Wrongful Death / Survival Pleading

IN THE CIRCUIT COURT FOR HOWARD COUNTY, MARYLAND

MARY SMITH and JOE SMITH
Co-Personal Representatives of the
Estate of ALICE SMITH, deceased
15 Blue Way
Columbia, Maryland 21044

Plaintiffs

v.

MARTIN BROWN
116 Glare Avenue
Elkridge, Maryland 21227

and

THE BOTTLING
COMPANY, INC.
51 Auth Road
Capital Heights, Maryland 20743

Serve:Resident Agent

Defendants

COMPLAINT

Comes now the plaintiffs Mary Smith and Joe Smith, Co-Personal Representatives of the Estate of Alice Smith, deceased, and Mary Smith, Individually, by and through their attorneys, Foran & Foran, P.A., and Ryan J. Foran, and sue the defendants Martin Brown, The Bottling Company, Inc., (hereafter The Bottling Co.) and as a cause of action state:

1. That the plaintiffs Mary Smith and Joe Smith are residents of Howard County, Maryland. Mary Smith is the surviving mother of the decedent, Alice Smith. Mary Smith and Joe Smith are Co-Personal Representatives of the Estate of Alice Smith, deceased, in Estate No. 11-1111-110 in Howard County, Maryland.
2. That the plaintiff Joe Smith is a resident of Howard County, Maryland, and is the decedent's natural father.
3. That the defendant Martin Brown is a resident of Elkridge, Maryland, and at all times relevant hereto was an agent, servant and/or employee of the defendant The Bottling Co., acting within the scope of his employment.
4. That the defendant The Bottling Co., is a Delaware corporation licensed to do business in Maryland and its principal place of business is located in Capital Heights, Prince George's County, Maryland.
5. The decedent, Alice Smith, died without a will and, therefore, plaintiffs Mary Smith and Joe Smith are her only heirs at law.
COUNT I
(wrongful death)
6. On or abut August 19, 2007, at approximately 3:25 p.m., plaintiffs' decedent, Alice Smith, was in the process of crossing a public thoroughfare in Howard County known as Farm Road, from the south to the north side in a north-northeasterly direction, at its intersection with a public thoroughfare known as Cement Lane. Alice Smith was acting at all times without contributory negligence and in a reasonable and prudent manner, and exercising the due care for her safety expected of an ordinarily prudent ten year old minor of the same age and experience under the same circumstances.
7. At approximately the same time the decedent began crossing Farm Road, the defendant Martin Brown, was driving a truck owned by defendant The Bottling Co. Defendant Brown, acting individually and as agent, servant and/or employee for defendant, The Bottling Co., in a westerly direction on Farm Road at approximately one hundred fifty to two hundred feet west of the intersection with Cement Lane, with a clear and unobstructed view of the intersection and attempted to cross the intersection at an excessive rate of speed and contrary to traffic control signals in operation at the time.
8. The decedent, Alice Smith, had almost reached the north side of Farm Road when the truck owned by defendant The Bottling Co., and operated by its agent, servant and/or employee Martin Brown, collided into her. The decedent died as a result of the collision and/or the weight of the truck's front and double wheel axles passing over her body.
9. That the defendant, Martin Brown, acting individually and as agent, servant and/or employee of defendant The Bottling Co., in violation of his duties and obligations, operated the truck at an unsafe speed, failed to safely and prudently observe the position and movement of pedestrians, failed to keep his vehicle under control, failed to reduce speed when approaching an intersection, failed to obey traffic control signals, failed to drive at a safe speed for the conditions existing, failed to keep a proper lookout for pedestrians, failed to yield the right of way to a pedestrian and was guilty of negligent driving and/or reckless driving.
10. That as a direct and proximate cause of the negligence of the defendant, Martin Brown, acting individually and as agent, servant and/or employee of defendant, The bottling Co., the decedent, Alice Smith sustained severe, grievous and fatal injuries.
11. That as a direct and proximate result of the wrongful death of the decedent, Alice Smith, the plaintiffs, Mary Smith and Joe Smith, Individually, were caused to suffer the loss of their daughter and other damages and losses following naturally therefrom including, but not limited to, mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, marital care, loss of benefits from the decedent's income for the length of her work expectancy and loss of income incurred by the plaintiffs themselves.
    WHEREFORE, the plaintiffs Mary Smith, Individually and Joe Smith, Individually, demand judgment against the defendants Martin Brown and The Bottling Co. and each of them jointly and severally, in the sum of Five Million Dollars ($5,000,000.00), plus costs.
COUNT II
(survival action)
12. That the plaintiffs Mary Smith and Joe Smith reallege, adopt and incorporate herein by reference, as if they were a part of this Count, all the allegations contained in Count One of this Complaint and, as further cause of action, state:
13. That the plaintiffs Mary Smith and Joe smith are the Co-Personal Representatives of the Estate of Alice Smith, deceased.
14. That the defendant The Bottling Co., owed a duty to exercise due care to the public and particularly to the decedent, Alice Smith, and failed in its exercise of that care causing and/or contributing to the accident.
15. That it is believed and therefore alleged that the defendant, The Bottling Co., received several notices that codefendant Martin Brown was seen driving trucks in an unsafe manner.
16. That the defendant The Bottling Co., knew or should have known that the codefendant Martin Brown had prior difficulties with the Department of Motor vehicles in that he had accumulated numerous violations and/or points against his driving license.
17. That defendant The Bottling Co., had developed or should have developed a record of the dangerous driving habits of Martin Brown and failed to act upon said record.
18. That defendant The Bottling Co., did willfully, wantonly, recklessly and in a complete disregard for human life, encourage its drivers to travel and operate the vehicles in an unsafe manner.
19. That the defendant The Bottling Co., knew or should have known that the truck driven by Martin Brown contained heavy and bulky supplies and materials and created an extremely dangerous highway safety hazard when handled in an unsafe manner because of its size, bulk, weight and distances required to stop the vehicle.
20. That knowing Martin Brown to unsafely operate vehicles and to pose a risk upon the highways, defendant The Bottling Co., willfully, wantonly, recklessly and in a complete disregard for human life, placed Martin Brown in control of a known dangerous instrument without giving him proper training and/or supervision.
21. That as a direct and proximate cause of injuries sustained by Alice Smith, and her resulting death therefrom, the Estate of the decedent sustained damages including, but not limited to, the medical, hospital and funeral expenses incurred on behalf of the decedent and for the conscious pain and suffering sustained by the defendant.
    WHEREFORE, the plaintiffs Mary Smith and Joe Smith, Co-Personal Representatives of the Estate of Alice smith, deceased, demand judgment against the defendants Martin Brown, The Bottling Co., and each of them jointly and severally in the sum of One Million Dollars ($1,000,000.00), plus costs in compensatory damages.
    Plaintiffs also demand judgment against the defendants Martin Brown, The Bottling Co., and each of the jointly and severally, in the sum of Ten Million Dollars ($10,000,000.00) in punitive damages.
COUNT III
(Negligent Entrustment)
22. That the plaintiffs Mary Smith and Joe Smith, as Co-Personal Representatives of the Estate of Alice Smith, deceased, reallege, adopt and incorporate herein by reference, as if they were a part of this count, all the allegations contained in Counts One and Two of this Complaint and, as further cause of action state:
23. That the defendant, The Bottling Co., owed a duty to exercise due care to the public and particularly to the decedent, Alice Smith, and failed in its exercise of due care by knowing or having reason to know from its own records and numerous other reports that its employee, the defendant Martin Brown, was or had become unfit to safely perform his job and posed, as a result, an unreasonable risk to the public who would foreseeable come in contact with him, and knowing or having reason to know that said employee was potentially dangerous to the public in the exercise of his job and was negligent and/or grossly negligent in hiring, retaining and failing to properly supervise and train the defendant, Martin Brown, as its agent, servant and employee while having full awareness of his unfitness to perform the duties expected of him.
24. That the defendant, The Bottling Co., owed a duty to exercise due care to the public and particularly to the decedent Alice Smith and with such knowledge as aforesaid, willfully, wantonly and recklessly and in a complete disregard for human life, negligently entrusted the defendant Martin Brown with the care and safe operation of a very large and extremely dangerous truck and with such knowledge permitted and directed him to drive said truck on the public streets and highway of the State of Maryland.
25. That as a direct and proximate result of the negligent entrustment of the aforesaid truck to the defendant Martin Brown, the collision herein at issue was caused to occur, resulting in severe, grievous and fatal injuries to the decedent, Alice Smith.
    WHEREFORE, the plaintiffs Mary Smith and Joe Smith, Co-Personal Representatives of the Estate of Alice Smith, deceased, separately demand judgment against the defendant The Bottling Co., the sum of Five Million Dollars ($5,000,000.00) compensatory damages and Ten Million Dollars ($10,000,000.00) punitive damages.

Foran & Foran, P.A.
BY: _____________________

Ryan J. Foran
Attorneys for Plaintiff
6301 Ivy Lane,#812
Greenbelt, Maryland 20770
(301) 441-2022

JURY DEMAND

The plaintiffs Mary Smith and Joe Smith, Co-Personal Representatives of the Estate of Alice Smith, deceased, demand a trial by jury on all issued contained herein.

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Ryan J. Foran

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