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Plaintiffs First Amended Original Petition Page 1

CAUSE NO. 380-01279-2014



BROCK BAILEY,

Plaintiff,

v.

THE CITY OF McKINNEY,

Defendant.









IN THE DISTRICT COURT



COLLIN COUNTY, TEXAS



380
th
JUDICIAL DISTRICT

PLAINTIFFS FIRST AMENDED ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

Plaintiff Brock Bailey (hereinafter sometimes Plaintiff) files this First Amended Original
Petition complaining of The City of McKinney (hereinafter sometimes "McKinney" or
"Defendant"), and would respectfully show the Court the following:
DISCOVERY CONTROL PLAN
1. Plaintiff intends to conduct discovery under Level 3 of Rule 190 of the Texas Rules
of Civil Procedure. Plaintiff will file an appropriate motion, or will submit an agreed order, at
the earliest appropriate time.
PARTIES
2. Plaintiff Brock Bailey is an individual who currently resides at 1304 Edgar Ave.,
Mattoon, Illinois 61938.
3. Defendant The City of McKinney is a governmental unit as defined by the Texas
Tort Claims Act, and is an incorporated municipality within Collin County, Texas, has been served
with service of process and has filed an appearance herein.
VENUE
4. Venue is proper in this Court pursuant to Section 15.001, et. seq., of the Texas Civil

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Practice and Remedies Code.
FACTUAL BACKGROUND
5. On or about December 11, 2013, at approximately 11:01 p.m., Officer Mark
Watson (hereinafter Watson), an officer within the City of McKinney, was driving a 2013 Ford
Police Interceptor traveling southbound on Custer Road near the intersection of Eldorado Parkway,
enroute to a disturbance call at 3808 Turquoise Drive in McKinney. Watson reached speeds as
high as 110 mph without activating his siren and without activating his overhead lights. Watson
was travelling so fast, while at the same time being so inattentive, that he missed the turn onto
Eldorado Parkway which was the quickest, most direct route to 3808 Turquoise.
6. At the same time Watson was inattentively driving in excess of 100 mph, Brock
Bailey (hereinafter sometimes Brock), was driving in a 2010 Hyundai Sonata, and was
attempting a left turn from a private driveway to travel northbound on Custer Road. Because
Watson was traveling so fast, without having all emergency lights and sirens activated, Brock had
no opportunity to see Watson before entering Custer Road. Nevertheless, as Brock began to pull
onto Custer Road, he stopped, straddling the middle and far right lanes, to yield to Watson.
Watson was travelling in the far left southbound lane (lane 1) at the time Brock began to pull onto
Custer Road, and for unknown reasons, Watson aimlessly drifted from the left lane directly toward
Brocks stopped car. Watson never applied his brakes and made no effort at all to stop or avoid
Brock until at the point of impact (it is clear from the scene that there were no pre-impact skid
marks on the roadway leading up to the point of impact Watson was clearly distracted or was
otherwise impaired). Watson collided with Brock in the right side of the middle lane while
travelling at least 68 mph. Watson could have easily continued to travel in the left lane (lane 1)
since the roadway where the collision occurred was perfectly straight, and the far left lane (lane 1)

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was completely clear with no vehicles or obstacles. Had Watson continued to drive in the left
lane, Watson could have easily avoided the collision with Brock. Brock suffered severe and
permanent injuries as a direct and proximate result of Watsons negligence, which was the
proximate cause of the collision and the injuries and damages suffered by Brock.
7. At the time of the wreck Watson was acting in the course and scope of his
employment with the City of McKinney. Therefore, McKinney is vicariously liable for the
negligent acts of Watson, McKinneys agent and employee.
NEGLIGENCE
8. Plaintiff incorporates paragraphs 1-7 above as if fully set forth herein.
9. Pursuant to Section 101.021 of the Texas Civil Practice and Remedies Code,
Plaintiff pursues his claims under the Texas Tort Claims Act (TTCA) for injuries arising from
the operation or use of a motor driven vehicle and would show the following:
a. Defendant McKinney is a governmental unit covered by the TTCA;

b. Defendant McKinney owed Plaintiff Brock Bailey a duty of care;

c. Defendant McKinneys employee, Mark Watson, while acting within the
course and scope of employment, was negligent and reckless, and breached
the duty of care owed to Plaintiff Brock Bailey;

d. Defendant McKinneys employee, Watson, acted with conscious
indifference to or reckless disregard for the safety of others, including
Plaintiff Brock Bailey;

e. Defendant McKinneys employee, Watson, to the extent he was actually
responding to an emergency, and there was an emergency-action law or
ordinance in place, failed to properly comply with the emergency-action
law or ordinance;

f. Defendant McKinneys employee, Watson, to the extent he was responding
to a 911 call or was providing 911 emergency services, acted with conscious
indifference and/or reckless disregard for the safety of others, including
Plaintiff Brock Bailey, and his actions were a violation of a statute or

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ordinance within the meaning of 101.062 of the Texas Civil Practice and
Remedies Code;

g. Plaintiffs injuries were proximately caused by the operation or use of a
motor driven vehicle;

h. Defendant McKinneys employee, Watson, would have been personally
liable to Plaintiff Brock Bailey under Texas law;

i. Defendant McKinneys immunity from suit and immunity from liability are
waived and no exception to the waiver of immunity bars the claim because
(1) no exception applies or (2) an exception to an exception reinstates the
waiver; and

j. Defendant McKinney had actual notice of Plaintiffs injuries and expected
litigation, as more specifically described herein. Though not necessary,
additional notice was provided to McKinney on December 18, 2013
pursuant to the TTCA.

10. Pursuant to Section 101.0215 of the Texas Civil Practice and Remedies Code,
Defendant McKinney is a municipality liable under this chapter for damages arising from its
governmental functions including police protection and control, which was ongoing at the time of
the incident.
11. On the occasion in question, Defendant McKinney is liable for Brocks damages
because Watson violated the duties he owed to Brock to exercise ordinary care in the operation of
the automobile he was driving in at least the following respects:
a. in driving the automobile at an excessive and reckless speed;

b. in driving the automobile in an unsafe manner;

c. in failing to keep a proper lookout for other automobiles;

d. in failing to obey traffic signals and signs in the operation of the automobile;

e. in failing to activate his overhead bar lights to alert traffic of an approaching
emergency vehicle;

f. in failing to activate his siren to alert traffic of an approaching emergency

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vehicle;

g. in failing to timely turn the automobile to the left or right to avoid the
collision;

h. in failing to timely apply the brakes to avoid the collision;

i. in failing to control the speed of the automobile; and

j. in failing to exercise that degree of care as would have been exercised by a
person of ordinary prudence under the same or similar circumstances with
reference to the way he was operating the automobile.

12. With regard to the occasion in question, the City of McKinney was also negligent
with regard to its own conduct in the following particulars:
a. in failing to use reasonable care in the hiring, retention, supervision,
management and control of its employee and agent, Watson;

b. in failing to properly and adequately train and instruct its employee and
agent, Watson, in the proper methods and procedures of safely operating an
emergency vehicle so as to avoid placing other Collin County motorists in
harms way, including, but not limited to, (1) failing to adequately instruct
and train Watson to utilize all lights, sirens and warning indicators for other
motorists protection, and failing to enforce compliance therewith; and (2)
failing to adequately teach and enforce the use of evasive techniques to
prevent collisions such as the one described herein;

c. in failing to have adequate policies and procedures in place to ensure the
safe operations during emergency call responses; and

d. in failing to otherwise take timely and proper measures to keep the traveling
Collin County public safe.

13. Each of the acts and omissions described above, singularly or in combination with
others, constitutes negligence which proximately caused the occurrence made the basis of this
action and Brocks injuries and damages.
14. Brock has suffered losses and damages in a sum that greatly exceed the minimum
jurisdictional limits of this Court. Brocks hips were crushed; Brocks ribs were broken; Brocks

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lung was punctured; Brocks tooth was broken; and Brocks chest was crushed and is now left
deformed. Brock suffered conscious pain and suffering from the crash and his injuries; Brock has
suffered a permanent and disfiguring injury to his chest; Brock has suffered a permanent and
potentially disabling injury to his neck; Brock now suffers from a chronic cough from his lung
puncture; Brock is currently continuing treatment and physical therapy to help recover from the
damages he has suffered; Brock has incurred expenses for past medical care and will require future
medical care and treatment; and Brock suffered lost wages as a result of the crash and his extensive
injuries. These losses and damages were proximately caused by the conduct of Defendant
McKinney described in this petition and Defendant McKinney is liable for these damages.
SPOLIATION OF EVIDENCE
15. Plaintiff incorporates by reference paragraphs 1-14 above as if fully set forth herein.
16. Defendant knew or should have known of the likelihood of litigation at the time of
the accident. In fact, as soon as the crash was reported, the City of McKinney sent additional
police officers to the scene to begin collecting evidence even before Brock or Watson were
transported from the scene. Since the collision occurred in the City of Frisco, the accident
investigation was within the jurisdiction of the City of Frisco Police Department. The accident
was clearly not within McKinneys jurisdiction, but nevertheless, upon arriving at the scene,
responding officers from the McKinney PD immediately began a purposeful campaign to interfere
with the Frisco PDs investigation, all in an effort to destroy, secret, impair and/or manipulate key
evidence in at least the following respects:
a. McKinney officers interfered with the Frisco PD investigation by
demanding that they be allowed to remove a USB memory device from the
in car camera located in Watsons squad car while the vehicles were still at
the scene;


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b. McKinney officers themselves, even though the crash was not within their
jurisdiction, removed the USB memory device from Watsons car which
had recorded the crash details, took the USB from Watsons car and into
their own cruiser where they negligently or intentionally destroyed key
information on the USB memory device, and then later returned and told
the Frisco PD that the memory was bad and that they were unable to
download the information;

c. McKinney officers demanded that Watsons police cruiser be towed
directly to the City of McKinney, and when a Frisco PD officer objected, a
McKinney Deputy Chief became involved. Sgt. Elizondo from the Frisco
PD stated they would allow the cruiser be towed directly to the City of
McKinney since he did not want to upset relations with the McKinney
PD or Chief Joe Williams. The investigating officer in charge for the
Frisco PD then stepped in to demand that both vehicles be towed to the
Frisco storage facility;

d. After being advised by the Frisco PD that the police cruiser would be towed
to the Frisco facility for further investigation and analysis, a lieutenant for
the McKinney PD then demanded that the McKinney PD be allowed to
remove the entire in car video system from Watsons vehicle. Investigator
Hinkel of the Frisco PD disagreed, but Sgt. Elizondo from the Frisco PD
(who did not want to upset any relationship with McKinney PD or
McKinney PD Chief Joe Williams) stepped in, overruled Hinkel and
allowed the McKinney PD to remove the on board video system.
McKinney officers at the scene promised to provide a copy of the video
once it was downloaded, but a full, complete copy of the video and
downloaded data were never provided. Disturbingly, the same McKinney
Deputy Chief who had removed the USB memory device claimed
defective was the same officer who showed up to remove the entire in car
video system;

e. As part of the evidence destruction and accident investigation manipulation,
McKinney officer Watson lied to the Frisco PD investigator at the scene
when he said he was going 80 mph at the time of the crash. The missing
dash cam video would have shown that Watson was travelling at least 98
mph when he steered the police cruiser into the side of Brocks vehicle;

f. McKinney PD Deputy Chief Morris insisted upon removing and
downloading the dash cam video himself from the scene of the crash
without allowing the Frisco PD to complete its investigation and eventually
provided a copy of the dash cam video to the Frisco police investigators six
(6) days after the wreck. The video eventually provided was negligently
or intentionally altered by the City of McKinney in at least the following
respects: (1) all display information (i.e., date, time, unit identification,

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vehicle speed, lights, siren, etc.) has been removed; (2) all sound from the
first twenty to thirty seconds of the video has been deleted; and (3) the video
abruptly ends seconds before the crash;

g. Had the full video been preserved, the video would have clearly confirmed
that (1) Watson was travelling at a speed of 98 mph when he hit Brock; (2)
Watson was travelling in lane 1 and then negligently steered toward Brock,
who was stopped in the right hand side of the center lane, allowing more
than enough room for Watson to pass safely; (3) Watson failed to brake or
take any evasive action at all to avoid Brock; and (4) Watsons negligent
acts and omissions were the sole proximate cause of the collision and the
horrific injuries suffered by Brock Bailey.

17. Due to the pressure being asserted on the Frisco PD by the McKinney PD, the
Frisco PD abruptly stopped its investigation on December 17, 2013 and turned all documents in
its possession over to the McKinney PD.
18. In a further effort to manipulate the Frisco PD accident investigation and to cover
up the clear negligence of Watson and the City of McKinney, the official City of McKinney PD
Incident/Investigation Report (hereinafter the McKinney Report) incorrectly reported that
Watson was traveling with his emergency lights activated, when in fact they were at best partially
activated, since Watson failed to activate the overhead lights on the police cruiser. The report
failed to mention that Watson failed to activate the siren on the cruiser, which should have been
activated before Watson began travelling at over 100 mph.
19. The McKinney Report also incorrectly concluded that Brock pulled out in front of
Watsons vehicle causing Watson to strike Brock, when in reality, Brock stopped his vehicle in
the far right portion of the middle lane to allow Watson to pass by, but Watson negligently steered
his vehicle directly into the side of Brocks vehicle and collided with him at 98 mph. The
McKinney Report also incorrectly concluded that Watson was travelling Southbound on Custer
Road in the center lane, when in fact Watson was travelling in the far left hand lane (lane 1) when

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he then steered directly toward Brock, causing a horrific collision. The McKinney Report offered
these conclusions, even though it is clear from the portions of the dash cam that were not destroyed
that Watson negligently steered/veered from the far left lane into the lane where Brock had stopped
to allow Watson to safely pass by.
20. Despite having a reasonable expectation that litigation would ensue, Defendant
failed to preserve critical evidence that would have supported Plaintiffs claims. Defendant has
destroyed documents and data that constitute critical evidence that would support Plaintiffs claims
against Defendant. As such, Plaintiff requests an instruction from the Court that the jury be
allowed to infer and presume that the evidence Defendant intentionally or negligently failed to
preserve would support Plaintiffs claims.
DAMAGES
21. Plaintiff incorporates paragraphs 1-20 above as if fully set forth herein.
22. As a result of the negligence and gross negligence described above, Brock suffered
severe bodily injuries, endured conscious pain and suffering, suffered permanent disfiguring
injuries, was forced to incur medical expenses and also lost wages, all as a result of Watson and
the City of McKinney. Plaintiff seeks to recover from Defendant all damages available at law.
23. As a direct and proximate result of the acts and or omissions set forth above,
Plaintiff has suffered the following damages for which he seeks compensation and is entitled to
recover from Defendant:
a. Medical expenses (past and future);
b. Physical pain and suffering (past and future);
c. Mental anguish (past and future);
d. Permanent disfigurement (past and future);

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e. Lost wages (past and future);
f. Damages to vehicle; and
g. Prejudgment and post-judgment interest.
24. The damages exceed the minimum jurisdictional limits of this Court and are within
the jurisdictional limits of this Court.
JURY DEMAND
25. Plaintiff demands trial by jury.
WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully requests that upon final
trial, Plaintiff have and recover judgment against Defendant for a sum over $200,000 but not more
than $1,000,000, pre-judgment interest, post-judgment interest, costs of suit, and such other and
further relief to which Plaintiff may be justly entitled.

Respectfully submitted,



/s/ Robert R. Varner, Jr.
ROBERT R. VARNER, JR.
State Bar No. 20499450
bvarner@bvalaw.com
BRADEN, VARNER & ANGELLEY, P.C.
703 McKinney Avenue, Suite 400
Dallas, Texas 75202
(214) 740-0212
Fax: (214) 740-0217

Attorneys for Plaintiff


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CERTIFICATE OF SERVICE

The undersigned certifies that on the 23
rd
day of May, 2014, he will electronically file the
foregoing with the Clerk of the Court using the CM/ECF system, which will then send a
notification of such filing (NEF) to the following:

David L. Craft
Walker Bright PC
100 North Central Expressway, Suite 800
Richardson, TX 75080
david.craft@wblpc.com


/s/ Robert R. Varner, Jr.
ROBERT R. VARNER, JR.