Comments solicited Family v $80B company

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Tomtech
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Comments solicited Family v $80B company

#1

Post by Tomtech » Wed May 01, 2019 8:53 pm

I took what I have learned here and from others plus a lot of research from appeal records and came up with this has a draft Complaint.
Plaintiffs Pearl Family, Thomas Family and Janice Family (hereafter: plaintiffs) allege the following:

I. NATURE OF THE ACTION

1. This is an action for injunctive and declaratory relief along with all available damages allowed under State and Federal Laws due to the losses suffered by plaintiffs individually as a result of the severe bodily injury to Mrs. Pearl Family (hereafter: injury) on or about 9:00 P.M. on or about April 21, 2018 at the Big Name by $80B Superior Hotel's Newest Hotel and Convention Center (hereafter: hotel).

2. All of the defendants were separately and independently responsible for the injury to Mrs. Pearl Family due to their intentional, knowledgeable, and/or reckless negligent and grossly negligent acts and/or omissions committed by each individually which led to the injury.

3. Each defendant committed acts and/or omissions and if any defendant had used the care a prudent corporation or person would have taken and performed different acts they would have prevented the injury from occurring.

4. Each defendant had a significant amount of control at times during the specification, design, construction, installation, and customer approval phases of the construction of the hotel and if any defendant had exercised their right of control, they could have prevented the injury from occurring.

5. Plaintiffs seek injunctive and declaratory relief along with all available compensatory and exemplary damages, costs of this action, reasonable attorney’s fees, contingent appellate awards, and any other damages deemed proper by the court.

II. THE PARTIES

6. Plaintiff Mrs.Family (hereafter Mrs. Family) is domiciled in the District.

7. Plaintiff John Family (hereafter Mr. Family) is the son of Mrs. Family and domiciled in the District.

Plaintiff Jan Family (hereafter: Miss Family) is the daughter of Mrs. Family and is domiciled in the Northern District of Other State.

8. To the best of plaintiff’s knowledge and belief Defendant $5B Owner LLC (hereafter: $5B owner), is a domestic Limited Liability Corporation chartered in Another State.

9. To the best of plaintiff’s knowledge and belief, Hotels and Resorts LLC is a U.S. Limited Liability Corporation headquartered in a completely different State.

10. To the best of plaintiff’s knowledge and belief, defendant $8B manufacturer Inc. (Hereafter: $8B manufacturer) is a foreign BCA hardhearted in yet another State.

11. Upon belief, Defendant Hotels is a U.S. Corporation who entered into a franchisee/franchisor relationship or licensing agreement which allowed $5B Owner to use the term “Big Name by $80B Superior”. $5B Owner has not responded to Plaintiff’s request for the identity of this entity, but the identity should be available to Plaintiffs during the discovery process. Defendant Hotels may be the same entity has Defendant $80B Superior. Plaintiffs will amend this Complaint to show its true name when it has been ascertained.

III. JURISDICTION AND VENUE

12. This Court has jurisdiction of the since the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between parties of different States.

13. Venue is proper in the District since all or most of the events giving rise to this action occurred in the District.

14. Venue in the Division should be maintained for the convenience of plaintiffs and the fact witnesses. Defendants will not suffer harm since they would be required to obtain outside council and/or travel to any division within the District.

IV. FACTUAL ALLEGATIONS

15. To the best of each Plaintiff’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances we believe there is a basis for each of the allegations.

16. On or about April 21, 2018 Mrs. Family was an invitee at the hotel has a registered guest and a registered attendee to The Convention being held at the hotel.

17. At or about 9:00 P.M on or about April 21, 2018 Mrs. Family proceeded to enter a machine on the third floor of the hotel at which time the machine door closed unexpectedly and struck Mrs. Family on the right shoulder knocking her onto the opposite door facing whereupon she fell to the floor.

18. Mrs. Family remained on the floor until removed by emergency response persons.

19. Mrs. Family was transported by emergency response personnel to the emergency department of the Hospital (hereafter: hospital).

20. At the hospital, Mrs. Family was diagnosed with multiple fractures to her right femur and Dr. (hereafter: Dr.) was called in to consult.

21. On the next day Dr. performed surgery on Mrs. Family to reconstruct her right femur.

22. On or about 9:00 P.M. on April 21, 2018 Mr. Family was informed of the incident and contacted his son, Mr. Adam Family, and his sister, Miss Family, and inform them of the incident.

23. Has soon has practical Mr. Family began to travel to the hospital with his charge, Mr. C (hereafter: Mr. C), from the home they share with Mrs. Family which was more than 200 miles from the hospital during a heavy downpour.

24. Has soon has practical Mr. Adam Family began to travel from his home in a close by city to the hospital to act has next of kin for Mrs. Family.

25. Has soon has practical Miss Family began to make arrangements to travel from her home in Northern State to the hospital for the purposes of assisting Mrs. Family.

26. Mr. Family arrived at the hospital at approximately 2:00 A.M. the night of the incident with Mr. C and relieved Mr. Adam Family has next of kin to Mrs. Family.

27. On April 22, 2018 Miss Family arrived at the hospital to assist Mrs. Family while she remained at the hospital and rehab.

28. On April 22, 2018 Mr. Family and Mr. C returned to the home they share with Mrs. Family.

29. On or about April 28, 2018 Mrs. Family was transferred to Rehab (hereafter: rehab).

30. On May 8, 2018 Mr. Family ordered a bed rail from Amazon.com at a cost of $83.33 based on the recommendation of personnel from rehab and the information that it was not a covered device on her medical insurance.

31. On or about May 09, 2018 Miss Family went to the hotel and informed a hotel manager of the extent of Mrs. Family's injuries.

32. On May 9, 2018 Mrs. Family was discharged from rehab and returned home. Her grandson traveled from near a faraway city to the rehab facility in order to take Mrs. Family and Miss Family to Mrs. Family’ home. Mr. Family had a prior commitment that day to take Mr. C to a Game. Mrs. Family paid her grandson $300 for his time and costs.

33. On May 09, 2018 Miss Family went to the hotel and informed a hotel manager of the extent of Mrs. Family injuries.

34. On May 09, 2018 Mrs. Family began in home rehabilitation therapy from Home Rehab Home Health Care of Jefferson State (hereafter: Home Rehab).

35. On May 22, 2018 Miss Family returned to her home in Other State.

36. On June 7, 2018 Mr. and Mrs. Family traveled for an appointment with Dr.

37. While in City on June 7, 2018 Mr. Family joined Mr. Operations for the hotel, and Mr. investigator assigned by $5B owner’s insurance carrier for a videotaped pre-arraigned evaluation of the hotel’s machine operation and allowed one of the machines to enter ASSAULT Mode in order to examine its operation. Mr. Family was informed by Mr. Operations that the machine where the incident occurred had been examined and was shown to operate correctly shortly after the incident and no issues were found with the machine. Mr. Operations also informed Mr. Family that ASSAULT Mode was the correct operating mode.

38. On July 5, 2018 Mr. and Mrs. Family traveled to City State for an appointment with Dr.

39. While in City on June 7, 2018 Mr. Family spent a few minutes in order to videotape the precise sequence of machine operation while in Assault mode.

40. On July 7, 2018 Mrs. Family was released from the care of Home Rehab.

41. On July 19, 2018 Mr. Family obtained a room at the hotel and, during the night, spent approximately half an hour videotaping and examining the operation of one of the machines in Assault mode.

42. On August 16, 2018 Mr. and Mrs. Family traveled to City State for an appointment with Dr. Dr dismissed Mrs. Family from his care during that visit.

43. From May 31, 2018, up until the time of this filing Mr. Family has transported Mrs. Family to her 8:30 A.M weekly meeting on most Wednesdays and will likely continue with that activity on most Wednesdays until Mrs. Family feels comfortable driving herself that distance.

44. August 4. 2018 Mr. Family transported Mrs. Family to her quarterly big meeting. Mr. Family has transported Mrs. Family to these meetings each quarter up until the time of this filing and will likely continue with that activity on most quarters until Mrs. Family feels comfortable driving herself that distance.

V. CLAIMS FOR RELIEF

COMMON PLEADINGS

45. Plaintiffs incorporate by reference as if fully set forth herein the allegations contained in the paragraphs above.

46. Under the relevant State Laws persons are defined to include corporations.

47. Plaintiffs will prove via a preponderance of the evidence that all of the claims and allegations are true.

48. Plaintiffs will prove using clear and convincing evidence that the claims and allegations which require that standard are true.

49. Each Plaintiff is interested in the welfare of all other Plaintiffs and all harms to any Plaintiff were a harm to all plaintiffs.

50. Plaintiffs individually sustained economic and/or non-economic losses, resulting in damages in an amount to be proven at trial.

51. Has to all of the defendants, all of the relevant actions which led to the Plaintiff’s harms and/or losses in all the claims and allegations were performed by a person authorized to act in behalf of a corporation or association.

52. Has to all of the defendants, all of the relevant actions which led to the Plaintiff’s harms and/or losses in all the claims and allegations in that the relevant acts were authorized, requested, commanded, performed, or recklessly tolerated by a person who had duties of such responsibility that their conduct reasonably may be assumed to represent the policy of the corporation on behalf of the corporation and within the scope of their office or employment.

53. Each Defendant’s relevant actions in all the claims and allegations which preceded the injury were voluntarily performed.

54. Each Defendants’ individual acts in all claims were a proximate cause of the harms and/or losses to the Plaintiffs. Those harms and/or losses would not have resulted if any Defendant had independently acted differently.

55. In all of the claims, each defendant maliciously, intentionally, knowingly, and/or recklessly engages in conduct alleged.

56. Each defendant acted intentionally since the result of their conduct was to cause and/or threaten to cause more than objectionable touching with the conscious objective of forcing those persons preventing the machine door from closing to move from the path of the doorway in order to allow the door to close.

57. Each Defendant independently acted knowingly has to the in that they were aware that the nature of ASSAULT Mode of operation was to cause and/or to threaten to cause more than offensive touching.

58. Each Defendant independently acted knowingly has to the circumstances surrounding ASSAULT Mode’s operation in that they knew that ASSAULT Mode would operate at any time after the machine door was open for the preset period of time regardless of what was preventing the door from closing.

59. Each Defendant independently acted knowingly has to the offensive touching or threat thereof since they were aware that ASSAULT Mode’s operation was designed to purposely touch or threaten to touch in a manner which was more than offensive touching and therefore it was reasonably certain to cause or threaten to cause more than offensive touching.

60. Each Defendant’s relevant acts in all the claims were reckless.

61. Has to all claims, each Defendant individually acted recklessly has to all relevant claims or allegation in that each actor was aware that ASSAULT Mode was specifically designed to cause or threaten to cause more than objective touching but the person performing the acts alleged consciously disregarded the almost certain risk that the machine door would make or threaten to make forceful physical contact with whomever was preventing the door from closing. Any ordinary person would exercise care prior to forcibly closing a door but the persons who authorized, requested, commanded, performed the selection of, and/or recklessly tolerated the use of ASSAULT Mode allowed their machine to disregard the situation preventing the door from closing yet allowed the machine to continue to forcibly attempt to close the door irrespective of the circumstances.

62. Each Defendant’s relevant acts in all the claims were negligent.

63. Each Defendant individually had a hightened duty to ensure that those who used their machines, or the machines in a building they had a measure of control over, to use a high degree of care toward those persons to protect them from an unnecessary risk of harm.

64. Each Defendant individually breached their duty of care when they authorized, requested, commanded, performed, and/or recklessly tolerated the use of ASSAULT Mode in the machines or the machines in a building they had a measure of control over since its operation was specifically designed to cause or threaten to cause bodily injury in the form of more than objectionable touching.

65. In all of the claims each corporation individually had a measure of control at times relevant to the planning, construction, and operation of the hotel sufficient to have independently prevented the use of Assault mode and thereby prevented the injury to Mrs. Family.

66. Each Defendant individually had knowledge sufficient enough to have foreseen that ASSAULT Mode would cause bodily injury in the form of more than offensive touching since that was it designed purpose.

67. The use of ASSAULT Mode was the direct cause of Mrs. Family’ initial bodily injury which was the door shoving her to an extent that it was more than objective touching.

68. Mrs. Family’ initial bodily injury led to all of the harms and losses incurred by each Plaintiff individually

69. Each Defendant’s relevant acts in all the claims were grossly negligent.

70. Has to all Defendants, the defendants were grossly negligent in that the actors who authorized, requested, commanded, performed, and/or recklessly tolerated the use of ASSAULT Mode in the machines, or the machines in a building, they had a measure of control over at the time of their actions knew that the use of ASSAULT Mode and/or similar machine door control methods involves an almost certain risk of causing or threatening to cause bodily injury in the form of more than objectionable touching and considering that there was a high probability that more serious injuries could occur and had occurred in the past, which they were aware of due to the number of claims from injuries the corporations had received from machine doors, especially to persons of limited strength and/or mobility yet they proceeded with conscious indifference to the rights, safety, or welfare of others and compounded that risk with the elimination of the mechanical safety device almost all users had come to expect to exist on the machine's door edges.

71. Each Defendant was independently culpable for all their relevant acts in all claims.

72. Each Defendant is independently liable in all relevant claims.

73. Plaintiffs are entitled to exemplary damages for each claim.

74. Plaintiffs are entitled to unlimited exemplary damages for each claim.

75. Plaintiffs are entitled to their reasonable attorneys’ fees and costs of suit in each claim.

76. Plaintiffs are entitled to contingent appellate awards in each claim.

77. In all of the claims the corporations are independently responsible for the result since the injury to Mrs. Family would not have occurred but for the conduct of each corporation acting alone.

78. In all of the claims the entity or entities liable for the claim were responsible for causing the ultimate result since they independently desired the initial result of bodily injury in the form of more than offensive touching or threat thereof to occur to any or any or all individuals who prevented the doors from closing.

79. In all of the claims the use of $8B manufacturer’s ASSAULT Mode was the producing cause of Mrs. Family’ injury. $8B manufacturer among other things incorporated it into the machine’s design. $5B owner among other things approved or selected it has the operating mode. And defendants Hotels and $80B Superior among other things selected, authorized, requested, commanded, performed, and/or recklessly tolerated its use or potential use for the hotel.

80. In all of the claims each defendant was aware that ASSAULT Mode was designed purposefully to cause bodily injury, has defined by State’s courts, in that the machine doors were designed for “more than offensive touching” with the purpose of provoking the person affected into their desired action of moving in order to allow the machine doors to close in a misguided attempt to make the machine operate more productively. This was a misguided since any person of physical means could have physically forced the door to remain open either by repeatedly producing the force required to cause the door to retract, could have repeatedly or continuously pressed the Door Open button on the machine’s Control Panel or the Button in the area, or by placing an object in the doorway.

81. In all of the claims each defendant was aware of or should have been aware of the potential for injury presented to persons of limited mobility and/or strength who would be unable to move quickly enough to clear the doorway, be physically unable to create the 30 to 35 pounds of force sufficient to prevent the door from continuing to close while they physically attempted to prevent the door from closing, and/or were unable to take any meaningful action to prevent additional injury from occurring.

82. In each of the claims each defendant was, or should have been, aware of the fact that the closing of machines doors is one of the leading factors in claims due to injury from machines.

83. In each of the claims each defendant was, or should have been, aware that the failure to install one of a most common safety devices, the mechanical safety device, historically installed in most machines and expected to be found by most machine users, along with the disabling of the electrical sensor during ASSAULT Mode’s operation of closing the machine doors presented an unreasonably unsafe condition.

84. Defendant $8B manufacturer created and serviced the machines at the hotel and could have prevented the use of ASSAULT Mode on their own initiative and that act would have prevented Mrs. Family injury.

85. Defendant $8B manufacturer’s actions in this claim included a fraudulent misrepresentation as to the safety of their product. $8B manufacturer knew that machine doors were a cause of a large portion of claims related to injuries from machines. $8B manufacturer did not mention in their product manual the potential for harm from using ASSAULT Mode nor the fact that many jurisdictions, building specifications, and authorities did not allow Assault mode to be used. A more prudent manufacturer included a warning concerning the use of an operating mode precisely like ASSAULT Mode in their product manuals.

86. Defendant $8B manufacturer’s actions in this claim included a fraudulent misrepresentation as to the safety of their product. $8B manufacturer specifically made multiple claims that presented ASSAULT Mode has a safe operating mode in their online definition of ASSAULT Mode.

87. Defendants $5B owner, Hotels, and/or $80B Superior were aware of and specified, authorized, requested, commanded, and/or recklessly tolerated the use of ASSAULT Mode for the machine operation at the hotel and could each have independently prevented the use of ASSAULT Mode on their own initiative and that act by any of them would have prevented Mrs. Family injury.

88. Mrs. Family relied on the assertion in public advertising of the hotel has “Big Name by $80B Superior” and by which Defendants Hotels and/or $80B Superior were perceived has the apparent agent and/or authority.

89. No ordinary person if faced with the decision to close a door or not when they knew that someone or something was blocking the door would only do so in extreme circumstances with knowledge of what is blocking the door and the potential for injury which could have occurred if the door had been forcefully closed.

90. There are many examples of prudent owners, superior agents, governmental, and quasi-governmental agencies which take active measures to ensure that ASSAULT Mode or a similar operating mode is not used in the buildings where that have control.

91. There are examples where prudent machine manufacturers warn customers of issues related to machine operations similar to ASSAULT Mode.

92. The use of the term "Big Name by $80B Superior" created a reasonable belief by Mrs. Family and others that Defendant Hotels and/or Defendant $80B Superior had acted to create a safe and comfortable quality environment for the guests of the hotel.

93. Each defendant acted with malice in that their acts or omissions created an extreme degree of risk of bodily injury in that each defendant knew that ASSAULT Mode was created specifically for the purpose of causing and threatening to cause bodily injury and they individually acted with actual and subjective awareness of the purpose of ASSAULT Mode yet proceeded with conscious indifference to the safety of the users of the machines.

94. The definition of ASSAULT Mode shows that the machine was intentionally designed to shove or threaten to make bodily contact, with up to 35 pound of force, for the purpose of causing whomever is in the way to move therefore that is an intentional infliction of bodily injury, or threat to inflict bodily injury, since it is "more than offensive touching". Since that was the purpose of ASSAULT Mode it is designed to inflict bodily injury and therefore bodily injury would be a substantial certainty.

95. Each Defendant knew that most persons would consider a door closing while they were in the doorway to be objectionable.

96. Each Defendant knew that most persons would consider a door closing while they were in the doorway to be offensive.

97. Each Defendant knew the operation of ASSAULT Mode was for the purpose of provoking persons who were preventing the door from closing into the action of clearing the doorway which the Defendant desired.

FIRST CLAIM FOR RELIEF

Defendant $8B manufacturer Inc. caused Mrs. Family’ severe bodily injury on April 21, 2018 because of an unreasonably dangerous product design and fraudulent marketing claim which led to all plaintiffs’ losses.

98. Plaintiffs incorporate by reference as if fully set forth herein all allegations above.

99. Defendant $8B manufacturer had a heightened duty to make safe or warn against any concealed, unreasonably dangerous conditions presented by their product of which they were or reasonably should have been aware of, but the user was not.

100. Chapter of State’ Civil Practices and Remedies Code provides for a products liability action against a seller and/or manufacturer based on a design defect.

101. $8B manufacturer Incorporated designed the ASSAULT Mode to close the machine door if the entryway is blocked by disabling the photo-electric sensor and the design also eliminated the mechanical safety device which could be used with little effort to cause the machine door to retract to the fully open position if pressed. This design led to all of the Plaintiffs’ losses.

102. Allowing the machines $8B manufacturer approved and/or permitted to operate at the hotel to operate with the door-blocked photo-electric sensor disabled and without a mechanical safety device in place directly led to all of the Plaintiffs’ losses.

103. $8B manufacturer marketed their machines which use ASSAULT Mode even though they knew of a potential risk of harm presented by the product but marketed it without adequately warning of the danger or providing instructions for safe use.

104. Defendant $8B manufacturer were or should have been aware of the fact that the disabling and removal of safety devices presented an unreasonable risk of injury to those who used their machines. Particularly the increased risk presented to persons of limited mobility like Mrs. Family.

105. Operating the machine without the ASSAULT Mode enabled would be a safer alternative and its implementation would involve nothing more than the selection of a different parameter already available on the machine control’s computer ap.

106. Initiating an automated call system if the door was open for an excessive period of time through using the existing emergency intercom system would not only provide greater safety in that the blocked machine doors would initiate an investigation and might locate persons who were blocking the door but unable to access the emergency call system, it would allow the management of the facility to identify a malfunctioning door-blocked sensor, and it would ensure that the hotel was aware when a doorway was blocked for an excessive amount of time. This alternate design would involve no more than a computer ap update.

107. With the disabling of the Assault mode, the warnings would no longer function but a computer ap update could quickly and with little expense be installed on all of the machines which offer Assault mode which would initiate a verbal request such has “please allow the doors to close” instead of the current message, which is “please remove the obstruction from door”, which when intermixed with the current alarm buzzer could sound on a repeated cycle until the emergency intercom is activated on the control panel or by the automated means above.

108. The use of ASSAULT Mode was a producing cause of Mrs. Family initial bodily injury which led to all plaintiffs’ losses for which the Plaintiffs seeks recovery.

SECOND CLAIM FOR RELIEF
Defendant $5B owner is liable for all of the plaintiffs’ losses due to an unsafe condition on their premises.

109. Plaintiffs incorporate by reference as if fully set forth herein all allegations above.

110. Defendants had a heightened duty to make safe or warn against any concealed, unreasonably dangerous conditions of which the landowner is, or reasonably should be, aware but the invitee is not.

111. Defendants were or should have known that operating a machine with the most commonly used safety devices eliminated or disabled would create an unreasonable risk of injury to those who used their machines. Particularly to the increased risk presented to persons of limited strength and/or mobility like Mrs. Family.

112. Defendants knew about the dangerous condition.

113. The unsafe condition was concealed.

114. Mrs. Family was not aware of the danger.

115. Defendants did not take any action to eliminate the dangerous condition.

116. The dangerous condition could have been eliminated at little or no cost by directing that the $8B manufacturer discontinue use of the Assault mode option.

117. As a direct, legal, and proximate result of the injury caused by this dangerous condition, Plaintiffs sustained economic and non-economic losses, resulting in damages in an amount to be proven at trial.

THIRD CLAIM FOR RELIEF
Each defendant’s individual actions caused physical contact between an elderly individual, Mrs. Family, and the machine door which caused her bodily injury on April 21, 2018 which led to all plaintiffs’ losses.

118. Plaintiffs incorporate by reference as if fully set forth herein all allegations above.

119. Each defendant is independently liable for causing bodily injury to Mrs. Family in that their actions directly led to the physical contact between her and the machine doorway.

120. The physical contact was intentionally initiated.

121. The physical contact was more than offensive touching.

122. Each defendant knew that the physical contact with the machine door was a likely result of the use of ASSAULT Mode.

123. Each defendant knew that the closing of the door would be regarded as a threat of physical contact to any individual in the doorway.

124. Each defendant knew that Assault mode was designed to provoke people into clearing the machine’s doorway.

125. Each defendant knew that most persons would consider a door closing while they were in the doorway to be objectionable.

FOURTH CLAIM FOR RELIEF
All Defendants are strictly liable for all of the plaintiffs’ losses.

126. Plaintiffs incorporate by reference as if fully set forth herein all allegations above.

127. The use of ASSAULT Mode without a mechanical safety bar created an inherently dangerous condition in that ASSAULT Mode is specifically designed to cause or threaten to cause bodily injury in the form of more than offensive touching.

128. $8B manufacturer as the machine manufacturer and service provider, $5B owner has the building owner, $80B Superior has the superior respondent, and Hotels has the apparent agent and/or authority each individually are liable for injuries caused from the us of ASSAULT Mode.

129. The use of ASSAULT Mode was the direct, legal, and proximate cause of Mrs. Family’ initial bodily injury.

130. All of the plaintiff’s losses were a direct result of the initial bodily injury to Mrs. Family.

DECLARATORY and INJUNCTIVE RELIEF ALLEGATIONS

131. If this Court does not grant the injunctive relief sought herein Plaintiff Mrs. Family and others similarly situated will be at risk of injury from machines using ASSAULT Mode and control methods similar to ASSAULT Mode in the future.

132. Many other machine manufacturers and service companies install or service machine control systems which operate similarly to $8B manufacturer’s ASSAULT Mode where the machine doors will close when the users don’t expect them to close and without a mechanical safety device and all persons affected would be subject to bodily injury while those of limited strength and/or mobility would be subject to severe bodily injury.

PRAYER FOR RELIEF

133. WHEREFORE, Plaintiffs pray for relief as follows:

DECLARATORY RELIEF
134. for a declaration that ASSAULT Mode is unsafe and likely to cause bodily injury to all persons affected by its operation,

INJUNCTIVE RELIEF

135. for an injunction requiring all defendants found to share liability to ensure that Assault mode or a similar operating system is not used where there is no functioning mechanical safety device at any location where they have control,

136. for an injunction requiring all defendants found to share liability to inform all of the entities with whom they have a contractual relationship with which have or can be expected to have control of machines of the factual findings of this action deemed relevant by the court and any declarative relief granted,

137. for an injunction requiring all defendants found to be more than 20 percent liable to jointly create an plan acceptable to the court to inform the Administrator of General Services, the Secretary of Health and Human Services, the Secretary of Housing and Urban Development, the Secretary of Defense, the United States Postal Service, each State’s administrative agency tasked with developing machine safety standards or rules, the American Society of Mechanical Engineers, and/or the Machine Safety Foundation of the factual results of this action deemed relevant by the court and any declarative relief granted,

138. to include within the injunction prayed for in the preceding paragraph and/or for a separate injunction requiring all defendants found to be more than 20 percent liable to jointly present an plan acceptable to the court to advertise the factual results of this action deemed relevant by the court and any declarative relief granted in the most most popular trade journals or other publications designed to appeal to building operations managers and building designers,

139. for further injunctive relief requiring the defendants subject to either of the injunctive relief requested in the previous two paragraphs to implement any plan approved by the court,

ECONOMIC RELIEF

140. for exemplary damages in an amount to be determined at trial,

141. for unlimited exemplary damages in an amount to be determined at trial,

142. for punitive damages in an amount to be determined at trial,

143. for economic and non-economic damages, in an amount to be proven at trial,

144. for pre- and post-judgment interest and an upward adjustment for inflation where permitted by law,

145. for contingent appellate awards,

146. for reasonable attorneys’ fees, and

147. for costs of suit, and

148. for such other and further relief as this Court deems just and proper.

Dated: _______________ Respectfully submitted:


DEMAND FOR JURY TRIAL
Plaintiffs demand a jury trial on all causes of action and claims to which they have a right to a jury trial.

Dated: _______________ Respectfully submitted:
I have approached multiple lawyers but none have been acceptable.

A new small firm demanded that the client spend their own money on experts for a dubious claim which the client believed the facts did not support.

Mid sized firm was stuck on maintenance defects which the facts did not support and would not have been successful since the owner and service company was not aware of any defect since non existed.

Big firm did not see any value since they would eat the small award they envisioned through their own experts, costs, and fees plus repayment to insurance company.

Elder lawyer we respected was retiring but he liked the case. His suggestion was to get a lawyer in the Land of Far Far Away since we might get a bigger award there even though we could get a small 7 figure award even if we can't prove intent or foreknowledge. Intent or foreknowledge which would get us an unlimited award from a courthouse ten miles from home. We would be completely satisfied with the small 7 figure award.

Non understood that Mr. Family was actually an expert in the field needed for showing that the machine was unsafe and how it could be improved.

Any suggestions would be appreciated.

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Orlylicious
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Re: Comments solicited Family v $80B company

#2

Post by Orlylicious » Wed May 01, 2019 9:13 pm

The work you've put in shows.

What machine is this? For me, it wasn't clear. Like an ice machine? Or some kind of video game? Maybe explaining and/or having a link will help. ASSAULT mode doesn't sound like something I'd get near... how did she end up hit by the machine?

A lot of times soda machines and other concessions are owned by third parties who service, was this machine owned and operated by the hotel?
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Re: Comments solicited Family v $80B company

#3

Post by Maybenaut » Wed May 01, 2019 9:20 pm

You need a lawyer.
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Re: Comments solicited Family v $80B company

#4

Post by woodworker » Wed May 01, 2019 9:26 pm

Maybenaut wrote:
Wed May 01, 2019 9:20 pm
You need a lawyer.
:yeah:
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Tomtech
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Re: Comments solicited Family v $80B company

#5

Post by Tomtech » Wed May 01, 2019 9:34 pm

Orlylicious wrote:
Wed May 01, 2019 9:13 pm
The work you've put in shows.

What machine is this?
Thank you.

Yes the machine is owned and operated by the hotel. I would bet you have been around similar but safer versions of these machines many times in the past.
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Re: Comments solicited Family v $80B company

#6

Post by Orlylicious » Wed May 01, 2019 9:40 pm

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Re: Comments solicited Family v $80B company

#7

Post by Addie » Wed May 01, 2019 9:46 pm

I'm no help, but hiya :wave:

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Dan1100
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Re: Comments solicited Family v $80B company

#8

Post by Dan1100 » Wed May 01, 2019 9:57 pm

You need a lawyer.

Off the top of my head. They are going to have an experts that says the machine was fine. You are going to need your own expert. They are going to have a hired gun doctor that says you family member is better off with her broken leg (not quite but almost). You are going to need to deal with the insurance coverage issues and the medical liens. You are going to need to depose at least your main treating doctor (doctors don't go to court) and get him or her to say the magic words.

You need a lawyer that has experience trying those sorts of cases. It sounds like a good case. Keep shopping around until you find a lawyer you are happy with.

Don't dismiss the guy who told you to go someplace not local. Choosing where the case will be tried is a huge advantage for plaintiffs and can make a big difference. A case worth $25,000 in the middle of nowhere in the Ozarks can be worth $500,000 in Madison County, Illinois.
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Re: Comments solicited Family v $80B company

#9

Post by Tomtech » Wed May 01, 2019 10:36 pm

Dan1100 wrote:
Wed May 01, 2019 9:57 pm
are going to have an experts that says the machine was fine.

You are going to need to deal with the insurance coverage issues and the medical liens.

You are going to need to depose at least your main treating doctor (doctors don't go to court) and get him or her to say the magic words.

You need a lawyer that has experience trying those sorts of cases.
The machine was fine. Every case I have seen which went to appeal was lost because the machine was fine and the plaintiff or their attorney didn't go the route we will go even though the facts showed that they should have.

We are aware that most of our economic recovery will need to be placed in escrow in case Medicare comes for it.

I don't see where any lawyers have tried a case like this the way I think it should be presented.

I have 25 years verifiable experience in machine control and safety. I can't put my education into a public document but a judge can review it in camera and he will agree I have enough training in machine safety to pass any Dauber test with my 25 years of experience in the field which culminated in an extremely respected position.

That is where we need to go but we may need an expert on elevator safety to show that doors are the source of 40% of claims related to elevators unless I, has a machine safety expert, can introduce the documented research I have located online.

Two issues are stumping me. Introducing third party research and showing the jury just how much force the doors create. Can I give the jury a calibrated bathroom scale and have them press it until it reads thirty five pounds?

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Re: Comments solicited Family v $80B company

#10

Post by Tomtech » Wed May 01, 2019 10:40 pm

Dan1100 wrote:
Wed May 01, 2019 9:57 pm
They are going to have an experts that says the machine was fine.
Can I ask their expert how many cases they have dealt with where doors were an issue and if they know what percentage of elevator injury reports faulted the doors in some way?

My main issue is every defendant had to be aware that doors were a problem yet they intentionally allowed the door to operate without the main backup safety device even installed while completely disabling the only safety device left.

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Re: Comments solicited Family v $80B company

#11

Post by Dan1100 » Wed May 01, 2019 11:21 pm

All the things you ask are things that vary from state to state.

I know it isn't what you want to hear. You need a lawyer. I wouldn't represent myself on a case like this in a million years and I'm willing to bet there isn't a lawyer on this board that would either.
"Devin Nunes is having a cow over this."

-George Takei

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Re: Comments solicited Family v $80B company

#12

Post by Tomtech » Wed May 01, 2019 11:29 pm

Dan1100 wrote:
Wed May 01, 2019 11:21 pm
All the things you ask are things that vary from state to state.

I know it isn't what you want to hear. You need a lawyer. I wouldn't represent myself on a case like this in a million years and I'm willing to bet there isn't a lawyer on this board that would either.
We are probably going into Federal Court.

I wish I had a lawyer but I haven't found one.

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Re: Comments solicited Family v $80B company

#13

Post by Dr. Caligari » Wed May 01, 2019 11:30 pm

You need a lawyer.

I am a lawyer, but I am not your lawyer. I cannot give you legal advice-- only someone who could speak to you in confidence to learn all the facts could do that.

Having said that, I will tell you that going to court without a lawyer in anything more momentous than a small claims case is folly. You may know the subject matter, but you don't know how courts work. I was only 12 paragraphs into your draft complaint and I found a serious flaw that would get your case thrown out of federal court. Had I kept reading, I doubtless would have found more.

This is not a dig at you. I do this for a living; you don't.

You need someone who does this for a living.
J.D., Miskatonic University School of Law

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Re: Comments solicited Family v $80B company

#14

Post by Tomtech » Wed May 01, 2019 11:31 pm

Dr. Caligari wrote:
Wed May 01, 2019 11:30 pm
You need a lawyer.

I am a lawyer, but I am not your lawyer. I cannot give you legal advice-- only someone who could speak to you in confidence to learn all the facts could do that.

Having said that, I will tell you that going to court without a lawyer in anything more momentous than a small claims case is folly. You may know the subject matter, but you don't know how courts work. I was only 12 paragraphs into your draft complaint and I found a serious flaw that would get your case thrown out of federal court. Had I kept reading, I doubtless would have found more.

This is not a dig at you. I do this for a living; you don't.

You need someone who does this for a living.
Can you tell me what flaw?

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Re: Comments solicited Family v $80B company

#15

Post by Dan1100 » Wed May 01, 2019 11:36 pm

Tomtech wrote:
Wed May 01, 2019 11:29 pm
Dan1100 wrote:
Wed May 01, 2019 11:21 pm
All the things you ask are things that vary from state to state.

I know it isn't what you want to hear. You need a lawyer. I wouldn't represent myself on a case like this in a million years and I'm willing to bet there isn't a lawyer on this board that would either.
We are probably going into Federal Court.

I wish I had a lawyer but I haven't found one.
Keep looking, you'll find someone you like.
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Re: Comments solicited Family v $80B company

#16

Post by Dr. Caligari » Wed May 01, 2019 11:40 pm

Tomtech wrote:
Wed May 01, 2019 11:31 pm
Can you tell me what flaw?
Again, I cannot give you legal advice. But, from the face of the draft complaint, diversity of citizenship jurisdiction is certainly not properly alleged, and quite possibly doesn't exist at all.

But this is just one example. There are a lot of procedural hurdles a case has to go through before a court gets anywhere near to deciding the merits, and without a lawyer, you are unlikely to get over those hurdles.
J.D., Miskatonic University School of Law

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Re: Comments solicited Family v $80B company

#17

Post by Sterngard Friegen » Thu May 02, 2019 12:07 am

You need a lawyer.

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Re: Comments solicited Family v $80B company

#18

Post by Tomtech » Thu May 02, 2019 12:08 am

Dr. Caligari wrote:
Wed May 01, 2019 11:40 pm
Tomtech wrote:
Wed May 01, 2019 11:31 pm
Can you tell me what flaw?
Again, I cannot give you legal advice. But, from the face of the draft complaint, diversity of citizenship jurisdiction is certainly not properly alleged, and quite possibly doesn't exist at all.

But this is just one example. There are a lot of procedural hurdles a case has to go through before a court gets anywhere near to deciding the merits, and without a lawyer, you are unlikely to get over those hurdles.
I don't get where you are coming from.
The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between—
(1) citizens of different States;
Two plaintiffs are in one state while a third is in another. The defendants are all headquartered in separate states yet none are in the state where the plaintiff's are. This is shown in the section on Party's.

I did not go into where the defendants operate but they are all major corporations which each have operations within the District and two of them operate in the Division which the action would be filed.

The attorney who reviewed the case but was retiring and wouldn't be able to take the case said we could file in federal court anywhere in the country since the defendants operations were that widespread.

Does the complaint have to specifically show that at least one of the defendants have operations within the state. Would they file a motion to remand or for dismissal based on jurisdiction knowing they have operations within the district and division?

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Re: Comments solicited Family v $80B company

#19

Post by Maybenaut » Thu May 02, 2019 12:18 am

Tomtech, you’re asking for legal advice. You’re probably not going to get that here. For your own sake, and that of your co-plaintiffs, you really should get a lawyer.
"Hey! You know, we left this England place because it was bogus. So if we don't get some cool rules ourselves, pronto, we'll just be bogus too." - Thomas Jefferson

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Re: Comments solicited Family v $80B company

#20

Post by SLQ » Thu May 02, 2019 12:45 am

Maybenaut wrote:
Thu May 02, 2019 12:18 am
Tomtech, you’re asking for legal advice. You’re probably not going to get that here. For your own sake, and that of your co-plaintiffs, you really should get a lawyer.
The other issue you have is that even if you have diversity jurisdiction, you'll be applying state law, not federal.
"Try not. Do or do not. There is no try."
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Re: Comments solicited Family v $80B company

#21

Post by boots » Thu May 02, 2019 1:35 am

Dan1100 wrote:
Wed May 01, 2019 9:57 pm
You need a lawyer.

Off the top of my head. They are going to have an experts that says the machine was fine. You are going to need your own expert. They are going to have a hired gun doctor that says you family member is better off with her broken leg (not quite but almost). You are going to need to deal with the insurance coverage issues and the medical liens. You are going to need to depose at least your main treating doctor (doctors don't go to court) and get him or her to say the magic words.

You need a lawyer that has experience trying those sorts of cases. It sounds like a good case. Keep shopping around until you find a lawyer you are happy with.

Don't dismiss the guy who told you to go someplace not local. Choosing where the case will be tried is a huge advantage for plaintiffs and can make a big difference. A case worth $25,000 in the middle of nowhere in the Ozarks can be worth $500,000 in Madison County, Illinois.
^ agreed. Don't be team Dunning-Kruger. Chuck your complaint into the nearest wastebasket; it's terrible. Hire a lawyer who knows this kind of case.

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Re: Comments solicited Family v $80B company

#22

Post by Mikedunford » Thu May 02, 2019 2:35 am

You need a lawyer.
"I don't give a fuck whether we're peers or not."
--Lord Thomas Henry Bingham to Boris Johnson, on being asked whether he would miss being in "the best club in London" if the Law Lords moved from Parliament to a Supreme Court.

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Re: Comments solicited Family v $80B company

#23

Post by MN-Skeptic » Thu May 02, 2019 2:55 am

If the company has $80B in sales, I can guarantee that they have a large staff of in-house lawyers who are VERY experienced at litigating cases like yours. You won’t have a chance on your own. You need to find a lawyer experienced in this specific area of law. It’s good that you’ve done your research. That will help you when you interview lawyers and as the case proceeds.

No, I’m not a lawyer but I’ve lived long enough to know when it makes sense to hire an experienced professional.
MAGA - Morons Are Governing America

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Re: Comments solicited Family v $80B company

#24

Post by Mikedunford » Thu May 02, 2019 3:49 am

Like the other lawyers here, I'm not going to give you legal advice on your complaint. It would be unethical to do so.

But I think I might be able to give you a series of questions that you can ask yourself while you're thinking about whether or not to keep going without a lawyer. Please note that this list is not intended to be comprehensive. It's just intended to be a starting point for that thought process.
  1. Are you familiar enough with similar cases to know what to expect in terms of the course of litigation?
  2. Are you familiar enough with similar cases to know what a typical recovery would be?
  3. Are you familiar enough with the local judicial landscape to know which court is the best option? (Even when federal is available, it might not be the best choice.)
  4. Can you be confident you have identified the correct legal entities to sue?
  5. Are you familiar enough with federal civil procedure, including any recent developments, to be confident you have correctly identified and pled all relevant factors for determining where a corporation is domiciled for purposes of diversity jurisdiction?
  6. Do you know which state's tort law will be applied to the case?
  7. Are you confident that you've identified all the causes of action that are both reasonable based on the facts and available under the law of that state?
  8. Are you sure you've matched the correct defendant with the correct cause of action?
  9. Do you understand the rules for damages?
  10. Do you know the tort law for the state well enough to be sure whether each named plaintiff can establish a right to independent recovery?
  11. Do you know what "elements" are in law?
  12. Do you know how to identify the elements of each cause of action?
  13. Do you know how to be sure that you've properly stated a claim for each cause of action?
  14. Do you understand the difference between a 12(b)(1) motion to dismiss, a 12(b)(6) motion, and how to successfully respond to either?
  15. Do you understand your burden at the motion to dismiss stage?
  16. Do you understand your burden at the summary judgment stage?
  17. Do you know how the jurisdiction you are in handles any acts by the plaintiff that may have been a factor in the damages?
  18. Do you know how to request discovery?
  19. Do you know how to request discovery in a way that won't get you buried under 18 boxes of paper with the information you need scattered throughout?
  20. Do you know who you'd have to depose?
  21. Do you have the financial resources to deal with the required logistics for the depositions? (Hiring SECRs, etc)
  22. Do you understand why there would be benefits to using an independent expert?
  23. Do you know how to formulate interrogatories so that they will produce relevant information that goes to the elements of the claims?
  24. Do you know what questions can, can't, should, and must be asked in each deposition?
  25. Do you know this well enough to know how to deal with questions that are improper?
  26. Do your co-plaintiffs have that level of knowledge, too? (You won't be their lawyer.)
  27. Do you know how to meet your burden at summary judgment stage?
  28. Do you know how to respond to their summary judgment motion when it comes?
I'm sure the other lawyers could add many more such questions to the list.


I don't know the answer to all those questions. And even if I did, I still wouldn't dream of representing myself or my close family in a case like this. Personal involvement leads to mistakes.

I'll go one beyond that:
The area of law that I know the best right now (at least in my own view) is the parody-satire distinction in fair use. I've spent a lot of hours of study on it. I'm very familiar with the current state of the law.* I'm familiar with how it's handled in different circuits.** And if a good friend who didn't have money to hire an attorney came to me needing a lawyer to help defend them in a copyright suit where the parody-satire distinction in fair use was likely to be the crucial defense, in a jurisdiction where I can practice, I'd probably help them. If, that is, and only if, I could also find someone willing to help with litigation experience.

Do-it-yourself open heart surgery is a bad idea. Do-it-yourself law is a slightly less bloody one.



*epic shitshow
**I'd say there's a circuit split, but the law isn't that coherent.
"I don't give a fuck whether we're peers or not."
--Lord Thomas Henry Bingham to Boris Johnson, on being asked whether he would miss being in "the best club in London" if the Law Lords moved from Parliament to a Supreme Court.

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Re: Comments solicited Family v $80B company

#25

Post by Tomtech » Thu May 02, 2019 4:22 am

I have no problem with hiring a lawyer but reviewing appellant decisions leads me to belief that hiring the right lawyer is better than hiring a lawyer.

It seems that too many cases I have reviewed are lost by a lawyer's failure even where the facts support the client.

I have only found two appellant cases where the facts are almost exactly similar to mine and in both of those a pleading could have been won had the case been presented the way I am proposing but the lawyers worked off of a different theory and both were lost through summary judgement and the appeals rejected because there were no facts which showed the elevator had issues while the attorney tried to claim those facts were not needed.

I want to be has informed has best has I can be and with a year until the case must be filed there is plenty of time to learn.

I was hoping for some guidance from those here with much more knowledge of the law and procedures than I have so they can give me some ideas where I may be off base in order to help me ensure that my lawyer does not make the mistakes and that I am not chiding the lawyer on issues where I am wrong.

Take the issue of jurisdiction mentioned above. Dr. Caligari seems to post that the case would be lost on a motion to remand and I assume that I could lose the chance to continue in state court if I cannot have the case filed in time plus the case could easily end of in a notoriously defendant friendly court. I still don't see my error since Hertz Corp seems to make what I posted correct but something may need to be added to the paragraph on jurisdiction and a pointer about that would ensure I don't allow our lawyer to make the same mistake. I could also be totally off base where multiple defendants are concerned even though none of them are headquartered in the state and I don't want to end up trying to persuade a potential lawyer that I am right where I am clearly wrong.

One of the lawyers I talked to, whose firm had handled elevator cases before would not even tell me a general idea has to his success rate for plaintiffs even about the main case where he chided his experience, didn't even mention the possibility of going into federal court while lamenting the fact that the state court he was sure we had to file in was notoriously hard on plaintiffs, was insistent on a multitude of theories which could not be supported by the facts but would be costly for the plaintiffs to try and prove where the plaintiffs didn't believe it could be proven, and they did not even raise the possibility of premises liability or the bodily injury portion which is required to get the damages cap eliminated.

The lawyer who liked the case but was too old to take it spent more than half of our interview trying to prove a claim about the law which would limit our potential recovery which he could not find and I haven't found since then. I really had respect for him to the point of working for him when he ran for an appellant court seat.

Another lawyer went exclusively to premises liability while totally dismissing the idea of product liability, didn't bring up the potential for federal jurisdiction, and didn't mention the bodily injury claim needed to get over the damages cap.

I spent time looking at some highly touted state attorney's websites and found multiple glaring errors in the law on their information pages and blog entries which were relevant to the case.

Finding the right lawyer is hard from what I have seen and finding one who is unwilling to explain their thinking about why they would go with the case in a different manner than what I am proposing seems to be almost impossible.

For those reasons I had hoped to come here where a lot of lawyers actually post and have good reputations in order to learn where I am wrong and where I am right so that I won't have to ask a prospective attorney why I am wrong and I won't turn them off, like I did with one of those above who wouldn't continue our interview because I asked too many questions, but when I am right I need to know about it so I can decide not to engage an attorney with a belief about the case which is different from what I know on an issue of substance.

Thank you

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