TARRANT COUNTY 12/3/2014 1:10:33 PM THOMAS A. WILDER
PLAINTIFFS’ FIRST AMENDED ORIGINAL PETITION AND REQUEST FOR
TO THE HONORABLE JUDGE:
NOW COME E. DI and DDI (“Mrs. DI” and “Mr. DI” and collectively, the “Plaintiffs”) complaining of Defendant CALAB, Inc. (“CALAB”), and file this, their First Amended Original Petition and Request for Disclosure, and for cause of action would respectfully show the Court:
1. E. D■and DDI bring this action for the damages they have sustained
as a direct and proximate result of CALAB’s failure to use ordinary care to protect E. DI for the dangers which CALAB knew, or should have known, existed on its premises at the time of her injury.
2. Plaintiffs are residents of Arlington, Tarrant County, Texas.
3. Defendant CALAB, Inc. is a Texas Corporation duly authorized to do business in the State of Texas. After due diligence has been made in attempting to serve its registered agent, Carol A. Anderson, Plaintiffs request that the Defendant be served through the Secretary of State via certified mail return receipt requested at P.O. Box 12079, Austin, Texas 78711.
III. VENUE AND JURISDICTION
4. Venue is proper in Tarrant County, Texas in that the events giving rise to this cause of action occurred in Tarrant County, Texas.
5. Jurisdiction is proper in that the damages sought well exceed the minimum jurisdictional limits of the Court.
6. 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.
7. CALAB is a private company that provides residential supervised living services for persons with disabilities in residential group homes it owns and operates. Upon information and belief, CALAB collects and/or is compensated from its residents’ state and federal disability benefits as payment for the residential supervised living services it provides.
8. At all relevant times, CALAB owned and operated the group home located at 3333 Harbourtown Drive, Grand Prairie, Texas 75052 (the “Group Home”).
9. At all relevant times, EWE was employed by CALAB to provide residents with personal assistance with activities of daily living at the 3333 Harbourtown Group Home.
10. E. DI was hired by CALAB in April 2014 to work the night shift at the Group Home. Her responsibilities included cooking, cleaning, doing laundry, bathing residents, dressing residents, distributing medications, and taking out the trash.
11. From the onset of her employment at CALAB, the Group Home garage door malfunctioned. Some days it would work properly, other days it would jam, and often it would not open automatically at all. Even so, employees had to use the garage daily because CALAB protocol required the company van to be parked in it. The garbage bins were also stored in the garage. When the garage would not open automatically, it had to be lifted manually by the Group Home employees. Mrs. DI observed this process on multiple occasions.
12. Mrs. DI herself had to manually lift the broken garage during her time at CALAB, both on her own and with the assistance of other employees.
13. Employees, including EM, recorded the problems with the faulty garage in the Group Home logbook and also reported them verbally to their Group Home supervisor.
14. On the morning of Friday, June 6, 2014, E. DEwas finishing her shift. She had packed lunches, gotten residents bathed and dressed, served breakfast, and helped load residents into the van for their day activities. Before going home, she took out the trash. Like other days, the garage door would not lift automatically. She lifted the heavy garage door by herself and felt a pain in her neck. She took out the trash and went home.
15. After her shift ended, Mrs. DI took a nap. She was awakened by severe nerve pain radiating from her neck and chest down to her left arm. Thinking she was having a heart attack, E. immediately went to a local emergency room and received a full chest work-up. She was discharged that evening with instructions to consult with a neurologist. Because it was the weekend, E. DI was unable to call the neurologist until Monday. Pending an appointment, Mrs. D■returned again to the emergency room in an ambulance on Sunday with severe and persistent pain.
16. After being treated in the emergency room again, E. DI immediately made her appointment with the neurologist that Monday and consulted with him Tuesday, the very next day. The neurologist reviewed EM’s MRI, which revealed a herniated disc in her neck, and promptly performed an emergency fusion on the herniated disc in her neck that next morning.
17. Mims suffered tremendously as a result of her neck injury. To this day E. still suffers tingling and throbbing pain in her left hand; the back of her left arm is completely numb. She cannot bear weight, lift heavy objects, and now has a limited range of motion in her left arm. She also has numbness in her chin and neck. This affects her ability to cook, clean, get dressed, bathe, stand, grip, among many other limitations she now experiences on a daily basis. She has tingling and significant weakness in her left leg. She now suffers from headaches regularly. In addition to the physical pain she has suffered, Mrs. DE has suffered severe emotional trauma.
18. As a result of this incident and the negligence of CALAB, Mrs. DE has suffered severe and lasting injuries, causing the Plaintiffs to incur significant damages.
19. Upon information and belief, CALAB knew that the Group Home had a defective garage for at least two months prior to E. Dl’s injury, but did not take any affirmative measures to repair or replace the defective garage door that would have likely prevented E. Dl’s injuries.
20. At all relevant times, CALAB had elected to forego purchasing workers’ compensation insurance, and was therefore a non-subscriber pursuant to Texas Labor Code § 406.004(a). CALAB is therefore deprived, by operation of Texas Labor Code § 406.033, of the defenses of contributory negligence, negligence of E. Dl’s fellow employee, and assumption of the risk.
VI. CAUSES OF ACTION
COUNT 1: NEGLIGENCE
21. Plaintiffs adopt and incorporate each and every allegation of the aforementioned paragraphs as if set forth herein verbatim.
22. The incident made the basis of this lawsuit and Plaintiffs’ resulting injuries and damages were proximately caused by the negligent conduct of CALAB in one or more of the following respects:
- In failing to provide and maintain a safe working environment for E. DE.
- In creating an unreasonably condition in an area of the Group Home under CALAB’s control;
- In failing to maintain an area of the Group Home under CALAB’s control in a reasonably safe and prudent manner;
- In failing to install and maintain a functioning garage door at the Group Home;
- In failing to timely respond to Plaintiff’s request for repair of the defective garage door at the Group Home;
- In failing to correct and/or repair an unreasonably dangerous condition existing in an area of the Group Home under CALAB’s control; and
- In failing to eliminate the unreasonable risk of harm created by the defect in the garage door opener at the Group Home under CALAB’s control.
23. The lack of maintenance on the part of CALAB exposed E. DI to an unnecessary and unreasonable risk of harm which foreseeably lead to her being physically harmed by the faulty garage door.
24. Each of these foregoing acts and omissions, whether taken singularly or in combination, constituted negligence on behalf of CALAB which was the proximate cause of the incident made the basis of this lawsuit and the subsequent injuries and damages sustained by Plaintiffs.
COUNT 2: PREMISES LIABILITY
25. Plaintiffs adopt and incorporate each and every allegation of the aforementioned paragraphs as if set forth herein verbatim and allege that CALAB owed them a duty of ordinary care to keep the areas of the Group Home it controlled in a reasonably safe condition.
26. CALAB breach the aforementioned duty in one or more of the following respects:
- In failing to inspect the garage door of the Group Home and warn invitees of the dangerous condition caused by the garage door’s defect, which it knew or should have known posed an unreasonable risk of harm;
- In failing to cure the dangerous condition posed by the defective garage door, which it knew or should have known posed an unreasonable risk of harm; and
- In failing to place barriers of warning to alert E. DI of the hazardous condition posed by the defective garage door.
27. Each of these foregoing acts and omissions, whether taken singularly or in combination, was a breach of CALAB’s duties to Plaintiffs and is the proximate cause of the incident made the basis of this suit and the injuries and damages sustained by Plaintiffs.
28. As a direct and proximate cause of CALAB’s negligence, EMDE sustained severe bodily injuries which included, but are not limited to, numbness in her arms and tingling in her hand. Some of the injuries sustained by Mrs. DE are permanent in nature. The injuries mentioned have had an adverse effect on Mrs. Dl’s health and wellbeing, and as a further result of the nature and consequences of her injuries, Mrs. DE 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. DE has also suffered permanent scarring and disfigurement.
29, E. DE 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 her injuries.
30. EMDE has also incurred past lost wages and will incur future lost wages due to the injuries she suffered in this incident.
31. E. D■would further show that she was married to Mr. DE 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 CALAB 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.
VIII. JURY DEMAND
32. Plaintiffs hereby demand a trial by jury. The jury fee has been paid.
IX. REQUEST FOR DISCLOSURE
33.Under Texas Rule of Civil Procedure 194, Plaintiffs request that Defendants disclose, within 50 days of the service of this request, the information or material described in Rule 194.2.
WHEREFORE, PREMISES CONSIDERED, Plaintiffs respectfully pray that Defendant CALAB, Inc. be cited to appear and answer herein, and upon final hearing, Plaintiffs have and recover from CALAB compensation for past and future medical expenses, past and future pain and suffering, past and future emotional distress and mental anguish, past and future impairment and disfigurement, lost wages in the past and future, diminished earning capacity in the future, punitive damages, 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 entitled.
ROCHELLE MCCULLOUGH, L.L.P.
By: /s/ Gregory H. Bevel
Gregory H. Bevel
State Bar No. 02275800 firstname.lastname@example.org
Madeline P. Tackett State Bar No. 24083935
325 N. St. Paul Street, Suite 4500
Dallas, Texas 75201
(214) 953-0182 Telephone (214) 953-0185 Facsimile
ATTORNEYS FOR PLAINTIFFS