IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA CASE NO.: 2012-CA O DIVISION: 35

Transcription

1 IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA PAMELA CHAMPION, as Personal Representative for the Estate of ROBERT DARNELL CHAMPION, -vs- Plaintiff, CASE NO.: 2012-CA O DIVISION: 35 A RAY LAND PRODUCTIONS COMPANY, a Florida corporation, d/b/a FABULOUS COACH LINES, WENDY MILLETTE, individually, and FLORIDA AGRICULTURAL AND MECHANICAL UNIVERSITY BOARD OF TRUSTEES, Defendants. / FIRST AMENDED COMPLAINT FOR DAMAGES & DEMAND FOR JURY TRIAL COMES NOW, Plaintiff, PAMELA CHAMPION, as Personal Representative for the Estate of ROBERT DARNELL CHAMPION, by and through the undersigned attorneys, and hereby sues Defendants, A RAY LAND PRODUCTIONS COMPANY, a Florida corporation, d/b/a FABULOUS COACH LINES, WENDY MILLETTE, individually, and FLORIDA AGRICULTURAL AND MECHANICAL UNIVERSITY BOARD OF TRUSTEES, and in support thereof alleges: GENERAL ALLEGATIONS 1. This is an action for damages in excess of fifteen thousand ($15,000) dollars. 2. This cause of action arises in Orlando, Orange County, Florida. Page 1 of 33

2 3. Venue is proper in Orlando, Orange County, Florida pursuant to Fla. Stat. Sec and (1). 4. At all times relevant to this action ROBERT DARNELL CHAMPION, (hereafter the Decedent ) was an individual citizen residing in Tallahassee, Leon County, Florida. 5. At all times relevant to this action, the Plaintiff, PAMELA CHAMPION, Personal Representative of the Estate for ROBERT CHAMPION, was the natural and legal mother of Decedent and an individual citizen residing in Decatur, Georgia. 6. At all times relevant to this action, ROBERT CHAMPION, surviving natural and legal father of the Decedent was an individual citizen residing in Decatur, Georgia. 7. At all times relevant to this action, Florida Agricultural and Mechanical University (hereafter FAMU ) was a public university of the State of Florida. Defendant FLORIDA AGRICULTURAL AND MECHANICAL UNIVERSITY BOARD OF TRUSTEES (hereafter FAMU BOARD OF TRUSTEES ) was a constitutionally created entity that administered FAMU. 8. At all times relevant to this action, Defendant A RAY LAND PRODUCTIONS COMPANY, d/b/a FABULOUS COACH LINES (hereafter FABULOUS COACH ), was a Florida corporation whose principal place of business is located at 304 SW Suwannee Ave. Branford, Florida At all times relevant to this action, Defendant FABULOUS COACH was a private charter motor coach company hired by Defendant FAMU BOARD OF TRUSTEES to transport FAMU Band students from place to place for school related events and performances. Page 2 of 33

3 10. At all times relevant to this Action, Defendant FABULOUS COACH, US DOT Number: , owned and operated a charter bus (hereafter Bus C ), VIN number 2PCH At all times relevant to this action, Defendant WENDY MILLETTE (hereafter MILLETTE ) was an employee of Defendant FABULOUS COACH and the driver of Bus C. 12. This is an action brought pursuant to the provisions of the Florida Wrongful Death Act, Section et. seq., Florida Statutes, for the wrongful death of ROBERT DARNELL CHAMPION. 13. The potential beneficiaries of this action are: a. the Estate of ROBERT DARNELL CHAMPION; b. ROBERT CHAMPION, surviving natural and legal father of the Decedent; and, c. PAMELA CHAMPION, surviving natural and legal mother of the Decedent. ALLEGATIONS OF FACT 14. At all times relevant to this action, Decedent was a student enrolled at FAMU. 15. At all times relevant to this action, Decedent was a member of the FAMU Marching Band, also known as the Marching 100 (hereafter FAMU Band ). 16. At all times relevant to this action, Decedent was one of six Drum Majors in the 375 member FAMU Band. 17. Drum Majors in the FAMU Band do not actively play an instrument during marching season, but lead the band carrying a baton, a whistle, and wearing distinct top hats. Page 3 of 33

4 Drum Majors are responsible for managing, organizing, and otherwise leading the 375 member FAMU Band. 18. FAMU has a long history of knowledge of and tolerance for hazing within the FAMU BAND, including but not limited to the following incidents: a. A hazing incident in or around 1983, implicating approximately sixty (60) members of the FAMU Band in the hospitalization of one band member; b. A hazing incident in or around 1998, resulting in the hospitalization of one band member and the suspension of approximately twenty (20) members of the FAMU Band; c. A hazing incident in or around 2001, resulting in the hospitalization of one band member and the suspension of approximately eighteen (18) members of the FAMU Band; and d. A hazing incident in or around October 31, 2011, resulting in the hospitalization of one band member, the hazing of five (5) members of the FAMU Band, and the suspension of nine (9) members of the FAMU Band. 19. On or about Wednesday, November 16, 2011, FAMU Dean Henry Kirby proposed imposing an immediate long-term suspension of the FAMU Band to combat the egregious hazing within the FAMU Band. 20. FAMU failed to implement Dean Kirby s proposal after opposition was voiced from FAMU Band Director Julian White. Page 4 of 33

5 21. FAMU refused to suspend the FAMU Band prior to the Florida Classic, as suggested by Dean Kirby, due to the public notoriety and financial gain of participating in events during the three-day Florida Classic Weekend. 22. On or about Friday, November 18, 2011, the Band left the FAMU campus via FABULOUS COACH charter buses, headed for Orlando, Florida. 23. The Band was traveling to Orlando for performances at events during schoolsponsored participation in the three-day Florida Classic Weekend, November 18-20, FAMU Band members were under the control of FAMU at all times during the Florida Classic Weekend, November 18-20, The first performance for the FAMU Band was a band competition at or around 7:00pm in the Amway Center in Orlando, Florida, known as the Battle of the Bands. 26. Battle of the Bands featured the FAMU Band and the Bethune Cookman University (hereafter BCU ) Band as well as high school bands. of the Bands. 27. The public paid monetary tender for entrance into the Amway Center for Battle 28. Both FAMU and BCU received public notoriety and monetary distributions from revenues generated by the Battle of the Bands. 29. At or around 2:30pm on Saturday, November 19, 2011, the Blue Cross Blue Shield Florida Classic Football Game began at the Florida Citrus Bowl Stadium, 1610 West Church St., Orlando, Florida. 30. Decedent was among the six Drum Majors performing in the pre-game, halftime, and post-game performances. Page 5 of 33

6 31. The Florida Classic ended at or around 6:30pm on November 19, The FAMU Band departed the Florida Citrus Bowl Stadium, traveling on FABULOUS COACH charter buses back to the Rosen Plaza Hotel, 9700 International Dr., Orlando, Florida. 33. Decedent, along with the other Drum Majors and the Band Director, Dr. Julian White, traveled from the Florida Citrus Bowl to the Rosen Plaza Hotel, separate from the FAMU Band in a limousine owned and operated by FABULOUS COACH. 34. Both the FABULOUS COACH charter buses and limousine arrived back at the Rosen Plaza Hotel no later than 8:00pm on November 19, FAMU Band members disembarked the buses and limousine, unloaded band equipment, and retired to the hotel rooms and common areas respectively, no later than 8:30pm. 36. At a designated time after 8:30pm and prior to 9:46pm, members of the FAMU Band re-boarded one of the FABULOUS COACH buses, specifically Bus C. 37. At a designated time after 8:30pm and prior to 9:46pm, a series of hazing rituals were begun by members and/or alumni of the FAMU Band on one of the FABULOUS COACH buses, specifically Bus C. 38. At all times relevant to this action, Bus C was owned and operated by FABULOUS COACH. 39. Bus C was the third bus in a convoy of vehicles operated by FABULOUS COACH on November 19, 2011 operated by FABULOUS transporting the FAMU Band members. Page 6 of 33

7 40. FABULOUS COACH buses were parked in a group, lined side by side, in the designated commercial vehicle/charter bus parking in the rear parking lot at The Rosen Plaza Hotel. 41. At all times relevant, FABULOUS COACH was operating its buses and limousine pursuant to a valid Florida contract between FABULOUS COACH and FAMU. 42. At all times relevant, Bus C was operated by a driver employee of FABULOUS COACH, Defendant MILLETTE, and within her exclusive control. 43. At all times relevant, Defendant MILLETTE was the only driver with an access and ignition key to Bus C on November 19, At all times relevant, Defendant MILLETTE was acting within the course and scope of her duties as an employee at FABULOUS COACH. 45. At all times relevant, Defendant MILLETTE was wearing a FABULOUS COACH uniform as provided to drivers. 46. At or around 9:30pm, Defendant MILLETTE and other FABULOUS COACH drivers were present at or in the immediate vicinity of Bus C in the parking lot of The Rosen Plaza Hotel. 47. At or around 9:30pm, the engine of Bus C was running, the keys were in the ignition, the air condition activated, and the interior lights were partially illuminated. 48. There was no indication of forced entry unto Bus C. 49. At or around 9:30pm, Defendant MILLETTE granted access to Bus C to more than 20 FAMU Band members and/or alumni, all of whom have pledged or had been initiated into the subsidiary section of the FAMU Band known as Bus C. Page 7 of 33

8 50. The Bus C initiation consists of pledges attempting to run from the front door of the bus to the back of the bus, down the center aisle, while initiated members of the Bus C posse position themselves in between seat rows, launching punches, slaps, kicks, hitting with objects, yelling, or assaults and batteries otherwise upon the pledge as he or she runs down the aisle of the bus. 51. Should the pledge fall to the bus floor from the blows sustained to his or her body, the pledge may be stomped and is then dragged back to the front of the bus, and must begin the ritual again. 52. Failure to successfully complete the Bus C initiation results in a FAMU Band student being subjected to alienation from social contact, embarrassing public ridicule and mockery, sleep deprivation, and prohibition from talking, eating, drinking, sleeping, smiling, looking around or laughing while a passenger on Bus C or during FAMU Band activities. 53. FAMU Band members or civilians who have not been initiated into Bus C are not allowed onto, nor are any present, on the bus at the time of initiation. 54. At or around 9:30pm on November 19, 2011, Decedent was subjected to one of multiple hazing initiation rituals on Bus C known as the Hot Seat. The Hot Seat is a sub- component of the overall Bus C initiation that may or may not be administered contemporaneously with the Bus C initiation ritual. 55. Hot Seat is a hazing initiation that is organized and administered by members of the Bus C posse. A pillow case or other object inhibiting or prohibiting the flow of oxygen to the nose and mouth of the victim is placed over the victim s head, while the victim is seated in a designated seat on Bus C. The victim is asked questions by a hazer. If or when the victim Page 8 of 33

9 answers a question correctly, the object is briefly lifted to allow a brief flow of oxygen to the victim, and then quickly pulled back down over the victim s head as another question is asked. Should the victim fail to correctly answer the question, the object is not removed and the victim is prevented from inhaling fresh air, before the next question is asked. During this time, the victim is punched, slapped, kicked, or hit otherwise by members of the Bus C posse. The length and breadth of inquiry is discretionary and indefinite, as is the length and severity of physical punishment administered to the victim during the process. 56. John Doe I was sitting across from Decedent on Bus C during the Hot Seat initiation on November 19, John Doe I observed the Hot Seat initiation of Decedent, and having previously completed the Hot Seat initiation, opined that the physical and verbal abuse by the initiated upon the Decedent was more brutal than normal. 58. Consequently, John Doe I tried to stand up and help Decedent. John Doe I was immediately struck back down into the seat and pinned down as the physical abuse continued upon Decedent. Decedent. C. 59. John Doe I, on November 19, 2011, made the Bus C initiation run prior to 60. John Doe I completed the Bus C initiation with non-life threatening injuries. 61. At or around 9:30pm, Decedent was subjected to the hazing ritual known as Bus 62. Decedent at some point between 9:30pm and 9:46pm appeared at the doorway of the bus and began vomiting in the parking lot. Page 9 of 33

10 63. Defendant MILLETTE was standing guard at the door of the bus to monitor ingress and egress to Bus C. 64. Defendant MILLETTE, upon seeing the injured Decedent, ignored the apparent health risks of Decedent vomiting. 65. Defendant MILLETTE advised Decedent that he would be alright as she forced him back onto the bus. 66. Decedent, after being forced back onto the bus, was subjected to additional physical punishment. 67. The physical harm suffered by Decedent after being forced back onto the bus cumulatively led to the fatal injuries suffered by Decedent. 68. At or around 9:46pm, a FAMU Band member called 911 requesting Emergency Medical Service for Decedent, stating he was no longer breathing. Hospital. incident. 69. At or around 10:36pm, Decedent was pronounced dead by staff at Dr. P. Phillips 70. Decedent s cause of death was blunt force trauma [sustained] during a hazing 71. There are no intervening causes attributed to the death of Decedent. 72. At all times relevant to this action Decedent was a passenger with invitee status upon the FABULOUS COACH Bus C. 73. At no time on November 19, 2011 did FABULOUS COACH, its agents, or employees stop the hazing rituals, evict the Bus C posse from the FABULOUS COACH bus, or Page 10 of 33

11 otherwise intervene in the hazing rituals before or after Decedent s death from trauma sustained on FABULOUS COACH Bus C. 74. Another driver for FABULOUS COACH on November 19, 2011, observed suspicious activity on Bus C between 8:30pm and 9:46pm in the form of the bus rocking from side to side. 75. The driver inquired to Defendant MILLETTE as to what was occurring on the bus, and Defendant MILLETTE advised the other driver to ignore the activity and move on. 76. Defendant MILLETTE frequently participated or allowed the Bus C initiation to occur on FABULOUS COACH Bus C, when she was the operator. 77. Defendant MILLETTE would allow Bus C initiation rituals to occur while the bus was in transit on the highways. posse. 78. Defendant MILLETTE advised other drivers that she was a part of the Bus C 79. Defendant MILLETTE would habitually be assigned by FABULOUS COACH management to drive Bus C on FAMU Band trips. 80. Defendant FABULOUS COACH management knew Defendant MILLETTE was familiar with the hazing rituals and would allow it. 81. Bus C and Hot Seat are hazing rituals that would occur annually after The Florida Classic Football Game. 82. FABULOUS COACH has operated under contract with FAMU to transport FAMU BAND for, at a minimum, 2009, 2010, and Page 11 of 33

12 83. FABULOUS COACH, through its agents and drivers, was aware that hazing rituals, particularly the Bus C ritual, were committed on its buses in years prior to November 19, FABULOUS COACH through its agents and drivers allowed Bus C initiation to occur on its bus(es) after the Florida Classic Football game in 2009, 2010, and 2011,. 85. Other FABULOUS COACH bus drivers complained about FAMU Band hazing incidents prior to November 19, 2011, and were instructed by FABULOUS COACH administration to ignore it and that FAMU was paying for it and could do what they want. 86. Bus C and Hot Seat hazing rituals, amongst others, would sometimes occur while the bus was in operation on the road, with the knowledge and consent of the driver per directives from FABULOUS COACH management. COUNT I: WRONGFUL DEATH AGAINST DEFENDANT FABULOUS COACH 87. The Plaintiff readopts and realleges all prior allegations contained in Paragraphs 1-86 as if fully set forth herein. 88. At all times relevant to this action, Defendant FABULOUS COACH, owned, managed, operated, and held legal title to Bus C, where the hazing of Decedent took place on November 19, At all times relevant to this action, Defendant, FABULOUS COACH, through its agents and employees, had a legal obligation to its invitees, passengers, FAMU Band students including Decedent, to conform to a standard of reasonable conduct and refrain from unreasonable conduct so as to protect others from foreseeable and unreasonable zone of risk of harm. Page 12 of 33

13 90. Defendant, FABULOUS COACH, through its agents and employees, knew or in the exercise of reasonable care should have known that hazing involved harmful physical punishment to the person of others. 91. Defendant, FABULOUS COACH, was advised on numerous occasions by its bus drivers and others that harmful incidents of hazing by FAMU Band members were occurring on its buses while on contract trips for FAMU. 92. Defendant FABULOUS COACH had been providing contract charter bus services to FAMU Band for a number of years prior to 2011, particularly servicing The Florida Classic Football Game in Orlando, FL, and thus knew or with the exercise of reasonable care should have known that the Bus C, hazing ritual, amongst others, occurred annually after The Florida Classic Football Game in Orlando and on whatever bus owned and operated by FABULOUS COACH and designated by FABULOUS COACH as Bus C for The Florida Classic Football Game trip. 93. Consequently, Defendant, FABULOUS COACH, through its agents and employees, knew or in the exercise of reasonable care should have known that hazing attacks were reasonably likely to be perpetrated in Defendant FABULOUS COACH s Bus C, upon Defendant FABULOUS COACH s invitees, passengers, and the public unless the Defendant took steps to provide proper supervision for such individuals. 94. Defendant, FABULOUS COACH, participated in hazing and/or allowed hazing by FAMU Band members, specifically but not exclusively the Bus C ritual, to occur on its buses in November of 2009 and 2010, amongst other occurrences. Page 13 of 33

14 95. The Defendant, FABULOUS COACH, through its agents and employees, knew or in the exercise of reasonable care should have known that no individual including the Decedent had it within his power or ability to take the measures necessary to provide supervision on Defendant s bus. 96. At all times relevant to this action, the death of Decedent ROBERT DARNELL CHAMPION on Defendant FABULOUS COACH s bus, was reasonably foreseeable, and the Defendant, FABULOUS COACH, was in a superior position to appreciate such hazards and take necessary steps to prevent harm to its passengers and the public, including, but not limited to, Decedent ROBERT DARNELL CHAMPION. 97. At the above mentioned time and place, the Defendant, FABULOUS COACH, by and through its agents and employees, breached its duty to exercise reasonable care for the safety and protection of its passengers, including Decedent ROBERT DARNELL CHAMPION, and acted in a careless and negligent manner including, but not limited to, the following acts of omission or commission: a) Failing to provide adequate supervision for its invitees, passengers, and the public, including the Decedent, ROBERT DARNELL CHAMPION, while on a bus owned and operated by Defendant, FABULOUS COACH; b) Failing to secure its bus(es) to protect, guard, and secure the safety of its passengers, including ROBERT DARNELL CHAMPION; c) Failing to secure its bus(es) to protect, guard, and secure the safety of its passengers, including ROBERT DARNELL CHAMPION, when the Defendant knew or should have known that the subject bus had a history of similar hazing acts Page 14 of 33

15 thereby creating a foreseeable dangerous condition to those individuals on Defendant FABULOUS COACH s bus; d) Failing to properly train bus operators to be reasonably skillful, competent, and/or qualified to exercise appropriate and proper supervision measures so that they could protect passengers and the public, including Decedent ROBERT DARNELL CHAMPION; e) Failing to have surveillance cameras in such locations throughout the subject bus; f) Failing to implement adequate supervision policies, supervision measures, and supervision procedures necessary to protect Decedent ROBERT DARNELL CHAMPION and other passengers on the subject bus; g) Failing to take additional supervision measures after being put on notice that measures in force were inadequate to stop hazing rituals; h) The preceding paragraphs a through g, individually and/or as a whole, represent deviations from the existing standard of care with regard to inspection, supervision, and/or security of buses as recognized in the local community; 98. The Defendant, FABULOUS COACH, through its agents and employees, negligently failed to have any procedures governing the inspection, supervision, and/or security of the bus upon which the subject incident occurred; or in the alternative, a. The Defendant, FABULOUS COACH, through its agents and employees, did in fact have procedures governing the inspection, supervision, and security of the bus where the subject incident occurred; however, the Defendant negligently and carelessly failed to implement said procedures; or in the alternative, Page 15 of 33

16 b. The Defendant, FABULOUS COACH, through its agents and employees, did have procedures governing the inspection, supervision, and security of the bus where the subject incident occurred, but implemented same in a careless and negligent manner; or in the alternative, c. The Defendant, FABULOUS COACH, through its agents and employees, negligently failed to hire persons, employees, and/or agents reasonably suited for providing, implementing and maintaining proper supervision measures adequate to ensure the safety of its passengers and the public. 99. The Defendant, FABULOUS COACH, through its agents, and employees, created and/or allowed to be created said dangerous conditions as stated above on the subject bus. Further, the Defendant failed to warn its passengers, and the public, including but not limited to Decedent ROBERT DARNELL CHAMPION, of the existence of said dangerous conditions The negligence of the Defendant, FABULOUS COACH, proximately caused the death of Decedent, ROBERT DARNELL CHAMPION and directly led to the death of Decedent, ROBERT DARNELL CHAMPION, in that: a. There was inadequate and/or nonexistent visible deterrence to prevent hazing; b. Individuals could carry out hazing on the Defendant's bus without fear of being caught, discovered, and/or prosecuted; c. An atmosphere was created on the Defendant's bus which facilitated the commission of hazing; and d. Agents of Defendant, FABULOUS COACH, assisted in the hazing rituals through actual or indirect participation. Page 16 of 33

17 101. As a direct and proximate result of the negligence of the Defendant, FABULOUS COACH, the Decedent suffered bodily harm on Defendant FABULOUS COACH s bus on November 19, 2011 which caused his death As a further direct and proximate result of the negligence of said Defendant, which caused the death of Decedent ROBERT DARNELL CHAMPION, the Defendant is liable to the Plaintiff for all damages to which the Estate and/or the survivors and/or beneficiaries are entitled under the Florida Wrongful Death Statute, pursuant to Fla. Stat Specifically, the Decedent s Estate, beneficiaries, and his survivors, have suffered and will continue to suffer damages into the future including, as authorized and allowed under the Wrongful Death Act, Section et seq. Florida Statutes: a. The past and future mental pain and suffering of ROBERT DARNELL CHAMPION, the decedent s surviving father; b. The past and future loss of decedent s support and services from the date of his death to ROBERT DARNELL CHAMPION, as surviving parent of ROBERT DARNELL CHAMPION; c. The past and future mental pain and suffering of PAMELA CHAMPION, the Decedent s surviving mother; d. The past and future loss of decedent s support and services from the date of his death to PAMELA CHAMPION, as surviving parent of ROBERT DARNELL CHAMPION; e. Expenses of medical care and funeral arrangements arising from the injury and death of ROBERT DARNELL CHAMPION; and, Page 17 of 33

18 f. Any and all other damages as specified in F.S WHEREFORE, the Plaintiff, PAMELA CHAMPION, as Personal Representative of the Estate of ROBERT DARNELL CHAMPION, deceased, sues the Defendant, FABULOUS COACH, and demands judgment against it for damages exclusive of attorney fees, costs, and interest, in an amount in excess of the jurisdictional limits of this Court. Plaintiff further demands a trial by jury on all issues so triable. COUNT II: WRONGFUL DEATH AGAINST DEFENDANT WENDY MILLETTE 103. The Plaintiff readopts and realleges all prior allegations contained in Paragraphs 1-86 as if fully set forth herein Defendant MILLETTE was the FABULOUS COACH bus driver assigned to drive Bus C on November 19, 2011, and as the driver of Bus C had authority, dominion, and control of Bus C on November 19, At all times relevant to this action, Defendant MILLETTE, as the driver of Bus C and employee in the course and scope of her duties for FABULOUS COACH, had an obligation by law to invitees, passengers, FAMU Band students, and Decedent, to conduct herself in a manner that would reasonably prevent, prohibit, and protect said parties from forseeable harms on or involving Bus C Defendant MILLETTE knew or in the exercise of reasonable care should have known that hazing attacks were reasonably likely to be perpetrated on passengers, and FAMU Band students, including Decedent, unless she took steps to provide proper supervision for said individuals while on Bus C. Page 18 of 33

19 107. Defendant MILLETTE was on notice of the propensity for hazing on Bus C on November 19, 2011, because she: a. had previously driven Bus C for FAMU Band trips; b. had previously allowed hazing by FAMU Band members on the bus she was operating while she was operating or supervising the bus; c. had participated in prior posse hazing rituals, and factually knew that the Bus C ritual was performed on FABULOUS COACH Bus C every year in the late evening after The Florida Classic Football Game; d. was asked or instructed to park Bus C separate and away from the location where other FABULOUS COACH buses where parked on the property of the Rosen Plaza on the evening of November 19, 2011; and e. was asked or instructed to have the bus engine running with the air condition operating on the evening of November 19, Defendant MILLETTE knew or in the exercise of reasonable care should have known that the hazing rituals conducted on Bus C on November 19, 2011 would likely result in an injury to persons, including Decedent Defendant MILLETTE knew or in the exercise of reasonable care should have known that no individual including the Decedent had it within his power or ability to take the measures necessary to provide supervision on Defendant s bus The death of Decedent ROBERT DARNELL CHAMPION, was reasonably foreseeable, and Defendant MILLETTE was in a superior position to appreciate such hazards Page 19 of 33

20 and take necessary steps to prevent harm to her passengers and the public, including, but not limited to, Decedent ROBERT DARNELL CHAMPION At the above mentioned time and place, Defendant MILLETTE breached her duty to exercise reasonable care for the safety and protection of her passengers on Bus C, including Decedent ROBERT DARNELL CHAMPION, and acted in a careless and negligent manner including, but not limited to, the following acts of omission or commission: a) Failing to provide adequate supervision for her invitees and the public, including the Decedent, ROBERT DARNELL CHAMPION; b) Failing to secure her bus to protect, guard, and secure the safety of her passengers, including ROBERT DARNELL CHAMPION; c) Failing to secure her bus to protect, guard, and secure the safety of her passengers, including ROBERT DARNELL CHAMPION, when the Defendant knew or should have known that the subject bus had a history of similar hazing acts thereby creating a dangerous condition to those individuals on Defendant s bus; d) Failing to have surveillance cameras in such locations throughout the subject bus; e) Failing to call emergency medical services when Decedent ran off of the bus vomiting as physical reaction to the abuse that was occurring on Bus C; f) In a conscious disregard for the health consequences facing Decedent, forcing Decedent back onto Bus C, reasonably deducing that he would be subjected to additional hazing after he exited Bus C vomiting, g) Failing to take additional supervision measures after being put on notice that measures in force were inadequate to stop hazing rituals; Page 20 of 33

21 h) The preceding paragraphs a through g, individually and/or as a whole, represent strict deviations from the existing standard of care with regard to supervision as recognized by similar premises in the local community; 112. Defendant MILLETTE negligently failed to have any procedures governing the inspection, supervision, and/or security of the bus where the subject incident occurred; or in the alternative, a. Defendant MILLETTE did in fact have procedures governing the inspection, supervision, and security of the bus where the subject incident occurred; however, the Defendant negligently and carelessly failed to employ said procedures; or in the alternative, b. Defendant MILLETTE did have procedures governing the inspection, supervision, and security of the bus where the subject incident occurred, but implemented same in a careless and negligent manner Defendant MILLETTE allowed to be created said dangerous conditions as stated above on the subject bus. Further, the Defendant failed to warn its passengers, and the public, including but not limited to Decedent ROBERT DARNELL CHAMPION, of the existence of said dangerous conditions The negligence of Defendant MILLETTE proximately caused and directly led to the death of Decedent, ROBERT DARNELL CHAMPION in that: a. There was inadequate and/or nonexistent visible deterrence to prevent hazing; b. Individuals could carry out hazing on the Defendant's bus without fear of being caught, discovered, and/or prosecuted; and Page 21 of 33

22 c. An atmosphere was created on the Defendant's bus which facilitated the commission of hazing As a direct and proximate result of the negligence of Defendant MILLETTE, the Decedent suffered bodily harm on Defendant s bus on November 19, 2011 which caused his death As a further direct and proximate result of the negligence of said Defendant, which caused the death of Decedent ROBERT DARNELL CHAMPION, the Defendant is liable to the Plaintiff for all damages to which the Estate and/or the survivors and/or beneficiaries are entitled under the Florida Wrongful Death Statute, pursuant to Fla. Stat Specifically, the Decedent s Estate, beneficiaries, and his survivors, have suffered and will continue to suffer damages into the future including, as authorized and allowed under the Wrongful Death Act, Section et seq. Florida Statutes: a. The past and future mental pain and suffering of ROBERT DARNELL CHAMPION, the decedent s surviving father; b. The past and future loss of decedent s support and services from the date of his death to ROBERT DARNELL CHAMPION, as surviving parent of ROBERT DARNELL CHAMPION; c. The past and future mental pain and suffering of PAMELA CHAMPION, the Decedent s surviving mother; d. The past and future loss of decedent s support and services from the date of his death to PAMELA CHAMPION, as surviving parent of ROBERT DARNELL CHAMPION; Page 22 of 33

23 e. Expenses of medical care and funeral arrangements arising from the injury and death of ROBERT DARNELL CHAMPION; and, f. Any and all other damages as specified in F.S WHEREFORE, the Plaintiff, PAMELA CHAMPION, as anticipated Personal Representative of the Estate of ROBERT DARNELL CHAMPION, deceased, sues the Defendant, WENDY MILLETTE, and demands judgment against her for damages exclusive of attorney fees, costs, and interest, in an amount in excess of the jurisdictional limits of this Court. Plaintiff further demands a trial by jury on all issues so triable. COUNT III: NEGLIGENT RETENTION AGAINST DEFENDANT FABULOUS COACH 117. The Plaintiff readopts and realleges all prior allegations contained in Paragraphs 1-86 as if fully set forth herein Subsequent to Defendant FABULOUS COACH s decision to hire its employee, Defendant MILLETTE, Defendant FABULOUS COACH became aware, or in the exercise of reasonable care should have become aware, that Defendant MILLETTE engaged in inappropriate and negligent acts with passengers, which indicated Defendant MILLETTE s unfitness to work Defendant FABULOUS COACH had a duty to take reasonable and appropriate action to ensure that its employee, Defendant MILLETTE, did not commit, allow or encourage inappropriate and negligent acts with passengers Defendant FABULOUS COACH knew or in the exercise of reasonable care should have known that, Defendant MILLETTE was committing, allowing or encouraging inappropriate and negligent acts of hazing on buses owned or operated by FABULOUS COACH while in the course and scope of her duties for FABULOUS COACH, due to the following; Page 23 of 33

24 a. Defendant MILLETTE bragged to other drivers about her affiliation with the Bus C posse; b. Defendant MILLETTE on occasions prior to November 19, 2011, would seek driver assignment to Bus C because although she would allow hazing on Bus C, other drivers were not as cooperative in allowing said behavior; c. Defendant MILLETTE has been allowed to sit with the FAMU Band in the stands as an honorary member of Bus C posse, although other drivers were not afforded this privilege ; and d. Defendant MILLETTE, on occasion prior to and on November 19, 2011 encouraged other bus drivers who may occasionally witness and inquire as to the happenings on Bus C or other buses, to ignore the Bus C hazing activities and conceal his or her knowledge of the hazing incidents Defendant FABULOUS COACH breached its duty when it failed to investigate, discharge and/or reassign its employee, Defendant MILLETTE upon the aforementioned knowledge Defendant FABULOUS COACH is liable for negligently retaining Defendant MILLETTE as an employee Defendant FABULOUS COACH negligently failed to have any policies or procedures governing, monitoring, or disciplining its driver employees for facilitation, participation or encouragement of harmful and illegal activities, in the first or third person, while in the course and scope of her duties for FABULOUS COACH; Page 24 of 33

25 a. Defendant FABULOUS COACH did in fact have policies or procedures governing, monitoring, or disciplining its driver employees for facilitation, participation or encouragement of harmful and illegal activities, in the first or third person, while in the course and scope of her duties for FABULOUS COACH however, the Defendant negligently and carelessly failed to employ said procedures; or in the alternative, b. Defendant FABULOUS COACH did have policies and procedures governing, monitoring, or disciplining its driver employees for facilitation, participation or encouragement of harmful and illegal activities, in the first or third person, while in the course and scope of her duties for FABULOUS COACH but implemented same in a careless and negligent manner As a direct and proximate consequence of Defendant FABULOUS COACH s negligent retention of its employee, Defendant MILLETTE, the Decedent suffered bodily harm on Defendant s bus on November 19, 2011 which caused his death But for FABULOUS COACH retaining and assigning Defendant MILLETTE to Bus C, the initiation ritual would not have occurred, as Defendant MILLETTE was the only driver present on November 19, 2011 that was affiliated with the Bus C posse, and that would facilitate access to Bus C for the ritualistic hazing that occurred As a further direct and proximate result of the negligence of said Defendant, which caused the death of Decedent ROBERT DARNELL CHAMPION, the Defendant is liable to the Plaintiff for all damages to which the Estate and/or the survivors and/or beneficiaries are entitled under the Florida Wrongful Death Statute, pursuant to Fla. Stat Specifically, Page 25 of 33

26 the Decedent s Estate, beneficiaries, and his survivors, have suffered and will continue to suffer damages into the future including, as authorized and allowed under the Wrongful Death Act, Section et seq. Florida Statutes: a. The past and future mental pain and suffering of ROBERT DARNELL CHAMPION, the decedent s surviving father; b. The past and future loss of decedent s support and services from the date of his death to ROBERT DARNELL CHAMPION, as surviving parent of ROBERT DARNELL CHAMPION; c. The past and future mental pain and suffering of PAMELA CHAMPION, the Decedent s surviving mother; d. The past and future loss of decedent s support and services from the date of his death to PAMELA CHAMPION, as surviving parent of ROBERT DARNELL CHAMPION; e. Expenses of medical care and funeral arrangements arising from the injury and death of ROBERT DARNELL CHAMPION; and, f. Any and all other damages as specified in F.S WHEREFORE, the Plaintiff, PAMELA CHAMPION, as anticipated Personal Representative of the Estate of ROBERT DARNELL CHAMPION, deceased, sues the Defendant, FABULOUS COACH, and demands judgment against it for damages exclusive of attorney fees, costs, and interest, in an amount in excess of the jurisdictional limits of this Court. Plaintiff further demands a trial by jury on all issues so triable. Page 26 of 33

27 COUNT IV: VICARIOUS LIABILITY AGAINST DEFENDANT FABULOUS COACH 127. Plaintiff reiterates and re-alleges all the allegations contained in 1-86 above as though fully stated herein On or about November 19, 2011, Defendant, FABULOUS COACH, employed Defendant MILLETTE as a W-2 employee, for the express purpose of operating, maintaining, and supervising Defendant FABULOUS COACH S Bus C as referenced herein At all times relevant to this incident, Defendant MILLETTE was operating in the course and scope of her duties for Defendant FABULOUS COACH as FABULOUS COACH did not have time certain that drivers were off the clock or duties terminated At all relevant times on or about November 19, 2011, including the time of the incident, Defendant MILLETTE by her words, conduct, and attire portrayed and possessed the implied and actual consent of Defendant FABULOUS COACH to operate Bus C and regulate who could and could not access Bus C At all relevant times on or about November 19, 2011, including the time of the incident, members of the FAMU Band, specifically the Bus C posse justifiably relied upon Defendant MILLETTE s representation that she was acting as an agent of, and with the express and/or implied consent of FABULOUS COACH as the owner Bus C, in providing access to Bus C for the members of the Bus C posse Defendant MILLETTE, in providing access to Bus C for the benefit of Bus C posse was acting at least in part because of a desire to serve her employer FABULOUS COACH by accommodating the demands of the FAMU Band members. Page 27 of 33

28 133. It was common knowledge amongst FABULOUS COACH bus drivers, that to remain in the graces of the employer, a driver should accommodate the wishes of passenger, even when the activity was illegal or created a foreseeable zone of risk, drivers were to let them do whatever they want as it relates to FAMU Band conduct in FABULOUS COACH buses FABULOUS COACH is responsible for the negligence of its apparent agent occurring while the apparent agent is acting within the scope of his or her apparent authority Defendant MILLETTE was acting within the course and scope of her employment with FABULOUS COACH, and with the full knowledge and express or implied consent/permission of the Defendant FABULOUS COACH, when she unlocked Bus C, started the engine, engaged the air condition for the comfort of the Bus C posse, and parked Bus C in an obscured corner of the Rosen Plaza parking lot to conceal the hazing activities of the Bus C posse Defendant MILLETTE was acting within the course and scope of her employment with Defendant FABULOUS COACH and with the full knowledge and express or implied consent/permission of the Defendant FABULOUS COACH, when she invited passengers to board Bus C for purposes of the Bus C hazing process 137. Defendant MILLETTE was acting within the course and scope of her employment with Defendant FABULOUS COACH, and with the full knowledge and express or implied consent/permission of the Defendant FABULOUS COACH, when she allowed passengers on Bus C to engage in hazing rituals 138. Defendant FABULOUS COACH, as the employer of Defendant MILLETTE referenced herein, is vicariously liable for the negligence of its employee/bus driver. Page 28 of 33

29 139. At all times referred to herein, Defendant MILLETTE, employee of Defendant FABULOUS COACH, owed a duty to Decedent CHAMPION to exercise reasonable care when supervising passengers on Bus C Defendant MILLETTE breached this duty when she negligently failed to supervise the passengers on board Bus C Defendant MILLETTE breached this duty when she negligently failed to prevent hazing rituals from taking place on Bus C As a direct and proximate result of the negligence of Defendant MILLETTE, employee of Defendant FABULOUS COACH, Decedent suffered bodily harm on Defendant FABULOUS COACH s property on November 19, 2011 which caused his death As a further direct and proximate result of the negligence of said Defendant, which caused the death of Decedent ROBERT DARNELL CHAMPION, the Defendant is liable to the Plaintiff for all damages to which the Estate and/or the survivors and/or beneficiaries are entitled under the Florida Wrongful Death Statute, pursuant to Fla. Stat Specifically, the Decedent s Estate, beneficiaries, and his survivors, have suffered and will continue to suffer damages into the future including, as authorized and allowed under the Wrongful Death Act, Section et seq. Florida Statutes: a. The past and future mental pain and suffering of ROBERT DARNELL CHAMPION, the decedent s surviving father; b. The past and future loss of decedent s support and services from the date of his death to ROBERT DARNELL CHAMPION, as surviving parent of ROBERT DARNELL CHAMPION; Page 29 of 33

30 c. The past and future mental pain and suffering of PAMELA CHAMPION, the Decedent s surviving mother; d. The past and future loss of decedent s support and services from the date of his death to PAMELA CHAMPION, as surviving parent of ROBERT DARNELL CHAMPION; e. Expenses of medical care and funeral arrangements arising from the injury and death of ROBERT DARNELL CHAMPION; and, f. Any and all other damages as specified in F.S WHEREFORE, the Plaintiff, PAMELA CHAMPION, as anticipated Personal Representative of the Estate of ROBERT DARNELL CHAMPION, deceased, sues the Defendant, FABULOUS COACH, and demands judgment against it for damages exclusive of attorney fees, costs, and interest, in an amount in excess of the jurisdictional limits of this Court. Plaintiff further demands a trial by jury on all issues so triable. COUNT V: WRONGFUL DEATH AGAINST DEFENDANT FLORIDA AGRICULTURAL AND MECHANICAL UNIVERSITY BOARD OF TRUSTEES 144. Plaintiff reiterates and re-alleges all the allegations contained in 1-88 above as though fully stated herein Defendant FAMU BOARD OF TRUSTEES owed Plaintiff a duty of care Defendant FAMU BOARD OF TRUSTEES had a fiduciary responsibility to exercise due care. Page 30 of 33

31 147. Defendant FAMU BOARD OF TRUSTEES knew or in the exercise of due care should have known that the FAMU Band engaged in conduct that violated the University s policies and the laws of the state of Florida and of the United States Defendant FAMU BOARD OF TRUSTEES knew or in the exercise of due care should have known that non-famu students were permitted to participate in school-sponsored FAMU Band activities, including but not limited to the Florida Classic Weekend Defendant FAMU BOARD OF TRUSTEES knew or in the exercise of due care should have known that hazing of FAMU Band members was actively taking place in the 2011 band season Defendant FAMU BOARD OF TRUSTEES knew or in the exercise of due care should have known that hazing of FAMU Band members would continue taking place in the 2011 band season unless drastic action was taken to prevent it. Indeed, Dean Kirby of FAMU recommended suspension of the FAMU Band, which was ignored just three days prior to the subject incident Defendant FAMU BOARD OF TRUSTEES negligently failed to have any policies or procedures governing, monitoring, or disciplining FAMU Band members for facilitation, participation or encouragement of hazing activities, or in the alternative: a. Defendant FAMU BOARD OF TRUSTEES did in fact have policies or procedures governing, monitoring, or disciplining FAMU Band members for facilitation, participation or encouragement of hazing activities; however, the Defendant negligently and carelessly failed to employ said procedures; or in the alternative, Page 31 of 33

32 b. Defendant FAMU BOARD OF TRUSTEES did have policies and procedures governing, monitoring, or disciplining FAMU Band members for facilitation, participation or encouragement of hazing activities; but implemented same in a careless and negligent manner Notwithstanding such knowledge, Defendant FAMU BOARD OF TRUSTEES negligently failed to properly supervise, train, discipline and control the FAMU Band The hazing activities committed by the FAMU Band were the proximate cause of the bodily harm suffered by Decedent on November 19, 2011, which caused his death As a further direct and proximate result of Defendant FAMU BOARD OF TRUSTEES s failure to exercise due care, which caused the death of Decedent ROBERT DARNELL CHAMPION, the Defendant is liable to the Plaintiff for all damages to which the Estate and/or the survivors and/or beneficiaries are entitled under the Florida Wrongful Death Statute, pursuant to Fla. Stat Specifically, the Decedent s Estate, beneficiaries, and his survivors, have suffered and will continue to suffer damages into the future including, as authorized and allowed under the Wrongful Death Act, Section et seq. Florida Statutes: a. The past and future mental pain and suffering of ROBERT DARNELL CHAMPION, the decedent s surviving father; b. The past and future loss of decedent s support and services from the date of his death to ROBERT DARNELL CHAMPION, as surviving parent of ROBERT DARNELL CHAMPION; c. The past and future mental pain and suffering of PAMELA CHAMPION, the Decedent s surviving mother; Page 32 of 33

33 d. The past and future loss of decedent s support and services from the date of his death to PAMELA CHAMPION, as surviving parent of ROBERT DARNELL CHAMPION; e. Expenses of medical care and funeral arrangements arising from the injury and death of ROBERT DARNELL CHAMPION; and, f. Any and all other damages as specified in F.S WHEREFORE, the Plaintiff, PAMELA CHAMPION, as anticipated Personal Representative of the Estate of ROBERT DARNELL CHAMPION, deceased, sues the Defendant, FAMU BOARD OF TRUSTEES, and demands judgment against it for damages exclusive of attorney fees, costs, and interest, in an amount in excess of the jurisdictional limits of this Court. Plaintiff further demands a trial by jury on all issues so triable. Respectfully submitted this 10th day of July, Attorneys for Plaintiff 5080 W Newberry Rd. Telephone: (352) Facsimile: (352) By: s/christopher Chestnut CHRISTOPHER M. CHESTNUT Florida Bar No Page 33 of 33