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DALLAS COUNTY
11/17/2016 1:49:57 PM
FELICIA PITRE
DISTRICT CLERK
Cause No. DC-15-07174
IN THE DISTRICT COURT
JOHN Doe I, Individually
and as Next Friend of JOHN Doe II, a
Minor,
Plaintiffs,
ve
WILLIAM C. ANDERSON, LEVONNA C.
ANDERSON, ALEXANDER A. ANDERSON, 44™ JupiciAL DISTRICT
RIPLEY ENTERTAINMENT, INC., AND JIM
PATTISON U.S.A., INC.
Defendants.
OF DALLAS COUNTY, TEXAS
PLAINTIFFS’ RESPONSE AND COUNTER MOTION FOR SUMMARY JUDGMENT TO DEFENDANTS’
MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING DTPA CLAIMS
John Doe I and John Doe II (“Plaintiffs”), file this Response! and Counter Motion
for Summary Judgment to Ripley Entertainment, Inc. and Jim Pattison U.S.A., Inc.'s
(collectively “Defendants”) No Evidence Motion for Partial Summary Judgment
Regarding Texas Deceptive Trade Practices Act Claims and in support thereof shows the
Court as follows:
' Plaintiffs reserve the right to bring additional evidence in response to Defendants’ No-Evidence Motion
per the 7exas Rules of Civil Procedure.
PLAINTIFFS’ RESPONSE AND COUNTER MOTION FOR SUMMARY JUDGMENT TO DEFENDANTS’ MOTION
FOR PARTIAL SUMMARY JUDGMENT REGARDING DTPA CLAIMS Page 1
SUMMARY OF DEFENDANTS’ MOTION AND PLAINTIFFS’ COUNTER-MOTION
1
Defendants bring a No-Evidence Motion that in good faith never should
have been brought. Plaintiffs’ evidence to defeat Defendants’ No-Evidence motion is so
strong and so decisive, that Plaintiffs bring a Counter-Motion for Summary Judgment,
and Plaintiffs will show this Court that their claims for DTPA violations should be granted
as a matter of law, and all that should be left for the jury to determine is whether the
Defendants’ violations were committed knowingly or intentionally, and the amount of
damages for same. The evidence in this case is undisputed that Plaintiffs were
consumers who justifiably relied upon Defendants’ representations regarding Plaintiffs’
safety while visiting Ripley's Believe it or Not Grand Prairie ("RBION") that were false and
misleading in violation of the DTPA. To be clear, Defendants do not even dispute that
they made the representations, and that they were false. This cannot be stated enough.
Defendants admit that their representations about guest safety were false.
Moreover, it is undisputed that Plaintiffs were consumers, as defined by the statute.
EVIDENCE RELIED UPON
Plaintiffs rely upon the following evidence to defeat the Defendants’
Motion:
Deposition transcript of John Doe I, which is attached hereto as Exhibit 1
and incorporated herein by reference as if fully set forth herein;
Deposition transcript of Rachel Rotella, which is attached hereto as Exhibit
2 and incorporated herein by reference as if fully set forth herein;
PLAINTIFFS’ RESPONSE AND COUNTER MOTION FOR SUMMARY JUDGMENT TO DEFENDANTS’ MOTION
FOR PARTIAL SUMMARY JUDGMENT REGARDING DTPA CLAIMS Page 2
Affidavit of Morris R. McGowen, Jr., which is attached hereto as Exhibit 3
and incorporated herein by reference as if fully set forth herein;
Deposition transcript of Amanda Emmons, which is attached hereto as
Exhibit 4 and incorporated by reference herein as if fully set forth herein.
Deposition transcript of Andrew Morales, which is attached hereto as
Exhibit 5 and incorporated by reference as if fully set forth herein;
Deposition transcript of Alexis Garcia, which is attached hereto as Exhibit
6 and incorporated by reference as if fully set forth herein;
Deposition transcript of Clay Stewart, which is attached hereto as Exhibit 7
and incorporated by reference as if fully set forth herein;
Deposition transcript of Phyllis Callaway, which is attached hereto as
Exhibit 8 and incorporated by reference as if fully set forth herein;
Deposition transcript of William C. Anderson, which is attached hereto as
Exhibit 9 and incorporated by reference as if fully set forth herein; and
Deposition exhibits 125 (not attached for privacy) and 307 both
incorporated herein by reference as if fully set forth herein.
THE LAW ON DTPA AND APPLICATION TO THIS CASE
Consumer
3 It is honestly hard to understand how Defendants can challenge Plaintiffs’
role as consumers in this matter in good faith. “Consumer” means an individual,
partnership, corporation, this state, or a subdivision or agency of this state who seeks
or acquires by purchase or lease, any goods or services, except that the term does not
PLAINTIFFS’ RESPONSE AND COUNTER MOTION FOR SUMMARY JUDGMENT TO DEFENDANTS’ MOTION
FOR PARTIAL SUMMARY JUDGMENT REGARDING DTPA CLAIMS Page 3
include a business consumer that has assets of $25 million or more, or that is owned or
controlled by a corporation or entity with assets of $25 million or more? It is
undisputed that Plaintiffs purchased their tickets to Ripley's Believe it or Not in this
matter. Deposition Exhibit 125 notes that John Doe I paid for him and his son's
entrance into RBION. This, in itself, gives Plaintiffs the status as consumers under the
DTPA. It is unclear if Defendants are arguing that if Plaintiffs indirectly paid for their
tickets, this may affect their status. If so, it is an incorrect understanding of the DTPA.
The Supreme Court has made it clear that consumers themselves do not need to be
the one who purchases the goods or services.’ Privity between Plaintiffs and
Defendants is not necessary, either, although it is present here.> In any event, it is
patently obvious that Plaintiffs are consumers under the DTPA.
Deceptive Acts or Practices
4. Defendants represented to Plaintiffs (and all other guests) the following:
FOR THE SECURITY OF OUR GUESTS, THESE PREMISES® ARE
BEING ELECTRONICALLY MONITORED 24 HOURS A DAY.”
Andrew Morales testified in his capacity as General Manager of RBION that his
* Tex. Bus. & Com. Code Ann. § 17.45 (West)
3 Exhibit 9 page 91, lines 14-24; page 92, lines 22-23; page 94, lines 15-20; Exhibit 1 page 108, lines 12-14;
page 109 lines 4-6; page 205, lines 12-22.
4 Kennedy v. Sale 689 S.W.2d 890, 892 (Tex. 1985).
3 Id. at 893.
® Merriam Webster's Dictionary defines premises as a building and the area of land that it is on. Oxford
Dictionary defines premises as a house or building, together with its land and outbuildings, occupied by a
business or considered in an official context.
” Deposition Exhibit 307
PLAINTIFFS’ RESPONSE AND COUNTER MOTION FOR SUMMARY JUDGMENT TO DEFENDANTS’ MOTION
FOR PARTIAL SUMMARY JUDGMENT REGARDING DTPA CLAIMS Page 4
understanding of the meaning of the word “premises” included inside the RBION
building and inside the RBION attractions.® Plaintiffs request that the Court take judicial
notice of the definition of “premises” under 7exas Rule of Evidence 201, as meaning
the entire RBION building, including the attractions.
5 To prevail in an action under the DTPA, the Plaintiffs (consumers) have to
show that Defendants committed one or more of the following:
a causing confusion or misunderstanding as to the source, sponsorship,
approval, or certification of goods or services;
representing that goods or services have sponsorship, approval,
characteristics, ingredients, uses, benefits, or quantities which they do not
have or that a person has a sponsorship, approval, status, affiliation, or
connection which the person does not;
representing that goods or services are of a particular standard, quality, or
grade, or that goods are of a particular style or model, if they are of
another;
advertising goods or services with intent not to sell them as advertised;
representing that an agreement confers or involves rights, remedies, or
obligations which it does not have or involve, or which are prohibited by
law;
representing that work has or services have been performed on, or parts
replaced in, goods when the work or services were not performed or the
parts replaced; and
9g failing to disclose information concerning goods or services which was
° Exhibit 5 page 48, lines 17-25; page 49, lines 1-25, page 50, lines 1-14.
PLAINTIFFS’ RESPONSE AND COUNTER MOTION FOR SUMMARY JUDGMENT TO DEFENDANTS’ MOTION
FOR PARTIAL SUMMARY JUDGMENT REGARDING DTPA CLAIMS Page 5
known at the time of the transaction if such failure to disclose such
information was intended to induce the consumer into a transaction into
which the consumer would not have entered had the information been
disclosed?
In this matter, it is undisputed that Defendants committed each of the
deceptive acts outlined in a. - g. Defendants represented to all guests, including
Plaintiffs that Ripley's actually monitors them electronically for their safety 24 hours a
day at all times."° This representation included the areas inside the RBION attractions.
Moreover, a reasonable guest at Ripley's such as John Doe I would (and did) rely upon
Ripley's representations regarding monitoring its premises for guest safety (which it
effectively did not do) when evaluating whether Ripley's was a safe place to take a
child."
7 Unfortunately, Defendants’ representations about electronic monitoring
and guest safety were simply false.'* Defendants did not electronically monitor guests
for their safety."* In fact, there were no video cameras at all in the area where John
Doe II was sexually assaulted by Alexander Anderson, which Defendants knew
contradicted their clear representation that there were.'* Defendants readily admit
° Texas Business & Commerce Code Section 17.46(b)
" Exhibit 2 page 127, lines 19-25; page 128, line 1 and Exhibit 3 page 4, paragraph 12 and Deposition
exhibit 307.
"Id.
” Exhibit 2 page 128, lines 4-9.
"3 Id, Exhibit 6 page 34 lines 10-20.
"Id; Exhibit 3 page 2, paragraph 4.
PLAINTIFFS’ RESPONSE AND COUNTER MOTION FOR SUMMARY JUDGMENT TO DEFENDANTS’ MOTION
FOR PARTIAL SUMMARY JUDGMENT REGARDING DTPA CLAIMS Page 6
that the cameras were not even in place for guest safety, but for employee theft and
vandalism on the exhibits." Moreover, the only video monitor that depicted what the
cameras showed was locked behind a door in the “safe room” where no employees
were located, and only a few people had a key for access.'© And, Defendants did not
task anyone with actually “monitoring” the monitor, as Defendants’ represented."”
8 Phyllis Callaway, the number 2 person for the entire company overseeing
RBION clearly admits that the video cameras are not placed in attractions at RBION for
guest safety."® Ms. Callaway goes on to admit that it is an untrue statement to
represent to guests that they were monitored for their safety.’ To reiterate,
Defendants’ second in command admits to the false statement. This is dispositive to
the entire motion.
9 Clay Stewart is the Regional Manager for Defendants who oversees
California and Texas, and he has never heard that there are any cameras at RBION for
guest safety.°° Mr. Stewart goes on to testify that he has never heard that guest safety
is even considered when placing video cameras at RBION.”" No employees for
Defendants were even tasked with monitoring the video cameras for Defendants, in
"5 Exhibit 5, page 46, lines 2-12.
" Exhibit 4 page 20, lines 21-25, page 21, lines 1-16.
"Id.
"® Exhibit 8, page 28, lines 6-18; page 30, lines 16-24.
" Exhibit 8, page 32, lines 21-24; page 33, lines 1-5.
°° Exhibit 7, page 31, lines 13-23
*" Id. at page 33, lines 5-12.
PLAINTIFFS’ RESPONSE AND COUNTER MOTION FOR SUMMARY JUDGMENT TO DEFENDANTS’ MOTION
FOR PARTIAL SUMMARY JUDGMENT REGARDING DTPA CLAIMS Page 7
direct contradiction to Defendants’ representations”? Moreover, Defendants
unequivocally admit that the video cameras it does have are not there for guests’
safety,”? and Defendants do not monitor any of the video cameras they do have.”
Additionally, it is undisputed that John Doe I reasonably relied upon Ripley's
representations.”
PRAYER
10. Plaintiffs pray that, upon final hearing the Court deny Defendants’ Motion
for Summary Judgment in all respects, and grant Plaintiffs’ Motion for Summary
Judgment. Plaintiffs further requests all other relief to which they are entitled both in
law and in equity.
Exhibit 5 page 44, line 25; page 45, lines 1-3.
Exhibit 2 page 118 lines 5-14.
*4 Exhibit 2 122 lines 20-23.
*5 Exhibit 1 (vol. 2) page 42 lines 19-25.
PLAINTIFFS’ RESPONSE AND COUNTER MOTION FOR SUMMARY JUDGMENT TO DEFENDANTS’ MOTION
FOR PARTIAL SUMMARY JUDGMENT REGARDING DTPA CLAIMS Page 8
Respectfully submitted,
By:
JOHN D. SLOAN, JR.
7°
State Bar No.: 00792080
DOUuGLas W. LUKASIK
State Bar No. 24046326
SLOAN MATNEY, LLP
3838 Oak Lawn Ave.
Suite 1200
Dallas, Texas 75219
214.253.0101 (Sloan)
214.253.0103 (Lukasik)
214.237.5474 (Facsimile)
jsloan@sloanmatney.com
dlukasik@sloanmatney.com
ATTORNEYS FOR PLAINTIFFS
PLAINTIFFS’ RESPONSE AND COUNTER MOTION FOR SUMMARY JUDGMENT TO DEFENDANTS’ MOTION
FOR PARTIAL SUMMARY JUDGMENT REGARDING DTPA CLAIMS Page 9
CERTIFICATE OF SERVICE
I hereby certify that on the 17th day of November, 2016 a true and correct copy
of the foregoing document has been served via e-service on:
S. Todd Parks
Walters, Balido & Crain, L.L.P.
10440 North Central Expressway
Meadow Park Tower, Suite 1500
Dallas, Texas 75231
todd.parks@wbclawfirm.com
ParksEDocsNotifications@wbclawfirm.com
Rocky Feemster
Touchstone, Bernays
4040 Renaissance Tower
1201 Elm Street
Dallas, Texas 75270
rocky.feemster@tbjbs.com
Robert W. Hammer
300 Legacy Downs Drive
Fort Worth, Texas 76126
robert@rhammerlaw.com
7°
John D. Sloan, Jr.
4816-3835-8589, v. 1
PLAINTIFFS’ RESPONSE AND COUNTER MOTION FOR SUMMARY JUDGMENT TO DEFENDANTS’ MOTION
FOR PARTIAL SUMMARY JUDGMENT REGARDING DTPA CLAIMS Page 10
Exhibit 1
CAUSE NO. DC-15-07174
JOHN DOE I, Individually and as ) IN THE DISTRICT COURT
Next Friend of JOHN DOE II, a
Minor,
Plaintiffs,
v DALLAS COUNTY, TEXAS
)
THE ANDERSON PRIVATE SCHOOL, )
WILLIAM C. ANDERSON, INDIVIDUALLY, )
LEVONNA C. ANDERSON, INDIVIDUALLY, )
ALEXANDER A. ANDERSON, INDIVIDUALLY,)
RIPLEY ENTERTAINMENT, INC., )
AND JIM PATTISON U.S.A., INC. )
)
Defendants. ) 44TH-B JUDICIAL DISTRICT
FRI I I IO I IO IO I IO IO II IO IOI IO IO IO I IO IO IOI IO I OK Ik
ORAL AND VIDEOTAPED DEPOSITION OF
ae
JANUARY 14, 2016
VOLUME I
FRI I I IO I IO IO I IO IO II IO IOI IO IO IO I IO IO IOI IO I OK Ik
ORAL AND VIDEOTAPED DEPOSITION OF (xy
VOLUME I, produced as a witness at the instance of the
Defendants The Anderson Private School, William C. Anderson,
LeVonna C. Anderson and Alexander A. Anderson, and duly sworn,
was taken in the above-styled and numbered cause on the 14th
day of January, 2016, from 10:25 a.m. to 4:53 p.m., before
Cheryl K. Perlich, CSR in and for the State of Texas, reported
by machine shorthand, at the law offices of Sloan Matney, LLP,
located at 3838 Oak Lawn Avenue, Suite 1200, Dallas, Texas
75219, pursuant to the Texas Rules of Civil Procedure.
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«vou 2
And were there other people in the exhibits?
A Yes.
Q Did you see other people walking through the
exhibits?
A When I was searching for my son, yes.
Did you go -- well --
That's when I ran into other people --
Okay.
-- and asked them if they had seen him.
10 Did you go into any of the exhibits?
11 A Yes.
12 Q Did you buy a ticket -- did you pay to go into any of
13 the exhibits?
14 A Again, I believe I paid Dr. Anderson, but --
15 Q Fair enough. I mean, regardless of whether you paid
16 Dr. Anderson or you paid Ripley's --
17 A Some money was paid.
18 Q Either way. You paid for a ticket for yourself to go
19 into the exhibits?
20 A I know I didn't get in for free.
21 Q That's not my point. My point is: Was George Henry
22 the only person that paid for a ticket to get into the exhibit?
23 MR. SLOAN: Between the two of them?
24 MR. HAMMER: Yes.
25 A I'm confused.
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«vou
MR. SLOAN: That's okay. I was too. Just --
let's start again.
MR. HAMMER: Try it again.
Q Did you buy yourself a ticket to go into the
exhibits, whether you paid Dr. Anderson or Ripley's?
A Did I pay -- yes.
Q Okay. So it was your intention in buying the ticket
to go into the exhibits with Col
A Yes.
10 Q Was he excited to be there?
11 Yes.
12 Was he running around like the other kids?
13 Yeah.
14 And you allowed him to freely go through the gift
15 shop?
16 A Yes.
17 Q Did you have any -- did you talk to him about any
18 rules before you went in?
19 A I mean, he knows to -- to not run off.
20 Q Did he -- did you put any restrictions on what
21 exhibits he could go into and what exhibits he could not?
22 A I had every intention of going through those exhibits
23 with him. I turned around to ask Dr. Anderson --
24 MR. SLOAN: No, just answer his question.
25 THE WITNESS: Okay. I'm sorry.
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«vou
and go north and then come back up and go west on a road that's
a quarter mile north of I-30 that runs parallel, correct?
A I'd never been on that road before that day.
Q My question was, though: That's how you have to get
to Ripley's? The entrance is on the north side of the property
as opposed to the I-30, which is on the south side, correct?
A Yes, sir, that's correct.
Q Now, there was some testimony earlier about the
purchasing of the ticket. I want to make sure we're clear on
10 that.
11 A Okay.
12 Q To the best of your recollection, the Andersons
13 purchased group tickets and then you paid for a ticket for both
14 you and your son to enter Ripley's, correct?
15 A I just know that I remember paying.
16 Q Okay. Well, that's my question. I think there was
17 maybe --
18 A I remember that we paid. We didn't go for free.
19 Q Okay. That's my question: Are you here saying today
20 either you purchased it or Anderson purchased it or you just
21 don't know?
22 A No, I'm saying I purchased it.
23 Q Okay. And when you say you purchased it, did you
24 purchase it directly from Ripley's or did you purchase it
25 through a group purchase by Anderson, or you don't know?
PERLICH REPORTING SERVICES
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CAUSE NO. DC-15-07174
JOHN DOE I, INDIVIDUALLY ) IN THE DISTRICT COURT
AND AS NEXT FRIEND TO JOHN )
DOE II, A MINOR
Plaintiffs,
vs. DALLAS COUNTY, TEXAS
THE ANDERSON PRIVATE SCHOOL,
WILLIAM C. ANDERSON,
INDIVIDUALLY, LEVONNA C.
ANDERSON, INDIVIDUALLY,
ALEXANDER A. ANDERSON,
INDIVIDUALLY, RIPLEY
ENTERTAINMENT, INC., and
JIM PATTISON U.S.A., INC.
Defendants. ) 44TH-B JUDICIAL DISTRICT
KKK KKK KR RK KR KR KK KKK KK KK KK KK KKK KR KK KKK KKK KKK KKK KKK KKK KKK KKK
ORAL AND VIDEOTAPED DEPOSITION OF
a
JANUARY 15, 2016
VOLUME IT
KKK KKK KR RK KR KR KK KKK KK KK KK KK KKK KR KK KKK KKK KKK KKK KKK KKK KKK KKK
ORAL AND VIDEOTAPED DEPOSITION OF
produced as a witness at the instance of the Defendants
The Anderson Private School, William C. Anderson,
Individually, LeVonna C. Anderson, Individually, and
Alexander A. Anderson, Individually and duly sworn, was
taken in the above-styled and -numbered cause on the
15th day of January, 2016, from 10:55 a.m. to 12:57
p-m., before Chrissa K. Hollingsworth, CSR in and for
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ME * == vouuve rr
the teacher's aide keeping an eye on your son, correct?
MR. SLOAN: Objection, form. You can
answer.
A No, not that day.
Q (By Mr. Parks) Okay. Other than the day at
Ripley's, any other time that your son was in the
presence of anyone from the Anderson school, those red
flags were on your mind, correct?
MR. SLOAN: Objection, form. Go ahead.
10 A Yes.
11 Q (By Mr. Parks) Okay. What was it about the
12 day at Ripley's the 31st of October that caused you not
13 to have those red flags on your mind?
14 A The five or six other parent chaperones that
15 were there that day, being out of that school, being in
16 a public place that you -- that you believe you're being
17 watched and believe that there's video cameras
18 everywhere.
19 Q So the -- your belief that there was video
20 cameras everywhere completely removed from your mind
21 that day any concerns regarding the red flags that you
22 were aware of prior to the 31st?
23 MR. SLOAN: Objection, form.
24 Q (By Mr. Parks) Is that correct?
25 A No. It -- no, but it did comfort me to know
PERLICH REPORTING SERVICES
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Exhibit 2
CAUSE NO. DC-15-07174
JOHN DOE I, Individually and as ) IN THE DISTRICT COURT
Next Friend of JOHN DOE II, a
Minor,
Plaintiffs,
v 44TH JUDICIAL DISTRICT
)
THE ANDERSON PRIVATE SCHOOL, )
WILLIAM C. ANDERSON, INDIVIDUALLY, )
LEVONNA C. ANDERSON, INDIVIDUALLY, )
ALEXANDER A. ANDERSON, INDIVIDUALLY,)
RIPLEY ENTERTAINMENT, INC., )
AND JIM PATTISON U.S.A., INC. )
)
Defendants. ) DALLAS COUNTY, TEXAS
FRI I I I IO I I II IO II IO IOI IO IO IO I IO IO IR IO I IO Ik
ORAL AND VIDEOTAPED DEPOSITION OF
RACHEL ROTELLA
NOVEMBER 24, 2015
FRI I I I IO I I II IO II IO IOI IO IO IO I IO IO IR IO I IO Ik
ORAL AND VIDEOTAPED DEPOSITION OF RACHEL ROTELLA, produced
as a witness at the instance of the Plaintiffs, and duly sworn,
was taken in the above-styled and numbered cause on the 24th
day of November, 2015, from 10:08 a.m. to 3:18 p.m., before
Cheryl K. Perlich, CSR in and for the State of Texas, reported
by machine shorthand, at the law offices of Walters, Balido &
Crain, LLP, located at 10440 North Central Expressway, Suite
1500, Dallas, Texas 75231, pursuant to the Texas Rules of Civil
Procedure.
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RACHEL ROTELLA
of everything that's in the handbook, but it's not location
specific.
Q And when you say produced very recently, when was --
when did it come about?
A I know it was in 2015, the beginning of the year.
Q Okay. So prior to October 31, 2014, you had not
received any formal or informal training for guest safety; is
that fair?
A Yes.
10 Q And if I was to ask you what safety training you
11 received in your career for child guest safety prior to
12 October 31, 2014, your answer would be none?
13 A Yes.
14 Q Would you agree with me that Ripley's caters to
15 children as guests?
16 A Yes, yes, all sorts of families.
17 Q Yeah. And your website has pictures of children,
18 yes?
19 A I'm not sure. I can't remember. I think so, but I
20 don't remember.
21 Kids under free -- kids under four are free?
22 Yes.
23 Your company caters to field trips with kids?
24 Yes.
25 It's safe to say that you certainly expect children
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RACHEL ROTELLA
Q Is there a protocol at Ripley's Believe It or Not
Grand Prairie for employees to call someone if there are too
many guests at the site at one time?
A No, not that I'm aware of.
Q And it's my understanding that as an attraction, it's
possible you could have two people there or you could have 50
people walk in the door; is that true?
A Yes.
Q Is there -- and so based upon your previous answer,
10 it's my understanding that there's no protocol at all for an
11 employee to call somebody if they think that there's too many
12 people there?
13 A No.
14 Q Is there a standard number of employees you'd like to
15 have on site per number of patrons?
16 A Yes.
17 Q What's the number?
18 A We determine -- well, no, there's not a standard. We
19 determine our schedule based off years past. So when we create
20 our schedule, for example, on a Saturday/Sunday, we're going to
21 have the proper amount of staff for the volume that we know
22 would most likely come in.
23 Q And what -- what do you try and work out the ratios
24 between employees and potential guests?
25 MR. PARKS: Objection, form.
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RACHEL ROTELLA
A No.
Q It's Ripley's Believe It or Not's policy not to have
any staff in attractions; is that fair?
A I don't know if it's the policy.
Q Well, it's certainly not Ripley's Believe It or Not's
policy to have them in the attractions; is that fair?
A To have -- is there a policy saying we have to have
staff in the attractions?
Q At any time, yes.
10 A I don't -- I don't believe so. I don't know.
11 Q In other words, you listed me areas where the staff
12 needs to be, but you didn't list any attractions.
13 A Right.
14 Q And that wasn't an omission, that was on purpose that
15 you didn't list them, true?
16 A True. We do not have staff. We don't have someone
17 inside the attraction.
18 Q Why?
19 A We do not have revenue areas inside the attractions.
20 The attractions run themselves. It's not a tour, it's a
21 self-guided tour.
22 Q What about for safety of guests?
23 A We've never had safety issues.
24 MR. SLOAN: Objection, nonresponsive.
25 Q Do you think that it's necessary to have an employee
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RACHEL ROTELLA
Q And is that for employee theft?
A Any reason, to see if they're horseplaying. It's
just angles that we didn't have, you know, that we had
employees working.
Q But the reason that you added them, I want to see if
I can get the universe of reasons, was employee theft?
(Moving head up and down)
Yes?
Yes.
10 Horseplay?
11 Yes.
12 What other reasons?
13 A Just to make sure they're doing what they're being
14 paid to do.
15 Q Was part of it so that the employees knew there were
16 cameras -- extra cameras watching them?
17 A No.
18 Q Did they know that?
19 I don't believe so, no.
20 Let's pull up Exhibit 38 again. You should have it.
21 Okay.
22 It's that floor plan.
23 Thirty-eight?
24 Yeah.
25 Okay. Got it.
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RACHEL ROTELLA
Q And there's cameras in both back of houses all
yellow, correct?
A Yes, yes.
Q There are no cameras in the Ripley's Believe It or
Not, true?
A True.
Q Is that -- and there's no cameras inside the Mirror
Maze, correct?
A Correct.
10 Q Are those the only two places where there are no
11 cameras inside the attractions?
12 A The LaseRace.
13 Q And the LaseRace?
14 A (Moving head up and down)
15 Q What discussions have you ever had with anyone as to
16 whether there needs to be cameras inside all the attractions?
17 A I have not.
18 Q Do you think it's necessary?
19 A No. We haven't had any reason to believe so.
20 Q But it's fair to say there is -- there's no
21 electronic monitoring in either the Ripley's Believe It or Not
22 or the Mirror Maze, true?
23 A True.
24 Q And speaking of monitoring, is there someone at
25 Ripley's Believe It or Not Grand Prairie that actually monitors
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RACHEL ROTELLA
refresh. I bet you if you pull down, it refreshes. Let's go
back down and see if it popped up. Here, let me see.
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I DALLAS COUNTY 11/17/2016 1:49:57 PM FELICIA PITRE DISTRICT CLERK Cause No. DC-15-07174 IN THE DISTRICT COURT JOHN Doe I, Individually and as Next Friend of JOHN Doe II, a Minor, Plaintiffs, ve WILLIAM C. ANDERSON, LEVONNA C. ANDERSON, ALEXANDER A. ANDERSON, 44™ JupiciAL DISTRICT RIPLEY ENTERTAINMENT, INC., AND JIM PATTISON U.S.A., INC. Defendants. OF DALLAS COUNTY, TEXAS PLAINTIFFS’ RESPONSE AND COUNTER MOTION FOR SUMMARY JUDGMENT TO DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING DTPA CLAIMS John Doe I and John Doe II (“Plaintiffs”), file this Response! and Counter Motion for Summary Judgment to Ripley Entertainment, Inc. and Jim Pattison U.S.A., Inc.'s (collectively “Defendants”) No Evidence Motion for Partial Summary Judgment Regarding Texas Deceptive Trade Practices Act Claims and in support thereof shows the Court as follows: ' Plaintiffs reserve the right to bring additional evidence in response to Defendants’ No-Evidence Motion per the 7exas Rules of Civil Procedure. PLAINTIFFS’ RESPONSE AND COUNTER MOTION FOR SUMMARY JUDGMENT TO DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING DTPA CLAIMS Page 1 SUMMARY OF DEFENDANTS’ MOTION AND PLAINTIFFS’ COUNTER-MOTION 1 Defendants bring a No-Evidence Motion that in good faith never should have been brought. Plaintiffs’ evidence to defeat Defendants’ No-Evidence motion is so strong and so decisive, that Plaintiffs bring a Counter-Motion for Summary Judgment, and Plaintiffs will show this Court that their claims for DTPA violations should be granted as a matter of law, and all that should be left for the jury to determine is whether the Defendants’ violations were committed knowingly or intentionally, and the amount of damages for same. The evidence in this case is undisputed that Plaintiffs were consumers who justifiably relied upon Defendants’ representations regarding Plaintiffs’ safety while visiting Ripley's Believe it or Not Grand Prairie ("RBION") that were false and misleading in violation of the DTPA. To be clear, Defendants do not even dispute that they made the representations, and that they were false. This cannot be stated enough. Defendants admit that their representations about guest safety were false. Moreover, it is undisputed that Plaintiffs were consumers, as defined by the statute. EVIDENCE RELIED UPON Plaintiffs rely upon the following evidence to defeat the Defendants’ Motion: Deposition transcript of John Doe I, which is attached hereto as Exhibit 1 and incorporated herein by reference as if fully set forth herein; Deposition transcript of Rachel Rotella, which is attached hereto as Exhibit 2 and incorporated herein by reference as if fully set forth herein; PLAINTIFFS’ RESPONSE AND COUNTER MOTION FOR SUMMARY JUDGMENT TO DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING DTPA CLAIMS Page 2 Affidavit of Morris R. McGowen, Jr., which is attached hereto as Exhibit 3 and incorporated herein by reference as if fully set forth herein; Deposition transcript of Amanda Emmons, which is attached hereto as Exhibit 4 and incorporated by reference herein as if fully set forth herein. Deposition transcript of Andrew Morales, which is attached hereto as Exhibit 5 and incorporated by reference as if fully set forth herein; Deposition transcript of Alexis Garcia, which is attached hereto as Exhibit 6 and incorporated by reference as if fully set forth herein; Deposition transcript of Clay Stewart, which is attached hereto as Exhibit 7 and incorporated by reference as if fully set forth herein; Deposition transcript of Phyllis Callaway, which is attached hereto as Exhibit 8 and incorporated by reference as if fully set forth herein; Deposition transcript of William C. Anderson, which is attached hereto as Exhibit 9 and incorporated by reference as if fully set forth herein; and Deposition exhibits 125 (not attached for privacy) and 307 both incorporated herein by reference as if fully set forth herein. THE LAW ON DTPA AND APPLICATION TO THIS CASE Consumer 3 It is honestly hard to understand how Defendants can challenge Plaintiffs’ role as consumers in this matter in good faith. “Consumer” means an individual, partnership, corporation, this state, or a subdivision or agency of this state who seeks or acquires by purchase or lease, any goods or services, except that the term does not PLAINTIFFS’ RESPONSE AND COUNTER MOTION FOR SUMMARY JUDGMENT TO DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING DTPA CLAIMS Page 3 include a business consumer that has assets of $25 million or more, or that is owned or controlled by a corporation or entity with assets of $25 million or more? It is undisputed that Plaintiffs purchased their tickets to Ripley's Believe it or Not in this matter. Deposition Exhibit 125 notes that John Doe I paid for him and his son's entrance into RBION. This, in itself, gives Plaintiffs the status as consumers under the DTPA. It is unclear if Defendants are arguing that if Plaintiffs indirectly paid for their tickets, this may affect their status. If so, it is an incorrect understanding of the DTPA. The Supreme Court has made it clear that consumers themselves do not need to be the one who purchases the goods or services.’ Privity between Plaintiffs and Defendants is not necessary, either, although it is present here.> In any event, it is patently obvious that Plaintiffs are consumers under the DTPA. Deceptive Acts or Practices 4. Defendants represented to Plaintiffs (and all other guests) the following: FOR THE SECURITY OF OUR GUESTS, THESE PREMISES® ARE BEING ELECTRONICALLY MONITORED 24 HOURS A DAY.” Andrew Morales testified in his capacity as General Manager of RBION that his * Tex. Bus. & Com. Code Ann. § 17.45 (West) 3 Exhibit 9 page 91, lines 14-24; page 92, lines 22-23; page 94, lines 15-20; Exhibit 1 page 108, lines 12-14; page 109 lines 4-6; page 205, lines 12-22. 4 Kennedy v. Sale 689 S.W.2d 890, 892 (Tex. 1985). 3 Id. at 893. ® Merriam Webster's Dictionary defines premises as a building and the area of land that it is on. Oxford Dictionary defines premises as a house or building, together with its land and outbuildings, occupied by a business or considered in an official context. ” Deposition Exhibit 307 PLAINTIFFS’ RESPONSE AND COUNTER MOTION FOR SUMMARY JUDGMENT TO DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING DTPA CLAIMS Page 4 understanding of the meaning of the word “premises” included inside the RBION building and inside the RBION attractions.® Plaintiffs request that the Court take judicial notice of the definition of “premises” under 7exas Rule of Evidence 201, as meaning the entire RBION building, including the attractions. 5 To prevail in an action under the DTPA, the Plaintiffs (consumers) have to show that Defendants committed one or more of the following: a causing confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods or services; representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which the person does not; representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another; advertising goods or services with intent not to sell them as advertised; representing that an agreement confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law; representing that work has or services have been performed on, or parts replaced in, goods when the work or services were not performed or the parts replaced; and 9g failing to disclose information concerning goods or services which was ° Exhibit 5 page 48, lines 17-25; page 49, lines 1-25, page 50, lines 1-14. PLAINTIFFS’ RESPONSE AND COUNTER MOTION FOR SUMMARY JUDGMENT TO DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING DTPA CLAIMS Page 5 known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed? In this matter, it is undisputed that Defendants committed each of the deceptive acts outlined in a. - g. Defendants represented to all guests, including Plaintiffs that Ripley's actually monitors them electronically for their safety 24 hours a day at all times."° This representation included the areas inside the RBION attractions. Moreover, a reasonable guest at Ripley's such as John Doe I would (and did) rely upon Ripley's representations regarding monitoring its premises for guest safety (which it effectively did not do) when evaluating whether Ripley's was a safe place to take a child." 7 Unfortunately, Defendants’ representations about electronic monitoring and guest safety were simply false.'* Defendants did not electronically monitor guests for their safety."* In fact, there were no video cameras at all in the area where John Doe II was sexually assaulted by Alexander Anderson, which Defendants knew contradicted their clear representation that there were.'* Defendants readily admit ° Texas Business & Commerce Code Section 17.46(b) " Exhibit 2 page 127, lines 19-25; page 128, line 1 and Exhibit 3 page 4, paragraph 12 and Deposition exhibit 307. "Id. ” Exhibit 2 page 128, lines 4-9. "3 Id, Exhibit 6 page 34 lines 10-20. "Id; Exhibit 3 page 2, paragraph 4. PLAINTIFFS’ RESPONSE AND COUNTER MOTION FOR SUMMARY JUDGMENT TO DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING DTPA CLAIMS Page 6 that the cameras were not even in place for guest safety, but for employee theft and vandalism on the exhibits." Moreover, the only video monitor that depicted what the cameras showed was locked behind a door in the “safe room” where no employees were located, and only a few people had a key for access.'© And, Defendants did not task anyone with actually “monitoring” the monitor, as Defendants’ represented."” 8 Phyllis Callaway, the number 2 person for the entire company overseeing RBION clearly admits that the video cameras are not placed in attractions at RBION for guest safety."® Ms. Callaway goes on to admit that it is an untrue statement to represent to guests that they were monitored for their safety.’ To reiterate, Defendants’ second in command admits to the false statement. This is dispositive to the entire motion. 9 Clay Stewart is the Regional Manager for Defendants who oversees California and Texas, and he has never heard that there are any cameras at RBION for guest safety.°° Mr. Stewart goes on to testify that he has never heard that guest safety is even considered when placing video cameras at RBION.”" No employees for Defendants were even tasked with monitoring the video cameras for Defendants, in "5 Exhibit 5, page 46, lines 2-12. " Exhibit 4 page 20, lines 21-25, page 21, lines 1-16. "Id. "® Exhibit 8, page 28, lines 6-18; page 30, lines 16-24. " Exhibit 8, page 32, lines 21-24; page 33, lines 1-5. °° Exhibit 7, page 31, lines 13-23 *" Id. at page 33, lines 5-12. PLAINTIFFS’ RESPONSE AND COUNTER MOTION FOR SUMMARY JUDGMENT TO DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING DTPA CLAIMS Page 7 direct contradiction to Defendants’ representations”? Moreover, Defendants unequivocally admit that the video cameras it does have are not there for guests’ safety,”? and Defendants do not monitor any of the video cameras they do have.” Additionally, it is undisputed that John Doe I reasonably relied upon Ripley's representations.” PRAYER 10. Plaintiffs pray that, upon final hearing the Court deny Defendants’ Motion for Summary Judgment in all respects, and grant Plaintiffs’ Motion for Summary Judgment. Plaintiffs further requests all other relief to which they are entitled both in law and in equity. Exhibit 5 page 44, line 25; page 45, lines 1-3. Exhibit 2 page 118 lines 5-14. *4 Exhibit 2 122 lines 20-23. *5 Exhibit 1 (vol. 2) page 42 lines 19-25. PLAINTIFFS’ RESPONSE AND COUNTER MOTION FOR SUMMARY JUDGMENT TO DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING DTPA CLAIMS Page 8 Respectfully submitted, By: JOHN D. SLOAN, JR. 7° State Bar No.: 00792080 DOUuGLas W. LUKASIK State Bar No. 24046326 SLOAN MATNEY, LLP 3838 Oak Lawn Ave. Suite 1200 Dallas, Texas 75219 214.253.0101 (Sloan) 214.253.0103 (Lukasik) 214.237.5474 (Facsimile) jsloan@sloanmatney.com dlukasik@sloanmatney.com ATTORNEYS FOR PLAINTIFFS PLAINTIFFS’ RESPONSE AND COUNTER MOTION FOR SUMMARY JUDGMENT TO DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING DTPA CLAIMS Page 9 CERTIFICATE OF SERVICE I hereby certify that on the 17th day of November, 2016 a true and correct copy of the foregoing document has been served via e-service on: S. Todd Parks Walters, Balido & Crain, L.L.P. 10440 North Central Expressway Meadow Park Tower, Suite 1500 Dallas, Texas 75231 todd.parks@wbclawfirm.com ParksEDocsNotifications@wbclawfirm.com Rocky Feemster Touchstone, Bernays 4040 Renaissance Tower 1201 Elm Street Dallas, Texas 75270 rocky.feemster@tbjbs.com Robert W. Hammer 300 Legacy Downs Drive Fort Worth, Texas 76126 robert@rhammerlaw.com 7° John D. Sloan, Jr. 4816-3835-8589, v. 1 PLAINTIFFS’ RESPONSE AND COUNTER MOTION FOR SUMMARY JUDGMENT TO DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING DTPA CLAIMS Page 10 Exhibit 1 CAUSE NO. DC-15-07174 JOHN DOE I, Individually and as ) IN THE DISTRICT COURT Next Friend of JOHN DOE II, a Minor, Plaintiffs, v DALLAS COUNTY, TEXAS ) THE ANDERSON PRIVATE SCHOOL, ) WILLIAM C. ANDERSON, INDIVIDUALLY, ) LEVONNA C. ANDERSON, INDIVIDUALLY, ) ALEXANDER A. ANDERSON, INDIVIDUALLY,) RIPLEY ENTERTAINMENT, INC., ) AND JIM PATTISON U.S.A., INC. ) ) Defendants. ) 44TH-B JUDICIAL DISTRICT FRI I I IO I IO IO I IO IO II IO IOI IO IO IO I IO IO IOI IO I OK Ik ORAL AND VIDEOTAPED DEPOSITION OF ae JANUARY 14, 2016 VOLUME I FRI I I IO I IO IO I IO IO II IO IOI IO IO IO I IO IO IOI IO I OK Ik ORAL AND VIDEOTAPED DEPOSITION OF (xy VOLUME I, produced as a witness at the instance of the Defendants The Anderson Private School, William C. Anderson, LeVonna C. Anderson and Alexander A. Anderson, and duly sworn, was taken in the above-styled and numbered cause on the 14th day of January, 2016, from 10:25 a.m. to 4:53 p.m., before Cheryl K. Perlich, CSR in and for the State of Texas, reported by machine shorthand, at the law offices of Sloan Matney, LLP, located at 3838 Oak Lawn Avenue, Suite 1200, Dallas, Texas 75219, pursuant to the Texas Rules of Civil Procedure. PERLICH REPORTING SERVICES 469.939.5606 Page 108 «vou 2 And were there other people in the exhibits? A Yes. Q Did you see other people walking through the exhibits? A When I was searching for my son, yes. Did you go -- well -- That's when I ran into other people -- Okay. -- and asked them if they had seen him. 10 Did you go into any of the exhibits? 11 A Yes. 12 Q Did you buy a ticket -- did you pay to go into any of 13 the exhibits? 14 A Again, I believe I paid Dr. Anderson, but -- 15 Q Fair enough. I mean, regardless of whether you paid 16 Dr. Anderson or you paid Ripley's -- 17 A Some money was paid. 18 Q Either way. You paid for a ticket for yourself to go 19 into the exhibits? 20 A I know I didn't get in for free. 21 Q That's not my point. My point is: Was George Henry 22 the only person that paid for a ticket to get into the exhibit? 23 MR. SLOAN: Between the two of them? 24 MR. HAMMER: Yes. 25 A I'm confused. PERLICH REPORTING SERVICES 469.939.5606 Page 109 «vou MR. SLOAN: That's okay. I was too. Just -- let's start again. MR. HAMMER: Try it again. Q Did you buy yourself a ticket to go into the exhibits, whether you paid Dr. Anderson or Ripley's? A Did I pay -- yes. Q Okay. So it was your intention in buying the ticket to go into the exhibits with Col A Yes. 10 Q Was he excited to be there? 11 Yes. 12 Was he running around like the other kids? 13 Yeah. 14 And you allowed him to freely go through the gift 15 shop? 16 A Yes. 17 Q Did you have any -- did you talk to him about any 18 rules before you went in? 19 A I mean, he knows to -- to not run off. 20 Q Did he -- did you put any restrictions on what 21 exhibits he could go into and what exhibits he could not? 22 A I had every intention of going through those exhibits 23 with him. I turned around to ask Dr. Anderson -- 24 MR. SLOAN: No, just answer his question. 25 THE WITNESS: Okay. I'm sorry. PERLICH REPORTING SERVICES 469.939.5606 Page 205 «vou and go north and then come back up and go west on a road that's a quarter mile north of I-30 that runs parallel, correct? A I'd never been on that road before that day. Q My question was, though: That's how you have to get to Ripley's? The entrance is on the north side of the property as opposed to the I-30, which is on the south side, correct? A Yes, sir, that's correct. Q Now, there was some testimony earlier about the purchasing of the ticket. I want to make sure we're clear on 10 that. 11 A Okay. 12 Q To the best of your recollection, the Andersons 13 purchased group tickets and then you paid for a ticket for both 14 you and your son to enter Ripley's, correct? 15 A I just know that I remember paying. 16 Q Okay. Well, that's my question. I think there was 17 maybe -- 18 A I remember that we paid. We didn't go for free. 19 Q Okay. That's my question: Are you here saying today 20 either you purchased it or Anderson purchased it or you just 21 don't know? 22 A No, I'm saying I purchased it. 23 Q Okay. And when you say you purchased it, did you 24 purchase it directly from Ripley's or did you purchase it 25 through a group purchase by Anderson, or you don't know? PERLICH REPORTING SERVICES 469.939.5606 CAUSE NO. DC-15-07174 JOHN DOE I, INDIVIDUALLY ) IN THE DISTRICT COURT AND AS NEXT FRIEND TO JOHN ) DOE II, A MINOR Plaintiffs, vs. DALLAS COUNTY, TEXAS THE ANDERSON PRIVATE SCHOOL, WILLIAM C. ANDERSON, INDIVIDUALLY, LEVONNA C. ANDERSON, INDIVIDUALLY, ALEXANDER A. ANDERSON, INDIVIDUALLY, RIPLEY ENTERTAINMENT, INC., and JIM PATTISON U.S.A., INC. Defendants. ) 44TH-B JUDICIAL DISTRICT KKK KKK KR RK KR KR KK KKK KK KK KK KK KKK KR KK KKK KKK KKK KKK KKK KKK KKK KKK ORAL AND VIDEOTAPED DEPOSITION OF a JANUARY 15, 2016 VOLUME IT KKK KKK KR RK KR KR KK KKK KK KK KK KK KKK KR KK KKK KKK KKK KKK KKK KKK KKK KKK ORAL AND VIDEOTAPED DEPOSITION OF produced as a witness at the instance of the Defendants The Anderson Private School, William C. Anderson, Individually, LeVonna C. Anderson, Individually, and Alexander A. Anderson, Individually and duly sworn, was taken in the above-styled and -numbered cause on the 15th day of January, 2016, from 10:55 a.m. to 12:57 p-m., before Chrissa K. Hollingsworth, CSR in and for PERLICH REPORTING SERVICES 469.939.5606 Page 42 ME * == vouuve rr the teacher's aide keeping an eye on your son, correct? MR. SLOAN: Objection, form. You can answer. A No, not that day. Q (By Mr. Parks) Okay. Other than the day at Ripley's, any other time that your son was in the presence of anyone from the Anderson school, those red flags were on your mind, correct? MR. SLOAN: Objection, form. Go ahead. 10 A Yes. 11 Q (By Mr. Parks) Okay. What was it about the 12 day at Ripley's the 31st of October that caused you not 13 to have those red flags on your mind? 14 A The five or six other parent chaperones that 15 were there that day, being out of that school, being in 16 a public place that you -- that you believe you're being 17 watched and believe that there's video cameras 18 everywhere. 19 Q So the -- your belief that there was video 20 cameras everywhere completely removed from your mind 21 that day any concerns regarding the red flags that you 22 were aware of prior to the 31st? 23 MR. SLOAN: Objection, form. 24 Q (By Mr. Parks) Is that correct? 25 A No. It -- no, but it did comfort me to know PERLICH REPORTING SERVICES 469.939.5606 Exhibit 2 CAUSE NO. DC-15-07174 JOHN DOE I, Individually and as ) IN THE DISTRICT COURT Next Friend of JOHN DOE II, a Minor, Plaintiffs, v 44TH JUDICIAL DISTRICT ) THE ANDERSON PRIVATE SCHOOL, ) WILLIAM C. ANDERSON, INDIVIDUALLY, ) LEVONNA C. ANDERSON, INDIVIDUALLY, ) ALEXANDER A. ANDERSON, INDIVIDUALLY,) RIPLEY ENTERTAINMENT, INC., ) AND JIM PATTISON U.S.A., INC. ) ) Defendants. ) DALLAS COUNTY, TEXAS FRI I I I IO I I II IO II IO IOI IO IO IO I IO IO IR IO I IO Ik ORAL AND VIDEOTAPED DEPOSITION OF RACHEL ROTELLA NOVEMBER 24, 2015 FRI I I I IO I I II IO II IO IOI IO IO IO I IO IO IR IO I IO Ik ORAL AND VIDEOTAPED DEPOSITION OF RACHEL ROTELLA, produced as a witness at the instance of the Plaintiffs, and duly sworn, was taken in the above-styled and numbered cause on the 24th day of November, 2015, from 10:08 a.m. to 3:18 p.m., before Cheryl K. Perlich, CSR in and for the State of Texas, reported by machine shorthand, at the law offices of Walters, Balido & Crain, LLP, located at 10440 North Central Expressway, Suite 1500, Dallas, Texas 75231, pursuant to the Texas Rules of Civil Procedure. PERLICH REPORTING SERVICES 469.939.5606 Page 82 RACHEL ROTELLA of everything that's in the handbook, but it's not location specific. Q And when you say produced very recently, when was -- when did it come about? A I know it was in 2015, the beginning of the year. Q Okay. So prior to October 31, 2014, you had not received any formal or informal training for guest safety; is that fair? A Yes. 10 Q And if I was to ask you what safety training you 11 received in your career for child guest safety prior to 12 October 31, 2014, your answer would be none? 13 A Yes. 14 Q Would you agree with me that Ripley's caters to 15 children as guests? 16 A Yes, yes, all sorts of families. 17 Q Yeah. And your website has pictures of children, 18 yes? 19 A I'm not sure. I can't remember. I think so, but I 20 don't remember. 21 Kids under free -- kids under four are free? 22 Yes. 23 Your company caters to field trips with kids? 24 Yes. 25 It's safe to say that you certainly expect children PERLICH REPORTING SERVICES 469.939.5606 Page 86 RACHEL ROTELLA Q Is there a protocol at Ripley's Believe It or Not Grand Prairie for employees to call someone if there are too many guests at the site at one time? A No, not that I'm aware of. Q And it's my understanding that as an attraction, it's possible you could have two people there or you could have 50 people walk in the door; is that true? A Yes. Q Is there -- and so based upon your previous answer, 10 it's my understanding that there's no protocol at all for an 11 employee to call somebody if they think that there's too many 12 people there? 13 A No. 14 Q Is there a standard number of employees you'd like to 15 have on site per number of patrons? 16 A Yes. 17 Q What's the number? 18 A We determine -- well, no, there's not a standard. We 19 determine our schedule based off years past. So when we create 20 our schedule, for example, on a Saturday/Sunday, we're going to 21 have the proper amount of staff for the volume that we know 22 would most likely come in. 23 Q And what -- what do you try and work out the ratios 24 between employees and potential guests? 25 MR. PARKS: Objection, form. PERLICH REPORTING SERVICES 469.939.5606 Page 88 RACHEL ROTELLA A No. Q It's Ripley's Believe It or Not's policy not to have any staff in attractions; is that fair? A I don't know if it's the policy. Q Well, it's certainly not Ripley's Believe It or Not's policy to have them in the attractions; is that fair? A To have -- is there a policy saying we have to have staff in the attractions? Q At any time, yes. 10 A I don't -- I don't believe so. I don't know. 11 Q In other words, you listed me areas where the staff 12 needs to be, but you didn't list any attractions. 13 A Right. 14 Q And that wasn't an omission, that was on purpose that 15 you didn't list them, true? 16 A True. We do not have staff. We don't have someone 17 inside the attraction. 18 Q Why? 19 A We do not have revenue areas inside the attractions. 20 The attractions run themselves. It's not a tour, it's a 21 self-guided tour. 22 Q What about for safety of guests? 23 A We've never had safety issues. 24 MR. SLOAN: Objection, nonresponsive. 25 Q Do you think that it's necessary to have an employee PERLICH REPORTING SERVICES 469.939.5606 Page 118 RACHEL ROTELLA Q And is that for employee theft? A Any reason, to see if they're horseplaying. It's just angles that we didn't have, you know, that we had employees working. Q But the reason that you added them, I want to see if I can get the universe of reasons, was employee theft? (Moving head up and down) Yes? Yes. 10 Horseplay? 11 Yes. 12 What other reasons? 13 A Just to make sure they're doing what they're being 14 paid to do. 15 Q Was part of it so that the employees knew there were 16 cameras -- extra cameras watching them? 17 A No. 18 Q Did they know that? 19 I don't believe so, no. 20 Let's pull up Exhibit 38 again. You should have it. 21 Okay. 22 It's that floor plan. 23 Thirty-eight? 24 Yeah. 25 Okay. Got it. PERLICH REPORTING SERVICES 469.939.5606 Page 122 RACHEL ROTELLA Q And there's cameras in both back of houses all yellow, correct? A Yes, yes. Q There are no cameras in the Ripley's Believe It or Not, true? A True. Q Is that -- and there's no cameras inside the Mirror Maze, correct? A Correct. 10 Q Are those the only two places where there are no 11 cameras inside the attractions? 12 A The LaseRace. 13 Q And the LaseRace? 14 A (Moving head up and down) 15 Q What discussions have you ever had with anyone as to 16 whether there needs to be cameras inside all the attractions? 17 A I have not. 18 Q Do you think it's necessary? 19 A No. We haven't had any reason to believe so. 20 Q But it's fair to say there is -- there's no 21 electronic monitoring in either the Ripley's Believe It or Not 22 or the Mirror Maze, true? 23 A True. 24 Q And speaking of monitoring, is there someone at 25 Ripley's Believe It or Not Grand Prairie that actually monitors PERLICH REPORTING SERVICES 469.939.5606 Page 127 RACHEL ROTELLA refresh. I bet you if you pull down, it refreshes. Let's go back down and see if it popped up. Here, let me see.