2/11/2019 1:27 PM

Velva L. Price
District Clerk
Travis County
CAUSE NO. D-1-GN-17-004456 D-1-GN-17-004456
Nancy Ramirez

CHRISTI J. BOWMER § IN THE DISTRICT COURT OF

§
  §
Plaintiff, §
§
vs. § TRAVIS COUNTY, TEXAS
§
GTT PARKING, L.P., PREMIER PARKING §
OF TENNESSEE, LLC, and WEITZMAN §
MANAGEMENT CORPORATION §
§
  §
Defendants. § 353rd JUDICIAL DISTRICT

PLAINTIFF’S SECOND AMENDED PETITION

Comes Now Plaintiff CHRISTI J. BOWMER and files this action against GTT PARKING,

L.P., PREMIER PARKING OF TENNESSEE, LLC, and WEITZMAN MANAGEMENT

CORPORATION, (collectively “Defendants”), and for cause of action respectfully shows as

follows:

I. DISCOVERY CONTROL PLAN

Discovery in this case is intended to be conducted under Level 3 pursuant to Texas Rules of

Civil Procedure §190. The injuries to Plaintiff are serious and with permanent effect. At the time of

filing this lawsuit, Plaintiff seeks monetary relief over $1,000,000.00, including damages of any

kind, exemplary damages, penalties, costs, expenses, pre-judgment and post-judgment interest in

accordance with TRCP §47 (c)(5). Plaintiff will ask that a jury determine the full value and extent

of all damages and full and fair compensation. GTT has insisted that Plaintiff put in the petition the

maximum amount of damages she seeks. Plaintiff trusts the jury to decide the total amount of

damages and full and fair compensation and, in order to comply with the GTT request for a

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maximum amount, Plaintiff re-iterates she will allow a jury to decide the total and states she will not

seek more than Fifty Two Million Dollars, a figure with an important connection to the garage and

which GTT and Premier are quite familiar. Should Defendants attempt to bring attention to, argue

about or criticize that maximum amount, Plaintiff reserves the right to explain the derivation and

reason for that figure. Plaintiff also reserves the right to amend this petition, including this

provision, as the case continues.

II. PARTIES

1. Plaintiff CHRISTI J. BOWMER, is an individual who resides in Cedar Park, Texas.

2. Defendant, GTT PARKING, L.P. (“GTT”) is a Texas limited partnership that was

served with process through service upon its registered agent for service of process, Sheldon David

Kahn, 804 Congress Ave., Suite 300, Austin, TX 78701 and has appeared and answered.

3. Defendant PREMIER PARKING OF TENNESSEE, LLC (“PREMIER PARKING”),

is a foreign limited liability company formed in the State of Tennessee and operating in the State of

Texas. PREMIER PARKING was served with process through service upon its registered agent for

service of process, George W. Clay, Parking Garage Office, 508 Brazos Street, Austin, Texas 78701

and has appeared and answered.

4. Defendant WEITZMAN MANAGEMENT CORPORATION (“WEITZMAN”) is a

Texas corporation that was served with process through service upon its registered agent for service

of process, Kim Fredenburg, 3102 Maple Avenue, Suite 500, Dallas Texas 75201 and has appeared

and answered.

III. JURISDICTION AND VENUE

5. This Court has jurisdiction over the parties because they are residents of the State of

Texas or do business in the State of Texas.

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 6. This Court has jurisdiction over this lawsuit because the amount in controversy

exceeds this Court’s jurisdictional requirements.

7. Venue is proper in Travis County, Texas, under Section 15.002(a)(3) of the Texas

Civil Practice & Remedies Code because it is the county where Defendants GTT and PREMIER

PARKING’s principal offices are located.

8. Venue is also proper in Travis County, Texas, under Section 15.002(a)(1) because all

or a substantial part of the events or omissions giving rise to Plaintiff’s claims occurred in Travis

County. Specifically, the incident made the basis of this suit occurred in Travis County, Texas.

9. Venue is proper in Travis County, Texas, under Section 15.002(a) (2) of the Texas

Civil Practice & Remedies Code, because it is the county of Defendant KAHN’s residence at the

time the incident made the basis of this suit occurred.

10. Because venue is proper as to at least one defendant in Travis County, Texas, venue

is proper for all defendants in Travis County under Section 15.005.

IV. RULE 194 REQUESTS FOR DISCLOSURE

11. Plaintiff requests that Defendants disclose and produce the information described in

the Texas Rule of Civil Procedure 194.2, including all liability insurance policies (not merely

declaration pages, but entire policies, and any excess policies that existed at the time of the incident

described below).

V. FACTS

12. This case is about Defendants putting profits over safety and knowingly exposing

parking garage users to foreseeable dangers. Defendants own, operate, manage, and/or control a

parking garage in downtown Austin, Texas known as the “Littlefield Garage”. Defendants did so as

a team. GTT was the owner and Premier was the managing agent of the owner. The garage is nine

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stories high with open-air levels. Defendants know that people who use the garage are not perfect

drivers. Defendants know that one crucial and important safety responsibility of operating a high

rise parking garage is that each floor should have adequate barriers to keep a vehicle from falling off

in case of an accident. Accidents happen in parking garages, just as they do elsewhere on streets and

highways. And just like the law and standard of care requires vehicles to have seat belts and

passenger restraint systems to protect people in case of an accident, the law, building codes and

standard of care likewise requires parking garage owners and operators to have adequate barriers and

restraint systems in place to keep vehicles from plunging off their floors in the case of an accident.

In this case, the Defendants simply ignored and then violated the law, violated building codes and

statutes and the standard of care, they ignored warnings and admissions from professionals, they

ignored prior similar events, and even in the aftermath of a nationally publicized accident where a

vehicle went through and plunged from the top level of their dangerous garage due to what they

knew and were told then was an inadequate barrier/restraint system, Defendants simply rolled the

dice with their patrons’ lives and did nothing to fix the known danger, continuing to collect and

share profits and betting that no other vehicle would plunge from the garage. Defendants were

wrong and their bet almost cost Christi Bowmer her life.

13. At the time the restraint system failed to hold Christi’s car in the west side of the

garage, the parking garage used a cable barrier system that was supposed to consist of 5 cables that

ran alongside the west-side opening of the parking structure (see Figures 1-2 below).

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 Figure 1.

Figure 2.

14. The Littlefield Garage (and cable barrier system) was constructed in 1979. At the

time of the incident described herein, the cable barrier system employed by Defendants was

dangerous, dilapidated, violated the building codes, ordinances and statutes, violated the standard of

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care and was in need of serious upgrade and repair at various locations statutes within the garage—

including the 7th floor where Plaintiff CHRISTI BOWMER’s vehicle went off the garage. And

Defendants knew it but kept the garage open without making it safe.

15. In 2014, the garage was owned by 6th and Congress, LLC, 6th and Congress

Properties, LLC, and Stream Realty Partners-Austin, L.P. (Stream) and managed by Premier

Parking. Premier had begun managing the garage in 2013. Premier was integrally involved in

control of safety in the garage, including inspection and maintenance of the vehicle barrier system.

Stream wanted to sell the garage. Stream wanted to spruce up the garage for sale. Premier knew

this and assisted. At the time in 2014, the cable barrier system was a total joke – it was dilapidated,

in total disrepair and did not function in any meaningful way to serve as a barrier for cars or

pedestrians. The dismal and dangerous condition of the barrier system was shocking, and included

missing cables, broken cables, rusted cables, and detached cables. Premier knew that. Premier

managed a multi-level garage that Premier knew had no vehicle restraint barrier.

16. Stream and Premier solicited engineers to come inspect the facility. Stream and

Premier told the engineers they did not want to bring the cable barrier system up to code or the

standard of care, but instead to only “repair” it. Premier has admitted it knew this was dangerous

and a violation of the standard of care. Obviously, Premier and Stream wanted to spend as little

money on the project as possible. One engineering group walked the garage with Premier and told

Premier the garage was dangerous and the engineering group could not and would not participate in

any “repair” plan that did not include bringing the barrier system up to code and the standard of care

because that was not safe. Premier and the owner ignored that advice. Another engineering group

was likewise solicited and after only a ten minute walk through the garage, quickly and easily

determined the vehicle barrier system was dangerous, dilapidated and not up to building code or the

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standard of care. Premier and the owner clearly indicated the specific intent to leave the vehicle

barrier system below what was required by the building code and leave it below the standard of care

and instead only “repair” the cables. The engineer noted it would be “onerous” (i.e. expensive) to

bring the garage up to code or the standard of care and that he could not be involved in designing a

“repair” plan if it did not meet those minimum safety standards. Premier and the owner again

specifically decided not to do a repair that would bring the vehicle restraint system up to code and

the standard of care. Premier shared in the profits from the operation of the garage. Notably,

Premier and the owner left the garage open for business to collect profits in this timeframe despite

being explicitly warned of the dangerous conditions. Premier and the owner continued to charge

money and to collect and share profits despite exposing the patrons to what Premier and the owner

knew was an extreme danger. It was left open even though vehicles had accidents in the garage and

penetrated the cable barrier system which clearly failed to hold them. Chillingly, this pattern of

conduct by Premier would continue with a new owner GTT later as well.

17. Premier and the previous owner Stream, not being able to find any competent

engineers to bless and perform the “repairs”, instead turned to a local lake dock contractor (Curtis

Brown) who they knew was unqualified to install or repair a cable vehicle restraint system and who

they knew had no experience in design or repair of vehicle barrier systems. Instead, he was chosen

because the price was right (cheap) and he could do it quick. Premier and the owner hired Mr.

Brown and he did exactly what they asked him to do – not bring it up to code or the standard of care,

but simply replace the barrier cables in a quick, cheap way, i.e. spruce it up. Premier and the owner

knew Brown was unqualified, had unqualified workers and methods, had no engineered plan and

was doing the work below the standard of care. Premier and the owner knew they should get a

permit from the City of Austin for the repairs, but did not do so as alerting the City would have

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meant spending more money to bring the garage up to code and the standard of care. Mr. Brown did

his work as instructed by Premier and the owner and it looked better, and it was inspected and

accepted by Premier and the owner, but Premier and the owner knew what they had done was simply

cosmetic. They had simply hidden the obvious nature of the danger without making it safe. Premier

and Stream knew that the “repaired” cable system was not up to code and not up to the standard of

care and thus dangerous and not safe. Yet they kept the garage open.

18. In the summer of 2015, GTT was interested in buying the garage and interfaced with

the owner and Premier. Premier and the owner said nothing about the previous dire engineering

inspections or the fact they knew the vehicle restraint system violated the building code and was

below the standard of care and dangerous. GTT claims it performed no inspection before buying the

garage and claims it did not notice the dangerous condition of the cable barrier system. But GTT

should have. As part of that process, Premier approached GTT and asked to stay on as property

manager and be the managing agent for the owner. Among other things, Premier indicated that it

was the best in the business, exceedingly qualified, that it could manage and operate the garage as

the agent for the owner, that it would be the eyes and ears of the owner, that it had experience in

garage design and operation, that they would manage the garage from an office on site in the garage

and the owner would not even have to show up, and that they would handle the maintenance and

safety items and repairs such as the cable barrier system, doing those and then billing the owner.

GTT indicates it expected Premier to handle safety issues such as the defective cable barrier.

19. Premier said nothing to GTT then that Premier and the previous owner had authorized

improper, illegal and substandard “repairs” to the cable barrier system. GTT hired Premier. GTT

and Premier executed a contract, but it clearly did not contain all the terms of their agreement. GTT

has sworn the contract did not contain all the terms of the agreement and that contention is

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unrebutted by Premier. Among other things, the contract said Premier would be the managing agent

of GTT for the garage. As an agent of and for GTT, all of the knowledge, notice and acts and

omissions of Premier are imputed to GTT. That included the knowledge of what occurred when

Premier was managing the garage with Stream. Plus, the safety of the garage and those that use it is

non-delegable. So regardless of whether Premier is considered by the jury to be an agent or an

independent contractor, both Premier and GTT are connected at the hip and jointly and severally

liable.

20. Premier began work as property manager for GTT in September of 2015. Among

other things and in the alternative if necessary, Plaintiff alleges Premier and GTT operated the

garage in a joint enterprise. They shared control and profits. Premier was paid a portion of the net

operating income from the garage. The less spent on maintenance and repairs meant the more

money GTT and Premier made in the enterprise. They had an agreement (express and/or implied), a

common purpose to be carried out by the enterprise (operating the garage), a community of

pecuniary interest in that common purpose (they shared in the profits of the garage) and an equal

right to direct and control the enterprise (GTT indicates that although it was the owner, both it and

Premier could independently call for and implement repairs in the building, with the cost calculated

into the sharing of the net operating income). They also shared a common problem: the cable barrier

system in the garage was dangerous, violated the building code and statutes, was below the standard

of care and the “repairs” done in 2014 were un-permitted, un-engineered, and ineffective. Premier

knew that but apparently said nothing to GTT about it at the time. But GTT should have known

anyway.

21. In the first year of operation, there were ample reasons for the Defendants to know

the garage was dangerous and needed to be brought up to code and the standard of care. But they

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left the garage open. Then, as a direct result of the condition of the premises and the

contemporaneous negligent activity of Premier and GTT, in September of 2016, the defective barrier

failed to keep a vehicle from going over the edge of the Defendants’ garage at the ninth floor. In

that instance, a young man (O’Connor) in a SUV accidentally crashed into the barrier. A properly

designed and constructed barrier would have contained the vehicle from leaving the building. But

the defective cable barrier system failed to keep that vehicle from going over the edge of the

building. Instead, the vehicle travelled off the 9th floor but through pure luck, the cable held the

vehicle teetering to the side of the building below by one or more cables wrapped around a wheel

(see Figure 3 below).

Figure 3

The incident received major local and national media exposure and became a sensation on the

internet, particularly since the driver narrowly escaped injury from what everyone knew would have

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been one of the most devastating, terrifying and harrowing injury and fatality incidents anyone can

imagine: plunging multiple stories to the ground in a falling car.1

22. The Defendants’ actions and omissions following the O’Connor incident are nothing

short of shocking. Immediately after the O’Connor incident, Premier knew the cable barrier violated

the building code, was below the standard of care, had been “repaired” in a way that was

unpermitted by the City and expressly disapproved by engineers and done in an incompetent way by

an unqualified contractor and had failed to prevent a vehicle from leaving the 9th floor of a the

garage. But Premier apparently said nothing to GTT about what Premier knew. Curiously, Premier

volunteered to GTT to reach out and get further details about the previous “repairs” from the former

owner and Curtis Brown even though it fully knew the exact story of those repairs. GTT claims

Premier then did nothing and continued to fail to disclose what it did know about the previous

“repairs.” But as managing agent for GTT, the knowledge of Premier is imputed to GTT. Curtis

Brown testified that he heard about the O’Connor accident and was waiting for GTT or Premier to

call him so he could explain his “repairs.” But GTT and Premier never called Brown. Meantime, an

engineer working for GTT inspected the 9th floor where the barrier failed and among other things

recommended to GTT that a qualified cable repair person inspect the cables in the entire building.

GTT ignored and disregarded that engineering advice. GTT did not have a qualified person inspect

the cables in the building as advised by an engineer. Instead, GTT and Premier made a claim against

O’Connor for damage to the garage and for lost profits for spaces that were closed during repairs.

Defendants also authorized and completed spot repairs to the 9th floor without proper permits and in

violation of city and building codes. They rushed to get the garage fully open so they could cash in

1 Ben Wear, 35-Year Old Cables Played Key Role in Austin’s ‘Dangling Car’ Mishap, Austin American-Statesman,
Sept. 13, 2016 and Myriah Towner, Miraculous escape for motorist after he accidently drives off ninth floor of a
parking garage only for the car wheels to get caught up in high tension wires, DailyMail.com, Sept. 9, 2016.

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on parking demand for the Austin City Limits Festival. They also derided O’Connor for “milking

his 15 minutes of fame” when the media covered the event. At every turn in that event, Defendants

chose profits over safety.

23. Immediately after the O’Connor incident, Defendants knew or should have known

that their garage was dangerous and the cable barrier system was in need of repair, replacement,

revision, and/or modification in order to make it safe for its patrons, including Plaintiff CHRISTI

BOWMER, but failed to do so, despite the history from 2014 onward, despite cars going through

barriers in the interior of the garage and despite the O’Connor incident of September 2016.2

24. In the months following the O’Connor incident, Defendants continued to see

evidence that the cable system was defective and broken and dangerous, something that Premier

clearly knew and had been told and something GTT knew and/or should have known. Evidence of

the dangerous condition continued to mount. Four months after the O’Connor incident, GTT noticed

several broken cables on among other places the alley side of the 5th floor and asked Premier to have

them fixed. In March of 2017, Premier and GTT also noticed broken cables on the 8th floor and on

the 7th floor, the same floor where the cables later failed to restrain Bowmer’s vehicle. These were

all red flags and clear evidence to the Defendants of the defective and dangerous condition. In

addition, the Defendants knew or should have known that people had complained that the system

itself caused visual and perception disturbances when drivers approached the edge of the building on

the west side. These were all ignored. Although Defendants now try to blame the previous owner

and Curtis Brown for the dangerous condition, Texas law does not allow the Defendants to pass the

buck to Brown or the previous owner because the Defendants (especially Premier) knew or had

2 A notice of violation was sent to Defendants GTT Parking and Kahn on or about September 15, 2016, describing
violations related to the cable barrier system. It further documented that repairs must be made within 30 days. (Ref.
City of Austin Code Department Case Number CV-2016-112643).

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reason to know of the dangerous condition before Bowmer was injured and they did nothing to warn

or make it safe.

25. Despite the September accident, despite the lucky break that allowed that driver to

cheat death, despite being told to fix the inadequate barriers, despite knowing that another accident

was likely to occur at some point, despite knowing the danger, despite knowing the garage violated

code and was below the standard of care, Defendants did nothing to fix the barrier. Instead, the

Defendants continued to invite and charge patrons to use their dangerous and potentially deadly

garage. Further, Defendants were actively negligent, including active negligence in their inspection,

actively negligent in maintenance, actively negligent in delaying repairs, actively negligent in

performing repairs during the timeframe of the incident, actively negligent in keeping the garage

open, actively negligent in representing the garage was safe and lawfully open — even though they

had prior notice that the garage was dangerous and potentially deadly. Defendants’ negligence,

gross negligence, breaches and unlawful conduct were a proximate cause of the grave injuries to

Plaintiff CHRISTI BOWMER, injuries that would not have occurred had the garage complied with

the code and standard of care.

26. On July 13, 2017, Plaintiff CHRISTI BOWMER was invited to and lawfully drove

her BMW vehicle into the Littlefield parking garage and up to the seventh floor in order to park. A

tenant of the garage invited Bowmer to the premises and she had no reason or notice from the

Defendants to indicate she was not invited. As a guest of the tenant, Bowmer is an invitee.

Moreover, Defendants consented to and tolerated the type of invitation Bowmer received to be on

the premises. Also, when a statute or code creates a duty to prevent injury to a class of person the

plaintiff belongs to, as is the case here, the plaintiff’s status is not relevant. Defendants had

previously been warned by one or more people or experts that the visual presentation of the edge of

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the garage was disturbing and potentially dangerous to people parking there. Defendants did

nothing to fix it. That visual phenomenon affected Christi Bowmer. While attempting to park, she

had an accident that was foreseeable to Defendants and her foot slipped off the break and onto the

gas, causing her vehicle to move forward into the cable system, a system that should have been

designed and maintained to prevent vehicles from plunging from the building in this exact type of

accident. But because of the negligence and gross negligence of Defendants, the shoddy, dangerous

barrier/restraint system failed to serve its purpose and Plaintiff CHRISTI BOWMER’s BMW vehicle

went forward into and through the inadequate cable barrier system like a hot knife through butter.

The restraint system restrained nothing and Christi plunger seven terrifying floors to the ground

below, thinking it must be some bad dream from which she would surely awake. It was no dream.

She was crushed and suffered horrific injuries. As a direct result of the inadequate, unsafe and

perilous cable barrier system, Plaintiff CHRISTI BOWMER horrifically fell from the seventh story

of the garage, while in her BMW, which nose-dived into alleyway below. Thankfully, all of the

restraint systems in the vehicle deployed and actually did their job. Miraculously, although seriously

and permanently injured, CHRISTI survived the fall and crash and was rescued through the heroic

efforts of good Samaritans and first responders, people for whom Christi is forever grateful. It is

nothing short of a miracle that she survived the fall and crash.

27. The garage was dangerous and authorities who investigated the Bowmer accident

confirmed so. City inspectors who visited the site after the incident found signs that the cable

system as a whole did not meet code, it was hazardous and dangerous because of loose cables,

missing cables, bad guard spacing and previously unpermitted repairs on various levels. Because of

the hazardous conditions, the City ordered the entire cable system should be brought into compliance

with the 2012 building code. That is exactly what engineers had told Premier in 2014. The City

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noted that repairs done by GTT on level 9 after the O’Connor incident were not permitted and that

an engineering letter proffered by GTT to the City states the repairs on the 9th floor were done in

compliance with the Code but they were not. That was fraud. Because it was dangerous, the City

ordered the garage areas where there were cables closed until the Defendants took steps to hire and

engineer, get a competent plan and and make it safe, something the Defendants should have done

before the Bowmer incident. Had they done so, Bowmer would never have been injured.

28. Incredibly, despite their clear negligence and gross negligence, Defendants blame

Bowmer for her injuries. Defendants assert that if Bowmer had not accidentally hit her accelerator,

none of this would have happened. But the attempt by the Defendants to shift and avoid

responsibility for Bowmer’s injuries should be rejected. Bowmer struck the barrier at a low speed,

likely 10 mph or less. Defendants’ own experts concede the barrier should be designed and

constructed to prevent a vehicle like hers at that speed from plunging from the building. That is

what the barrier is for – to prevent a small accident from becoming a catastrophic injury. Had

Defendants complied with their duties and provided an adequate safety barrier, Bowmer would have

suffered no injury. Instead, the Defendants acts and omissions proximately caused Bowmer grave

and serious injury and the Defendants should be held accountable.

29. CHRISTI J. BOWMER’s injuries are severe and permanent and included a broken

back, broken sternum, broken ribs, broken elbow, broken ankle, and a broken elbow, among others.

Plaintiff CHRISTI J. BOWMER has sustained permanent injuries, continues to treat those injuries,

and will require medical treatment permanently.

VI. RESPONDEAT SUPERIOR/AGENCY

30. Plaintiff alleges and incorporate by reference all paragraphs herein, for all purposes,

the same as if set forth verbatim.

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 31. At all relevant times described herein, all agents, servants, and/or employees of the

Littlefield garage and Defendants’ were acting within the course and scope of employment and/or

official duties or scope of their agency. Furthermore, at all times material hereto, all agents,

servants, and/or employees of the Littlefield garage and Defendants’ were acting in furtherance of

the duties of their office and/or employment. Premier was acting as the managing agent of and

garage property manager for GTT. Defendants are jointly responsible for all damages resulting

from the negligent acts and/or omissions of themselves, their agents, servants and/or employees

pursuant to the doctrines of joint and several liability, including those of agency and/or Respondeat

Superior.

VII. CAUSES OF ACTION

A. Negligence and Negligence per se

32. Plaintiff realleges and incorporate by reference the preceding fact paragraphs for all

purposes, the same as if set forth herein and pleads the below in the alternative to the extent needed.

33. Defendants and their employees/agents were negligent and negligent per se and such

negligence and negligence per se was a proximate cause of injury and damage to Plaintiff. The

negligence and/or negligence per se were acts and omissions. It includes the following:

a. Failed to take proper preventative measures to help eliminate known risks and
dangers as a reasonable person/corporation would do under the same or similar
circumstances;

b. Actively took improper safety measures and made improper, substandard and illegal
repairs in the garage;

c. actively negligent, including active negligent in their inspection, actively negligent in

maintenance, actively negligent in delaying repairs, actively negligent in performing
repairs during the timeframe of the incident, actively negligent in keeping the garage
open, and actively negligent in representing the garage was safe and lawfully open;

d. Failed to provide safe, operable and adequate vehicle restraint barrier system within
the Littlefield garage;

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e. Failed to close the garage when they knew or should have known it was unsafe;

f. Failed to properly investigate incidents and accidents leading up to the Bowmer

incident;

g. Failed to heed and follow and actively disregarded the advice of professionals that if
the garage was not brought up to code and the standard of care it would not be safe;

h. Failed to warn patrons of the dangerous condition of the Littlefield garage and
specifically the dangerous cable barrier system;

i. Failed to provide their employees/agents with proper training to inspect and/or

maintain the Littlefield garage, and specifically the cable barrier system;

j. Negligently hired, trained and retained employees and/or agents;

k. Failed to properly repair, modify, correct, and/or revise the cable barrier system even
though they knew or should have known of its dangerous condition;

l. Failed to implement a safe barrier system within the Littlefield garage;

m. Hired / retained incompetent employees, agents, representatives and/or personnel

regarding the upkeep, repairs, maintenance, and general condition of the cable barrier
system and failed to properly supervise, train and/or retain them;

n. Violating one or more statute, ordinance and/or code. A summary of relevant

provisions violated is as follows, and in the alternative where needed:

i. 2012 INTERNATIONAL PROPERTY MANAGEMENT CODE

301.2 Responsibility. The owner of the premises shall maintain the structures
and exterior property in compliance with these requirements, except as
otherwise provide for in this code. A person shall not occupy as owner-
occupant or permit another person to occupy premises which are not in a
sanitary and safe condition and which do not comply with the requirements
of this chapter…

304.1 General. The exterior of a structure shall be maintained in good repair,

structurally sound and sanitary so as not to pose a threat to the public health,
safety or welfare.

304.1.1 Unsafe Conditions. The following conditions shall be determined as

unsafe and shall be repaired or replaced to comply with the International
Building Code or the International Existing Building Code as required for
existing buildings:

5. Structural members that have evidence of deterioration or that are

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 not capable of safely supporting all nominal loads and load effects...

12. Exterior stairs, decks, porches, balconies, and all similar

appurtenances attached thereto, including guards and handrails, are not
structurally sound, not properly anchored or that are anchored with
connections not capable of supporting all nominal loads and resisting
all load effects…

304.4 Structural members. All structural members shall be maintained free

from deterioration, and shall be capable of safely supporting the imposed
dead and live loads.

304.12 Handrails and guards. Every handrail and guard shall be firmly
fastened and capable of supporting normally imposed loads and shall be
maintained in good condition.

ii. 2012 INTERNATIONAL EXISTING BUILDING CODE

115.1 Conditions. Buildings, structures or equipment that are or hereafter

become unsafe, shall be taken down, removed or made safe as the code
official deems necessary and as provided for in this code.

404.4 Less than substantial structural damage. For damage less than
substantial structural damage, repairs shall be allowed to restore the building
to its pre-damage state, based on material properties and design strengths
applicable at the time of original construction. New structural members and
connections used for this repair shall comply with the detailing provisions of
the International Building Code for new buildings of similar structure,
purpose and location.

606.1 General. Structural repairs shall be in compliance with this section and
Section 601.2. Regardless of the extent of structural or nonstructural damage,
dangerous conditions shall be eliminated. Regardless of the scope of repair,
new structural members and connections used for repair or rehabilitation
shall comply with the detailing provisions of the International Building Code
for new buildings of similar structure, purpose and location.

iii. 2012 INTERNATIONAL BUILDING CODE

406.4.2 Guards. Guards shall be provided in accordance with Section 1015.

Guards serving as vehicle barriers shall comply with Sections 406.4.3 and
1015.

1015.2 Where required. Guards shall be located along open-sided walking

surfaces, including mezzanines, equipment platforms, aisles, stairs, ramps,
and landings that are located more than 30 inches (762 mm) measured
vertically to the floor or grade below at any point within 36 inches (914 mm)

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 horizontally to the edge of the open side. Guards shall be adequate in strength
and attachment in accordance with Section 1607.8.

1015.4 Opening limitations. Required guards shall not have openings that
allow passage of a sphere 4 inches (102 mm) in diameter from the walking
surface to the required guard height.

iv. The 2012 IBC and 2012 IEBC and associated amendments were adopted
under City of Austin Ordinance No. 20130606-089. Thus, Defendants
violated that ordinance.

v. The 2012 IPMC and associated amendments were adopted under City of
Austin Ordinance No. 20130926-145. Thus, Defendants violated that
ordinance.

vi. Austin City Code Section : Unsafe Conditions (Sec.304.1.1), Handrails and
Guards (Sec 304.12).

o. Violating the standard of care;

p. Agreed to make safe a known dangerous condition and failed to do so;

q. Created a dangerous condition on the property;

r. Did not warn of concealed danger near the entrance or exit to the property;

s. The premises abuts public property and plaintiff was injured outside the premises
due to defendants’ conduct inside the premises; and/or

t. Vicarious liability can be imposed on the Defendants under the doctrine and theory
of nondelegable duty. When a duty is imposed by law on the basis of a concern for
public safety, such as that shown and outlined herein, the party bearing the duty
cannot escape it by delegating it to another, be it an agent or independent contractor.
Here, acts and omissions of Premier were a tort and a proximate cause of injury to
Ms. Bowmer and Premier committed that tort while performing the nondelegable
duties of GTT. GTT also violated duties. The Restatement (2d) of Torts sections
violated by the Defendants include the following – Section 413, Section 414, Section
414A, Section 416, and Section 424.

34. Defendants failed to use ordinary care as illustrated in the aforementioned acts and

omissions above, and these acts and/or omissions were a proximate cause of Plaintiff’s serious and

permanent damages.

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B. Gross Negligence

35. Plaintiff realleges and incorporate by reference the preceding fact paragraphs for all

purposes, the same as if set forth herein.

36. Plaintiff’s injuries resulted from Defendants’ gross negligence, which entitles

Plaintiff to exemplary damages under Texas Civil Practice and Remedies section 41.003(a).

Defendants’ conduct, when viewed objectively at the time of this incident, and with knowledge of

the condition of the garage from 2014 until the Bowmer incident, the ignored admonitions from

engineers, the un-engineered and unqualified “repairs” by Curtis Brown they knew about, other

improper and unpermitted repairs, failing and missing cables, other vehicles driving through the

cable barriers, a prior similar incident in September 2016 involving the barrier system failing and a

vehicle hanging on the side of the building (O’Connor), and the knowledge (actual and/or

constructive) that Defendants possessed for years regarding the dangerous and dilapidated cable

barrier system, and the failure to warn Plaintiff CHRISTI BOWMER of the known risk or make it

safe, especially considering the probability and magnitude of the potential harm to Plaintiff

CHRISTI BOWMER and others and leaving the garage open—constitutes gross negligence.

Defendants had actual subjective awareness of the risk but proceeded anyways with a conscious

indifference to the rights, safety, or welfare of Plaintiff CHRISTI BOWMER and others. And they

did so for profits and money.

C. Premises Liability

37. Plaintiff realleges and incorporates by reference the preceding fact paragraphs for all

purposes, the same as if set forth herein and pleads in the alternative to the extent needed.

38. Plaintiff CHRISTI BOWMER was an invitee of the Littlefield Garage, the premises

at issue.

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 39. Defendant(s) was an owner and/or occupier and/or possessor and/or manager of the

premises at issue.

40. A condition or conditions of the premises posed an unreasonable harm to Plaintiff

CHRISTI BOWMER and others.

41. Defendants knew or reasonably should have known of the danger.

42. Defendants breached their duty of ordinary care by failing to warn Plaintiff CHRISTI

BOWMER of the dangerous condition or conditions and failing to make the condition(s) reasonably

safe.

43. Defendants’ failure to exercise reasonable care to eliminate or reduce the risks was a

proximate cause of Plaintiff’s injuries.

D. Joint Enterprise

44. Plaintiff incorporates the factual allegations above here in full by reference and

pleads in the alternative to the extent needed.

45. Premier and GTT operated the garage in a joint enterprise. They had an agreement to

operate the garage (express and/or implied), a common purpose to operate the garage be carried out

by the enterprise, a community of pecuniary interest in that common purpose and an equal right to a

voice in the direction of the enterprise, which gave them equal right to control over the operation of

the garage. They shared control of safety measures in the garage and they shared profits from the

operation of the garage. The Defendants are thus jointly and severally liable.

E. Assisting and Encouraging

46. Plaintiff incorporates the factual allegations here by reference. Pleading further in

the alternative if needed, Defendants assisted and encouraged each other in committing one or more

torts as outlined above and the assistance and encouragement was a substantial factor in causing the

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tort. Both GTT and Premier had a duty to Plaintiff and breached that duty in the ways outlined

above. They assisted each other in the breach of the duties. They knew what they were doing was a

violation of the building code, city ordinances and the standard of care. They had knowledge that

their actions were conduct constituting a tort. They intended to assist each other. They gave each

other assistance and encouragement and that was a substantial factor in bringing about the tort.

Thus, Defendants are considered tortfeasors and are jointly and severally responsible for the tort.

F. Assisting and Participating

47. Plaintiff incorporates the factual allegations here by reference. Pleading further in the

alternative if needed, Defendants assisted and participated in causing a particular result with each

other making Defendants responsible for the result of the united effort because the acts and

omissions were a breach of duty and a substantial factor in causing the result. The Defendants’

activity accomplished a tortious result. The Defendants provided each other substantial assistance in

accomplishing that result. Each Defendant breached a duty to Plaintiff as outlined above. Each

Defendant’s participation was a substantial factor in causing the tort.

G. Concert of Action

48. Plaintiff incorporates the factual allegations here by reference. Pleading further and

in the alternative if needed, Defendants participated in an action that was planned, arranged and

agreed on by the parties together to further some scheme or cause, making all involved liable of the

actions of one another. More specifically, Defendants committed an intentional tort and/or were

grossly negligent when they deliberately left the garage open with knowledge of the condition of the

garage in 2014 until the Bowmer incident, the admonitions from engineers, the un-engineered and

unqualified “repairs” by Curtis Brown they knew about, other improper and unpermitted repairs,

failing and missing cables, other vehicles driving through the cable barriers, a prior similar incident

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in September 2016 involving the barrier system failing and a vehicle hanging on the side of the

building (O’Connor), and the knowledge (actual and/or constructive) that Defendants possessed for

years regarding the dangerous and dilapidated cable barrier system, and the failure to warn Plaintiff

CHRISTI BOWMER of the known risk or make it safe, especially considering the probability and

magnitude of the potential harm to Plaintiff CHRISTI BOWMER and others.

H. Conspiracy

49. Plaintiff incorporates the factual allegations above by reference. Pleading further and in the

alternative if needed, Defendants engaged in a conspiracy and agreed to act toward a common goal

and it was not a conspiracy to commit negligence. The defendants were a member of a combination

of two or more persons. The object of the combination was to accomplish and unlawful purpose or a

lawful purpose by unlawful means. The members had a meeting of the minds on the object or course

of action. One or more of the members committed an unlawful, overt act to further the object or

course of action. The Plaintiff suffered injury as a proximate result of the wrongful act. Two or

more business entities may conspire with each other. A business may conspire with a person.

Defendants also conspired with third persons or parties. Each Defendant in the conspiracy is liable

for the acts of the other that were done in the furtherance of the common purpose. Here, the object

of the conspiracy was to operate the garage in violation of codes, statutes and laws and in a grossly

negligent manner as set out above. Defendants chose to operate the garage with knowledge of the

following: the condition of the garage from 2014 until the Bowmer incident, the ignored

admonitions from engineers that it was below code and the standard of care and should be inspected

by a qualified person, the un-engineered and unqualified “repairs” by Curtis Brown they knew

about, other improper and unpermitted repairs, failing and missing cables, other vehicles driving

through the cable barriers, a prior similar incident in September 2016 involving the barrier system

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failing and a vehicle hanging on the side of the building (O’Connor), and the knowledge (actual

and/or constructive) that Defendants possessed for years regarding the dangerous and dilapidated

cable barrier system, and the failure to warn Plaintiff CHRISTI BOWMER of the known risk or

make it safe, especially considering the probability and magnitude of the potential harm to Plaintiff

CHRISTI BOWMER and others.

VIII. DAMAGES

50. Plaintiff realleges and incorporates by reference the preceding paragraphs for all

purposes, the same as if set forth herein verbatim.

51. As a proximate result of the aforementioned causes of action set forth above, Plaintiff

CHRISTI BOWMER suffered in the past and will continue to suffer in the future, both personal and

economic injuries. Specifically, Plaintiff suffered and will continue to suffer in the future physical

injuries, physical pain, physical impairment, disfigurement, mental anguish and medical expenses.

Plaintiff has incurred reasonable and necessary medical expenses in the past and will continue to

incur these expenses in the future. Plaintiff has and will suffer economic damages, past and future,

including lost and diminished earning capacity.

IX. JURY TRIAL REQUEST

52. Plaintiff requests a trial by jury and tenders the necessary fee.

X. PRESERVATION OF EVIDENCE

53. Plaintiff, through her counsel, already sent a letter of preservation to Defendants GTT

and PREMIER PARKING on July 19, 2017 (6 days after the incident). Another request for

preservation was sent to counsel for GTT on July 31, 2017. Plaintiff hereby reiterates her prior

requests and demands that all Defendants preserve and maintain all evidence pertaining to any claim

or defense related to the incident made the basis of this lawsuit, or the damages resulting therefrom.

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This request and demand includes any statements, photographs, video footage, audio, surveillance,

security footage, information, business records, incident reports, equipment (i.e. cable(s), cement

parking chalks(s), parking garage ticket(s), invoices, checks, correspondence, facsimile, email,

voice-mail, text messages and any evidence involving the incident in question. Failure to maintain

such evidence will constitute a “spoliation” of evidence.

XI. PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiff CHRISTI J. BOWMER respectfully

requests that this Court issue citation for Defendants GTT PARKING, L.P., SHELDON DAVID

KAHN, PREMIER PARKING OF TENNESSEE, LLC, and WEITZMAN MANAGEMENT

CORPORATION to appear and answer, and that Plaintiff be awarded judgment against those

defendants for the following:

i. Actual damages;

ii. Exemplary damages;

iii. Joint and several liability;

iv. Prejudgment interest and post-judgment interest at the maximum rates allowed
by law;

v. Costs of court; and

vi. Any other and further relief, at law or in equity, to which Plaintiff may be justly
entitled.

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 Respectfully submitted,

HOWRY BREEN & HERMAN, LLP

____________________________
Randy Howry
State Bar No. 10121690
Sean E. Breen
State Bar No. 00783715
Chris Lavorato
State Bar No. 24096074
1900 Pearl Street
Austin, Texas 78705-5408
(512) 474-7300 Phone
(512) 474-8557 Facsimile
[email protected]
[email protected]
[email protected]

Attorneys for Plaintiff Christi J. Bowmer

CERTIFICATE OF SERVICE

I certify that a true and correct copy of this document was served by E-Service, in accordance
with Rules 21 and 21a of the Texas Rules of Civil Procedure, to all counsel of record of record,
on February 11, 2019:

Tasha Barnes  
THOMPSON COE COUSINS & IRONS, LLP
701 Brazos St., Suite 1500
Austin, TX 78701
[email protected]
Attorneys for GTT Parking, LP  
 
Christopher L. Rhodes  
HOLSTEIN & ASSOCIATES
9601 McAllister Freeway, Suite 910
San Antonio, Texas 78216
[email protected]

Page 26 of 27
  
Paul Starr  
GERMER PLLC  
301 Congress Avenue, Suite 1700  
Austin, Texas 78701  
[email protected]  

Attorneys for Premier Parking of Tennessee,  

LLC
 
Curtis J. Kurhajec  
NAMAN, HOWELL, SMITH & LEE, PLLC
8310 N. Capital of Texas Highway, Suite 490
Austin, Texas 78731
[email protected]
Attorneys for Weitzman Management  
Corporation

Sean E. Breen

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