IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TE A 5
CASE NO. 2:07-CV- 294
THE HOME DEPOT USA, INC., d/b/a
PLAINTIFFS’ CGINAL PETITION
TO THE HONORABLE JUDGE:
NOW COMES BL and SE (“Plaintiffs”) and file this Original Petition (“Petition”) complaining of The Home Depot USA, Inc. (“Home Depot”) and for cause of action would respectfully show the Court:
1. Plaintiffs are residents of, Texas in Smith County. Plaintiffs’ residence renders them subject to the court’s jurisdiction.
2.Defendant Home Depot USA, Inc. is a Delaware corporation duly authorized to do business in the State of Texas who may be served with process by and through its registered agent, Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company, 701 Brazos Street, Suite 1050, Austin, Texas 78701. Defendant’s acts and omissions as alleged below render it subject to the court's jurisdiction.
II. JURISDICTION AND VENUE
3. The Court has jurisdiction of this matter based upon 28 U.S.C. § 1332. Plaintiffs and Defendant have complete diversity of citizenship and the amount in controversy exceeds the minimum jurisdictional threshold of the court.
4. Venue is proper in the Eastern District of Texas because events and/or omissions giving rise to Plaintiffs' claims occurred in the Eastern District of Texas.
5. On or about July 22, 2005, BL was an employee of the Home Depot located at 3901 Old Jacksonville Highway in Tyler, Texas. On the date in question, Mr. LIM was asked by managers to assist stocking sheet metal in another area of the store, despite the fact he was assigned to the hardware department, and had no previous experience in the handling and stocking of sheet metal. Mr. L was asked to assist with stocking sheet metal, Home Depot did not provide any type of adequate personal protective clothing in accordance with OSHA rules and regulations. In the course and scope of his employment, Mr. L suffered a severe laceration to his left wrist when he manually picked up a stack of sheet metal to place on an assigned shelf and the top piece of the v-shaped sheet metal slid downwards onto his left arm and wrist area causing the severe injury. The injury to Mr. L was so severe it severed a number of nerves and tendons requiring immediate emergency surgical repair and extensive medical rehabilitation. Mr. L has subsequently not regained the full use of his left arm and in fact has lost much sensation, flexibility and usage of the left arm, wrist and hand area as documented by medical professionals. Additionally, at all times relevant to the incident made the basis of this lawsuit, Home Depot was a non-subscriber to the Texas Workers Compensation Program.
IV. NEGLIGENCE HOME DEPOT
6. The incident made the basis of this lawsuit referred to in paragraph 5 and Mr. L, resulting injuries and damages were proximately caused by the negligent conduct of Home Depot in one or more of the following respects:
- In having employees perform inherent dangerous and hazardous duties in and around the store when same are untrained and/or un-experienced;
- In failing to provide adequate protective clothing and/or equipment and gear to employees while they perform inherent dangerous and hazardous duties;
- In failing to inform and/or warn employees of the potential dangers in performing dangerous and hazardous duties;
- In failing to provide a safe workplace for its employees as prescribed by law;
- In failing to adhere to a number of Occupational Safety and Health Administration (OSHA) rules and regulations regarding the handling, installation and storage of sheet metal and the proper clothing and/or personal protective equipment and/or gear to be used and/or worn in such endeavors.
Each of these acts and omissions, whether taken singularly or in combination, constituted negligence on behalf of Defendant Home Depot which was the proximate cause of the incident made the basis of this suit and the injuries and damages sustained by Plaintiff. Further, as a non-subscriber to the Texas Workers Compensation Program, Home Depot has effectively waived any of its common law defenses to Plaintiffs’ claims
V. GROSS NEGLIGENCE
7. Plaintiffs’ repeat and re-allege each and every preceding allegation as set forth in paragraphs 5 and 6. Each and all of the foregoing negligent acts and/or omissions, taken singularly or in combination, constitute grossly negligent conduct of the part of Home Depot in that such conduct represents willful, wanton, reckless and total disregard for the safety and welfare of Plaintiff BM/ LMI. As such, Plaintiff seeks punitive damages in such an amount as may be found to be proper under the facts and circumstances and which may compel Defendant Home Depot so as to not place other employees in similar positions in the future. Further, as a non-subscriber to the Texas Workers Compensation Program, Home Depot has effectively waived any of its common law defenses to Plaintiffs’ claims of gross-negligence.
8. As a direct result of the aforementioned incident in paragraph 5, Plaintiff sustained severe bodily injuries which included, but are not limited to, injuries to the radial artery, median nerve and superficial branch to the radial nerve along with several tendons in the left arm/wrist area. Additionally, the left median sensory nerve shows a complete conduction block, and the left median nerve has slowed impaired conduction and axonal loss and injury and damage to the Abductor Pollicis Brevis (ABP) muscle and injuries to nerves in the left thumb, index and middle fingers. Most of the injuries sustained by Plaintiff B are permanently debilitating in nature. The injuries mentioned have had a profound effect on Plaintiff’s health and well being. As a further result of the nature and consequences of his injuries, Plaintiff has suffered great physical pain and suffering, mental anguish and physical impairment and scarring and in all reasonable probability will continue to suffer in this manner for a long time into the future, if not for the balance of his natural life.
9. Plaintiff has also incurred past medical expenses which exceed the minimum jurisdictional limits of the court and in all likelihood, will continue to incur future medical expenses as a result of his debilitating injuries. Plaintiff has also suffered past lost wages and a loss of earning capacity for the future. Both of which exceed the minimal jurisdictional limits of the court.
VII. LOSS OF CONSORTIUM
10. Plaintiff B would further show that he was married to Plaintiff SEon the date of the incident and the basis of this lawsuit. As a direct and proximate result of the gross negligence of Defendant Home Depot as described above, there has been a substantial impairment of the marital relationship between Plaintiffs. Accordingly, Plaintiff has sustained a serious loss of the affection, solace, comfort, companionship, society and assistance that he previously received from his spouse in an amount which exceeds the minimal jurisdictional limits.
11. For the reasons stated above, Plaintiffs B and SE respectfully pray that Defendant Home Depot be cited to appear and answer herein, and upon final hearing, Plaintiffs have and recover from Defendant, compensation for past and future medical expenses, past and future pain and suffering, past and future mental anguish, past and future disfigurement and scarring, past lost wages and loss of earning capacity, costs of court, pre-judgment 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
LAW OFFICE OF GREGORY H. BEVEL
State Bar No. 02275800
Kerry Ann Miller, Esq.
State Bar No. 24050875
325 N. St. Paul Street
Dallas, Texas 75201
(214) 580-2555 Telephone
(214) 953-0185 Facsimile
ATTORNEYS FOR PLAINTIFFS
LAW OFFICE OF JAMES ANDREW CARTER
Esq. Bar No.
Tyler, Texas 75711
ATTORNEY FOR PLAINTIFFS