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FILED
7/12/2021 6:46 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Darling Tellez DEPUTY
CAUSE NO. DC-20-11175
MICHAEL WILLIAMS IN THE DISTRICTCOURT
Plaintiff,
V.
TXI OPERATIONS, L.P.,
TEXAS INDUSTRIES, INC., OF DALLAS COUNTY, TEXAS
MARTIN MARIETTA,
MARTIN MARIETTA
MATERIALS, INC., AND
MARTIN MARIETTA MATERIALS
SOUTHWEST, L.L.C.,
Defendant. 134TH JUDICIAL DISTRICT
PLAINTIFF’S FIRST AMENDED PETITION
TO THE HONORABLE JUDGE OF THIS COURT:
NOW COMES MICHAEL WILLIAMS, hereafter referred t0 as “Plaintiff,” in the above
entitled and numbered cause, complaining of and against TXI OPERATIONS, L.P., TEXAS
INDUSTRIES, INC., MARTIN MARIETTA, MARTIN MARIETTA MATERIALS, INC, AND
MARTIN MARIETTA MATERIALS SOUTHWEST, L.L.C., hereafter sometimes referred to as
“Defendants,” and for cause of action would show unto the Court the following:
A. DISCOVERY LEVEL
1. Pursuant to TEXAS RULE 0F CIVIL PROCEDURE 190.1, Plaintiff intends to conduct discovery
in this case under Level 3 as prescribed by TEXAS RULE OF CIVIL PROCEDURE 190.4.
B. PARTIES & SERVICE OF CITATION
2. Plaintiffs, MICHAEL WILLIAMS, an individual who resided in Milam County, Texas at the
time of the incident which forms the basis of this lawsuit.
3. Defendant, TXI OPERATIONS, INC. is a Delaware corporation, registered as a foreign
limited partnership duly licensed to conduct business in the State of Texas. Its principal place of
Williams v Martin Marietta, et a].
Plaintiffs’ First Amended Petition Page 1 of 10
business in Texas is 1341 West Mockingbird Lane, Suite 700, Dallas, Dallas County, Texas 75247.
This defendant has appeared and no further service is requested at this time.
4. Defendant, TEXAS INDUSTRIES, INC. is a Delaware corporation, registered as a foreign
for—Profit Corporation duly licensed to conduct business in the State of Texas. Its principal place of
business in Texas is 1341 West Mockingbird Lane, Suite 700, Dallas, Dallas County, Texas 75247.
This defendant has appeared and no further service is requested at this time.
5. Defendant, MARTIN MARIETTA is a Delaware corporation, registered as a foreign for-
Profit Corporation duly licensed to conduct business in the State of Texas. Its principal place of
business in Texas is 1341 West Mockingbird Lane, Suite 700, Dallas, Dallas County, Texas 75247.
This defendant has appeared and no further service is requested at this time.
6. Defendant, MARTIN MARIETTA MATERIALS, INC. is a North Carolina corporation,
registered as a foreign for—Profit Corporation duly licensed to conduct business in the State of
Texas. This defendant has appeared and no further service is requested at this time.
7. Defendant, MARTIN MARIETTA MATERIALS SOUTHWEST, L.L.C. is a Domestic
Limited liability Company duly licensed to conduct business in the State of Texas. This defendant
has appeared and no further service is requested at this time.
8. Plaintiff specifically invokes the right to institute this suit against Defendants TXI
OPERATIONS, L.P., TEXAS INDUSTRIES, INC. MARTIN MARIETTA, MARTIN
MARIETTA MATERIALS, INC. AND MARTIN MARIETTA MATERIALS SOUTHWEST,
L.L.C. and any other names which have been used to designate them, or which they have used,
including, but not limited to, “TXI OPERATIONS, L.P., TEXAS INDUSTRIES, INC., MARTIN
MARIETTA, MARTIN MARIETTA MATERIALS, INC., AND MARTIN MARIETTA
MATERIALS SOUTHWEST, L.L.C.,.” Plaintiff expressly invokes his right under Rule 28 of the
Texas Rules of Civil Procedure to have the true name of any of these parties substituted at a later
Williams v Martin Marietta, et a].
Plaintiffs’ First Amended Petition Page 2 of 10
time upon the motion of any party or of the Court. In the event any parties are misnamed or not
included herein, such event was a “misnomer,” or such parties are or were “alter—egos” of parties
named herein.
9. Here after, Plaintiff collectively refers to the all such defendants in this cause as “MARTIN
MARIETTA ENTITIES”:
C. JURISDICTION AND VENUE
10. Jurisdiction is proper in this Court because Plaintiff is entitled to damages in excess of the
minimum jurisdiction of this Court. Specifically, Plaintiffs seeks monetary relief over ONE
MILLION DOLLARS ($1,000,000.00). Pursuant to Section 15.002(A) (3) of the TEXAS CIVIL
PRACTICE & REMEDIES CODE, venue is proper in Dallas County because one or more defendants
have its principal office in Texas in this county.
D. FACTUAL BACKGROUND
11. Plaintiff, MICHAEL WILLIAMS brings this suit to recover damages for personal injuries
sustained as a result of an incident while working for his employer 3B Dozer Service, LLC at a mine
in New Braunfels, Comal County, Texas, on or about September 28, 2018 that was owned, operated
and controlled by one or more MARTIN MARIETTA ENTITIES. Said incident was proximately
caused by the negligence of MARTIN MARIE'ITA ENTITIES.
12. One or more MARTIN MARIETTA ENTITIES own, operate and control a mine named
the “Hunter Cement Plant” at 7781 FM 1102 New Braunfels, Texas (hereinafter referred to as “MM
Hunter”). The mine identification number for lVIM Hunter assigned by the Mine Safety and Health
Administration (“MSHA”) is 4102820.
13. In January 2018, MARTIN MARIETTA ENTITIES and 3B Dozer Service, LLC
(hereinafter referred to as “3B Dozer) made a written contract whereby 3B Dozer would provide on
call services, labor and equipment to MARTIN MARIETTA ENTITIES at unspecified locations.
Williams v Martin Marietta, et a].
Plaintiffs’ First Amended Petition Page 3 of 10
Pursuant to that agreement, MARTIN MARIETTA ENITITES requested that 3B Dozer come to
the MM Hunter mine in September 2018 to perform services in a containment vessel MARTIN
MARIETTA ENITTIES called “Dog House Two” (hereinafter referred to as “DH2”).
14. Pursuant to 3O CFR § 57.16002, DHZ was a “bin” where MARTIN MARIETTA
ENTITIES stored loose unconsolidated materials at the MM Hunter mine. Specifically, the DHZ
bin sat directly under a conveyor that transported cement material (called “clinker” at this stage of
the manufacturing process) from an adjacent rotary kiln furnace downstream towards the rest of the
cement manufacturing process. As the cement material passed over the top of DHZ, some of the
hot cement powder would shake off the conveyor and drop into the DH2 containment vessel where
it was stored and then later removed. The cement powder that collected in DH2 was highly caustic
and, unless allowed to cool, its temperature was over 1000 degrees Fahrenheit. MARTIN
MARIETTA ENTITIES engaged 3B Dozer to vacuum the accumulated hot cement powder out of
DH2.
15. Prior to allowing Plaintiff and other 3B Dozer employees to work at the MM Hunter mine
generally, and in DH2 specifically, MARTIN MARIETTA ENTITIES owed those employees the
following duties, among others: 1) a primary duty to provide adequate site specific hazard awareness
training pursuant to 30 C.F.R § 46.11; 2) a duty to conduct workplace exams to identify conditions
which may affect safety and health pursuant to 30 C.F.R. 56.18002; 3) a duty to guard against
entrapment or sliding of materials in “bins” or other such containment vessels pursuant to 30 C.F.R.
56.16002; 4) a duty to shut off the cement kiln furnace and/ or the conveyor while miners were
working in DH2 and/ or allow the cement powder to adequately cool pursuant to 30 C.F.R.
56.14105; and, 5) a duty to ensure miners performing work in DH2 had adequate personal
protective equipment (PPE) to safely perform their work pursuant to 30 CFR 56.15006. MARTIN
Williams v Martin Marietta, et a].
Plaintiffs’ First Amended Petition Page 4 of 10
MARIETTA ENTITIES breach these duties owed to Plaintiff in whole or in part which
proximately caused Plaintist damages.
16. Prior to the incident involved in this lawsuit, Plaintiff was employed with 3B Dozer for only
about one year prior. Pursuant to MSHA requirements, when Plaintiff was hired by 3B Dozer, they
provided him “New Miner” training. This “New Miner” training included general topics such as first
aid, mine escape systems, respiratory devices and general hazard recognition. However, when 3B
Dozer employees would enter the premises of a particular mine, the mine owner, operator and/ or
controller had the responsibility for providing contractors such as 3B Dozer “Site Specific
Hazard Awareness Training” pursuant to 30 CFR § 46.11.
17. “Site specific hazard awareness training . . . must address site—specific health and safety risks,
such as unique geologic or environmental conditions . . . or other special safety procedures”
concerning “hazards a person could be exposed to while at the mine.” 3O CFR § 46.11. Plaintiff
never received Site Specific Hazard Awareness Training about the MM Hunter mine.
18. On September 28, 2018, Plaintiff was working for 3B Dozer as a vacuumer in DH2 at the
l\/[M Hunter mine. Plaintiff had only been to the MM Hunter mine twice before. His work there for
that day was to remove / vacuum out a large amount of hot cement powder which accumulated in
DH2.
19. DHZ had two entry doors: one main entry door and one smaller door. Each door was
locked from the outside and MARTIN MARIETTA ENTITIES controlled access to the inside of
DHZ through a set of keys under their exclusive control. Earlier that day, MARTIN MARIETTA
ENTITIES opened the locks providing Plaintiff and his 3B Dozer co-workers access into DH2.
20. Prior to the vacuuming work beginning, MARTIN MARIETTA ENTITIES refused to turn
off the overhead conveyor in DH2. The switch for turning off the conveyor was in a separate
control room adjacent to DH2. Defendants had exclusive control over both the conveyor cutoff
Williams v Martin Marietta, et a].
Plaintiffs’ First Amended Petition Page 5 of 10
switch and the control room to which Plaintiff and his employer, 3B Dozer, had no right of access.
Additionally, MARTIN MARIETTA ENTITIES did not allow the cement powder adequate time to
cool prior to giving 3B Dozer’s employees access into DH2 to begin their vacuuming work. In that
way, MARTIN MARIETTA ENTITIES had a right of control over the details of when Plaintiff and
his 3B Dozer employees started their work and the temperature of the cement powder when that
work began.
21. Prior to the vacuuming work beginning in DH2 on September 28, 2018, MARTIN
MARIETTA ENTITIES attempted to open the DHZ main door, but the hot cement powder
accumulated so high that the main door was blocked, and MARTIN MARIETTA ENTITIES
provided access by unlocking the smaller door instead.
22. The vacuuming first began with another 3B Dozer employee standing outside the smaller
door to vacuum an entry path inside the storage bin. The cement powder was so hot that the 3B
Dozer workers each took 10—minute shifts of vacuuming inside the storage bin
23. When Plaintiff and a 3B Dozer co—worker were finally inside DHZ, a large pile of
accumulated hot cement powder partially collapsed and began to slide in the direction Plaintiff and
his co—worker. Plaintiff’s co—worker was able to avoid getting hit with most of the sliding hot cement
powder, but Plaintiff was not so lucky. A large amount of hot cement powder flowed into the top of
Plaintiffs work boot causing Plaintiff to suffered third degree burns to his left foot and lower leg.
24. This incident was proximately caused by the negligent acts and/ or omissions of MARTIN
MARIETTA ENTITIES as specified below whereby Plaintiff sustained serious injuries and damages as
stated further herein.
E. RESPONDEAT SUPERIOR
25. At all relevant times herein, all of the agents, servants, or employees of MARTIN MARIETTA
ENTITIES who were in any way connected to this suit were acting within the course and scope of their
Williams v Martin Marietta, et a].
Plaintiffs’ First Amended Petition Page 6 of 10
employment or official duties and in furtherance of the duties of their office or employment.
Therefore, the acts or omissions of those agents, servants, or employees are attributable to MARTIN
MARIETTA ENTITIES and renders MARTIN MARIE'ITA ENTITIES liable for all damages
suffered by Plaintiff under the doctrine of mpom’eat :zgbm’or.
F. NEGLIGENCE OF DEFENDANTS
26. At all material times, Plaintiff was miner engaged in mining operations at the MM Hunter
mine pursuant to 30 C.F.R. § 46.2(g)(1). Additionally, Plaintiff was an invitee on the premises
controlled by MARTIN MARIETTA ENTITIES who had exclusive control over access to DHZ,
the furnace kiln, hot cement powder, the transportation of the hot cement powder DH2, and the
exclusive right of control to manage the manufacturing process room which created the dangerous
condition injuring Plaintiff.
27. Plaintiff alleges that, upon the occasion in question, MARTIN MARIETTA ENTITIES
failed to use ordinary care by various acts and omissions in at least the following ways:
a. failing to provide Plaintiff with adequate site specific hazard awareness training
pursuant to 30 C.F.R § 46.11;
b. failing to conduct workplace exams to identify conditions which may affect
Plaintist safety and health pursuant to 3O C.F.R. 56.18002;
c. failing to guard against entrapment or sliding of materials in “bins” or other such
containment vessels pursuant to 30 C.F.R. 56.16002;
d. failing to shut off the cement kiln furnace and/ or the conveyor while Plaintiff was
working in DHZ and / or allow the cement powder to adequately cool pursuant to 30
C.F.R. 56.14105;
e. failing to ensure Plaintiff had adequate personal protective equipment (PPE) to
safely perform his work pursuant to 30 CFR 56.15006;
f. allowing access to DHZ without to stopping the cement mining process pursuant to
30 CFR 56.14105;
Williams v Martin Marietta, et a].
Plaintiffs’ First Amended Petition Page 7 of 10
failing to remedy the dangerous condition in DH2 before providing access for
Plaintiff to begin his work there and/ or failed to adequately warn against that
dangerous condition;
failing to inspect DH2 for pre—existing and/ or contemporaneous dangers prior to
allowing Plaintiff to work inside DHZ;
failing to provide adequate warnings and/ or instructions to Plaintiff and/ or his
employer about hazardous operations involving hot cement powder at the MM
Hunter mine to which MARTIN MARRIETA DEFENDANTS knew but failed t0
adequately warn and/ or instruct Plaintiff and/ or his employer;
creating and maintaining an unsafe or unreasonably dangerous condition in DHZ;
and
encouraging employees and contractors to perform work in a reckless or unsafe
manner.
28. Each and all of the above stated acts or omissions constitute negligence and/ or negligence
per se and the same are a proximate cause of the injuries and damages sustained by Plaintiff.
G. DAMAGES
29. Plaintiff would show that, as a direct and proximate result of the above-mentioned incident,
Plaintiffs sustained significant personal injuries and damages, including but not limited to the following:
Past and future physical pain and suffering;
b. Past and future mental anguish;
Past and future medical expenses;
Past and future disfigurement;
C. Past and future physical impairment;
f. Past and future lost earning capacity; and
Past and future loss of enjoyment of life.
H. DEMAND BY JURY TRIAL
30. Plaintiff demands a trial by Jury. Plaintiff acknowledges prior payment of the required jury
fee.
Williams v Martin Marietta, et a].
Plaintiffs’ First Amended Petition Page 8 of 10
I. DESIGNATED E-SERVICE E-MAIL ADDRESS
31 The following is the undersigned attorney’s designated—Service e—mail address for all e—served
documents and notices, filed and unfiled, pursuant to Texas Rules of Civil Procedure 21(f)(2) &
_
21(a): wrossick@ carlsonattornevs.com This is the undersigned’s only E—Service e—rnail address, and
service through any other e—mail address will be consider invalid.
J. PRAYER FOR RELIEF
32. WHEREFORE, Plaintiff requests that MARTIN MARIETTA ENTITIES be cited to
appear and answer, and that on final hearing Plaintiff has judgment against MARTIN MARIETTA
ENTITIES for an amount within the jurisdictional limits of this Court, together with pre—judgment
and post—judgment interest as provided by law, costs of court and for such other and further relief,
at law or in equity to which Plaintiff is justly entitled.
K. NOTICE OF SELF AUTHENTICATION
33. Pursuant to Rule 193.7 of the TEXAS RULES OF CIVIL PROCEDURE,
Defendants are hereby notified that the production of any document in response to written
discovery authenticates the document for use against that party in any pretrial proceeding or at trial.
Respectfully submitted,
THE CARLSON LAW FIRM, P.C.
11606 N. IH—35
Austin, Texas 78753
(512) 346-5688 Telephone
(512) 719—4362 Facsimile
Mag/Gm
BY
William G. Rossick
SBN: 00789597
wrossick@carlsonattorneys.com
Attorney for Plaintiff
Williams v Martin Marietta, et a].
Plaintiffs’ First Amended Petition Page 9 of 10
CERTIFICATE OF SERVICE
In conformity With TEXAS RULES OF CIVIL PROCEDURE 1 AND 21A, I hereby certify that a
true and correct copy of the above and foregoing instrument was served upon the following on July
12, 2021:
VIA E-SERVE:
AND / OR VIA EMAIL:
Mark E. Stradley
MarkgQStradleylawfirmcom
THE STRADLEY LAW FIRM
9330 LBJ Freeway, Suite 1185
Dallas, Texas 75243
Mmm
William G. Rossick
_
Attorney for Plaintiff
Williams v Martin Marietta, et a].
Plaintiffs’ First Amended Petition Page 10 of 10
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
William Rossick on behalf of William Rossick
Bar No. 789597
wrossick@carlsonattorneys.com
Envelope ID: 55273760
Status as of 7/14/2021 10:53 AM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Carlos Rodriguez crodriguez@carlsonattorneys.com 7/12/2021 6:46:04 PM SENT
Schmitz Christy christy@stradleylawfirm.com 7/12/2021 6:46:04 PM SENT
Mark Stradley Mark@Strad|eylawfirm.com 7/12/2021 6:46:04 PM SENT
Francine Ly fly@dallascourts.org 7/12/2021 6:46:04 PM SENT
William Rossick WRossick@carlsonattorneys.com 7/12/2021 6:46:04 PM SENT
Associated Case Party: MICHAEL WILLIAMS
Name BarNumber Email TimestampSubmitted Status
Rachel Stahlke rstahIke@carlsonattorneys.com 7/12/2021 6:46:04 PM SENT
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FILED 7/12/2021 6:46 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Darling Tellez DEPUTY CAUSE NO. DC-20-11175 MICHAEL WILLIAMS IN THE DISTRICTCOURT Plaintiff, V. TXI OPERATIONS, L.P., TEXAS INDUSTRIES, INC., OF DALLAS COUNTY, TEXAS MARTIN MARIETTA, MARTIN MARIETTA MATERIALS, INC., AND MARTIN MARIETTA MATERIALS SOUTHWEST, L.L.C., Defendant. 134TH JUDICIAL DISTRICT PLAINTIFF’S FIRST AMENDED PETITION TO THE HONORABLE JUDGE OF THIS COURT: NOW COMES MICHAEL WILLIAMS, hereafter referred t0 as “Plaintiff,” in the above entitled and numbered cause, complaining of and against TXI OPERATIONS, L.P., TEXAS INDUSTRIES, INC., MARTIN MARIETTA, MARTIN MARIETTA MATERIALS, INC, AND MARTIN MARIETTA MATERIALS SOUTHWEST, L.L.C., hereafter sometimes referred to as “Defendants,” and for cause of action would show unto the Court the following: A. DISCOVERY LEVEL 1. Pursuant to TEXAS RULE 0F CIVIL PROCEDURE 190.1, Plaintiff intends to conduct discovery in this case under Level 3 as prescribed by TEXAS RULE OF CIVIL PROCEDURE 190.4. B. PARTIES & SERVICE OF CITATION 2. Plaintiffs, MICHAEL WILLIAMS, an individual who resided in Milam County, Texas at the time of the incident which forms the basis of this lawsuit. 3. Defendant, TXI OPERATIONS, INC. is a Delaware corporation, registered as a foreign limited partnership duly licensed to conduct business in the State of Texas. Its principal place of Williams v Martin Marietta, et a]. Plaintiffs’ First Amended Petition Page 1 of 10 business in Texas is 1341 West Mockingbird Lane, Suite 700, Dallas, Dallas County, Texas 75247. This defendant has appeared and no further service is requested at this time. 4. Defendant, TEXAS INDUSTRIES, INC. is a Delaware corporation, registered as a foreign for—Profit Corporation duly licensed to conduct business in the State of Texas. Its principal place of business in Texas is 1341 West Mockingbird Lane, Suite 700, Dallas, Dallas County, Texas 75247. This defendant has appeared and no further service is requested at this time. 5. Defendant, MARTIN MARIETTA is a Delaware corporation, registered as a foreign for- Profit Corporation duly licensed to conduct business in the State of Texas. Its principal place of business in Texas is 1341 West Mockingbird Lane, Suite 700, Dallas, Dallas County, Texas 75247. This defendant has appeared and no further service is requested at this time. 6. Defendant, MARTIN MARIETTA MATERIALS, INC. is a North Carolina corporation, registered as a foreign for—Profit Corporation duly licensed to conduct business in the State of Texas. This defendant has appeared and no further service is requested at this time. 7. Defendant, MARTIN MARIETTA MATERIALS SOUTHWEST, L.L.C. is a Domestic Limited liability Company duly licensed to conduct business in the State of Texas. This defendant has appeared and no further service is requested at this time. 8. Plaintiff specifically invokes the right to institute this suit against Defendants TXI OPERATIONS, L.P., TEXAS INDUSTRIES, INC. MARTIN MARIETTA, MARTIN MARIETTA MATERIALS, INC. AND MARTIN MARIETTA MATERIALS SOUTHWEST, L.L.C. and any other names which have been used to designate them, or which they have used, including, but not limited to, “TXI OPERATIONS, L.P., TEXAS INDUSTRIES, INC., MARTIN MARIETTA, MARTIN MARIETTA MATERIALS, INC., AND MARTIN MARIETTA MATERIALS SOUTHWEST, L.L.C.,.” Plaintiff expressly invokes his right under Rule 28 of the Texas Rules of Civil Procedure to have the true name of any of these parties substituted at a later Williams v Martin Marietta, et a]. Plaintiffs’ First Amended Petition Page 2 of 10 time upon the motion of any party or of the Court. In the event any parties are misnamed or not included herein, such event was a “misnomer,” or such parties are or were “alter—egos” of parties named herein. 9. Here after, Plaintiff collectively refers to the all such defendants in this cause as “MARTIN MARIETTA ENTITIES”: C. JURISDICTION AND VENUE 10. Jurisdiction is proper in this Court because Plaintiff is entitled to damages in excess of the minimum jurisdiction of this Court. Specifically, Plaintiffs seeks monetary relief over ONE MILLION DOLLARS ($1,000,000.00). Pursuant to Section 15.002(A) (3) of the TEXAS CIVIL PRACTICE & REMEDIES CODE, venue is proper in Dallas County because one or more defendants have its principal office in Texas in this county. D. FACTUAL BACKGROUND 11. Plaintiff, MICHAEL WILLIAMS brings this suit to recover damages for personal injuries sustained as a result of an incident while working for his employer 3B Dozer Service, LLC at a mine in New Braunfels, Comal County, Texas, on or about September 28, 2018 that was owned, operated and controlled by one or more MARTIN MARIETTA ENTITIES. Said incident was proximately caused by the negligence of MARTIN MARIE'ITA ENTITIES. 12. One or more MARTIN MARIETTA ENTITIES own, operate and control a mine named the “Hunter Cement Plant” at 7781 FM 1102 New Braunfels, Texas (hereinafter referred to as “MM Hunter”). The mine identification number for lVIM Hunter assigned by the Mine Safety and Health Administration (“MSHA”) is 4102820. 13. In January 2018, MARTIN MARIETTA ENTITIES and 3B Dozer Service, LLC (hereinafter referred to as “3B Dozer) made a written contract whereby 3B Dozer would provide on call services, labor and equipment to MARTIN MARIETTA ENTITIES at unspecified locations. Williams v Martin Marietta, et a]. Plaintiffs’ First Amended Petition Page 3 of 10 Pursuant to that agreement, MARTIN MARIETTA ENITITES requested that 3B Dozer come to the MM Hunter mine in September 2018 to perform services in a containment vessel MARTIN MARIETTA ENITTIES called “Dog House Two” (hereinafter referred to as “DH2”). 14. Pursuant to 3O CFR § 57.16002, DHZ was a “bin” where MARTIN MARIETTA ENTITIES stored loose unconsolidated materials at the MM Hunter mine. Specifically, the DHZ bin sat directly under a conveyor that transported cement material (called “clinker” at this stage of the manufacturing process) from an adjacent rotary kiln furnace downstream towards the rest of the cement manufacturing process. As the cement material passed over the top of DHZ, some of the hot cement powder would shake off the conveyor and drop into the DH2 containment vessel where it was stored and then later removed. The cement powder that collected in DH2 was highly caustic and, unless allowed to cool, its temperature was over 1000 degrees Fahrenheit. MARTIN MARIETTA ENTITIES engaged 3B Dozer to vacuum the accumulated hot cement powder out of DH2. 15. Prior to allowing Plaintiff and other 3B Dozer employees to work at the MM Hunter mine generally, and in DH2 specifically, MARTIN MARIETTA ENTITIES owed those employees the following duties, among others: 1) a primary duty to provide adequate site specific hazard awareness training pursuant to 30 C.F.R § 46.11; 2) a duty to conduct workplace exams to identify conditions which may affect safety and health pursuant to 30 C.F.R. 56.18002; 3) a duty to guard against entrapment or sliding of materials in “bins” or other such containment vessels pursuant to 30 C.F.R. 56.16002; 4) a duty to shut off the cement kiln furnace and/ or the conveyor while miners were working in DH2 and/ or allow the cement powder to adequately cool pursuant to 30 C.F.R. 56.14105; and, 5) a duty to ensure miners performing work in DH2 had adequate personal protective equipment (PPE) to safely perform their work pursuant to 30 CFR 56.15006. MARTIN Williams v Martin Marietta, et a]. Plaintiffs’ First Amended Petition Page 4 of 10 MARIETTA ENTITIES breach these duties owed to Plaintiff in whole or in part which proximately caused Plaintist damages. 16. Prior to the incident involved in this lawsuit, Plaintiff was employed with 3B Dozer for only about one year prior. Pursuant to MSHA requirements, when Plaintiff was hired by 3B Dozer, they provided him “New Miner” training. This “New Miner” training included general topics such as first aid, mine escape systems, respiratory devices and general hazard recognition. However, when 3B Dozer employees would enter the premises of a particular mine, the mine owner, operator and/ or controller had the responsibility for providing contractors such as 3B Dozer “Site Specific Hazard Awareness Training” pursuant to 30 CFR § 46.11. 17. “Site specific hazard awareness training . . . must address site—specific health and safety risks, such as unique geologic or environmental conditions . . . or other special safety procedures” concerning “hazards a person could be exposed to while at the mine.” 3O CFR § 46.11. Plaintiff never received Site Specific Hazard Awareness Training about the MM Hunter mine. 18. On September 28, 2018, Plaintiff was working for 3B Dozer as a vacuumer in DH2 at the l\/[M Hunter mine. Plaintiff had only been to the MM Hunter mine twice before. His work there for that day was to remove / vacuum out a large amount of hot cement powder which accumulated in DH2. 19. DHZ had two entry doors: one main entry door and one smaller door. Each door was locked from the outside and MARTIN MARIETTA ENTITIES controlled access to the inside of DHZ through a set of keys under their exclusive control. Earlier that day, MARTIN MARIETTA ENTITIES opened the locks providing Plaintiff and his 3B Dozer co-workers access into DH2. 20. Prior to the vacuuming work beginning, MARTIN MARIETTA ENTITIES refused to turn off the overhead conveyor in DH2. The switch for turning off the conveyor was in a separate control room adjacent to DH2. Defendants had exclusive control over both the conveyor cutoff Williams v Martin Marietta, et a]. Plaintiffs’ First Amended Petition Page 5 of 10 switch and the control room to which Plaintiff and his employer, 3B Dozer, had no right of access. Additionally, MARTIN MARIETTA ENTITIES did not allow the cement powder adequate time to cool prior to giving 3B Dozer’s employees access into DH2 to begin their vacuuming work. In that way, MARTIN MARIETTA ENTITIES had a right of control over the details of when Plaintiff and his 3B Dozer employees started their work and the temperature of the cement powder when that work began. 21. Prior to the vacuuming work beginning in DH2 on September 28, 2018, MARTIN MARIETTA ENTITIES attempted to open the DHZ main door, but the hot cement powder accumulated so high that the main door was blocked, and MARTIN MARIETTA ENTITIES provided access by unlocking the smaller door instead. 22. The vacuuming first began with another 3B Dozer employee standing outside the smaller door to vacuum an entry path inside the storage bin. The cement powder was so hot that the 3B Dozer workers each took 10—minute shifts of vacuuming inside the storage bin 23. When Plaintiff and a 3B Dozer co—worker were finally inside DHZ, a large pile of accumulated hot cement powder partially collapsed and began to slide in the direction Plaintiff and his co—worker. Plaintiff’s co—worker was able to avoid getting hit with most of the sliding hot cement powder, but Plaintiff was not so lucky. A large amount of hot cement powder flowed into the top of Plaintiffs work boot causing Plaintiff to suffered third degree burns to his left foot and lower leg. 24. This incident was proximately caused by the negligent acts and/ or omissions of MARTIN MARIETTA ENTITIES as specified below whereby Plaintiff sustained serious injuries and damages as stated further herein. E. RESPONDEAT SUPERIOR 25. At all relevant times herein, all of the agents, servants, or employees of MARTIN MARIETTA ENTITIES who were in any way connected to this suit were acting within the course and scope of their Williams v Martin Marietta, et a]. Plaintiffs’ First Amended Petition Page 6 of 10 employment or official duties and in furtherance of the duties of their office or employment. Therefore, the acts or omissions of those agents, servants, or employees are attributable to MARTIN MARIETTA ENTITIES and renders MARTIN MARIE'ITA ENTITIES liable for all damages suffered by Plaintiff under the doctrine of mpom’eat :zgbm’or. F. NEGLIGENCE OF DEFENDANTS 26. At all material times, Plaintiff was miner engaged in mining operations at the MM Hunter mine pursuant to 30 C.F.R. § 46.2(g)(1). Additionally, Plaintiff was an invitee on the premises controlled by MARTIN MARIETTA ENTITIES who had exclusive control over access to DHZ, the furnace kiln, hot cement powder, the transportation of the hot cement powder DH2, and the exclusive right of control to manage the manufacturing process room which created the dangerous condition injuring Plaintiff. 27. Plaintiff alleges that, upon the occasion in question, MARTIN MARIETTA ENTITIES failed to use ordinary care by various acts and omissions in at least the following ways: a. failing to provide Plaintiff with adequate site specific hazard awareness training pursuant to 30 C.F.R § 46.11; b. failing to conduct workplace exams to identify conditions which may affect Plaintist safety and health pursuant to 3O C.F.R. 56.18002; c. failing to guard against entrapment or sliding of materials in “bins” or other such containment vessels pursuant to 30 C.F.R. 56.16002; d. failing to shut off the cement kiln furnace and/ or the conveyor while Plaintiff was working in DHZ and / or allow the cement powder to adequately cool pursuant to 30 C.F.R. 56.14105; e. failing to ensure Plaintiff had adequate personal protective equipment (PPE) to safely perform his work pursuant to 30 CFR 56.15006; f. allowing access to DHZ without to stopping the cement mining process pursuant to 30 CFR 56.14105; Williams v Martin Marietta, et a]. Plaintiffs’ First Amended Petition Page 7 of 10 failing to remedy the dangerous condition in DH2 before providing access for Plaintiff to begin his work there and/ or failed to adequately warn against that dangerous condition; failing to inspect DH2 for pre—existing and/ or contemporaneous dangers prior to allowing Plaintiff to work inside DHZ; failing to provide adequate warnings and/ or instructions to Plaintiff and/ or his employer about hazardous operations involving hot cement powder at the MM Hunter mine to which MARTIN MARRIETA DEFENDANTS knew but failed t0 adequately warn and/ or instruct Plaintiff and/ or his employer; creating and maintaining an unsafe or unreasonably dangerous condition in DHZ; and encouraging employees and contractors to perform work in a reckless or unsafe manner. 28. Each and all of the above stated acts or omissions constitute negligence and/ or negligence per se and the same are a proximate cause of the injuries and damages sustained by Plaintiff. G. DAMAGES 29. Plaintiff would show that, as a direct and proximate result of the above-mentioned incident, Plaintiffs sustained significant personal injuries and damages, including but not limited to the following: Past and future physical pain and suffering; b. Past and future mental anguish; Past and future medical expenses; Past and future disfigurement; C. Past and future physical impairment; f. Past and future lost earning capacity; and Past and future loss of enjoyment of life. H. DEMAND BY JURY TRIAL 30. Plaintiff demands a trial by Jury. Plaintiff acknowledges prior payment of the required jury fee. Williams v Martin Marietta, et a]. Plaintiffs’ First Amended Petition Page 8 of 10 I. DESIGNATED E-SERVICE E-MAIL ADDRESS 31 The following is the undersigned attorney’s designated—Service e—mail address for all e—served documents and notices, filed and unfiled, pursuant to Texas Rules of Civil Procedure 21(f)(2) & _ 21(a): wrossick@ carlsonattornevs.com This is the undersigned’s only E—Service e—rnail address, and service through any other e—mail address will be consider invalid. J. PRAYER FOR RELIEF 32. WHEREFORE, Plaintiff requests that MARTIN MARIETTA ENTITIES be cited to appear and answer, and that on final hearing Plaintiff has judgment against MARTIN MARIETTA ENTITIES for an amount within the jurisdictional limits of this Court, together with pre—judgment and post—judgment interest as provided by law, costs of court and for such other and further relief, at law or in equity to which Plaintiff is justly entitled. K. NOTICE OF SELF AUTHENTICATION 33. Pursuant to Rule 193.7 of the TEXAS RULES OF CIVIL PROCEDURE, Defendants are hereby notified that the production of any document in response to written discovery authenticates the document for use against that party in any pretrial proceeding or at trial. Respectfully submitted, THE CARLSON LAW FIRM, P.C. 11606 N. IH—35 Austin, Texas 78753 (512) 346-5688 Telephone (512) 719—4362 Facsimile Mag/Gm BY William G. Rossick SBN: 00789597 wrossick@carlsonattorneys.com Attorney for Plaintiff Williams v Martin Marietta, et a]. Plaintiffs’ First Amended Petition Page 9 of 10 CERTIFICATE OF SERVICE In conformity With TEXAS RULES OF CIVIL PROCEDURE 1 AND 21A, I hereby certify that a true and correct copy of the above and foregoing instrument was served upon the following on July 12, 2021: VIA E-SERVE: AND / OR VIA EMAIL: Mark E. Stradley MarkgQStradleylawfirmcom THE STRADLEY LAW FIRM 9330 LBJ Freeway, Suite 1185 Dallas, Texas 75243 Mmm William G. Rossick _ Attorney for Plaintiff Williams v Martin Marietta, et a]. Plaintiffs’ First Amended Petition Page 10 of 10 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. William Rossick on behalf of William Rossick Bar No. 789597 wrossick@carlsonattorneys.com Envelope ID: 55273760 Status as of 7/14/2021 10:53 AM CST Case Contacts Name BarNumber Email TimestampSubmitted Status Carlos Rodriguez crodriguez@carlsonattorneys.com 7/12/2021 6:46:04 PM SENT Schmitz Christy christy@stradleylawfirm.com 7/12/2021 6:46:04 PM SENT Mark Stradley Mark@Strad|eylawfirm.com 7/12/2021 6:46:04 PM SENT Francine Ly fly@dallascourts.org 7/12/2021 6:46:04 PM SENT William Rossick WRossick@carlsonattorneys.com 7/12/2021 6:46:04 PM SENT Associated Case Party: MICHAEL WILLIAMS Name BarNumber Email TimestampSubmitted Status Rachel Stahlke rstahIke@carlsonattorneys.com 7/12/2021 6:46:04 PM SENT