FILED 8/5/2020 2:47 1 CIT /ESERVE / PM C JURY DISFTERLfgrch'EEE Dlgféfc'TAcTEEE 00., TEXAS CO., Irasema Sutherland DEPUTY DALLAS 071 7 NO.DC-20-1 O71 JUDY MONTGOMERY, TAYLOR GARRETTE and NYA PATTON, IN ) THE DISTRICT COURT OF ) ) PLAINTIFFS, ) ) V. ) DALLAS COUNTY ) PREVARIAN SENIOR LIVING, LP D/B/A THE ARBOR ASSISTED LIVING ) g AND MEMORY CARE, ) ) 44TH ) DEFENDANT. JUDICIAL DISTRICT ) PLAINTIFFS’ ORIGINAL PETITION Come now PLAINTIFFS, JUDY MONTGOMERY, TAYLOR GARRETTE, PATTON, by and through and NYA undersigned attorneys, for their Petition against Defendant their PREVARIAN SENIOR LIVING, LP D/BA THE ARBOR ASSISTED LIVING AND MEMORY CARE, related t0 of decedent, Monica Montgomery t0 to the exposure 0f to COVID-19, and in support thereof would show the I. 1. following: JURISDICTION AND VENUE 0f this lawsuit and over the This Court has jurisdiction over the subject matter of persons and companies referenced above because they are domiciled in this State and/or have sufficient 2. Code Code§§ minimum contacts With with this Venue is proper in State this Plaintiffs claims and Plaintiff’s Court pursuant to t0 arise from those contacts. Texas Civil Practice and Remedies 15.002. II. 1. Plaintiff Judy Montgomery resident 0f of the State 0f of Texas. is PARTIES the mother 0f decedent, Monica Montgomery, and a 2. Plaintiff Taylor Garrette Montgomery, and a resident 0f the 3. Plaintiff Nya 4. Memory Care a surviving adult daughter 0f decedent, is a surviving is adult daughter 0f decedent, LP d/b/a The Arbor Assisted Living and a Texas limited partnership, with its principal place 0f business at 8214 Westchester Drive, Suite 600, Dallas, Texas 75225-6112. Defendant engaged, and continues t0 engage, in relevant business activities and services in Texas. served through its Texas 75225-61 12. registered agent, III. 5. Monica State 0f Texas. Defendant Prevarian Senior Living, (“Prevarian”) Monica State 0f Texas. Patton Montgomery, and a resident 0f the is Dodd Prevarian may be Crutcher, at 8214 Westchester, Suite 600, Dallas, DISCOVERY LEVEL Plaintiffs request that discovery be conducted under Level 3 0f the Texas Rules 0f Civil Procedure. IV. 6. living center, FACTS In the midst 0f a nationwide pandemic, Prevarian sent an The Arbor, unprotected, COVID-19. The fact that t0 sit for hours at a time Monica Montgomery was at employee 0f its assisted with a resident infected with higher risk 0f succumbing t0 the effects 0f the disease due t0 her health did not stop The Arbor’s director, Mary J0 Lees, from sending her into close proximity t0 an infected resident for extended periods 0f time without adequate protection. 7. stay. On April 8, 2020, a resident 0f The Arbor returned t0 the facility after a hospital During her hospitalization, the resident was tested for COVID-19. her results were made available t0 Ms. Lees at the It is time 0f her return 0r shortly unknown whether after, but at some point during the Virus. month of April, Ms. Lees was informed that the resident tested positive for the She did not inform her employees, including Ms. Montgomery, 0f the danger. Due nature 0f the resident’s physical injuries, Ms. Lees assigned staff t0 Although she took precautions 0r take steps t0 protect Of 8. month 0f daughter, them from COVID-19 on who was common away from complications a global pandemic. January 21, 2020. emergency. The 10. 0n first and her known 13, Both tested May tested positive. two days later, both after Ms. Montgomery passed 10, 2020. COVID-19 the disease caused By March COVID-19 Montgomery was related t0 the Virus COVID-19, 0f watch over the infected resident during the Among them were Monica Montgomery t0 the Virus. V. 9. rest pregnant at the time 0f her exposure. Ms. Patton was tested for April 22, 2020, and Ms. experiencing symptoms from the the assigned employees 0f the resident’s illness the six employees assigned t0 Patton, her, at all times. infection. April, four contracted the Virus. Nya with her and those who attended t0 isolate the resident The Arbor’s population, Ms. Lees did not warn sit t0 the case 0f by the novel coronavirus SARS-CoV-Z, has COVID-19 in the led t0 United States was identified 0n 2020, Governor Greg Abott had declared a statewide quickly spread throughout Texas, including t0 the The Arbor. COVID-19 causes more severe symptoms, and even death, at a significantly higher rate in overweight individuals and minorities, such as Ms. Montgomery. 11. COVID-19 can spread rapidly among populations, like those in assisted living facilities. “epicenters” for such facilities COVID-19. individuals working with those in high-risk Such facilities have often been described as In the absence 0f adequate protective measures, as in this case, pose a deadly threat t0 both residents and employees. VI- w Wrongful Death/Gross Negligence 12. Plaintiffs incorporate the allegations contained in the foregoing paragraphs as if fully set forth in the following paragraphs. 13. Plaintiffs bring this Ms. Monica Montgomery. 14. Prevarian cause of action for injuries arising from the wrongful death 0f Plaintiffs are Ms. Montgomery’s surviving children and owed Monica Montgomery parent. a nondelegable duty t0 provide a safe workplace. 15. with whom Prevarian COVID-l 9. Prevarian owed Monica Montgomery before assigning her t0 spend extended time in the 17. a duty t0 warn her 0f the fact that a resident she was assigned t0 interact in close proximity for extended periods 0f time had tested positive for 16. owed Monica Montgomery Prevarian a duty t0 consider reasonable risk factors room with an infected resident. a duty not t0 place her in harm’s owed Monica Montgomery exposing her unnecessarily t0 increased risk 0f exposure t0 COVID-19 way by without adequate personal protective equipment. 18. Prevarian owed Monica Montgomery protocols t0 prevent the spread 0f, and exposure t0, 19. harm on Prevarian the premises of 20. COVID—19. owed Monica Montgomery The Arbor, which Prevarian Prevarian breached its duties t0 an enclosed space in close proximity a duty t0 implement and enforce safety a duty t0 seek out and remove sources 0f controlled. Monica Montgomery by sending her t0 a resident with a known active t0 COVID-19 work in infection without warning 0r adequate protection and without taking reasonable steps t0 render the area safe. Prevarian was aware at 21. positive for COVID-19. indifference to that risk active COVID-19 and others t0 sit by by failing t0 harm and exhibited conscious inform Ms. Montgomery 0r other workers 0f the resident’s Ms. Montgomery with the resident. account for infected resident and known danger 0f known Prevarian created an extreme risk 0f infection 0r t0 adequately address the danger before sending failing t0 work near an that relevant times 0f the fact that a resident had tested Prevarian created an extreme risk 0f harm and exhibited conscious indifference t0 22. that risk all known COVID-19 by a resident’s active failing t0 risk factors when assigning employees t0 inform Ms. Montgomery 0r other workers 0f the COVID-19 infection and neglecting t0 adequately address danger. 23. As a direct and proximate result 0f Prevarian’s gross negligence, Montgomery was exposed t0 and contracted COVID-l 9, which caused her death. VII. 24. Monica DAMAGES Plaintiffs incorporate the allegations contained in the foregoing paragraphs as if fully set forth in the following paragraphs. 25. This action against the Decedent’s employer, Defendant gross negligence CONST. art. 16, 26. is Agrium U.S., Inc., for brought under the authority 0f the Constitution 0f the State 0f Texas, TEX. §26. Plaintiffs seek exemplary damages as permitted by Section 408.001 0f the Texas Labor Code. 27. monetary Pursuant t0 Texas Rule 0f Civil Procedure 47, Plaintiffs state that they are seeking relief over $1,000,000. VIII. 28. Plaintiffs IX. 29. JURY DEMAND hereby demand a jury trial. REQUEST FOR DISCLOSURE AND DISCOVERY REQUESTS Plaintiffs request that Defendant disclose, within fifty days 0f service 0f this Request for Disclosure, the information and/or material described in Rule 194.2. 30. Plaintiffs have attached initial discovery requests t0 this Petition and request that Defendants respond t0 those requests pursuant t0 the applicable Texas Rules 0f Civil Procedure. X. 31. and all RULE Plaintiffs provide notice NOTICE under Texas Rule 0f Civil Procedure 193.7 t0 use any documents produced by Defendant. PRAYER XI. WHEREFORE, Plaintiffs ask that Defendant Prevarian Senior Living, Arbor Assisted Living and Memory Care, be trial, 193.7 Plaintiffs for actual cited t0 appear LP d/b/a The and answer herein. That upon final have judgment against Defendant in excess 0f this Court’s jurisdictional requisite damages, costs 0f court, and any other relief that will fairly and adequately compensate for the losses herein alleged. Respectfully submitted, WILLIAMS HART BOUNDAS EASTERBY, LLP /S / William R. Langley JIM HART State Bar N0. 09147400 WILLIAM R. LANGLEY State Bar N0. 24102061 8441 Gulf Freeway, Suite 600 Houston, Texas 770 1 7-5001 — Telephone 643 -6226 — Facsimile (713) 230-2326 (7 1 3) PIDepthwhlawcom /s/Daniel G. Gibbins Daniel G. Gibbins Bar Card No. 24097734 dan ibbinslaw.com State GIBBINS LAW, PLLC 100 E. Ferguson St., Ste. TYLER, TX 75702 Tel. (903) 405-1752 Fax. (903) 405-1763 1018