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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS WACO DIVISION JOHN STRAIN AND NATALIE COLE ROCHA, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF PRINCANNA STRAIN, A DECEASED MINOR, Plaintiffs v. CIVIL ACTION NO. 6:11-cv-00256 WACO INDEPENDENT SCHOOL DISTRICT AND JOHN DOE, AS THE PRODUCT MANUFACTURER OF THE CABINET Defendants

ORIGINAL COMPLAINT AND JURY DEMAND NOW COMES John Strain and Natalie Cole Rocha, Individually, and as the Personal Representatives of the Estate of Princanna Strain, a deceased minor, (hereinafter referred to as Plaintiffs), by and through their counsel of record, Martin J. Cirkiel of Cirkiel & Associates, P.C., Michael Zimmerman of The Zimmerman Law Firm, Drew Gibbs of The Carlson Law Firm, and Greg White of Naman, Howell, Smith and Lee, and brings this, their Original Complaint against the Waco Independent School District (Waco ISD), John Doe, the unknown Product Manufacturer of the Cabinet (hereinafter referred to as John Doe Defendant, or JDM), and or whomever manufactured, sold, distributed, warrantied, and/or produced the cabinet product that was involved in Princanna Strains death on or about October 7, 2009 at J. H. Hines Elementary School, Waco, McLennan County, Texas. Plaintiffs reserve the right to replead this Original Complaint if new claims and issues arise upon further development of the facts. In support thereof, Plaintiffs would respectfully show the following:

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I. INTRODUCTION AND BRIEF REVIEW OF THE CASE 1. This is a case about Princanna Strain, a child who was tragically killed at the age of 5, when, while a student at J.H. Hines Elementary School in Waco ISD, a large and unstable cabinet fell on her after a teacher permitted her and other children to play in, on, and around the cabinet. 2. This cabinet was procured by Waco ISD and subsequently placed in the gymnasium at J.H. Hines Elementary School. 3. John Doe Manufacturer produced a cabinet which was unreasonably tall and unstable. If they had assured safe design and implementation, it would have prevented the death of Princanna. 4. It is because of this and other failures that Plaintiffs bring suit against Waco ISD for violation of Princanna Strains rights to life, bodily integrity, and personal security and to equal protection pursuant to the Fourteenth Amendment to the Constitution of the United States as contemplated by 42 U.S.C. 1983 and for violation of Princannas right to be free from discrimination on the basis of race pursuant to Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d (Title VI). In addition, Plaintiffs bring this action pursuant to other state and common law claims. Last Plaintiffs seek damages and compensation for the injuries and actions as more fully discussed herein. II. JURISDICTION 5. Jurisdiction is conferred upon this Court pursuant to 28 U.S.C.A. '' 1331 and 1343 because the matters in controversy arise under the Fourteenth Amendment to the United States Constitution and the laws of the United States as noted above. 6. Furthermore, this Court and supplemental jurisdiction over various state and common law claims pursuant to 28 U.S.C. '1367. Original Complaint 2 of 15

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7.

Finally, this Court has jurisdiction to award attorneys fees and costs to the Plaintiffs pursuant to 42 U.S.C. '1983 and 42 U.S.C '2000d et seq. III. VENUE

8.

Under 28. U.S.C. 1391, venue is proper before this Court because the events and omissions giving rise to the Plaintiffs claims occurred in the Western District of Texas. IV. PARTIES

9. 10.

Princanna Strain was a citizen of the State of Texas and a student with Waco ISD. John Strain and Natalie Rocha are the natural parents of Princanna Strain and bring this action in their capacities as Princannas parents, guardians, and as representatives of Princannas estate.

11.

Defendant Waco Independent School District is a school district organized under the laws of the State of Texas and at all times was responsible for the care, management and control of all public school business within its jurisdiction, the training of teachers at the school as to safety, and supervision of students within the district and may be served with process through its Superintendent, Sheryl Davis, Waco Independent School District, 501 Franklin Ave, P.O. Box 27, Waco, Texas 76703-0027.

12.

Defendant(s) John Doe are unknown domestic and/or foreign corporation(s) doing business in the State of Texas. Said Defendant may be served with process by serving through registered agents. Service of said Defendant as described above can be effected by personal delivery.

13.

Plaintiffs would show that they have used due diligence in order to correctly identify the manufacturers and seller of the said rolling cabinet involved in this matter, and have placed their reliance as to Defendants identity based on information provided by the attorneys and purchasing department of the Waco Independent School District. However, Plaintiffs have

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found that the school district represented that they are unable to correctly identify the assembler(s), installer(s), distributor(s), manufacturer(s)/seller(s). V. STATEMENT OF FACTS 14. 15. Princanna Strain was born October 20, 2003. On October 7, 2009, Princanna attended elementary school at J. H. Hines Elementary School in Waco, McLennan County, Texas. 16. Some time after noon on October 7, 2009, Waco ISD teacher Shana McGowan placed 22 students, including Princanna, in the gym for physical education class. 17. Some of the students began playing in, on, and around the cabinet. Some students began pushing the rolling cabinet while Princanna was sitting in the bottom of the cabinet. 18. Around 12:15 p.m., Ms. McGowan then heard a loud noise and looked to see that the rolling cabinet had fallen over onto Princanna. Ms. McGowan directed the older boys in the gym to lift the cabinet. 19. Princanna struggled to breathe and live. A school employee called 9-1-1 and another employee carried Princanna to the nurses office. 20. EMS arrived at approximately 12:25 p.m. and found Princanna in the nurses office, where nobody was performing CPR on Princanna. 21. Princanna was pronounced dead at 1:05 p.m. at Hillcrest Baptist Medical Center from blunt chest trauma. 22. Waco ISD had procured the rolling coat cabinet and assigned it Waco ISD Property No. 003645. The cabinet was being used in the J. H. Hines Elementary Gymnasium. 23. The rolling coat cabinet was designed, manufactured and/or marketed by JDM, and said cabinet was a defective and unreasonable dangerous product. The cabinet was top heavy, and designed/manufactured/marketed in a manner that made it unreasonably Original Complaint 4 of 15

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dangerous as it was intended to be used for children. The cabinet measured 55 x 18 x 48, was on four four-inch casters, and was 5.5 off the floor. Officer Keith Vaughn of the Waco Police Department reported that it took very little force to turn the cabinet over. The inability to support the top heavy weight caused the device to fail and the cabinet to collapse and fall violently onto minor Plaintiff. The cabinet was defectively designed and unreasonably dangerous when used for its intended purpose. 24. In addition, the fact that the cabinet was top-heavy and would easily turn over with very little force was obvious to even the untrained eye. It was exceedingly dangerous around young children, as they were least likely to appreciate the dangers of the cabinet design, least likely to avoid turning it over, and least able to avoid having it fall on them and cause injury. 25. The Waco ISD had knowledge that the cabinet was dangerously top-heavy. It also had the capability to keep dangerous equipment away from young children. It also had the capability of providing students at J.H. Hines with safe equipment in which to store their things. In fact, Waco ISD supplied safe cabinets at other campuses within its system, but deliberately chose to place dangerous equipment at J.H. Hines campus. VI. CLAIMS AGAINST WACO ISD A. Claims Under Title VI 26. Plaintiffs incorporate by reference all the above related paragraphs with the same force and effect as if herein set forth. 27. Waco ISD made a deliberate choice to provide inferior and dangerous equipment at the J. H. Hines Elementary campus. This is true specifically as to the cabinet at issue because there were safe cabinets available in the marketplace, and there were safe cabinets at other campuses. Original Complaint 5 of 15

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28.

Plaintiffs contend that the deliberate choice to provide unsafe equipment at J.H. Hines was based on the race and economic status of the students that were required to attend that campus. The majority of the students at J.H. Hines are African-American, or Hispanic. White majority elementary schools are generally equipped with more modern and safer equipment, including cabinets.

29.

Even if it were true that the cabinet was necessary at the J.H. Hines campus, then the Waco ISD made a conscious choice to fail to train or supervise staff that might be in the vicinity of dangerous equipment with young children in their care. If the Waco ISD did not want to spend money to provide safe equipment, it had no choice but to train and supervise its staff to alert them to the possibility of injury to children in the vicinity of the dangerous equipment. Waco ISD deliberately chose not to warn, train or supervise employees because it would then be apparent that risking safety of children was unacceptable regardless of cost. It was much more convenient for the Waco ISD to ignore the danger.

30.

The failure to warn, train or supervise staff and employees is a purposeful act of the Waco ISD because the need for training is patently obvious in light of the danger presented, and the consequences of failing to warn, train or supervise is virtually certain to result in some injury, and likely a serious injury to smaller and younger children.

31.

In sum, the Waco ISD took unacceptable short-cuts on safety issues as a purposeful decision despite knowing of a significant risk of danger all premised on the fact that the persons at risk were of minority race and lower socio-economic status. B. Claims under 42 U.S.C. 1983

32.

Plaintiffs incorporate by reference all the above related paragraphs with the same force and effect as if herein set forth.

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33.

Waco ISD violated Princannas rights to life, bodily integrity, and personal security under the Fourteenth Amendment to the Constitution of the United States.

34.

Waco ISD created a dangerous situation in the gym at J.H. Hines Elementary School by acquiring and installing a cabinet which was dangerously tall and unstable, the foreseeable consequence being the injury or death of a student. Plaintiffs would further show that Waco ISD was deliberately indifferent to this dangerous situation by failing to effectively train or supervise employees to ensure that students did not play in, on, or around the cabinet.

35.

Waco ISD had a duty to protect Princanna, a 5-year-old student at J.H. Hines Elementary School due to compulsory attendance, in the full and sole legal custody and control of the School to the exclusion of her legal guardian, during school hours. Plaintiffs would further show that Waco ISD was deliberately indifferent to Princannas safety by acquiring and installing a cabinet which was dangerously tall and unstable in the elementary school, and by failing to effectively train or supervise employees to ensure that students did not play in, on, or around the cabinet.

36.

In addition and in the alternative, in discriminating against Princanna on the basis of race and socioeconomic class, Waco ISD violated Princannas right to equal protection under the law pursuant to the Fourteenth Amendment of the Constitution of the United States, for which Plaintiffs seek recovery pursuant to 42 U.S.C. 1983. VII. CLAIMS AGAINST JOHN DOE MANUFACTURER A. Strict Liability

37.

Plaintiffs incorporate by reference all the above related paragraphs with the same force and effect as if herein set forth.

38.

The unreasonably dangerous condition of the rolling cabinet resulting from the defective 7 of 15

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design/manufacturing and marketing of JDM was a producing cause of the severe and permanent injuries and death sustained by minor Plaintiff as a result of the incident in question. Alternative designs that would not have been unreasonably dangerous were available at the time. 39. The unreasonably dangerous condition of the rolling cabinet supplied by JDM as a result of its defective design/manufacturing and marketing was also a producing cause of the severe and permanent injuries and death sustained by minor Plaintiff as a result of the incident in question. Alternative safer designs existed at the time of the sale of the cabinet which was both economically and technologically feasible at the time. 40. The unreasonably dangerous condition of the rolling cabinet resulting from the failure of JDM to give adequate warnings and instructions was also a producing cause of the severe and permanent injuries and death sustained by minor Plaintiff as a result of the incident in question. Therefore, strict liability applies. B. Breaches of Warranty 41. Plaintiffs incorporate by reference all the above related paragraphs with the same force and effect as if herein set forth. 42. When JDM supplied the components for the rolling cabinet, it gave an implied warranty that those materials were merchantable and were suitable for the specific purpose for which they were intended. Plaintiff was a third-party beneficiary of these warranties. These warranties were breached, and the breaches were a proximate and producing cause of the severe and permanent injuries and death sustained by minor Plaintiff as a result of the incident in question. 43. When the rolling cabinet was supplied by JDM, and, John Doe distributor(s) and supplier(s), those defendants gave an implied warranty that the cabinet was merchantable Original Complaint 8 of 15

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and suitable for the specific purpose for which it was intended. Plaintiff was also a third party beneficiary of these warranties. These warranties were also breached, and those breaches were a proximate and producing cause of the severe and permanent injuries and death sustained by minor Plaintiff as a result of the incident in question. C. Violations of the Texas Deceptive Trade Practices Act 44. Plaintiffs incorporate by reference all the above related paragraphs with the same force and effect as if herein set forth. 45. Plaintiff, as a student, and Waco ISD employees who would have to work with and use the materials and equipment provided by Defendants, was a consumer as that term is defined under the Texas Deceptive Trade Practices Act and is one of the persons for whose benefit the materials were acquired by purchase by Waco ISD and put into use. The breaches of implied warranties committed by JDM, and distributor(s) and/or supplier(s) constitute violations of that Act, which violations were a producing cause of actual damages to Plaintiff(s). D. Negligence 46. Plaintiffs incorporate by reference all the above related paragraphs with the same force and effect as if herein set forth. 47. The conduct of JDM in supplying an inappropriately designed/manufactured and/or marketed custom rolling cabinet as described above constitutes negligence, which negligence proximately caused the injuries and damages sustained by Plaintiff. 48. The conduct of JDM in supplying a defectively designed custom rolling cabinet that would not function as intended and their failure to provide adequate warnings and instructions with regard to the use and/or nonuse of rolling cabinets constitute negligence that also proximately caused the injuries, death, and damages sustained by Plaintiff. Original Complaint 9 of 15

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E. Design Defect 49. Plaintiffs incorporate by reference all the above related paragraphs with the same force and effect as if herein set forth. 50. The rolling cabinet in question was researched, developed, designed, manufactured, inspected, tested, marketed and sold by Defendant(s). At all times relevant to this lawsuit, Defendant(s) were engaged in the business of selling rolling cabinets such as the cabinet in question. Specifically, Defendant(s) were involved as part of its business, in selling and otherwise in placing into the course of commerce, products similar to the rolling cabinet in question by transactions that are essentially commercial in character. F. Manufacturing Defect 51. Plaintiffs incorporate by reference all the above related paragraphs with the same force and effect as if herein set forth. 52. There was a manufacturing defect in the said rolling cabinet at the time it left the possession of Defendant(s) that was a producing cause of the occurrence in question. Specifically, the rolling cabinet was top heavy and had a propensity to fall under the same or similar conditions that caused the wrongful death of Princanna Strain as described herein. 53. The said rolling cabinet deviated in its construction and quality from its specifications or planned output in a manner that renders it unreasonably dangerous, meaning, dangerous to an extent beyond that which would be contemplated by the ordinary user of the product, with the ordinary knowledge common to the community as to the products characteristics. G. Misrepresentation 54. Plaintiffs incorporate by reference all the above related paragraphs with the same force 10 of 15

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and effect as if herein set forth. 55. There was a misrepresentation by Defendant(s) that was a producing cause of the occurrence in question. Specifically: a. Defendant(s) misrepresented to the public that the rolling cabinet was suitable to be used as a safe coat cabinet for children; and b. The representation about the suitability of the rolling cabinet for use as a rolling coat rack involved a material fact concerning the character or quality of the cabinet in question; and c. Waco ISD relied on the representation made by Defendant(s) in using the cabinet in question. H. Respondeat Superior 56. Plaintiffs incorporate by reference all the above related paragraphs with the same force and effect as if herein set forth. 57. Defendant(s) are vicariously liable for the negligent acts of their respective employees under the legal theory of respondeat superior. I. Exemplary Damages 58. Plaintiffs incorporate by reference all the above related paragraphs with the same force and effect as if herein set forth. 59. Defendant(s) are liable for exemplary damages arising from the design defects referenced above. The design defects referenced above were design policies adopted and ratified by Defendant(s) as an entity. Those design defects when viewed objectively form the standpoint of Defendants designers, employees, agents, and/or representatives in charge of design at the time of those acts/omissions created an extreme degree of risk of harm, considering the probability and magnitude of potential harm to school children such as Original Complaint 11 of 15

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Plaintiff and/or other members of the public. 60. Defendants designer, employees, agents, and/or representatives in charge of designing the said cabinet had actual subjective awareness of the risks involved. The consequences of a top heavy design and its allowance of excessive tip over incidents has been well documented, and had been well documented prior to the manufacturing of the said cabinet at issue in this case. Defendant(s) and their designers, employees, agents, and/or representatives in charge of designing the cabinet nevertheless proceeded with conscious indifference to the rights, safety, and welfare of Princanna Strain and the public by continuing to manufacture rolling cabinets with inadequate safety design with notice and knowledge of the risks involved. VIII. RATIFICATION 61. Plaintiffs incorporate by reference all the above-related paragraphs with the same force and effect as if herein set forth. 62. The School District Defendants ratified the acts, omissions and customs of school district personnel and staff. 63. As a result the School District Defendants are responsible for the acts and omissions of staff persons who were otherwise responsible for the safety of Princanna. IX. PROXIMATE CLAUSE 64. Plaintiffs incorporate by reference all the above related paragraphs with the same force and effect as if herein set forth. 65. Each and every, all and singular of the foregoing acts and omissions, on the part of Defendants, taken separately and/or collectively, jointly and severally, constitute a direct and proximate cause of the injuries and damages set forth herein.

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X. DAMAGES 66. Plaintiffs incorporate by reference all the above related paragraphs with the same force and effect as if herein set forth. 67. As a direct, producing, and proximate cause of the above-referenced wrongful conduct, the Plaintiffs have suffered the following injuries, and seek recovery for the same in this suit: a. Damages sought by the Estate of Princanna Strain: i. Conscious physical pain and mental anguish suffered by Princanna Strain prior to her death; and ii. Funeral and burial expenses; and iii. Exemplary damages. b. Damages sought by Plaintiff John Strain and Natalie Rocha: i. Past and future loss of care and love; ii. Past and future loss of support; iii. Past and future loss of services; iv. Past and future loss of advice and counsel; v. Past and future mental anguish; vi. Past and future loss of companionship and society; and vii. Attorney fees. XI. ATTORNEYS FEES 68. Plaintiffs incorporate by reference all the above related paragraphs with the same force and effect as if herein set forth. 69. It was necessary for Plaintiffs to retain the undersigned attorneys to file this lawsuit. Upon judgment against Defendant Waco ISD, Plaintiffs are entitled to an award of Original Complaint 13 of 15

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attorney fees and costs pursuant to 42 U.S.C. '1988 and the Texas Deceptive Trade Practices Act. XII. JURY DEMAND 70. Pursuant to Federal Rule of Civil Procedure 38(b), Plaintiffs demand a jury trial for all issues in this matter. PRAYER 71. WHEREFORE, PREMISES CONSIDERED, the Plaintiffs respectfully request that after a trial herein, they recover against Defendants, the following relief: a. Judgment for all of their actual damages, both general and special, as described above; b. Pre-judgment and post-judgment interest at the highest rate allowed by law; c. Costs of court; d. Attorneys fees; e. Exemplary damages where alleged, and f. Such other relief to which they may be entitled, both in law and in equity.

Respectfully submitted, Cirkiel & Associates /s/ Martin J. Cirkiel Mr. Martin J. Cirkiel, Esq. State Bar No. 00783829 marty@cirkielaw.com Mr. Chris W. Bennett, Esq. State Bar No. 24069367 cbennett@cirkielaw.com 1901 E. Palm Valley Boulevard Round Rock, Texas 78664 (512) 244-6658 [Telephone] (512) 244-6014 [Facsimile]

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Mr. Michael Zimmerman, Esq. State Bar No. 222714007 The Zimmerman Law Firm 3501 W. Waco Drive Waco, Texas 76710 (254) 752-9688 [Telephone] (254) 752-9680 [Facsimile] mzimmerman@thezimmermanlawfirm.com Drew Gibbs State Bar No.: 24045938 The Carlson Law Firm, P.C. 1111 North I-H 35, Ste. 102 Round Rock, Texas 78664 (512) 671-7277 [Telephone] (512) 238-0275 [Facsimile] dgibbs@carlsonattorneys.com Greg White State Bar No. 21329050 P. O. Box 2186 Waco, Texas 76703 (254) 717-5728 [Telephone] (866) 521.5569 [Facsimile] greg.white@texapplaw.com ATTORNEYS FOR PLAINTIFFS

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