Preview
CAUSE NO.
FELISHA COOPER IN THE JUDICIAL DISTRICT
Plaintiff,
DISTRICT COURT
APV HISTORIC COMMUNITY,
L.P., D/B/A HISTORIC OAKS OF
ALLEN PARKWAY; ALLIED
ORION GROUP; ACS
RESTORATION GC, LLC D/B/A
ALLIED ORION GROUP;
THORNTON TOWNHOMES GC,
LLC D/B/A ALLIED ORION
GROUP; ALLIED ORION
GROUP, LLC
Defendants. OF HARRIS COUNTY, TEXAS
MOTION FOR PARTIAL SUMMARY JUDGMENT AND RESPONSE
TO DEFENDANTS SUMMARY JUDGMENT
TO THE HONORABLE JUDGE ROBERT SCHAFFER
NOW COMES Plaintif FELISHA COOPER, hereinafter, Cooper”), and files this
Motion for Partial Summary Judgment and Response to Defendants Summary Judgment, and in
support thereof would show the Court as follows:
SUMMARY OF ARGUMENT
The Court should grant Plaintiff’s Traditional Motion for Summary Judgment because:
There exists no genuine issue of material fact to negate Defendants’ liability
(negligence) for incident on August 3, 2016. Based on the uncontroverted facts of this
e, Plaintiff is entitled to Traditional Partial Summary Judgment on the elements of
duty, breach, and causation pursuant to Rule 166a of the Texas Rules of Civil
Procedure. Essentially, negligence liability questions should not be submitted to the
There exists no genuine issue of material fact to negate Defendant’s liability
(premises liability) for incident on August 3, 2016. Based on the uncontroverted facts
of this case, Plaintiff is entitled to Traditional Partial Summary Judgment on the
elements of the premises liability claims are: condition on the premises posed an
unreasonable risk of harm, actual or constructive knowledge of the condition, failure
Page
to exercise reasonable care to reduce or eliminate the risk, and causation pursuant to
Rule 166a of the Texas Rules of Civil Procedure. Essentially, premises liability
questions should not be submitted to the jury.
• There exists no genuine issue of material fact to negate Defendants’ liability
(negligence hiring, supervision, training, or retention) for incident on August 3,
2016. Based on the uncontroverted facts of this case, Plaintiff is entitled to Traditional
Partial Summary Judgment on the elements of duty to hire, supervise, train, or retain
competent employees, breach of these duties, employees committed a tort, and
causation pursuant to Rule 166a of the Texas Rules of Civil Procedure. Essentially,
negligence hiring, supervision, training, or retention liability questions should not be
submitted to the jury.
• There exists no genuine issue of material fact as to Plaintiff’s past medical
expenses associated with the incident on August 3, 2016. Based on the
uncontroverted facts of this case, Plaintiff has incurred medical charges of $44,026.77
that have been timely submitted to the Court with CPRC 18.001 cost affidavits.
Defendant failed to controvert any of the Plaintiff’s affidavits and has not timely
designated an expert to refute the charges. Essentially, a past medical expense question
should not be submitted to the jury.
• There exists no genuine issue of material facts as to Defendants’ Gross negligence
for the incident on August 3, 2016. Based on the uncontroverted facts of this case, the
evidence is clear and convincing that when viewing Defendants’ acts and omissions
objectively from the standpoint of Defendants at the time, its occurrence involved an
extreme degree of risk, considering the probability and Defendants had actual,
subjective awareness of the risk involved but nevertheless proceeded with its conduct
with conscious indifference to the rights, safety, or welfare of others. Essentially, a
gross negligence question should not be submitted to the jury.
II. EVIDENCE IN SUPPORT OF MOTION
1. In support of these motions, Cooper offers the following evidence, true and correct copies
of which are attached hereto and marked as follows and which are incorporated herein by
reference for all purposes, together with any pleadings and discovery in connection with
this case.
Exhibit 1 Allied Orion Group, and Allied Orion Group LLC’s Admission
Responses
Exhibit 2 Orion Real Estate Services, Inc. Admission Responses
Exhibit 3 Revised Management Agreement
Exhibit 4 First Amendment to the Revised Property Management agreement
Exhibit 5 Assumed Name Certificate Filing
Exhibit 6 Allied Orion Group LLC Interrogatory Responses
Exhibit 7 Orion Real Estate Services Policy and Procedures Manual
Page 2 of 72
Exhibit 8 Deposition of Cynthia Fowler
Exhibit 9 Deposition of Cynthia Hicks
Exhibit 10 Deposition of Felisha Cooper
Exhibit 11 Deposition of Paula McQueen (formerly Robertson)
Exhibit 12 Orion Real Estate Services Accident Prevention Plan Handbook
Exhibit 13 Employee file of Jose Rivas
Exhibit 14 Employee file of Jaime Narvaez
Exhibit 15 Employee file of Digna Rivera
Exhibit 16 Employee File of Dawn Robinson
Exhibit 17 Employee File Luis Portillo
Exhibit 18 Employee File Miguel Zayas
Exhibit 19 Employee File Nham Mai
Exhibit 20 Employee File Raul Villegas
Exhibit 21 Employee File Shajwanda McCain
Exhibit 22 Historic Oaks of Allen Parkway/ Orion Real Estate Supplied & Parts
Inventory
Exhibit 23 Letter from Cynthia Fowler to Vendor, Response to RFP No. 3 Orion
Real Estate Services, Resp. to RFP 3, ORS 002638
Exhibit 24 House Rules
Exhibit 25 2016 Budget Expense Worksheet
Exhibit 26 Property Management benchmarks standards letter for April 2016
Exhibit 27 Property Management Benchmark Standards for May 2016
Exhibit 28 Property Management Benchmark Standards for June 2016
Exhibit 29 Property Management Benchmark Standards for July 2016
Exhibit 30 Property Management Benchmark Standards for September 2016
Exhibit 31 Employee File of Cynthia Fowler
Exhibit 32 Employee File of Paula McQueen (formerly Robertson)
Exhibit 33 Employee File of Cynthia Hicks
Exhibit 34 Employee File of Mario Garcia
Exhibit 35 Deposition of Jose Rivas
Exhibit 36 Narrative/Market Assumptions letter
Exhibit 37 Deposition of Erika Huerta
Exhibit 38 Feb. 2016 Monthly property inspection report
Exhibit 39 April 2016 monthly property inspection report
Exhibit 40 June 2016 Monthly property inspection report
Exhibit 41 UPCS Inspections
Exhibit 42 July 2016 Monthly Checklist
Exhibit 43 July 2016 Preventative maintenance checklist
Exhibit 44 2016 fall preventative maintenance checklist
Exhibit 45 General ledger
Exhibit 46 Check register
Exhibit 47 Additional Check register
Exhibit 48 Variance report
Page 3 of 72
Exhibit 49 March monthly property inspections
Exhibit 50 July Property Evaluation
Exhibit 51 APV permit inspections reports
Exhibit 52 Actual vs. Budget Analysis Report
Exhibit 53 Exterior lighting report inspections
Exhibit 54 Letter of complaint from Ms. Cooper reporting incident
Exhibit 55 Affidavit of John Smith, P.E.
Exhibit 56 Affidavit of Dr. Hector Miranda
Exhibit 57 18.001 Billing affidavits previously filed
III. INTRODUCTION
2. This tort action arises from a trip and fall which occurred on the sidewalk located on
Bluebonnet Place Circle (“Bluebonnet”) of the apartment complex known as Historic Oaks
of Allen Parkway located at 1600 Historic Oaks of Allen Parkway Village
(“Development”).
3. On or about August 3, 2016, between 9:00 p.m. - 9:40 p.m. at night, Cooper was walking
on Bluebonnet when she tripped and fell on the wet, muddy, cracked, uneven sidewalk.1
The pathway was dimly lit.2 According to her letter of complaint, Bluebonnet had mud
and water that ran off due to the sprinklers running prior to her fall3 as they had been
4
previously turned on. It was not raining outside, nor did it rain at all during that day, it
was hot.5 Cooper brought negligence, negligent hiring, supervision, training, or retention
and gross negligence claims (“claims.”) against the Defendants and seeks both general and
special damages.
IV. PROCEDURAL HISTORY
4. Defendants filed a traditional summary judgment as to each of Cooper’s claims.6
V. THE PARTIES
5. Plaintiff was a resident of the Development7 and described as being a good tenant when
she resided at the property.8
6. There are three Defendants identified in this matter, Allied Orion Group LLC (“AOL”),
Allied Orion Group (“AOG”); and Orion Real Estate Services, Inc. (“ORS”) collectively
1
Ex. 10: Felicia Cooper Dep, pg. 176 ln. 16-17.
2
Ex. 10: Felicia Cooper Dep., pg. 177 ln. 20-25 – pg. 178 ln. 1-2
3
Ex. 10: Felicia Cooper Dep., pg. 212 ln 24-25 – pg. 213 ln. 1-10
4
Ex. 10: Felicia Cooper Dep., pg. 176 ln. 24-25 – pg. 177 ln. 1-9
5
Ex. 10: Felicia Cooper Dep., pg. 176 ln. 18-21
6
See Defs.’ Traditional Mtn. for Summary Judgment. Defendant 10, 2020. Env. 48833729
7
Ex. 1: Defs. Admis., AOL and AOG. Am. Admis. No. 19; Ex. 2: ORS Am. Admis. No. 19
8
Ex. 9: Cynthia Hicks Dep., pg. 9 ln. 20-23
Page 4 of 72
herein (“Orion” or “Defendants” as used interchangeably). ORS is an independent
9
contractor engaged in the business of managing, operating, maintaining the Development
and who represents and warrants that it is fully qualified to manage real estate and perform
all assumed obligations under these management agreements.10 The parent entity of ORS
is AOL11 and the managing agent for Historic oaks of Allen Parkway.12 ORS does business
under the assumed name AOG.13
VI. UNCONTROVERTED FACTS
A. The Management Agreements
7. AOG is the management company of the Development.14 The owner of the Development
is APV HISTORIC COMMUNITY, LP (“APV”),15 who is engaged in the business of
providing decent, safe, and sanitary housing to its residents.16 The management
agreements, identify the Development as 1600 Historic Oaks of Allen Parkway Village.17
APV extended its duties of managing the Development to ORS pursuant to two agreements
(collectively herein “management agreements”). The first agreement entitled Revised
Management Agreement (herein “main agreement”) between APV and ORS, sets forth the
full terms, scope, conditions, and obligations and engages ORS, an independent contractor,
to act on its behalf of APV to manage, maintain, operate and secure the development18 and
have full responsibility for the management, operation, maintenance and securing of the
Development during the term of the Agreement.19 ORS admits on the day of the incident,
Bluebonnet was managed by ORS.20
8. The second agreement, entitled First Amendment to the revised property management
agreement (“second agreement”) between APV and ORS expands ORS’ financial authority
regarding its duties under the main agreement.21 Both agreements were executed on April
13, 201622 and were in effect on the day of Cooper’s incident.23 This second agreement is
incorporated into the main agreement24 and does not alter the main agreement25 and
9
Ex. 3: Rev. Mgmt. Agmt., pg. 25, Article X, 10.2, bates AOG 000061, April 13, 2016
10
Ex. 3: Rev. Mgmt. Agmt., pg. 26, Article X, 10.6, bates AOG 000062, April 13, 2016
11
Ex. 2: Defs. Admis., ORS Admis. No.61
12
Ex. 23: Correspondence from AOL, Resp. to RFP 3, ORS 002638
13
Ex. 5: Assumed Name Certificate of Ownership for Incorporated Business
14
Ex. 6: Defs. Interrog., AOG., No. 3, July 25, 2019
15
Ex. 3: Rev. Mgmt. Agmt., pg. 1, paragraph 1, bates AOG 000037, April 13, 2016,
16
Ex. 3: Rev. Mgmt. Agmt., Recitals, pg. 1, paragraph 3, bates AOG 000037, April 13, 2016
17
Ex. 3: Rev. Mgmt. Agmt., Recitals, pg. 1, paragraph 1, bates AOG 000037, April 13, 2016
18
Ex. 3: Rev. Mgmt. Agmt., pg. 3, Article II, bates AOG 000039, April 13, 2016
19
Ex.3, Rev. Mgmt. Agmt. pg. 5, Article V, paragraph 1, bates AOG 000041, April 13, 2016
20
Ex. 1: Defs. Admis. ORS Admis. No. 20
21
Ex. 4: First Am. to Rev. Mgmt. Agmt., Article XI, bates AOG000031-AOG000035
22
Ex. 3 & 4: Rev. Mgmt. Agmt., pg. 29, bates AOG000065, and First Am. to Rev. Mgmt. Agmt., pg. 4, bates
AOG000035
23
Ex. 3: Rev. Mgmt. Agmt., pg. 3, Article IV. Term, 4.1, bates AOG 000039
24
Ex. 4: First Am. to Rev. Mgmt. Agmt., pg. 4, Article XIII, 13.4, bates AOG 000035
25
Id.
Page 5 of 72
incorporates by reference the second agreement into the first agreement.26 According to the
testimony of the Development’s property manager, Paula McQueen, this was the
27
management agreement in existence at the time of the incident and Allied Orion Group
did in fact manage the premises28 Additionally, Paula McQueen, testified during the time
of the incident, Allied Orion Group was entitled to exercise exclusive control over the
29
development and Orion admits it had the right to control the premises under the terms of
30
a contract.
9. According to the management agreement, ORS is always required to maintain and repair
appurtenances and grounds of the Development31 including supervising all ordinary and
32
extraordinary repairs. ORS can either hire employees or contractors to provide routine
maintenance.33 ORS is also required to develop a preventive maintenance schedule,
including, but not limited to, periodic inspections of common area maintenance and
34
exterior maintenance. According to the Management agreement, all subcontractors hired
by Orion shall be hired, paid, supervised, and discharged solely by Orion.35 Pursuant to
this agreement, the resident is not required to return a common area to its previous
36
condition.
B. Orion’s Safety and Accident Manuals
10. According to Orion’s Policies and Procedures (Safety Manual”), all common areas must
be maintained in a safe, clean, manner.37 All employees are responsible to ensure that
38
walking surfaces are kept clean, and free of any type of debris. According to the testimony
of Cynthia Fowler, the Development’s Regional Supervisor, the policies and procedures
are a guideline for Allied Orion to give to its staff to follow.39 According to its Safety
Manual, it is the responsibility of employees, area management, and safety to ensure paths
are unobstructed and that external exit paths must be maintained free of any obstructions,40
26
Id.
27
Ex. 11: Paula McQueen Dep. pg. 14 ln.19-23
28
Ex. 11: Paula McQueen Dep. pg. 100 ln. 10-16
29
Ex. 11: Paula McQueen Dep. pg. 32 ln.19-25 – pg. 33 ln. 1-3
30
Ex. 1 & 2: AOL and AOG Am. Admis. No. 15
31
Ex. 3: Rev. Mgmt. Agmt., pg. 13, Article V, 5.10.1, bates AOG 000049, April 13, 2016
32
Ex. 3: Rev. Mgmt. Agmt., pg. 13, Article V, 5.10, bates AOG 000049, April 13, 2016
33
Ex. 3: Rev. Mgmt. Agmt., pg. 8, Article V, 5.3(e), bates AOG 000044, April 13, 2016
34
Ex. 3: Rev. Mgmt. Agmt., pg. 13, Article V, 5.10.2, bates AOG 000049, April 13, 2016; See also 5.10.3 noted
Inspection of Units and Common Areas.
35
Ex. 3: Rev. Mgmt. Agmt., pg. 5, Article V, 5.2, paragraph 2, AOG 000041, April 13, 2016
36
Ex. 7: ORS Policy and Procedures Manual, Section 202.00, Sub-Section: Fair Housing, pg. 4,AOG000109,
September 13, 2007
37
Ex. 7: ORS Policy and Procedures Manual, Section 512.03, Sub-Section: Storage Facilities/Amenities, pg. 1, AOG
000191, Oct 9, 2007
38
Ex. 7: ORS Safety Manual 12.19.13, Walking/Working Surface Industrial Safety Program, REGULATORY
STANDARD: OSHA – 29 CFR 1910.21 - 23, pg. 386, 5.2.4, bates AOG000633
39
Ex. 8: Cynthia Fowler Dep. pg. 14 ln. 24-25 – pg. 15 ln. 1-9
40
Ex. 7: ORS Safety Manual 12.19.13, Emergency Action, Evacuation and Fire Prevention Safety Program,
REGULATORY STANDARD: OSHA – 29CFR1910.36, .38, .157, .165, NFPA-10, pg. 91, 5.1.3, bates AOG000333
Page 6 of 72
and to maintain the property, routine maintenance tasks and on-going preventive
41
maintenance must be performed.
11. According to the Safety Manual, the Preventive Maintenance Program is one of the most
essential aspects to insure a property is maintained and remains in good, operating
42
condition. The purpose of preventive maintenance is to eliminate problems before they
occur, thus preventing potentially costly and dangerous situations.43 On-going preventative
maintenance is performing tasks such as daily walk-throughs which means checking for
any safety/liability issues that may be present,44 weekly cleaning and checking all common
areas and repairing any damages as needed.45 Routine Maintenance is the periodic schedule
of tasks that are recurring in nature, daily, weekly, monthly, which must be accomplished
on an on-going basis to ensure a property is well maintained.46
12. According to the Safety Manual, the implementation and supervision of the preventive plan
is the responsibility of the Lead Maintenance person,47 as well as to discuss property
objectives with the Property Manager and Regional Property Supervisor, but he is only
responsible for scheduling a program for all normal maintenance, capital improvements,
prepare scopes of work and prepare a bid for the property manager, plan contracted services
within the budget, however necessary repairs should not be deferred in order to adhere to
a budget schedule; and the Property Manager/Regional Supervisor should be made aware
of budget exceptions.48
13. According to the Safety Manual’s tour route policy, the Development must be inspected
daily for cleanliness and appeal by both the office team as well as the maintenance team,
look spotless and beautiful,49 be well lit, in good repair, entrances, should be swept and free
of trash and debris. The overall property appearance should always be clean and
appealing.50
41
Ex. 7: ORS Policy and Procedures Manual, Section 512.01, Rev. Date: May 19, 2008, Section: Maintenance General
Property Maintenance, Sub-Section: Routine Maintenance Scheduling, pg. 1, paragraph 2, AOG 000188, Oct 9, 2007
42
Ex. 7: ORS Policy and Procedures Manual, Section 525.00, Distrib. Date: Oct 9, 2007, Section: Maintenance, Sub-
Section: Preventive Maintenance Program, pg. 1, paragraph 1, AOG 000242
43
Ex. 7: ORS Policy and Procedures Manual, Section 525.00, Distrib. Date: Oct 9, 2007, Section: Maintenance, Sub-
Section: Preventive Maintenance Program, pg. 1, paragraph 2, AOG 000242
44
Ex. 7: ORS Policy and Procedures Manual, Section 512.01, Rev. Date: May 19, 2008, Section: Maintenance General
Property Maintenance, Sub-Section: Routine Maintenance Scheduling, pg. 1, paragraph 3, AOG 000188, Oct 9, 2007
45
Id.
46
Ex. 7: ORS Policy and Procedures Manual, Distrib. Date: Oct. 9, 2007, Section: Maintenance General Property
Maintenance, Sub-Section: Routine Maintenance Scheduling, pg. 1, paragraph 2, bates AOG000188
47
Ex. 7: ORS Policy and Procedures Manual, Distrib. Date: Oct. 9, 2007, Section: Maintenance, Sub-Section:
Preventative Maintenance Program, pg. 1, paragraph 1, bates AOG000242
48
Ex. 7, ORS Policy and Procedures Manual, Section 507.00, Section: Maintenance, Sub-Section: The Maintenance
Budget, pg. 1, AOG 000181, Oct 9, 2007
49
Ex. 7, ORS Policy and Procedures Manual, Section 213.00, Sub-Section: Touring and the Sales Process, pg.1
AOG 000123, Sept. 13, 2007
50
Ex. 7: ORS Policy and Procedures Manual, Section 102.00, Sub-Section: Office Appearance/Atmosphere, pg.1
AOG 000068, Nov. 2, 2007, Rev. Date: Jun. 15, 2010
Page 7 of 72
14. According to the Safety Manual, ORS is required to allow reasonable modifications to the
common area if the modifications are necessary to allow the disabled person to fully use
and enjoy common area51 and has the responsibility of paying for reasonable
52
modifications. To ensure compliance with this federal law, ORS requires that its
53
employees not unreasonably delay or fail to supply repairs and maintenance.
15. According to the Safety Manual, requests for any safety issue should be given top priority
by maintenance - these service requests must be handled promptly and before the
54
maintenance staff leaves for the day because one should never delay in making repairs if
the resident’s health, safety is in danger and when in doubt, one may contact the Property
Manager or Regional Property Supervisor.55 An employee can also make a request for
service. The request for service is an employee’s observation of maintenance work needed
in a common area. When this happens, the maintenance item is written up in the Service
Request book or entered the Service Request software program.
16. According to the Safety Manual, as for housekeeping, its responsibilities are to clear
56
zones. To this end, it is the general company policy that all passageways shall be kept
clean, and free of known hazards. To facilitate cleaning, every passageway shall be kept
free from hindrances that would prevent efficient maintenance.
17. According to the Safety Manual, the company also keeps a general safety program. This
program provides for the identification, evaluation, and mitigation of safety hazards and it
applies to all employees. They may be charged with performing area inspections, training,
or other safety-related duties that are appropriate to the business needs of the company.57
18. According to the Safety Manual, it is the management and supervisors’ responsibility to
ensure passageways are properly maintained, enforce housekeeping rules, and to encourage
employees to report unsafe conditions. It is the employees’ responsibilities to report unsafe
51
Ex. 7: ORS Policy and Procedures Manual, Section 202.00, Sub-Section: Fair Housing, pg. 4, AOG 000109, Sept
13, 2007
52
Ex. 7: ORS Policy and Procedures Manual, Section 202.00, Sub-Section: Fair Housing, pg. 4, AOG 000109, Sept
13, 2007
53
Ex. 7: ORS Policy and Procedures Manual, Section 202.00, Sub-Section: Fair Housing, pg. 2, AOG 000107, Sept
13, 2007
54
Ex. 7: ORS Policy and Procedures Manual, Section 513.02, Sub-Section: Service Requests, pg. 1, AOG 000197,
Oct 9, 2007
55
Ex. 7: ORS Policy and Procedures Manual Section 519.00, Sub-Section: Emergency/On Call, pg. 2, AOG 000229,
Distrib. Date: Oct 9, 2007, Rev. Date: May 19, 2008
56
Ex. 7: ORS Policy and Procedures Manual, AOG000438, Dec. 19, 2013
57
Ex. 7: ORS Policy and Procedures Manual, General Safety Awareness Program; REGULATORY STANDARD:
OSHA General Duty Clause, AOG000454, Dec. 19. 2013.
Page 8 of 72
conditions to their supervisor immediately.58 Passageways shall be kept clear and in good
repair with no obstruction that could create a hazard.59
19. According to the Safety Manual, it is the Property Manager’s responsibility to ensure that
all permits and licenses are kept current and as required for their site pursuant to all local,
state, and federal laws.60 One of the Required permits includes the sprinkler. Annual
61
Scheduling includes sprinkler systems. According to the contracted preventive
62
maintenance program pertaining to sprinkler system inspections this is outsourced to
contractors via bids gathered by Lead Maintenance and budgeted. Once bids are gathered,
they are presented to the Regional Property Supervisor for approval. 63 Additionally,
systems should be inspected regularly to ensure safety and optimal performance. The areas
inspected include:
• Equipment and systems inspections
• Services performed by contract agreement and
• Documentation of repairs and replacement parts or equipment by Orion employee
or outside contractor.64
20. According to the Safety Manual, the Development’s sprinkler systems must not be allowed
to run longer than necessary. If a sprinkler runs longer than 10 minutes, the water starts
running off, instead of soaking in. Therefore, it is mandated for the timer to be set to do
two 10-minute shifts per day, if necessary. As specifically, stated this will do much more
good than a single 20-minute shift. Additionally, the sprinklers are to be checked weekly
so the four inspection dates for that month are written in the appropriate blanks on the
Schedule. The person who completes the inspections makes their entries on the Summary
of Inspections page after the work is completed.65 According to its policies, sprinkler
systems must be maintained in good operating condition. Maintenance includes, testing
frequency, inspection, maintaining an 18-inch clearance around and below all sprinkler
heads.66
21. According to the Safety Manual, all fire protection systems are to be adequately maintained
and periodically inspected and tested to make sure they are always in satisfactory operating
condition.67
58
Ex. 7, ORS Policy and Procedures Manual, Safety Manual 12.19.13; Walking/Working Surface Industrial Safety
Program, REGULATORY STANDARD: OSHA – 29 CFR 1910.21 - 23, AOG000626 -AOG000627
59
Ex. 7, ORS Policy and Procedures Manual, Safety Manual 12.19.13; Walking/Working Surface Industrial Safety
Program, REGULATORY STANDARD: OSHA – 29 CFR 1910.21 - 23, AOG000627
60
Ex. 7, ORS Policy and Procedures Manual, Section 502.00, Sub-Section: Permits, Warranties & Licenses, pg. 1
AOG 000174, Distrib. Date: Oct. 9, 2007
61
Id.
62
Id.
63
Id.
64
Ex. 12: ORS Accident Prevention Plan Handbook, Section 102.00, Sub-Section: Equipment Inspections and
Maintenance, pg.1 of 1, ORES/AOG/AOG,LLC 0000026 Response to RFP No. 3, 10/24/07
65
Ex. 7, ORS Policy and Procedures Manual, Section 525.00, Sub-Section: Preventive Maintenance Program, pg. 1,
AOG 000242, Oct 9, 2007
66
Id.
67
Ex. 7, ORS Policy and Procedures Manual, AOG000436, 12.19.13; Allied Orion Group, Safety Manuel 12.19.13;
Page 9 of 72
22. According to the Safety Manual, supervisors therefore will undergo training comparable
to that of the employees. Such additional training as will enable them to recognize and
correct to reinforce the company safety programs. Managers will be made aware of their
safety responsibilities and will receive sufficient training pertaining to issues at each
68
workstation so that they can effectively carry out their responsibilities.
23. According to the Safety Manual, the degree of training provided shall be determined by
the complexity of the job and the associated hazards. Scheduled refresher training will be
conducted on an as needed basis. Additional retraining shall also be conducted whenever
a periodic inspection reveals, or when there is reason to believe that there are deviations
from or inadequacies in the employee's knowledge of known hazards or procedures. 69
Employees are to receive training and area management and safety is to provide training
needed.70
24. According to the Safety Manual, pursuant to the general safety program, Orion establishes
employee training requirements and details and inspections. Under this program,
management is to identify and evaluate any safety hazards, provide reasonable solutions to
reduce or eliminate recognized safety hazards. Employees should report safety concerns
and hazards to their Supervisor, participate in the resolution of the recognized safety
hazards, as needed, or required. 71 All new employees are provided with a general safety
orientation upon initial assignment. This orientation includes the process for reporting
hazards, accidents, injuries and near misses. Employees are consistently urged to report
unsafe conditions in their workplace, and work with Orion. ORS management and staff
have implemented a Safety Management Program which for employee awareness and
training with regarding safety issues and its commitment to their community to lessen or
eliminate any safety- related that could impact them.72
25. According to Orion Real Estate Services Accident Prevention Plan Handbook (“Accident
Handbook”), the accident Prevention Plain strives to achieve the following goals:
• Active involvement of each and every employee of the company
• Eliminate current and potential hazards that expose or create risk of any nature
• Reduce all losses due to incidents resulting in jury to any other person from such incidents.
Thus, Employees are expected to:
Return to Work Program, REGULATORY STANDARD: Best Practices Guidelines, General Safety Checklist,
AOG000574
68
Ex. 7, ORS Policy and Procedures Manual, Accident Investigation & Reporting Safety Program; Regulatory
Standard: OSHA -29 CFR 1904, AOG 000255 Dec. 19, 2013
69
Ex. 7, ORS Policy and Procedures Manual, Accident Investigation & Reporting Safety Program; Regulatory
Standard: OSHA -29 CFR 1904, AOG 000268 Dec.19, 2013
70
Ex. 7, ORS Policy and Procedures Manual, Electrical (General) Safety Program; Regulatory Standard: OSHA-29
CFR 1910.331-335, OSHA-29 CFR 1926.302, 1926.416-417, Exit and Egress (Life Safety) Requirements,
AOG000318, Dec. 19, 2013
71
Ex. 7, ORS Policy and Procedures Manual, General Safety Awareness Program; REGULATORY STANDARD:
OSHA General Duty Clause, AOG000450, December 19, 2013
72
Ex. 7, ORS Policy and Procedures Manual, Return to Work Program, REGULATORY STANDARD: Best Practices
Guidelines, Safety and Health Policy Statement, AOG000565, Dec. 2012
Page 10 of 72
• Become involved in all aspects of implementing the Accident Prevention Plan and
• Submit comments, information, and provide assistance where safety and health are
concerned and
• Abide by all safety and health policies, procedures, and rules established by Orion.73
26. According to the Accident Handbook, the Human Resources department will maintain and
review records of all safety inspections, whether conducted inhouse or by a third party, that
affect Orion, any employees and/or any of our properties or sites. Copies of these
inspections will also be maintained at the site inspected. Any outside agency’s audit,
inspection, and or recommendation, the property’s safety / loss control inspection.74
27. According to the Accident Handbook, in-house safety inspections will be performed by
each property. These inspections will be performed by the Property manager and
maintenance Technician on a quarterly basis and will be reviewed by the Regional Property
Supervisor upon completion. All hazardous conditions will be discussed with the Regional
property Supervisor and corrective actions should begin immediately and the inspection
requires a manager’s response to any deficiency identified. Regional Property Supervisors
will review the inspection checklists and any other established documentation to ensure
that a course of corrective action and timeline has been established for controlling or
75
eliminating each deficiency.
28. According to the Accident Handbook, as a condition of employment, all employees are
required to report hazards and unsafe conditions to the Property manager or their immediate
supervisor.76 Whenever possible, hazards in the workplace will be corrected immediately
by eliminating the source of the hazard. This will include, but is not limited to, the
77
following, correction of any unsafe or conditions in existence, by service or training.
29. According to the Development’s Supplies and Parts inventory for Orion Real Estate
Services, caution tape yellow 3” x 300 is kept as part of the supply and & parts inventory.
Stock number 026C520.78 Calls for emergency maintenance work can be made at any
time (day, night, weekends, holidays). According to its House Rules displayed to its
tenants, an employee will be available to respond to true emergencies at all hours.79
73
Ex. 12, Orion Real Estate Services Accident Prevention Plan Handbook, Section 102.00, Sub-Section: Employee
and contractor responsibility and accountability, pg.1 of 1, ORES/AOG/AOG, LLC 0000004 Response to RFP No. 3,
10/24/07
74
Ex. 12, Orion Real Estate Services Accident Prevention Plan Handbook, Section 202.00, Sub-Section: Safety
Inspection Results, pg.1 of 1, ORES/AOG/AOG, LLC 0000007 Response to RFP No. 3, 10/24/07
75
Ex. 12, Orion Real Estate Services Accident Prevention Plan Handbook, Section 601.00, Sub-Section: Safety
Inspections, pg.1 of 1, ORES/AOG/AOG, LLC 0000025 Response to RFP No. 3, 10/24/07
76
Ex. 12, Orion Real Estate Services Accident Prevention Plan Handbook, Section 603.00, Sub-Section: Safety
Meetings, pg.1 of 1, ORES/AOG/AOG, LLC 0000027 Response to RFP No. 3, 10/24/07
77
Ex. 12, Orion Real Estate Services Accident Prevention Plan Handbook, Section 705.00, Sub-Section: Accident/near
Miss/ Hazard Correction & Control, pg.1 of 1, ORES/AOG/AOG, LLC 0000032 Response to RFP No. 3, 10/24/07
78
Ex. 22: Orion Real Estate Services Supplies and Parts Inventory, Response to RFP 3. Orion Real Estate Services
002715
Preview
CAUSE NO. FELISHA COOPER IN THE JUDICIAL DISTRICT Plaintiff, DISTRICT COURT APV HISTORIC COMMUNITY, L.P., D/B/A HISTORIC OAKS OF ALLEN PARKWAY; ALLIED ORION GROUP; ACS RESTORATION GC, LLC D/B/A ALLIED ORION GROUP; THORNTON TOWNHOMES GC, LLC D/B/A ALLIED ORION GROUP; ALLIED ORION GROUP, LLC Defendants. OF HARRIS COUNTY, TEXAS MOTION FOR PARTIAL SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS SUMMARY JUDGMENT TO THE HONORABLE JUDGE ROBERT SCHAFFER NOW COMES Plaintif FELISHA COOPER, hereinafter, Cooper”), and files this Motion for Partial Summary Judgment and Response to Defendants Summary Judgment, and in support thereof would show the Court as follows: SUMMARY OF ARGUMENT The Court should grant Plaintiff’s Traditional Motion for Summary Judgment because: There exists no genuine issue of material fact to negate Defendants’ liability (negligence) for incident on August 3, 2016. Based on the uncontroverted facts of this e, Plaintiff is entitled to Traditional Partial Summary Judgment on the elements of duty, breach, and causation pursuant to Rule 166a of the Texas Rules of Civil Procedure. Essentially, negligence liability questions should not be submitted to the There exists no genuine issue of material fact to negate Defendant’s liability (premises liability) for incident on August 3, 2016. Based on the uncontroverted facts of this case, Plaintiff is entitled to Traditional Partial Summary Judgment on the elements of the premises liability claims are: condition on the premises posed an unreasonable risk of harm, actual or constructive knowledge of the condition, failure Page to exercise reasonable care to reduce or eliminate the risk, and causation pursuant to Rule 166a of the Texas Rules of Civil Procedure. Essentially, premises liability questions should not be submitted to the jury. • There exists no genuine issue of material fact to negate Defendants’ liability (negligence hiring, supervision, training, or retention) for incident on August 3, 2016. Based on the uncontroverted facts of this case, Plaintiff is entitled to Traditional Partial Summary Judgment on the elements of duty to hire, supervise, train, or retain competent employees, breach of these duties, employees committed a tort, and causation pursuant to Rule 166a of the Texas Rules of Civil Procedure. Essentially, negligence hiring, supervision, training, or retention liability questions should not be submitted to the jury. • There exists no genuine issue of material fact as to Plaintiff’s past medical expenses associated with the incident on August 3, 2016. Based on the uncontroverted facts of this case, Plaintiff has incurred medical charges of $44,026.77 that have been timely submitted to the Court with CPRC 18.001 cost affidavits. Defendant failed to controvert any of the Plaintiff’s affidavits and has not timely designated an expert to refute the charges. Essentially, a past medical expense question should not be submitted to the jury. • There exists no genuine issue of material facts as to Defendants’ Gross negligence for the incident on August 3, 2016. Based on the uncontroverted facts of this case, the evidence is clear and convincing that when viewing Defendants’ acts and omissions objectively from the standpoint of Defendants at the time, its occurrence involved an extreme degree of risk, considering the probability and Defendants had actual, subjective awareness of the risk involved but nevertheless proceeded with its conduct with conscious indifference to the rights, safety, or welfare of others. Essentially, a gross negligence question should not be submitted to the jury. II. EVIDENCE IN SUPPORT OF MOTION 1. In support of these motions, Cooper offers the following evidence, true and correct copies of which are attached hereto and marked as follows and which are incorporated herein by reference for all purposes, together with any pleadings and discovery in connection with this case. Exhibit 1 Allied Orion Group, and Allied Orion Group LLC’s Admission Responses Exhibit 2 Orion Real Estate Services, Inc. Admission Responses Exhibit 3 Revised Management Agreement Exhibit 4 First Amendment to the Revised Property Management agreement Exhibit 5 Assumed Name Certificate Filing Exhibit 6 Allied Orion Group LLC Interrogatory Responses Exhibit 7 Orion Real Estate Services Policy and Procedures Manual Page 2 of 72 Exhibit 8 Deposition of Cynthia Fowler Exhibit 9 Deposition of Cynthia Hicks Exhibit 10 Deposition of Felisha Cooper Exhibit 11 Deposition of Paula McQueen (formerly Robertson) Exhibit 12 Orion Real Estate Services Accident Prevention Plan Handbook Exhibit 13 Employee file of Jose Rivas Exhibit 14 Employee file of Jaime Narvaez Exhibit 15 Employee file of Digna Rivera Exhibit 16 Employee File of Dawn Robinson Exhibit 17 Employee File Luis Portillo Exhibit 18 Employee File Miguel Zayas Exhibit 19 Employee File Nham Mai Exhibit 20 Employee File Raul Villegas Exhibit 21 Employee File Shajwanda McCain Exhibit 22 Historic Oaks of Allen Parkway/ Orion Real Estate Supplied & Parts Inventory Exhibit 23 Letter from Cynthia Fowler to Vendor, Response to RFP No. 3 Orion Real Estate Services, Resp. to RFP 3, ORS 002638 Exhibit 24 House Rules Exhibit 25 2016 Budget Expense Worksheet Exhibit 26 Property Management benchmarks standards letter for April 2016 Exhibit 27 Property Management Benchmark Standards for May 2016 Exhibit 28 Property Management Benchmark Standards for June 2016 Exhibit 29 Property Management Benchmark Standards for July 2016 Exhibit 30 Property Management Benchmark Standards for September 2016 Exhibit 31 Employee File of Cynthia Fowler Exhibit 32 Employee File of Paula McQueen (formerly Robertson) Exhibit 33 Employee File of Cynthia Hicks Exhibit 34 Employee File of Mario Garcia Exhibit 35 Deposition of Jose Rivas Exhibit 36 Narrative/Market Assumptions letter Exhibit 37 Deposition of Erika Huerta Exhibit 38 Feb. 2016 Monthly property inspection report Exhibit 39 April 2016 monthly property inspection report Exhibit 40 June 2016 Monthly property inspection report Exhibit 41 UPCS Inspections Exhibit 42 July 2016 Monthly Checklist Exhibit 43 July 2016 Preventative maintenance checklist Exhibit 44 2016 fall preventative maintenance checklist Exhibit 45 General ledger Exhibit 46 Check register Exhibit 47 Additional Check register Exhibit 48 Variance report Page 3 of 72 Exhibit 49 March monthly property inspections Exhibit 50 July Property Evaluation Exhibit 51 APV permit inspections reports Exhibit 52 Actual vs. Budget Analysis Report Exhibit 53 Exterior lighting report inspections Exhibit 54 Letter of complaint from Ms. Cooper reporting incident Exhibit 55 Affidavit of John Smith, P.E. Exhibit 56 Affidavit of Dr. Hector Miranda Exhibit 57 18.001 Billing affidavits previously filed III. INTRODUCTION 2. This tort action arises from a trip and fall which occurred on the sidewalk located on Bluebonnet Place Circle (“Bluebonnet”) of the apartment complex known as Historic Oaks of Allen Parkway located at 1600 Historic Oaks of Allen Parkway Village (“Development”). 3. On or about August 3, 2016, between 9:00 p.m. - 9:40 p.m. at night, Cooper was walking on Bluebonnet when she tripped and fell on the wet, muddy, cracked, uneven sidewalk.1 The pathway was dimly lit.2 According to her letter of complaint, Bluebonnet had mud and water that ran off due to the sprinklers running prior to her fall3 as they had been 4 previously turned on. It was not raining outside, nor did it rain at all during that day, it was hot.5 Cooper brought negligence, negligent hiring, supervision, training, or retention and gross negligence claims (“claims.”) against the Defendants and seeks both general and special damages. IV. PROCEDURAL HISTORY 4. Defendants filed a traditional summary judgment as to each of Cooper’s claims.6 V. THE PARTIES 5. Plaintiff was a resident of the Development7 and described as being a good tenant when she resided at the property.8 6. There are three Defendants identified in this matter, Allied Orion Group LLC (“AOL”), Allied Orion Group (“AOG”); and Orion Real Estate Services, Inc. (“ORS”) collectively 1 Ex. 10: Felicia Cooper Dep, pg. 176 ln. 16-17. 2 Ex. 10: Felicia Cooper Dep., pg. 177 ln. 20-25 – pg. 178 ln. 1-2 3 Ex. 10: Felicia Cooper Dep., pg. 212 ln 24-25 – pg. 213 ln. 1-10 4 Ex. 10: Felicia Cooper Dep., pg. 176 ln. 24-25 – pg. 177 ln. 1-9 5 Ex. 10: Felicia Cooper Dep., pg. 176 ln. 18-21 6 See Defs.’ Traditional Mtn. for Summary Judgment. Defendant 10, 2020. Env. 48833729 7 Ex. 1: Defs. Admis., AOL and AOG. Am. Admis. No. 19; Ex. 2: ORS Am. Admis. No. 19 8 Ex. 9: Cynthia Hicks Dep., pg. 9 ln. 20-23 Page 4 of 72 herein (“Orion” or “Defendants” as used interchangeably). ORS is an independent 9 contractor engaged in the business of managing, operating, maintaining the Development and who represents and warrants that it is fully qualified to manage real estate and perform all assumed obligations under these management agreements.10 The parent entity of ORS is AOL11 and the managing agent for Historic oaks of Allen Parkway.12 ORS does business under the assumed name AOG.13 VI. UNCONTROVERTED FACTS A. The Management Agreements 7. AOG is the management company of the Development.14 The owner of the Development is APV HISTORIC COMMUNITY, LP (“APV”),15 who is engaged in the business of providing decent, safe, and sanitary housing to its residents.16 The management agreements, identify the Development as 1600 Historic Oaks of Allen Parkway Village.17 APV extended its duties of managing the Development to ORS pursuant to two agreements (collectively herein “management agreements”). The first agreement entitled Revised Management Agreement (herein “main agreement”) between APV and ORS, sets forth the full terms, scope, conditions, and obligations and engages ORS, an independent contractor, to act on its behalf of APV to manage, maintain, operate and secure the development18 and have full responsibility for the management, operation, maintenance and securing of the Development during the term of the Agreement.19 ORS admits on the day of the incident, Bluebonnet was managed by ORS.20 8. The second agreement, entitled First Amendment to the revised property management agreement (“second agreement”) between APV and ORS expands ORS’ financial authority regarding its duties under the main agreement.21 Both agreements were executed on April 13, 201622 and were in effect on the day of Cooper’s incident.23 This second agreement is incorporated into the main agreement24 and does not alter the main agreement25 and 9 Ex. 3: Rev. Mgmt. Agmt., pg. 25, Article X, 10.2, bates AOG 000061, April 13, 2016 10 Ex. 3: Rev. Mgmt. Agmt., pg. 26, Article X, 10.6, bates AOG 000062, April 13, 2016 11 Ex. 2: Defs. Admis., ORS Admis. No.61 12 Ex. 23: Correspondence from AOL, Resp. to RFP 3, ORS 002638 13 Ex. 5: Assumed Name Certificate of Ownership for Incorporated Business 14 Ex. 6: Defs. Interrog., AOG., No. 3, July 25, 2019 15 Ex. 3: Rev. Mgmt. Agmt., pg. 1, paragraph 1, bates AOG 000037, April 13, 2016, 16 Ex. 3: Rev. Mgmt. Agmt., Recitals, pg. 1, paragraph 3, bates AOG 000037, April 13, 2016 17 Ex. 3: Rev. Mgmt. Agmt., Recitals, pg. 1, paragraph 1, bates AOG 000037, April 13, 2016 18 Ex. 3: Rev. Mgmt. Agmt., pg. 3, Article II, bates AOG 000039, April 13, 2016 19 Ex.3, Rev. Mgmt. Agmt. pg. 5, Article V, paragraph 1, bates AOG 000041, April 13, 2016 20 Ex. 1: Defs. Admis. ORS Admis. No. 20 21 Ex. 4: First Am. to Rev. Mgmt. Agmt., Article XI, bates AOG000031-AOG000035 22 Ex. 3 & 4: Rev. Mgmt. Agmt., pg. 29, bates AOG000065, and First Am. to Rev. Mgmt. Agmt., pg. 4, bates AOG000035 23 Ex. 3: Rev. Mgmt. Agmt., pg. 3, Article IV. Term, 4.1, bates AOG 000039 24 Ex. 4: First Am. to Rev. Mgmt. Agmt., pg. 4, Article XIII, 13.4, bates AOG 000035 25 Id. Page 5 of 72 incorporates by reference the second agreement into the first agreement.26 According to the testimony of the Development’s property manager, Paula McQueen, this was the 27 management agreement in existence at the time of the incident and Allied Orion Group did in fact manage the premises28 Additionally, Paula McQueen, testified during the time of the incident, Allied Orion Group was entitled to exercise exclusive control over the 29 development and Orion admits it had the right to control the premises under the terms of 30 a contract. 9. According to the management agreement, ORS is always required to maintain and repair appurtenances and grounds of the Development31 including supervising all ordinary and 32 extraordinary repairs. ORS can either hire employees or contractors to provide routine maintenance.33 ORS is also required to develop a preventive maintenance schedule, including, but not limited to, periodic inspections of common area maintenance and 34 exterior maintenance. According to the Management agreement, all subcontractors hired by Orion shall be hired, paid, supervised, and discharged solely by Orion.35 Pursuant to this agreement, the resident is not required to return a common area to its previous 36 condition. B. Orion’s Safety and Accident Manuals 10. According to Orion’s Policies and Procedures (Safety Manual”), all common areas must be maintained in a safe, clean, manner.37 All employees are responsible to ensure that 38 walking surfaces are kept clean, and free of any type of debris. According to the testimony of Cynthia Fowler, the Development’s Regional Supervisor, the policies and procedures are a guideline for Allied Orion to give to its staff to follow.39 According to its Safety Manual, it is the responsibility of employees, area management, and safety to ensure paths are unobstructed and that external exit paths must be maintained free of any obstructions,40 26 Id. 27 Ex. 11: Paula McQueen Dep. pg. 14 ln.19-23 28 Ex. 11: Paula McQueen Dep. pg. 100 ln. 10-16 29 Ex. 11: Paula McQueen Dep. pg. 32 ln.19-25 – pg. 33 ln. 1-3 30 Ex. 1 & 2: AOL and AOG Am. Admis. No. 15 31 Ex. 3: Rev. Mgmt. Agmt., pg. 13, Article V, 5.10.1, bates AOG 000049, April 13, 2016 32 Ex. 3: Rev. Mgmt. Agmt., pg. 13, Article V, 5.10, bates AOG 000049, April 13, 2016 33 Ex. 3: Rev. Mgmt. Agmt., pg. 8, Article V, 5.3(e), bates AOG 000044, April 13, 2016 34 Ex. 3: Rev. Mgmt. Agmt., pg. 13, Article V, 5.10.2, bates AOG 000049, April 13, 2016; See also 5.10.3 noted Inspection of Units and Common Areas. 35 Ex. 3: Rev. Mgmt. Agmt., pg. 5, Article V, 5.2, paragraph 2, AOG 000041, April 13, 2016 36 Ex. 7: ORS Policy and Procedures Manual, Section 202.00, Sub-Section: Fair Housing, pg. 4,AOG000109, September 13, 2007 37 Ex. 7: ORS Policy and Procedures Manual, Section 512.03, Sub-Section: Storage Facilities/Amenities, pg. 1, AOG 000191, Oct 9, 2007 38 Ex. 7: ORS Safety Manual 12.19.13, Walking/Working Surface Industrial Safety Program, REGULATORY STANDARD: OSHA – 29 CFR 1910.21 - 23, pg. 386, 5.2.4, bates AOG000633 39 Ex. 8: Cynthia Fowler Dep. pg. 14 ln. 24-25 – pg. 15 ln. 1-9 40 Ex. 7: ORS Safety Manual 12.19.13, Emergency Action, Evacuation and Fire Prevention Safety Program, REGULATORY STANDARD: OSHA – 29CFR1910.36, .38, .157, .165, NFPA-10, pg. 91, 5.1.3, bates AOG000333 Page 6 of 72 and to maintain the property, routine maintenance tasks and on-going preventive 41 maintenance must be performed. 11. According to the Safety Manual, the Preventive Maintenance Program is one of the most essential aspects to insure a property is maintained and remains in good, operating 42 condition. The purpose of preventive maintenance is to eliminate problems before they occur, thus preventing potentially costly and dangerous situations.43 On-going preventative maintenance is performing tasks such as daily walk-throughs which means checking for any safety/liability issues that may be present,44 weekly cleaning and checking all common areas and repairing any damages as needed.45 Routine Maintenance is the periodic schedule of tasks that are recurring in nature, daily, weekly, monthly, which must be accomplished on an on-going basis to ensure a property is well maintained.46 12. According to the Safety Manual, the implementation and supervision of the preventive plan is the responsibility of the Lead Maintenance person,47 as well as to discuss property objectives with the Property Manager and Regional Property Supervisor, but he is only responsible for scheduling a program for all normal maintenance, capital improvements, prepare scopes of work and prepare a bid for the property manager, plan contracted services within the budget, however necessary repairs should not be deferred in order to adhere to a budget schedule; and the Property Manager/Regional Supervisor should be made aware of budget exceptions.48 13. According to the Safety Manual’s tour route policy, the Development must be inspected daily for cleanliness and appeal by both the office team as well as the maintenance team, look spotless and beautiful,49 be well lit, in good repair, entrances, should be swept and free of trash and debris. The overall property appearance should always be clean and appealing.50 41 Ex. 7: ORS Policy and Procedures Manual, Section 512.01, Rev. Date: May 19, 2008, Section: Maintenance General Property Maintenance, Sub-Section: Routine Maintenance Scheduling, pg. 1, paragraph 2, AOG 000188, Oct 9, 2007 42 Ex. 7: ORS Policy and Procedures Manual, Section 525.00, Distrib. Date: Oct 9, 2007, Section: Maintenance, Sub- Section: Preventive Maintenance Program, pg. 1, paragraph 1, AOG 000242 43 Ex. 7: ORS Policy and Procedures Manual, Section 525.00, Distrib. Date: Oct 9, 2007, Section: Maintenance, Sub- Section: Preventive Maintenance Program, pg. 1, paragraph 2, AOG 000242 44 Ex. 7: ORS Policy and Procedures Manual, Section 512.01, Rev. Date: May 19, 2008, Section: Maintenance General Property Maintenance, Sub-Section: Routine Maintenance Scheduling, pg. 1, paragraph 3, AOG 000188, Oct 9, 2007 45 Id. 46 Ex. 7: ORS Policy and Procedures Manual, Distrib. Date: Oct. 9, 2007, Section: Maintenance General Property Maintenance, Sub-Section: Routine Maintenance Scheduling, pg. 1, paragraph 2, bates AOG000188 47 Ex. 7: ORS Policy and Procedures Manual, Distrib. Date: Oct. 9, 2007, Section: Maintenance, Sub-Section: Preventative Maintenance Program, pg. 1, paragraph 1, bates AOG000242 48 Ex. 7, ORS Policy and Procedures Manual, Section 507.00, Section: Maintenance, Sub-Section: The Maintenance Budget, pg. 1, AOG 000181, Oct 9, 2007 49 Ex. 7, ORS Policy and Procedures Manual, Section 213.00, Sub-Section: Touring and the Sales Process, pg.1 AOG 000123, Sept. 13, 2007 50 Ex. 7: ORS Policy and Procedures Manual, Section 102.00, Sub-Section: Office Appearance/Atmosphere, pg.1 AOG 000068, Nov. 2, 2007, Rev. Date: Jun. 15, 2010 Page 7 of 72 14. According to the Safety Manual, ORS is required to allow reasonable modifications to the common area if the modifications are necessary to allow the disabled person to fully use and enjoy common area51 and has the responsibility of paying for reasonable 52 modifications. To ensure compliance with this federal law, ORS requires that its 53 employees not unreasonably delay or fail to supply repairs and maintenance. 15. According to the Safety Manual, requests for any safety issue should be given top priority by maintenance - these service requests must be handled promptly and before the 54 maintenance staff leaves for the day because one should never delay in making repairs if the resident’s health, safety is in danger and when in doubt, one may contact the Property Manager or Regional Property Supervisor.55 An employee can also make a request for service. The request for service is an employee’s observation of maintenance work needed in a common area. When this happens, the maintenance item is written up in the Service Request book or entered the Service Request software program. 16. According to the Safety Manual, as for housekeeping, its responsibilities are to clear 56 zones. To this end, it is the general company policy that all passageways shall be kept clean, and free of known hazards. To facilitate cleaning, every passageway shall be kept free from hindrances that would prevent efficient maintenance. 17. According to the Safety Manual, the company also keeps a general safety program. This program provides for the identification, evaluation, and mitigation of safety hazards and it applies to all employees. They may be charged with performing area inspections, training, or other safety-related duties that are appropriate to the business needs of the company.57 18. According to the Safety Manual, it is the management and supervisors’ responsibility to ensure passageways are properly maintained, enforce housekeeping rules, and to encourage employees to report unsafe conditions. It is the employees’ responsibilities to report unsafe 51 Ex. 7: ORS Policy and Procedures Manual, Section 202.00, Sub-Section: Fair Housing, pg. 4, AOG 000109, Sept 13, 2007 52 Ex. 7: ORS Policy and Procedures Manual, Section 202.00, Sub-Section: Fair Housing, pg. 4, AOG 000109, Sept 13, 2007 53 Ex. 7: ORS Policy and Procedures Manual, Section 202.00, Sub-Section: Fair Housing, pg. 2, AOG 000107, Sept 13, 2007 54 Ex. 7: ORS Policy and Procedures Manual, Section 513.02, Sub-Section: Service Requests, pg. 1, AOG 000197, Oct 9, 2007 55 Ex. 7: ORS Policy and Procedures Manual Section 519.00, Sub-Section: Emergency/On Call, pg. 2, AOG 000229, Distrib. Date: Oct 9, 2007, Rev. Date: May 19, 2008 56 Ex. 7: ORS Policy and Procedures Manual, AOG000438, Dec. 19, 2013 57 Ex. 7: ORS Policy and Procedures Manual, General Safety Awareness Program; REGULATORY STANDARD: OSHA General Duty Clause, AOG000454, Dec. 19. 2013. Page 8 of 72 conditions to their supervisor immediately.58 Passageways shall be kept clear and in good repair with no obstruction that could create a hazard.59 19. According to the Safety Manual, it is the Property Manager’s responsibility to ensure that all permits and licenses are kept current and as required for their site pursuant to all local, state, and federal laws.60 One of the Required permits includes the sprinkler. Annual 61 Scheduling includes sprinkler systems. According to the contracted preventive 62 maintenance program pertaining to sprinkler system inspections this is outsourced to contractors via bids gathered by Lead Maintenance and budgeted. Once bids are gathered, they are presented to the Regional Property Supervisor for approval. 63 Additionally, systems should be inspected regularly to ensure safety and optimal performance. The areas inspected include: • Equipment and systems inspections • Services performed by contract agreement and • Documentation of repairs and replacement parts or equipment by Orion employee or outside contractor.64 20. According to the Safety Manual, the Development’s sprinkler systems must not be allowed to run longer than necessary. If a sprinkler runs longer than 10 minutes, the water starts running off, instead of soaking in. Therefore, it is mandated for the timer to be set to do two 10-minute shifts per day, if necessary. As specifically, stated this will do much more good than a single 20-minute shift. Additionally, the sprinklers are to be checked weekly so the four inspection dates for that month are written in the appropriate blanks on the Schedule. The person who completes the inspections makes their entries on the Summary of Inspections page after the work is completed.65 According to its policies, sprinkler systems must be maintained in good operating condition. Maintenance includes, testing frequency, inspection, maintaining an 18-inch clearance around and below all sprinkler heads.66 21. According to the Safety Manual, all fire protection systems are to be adequately maintained and periodically inspected and tested to make sure they are always in satisfactory operating condition.67 58 Ex. 7, ORS Policy and Procedures Manual, Safety Manual 12.19.13; Walking/Working Surface Industrial Safety Program, REGULATORY STANDARD: OSHA – 29 CFR 1910.21 - 23, AOG000626 -AOG000627 59 Ex. 7, ORS Policy and Procedures Manual, Safety Manual 12.19.13; Walking/Working Surface Industrial Safety Program, REGULATORY STANDARD: OSHA – 29 CFR 1910.21 - 23, AOG000627 60 Ex. 7, ORS Policy and Procedures Manual, Section 502.00, Sub-Section: Permits, Warranties & Licenses, pg. 1 AOG 000174, Distrib. Date: Oct. 9, 2007 61 Id. 62 Id. 63 Id. 64 Ex. 12: ORS Accident Prevention Plan Handbook, Section 102.00, Sub-Section: Equipment Inspections and Maintenance, pg.1 of 1, ORES/AOG/AOG,LLC 0000026 Response to RFP No. 3, 10/24/07 65 Ex. 7, ORS Policy and Procedures Manual, Section 525.00, Sub-Section: Preventive Maintenance Program, pg. 1, AOG 000242, Oct 9, 2007 66 Id. 67 Ex. 7, ORS Policy and Procedures Manual, AOG000436, 12.19.13; Allied Orion Group, Safety Manuel 12.19.13; Page 9 of 72 22. According to the Safety Manual, supervisors therefore will undergo training comparable to that of the employees. Such additional training as will enable them to recognize and correct to reinforce the company safety programs. Managers will be made aware of their safety responsibilities and will receive sufficient training pertaining to issues at each 68 workstation so that they can effectively carry out their responsibilities. 23. According to the Safety Manual, the degree of training provided shall be determined by the complexity of the job and the associated hazards. Scheduled refresher training will be conducted on an as needed basis. Additional retraining shall also be conducted whenever a periodic inspection reveals, or when there is reason to believe that there are deviations from or inadequacies in the employee's knowledge of known hazards or procedures. 69 Employees are to receive training and area management and safety is to provide training needed.70 24. According to the Safety Manual, pursuant to the general safety program, Orion establishes employee training requirements and details and inspections. Under this program, management is to identify and evaluate any safety hazards, provide reasonable solutions to reduce or eliminate recognized safety hazards. Employees should report safety concerns and hazards to their Supervisor, participate in the resolution of the recognized safety hazards, as needed, or required. 71 All new employees are provided with a general safety orientation upon initial assignment. This orientation includes the process for reporting hazards, accidents, injuries and near misses. Employees are consistently urged to report unsafe conditions in their workplace, and work with Orion. ORS management and staff have implemented a Safety Management Program which for employee awareness and training with regarding safety issues and its commitment to their community to lessen or eliminate any safety- related that could impact them.72 25. According to Orion Real Estate Services Accident Prevention Plan Handbook (“Accident Handbook”), the accident Prevention Plain strives to achieve the following goals: • Active involvement of each and every employee of the company • Eliminate current and potential hazards that expose or create risk of any nature • Reduce all losses due to incidents resulting in jury to any other person from such incidents. Thus, Employees are expected to: Return to Work Program, REGULATORY STANDARD: Best Practices Guidelines, General Safety Checklist, AOG000574 68 Ex. 7, ORS Policy and Procedures Manual, Accident Investigation & Reporting Safety Program; Regulatory Standard: OSHA -29 CFR 1904, AOG 000255 Dec. 19, 2013 69 Ex. 7, ORS Policy and Procedures Manual, Accident Investigation & Reporting Safety Program; Regulatory Standard: OSHA -29 CFR 1904, AOG 000268 Dec.19, 2013 70 Ex. 7, ORS Policy and Procedures Manual, Electrical (General) Safety Program; Regulatory Standard: OSHA-29 CFR 1910.331-335, OSHA-29 CFR 1926.302, 1926.416-417, Exit and Egress (Life Safety) Requirements, AOG000318, Dec. 19, 2013 71 Ex. 7, ORS Policy and Procedures Manual, General Safety Awareness Program; REGULATORY STANDARD: OSHA General Duty Clause, AOG000450, December 19, 2013 72 Ex. 7, ORS Policy and Procedures Manual, Return to Work Program, REGULATORY STANDARD: Best Practices Guidelines, Safety and Health Policy Statement, AOG000565, Dec. 2012 Page 10 of 72 • Become involved in all aspects of implementing the Accident Prevention Plan and • Submit comments, information, and provide assistance where safety and health are concerned and • Abide by all safety and health policies, procedures, and rules established by Orion.73 26. According to the Accident Handbook, the Human Resources department will maintain and review records of all safety inspections, whether conducted inhouse or by a third party, that affect Orion, any employees and/or any of our properties or sites. Copies of these inspections will also be maintained at the site inspected. Any outside agency’s audit, inspection, and or recommendation, the property’s safety / loss control inspection.74 27. According to the Accident Handbook, in-house safety inspections will be performed by each property. These inspections will be performed by the Property manager and maintenance Technician on a quarterly basis and will be reviewed by the Regional Property Supervisor upon completion. All hazardous conditions will be discussed with the Regional property Supervisor and corrective actions should begin immediately and the inspection requires a manager’s response to any deficiency identified. Regional Property Supervisors will review the inspection checklists and any other established documentation to ensure that a course of corrective action and timeline has been established for controlling or 75 eliminating each deficiency. 28. According to the Accident Handbook, as a condition of employment, all employees are required to report hazards and unsafe conditions to the Property manager or their immediate supervisor.76 Whenever possible, hazards in the workplace will be corrected immediately by eliminating the source of the hazard. This will include, but is not limited to, the 77 following, correction of any unsafe or conditions in existence, by service or training. 29. According to the Development’s Supplies and Parts inventory for Orion Real Estate Services, caution tape yellow 3” x 300 is kept as part of the supply and & parts inventory. Stock number 026C520.78 Calls for emergency maintenance work can be made at any time (day, night, weekends, holidays). According to its House Rules displayed to its tenants, an employee will be available to respond to true emergencies at all hours.79 73 Ex. 12, Orion Real Estate Services Accident Prevention Plan Handbook, Section 102.00, Sub-Section: Employee and contractor responsibility and accountability, pg.1 of 1, ORES/AOG/AOG, LLC 0000004 Response to RFP No. 3, 10/24/07 74 Ex. 12, Orion Real Estate Services Accident Prevention Plan Handbook, Section 202.00, Sub-Section: Safety Inspection Results, pg.1 of 1, ORES/AOG/AOG, LLC 0000007 Response to RFP No. 3, 10/24/07 75 Ex. 12, Orion Real Estate Services Accident Prevention Plan Handbook, Section 601.00, Sub-Section: Safety Inspections, pg.1 of 1, ORES/AOG/AOG, LLC 0000025 Response to RFP No. 3, 10/24/07 76 Ex. 12, Orion Real Estate Services Accident Prevention Plan Handbook, Section 603.00, Sub-Section: Safety Meetings, pg.1 of 1, ORES/AOG/AOG, LLC 0000027 Response to RFP No. 3, 10/24/07 77 Ex. 12, Orion Real Estate Services Accident Prevention Plan Handbook, Section 705.00, Sub-Section: Accident/near Miss/ Hazard Correction & Control, pg.1 of 1, ORES/AOG/AOG, LLC 0000032 Response to RFP No. 3, 10/24/07 78 Ex. 22: Orion Real Estate Services Supplies and Parts Inventory, Response to RFP 3. Orion Real Estate Services 002715