Filed 13 April 16 P3:23 Chris Daniel - District Clerk Harris County ED101J017434128 By: Jerri L.

Coble

Cause No. ______________ BRITTANY TILLMAN and CHRISTOPHER DONALDSON, EACH INDIVIDUALLY and AS NEXT FRIEND OF THEIR MINOR DAUGHTER, BRANIAH TILLMAN, Plaintiff, V. QUALITY AQUATICS POOL MANAGEMENT, LLC; BRAEBURN VALLEY WEST CIVIC ASSOCIATION, INC.; RANDALL Q. SMITH INVESTMENTS, INC. d/b/a RANDALL MANAGEMENT, INC. a/k/a RANDALL MANAGEMENT a/k/a RANDALL REALTY; and MICHAEL K. SMITH, Defendants. IN THE DISTRICT COURT

OF HARRIS COUNTY, TEXAS

_____ JUDICIAL DISTRICT

PLAINTIFFS ORIGINAL PETITION & JURY DEMAND TO OUR HONORABLE JUDGE & JURY OF HARRIS COUNTY CITIZENS: Plaintiffs BRITTANY TILLMAN and CHRISTOPHER DONALDSON, EACH INDIVIDUALLY and AS NEXT FRIEND OF THEIR MINOR DAUGHTER, BRANIAH TILLMAN file this Original Petition against Defendants QUALITY AQUATICS POOL MANAGEMENT, LLC; BRAEBURN VALLEY WEST CIVIC ASSOCIATION, INC.; RANDALL Q. SMITH INVESTMENTS, INC. d/b/a RANDALL MANAGEMENT, INC. a/k/a RANDALL MANAGEMENT a/k/a RANDALL REALTY; and MICHAEL K. SMITH and would respectfully show the following:

 DISCOVERY CONTROL PLAN 1.1 Plaintiffs intend to conduct discovery under Level 2 of Texas Rule of Civil

Procedure 190. PARTIES 2.1 Brittany Tillman (Ms. Tillman) is a resident and citizen of the State of Texas.

Ms. Tillman brings suit both individually and as the next friend of her minor daughter, Braniah Tillman. 2.2 Christopher Donaldson (Mr. Donaldson) is a resident and citizen of the State

of Texas. Mr. Donaldson brings suit both individually and as the next friend of his minor daughter, Braniah Tillman. 2.3 Defendant QUALITY AQUATICS POOL MANAGEMENT, LLC (QUALITY

AQUATICS) is a limited liability company that is organized under the laws of the State of Texas for the purpose of accumulating monetary profit, with its headquarters and principle offices in Harris County, and it may be served by service upon its registered agent for service: Rachael Morant; 7714 Renwick Dr., #125; Houston, Texas 77081. 2.4 Defendant BRAEBURN VALLEY WEST CIVIC ASSOCIATION, INC.

(BRAEBURN VALLEY) is a domestic corporation that is organized under the laws of the State of Texas for the purpose of accumulating monetary profit, with its headquarters and principle offices in Harris County, and it may be served by service upon its registered agent for service: Randall Q. Smith; 6200 Savoy, Ste., 420; Houston, Texas 77036.

~2~

2.5

Defendant RANDALL Q. SMITH INVESTMENTS, INC. d/b/a RANDALL

MANAGEMENT, INC. a/k/a RANDALL MANAGEMENT a/k/a RANDALL REALTY (RANDALL MANAGEMENT) is a domestic corporation that is organized under the laws of the State of Texas for the purpose of accumulating monetary profit, with its headquarters and principle offices in Harris County, and it may be served by service upon its registered agent for service: Randall Q. Smith; 6200 Savoy, Ste., 420; Houston, Texas 77036. 2.6 Defendant MICHAEL K. SMITH (Mr. Smith) is a natural person who resides in

the State of Texas, and he may be served by service upon him individually: at 10878 Westheimer Rd., Ste. 123; Houston, Texas 77042; at 10603 Ella Lee Ln.; Houston, Texas 77042; or wherever he may be found. VENUE & JURISDICTION 3.1 Venue is proper in Harris County under Texas Civil Practice & Remedies Code

15.002(a)(1), as a substantial part of the events or omissions giving rise to this claim occurred in Harris County. In particular, Braniah Tillmans injury occurred in Harris County. 3.2 Ms. Tillman and Mr. Donaldson sue for damages in excess of $125,000.00, and

jurisdiction is proper in this Court. FACTUAL BACKGROUND 4.1 On July 2, 2012, Ms. Tillman and Braniah Tillman attended a pool party (the

Pool Party) hosted 10710 Plainfield St. in Houston, Texas (the Plainfield Property), and at the Braeburn Valley West Civic Association Community Pool (the Braeburn

~3~

Pool), owned by BRAEBURN VALLEY and operated by BRAEBURN VALLEY and RANDALL MANAGEMENT. The Pool Party was hosted by a tenant of the Plainfield Property, which was owned by Mr. Smith, who consented to his tenants hosting of the event and was a member of BRAEBURN VALLEYs homeowners association. 4.2 Upon information and belief, BRAEBURN VALLEY and RANDALL

MANAGEMENT contracted QUALITY AQUATICS to maintain the Braeburn Pool and to provide safety oversight, including lifeguards and medical equipment, at the Braeburn Pool. 4.3 At the time of the Pool Party, the Braeburn Pool water was murky and clouded

due to its having recently been shocked, and the bottom of the pool was not visible. These and other conditions of the Braeburn Pool left it in a dangerous and unsafe condition for invitees, such as Braniah Tillman. 4.4 During course of the Pool Party, QUALITY AQUATICS lifeguards Nicole

Matejowsky and Chrissa Thomas watched Braniah Tillman leave the area of the Braeburn Pool occupied by the other attendees, cross under the rope dividing the pool and into the deep end of the Braeburn Pool. Ms. Matejowsky and Ms. Thomas then continued to watch as Braniah Tillman, clearly in distress, became submerged in the water. 4.5 After a period of time, Ms. Matejowsky finally entered the Braeburn Pool and

pulled Braniah Tillman from the water. Ms. Matejowsky and Ms. Thomas eventually attempted to resuscitate Braniah Tillman, but they were poorly trained and undedicated

~4~

to their attempts. Consequently, Braniah Tillman was not revived until after the arrival of emergency medical personnel with the Houston Fire Department. 4.6 Even though Braniah Tillman was ultimately resuscitated by medical personnel,

due to Defendants acts and omissions, she was deprived of oxygen for over four (4) minutes. As a result, Braniah Tillman suffered severe, irreversible, and permanent brain damage, which will necessitate complete medical care every moment of her life for the rest of her life. 4.7 Due to the acts and omissions of BRAEBURN VALLEY, RANDALL

MANAGEMENT, and QUALITY AQUATICS, Braniah Tillman suffered, and continues to suffer, severe and grievous bodily injury and mental anguish. Her parents,

Ms. Tillman and Mr. Donaldson, have likewise sustained their own independent damages, including mental anguish and loss of consortium. FIRST CAUSE OF ACTIONPremises Liability 5.1 Plaintiff re-alleges and incorporates each allegation contained in Paragraphs 1

through 4.7 of this Petition as if fully set forth herein. 5.2 At all relevant times, Defendants individually and/or jointly owned, possessed,

or controlled the pool premises, and were responsible for maintenance and operations thereof. 5.3 Defendants knew or should have known of the danger present on the pool

premises under the circumstances at issue. 5.4 Defendants had a duty to use ordinary care to ensure the premises did not

present a danger to Braniah Tillman, which duty included the obligations to inspect the

~5~

premises, warn invitees and licensees of conditions, and to address and cure any defects. 5.5 Defendants breached their duties of ordinary care by failing to inspect the

premises, to adequately warn Braniah Tillman of conditions, and to cure the defects and make the premises reasonably safe. 5.6 Defendants breach of these duties proximately caused Plaintiffs injuries. SECOND CAUSE OF ACTIONNegligence and Negligence Per Se 6.1 Plaintiff re-alleges and incorporates each allegation contained in Paragraphs 1

through 5.6 of this Petition as if fully set forth herein. 6.2 Defendants BRAEBURN VALLEY, RANDALL MANAGEMENT, and Mr. Smith

owed a duty of reasonable care to Braniah Tillman to keep her safe from harm while on their premises and while using their facilities. BRAEBURN VALLEY, RANDALL

MANAGEMENT, and Mr. Smith further owed a duty of reasonable care to Braniah Tillman to contract, hire, and supervise qualified and competent pool maintenance and safety personnel. 6.3 Defendant QUALITY AQUATICS, as the party responsible for the maintenance

and safety of the Braeburn Pool, owed a duty of reasonable care to Braniah Tillman to keep her safe from harm while on the premises it maintained. In addition, QUALITY AQUATICS owed a duty of reasonable care to Braniah Tillman, and all other invitees at the Pool Party, to monitor her safety and provide full and qualified emergency assistance. QUALITY AQUATICS negligently failed these duties and others, incluing, but not limited to the obligations to:

~6~

a. b. c. 6.4 6.5

Hire qualified maintenance/lifeguard personnel; Competently train maintenance/lifeguard personnel; and Properly supervise maintenance/lifeguard personnel.

Defendants acts and omissions constitute negligence and negligence per se. Defendants breach of these duties proximately caused Plaintiffs injuries. THIRD CAUSE OF ACTIONGross Negligence

7.1

Plaintiffs re-allege and incorporate each allegation contained in Paragraphs 1

through 6.5 of this Petition as if fully set forth herein. 7.2 Defendants acts and omissions constitute gross neglect. Viewed objectively

from the standpoint of the Defendants at the time of the occurrence, Defendants acts and omissions involved an extreme degree of risk, considering the probability and magnitude of the potential harm to Braniah Tillman; and Defendants had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, and welfare of Braniah Tillman. As a result of the gross neglect of Defendants, Braniah Tillman was exposed to and did sustain serious and grievous personal injury. 7.3 7.4 Defendants gross negligence proximately caused Plaintiffs injuries. Exemplary damages are therefore mandated for Defendants misconduct and

violations of law. RESULTING LEGAL DAMAGES 8.1 Defendants acts and omissions caused Plaintiffs to sustain legal damages.

~7~

8.2

Plaintiffs are entitled to be compensated for the personal injuries and damages

that Braniah Tillman has sustained and will sustain, including: a. The amount of medical expenses necessarily incurred in the treatment of Braniah Tillmans injuries from the date of the incident in question up to the time of trial; b. The amount of medical expenses in the treatment of Braniah Tillmans injuries that, in reasonable medical probability, will be incurred in the future; c. The physical pain and suffering in the past that Braniah Tillman has suffered from the date of the incident in question up to the time of trial; d. The physical pain and suffering that, in reasonable probability, Braniah Tillman will suffer from in the future; e. The mental anguish that Braniah Tillman has suffered from the date of the incident in question up to the time of trial; f. The mental anguish that Braniah Tillman, in reasonable probability, will suffer in the future; g. The damages resulting from the physical impairment suffered by and the resulting inability to do those tasks and services that Braniah Tillman ordinarily would have been able to perform; h. The damages that, in reasonable probability, will result in the future from the physical impairment suffered by and the resulting inability to do those tasks and services that Braniah Tillman ordinarily would have been able to perform; i. The disfigurement which Braniah Tillman has suffered from the date of the incident in question up to the time of trial; and j. 8.3 The disfigurement which Braniah Tillman will, in reasonable probability, suffer from in the future.

Further, Ms. Tillman and Mr. Donaldson are individually entitled to general and

specific damages as reasonable in the premises and itemize the personal injury and damages which they have sustained in the following non-exclusive particulars, to wit: d. Mental anguish and distress (past, present, and future); and ~8~

e. 8.4 rates. 8.5

Loss of consortium.

Plaintiffs are entitled to pre- and post-judgment interest at the maximum legal

Further, Plaintiffs are entitled to exemplary damages due to Defendants

negligence and gross negligence. STATEMENT OF DAMAGES 9.1 Ms. Tillman and Mr. Donaldson trust the jury to evaluate the evidence

including physical evidence, written materials, and expert and lay witness testimony and to properly assess the damages sustained by Plaintiffs. 9.2 Texas Rule of Civil Procedure 47(c) requires Plaintiffs to set forth the level of

damages sought herein. It is in compliance with this Rule, and only in compliance with this Rule, that Plaintiffs state that they expect to seek monetary relief in excess of $1,000,000.00 for the damages asserted. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiffs respectfully request that they have judgment against Defendants for actual damages in excess of the minimum jurisdictional limits of this Court, pre- and post-judgment interest as allowed by law, costs of suit, and all other relief, at law or in equity, to which Plaintiffs may be justly entitled.

~9~

Respectfully submitted, SICO WHITE HOELSCHER HARRIS & BRAUGH LLP

______________________________ JAMES H. HADA State Bar No. 08671050 MATTHEW S. FINKELSTEIN State Bar No. 24069719 Three Riverway, Ste. 1910 Houston, Texas 77056 Phone: (713) 465-9944 Fax: (877) 521-5576 jhada@swhhb.com mfinkelstein@swhhb.com Co-Counsel: CARVER L. HENRY State Bar No. 09479200 CARVER L. HENRY & ASSOCS., P.C. 2316 Truxillo St. Houston, Texas 77004 Phone: (713) 522-6454 Fax: (713) 655-3950 carverhenry5@aol.com ATTORNEYS FOR PLAINTIFFS

~ 10 ~

JURY DEMAND Plaintiffs hereby demand a trial by jury, a right enshrined in the Constitutions of the United States of America and the State of Texas and preserved by the sacrifices of many. The necessary jury fee has been paid.

______________________________ JAMES H. HADA

~ 11 ~