CAUSE NO.

_1_}_-_0_4_·_6_5_8

GARY MCKENZIE AND KAREN MCDONALD, INDIVUALL Y AND ON BEHALF OF THE ESTATE OF KASEY MCKENZIE,

§ § § § § § § § § HIGH EXPECTATIONS HOSPITALITY, §

LLC d/b/a SPEARMINT RHINO §

GENTLEMEN'S CLUB; BIG TIME §

ENTERTAINMENT, LLC; KATHY §

VERCHER; GK WORLDWIDE §

ENTERPRISES LLC, BRAD KEILLER, §

AND ERIC BRENT CRUTCHFIELD §

§ §

Plaintiffs,

VS.

Defendants.

__ JUDICIAL DISTRICT

DALLAS COUNTY, TEXAS

PLAINTIFF'S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE TO THE HONRABLE JUDGE OF SAID COURT:

COMES NOW, Plaintiffs, GARY MCKENZIE and KAREN MCDONALD,

INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF KASEY MCKENZIE, in the

above-styled and numbered cause, complaining of Defendants, HIGH EXPECTATIONS

HOSPITALITY, LLC d/b/a SPEARMINT RHINO GENTLEMEN'S CLUB; BIG TIME

ENTERTAINMENT, LLC; KATHY VERCHER; GK WORLDWIDE ENTERPRISES, LLC,

BRAD KEILLER, and ERIC BRENT CRUTCHFIELD and for cause of action would

respectfully show unto this Honorable Court the following:

DISCOVERY CONTROL PLAN

1. Pursuant to TEX. R. CIV. PRO. 190.4, Plaintiffs hereby give notice that discovery is

intended to be conducted under Level 3. PLAINTIFFS ASSERT THAT THIS CASE IS

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APPROPRIATE FOR A LEVEL 3 DISCOVERY PLAN. THIS CASE INVOLVES COMPLEX ISSUES OF FACT AND LAW AND SHOULD BE CLASSIFIED AS A LEVEL 3 CASE FOR PURPOSES OF DISCOVERY. HOWEVER, PRIOR TO FORMAL INTERVENTION BY THE COURT, PLAINTIFFS REQUEST AN OPPORTUNITY TO CONFER WITH DEFENDANTS, THROUGH THEIR DESIGNATED COUNSEL, IN ORDER TO MAKE A REASONABLE ATTEMPT TO DEVELOP AN AGREED DISCOVERY CONTROL PLAN TO BE SUBMITTED TO THE COURT FOR APPROVAL.

JURY DEMAND

1. Plaintiffs demand a jury trial and tender the appropriate fee with this petition.

RULE 194 REQUESTS FOR DISCLOSURE

2. Pursuant to Rule 194 of the Texas Rules of Civil Procedure, Defendants are hereby requested to disclose, within fifty (50) days of service of this Petition and this request, the information or material described in Rule 194.2(a)-(l).

PARTIES

3. Plaintiff, GARY MCKENZIE, is an individual who resides in Granbury, Hood County, Texas.

4. Plaintiff, KAREN MACDONALD, is an individual who resides in Granbury, Hood County, Texas.

5. Defendant, HIGH EXPECTATIONS HOSPITALITY, LLC d/b/a SPEARMINT RHINO GENTLEMEN'S CLUB (hereinafter referred to as Rhino), is a Texas corporation that is authorized to do business in Texas and may be served by and through its registered agent, Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company, 211 E. ih Street, Suite 620, Austin, Texas 78701-3218, or wherever it may be found.

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6. Defendant, BIG TIME ENTERTAINMENT, LLC (hereinafter referred to as Big Time), is a Texas corporation that is authorized to do business in Texas and may be served by and through its registered agent, Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company, 211 E. 7th Street, Suite 620, Austin, Texas 78701-3218, or wherever it may be found.

7. Defendant, KATHY VERCHER (hereinafter referred to as Vercher), is an individual and may be served with process at her usual place of business, 1875 Tandem Way, Norco, CA 92860, or wherever she may be found.

8. Defendant, GK WORLDWIDE ENTERPRISES, LLC (hereinafter referred to as GK), is a foreign corporation that is authorized to do business in Texas and may be served by and through its registered agent, Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company, 211 E. 7th Street, Suite 620, Austin, Texas 78701-3218, or wherever it may be found.

10. Defendant, BRAD KEILLER (hereinafter referred to as Keiller), is an individual and may be served with process at his usual place of business, 1875 Tandem Way, Norco, CA 92860, or wherever he may be found.

11. Defendant, ERIC BRENT CRUTCHFIELD (hereinafter referred to as Crutchfield), is an individual and may be served at his usual residence, 1724 Matilda Street, Dallas, Texas 75206 or wherever he may be found.

JURISDICTION AND VENUE

12. The court has jurisdiction over Defendants because the amount in controversy is within the jurisdictional limits of the court.

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13. Venue is proper in this Court by virtue of sections 15.001 et. seq. of the Texas Civil Practice & Remedies Code because the cause of action which is the basis of this case arose in whole or in part in this county, andlor Defendants' residence or principal office is in this county.

BACKGROUND FACTS

14. Plaintiffs' claims arise out of Rhino, Big Time, Vercher, GK's and Keiller's (hereinafter referred to as Rhino Defendants) over-serving of alcohol to Defendant Eric Brent Crutchfield, a customer of Spearmint Rhino Gentlemen's Club in Dallas, Texas and Eric Crutchfield's unsafe operation of a dangerous motor vehicle and a subsequent collision involving Crutchfield's vehicle and Kasey McKenzie, a pedestrian. Kasey McKenzie survived the initial collision, but was later pronounced dead on the scene as a result of injuries sustained when Crutchfield ran over her with his vehicle.

15. Crutchfield, who had a suspended driver's license, was driving a custom Silver 2003 Ford F-250 truck equipped with a lift kit which raised the frame several feet, limiting visibility. The headlamps on the truck were defective because the base of the lamps was approximately 72 inches from the pavement, 18 inches above both Federal and State regulations. According to witnesses, the height of the hood and the dark tinted windows may have also limited visibility.

16. Spearmint Rhino Gentlemen's Club at 10965 Composite Drive, in Dallas, Texas (Rhino's Dallas) is a licensed provider of alcoholic beverages, owned andlor operated by Rhino Defendants. On the evening March 16 and the early morning hours of Marchl 7, 2011, one or more servers andlor other agents of Rhino Defendants served alcoholic beverages to Crutchfield at Rhino's in Dallas even though it was, or should have been apparent to

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Rhino Defendants that Crutchfield was intoxicated to the extent that he presented a clear danger to himself and to others.

17. During the approximately three to four hours that Crutchfield was on the premises of Rhino's in Dallas, Rhino Defendants served Crutchfield alcohol to the point which he became intoxicated greatly beyond the legal limit of intoxication in the State of Texas.

18. Rhino Defendants, without offering to arrange alternate transportation for Crutchfield, then allowed Crutchfield to get into his vehicle and attempt to drive away from their

premises while severely intoxicated.

Crutchfield entered his custom truck at

approximately 2:15 a.m. on March 17,2011. At approximately 2:18 a.m., Kasey McKenzie was walking eastbound through the parking lot of Rhino's in Dallas when Crutchfield pulled forward out of a parking space and ran over Kasey McKenzie with both the right front and rear tires. The Dallas Police Department performed a field sobriety test and determined that Crutchfield was under the influence of alcoholic beverages. A blood sample was also obtained from Crutchfield after his arrest for intoxication manslaughter. Upon information and belief, Crutchfield was approximately twice the legal limit of 0.08 grams.

19. The Texas Alcoholic Beverage Commission ("TABC") certifies courses to be offered to servers of alcoholic beverages in the State of Texas. Based upon information and belief, Rhino Defendants nevertheless offered no TABC-certified in-house training program to the bartenders and servers at Rhino's Dallas.

20. Crutchfield's actions in causing the collision occurred because of his state of intoxication and the limited visibility due to the height of his truck. Rhino Defendants continued to serve Crutchfield after they knew or should have known of his intoxication to the extent

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that he presented a clear danger to himself and to others. Rhino Defendants actions and inactions proximately caused Crutchfield's intoxication and Plaintiffs' injuries and damages. Crutchfield's unsafe operation of a dangerous motor vehicle while intoxicated proximately caused Plaintiffs' injuries and damages.

CAUSES OF ACTION

Rhino Defendants - Dramshop and Negligence Per Se

21. Under the common law and applicable statutes, Rhino Defendants had a duty to the

general public not to serve alcoholic beverages to persons the Rhino Defendants knew or should have known to be intoxicated. On the occasion in question, Rhino Defendants made alcoholic beverages available to Eric Crutchfield when it was, or should have been apparent to Rhino Defendants at the time that the alcoholic beverages were sold that Crutchfield was obviously intoxicated to the extent that he presented a clear danger to himself and others. Crutchfield's intoxication was a proximate cause of Plaintiffs' injuries and damages. Rhino Defendants were negligent per se in serving intoxicated persons on the occasion in question, in violation of the Texas Alcoholic Beverage Code. See Tex. Aleo. Bev. Code §§ 2.02, l1.61(b)(14), and 101.63.

Rhino Defendants - Negligence - Defective Employment Policies and Training

22. Rhino Defendants were further negligent, among other ways, in:

1. Implementing employment policies which a reasonable employer would know encouraged employees and/or agents to continue to serve intoxicated patrons;

2. Failing to implement employment policies which a reasonable employer would know discouraged employees and/or agents from continuing to serve intoxicated patrons;

3. Failing to provide sufficient training to employees and/or agents who may be serving

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and/or monitoring service of alcohol concerning proper monitoring of signs and symptoms of intoxication and the dangers of over-serving alcohol to patrons; and

4. Failing to implement, and/or require attendance at, T ABC-certified training programs for employees and/or agents who may be serving and/or monitoring service of alcohol to patrons.

Rhino Defendants - Negligent Hiring and Supervision

23. Rhino Defendants are liable for the negligence of their agents and/or employees because they did not use ordinary care in hiring, supervising, training, and retaining them and their supervisors, and the breach of the applicable standard of care by these agents and/or employees and their supervisors, as described above, proximately caused injuries to Plaintiffs.

Rhino Defendants - Joint Enterprise

24. Alternatively, Rhino Defendants are liable for the negligence of each other under a theory of j oint enterprise because: 1) an express of implied agreement among Rhino Defendants existed, 2) a common purpose was to be carried out by Rhino Defendants, 3) a common pecuniary interest in that purpose existed among Rhino Defendants, and 4) an equal right to control the enterprise existed.

Defendant Eric Crutchfield - Negligence and Negligence Per Se

25. Defendant Crutchfield was negligent in one or more of the following particulars:

1. In being legally intoxicated and/or in driving while under the influence of alcohol - namely while exceeding the legal limit for intoxication.

2. In failing to keep such a lookout as a person of ordinary prudence would have kept under the same or similar circumstances, due to being legally intoxicated

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and/or in driving while under the influence of alcohol- namely while exceeding the legal limit for intoxication.

3. In failing to timely apply the brakes of his vehicle in order to avoid the occurrence in question, due to being legally intoxicated andlor in driving while under the influence of a1cohol- namely while exceeding the legal limit for intoxication.

4. In driving a vehicle with limited visibility that an ordinary and prudent person would not have driven under the same or similar circumstances, due to being legally intoxicated andlor in driving while under the influence of alcohol - namely while exceeding the legal limit for intoxication.

5. In failing to yield the right-of-way, due to being legally intoxicated and/or in driving while under the influence of alcohol - namely while exceeding the legal limit for intoxication.

6. In failing to maintain his vehicle under proper control, due to being legally intoxicated and/or in driving while under the influence of alcohol - namely while exceeding the legal limit for intoxication.

7. In failing to take proper evasive action, due to being legally intoxicated andlor in driving while under the influence of alcohol - namely while exceeding the legal limit for intoxication.

8. Crutchfield was negligent per se in driving a vehicle that was not equipped with two headlamps mounted in each side of the front of the vehicle, at a height not more than 54 inches. See Tex. Trans. Code § 547.321 and 49 C.F.R. §571.108.

26. Each of Defendants' foregoing acts or omissions, singularly or in combination with others, constituted negligence, which proximately caused the above-referenced

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occurrence and Plaintiffs' injuries and damages.

PERSONAL INJURIES AND DAMAGES

Survival Damages for Kasey McKenzie

27. As a result of Defendants' actions, Kasey McKenzie, deceased, sustained conscious pain and suffering, mental anguish and physical pain prior to her death. Her estate is entitled to recover for her damages, including but not limited to, damages for mental anguish, physical pain and necessary funeral bills and expenses, for which damages are sought under the Texas Survival Statute, codified in Chapter 71 of the Texas Civil Practice & Remedies Code.

Wrongful Death Damages of Gary McKenzie and Karen McDonald

28. As a result of Defendants' actions and the death of Kasey McKenzie, Plaintiffs Gary McKenzie and Karen McDonald have suffered damages in the past and will suffer damages in the future, including but not limited to, mental anguish, grief, bereavement, loss of society and companionship, loss of care, maintenance, support, services, advice, counsel, and reasonable contributions, and medical, funeral and burial expenses, for which damages are sought under the Texas Wrongful Death Act, codified in Chapter 71 ofthe Texas Civil Practice & Remedies Code.

Exemplary Damages

29. Plaintiffs are entitled to exemplary damages under Chapter 41 of the Texas Civil Practice and Remedies Code, because Defendants' acts and/or omissions, when viewed objectively from the standpoint of Defendants at the time of the occurrence, 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

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nevertheless proceeded with conscious indifference to the rights, safety and welfare of

others. Defendants are liable for exemplary damages based upon the acts of their

employees and agents because Defendants authorized the doing and/or the manner of the

acts, the agents were unfit, Defendants acted with malice in employing or retaining them,

the agents were employed in managerial capacities and were acting in the course of their

employment, and/or Defendants ratified or approved the acts.

CONDITIONS PRECEDENT

30. All conditions precedent to Plaintiffs' right to recover the relief sought herein have

occurred or have been performed.

RELIEF SOUGHT

31. Plaintiffs request that Defendants be cited to appear and answer, and that this case be

tried, after which Plaintiffs recover:

1. Judgment against Defendants for a sum within the jurisdictional limits of this Court for

the damages indicated above;

2. Pre-judgment and post-judgment interest at the maximum amount allowed by law;

3. Costs of suit; and

4. Such other and further relief to which Plaintiffs may be justly entitled.

Respectfully submitted,

By:

THE SCHMIDT FIRM, LLP 3012 Fairmount

Dallas, Texas 75201

(214) 521-4898

Fi~t~

MICHAEL E. SCHMIDT State Bar No. 00785361

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Plaintiffs' Original Petition and Request for Disclosure

THE LAW OFFICES OF MARKJ. SIEGEL

State Bar No. 18342100 3607 Fairmount Street Dallas, Texas 75219

(214) 520-0000

Fax (214) 522-3502

ATTORNEYS FOR PLAINTIFFS

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