plaintiffs' original petition & request

CAUSE NO. ___________________ RICHARD SANCHEZ, HEATHER § SANCHEZ, TODD KING AND LACI KING, § Plaintiffs, § § v. § § § § UNION PACIFIC RAILROAD, INC., AND § SMITH INDUSTRIES, INC. § Defendants. §

IN THE ____ DISTRICT COURT

OF

MIDLAND COUNTY, TEXAS

PLAINTIFFS’ ORIGINAL PETITION & REQUEST FOR TEMPORARY INJUNCTION AND JURY REQUEST

TO THE HONORABLE JUDGE OF SAID COURT: NOW COME Plaintiffs, Richard Sanchez, Heather Sanchez, Todd King and Laci King, complaining of Union Pacific Railroad, Inc. and Smith Industries, Inc. and for such cause of action would respectfully show the Court as follows: I. DISCOVERY 1.01

Pursuant to Rule 190.1 of the Texas Rules of Civil Procedure, Plaintiff intends to

conduct discovery in this case under level 3 (Rule 190.4 Texas Rules of Civil Procedure). II. PARTIES 2.01

Plaintiff Richard Sanchez is an individual and resident of El Paso County,

Colorado. 2.02

Plaintiff Heather Sanchez is an individual and resident of El Paso County,

Colorado. 2.03

Plaintiff Todd King is an individual and resident of Bexar County, Texas, and a

citizen of the State of Texas. Plaintiffs’ Original Petition, Application and Request for Temporary Injunction Page 1

2.04

Plaintiff Laci King is an individual and resident of Bexar County, Texas,

2.05

Defendant Union Pacific Railroad Co. (hereinafter referred to as Defendant

Railroad) is a corporation with its principal place of business in Delaware. Defendant railroad may be served with process by and through its registered agent: C T Corporation System at 350 N. St. Paul Street, Suite 2900, Dallas, Texas 75201. Defendant Railroad owned the tracks and operated the train involved in this wreck. 2.06

Defendant Smith Industries, Inc. (hereinafter referred to as Defendant Smith) is a

corporation with its principal place of business in Midland County, Texas. Defendant Smith may be served with process by and through its registered agent: Jimmie B. Todd at 3800 E. 42nd Street, Suite 409, Odessa, Texas 79462. III. VENUE AND JURISDICTION 3.01

Venue is proper in Midland County, Texas, because it is the County in which all

or a substantial part of the events/omissions giving rise to this cause of action occurred. 3.02

Plaintiffs have suffered damages in excess of the jurisdictional minimum of this

Court. 3.03

Pursuant to 49 U.S.C. § 20106 this case is appropriately brought in state court

rather than federal court. Plaintiff reserves the right to amend this petition as needed to further establish why this case is appropriately brought in this Court. All allegations herein related to Defendant Railroad are based upon and should be interpreted as state causes of action seeking damages under state law for personal injury, death, or property damage, based upon one or more of the following: a. Defendant Railroad has failed to comply with the Federal standard of care established by regulations or orders issued by the Secretary of Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security Plaintiffs’ Original Petition, Application and Request for Temporary Injunction Page 2

(with respect to railroad security matters), covering the subject matter as provided in subsection (a) of 49 U.S.C. § 20103; b. Defendant Railroad has failed to comply with its own plans, rules, or standards that Defendant Railroad created pursuant to a regulation or order issued by either the Secretary of Transportation or the Secretary of Homeland Security; c. Defendant Railroad has failed to comply with State laws, regulations, and orders that are not incompatible with subsection (a)(2) of 49 U.S.C. § 20106. IV. PLAINTIFFS’ NARRATIVE 4.01 During the afternoon hours of November 15th, 2012, Plaintiffs were riding on the trailer of a flatbed truck which was being used as a parade float. Plaintiffs were part of a group of wounded veterans and their spouses participating in an event known as Hunt for Heroes. The trailer they were riding on was part of a parade carrying the Plaintiffs and other veterans to a banquet honoring their service and their sacrifices to the United States. 4.02

The flatbed trailer Plaintiffs were riding on was being pulled by a truck owned by

Defendant Smith; an employee of Defendant Smith was operating the truck at the time of the crash. 4.03 The truck was in Midland, Midland County, Texas traveling westbound on Front Street and turned southbound onto Garfield Street. Immediately upon turning onto Garfield Street, the truck encountered an at-grade railroad crossing owned and maintained by Defendant Railroad. This crossing is known by its DOT designation of 796331L. 4.04

Due partially to the inclined approach and due to the crossing geometry and the

Plaintiffs who were seated on the trailer, the truck slowly proceeded across the tracks. The crossing gates lowered behind the tractor and struck some of the veterans. Within seconds of the crossing gate lowering, the trailer was struck by a freight train traveling Plaintiffs’ Original Petition, Application and Request for Temporary Injunction Page 3

east at a high rate of speed. The train was being operated by unknown employees of Defendant Railroad. 4.05

Plaintiffs were seriously injured in the collision. V. CAUSES OF ACTION

5.01

Defendants have a duty to exercise reasonable care to avoid injuring or killing

members of the public. In this case Defendants breached their duty by failing to exercise reasonable care. As a direct proximate result of the Defendants’ breach of this duty, Plaintiffs suffered damages. All acts or omissions of Defendants constitute negligence, gross negligence, willful and wanton conduct, recklessness, intentional conduct, and demonstrate a reckless and intentional disregard for the safety of Plaintiffs. A.

Negligence of Defendant Railroad

5.02

The occurrence described in this petition is a direct and proximate result of the

negligence of Defendant Railroad: a. In failing to provide a reasonable and timely audible warning of an approaching train; b. In failing to provide a reasonable and timely visual warning of an approaching train; c. In failing to provide a safe railroad crossing; d. In failing to apply the brakes or otherwise slow the train; e. In failing to keep a proper lookout; f. In failing to remedy the hazardous conditions posed by this grade crossing that existed for an extended period of time; g. In routinely ignoring the hazardous conditions posed by this grade crossing; h. In failing to protect the crossing by issuing a slow order for rail traffic; i. In failing to recognize that the conditions readily apparent at this crossing created “an essentially local safety hazard;” j. In failing to properly train and instruct its crew; Plaintiffs’ Original Petition, Application and Request for Temporary Injunction Page 4

k. In failing to properly maintain the railroad crossing; l. In failing to work with State and local authorities to establish an open line of communication and in failing to engage in any effort to evaluate the crossing conditions and characteristics; m. In failing to maintain adequate warning devices; n. In failing to provide a sufficient warning; o. In failing to implement effective Employee Notification Rules to Report Warning Signal Malfunctions; p. In failing to timely investigate and determine the nature of the crossing signal malfunction of this grade crossing; q. In failing to provide alternative means of warning highway traffic while crossing was malfunctioning; r. In failing to promptly initiate efforts to warn highway users of a malfunction with the crossing; s. In failing to notify the train crew of the activation failure at this crossing; t. In failing to notify local law enforcement with jurisdiction over the crossing, of the need to respond and control vehicular traffic; u. In failing to provide alternative means of actively warning highway users of approaching trains; v. In failing to provide a flagger at this crossing; w. In failing to slow trains or stop them prior to entering the crossing; x. In failing to keep legible, correct signal system circuit plans at the crossing warning system location; y. In failing to maintain the rail crossing warning system within the limits within which the system was designed to operate; z. In failing to determine the failure of the crossing to perform its intended function and in failing to adjust, repair or replace the component without undue delay; aa. In failing to maintain the railroad crossing to activate in accordance with the design of the warning system; and

Plaintiffs’ Original Petition, Application and Request for Temporary Injunction Page 5

bb. In failing to properly test the crossing warning system at least once every twelve months and to test any modifications to the system because of a change in train speed. 5.03 Defendant Railroad’s conduct constitutes negligence per se. B.

Respondeat Superior Responsibility of Defendant Smith

5.04

At all times material to this petition, Defendant Smith’s truck driver was an

employee or agent of Defendant Smith. The acts of the truck driver fall within the course and scope of his employment with Defendant Smith. Defendant Smith is liable for the negligent acts and omissions of its employees under the doctrine of vicarious liability, or respondeat superior. The occurrence in this petition is a direct and proximate result of the negligence of Defendant Smith’s employee: a. In failing to keep a proper lookout; b. In failing to safely enter the at-grade crossing; c. In failing to clear the at-grade crossing prior to the arrival of a freight train; and d. In failing to exercise reasonable care for his passengers. Such negligence constitutes negligence per se. C.

Gross Negligence

5.05

The wrong done by Defendants and/or their agents, servants, and officers was

aggravated by the kind of conduct for which the law allows the imposition of exemplary damages, in that Defendants’ conduct, when viewed objectively from Defendants’ standpoint at the time of the conduct, involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and Defendants were actually, subjectively aware of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others. Plaintiffs, therefore, seek exemplary damages in an amount within the jurisdictional limits of the court.


VI. DAMAGES Richard Sanchez 6.01

As a direct and proximate result of the acts and omissions in question, Plaintiff

Richard Sanchez was severely injured. Plaintiff has suffered loss of economic and noneconomic damages associated with the injuries. Plaintiff has suffered damages as set forth below. 6.02

As a direct, proximate, and producing result of the conduct of the Defendants, as

described above, Richard has suffered damages as follows: a. Physical pain and mental anguish sustained in the past; b. Physical pain and mental anguish that, in reasonable probability, Plaintiff will sustain in the future; c. Physical impairment sustained in the past; d. Physical impairment that, in reasonable probability, Plaintiff will sustain in the future; e. Medical care expenses sustained in the past; f.

Medical care expenses that, in reasonable probability, Plaintiff will sustain in the future;

g. Loss of wage earning capacity sustained in the past; h. Loss of wage earning capacity that, in reasonable probability, Plaintiff will sustain in the future; i.

Loss of consortium;

j.

Disfigurement sustained in the past; and

k. Disfigurement that, in reasonable probability, Plaintiff will sustain in the future. Richard Sanchez – Bystander Claim 6.03

Richard Sanchez is the husband of Plaintiff Heather Sanchez. Richard was next

to his wife at the time of this collision and witnessed the collision by sensory and contemporaneous observation thereof. Plaintiff Richard Sanchez witnessed the moment Plaintiffs’ Original Petition, Application and Request for Temporary Injunction Page 7

of impact between the train and the trailer on which his wife was riding. As a direct and proximate result of witnessing the injuries to his wife caused by the negligence and careless conduct of Defendants, Richard Sanchez suffered severe mental and emotional anguish, including mental and emotional pain, torment, suffering and despair. Heather Sanchez 6.04


Heather Sanchez has suffered loss of economic and non-economic damages associated with the injuries. Plaintiff has suffered damages as set forth below. 6.05

As a direct, proximate, and producing result of the conduct of the Defendants, as

described above, Heather has suffered damages as follows: a. Physical pain and mental anguish sustained in the past; b. Physical pain and mental anguish that, in reasonable probability, Plaintiff will sustain in the future; c. Physical impairment sustained in the past; d. Physical impairment that, in reasonable probability, Plaintiff will sustain in the future; e. Medical care expenses sustained in the past; f.

Medical care expenses that, in reasonable probability, Plaintiff will sustain in the future;

g. Loss of wage earning capacity sustained in the past; h. Loss of wage earning capacity that, in reasonable probability, Plaintiff will sustain in the future; and i.

Loss of consortium.

Heather Sanchez – Bystander Claim 6.06

Heather Sanchez is the wife of Plaintiff Richard Sanchez. Heather was next to

her husband at the time of this collision and witnessed the collision by sensory and contemporaneous observation thereof. Plaintiff Heather Sanchez witnessed the moment Plaintiffs’ Original Petition, Application and Request for Temporary Injunction Page 8

of impact between the train and the trailer on which her husband was riding. As a direct and proximate result of witnessing the injuries to her husband caused by the negligence and careless conduct of Defendants, Heather Sanchez suffered severe mental and emotional anguish, including mental and emotional pain, torment, suffering and despair. Todd King 6.07


Todd King was injured. Plaintiff has suffered loss of economic and non-economic damages associated with the injuries. Todd King – Bystander Claim 6.08

Todd King is the husband of Plaintiff Laci King. Todd was next to his wife at the

time of this collision and witnessed the collision by sensory and contemporaneous observation thereof. Plaintiff Todd King witnessed the moment of impact between the train and the trailer on which his wife was riding. As a direct and proximate result of witnessing the injuries his wife caused by the negligence and careless conduct of Defendants, Todd King suffered severe mental and emotional anguish, including mental and emotional pain, torment, suffering and despair. Laci King 6.09


Laci King has suffered injury and loss of economic and non-economic damages associated with the injuries. Laci King – Bystander Claim 6.10

Laci King is the wife of Plaintiff Todd King. Laci was next to her husband at the

time of this collision and witnessed the collision by sensory and contemporaneous


observation thereof. Plaintiff Laci King witnessed the moment of impact between the train and the trailer on which her husband was riding. As a direct and proximate result of witnessing the injuries to her husband caused by the negligence and careless conduct of Defendants, Laci King suffered severe mental and emotional anguish, including mental and emotional pain, torment, suffering and despair. VII. APPLICATION FOR TEMPORARY INJUNCTION 7.01

This accident occurred as a result of Defendants’ negligence and gross

negligence. Defendant Railroad had certain equipment that was involved in and/or related to the incident that needs to be preserved. Defendant Railroad’s equipment includes the train’s “black box,” downloads from the “black box,” video recordings, the railroad crossing, signal system, the railroad’s track and right of way, the locomotive involved in the wreck and related documentary evidence, and the train itself. 7.02

Defendant Smith’s equipment includes its truck, any video recordings, and the

trailer. 7.03

Unless Defendants are prevented from restricting access to its equipment involved

in the incident in question, Plaintiff will be irreparably harmed. If there is any damage, repair, change, or modification to Defendant Railroad’s equipment or premises, or to Defendant Smith’s equipment prior to the time that Plaintiffs’ counsel as well as experts, if any, retained by them are able to inspect and photograph said items, valuable evidence will undoubtedly be lost or destroyed. Therefore, Defendant Railroad should be enjoined from obstructing, preventing, or in any manner interfering with Plaintiffs’ attorneys, their experts, agents and employees from immediately making photographs, videotapes, copies, inspections and non-destructive examination and testing of Defendant Railroad’s


equipment and premises involved in the accident. Further, Defendant Smith should be enjoined from obstructing, preventing, or in any manner interfering with Plaintiffs’ attorneys, their experts, agents and employees from immediately making photographs, videotapes, copies, inspections and non-destructive examination and testing of Defendant Smith’s equipment involved in the accident. This Court should restrain Defendant Smith from moving or altering its equipment. 7.04

Plaintiffs have no adequate remedy at law or otherwise for the harm or damage set

forth herein. Defendants and all of their owners, agents, employees and representatives should be enjoined from doing any act of any nature which would result in the alteration, repair, disposal, change or modification in any manner of the equipment involved in the incident in question, until it can be inspected and tested by Plaintiffs. Plaintiffs believe that the equipment remains located at Defendants’ respective places of business and may be used, replaced, removed, altered, or modified by Defendants. In the event Defendants are not so enjoined, Plaintiffs will suffer irreparable harm, damage and injury. Therefore, Defendants should be enjoined from allowing any persons, be they officers, agents, servants, employees, attorneys, experts, or repairmen or any other persons, from in any way altering the equipment and premises involved in or related to the incident until such time as Plaintiffs’ counsel, or experts retained by them, have had an opportunity to inspect and photograph same. 7.05

Plaintiffs’ counsel have made attempts to come to an agreement with Defendants

regarding the preservation of evidence, but said attempts have been unsuccessful.


VIII. REQUEST FOR TEMPORARY INJUNCTION 8.01

Plaintiffs ask the Court to set this application for temporary injunction for a

hearing and, after the hearing, issue temporary injunctions against the Defendants. IX. PRAYER 9.01

WHEREFORE, PREMISES CONSIDERED, Plaintiffs respectfully request the

following: a. That a Temporary Injunction be issued after a hearing restraining Defendants, their officers, agents, servants, employees, repair persons, attorneys, and any and all other persons in active concert or participation with them who receive actual notice of the Temporary Injunction, from obstructing, preventing, or in any manner interfering with Plaintiffs’ attorneys, their experts, agents and employees from immediately making photographs, videotapes, inspections and non-destructive examination and testing of Defendants’ equipment and premises involved in the accident; b. Enjoining Defendants, their officers, agents, servants, employees, repair persons, attorneys, and any and all other persons in active concert or participation with them from doing any act of any nature which would result in the alteration, destruction, repair, change, movements or modification of Defendants’ equipment, which is the subject of this suit, until further order of the Court, unless such action is done to comply with a request or requirement or the NTSB, law enforcement, or other state or federal authority; c. Upon final trial, compensatory and exemplary damages as set forth above be awarded to Plaintiffs against Defendants; d. Pre-judgment and post-judgment interest as allowed by law; e. Costs of court; f. Such other, further and different relief to which Plaintiffs may be justly entitled; and g. Plaintiffs request a jury trial. Plaintiffs’ Original Petition, Application and Request for Temporary Injunction Page 12

Respectfully submitted, GLASHEEN, VALLES, & INDERMAN L.L.P.

1302 Texas Avenue P.O. Box 1976 Lubbock, TX. 79408 Tel: (806) 741-0284 Fax: (806) 763-2146

/s/ Kevin Glasheen Kevin Glasheen State Bar No. 08001510 John Cook IV State Bar No. 04735700

POTTROFF LAW OFFICE, P.A. 320 Sunset Avenue Manhattan, KS 66502 Tel: (785) 539-4656 Fax: (785) 539-1750 Bob Pottroff Kansas State Bar No. 10220 Pending Pro Hac Vice ATTORNEYS FOR PLAINTIFF


JURY DEMAND Plaintiff hereby respectfully demands a trial by jury in this cause and herewith pays the required jury fee.

/s/ Kevin Glasheen Kevin Glasheen

VERIFICATION STATE OF TEXAS COUNTY OF LUBBOCK

§ § §

Before me, the undersigned Notary Public, on this day personally appeared Kevin Glasheen, who, after being duly sworn, stated under oath that he is the duly authorized agent for the Plaintiff in this action; that he has read the above petition; and that every statement contained in paragraphs 7.01 through 8.01 is within his personal knowledge and is true and correct.

/s/ Kevin Glasheen Kevin Glasheen

SUBSCRIBED AND SWORN TO BEFORE ME on the 28th day of November, 2012, to certify which witness my hand and official seal.

/s/ Crystal Stone Notary Public, State of Texas.
