Personal InjuryPersonal Injury Legal Cases
Del Taco Negligent Construction Causes Wrongful Death
SUPERIOR COURT OF CALIFORNIA
COUNTY OF VENTURA, EAST COUNTY DIVISION
PHILIP YOUNG; DOUGLAS YOUNG; and SERENA YOUNG, for themselves and as Successors in Interest to the Estate of WINNIE YOUNG, Decedent, Plaintiffs,
vs.
FIVE K, INC.; MDM CONSTRUCTION, INC.; CITY OF SIMI VALLEY; MARK ANFLICK; and DOES 1 to 50
Defendants.
_____________________________________
CASE NO: 56-2009-00342837-CU-PO-SIM
COMPLAINT FOR DAMAGES FOR PERSONAL INJURIES AND WRONGFUL DEATH: PREMISES LIABILITY; NEGLIGENT CONSTRUCTION; NEGLIGENT ISSUANCE OF APPROVALS FOR FINAL OCCUPANCY AND OPERATION OF BUSINESS
DEMAND FOR JURY TRIAL
COME NOW, Plaintiffs PHILIP YOUNG, DOUGLAS YOUNG, and SERENA YOUNG, and for causes of action against Defendants, hereby allege as follows:
COMMON ALLEGATIONS FOR ALL CAUSES OF ACTION
1. The incident which is the subject matter of the Complaint, and the incident which caused the personal injury damages and eventual wrongful death of WINNIE YOUNG, decedent, as alleged herein, occurred on March 12, 2008, at approximately 11:14 a.m., at and on the premises of the Del Taco restaurant located at 1098 Enchanted Way, in the City of Simi Valley, Ventura County, State of California (this incident is hereinafter referred to as the "SUBJECT INCIDENT.")
2. At all times relevant herein, Plaintiff SERENA YOUNG was, and is now, an individual resident of Los Angeles County, State of California.
3. At all times relevant herein, Plaintiffs PHILIP YOUNG and DOUGLAS YOUNG were, and are now, individual residents of Ventura County, State of California.
4. Defendant CITY OF SIMI VALLEY is a governmental entity, being a municipal corporation organized and existing under the laws of the State of California.
5. Defendants FIVE K, INC. and MDM CONSTRUCTION, INC., are corporations organized and existing under the laws of the State of California, and, at all times relevant, with their principal place of business in Ventura County, State of California.
6. Plaintiffs are informed and believe and, based upon such information and belief, allege that at all times mentioned herein, Defendant MARK ANFLICK was and is now an individual resident of the County of Ventura, State of California.
7. Plaintiffs are ignorant of the true names and capacities of the Defendants sued herein as DOES 1 to 50, and therefore sue these Defendants by such fictitious names. Plaintiffs will amend this Complaint to allege the true names and capacities when that information is ascertained. Plaintiffs are informed and believe and, based on that information and belief, allege that each such fictitiously named Defendant is legally responsible in some manner for the occurrences alleged herein, and that the damages suffered from plaintiffs' decedent's injuries and wrongful death were proximately caused by each such Defendant's actions.
8. Plaintiffs are informed and believe and, based on this information and belief, allege that Defendants, and each of them, were the agents, servants and employees of their Co-Defendants, and in doing the things herein alleged were acting within the course, scope, purpose, and authority of such agency and employment with the full knowledge, permission and consent of each of their co-Defendants.
9. Plaintiffs have complied with the statutory claims process which is a condition precedent to the filing of this action for claims made against government entities and employees, including Defendants CITY OF SIMI VALLEY and MARK ANFLICK.
10. The incident which is the subject matter of the accident occurred at a Del Taco Restaurant located at 1098 Enchanted Way, Simi Valley, California, and more particularly in and around the wheelchair/handicapped patron ramp located at the restaurant. This restaurant and its component features is referred to herein as "the SUBJECT PREMISES".
11. At all times relevant, the SUBJECT PREMISES was in the possession of, and owned and/or operated by Defendant FIVE K, INC. and Does 1 to 10, and each of them.
12. The SUBJECT PREMISES was planned, designed, built, maintained, inspected, and constructed by Defendant MDM CONSTRUCTION, INC., and DOES 11 to 30, and each of them.
13. At all times relevant, Defendants CITY OF SIMI VALLEY, MARK ANFLICK, and DOES 31 to 50, and each of them, had the right, power, and duty to and were engaged in the business of reviewing, directing, researching, inspecting, investigating, evaluating, and approving the plans for and works of improvement and the actual construction of such works of improvement at the SUBJECT PREMISES and the compliance of those plans for and as-built works of improvement with city, county, state, and/or federal building codes, regulations, and other requirements for providing accommodations for people with disabilities, for the purpose of protecting the health and safety of members of the public, especially those with disabilities who will be business customers of the SUBJECT PREMISES.
14. At or about 7:20 PM on March 12, 2008, Philip Young and Winnie Young went to eat at the then-newly opened Del Taco, the SUBJECT PREMISES. Winnie was wheelchair-bound and Philip was pushing her. Because the restaurant is built on a ground level higher than that of the parking lot, the SUBJECT PREMISES provides a ramp to permit wheelchairs to safely roll up to, and down from, the restaurant level of the premises. As Philip and Winnie left the restaurant to return to their car, they started toward the wheelchair ramp to return to the parking lot. There were no handrails along the path of the ramp. A visual trap kept Philip from seeing the exact location and layout of the wheelchair ramp, and led Philip to believe that the height difference between the curb and the level of the parking lot was very small when, in fact, there was a significant and substantial difference in the elevation of these features of the SUBJECT PREMISES. Because of the visual trap and because there were no handrails present to guide Philip and Winnie to the safe boundaries of the wheelchair ramp, Philip could not discern the exact location and layout of the wheelchair ramp, could not find the safe route to take his mother back to their car, and he was misled about the height of the lip in the low light. As a result, Philip pushed the wheelchair over the lip of the wheelchair ramp rather than down its incline and lost control of the chair because of the sudden fall of the chair, spilling Winnie onto her head on the asphalt surface of the parking lot causing her the injuries which required treatment and eventually resulted in her death. This fall is referred to herein as "the SUBJECT INCIDENT".
15. As a legal result of the accident which is the subject matter of this action, WINNIE YOUNG was injured in her health, strength, and activities, and sustained serious personal injury, and as a legal result of those injuries, incurred the expense of medical, nursing, physical therapy, dental, convalescent, hospice, and other treatment and care for those injuries; and other special damages in an amount which exceeds the minimum jurisdictional amount of this court, according to proof at trial.
16. On or about November 3, 2008, WINNIE YOUNG died as a legal result of the injuries she suffered in the SUBJECT INCIDENT.
17. Plaintiffs PHILIP YOUNG, DOUGLAS YOUNG, and SERENA YOUNG are the children and sole surviving heirs of WINNIE YOUNG, deceased, and therefore are the only persons who have standing to maintain an action for wrongful death under California Code of Civil Procedure § 377.60, and they also have standing to initiate the prosecution of a survival action under California Code of Civil Procedure § 377.30. The "Statement of Successors in Interest" required by California Code of Civil Procedure § 377.32 is attached hereto, marked as Exhibit "A". The prosecution of these two claims is brought jointly in this action, as authorized by California Code of Civil Procedure § 377.62.
18. As a direct, legal, and proximate result of the death of WINNIE YOUNG, Plaintiffs PHILIP YOUNG, DOUGLAS YOUNG, and SERENA YOUNG have sustained damage resulting from the loss of the love, society, comfort, affection, attention, solace, moral support, services, and financial support of the decedent, as well as her reasonable funeral and burial expenses, which shall be established in accordance with proof at trial.
FIRST CAUSE OF ACTION
(Premises Liability as Against Defendants
FIVE K, INC., and DOES 1 to 10)
19. Plaintiffs refer to and incorporate herein each and every allegation of Paragraphs 1 through 18, above.
20. At and before the time of the SUBJECT INCIDENT, the SUBJECT PREMISES was in a dangerous and defective condition because of the lack of handrails alongside the length of the access ramp for disabled patrons. Defendants, and each of them, knew or had notice of the existence of this dangerous and defective condition of the SUBJECT PREMISES.
21. Despite this knowledge and/or notice of the dangerous and defective condition of the SUBJECT PREMISES, Defendants, and each of them, negligently failed to warn notice to customers about the condition or to take steps to correct the condition despite their ability to provide such warning or make such a correction.
22. As a legal result of the dangerous condition of the SUBJECT PREMISES, and the Defendants', and each of their, failure to correct or warn of the condition, Plaintiffs have suffered damage as alleged herein, in such sum in excess of the minimum jurisdictional amount for this Court according to proof at trial.
SECOND CAUSE OF ACTION
(Negligence as Against Defendants
MDM CONSTRUCTION, INC., and DOES 11 to 30)
23. Plaintiffs refer to and incorporate herein each and every allegation of Paragraphs 1 through 18, above.
24. At and before the SUBJECT INCIDENT Defendants MDM CONSTRUCTION, INC., and DOES 11 to 30, and each of them, had the duty to safely and properly perform their construction of the SUBJECT PREMISES in such manner that the SUBJECT PREMISES was and is in compliance with the approved plans and specifications set out in the design documents for the SUBJECT PREMISES and in the city, county, state, and federal building codes and regulations which apply to the construction of works of improvement at or on the SUBJECT PREMISES.
25. At and before the time of the SUBJECT INCIDENT, Defendants, and each of them, negligently failed to perform their work in keeping with their duty of due care, including but not limited to failing to install the handrails alongside the wheelchair ramp as called for by the approved plans, specifications, and applicable codes and regulations, or to provide any temporary warning of and guidance for the location of the wheelchair ramp on the SUBJECT PREMISES.
26. As a legal result of the negligent actions of said Defendants, and each of them, Plaintiffs have suffered damages as alleged herein.
THIRD CAUSE OF ACTION
(Negligence as Against Defendants
CITY OF SIMI VALLEY, MARK ANFLICK, and DOES 31 to 50)
27. Plaintiffs refer to and incorporate herein each and every allegation of Paragraphs 1 through 18, above.
28. At the time of the SUBJECT INCIDENT, the SUBJECT PREMISES failed to have installed handrails along the path of the wheelchair ramp, as required by applicable city, county, state, and federal building codes and regulations, particularly those codes and regulations which implement the requirements of the federal law and adopted regulations implementing the AMERICANS WITH DISABILITIES ACT.
29. Defendant CITY OF SIMI VALLEY and DOES 31 to 50, and each of them, had the duty and obligation to assure that works of improvement built within its boundaries comply with the city, county, state, and federal building codes and regulations, particularly those codes and regulations which implement the requirements of the federal law and adopted regulations implementing the AMERICANS WITH DISABILITIES ACT. The performance of that duty is assigned to the City's Building & Safety Division of the Department of Environmental Services, and as to the SUBJECT PREMISES, that duty and obligation was assigned to and assumed by Defendant MARK ANFLICK, Senior Building Inspector, for purposes of final inspection and the issuance of final approval and a Certificate of Occupancy which authorizes the use of the SUBJECT PREMISES for business with members of the public.
30. Defendants, and each of them, negligently and erroneously issued a Certificate of Occupancy (on February 29, 2008) and final building approval (March 4, 2008) for the SUBJECT PREMISES despite the lack of handrails or other guidance and markers of the boundaries of the wheelchair ramp at the SUBJECT PREMISES as is required by the applicable building codes and regulations.
31. As a legal consequence of giving the owners and operators the right and power to open the SUBJECT PREMISES for business despite the existence of a known dangerous and defective condition which presented a risk of injury and harm to members of the public, Defendants and each of them breached their duty of due care to protect the safety and well being of members of the public, including but not limited to decedent WINNIE YOUNG, who was a member of the specific class and group of people protected by the applicable building codes and regulations.
32. As a legal result of the negligent actions of said Defendants, and each of them, Plaintiffs have suffered damages as alleged herein.
WHEREFORE, Plaintiffs pray judgment against Defendants, and each of them, as follows:
1. The economic damages suffered by decedent WINNIE YOUNG for the reasonable and necessary medical, dental, housing, nursing, convalescent, and hospice care she received for and as a result of her injuries which she suffered as a result of the SUBJECT INCIDENT, incurred before her death, damages in an amount in excess of the minimum jurisdictional amount of this Court, according to proof;
2. The loss of the love, society, comfort, affection, attention, solace, moral support, services, and financial support of their Mother, decedent WINNIE YOUNG, as well as her reasonable funeral and burial expenses, which shall be established in accordance with proof at trial;
3. Costs of suit incurred herein; and
4. Such other and further relief as the Court deems just and proper.
DATED: November 19, 2009 BISNAR|CHASE
______________________________________
BRIAN D. CHASE
SCOTT A. RITSEMA
Attorneys for Plaintiffs
DEMAND FOR JURY TRIAL
Plaintiffs hereby demand jury trial of this action.
DATED: November 19, 2009 BISNAR|CHASE
______________________________________
BRIAN D. CHASE
SCOTT A. RITSEMA
Attorneys for Plaintiffs
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