CAUSE NO DONALD AND MARY TRICHEL, INDIVIDUALLY IN THE DISTRICT COURT OF AND AS NEXT FRIENDS OF NICHOLAS TRICHEL VS. HARRIS COUNTY, TEXAS

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1 CAUSE NO DONALD AND MARY TRICHEL, INDIVIDUALLY IN THE DISTRICT COURT OF AND AS NEXT FRIENDS OF NICHOLAS TRICHEL VS. HARRIS COUNTY, TEXAS UNION PACIFIC RAILROAD AND JEREMY RAY HAMPTON 129 th JUDICIAL DISTRICT PLAINTIFFS FIRST AMENDED ORIGINAL PETITION AND JURY DEMAND COME NOW, Plaintiffs, Donald and Mary Trichel, Individually and As Next Friends and as Co- Guardians of the Estate and Person of Nicholas Trichel, an Incapacitated Person, complaining of Union Pacific Railroad and Jeremy Ray Hampton, hereinafter called Defendants, and for cause of action would respectfully show the Court the following: I. Donald and Mary Trichel, Individually and As Next Friends and as Co- Guardians of the Estate and Person of Nicholas Trichel, an Incapacitated Person, intend to conduct discovery in this matter under Level 3 of Rule 190. Per Texas Rule of Civil Procedure 47(c)(5), Donald and Mary Trichel, Individually and As Next Friends and as Co- Guardians of the Estate and Person of Nicholas Trichel, an Incapacitated Person, seek an amount exceeding $1,000,000. II. Donald and Mary Trichel, Individually and As Next Friends and as Co- Guardians of the Estate and Person of Nicholas Trichel, an Incapacitated Person are residents of the State of Texas. Defendant, Union Pacific Railroad, is a corporation engaged in business in the State of Texas and has made an appearance in this matter. Defendant, Jeremy Ray Hampton, is an individual who resides in Harris County, Texas and has made an appearance in this matter.

2 III. Venue is proper and maintainable in Harris County, Texas, since all or a substantial part of the events or omissions giving rise to the claim occurred in said county. The Court has jurisdiction in this matter since Plaintiffs damages are within its jurisdictional limits. IV. On or about April 15, 2014 Defendant Jeremy Ray Hampton was driving a tractor- trailer on the job with Defendant Union Pacific Railroad on Beltway 8 East in Harris County, Texas, when he caused a crash with a passenger car driven by Plaintiff, Nicholas Trichel, causing Mr. Trichel to suffer numerous catastrophic injuries. Mr. Hampton's negligence was a proximate cause of the crash in question. V. Nothing Nicholas Trichel did, or failed to do, caused the occurrence in question. Rather, it was the negligence of the Defendants named herein which proximately caused the occurrence resulting in injuries and damages to Nicholas Trichel. VI. Defendant, Jeremy Ray Hampton, was negligent in one or more of the following particulars, each of which acts and/or omissions, individually or collectively, constitutes negligence which proximately caused the collision and the resulting injuries and damages to Nicholas Trichel: a. In making an unsafe lane change; b. In failing to maintain a proper lookout; c. In failing to make proper application of the brakes of his vehicle; d. In failing to make timely application of the brakes of his vehicle; e. In failing to bring his vehicle to a stop before it collided with Nicholas Trichel s vehicle; f. In failing to turn the vehicle to avoid a collision; g. In operating a vehicle at a rate of speed in excess of that which it would have been operated by a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances; 2

3 h. In being inattentive and failing to maintain proper control of his vehicle; i. In operating his vehicle in a reckless manner; j. In failing to obey applicable traffic signals or signs; k. In failing to yield the right- of- way to oncoming traffic; l. In failing to stay in his lane; and m. In violating applicable provisions of Articles 6701(d) of the Texas Revised Civil Statutes. The negligence of Defendant, Jeremy Ray Hampton, was a proximate cause of the collision and Nicholas Trichel s injuries and damages. VII. Defendant, Union Pacific Railroad, is legally responsible to Nicholas Trichel for the negligent conduct of Defendant, Jeremy Ray Hampton, under the legal doctrines of respondeat superior, agency and/or ostensible agency because Defendant, Jeremy Ray Hampton, was at all times material hereto an agent, ostensible agent, servant and/or employee of Union Pacific Railroad, and was acting within the course and scope of such agency or employment. As a result thereof, Defendant, Union Pacific Railroad, is liable for all negligence of Defendant, Jeremy Ray Hampton. VIII. Defendant, Union Pacific Railroad, was also negligent and negligent per se in the entrustment of its vehicle to Jeremy Ray Hampton. At the time of the collision in question, Defendant, Union Pacific Railroad, was the owner of the commercial vehicle driven by the operator, Jeremy Ray Hampton. Defendant, Union Pacific Railroad, entrusted said vehicle to Defendant, Jeremy Ray Hampton, for the purpose of operating it on the public streets and highways of Texas, and Defendant, Jeremy Ray Hampton, operated said vehicle with the knowledge, consent and permission of Defendant, Union Pacific Railroad. At all times material, Defendant, Jeremy Ray Hampton, was incompetent and unfit to safely operate the motor vehicle and Defendant, Union Pacific Railroad, knew, or in the exercise of due 3

4 care should have known, that Defendant, Jeremy Ray Hampton, was an incompetent and unfit driver and would create an unreasonable risk of danger to persons or property on the public streets and highways of Texas. Such entrustment constitutes negligence and negligence per se which was a proximate cause of Nicholas Trichel s injuries and damages. Therefore, Donald and Mary Trichel, Individually and As Next Friends and as Co- Guardians of the Estate and Person of Nicholas Trichel, an Incapacitated Person, bring this action under general negligence and under negligent entrustment theories. IX. Defendant, Union Pacific Railroad, was also negligent in hiring an incompetent or unfit employee and/or in failing to properly train, instruct, and supervise Defendant, Jeremy Ray Hampton. Defendant, Union Pacific Railroad, failed to provide the proper training and instruction to Defendant, Jeremy Ray Hampton, which would have provided him with the proper skills and knowledge to avoid the collision which forms the basis of this lawsuit. Defendant, Union Pacific Railroad's negligent hiring of, and failure to properly instruct and train its driver were a proximate cause of the accident and Nicholas Trichel s resulting injuries and damages. X. Defendants, Union Pacific Railroad, and Jeremy Ray Hampton, were grossly negligent and acted with malice, as that term is understood under Texas law, and such conduct was a proximate cause of Nicholas Trichel s injuries and damages. Defendants malicious and grossly negligent conduct justifies the imposition of punitive and exemplary damages both as punishment to Defendants for their callous disregard and as a deterrent to others from engaging in similar conduct. Therefore, Donald and Mary Trichel, Individually and As Next Friends and as Co- Guardians of the Estate and Person of Nicholas Trichel, an Incapacitated Person, ask for punitive and exemplary damages in addition to all actual damages. 4

5 XI. Donald and Mary Trichel, Individually and As Next Friends and as Co- Guardians of the Estate and Person of Nicholas Trichel, an Incapacitated Person, plead the foregoing facts and theories cumulatively and alternatively, with no election or waiver of rights or remedies. XII. By virtue of the actions and conduct of the Defendants set forth above, Nicholas Trichel was seriously injured. By reason of those injuries and the damages flowing in law therefrom, this suit is maintained. Because of the nature and severity of the injuries sustained, Nicholas Trichel has suffered physical pain and mental anguish and, in reasonable probability, will continue to suffer disfigurement, physical pain and mental anguish in the future. Nicholas Trichel has suffered and will continue to suffer disfigurement, physical impairment, limitation of activities and loss of enjoyment of life. Because of the action and conduct of the Defendants herein, Nicholas Trichel has sustained very painful and disabling physical injuries. Because of the nature and severity of the injuries sustained, Nicholas Trichel has required medical treatment in the past and, in reasonable probability, will require other and additional treatment in the future. Charges for such medical treatment that have been made in the past and those which will in reasonable probability be made in the future have been and will be reasonable charges made necessary by the occurrence in question. XIII. Donald and Mary Trichel, Individually and As Next Friends and as Co- Guardians of the Estate and Person of Nicholas Trichel, an Incapacitated Person, would additionally say and show that Nicholas Trichel is entitled to recovery of pre- judgment interest in accordance with law and equity as part of their damages herein, and Donald and Mary Trichel, Individually and As Next Friends and as Co- Guardians of the Estate and Person of Nicholas Trichel, an Incapacitated Person, here and now sue for recovery of pre- judgment interest as provided by law and equity, under the applicable provisions of the laws of the State of Texas. 5

6 XIV. Mr. Hampton was additionally negligent, as follows, which was a cause of the crash: a. Liking various items on Facebook at 8:18 a.m., 8:19 a.m., and 8:20 a.m., on his phone using his right hand while trying to control the tractor trailer with only his left hand while distracted; b. Typing a 33- word Facebook post on his phone at 8:17 a.m. with multiple capitalizations, commas and exclamation points using his right hand while trying to control the tractor trailer with only his left hand and while distracted; c. Taking a call from a Union Pacific supervisor based in Fort Worth on his phone and talking from 8:15 a.m. to 8:16 a.m. while driving the tractor trailer while distracted; d. Changing his Facebook profile photo on his phone at 8:09 a.m. using his right hand while trying to control the tractor trailer with only his left hand while distracted; e. Engaging in the above and other activity on Facebook in the minutes leading up to, during, and after the crash on his phone using his right hand as he tried to control the tractor trailer with only his left hand while distracted and while making multiple lane changes; f. Engaging in other activity on his phone while driving the tractor trailer with only his left hand and while distracted, including but not limited to texts, s, internet use, game play, and / or use of the multiple "apps" that were on his phone, all of which added to Mr. Hampton's distraction and will be further shown in detail if and when Union Pacific makes available the contents of Mr. Hampton s phone that Union Pacific representatives claim they downloaded after the crash and before Mr. Hampton allowed a Verizon employee to re- set his phone resulting in the loss of all data on his phone; g. Mr. Hampton was negligent per se in violating all applicable regulations, laws and statutes prohibiting the use of a cell phone while driving in a manner that causes driver distraction, including but not limited to the Federal Motor Carrier Safety Regulations, Texas motor carrier regulations, and all other applicable laws, which was a cause of the crash. h. Allowing the tractor trailer to enter the far right lane without taking any proper action to make sure that lane was clear, including but not limited to the failure to utilize the multiple mirrors and windows of the tractor trailer, the failure to scan the roadway, and the failure to stop the multiple distracting activities he was engaged in on his phone to ensure he did not hit another vehicle; 6

7 i. Failing to maintain the tractor- trailer in a condition that would allow it to make a safe lane change; j. Although not a cause of the crash itself, a cause of other damages in initially fleeing the scene when it should have been obvious to Mr. Hampton that the tractor and trailer he was driving had just been involved in a major crash involving multiple significant impacts, plus the fact that an air line in his trailer had been severed and he was dumping air; Union Pacific was additionally negligent, as follows, which was a cause of the crash: a. In the hiring of Mr. Hampton, in failing to ensure Mr. Hampton was qualified to drive the tractor- trailer in question, which he was not based on his lack of knowledge, credibility, experience, training, supervision or any other qualifications; b. In the training of Mr. Hampton, in failing to train Mr. Hampton on what the applicable Federal Motor Carrier Safety Regulations and Union Pacific "polices" required of him in terms of the safe driving and maintenance of the company's tractor trailer, and in failing to otherwise train Mr. Hampton on how to safely drive and maintain the company's tractor trailer; c. In the supervision of Mr. Hampton, in failing to supervise or monitor Mr. Hampton's use of his phone and other communications devices in the tractor trailer, and in knowingly allowing Mr. Hampton to continuously drive the company's tractor trailer with only one hand while distracted as he would use his phone to engage in activity on Facebook, send and receive texts, send and receive s, use the internet, play games, make and take phone calls, and / or use the other multiple "apps" that were on his phone. d. In continuing to employ Mr. Hampton knowing he continuously drove the company's tractor trailer with only one hand while distracted as he would use his phone to engage in activity on Facebook, send and receive texts, send and receive s, use the internet, play games, make and take phone calls, and / or use the other multiple "apps" that were on his phone. e. In failing to maintain and equip its tractor- trailer in a condition that would allow it to make a safe lane change. f. Union Pacific was negligent per se in violating all applicable regulations, laws and statutes prohibiting the use of a cell phone while driving in a manner that causes driver distraction, including but not limited to the Federal Motor Carrier Safety Regulations, Texas motor carrier regulations, and all other applicable laws, in knowingly permitting Mr. Hampton to engage in such conduct while driving on Union Pacific business, which was a cause of the crash. 7

8 g. Union Pacific was negligent in entrusting its tractor trailer to Mr. Hampton because Union Pacific knew or should have - nown that Mr. Hampton was a reckless and incompetent driver. h. Union Pacific was negligent in entrusting its tractor trailer to Mr. Hampton because Union Pacific knew or should have known that its tractor trailer was defective in that it was not properly equipped to make a safe lane change, nor properly equipped to monitor Mr. Hampton's driving habits, nor properly equipped to prevent Mr. Hampton from unsafely using his cell phone while driving the Union Pacific tractor trailer, which was a cause of the crash. Mr. Hampton was grossly negligent in the operation of the tractor- trailer while using Facebook and engaging in other distracting activities on his phone while driving which was a cause of the crash in question. The gross negligence of Mr. Hampton is imputed to Union Pacific because Union Pacific authorized the doing and manner of Mr. Hampton's grossly negligent actions, Mr. Hampton was unfit and Union Pacific was reckless in employing him, Mr. Hampton was employed in a managerial capacity and was acting in the course of that capacity and employment with Union Pacific, and Union Pacific and/or one of its managers ratified and approved of Mr. Hampton's grossly negligent actions. Union Pacific was grossly negligent in its hiring, training, supervision and continuing employment of Mr. Hampton as set out above. Union Pacific, Jeremy Hampton and their representatives have destroyed material evidence as follows: a. Shortly after the crash, according to the sworn testimony of Jeremy Hampton, an unidentified "technician" hired by counsel for Union Pacific and Mr. Hampton, in the presence of counsel, plugged equipment into Mr. Hampton's phone and otherwise tampered with the phone in ways that are not known to the Trichel Family. The Trichel Family does not know if this unilateral activity resulted in the preservation of any data. The Trichel Family has not been provided any data from this activity. The Trichel Family requests all available spoliation relief if this activity failed to preserve all of the contents of Mr. Hampton s phone as of the time of the crash. b. After the above referenced unilateral activity was conducted on Mr. 8

9 Hampton s phone, which occurred on several occasions, Mr. Hampton's phone started to exhibit "problems," according to the sworn testimony of Mr. Hampton. After the "problems" caused by the work done by the unidentified "technician," Mr. Hampton brought his phone to a Verizon store and knowingly allowed (or requested, pending the completion of discovery) a Verizon employee to "re- set" his phone, knowing that would destroy all the data that was on his phone. The Trichel Family requests all available relief based on the spoliation of this evidence. c. Failing to preserve the cell phone (and its contents) in the possession of James Wilson, the Union Pacific employee who was following Mr. Hampton at the time of the crash and who witnessed part of the crash sequence (Mr. Wilson has passed away since the date of the crash, before the Trichel Family was able to depose him). Mr. Wilson was communicating with Mr. Hampton before and after the crash using his phone. Accordingly, since the crash, the data available on the cell phones of both Mr. Wilson and Mr. Hampton has mysteriously been lost, with no explanation of how this could have occurred. The Trichel Family requests all available spoliation relief for the failure to preserve Mr. Wilson s phone and all of the data on it as of the time of the crash. d. Upon information and belief, and subject to the opportunity to conduct full discovery on what Union Pacific, Mr. Hampton and their counsel did to the phones used by Mr. Hampton and Mr. Wilson, it appears that Union Pacific, Mr. Hampton and their counsel engaged in the above conduct in an attempt to eliminate the possibility of anyone recovering the data on the phones used by Mr. Hampton and Mr. Wilson, because they knew such data showed that Mr. Hampton's use of his phone was the cause of the crash in question. e. Intentionally delaying any alcohol testing on Mr. Hampton until many hours after the crash, ensuring a test that would not indicate whether Mr. Hampton had alcohol in his system as of the time of the crash, in violation of the applicable federal trucking regulations. The Trichel Family requests all available relief based on the spoliation of this evidence. XV. Donald and Mary Trichel, Individually and As Next Friends and as Co- Guardians of the Estate and Person of Nicholas Trichel, an Incapacitated Person, hereby request a trial by jury. XVI. WHEREFORE, PREMISES CONSIDERED, Donald and Mary Trichel, Individually and As Next Friends and as Co- Guardians of the Estate and Person of Nicholas Trichel, an Incapacitated Person, request that Defendants, Union Pacific Railroad and Jeremy Ray Hampton, be cited to appear and 9

10 answer, and that on final trial Donald and Mary Trichel, Individually and As Next Friends and as Co- Guardians of the Estate and Person of Nicholas Trichel, an Incapacitated Person have: (1) judgment against Defendants, jointly and severally, for actual, compensatory and exemplary damages in accordance with the evidence; (2) pre- judgment and post- judgment interest as provided by law; (3) costs of court; (4) attorney's fees; and (5) such other and further relief, general and special, to which Donald and Mary Trichel, Individually and As Next Friends and as Co- Guardians of the Estate and Person of Nicholas Trichel, an Incapacitated Person, may show Nicholas Trichel is justly entitled at law and in equity. Respectfully submitted, VUJASINOVIC & BECKCOM, PLLC /s/ Vuk S. Vujasinovic VUK S. VUJASINOVIC SBN: Woodway, Suite 400 Houston, Texas Fax ATTORNEYS FOR PLAINTIFFS CERTIFICATE OF SERVICE The undersigned authority hereby certifies that a true and correct copy of the foregoing instrument has been served upon all counsel of record pursuant to the Texas Rules of Civil Procedure on this 21 st of November, /s/ Vuk S. Vujasinovic VUK S. VUJASINOVIC 10