Preview
Filed: 7/1/2021 2:43 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 54984799
By: Shailja Dixit
7/1/2021 2:54 PM
CAUSE NO:21-CV-0960
____________________
CYNTHIA JOPLIN, § IN THE DISTRICT COURT
§
Plaintiff, §
§Galveston County - 122nd District Court
v. § ______ JUDICIAL DISTRICT
§
WAL-MART STORES TEXAS LLC, §
§
Defendant. § GALVESTON COUNTY, TEXAS
PLAINTIFF’S ORIGINAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Plaintiff Cynthia Joplin and files this her Original Petition, complaining
of Defendant Wal-Mart Stores Texas LLC, and for cause would respectfully show the Court as
follows:
I. PARTIES
1. Cynthia Joplin (“Joplin” or “Plaintiff”) is an individual residing in the State of
Texas.
2. Wal-Mart Stores Texas LLC (“Defendant”) is a foreign limited liability company
legally conducting business in Texas, with its principal place of business located at 702 SW 8th
Street C/O Sales Texas #0555, Bentonville, Arkansas 72716, and may be served with process
through its registered agent for service of process, C T Corporation System, located at 1999 Bryan
Street, Suite 900, Dallas, Texas 75201.
II. JURISDICTION AND VENUE
3. Jurisdiction is proper in this case because the damages Joplin seeks are within the
jurisdictional limits of this Court.
Status Conference - 09/30/2021
PLAINTIFF’S ORIGINAL PETITION 1
4. Venue is proper in Galveston County, Texas, because Galveston County is the
county in which all or a substantial part of the events of omissions giving rise to the claim occurred.
III. DISCOVERY CONTROL PLAN AND RULE 47 DISCLOSURE
5. Pursuant Rule 190.3 of the TEXAS RULES OF CIVIL PROCEDURE, Joplin requests that
discovery be conducted under Level 2.
6. Pursuant to Rule 47 of the TEXAS RULES OF CIVIL PROCEDURE, Joplin seeks
monetary relief over $250,000.00 but no more than $1,000,000.00.
IV. RELEVANT FACTS
7. Wal-Mart proudly bills itself as the store helping its customers save money and live
better. It portrays itself as a company dedicated to helpfulness and safety. But Walmart, for all its
boasting about making safety a key concern, failed to keep Joplin safe from a preventable accident.
8. Early on the morning of Sunday, September 6, 2020, Joplin and her boyfriend’s
fifteen-year-old daughter headed to what they thought was their friendly neighborhood store, the
Walmart Supercenter located at 6702 Seawall Boulevard, Galveston, Texas 77551 (the “subject
premises”). As a mother of three, Joplin had to re-fill the family pantry with coffee and snacks,
among other things.
9. When Joplin and her boyfriend’s daughter entered the subject premises, they began
perusing the aisles and filling their cart. The pair came to the snack aisle about twenty to thirty
minutes later. Joplin walked around and to the front of her cart. As she did so, she slipped. She
tried to break her fall with her left hand. She immediately heard a loud cracking noise as she
slammed into the ground. Joplin, extremely embarrassed by her fall in front of two other shoppers,
struggled to her feet as quickly as she could. However, she knew immediately that her something
was broken, based on the pain and strange, out-of-shape situation her arm was in.
PLAINTIFF’S ORIGINAL PETITION 2
10. The pair quickly wrapped up their shopping and headed to self-checkout. Joplin
promptly reported the incident to a Walmart clerk. The clerk called another woman over, who took
down Joplin’s report of her fall. Subsequently, the manager came over to Joplin. The Walmart
employees asked Joplin if she wanted an ambulance, but embarrassed, Joplin declined. Instead,
Joplin purchased a brace for her arm, and the Walmart employees made a feeble attempt to help
Joplin by purchasing a small bottle of Tylenol for her. At that point, Joplin’s pain levels were
rising. She knew it would hurt even more the next day.
11. On the Tuesday following her accident, Joplin returned to work. She tried to
mitigate the pain by icing her injured left arm and/or wrist. However, the pain eventually became
too much, and Joplin made her way to the hospital that Tuesday evening, September 8, 2020, two
days after her accident. The doctor diagnosed Joplin with a left distal radius fracture (extra
articular) and a left ulnar styloid fracture. Joplin eventually had to undergo surgery. As Joplin is
left-handed, it was critical that she undergo surgery promptly, before her fractured bones set
improperly. On September 15, 2020, Joplin underwent surgery. The surgeons performed a left
distal radius open reduction and internal fixation, as well as a left ulnar styloid closed treatment
with manipulation. She was told this surgery would cost her thousands of dollars. Walmart to this
day has not offered to pay for Joplin’s surgery, in whole or even in part.
V. CAUSES OF ACTION
A. PREMISES LIABILITY
12. Joplin incorporates by reference all the allegations set forth in the paragraphs above
and below as if set forth verbatim herein.
13. Joplin was an invitee.
14. Defendant was a possessor of the premises.
PLAINTIFF’S ORIGINAL PETITION 3
15. Defendant knew or reasonably should have known of the danger, specifically the
slippery floor.
16. Defendant breached its duty of ordinary care by: (1) failing to adequately warn
Joplin of the condition; or (2) failing to make the condition reasonably safe.
17. Defendant’s breach proximately caused Joplin injury, including damage to her left
arm and/or wrist, resulting in procedures and treatments that caused Joplin to incur numerous
medical bills.
18. Additionally, the Defendant is also responsible through respondeat
superior/vicarious liability as a result of its employee, who is unknown at this time, negligently
causing the floors to become unreasonably slippery.
VI. DAMAGES
19. Defendant’s conduct caused or will cause Joplin the following damages:
a. reasonable medical care and expenses incurred in the past, namely the expenses
Joplin incurred for the necessary care and treatment of her injuries resulting from
the accident;
b. reasonable and necessary medical care and expenses which, in reasonable
probability, Joplin will incur in the future;
c. physical pain and suffering in the past;
d. physical pain and suffering which, in reasonable probability, Joplin will suffer in
the future;
e. mental anguish in the past;
f. mental anguish which, in reasonable probability, Joplin will suffer in the future;
g. physical impairment in the past;
h. physical impairment which, in reasonable probability, Joplin will suffer in the
future;
i. physical disfigurement in the past;
PLAINTIFF’S ORIGINAL PETITION 4
j. physical disfigurement which, in reasonable probability, Joplin will suffer in the
future;
k. loss of earnings in the past;
l. loss of earning capacity which, in reasonable probability, Joplin will suffer in the
future; and
m. all other relief to which Joplin is entitled.
VII. JURY DEMAND
20. Pursuant to Rule 216 of the Texas Rules of Civil Procedure, Joplin respectfully
requests and demands a trial by jury.
VIII. CONDITIONS PRECEDENT
21. All conditions precedent required to bring the foregoing causes of action have
occurred.
IX. CONCLUSION AND PRAYER
Joplin prays that Defendant be cited to answer and appear herein and that following a
hearing, or a trial on the merits, Joplin be awarded judgment against Defendant for the damages
and relief requested herein, and all other relief at law or in equity to which Joplin may be
entitled.
PLAINTIFF’S ORIGINAL PETITION 5
Respectfully submitted,
BURKE BOGDANOWICZ, PLLC
AARON J. BURKE
Texas Bar No. 24073977
aaron@burkebog.com
ANDREA S. TURNER
Texas Bar No. 24100977
aturner@burkebog.com
1201 Elm Street, Suite 4000
Dallas, Texas 75270
214.888.2824
JONATHAN ZENDEH DEL
Texas Bar No. 24075331
jonathan@zendehdel.com
ZENDEH DEL & ASSOCIATES, PLLC
1813 61st Street
Suite 101
Galveston, TX 77551
ATTORNEYS FOR PLAINTIFF
PLAINTIFF’S ORIGINAL PETITION 6
Preview
Filed: 7/1/2021 2:43 PM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 54984799 By: Shailja Dixit 7/1/2021 2:54 PM CAUSE NO:21-CV-0960 ____________________ CYNTHIA JOPLIN, § IN THE DISTRICT COURT § Plaintiff, § §Galveston County - 122nd District Court v. § ______ JUDICIAL DISTRICT § WAL-MART STORES TEXAS LLC, § § Defendant. § GALVESTON COUNTY, TEXAS PLAINTIFF’S ORIGINAL PETITION TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Plaintiff Cynthia Joplin and files this her Original Petition, complaining of Defendant Wal-Mart Stores Texas LLC, and for cause would respectfully show the Court as follows: I. PARTIES 1. Cynthia Joplin (“Joplin” or “Plaintiff”) is an individual residing in the State of Texas. 2. Wal-Mart Stores Texas LLC (“Defendant”) is a foreign limited liability company legally conducting business in Texas, with its principal place of business located at 702 SW 8th Street C/O Sales Texas #0555, Bentonville, Arkansas 72716, and may be served with process through its registered agent for service of process, C T Corporation System, located at 1999 Bryan Street, Suite 900, Dallas, Texas 75201. II. JURISDICTION AND VENUE 3. Jurisdiction is proper in this case because the damages Joplin seeks are within the jurisdictional limits of this Court. Status Conference - 09/30/2021 PLAINTIFF’S ORIGINAL PETITION 1 4. Venue is proper in Galveston County, Texas, because Galveston County is the county in which all or a substantial part of the events of omissions giving rise to the claim occurred. III. DISCOVERY CONTROL PLAN AND RULE 47 DISCLOSURE 5. Pursuant Rule 190.3 of the TEXAS RULES OF CIVIL PROCEDURE, Joplin requests that discovery be conducted under Level 2. 6. Pursuant to Rule 47 of the TEXAS RULES OF CIVIL PROCEDURE, Joplin seeks monetary relief over $250,000.00 but no more than $1,000,000.00. IV. RELEVANT FACTS 7. Wal-Mart proudly bills itself as the store helping its customers save money and live better. It portrays itself as a company dedicated to helpfulness and safety. But Walmart, for all its boasting about making safety a key concern, failed to keep Joplin safe from a preventable accident. 8. Early on the morning of Sunday, September 6, 2020, Joplin and her boyfriend’s fifteen-year-old daughter headed to what they thought was their friendly neighborhood store, the Walmart Supercenter located at 6702 Seawall Boulevard, Galveston, Texas 77551 (the “subject premises”). As a mother of three, Joplin had to re-fill the family pantry with coffee and snacks, among other things. 9. When Joplin and her boyfriend’s daughter entered the subject premises, they began perusing the aisles and filling their cart. The pair came to the snack aisle about twenty to thirty minutes later. Joplin walked around and to the front of her cart. As she did so, she slipped. She tried to break her fall with her left hand. She immediately heard a loud cracking noise as she slammed into the ground. Joplin, extremely embarrassed by her fall in front of two other shoppers, struggled to her feet as quickly as she could. However, she knew immediately that her something was broken, based on the pain and strange, out-of-shape situation her arm was in. PLAINTIFF’S ORIGINAL PETITION 2 10. The pair quickly wrapped up their shopping and headed to self-checkout. Joplin promptly reported the incident to a Walmart clerk. The clerk called another woman over, who took down Joplin’s report of her fall. Subsequently, the manager came over to Joplin. The Walmart employees asked Joplin if she wanted an ambulance, but embarrassed, Joplin declined. Instead, Joplin purchased a brace for her arm, and the Walmart employees made a feeble attempt to help Joplin by purchasing a small bottle of Tylenol for her. At that point, Joplin’s pain levels were rising. She knew it would hurt even more the next day. 11. On the Tuesday following her accident, Joplin returned to work. She tried to mitigate the pain by icing her injured left arm and/or wrist. However, the pain eventually became too much, and Joplin made her way to the hospital that Tuesday evening, September 8, 2020, two days after her accident. The doctor diagnosed Joplin with a left distal radius fracture (extra articular) and a left ulnar styloid fracture. Joplin eventually had to undergo surgery. As Joplin is left-handed, it was critical that she undergo surgery promptly, before her fractured bones set improperly. On September 15, 2020, Joplin underwent surgery. The surgeons performed a left distal radius open reduction and internal fixation, as well as a left ulnar styloid closed treatment with manipulation. She was told this surgery would cost her thousands of dollars. Walmart to this day has not offered to pay for Joplin’s surgery, in whole or even in part. V. CAUSES OF ACTION A. PREMISES LIABILITY 12. Joplin incorporates by reference all the allegations set forth in the paragraphs above and below as if set forth verbatim herein. 13. Joplin was an invitee. 14. Defendant was a possessor of the premises. PLAINTIFF’S ORIGINAL PETITION 3 15. Defendant knew or reasonably should have known of the danger, specifically the slippery floor. 16. Defendant breached its duty of ordinary care by: (1) failing to adequately warn Joplin of the condition; or (2) failing to make the condition reasonably safe. 17. Defendant’s breach proximately caused Joplin injury, including damage to her left arm and/or wrist, resulting in procedures and treatments that caused Joplin to incur numerous medical bills. 18. Additionally, the Defendant is also responsible through respondeat superior/vicarious liability as a result of its employee, who is unknown at this time, negligently causing the floors to become unreasonably slippery. VI. DAMAGES 19. Defendant’s conduct caused or will cause Joplin the following damages: a. reasonable medical care and expenses incurred in the past, namely the expenses Joplin incurred for the necessary care and treatment of her injuries resulting from the accident; b. reasonable and necessary medical care and expenses which, in reasonable probability, Joplin will incur in the future; c. physical pain and suffering in the past; d. physical pain and suffering which, in reasonable probability, Joplin will suffer in the future; e. mental anguish in the past; f. mental anguish which, in reasonable probability, Joplin will suffer in the future; g. physical impairment in the past; h. physical impairment which, in reasonable probability, Joplin will suffer in the future; i. physical disfigurement in the past; PLAINTIFF’S ORIGINAL PETITION 4 j. physical disfigurement which, in reasonable probability, Joplin will suffer in the future; k. loss of earnings in the past; l. loss of earning capacity which, in reasonable probability, Joplin will suffer in the future; and m. all other relief to which Joplin is entitled. VII. JURY DEMAND 20. Pursuant to Rule 216 of the Texas Rules of Civil Procedure, Joplin respectfully requests and demands a trial by jury. VIII. CONDITIONS PRECEDENT 21. All conditions precedent required to bring the foregoing causes of action have occurred. IX. CONCLUSION AND PRAYER Joplin prays that Defendant be cited to answer and appear herein and that following a hearing, or a trial on the merits, Joplin be awarded judgment against Defendant for the damages and relief requested herein, and all other relief at law or in equity to which Joplin may be entitled. PLAINTIFF’S ORIGINAL PETITION 5 Respectfully submitted, BURKE BOGDANOWICZ, PLLC AARON J. BURKE Texas Bar No. 24073977 aaron@burkebog.com ANDREA S. TURNER Texas Bar No. 24100977 aturner@burkebog.com 1201 Elm Street, Suite 4000 Dallas, Texas 75270 214.888.2824 JONATHAN ZENDEH DEL Texas Bar No. 24075331 jonathan@zendehdel.com ZENDEH DEL & ASSOCIATES, PLLC 1813 61st Street Suite 101 Galveston, TX 77551 ATTORNEYS FOR PLAINTIFF PLAINTIFF’S ORIGINAL PETITION 6