11/9/2017 9:48 AM 17CV48960 IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF DESCHUTES. Case No.
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1 11/9/2017 9:48 AM 17CV IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF DESCHUTES 8 MELISSA GOTTLIEB, an individual, and A.G., a minor, by and through his natural 9 parent and guardian, Melissa Gottlieb, V. Plaintiffs, 12 MT. BACHELOR, LLC, an Oregon Limited Liability Company; 13 SUNG CHOI, individually and as an employee and agent of Mt. Bachelor, LLC; 14 JEFF KENNEY, individually and as an employee and agent of Mt. Bachelor, LLC; 15 BRYAN FITZGERALD, individually and as an employee and agent of Mt. Bachelor, 16 LLC; and RICHARD DAVIS, individually and as an 17 employee and agent of Mt. Bachelor, LLC, Case No. COMPLAINT FOR DAMAGES (Negligence) (Negligence, False Arrest, False Imprisonment, Intentional Infliction of Emotional Distress; future request for punitive damages) Claim NOT Subject to Mandatory Arbitration. Filing Fee: $ (ORS ) DEMAND FOR JURY TRIAL Defendants. Plaintiffs, Melissa Gottlieb and A.G, state for their complaint the following: Common Facts 1. The matters giving rise to this Complaint occurred in Deschutes County, Oregon. Defendant, Mt. Bachelor, LLC, ("Defendant Mt. Bachelor") is an Oregon Limited Liability COMPLAINT
2 Company with its principal place of business located at SW Century Drive, Bend, Deschutes County, Oregon Defendant Mt. Bachelor owns and operates a ski resort known as "Mt. Bachelor," and at all material times was and is conducting business in Deschutes County, Oregon. Plaintiffs allege that Defendant Mt. Bachelor is vicariously liable for the actions and conduct of its agents and employees alleged herein. 3. Defendant Sung Choi was at all times material to this Action an employee and agent of Defendant Mt. Bachelor acting within the scope and course of her employment. Defendant Choi resides in Deschutes County, Oregon, and/or the matters giving rise to this Complaint occurred in Deschutes County, Oregon. 4. Defendant Jeff Kenney was at all times material to this Action an employee and agent of Defendant Mt. Bachelor acting within the scope and course of his employment as the manager of rentals. Defendant Kenney resides in Deschutes County, Oregon, and/or the matters giving rise to this Complaint occurred in Deschutes County, Oregon. 5. Defendant Bryan Fitzgerald was at all times material to this Action an employee and agent of Defendant Mt. Bachelor acting within the scope and course of his employment as a security officer. Defendant Fitzgerald resides in Deschutes County, Oregon, and/or the matters giving rise to this Complaint occurred in Deschutes County, Oregon. 2 - COMPLAINT
3 Defendant Richard Davis was at all times material to this Action an employee and agent of Defendant Mt. Bachelor acting within the scope and course of his employment as a security officer. Defendant Davis resides in Deschutes County, Oregon, and/or the matter giving rise to this Complaint occurred in Deschutes County, Oregon. Defendants Richard Davis and Bryan Fitzgerald are hereinafter sometimes referred to as, the "Security Guard Defendants." 7. At all times material hereto, Defendant Mt. Bachelor acted by and through its agents, including, but not limited to, Sung Choi, Jeff Kenney, Bryan Fitzgerald, and Richard Davis. 8. On January 9, 2016, Plaintiffs purchased a pair of used Salomon Focus skis (the "Subject Skis") from the Gear Peddler in Bend, Oregon. The Subject Skis were previously owned by Defendant Mt. Bachelor, who rented them out to its customers. The Gear Peddler purchased the Subject Skis from Defendant Mt. Bachelor, and then sold the Subject Skis to Plaintiffs. 9. Plaintiff A.G. used the Subject Skis at Mt. Bachelor during the remainder of the 2015/2016 ski season and had the Subject Skis tuned and/or waxed by Defendant Mt. Bachelor without incident. 10. Plaintiff A.G. was at all times material a season pass holder at Mt. Bachelor. On December 30, 2016, Plaintiff A.G. went to Mt. Bachelor for a day of skiing. Upon arriving, he took the Subject Skis into Mt. Bachelor's facilities to be waxed by one of Mt. Bachelor's ski technicians. 3 - COMPLAINT
4 When the technician looked at the Subject Skis he immediately brought them to the attention of Defendant Kenney. Defendant Kenney then, in public, told Plaintiff A.G. and others that the Subject Skis were the property of Defendant Mt. Bachelor and did not belong to Plaintiff A.G. Defendant Kenney then forcibly took the Subject Skis from Plaintiff A.G. and accused Plaintiff A.G. of stealing the Subject Skis loudly and in the presence of others, calling for the Security Guard Defendants. 12. Defendant Kenney, with the assistance of and presence of the authority of the Security Guard Defendants in close proximity, told A.G. that the police had been called to deal with him and that he was not permitted to leave until the police arrived and he spoke with the police. 13. Defendant Choi, also with the presence and authority of the Security Guard Defendants, directed Plaintiff A.G. to sit near the lockers and to wait for police, forbidding him to leave. 14. Plaintiff A.G. explained to Defendant Choi that the Subject Skis were purchased from the Gear Peddler in Bend, Oregon, and were used during the ski season and belonged to Plaintiffs. Defendant Choi, in the presence of the Security Guard Defendants, publicly called Plaintiff A.G. a liar and a thief, told Plaintiff A.G. that he had stolen the Subject Skis, and told him that he was not free to leave until the police came and took care of the matter. Defendant Choi told the Security Guard Defendants to watch Plaintiff A.G., and to not let him leave. 4-COMPLAINT
5 Plaintiff A.G. then telephoned his mother, Plaintiff Melissa Gottlieb, who drove to Mt. Bachelor. When she arrived, she told Defendant Choi that Plaintiffs purchased the Subject Skis from the Gear Peddler. Defendant Choi, however, in front of Plaintiff A.G. and others, called Plaintiff Melissa Gottlieb a thief and a liar, and accused her of stealing the Subject Skis from Defendant Mt. Bachelor. 16. Defendant Choi told Plaintiff Melissa Gottlieb, with the presence and authority of the Security Guard Defendants, that she also could not leave until the police came. The Security Guard Defendants then also told Plaintiff Melissa Gottlieb that Plaintiffs could not leave and throughout the encounter shadowed her movements. 17. The Subject Skis had a bar code on the edge that could be used to confirm whether or not they remained in Defendant Mt. Bachelor's service. Plaintiff Melissa Gottlieb implored Defendant Choi to review Defendant Mt. Bachelor's records to verify whether or not the Skis were sold to the Gear Peddler and were no longer in Defendant Mt. Bachelor's service. Defendant Choi repeatedly said she knew Plaintiff's had stolen the Subject Skis, and continued to call Plaintiff Melissa Gottlieb a thief and a liar in front of numerous other patrons, Plaintiff A.G., and others. 18. Plaintiff Melissa Gottlieb called the Gear Peddler in Bend, Oregon, where she had purchased the Subject Skis. The employee at the Gear Peddler quickly pulled up records of the purchase of the Subject Skis from Defendant Mt. Bachelor and their subsequent sale to Plaintiffs. Plaintiff Melissa Gottlieb's husband then traveled to the Gear Peddler, took a screen shot of the transactions and sent them to Plaintiff Melissa 5 - COMPLAINT
6 1 Gottlieb. Contemporaneously, the Gear Peddler employee offered to speak with 2 Defendant Choi to resolve the situation Plaintiff Melissa Gottlieb requested Defendant Choi review the screen shot and 5 talk with the Gear Peddler employee. Defendant Choi refused to review the screen shot and refused to speak with the representative of the Gear Peddler, telling Plaintiff Melissa Gottlieb to tell it to the police and calling her a criminal. 20. The Defendants summoned sheriff's deputies to the scene and told them that Plaintiffs were liars and thieves and that they had stolen the Subject Skis. The deputies interviewed Plaintiffs at length, spoke with the Gear Peddler, and reviewed the screen shot. Ultimately, the deputies determined that Plaintiffs had not stolen the Subject Skis, but had in fact purchased them from the Gear Peddler. 21. The events described above took place in the presence of other patrons and employees of Defendant Mt. Bachelor. FIRST CLAIM FOR RELIEF: Count 1-Melissa Gottlieb Negligence 22. Plaintiffs hereby incorporate by reference paragraphs 1-21, supra, as if fully restated herein. 23. Defendants created a foreseeable risk of harm and were negligent in one or more of the following ways: (1) by failing to properly record information regarding the Subject Skis having been taken out of service and/or sold to third parties; (2) by failing to review logs and records regarding ski equipment taken out of service and/or sold to 6-COMPLAINT
7 1 third persons when third persons present with ski equipment of the same type used by 2 Defendant Mt. Bachelor; and (3) by accusing persons of theft, of being liars and 3 criminals, directing them not to leave, without properly investigating or verifying the 4 ownership of ski equipment including by way of the Security Guard Defendants Defendants knew, or should have known, of the risk of harm caused to Plaintiffs 7 by the failure to properly log and record ski equipment taken out of inventory and sold to 8 third parties; by the failure to verify whether such equipment has been sold to a third 9 party; and by accusing persons of theft without verification of ownership of equipment On or about December 30, 2017, Defendants breached their duty of care by 12 failing to properly record the fact that the Subject Skis had been taken out of inventory 13 and sold to a third party; by failing to verify whether such equipment had been sold to a 14 third party; and by accusing Plaintiff of theft of ski equipment, arresting her, and 15 imprisoning her without investigating and verifying whether the Subject Skis had been 16 removed from Defendant Mt. Bachelor's inventory and sold to a third party Defendants' actions described herein were unreasonable in light of the risk of 19 injury and damage to the person of others, including the risk of emotional distress and 20 trauma, embarrassment, and deprivation of liberty As a direct and foreseeable result of Defendants' conduct, Plaintiff Melissa 23 Gottlieb suffered deprivation of liberty, extreme mental anguish/trauma, anxiety, 24 embarrassment, and contempt and public ridicule. 25 I I I 26 Ill 7-COMPLAINT
8 As a direct and foreseeable result of Defendants' conduct, Plaintiff Melissa 3 Gottlieb has suffered personal injury and non-economic damages in an amount to be 4 proven at trial, but not to exceed the sum of $50,000.00, which represents damages for 5 deprivation of liberty and mental anguish As a direct and foreseeable result of Defendants' conduct, Plaintiff has suffered 8 economic damages in an amount to be proven at trial, but not to exceed the sum of 9 $1,000.00, which represents damages for reasonable and necessary medical expenses 10 in the form of counseling. 11 FIRST CLAIM FOR RELIEF: Count 2-Melissa Gottlieb 12 False Arrest Plaintiffs hereby incorporate by reference paragraphs 1-29, supra, as if fully 15 restated herein On or about December 30, 2016, Defendants' wrongly accused Plaintiff of theft of 18 the Subject Skis Thereafter, Defendants, intending to arrest and confine Plaintiff, did under the 21 color of authority and through the aid of the Defendant Security Guards, arrest and 22 confine Plaintiff Melissa Gottlieb and ordered her not to leave until police arrived The arrest and confinement was unlawful. 25 Ill 26 Ill 8 - COMPLAINT
9 Plaintiff Melissa Gottlieb, being fully aware of her arrest and confinement, and as 3 a direct and foreseeable result of Defendants' conduct, suffered personal injury and 4 non-economic damages in an amount to be proven at trial, but not to exceed the sum of 5 $50,000.00, which represents damages for deprivation of liberty and mental anguish The Plaintiff, being fully aware of her arrest and confinement, and as a direct and 8 foreseeable result of Defendants' conduct, suffered economic damages in an amount to 9 be proven at trial, but not to exceed the sum of $1,000.00, which represents damages 10 for reasonable and necessary medical expenses. 11 FIRST CLAIM FOR RELIEF: Count 3-Melissa Gottlieb 12 False Imprisonment Plaintiffs hereby incorporate by reference paragraphs 1-35, supra, as if fully 15 restated herein The Plaintiff, being fully aware of her arrest and confinement, and as a direct and 18 foreseeable result of Defendants' conduct, suffered personal injury and non-economic 19 damages in an amount to be proven at trial, but not to exceed the sum of $50,000.00, 20 which represents damages for deprivation of liberty and mental anguish The Plaintiff, being fully aware of her arrest and confinement, and as a direct and 23 foreseeable result of Defendants' conduct, suffered economic damages in an amount to 24 be proven at trial, but not to exceed the sum of $1,000.00, which represents damages 25 for reasonable and necessary medical expenses. 26 Ill 9 - COMPLAINT
10 1 FIRST CLAIM FOR RELIEF: Count 4-Melissa Gottlieb 2 Intentional Infliction of Emotion Distress Plaintiffs hereby incorporate by reference paragraphs 1-38, supra, as if fully 5 restated herein On or about December 30, 2016, Defendants, Choi and Kenney, intending to 8 inflict severe mental or emotional distress, or in such a manner that the distress was 9 certain or substantially certain to result from Defendants' conduct, while Plaintiff was in 1 O the presence of her minor son and other persons, repeatedly yelled at Plaintiff, called 11 her a liar, a thief, and with the aid of the Security Guard Defendants intimidated Plaintiff 12 and falsely arrested and confined her in a place observable to the general public, which 13 incident was observed by multiple other persons Said Defendants' conduct, as alleged above, caused Plaintiff severe mental and 16 emotional distress, loss of sleep, loss of self-dignity, public ridicule, embarrassment, 17 anxiety, excessive worry, and mental anguish The Defendants' conduct as stated above consisted of an extraordinary 20 transgression of the bounds of socially tolerable conduct and/or exceeded any 21 reasonable limit of social toleration As a direct and foreseeable result of Defendants' conduct, Plaintiff suffered 24 severe emotional distress beyond what any reasonable person could tolerate. Plaintiff 25 suffered non-economic damages in an amount to be proven at trial, but not to exceed 26 the sum of $50,000.00, which represents damages for severe emotional distress COMPLAINT
11 As a direct and foreseeable result of Defendants' conduct, Plaintiff has suffered 3 economic damages in an amount to be proven at trial, but not to exceed the sum of 4 $1,000.00, which represents damages for reasonable and necessary medical expenses. 5 FIRST CLAIM FOR RELIEF: Count 5-Melissa Gottlieb 6 Slander Plaintiffs hereby incorporate by reference paragraphs 1-44, supra, as if fully 9 restated herein On or about December 30, 2016, Defendants Sung Choi and Jeff Kenney, as 12 employees and agents of Defendant Mt. Bachelor, LLC, made multiple statements 13 about Plaintiff Melissa Gottlieb, impugning acts of moral turpitude on Plaintiff, including 14 but not limited to, accusing Plaintiff of theft and lying The statements were repeatedly stated aloud in a place of public accommodation 17 and in the presence of multiple persons The statements were false and tended to subject Plaintiff to hatred, contempt, 20 ridicule, and diminished her self-esteem, respect, good will, and confidence in the 21 community. The statements were defamatory per se As a direct and foreseeable result of Defendants' conduct, Plaintiff suffered 24 humiliation, damage to reputation, ridicule, and severe emotional distress beyond what 25 any reasonable person could tolerate and non-economic damages in an amount to be 26 proven at trial, but not to exceed the sum of $50, COMPLAINT
12 1 FIRST CLAIM FOR RELIEF: Count 1-Plaintiff A.G. 2 Negligence Plaintiffs hereby incorporate by reference paragraphs 1-49, supra, as if fully 5 restated herein On or about December 30, 2017, Defendants breached their duty of care by 8 failing to properly record the fact that the Subject Skis had been taken out of inventory 9 and sold to a third party; by failing to verify whether such equipment had been sold to a 10 third party; and by accusing Plaintiff of theft of ski equipment, arresting him, and 11 imprisoning him without investigating and verifying whether the Subject Skis had been 12 removed from Mt. Bachelor's inventory and sold to a third party As a direct and foreseeable result of Defendants' conduct, Plaintiff suffered 15 deprivation of liberty, extreme mental anguish/trauma, anxiety, embarrassment, and 16 public ridicule As a direct and foreseeable result of Defendants' conduct, Plaintiff has suffered 19 non-economic damages in an amount to be proven at trial, but not to exceed the sum of 20 $75,000.00, which represents damages for deprivation of liberty and mental anguish As a direct and foreseeable result of Defendants' conduct, Plaintiff has suffered 23 economic damages in an amount to be proven at trial, but not to exceed the sum of 24 $2,000.00, which represents damages for reasonable and necessary medical expenses 25 for counseling. 26 Ill 12 - COMPLAINT
13 1 FIRST CLAIM FOR RELIEF: Count 2-Plaintiff A.G 2 False Arrest Plaintiffs hereby incorporate by reference paragraphs 1-54, supra, as if fully 5 restated herein The Plaintiff, being fully aware of his arrest and confinement, and as a direct and 8 foreseeable result of Defendants' conduct, suffered personal injury in the form of severe 9 emotional distress and non-economic damages in an amount to be proven at trial, but 10 not to exceed the sum of $75,000.00, which represents damages for deprivation of 11 liberty and mental anguish The Plaintiff, being fully aware of his arrest and confinement, and as a direct and 14 foreseeable result of Defendants' conduct, suffered economic damages in an amount to 15 be proven at trial, but not to exceed the sum of $2,000.00, which represents damages 16 for reasonable and necessary medical expenses. 17 FIRST CLAIM FOR RELIEF: Count 3-Plaintiff A.G. 18 False Imprisonment Plaintiffs hereby incorporate by reference paragraphs 1-57, supra, as if fully 21 restated herein The Plaintiff, being fully aware of his arrest and confinement, and as a direct and 24 foreseeable result of Defendants' conduct, suffered personal injury and non-economic 25 damages in an amount to be proven at trial, but not to exceed the sum of $75,000.00, 26 which represents damages for deprivation of liberty and mental anguish. 13- COMPLAINT Telephone: /Fax:
14 The Plaintiff, being fully aware of his arrest and confinement, and as a direct and 3 foreseeable result of Defendants' conduct, suffered economic damages in an amount to 4 be proven at trial, but not to exceed the sum of $2,000.00, which represents damages 5 for reasonable and necessary medical expenses for counseling. 6 FIRST CLAIM FOR RELIEF: Count 4-Plaintiff A.G. 7 Intentional Infliction of Emotion Distress Plaintiffs hereby incorporate by reference paragraphs 1-60, supra, as if fully 1 O restated herein On or about December 30, 2016, the Defendants, intending to inflict severe 13 mental or emotional distress, or in such a manner that the distress was certain or 14 substantially certain to result from the Defendants' conduct, while Plaintiff was in the 15 presence of other persons, Defendants Choi and Kenney repeatedly yelled at Plaintiff, 16 called him a liar, and with the aid of the Security Guard Defendants intimidated Plaintiff 17 and falsely arrested and confined him in a place observable to the general public, which 18 incident was observed by multiple other persons The Defendants' conduct, as alleged above, caused the Plaintiff severe mental 21 and emotional distress, loss of sleep, loss of self-dignity, public ridicule, 22 embarrassment, anxiety, excessive worry, and mental anguish The Defendants' conduct as stated above consisted of an extraordinary 25 transgression of the bounds of socially tolerable conduct and/or exceeded any 26 reasonable limit of social toleration COMPLAINT
15 As a direct and foreseeable result of Defendants' conduct, Plaintiff suffered 3 severe emotional distress beyond what any reasonable person could tolerate and non- 4 economic damages in an amount to be proven at trial, but not to exceed the sum of 5 $75,000.00, which represents damages for severe emotional distress As a direct and foreseeable result of Defendants' conduct, Plaintiff has suffered 8 economic damages in an amount to be proven at trial, but not to exceed the sum of 9 $2,000.00, which represents damages for reasonable and necessary medical expenses. 10 FIRST CLAIM FOR RELIEF: Count 4-Plaintiff A.G. 11 Slander Plaintiffs hereby incorporate by reference paragraphs 1-66, supra, as if fully 14 restated herein On or about December 30, 2016, Defendants Sung Choi and Jeff Kenney, as 17 employees and agents of Defendant Mt. Bachelor, LLC, made multiple statements 18 about Plaintiff A.G., impugning acts of moral turpitude on Plaintiff, including but not 19 limited to, accusing Plaintiff of theft and lying The statements were repeatedly stated aloud in a place of public accommodation 22 and in the presence of multiple persons The statements were false and tended to subject Plaintiff to hatred, contempt, 25 ridicule, and diminished his self-esteem, respect, good will, and confidence in the 26 community. The statements were defamatory per se. 15- COMPLAINT
16 As a direct and foreseeable result of Defendants' conduct, Plaintiff suffered 3 humiliation, damage to reputation, ridicule, and severe emotional distress beyond what 4 any reasonable person could tolerate and non-economic damages in an amount to be 5 proven at trial, but not to exceed the sum of $75, NOTICE OF INTENT TO FILE MOTION TO AMEND TO ALLEGE PUNITIVE DAMAGES Plaintiffs give notice of intent to file a motion to seek punitive damages on the 10 grounds Defendants' conduct demonstrates a reckless and outrageous indifference to a 11 highly unreasonable risk of harm and Defendant acted with a conscious indifference to 12 the health, safety and welfare of others. 13 WHEREFORE, Plaintiffs pray for judgment against Defendants as follows: Melissa Gottlieb: For non-economic damages in an amount proven at trial, but not to exceed the sum of $50,000.00; plus economic damages by way of reasonable and necessary medical expenses up to but not exceeding $2,000.00; for costs and disbursements incurred herein and for such other and further relief as may be just and reasonable. 20 I I I I I I 16- COMPLAINT
17 Plaintiff A.G.: For non-economic damages in an amount proven at trial, but not to exceed the sum of $75,000.00; plus economic damages by way of reasonable and necessary medical expenses up to but not exceeding $2,000.00; for costs and disbursements incurred herein and for such other and further relief as may be just and reasonable. DATED this day of November ELLIOTT, RIQUELME & WILSON, LLP /s/ Michael R. Dockery Michael R. Dockery (0SB#145914) m ichael@erwattorneys.com Attorney for Plaintiff COMPLAINT
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