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FILED
TARRANT COUNTY
8/14/2019 2:10 PM
236-309977-19
CAUSE NO __________________ THOMAS A. WILDER
DISTRICT CLERK
KENNETH WAYNE BLACK II § IN THE DISTRICT COURT
Plaintiff, §
§
§ TARRANT COUNTY, TEXAS
§
VS. §
§
24 HOUR FITNESS USA, INC. §
Defendant. § ________ JUDICIAL DISTRICT
PLAINTIFF’S ORIGINAL PETITION
Plaintiff, Kenneth Wayne Black II, files this Original Petition complaining
of Defendant 24 Hour Fitness USA, Inc. and for same would respectfully show
the Court the following:
I.
PARTIES
1. Plaintiff Kenneth Wayne Black II is an individual residing in
Burleson, Tarrant County, Texas. The last three digits of Plaintiff Kenneth
Wayne Black II’s Social Security Number are 161. The last three digits of Plaintiff
Kenneth Wayne Black II’s driver’s license number are 766.
2. Defendant 24 Hour Fitness USA, Inc. is a foreign for-profit
corporation duly authorized to conduct business in the state of Texas. Said
Defendant may be served with civil process by serving its registered agent for
service, Corporation Service Company d/b/a CSC-Lawyers Incorporating
Service Company, 211 E. 7th Street, Suite 620, Austin, Texas 78701-3218 or
wherever it may be found.
Plaintiff’s Original Petition and Request for Disclosure
Page 1
II.
JURISDICTION AND VENUE
3. The amount in controversy herein, exclusive of costs and interests,
exceeds the minimal jurisdictional limits of this Court. Plaintiff seeks monetary
relief less than $100,000.00, including damages of any kind, penalties, costs,
expenses, and pre-judgment interest.
4. Venue in Tarrant County is proper in this cause under Section
15.002(a)(1) of the Texas Civil Practice and Remedies Code because all or a
substantial part of the events or omissions giving rise to this lawsuit occurred in
this county.
III.
DISCOVERY LEVEL
5. Pursuant to Rule 190 of the TEXAS RULES OF CIVIL PROCEDURE,
Plaintiff alleges that this case shall be governed under a Level 3 discovery control
plan.
IV.
FACTUAL BACKGROUND AND
CLAIMS FOR NEGLIGENCE AND PREMISES LIABILITY
5. On the morning of Tuesday, June 19, 2018, Plaintiff Kenneth Wayne
Black II was working out at the 24-Hour Fitness gym located on 1101 N Walnut
Creek Drive, Mansfield, Tarrant County, Texas 76013. As Mr. Black was using
the circuit cable machine on the left side wall of the gym, a faulty pin in the latch
mechanism on the cable press down caused the equipment to come crashing
Plaintiff’s Original Petition and Request for Disclosure
Page 2
down on Mr. Black’s head. This resulted in Mr. Black receiving a huge laceration
on his head requiring seven staples.
9. Plaintiff Kenneth Wayne Black II was at all times a consumer and
traveled to the Defendant’s place of business for Defendant’s economic benefit,
and as such was considered an invitee. At the time of Plaintiff’s injury, the
Defendant was in possession of the premises. The condition of the gym posed an
unreasonable risk of harm. Defendant knew or reasonably should have known
of the danger; and Defendant breached its duty of ordinary care by: (1) failing to
adequately warn Plaintiff Kenneth Wayne Black II of the condition; or (2) failing
to make the condition reasonably safe. Defendant’s breach of these duties
proximately caused Plaintiff’s injuries, the sums for which he now sues.
10. Further, Defendant 24 HOUR FITNESS USA, INC., its agents,
servants and/or employees, also failed to use ordinary care in one or more of the
following particulars:
a. Failure to maintain a safe and hazard-free premises for invitees;
b. Failure to properly inspect and maintain the premises to discover
the dangerous condition;
c. Failure to inspect the premises and protect invitees from hazardous
or dangerous conditions;
d. Failure to warn Plaintiff Kenneth Wayne Black II of the known
dangerous condition of the area where his injuries occurred;
e. Failure to give adequate and comprehensible warnings to Plaintiff
Kenneth Wayne Black II of the dangerous condition of the area
where his injuries occurred;
f. Failure to take action to prevent accident and injury to invitees; and
g. Failure to hire, supervise and train employees to take immediate
actions to eliminate any harmful conditions and to prevent accident
and injury to invitees.
Plaintiff’s Original Petition and Request for Disclosure
Page 3
V.
DAMAGES FOR PLAINTIFF KENNETH WAYNE BLACK II
11. As a result of Defendant’s negligence, Plaintiff Kenneth Wayne
Black II sustained serious injuries to his head which required staples. Plaintiff
has incurred significant medical expenses for doctor’s visits, radiology imaging
studies, and surgery to evaluate and treat his symptoms. Further, Plaintiff was
unable to perform his normal daily activities while he recovered from his
injuries. Plaintiff Kenneth Wayne Black II has incurred medical expenses and
other damages that are well in excess of the minimal jurisdictional limits of this
Court.
12. In summary, as a result of the injuries caused by Defendant’s
negligent actions, Plaintiff Kenneth Wayne Black II is entitled to compensation
for the following categories of damages:
a. Past and future physical pain and suffering;
b. Past and future mental anguish;
c. Past and future physical impairment;
d. Past and future medical expenses;
e. Past and future physical disfigurement; and
f. Past and future lost wages/loss of earning capacity.
VI.
JURY DEMAND
13. Plaintiff makes a demand for a jury.
Plaintiff’s Original Petition and Request for Disclosure
Page 4
VII.
REQUEST FOR DISCLOSURE
14. Pursuant to Texas Rule of Civil Procedure 194, Plaintiff requests
that Defendant disclose, within fifty (50) days of service of this request, to the
undersigned attorneys at Harris Cook, L.L.P., 709 East Abram Street, Arlington,
Texas 76010, the information or material described in Rule 194.2 (a), (b), (c), (d),
(e), (f), (g), (h), (i), (j), (k) and (l).
VIII.
PRAYER
For the reasons stated above, Plaintiff Kenneth Wayne Black II
respectfully requests that Defendant be cited to appear and answer and, upon
final or interim hearing or trial, that judgment be entered awarding Plaintiff the
following:
a. Past and future actual damages as set forth herein;
b. Costs of court;
c. Pre and post-judgment interest as allowed by law; and
d. Such other and further relief to which Plaintiff may be entitled.
Plaintiff’s Original Petition and Request for Disclosure
Page 5
Respectfully submitted,
HARRIS COOK, L.L.P.
709 East Abram
Arlington, Texas 76010
817/275-8765 – Telephone
817/460-8060 – Facsimile
/s/ Rachel L. Wright
RACHEL L. WRIGHT
State Bar No. 24054255
DAVID L. COOK
State Bar No. 00798116
EserviceArl@harriscooklaw.com
ATTORNEYS FOR PLAINTIFF
Plaintiff’s Original Petition and Request for Disclosure
Page 6
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FILED TARRANT COUNTY 8/14/2019 2:10 PM 236-309977-19 CAUSE NO __________________ THOMAS A. WILDER DISTRICT CLERK KENNETH WAYNE BLACK II § IN THE DISTRICT COURT Plaintiff, § § § TARRANT COUNTY, TEXAS § VS. § § 24 HOUR FITNESS USA, INC. § Defendant. § ________ JUDICIAL DISTRICT PLAINTIFF’S ORIGINAL PETITION Plaintiff, Kenneth Wayne Black II, files this Original Petition complaining of Defendant 24 Hour Fitness USA, Inc. and for same would respectfully show the Court the following: I. PARTIES 1. Plaintiff Kenneth Wayne Black II is an individual residing in Burleson, Tarrant County, Texas. The last three digits of Plaintiff Kenneth Wayne Black II’s Social Security Number are 161. The last three digits of Plaintiff Kenneth Wayne Black II’s driver’s license number are 766. 2. Defendant 24 Hour Fitness USA, Inc. is a foreign for-profit corporation duly authorized to conduct business in the state of Texas. Said Defendant may be served with civil process by serving its registered agent for service, Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company, 211 E. 7th Street, Suite 620, Austin, Texas 78701-3218 or wherever it may be found. Plaintiff’s Original Petition and Request for Disclosure Page 1 II. JURISDICTION AND VENUE 3. The amount in controversy herein, exclusive of costs and interests, exceeds the minimal jurisdictional limits of this Court. Plaintiff seeks monetary relief less than $100,000.00, including damages of any kind, penalties, costs, expenses, and pre-judgment interest. 4. Venue in Tarrant County is proper in this cause under Section 15.002(a)(1) of the Texas Civil Practice and Remedies Code because all or a substantial part of the events or omissions giving rise to this lawsuit occurred in this county. III. DISCOVERY LEVEL 5. Pursuant to Rule 190 of the TEXAS RULES OF CIVIL PROCEDURE, Plaintiff alleges that this case shall be governed under a Level 3 discovery control plan. IV. FACTUAL BACKGROUND AND CLAIMS FOR NEGLIGENCE AND PREMISES LIABILITY 5. On the morning of Tuesday, June 19, 2018, Plaintiff Kenneth Wayne Black II was working out at the 24-Hour Fitness gym located on 1101 N Walnut Creek Drive, Mansfield, Tarrant County, Texas 76013. As Mr. Black was using the circuit cable machine on the left side wall of the gym, a faulty pin in the latch mechanism on the cable press down caused the equipment to come crashing Plaintiff’s Original Petition and Request for Disclosure Page 2 down on Mr. Black’s head. This resulted in Mr. Black receiving a huge laceration on his head requiring seven staples. 9. Plaintiff Kenneth Wayne Black II was at all times a consumer and traveled to the Defendant’s place of business for Defendant’s economic benefit, and as such was considered an invitee. At the time of Plaintiff’s injury, the Defendant was in possession of the premises. The condition of the gym posed an unreasonable risk of harm. Defendant knew or reasonably should have known of the danger; and Defendant breached its duty of ordinary care by: (1) failing to adequately warn Plaintiff Kenneth Wayne Black II of the condition; or (2) failing to make the condition reasonably safe. Defendant’s breach of these duties proximately caused Plaintiff’s injuries, the sums for which he now sues. 10. Further, Defendant 24 HOUR FITNESS USA, INC., its agents, servants and/or employees, also failed to use ordinary care in one or more of the following particulars: a. Failure to maintain a safe and hazard-free premises for invitees; b. Failure to properly inspect and maintain the premises to discover the dangerous condition; c. Failure to inspect the premises and protect invitees from hazardous or dangerous conditions; d. Failure to warn Plaintiff Kenneth Wayne Black II of the known dangerous condition of the area where his injuries occurred; e. Failure to give adequate and comprehensible warnings to Plaintiff Kenneth Wayne Black II of the dangerous condition of the area where his injuries occurred; f. Failure to take action to prevent accident and injury to invitees; and g. Failure to hire, supervise and train employees to take immediate actions to eliminate any harmful conditions and to prevent accident and injury to invitees. Plaintiff’s Original Petition and Request for Disclosure Page 3 V. DAMAGES FOR PLAINTIFF KENNETH WAYNE BLACK II 11. As a result of Defendant’s negligence, Plaintiff Kenneth Wayne Black II sustained serious injuries to his head which required staples. Plaintiff has incurred significant medical expenses for doctor’s visits, radiology imaging studies, and surgery to evaluate and treat his symptoms. Further, Plaintiff was unable to perform his normal daily activities while he recovered from his injuries. Plaintiff Kenneth Wayne Black II has incurred medical expenses and other damages that are well in excess of the minimal jurisdictional limits of this Court. 12. In summary, as a result of the injuries caused by Defendant’s negligent actions, Plaintiff Kenneth Wayne Black II is entitled to compensation for the following categories of damages: a. Past and future physical pain and suffering; b. Past and future mental anguish; c. Past and future physical impairment; d. Past and future medical expenses; e. Past and future physical disfigurement; and f. Past and future lost wages/loss of earning capacity. VI. JURY DEMAND 13. Plaintiff makes a demand for a jury. Plaintiff’s Original Petition and Request for Disclosure Page 4 VII. REQUEST FOR DISCLOSURE 14. Pursuant to Texas Rule of Civil Procedure 194, Plaintiff requests that Defendant disclose, within fifty (50) days of service of this request, to the undersigned attorneys at Harris Cook, L.L.P., 709 East Abram Street, Arlington, Texas 76010, the information or material described in Rule 194.2 (a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (k) and (l). VIII. PRAYER For the reasons stated above, Plaintiff Kenneth Wayne Black II respectfully requests that Defendant be cited to appear and answer and, upon final or interim hearing or trial, that judgment be entered awarding Plaintiff the following: a. Past and future actual damages as set forth herein; b. Costs of court; c. Pre and post-judgment interest as allowed by law; and d. Such other and further relief to which Plaintiff may be entitled. Plaintiff’s Original Petition and Request for Disclosure Page 5 Respectfully submitted, HARRIS COOK, L.L.P. 709 East Abram Arlington, Texas 76010 817/275-8765 – Telephone 817/460-8060 – Facsimile /s/ Rachel L. Wright RACHEL L. WRIGHT State Bar No. 24054255 DAVID L. COOK State Bar No. 00798116 EserviceArl@harriscooklaw.com ATTORNEYS FOR PLAINTIFF Plaintiff’s Original Petition and Request for Disclosure Page 6