IN THE CIRCUIT COURT FOR LEE COUNTY, ALABAMA

Transcription

1 ELECTRONICALLY FILED 5/3/2018 3:03 PM 43-CV CIRCUIT COURT OF LEE COUNTY, ALABAMA MARY B. ROBERSON, CLERK IN THE CIRCUIT COURT FOR LEE COUNTY, ALABAMA CORRIE and TRACY ANDREWS, ) as Parents and Next Friends of ) SADIE GRACE ANDREWS, deceased, ) ) Plaintiffs, ) CIVIL ACTION NO.: ) v. ) ) TUF-TITE, INC.; J & L CONTRACTORS, ) INC.; FREY MOSS STRUCTURES, INC.; ) BIRMINGHAM HIDE & TALLOW ) COMPANY, INC.; BUDGET ROOTER, ) LLC; EAGLE CREAMERY, INC.; ) BRUSTER S ICE CREAM, INC.; ) BRUSTER S; CITY OF AUBURN; ) JAMES E. SEGREST; et al, ) ) Defendants. ) COMPLAINT STATEMENT OF THE PARTIES 1. Plaintiff, Corrie Andrews, is over the age of nineteen (19) years and is a resident citizen of Lee County, Alabama. 2. Plaintiff, Tracy Andrews, is over the age of nineteen (19) years and is a resident citizen of Lee County, Alabama. 3. Plaintiffs Corrie & Tracy Andrews are the parents and next friends of Sadie Grace Andrews, deceased. 4. Defendant, Tuf-Tite, Inc. (hereinafter Tuf-Tite ) is a foreign corporation doing business in the State of Alabama. Tuf-Tite designed, manufactured, and/or distributed the subject grease interceptor and/or component parts through its whollyowned and controlled subsidiaries and authorized dealers with the express intention and expectation that the subject grease interceptor and/or component parts would be distributed, sold, and/or used in the State of Alabama. Tuf-Tite is subject to the

2 jurisdiction of this Court as it has sufficient contacts with the State of Alabama and engages in continuous and systematic business in the State of Alabama. Tuf-Tite placed the subject grease interceptor and/or component parts into the stream of commerce with the expectation that it would be distributed, sold, or used in the State of Alabama and continues to generate significant profit from its intentional and purposeful business in Alabama. Tuf-Tite has an active website accessible in Alabama which has numerous interactive features through which Tuf-Tite exchanges information with Alabama customers and establishes channels for providing regular advice to Alabama customers. Defendant Tuf-Tite can be served at Schenk Annes Teper Campbell LT, 311 S. Wacker Dr., Suite 2500, Chicago, IL Defendant, J & L Contractors, Inc. (hereinafter J & L ) is believed to be a domestic corporation doing business in the State of Alabama. Defendant J & L Contractors can be served at Jeffrey J. Evans, 729 East Glenn Avenue, Auburn, AL Defendant, Frey Moss Structures, Inc. (hereinafter Frey Moss ) is a foreign corporation doing business in the State of Alabama. Defendant Frey Moss is registered with the Secretary of State of Alabama, does business in the State of Alabama and Lee County, Alabama. Frey Moss designed, manufactured, and/or distributed the subject building, grease interceptor and/or component parts through its wholly-owned and controlled subsidiaries and authorized dealers with the express intention and expectation that the subject building, grease interceptor and/or component parts would be distributed, sold, and/or used in the State of Alabama. Frey Moss is subject to the jurisdiction of this Court as it has sufficient contacts with the State of Alabama and engages in continuous and systematic business in the State of Alabama. Frey Moss placed the subject building, grease interceptor and/or component parts into the stream

3 of commerce with the expectation that it would be distributed, sold, or used in the State of Alabama and continues to generate significant profit from its intentional and purposeful business in Alabama. Frey Moss has an active website accessible in Alabama which has numerous interactive features through which Frey Moss exchanges information with Alabama customers and establishes channels for providing regular advice to Alabama customers. Defendant Frey Moss can be served at Corporation Service Company Inc., 641 South Lawrence Street, Montgomery, AL Defendant, Birmingham Hide & Tallow Company, Inc. (hereinafter Birmingham Hide & Tallow ) is believed to be a domestic corporation doing business in the State of Alabama. Defendant Birmingham Hide & Tallow Company can be served at T. Owen Vickers, 2700 First Avenue North, Birmingham, AL Defendant, Budget Rooter, Inc. (hereinafter Budget Rooter ) is a domestic corporation doing business in the State of Alabama. Defendant Budget Rooter can be served at Matthew Cannon, 1810 Lee Rd 42, Opelika, AL Defendant, Eagle Creamery, Inc. (hereinafter Eagle Creamery ) is a domestic corporation doing business in the State of Alabama. Defendant Eagle Creamery can be served at Linda P. Latham, 1181 Magnolia Lake Circle, Lanett, AL Defendant, Bruster s Ice Cream, Inc. (hereinafter Bruster s Ice Cream ) is believed to be a foreign corporation doing business in the State of Alabama. Bruster s Ice Cream designed, manufactured, and/or distributed the subject building, grease interceptor and/or component parts through its wholly-owned and controlled subsidiaries and authorized dealers with the express intention and expectation that the subject building, grease interceptor and/or component parts would be distributed, sold, and/or used in the State of Alabama. Bruster s Ice Cream is subject to the jurisdiction of this

4 Court as it has sufficient contacts with the State of Alabama and engages in continuous and systematic business in the State of Alabama. Bruster s Ice Cream placed the subject building, grease interceptor and/or component parts into the stream of commerce with the expectation that it would be distributed, sold, or used in the State of Alabama and continues to generate significant profit from its intentional and purposeful business in Alabama. Defendant Bruster s Ice Cream has an active website accessible in Alabama which has numerous interactive features through which Bruster s Ice Cream exchanges information with Alabama customers and establishes channels for providing regular advice to Alabama customers. Defendant Bruster s Ice Cream can be served at 1445 Market St., Bridgewater, PA Defendant, Bruster s (hereinafter Bruster s ) is believed to be a foreign corporation doing business in the State of Alabama. Bruster s designed, manufactured, and/or distributed the subject building, grease interceptor and/or component parts through its wholly-owned and controlled subsidiaries and authorized dealers with the express intention and expectation that the subject building, grease interceptor and/or component parts would be distributed, sold, and/or used in the State of Alabama. Bruster s is subject to the jurisdiction of this Court as it has sufficient contacts with the State of Alabama and engages in continuous and systematic business in the State of Alabama. Bruster s placed the subject building, grease interceptor and/or component parts into the stream of commerce with the expectation that it would be distributed, sold, or used in the State of Alabama and continues to generate significant profit from its intentional and purposeful business in Alabama. Defendant Bruster s has an active website accessible in Alabama which has numerous interactive features through which Bruster s exchanges information with Alabama customers and establishes channels for providing

5 regular advice to Alabama customers. Defendant Bruster s can be served at 1445 Market St., Bridgewater, PA Defendants Bruster s Ice Cream and Bruster s own, operate and/or control multiple authorized stores in the State of Alabama. These stores have the sole purpose of selling and distributing Bruster s products throughout Alabama. Bruster s Ice Cream and/or Bruster s has owned, operated and/or controlled these authorized Alabama stores for decades prior to the events giving rise to 13. Defendant City of Auburn is a municipal entity with its principal place of business in Lee County, Alabama. Notice, required by and , Code of Alabama, 1975, as amended, has been provided by Plaintiffs to the City of Auburn. Defendant City of Auburn can be served at 144 Tichenor Hall, Suite 1, Auburn, AL Defendant James E. Segrest is over the age of nineteen (19) years and is a resident citizen of Lee County, Alabama. Defendant Segrest is an employee of Defendant City of Auburn. Defendant Segrest can be served at City of Auburn, 144 Tichenor Hall, Suite 1, Auburn, AL FICTITIOUS DEFENDANTS A, B, and C are those persons, corporations, and/or other legal entities whose negligence, wantonness or other wrongful conduct combined and concurred with the negligence, wantonness or other wrongful conduct of defendants herein named or fictitious defendants to result in the injuries and death alleged in this lawsuit. 16. FICTITIOUS DEFENDANTS D, E, and F are those persons, corporations, and/or other legal entities that designed, engineered, manufactured, assembled, delivered, installed, sold or otherwise placed into the stream of commerce,

6 the grease interceptor, cover, and/or component parts of the grease interceptor, which is the subject matter of this lawsuit. 17. FICTITIOUS DEFENDANTS G, H, and I, are those persons, corporations or other legal entities that owned, serviced, inspected, and/or maintained the subject grease interceptor, cover, and/or component parts of the grease interceptor, which is the subject matter of this lawsuit. 18. FICTITIOUS DEFENDANTS J, K, and L are those persons, corporations or other legal entities that failed to notify and/or warn of the hazards associated with the grease interceptor, cover, and/or component parts of the grease interceptor, which is the subject matter of this lawsuit. 19. FICTITIOUS DEFENDANTS M, N, and O, are those persons, corporations and/or other legal entities that had any role in the distributive chain regarding the grease interceptor, cover, and/or component parts of the grease interceptor, which is the subject matter of this lawsuit. 20. FICTITIOUS DEFENDANTS P, Q, and R whether singular or plural, is that entity or those entities, other than the entities described herein, which is the successor-in-interest of any of those entities described above. 21. All of said fictitious defendants are unknown to Plaintiffs at this time but will be substituted by amendment when ascertained. STATEMENT OF THE FACTS 22. On October 14, 2017, in Lee County, Alabama, Plaintiffs and their children were visiting Bruster s Ice Cream, which was owned and operated by Defendant Eagle Creamery, Inc., located at 2172 E. University Drive, Auburn, Alabama.

7 23. At this location, two grease interceptors were installed in a landscaped picnic area adjacent to the building. 24. During this visit, Sadie Grace Andrews fell into one of the grease interceptors and drowned. 25. The subject grease interceptor, cover and/or component parts were designed, engineered, tested, manufactured, assembled, delivered, installed, marketed and distributed by Defendants Tuf-Tite, J & L Contractors, Frey Moss, Birmingham Hide & Tallow and Fictitious Defendants. 26. The subject grease interceptor, cover and/or component parts are owned, serviced and/or maintained by Defendants Eagle Creamery, Bruster s Ice Cream, Bruster s, Budget Rooter, Birmingham Hide & Tallow, City of Auburn, and Segrest. 27. At the aforesaid time and place, the condition of the subject property and subject grease interceptor, cover and/or component parts caused the interceptor to be a hidden and extremely dangerous trap. 28. As a direct and proximate result, Sadie Grace Andrews suffered severe injuries and was wrongfully killed. 29. The action for the deceased minor is brought pursuant to , Code of Alabama, COUNT I (AEMLD) 30. Plaintiffs reallege all prior paragraphs of the Complaint as if set out here in 31. Defendants Tuf-Tite, Frey Moss, J & L Contractors, Birmingham Hide & Tallow and Fictitious Defendants designed, engineered, tested, manufactured, assembled,

8 delivered, installed, modified, distributed, marketed and/or otherwise placed into the stream of commerce the grease interceptor, cover and/or component parts. 32. At the time of the accident, the grease interceptor, cover and/or component parts were being used in a manner as intended and reasonably foreseeable to Defendants and fictitious Defendants. 33. At the time of the incident, the grease interceptor, cover and/or component parts were unreasonably dangerous and defective in that the grease interceptor and/or cover was not equipped with quality materials, locking devices, guards, and/or devices to prevent unintended entry into the grease tank. 34. The grease interceptor, cover and/or component parts were unreasonably dangerous and thereby defective by reason of unsafe design. 35. As a direct and proximate result of the defective condition of the grease interceptor, cover and/or component parts, Sadie Grace Andrews was severely injured and wrongfully killed. Doctrine. 36. This claim is brought under the Alabama Extended Manufacturer s Liability COUNT II (Negligence) 37. Plaintiffs reallege all prior paragraphs of the Complaint as if set out here in 38. Defendants Tuf-Tite, Frey Moss, J & L Contractors; Birmingham Hide & Tallow and Fictitious Defendants negligently designed, engineered, manufactured, tested,

9 assembled, delivered, installed, sold, marketed and/or placed into the stream of commerce and failed to warn, guard and/or recall the grease interceptor, cover and/or component parts made the basis of this lawsuit. 39. As a proximate consequence of the negligence of Defendants and Fictitious Defendants, Sadie Grace Andrews was wrongfully injured and killed. COUNT III (Wantonness) 40. Plaintiffs reallege all prior paragraphs of the Complaint as if set out here in 41. Defendants Tuf-Tite, Frey Moss, J & L Contractors; Birmingham Hide & Tallow and Fictitious Defendants wantonly designed, engineered, manufactured, tested, assembled, delivered, installed, sold, marketed and/or placed into the stream of commerce and failed to warn and/or recall the grease interceptor, cover and/or component parts made the basis of this lawsuit. 42. Defendants Tuf-Tite, Frey Moss, J & L Contractors, Birmingham Hide & Tallow and Fictitious Defendants knew of potential hazards associated with unintentional entry into grease tanks and failed to design for, guard against, and/or warn about those hazards. 43. As a proximate consequence of the wantonness of Defendants and Fictitious Defendants, Sadie Grace Andrews was wrongfully injured and killed.

10 COUNT IV (Negligence) 44. Plaintiffs reallege all prior paragraphs of the Complaint as if set out here in 45. Defendants Birmingham Hide & Tallow, Budget Rooter, Eagle Creamery, Bruster s Ice Cream, Bruster s, and Fictitious Defendants negligently failed to inspect, warn, own, service, guard, and/or maintain the grease interceptor, cover and/or component parts made the basis of this lawsuit. 46. As a proximate consequence of the negligence of Defendants and Fictitious Defendants, Sadie Grace Andrews was wrongfully injured and killed. COUNT V (Wantonness) 47. Plaintiffs reallege all prior paragraphs of the Complaint as if set out here in 48. Defendants Birmingham Hide & Tallow, Budget Rooter, Eagle Creamery, Bruster s Ice Cream, Bruster s, and Fictitious Defendants wantonly failed to inspect, warn, own, service, guard, and/or maintain the grease interceptor, cover and/or component parts made the basis of this lawsuit.

11 49. Defendants Birmingham Hide & Tallow, Budget Rooter, Eagle Creamery, Bruster s, and Fictitious Defendants knew of potential hazards associated with unintentional entry into grease tanks and failed to maintain the subject grease interceptor, cover and/or component parts. 50. As a proximate consequence of the wantonness of Defendants and Fictitious Defendants, Sadie Grace Andrews was wrongfully injured and killed. COUNT VI (Negligence) 51. Plaintiffs reallege all prior paragraphs of the Complaint as if set out here in 52. Defendant Eagle Creamery, Budget Rooter and Fictitious Defendants negligently maintained the property and/or negligently damaged the subject grease interceptor and/or cover made the basis of this lawsuit. 53. As a proximate consequence of the negligence of Defendants and Fictitious Defendants, Sadie Grace Andrews was wrongfully injured and killed. COUNT VII (Wantonness) 54. Plaintiffs reallege all prior paragraphs of the Complaint as if set out here in

12 55. Defendant Eagle Creamery, Budget Rooter and Fictitious Defendants wantonly maintained the property and/or wantonly damaged the subject grease interceptor and/or cover made the basis of this lawsuit. 56. Defendants and Fictitious Defendants knew of potential hazards associated with damaging the subject grease interceptor and/or cover. 57. Defendants and Fictitious Defendants further knew of potential hazards associated with failing to properly maintain the premises at issue. 58. As a proximate consequence of the wantonness of Defendants and Fictitious Defendants, Sadie Grace Andrews was wrongfully injured and killed. COUNT VIII (Negligence) 59. Plaintiffs reallege all prior paragraphs of the Complaint as if set out here in 60. Defendants City of Auburn, Segrest and Fictitious Defendants negligently maintained the property and/or negligently damaged the subject grease interceptor and/or cover made the basis of this lawsuit. 61. As a proximate consequence of the negligence of Defendants and Fictitious Defendants, Sadie Grace Andrews was wrongfully injured and killed.

13 COUNT IX (Wantonness) 62. Plaintiffs reallege all prior paragraphs of the Complaint as if set out here in 63. Defendant City of Auburn, Segrest and Fictitious Defendants wantonly maintained the property and/or wantonly damaged the subject grease interceptor and/or cover made the basis of this lawsuit. 64. Defendants and Fictitious Defendants knew of potential hazards associated with damaging the subject grease interceptor and/or cover. 65. Defendants and Fictitious Defendants further knew of potential hazards associated with failing to properly maintain the subject premises. 66. As a proximate consequence of the wantonness of Defendants and Fictitious Defendants, Sadie Grace Andrews was wrongfully injured and killed. COUNT X (Respondeat Superior) 67. Plaintiffs reallege all prior paragraphs of the Complaint as if set out here in 68. On October 14, 2017, Defendant Segrest and Fictitious Defendants, employees of the City of Auburn, were acting as agents, employees and/or servants of Defendant City of Auburn. 69. Defendant Segrest and Fictitious Defendants were acting within the line and scope of their employment with Defendant City of Auburn.

14 70. Defendant Segrest and Fictitious Defendants violated the standards established by the City of Auburn. 71. Because Defendant Segrest and Fictitious Defendants were agents of Defendant City of Auburn at the aforesaid time and place, Defendant City of Auburn is liable for the negligent or wanton acts of Defendant Segrest and Fictitious Defendants. COUNT XI (Premises Liability) 72. Plaintiffs reallege all prior paragraphs of the Complaint as if set out here in 73. On October 14, 2017, Plaintiffs Corrie & Tracy Andrews, along with their children, including Sadie Grace Andrews, were invitees at Bruster s, 2172 E. University Drive, Auburn, Alabama. 74. Defendants Eagle Creamery, Bruster s Ice Cream and/or Bruster s were required to use reasonable care and diligence to keep the premises in a safe condition for invitees like Plaintiffs Corrie and Tracy Andrews and Sadie Grace Andrews. The Defendants had a duty to (a) warn Plaintiffs and Sadie Grace Andrews of the danger, of which the Defendants knew or should have known, and of which Plaintiffs and Sadie Grace Andrews were ignorant, (b) to use reasonable care to have the premises in a reasonably safe condition for the contemplated uses, within the contemplated invitation, and (c) to guard its customers from foreseeable dangers. 75. The Defendants negligently or wantonly breached their duty to Plaintiffs and Sadie Grace Andrews by failing to warn them of a danger that the Defendants knew

15 or should have known about and of which Plaintiffs and Sadie Grace Andrews were ignorant. The Defendants further negligently or wantonly breached their duty by failing to use reasonable care to have the premises in a reasonably safe condition and to guard its customers from foreseeable dangers. 76. The Defendants breach of their duties, as aforesaid, directly led to the injuries and wrongful death of Sadie Grace Andrews. COUNT XII (Respondeat Superior) 77. Plaintiffs reallege all prior paragraphs of the Complaint as if set out here in 78. On October 14, 2017, Defendant Eagle Creamery was acting as agent, employee and/or servant of Defendant Bruster s Ice Cream and/or Defendant Bruster s. 79. Defendant Eagle Creamery was acting within the line and scope of the agreement with Defendant Bruster s Ice Cream and/or Defendant Bruster s 80. Defendants Bruster s Ice Cream and Bruster s exercised control over Eagle Creamery to ensure the premises were in a safe condition for invitees. 81. Because Defendant Eagle Creamery was an agent of Defendant Bruster s Ice Cream and/or Defendant Bruster s at the aforesaid time and place, Defendant Bruster s Ice Cream and/or Defendant Bruster s are liable for the negligent or wanton acts of Defendant Eagle Creamery.

16 COUNT XIII (Combined and Concurring Conduct of All Defendants) 82. Plaintiffs reallege all prior paragraphs of the Complaint as if set out here in 83. The conduct of all named and Fictitious Defendants combined and concurred to cause the severe injuries and wrongful death of Sadie Grace Andrews. J. Cole Portis J. COLE PORTIS (POR018) Attorney for Plaintiffs Jere L. Beasley JERE L. BEASLEY (BEA020) Attorney for Plaintiffs OF COUNSEL: Beasley, Allen, Crow, Methvin, Portis & Miles, P.C. Post Office Box 4160 Montgomery, AL (334) J. Greg Allen J. GREG ALLEN (ALL021) Attorney for Plaintiffs JURY DEMAND REQUESTED ON ALL COUNTS