CAUSE NO. v. FALLS COUNTY, TEXAS I. DISCOVERY CONTROL PLAN LEVEL

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1 CAUSE NO. PHYLLIS RAY SHERMAN, INDIVIDUALLY, IN THE DISTRICT COURT OF AS REPRESENTATIVE OF THE ESTATE OF BRANDICE RAY GARRETT, AND AS NEXT FRIEND OF H.D.G., A MINOR CHILD, PLAINTIFFS, v. FALLS COUNTY, TEXAS TEXAS DEPARTMENT OF CRIMINAL JUSTICE, DEFENDANT. JUDICIAL DISTRICT PLAINTIFFS ORIGINAL PETITION AND REQUEST FOR DISCLOSURE TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES, PHYLLIS RAY SHERMAN, INDIVIDUALLY, AS REPRESENTATIVE OF THE ESTATE OF BRANDICE RAY GARRETT, DECEASED, AND AS NEXT FRIEND OF H.D.G., A MINOR CHILD, AND ROBERT LLOYD SHERMAN AND ON BEHALF OF ALL WRONGFUL DEATH BENEFICIARIES ( Plaintiffs ) complaining of THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE (the TDCJ or Defendant ) and files this PLAINTIFFS ORIGINAL PETITION AND REQUEST FOR DISCLOSURE and in furtherance thereof would respectfully show unto the Court as follows: I. DISCOVERY CONTROL PLAN LEVEL 1. Plaintiffs intend that discovery be conducted under Discovery Level 3 of the Texas Rules of Civil Procedure. II. PARTIES AND SERVICE 2. Plaintiff Phyllis Ray Sherman, individually, as representative of the Estate of Brandice Ray Garrett, deceased, and as next friend of H.D.G., a minor child, and on behalf of all PLAINTIFFS ORIGINAL PETITION & REQUEST FOR DISCLOSURE Page 1 of 13

2 wrongful death beneficiaries is an individual resident of Texas and may be served at 205 Valley Brook Drive, LaPorte, Harris County, Texas Defendant TDCJ is a state agency which may be served with process by serving its Executive Director, Brad Livingston at 209 W. 14 th Street, 5 th Floor, Price Daniel Building, Austin, Texas See TEX. CIV. PRAC. & REM. CODE (c); TEX. GOV T CODE (d). III. JURISDICTION AND VENUE 4. The Court has jurisdiction over this matter as this is an action for damages in excess of the minimum jurisdictional limits of the Court. Plaintiff seeks more than $1,000,000 in damages. Venue is proper in Falls County, Texas because all or a substantial part of the events or omissions giving rise to this lawsuit occurred in Falls County, Texas. TEX. CIV. PRAC. & REM. CODE (a), (a). IV. FACTS 5. The Texas Department of Criminal Justice uses prison inmates to drive commercial vehicles throughout the state of Texas. At any given time, forty (40) or more prison inmates are assigned to freight transportation by the TDCJ and are driving large commercial tractor trailers on Texas highways. Texas is one of only three states in the United States that use prison inmates serving sentences to drive commercial vehicles on state highways. Proponents of this program claim that using prison labor helps to keep operating costs down. Unfortunately, this ill-conceived, thoughtless and offensive program cost at least one Texas citizen their own life. 6. Venson Vankeyson Williams ( Inmate Williams or Williams ) is a prisoner at the Texas State Penitentiary in Huntsville, Texas. Most recently, Williams is serving a five-year sentence for credit card fraud and theft. This was neither Williams first offense or first time serving time in prison. Williams had previously worked as a driver for the Texas Department of Criminal Justice PLAINTIFF S ORIGINAL PETITION & REQUEST FOR DISCLOSURE Page 2 of 13

3 when he was on parole for prior offenses. Apparently undeterred by Williams continued life of crime, the TDCJ continued to employ and/or use Williams as a commercial driver when he was reincarcerated for his most recent criminal offenses. 7. In January 2016, Inmate Williams was in the control, supervision and/or custody of the Texas Department of Criminal Justice and was required to perform services outside of the state prison. While in the control, supervision and/or custody of the Texas Department of Criminal Justice, Williams was required by the TDCJ to, amonshermang other things, drive commercial trucks and trailers on highways in and throughout the state of Texas. 8. On January 8, 2016, Inmate Williams while acting under the supervision of the Texas Department of Criminal Justice, was driving a 2014 White Volvo Tractor Trailer, VIN No. 4V4NC9EJ4EN (the Truck ) west on State Highway 7 in Falls County, Texas. The Truck was owned by the Texas Department of Criminal Justice and, on information and belief, regularly used as part of their operation. While traveling in a no passing zone, Inmate Williams moved onto the wrong side of the roadway in an attempt to pass another vehicle. While on the wrong side of the roadway, Inmate Williams ran his tractor trailer head-on in to a Nissan sedan who was traveling the opposite direction in the eastbound lane. The Nissan sedan struck head on by Inmate Williams Truck and trailer was being driven by Brandice Ray Garrett ( Garrett ). 9. As a result of the incident and the preceding negligence of Defendant, Garrett was caused to suffer serious, life threatening and permanent injuries and ultimately her death for which Defendant should be held responsible. Garrett was 43 years old when she died. She was survived by her parents and her son. V. NEGLIGENCE OF INMATE WILLIAMS 10. Plaintiffs hereby incorporate all preceding paragraphs and further allege as follows. PLAINTIFF S ORIGINAL PETITION & REQUEST FOR DISCLOSURE Page 3 of 13

4 11. In Texas, drivers must follow the Rules of the Road in order to prevent death and destruction on the roadway. 12. A driver is never allowed to needlessly endanger other motorists on the roadway. If a driver needlessly endangers another motorist, and as a result the motorist is injured, the driver must be held responsible. 13. A driver must always keep a proper lookout in order to protect the public. If a driver fails to keep a proper lookout, and as a result someone is injured, the driver must be held responsible. 14. A driver must always keep a safe distance from the vehicles in front of them to prevent causing serious injury or death to other drivers. If a driver fails to keeps a safe distance from vehicles in front of them, and as a result another motorist is injured, the driver must be held responsible. 15. January 8, 2016, Inmate Williams operated a commercial vehicle in a negligent manner and violated the duty which Williams owed Plaintiffs to exercise ordinary care in the operation of said motor vehicle in at least one of the following particulars: (1) Needlessly endangering Brandice Ray Garrett by operating his vehicle on the wrong side of the roadway; (2) Driving on the wrong side of the roadway [Tex. Transp. Code ]; (3) Failing to provide room for a vehicle traveling in the opposite direction on a roadway [Tex. Transp. Code ]; (4) Driving on the left side of the center of the roadway when unauthorized and while not free of approaching traffic [Tex. Transp. Code ]; (5) Failing to obey the directions or instructions of a traffic control device or roadway markings [Tex. Transp. Code ]; (6) Driving his vehicle in a manner that is in willful or wanton disregard for the safety of persons or property [Tex. Transportation Code, ]; PLAINTIFF S ORIGINAL PETITION & REQUEST FOR DISCLOSURE Page 4 of 13

5 (7) In failing to maintain a proper lookout while operating a motor vehicle, as would have been done by a very cautious person exercising a high degree of prudence under the same or similar circumstances; (8) Failing to observe, in a careful and intelligent manner, traffic and the general situation in the vicinity, including the speed and proximity of other vehicles while driving; (9) In failing to keep the vehicle he was driving under proper control, as would have been done by a very cautious person exercising a high degree of prudence under the same or similar circumstances; (10) Failing to apply his brakes in a reasonable and timely fashion; (11) In failing to turn his vehicle in another direction to avoid an impending collision, as would have been done by a very cautious person exercising a high degree of prudence under the same or similar circumstances; and (12) Other acts of negligence and violations of subchapters and subsections of the Texas Transportation Code, Title VII, which violations of statute constitute negligence per se. 16. Each of these acts and omissions occurring separately or in combination constituted negligence and proximately caused the collision and Plaintiffs injuries and damages. VI. NEGLIGENCE OF THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE 17. Plaintiffs hereby incorporate all preceding paragraphs and further allege as follows. 18. Governments who place commercial vehicles on the roadway must always hire or employ qualified drivers. If a government fails to do so, and as a result someone is injured, the government must be held responsible. 19. Governments who place commercial vehicles on the roadway must always properly train their drivers. If a government fails to do so, and as a result someone is injured, the government must be held responsible. 20. Governments who place commercial vehicles on the roadway must always properly supervise their drivers. If a government fails to do so, and as a result someone is injured, the government must be held responsible. PLAINTIFF S ORIGINAL PETITION & REQUEST FOR DISCLOSURE Page 5 of 13

6 21. Defendant committed acts and omissions of negligence, violating the duty which Defendant owed Plaintiffs to exercise ordinary care in the ownership, maintenance and operation of a commercial motor vehicle and/or as motor carriers engaged in interstate commerce in at least one of the following particulars: Williams. (1) Failing to hire qualified drivers; (2) Failing to properly train drivers of commercial vehicles; (3) Failing to have safety policies and procedures for its drivers; and (4) Failing to properly supervise drivers of commercial vehicles. 22. The Texas Department of Criminal Justice negligently entrusted the Truck to Inmate 23. Each of the foregoing acts and omissions occurring separately or in combination constituted negligence and proximately caused the collision and Plaintiffs injuries and damages. VII. NEGLIGENCE PER SE 24. Plaintiffs hereby incorporate all preceding paragraphs and further allege as follows. 25. Plaintiffs contends that Defendant s conduct violated the Texas Transportation Code Annotated and other statutes governing the operation of motor vehicles in the State of Texas. Violations of those statutes are negligence per se and that negligence proximately caused the collision and Plaintiffs injuries. 26. For example, on the occasion in question, Defendant s conduct described herein constituted an unexcused breach of duty imposed by TEX. TRANSP. CODE ANN which states: An operator shall control the speed of the vehicle as necessary to avoid colliding with another person or vehicle that is on or entering the highway in compliance with law and the duty of each person to use due care. PLAINTIFF S ORIGINAL PETITION & REQUEST FOR DISCLOSURE Page 6 of 13

7 27. Also by way of example, on the occasion in question, Defendant s conduct described herein constituted an unexcused breach of the duty imposed by TEX. TRANSP. CODE ANN which states: An operator on a roadway of a sufficient width shall drive on the right half of the roadway. 28. Also by way of example, on the occasion in question, Defendant s conduct described herein constituted an unexcused breach of the duty imposed by TEX. TRANSP. CODE ANN which states: An operator moving in the opposite direction of the movement of another operator shall move to or remain to the right. 29. Each of such acts and omissions by Defendant, singularly or in combination with others, constituted negligence per se by Defendant. VIII. GROSS NEGLIGENCE 30. Plaintiffs hereby incorporate all preceding paragraphs and further allege as follows 31. On the day in question, Inmate Williams was driving a commercial truck and trailer on a 2-lane road on the left-hand side of the roadway in a no-passing zone around a curve in the roadway. Williams would have been subjectively aware of the extremely dangerous nature of his acts, yet demonstrated a callous disregard for safety or human life by continuing to drive on the lefthand side of the roadway in a no passing zone around a curve in the roadway. Any objective or reasonable person would view this method of driving as extremely reckless, unsafe and likely to cause serious injury or death. 32. Unfortunately, Inmate Williams should never have been driving a commercial vehicle on the day in question. Williams had been incarcerated in state prisons on multiple occasions for various crimes. While on parole for one crime, the Texas Department of Criminal Justice began employing and/or using Williams as a commercial truck driver. While employed by the Texas PLAINTIFF S ORIGINAL PETITION & REQUEST FOR DISCLOSURE Page 7 of 13

8 Department of Criminal Justice and on parole for prior crimes, Williams was placed back into prison for additional felony offenses, including fraud and theft. 33. Inexplicably, even after being placed back into a state prison, the Texas Department of Criminal Justice knowingly continued to use now Inmate Williams as a commercial truck driver. The Texas Department of Criminal Justice directed, controlled, trained and supervised Inmate Williams, requiring Williams to operate a commercial vehicle on a Texas highway. Inmate Williams outrageous and extremely dangerous operation of a commercial motor vehicle in total disregard of the rights and safety of Plaintiffs and the public should have come as no surprise and, in fact, should have been the expected result of their callous actions. 34. The Texas Department of Criminal Justice knew or should have known that their dangerous and outrageous practice of employing prison inmates as commercial drivers would ultimately result in injuries and/or death to members of the public. The behavior of the TDCJ is both shocking and offensive to the general public, most of whom are completely unaware that there are prison inmates driving commercial trucks on highways throughout the state of Texas at the request and for the benefit of the Texas Department of Criminal Justice. This deplorable behavior has resulted in unnecessary injuries, death and personal property damage to Plaintiffs. 35. The conduct of Defendant was reckless and grossly negligent, and such conduct was a proximate and producing cause of the damages claimed herein. Accordingly, Plaintiffs seek and are entitled to recover exemplary damages in addition to their actual damages. IX. STATUTORY AND COMMON LAW RESPONDEAT SUPERIOR 36. Plaintiffs hereby incorporate all preceding paragraphs and further allege as follows. 37. The Texas Department of Criminal Justice is responsible for negligent acts of prisoners and/or inmates. According to the TEX. PRAC. & REM. CODE, PLAINTIFF S ORIGINAL PETITION & REQUEST FOR DISCLOSURE Page 8 of 13

9 The Department of Criminal Justice is liable for property damage, personal injury and death proximately caused by the wrongful act or omission or the negligence of an inmate or state jail defendant housed in a facility operated by the department if: (1) The property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; (2) The inmate or defendant would be personally liable to the claimant for the property damage, personal injury, or death according to Texas law where the inmate or defendant a private person acting in similar circumstances; and (3) The act, omission, or negligence was committed by the inmate or defendant acting in the course and scope of a task or activity that: (A) The inmate or defendant performed at the request of an employee of the department; and (B) The inmate or defendant performed under the control or supervision of the department. TEX. PRAC. & REM. CODE (a). In this case, the Texas Department of Criminal Justice is clearly responsible for the acts and omissions of Inmate Williams whose operation of the Truck caused the injuries and death complained of. 38. The Texas Department of Criminal Justice is liable for the above mentioned acts and omissions of Inmate Williams, who at all relevant times was acting in the course and scope of a task or activity performed at the request of an employee of the TDCJ and who was under the control or supervision of the TDCJ. Plaintiffs also invoke the common law doctrines of agency liability, respondeat superior and/or vicarious liability for the acts and omissions of Inmate Williams. 39. The Texas Department of Criminal Justice are liable for the wrongful actions and omissions of its current and former employees, agents and prisoners under Texas law and should be held liable for every act and omission of Inmate Williams and any and all damages resulting therefrom. PLAINTIFF S ORIGINAL PETITION & REQUEST FOR DISCLOSURE Page 9 of 13

10 X. SURVIVAL ACTION 40. Plaintiffs Phyllis Ray Sherman and Robert Sherman are the surviving parents of Brandice Ray Garrett, deceased. H.D.G. is the lone surviving child of Brandice Ray Garrett. 41. The decedent had a cause of action for personal injury to her person before she died, which she would have been entitled to bring if she had lived, as she was aware of impending death and suffered actual and conscious physical pain and mental anguish. 42. The wrongful acts of the Texas Department of Criminal Justice, including those of Inmate Williams, caused the decedent s injuries and death, as set forth specifically above. 43. Brandice Ray Garrett suffered actual injuries, as set forth below, and her estate is entitled to actual and exemplary damages for the negligence and gross negligence of the Texas Department of Criminal Justice. XI. PLAINTIFFS DAMAGES 44. Plaintiffs hereby incorporate all preceding paragraphs and further allege as follows. 45. Plaintiff Phyllis Ray Sherman, a mother, now seeks compensation for the following: a. Loss of Consortium in the past as the result of the death of Brandice Ray Garrett, her daughter; b. Loss of Consortium reasonably anticipated in the future as a result of the death of Brandice Ray Garrett, her daughter; c. Mental anguish in the past; d. Mental anguish reasonably anticipated in the future; and e. Any other pecuniary or non-economic losses of Phyllis Ray Sherman or of any other wrongful death beneficiaries as the result of the loss of Brandice Ray Garrett. 46. Plaintiff Phyllis Ray Sherman, on behalf of the estate of Brandice Ray Garrett, now seeks compensation for the following: PLAINTIFF S ORIGINAL PETITION & REQUEST FOR DISCLOSURE Page 10 of 13

11 a. Conscious Pain and Suffering of Brandice Ray Garrett; b. Mental anguish of Brandice Ray Garrett; c. Medical, funeral and burial expenses of Brandice Ray Garrett; and d. Any other pecuniary losses of the estate of Brandice Ray Garrett as the result of the incident and/or of her death. 47. Plaintiff Phyllis Ray Sherman, as next friend of H.D.G., a minor, now seeks compensation for the following: a. Loss of wage earning capacity in the past; b. Loss of wage earning capacity reasonably anticipated in the future; c. Loss of Consortium in the past as the result of the death of Brandice Ray Garrett, his mother; d. Loss of Consortium reasonably anticipated in the future as a result of the death of Brandice Ray Garrett, his mother; e. Mental anguish in the past; f. Mental anguish reasonably anticipated in the future; and g. Any other pecuniary losses of H.D.G. as the result of the loss of his mother, Brandice Ray Garrett. XII. EXEMPLARY DAMAGES 48. Plaintiffs hereby incorporate all preceding paragraphs and further allege as follows. 49. The negligence of Defendant described above occurred as a result of the type of conscious indifference and reckless disregard toward the safety of others as to allow for the award of exemplary or punitive damages under Texas law. Such conduct, as described more fully herein constitutes gross negligence. As a result, Plaintiffs hereby make a claim for exemplary or punitive damages against Defendant. Plaintiffs seek exemplary damages in an amount that may be found by the trier of fact. PLAINTIFF S ORIGINAL PETITION & REQUEST FOR DISCLOSURE Page 11 of 13

12 Petition. XIII. JURY DEMAND 50. Plaintiffs demands a jury trial and tender the appropriate fee with this its Original XIV. REQUEST FOR DISCLOSURE TO DEFENDANT 51. Pursuant to TEXAS RULE OF CIVIL PROCEDURE 194, Defendant is requested to disclose, within fifty (50) days of service of this request, any and all information or material described in TEXAS RULE OF CIVIL PROCEDURE (a)-(l). XV. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiffs respectfully pray that Defendant be cited to appear and answer herein, and that upon a final hearing of the cause, judgment be entered for Plaintiffs against Defendant for damages in an amount within the jurisdictional limits of this Court; together with pre-judgment interest at the maximum rate allowed by law; post-judgment interest at the legal rate, costs of court; and, such other and further relief to which Plaintiffs may be entitled at law or in equity. PLAINTIFF S ORIGINAL PETITION & REQUEST FOR DISCLOSURE Page 12 of 13

13 Respectfully submitted, JOHNSON HOBBS SQUIRES, LLP /s/ Ryan C. Johnson Rod S. Squires State Bar No Ryan C. Johnson State Bar No The Roosevelt Tower 400 Austin Avenue, Suite 903 Waco, Texas (254) (866) (facsimile) AND Michael Zimmerman State Bar No LAW OFFICES OF ZIMMERMAN, ZIMMERMAN, COTNER, LEJEUNE & RESSETAR A Professional Corporation 3501 West Waco Drive Waco, Texas (254) (254) (facsimile) mzimmerman@thezimmermanlawfirm.com ATTORNEYS FOR PLAINTIFFS PLAINTIFF S ORIGINAL PETITION & REQUEST FOR DISCLOSURE Page 13 of 13