CAUSE NO. Filed 13 May 7 P9:22 Gary Fitzsimmons District Clerk Dallas District JUSTIN GROGG IN THE DISTRICT COURT OF Plaintiff, vs. DALLAS COUNTY, TEXAS RED LOBSTER OF TEXAS, INC. D/B/A RED LOBSTER OF TEXAS 0884, DARDEN SW LLC D/B/A RED LOBSTER AND GMRI, INC. D/B/A RED LOBSTER #884 AND BEN E. KEITH COMPANY TH JUDICIAL DISTRICT Defendants. PLAINTIFFS ORIGINAL PETITION TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, JUSTIN GROGG (hereinafter, Plaintiff ), and files this Plaintiff s Original Petition against RED LOBSTER OF TEXAS, INC. D/B/A RED LOBSTER OF TEXAS 0884, DARDEN SW LLC D/B/A RED LOBSTER, and GMRI, INC. D/B/A RED LOBSTER #884 and BEN E. KEITH COMPANY (hereinafter, jointly referred to as Defendants ) and for cause of action and grounds for recovery would respectfully show unto the Court the following: I. DISCOVERY CONTROL PLAN 1. Plaintiff intends that discovery be conducted under Level 2 of Texas Rule of Civil Procedure 190.3 and affirmatively pleads that it seeks monetary relief aggregating more than $50,000.00, excluding court costs, prejudgment interest and attorney fees. II. PARTIES 2. Plaintiff, JUSTIN GROGG, is an individual who resides in Panama City Beach, Florida. 1
3. Defendant, RED LOBSTER OF TEXAS, INC. D/B/A RED LOBSTER OF TEXAS 0884, is a Texas domestic for-profit corporation that may be served with citation and process through its registered agent, Corporate Creations Network, Inc., 4265 San Felipe, Suite 1100, Houston, TX 77027. 4. Defendant, DARDEN SW LLC D/B/A RED LOBSTER is a foreign limited liability company authorized to do business within the State of Texas, may be served with process through its registered agent, Corporate Creations Network, Inc., 4265 San Felipe, Suite 1100, Houston, TX 77027. 5. Defendant, GMRI, INC. D/B/A RED LOBSTER # 884 is a foreign for profit corporation authorized to do business within the State of Texas, may be served with process through its registered agent, Corporate Creations Network, Inc., 4265 San Felipe, Suite 1100, Houston, TX 77027. 6. Defendant, BEN E. KEITH COMPANY is a Texas company and may be served with process by serving its registered agent, Stewart E. Greenlee, 601 E. 7 th Street, Ft. Worth, TX 76113. III. JURISDICTION & VENUE 7. This Court has jurisdiction over the subject matter of the controversy in this case because Plaintiff s asserted claims and causes of action are being brought under Texas law and because the amount in controversy in this case is within the jurisdictional limits of this Court. 8. This Court has personal jurisdiction over each Defendant because each Defendant is doing business in the State of Texas and also because all acts giving rise to the present litigation occurred in the State of Texas. 9. Venue is proper and maintainable in Dallas County, Texas, pursuant to TEX. CIV. PRAC. 2
& REM. CODE 15.002(a)(1) since all or a substantial part of the events or omissions giving rise to this lawsuit occurred in Dallas County, Texas. IV. FACTS 10. The injuries and damages suffered by Plaintiff that made the basis of this lawsuit occurred at the Red Lobster Restaurant 0884 located at 10290 E. Technology Blvd. Dallas, TX 75220 (hereinafter referred to as the Incident Restaurant ). Plaintiff contends that at all times material and relevant herein, that Defendants RED LOBSTER OF TEXAS, INC. D/B/A RED LOBSTER OF TEXAS 0884, DARDEN SW LLC D/B/A RED LOBSTER, and GMRI, INC. D/B/A RED LOBSTER #884 jointly and/or severally owned and/or operated the Incident Restaurant. 11. At approximately 11:00 am on Wednesday, May 4, 2011, Plaintiff, as a business invitee customer, met a colleague for lunch at the Incident Restaurant. Plaintiff ordered a Draft Budweiser beer that came from the tap, not the bottle. Immediately after drinking the beer Plaintiff felt a burning sensation in his throat, esophagus and stomach. 12. Plaintiff immediately alerted the onsite Manager of the Red Lobster who advised him to drink water and go to the hospital because of exposure to Penetrate, a caustic solution (mostly composed of potassium hydroxide) used to clean the keg lines of the beers on tap at the Incident Restaurant, including the Budweiser Draft that was consumed by Plaintiff. Penetrate is known for being the strongest beer line cleaner in the industry and uses a higher concentration of potassium hydroxide than other line cleaners in the industry. 13. Subsequently, it was discovered that the Incident Restaurant uses a company, Defendant BEN E. KEITH, to service and supply their beers, including the Draft Budweiser beer that Plaintiff ordered. As a part of their duties, Defendant BEN E. KEITH is required to properly 3
clean the keg lines with the Penetrate solution, and then to properly flush those lines with water (to ensure all the corrosive and caustic solution is rinsed away and thus safe to use). Plaintiff later confirmed with the manager on duty that day at the Incident Restaurant that Defendant BEN E. KEITH had in fact serviced the lines on the morning of May 4, 2011. 14. As a result of the ingestion of the harmful and dangerous chemical potassium hydroxide, Plaintiff was rushed to Denton Regional Medical Center and treated for inflammation and ulceration of his upper esophagus and posterior pharynx. Not only did Plaintiff suffer severe pain as a result of these injuries, but he also incurred significant medical costs. Further, as a result of this incident, Plaintiff has been informed by his physicians that he may develop esophageal strictures, esophageal reflux changes, and/or pharyngeal infection in the future as a result of the ingestion of the potassium hydroxide. Upon the recommendation of the medical staff at Denton Medical Center, Plaintiff saw a gastroenterologist for follow up treatment. V. CAUSES OF ACTION A. NEGLIGENCE: AGAINST DEFENDANTS RED LOBSTER OF TEXAS, INC., D/B/A RED LOBSTER OF TEXAS 0884, DARDEN SW LLC D/B/A RED LOBSTER, AND GMRI, INC., D/B/A RED LOBSTER #884 15. Plaintiff incorporates Paragraph Nos. 1-14 of Plaintiff s Original Petition, as if fully set out herein, and contends that he was a business invitee at the time of the serious injuries that he sustained because he was a customer of the Incident Restaurant on May 4, 2011. Because the Incident Restaurant s business was open to the public, Plaintiff contends that the Incident Restaurant extended an invitation to Plaintiff to drink and/or eat from the drink and good menu of the Incident Restaurant. Plaintiff further contends that because he was a business invitee customer of the Incident Restaurant at the time of his serious injuries, the Incident Restaurant owed Plaintiff a duty of reasonable care to warn Plaintiff and/or make reasonably safe any 4
known dangerous condition, and/or reduce or eliminate any unreasonable risk of harm to Plaintiff while a business invitee customer of the Incident Restaurant. 16. Plaintiff would show that the Incident Restaurant owned and/or operated by Defendants RED LOBSTER OF TEXAS, INC. D/B/A RED LOBSTER OF TEXAS 0884, DARDEN SW LLC D/B/A RED LOBSTER, and GMRI, INC. D/B/A RED LOBSTER #884 jointly and/or severally, breached the duty of ordinary care owed to Plaintiff as a business invitee customer of the Incident Restaurant. More specifically, Plaintiff contends that the incident made the basis of this action occurred because the Defendants listed above committed various acts or omissions that were a proximate cause of the injuries and damages sustained by the Plaintiff, which include, but are not limited to, the following: i. Failing to ensure that the beverages served at the Incident Restaurant were safe for human consumption and free from harmful chemicals; ii. Negligently failing to warn or give notice to Plaintiff of any unreasonable risk of harm to Plaintiff and negligently failed to make reasonably safe any unknown dangerous condition in serving Plaintiff a beverage (Dft. Budwesier) not fit for human consumption that Plaintiff, without warning or notice consumed, which as a direct and proximate result, caused Plaintiff to sustain serious bodily injury; iii. Failing to maintain t h e i r responsibility in regards to servicing beverages to its patrons and to protect the safety of its patrons. iv. Failing to follow and/or implement National, State of Texas and/or City of Denton, Texas food safety and health policies, procedures, regulations and/or rules that would prevent serving to the public at large, including Plaintiff, beverages that would cause harm or injury. 17. Defendants RED LOBSTER OF TEXAS, INC. D/B/A RED LOBSTER OF TEXAS 0884, DARDEN SW LLC D/B/A RED LOBSTER, and GMRI, INC. D/B/A RED LOBSTER #884 5
negligent conduct and/or omissions, as described above, taken singularly or in any combination, was the proximate cause of the accident and Plaintiff s injuries. 18. Further, Defendants RED LOBSTER OF TEXAS, INC. D/B/A RED LOBSTER OF TEXAS 0884, DARDEN SW LLC D/B/A RED LOBSTER, and GMRI, INC. D/B/A RED LOBSTER #884, jointly and/or severally, as the owners and/or operator of the Incident Restaurant, should be held responsible for the negligent actions and conduct of one or more of its employees, agents or servants of the Incident Restaurant, which directly and proximately caused the serious injuries of which Plaintiff now complains. B. NEGLIGENCE: AGAINST BEN E. KEITH COMPANY 19. According to information and knowledge, Defendant Ben E. Keith was responsible for the servicing of the draft keg lines at the Incident Restaurant, whose duties includes sanitizing the lines with the Penetrate solution, then properly flushing them to make sure that no harmful chemicals remained in the lines. As such, Plaintiff will show that the incident made the basis for this action occurred because Defendant Ben E. Keith committed various acts or omissions that were a proximate cause of the injuries and damages sustained by the Plaintiff. These negligent acts and/or omissions include, but are not limited to, the following: i. Failing to maintain and safely clean the beverage lines including that of the Budweiser Beer keg lines at the Incident Restaurant on the date in question. ii. Failing to properly flush the draft beer keg lines, including the Dft. Budweiser Beer Plaintiff consumed, thereby leaving the chemical, potassium hydroxide, present to be ingested by the patrons of the restaurant, which Plaintiff did ingest and which caused serious injury to Plaintiff. iii. Failing to properly check the lines to make sure that they were free of potassium hydroxide after cleaning. 6
iv. Failing to ensure that the beverages that Ben E. Keith is responsible for providing and servicing at the Incident Restaurant was safe for human consumption. 20. Defendant Ben E. Keith s negligent conduct and/or omissions, as described above, taken singularly or in any combination, was the proximate cause of the incident and Plaintiff s injuries. C. GROSS NEGLIGENCE: AGAINST ALL DEFENDANTS 21. The wrongful acts and omissions of Defendants as described above is the type of conduct for which the law allows the imposition of exemplary damages in that it constitutes gross negligence. When viewed objectively from Defendant s standpoint at the time of the occurrence, Defendants conduct involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and Defendants had actual, subjective awareness of the risk involved, but nevertheless preceded with conscious indifference to the rights, safety, or welfare of others, including Plaintiff. Plaintiff therefore seeks exemplary damages from Defendants in amounts to be determined by the trier of fact. D. PREMISES LIABILITY: AGAINST DEFENDANTS RED LOBSTER OF TEXAS, INC. D/B/A RED LOBSTER OF TEXAS 0884, DARDEN SW LLC D/B/A RED LOBSTER, AND GMRI, INC. D/B/A RED LOBSTER #884 22. Plaintiff will show that at the time of the incident he was a business invitee of the Incident Restaurant and thus should have been shown the highest duty of care. Defendant failed to meet this level of care in that they did not ensure that the Beer that he purchased was safe to drink. Defendant failed to properly test the lines and ensure that the liquid that was flowing through them was safe for human consumption. 7
VI. DAMAGES 23. As a direct and proximate result of the negligent actions and/or inactions of Defendants, Plaintiff sustained serious physical injuries. These injuries have caused Plaintiff to suffer the following damages: i. Physical pain suffered immediately at the time of ingestion of the potassium hydroxide including burning sensation of the mouth, esophagus, and stomach; ii. Emotional distress suffered from the date and time of injury and which will, in all reasonable probability, Plaintiff will continue to suffer from in the future; iii. Mental anguish suffered from the date and time of injury and which will, in all reasonable probability, Plaintiff will continue to suffer from in the future; iv. Medical expenses incurred from the date and time of injury and, in all reasonable probability, will continue to accrue in the future; VII. EXEMPLARY DAMAGES 24. Plaintiff seeks exemplary damages caused by Defendants gross negligence and omissions. Exemplary damages are sought under Section 41.003(a)(2) of the Texas Civil Practices and Remedies Code, as defined by Section 41.001(7). Plaintiff also seeks exemplary damages under Section 41.003(a)(3) of the Texas Civil Practices and Remedies Code. VIII. JURY DEMAND 25. Plaintiff requests a trial by jury on all issues set forth herein. 8
IX. REQUEST FOR DISCLOSURE Additionally, pursuant to Rule 194 of the Texas Rules of Civil Procedure, Defendants are formally requested and required to disclose, within 50 days of service of the request, the information or material described in Rule 194.2 of the Texas Rules of Civil Procedure X. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that citation be issued and served upon the above-named Defendants, commanding Defendants to appear and answer herein and that upon final hearing of this cause, and trial on the merits, judgment be entered for Plaintiff and against Defendants for compensatory damages in an amount within the jurisdictional limits of the Court, together with pre-judgment interest (from the date of injury through the date of judgment) at the maximum rate allowed by law; post-judgment interest at the legal rate; costs of court, and for such other and further relieve, at law or in equity, both general and special, to which Plaintiff may be justly entitled. Respectfully submitted, TORRY LAW GROUP, PLLC By: /s/ Jordan M. Torry TSBN: 24058152 4265 San Felipe, Suite 1000 Houston, Texas 77027 Telephone: (713) 800-6999 Facsimile: (713) 623-8724 ATTORNEY FOR PLAINTIFF 9