifications or adequate warning. Also, Caterpillar Inc. failed to sell exclusively the single-piece wheel assembly which was available as standard equipment to purchasers of the road grader. Caterpillar Inc.’s actions in continuing to sell and distribute the road grader with the unreasonably dangerous, defective, and unmodified multi-piece wheel assembly installed rather than the available and safe single-piece wheel assembly and Caterpillar Inc.’s failure to warn of the dangers of the multi-piece wheel assembly were willful, reckless and wanton acts and such conduct justifies an award of punitive damages no less than ten times the award of compensatory damages awarded to I R= and S RM in this case.
43. As a result of the incident made the basis of this lawsuit described in paragraphs 8 – 13, Plaintiffs sustained the following damages which exceed the minimum jurisdictional limits of the court for which they seeks reimbursement:
- Past and future medical expenses;
- Past and future pain and suffering;
- Past and future impairment and disfigurement;
- Past and future mental anguish;
- Past lost wages and future loss of earning capacity; LosS of Consortium
XL: JURY DEMAND
44.Plaintiffs respectfully request a trial by jury.
WHEREFORE, PREMISES CONSIDERED, Plaintiffs GE R= and S= pray that the Defendants Caterpillar, Inc., Jerrold Howell, and Jerrold Howell Enterprises, Inc. doing business as JC’s Tire Services be cited to appear and answer herein, and that upon final trial hereof, Plaintiffs have and recover from Defendants judgment for all damages proved, including costs of court, pre judgment interest and interest from the date of judgment until same is paid, attorneys’ fees and costs, through trial and any appeal, and for such other and further relief, either at law or in equity, to which Plaintiffs have shown themselves justly entitled.
RO HELLE McCULLOUGH, L.L.P.
State Bar No. 02275800 M. Paige Tackett
State Bar No. 24083935
325 N. St. Paul Street, Suite 4500
Dallas, Texas 75201
(214) 953-0182 Telephone (214) 953-0185 Facsimile email@example.com ptackett@romclawyers,com
lames Andrew Carter
State Bar No. 24031801
The Law Office of James Andrew Carter P.O. Box 10050
Tyler, Texas 75711
(903) 509-4777 Telephone
(903) 509-4778 Facsimile firstname.lastname@example.org
ATTORNEYS FOR PLAINTIFFS