CAUSE NO. SUSAN DAVIS and IN THE DISTRICT COURT PRASHANTH MAGADI

Transcription

1 CAUSE NO. SUSAN DAVIS and IN THE DISTRICT COURT PRASHANTH MAGADI VS. JUDICIAL DISTRICT W HOTEL AUSTIN and STARWOOD HOTELS & RESORTS WORLDWIDE, INC. d/b/a W HOTEL AUSTIN TRAVIS COUNTY, TEXAS PLAINTIFFS ORIGINAL PETITION AND REQUEST FOR DISCLOSURE AND APPLICATION FOR INJUNCTIVE RELIEF TO THE HONORABLE JUDGE OF SAID COURT: Plaintiff, SUSAN DAVIS and PRASHANTH MAGADI, complains of W HOTEL AUSTIN and STARWOOD HOTELS & RESORTS WORLDWIDE, INC. d/b/a W HOTEL AUSTIN referred to hereinafter as Defendants, and for cause of action respectfully shows: I. Plaintiff, SUSAN DAVIS, is an individual residing in Austin, Travis County, Texas. Plaintiff, PRASHANTH MAGADI, is an individual residing in New York City, New York. Defendant, W HOTEL AUSTIN does business in the State of Texas and can be served with process via its registered agent, Robert Levine, 146 Westcott Street, Suite 200, Houston, TX Defendant STARWOOD HOTELS & RESORTS WORLDWIDE, INC. d/b/a W HOTEL AUSTIN does business in the State of Texas and can be served with process via its registered agent, CT Corporation System, 350 N. St. Paul Street, Suite 2900, Dallas, TX II. This case is a sad example of corporations that put profits over safety and why we have a justice system to address it. 1

2 On June 10, 2011, while they were paying guests at Defendants hotel, one of the most expensive in Austin, Plaintiffs were using the pool area around 6:00 p.m. when two glass panels fell more than 23 stories from balconies above into the pool area. Miraculously, a guest happened to notice the falling glass as it left the building high above and shouted a warning. Guests literally dived for cover. At least two huge panels exploded and rained sharp shards of potentially fatal glass on the guests. The pieces that exploded ranged from half an inch in diameter to at least a foot in diameter and had sharp jagged edges. Pieces fell on guests around the pool and even reached guests that had submerged underwater to try to escape. One or more of the pieces could easily have killed the guests below. To say it was terrifying is an understatement. Numerous guests suffered injuries and were needlessly subjected to the potential loss of their life, including Plaintiffs, who are still under medical care and still removing glass from their bodies. Like the negligence of the W beforehand, the reaction of the W afterward was equally as pitiful, compounded by the fact that this was not an isolated occurrence for the W. Warned of the problem before June 10, 2011, the W failed to respond, continuing to subject guests and citizens to potentially horrific and fatal falling glass in Austin, just as it had elsewhere. In May of 2011, two young women were guests at the W in Atlanta when they became victims of a glass failure at the W Hotel in Atlanta, plunging multiple stories when the glass of their room failed and they fell out. That was a preventable accident as well, yet nothing was done before then or after to prevent the occurrence at issue. A third floor window also broke this month after incidental contact. Guests or passerbys of W Hotels in other cities may be in jeopardy. The W had notice before the event of June 10 th in Austin that a potential tragedy could occur due to falling glass, yet it did nothing. Lives were risked and people were hurt as a result. Unbelievably, as if it was needed, the W had further notice after June 10 th that there was a 2

3 major and potentially fatal problem in Austin with the glass in the building. Yet, it did nothing. The W was specifically warned on several fronts that there was a problem in Austin. Yet, it did nothing. Those warnings included one from a victim of the June 10 th failure who warned on June 13 th - I am severely traumatized by the events of June 10th, and am extremely worried that someone else will be hurt or killed and I do not want that on my conscience. I am sure that you won t want it to be on yours, and I hope that you will reply IMMEDIATELY with a sense of urgency and action. If more panels break because nothing is done, what then??? Why do we have to wait for someone to be killed to do what is right? Big money for the W to lose and have to deal with their responsibilities therein, but the safety of your public is far more important, and this should be done RIGHT NOW The LEAST you could do right now is to close the sidewalks, order immediate scaffolding to be put up around the building, and get a full scale investigation under way... If more panels break because nothing is done, what then??? Why do we have to wait for someone to be killed to do what is right? Big money for the W to lose and have to deal with their responsibilities therein, but the safety of your public is far more important, and this should be done RIGHT NOW. The W ignored the warnings, as it had others. On June 27 th, for the second time this month, potentially fatal glass plummeted from the W Hotel in downtown Austin to the streets below, this time crashing down on to 3rd Street and some vehicles parked on the street. Again, miraculously, no one was killed in Austin. Yet, this latest event was again preventable and predictable. This whole series of events was unnecessary and avoidable. This callous indifference to the safety and welfare of others by the W is unacceptable and actionable. This lawsuit is brought to address that and make sure no one else is needlessly hurt. Plaintiffs will not sit idly and wait on the W to voluntarily do the right thing. III. Plaintiffs suffered serious injuries. Plaintiffs continue to have impairment and pain due to their injuries caused by this incident and will continue to incur damages into the future. 3

4 IV. This suit is brought in accordance with the laws of the State of Texas for the recovery of damages which are within the jurisdictional limits of this Court, and which Plaintiffs are entitled to receive as compensation for damages as described below. V. The acts and/or omissions of Defendants constitute negligence and are a proximate cause of the damages sustained by Plaintiffs. Defendants, jointly and severally, and acting in an agency relationship, committed acts of negligence and gross negligence. VI. Plaintiffs allege that as a direct and/or proximate result of the negligent acts and omissions of the Defendants, Plaintiffs have suffered damages. Plaintiffs also plead the Defendants committed acts and omissions of gross negligence. Plaintiffs would show that reasonable compensation should be awarded for their pain, disfigurement, loss of earnings, loss of earning capacity, physical impairment, medical care and expenses and mental anguish, in the past and future. VII. PRELIMININARY AND PERMANENT INJUNCTIVE RELIEF The allegations in the paragraphs above are realleged and incorporated by reference the same as if set forth verbatim herein. 1. Plaintiffs require injunctive relief. 2. Adequate, effective, and complete relief to Plaintiffs includes restraining Defendants from engaging in certain proscribed activities, as set forth below, and/ or ordering them to perform certain activities. Pursuant to Tex. R. Civ. P. 680 et seq. and Tex. 4

5 Civ. Prac. & Rem. Code et seq., and in order to preserve the status quo during the pendency of this action, Plaintiffs seek a temporary and permanent injunction, ordering and immediately restraining and or ordering Defendants, including Defendants agents, servants, employees, independent contractors, attorneys, representatives, and those persons or entities in active concert or participation with them (collectively, the Restrained Parties ) as follows: (a) (b) (c) (d) (e) (f) To immediately implement temporary safety measures to prevent further incidents from falling glass from the W Hotel and building in Austin and to erect covered pedestrian walkways around affected parts of the building, as previously requested; While construction of the covered sidewalks is occurring, pedestrian access to the site on Lavaca, Guadalupe and Third Streets should be restricted and safety measures should be taken to protect hotel guests and others who have access to the property, as previously requested; the W Hotel be ordered to advise guests and the affected public of all potential problems from falling glass of which it has notice regardless of the hotel s location; all records relating to the glass balconies and/or windows at the Austin W and the Atlanta W and any other W Hotels with glass issues should be preserved and not destroyed or altered in any way; all records pertaining to warnings regarding the glass windows and/or balconies at the Austin W and the Atlanta W and any other W Hotels with glass issues should be preserved and not altered and destroyed in any way; Plaintiffs reserve the right to ask for further emergency or injunctive relief as more facts are made available. VIII. REQUEST FOR DISCLOSURE Under the authority of Texas Rule of Civil Procedure 194, Plaintiffs request that Defendants disclose, within fifty (50) days of service of the Petition and request, all the information and 5

6 materials described in Rule WHEREFORE, PREMISES CONSIDERED, Plaintiffs request that Defendants be cited to appear and answer, that the Court grant the injunctive relief requested upon a hearing and that on final trial, Plaintiffs have judgment against Defendants, jointly and severally, for an amount within the jurisdictional limits of the Court, together with prejudgment and post judgment interest as provided by law, costs of court, reasonable attorney s fees, and such other and further relief to which Plaintiffs are justly entitled. Respectfully submitted, HOWRY BREEN & HERMAN, L.L.P. Sean Breen State Bar No Pearl Street Austin, Texas (512) (512) FAX ATTORNEYS FOR PLAINTIFFS 6