Docstoc

Plaintiff

Document Sample
Plaintiff Powered By Docstoc
					                                                        IN THE FIFTEENTH JUDICIAL
                                                        CIRCUIT IN AND FOR PALM
                                                        BEACH COUNTY, FLORIDA


BRIAN JOSEPH KELLEY, as Personal                        CASE NO:
Representative of the Estate of DODI ANDORA
KELLEY,

                       Plaintiff,

vs.

FORD MOTOR COMPANY, TRW, INC., TRW
AUTOMOTIVE, INC., TRW AUTOMOTIVE
HOLDING CORPORATION, WASTE
MANAGEMENT, INC., of FLORIDA, TEREX,
INC., GOODBREAD OF FLORIDA, INC., and
G 4 LAND & CATTLE COMPANY,

                 Defendants.
__________________________________________/

                       COMPLAINT AND DEMAND FOR JURY TRIAL

       Plaintiff Brian Joseph Kelley, as Personal Representative of the Estate of Dodi Andora

Kelley, and on behalf of his minor sons, Ian Kelley and Sebastian Kelley, and hereby sues

Defendants Ford Motor Company and Waste Management, Inc., of Florida, and states as

follows:

                                    GENERAL ALLEGATIONS

       1.      This is an action for damages in excess of $15,000.00, exclusive of costs, interest

and attorney’s fees.

       2.      This action is brought by Plaintiff, Brian Joseph Kelley, as Personal

Representative of the Estate of Dodi Andora Kelley, and as parent and next friend of his minor

sons, Ian Kelley and Sebastian Kelley.
       3.        Brian Kelley is the duly appointed Personal Representative of the Estate of Dodi

Andora Kelley, as reflected in the Letters of Administration attached hereto as Exhibit A. Brian

Kelley is the husband of Dodi Andora Kelley, deceased, and the father of Ian Kelley and

Sebastian Kelley.

       4.        Brian Kelley and his sons, Ian Kelley and Sebastian Kelley, are residents of

Okeechobee, Florida.

       5.        The potential beneficiaries of the Estate of Dodi Andora Kelley in this wrongful

death action and the relationship of each to the decedent are as follows:

            a.       Bryan Kelley – surviving husband;

            b.       Ian Kelley – surviving minor son;

            c.       Sebastian Kelley - surviving minor son; and

            d.       The Estate of Dodi Andora Kelley.

       6.        Defendant Ford Motor Company (“Ford”) is a Delaware corporation that

regularly conducts business in the state of Florida and in Palm Beach County, Florida. Ford

designed, manufactured, assembled, marketed and sold the 2002 Ford F250 truck, VIN #

1FTNW21F92ED33144, (the “subject truck”) at issue in this case.

       7.        Plaintiff sues Ford for negligence and strict liability.

       8.        TRW, Inc., TRW Automotive, Inc., and TRW Automotive Holdings Corp.

(collectively “TRW”) are corporations organized under the laws of Delaware that regularly

conduct business in the state of Florida and in Palm Beach County, Florida. TRW designed,

developed, manufactured, and supplied the passenger restraints, including the seatbelt buckles

and their component parts, for the subject truck.

       9.        Plaintiff sues TRW for negligence and strict liability.




                                                     2
       10.     Defendant Waste Management, Inc. of Florida (“Waste Management”) is a

Florida corporation that regularly conducts business in the state of Florida and in Palm Beach

County, Florida. Waste Management operated a landfill on N.E. 128th Avenue in Okeechobee,

Florida, and was responsible for maintaining the condition of the road in the area where the

subject incident occurred.

       11.     Plaintiff sues Waste Management for negligence.

       12.     Defendant Terex, Inc., (“Terex”) is a Florida corporation. Upon information and

belief, Terex transported dirt, soil, sand, or other materials to, from, or on N.E. 128th Avenue in

Okeechobee, Florida in the area where the subject incident occurred.

       13.     Plaintiff sues Terex for negligence.

       14.     Defendant Goodbread of Florida, Inc. (“Goodbread”) is a Florida corporation.

Upon information and belief, Goodbread transported dirt, soil, sand, or other materials to, from,

or on N.E. 128th Avenue in Okeechobee, Florida in the area where the subject incident occurred.

       15.     Plaintiff sues Goodbread for negligence.

       16.     Defendant G 4 Land & Cattle Company (“G 4 Land & Cattle”) is a Florida

corporation. Upon information and belief, G 4 Land & Cattle transported dirt, soil, sand, or

other materials to, from, or on N.E. 128th Avenue in Okeechobee, Florida in the area where the

subject incident occurred.

       17.     Plaintiff sues G 4 Land & Cattle Company for negligence.

       18.     On or about, March 9, 2005, Dodi Andora Kelley, deceased, was operating the

subject truck southbound on N.E. 128th Avenue in Okeechobee, Florida. Ian and Sebastian

Kelley were seated in the rear seats of the truck. All three occupants were properly and fully

restrained by the vehicle’s seatbelts.




                                                 3
         19.   The weather that day had been wet. Because of artificial berms formed on the

shoulders of N.E. 128th Avenue, standing water had accumulated on the road. The berms were

comprised of dirt, soil, sand, or other materials that fell from the trucks of Defendants Terex,

Goodbread, and/or G 4 Land & Cattle as they transported such materials to from or on the

landfill operated by Defendant Waste Management on N.E. 128th Avenue.

         20.   These artificial berms developed over a period of time from the dirt, soil, sand, or

other materials from the trucks of Defendants Terex, Goodbread, and/or G 4 Land & Cattle. As

a result, Defendant Waste Management has had long-standing notice of the berms and the

dangers they posed through the creation of standing water on N.E. 128th Avenue.             Waste

Management had received numerous complaints about standing water on N.E. 128th Avenue

caused by the berms.

         21.   Despite this long-standing notice, Waste Management failed to prevent or remove

the berms from the shoulder of roadway of N.E. 128th Avenue. As a result, standing water had

accumulated on N.E. 128th Avenue on March 9, 2005.

         22.   As Dodi Andora Kelley and her sons traveled on. N.E. 128th Avenue that day, the

subject truck encountered a large amount of standing water on the road, which caused the truck

to suddenly and unexpectedly go out of control, leave the roadway, and roll over into a ditch

where it came to rest on its roof. After coming to rest, the cab of the truck began to fill with

water.

         23.   All three occupants were trapped in the cab. Ian Kelley and Sebastian Kelley

were able to release their seatbelts so they could rise to the top for air as the cab filled with

water.




                                                 4
        24.    Despite repeated efforts, Dodi Andora Kelley, was unable to release her seatbelt.

Ian Kelley and Sebastian Kelley also made heroic efforts to release their mother’s seatbelt so she

could get to the dwindling air space at the top of the cab, but were unable to do so. Ian Kelley

and Sebastian Kelley sat in the truck’s cab as it filled with water and sat beside their mother as

they watched her drown.

        25.    At all material times, Dodi Andora Kelley exercised due care and was properly

using the subject vehicle for the use and in the matter for which it was designed and sold.

         COUNT I – AGAINST FORD MOTOR COMPANY FOR NEGLIGENCE

        26.    Plaintiff re-alleges and re-incorporates the allegations in paragraphs 1-25 above.

        27.    Ford had a duty to design, develop, manufacture, market, assemble, test, distribute

and sell the subject vehicle so as to avoid exposing Dodi Andora Kelley to unnecessary and

unreasonable risks.

        28.    Ford breeched its aforesaid duty of care in one or more of the following ways:

               a. By negligently designing, testing, and manufacturing the subject vehicle’s

                      restraint systems, in particular the front seat lap belt seatbelt buckle, shoulder

                      belt, locking mechanism, anchorages and latch configuration, thus trapping

                      Dodi Andora Kelley in her seat and preventing her from escaping while the

                      vehicle was inverted.

               b. By negligently designing the vehicle from a handling and stability standpoint;

               c. By negligently failing to adequately test the vehicle’s handling and stability

                      characteristics;

               d. By negligently designing and manufacturing the vehicle with inadequate rollover

                      resistance;




                                                     5
e. By negligently designing the vehicle from an occupant protection standpoint;

f. By negligently designing the vehicle with a poor roof structure thus causing

   the roof structure to fail to maintain its integrity during a reasonably

   foreseeable rollover;

g. By negligently designing, testing, and manufacturing a the subject vehicle’s

   restraint systems, in particular the front seat lap belt, shoulder belt, locking

   mechanism, anchorages and latch configuration thus failing to fully restrain

   Dodi Andora Kelley in her seat and thus allowing her to move towards the

   roof structure during the rollover;

h. By failing to adequately warn foreseeable users of the unreasonable dangerous

   and defective condition(s) of the vehicle despite that Ford knew or should have

   known the unreasonably dangerous condition(s);

i. By failing to disclose known problems and defects;

j. By marketing the vehicle as a safe and stable passenger vehicle;

k. By failing to meet or exceed internal corporate guidelines;

l. By failing to inform the consumer, including the decedents, of information

   that Ford knew about rollover and roof crush risks in the subject vehicle, thus

   depriving the decedents of the right to make a conscious or free choice in light

   of the known risks of operating the subject vehicle;

m. By failing to comply with reasonable and necessary Federal Motor Vehicle

   Safety Standards;

n. By failing to notify consumers, as required by law, that a defect exists in the

   vehicle that relates to public safety; and




                                   6
               o. By failing to recall the vehicle or alternatively retrofitting the vehicle to

                    enhance safety

       29.     As a direct and proximate cause of the aforementioned negligence of Ford, Dodi

Andora Kelley suffered fatal injuries and Ford is responsible for her death and damages as set

forth below:

               a.       Bryan Kelley, the surviving husband of Dodi Andora Kelly, deceased, has

               suffered and will continue to suffer the loss of his wife’s support and services; has

               experienced mental pain and suffering in the past and will continue to suffer such

               losses in the future; and has incurred medical and funeral expenses due to his wife’s

               injury and death;

               b.       Ian Kelley, the surviving minor son of Dodi Andora Kelley, deceased, has

               suffered and will continue to suffer the loss of his mother’s support and services,

               companionship, instruction and guidance; has experienced mental pain and suffering

               in the past and will continue to suffer such losses in the future; and has incurred

               medical and funeral expenses due to his mother’s injury and death;

               c.       Sebastian Kelley, the surviving minor son of Dodi Andora Kelley, deceased,

               has suffered and will continue to suffer the loss of his mother’s support and services,

               companionship, instruction and guidance; has experienced mental pain and suffering

               in the past and will continue to suffer such losses in the future; and has incurred

               medical and funeral expenses due to his mother’s injury and death; and

               d.       The Estate of Dodi Andora Kelley has lost prospective net accumulations

               and has incurred medical and funeral expenses due to the decedent’s injury and

               death.




                                                  7
       WHEREFORE, Plaintiff Brian Joseph Kelley demands judgment for compensatory

damages and costs against Defendant Ford Motor Company, and further demands trial by jury of

all issues so triable as a matter of right. Further, Plaintiff reserves the right to amend this

Complaint to add a claim for punitive damages pursuant to Fla. Stat. §768.72.

                     COUNT II – STRICT LIABILITY AGAINST FORD

       30.     Plaintiff re-alleges and re-incorporates the allegations in paragraphs 1-25 above.

       31.     At all material times, Ford designed, developed, manufactured, marketed,

assembled, tested, distributed, sold and placed in the stream of commerce the subject vehicle.

       32.     At all material times, the subject vehicle was unreasonably dangerous and defective

because:

               a. The vehicle was defective from a handling and stability standpoint;

               b. The vehicle was defective because it was designed and manufactured

                   with poor rollover resistance;

               c. The vehicle was defective from an occupant protection standpoint;

               d. The vehicle’s roof structure was defective, thus causing the roof

                   structure to fail to maintain its integrity during a reasonably foreseeable

                   rollover

               e. The vehicle’s front seat restraint systems were defective, in particular the lap

                   belt,   shoulder    belt,   locking    mechanism,      anchorages     and     latch

                   configuration, thus failing to fully restrain Dodi Andora Kelley in her seat and

                   thus allowing her to move towards the roof structure during the rollover;

               f. The vehicle’s restraint systems were defective, in particular the front seat lap

                   belt, shoulder belt, seatbelt buckle, locking mechanism, anchorages and latch




                                                    8
                     configuration, thus trapping Dodi Andora Kelley in her seat and preventing

                     her from escaping while the vehicle was inverted;

                g. The vehicle was defective for failing to be a safe and stable

                     passenger vehicle;

                h. The vehicle was defective for failing to meet or exceed internal

                     corporate guidelines;

                i. The vehicle was defective for failing to comply with applicable and necessary

                     Federal Motor Vehicle Safety Standards;

                j. The vehicle was defective for failing to comply with the standards of care

                     applicable in the automotive industry insofar as providing reasonable

                     occupant protection in a rollover; and

                k. The vehicle was defective for failing to provide adequate warning to

                     foreseeable users of the unreasonable, dangerous and defective condition of

                     the vehicle despite that Ford knew or should have known the unreasonably,

                     dangerous conditions.

        33.     These unreasonably dangerous defects were present in the vehicle when it was

placed into the stream of commerce by Ford and the vehicle did not undergo material change or

alteration up to and including the time of the aforementioned crash.

        34.     As a direct and proximate result of the aforementioned defects, Dodi Andora Kelley

suffered fatal injuries for which Ford is strictly liable for damages as set forth below:

                a.      Bryan Kelley, the surviving husband of Dodi Andora Kelly, deceased, has

                suffered and will continue to suffer the loss of his wife’s support and services; has

                experienced mental pain and suffering in the past and will continue to suffer such




                                                     9
               losses in the future; and has incurred medical and funeral expenses due to his wife’s

               injury and death;

               b.       Ian Kelley, the surviving minor son of Dodi Andora Kelley, deceased, has

               suffered and will continue to suffer the loss of his mother’s support and services,

               companionship, instruction and guidance; has experienced mental pain and suffering

               in the past and will continue to suffer such losses in the future; and has incurred

               medical and funeral expenses due to his mother’s injury and death;

               c.       Sebastian Kelley, the surviving minor son of Dodi Andora Kelley, deceased,

               has suffered and will continue to suffer the loss of his mother’s support and services,

               companionship, instruction and guidance; has experienced mental pain and suffering

               in the past and will continue to suffer such losses in the future; and has incurred

               medical and funeral expenses due to his mother’s injury and death; and

               d.       The Estate of Dodi Andora Kelley has lost prospective net accumulations

               and has incurred medical and funeral expenses due to the decedent’s injury and

               death.

       WHEREFORE, Plaintiff Brian Joseph Kelley demands judgment for compensatory

damages and costs against Defendant Ford Motor Company, and further demands trial by jury of

all issues so triable as a matter of right. Further, Plaintiff reserves the right to amend this

Complaint to add a claim for punitive damages pursuant to Fla. Stat. §768.72.

                            COUNT III – NEGLIGENCE AGAINST TRW

       35.     Plaintiff re-alleges and re-incorporates the allegations in paragraphs 1-25 above.

       36.     TRW had a duty to design, develop, manufacture, test and supply the front seat

seatbelt restraints, including the seatbelt buckles and their component parts for the subject 2002




                                                  10
Ford F250 truck so as to avoid exposing Dodi Andora Kelley to unnecessary and unreasonable

risks

        37.    TRW also had a duty to warn consumers, including Dodi Andora Kelley,

deceased, of any unreasonably dangerous conditions regarding the front seat seatbelt restraints,

including the seatbelt buckles, in the 2002 Ford F250 truck.

        38.    TRW breached these duties in one or more of the following ways:

               a.     By designing, developing, manufacturing, testing and supplying the

               truck’s front seat seatbelt restraint, including the lap belt, shoulder belt, and

               seatbelt buckles and their component parts, locking mechanism, anchorages and

               latch configuration, in such a manner that it trapped Dodi Andora Kelley in her

               seat and prevented her from escaping while the belt was under load and/or the

               vehicle was inverted; and

                      b.      By failing to adequately warn foreseeable users, including Dodi

               Andora Kelley, that the front seat seatbelt restraint system and seatbelt buckles were

               prone to locking, jamming, or to a condition in which it could not be released when

               the belt was under load or when the vehicle was inverted.

        39.    As a direct and proximate cause of the aforementioned negligence of TRW Dodi

Andora Kelley suffered fatal injuries and TRW is responsible for her death and damages as set

forth below:

               a.     Bryan Kelley, the surviving husband of Dodi Andora Kelly, deceased, has

               suffered and will continue to suffer the loss of his wife’s support and services; has

               experienced mental pain and suffering in the past and will continue to suffer such




                                                 11
               losses in the future; and has incurred medical and funeral expenses due to his wife’s

               injury and death;

               b.       Ian Kelley, the surviving minor son of Dodi Andora Kelley, deceased, has

               suffered and will continue to suffer the loss of his mother’s support and services,

               companionship, instruction and guidance; has experienced mental pain and suffering

               in the past and will continue to suffer such losses in the future; and has incurred

               medical and funeral expenses due to his mother’s injury and death;

               c.       Sebastian Kelley, the surviving minor son of Dodi Andora Kelley, deceased,

               has suffered and will continue to suffer the loss of his mother’s support and services,

               companionship, instruction and guidance; has experienced mental pain and suffering

               in the past and will continue to suffer such losses in the future; and has incurred

               medical and funeral expenses due to his mother’s injury and death; and

               d.       The Estate of Dodi Andora Kelley has lost prospective net accumulations

               and has incurred medical and funeral expenses due to the decedent’s injury and

               death.

       WHEREFORE, Plaintiff Brian Joseph Kelley demands judgment for compensatory

damages and costs against Defendant TRW, Inc., TRW Automotive, Inc., and TRW Automotive

Holdings Corp., and further demands trial by jury of all issues so triable as a matter of right.

Further, Plaintiff reserves the right to amend this Complaint to add a claim for punitive damages

pursuant to Fla. Stat. §768.72.

                    COUNT IV – STRICT LIABILITY AGAINST TRW

       40.     Plaintiff re-alleges and re-incorporates the allegations in paragraphs 1-25 above.




                                                  12
        41.     At all material times, TRW designed, developed, manufactured, tested and supplied

the front seat seatbelt restraint for the subject 2002 Ford F250.

        42.     At all material times, the subject vehicle’s front seat seatbelt restraints, including the

seatbelt buckles, were unreasonably dangerous and defective because:

                a.      The truck’s front seat seatbelt restraint system, including the lap belt,

                shoulder belt, seatbelt buckles and their component parts, locking mechanism,

                anchorages and latch configuration, it trapped Dodi Andora Kelley in her seat and

                prevented her from escaping while the belt was under load and/or the vehicle was

                inverted; and

                b.      The front seat seatbelt restraint system and seatbelt buckles lacked any

                warnings that they was prone to locking, jamming, or to a condition in which it

                could not be released when the belt was under load or when the vehicle was inverted

        43.     These unreasonably dangerous defects were present in the front seat seatbelt restraint

system when it was placed into the stream of commerce by TRW and the vehicle did not undergo

material change or alteration up to and including the time of the aforementioned crash.

        44.     As a direct and proximate result of the aforementioned defects, Dodi Andora Kelley

suffered fatal injuries for which TRW is strictly liable for damages as set forth below:

                a.      Bryan Kelley, the surviving husband of Dodi Andora Kelly, deceased, has

                suffered and will continue to suffer the loss of his wife’s support and services; has

                experienced mental pain and suffering in the past and will continue to suffer such

                losses in the future; and has incurred medical and funeral expenses due to his wife’s

                injury and death;




                                                    13
               b.       Ian Kelley, the surviving minor son of Dodi Andora Kelley, deceased, has

               suffered and will continue to suffer the loss of his mother’s support and services,

               companionship, instruction and guidance; has experienced mental pain and suffering

               in the past and will continue to suffer such losses in the future; and has incurred

               medical and funeral expenses due to his mother’s injury and death;

               c.       Sebastian Kelley, the surviving minor son of Dodi Andora Kelley, deceased,

               has suffered and will continue to suffer the loss of his mother’s support and services,

               companionship, instruction and guidance; has experienced mental pain and suffering

               in the past and will continue to suffer such losses in the future; and has incurred

               medical and funeral expenses due to his mother’s injury and death; and

               d.       The Estate of Dodi Andora Kelley has lost prospective net accumulations

               and has incurred medical and funeral expenses due to the decedent’s injury and

               death.

       WHEREFORE, Plaintiff Brian Joseph Kelley demands judgment for compensatory

damages and costs against Defendant TRW, Inc., TRW Automotive, Inc., and TRW Automotive

Holdings Corp., and further demands trial by jury of all issues so triable as a matter of right.

Further, Plaintiff reserves the right to amend this Complaint to add a claim for punitive damages

pursuant to Fla. Stat. §768.72.

         COUNT V – NEGLIGENCE AGAINST WASTE MANAGEMENT, INC.

       45.     Plaintiff re-alleges and re-incorporates the allegations in paragraphs 1-25 above.

       46.     Waste Management used trucks to carry dirt, soil, and/or sand on Northeast 128th

Avenue. In doing so, Waste Management caused or allowed dirt, soil and/or sand to fall onto the

road and shoulder of Northeast 128th Avenue. The build-up of this dirt, soil and/or sand created




                                                  14
berms on the shoulder of Northeast 128th Avenue in the area of the subject accident. These

berms prohibited water from draining from the road, allowed water to collect on the road, and

thereby created a dangerous condition of standing water in the area of the accident. This

dangerous condition caused Dodi Andora Kelley to lose control of the subject truck, which

caused the truck to rollover.

       47.     Waste Management had a duty not to create dangerous conditions in the area of

the accident on Northeast 128th Avenue.

       48.     Waste Management also had a law duty to maintain the area of the accident on

Northeast 128th Avenue in a reasonably safe condition, and to ensure that it was free from

dangerous conditions and hazards.

       49.     Waste Management had a duty to maintain the area of the accident on Northeast

128th Avenue with a four-foot-wide paved shoulder.

       50.     Waste Management breached these duties in one or more of the following ways:

               a. Creating a dangerous condition of berms that caused standing water to

                   accumulate in the area of the accident on Northeast 128th Avenue where it

                   presented a hazard to drivers such as Dodi Andora Kelley;

               b. Failing to maintain the road and/or shoulder by allowing dirt and grass to

                   accumulate and/or grow over the shoulder to create berms on the side of the

                   road, thereby allowing standing water to accumulate on the road where it

                   presented a hazard to drivers such as Dodi Andora Kelley;

               c. Failing to maintain the area of accident on Northeast 128th Avenue with four-

                   foot-wide shoulder, thereby allowing standing water to accumulate on the

                   road where it presented a hazard to drivers such as Dodi Andora Kelley;




                                                15
              d. Otherwise failing to act with due care under the circumstances to maintain

                   Northeast 128th Avenue so that it was free from dangerous conditions and/or

                   hazards.

       51.    As a direct and proximate cause of these breaches, Waste Management is

responsible for the death of Dodi Andora Kelley and for damages as set forth below:

              a.      Bryan Kelley, the surviving husband of Dodi Andora Kelly, deceased, has

              suffered and will continue to suffer the loss of his wife’s support and services; has

              experienced mental pain and suffering in the past and will continue to suffer such

              losses in the future; and has incurred medical and funeral expenses due to his wife’s

              injury and death;

              b.      Ian Kelley, the surviving minor son of Dodi Andora Kelley, deceased, has

              suffered and will continue to suffer the loss of his mother’s support and services,

              companionship, instruction and guidance; has experienced mental pain and suffering

              in the past and will continue to suffer such losses in the future; and has incurred

              medical and funeral expenses due to his mother’s injury and death;

              c.      Sebastian Kelley, the surviving minor son of Dodi Andora Kelley, deceased,

              has suffered and will continue to suffer the loss of his mother’s support and services,

              companionship, instruction and guidance; has experienced mental pain and suffering

              in the past and will continue to suffer such losses in the future; and has incurred

              medical and funeral expenses due to his mother’s injury and death; and

              d.      The Estate of Dodi Andora Kelleyhas lost prospective net accumulations and

              has incurred medical and funeral expenses due to the decedent’s injury and death.




                                                 16
       WHEREFORE, Brian Joseph Kelley, as Personal Representative of the Estate of Dodi

Andora Kelley, demands judgment for compensatory damages and costs against Waste

Management, Inc., of Florida and further demands trial by jury of all issues as triable as a matter

of right. Further, Plaintiff reserves the right to amend this Complaint to add a claim for punitive

damages pursuant to Fla. Stat. §768.72.

                      COUNT VI – NEGLIGENCE AGAINST TEREX

       52.     Plaintiff re-alleges and re-incorporates the allegations in paragraphs 1-25 above.

       53.     Terex used trucks to carry dirt, soil, and/or sand on Northeast 128th Avenue. In

doing so, Terex caused or allowed dirt, soil and/or sand to fall onto the road and shoulder of

Northeast 128th Avenue. The build-up of this dirt, soil and/or sand created berms on the shoulder

of Northeast 128th Avenue in the area of the subject accident. These berms prohibited water

from draining from the road, allowed water to collect on the road, and thereby created a

dangerous condition of standing water in the area of the accident. This dangerous condition

caused Dodi Andora Kelley to lose control of the subject truck, which caused the truck to

rollover.

       54.     Terex had a duty not to create dangerous conditions in the area of the accident on

Northeast 128th Avenue.

       55.     Terex breached this duty by dumping dirt, soil, and/or sand or allowing dirt, soil,

and/or sand to fall onto the road and shoulder of Northeast 128th Avenue, which created a

dangerous condition that caused standing water to accumulate in the area of the accident on

Northeast 128th Avenue where it presented a hazard to drivers such as Dodi Andora Kelley;

       56.     As a direct and proximate cause of these breaches, Terex is responsible for the

death of Dodi Andora Kelley and for damages as set forth below:




                                                 17
               a.        Bryan Kelley, the surviving husband of Dodi Andora Kelly, deceased, has

               suffered and will continue to suffer the loss of his wife’s support and services; has

               experienced mental pain and suffering in the past and will continue to suffer such

               losses in the future; and has incurred medical and funeral expenses due to his wife’s

               injury and death;

               b.        Ian Kelley, the surviving minor son of Dodi Andora Kelley, deceased, has

               suffered and will continue to suffer the loss of his mother’s support and services,

               companionship, instruction and guidance; has experienced mental pain and suffering

               in the past and will continue to suffer such losses in the future; and has incurred

               medical and funeral expenses due to his mother’s injury and death;

               c.        Sebastian Kelley, the surviving minor son of Dodi Andora Kelley, deceased,

               has suffered and will continue to suffer the loss of his mother’s support and services,

               companionship, instruction and guidance; has experienced mental pain and suffering

               in the past and will continue to suffer such losses in the future; and has incurred

               medical and funeral expenses due to his mother’s injury and death; and

               d.        The Estate of Dodi Andora Kelleyhas lost prospective net accumulations and

               has incurred medical and funeral expenses due to the decedent’s injury and death.

       WHEREFORE, Brian Joseph Kelley, as Personal Representative of the Estate of Dodi

Andora Kelley, demands judgment for compensatory damages and costs against Terex, Inc., of

Florida and further demands trial by jury of all issues as triable as a matter of right. Further,

Plaintiff reserves the right to amend this Complaint to add a claim for punitive damages pursuant

to Fla. Stat. §768.72.




                                                  18
                    COUNT VII- NEGLIGENCE AGAINST GOODBREAD

       57.     Plaintiff re-alleges and re-incorporates the allegations in paragraphs 1-25 above.

       58.     Goodbread used trucks to carry dirt, soil, and/or sand on Northeast 128th Avenue.

In doing so, Goodbread caused or allowed dirt, soil and/or sand to fall onto the road and shoulder

of Northeast 128th Avenue. The build-up of this dirt, soil and/or sand created berms on the

shoulder of Northeast 128th Avenue in the area of the subject accident. These berms prohibited

water from draining from the road, allowed water to collect on the road, and thereby created a

dangerous condition of standing water in the area of the accident. This dangerous condition

caused Dodi Andora Kelley to lose control of the subject truck, which caused the truck to

rollover.

       59.     Goodbread had a law duty not to create dangerous conditions in the area of the

accident on Northeast 128th Avenue.

       60.     Goodbread breached this duty by dumping dirt, soil, and/or sand or allowing dirt,

soil, and/or sand to fall onto the road and shoulder of Northeast 128th Avenue, which created a

dangerous condition that caused standing water to accumulate in the area of the accident on

Northeast 128th Avenue where it presented a hazard to drivers such as Dodi Andora Kelley;

       61.     As a direct and proximate cause of these breaches, Goodbread is responsible for

the death of Dodi Andora Kelley and for damages as set forth below:

               a.     Bryan Kelley, the surviving husband of Dodi Andora Kelly, deceased, has

               suffered and will continue to suffer the loss of his wife’s support and services; has

               experienced mental pain and suffering in the past and will continue to suffer such

               losses in the future; and has incurred medical and funeral expenses due to his wife’s

               injury and death;




                                                 19
               b.      Ian Kelley, the surviving minor son of Dodi Andora Kelley, deceased, has

               suffered and will continue to suffer the loss of his mother’s support and services,

               companionship, instruction and guidance; has experienced mental pain and suffering

               in the past and will continue to suffer such losses in the future; and has incurred

               medical and funeral expenses due to his mother’s injury and death;

               c.      Sebastian Kelley, the surviving minor son of Dodi Andora Kelley, deceased,

               has suffered and will continue to suffer the loss of his mother’s support and services,

               companionship, instruction and guidance; has experienced mental pain and suffering

               in the past and will continue to suffer such losses in the future; and has incurred

               medical and funeral expenses due to his mother’s injury and death; and

               d.      The Estate of Dodi Andora Kelleyhas lost prospective net accumulations and

               has incurred medical and funeral expenses due to the decedent’s injury and death.

       WHEREFORE, Brian Joseph Kelley, as Personal Representative of the Estate of Dodi

Andora Kelley, demands judgment for compensatory damages and costs against Goodbread of

Florida, Inc., and further demands trial by jury of all issues as triable as a matter of right.

Further, Plaintiff reserves the right to amend this Complaint to add a claim for punitive damages

pursuant to Fla. Stat. §768.72.

      COUNT VIII – NEGLIGENCE AGAINST G 4 LAND & CATTLE COMPANY

       62.     Plaintiff re-alleges and re-incorporates the allegations in paragraphs 1-25 above.

       63.     G 4 Land & Cattle used trucks to carry dirt, soil, and/or sand on Northeast 128th

Avenue. In doing so, G 4 Land & Cattle caused or allowed dirt, soil and/or sand to fall onto the

road and shoulder of Northeast 128th Avenue. The build-up of this dirt, soil and/or sand created

berms on the shoulder of Northeast 128th Avenue in the area of the subject accident. These




                                                  20
berms prohibited water from draining from the road, allowed water to collect on the road, and

thereby created a dangerous condition of standing water in the area of the accident.            This

dangerous condition caused Dodi Andora Kelley to lose control of the subject truck, which

caused the truck to rollover.

          64.   G 4 Land & Cattle had a duty not to create dangerous conditions in the area of the

accident on Northeast 128th Avenue.

          66.   G 4 Land & Cattle breached this duty by dumping dirt, soil, and/or sand or

allowing dirt, soil, and/or sand to fall onto the road and shoulder of Northeast 128th Avenue,

which created a dangerous condition that caused standing water to accumulate in the area of the

accident on Northeast 128th Avenue where it presented a hazard to drivers such as Dodi Andora

Kelley;

          65.   As a direct and proximate cause of these breaches, G 4 Land & Cattle is

responsible for the death of Dodi Andora Kelley and for damages as set forth below:

                a.     Bryan Kelley, the surviving husband of Dodi Andora Kelly, deceased, has

                suffered and will continue to suffer the loss of his wife’s support and services; has

                experienced mental pain and suffering in the past and will continue to suffer such

                losses in the future; and has incurred medical and funeral expenses due to his wife’s

                injury and death;

                b.     Ian Kelley, the surviving minor son of Dodi Andora Kelley, deceased, has

                suffered and will continue to suffer the loss of his mother’s support and services,

                companionship, instruction and guidance; has experienced mental pain and suffering

                in the past and will continue to suffer such losses in the future; and has incurred

                medical and funeral expenses due to his mother’s injury and death;




                                                  21
               c.        Sebastian Kelley, the surviving minor son of Dodi Andora Kelley, deceased,

               has suffered and will continue to suffer the loss of his mother’s support and services,

               companionship, instruction and guidance; has experienced mental pain and suffering

               in the past and will continue to suffer such losses in the future; and has incurred

               medical and funeral expenses due to his mother’s injury and death; and

               d.        The Estate of Dodi Andora Kelleyhas lost prospective net accumulations and

               has incurred medical and funeral expenses due to the decedent’s injury and death.

       WHEREFORE, Brian Joseph Kelley, as Personal Representative of the Estate of Dodi

Andora Kelley, demands judgment for compensatory damages and costs against G 4 Land &

Cattle, and further demands trial by jury of all issues as triable as a matter of right. Further,

Plaintiff reserves the right to amend this Complaint to add a claim for punitive damages pursuant

to Fla. Stat. §768.72.

                                  DEMAND FOR JURY TRIAL

              Plaintiffs hereby demand a jury trial on all issues so triable as of right.

                                                        RICCI~LEOPOLD, P.A.
                                                        2925 PGA Blvd.
                                                        Suite 200
                                                        Palm Beach Gardens, FL 33410
                                                        Phone: 561-684-6500
                                                        Fax: 561-697-2383

                                                        By:
                                                               THEODORE J. LEOPOLD, ESQ.
                                                               Florida Bar No.: 706608
                                                               BENJAMIN SALZILLO, ESQ.
                                                               Florida Bar No.: 582751
                                                               JOHN B. PATTERSON, ESQ.
                                                               Florida Bar No.: 023930




                                                   22

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:9
posted:8/8/2011
language:English
pages:22