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CAUSE NO. ______________
IN THE DISTRICT COURT
MCLENNAN COUNTY, TEXAS
ERICA SMITH CHRISTMAS, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF TODD TYLER CHRISTMAS, BRADFORD ACE CHRISTMAS REBECCA LEE CHRISTMAS, URSULA ROSE GARNER, AS NEXT FRIEND OF COURTNEY ROSE GARNER, A MINOR, COLLEEN EVANS, INDIVIDUALLY, AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF MARK W. EVANS, JR., DECEASED, AND AS NEXT FRIEND OF ZOE EVANS AND RONON EVANS, MINORS
Plaintiffs ,
CENTEX TELEVISION LIMITED PARTNERSHIP, KSWO TELEVISION OF TEXAS, INC., and KSWO TELEVISION COMPANY, INC.
Defendants .
PLAINTIFFS' ORIGINAL PETITION AND JURY DEMAND TO THE HONORABLE COURT:
Plaintiffs, Erica Smith Christmas, Individually and as Representative of the Estate of Todd Tyler Christmas, Bradford Ace Christmas, Rebecca Lee Christmas, Ursula Rose Garner, as next friend of Courtney Rose Garner, a minor, Colleen Evans, Individually, as Personal Representative of the Estate of Mark W. Evans, Jr., deceased, and as next friend of Zoe Evans and Ronon Evans, minors, file this their Original Petition against Defendants, Centex Television Limited Partnership, KSWO Television of Texas, Inc., and KSWO Television Company, Inc. and for cause-of-action respectfully show as follows:
DISCOVERY CONTROL PLAN
1. Pursuant to Rule 190.1 of the Texas Rules of Civil Procedure, Plaintiffs intend for discovery to be conducted under Level 3 as provided by Rule 190.3.
PARTIES
2. Plaintiff, Erica Smith Christmas, Individually and as Representative of the Estate of Todd Tyler Christmas, deceased, at all relevant times is and has been a resident of Texas.
3. Plaintiffs, Bradford Ace Christmas and Rebecca Christmas, Individually, at all relevant times are and have been residents of New Mexico.
4. Ursula Rose Garner, As Next Friend of Courtney Rose Garner, a minor, at all relevant times is and has been a resident of Texas.
5. Colleen Evans, Individually and as Personal Representative of the Estate of Mark W. Evans, Jr., deceased, and as Next Friend of Zoe Evans and Ronon Evans, minors, at all relevant times are and have been residents of North Carolina.
6. Defendant, Centex Television Limited Partnership, is a Texas partnership. It may be served with process through its registered agent, Jeff E. Cook, 1909 New Road, Waco, Texas 76711 via certified mail, return receipt requested or by personal service.
7. Defendant, KSWO Television of Texas, Inc., is an Oklahoma Corporation and a member of the Centex Television Limited Partnership. KSWO Television of Texas, Inc. may be served with process through its registered agent, Jerry Pursley, 1909 New Road, Waco, Texas 76711, via certified mail, return receipt requested or by personal service.
8. Defendant, KSWO Television Company, Inc. is an Oklahoma Corporation and the owner of all the shares of KSWO Television of Texas, Inc. KSWO Television Company, Inc. may be served with process through its registered agent, Jerry Pursley, 1909 New Road, Waco, Texas 76711, via certified mail, return receipt requested or by personal service.
9. At all times relevant to the causes-of-action asserted herein, the defendants have had continuing and systematic contact with the State of Texas and are doing business in Texas, by among other things: owning or leasing real estate in the State of Texas, maintaining offices in the State of Texas, owning chattels in the State of Texas, providing advertising services directed at consumers in the State of Texas, delivering broadcast television services to consumers within the State of Texas, recruiting Texas residents for employment inside and/or outside the state, and committing the tort that is the subject matter of this action in the State of Texas.
JURISDICTION AND VENUE
10. The amount in controversy herein, exclusive of costs and interests, exceeds the minimal jurisdictional limits of this Court.
11. Venue is proper in McLennan County, Texas pursuant to Section 15.002(a) (1) of the Texas Civil Practice and Remedies Code because the cause-of-action accrued in McClennan County, Texas.
FACTUAL BACKGROUND
12. In the early morning hours of November 29, 2004, United States Army Chief Warrant Officer 2 David H. Garner Jr. and Chief Warrant Officer 2 Mark W. Evans Jr. were piloting a UH-60L Black Hawk 827 S/N 98-26827 on a flight from Fort Hood, Texas to the Red River Army Depot in Texarkana. Captain Todd T. Christmas was a passenger in the Black Hawk 827, along with Brigadier General Charles B. Allen, Col. James M. Moore, Chief Warrant Officer Douglas V. Clapp, and Specialist Richard L. Brown.
13. At all times material, defendants, CENTEX TELEVISION LIMITED PARTNERSHIP, KSWO TELEVISION OF TEXAS, and KSWO TELEVISION COMPANY, INC. (hereinafter referred to collectively as "Defendants") were owners and/or operators of a 1,800 foot television broadcasting tower located in McClennan County, Texas.
14. About thirty miles northeast of Fort Hood, the helicopter collided with one or more support wires stabilizing the Defendants' television broadcasting tower.
15. The helicopter thereafter crashed into the ground approximately 200 to 300 yards from the tower, killing all seven soldiers aboard.
16. Warning lights were required to be on the tower under regulations issued by the United States Federal Communications Commission and Federal Aviation Administration.
17. While warning lights were installed on the tower, they were not operating at the time of the collision.
18. Had warning lights in compliance with FCC and FAA regulations been operating, and considering all factors including the lighting and weather conditions at the time, and the speed at which the helicopter was traveling, pilots Gardner and Evans would have seen those lights and understood that they were approaching a dangerous obstruction in ample time to follow their training and stop their forward progress, turn, and fly in the opposite direction, thereby avoiding the collision and deaths.
NEGLIGENCE
19. On the day in question, Defendants knew or should have known that the subject tower was an obstruction to aviation navigation and safe aircraft travel.
20. On the day in question, Defendants knew or should have known that they were required to operate appropriate warning lights so that the subject tower could have been seen and avoided by aircraft and so that tower/aircraft collisions could have been prevented.
21. On the day in question, Defendants knew or should have known that the subject tower's warning lights were not operating and were in need of repair.
22. Especially in light of the flat topography of McLennan County, Texas, defendants had a duty under both Texas common law and federal regulations to install, operate, maintain and keep in good repair obstruction lights on their television tower, to warn pilots of its existence and to prevent fatal accidents.
23. Despite Defendants' the knowledge as outlined above, Defendants failed to adequately and promptly repair, maintain and make operational the warning lights of the subject television broadcasting tower, thereby creating a dangerous hazard to nearby aircraft, including the helicopter in which plaintiffs were passengers.
24. Defendants, acting by and through their agents and/or representatives, breached their duties and were therefore negligent in that they failed to regularly maintain the obstruction lights, failed to keep them in good repair, failed to make proper provision for prompt repairs, failed to arrange for expeditious repair after learning that the lights on the subject tower were inoperative, and were otherwise negligent.
25. The subject crash and the resulting deaths were proximately caused by the further negligence of Defendants, who breached their duty of care under both Texas common law and FCC and FAA regulations (e.g., FCC- 47 C.F.R. §§ 17.2, 17.6, 17.21, 17.47, 17.48 inter alia.; FAA Advisory Circulars - AC 150/5200-18C, AC 150/5200-28, C 70/7460-1 ("Obstruction Markings and Lighting")). More specifically, the Defendants were negligent as detailed above, and including, but not limited to, the following ways:
a. Negligently failing to operate warning lights on the subject tower;
b. Negligently failing to ensure that the warning lights on the subject tower were functioning properly in order to warn pilots of the presence of a dangerous obstruction;
c. Negligently failing to inspect, to repair, to maintain and to keep in good working function the warning lights on the subject tower so as to warn pilots of the tower's presence and so as to prevent aircraft crashes into that tower;
d. Negligently failing to issue a Notice to Airmen (NOTAM) reporting that the warning lights on the subject tower were not operating, that the non-operable lights created a dangerous situation that could have an immediate and critical impact on the safety of aircraft operations;
e. Negligently failing to maintain properly an automatic alarm system designed to detect any failure of the warning lights on the subject tower and to provide indication of such failure;
f. Negligently failing to repair immediately the inoperative warning lights on the subject tower after learning that those lights were inoperative;
g. Negligently failing to report to the local FAA office within 30 minutes that the warning lights on the subject tower were not operating;
h. Negligently failing to observe the inoperative warning lights on the subject tower within 24 hours of the subject crash either visually or by observing an automatic indicator designed to register any failure of those warning lights;
i. Negligently failing to inspect all automatic and mechanical control devices, indicators, and alarm systems associated with the warning lights on the subject tower to ensure that such device(s) were functioning properly;
j. Negligently installing warning lights on the subject tower that were inoperative, inadequate and unsafe;
k. Negligently failing to adhere to safe practices and standards used in the design, construction, maintenance and operation of the subject tower and warning light system;
l. Negligently failing to inspect, to discover and to repair the warning lights on the subject tower;
m. Negligently developing and following an unsafe and inadequate emergency management response plan for the warning light system's failure; and
n. Negligently failing to warn pilots flying aircraft in the vicinity that the subject tower was a dangerous hazard to flight when the warning light system was not functioning.
26. As a proximate result of one or more of the negligent acts or omissions of Defendants outlined herein, Plaintiffs sustained damages.
DAMAGES
27. The unlawful acts and practices described above were and are a producing and proximate cause of Todd Christmas' injuries and death, and Plaintiffs' damages.
28. Under section 71.004 of the Texas Civil Practice and Remedies Code, the beneficiaries of Todd Tyler Christmas, to whit, Erica Smith Christmas, Bradford Ace Christmas and Rebecca Lee Christmas, seek to recover wrongful death damages including but not limited to damages for loss of care, maintenance, support, services, advice, counsel, reasonable contributions of a pecuniary value, and probable accumulations to the estate, and damages for loss of love, comfort, companionship, consortium, support, and society they each would have received had Todd Tyler Christmas lived. They also are entitled to recover for the emotional pain, torment, and mental suffering they each experienced because of the death of Todd Tyler Christmas. These losses, in reasonable probability, will continue into the future.
29. Pursuant to Section 71.021 of the Texas Civil Practice and Remedies Code, Plaintiff, Erica Smith Christmas, as representative of the Estate of Todd Tyler Christmas, claims for Todd Christmas' conscious pain and suffering and mental anguish suffered prior to his death, for medical bills, and for funeral and burial expenses incurred as a result of said death.
30. The unlawful acts and practices described above were and are a producing and proximate cause of Mark W. Evans, Jr.'s injuries and death, and Plaintiffs' damages.
31. Under Section 71.004 of the Texas Civil Practice and Remedies Code, the beneficiaries of Mark W. Evans, Jr., to whit, Colleen Evans, Individually and as next friend to Zoe Evans and Ronon Evans, minors, seek to recover wrongful death damages including but not limited to damages for loss of care, maintenance, support, services, advise, counsel, reasonable contributions of a pecuniary value, and probable accumulations to the estate, and damages for loss of love, comfort, companionship, consortium, support, and society they each would have received had Mark W. Evans, Jr. lived. They also are entitled to recover for the emotional pain, torment, and mental suffering they each experienced because of the death of Mark W. Evans, Jr. These losses, in reasonable probability, will continue into the future.
32. Pursuant to Section 71.021 of the Texas Civil Practice and Remedies Code, Plaintiff, Collen Evans, as representative of the Estate of Mark W. Evans Jr., claims for Mark Evans Jr.'s' conscious pain and suffering and mental anguish suffered prior to his death, for medical bills, and for funeral and burial expenses incurred as a result of said death.
33. The unlawful acts and practices described above were and are a producing and proximate cause of David Garner, Jr.'s injuries and death, and Plaintiffs' damages.
34. Under Section 71.004 of the Texas Civil Practice and Remedies Code, the beneficiaries of David Garner, Jr., to whit, Ursula Rose Garner as next friend to Courtney Rose Garner, a minor, seek to recover wrongful death damages including but not limited to damages for loss of care, maintenance, support, services, advice, counsel, reasonable contributions of a pecuniary value, and probable accumulations to the estate, and damages for loss of love, comfort, companionship, consortium, support, and society they each would have receive had David Garner, Jr. lived. They also are entitled to recover for the emotional pain, torment, and mental suffering they each experienced because of the death of David Garner, Jr. These losses, in reasonable probability, will continue into the future.
DEMAND FOR A JURY TRIAL
Plaintiffs hereby demand that this case be set for a trial by jury. The cost for a jury trial is enclosed with the filing of this, Plaintiffs' Original Petition and Jury Demand.
WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that Defendants be cited to appear and answer herein, and that upon final trial, Plaintiffs have a judgment against Defendants for those damages described above and in the full amounts allowed by law, specifically including, but not limited to:
a. a judgment in excess of the jurisdictional limits of this Court;
b. pre-judgment interest;
c. post-judgment interest;
d. costs and expenses; and
e. all such other relief, whether at law or in equity, to which Plaintiffs may show themselves justly entitled.
Respectfully submitted,
_____________________________
ANDREW L. PAYNE (ATTORNEY-IN-CHARGE)
State Bar Card No. 00791416
PAYNE LAW GROUP
2911 Turtle Creek Boulevard, Suite 1400
Dallas, Texas 75219
Tel: 214.252.1888
Fax: 214.252.1889
ATTORNEY FOR CHRISTMAS PLAINTIFFS
NELSON ROACH (ATTORNEY-IN-CHARGE)
State Bar Card No.
NIX, PATTERSON & ROACH L.L.P.
205 Linda Drive
Daingerfield, TX 75638
ATTORNEY FOR EVANS PLAINTIFFS
ATTORNEY FOR GARDNER PLAINTIFFS
DALE WILLIAMS
State Bar Card No. 21523000
WILLIAMS, SQUIRES & WREN L.L.P.
7901 Fish Pond Road, 2nd Floor
Bridgeview Center
Waco, Texas 76710
Tel: 254.741.6200
Fax: 254.741.6300
ATTORNEY FOR ALL PLAINTIFFS
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