Families and Survivors of Sutherland Springs Original Petition

FILED 2/26/2019 4:24 PM Mary Angie Garcia Bexar County District Clerk Accepted By: By: Victoria Angeles Angeles

CIT PPS - SAC 1

2019CI03804 CAUSE NO.__________ (1) DEBORAH BRADEN, INDIVIDUALLY, (2) DEBORAH BRADEN, INDEPENDENT EXECUTOR OF THE ESTATE OF KEITH ALLEN BRADEN, (3) ELIZABETH BRADEN, (4) REBECCA METCALF (BRADEN), (5) FARIDA BROWN, (6) BENJAMIN CORRIGAN, INDIVIDUALLY, (7) BENJAMIN CORRIGAN, INDEPENDENT EXECUTOR OF THE ESTATE OF ROBERT MICHAEL CORRIGAN, (8) BENJAMIN CORRIGAN, INDEPENDENT EXECUTOR OF THE ESTATE OF SHANI CORRIGAN, (9) PRESTON CORRIGAN, (10) FRED CURNOW, (11) KATHLEEN CURNOW, (12) CLARYCE HOLCOMBE, (13) JOE HOLCOMBE, (14) JOHN PORTER HOLCOMBE, H OLCOMBE, INDIVIDUALLY (15) JOHN PORTER HOLCOMBE, AS ADMINISTRATOR OF THE ESTATE OF CRYSTAL HOLCOMBE, (16) THE UNBORN CHILD OF CRYSTAL HOLCOMBE, (17) CHRISTOPHER JOHNSON, (18) DEANA STATON (JOHNSON), (19) DENNIS JOHNSON, JR., (20) KATI WALL (JOHNSON) AND MICHAEL JOHNSON AS PERSONAL REPRESENTATIVES OF THE ESTATE OF DENNIS JOHNSON, (21) JAMES GRAHAM (JOHNSON), (22) KASSANDRA PALACIOS (JOHNSON), (23) KASSANDRA PALACIOS (JOHNSON) ON BEHALF OF THE UNBORN CHILD OF KASSANDRA PALACIOS (24) KATI WALL (JOHNSON), (25) MICHAEL JOHNSON, (26) KATI WALL (JOHNSON) AND MICHAEL JOHNSON AS PERSONAL REPRESENTATIVES OF THE ESTATE OF SARAH JOHNSON, (27) PATSY MCCAIN, (28) MARGARET MCKENZIE, (29) LISA MCNULTY AS NEXT FRIEND OF H.M. (MCNULTY), A MINOR, (30) LISA MCNULTY AS NEXT FRIEND OF J.M. (MCNULTY), A MINOR, (31) LISA MCNULTY, (32) LISA MCNULTY ON BEHALF OF THE ESTATE OF TARA MCNULTY, (33) JENNIFER MACIAS, (34) JUAN MACIAS, (35) KARA BOYD (MARSHALL), (36) MARTINA PACHAL, INDIVIDUALLY, (37) MARTINA PACHAL, INDEPENDENT ADMINISTRATRIX OF THE ESTATE OF ROBERT SCOTT MARSHALL, (38) MARTINA PACHAL, INDEPENDENT EXECUTRIX OF THE ESTATE OF KAREN SUE MARSHALL, (39) ZACHARY POSTON, (40) GARY RAMSEY, INDIVIDUALLY, (41) GARY RAMSEY, AS

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IN THE DISTRICT COURT

BEXAR COUNTY, TEXAS

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INDEPENDENT CO-ADMINISTRATOR OF THE ESTATE OF THERESE JOANN RODRIGUEZ, DECEASED, (42) RONALD RAMSEY, JR., INDIVIDUALLY, (43) RONALD RAMSEY, JR. AS INDEPENDENT CO-ADMINISTRATOR OF THE ESTATE OF THERESE JOANN RODRIGUEZ, DECEASED, (44) REGINA AMADOR, INDIVIDUALLY, (45) REGINA AMADOR, INDEPENDENT ADMINISTRATRIX OF THE ESTATE OF RICHARD C. RODRIGUEZ, DECEASED A/K/A RICARDO RODRIGUEZ, (46) JOSE RODRIGUEZ, (47) GUADALUPE RODRIGUEZ, (48) CHARLENE UHL, INDIVIDUALLY, (49) CHARLENE UHL ON BEHALF OF THE ESTATE OF HALEY KRUGER, (50) MARGARETTE VIDAL, (51) MONICA SHABBIR (VIDAL), (52) RAMIRO VIDAL JR., (53) ROBERT VIDAL, (54) JENNIFER RACEY (WARDEN), (55) JIMMY STEVENS, INDEPENDENT EXECUTOR OF THE ESTATE OF PEGGY LYNN STEVENS WARDEN, (56) Z.Z., A MINOR, Plaintiffs Vs. ACADEMY, LTD. d/b/a ACADEMY SPORTS & OUTDOORS,

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225th

_____ JUDICIAL DISTRICT

Defendant PLAINTIFFS’ ORIGINAL PETITION

The above referenced Plaintiffs file this suit against Defendant, Academy, Ltd. d/b/a Academy Sports & Outdoors, and for cause of action would respectfully show the Court the following: I.

DISCOVERY CONTROL PLAN









2.

Plaintiffs are individuals residing in various counties of Texas and other

3.

Defendant, Academy, Ltd. d/b/a Academy Sports & Outdoors

states.

(“Academy”), is a domestic corporation headquartered in Harris County and authorized to do business in the State of Texas, and may be served by serving its Registered Agent: Academy, Ltd. d/b/a Academy Sports & Outdoors c/o Genetha Turner 1540 North Mason Road Katy, Texas 77449

4.

The Court has jurisdiction over the controversy because the damages are

within the jurisdictional limits of the Court. In compliance with Tex. R. Civ. P. 47, Plaintiffs state that they each seek monetary relief over $1,000,000.00. 5.

Venue is proper in Bexar County County,, Texas under §15.002(a)(1) of the Texas

Civil Practice and Remedies Code because all, or a substantial part of, the events or omissions giving rise to the claims occurred in Bexar County, Texas.

6.

On November 5, 2017, Devin Kelley (“mass shooter”) entered the First

Baptist Church in Sutherland Springs, Texas wielding a High Capacity Ruger AR-556 semiautomatic rifle that was illegally sold to him by Defendant Academy. Using the illegally obtained weapon from Academy, the mass shooter opened fire on o n the congregation killing









7.

Many Plaintiffs were in the church, witnessed the rampage, and were

injured or killed by the Ruger AR-556. Others lost loved ones in the shooting. 8.

This preventable attack was the deadliest mass shooting in Texas, the

deadliest mass shooting in a place of worship in modern American history, and the fifth deadliest mass shooting in the United States. 9.

Academy violated existing firearms laws when one of its San Antonio stores

illegally sold the mass shooter the High Capacity Ruger AR-556 semi-automatic rifle that was used in the shooting. 10.

Ruger manufactures multiple models of the AR-556. One model is the 8500

(depicted below). It is a firearm designed designed to hold 30 rounds of ammunition. It is therefore a “High Capacity Assault Rifle” and is legal to sell in Texas but not in states that ban High Capacity Assault Rifles.









11.

After the Aurora mass shooting that killed 12 and injured 58 others, Colorado

adopted laws prohibiting High Capacity Assault Rifles because they are the weapon of choice among mass shooters. 12.

At the time the mass shooter illegally purchased the High Capacity Ruger

AR-556 model 8500 at Academy in Texas, he reported a Colorado Springs, Colorado address on his Firearms Transaction Record, Form 4473. He presented Defendant Academy with a state-issued ID that reflected a matching state residence. This fact alone legally disqualified the mass shooter from purchasing the Ruger AR-556 model 8500 firearm. 13.

In the same transaction, Defendant Academy also illegally sold the mass

shooter an additional high capacity magazine designed to hold more than 15 rounds of ammunition. Pursuant to applicable law, this element element of the firearm transaction was also illegal. 14.

A Texas gun dealer (Academy) cannot legally sell a firearm and deliver that

firearm to a citizen of another State if that sale would have not been legal in the purchasers State of residence (Colorado). 15.

As a Colorado resident, a state with a High Capacity Firearm ban, the mass

shooter should not have been sold the firearm by Academy. 16.

Academy operates 249 Federal Firearm Licensed Retail outlets throughout

the Southeastern United States, and and 103 (over 40% of them) are in in Texas. The locations









17.

In conducting a firearm transaction, the law requires Academy to use

Firearm Form 4473 each time a firearm is sold (relevant sections are shown below). Within this form, Academy must certify in every transaction that based upon “the information in the current State Laws and Published Ordinances, it is [Academy’s] belief that it is not unlawful for [Academy] to sell, deliver, transport or otherwise dispose of the firearm listed in in [the] form to the [purchaser].” The form is very clear clear in stating: “In determining the lawfulness of the sale or delivery of a long gun (rifle or shotgun) to a resident of another state, [Academy] is presumed to know the applicable State law and published ordinances in both the seller’s State and the buyer’s state.”











18.

Upon information and belief, Academy has, for many years, illegally sold

High Capacity Assault Rifles to out of state individuals in Texas regardless of the buyers’ home state enactment of High H igh Capacity Assault Rifle bans, such as a Ruger R uger AR 556 Model 8500. As a result, Academy may have equipped an an untold number of individuals individuals with High Capacity Assault Rifles even though they are prevented from owning such a weapon under the laws of their home state. 19.

Existing firearms laws are designed to protect the public by creating

reasonable restrictions on access to dangerous devices.









22.

Plaintiffs incorporate each of the preceding paragraphs as if fully restated

herein. 23.

The Bureau of Alcohol, Tobacco, Firearms and Explosives’ (“ATFs”)

Federal Firearms Licensing Center issues and renews Federal Firearms Licenses under the Gun Control Act of 1968. Federally licensed firearms dealers like Academy are “the ‘principal agent[s] of federal enforcement’ in ‘restricting [criminals’] access to firearms’” and accept “the responsibility to ‘[e]nsure that, in the course of sales or other dispositions…weapons [are not] obtained by individuals whose possession of them would be contrary to the public interest.’” Abramski v. United States , 134 S. Ct. 2259, 2273 (2014) (quoting Huddleston v. United United States, 415 U.S. 814, 825 (1974)). 24.

When it became a licensed gun dealer, Academy voluntarily assumed duties

to learn and carefully follow all federal and state firearms laws and regulations and to implement reasonable safety measures to prevent illegal sales. 25.

Also, Academy was under the general obligation to exercise reasonable care









by a prospective purchaser purchaser on the Form 4473. Form 4473 includes notations reminding the dealer of these duties. 27.

At all times material to this suit, Defendant Academy owed Plaintiffs a duty

of reasonable care to ensure the safety, care, and well-being of the public, including Plaintiffs, and had or assumed a duty to exercise reasonable care in executing such duties. Defendant Academy failed to exercise reasonable care, and such failure was negligent and a proximate cause of the incident in question and resulting damages to Plaintiffs. These acts or omissions include, but are not limited to, the following: a.

Failing to protect the safety of the public, including the Plaintiffs;

b.

Failing to follow both the laws of Texas and Colorado in Selling a High Capacity Assault Rifle and additional High Capacity Magazine to the mass shooter;

c.

Failing to enact and follow reasonable policies and procedures for selling firearms;

d.

Failing to follow industry standards for selling firearms;

e.

Failing to properly follow applicable law in the marketing and sale of firearms;

f.

Failing to conduct a proper background check;









29.


herein. 30.


of reasonable care to ensure the safety, care, and well-being of the public, including the Plaintiffs. These duties include, but are not limited to , the hiring, retention, and supervision of trained employees to ensure that all legally required guidelines are fulfilled at the time of selling of firearms and ammunition. Defendant Academy breached these duties when its employee(s) sold a rifle to the mass shooter in violation of existing laws. The acts or omissions that constituted the breach of these duties include, but are not limited to: a.

Failing to instruct Academy employees about applicable state and federal firearms laws and regulations in order to ensure that all sales of firearms f irearms are legal;

b.

Failing to ensure that Academy employees were up to date about revisions and amendments to applicable state and federal firearms laws and regulations;

c.

Failing to monitor the compliance of Academy employees with applicable









supervise and/or control its actions. Specifically, Defendant Academy Academy’s ’s following acts or omissions constitute negligence: a.

Entrusting Defendant Academy’s Academy’s employees who lack adequate training and education concerning firearms and governing laws, with the administration and sale of firearms;

b. Failing to properly train employees regarding the appropriate methods,, safety practices, and supervision for customers purchasing methods firearms; c.

Failing to properly supervise, monitor, and/or control employees tasked with selling firearms to the public;

d. Failing to properly properly screen and perform investigative due diligence on prospective customers prior to selling them firearms; e.

Failing to continually monitor and/or scr scree een n their employees to ensure they are fit to sell firearms to the public; public ; and

f.

Failing to appropriately discipline and/or reprimand its employee(s) after the shooting.

32.

Plaintiffs incorporate each of the proc procee eedin dingg paragraphs as if fully re r estated

herein. 33.












34.


herein. 35.

The acts and/or omissions of Defendant Academy involved an extreme

degree of risk, considering the probability and magnitude of the potential harm to the Plaintiffs and the general public. Defendant Academy had actual, actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of the Plaintiffs and the general public. As set forth herein, the acts and/or omissions of Defendant Academy were also knowing and willful failures to abide by the applicable safety guidelines regarding the purchase and sale s ale of firearms in the State of Texas. These actions and/or omissions constitute malicious, willful, wanton, grossly









public nuisance because Academy has not reformed its business practices to prevent such dangerous and illegal sales. 38.

Plaintiffs suffered a severe, special injury that is different in kind from that

of other members of the public as a result of the nuisance maintained by Academy. Specifically, Plaintiffs were shot by an individual who Defendant Academy illegally and negligently armed with an AR-15 assault rifle. 39.

Plaintiffs are therefore entitled to injunctive relief against Academy seeking

to abate this ongoing nuisance. Such an injunction injunction will include, include, but is not limited to, requiring substantial business practice and training reforms to force Academy to educate its employees about compliance with the law and to make sure that Academy employees are actually following the law and reasonable safety standards when selling firearms.









b.

Physical pain and mental anguish that, in reasonable probability, will be sustained in the future;

c.

Disfigurement in the past;

d.

Disfigurement that, in reasonable probability, will be sustained in the future;

e.

Physical impairment sustained in the past;

f.

Physical impairment that, in reasonable probability, will be sustained in the future;

g.

Medical care expenses incurred in the past;

h.

Medical, attendant, and healthcare expenses that, in reasonable probability, will be incurred in the future;

i.

Past lost wages;

j.

Future lost wages;









43.

The specific elements of damages suffered by each Plaintiff will be more

fully described in the discovery process. Plaintiffs reserve the right to plead additional additional and more specific damages in the future as more facts become known. The above-mentioned elements of damages are those that Plaintiffs have suffered in the past up to the time of trial, but in addition, those that they, in reasonable probability, will continue to suffer in the future. 44.

Plaintiffs further seek to recover punitive or exemplary damages, as those

terms are understood in law, because of such gross negligence and Defendant Academy’s conscious indifference to the rights, safety, and welfare of others. 45.

As such, Plaintiffs seek all available damages of any kind, penalties, costs,

expenses, pre-judgment interest, and attorney fees; and a demand for all the other relief









Plaintiffs respectfully request that Defendant Academy be cited to appear and answer and that the Court take the following actions and grant the following relief: After trial on the merits: 1.

Declare Defendant Academy Sports + Outdoors actions and corporate policies in violation of relevant gun laws;

2.

Grant a permanent injunction suspending the enforcement of Academy Sports + Outdoors corporate policies and enjoining Defendant Academy from committing actions in violation of relevant gun laws; and

3.

Enter Judgment for the Plaintiffs against Defendant Academy for actual damages as alleged and exemplary damages, in an amount within the jurisdictional limits of this 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

4.

Such other and further relief to which the Plaintiffs may be entitled at law or in equity.











Respectfully submitted, WHITEHURST, HARKNESS, BREES, CHENG, ALSAFFAR, HIGGINBOTHAM & JACOB, PLLC /s/ Jamal K. Alsaffar Jamal K. Alsaffar State Bar No. 24027193 [email protected] jalsaffar@nationaltrial law.com Tom Jacob State Bar No. 24069981 [email protected] Laurie M. Higginbotham

O’HANLON, DEMERATH & CASTILLO, PC /s/ Justin B. Demerath Justin B. Demerath State Bar No. 24034415 [email protected] David Campbell State Bar No. 24057033 808 West Ave. Austin, Texas 78701 (512) 494-9949, telephone









WHITEHURST, HARKNESS, BREES, CHENG, ALSAFFAR, HIGGINBOTHAM & JACOB, PLLC AND Robert Katzman [email protected] KATZMAN LAW FIRM, PLLC. 125 High Rock Avenue Saratoga Springs, NY 12866 (518) 587 5500, telephone COUNSEL FOR PLAINTIFF (28) MARGARET MCKENZIE

/s/ Daniel J.T. Sciano Daniel J.T. Sciano State Bar No. 17881200 [email protected] Aaron Valadez State Bar No. 24086676 [email protected] TINSMAN & SCIANO, INC. 10107 McAllister Freeway San Antonio, TX 78216 (210) 225-3121, telephone (210) 225-6235, facsímile COUNSEL FOR PLAINTIFFS (44)









THE AMMONS LAW FIRM, LLP AND Tim Maloney State Bar No. 12887380 [email protected] Paul E. Campolo State Bar No. 03730150 [email protected] MALONEY & CAMPOLO, L.L.P. 926 S. Alamo San Antonio, Texas 78205 (210) 922-2200, telephone (210) 923-1313, facsimile

Families and Survivors of Sutherland Springs Original Petition

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