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CAUSE NO. 10-02144

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LAVELL FAIRBANKS VS. TRAVIS FRENCH and DANA HETER, INDIVIDUALLY PLAINTIFF'S

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DALLAS COUNTY, TEXAS

FIRST AMENDED PETITION

TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, PLAINTIFF, LAVELL FAIRBANKS, complaining of DEFENDANT, TRAVIS FRENCH, and would show this Honorable Court as follows: DISCOVERY 1. This case should be governed under a Level III Discovery Control Plan pursuant to

T.R.C.P. 190.4. PARTIES 2. Plaintiff, Lavell Fairbanks, is an adult individual who resides in Dallas County, Texas. Defendant, Travis French, is currently before the Court for all purposes, and a copy of Plaintiff's First Amended Petition will be served on his attorneys of record, James Butt and Jason Schuette, Dallas City Attorney's Office, 1500 Marilla, Dallas, Dallas County, Texas. VENUE 3. Venue is proper in this Court because Lavell Fairbanks and Officer French are residents of

Dallas County and because a substantial part of the acts or omissions giving rise to Fairbanks' claims occurred in Dallas County.

PLAINTIFF'S

FIRST AMENDED PETITION - PAGE 1

BACKGROUND 4. On the evening of October 12, 2008, Plaintiffhad an argument with his girlfriend at

their apartment in far northeast Dallas. Because of the dispute, Plaintiff called the Dallas Police Department and Defendant, Officer French and his partner, were dispatched to the apartment at approximately 5:30 p.m. When the officers arrived, Plaintiff was asked to step outside of the

apartment. Plaintiffhad consumed several beers and was suspicious that he was being lured outside in order to be arrested for public intoxication and fearful that he would be assaulted. Plaintiff stepped outside, but then fled the premises. 5. Plaintiff went down the stairs and ran toward the parking lot. As he passed the police

vehicle, he stopped running in an effort to surrender to the officer. At that time, he was struck on the head with a flashlight by Defendant Officer French. The blow(s) to the head rendered Plaintiff unconscious. Defendant continued to strike Plaintiffwith the flashlight as Plaint iff fell to the ground. 6. When an ambulance from Dallas Fire and Rescue arrived at the scene, Plaintiff was laying The

motionless on the ground in handcuffs, and was not responsive to verbal communications.

medical personnel spoke with the officer and conducted a cursory examination of Plaintiff, but did not transport him in the ambulance. Defendant loaded Plaintiff into the police vehicle and took him to the Dallas County Jail. Several hours later, a jailer found Plaintiff comatose in his cell. He was then transported to Parkland Memorial Hospital at approximately 12:30 a.m. 7. Upon arrival at Parkland, the medical staff identified a skull fracture, a large intra-cranial contusions. Plaintiff underwent an When Plaintiff's

bleed (epidural hematoma), and multiple bifrontotemporal

emergency surgery (craniotomy) to relieve the mounting intra-cranial pressure.

condition failed to improve, he underwent a second surgery (craniectomy) in which a portion of his PLAINTIFF'S FIRST AMENDED PETITION - PAGE 2

skull was removed in effort to reduce the negative effects of further pressure/swelling on Plaintiff's brain. 8. As a result of the excessive force used by Defendant, Plaintiffhas suffered and continues to

suffer from the lasting effects of his injuries, including encephalomalacia, or brain damage. He has undergone rehabilitative therapy and continues to suffer from multiple physical, cognitive, and emotional side effects as a result of the trauma. Plaintiff's appearance is permanently altered by a concave deformity on the left side of his head. He suffers from persistent headaches, sleep apnea, symptoms of Post Traumatic Stress Disorder and depression, memory loss, and insecurity about his appearance and altered mental and emotional state. Plaintiff thus seeks to recover for these and other actual damages. EXCESSIVE 9. FORCE - ASSAULT AND BATTERY

Plaintiff would show that Defendant employed an unnecessary and unreasonably excessive

amount of force in effecting the arrest. Although Plaintiff initially fled from the officer, running approximately I 00 feet, he had subsequently ceased running and was surrendering to the officer when he was struck with the flashlight. Defendant unnecessarily and repeatedly struck Plaintiff at a time when Plaintiff posed no threat of harm to himself, Defendant, or others. Plaintiff was unarmed; and was not suspected ofhaving committed a crime prior to Defendant's arrivaL In essence, Defendant had no legitimate reason to consider Plaintiff to be dangerous. Plaintiffwas not resisting arrest when Defendant began to strike him, or at any time thereafter. Although Defendant initially claimed that Plaintiff, at 5' 7 and 130 lbs., had somehow attacked him (apparently while still in the act offleeing), the resisting charges against Plaintiff were later dismissed.

PLAINTIFF'S

FIRST AMENDED PETITION - PAGE 3

10.

Plaintiffwould show that while a police officer like Defendant is generally entitled to use force

to make an arrest, his use offorce must be reasonable. Plaintiff will show that Defendant's use of force, in striking Plaintiff on the head with a metal flashlight amounted to the use of deadly force, and that this degree of force was entirely unnecessary, unreasonable, and therefore, excessive. While Defendant's initial flashlight strikes upon Plaintiff's head and body were excessive, as were the subsequent flashlight strikes and kicks which occurred after Plaintiffhad lost consciousness and fallen to the ground. Defendant's actions in repeatedly striking Plaintiff about his head and body, both

before and after Plaintiff was handcuffed and unconscious, were beyond any objective measure of justification. As such, Defendant's excessive use offorce was not privileged under Texas Law, and amounted to an intentional assault and battery upon Plaintiff. Defendant's actions, as stated above, were a direct and proximate cause of Plaintiff's multiple, severe, and life-threatening injury for which he hereby sues. IMMUNITIES 12. The Texas Do ctrine 0fOfficial Immunity does not apply to intentional conduct, and therefore,

does not protect Defendant with regard to Plaintiff's state law claims for assault and battery. DAMAGES 13. As a direct and proximate result of Defendant's unlawful assault and battery upon Plaintiff,

as described above, Plaintiffhas suffered severe life-threatening injuries, including, but not limited to, a fractured skull, lacerated scalp, epidural hematoma, and multiple bifrontotemporal contusions resulting in the following elements ofdamages for which he hereby sues: a. b. c. physical pain and mental anguish in the past physical pain and mental anguish in the future physical impairment in the past

PLAINTIFF'S FIRST AMENDED PETITION - PAGE 4

d. e. f. g. h.
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physical impairment in the future physical disfigurement in the past physical disfigurement in the future loss of earning capacity in the past . loss of earning capacity in the future medical expenses in the past medical expenses in the future. PUNITIVE DAMAGES

14.

Because Defendant's conduct was committed intentionally, wantonly, willingly, and with

malice, Plaintiff sues for punitive damages. JURY DEMAND 15. 16. Plaintiff requests a trial by jury. As a result of the injuries sustained by Plaintiff, as aforesaid, he has suffered damages in

excess ofthe minimum jurisdictional limits of this Court. In addition to such damages, Plaintiffwould show that he is entitled to prejudgment interest on each separate element of damages as awarded by the jury during the trial of this case, from and after the date of accrual of such damages through the date of judgment. of judgment. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Defendant be cited to Such interest to accrue at the highest prevailing rate then applicable on the date

answer and appear herein, and that upon final hearing that Plaint iff have judgment against Defendant for his actual damages as set forth above, together with prejudgment interest thereon at the highest legal rate then prevailing at the time of judgment on each separate element of damages as awarded by the jury for his past and accrued damages, for punitive damages, and for such other and further relief to which he may show himself to be justly entitled. PLAINTIFF'S FIRST AMENDED PETITION - PAGE 5

Respectfully submitted, THORNE & SKINN

MICHAEL L. SKINNER State Bar No. 00788428 123 West Main Street, Suite 300 Grand Prairie, Texas 75050 Telephone: (972) 264-1614 Facsimile: (972) 642-5113

KLINT RYBICKI State Bar No. 24060542 Law Office of Klint Rybicki 9603 White Rock Trail, Suite 118 Dallas, Texas 75238 Phone: (469) 951-8765 Fax: (214) 593-0748 ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing was served on Defendant, Travis French, by and through his attorney ofrecord, James C. Butt and Jason Schuette, Dallas City Hall, 1500 Marilla Street, Dallas, Texas, by facsimile, on this the '].,..'1- of December, 2010.

MICHAEL L. SKINNER

PLAINTIFF'S FIRST AMENDED PETITION - PAGE 6

THORNE
KIM R.

6- SKINNERl::",'"
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Attorneys at LaUf 0
THORNE
Board C,rrijiui Pmonll/lnju'Y Trial Law T'''Il> Board of ['gal Sp,cja[iwlion

e-mail kthorne@tstgroup.com MICHAEL L. SKINNER e-mail mskinner@tstgroup.com

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123 West Main Street, Suite 300 Grand Prairie, Texas 75050 ';" I 9i~264.1614 • metro 972.263.5163 ~( 1't1tt« 1.888.636.3676 • fax 972.642.5113

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Clerk ofthe Court 162nd Judicial District 600 Commerce Street Dallas, Texas 75202 Re: Cause No. 10-02144 Lavell Fairbanks v. Travis French and Dana Heter, Individually

Dear Clerk: Enclosed please find the original and two copies of Plaintiffs First Amended Petition in connection with the referenced case. Please file-mark and return the extra copies in the enclosed envelope. By copy of this letter, opposing counsel has been forwarded a copy of same. Thank you for your attention in this regard.

MICHAEL L. SKINNER MLS:sem Enclosure cc: James C. Butt Assistant City Attorney 1500 Marilla Street, Room 7BN Dallas, Texas 75201 (Via Fax #214-670-0622)

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