Preview
FILED
2/16/2024 2:33 PM
4 CIT/ESERVE FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
JURY DEMAND Belinda Hernandez DEPUTY
DC-24-02582
CAUSE NO. _______________
JANIS FAGAN AND BRUCE FAGAN, § IN THE DISTRICT COURT
Plaintiffs §
§
vs. § 68th
§ _____ JUDICIAL DISTRICT
CITY OF DALLAS, DALLAS AREA §
RAPID TRANSIT MOBILITY §
SERVICE LGC, ROLLING CASH §
AMBASSADOR L.P., AND SUNRIDGE §
MANAGEMENT GROUP, INC., §
Defendants § DALLAS COUNTY, TEXAS
ORIGINAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW Plaintiffs Janis Fagan (“Mrs. Fagan”) and Bruce Fagan (“Mr. Fagan”)
(together, “Plaintiffs”) and files this, their Original Petition complaining of the City of Dallas (the
“City”), Dallas Area Rapid Transit Mobility Service LGC (“DART”), Rolling Cash Ambassador
L.P. (“Rolling Cash”), and SunRidge Management Group, Inc. (“SunRidge”) (collectively,
“Defendants”), and in support thereof would respectfully show the Court as follows:
I.
INTRODUCTION
1. This is a personal injury case involving a special defect on a public sidewalk
adjacent to an apartment complex. Specifically, this case arises because Mrs. Fagan tripped and
fell over a protruding, inconspicuous piece of steel rebar negligently installed and left embedded
in, and protruding from, a public sidewalk. On information and belief, the protruding steel rebar
was part of an anchor bolt left behind when DART bus stop was removed. By this lawsuit,
Plaintiffs seek monetary relief over $250,000.00 but less than $1,000,000.00. Plaintiffs intend that
discovery in this matter be conducted under Level 2.
PLAINTIFFS’ ORIGINAL PETITION PAGE 1
II.
PARTIES
2. Plaintiffs are individuals and may be contacted through undersigned counsel.
3. Defendant City of Dallas is an incorporated city and municipality in Texas. It may
be served with process by serving the City Secretary, Bilierae Johnson, at 1500 Marilla Street,
Room 5 D South, Dallas, Texas 75201, under the authority of TEX. CIV. PRAC. & REM. CODE
§ 17.024(b). Issuance of citation is requested at this time.
4. Defendant DART is a domestic nonprofit local government corporation and
regional transit authority. It may be served on its registered agent, Gary Thomas, at 1401 Pacific,
Dallas, Texas 75202. Issuance of citation is requested at this time.
5. Defendant Rolling Cash is a domestic limited partnership. It may be served on its
registered agent, Corporation Service Company d/b/a CSC-Lawyers Incorporating Service
Company, at 211 E. 7th Street, Suite 620, Austin, Texas 78701. Issuance of citation is requested
at this time.
6. Defendant SunRidge is a foreign for-profit corporation doing business in Texas and
operating under the laws of the State of Texas. It may be served on its registered agent, National
Registered Agents, Inc., at 1999 Bryan Street, Suite 900, Dallas, Texas 75201. Issuance of
citation is requested at this time.
III.
JURISDICTION & VENUE
7. This Court has personal jurisdiction over all parties because all parties have done
business in and have continuing contacts in Texas, including but not limited to residing in Texas
and entering into contracts in Texas.
PLAINTIFFS’ ORIGINAL PETITION PAGE 2
8. This Court also has jurisdiction over this lawsuit under the Texas Tort Claims Act
because the incident made the basis of this lawsuit involves a personal injury so caused by a
condition or use of tangible personal or real property that a governmental unit would be liable to
Plaintiff as if it were a private person. TEX. CIV. PRAC. & REM. CODE § 101.021(2); see also TEX.
CIV. PRAC. & REM. CODE § 101.022 (duty owed for premises and special defects).
9. Venue is proper in Dallas County because it is the county in which all or a
substantial part of the events or omissions giving rise to the claim occurred and it is the county in
which Plaintiffs resided at the time of the accrual of the cause of action. TEX. CIV. PRAC. & REM.
CODE §§ 15.002(a), 101.102(a).
IV.
FACTUAL BACKGROUND
10. On or about the morning of February 27, 2023, Plaintiffs were walking their son
and daughter-in-law’s dog on a public sidewalk adjacent to the Ambassador Apartments at 5027
Live Oak Street in Dallas, Texas (the “Premises”). The Premises is owned by Defendant Rolling
Cash and managed on its behalf by Defendant SunRidge.
11. While walking on the sidewalk, Mrs. Fagan tripped on an inconspicuous piece of
steel rebar protruding vertically approximately 1.5 to 2 inches from the middle of the sidewalk.
12. On information and belief, the protruding rebar was part of an anchor bolt from
an abandoned bus stop whose shelter, benches, and other items had been removed, including well
over a dozen anchor bolts that had been either removed or ground down to grade.
13. Mrs. Fagan is an avid and attentive hiker with extensive experience safely
traversing uneven terrain. Mrs. Fagan’s passion is hiking, and Plaintiffs have logged thousands of
miles of hikes since 2018, including hikes in national parks, national forests, and wilderness areas.
Mrs. Fagan and her husband have hiked and snow-shoed on glaciers, through avalanche and scree
PLAINTIFFS’ ORIGINAL PETITION PAGE 3
fields, through streams, and at very high altitudes (over 12,000 feet). Despite Mrs. Fagan’s
experience traversing uneven terrain, she was unable to see the protruding bolt before it caught her
foot and caused her to fall.
14. Mrs. Fagan’s family took her to the emergency room at Baylor University Medical
Center in Dallas immediately after her fall, where she was diagnosed with a fractured right knee
and fractured left elbow.
15. Defendants’ negligence proximately caused Plaintiffs to suffer compensable
injuries in the form of medical and other expenses, physical pain and suffering, physical
disfigurement, mental anguish, loss of consortium, and loss of enjoyment of life, among others.
VI.
CAUSES OF ACTION
Count 1 – Premises Liability
(Mrs. Fagan against Defendants City and DART)
16. Plaintiffs incorporate by reference each and every allegation contained in the
paragraphs above as if the same were set forth in full herein.
17. Defendant City is a governmental unit and owner/possessor of the sidewalk.
Defendant DART is a local non-profit government corporation and regional transportation
authority responsible for the installation and removal of DART bus stops, including the abandoned
bus stop on the Premises.
18. The condition on the Premises (i.e., the protruding bolt) was a special defect that
created an unreasonable risk of harm to Mrs. Fagan. Defendants City and DART knew or
reasonably should have known of the unreasonably dangerous condition that the bolt created. The
condition was a special defect in that a steel anchor bolt is part of an excavation or obstruction that
presented an unexpected and unusual danger to ordinary users, such as Mrs. Fagan, because it
PLAINTIFFS’ ORIGINAL PETITION PAGE 4
presented an unusual quality apart from the ordinary conditions one encounters on a public
sidewalk. Moreover, Defendants City and DART actually created the hazardous condition by their
own actions and failures to act. Accordingly, Defendants City and DART owed Mrs. Fagan the
same duty that a private defendant would owe an invitee, i.e., the duty to use ordinary care to
protect Mrs. Fagan from a dangerous condition of which Defendants City and DART were or
reasonably should have been aware.
19. Defendants’ failure to inspect, eliminate, warn of, remove, or take any other actions
to protect the public (including Mrs. Fagan) from the hazard they created and knew or reasonably
should have known of failed to meet the applicable standard of care and was the proximate or
producing cause of Mrs. Fagan’s trip and fall, which resulted in the injuries and damages
complained of herein.
Count 2 – Premises Liability
(Mrs. Fagan against Defendants Rolling Cash and SunRidge)
20. Plaintiffs incorporate by reference each and every allegation contained in the
paragraphs above as if the same were set forth in full herein. Pleading additionally and in the
alternative:
21. Defendant Rolling Cash is the owner of the real property adjacent to the sidewalk
where Plaintiff fell. Defendant SunRidge, as property manager of the Ambassador Apartments, is
Defendant Rolling Cash’s agent and enjoys the use of the property adjacent to the sidewalk. As
such, Rolling Cash and SunRidge are “primarily liable” for for injuries resulting from an abutting
sidewalk “that has become defective.” See DALLAS CITY CODE § 43-33. The sidewalk abutting the
Ambassador Apartments “ha[d] become defective” by the time Ms. Fagan fell, meaning that
Rolling Cash and SunRidge are “primarily liable” for Mrs. Fagan’s injuries.
PLAINTIFFS’ ORIGINAL PETITION PAGE 5
22. Moreover, Rolling Cash and SunRidge are also “special users” of the sidewalk
where Mrs. Faga fell because, among other things, they make use of the sidewalk for ingress and
egress to parking lots for the Ambassador Apartments. As such, Defendants Rolling Cash and
SunRidge had a duty to keep the abutting sidewalk “in a good and safe condition and free from
any defects or hazards of whatsoever kind and nature.” DALLAS CITY CODE § 43-34. Defendants
Rolling Cash and SunRidge failed to meet the standard of care established for adjacent landowners
by this provision of the Dallas City Code, and their failure to meet that standard of care proximately
caused or contributed to Plaintiffs’ injuries, for which they are liable.
23. On information and belief, Defendants Rolling Cash and SunRidge were also aware
of and on notice of the existence and location of the inconspicuous concrete anchor bolt, which
constituted an unreasonably dangerous condition to Plaintiff and other users of the public sidewalk,
and Defendants were aware for a sufficient period of time to have eliminated it, warned of it,
otherwise removed it, or take any other actions to protect the public from the dangerous condition.
Nevertheless, Defendants Rolling Cash and SunRidge failed to inspect, eliminate, warn of,
otherwise remove, or take any other actions to protect members of the public, such as Mrs. Fagan,
from the hazard. Accordingly, Defendants Rolling Cash and SunRidge failed to meet the duty of
care that they owed to Plaintiff, and that failure proximately caused Plaintiff’s injuries.
24. Defendants Rolling Cash’s and SunRidge’s failures, as described herein, constitute
willful, wanton, or grossly negligent conduct that was the proximate or producing cause of Mrs.
Fagan’s trip and fall, which resulted in the injuries and damages complained of herein. Moreover,
the acts and omissions of Defendants Rolling Cash and SunRidge, when viewed objectively from
Defendants’ standpoints at the time of the occurrence made the basis of this lawsuit, involved an
extreme degree of risk considering the probability and magnitude of potential harm to others and
PLAINTIFFS’ ORIGINAL PETITION PAGE 6
of which Defendants had actual, subjective awareness of the risk involved but nevertheless
proceeded with conscious indifference to the rights, safety, or welfare of others. For these reasons,
Defendants Rolling Cash and SunRidge are liable for exemplary damages in an amount to be
determined at trial.
Count 3 – Negligent Use of Tangible Personal or Real Property
(Mrs. Fagan against Defendants City and DART)
25. Plaintiffs incorporate by reference each and every allegation contained in the
paragraphs above as if the same were set forth in full herein. Pleading additionally and in the
alternative:
26. Defendants City and DART had a duty to use ordinary care in the installation and
removal of bus stops located on public sidewalks, including in their use of tools and other
instrumentalities, such as anchor bolts, to install, secure, and/or remove such bus stops. Defendants
City and DART breached this duty when installed a steel bolt to anchor a bus stop and then failed
to subsequently remove or grind down to grade the protruding anchor bolt after removing the bus
stop. As such, Plaintiff’s injuries result from Defendant City’s and/or DART’s use of tangible
personal and/or real property for a which a private person would be liable to Mrs. Fagan under
Texas law. These negligent actions and failures to act were caused or contributed to Plaintiffs’
injuries.
Count 4 – Negligent Impairment of Consortium/Loss of Consortium
(Mr. Fagan against Defendants)
27. Plaintiffs incorporate by reference each and every allegation contained in the
paragraphs above as if the same were set forth in full herein.
28. The Texas Supreme Court has long recognized that a nonfatal injury to a spouse
can result in a real, direct, and personal loss to the other spouse, allowing the other spouse to bring
PLAINTIFFS’ ORIGINAL PETITION PAGE 7
an independent cause of action for negligent impairment of consortium (commonly referred to as
“loss of consortium”). See Whittlesey v. Miller, 572 S.W.2d 665, 667–68 (Tex. 1978) (holding
“that either spouse has a cause of action for loss of consortium that might arise as a result of an
injury caused to the other spouse by a third party tortfeasor’s negligence”).
29. As a result of Defendants’ negligence, Mrs. Fagan was injured. Accordingly, Mr.
Fagan brings an independent and separate cause of action for loss of consortium suffered in the
past and future as a result of Defendants’ negligence and Mrs. Fagan’s resulting injuries.
VII.
DAMAGES
30. Plaintiffs incorporate by reference each and every allegation contained in the
paragraphs above as if the same were set forth in full herein.
Actual Damages
31. As a result of the occurrence made the basis of this lawsuit, Plaintiffs have suffered
and continues to suffer severe personal injuries, which resulted in the following damages:
• Reasonable and necessary medical and other expenses incurred in the past;
• Reasonable and necessary medical and other expenses that, in reasonable
probability, will be incurred in the future;
• Physical pain and suffering in the past;
• Physical pain and suffering that, in reasonable probability, will be suffered in the
future;
• Cost of home support for Janis Fagan;
• Value of loss of household services of Janis Fagan;
• Physical impairment in the past;
• Physical impairment that, in reasonable probability, will be suffered in the future;
PLAINTIFFS’ ORIGINAL PETITION PAGE 8
• Physical disfigurement in the past;
• Physical disfigurement that, in reasonable probability, will be suffered in the
future;
• Mental anguish suffered in the past;
• Mental anguish that, in reasonable probability, will be suffered in the future;
• Loss of consortium in the past;
• Loss of consortium that, in reasonable probability, will be suffered in the future;
• Loss of enjoyment of life in the past; and
• Loss of enjoyment of life that, in reasonable probability, will be suffered in the
future.
Exemplary Damages
(Against Defendants Rolling Cash and SunRidge)
32. Defendants’ acts or omissions constitute willful, wanton, or grossly negligent
conduct that was the proximate or producing cause of Plaintiff’s trip and fall, which resulted in the
injuries and damages complained of herein. As such, Plaintiffs are entitled to exemplary damages
under TEX. CIV. PRAC. & REM. CODE § 41.003.
VIII.
CONDITIONS PRECEDENT
33. All conditions precedent to Plaintiffs’ claims for relief have been performed or have
occurred. See TEX. CIV. PRAC. & REM. CODE § 101.101(c). Specifically, Plaintiffs provided the
City of Dallas with the statutorily required notice of this claim on or around May 3, 2023 and
provide DART with notice of the claim on or about June 22, 2023.
IX.
JURY DEMAND
34. Plaintiffs assert their right to a jury trial on all claims.
PLAINTIFFS’ ORIGINAL PETITION PAGE 9
X.
RULE 166a(d) & 193.7 NOTICE
35. Pursuant to TEX. R. CIV. P. 166a(d) and 193.7, Plaintiffs hereby give notice that
they intend to use all documents produced in response to written discovery in any pre-trial matter
and at trial.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that Defendants be cited to
appear and that upon a trial of the merits:
a) Render judgment in favor of Plaintiffs against Defendants as to all claims;
b) Award Plaintiffs all damages to which she may be entitled to at law or in equity,
whether actual, direct, consequential, general, special, or otherwise, in an amount to be
proven at trial;
c) Award exemplary damages;
d) Award pre- and post-judgment interest at the maximum rates allowed by law;
e) Award court costs; and
f) All other relief, whether at law or in equity, to which Plaintiffs may be justly entitled.
Respectfully submitted,
MCCATHERN SHOKOUHI & EVANS, PLLC
/s/ James E. Sherry
James E. Sherry
State Bar No. 24086340
jsherry@mccathernlaw.com
Kristin M. Hecker
State Bar No. 24116499
khecker@mccathernlaw.com
3710 Rawlins, Suite 1600
Dallas, Texas 75219
PLAINTIFFS’ ORIGINAL PETITION PAGE 10
Telephone: (214) 741-2662
Facsimile: (214) 741-4717
ATTORNEYS FOR PLAINTIFF
PLAINTIFFS’ ORIGINAL PETITION PAGE 11
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.
Tiffany Gonzalez on behalf of James Sherry
Bar No. 24086340
tgonzalez@mccathernlaw.com
Envelope ID: 84609017
Filing Code Description: Original Petition
Filing Description:
Status as of 2/19/2024 10:30 AM CST
Associated Case Party: JANIS FAGAN
Name BarNumber Email TimestampSubmitted Status
Kristin Hecker khecker@mccathernlaw.com 2/16/2024 2:33:15 PM SENT
Rosi Gurrola rgurrola@mccathernlaw.com 2/16/2024 2:33:15 PM SENT
Tifffany Gonzalez tgonzalez@mccathernlaw.com 2/16/2024 2:33:15 PM SENT
McCathern Receptionist receptionist@mccathernlaw.com 2/16/2024 2:33:15 PM SENT
James E.Sherry jsherry@mccathernlaw.com 2/16/2024 2:33:15 PM SENT
Preview
FILED 2/16/2024 2:33 PM 4 CIT/ESERVE FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS JURY DEMAND Belinda Hernandez DEPUTY DC-24-02582 CAUSE NO. _______________ JANIS FAGAN AND BRUCE FAGAN, § IN THE DISTRICT COURT Plaintiffs § § vs. § 68th § _____ JUDICIAL DISTRICT CITY OF DALLAS, DALLAS AREA § RAPID TRANSIT MOBILITY § SERVICE LGC, ROLLING CASH § AMBASSADOR L.P., AND SUNRIDGE § MANAGEMENT GROUP, INC., § Defendants § DALLAS COUNTY, TEXAS ORIGINAL PETITION TO THE HONORABLE JUDGE OF SAID COURT: COME NOW Plaintiffs Janis Fagan (“Mrs. Fagan”) and Bruce Fagan (“Mr. Fagan”) (together, “Plaintiffs”) and files this, their Original Petition complaining of the City of Dallas (the “City”), Dallas Area Rapid Transit Mobility Service LGC (“DART”), Rolling Cash Ambassador L.P. (“Rolling Cash”), and SunRidge Management Group, Inc. (“SunRidge”) (collectively, “Defendants”), and in support thereof would respectfully show the Court as follows: I. INTRODUCTION 1. This is a personal injury case involving a special defect on a public sidewalk adjacent to an apartment complex. Specifically, this case arises because Mrs. Fagan tripped and fell over a protruding, inconspicuous piece of steel rebar negligently installed and left embedded in, and protruding from, a public sidewalk. On information and belief, the protruding steel rebar was part of an anchor bolt left behind when DART bus stop was removed. By this lawsuit, Plaintiffs seek monetary relief over $250,000.00 but less than $1,000,000.00. Plaintiffs intend that discovery in this matter be conducted under Level 2. PLAINTIFFS’ ORIGINAL PETITION PAGE 1 II. PARTIES 2. Plaintiffs are individuals and may be contacted through undersigned counsel. 3. Defendant City of Dallas is an incorporated city and municipality in Texas. It may be served with process by serving the City Secretary, Bilierae Johnson, at 1500 Marilla Street, Room 5 D South, Dallas, Texas 75201, under the authority of TEX. CIV. PRAC. & REM. CODE § 17.024(b). Issuance of citation is requested at this time. 4. Defendant DART is a domestic nonprofit local government corporation and regional transit authority. It may be served on its registered agent, Gary Thomas, at 1401 Pacific, Dallas, Texas 75202. Issuance of citation is requested at this time. 5. Defendant Rolling Cash is a domestic limited partnership. It may be served on its registered agent, Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company, at 211 E. 7th Street, Suite 620, Austin, Texas 78701. Issuance of citation is requested at this time. 6. Defendant SunRidge is a foreign for-profit corporation doing business in Texas and operating under the laws of the State of Texas. It may be served on its registered agent, National Registered Agents, Inc., at 1999 Bryan Street, Suite 900, Dallas, Texas 75201. Issuance of citation is requested at this time. III. JURISDICTION & VENUE 7. This Court has personal jurisdiction over all parties because all parties have done business in and have continuing contacts in Texas, including but not limited to residing in Texas and entering into contracts in Texas. PLAINTIFFS’ ORIGINAL PETITION PAGE 2 8. This Court also has jurisdiction over this lawsuit under the Texas Tort Claims Act because the incident made the basis of this lawsuit involves a personal injury so caused by a condition or use of tangible personal or real property that a governmental unit would be liable to Plaintiff as if it were a private person. TEX. CIV. PRAC. & REM. CODE § 101.021(2); see also TEX. CIV. PRAC. & REM. CODE § 101.022 (duty owed for premises and special defects). 9. Venue is proper in Dallas County because it is the county in which all or a substantial part of the events or omissions giving rise to the claim occurred and it is the county in which Plaintiffs resided at the time of the accrual of the cause of action. TEX. CIV. PRAC. & REM. CODE §§ 15.002(a), 101.102(a). IV. FACTUAL BACKGROUND 10. On or about the morning of February 27, 2023, Plaintiffs were walking their son and daughter-in-law’s dog on a public sidewalk adjacent to the Ambassador Apartments at 5027 Live Oak Street in Dallas, Texas (the “Premises”). The Premises is owned by Defendant Rolling Cash and managed on its behalf by Defendant SunRidge. 11. While walking on the sidewalk, Mrs. Fagan tripped on an inconspicuous piece of steel rebar protruding vertically approximately 1.5 to 2 inches from the middle of the sidewalk. 12. On information and belief, the protruding rebar was part of an anchor bolt from an abandoned bus stop whose shelter, benches, and other items had been removed, including well over a dozen anchor bolts that had been either removed or ground down to grade. 13. Mrs. Fagan is an avid and attentive hiker with extensive experience safely traversing uneven terrain. Mrs. Fagan’s passion is hiking, and Plaintiffs have logged thousands of miles of hikes since 2018, including hikes in national parks, national forests, and wilderness areas. Mrs. Fagan and her husband have hiked and snow-shoed on glaciers, through avalanche and scree PLAINTIFFS’ ORIGINAL PETITION PAGE 3 fields, through streams, and at very high altitudes (over 12,000 feet). Despite Mrs. Fagan’s experience traversing uneven terrain, she was unable to see the protruding bolt before it caught her foot and caused her to fall. 14. Mrs. Fagan’s family took her to the emergency room at Baylor University Medical Center in Dallas immediately after her fall, where she was diagnosed with a fractured right knee and fractured left elbow. 15. Defendants’ negligence proximately caused Plaintiffs to suffer compensable injuries in the form of medical and other expenses, physical pain and suffering, physical disfigurement, mental anguish, loss of consortium, and loss of enjoyment of life, among others. VI. CAUSES OF ACTION Count 1 – Premises Liability (Mrs. Fagan against Defendants City and DART) 16. Plaintiffs incorporate by reference each and every allegation contained in the paragraphs above as if the same were set forth in full herein. 17. Defendant City is a governmental unit and owner/possessor of the sidewalk. Defendant DART is a local non-profit government corporation and regional transportation authority responsible for the installation and removal of DART bus stops, including the abandoned bus stop on the Premises. 18. The condition on the Premises (i.e., the protruding bolt) was a special defect that created an unreasonable risk of harm to Mrs. Fagan. Defendants City and DART knew or reasonably should have known of the unreasonably dangerous condition that the bolt created. The condition was a special defect in that a steel anchor bolt is part of an excavation or obstruction that presented an unexpected and unusual danger to ordinary users, such as Mrs. Fagan, because it PLAINTIFFS’ ORIGINAL PETITION PAGE 4 presented an unusual quality apart from the ordinary conditions one encounters on a public sidewalk. Moreover, Defendants City and DART actually created the hazardous condition by their own actions and failures to act. Accordingly, Defendants City and DART owed Mrs. Fagan the same duty that a private defendant would owe an invitee, i.e., the duty to use ordinary care to protect Mrs. Fagan from a dangerous condition of which Defendants City and DART were or reasonably should have been aware. 19. Defendants’ failure to inspect, eliminate, warn of, remove, or take any other actions to protect the public (including Mrs. Fagan) from the hazard they created and knew or reasonably should have known of failed to meet the applicable standard of care and was the proximate or producing cause of Mrs. Fagan’s trip and fall, which resulted in the injuries and damages complained of herein. Count 2 – Premises Liability (Mrs. Fagan against Defendants Rolling Cash and SunRidge) 20. Plaintiffs incorporate by reference each and every allegation contained in the paragraphs above as if the same were set forth in full herein. Pleading additionally and in the alternative: 21. Defendant Rolling Cash is the owner of the real property adjacent to the sidewalk where Plaintiff fell. Defendant SunRidge, as property manager of the Ambassador Apartments, is Defendant Rolling Cash’s agent and enjoys the use of the property adjacent to the sidewalk. As such, Rolling Cash and SunRidge are “primarily liable” for for injuries resulting from an abutting sidewalk “that has become defective.” See DALLAS CITY CODE § 43-33. The sidewalk abutting the Ambassador Apartments “ha[d] become defective” by the time Ms. Fagan fell, meaning that Rolling Cash and SunRidge are “primarily liable” for Mrs. Fagan’s injuries. PLAINTIFFS’ ORIGINAL PETITION PAGE 5 22. Moreover, Rolling Cash and SunRidge are also “special users” of the sidewalk where Mrs. Faga fell because, among other things, they make use of the sidewalk for ingress and egress to parking lots for the Ambassador Apartments. As such, Defendants Rolling Cash and SunRidge had a duty to keep the abutting sidewalk “in a good and safe condition and free from any defects or hazards of whatsoever kind and nature.” DALLAS CITY CODE § 43-34. Defendants Rolling Cash and SunRidge failed to meet the standard of care established for adjacent landowners by this provision of the Dallas City Code, and their failure to meet that standard of care proximately caused or contributed to Plaintiffs’ injuries, for which they are liable. 23. On information and belief, Defendants Rolling Cash and SunRidge were also aware of and on notice of the existence and location of the inconspicuous concrete anchor bolt, which constituted an unreasonably dangerous condition to Plaintiff and other users of the public sidewalk, and Defendants were aware for a sufficient period of time to have eliminated it, warned of it, otherwise removed it, or take any other actions to protect the public from the dangerous condition. Nevertheless, Defendants Rolling Cash and SunRidge failed to inspect, eliminate, warn of, otherwise remove, or take any other actions to protect members of the public, such as Mrs. Fagan, from the hazard. Accordingly, Defendants Rolling Cash and SunRidge failed to meet the duty of care that they owed to Plaintiff, and that failure proximately caused Plaintiff’s injuries. 24. Defendants Rolling Cash’s and SunRidge’s failures, as described herein, constitute willful, wanton, or grossly negligent conduct that was the proximate or producing cause of Mrs. Fagan’s trip and fall, which resulted in the injuries and damages complained of herein. Moreover, the acts and omissions of Defendants Rolling Cash and SunRidge, when viewed objectively from Defendants’ standpoints at the time of the occurrence made the basis of this lawsuit, involved an extreme degree of risk considering the probability and magnitude of potential harm to others and PLAINTIFFS’ ORIGINAL PETITION PAGE 6 of which Defendants had actual, subjective awareness of the risk involved but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others. For these reasons, Defendants Rolling Cash and SunRidge are liable for exemplary damages in an amount to be determined at trial. Count 3 – Negligent Use of Tangible Personal or Real Property (Mrs. Fagan against Defendants City and DART) 25. Plaintiffs incorporate by reference each and every allegation contained in the paragraphs above as if the same were set forth in full herein. Pleading additionally and in the alternative: 26. Defendants City and DART had a duty to use ordinary care in the installation and removal of bus stops located on public sidewalks, including in their use of tools and other instrumentalities, such as anchor bolts, to install, secure, and/or remove such bus stops. Defendants City and DART breached this duty when installed a steel bolt to anchor a bus stop and then failed to subsequently remove or grind down to grade the protruding anchor bolt after removing the bus stop. As such, Plaintiff’s injuries result from Defendant City’s and/or DART’s use of tangible personal and/or real property for a which a private person would be liable to Mrs. Fagan under Texas law. These negligent actions and failures to act were caused or contributed to Plaintiffs’ injuries. Count 4 – Negligent Impairment of Consortium/Loss of Consortium (Mr. Fagan against Defendants) 27. Plaintiffs incorporate by reference each and every allegation contained in the paragraphs above as if the same were set forth in full herein. 28. The Texas Supreme Court has long recognized that a nonfatal injury to a spouse can result in a real, direct, and personal loss to the other spouse, allowing the other spouse to bring PLAINTIFFS’ ORIGINAL PETITION PAGE 7 an independent cause of action for negligent impairment of consortium (commonly referred to as “loss of consortium”). See Whittlesey v. Miller, 572 S.W.2d 665, 667–68 (Tex. 1978) (holding “that either spouse has a cause of action for loss of consortium that might arise as a result of an injury caused to the other spouse by a third party tortfeasor’s negligence”). 29. As a result of Defendants’ negligence, Mrs. Fagan was injured. Accordingly, Mr. Fagan brings an independent and separate cause of action for loss of consortium suffered in the past and future as a result of Defendants’ negligence and Mrs. Fagan’s resulting injuries. VII. DAMAGES 30. Plaintiffs incorporate by reference each and every allegation contained in the paragraphs above as if the same were set forth in full herein. Actual Damages 31. As a result of the occurrence made the basis of this lawsuit, Plaintiffs have suffered and continues to suffer severe personal injuries, which resulted in the following damages: • Reasonable and necessary medical and other expenses incurred in the past; • Reasonable and necessary medical and other expenses that, in reasonable probability, will be incurred in the future; • Physical pain and suffering in the past; • Physical pain and suffering that, in reasonable probability, will be suffered in the future; • Cost of home support for Janis Fagan; • Value of loss of household services of Janis Fagan; • Physical impairment in the past; • Physical impairment that, in reasonable probability, will be suffered in the future; PLAINTIFFS’ ORIGINAL PETITION PAGE 8 • Physical disfigurement in the past; • Physical disfigurement that, in reasonable probability, will be suffered in the future; • Mental anguish suffered in the past; • Mental anguish that, in reasonable probability, will be suffered in the future; • Loss of consortium in the past; • Loss of consortium that, in reasonable probability, will be suffered in the future; • Loss of enjoyment of life in the past; and • Loss of enjoyment of life that, in reasonable probability, will be suffered in the future. Exemplary Damages (Against Defendants Rolling Cash and SunRidge) 32. Defendants’ acts or omissions constitute willful, wanton, or grossly negligent conduct that was the proximate or producing cause of Plaintiff’s trip and fall, which resulted in the injuries and damages complained of herein. As such, Plaintiffs are entitled to exemplary damages under TEX. CIV. PRAC. & REM. CODE § 41.003. VIII. CONDITIONS PRECEDENT 33. All conditions precedent to Plaintiffs’ claims for relief have been performed or have occurred. See TEX. CIV. PRAC. & REM. CODE § 101.101(c). Specifically, Plaintiffs provided the City of Dallas with the statutorily required notice of this claim on or around May 3, 2023 and provide DART with notice of the claim on or about June 22, 2023. IX. JURY DEMAND 34. Plaintiffs assert their right to a jury trial on all claims. PLAINTIFFS’ ORIGINAL PETITION PAGE 9 X. RULE 166a(d) & 193.7 NOTICE 35. Pursuant to TEX. R. CIV. P. 166a(d) and 193.7, Plaintiffs hereby give notice that they intend to use all documents produced in response to written discovery in any pre-trial matter and at trial. PRAYER FOR RELIEF WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that Defendants be cited to appear and that upon a trial of the merits: a) Render judgment in favor of Plaintiffs against Defendants as to all claims; b) Award Plaintiffs all damages to which she may be entitled to at law or in equity, whether actual, direct, consequential, general, special, or otherwise, in an amount to be proven at trial; c) Award exemplary damages; d) Award pre- and post-judgment interest at the maximum rates allowed by law; e) Award court costs; and f) All other relief, whether at law or in equity, to which Plaintiffs may be justly entitled. Respectfully submitted, MCCATHERN SHOKOUHI & EVANS, PLLC /s/ James E. Sherry James E. Sherry State Bar No. 24086340 jsherry@mccathernlaw.com Kristin M. Hecker State Bar No. 24116499 khecker@mccathernlaw.com 3710 Rawlins, Suite 1600 Dallas, Texas 75219 PLAINTIFFS’ ORIGINAL PETITION PAGE 10 Telephone: (214) 741-2662 Facsimile: (214) 741-4717 ATTORNEYS FOR PLAINTIFF PLAINTIFFS’ ORIGINAL PETITION PAGE 11 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. Tiffany Gonzalez on behalf of James Sherry Bar No. 24086340 tgonzalez@mccathernlaw.com Envelope ID: 84609017 Filing Code Description: Original Petition Filing Description: Status as of 2/19/2024 10:30 AM CST Associated Case Party: JANIS FAGAN Name BarNumber Email TimestampSubmitted Status Kristin Hecker khecker@mccathernlaw.com 2/16/2024 2:33:15 PM SENT Rosi Gurrola rgurrola@mccathernlaw.com 2/16/2024 2:33:15 PM SENT Tifffany Gonzalez tgonzalez@mccathernlaw.com 2/16/2024 2:33:15 PM SENT McCathern Receptionist receptionist@mccathernlaw.com 2/16/2024 2:33:15 PM SENT James E.Sherry jsherry@mccathernlaw.com 2/16/2024 2:33:15 PM SENT