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Filing # 122617848 E-Filed 03/05/2021 05:03:15 PM
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND
FOR PALM BEACH COUNTY, FLORIDA
CASE NO.: 2020CA010576XXXXMB
DIVISION: AH
BERNARD SUSSMAN and
FRANCINE SUSSMAN,
Plaintiff(s),
VS.
BCMB ENTERPRISES, INC d/b/a
A BETTER WAY HOME CARE,
Defendant.
eee eee eee eee eee eee eel
DEFENDANT’S MOTION FOR SUMMARY JUDGEMENT
OUNT II OF PLAINTIFFS’ COMPLAINT
Defendant, BCMB Enterprises, Inc. d/b/a A Better Way Home Care (hereinafter referred
to as “Defendant”), by and through the undersigned, and pursuant to Fla. R. Civ. P. 1.510, moves
for Summary Judgement on Count III of Plaintiffs’ Complaint, and in support thereof states as
follows:
I. STATEMENT OF FACTS
1. This action arises out of the home health services! of Plaintiff, Bernard Sussman,
by Defendant, A Better Way Home Care. Plaintiff, along with his spouse and Co-Plaintiff,
Francine Sussman, (hereinafter referred to as “Plaintiffs”), allege that Defendant knowingly and
intentionally allowed one if it employees the bring COVID-19 into Plaintiffs’ home and infect
Plaintiffs with COVID-19.
) Services provided in the home or residence of the customer and may involve activities such as cleaning, bathing,
dressing, and mobility.
*** FILED: PALM BEACH COUNTY, FL JOSEPH ABRUZZO, CLERK. 03/05/2021 05:03:15 PM ***2. On September 29, 2020, Plaintiffs filed their Complaint against Defendant,
alleging: Count I — Negligence; Count II — Negligent Infliction of Emotional Distress; and Count
III — Intentional Infliction of Emotional Distress. See Plaintiffs’ Complaint, attached hereto as
“Exhibit A.”
3. In order to prove Count III — Intentional Infliction of Emotional Distress, Plaintiffs
must prove, as stated in their Complaint, that “the actions of the Defendant were intentional or
reckless.” See § 46, “Exhibit A.”
4. For the following reasons, the Court should find that Defendant is entitled to
judgment as a matter of law on Count III of Plaintiffs’ Complaint and grant Defendant’s Motion
for Summary Judgement.
1. MEMORANDUM OF LAW
A. Standard of Law
“A party against whom a claim, counterclaim, crossclaim, or third-party claim is asserted
or a declaratory judgment is sought may move for a summary judgment in that party's favor as to
all or any part thereof at any time with or without supporting affidavits.” Fla. R. Civ. P., 1.510.
“The standard of review of an order granting summary judgment is de novo.” Bender v.
CareGivers of Am., Inc., 42 So.3d 893, 894 (Fla. 4th DCA 2010) (quoting Mobley v. Gilbert E.
Hirschberg, P.A., 915 So.2d 217, 218 (Fla. 4th DCA 2005)). Further:
Summary judgment should be granted “if the pleadings, depositions,
answers to interrogatories, admissions, affidavits, and other
materials as would be admissible in evidence on file show that there
is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Fila. R. Civ. P. 1.510(c).
Fla. Atlantic University Bd. of Trustees v. Lindsey, 50 So.3d 1205, 1206 (Fla. 4th DCA 2010).In the instant case, “[s]ummary judgment is proper if there is no genuine issue of material
fact and if the moving party is entitled to a judgment as a matter of law. Volusia County v. Aberdeen
at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). However, “by its very terms, this standard
provides that the mere existence of some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment; the requirement is that there be
no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2510 (1986).
This Court is permitted to rely upon facts produced by the defense in its motion. Certainly,
in “a motion for summary judgment [...] the court may rely on facts adduced in depositions,
affidavits, or other proofs.” Barbado v. Green & Murphy, P.A., 758 So. 2d 1173, 1174 (Fla. 4th
DCA 2000) (quoting Mancher v. Seminole Tribe of Fla., Inc., 708 So. 2d 327, 327 (Fla. 4th DCA
1998)).
B. The Court Should Grant Defendant’s Motion for Summary Judgement on Count III of
Plaintiffs’ Complaint Because Plaintiff Cannot Prove the Required Elements to Support a
Claim for Intentional Infliction of Emotional Distress
In Florida, to sustain a claim for intentional infliction of emotional distress, the plaintiff
must prove the required elements of such a claim.
The elements of this cause of action are the following:
(1) The wrongdoer's conduct was intentional or reckless, that is, he
intended his behavior when he knew or should have known that
emotional distress would likely result;
(2) The conduct was outrageous, that is, as to go beyond all bounds
of decency, and to be regarded as odious and utterly intolerable in a
civilized community;
(3) The conduct caused emotional distress; and
(4) The emotional distress was severe.
Stewart v. Walker, 5 So.3d 746, 749 (Fla. 4th DCA 2009).
Focusing on the first required element, it is alleged Defendant intentionally or recklessly
inflicted emotional distress upon Plaintiffs by knowingly allowing its employee to bring COVID-19 into Plaintiffs’ home. Here, Plaintiffs have failed to produce a single shred of evidence in
support of their wild allegations. To the contrary, the uncontroverted facts of this case are as
follows: (1) prior to Plaintiffs’ alleged COVID-19 infection, Defendant instituted policies and
procedures to protect its customers from the spread of COVID-19; (2) Defendant next educated its
employees on these very policies and procedures; (3) Defendant confirmed the use of Personal
Protective Equipment by its employees by conducting “unannounced supervisory visits”?; (4)
Defendant’s employees performed daily vital sign screenings prior to entering their customers’
homes; (5) the employee in question was screened prior to entering Plaintiffs’ home and these
screenings were void of any signs or symptoms of COVID-19; and (6) Defendant’s employee
never tested positive for COVID-19 prior to entering Plaintiffs’ home.
Plaintiffs have clearly failed to carry their burden for the first element of intentional
infliction of emotional distress. No record evidence exists to show that Defendant’s conduct could
have been intentional or reckless or that Defendant could have acted with knowledge. As to
Plaintiffs’ burden for the second, third, and fourth elements, it logically follows that as the first
element fails, the subsequent elements fail. Defendant’s conduct simply could not have been
“outrageous,” “beyond all bounds of decency,” and “odious and utterly intolerable in a civilized
community.” Stewart at 749.
III. CONCLUSION
Defendant, A Better Way Home Care, is entitled to judgment as a matter of law on Count
III of Plaintiffs’ Complaint, because until Plaintiffs can alter the laws of nature, it is simply
? Unannounced supervisory visits occur when a home care provider sends a supervisory nurse to a customer’s home
to observe the practices and care of its home health aides. To ensure the validity and objectivity of these visits, the
visits occur with the permission of the customer, but without prior knowledge or warning to the aides.impossible for a person or party to act with intent, based upon the knowledge of a fact, where that
fact does not yet exist.
WHEREFORE, Defendant, BCMB ENTERPRISES, INC. D/B/A A BETTER WAY
HOME CARE, respectfully requests this Honorable Court enter judgement in its favor on Count
III of Plaintiffs’ Complaint, and provide such other relief this Court deems just and proper.
Further, Defendant respectfully requests the Court reserve Defendant’s right to supplement
this Motion at a later date with record and other relevant evidence which Defendant refrained from
attaching now.
CERTIFICATE OF SERVICE
1 HEREBY CERTIFY that on the 5" of March, 2021, a true and correct copy of the
foregoing has been furnished via the Florida e-filing portal: Dave K. Roy, Esq., Roy &
Associates, P.A., 1665 Palm Beach Lakes Blvd., Suite 1010, West Palm Beach, FL 33401;
info@daveroylaw.com
QUINTAIROS, PRIETO, WOOD & BOYER, P.A.
/s/ Robin N. Khanal
ROBIN N. KHANAL, ESQUIRE
Florida Bar No.: 0571032
CHRISTOPHER N. GONSALVES, ESQUIRE
Florida Bar No.: 1018014
255 S. Orange Ave., Suite 900
Orlando, Florida 32801
Tel: (407) 872-6011
Fax: (407) 872-6012
Attorneys for DefendantFiling # 114138595 E-Filed 09/29/2020 03:48:48 PM Exhibit A
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND
FOR PALM BEACH COUNTY, FLORIDA
CASE NO.:
DIVISION:
BERNARD SUSSMAN and
FRANCINE SUSSMAN,
Piaintiff(s),
vs.
BCMB ENTERPRISES, INC d/b/a
A BETTER WAY HOME CARE,
Defendant.
Py
COMPLAINT
HERE NOW COMES, Plaintiffs, Bernard Sussman and Francine Sussman, by and
through the undersigned counsel, and sues Defendant, BCMB Enterprises, Inc., d/b/a A
Better Way Home Care . In support thereof they ailage:
THE PARTIES AND JURISDICTION
4. Plaintiff, Bernard Sussman, is and was at all times relevant hereto, a
resident of Palm Beach County, Florida.
2. Plaintiff, Francine Sussman, is and was at all times relevant hereto, a
resident of Paim Beach County, Florida.
3. Defendant, BCMB Enterprises, Inc., d/b/a A Better Way Home Care, is a
for-profit corporation registered to conduct business in the State of Florida, with its main
offices in Palm Beach County, Florida.
4. Venue is proper in Palm Beach County, Florida, because the Defendant
conducts business in Palm Beach County, Florida, and the actions giving rise to this
action occurred in Paim Beach County, Florida.Exhibit A
Sussman v. BGMB Enterprises, Inc.
Complaint
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5, Jurisdiction is proper in the Circuil Court because Plaintiffs seeks damages
in an amount that exceeds Thirty Thousand Dollars ($30,000.00) exclusive of interest,
court costs, and attorneys’ fees,
GENERAL ALLEGATIONS
6. On or about April 1, 2049, Plaintiff, Bernard Sussman, was diagnosed with
poorly differentiated carcinoma.
7. After several months of treatment through the Veterans Affair, Mr.
Sussman's primary care physician, Dr. Bergsman, provided Bernard Sussman with a
referral for at home nursing services.
8. On or about September 16, 2019, after receiving a referral, Plaintiff, Bernard
Sussman, was put in touch with Defendant, BCMB Enterprises, Inc., who is engaged in
the business providing certified nursing aides, home health aide, compassion care, 24/7
care, respite care, dementia care, fall prevention and skilled nursing services in Paim
Beach County, Florida. Upon information and belief, Defendant holds the largest contract
for Veterans Affairs in Palm Beach County, Florida
9. At all times relevant hereto, Defendant assigned an employee named
“Shay” to provide Plaintiffs, Bernard Sussman and Francine Sussman, at-home services
related to Bemard Sussman’s treatment of poorly differentiated carcinoma, including, but
not limited to: assistance with bathing, feedings, transferring, emptying the trash,
changing linens, dressing, and laundry.
10. In and around December 2019, China began experiencing an outbreak in
treating patients with what appeared to be novel cases of pneumonia with an unknownExhibit A
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cause.
11, The highly contagious virus became known has coronavirus, or COVID-19,
which quickly spread around the entire world, and by January 21, 2020, the United States
had its first confirmed case, as detailed below.
12. Between January 21, 2020 and July 31, 2020, Defendant's employee, Shay,
refused to wear any PPE, including a mask, while around the Plaintiffs, despite repeated
requests from other medical professionals and the Plaintiffs to do so.
13. Onor about July 31, 2020, Defendant informed the Plaintiffs nat one of its
employees had tested positive for COVID-19, a highly contagious coronavirus, and
exposing its clients, such as the Plaintiffs, te actual risk of immediate physical Injury and
death.
14. Between January 21, 2020 and July 31, 2020, Defendant knew of the
COVID-19's extreme contagiousness and the treat to elderly persons and those with
preexisting health conditions ~ all of the Defendant's client base. Despite this knowledge,
Defendant took look to no action to protect the Plaintiffs from contracting COVID-19.
45. On or about August 3, 2020, Plaintiff had received the horrific news that
they had in-fact contracted COVID-19.
ACTUAL ALLEGATIONS SURROUNDING CORONAVIRUS
16. In the recent months, there has been a worldwide outbreak of a new virus,
the coronavirus, also known as COVID-19. The virus originated in China, and quickly
spread throughout Asia, Europe, and most recently, North America.
17. The dangerous conditions associated with COVID-19 include itsExhibit A
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manifestations ~ severe pneumonia, acute respiratory distress syndrome (ARDS) septic
shock and/or multi-organ failure’ ~ and/or its symptoms — fever, dry cough, and/or
shortness of breath? — as well as igh fatality rate ass ith contracting the
virus’. The dangerous conditions associated with COVID-19 also include its extreme
contagiousness. For example, a person with COVID-19 infects, on average, another 2.5
people, and COVID-19 Is therefore more contagious than Ebola or Influenza‘.
18. There have been over twenty-seven million cases worldwide and over eight
hundred thousand deaths as a result of the coronavirus. Those fatalities have largely
been amongst the elderly population, and those with underling medical complications,
such as the Plaintiffs.
19. Qullined below is a timeline of events relevant to this lawsuit against
Defendant. This timeline supports Defendant having actual knowledge of the dangerous
conditions and/or explosive contagiousness associated with COVID-19 at the time the
Plaintiffs contracted COVID-19 from the Defendant's employee:
' See Centers for Disease Control and Prevention, March 14, 2020 No Sail Order,
httos:/Awww.cdc.qov/quarantine/pdi/signed-manifest-order_031520.pdf.
? See Mayo Clinic, Symptoms and Causes, hitps://www.mayoclinic.ora/diseases-
conditions/corgnavirus/symptoms-causes/syc-20479963 (last accessed April 6, 2020);
see also Centers for Disease Control and Prevention, interim Guidance for Ships on
Managing Suspected Coronavirus Disease 2019, (last updated February 18, 2020)
s /hwww.cdc.qov/quarantine/maritime/recommendations-for- ships.himl.
nes Centers for Disease Controland Prevention, March 14, 2020 No Saif Order
aL v/quarantine/pdf/signed-manifest-order_031520.pdf (identifying a
3.6% globai fatality rate); Journal of the American Medical Association, Case-Fatality
Rate and Characteristics of Patients Dying in relation to COVID-19 in italy.
https:/famanetwork.com/journals/jama/fullarticle/2763667 (identifying a 7.2% and 2.3%
fatality rate in Italy and China, respectively).
7 Popular Science, COVID-19 Contagiousness,
https:/Avww.popsci.com/story/health/how-diseases-spread/Exhibit A
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a. December 31, 2019 - The local government in Wuhan, China,
confirmed with the World Health Organization (hereinafter “WHO") that focal health
authorities in Wuhan were treating an influx of dozens of patients with what
appeared to be novel cases of pneumonia with an unknown cause.
b. January 5-7, 2020 — China announced that the novel pneumonia
cases in Wuhan were not caused by severe acute respiratory syndrome
(hereinafter “SARS") or middle-east respiratory syndrome (hereinafter *MERS”) —
but COVID-19 — which belongs to the highly-contagious family of coronaviruses,
including SARS and MERS.
c. Janyary 11, 2020 - The Wuhan Municipal Health Commission
announced the first death caused by COVID-19.
d. January 20, 2020 - A situation report published by the WHO
confirmed COVID-19 cases outside of mainland China in Thailand, Japan and
South Korea, which the WHO believed to have been exported from Wuhan, China.
The situation report also identified 282 positive COVID-19 diagnoses worldwide
with 278 of those positive cases within China.
8. January 21, 2020 - A man In his 30's from Washington State was
the first in the United States to test positive for coronavirus.
f. January 23, 2020 — Chinese authorities take the unprecedented
measure of closing off Wuhan — a city of over 11,000,000 people — to stop the
spread of COVID-19.
g. Janyary 30, 2020 - WHO declared COVID-19 a “global healthExhibit A
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emergency” ~ recognizing that COVID-19 posed a risk beyond China. The U.S.
Department of State issued a Level 4 (highest level) travel advisory as it related to
U.S. citizens who planned to travel to China’.
h. February 2, 2020 - China reports that the death toll from COVID-19
in maintand China (361) exceeded the death toll in mainland China from the SARS
outbreak in the early 2000s (349).
i. February 5, 2020 — Chinese officials announced that nearly 500
peopie in mainland China have died as a result of COVID-19.
i February 29, 2020 - The first coronavirus death is reported in the
United States.
k. March 1, 2020 — the State of Florida reports its first two (2) cases of
COVID-19. Florida's Governor, Ron DeSantis, entered an Executive Order
directing the Florida Department of Health to issue a Public Health Emergency,
\ March 8, 2020 - Spain (a country which boarders France to the
south) reported 589 COVID-19 cases and 17 COVID-19 related deaths.
m. March 9, 2020 - Florida's Governor, Ron DeSantis, Declares a State
of Emergency and actives the National Guard.
n. March 12, 2020 - Spain reported over 3,000 COVID-19 cases and
84 COVID-19 related deaths.
oO. March 13, 2020 -— Mayor for Palm Beach County, Dave Kerner,
* Ryan Goodman and Danielle Schulkin, Timeline of the Coronavirus Pandemic and U.S.
Response, Just Security, April 13, 2020, ea Jiwww. justsecurity.org/69650/timeline-of-
the-coronavinus-pandemic-and-u- s-re I.Exhibit A
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declared a local State of Emergency for Palm Beach County.
Pp. March 14, 2020 - Spain ordered a nation-wide lockdown, banning ail
intra-country travel except travel to procure food, medicine and travel related to
essential business operations.
q. March 18, 2020 — Nineteen (19) senior living facilities are suspected
of being infected with by the coronavirus.
t March 20, 2020 - Florida's Governor, Ron DeSantis, enters an
Executive Order harmonizing Palm Beach County (and Broward County) with
Miami-Dade County's Safer-at-Home ordered — essentially closing down all non-
essential businesses and limits in-person gatherings to ten (10) people. In
addition, all non-essential medical procedures were suspended in the State of
Florida.
8. March 24, 2020 - Florida's Governor, Ron DeSantis, enters an
Executive Order directing all senior persons and persons with underlying health
conditions, such as the Plaintiffs, to stay at home.
t March 27, 2020 — 2,900 cases have been identified in the State of
Florida and at least 34 deaths have occurred as a result of COVID-19.
u. April 1, 2020 - Florida's Governor, Ron DeSantis, enters a state-wide
Stay-at-Home Executive Order.
v. June 7, 2020 — Florida has over 1,000 new COVID-19 cases each
day for five (5) consecutive days. The State has 63,938 confirmed cases with
2,700 deaths.Exhibit A
Sussman v. BCMB Enterprises, Inc.
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Ww. June_24, 2020 - Palm Beach County Board of County
Commissioners voted unanimously to enter Emergency Order requiring facial
coverings be worn.
x. July 12, 2020 - Florida has its single day highest case count - 15,
299 confirmed cases in one day, bringing the State total to 269,811 with 4,242
deaths.
20. Defendant and the medical community got an early warning of how easily
the virus could spread, and the reasonable steps to prevent the spread of COVID-19.
21. As early as March 17, 2020, the CDC began issuing guidance to health care
providers and facilities on interacting with those who are at high-risk of transmitting
COVID-19, including, among other things, the use of PPE.
22. Defendant and the medical community knew of the importance on wearing
Personal protective equipment (PPE) when interacting with elderly persons and those
with underlying health conditions to prevent the transmission of COVID~-19.
23. In fact, on more than one occasion, Plaintiffs Hospice nurse informed
Defendant's employee, Shay, to wear a mask while around the Plaintiffs. Nat only did
Shay refuse to wear a mask, Shay wore no other PPE while around the Plaintiffs.
24. Despite the Defendant's advanced knowledge conceming COVID-19,
Defendant and its employees failed to act in a manor to mitigate the transmission of the
disease to the Plaintiffs, including, but not limited to, wearing PPE and limiting their
exposer to COVID-19.
25. As a direct and proximate result of the Defendant's actions and/orExhibit A
Sussman v. BCMB Enterprises, inc.
Complaint
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omissions, Plaintiff, Bernard Sussman, became infected, was diagnosed and treated for
COVID-19 in an intensive care unit.
26. Asa direct and proximate result of Defendant's actions and/or omissions,
Plaintiff. Francine Sussman, became infected, was diagnosed and treated for COVID-19.
27. Asa direct and proximate resull of Defendant's actions and/or omissions,
Plaintiffs have suffered injuries and emotional distress of the nature and type that
reasonable persons would suffer under the circumstances alleged in tha Complaint,
including, but not limited to, suffering, anguish, fright, horror. nervousness, grief, anxiety,
worty shock, and were traumatized by the fear of developing COVID-19,
28. It is expected that Plaintiffs will continue to suffer and will require medical
services in the future. They have and will suffer medical expenses.
29. Defendant's negligent misconduct was predicated on a profit motive.
Specifically, Defendant did not want to make the appropriate expenditures to purchase
the necessary PPE equipment to protect the Plaintiffs from contracting COVID-19 from
its employees. Defendant's knowing, intentional and reckless conduct subjects
Defendant to the imposition of punitive damages.
30. Each and all of the foregoing conditions, including but not limited to, the
actual risk of exposure to the coronavirus, were known to Defendant at the time it sent its
employees to the Plaintiffs’ resident. Defendant subjected an undetermined amount of
high-risk individuals to the highly contagious coronavirus, and exposed its cliants to actual
risk of immediate physical injury and death due to its (a) knowing and intentional decision
to prohibit employees from going out in public during the pandemic for non-essentialExhibit A
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business; (b) allowing employees to report to work despite having symptoms of
coronavirus; (c) knowing and intentional decision to conceal from the Plaintiffs at any time
that there were employees of the Defendant who experienced COVID-19 symptoms; (d)
knowing and intentional decision to not quarantine employees who tested positive for
COVID-19 and/or had symptoms of COVID-19; and (e) failing to provide its employees
with adequate PPE while entering the home of Plaintiffs.
SOUNT | - NEGLIGENCE
31. ‘Plaintiff hereby incorporates by reference, as though fully set forth herein,
paragraphs 1 through 28, and alleges as follows:
32. ‘It was the duty of Defendant to provide Plaintiffs with reasonable care under
the circumstances.
33. Defendant and/or its agents, servants, and/or employees breached its duty
to provide Plaintiffs with reasonable care under the circumstances.
34, Plaintiff was injured due to the fault and/or negligence of Defendant, and/or
its agents, servants, andor employees as follows:
a. Failure to use reasonable care to provide and maintaln a safe
environment for Plaintiffs, fit with proper and adequate safety, protection, cleaning
products and equipment, especially during a known and escalating, global
pandemic of the coronavirus, and when an employee showed symptoms of the
coronavirus; and/or
b. Failure to adequately warn Plaintiffs that an employee of the
Defendant's showed symptoms of the coronavirus; and/orExhibit A
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c. Failure to warn Plaintiffs of the dangers and risks of the coronavirus
and/or infectious disease, including, bul not limited to, failing to inform the Plaintiffs
of the extent of the prior outbreaks and/or risks and/or symptoms; and/or
d. Failure to warn Plaintiffs that its staff did not have adequate medical
personnel, equipment or supplies to adequately handle a coronavirus outbreak;
and/or
e. Failure to adequately warn Plaintiffs that Defendant's employees
who showed symptoms of the coronavirus tested positive for the coronavirus while
continuing to work; and/or
f. Failure to adequately examine its employee's and/or its client's
health condition before allowing them to work; and/or
g. Failure to have adequate medical personnel screen its employee's
and client's to determine whether to allow it's employees to continue to go to the
Plaintiffs’ residence after protentional exposure: and/or
h. Failure to adequately sanitize and/or disinfect the medical supplies
used on Plaintiff, Bernard Sussman: and/or
i Failure to adequately quarantine employees’ infected with the
coronavirus, and/or, infectious disease, and/or virus and/or exhibiting symptoms
of a virus and/or an infectious disease; and/or
i Failure to provide prompt, proper, and adequate medical treatment
to employees infected with the coronavirus, and/or, infectious disease, and/or virus
and/or exhibiting symptoms of a virus and/or an infectious disease; and/orExhibit A
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k. Failure to adequately and properly sradicate the coronavirus or some
other virus causing illness to employees and clients; and/or
IL Failure to take adequate steps to prevent an outbreak of the
coronavirus and/or virus and/or infectious disease when it knew or should have
known that such outbreaks had occurred with its employees and/or clients; and/or
m. Failure to take adequate medical precautions when a client or
employee is exhibiting symptoms of the coronavirus and/or virus and/or infectious
disease so that it can be timely diagnosed; and/or
n. Failure to perform testing on ill clients and/or employees to confirm
the type and nature of the virus; and/or
oO. Failure to have adequate policies and procedures in place to manage
and contain the outbreak and spread of the coronavirus and/or virus and/or
infectious disease; and/or
p. Failure to provide a sanitary environment to prevent outbreaks of the
coronavirus and/or virus and/or infectious diseases, including, but not limited to,
inadequate and/or ineffective cleaning/sanitary procadures and/or lack of
equipment and supplies; and/or
q. Failure to take adequate steps to contain the spread of the
coronavirus and/or virus and/or infectious diseases, which it knew or should have
known could cause other dangerous medical conditions; and/or
r Exposing Plaintiffs to unsanitary conditions that they were
unprepared for without proper warning from Defendant; and/orExhibit A
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s. Failure to provide adequate training, instruction, and supervision to
ihe Defendant employees; and/or
t Failure to promulgate and/or enforce adequate policies and
procedures to ensure that safety would not be compromised for cost and/or profits;
and/or
ue Failure to promulgate policies and/or procedures aimed at ensuring
an adequate emergency plan to protect the health and welfare of clients during an
outbreak of a virus and/or infectious disease, including, but not limited to, the
coronavirus; and/or
v. Other acts or omissions constituting a breach of the duty to use
reasonable care under the circumstances which are revealed through discovery.
35. The above acts and/or omissions caused and/or contributed to Plaintiffs
contracting the coronavirus and/or other virus and/or medical complications arising from
it because the Plaintiffs would not have continued to receive treatment from the Defendant
if it knew that its employees had showed symptoms of the coronavirus that Defendant
were aware of, had Defendant and/or its agents, servants and/or employees adequately
warned and/or communicated the foregoing to Plaintiffs.
36. The above acts and/or omissions caused and/or contributed to the Plaintiffs
and others similarly situated contracting the coronavirus and/or other virus and/or medical
camplications arising from it because the coronavirus and/or other virus outbreak would
not have occurred but for Defendant's failure to wear adequate PPE and properly sanitize
its equipment in a reasonably safe condition.Exhibit A
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37. Defendant knew of the foregoing conditions causing Plaintiffs to be exposed
to an actual risk of physical injury and did not correct them, or the conditions existed for
a Sufficient length of time so that Defendant in the exercise of reasonable care under the
circumstances should have learned of them and corrected them.
38. As a result of the negligence of Defendant, Plaintiffs were:
3a. exposed to an actual risk of the physical injury, which caused severe
mental and emotional anguish, including, but not limited to, anguish, anxiety, fright,
horror, suffering, and traumatized by the fear of developing COVID-19, with
physical manifestations of that mental and emotional anguish including, but not
limited to, sickness, nausea, exhaustion, fatigue, headaches, insomnia, lack of
sleep, poor sleep, nightmares, and respiratory difficulties; and/or
b. contracted the coronavirus and/or virus and/or suffered medical
complications arising from it and were injured about their body and extremities,
suffered both physical pain and suffering, mental and emotional anguish, loss of
enjoyment of life, temporary and/or permanent physical disability, impairment,
inconvenience in the normal pursuits and pleasures of fifa, feelings af acanomic
insecurity, disfigurement, aggravation of any previously existing conditions
therefrom, incurred medical expenses in the care and treatment of their injuries
including life care and suffered physical handicap. The injuries and damages are
permanent or continuing in nature, and Plaintiff and others similarly situated will
suffer the losses and impairments in the future.
WHEREFORE, Plaintiffs, Bernard Sussman and Francine Sussman, demand thatExhibit A
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the Defendant, BCMB Enterprises, Inc., d/b/a A Batter Way Home Care be required to
appear and answer to the claims of negligence. Ptaintiffs further demands for:
a. Judgment for damages in excess of $30,000.00, including but not
limited to past and future medical expenses:
b. The cost of this lawsuit;
Cc. Prejudgment interest where applicable:
d. Jury trial; and
e, For such other relief for which Plaintiffs are justly entitled.
COUNT if — NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
39. Plaintiff hereby incorporates by reference, as though fully set forth herein,
paragraphs 1 through 28, and alleges as follows:
40. Atall times material, due to the negligence and/or gross negligence and/or
intentional conduct of the Defendant, Plaintiffs were placed in an immediate risk of
physical harm. Said risk of physical harm included but is not limited to: contracting the
coronavirus and/or virus and/or medical complications arising from it and/or Injury and/or
death and/or severe emotional and/or psychological trauma.
41. Defendant’s negligence and/or gross negligence and/or intentional conduct
caused severe mental and/or emotional harm and/or distress in the Plaintiffs, such as fear
and anxiety, including, but not limited to, of contracting COVID-19. These emotional
injuries and/or damages have also resulted in physical manifestations, such as sickness,
nausea, exhaustion, fatigue, headaches, insomnia, lack of sleep, poor sleep, nightmares,
and respiratory difficulties.Exhibit A
Sussman v. BCM& Enterprises, Inc.
Compiaint
Case No.:
Page 16 of 20
42. Plaintiffs was/were forced to remain under the care of the Defendant when
its employees and clients had symptoms and/or that tested positive of coronavirus and
were within close contact within one another, and were forced continue receiving care,
without adequate personal protective equipment, including masks, gowns, face shields
and gloves, creating an actual risk of exposure to coronavirus, causing a reasonable fear
of great bodily harm and death. At all times material, Plaintiffs were in the zone of danger
at risk of serious bodily harm, tncluding death due to, inter alia, the highly contagious
coronavirus, which had and has no vaccine.
43. Plaintiffs fear of death and experience of mental, emotional and/or physical
harm was genuine and well founded and Piaintiffs suffered mental or emotional harm
{such as fright and anxiety) that was caused by the negligence of Defendant. This fright
and anxiety has further manifested itself as multiple physical symptoms experienced by
the Plaintiffs, including but not limited to insomnia, depression, anxiety, nightmares, and
dizziness.
44, As a result of the negligent inflection of emotional distress by Defendant,
Plaintiffs were:
a. exposed to an actual risk of the physical injury, which caused severe
mental and emotional anguish, including, but not limited to: anguish, anxiety, fright,
horror, suffering, and traumatized by the fear of developing COVID-19, with
physical manifestations of that mental and emotional anguish including, but not
limited to, sickness, nausea, exhaustion, fatigue, headaches, insomnia, tack of
sleep, poor sleep, nightmares, and respiratory difficulties; and/orExhibit A
Sussman v. BCMB Enterprises, Inc.
Complaint
Case No.:
Page 17 of 20
b. contracted the coronavirus and/or virus and/or suffered medical
complications arising from it and were injured about their body and extremities,
suffered both physical pain and suffering, mental and emotional anguish, loss of
enjoyment of life, temporary and/or permanent physical disability, impairment,
inconvenience in the normal pursuits and pleasures of life, feelings of economic
insecurity, disfigurement, aggravation of any previously existing conditions
therefrom, incurred medical expenses in the care and treatment of their injuries
including life care and suffered physical handicap. The injuries and damages are
permanent or continuing in nalure, and Plaintiffs will suffer the losses and
impairments in the future.
WHEREFORE, Plaintiffs, Bernard Sussman and Francine Sussman, demand that
the Defendant, BCMB Enterprises, Inc., d/b/a A Belter Way Home Care be required to
appear and answer to the claims of negligent inflection of emotion cistress. Plaintiffs
further demands for:
a. Judgment for damages in excess of $30,000.00, including but nat
limited to past and future medical expenses;
b. The cost of this lawsuit;
Cc. Prejudgment interest where applicable;
d. Jury trial; and
e. For such other relief for which Plaintiffs are justly entilled.
COUNT III - INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
45. Plaintiff hereby incorporates by reference, as though fully set forth herein,Exhibit A
Sussman v. BCMB Enterprises, inc.
Complaint
Case No.:
Page 18 of 20
paragraphs 1 through 28, and alleges as follows:
46. As set forth above, the actions of Defendant were intentional or reckless
and inflicted mental suffering. Defendant's conduct In inter alia, (a) allowing employees
to treat its client after having been in close contact with COVID-19 and/or showing
symptoms of COVID-19; (b) deciding to conceal from Plaintiffs at any time prior to
contracting COVID-19 that its employees and or clients had symptoms of COVID-19; (c)
failing to provide its staff and clients, including the Plaintiffs, with adequate PPE despite
actual and advanced warnings of the requirement to do so; and (d) deciding to not
quarantine employees who tested positive for COVID-19 and/or knowing employees were
experiencing symptoms of COVID-19. This conduct is made more outrageous by the fact
that this conduct was motivaled by Defendant's desire to make profit rather than ensure
the reasonable safety and welfare of its clients, including Plaintiffs.
47. Defendant's conduct caused the Plaintiffs to suffer through the fearful
conditions alleged above.
48, All of the conditions previously alleged and endured by the Plaintiffs caused
severe suffering and emotional distress as these Conditions not only led to immediate risk
of physical harm but also caused severe discomfort, anxiety, feelings of
helplessness/hopelessness.
49. The conduct of Defendant as alleged above is so outrageous in character,
and so extreme in degree, as to go beyond all possible bounds of decency, and to be
tegarded as atrocious, and uttedy intolerable in a civilized community. Put simply,
Defendant recklessly and intentionally put hundreds of its employees and clients throughExhibit A
Sussman v. BCMB Enterprises, inc,
Complaint
Case No.:
Page 19 of 20
a living nightmare so it could protect its bottom line.
50. As a result of the intentional inflection of emotional distress by Defendant,
Plaintiffs were:
a. exposed to an actual risk of the physical injury, which caused severe
mental and emotional anguish, including, but not limited to, anguish, anxiety, fright,
horror, suffering, and traumatized by the fear of developing COVID-19, with
physica! manifestations of that mental and emotional anguish including, but not
limited to, sickness, nausea, exhaustion, fatigue, headaches, insomnia, lack of
sleep, poor sleep, nightmares, and respiratory difficulties; and/or
b. contracted the coronavirus and/or virus and/or suffered medical
complications arising from it and were Injured about their body and extremities,
suffered both physical pain and suffering, mental and emotional anguish, loss of
enjoyment of life, temporary and/or permanent physical disability, impairment,
inconvenience in the normal pursuits and pleasures of life, feelings of economic
insecurity, disfigurement, aggravation of any previously existing conditions
therefrom, incurred medical expenses in the care and treatment of their injuries
including life care and suffered physical handicap. The injuries and damages are
permanent or continuing in nature, and Plaintiffs will suffer the losses and
impairments in the future.
WHEREFORE, Plaintiffs, Bernard Sussman and Francine Sussman, demand that
the Defendant, BCMB Enterprises, Inc., d/b/a A Better Way Home Care be required to
appear and answer to the claims of intentional inflection of emotion distress. PlaintiffsExhibit A
Sussman v. BCMB Enterprises, Inc.
Complaint
Case No.:
Page 20 of 20
further demands for:
a Judgment for damages in excess of $30,000.00, including but not
limited to past and future medical expenses;
b. The cost of this lawsuit;
c Prejudgment interest where applicable;
d. Jury trial; and
e For such other relief for which Plaintiffs are justly entitled.
Dated this 29'" day of September 2020,
Respectfully submitted,
ROY & ASSOCIATES, P.A.
By: ist: Dave K. Roy, Esq.
DAVE K. ROY, ESQ. (FBN $2551)
1665 Palm Beach Lakes Bivd., Suite 101
West Palm Beach, FL 33401
Telephone: (561) 729-0095
Facsimile: (267) 222-6953
E-Service: info@daveroylaw.com
Preview
Filing # 122617848 E-Filed 03/05/2021 05:03:15 PM IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 2020CA010576XXXXMB DIVISION: AH BERNARD SUSSMAN and FRANCINE SUSSMAN, Plaintiff(s), VS. BCMB ENTERPRISES, INC d/b/a A BETTER WAY HOME CARE, Defendant. eee eee eee eee eee eee eel DEFENDANT’S MOTION FOR SUMMARY JUDGEMENT OUNT II OF PLAINTIFFS’ COMPLAINT Defendant, BCMB Enterprises, Inc. d/b/a A Better Way Home Care (hereinafter referred to as “Defendant”), by and through the undersigned, and pursuant to Fla. R. Civ. P. 1.510, moves for Summary Judgement on Count III of Plaintiffs’ Complaint, and in support thereof states as follows: I. STATEMENT OF FACTS 1. This action arises out of the home health services! of Plaintiff, Bernard Sussman, by Defendant, A Better Way Home Care. Plaintiff, along with his spouse and Co-Plaintiff, Francine Sussman, (hereinafter referred to as “Plaintiffs”), allege that Defendant knowingly and intentionally allowed one if it employees the bring COVID-19 into Plaintiffs’ home and infect Plaintiffs with COVID-19. ) Services provided in the home or residence of the customer and may involve activities such as cleaning, bathing, dressing, and mobility. *** FILED: PALM BEACH COUNTY, FL JOSEPH ABRUZZO, CLERK. 03/05/2021 05:03:15 PM ***2. On September 29, 2020, Plaintiffs filed their Complaint against Defendant, alleging: Count I — Negligence; Count II — Negligent Infliction of Emotional Distress; and Count III — Intentional Infliction of Emotional Distress. See Plaintiffs’ Complaint, attached hereto as “Exhibit A.” 3. In order to prove Count III — Intentional Infliction of Emotional Distress, Plaintiffs must prove, as stated in their Complaint, that “the actions of the Defendant were intentional or reckless.” See § 46, “Exhibit A.” 4. For the following reasons, the Court should find that Defendant is entitled to judgment as a matter of law on Count III of Plaintiffs’ Complaint and grant Defendant’s Motion for Summary Judgement. 1. MEMORANDUM OF LAW A. Standard of Law “A party against whom a claim, counterclaim, crossclaim, or third-party claim is asserted or a declaratory judgment is sought may move for a summary judgment in that party's favor as to all or any part thereof at any time with or without supporting affidavits.” Fla. R. Civ. P., 1.510. “The standard of review of an order granting summary judgment is de novo.” Bender v. CareGivers of Am., Inc., 42 So.3d 893, 894 (Fla. 4th DCA 2010) (quoting Mobley v. Gilbert E. Hirschberg, P.A., 915 So.2d 217, 218 (Fla. 4th DCA 2005)). Further: Summary judgment should be granted “if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fila. R. Civ. P. 1.510(c). Fla. Atlantic University Bd. of Trustees v. Lindsey, 50 So.3d 1205, 1206 (Fla. 4th DCA 2010).In the instant case, “[s]ummary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). However, “by its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2510 (1986). This Court is permitted to rely upon facts produced by the defense in its motion. Certainly, in “a motion for summary judgment [...] the court may rely on facts adduced in depositions, affidavits, or other proofs.” Barbado v. Green & Murphy, P.A., 758 So. 2d 1173, 1174 (Fla. 4th DCA 2000) (quoting Mancher v. Seminole Tribe of Fla., Inc., 708 So. 2d 327, 327 (Fla. 4th DCA 1998)). B. The Court Should Grant Defendant’s Motion for Summary Judgement on Count III of Plaintiffs’ Complaint Because Plaintiff Cannot Prove the Required Elements to Support a Claim for Intentional Infliction of Emotional Distress In Florida, to sustain a claim for intentional infliction of emotional distress, the plaintiff must prove the required elements of such a claim. The elements of this cause of action are the following: (1) The wrongdoer's conduct was intentional or reckless, that is, he intended his behavior when he knew or should have known that emotional distress would likely result; (2) The conduct was outrageous, that is, as to go beyond all bounds of decency, and to be regarded as odious and utterly intolerable in a civilized community; (3) The conduct caused emotional distress; and (4) The emotional distress was severe. Stewart v. Walker, 5 So.3d 746, 749 (Fla. 4th DCA 2009). Focusing on the first required element, it is alleged Defendant intentionally or recklessly inflicted emotional distress upon Plaintiffs by knowingly allowing its employee to bring COVID-19 into Plaintiffs’ home. Here, Plaintiffs have failed to produce a single shred of evidence in support of their wild allegations. To the contrary, the uncontroverted facts of this case are as follows: (1) prior to Plaintiffs’ alleged COVID-19 infection, Defendant instituted policies and procedures to protect its customers from the spread of COVID-19; (2) Defendant next educated its employees on these very policies and procedures; (3) Defendant confirmed the use of Personal Protective Equipment by its employees by conducting “unannounced supervisory visits”?; (4) Defendant’s employees performed daily vital sign screenings prior to entering their customers’ homes; (5) the employee in question was screened prior to entering Plaintiffs’ home and these screenings were void of any signs or symptoms of COVID-19; and (6) Defendant’s employee never tested positive for COVID-19 prior to entering Plaintiffs’ home. Plaintiffs have clearly failed to carry their burden for the first element of intentional infliction of emotional distress. No record evidence exists to show that Defendant’s conduct could have been intentional or reckless or that Defendant could have acted with knowledge. As to Plaintiffs’ burden for the second, third, and fourth elements, it logically follows that as the first element fails, the subsequent elements fail. Defendant’s conduct simply could not have been “outrageous,” “beyond all bounds of decency,” and “odious and utterly intolerable in a civilized community.” Stewart at 749. III. CONCLUSION Defendant, A Better Way Home Care, is entitled to judgment as a matter of law on Count III of Plaintiffs’ Complaint, because until Plaintiffs can alter the laws of nature, it is simply ? Unannounced supervisory visits occur when a home care provider sends a supervisory nurse to a customer’s home to observe the practices and care of its home health aides. To ensure the validity and objectivity of these visits, the visits occur with the permission of the customer, but without prior knowledge or warning to the aides.impossible for a person or party to act with intent, based upon the knowledge of a fact, where that fact does not yet exist. WHEREFORE, Defendant, BCMB ENTERPRISES, INC. D/B/A A BETTER WAY HOME CARE, respectfully requests this Honorable Court enter judgement in its favor on Count III of Plaintiffs’ Complaint, and provide such other relief this Court deems just and proper. Further, Defendant respectfully requests the Court reserve Defendant’s right to supplement this Motion at a later date with record and other relevant evidence which Defendant refrained from attaching now. CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that on the 5" of March, 2021, a true and correct copy of the foregoing has been furnished via the Florida e-filing portal: Dave K. Roy, Esq., Roy & Associates, P.A., 1665 Palm Beach Lakes Blvd., Suite 1010, West Palm Beach, FL 33401; info@daveroylaw.com QUINTAIROS, PRIETO, WOOD & BOYER, P.A. /s/ Robin N. Khanal ROBIN N. KHANAL, ESQUIRE Florida Bar No.: 0571032 CHRISTOPHER N. GONSALVES, ESQUIRE Florida Bar No.: 1018014 255 S. Orange Ave., Suite 900 Orlando, Florida 32801 Tel: (407) 872-6011 Fax: (407) 872-6012 Attorneys for DefendantFiling # 114138595 E-Filed 09/29/2020 03:48:48 PM Exhibit A IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: DIVISION: BERNARD SUSSMAN and FRANCINE SUSSMAN, Piaintiff(s), vs. BCMB ENTERPRISES, INC d/b/a A BETTER WAY HOME CARE, Defendant. Py COMPLAINT HERE NOW COMES, Plaintiffs, Bernard Sussman and Francine Sussman, by and through the undersigned counsel, and sues Defendant, BCMB Enterprises, Inc., d/b/a A Better Way Home Care . In support thereof they ailage: THE PARTIES AND JURISDICTION 4. Plaintiff, Bernard Sussman, is and was at all times relevant hereto, a resident of Palm Beach County, Florida. 2. Plaintiff, Francine Sussman, is and was at all times relevant hereto, a resident of Paim Beach County, Florida. 3. Defendant, BCMB Enterprises, Inc., d/b/a A Better Way Home Care, is a for-profit corporation registered to conduct business in the State of Florida, with its main offices in Palm Beach County, Florida. 4. Venue is proper in Palm Beach County, Florida, because the Defendant conducts business in Palm Beach County, Florida, and the actions giving rise to this action occurred in Paim Beach County, Florida.Exhibit A Sussman v. BGMB Enterprises, Inc. Complaint Case No.: Page 2 of 20 5, Jurisdiction is proper in the Circuil Court because Plaintiffs seeks damages in an amount that exceeds Thirty Thousand Dollars ($30,000.00) exclusive of interest, court costs, and attorneys’ fees, GENERAL ALLEGATIONS 6. On or about April 1, 2049, Plaintiff, Bernard Sussman, was diagnosed with poorly differentiated carcinoma. 7. After several months of treatment through the Veterans Affair, Mr. Sussman's primary care physician, Dr. Bergsman, provided Bernard Sussman with a referral for at home nursing services. 8. On or about September 16, 2019, after receiving a referral, Plaintiff, Bernard Sussman, was put in touch with Defendant, BCMB Enterprises, Inc., who is engaged in the business providing certified nursing aides, home health aide, compassion care, 24/7 care, respite care, dementia care, fall prevention and skilled nursing services in Paim Beach County, Florida. Upon information and belief, Defendant holds the largest contract for Veterans Affairs in Palm Beach County, Florida 9. At all times relevant hereto, Defendant assigned an employee named “Shay” to provide Plaintiffs, Bernard Sussman and Francine Sussman, at-home services related to Bemard Sussman’s treatment of poorly differentiated carcinoma, including, but not limited to: assistance with bathing, feedings, transferring, emptying the trash, changing linens, dressing, and laundry. 10. In and around December 2019, China began experiencing an outbreak in treating patients with what appeared to be novel cases of pneumonia with an unknownExhibit A Sussman v, BCMB Enterprises, Inc. Complaint Case No.: Page 3 of 20 cause. 11, The highly contagious virus became known has coronavirus, or COVID-19, which quickly spread around the entire world, and by January 21, 2020, the United States had its first confirmed case, as detailed below. 12. Between January 21, 2020 and July 31, 2020, Defendant's employee, Shay, refused to wear any PPE, including a mask, while around the Plaintiffs, despite repeated requests from other medical professionals and the Plaintiffs to do so. 13. Onor about July 31, 2020, Defendant informed the Plaintiffs nat one of its employees had tested positive for COVID-19, a highly contagious coronavirus, and exposing its clients, such as the Plaintiffs, te actual risk of immediate physical Injury and death. 14. Between January 21, 2020 and July 31, 2020, Defendant knew of the COVID-19's extreme contagiousness and the treat to elderly persons and those with preexisting health conditions ~ all of the Defendant's client base. Despite this knowledge, Defendant took look to no action to protect the Plaintiffs from contracting COVID-19. 45. On or about August 3, 2020, Plaintiff had received the horrific news that they had in-fact contracted COVID-19. ACTUAL ALLEGATIONS SURROUNDING CORONAVIRUS 16. In the recent months, there has been a worldwide outbreak of a new virus, the coronavirus, also known as COVID-19. The virus originated in China, and quickly spread throughout Asia, Europe, and most recently, North America. 17. The dangerous conditions associated with COVID-19 include itsExhibit A Sussman v. BCMB Enterprises, Inc. Complaint Case No.: Page 4 of 20 manifestations ~ severe pneumonia, acute respiratory distress syndrome (ARDS) septic shock and/or multi-organ failure’ ~ and/or its symptoms — fever, dry cough, and/or shortness of breath? — as well as igh fatality rate ass ith contracting the virus’. The dangerous conditions associated with COVID-19 also include its extreme contagiousness. For example, a person with COVID-19 infects, on average, another 2.5 people, and COVID-19 Is therefore more contagious than Ebola or Influenza‘. 18. There have been over twenty-seven million cases worldwide and over eight hundred thousand deaths as a result of the coronavirus. Those fatalities have largely been amongst the elderly population, and those with underling medical complications, such as the Plaintiffs. 19. Qullined below is a timeline of events relevant to this lawsuit against Defendant. This timeline supports Defendant having actual knowledge of the dangerous conditions and/or explosive contagiousness associated with COVID-19 at the time the Plaintiffs contracted COVID-19 from the Defendant's employee: ' See Centers for Disease Control and Prevention, March 14, 2020 No Sail Order, httos:/Awww.cdc.qov/quarantine/pdi/signed-manifest-order_031520.pdf. ? See Mayo Clinic, Symptoms and Causes, hitps://www.mayoclinic.ora/diseases- conditions/corgnavirus/symptoms-causes/syc-20479963 (last accessed April 6, 2020); see also Centers for Disease Control and Prevention, interim Guidance for Ships on Managing Suspected Coronavirus Disease 2019, (last updated February 18, 2020) s /hwww.cdc.qov/quarantine/maritime/recommendations-for- ships.himl. nes Centers for Disease Controland Prevention, March 14, 2020 No Saif Order aL v/quarantine/pdf/signed-manifest-order_031520.pdf (identifying a 3.6% globai fatality rate); Journal of the American Medical Association, Case-Fatality Rate and Characteristics of Patients Dying in relation to COVID-19 in italy. https:/famanetwork.com/journals/jama/fullarticle/2763667 (identifying a 7.2% and 2.3% fatality rate in Italy and China, respectively). 7 Popular Science, COVID-19 Contagiousness, https:/Avww.popsci.com/story/health/how-diseases-spread/Exhibit A Sussman v. BCMB Enterprises, Inc. Complaint Case No.: Page 5 of 20 a. December 31, 2019 - The local government in Wuhan, China, confirmed with the World Health Organization (hereinafter “WHO") that focal health authorities in Wuhan were treating an influx of dozens of patients with what appeared to be novel cases of pneumonia with an unknown cause. b. January 5-7, 2020 — China announced that the novel pneumonia cases in Wuhan were not caused by severe acute respiratory syndrome (hereinafter “SARS") or middle-east respiratory syndrome (hereinafter *MERS”) — but COVID-19 — which belongs to the highly-contagious family of coronaviruses, including SARS and MERS. c. Janyary 11, 2020 - The Wuhan Municipal Health Commission announced the first death caused by COVID-19. d. January 20, 2020 - A situation report published by the WHO confirmed COVID-19 cases outside of mainland China in Thailand, Japan and South Korea, which the WHO believed to have been exported from Wuhan, China. The situation report also identified 282 positive COVID-19 diagnoses worldwide with 278 of those positive cases within China. 8. January 21, 2020 - A man In his 30's from Washington State was the first in the United States to test positive for coronavirus. f. January 23, 2020 — Chinese authorities take the unprecedented measure of closing off Wuhan — a city of over 11,000,000 people — to stop the spread of COVID-19. g. Janyary 30, 2020 - WHO declared COVID-19 a “global healthExhibit A Sussman v. BCMB Enterprises, Inc. Complaint Case No.: Page 6 of 20 emergency” ~ recognizing that COVID-19 posed a risk beyond China. The U.S. Department of State issued a Level 4 (highest level) travel advisory as it related to U.S. citizens who planned to travel to China’. h. February 2, 2020 - China reports that the death toll from COVID-19 in maintand China (361) exceeded the death toll in mainland China from the SARS outbreak in the early 2000s (349). i. February 5, 2020 — Chinese officials announced that nearly 500 peopie in mainland China have died as a result of COVID-19. i February 29, 2020 - The first coronavirus death is reported in the United States. k. March 1, 2020 — the State of Florida reports its first two (2) cases of COVID-19. Florida's Governor, Ron DeSantis, entered an Executive Order directing the Florida Department of Health to issue a Public Health Emergency, \ March 8, 2020 - Spain (a country which boarders France to the south) reported 589 COVID-19 cases and 17 COVID-19 related deaths. m. March 9, 2020 - Florida's Governor, Ron DeSantis, Declares a State of Emergency and actives the National Guard. n. March 12, 2020 - Spain reported over 3,000 COVID-19 cases and 84 COVID-19 related deaths. oO. March 13, 2020 -— Mayor for Palm Beach County, Dave Kerner, * Ryan Goodman and Danielle Schulkin, Timeline of the Coronavirus Pandemic and U.S. Response, Just Security, April 13, 2020, ea Jiwww. justsecurity.org/69650/timeline-of- the-coronavinus-pandemic-and-u- s-re I.Exhibit A Sussman v. BCMB Enterprises, Inc. Complaint Case No.: Page 7 of 20 declared a local State of Emergency for Palm Beach County. Pp. March 14, 2020 - Spain ordered a nation-wide lockdown, banning ail intra-country travel except travel to procure food, medicine and travel related to essential business operations. q. March 18, 2020 — Nineteen (19) senior living facilities are suspected of being infected with by the coronavirus. t March 20, 2020 - Florida's Governor, Ron DeSantis, enters an Executive Order harmonizing Palm Beach County (and Broward County) with Miami-Dade County's Safer-at-Home ordered — essentially closing down all non- essential businesses and limits in-person gatherings to ten (10) people. In addition, all non-essential medical procedures were suspended in the State of Florida. 8. March 24, 2020 - Florida's Governor, Ron DeSantis, enters an Executive Order directing all senior persons and persons with underlying health conditions, such as the Plaintiffs, to stay at home. t March 27, 2020 — 2,900 cases have been identified in the State of Florida and at least 34 deaths have occurred as a result of COVID-19. u. April 1, 2020 - Florida's Governor, Ron DeSantis, enters a state-wide Stay-at-Home Executive Order. v. June 7, 2020 — Florida has over 1,000 new COVID-19 cases each day for five (5) consecutive days. The State has 63,938 confirmed cases with 2,700 deaths.Exhibit A Sussman v. BCMB Enterprises, Inc. Complaint Case No.: Page 8 of 20 Ww. June_24, 2020 - Palm Beach County Board of County Commissioners voted unanimously to enter Emergency Order requiring facial coverings be worn. x. July 12, 2020 - Florida has its single day highest case count - 15, 299 confirmed cases in one day, bringing the State total to 269,811 with 4,242 deaths. 20. Defendant and the medical community got an early warning of how easily the virus could spread, and the reasonable steps to prevent the spread of COVID-19. 21. As early as March 17, 2020, the CDC began issuing guidance to health care providers and facilities on interacting with those who are at high-risk of transmitting COVID-19, including, among other things, the use of PPE. 22. Defendant and the medical community knew of the importance on wearing Personal protective equipment (PPE) when interacting with elderly persons and those with underlying health conditions to prevent the transmission of COVID~-19. 23. In fact, on more than one occasion, Plaintiffs Hospice nurse informed Defendant's employee, Shay, to wear a mask while around the Plaintiffs. Nat only did Shay refuse to wear a mask, Shay wore no other PPE while around the Plaintiffs. 24. Despite the Defendant's advanced knowledge conceming COVID-19, Defendant and its employees failed to act in a manor to mitigate the transmission of the disease to the Plaintiffs, including, but not limited to, wearing PPE and limiting their exposer to COVID-19. 25. As a direct and proximate result of the Defendant's actions and/orExhibit A Sussman v. BCMB Enterprises, inc. Complaint Case No.: Page 9 of 20 omissions, Plaintiff, Bernard Sussman, became infected, was diagnosed and treated for COVID-19 in an intensive care unit. 26. Asa direct and proximate result of Defendant's actions and/or omissions, Plaintiff. Francine Sussman, became infected, was diagnosed and treated for COVID-19. 27. Asa direct and proximate resull of Defendant's actions and/or omissions, Plaintiffs have suffered injuries and emotional distress of the nature and type that reasonable persons would suffer under the circumstances alleged in tha Complaint, including, but not limited to, suffering, anguish, fright, horror. nervousness, grief, anxiety, worty shock, and were traumatized by the fear of developing COVID-19, 28. It is expected that Plaintiffs will continue to suffer and will require medical services in the future. They have and will suffer medical expenses. 29. Defendant's negligent misconduct was predicated on a profit motive. Specifically, Defendant did not want to make the appropriate expenditures to purchase the necessary PPE equipment to protect the Plaintiffs from contracting COVID-19 from its employees. Defendant's knowing, intentional and reckless conduct subjects Defendant to the imposition of punitive damages. 30. Each and all of the foregoing conditions, including but not limited to, the actual risk of exposure to the coronavirus, were known to Defendant at the time it sent its employees to the Plaintiffs’ resident. Defendant subjected an undetermined amount of high-risk individuals to the highly contagious coronavirus, and exposed its cliants to actual risk of immediate physical injury and death due to its (a) knowing and intentional decision to prohibit employees from going out in public during the pandemic for non-essentialExhibit A Sussman v. BCMB Enterprises, Inc. Complaint Case No.: Page 10 of 20 business; (b) allowing employees to report to work despite having symptoms of coronavirus; (c) knowing and intentional decision to conceal from the Plaintiffs at any time that there were employees of the Defendant who experienced COVID-19 symptoms; (d) knowing and intentional decision to not quarantine employees who tested positive for COVID-19 and/or had symptoms of COVID-19; and (e) failing to provide its employees with adequate PPE while entering the home of Plaintiffs. SOUNT | - NEGLIGENCE 31. ‘Plaintiff hereby incorporates by reference, as though fully set forth herein, paragraphs 1 through 28, and alleges as follows: 32. ‘It was the duty of Defendant to provide Plaintiffs with reasonable care under the circumstances. 33. Defendant and/or its agents, servants, and/or employees breached its duty to provide Plaintiffs with reasonable care under the circumstances. 34, Plaintiff was injured due to the fault and/or negligence of Defendant, and/or its agents, servants, andor employees as follows: a. Failure to use reasonable care to provide and maintaln a safe environment for Plaintiffs, fit with proper and adequate safety, protection, cleaning products and equipment, especially during a known and escalating, global pandemic of the coronavirus, and when an employee showed symptoms of the coronavirus; and/or b. Failure to adequately warn Plaintiffs that an employee of the Defendant's showed symptoms of the coronavirus; and/orExhibit A Sussman v, BCMB Enterprises, Inc. Complaint Case No.: Page 11 of 20 c. Failure to warn Plaintiffs of the dangers and risks of the coronavirus and/or infectious disease, including, bul not limited to, failing to inform the Plaintiffs of the extent of the prior outbreaks and/or risks and/or symptoms; and/or d. Failure to warn Plaintiffs that its staff did not have adequate medical personnel, equipment or supplies to adequately handle a coronavirus outbreak; and/or e. Failure to adequately warn Plaintiffs that Defendant's employees who showed symptoms of the coronavirus tested positive for the coronavirus while continuing to work; and/or f. Failure to adequately examine its employee's and/or its client's health condition before allowing them to work; and/or g. Failure to have adequate medical personnel screen its employee's and client's to determine whether to allow it's employees to continue to go to the Plaintiffs’ residence after protentional exposure: and/or h. Failure to adequately sanitize and/or disinfect the medical supplies used on Plaintiff, Bernard Sussman: and/or i Failure to adequately quarantine employees’ infected with the coronavirus, and/or, infectious disease, and/or virus and/or exhibiting symptoms of a virus and/or an infectious disease; and/or i Failure to provide prompt, proper, and adequate medical treatment to employees infected with the coronavirus, and/or, infectious disease, and/or virus and/or exhibiting symptoms of a virus and/or an infectious disease; and/orExhibit A Sussman v. BCM& Enterprises, Inc. Complaint Case No.: Page 12 of 20 k. Failure to adequately and properly sradicate the coronavirus or some other virus causing illness to employees and clients; and/or IL Failure to take adequate steps to prevent an outbreak of the coronavirus and/or virus and/or infectious disease when it knew or should have known that such outbreaks had occurred with its employees and/or clients; and/or m. Failure to take adequate medical precautions when a client or employee is exhibiting symptoms of the coronavirus and/or virus and/or infectious disease so that it can be timely diagnosed; and/or n. Failure to perform testing on ill clients and/or employees to confirm the type and nature of the virus; and/or oO. Failure to have adequate policies and procedures in place to manage and contain the outbreak and spread of the coronavirus and/or virus and/or infectious disease; and/or p. Failure to provide a sanitary environment to prevent outbreaks of the coronavirus and/or virus and/or infectious diseases, including, but not limited to, inadequate and/or ineffective cleaning/sanitary procadures and/or lack of equipment and supplies; and/or q. Failure to take adequate steps to contain the spread of the coronavirus and/or virus and/or infectious diseases, which it knew or should have known could cause other dangerous medical conditions; and/or r Exposing Plaintiffs to unsanitary conditions that they were unprepared for without proper warning from Defendant; and/orExhibit A Sussman v. BCMB Enterprises. inc. Complaint Case No.: Pago 13 of 20 s. Failure to provide adequate training, instruction, and supervision to ihe Defendant employees; and/or t Failure to promulgate and/or enforce adequate policies and procedures to ensure that safety would not be compromised for cost and/or profits; and/or ue Failure to promulgate policies and/or procedures aimed at ensuring an adequate emergency plan to protect the health and welfare of clients during an outbreak of a virus and/or infectious disease, including, but not limited to, the coronavirus; and/or v. Other acts or omissions constituting a breach of the duty to use reasonable care under the circumstances which are revealed through discovery. 35. The above acts and/or omissions caused and/or contributed to Plaintiffs contracting the coronavirus and/or other virus and/or medical complications arising from it because the Plaintiffs would not have continued to receive treatment from the Defendant if it knew that its employees had showed symptoms of the coronavirus that Defendant were aware of, had Defendant and/or its agents, servants and/or employees adequately warned and/or communicated the foregoing to Plaintiffs. 36. The above acts and/or omissions caused and/or contributed to the Plaintiffs and others similarly situated contracting the coronavirus and/or other virus and/or medical camplications arising from it because the coronavirus and/or other virus outbreak would not have occurred but for Defendant's failure to wear adequate PPE and properly sanitize its equipment in a reasonably safe condition.Exhibit A Sussman v. BCMB Enterprises, Inc. Complaint Case No.: Page 14 of 20 37. Defendant knew of the foregoing conditions causing Plaintiffs to be exposed to an actual risk of physical injury and did not correct them, or the conditions existed for a Sufficient length of time so that Defendant in the exercise of reasonable care under the circumstances should have learned of them and corrected them. 38. As a result of the negligence of Defendant, Plaintiffs were: 3a. exposed to an actual risk of the physical injury, which caused severe mental and emotional anguish, including, but not limited to, anguish, anxiety, fright, horror, suffering, and traumatized by the fear of developing COVID-19, with physical manifestations of that mental and emotional anguish including, but not limited to, sickness, nausea, exhaustion, fatigue, headaches, insomnia, lack of sleep, poor sleep, nightmares, and respiratory difficulties; and/or b. contracted the coronavirus and/or virus and/or suffered medical complications arising from it and were injured about their body and extremities, suffered both physical pain and suffering, mental and emotional anguish, loss of enjoyment of life, temporary and/or permanent physical disability, impairment, inconvenience in the normal pursuits and pleasures of fifa, feelings af acanomic insecurity, disfigurement, aggravation of any previously existing conditions therefrom, incurred medical expenses in the care and treatment of their injuries including life care and suffered physical handicap. The injuries and damages are permanent or continuing in nature, and Plaintiff and others similarly situated will suffer the losses and impairments in the future. WHEREFORE, Plaintiffs, Bernard Sussman and Francine Sussman, demand thatExhibit A Sussman v. BCMB Enterprises, Inc, Complaint Case No,: Page 15 of 20 the Defendant, BCMB Enterprises, Inc., d/b/a A Batter Way Home Care be required to appear and answer to the claims of negligence. Ptaintiffs further demands for: a. Judgment for damages in excess of $30,000.00, including but not limited to past and future medical expenses: b. The cost of this lawsuit; Cc. Prejudgment interest where applicable: d. Jury trial; and e, For such other relief for which Plaintiffs are justly entitled. COUNT if — NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS 39. Plaintiff hereby incorporates by reference, as though fully set forth herein, paragraphs 1 through 28, and alleges as follows: 40. Atall times material, due to the negligence and/or gross negligence and/or intentional conduct of the Defendant, Plaintiffs were placed in an immediate risk of physical harm. Said risk of physical harm included but is not limited to: contracting the coronavirus and/or virus and/or medical complications arising from it and/or Injury and/or death and/or severe emotional and/or psychological trauma. 41. Defendant’s negligence and/or gross negligence and/or intentional conduct caused severe mental and/or emotional harm and/or distress in the Plaintiffs, such as fear and anxiety, including, but not limited to, of contracting COVID-19. These emotional injuries and/or damages have also resulted in physical manifestations, such as sickness, nausea, exhaustion, fatigue, headaches, insomnia, lack of sleep, poor sleep, nightmares, and respiratory difficulties.Exhibit A Sussman v. BCM& Enterprises, Inc. Compiaint Case No.: Page 16 of 20 42. Plaintiffs was/were forced to remain under the care of the Defendant when its employees and clients had symptoms and/or that tested positive of coronavirus and were within close contact within one another, and were forced continue receiving care, without adequate personal protective equipment, including masks, gowns, face shields and gloves, creating an actual risk of exposure to coronavirus, causing a reasonable fear of great bodily harm and death. At all times material, Plaintiffs were in the zone of danger at risk of serious bodily harm, tncluding death due to, inter alia, the highly contagious coronavirus, which had and has no vaccine. 43. Plaintiffs fear of death and experience of mental, emotional and/or physical harm was genuine and well founded and Piaintiffs suffered mental or emotional harm {such as fright and anxiety) that was caused by the negligence of Defendant. This fright and anxiety has further manifested itself as multiple physical symptoms experienced by the Plaintiffs, including but not limited to insomnia, depression, anxiety, nightmares, and dizziness. 44, As a result of the negligent inflection of emotional distress by Defendant, Plaintiffs were: a. exposed to an actual risk of the physical injury, which caused severe mental and emotional anguish, including, but not limited to: anguish, anxiety, fright, horror, suffering, and traumatized by the fear of developing COVID-19, with physical manifestations of that mental and emotional anguish including, but not limited to, sickness, nausea, exhaustion, fatigue, headaches, insomnia, tack of sleep, poor sleep, nightmares, and respiratory difficulties; and/orExhibit A Sussman v. BCMB Enterprises, Inc. Complaint Case No.: Page 17 of 20 b. contracted the coronavirus and/or virus and/or suffered medical complications arising from it and were injured about their body and extremities, suffered both physical pain and suffering, mental and emotional anguish, loss of enjoyment of life, temporary and/or permanent physical disability, impairment, inconvenience in the normal pursuits and pleasures of life, feelings of economic insecurity, disfigurement, aggravation of any previously existing conditions therefrom, incurred medical expenses in the care and treatment of their injuries including life care and suffered physical handicap. The injuries and damages are permanent or continuing in nalure, and Plaintiffs will suffer the losses and impairments in the future. WHEREFORE, Plaintiffs, Bernard Sussman and Francine Sussman, demand that the Defendant, BCMB Enterprises, Inc., d/b/a A Belter Way Home Care be required to appear and answer to the claims of negligent inflection of emotion cistress. Plaintiffs further demands for: a. Judgment for damages in excess of $30,000.00, including but nat limited to past and future medical expenses; b. The cost of this lawsuit; Cc. Prejudgment interest where applicable; d. Jury trial; and e. For such other relief for which Plaintiffs are justly entilled. COUNT III - INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 45. Plaintiff hereby incorporates by reference, as though fully set forth herein,Exhibit A Sussman v. BCMB Enterprises, inc. Complaint Case No.: Page 18 of 20 paragraphs 1 through 28, and alleges as follows: 46. As set forth above, the actions of Defendant were intentional or reckless and inflicted mental suffering. Defendant's conduct In inter alia, (a) allowing employees to treat its client after having been in close contact with COVID-19 and/or showing symptoms of COVID-19; (b) deciding to conceal from Plaintiffs at any time prior to contracting COVID-19 that its employees and or clients had symptoms of COVID-19; (c) failing to provide its staff and clients, including the Plaintiffs, with adequate PPE despite actual and advanced warnings of the requirement to do so; and (d) deciding to not quarantine employees who tested positive for COVID-19 and/or knowing employees were experiencing symptoms of COVID-19. This conduct is made more outrageous by the fact that this conduct was motivaled by Defendant's desire to make profit rather than ensure the reasonable safety and welfare of its clients, including Plaintiffs. 47. Defendant's conduct caused the Plaintiffs to suffer through the fearful conditions alleged above. 48, All of the conditions previously alleged and endured by the Plaintiffs caused severe suffering and emotional distress as these Conditions not only led to immediate risk of physical harm but also caused severe discomfort, anxiety, feelings of helplessness/hopelessness. 49. The conduct of Defendant as alleged above is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be tegarded as atrocious, and uttedy intolerable in a civilized community. Put simply, Defendant recklessly and intentionally put hundreds of its employees and clients throughExhibit A Sussman v. BCMB Enterprises, inc, Complaint Case No.: Page 19 of 20 a living nightmare so it could protect its bottom line. 50. As a result of the intentional inflection of emotional distress by Defendant, Plaintiffs were: a. exposed to an actual risk of the physical injury, which caused severe mental and emotional anguish, including, but not limited to, anguish, anxiety, fright, horror, suffering, and traumatized by the fear of developing COVID-19, with physica! manifestations of that mental and emotional anguish including, but not limited to, sickness, nausea, exhaustion, fatigue, headaches, insomnia, lack of sleep, poor sleep, nightmares, and respiratory difficulties; and/or b. contracted the coronavirus and/or virus and/or suffered medical complications arising from it and were Injured about their body and extremities, suffered both physical pain and suffering, mental and emotional anguish, loss of enjoyment of life, temporary and/or permanent physical disability, impairment, inconvenience in the normal pursuits and pleasures of life, feelings of economic insecurity, disfigurement, aggravation of any previously existing conditions therefrom, incurred medical expenses in the care and treatment of their injuries including life care and suffered physical handicap. The injuries and damages are permanent or continuing in nature, and Plaintiffs will suffer the losses and impairments in the future. WHEREFORE, Plaintiffs, Bernard Sussman and Francine Sussman, demand that the Defendant, BCMB Enterprises, Inc., d/b/a A Better Way Home Care be required to appear and answer to the claims of intentional inflection of emotion distress. PlaintiffsExhibit A Sussman v. BCMB Enterprises, Inc. Complaint Case No.: Page 20 of 20 further demands for: a Judgment for damages in excess of $30,000.00, including but not limited to past and future medical expenses; b. The cost of this lawsuit; c Prejudgment interest where applicable; d. Jury trial; and e For such other relief for which Plaintiffs are justly entitled. Dated this 29'" day of September 2020, Respectfully submitted, ROY & ASSOCIATES, P.A. By: ist: Dave K. Roy, Esq. DAVE K. ROY, ESQ. (FBN $2551) 1665 Palm Beach Lakes Bivd., Suite 101 West Palm Beach, FL 33401 Telephone: (561) 729-0095 Facsimile: (267) 222-6953 E-Service: info@daveroylaw.com