Motion-Secondary: JOHN DOE I vs. THE ANDERSON PRIVATE SCHOOL, et al

On June 24, 2015 a Motion-Secondary was filed involving a dispute between Doe I, John, and Anderson, Alexander A., Anderson, Levonna C., Anderson, William C., The Anderson Private School, for OTHER PERSONAL INJURY in the District Court of Dallas County.

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FILED
DALLAS COUNTY
12/5/2016 3:00:50 PM
FELICIA PITRE
DISTRICT CLERK

CAUSE NO. DC-15-07174
JOHN DOE I, INDIVIDUALLY AND AS NEXT § IN THE DISTRICT COURT
FRIEND OF JOl-IN DOE II, A MINOR §
Plaintiffs, §
§
vs. §
§ 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. § DALLASCOUNTY,TEXAS

DEFENDANT RIPLEY ENTERTAINMENT, INC. AND JIM PATTISON U.S.A,
INC.'S REPLY IN SUPPORT OF NO-EVIDENCE MOTION FOR SUMMARY
JUDGMENT REGARDING DTPA CLAIMS

Ripley Entertainment, Inc. and Jim Pattison U.S.A., Inc. (hereinafter "Defendants")

file this Reply in Support of No-Evidence Motion for Summary Judgment Regarding

DTPA Claims, and respectfully show the Court as follows.

SUMMARY

Plaintiffs have not produced even a scintilla of evidence to support their DTP A

claims against Defendants. Plaintiffs have not established that the DTP A applies to their

claims, nor that they are consumers or that the purchase of a ticket or entrance to

Defendants' venue was the producing cause of the alleged sexual assault. Plaintiffs' DTPA

claims are an attempt to recast its premises liability claim-on which this Court has already

granted summary judgment-as something else. Because there is no evidence to support

any of the elements of any of the DTP A claims (as challenged in Defendants' no-evidence

motion), Defendants motion on the DTPA claims should be granted.

OBJECTIONS TO EVIDENCE

While the affidavit of John Doe I fails to present a genuine issue of material fact that
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would overcome Defendants' summary judgment motion, the affidavit also should not be

considered at all as it presents only conclusory, speculative and self-serving statements.

Specifically, paragraph 3 contains numerous statements that are conclusory, not capable of

being readily controverted, and did not rely on personal knowledge.

Defendants object to the statement "I certainly believed that the representations

RBI ON made about security and electronic monitoring were true, and were part of the

goods and services I paid for that day," as conclusory, speculative, self-serving, and

contradicted. Plaintiffs fail to state how they believe they purchased security services,

which makes this statement speculative and conclusory. Plaintiffs' statement is also in

direct opposition to his deposition testimony and response to this motion where he stated

that he purchased a ticket and entrance to RBI ON which cannot create an issue of fact.

For these reasons, this statement should be stricken as it merely states what Plaintiff

"believes," which cannot be readily controverted. "Self-serving statements of interested

parties testifying as to what they knew or intended are not readily controvertible and will

not support summary judgment because "the mental workings of an individual's mind are

matters about which adversaries have no knowledge or ready means of confirming or

controverting." Lukasik v San Antonio Blue Haven Pools, Inc., 21 S.W.3d 394, 399 (Tex.

App-San Antonio 2000, no pet.)(citing Hayes v. E.TS. Enterprises, Inc., 809 S.W.2d

652, 657 (Tex. App.-Amarillo 1991, writ denied)).

Plaintiff's statement that "As we have learned in this case, much of the RBI ON

premises were not electronically monitored," should be stricken as speculative, not

personal knowledge of the affiant, and conclusory. Doe I fails to identify from where this

information originated and fails to cite any sources for this information. On these grounds,

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this statement should be stricken.

Plaintiffs statement that "I believe if RBION has kept its promise about the

electronic monitoring and guest security, my son would not have been sexually abused that

day," is conclusory, speculative, and not capable of being readily controverted. This

statement is merely the opinion of the affiant and wholly fails to cite any source for its

conclusion. As the mere opinion of the lay affiant, it is also not capable of being readily

controverted, so it is not proper testimony for an affidavit. As stated above, statements

about mental workings of an interested party are not proper testimony for an affidavit and

do not make competent summary judgment evidence. Lukasik, 21 S.W.3d at 399.

Finally, Defendant objects to this affidavit as it fails to attach an essential exhibit

identified in this affidavit: Deposition Exhibit 307. The entire affidavit relies upon this

exhibit, yet Plaintiffs failed to include the exhibit with the affidavit. Therefore, the entire

affidavit should be stricken.

ARGUMENT & AUTHORITIES

A. Plaintiffs have no viable DTP A claim for personal injury or bodily injury.

Section 17 .49(e) of the DTPA-which was added to the statute as part of the 1995

amendments-provides that, "except as specifically provided by Subsections (b) and (h),

Section 17.50, nothing in this subchapter shall apply to a cause of action for bodily injury

or death or for the infliction of mental anguish." TEX. Bus. & COM. CODE§ 17 .49; Last v.

Quail Valley Country Club, L.P., No. 01-08-00759-CV, 2010 WL 1253782, at *7 (Tex.

App.-Houston [1st Dist.] March 25, 2010). One commentator explained the purpose of

this provision in the following manner:

This provision represents a sweeping measure to remove most personal

DEFENDANTS' BRIEF IN SUPPORT OF NO·EVIDENCE MOTION FOR SUMMARY JUDGMENT
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injury claims from the purview of the DTPA. The 74th Legislature opted to
exclude claims for bodily injury and death as part of the effort to restore the
DTPA to be chiefly a means of relief for individual or small business
consumers who have been taken advantage of by unscrupulous individuals or
businesses. The DTPA had become an avenue for far too many lawsuits
relating to a variety of claims outside of the consumer-business relationship,
including personal injury litigation

Tee! Bivins, et. al., The 1995 Revisions to the Dtpa: Altering the Landscape, 27 TEX. TECH

L. REv. 1441 (1996).

Here, Plaintiffs are exclusively seeking personal injury damages arising from

Ripley's Entertainment's and Jim Pattison's alleged failure to prevent the third-party

sexual assault. This is a premises liability claim under Timberwalk Apartments, Partners,

Inc. v. Cain, 972 S.W.2d 749 (Tex. 1998), on which this Court has already granted

summary judgment.! Plaintiffs' DTPA claim is an attempt to recast their premises liability

claim as something else-which is expressly prohibited by the statute.

B. Plaintiffs are not "consumers."

In order for Plaintiffs to prevail on a DTPA claim, they must establish that they were

"consumers." Texas recognizes a two-pronged test to establish consumer status: (1) the

person must have sought or acquired goods or services by purchase or lease, and (2) the

goods or services purchased or leased must form the basis of the complaint. Cameron v.

Terrell & Garrett, Inc., 618 S.W.2d 535, 539 (Tex.1981). Consumer status is a question of

law for the court to decide. Bahls v. Oakes, 75, S.W.3d 473, 479 (Tex.Civ.App-San

Antonio 2002.)

Indeed, as the Texas Supreme Court has made clear, "[a] complaint that a landowner failed to provide adequate
security against criminal conduct is ordinarily a premises liability claim." Timberwalk, 972 S. W.2d at 753. This
Court correctly granted summary judgment on Plaintiffs' premises liability claim because "a person has no legal
duty to protect another from the criminal acts of a third person," absent very limited circumstances not present
here. Id At 756.

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1. Plaintiffs have not established a connection between the service purchased and
their complaint.

In their response, Plaintiffs argue that "it is undisputed that Plaintiffs purchased

their tickets to Ripley's Believe it or Not in this matter," and " ... John Doe I paid for him

and his son's entrance into RBION." By purchasing the admission, Plaintiffs purchased

entertainment services from Ripley through the access to the attractions inside the building.

But Plaintiffs' complaint is not about these entertainment services provided by Ripley.

They instead complain of the security provided on the premises, a service which they did

not purchase from Ripley. The basis of Plaintiffs' complaint- a third-party criminal

act-has nothing to do with the alleged goods or services purchased by Plaintiffs. They

purchased entertainment services, none of which have been alleged to be defective. This

was not a case where one service was purchased and other was given-this was an act by a

third-party criminal-completely outside the realm of DTP A.

Plaintiffs may try to argue that they received "faulty security services," based on the

sign outside the building regarding video surveillance. But, Plaintiffs did not seek or

purchase security services from Ripley's Entertainment or Jim Pattison, nor have they

presented any such evidence. Loch bay v. Southwestern Bell Media, Inc., 828 S. W.2d 167,

171 (Tex. App.-Austin 1992, pet. denied). Plaintiffs have not brought forth any evidence

that they have purchased security services or sought to do so from Ripley.

In fact, John Doe I admits in his deposition that he decided he and his son would

visit RBI ON at least one week prior to seeing the sign at the entrance to Ripley and at least

one week prior to having any information about the security provided at Ripley. (See Exh.

A, John Doe I Dep at 212:10 -214:9.) Plaintiffs were not seeking to purchase security

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services from Ripley and any complaint that Ripley had inadequate security cannot be

connected to purchase of an admission ticket and the alleged sexual assault. Plaintiffs have

failed to satisfy the second prong of the consumer element of the DTPA claims. Lochbay,

828 S.W.2d at 171.

2. Security services were not collateral services.

There also can be no argument that security was a collateral service to the service or

item purchased. Plaintiffs must show that they would not have purchased admission to

Ripley "but for the collateral services offered along with [that] item." !d. Plaintiffs,

however, made the decision to attend Ripley before they saw the sign at the vehicular

entrance to the property and before having any information regarding the security provided

on site. (See John Doe I Dep at 212:10 -214:9.) Plaintiffs presented no evidence to show

that they made any inquiries into security services at any time before or after his purchase,

that they discussed security services with anyone at Ripley before or after the purchase, or

that they in anyway considered security services prior to their decision to purchase a ticket

to RBION. Plaintiffs have failed to provide any evidence that they would not have

purchased the RBI ON ticket but for the security services provided at Ripley.2

3. Plaintiffs' purchase was one of an intangible property right.

Alternatively, if the court does not believe that Plaintiffs' purchase was one of

entertainment services, then Plaintiffs must establish consumer status through the purchase

of admission into RBION. Long-standing Texas law has established that a purchase of

admission is a purchase of a revocable license. Terrell Wells Swimming Pool v. Rodriguez,

2 The collateral services argument is only available to a Plaintiff who has purchased an intangible item, so Plaintiff
cannot make this argument if he claims that he purchased goods or services from Ripley. Lochbay, 828 S.W.2d at
171.

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182 S.W.2d 824, 826 (Tex. 1944); Kelly v. Dent Theaters, 21 S.W.2d 592, 593 (Tex. Civ.

App. 1929, no writ). It is also well-established that the DTPA does not cover transactions

for "intangibles" such as the intangible property right of a revocable license. Riverside Nat.

Bank v Lewis, 603 S.W.2d 169, 174 (Tex. 1980) (defining "goods" as "tangible chattels

bought for use" and "services" as "work, labor, and services for other than commercial or

business use, including services furnished in connection with the sale or repair of goods.")

A revocable license does not meet the Supreme Court's definition for goods or services, so

Plaintiffs' purchase of this intangible revocable license cannot qualifY Plaintiff as a

consumer.

Based on the case law provided, Plaintiff has failed to present evidence that

established him as a consumer under the DTPA. Therefore, Defendants' Motion for

Summary Judgment should be granted as a matter of law.

C. Plaintiffs fail to produce any evidence of producing cause.

An essential element of any DTPA claim is the producing cause element. Texas

Courts have defined producing cause as "a substantial factor in bringing about an injury,

and without which the injury would not have occurred." Holliday v. Weaver, 410 S.W.3d

439, 443 (Tex. App.-Dallas 2013, pet. denied). Plaintiffs have failed to produce any

evidence or make any argument that any violation of the DTPA was a producing cause of

the Plaintiffs' injuries.

Plaintiffs fail to present any evidence that the alleged sexual assault occurred, a fact

that is hotly contested in this matter. Without evidence that the alleged underlying incident

occurred, Plaintiffs' DTPA claim must fail as a matter of law. Further, Plaintiffs fail to

present any evidence linking the purchase of an admission ticket to the alleged sexual

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assault by a third party criminal and school-sponsored chaperone. The existence of a

sign-which Plaintiffs allege was inadequate security-was not the producing cause of

any alleged sexual assault here. Plaintiffs have not produced any evidence of causation

here, thus Defendants' motion on all DTPA claims should be granted.

CONCLUSION & PRAYER

Plaintiffs have failed to produce a scintilla of evidence that they are consumers or

that any act on the Defendants' part was the producing cause of Plaintiffs' alleged injuries.

Therefore, Defendants request that this court deny grant Defendants' No-Evidence Motion

for Summary Judgment Regarding DTP A Claims and that these Defendants recover their

costs from Plaintiffs, and for all such further relief that this Court deems just and proper.

Respectfully submitted,

WALTERS, BALIDO & CRAIN, LLP

S. TODD PARKS- 15526520
I 0440 North Central Expressway
Meadow Park Tower, Suite 1500
Dallas, Texas 75231
Phone: 214-749-4805
Fax:214-760-1670
Email: todd.parks@wbclawfinn.com
ATTORNEY FOR DEFENDANTS
RIPLEY ENTERTAINMENT, INC. AND
JIM PATTISON U.S.A, INC.

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CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing document has been
served on all parties of record in compliance with Rule 21a of the Texas Rules of Civil
Procedure, on this S'h day of December 2016.

S. TODD PARKS

DEFENDANTS' BRIEF IN SUPPORT OF NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
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Page 221
* * * VOLUME I
1 CAUSE NO. DC-15-07174

2 JOHN DOE I, Individually and as ) IN THE DISTRICT COURT
Next Friend of JOHN DOE II, a )
3 Minor, )
)
4 Plaintiffs, )
)
5 v. ) DALLAS COUNTY, TEXAS
)
6 THE ANDERSON PRIVATE SCHOOL, )
WILLIAM C. ANDERSON, INDIVIDUALLY, )
7 LEVONNA C. ANDERSON, INDIVIDUALLY, )
ALEXANDER A. ANDERSON, INDIVIDUALLY,)
8 RIPLEY ENTERTAINMENT, INC., )
AND JIM PATTISON U.S.A., INC. )
9 )
Defendants. ) 44TH-B JUDICIAL DISTRICT
10

11 REPORTER'S CERTIFICATION
DEPOSITION OF
12 JANUARY
VOLUME I
13

14 I, Cheryl K. Perlich, Certified Shorthand Reporter in and

15 for the State of Texas, hereby certify to the following:

16 That the witness, , was duly sworn by the

17 officer and that the transcript of the oral and videotaped

18 deposition is a true record of the testimony given by the

19 witness;

20 That the deposition transcript was submitted on

21 January 26, 2016 to the witness or to the attorney for the

22 witness for examination, signature and return to me by

23 February 15, 2016;

24 That the amount of time used by each party at the

25 deposition is as follows:

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1 MR. SLOAN ............ 00 HOURS:OO MINUTES

2 MR. HAMMER ........... 05 HOURS:01 MINUTES

3 MR. PARKS ............ 00 HOURS:16 MINUTES

5 That pursuant to information given to the deposition
officer at the time said testimony was taken, the following
6 includes counsel for all parties of record:

7
FOR THE PLAINTIFFS:
8 MR. JOHN D. SLOAN, JR.
SLOAN MATNEY, LLP
9 3838 Oak Lawn Avenue
Suite 1200
10 Dallas, Texas 75219
214.253.0101
11 jsloan®sloanmatney.com

12 FOR THE DEFENDANTS THE ANDERSON PRIVATE SCHOOL, WILLIAM C.
ANDERSON, LEVONNA C. ANDERSON AND ALEXANDER A. ANDERSON:
13 MR. ROBERT W. HAMMER
HAMMER & ASSOCIATES
14 300 Legacy Downs Drive
Fort Worth, Texas 76126
15 817.332.8266
robert@rhammerlaw.com
16
FOR THE DEFENDANT RIPLEY ENTERTAINMENT, INC.:
17 MR. S. TODD PARKS
WALTERS, BALIDO & CRAIN, LLP
18 10440 North Central Expressway
Suite 1500
19 Dallas, Texas 75231
214.749.4805
20 todd.parks®wbclawfirm.com

22 I further certify that I am neither counsel for, related

23 to, nor employed by any of the parties or attorneys in the

24 action in which this proceeding was taken, and further that I

25 am not financially or otherwise interested in the outcome of

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1 the action.

2 Further certification requirements pursuant to Rule 203 of

3 TRCP will be certified to after they have occurred.

4 Certified to by me this 25th day of January, 2016.

Ck~~'cR
5

7 Cheryl K. Perlich, CSR #3349
Expiration Date: 12/31/17
8 Firm Registration No. 756
Perlich Reporting Services
9 1113 Timbercreek Drive
Allen, Texas 75002
10 469.939.5606
office®perlichreporting.com
11

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1 MR. SLOAN: Objection, form.

2 Q. Do you know?

3 MR. SLOAN: Form. Go ahead. You can answer.

4 A. For emergency situations, like you said, for a

5 lockdown.

6 Q. All right. All right. Here comes back

7 out of the snack bar.

8 MR. HAMMER: Sorry, guys, I know this is

9 awkward, you know.

10 Q. He's coming out of the snack bar, right?

11 A. I believe that's him. I can't tell for sure. Yes,

12 that's him.

13 Q. All right. And who's that behind him? Is that you?

14 A. The video's so bad, but I believe that is me. Can

15 you turn that just a little bit, please?

16 Q. Sure, sure.

17 A. Okay. Keep going and I'll tell you i f it's me or

18 not.

19 Q. Appear to be talking.

20 A. Yeah, that's me.

21 Q. Okay. Now, you're standing almost to the front of

22 the snack bar.

23 A. Uh-huh.

24 Q. And is walking away, right?

25 A. Correct.

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1 Q. Now, he's trying to go into the turnstile and what do

2 you do?

3 A. I'm going to ask Dr. Anderson --

4 MR. SLOAN: Objection, form. Go ahead.

5 A. That's when I turned around to ask the Andersons, Are

6 we going through this together or at our own pace?

7 Q. Okay.

8 A. And they told me, At your own pace.

9 Q. All right. So we just watched the incident you

10 described earlier

11 A. Yes.

12 Q. -- where you walked to talk to Dr. Anderson and

13 goes off?

14 A. Well, that's where Alex led him through the

15 turnstile.

16 Q. Well, let's back it up.

17 A. doesn't have a ticket.

18 Q. did not have a ticket to get into that

19 turnstile?

20 A. I don't believe so, no.

21 Q. Is that the basis for your opinion that Alex lured

22 him into the exhibit, Alex used his ticket to get him in there?

23 MR. SLOAN: Objection, form.

24 A. I don't know. It's -- there's another view where,

25 and it's much slower than you just showed, that shows Alex walk

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1 up, peek around the corner, peek around this way to see what

2 was going on, where I was, and then he let go

3 through and follows him in.

4 MR. HAMMER: Objection, nonresponsive.

5 A. There's another view. There's better views than

6 this, that's for sure. This one's giving me a headache.

7 Q. Do you need to take a break?

8 A. No, sir. The light on this terrible video is

9 Q. Uh-huh.

10 MR. SLOAN: It's also sped up. The time is

11 about six

12 THE WITNESS: I know. That's the reason.

13 MR. HAMMER: I'm telling you, this is what I was

14 given. I'm doing the best I can.

15 MR. SLOAN: There's got to be a way to slow it

16 down.

17 THE WITNESS: Maybe you can tell about the

18 ticket because the video shows it.

19 MR. HAMMER: Objection, nonresponsive. Wasn't a

20 response to a question.

21 Q. Is that Gabe Cespedes there in the blue shirt and the

22 cap?

23 A. Yes, sir.

24 Q. All right. Is that his son with the skates on his

25 feet?

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1 A. I don't remember if that's his kid that wore the

2 skates to school every day or not.

3 Q. Okay.

4 A. I can't remember if that was his son or not.

5 Q. All right. comes out, looks inside, goes into the

6 gift shop. I backed it up too far. Here comes Alex. Goes in

7 the exhibit, he goes in alone, correct?

8 A. This time.

9 MR. HAMMER: Objection, nonresponsive.

10 Q. He goes in alone, right?

11 MR. SLOAN: Objection, form. The jury's not

12 going to know -- not going to know what we're looking at.

13 MR. HAMMER: All right.

14 MR. SLOAN: This time was pretty clarifying.

15 Q. goes in, then he comes back out and slips past the

16 turnstile, runs in to see you. And then comes back out of the

17 snack bar, you're standing there talking with him. Do you

18 remember what you're talking about?

19 A. He's ask -- he's wanting to go.

20 Q. Then Alex comes out. And is it your belief that Alex

21 used his ticket to get GH in?

22 A. There's a better video than this and it shows him

23 opening the turnstile for him. I don't I can't tell with

24 your video there about the ticket.

25 Q. All right. Is it your belief based on the good video

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1 that you've seen that Alex used his ticket to get in?

2 A. I think the video shows it.

3 Q. My question is: Based on your view of the video,

4 which you viewed

5 A. I'd have to see it again.

6 Q. -- to prepare for this deposition

7 A. I didn't have to prepare for this deposition.

8 Q. Based on your review of the videotape, is it your

9 opinion that Alex used his personal ticket to get into the

10 exhibit?

11 A. I don't have an opinion.

12 Q. Now, has gone in. Now, you come out carrying the

13 mask and the sword and you're looking for him, right?

14 A. Absolutely.

15 Q. There you are again. Now, you just exited at the

16 bottom of the screen. Is that -- there you are again.

17 MR. SLOAN: Yeah, he didn't exit.

18 MR. HAMMER: I said exited the bottom of the

19 screen.

20 MR. SLOAN: Okay.

21 Q. Where are you going there?

22 A. I see two of the girls that were on the field trip or

23 in the motor home go toward the Mirror Maze so I'm just

24 following the kids. Those two girls had been nice to him so I

25 was hoping he went that way.

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1 Q. Did you -- did you look in the maze for ?

2 A. Yes.

3 Q. Did you go through the entire exhibit?

4 A. I don't know. It was really a nightmare in there,

5 running into -- running into mirrors and stuff frantically

6 looking and screaming for him.

7 Q. You remember going into the maze. Was with you

8 when you went in?

9 A. No. He was in there with Alex.

10 Q. Okay. So you did go into the Mirror Maze --

11 A. Correct.

12 Q. -- looking for ?

13 A. I did.

14 Q. And did you -- did you exit where everyone else exits

15 or did you back up and go out the entrance?

16 A. I don't know the maze well enough to answer that

17 question.

18 Q. How long were you in the Mirror Maze?

19 A. I don't know. Seems like an eternity, but hitting

20 those -- hitting those mirrors and frantically looking for your

21 son was a nightmare.

22 MR. HAMMER: Objection, nonresponsive.

23 Q. There's the kid with the roller skates. There you

24 are again going back into the snack bar. Now you're going to

25 look in the restroom, right? You looked

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1 A. I was just looking everywhere.

2 Q. -- and then you come back out?

3 A. I'm yelling and

4 Q. Okay.

5 A. I'm yelling his name at this point.

6 Q. Okay. Here's some people going into the exhibit,

7 right? The lady with the white shirt and a gentleman with a

8 white long-sleeved shirt and what appears to be blue jeans.

9 She's having trouble with the ticket, he's having trouble with

10 the ticket. He gets in. She's still trying and then she gets

11 in, right?

12 A. Yes.

13 Q. Okay. Did you go into this exhibit at any time

14 during your field trip visit to Ripley's?

15 A. I did look for my son later.

16 Q. I'm going to stop it right there. What's in that

17 exhibit?

18 A. The weird crazy stuff, Ripley's Believe It or Not

19 stuff.

20 Q. Is that what's called the Odditorium, 0-D-D?

21 A. I don't know.

22 Q. Does it have stuff like the tattooed man with the

23 split tongue and the Siamese goat and the world's tallest man

24 and

25 A. The world's tallest man, I remember.

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1 Q. And then as you're going down that road, Ripley's is

2 on your left, correct?

3 A. Yes, sir.

4 Q. Okay. From the light that you turned -- when you

5 turned onto the road that Ripley's is on

6 A. Uh-huh.

7 Q. tell me the route you took.

8 A. We took that left. Went down there and you go in the

9 entrance, take a left into the entrance.

10 Q. How many entrances were there that morning?

11 A. I don't know. I thought there was only one entrance.

12 Q. Can you describe the entrance that you took?

13 A. Yeah. You pull in and the first thing you see is a

14 sign that says, These premises are protected by 24-hour

15 surveillance.

16 Q. That's your --

17 A. Yes.

18 Q. That's your recollection of the sign?

19 A. Yes, that's correct.

20 Q. All right.

21 A. I believe that's what it said.

22 Q. When you pulled into the Ripley's parking lot,

23 Ripley's was in front of you. And was it to the left or the

24 right?

25 A. The sign?

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1 Q. No, the building.

2 A. I can't remember.

3 Q. And as you drove into the entrance of Ripley's, did

4 you actually read the sign?

5 A. Yes, sir.

6 Q. Okay.

7 A. It's kind of a narrow entrance. The motor home was

8 slowing down and looking at a place you've never been to

9 before.

10 Q. Was that the first time that you'd ever seen that

11 sign?

12 A. Yeah.

13 Q. Okay. At the point in time when you purchased the

14 ticket for your entrance and your son's entrance --

15 A. Uh-huh, yes.

16 Q. -- that was all done before you entered the premises,

17 correct?

18 A. Purchased the ticket before I went in there?

19 Q. Correct.

20 A. I don't remember the sequence.

21 Q. Okay. Do you have any opinion?

22 A. I just don't remember the sequence.

23 Q. My question was: Do you have any opinion on that?

24 A. Opinion on what?

25 Q. As to whether you had paid the Andersons first, you

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1 had purchased the ticket before you headed out there or if you

2 purchased the ticket on the day of the incident?

3 A. The tickets were purchased on the day of the

4 incident.

5 Q. Okay. Where were they purchased?

6 A. At the -- at Ripley's.

7 Q. There at the ticket counter?

8 A. I'm -- yes, sir.

9 Q. Okay. Did you purchase those or did someone else?

10 A. I believe it was a group rate, but I'm not -- I'm not

11 for sure.

12 Q. Okay. Prior to ever heading out from the Anderson

13 school on the morning of the 31st, you had made the decision

14 for you and your son to go to the outing at Ripley's on the

15 31st, correct?

16 A. We made the decision to go that day?

17 Q. Prior to leaving the Andersons' home that morning.

18 A. We had planned on going all week long.

19 Q. And as far as your decision whether to go or not to

20 go to Ripley's on October the 31st, that was made at least a

21 week before you ever entered the property of Ripley's on the

22 31st, correct?

23 A. Will you ask that again, please?

24 Q. Okay. As far as the sequence of events about the

25 decision to go to Ripley's

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1 A. Uh-huh, yes.

2 Q. -- that's what I want to talk about, okay?

3 A. Okay.

4 Q. Okay. In the week before the 31st --

5 A. Uh-huh.

6 Q. -- maybe two weeks, there was discussion of, Hey,

7 there's going to be this field trip, we're going to go to

8 Ripley's, correct?

9 A. Yes, sir.

10 Q. Okay. At some point before you got up on the 31st

11 and drove over to the Anderson school, you had already decided

12 that you and your son were going to go to Ripley's, correct?

13 A. Yes, sir.

14 Q. Okay. Can you give us an estimate of how long it was

15 before the morning of the 31st when you got up that you had

16 decided you and your son were going to go to Ripley's on the

17 31st?

18 A. The beginning of that week, I believe.

19 Q. Okay. And at the time that you decided that you and

20 your son were going to go to Ripley's, the closest you'd ever

21 come to Ripley's was driving by it on I-30 on the south side of

22 the property, correct?

23 A. I've been to the racetrack over there, the horse

24 racetrack, so I've been up that other road before, but not down

25 the road that you turn into Ripley's.

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1 Q. You'd never driven down the road that you were on

2 when you turned into the entrance of Ripley's?

3 A. No, sir.

4 Q. Prior to when you got over to the Anderson school

5 that morning, correct?

6 A. Correct.

7 Q. Okay. You were 100 percent completely unaware of

8 what I'm going to show you-- I think your attorney has it

9 pulled up on the deal. It's going to be Exhibit 304.

10 MR. SLOAN: What did I say? 307, I think it

11 was.

12 MR. PARKS: Oh, we need to be right on this

13 so ...

14 Q. I'll rephrase the question, okay?

15 MR. SLOAN: It was 307.

16 MR. PARKS: Okay.

17 Q. You're looking at Exhibit 307, correct? You're

18 looking at a picture of a sign that says, For the security of

19 our guests, these premises are being electronically monitored

20 24 hours a day, correct?

21 A. Yes, sir.

22 Q. We're kind of high-tech here with your attorney.

23 He's got all the fancy stuff.

24 MR. SLOAN: Just so everybody can see it.

25 MR. PARKS: Okay. That's what it is.

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1 Q. The first time that you ever saw or were in any way

2 aware of the sign that says, For the security of our guests,

3 these premises are being electronically monitored 24 hours a

4 day, was when you drove the RV into the parking lot at

5 Ripley's, correct?

6 A. That's when I saw it, yes, sir.

7 Q. That's the first time that you ever saw it or were

8 aware of it, correct?

9 A. Yes, sir.

10 Q. Okay. Did you stop and look at it or did you just

11 look at it as you drove past?

12 A. Well, as I said, I was driving the motor home. It

13 was a narrow entrance, I slowed down quite a bit being super

14 careful with the motor home and a motor home full of kids. And

15 there's a -- I believe there's a big speed bump there too that

16 you have to be super careful with a motor home so I was slowing

17 down to a crawl.

18 Q. That was my question. Did you stop or were you just

19 slowing down in the normal operation of your motor home?

20 A. I slowed down considerably to get over the speed bump

21 and to get through the narrow entrance.

22 Q. Okay. And the first time that you saw the sign as

23 depicted in Exhibit 307, was that while you were on the street

24 before you started your turn or after you started your turn

25 into the parking lot?

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Case Info

Judge

GOLDSTEIN, BONNIE LEE Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

December 05, 2016

Case Filing Date

June 24, 2015

County

Parties

ANDERSON, ALEXANDER A. Defendant
ANDERSON, LEVONNA C. Defendant
ANDERSON, WILLIAM C. Defendant
BARGER, JESSICA Z Attorney for the Plaintiff
DOE I, JOHN Plaintiff
FEEMSTER, WILLIAM C Attorney for the Defendant
HAMMER, ROBERT W Attorney for the Defendant
KINCAID, WILLIAM H Attorney for the Defendant
LUKASIK, DOUGLAS Attorney for the Plaintiff
SLOAN, JOHN D, Jr Attorney for the Plaintiff
THE ANDERSON PRIVATE SCHOOL Defendant
WESTFALL, GREGORY BURKE Attorney for the Defendant
S. Parks Attorneys for Defendants
Tammy Ardolf Attorney
Amie Fordan Attorneys for Defendants
Trey Kampfer
Donald Postell Attorney
Stephen Alcorn Attorney
Armando De Diego Attorneys for Defendants
Harvey Joseph Attorneys for Defendants
Leticia Martinez Attorney
Bret Helmer Attorney
La Verne Stakely Hunt Attorney

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