Preview
CAUSE NO. 23-04-05276
JOSEPH D. ABELL IN THE DISTRICT COURT OF
VS.
MONTGOMERYCOUNTY, TEXAS
KROGER TEXAS L.P. D/B/A
KROGER STORE NO. K034
EAST/HOUSTON UDICIAL DISTRICT
PLAINTIFF FIRST AMENDEDPETITION
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, JOSEPH D. ABELL, hereinafter referred to as Plaintiff , complaining of
KROGER TEXAS L.P. D/B/A KROGER STORE NO. K034 EAST/HOUSTON (hereinafter
referred to as “Kroger and REDDY ICE, LLC (hereinafter referred to as “Reddy Ice”), and for
cause of action would respectfully show the Court and Jury the following:
DISCOVERY CONTROL PLAN
Pursuant to the provisions of the Texas Rules of Civil Procedure Rule 190.1, this suit is
filed as a Level II and the scope of discovery conducted in this case shall be given pursuant to the
conditions of Rule 190.3
TRCP 194.2 & 99(C)
Plaintiff hereby states that pursuant to the Texas Rules of Civil Procedure, Defendant
Reddy Ice must disclose and produce the information and documents listed in Rule 194.2(b)(1)
(12) to the office of Plaintiff’s attorney no later than thirty (30) days after the first answer or general
appearance is filed. Pursuant to Texas Rule of Civil Procedure 99( , Defendant is hereby advised.
TRCP 193.7
Plaintiff in the above captioned matter invokes self authentication rights pursuant to Tex.
R. Civ. P. 193.7, and specifically that documents/items made available by the opposing party
through the discovery process may be used at trial and/or in pre trial proceedings.
CLAIM FOR RELIEF
Pursuant to Tex. R. Civ. P. 47(c)(5), Plaintiff seeks only monetary relief over
PARTIES
Plaintiff, JOSEPH D. ABELL, is an individual residing in Montgomery County, Texas.
The last three digits of M Abell’s ocial ecurity number are
Defendant, Kroger Texas L.P. d/b/a Kroger Store No. K034 is an entity doing business in
Montgomery County, Texas and has already answered and made an appearance in this suit. No
issuance of citation is requested for Defendant Kroger at this time.
Defendant, Reddy Ice, LLC, is an entity doing business in Montgomery County, Texas,
and may be served through its registered agent: CT Corporation System, 1999 Bryan Street, Suite
900, Dallas, Texas 75201. Issuance of citation is requested on this Defendant at this time.
Plaintiff specifically invoke the right to institute this suit against the properly named entity
of Defendant THE KROGER COMPANY and/or REDDY ICE, LLC should that become
necessary with regards to the events described in this Petition. Plaintiff expressly invoke his right
under Rule 28 of the Texas Rules of Civil Procedure to have the true name of these parties
substituted at a later time on a motion by any party or on the Court’s own motion.
JURISDICTION AND VENUE
This court has jurisdiction over the parties because Defendant Kroger is a company doing
business in the State of Texas and maintains its principal office in Montgomery County, Texas,
and the subject matter in controversy is within the jurisdictional limits of this court. Further,
Defendant Reddy Ice is a corporate entity regularly conducting business within Montgomer
County, Texas.
Venue is proper in Montgomery County, Texas pursuant to §15.002(a)( ) of the Civil
Practices and Remedies Code in that all or a substantial part of the events or omission giving rise
to the claim occurred in MontgomeryCounty, Texas
FACTUAL BACKGROUND
At all times material hereto, Defendant Kroger was the owner and/or occupier and in
control of the business premises generally known as Kroger Store No. K034 East/Houston located
at 20168 Eva St., Montgomery, Texas 77356
On or about October 6 Plaintiff entered Defendant’s business premises for the
purpose of shopping for and purchasing groceries from Defendant
During the time that Plaintiff was upon Defendants property, Plaintiff was seriously
injured when he slipped and fell onwet surface located inside Defendant Kroger’s store. Due to
the wet surface located within Defendant Kroger’s store Plaintiff violently fell to the hard ground,
sustaining serious bodily injuries.Upon information and belief, Plaintiff contends that the wet
surface on which he fell was caused by melted ice and/or other fluid leakage from a nearby ice
machine.
Upon information and belief, Defendant Reddy Ice owned and/or was in charge of
maintaining the ice machine in Defendant Kroger’s store.
Plaintiff’s bodily injuries occurred as a direct result of the negligence of Defendant and/or
their agents, servants, and employees.
CAUSES OF ACTION AGAINST DEFENDANT KROGER
COUNT 1 NEGLIGENCE
Defendant Kroger had a duty to exercise ordinary care in the operation of their business,
and conduct business in a reasonable and prudent manner. DefendantKroger breached their duty
of careto Plaintiff in the following ways:
Failing to properly and adequately train its agents, servants, and/or employees
in proper ways and methods to safely clean and completely remove spilled
liquid on their premises.
Failing to implement proper policies, rules, and procedures to ensure the safe
and proper clean up and removal of spilled liquids by its agents, servants, and/or
employees.
Failing to enforce proper policies, rules, and procedures to ensure the safe and
proper clean up and removal of spilled liquids by their agents, servants, or
employees.
When it failed to ensure that all employees, including supervisors and
managers, were adequately and properly retrained on the proper methods of
clean up and removal of spilled liquids on their premises.
Failing to have proper procedures and policies in effect to routinely inspect
Defendant’s premises for dangerous conditions in areas of the store that are
more susceptible to routine water leakageand/or other dangerous conditions
Failing to routinely inspect and make safe any dangerous condition in the areas
of the store that are more susceptible to routine water leakage and/or other
ngerous conditions,
Failing to take the required measures of installing or placing safety mats, pads,
or cushions on Defendant’s premises in areas of the store that are more
susceptible to routine water leakage, spillage, and/or other dangerous
conditions.
Each of these acts and/or omissions by Defendant Kroger either singularly or in
combination with others, constituted negligence, which proximately caused the incident subject of
this suit and the injuries and damages for which Plaintiff has suffered.
COUNT 2 PREMISE LIABILITY
On or about October 6, 2022, and at all times mentioned herein, Defendant Kroger was the
occupier/owner/possessor of the aforementioned premises, and either owned, occupied or
maintained the same as a business facility. Plaintiff entered Defendant Kroger’s premises with
DefendantKroger’s knowledge and for their mutual benefit.
At all times mentioned herein, Defendant Kroger had such control over the premises in
question that Defendant Kroger owed certain duties to Plaintiff, the breach of which proximately
caused the injuries set forth herein.
A condition on Defendant Kroger’s premises posed an unreasonable risk of harm to the
Plaintiff. Specifically, the dangerous condition of a spilled liquid on Defendant Kroger’s property
was not properly inspected, maintained, remedied or repaired as to avoid the risk of injury.
Defendant Kroger knew, or upon reasonable inspection should have known, that this dangerous
condition existed on their property in an area where their guests would frequently be walking.
Having that knowledge, Defendant Kroger knew, or should have known, of the dangerous
condition this posed on their premises.
Defendant Kroger had a duty to use ordinary care to ensure that the premises did not present
a danger to Plaintiff. This duty includes the duty to inspect and the duty to warn of or make safe
any dangerous condition in which the Defendant kne or should have known, prior to this incident
occurring. Defendant Kroger breached the duty of ordinary care by failing to properly inspect their
property subject of this litigation, and failing to warn of or cure any defects before any injury
occurred. Defendant’s breach of this duty proximately caused the incident subject of this suit, and
Plaintiff’s resulting injuries and damages.
RES IPSA LOQUITUR
Plaintiff hereby invokes the doctrine of Res Ipsa Loquitur. Plaintiff would show that the
character of the event made the basis of this lawsuit is such that it would not ordinarily occur in
the absence of the negligence of Defendant Kroger Further, the instrumentality that caused the
injury was under the sole management and control of Defendant Kroger when this incident
occurred.
VII.
CAUSES OF ACTION AGAINST REDDY ICE
NEGLIGENCE
efendant Reddy Ice had a duty to exercise ordinary care in the operation of their business,
and conduct business in a reasonable and prudent manner. Defendant Reddy Ice breached their
duty of careto Plaintiff in the following ways:
Failing to properly and adequately train its agents, servants, and/or employees in proper
ways and methods to safely maintain their ice machines to avoid leakage or spillage from
the unit
Failing to implement proper policies, rules, and procedures to ensure the safe and proper
clean up and removal of spilled liquids by its agents, servants, and/or employees before,
during, and after ice machine service.
Failing to enforce proper policies, rules, and procedures to ensure the safe and proper clean
up and removal of spilled liquids by their agents, servants, or employees.
Failing to ensure that all employees, including supervisors and managers, were adequately
and properly retrained on the proper methods to safely maintain their ice machines to avoid
leakage or spillage from their units
Failing to take the required measures of installing or placing safety mats, pads, or cushions
at or near the ice machine, which is an area more susceptible to routine water leakage,
spillage, and/or other dangerous conditions.
Each of these acts and/or omissions by Defendant Reddy Ice either singularly or in
combination with others, constituted negligence, which proximately caused the incident subject of
this suit and the injuries and damages for which Plaintiff has suffered.
RES IPSA LOQUITOR
Plaintiff hereby invokes the doctrine of Res Ipsa Loquitur. Plaintiff would show that the
character of the event made the basis of this lawsuit is such that it would not ordinarily occur in
the absence of the negligence of Defendant Reddy Ice. Further, the instrumentality that caused the
injury was under the sole management and control of Defendant Reddy Ice when this incident
occurred.
PROXIMATE CAUSE
Each and every, all and singular of the foregoing acts and omissions on the part of all
Defendants, taken separately and/or collectively, constitute negligence and were a direct and
proximate cause of the injuries and damages set forth below.
DAMAGES
As a direct and proximate result of the occurrence made the basis of this lawsuit, and
Defendants’ acts as described herein, Plaintiff has incurred the following damages:
Reasonable and necessary medical expenses in the past;
Reasonable and necessary medical expenses which, in all reasonable
probability,willbe incurred in the future;
Physical pain and suffering in the past;
Physical pain and suffering in the future;
Mental Anguish in the past
Mental Anguish in the future;
Physical impairment in the pas
Physical impairment in the future
I. Physical disfigurement in the past, and;
Physical disfigurement in the future.
By reason of the above, Plaintiff has suffered losses and damages in a sum within the
jurisdictional limits of the Court and for which this lawsuit is brought.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully pray that the
Defendant be cited to appear and answer herein, and that upon a final hearing of the cause,
judgment be entered for the Plaintiff against the Defendant for damages in an amount within the
jurisdictional limits of the Court; together with pre judgment interest (from the date of injury
through the date of judgment) at the maximum rate allowed by law; post judgment interest at the
legal rate, costs of court; and such other and further relief to which Plaintiff may be entitled a law
or in equity
[Signature on next page]
Respectfully submitted,
HOPE & CAUSEY, P.C.
DustinCausey
State Bar No.
815 W. Davis St., Ste 300
Conroe, TX 77301
P: (936) 441
F: (936) 441
hcdocket@hope causey.com
ATTORNEYFOR PLAINTIFF
Preview
CAUSE NO. 23-04-05276 JOSEPH D. ABELL IN THE DISTRICT COURT OF VS. MONTGOMERYCOUNTY, TEXAS KROGER TEXAS L.P. D/B/A KROGER STORE NO. K034 EAST/HOUSTON UDICIAL DISTRICT PLAINTIFF FIRST AMENDEDPETITION TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, JOSEPH D. ABELL, hereinafter referred to as Plaintiff , complaining of KROGER TEXAS L.P. D/B/A KROGER STORE NO. K034 EAST/HOUSTON (hereinafter referred to as “Kroger and REDDY ICE, LLC (hereinafter referred to as “Reddy Ice”), and for cause of action would respectfully show the Court and Jury the following: DISCOVERY CONTROL PLAN Pursuant to the provisions of the Texas Rules of Civil Procedure Rule 190.1, this suit is filed as a Level II and the scope of discovery conducted in this case shall be given pursuant to the conditions of Rule 190.3 TRCP 194.2 & 99(C) Plaintiff hereby states that pursuant to the Texas Rules of Civil Procedure, Defendant Reddy Ice must disclose and produce the information and documents listed in Rule 194.2(b)(1) (12) to the office of Plaintiff’s attorney no later than thirty (30) days after the first answer or general appearance is filed. Pursuant to Texas Rule of Civil Procedure 99( , Defendant is hereby advised. TRCP 193.7 Plaintiff in the above captioned matter invokes self authentication rights pursuant to Tex. R. Civ. P. 193.7, and specifically that documents/items made available by the opposing party through the discovery process may be used at trial and/or in pre trial proceedings. CLAIM FOR RELIEF Pursuant to Tex. R. Civ. P. 47(c)(5), Plaintiff seeks only monetary relief over PARTIES Plaintiff, JOSEPH D. ABELL, is an individual residing in Montgomery County, Texas. The last three digits of M Abell’s ocial ecurity number are Defendant, Kroger Texas L.P. d/b/a Kroger Store No. K034 is an entity doing business in Montgomery County, Texas and has already answered and made an appearance in this suit. No issuance of citation is requested for Defendant Kroger at this time. Defendant, Reddy Ice, LLC, is an entity doing business in Montgomery County, Texas, and may be served through its registered agent: CT Corporation System, 1999 Bryan Street, Suite 900, Dallas, Texas 75201. Issuance of citation is requested on this Defendant at this time. Plaintiff specifically invoke the right to institute this suit against the properly named entity of Defendant THE KROGER COMPANY and/or REDDY ICE, LLC should that become necessary with regards to the events described in this Petition. Plaintiff expressly invoke his right under Rule 28 of the Texas Rules of Civil Procedure to have the true name of these parties substituted at a later time on a motion by any party or on the Court’s own motion. JURISDICTION AND VENUE This court has jurisdiction over the parties because Defendant Kroger is a company doing business in the State of Texas and maintains its principal office in Montgomery County, Texas, and the subject matter in controversy is within the jurisdictional limits of this court. Further, Defendant Reddy Ice is a corporate entity regularly conducting business within Montgomer County, Texas. Venue is proper in Montgomery County, Texas pursuant to §15.002(a)( ) of the Civil Practices and Remedies Code in that all or a substantial part of the events or omission giving rise to the claim occurred in MontgomeryCounty, Texas FACTUAL BACKGROUND At all times material hereto, Defendant Kroger was the owner and/or occupier and in control of the business premises generally known as Kroger Store No. K034 East/Houston located at 20168 Eva St., Montgomery, Texas 77356 On or about October 6 Plaintiff entered Defendant’s business premises for the purpose of shopping for and purchasing groceries from Defendant During the time that Plaintiff was upon Defendants property, Plaintiff was seriously injured when he slipped and fell onwet surface located inside Defendant Kroger’s store. Due to the wet surface located within Defendant Kroger’s store Plaintiff violently fell to the hard ground, sustaining serious bodily injuries.Upon information and belief, Plaintiff contends that the wet surface on which he fell was caused by melted ice and/or other fluid leakage from a nearby ice machine. Upon information and belief, Defendant Reddy Ice owned and/or was in charge of maintaining the ice machine in Defendant Kroger’s store. Plaintiff’s bodily injuries occurred as a direct result of the negligence of Defendant and/or their agents, servants, and employees. CAUSES OF ACTION AGAINST DEFENDANT KROGER COUNT 1 NEGLIGENCE Defendant Kroger had a duty to exercise ordinary care in the operation of their business, and conduct business in a reasonable and prudent manner. DefendantKroger breached their duty of careto Plaintiff in the following ways: Failing to properly and adequately train its agents, servants, and/or employees in proper ways and methods to safely clean and completely remove spilled liquid on their premises. Failing to implement proper policies, rules, and procedures to ensure the safe and proper clean up and removal of spilled liquids by its agents, servants, and/or employees. Failing to enforce proper policies, rules, and procedures to ensure the safe and proper clean up and removal of spilled liquids by their agents, servants, or employees. When it failed to ensure that all employees, including supervisors and managers, were adequately and properly retrained on the proper methods of clean up and removal of spilled liquids on their premises. Failing to have proper procedures and policies in effect to routinely inspect Defendant’s premises for dangerous conditions in areas of the store that are more susceptible to routine water leakageand/or other dangerous conditions Failing to routinely inspect and make safe any dangerous condition in the areas of the store that are more susceptible to routine water leakage and/or other ngerous conditions, Failing to take the required measures of installing or placing safety mats, pads, or cushions on Defendant’s premises in areas of the store that are more susceptible to routine water leakage, spillage, and/or other dangerous conditions. Each of these acts and/or omissions by Defendant Kroger either singularly or in combination with others, constituted negligence, which proximately caused the incident subject of this suit and the injuries and damages for which Plaintiff has suffered. COUNT 2 PREMISE LIABILITY On or about October 6, 2022, and at all times mentioned herein, Defendant Kroger was the occupier/owner/possessor of the aforementioned premises, and either owned, occupied or maintained the same as a business facility. Plaintiff entered Defendant Kroger’s premises with DefendantKroger’s knowledge and for their mutual benefit. At all times mentioned herein, Defendant Kroger had such control over the premises in question that Defendant Kroger owed certain duties to Plaintiff, the breach of which proximately caused the injuries set forth herein. A condition on Defendant Kroger’s premises posed an unreasonable risk of harm to the Plaintiff. Specifically, the dangerous condition of a spilled liquid on Defendant Kroger’s property was not properly inspected, maintained, remedied or repaired as to avoid the risk of injury. Defendant Kroger knew, or upon reasonable inspection should have known, that this dangerous condition existed on their property in an area where their guests would frequently be walking. Having that knowledge, Defendant Kroger knew, or should have known, of the dangerous condition this posed on their premises. Defendant Kroger had a duty to use ordinary care to ensure that the premises did not present a danger to Plaintiff. This duty includes the duty to inspect and the duty to warn of or make safe any dangerous condition in which the Defendant kne or should have known, prior to this incident occurring. Defendant Kroger breached the duty of ordinary care by failing to properly inspect their property subject of this litigation, and failing to warn of or cure any defects before any injury occurred. Defendant’s breach of this duty proximately caused the incident subject of this suit, and Plaintiff’s resulting injuries and damages. RES IPSA LOQUITUR Plaintiff hereby invokes the doctrine of Res Ipsa Loquitur. Plaintiff would show that the character of the event made the basis of this lawsuit is such that it would not ordinarily occur in the absence of the negligence of Defendant Kroger Further, the instrumentality that caused the injury was under the sole management and control of Defendant Kroger when this incident occurred. VII. CAUSES OF ACTION AGAINST REDDY ICE NEGLIGENCE efendant Reddy Ice had a duty to exercise ordinary care in the operation of their business, and conduct business in a reasonable and prudent manner. Defendant Reddy Ice breached their duty of careto Plaintiff in the following ways: Failing to properly and adequately train its agents, servants, and/or employees in proper ways and methods to safely maintain their ice machines to avoid leakage or spillage from the unit Failing to implement proper policies, rules, and procedures to ensure the safe and proper clean up and removal of spilled liquids by its agents, servants, and/or employees before, during, and after ice machine service. Failing to enforce proper policies, rules, and procedures to ensure the safe and proper clean up and removal of spilled liquids by their agents, servants, or employees. Failing to ensure that all employees, including supervisors and managers, were adequately and properly retrained on the proper methods to safely maintain their ice machines to avoid leakage or spillage from their units Failing to take the required measures of installing or placing safety mats, pads, or cushions at or near the ice machine, which is an area more susceptible to routine water leakage, spillage, and/or other dangerous conditions. Each of these acts and/or omissions by Defendant Reddy Ice either singularly or in combination with others, constituted negligence, which proximately caused the incident subject of this suit and the injuries and damages for which Plaintiff has suffered. RES IPSA LOQUITOR Plaintiff hereby invokes the doctrine of Res Ipsa Loquitur. Plaintiff would show that the character of the event made the basis of this lawsuit is such that it would not ordinarily occur in the absence of the negligence of Defendant Reddy Ice. Further, the instrumentality that caused the injury was under the sole management and control of Defendant Reddy Ice when this incident occurred. PROXIMATE CAUSE Each and every, all and singular of the foregoing acts and omissions on the part of all Defendants, taken separately and/or collectively, constitute negligence and were a direct and proximate cause of the injuries and damages set forth below. DAMAGES As a direct and proximate result of the occurrence made the basis of this lawsuit, and Defendants’ acts as described herein, Plaintiff has incurred the following damages: Reasonable and necessary medical expenses in the past; Reasonable and necessary medical expenses which, in all reasonable probability,willbe incurred in the future; Physical pain and suffering in the past; Physical pain and suffering in the future; Mental Anguish in the past Mental Anguish in the future; Physical impairment in the pas Physical impairment in the future I. Physical disfigurement in the past, and; Physical disfigurement in the future. By reason of the above, Plaintiff has suffered losses and damages in a sum within the jurisdictional limits of the Court and for which this lawsuit is brought. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully pray that the Defendant be cited to appear and answer herein, and that upon a final hearing of the cause, judgment be entered for the Plaintiff against the Defendant for damages in an amount within the jurisdictional limits of the Court; together with pre judgment interest (from the date of injury through the date of judgment) at the maximum rate allowed by law; post judgment interest at the legal rate, costs of court; and such other and further relief to which Plaintiff may be entitled a law or in equity [Signature on next page] Respectfully submitted, HOPE & CAUSEY, P.C. DustinCausey State Bar No. 815 W. Davis St., Ste 300 Conroe, TX 77301 P: (936) 441 F: (936) 441 hcdocket@hope causey.com ATTORNEYFOR PLAINTIFF