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2015-63989 / Court: 133

10/26/2015 3:55:33 PM
Chris Daniel - District Clerk Harris County
Envelope No. 7543597
By: Charlie Tezeno
Filed: 10/26/2015 3:55:33 PM

CAUSE NO. _________________________

v.
BRINKS INCORPORATED,
CAPITAL ONE NATIONAL ASSOCIATION,
Defendants.

IN THE DISTRICT COURT

OF HARRIS COUNTY, TEXAS

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ROSALIND B. KINNEY, individually


and on behalf of the ESTATE OF ALVIN
M. KINNEY, and BRETT J. KINNEY,
INDIVIDUALLY,
Plaintiffs,

______ JUDICIAL DISTRICT

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PLAINTIFFS ORIGINAL PETITION

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COME NOW Plaintiffs, Rosalind B. Kinney, individually and on behalf of the Estate of

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Alvin M. Kinney, and Brett J. Kinney, Individually (hereinafter referred to as Plaintiffs) and

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complain of Brinks, Incorporated (Brinks) and Capital One, National Association (Capital

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One and, together with Brinks, Defendants), and for causes of action respectfully shows as

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follows:

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Plaintiffs intend to conduct discovery under Level 2 of Rule 190 of the Texas

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DISCOVERY CONTROL PLAN

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Rules of Civil Procedure. Plaintiffs affirmatively plead that they seek monetary relief of more

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PARTIES

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than $1,000,000.

Plaintiffs Rosalind B. Kinney, Individually and on Behalf of the Estate of Alvin

M. Kinney, and Brett J. Kinney, Individually, are individuals and residents of Texas.
3.

Defendant Brinks, Incorporated, is a Delaware corporation and may be served

with process through its registered agent CT Corporation System at 350 North St. Paul Street,
Dallas, TX 75201.

4.

Defendant Capital One, National Association, is a Virginia corporation and may

be served with process through its registered agent Corporation Service Company d/b/a CSCLawyers Incorporating Service Company, 211 E. 7th Street, Suite 620, Austin, TX 78701.
JURISDICTION AND VENUE
Venue is proper in Harris County, Texas, because all or part of the facts and

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5.

circumstances surrounding Plaintiffs claims occurred in Harris County.


6.

This court has personal jurisdiction over the parties because Defendants conduct

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business in Harris County, Texas and have purposefully availed themselves of the benefits and

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protections of the state of Texas by establishing minimum contacts with the state such that they

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Venue in Harris County is proper in this cause under Section 15.002(a)(1) of the

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should reasonably anticipate being haled into court in Texas.

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Texas Civil Practice and Remedies Code because all or a substantial part of the events or

FACTS

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More than twenty percent (20%) of all armored car robberies in the United States

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omissions giving rise to this lawsuit occurred in Harris county.

Alvin M. Kinney (Decedent) was employed as an armored truck security guard

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for 2013 and 2014 occurred in the Greater Houston area.

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by Defendant Brinks in Houston, Texas. On or about February 12, 2015, Decedent and his
partner, in the course and scope of their employment for Brinks and as business invitees of
Capital One, were retrieving certain property from the Capital One branch located at 5718
Westheimer, Houston, Texas 77057 (the Property), which is owned by Capital One. While on
the Property, Decedent encountered and was inadequately prepared for an armored car robbery at
the Property. Tragically, Decedent was shot and killed during the armored car robbery.

10.

Upon information and belief, Brinks failed to properly train and supervise

Decedents partner on how to properly handle situations such as the one that resulted in
Decedents demise. On information and belief, Decedents partner negligently failed to comply
with Brinks company policy and procedures, which allowed for this occurrence to take place.
Further, upon information and belief, despite being aware of the armored car

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robberies in Houston, Brinks failed to take reasonable precautions to safeguard the well-being of
its employees, including Decedent. Moreover, a dangerous condition existed on the Property and

Decedent is survived by his wife, Plaintiff Rosalind M. Kinney, and his son,

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Capital One failed to take reasonable precautions to address the dangerous condition.

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Plaintiff Brett J. Kinney.

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CAUSES OF ACTION

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NEGLIGENCE/GROSS NEGLIGENCE
Plaintiffs incorporate paragraphs 8-12 as if fully set forth herein.

14.

Brinks owes a duty to its employees to properly train and supervise them in order

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for them to properly and safely discharge their responsibilities of Brinks. Brinks failed to do

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so. As a result of Brinks negligent training and supervision, Decedent died in the course and

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Additionally, Brinks actions, inactions, and omissions, when viewed objectively

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scope of his employment. Consequently, Plaintiffs sue Brinks for negligence.

from Brinks standpoint at the time at issue, involved an extreme degree of risk, considering the
probability and magnitude of the potential harm to others, including Plaintiffs and Decedent.
Further, Brinks had actual subjective awareness of the risks involved, but nevertheless
proceeded with conscious indifference to the rights, safety, and/or welfare of others. Therefore,
Brinks actions also constitute gross negligence, for which Plaintiffs sue Defendants.

PREMISES LIAIBLITY
16.

Plaintiffs incorporate paragraphs 8-12 as if fully set forth herein.

17.

Capital One is the owner of the Property.

18.

Decedent was on Capital Ones Property with Capital Ones knowledge, at

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Capital Ones request, and for their mutual benefit.

Capital One knew or, in the exercise of reasonable diligence, should have known

that there was a substantial risk of a robbery at the Property. Additionally, Capital One knew or

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reasonably should have known of the lack of security at the Property and that it, combined with

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the risk of a robbery at the Property, created a dangerous condition. Capital One knew or should

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have known the dangerous condition posed an unreasonable risk of death or serious bodily harm

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Defendant Capital One had a duty to use ordinary care to take reasonable

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to Decedent.

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measures to address the dangerous conditions at the Property Capital One breached this duty.

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Defendants breach of duty proximately caused the death of Decedent. Accordingly, Plaintiffs

WRONGFUL DEATH

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sue Capital One for negligence and premises liability.

Plaintiffs incorporate paragraphs 8-12 as if fully set forth herein.

22.

Plaintiff Rosalind Kinney is the surviving spouse of Decedent. Plaintiff Brett

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21.

Kinney is the surviving don of Decedent.


23.

Decedent died as a result of Defendants wrongful conduct.

24.

Decedent would have been entitled to bring this action against Defendants if he

had lived.

25.

Defendants conduct that caused Decedents death was a producing cause of

injury to Plaintiffs.
26.

Plaintiffs now seek damages in an amount to be determined by the trier of fact.


SURVIVAL CLAIM FOR PERSONAL INJURIES
Plaintiffs incorporate paragraphs 8-26 as if fully set forth herein.

28.

Plaintiff Rosalind Kinney is the personal representative of Decedents estate.

29.

Had Decedent survived, he would have had a cause of action for injury to his

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person and would have been entitled to bring an action for the injury if he had lived.

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Defendants negligent and grossly negligent conduct, as described above, caused Decedents

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injuruy. Therefore, Plaintiff Rosalind Kinney brings this survival action on behalf of Decedent

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pursuant to Section 71.004 of the Texas Civil Practice and Remedies Code.

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DAMAGES
Plaintiffs incorporate the paragraphs above as if fully set forth herein.

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This claim for damages resulting from the wrongful death of Decedent is brought

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by Rosalind Kinney, his surviving wife, and child, Brett Kinney, pursuant to Tex. Civ. Prac. &

Decedent was 60 years of age at the time of his death. He was in good health,

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Rem. Code, 71.001 et. seq.

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with a reasonable life expectancy of over many years. As a result of the untimely death of
Decedent, Plaintiffs have suffered pecuniary loss from the death of Decedent, including loss of
care, maintenance, support, services, advice, counsel and contributions of a pecuniary value that
they would, in reasonable probability, have received from Decedent during his lifetime, had he
lived. Plaintiffs have suffered mental anguish, grief and sorrow as a result of the death of
Decedent and are likely to continue to suffer for a long time in the future.

35.

Further, Plaintiff Rosalind Kinney, Individually and on Behalf of the Estate of

Alvin Kinney has incurred the reasonable and customary charge for funeral and burial of Alvin
Kinney.
36.

Plaintiffs seek:
Reasonable medical care and expenses in the past. These expenses were

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A.

incurred by Decedent for the necessary care and treatment of his injuries
resulting from the incident complained of herein and such charges are

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reasonable and were usual and customary charges for such services in

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Harris County, Texas;


Funeral and burial costs;

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Physical pain and suffering of Decedent in the past;

D.

Mental anguish in the past;

E.

Mental anguish in the future;

F.

Loss of earnings in the past;

G.

Loss of earnings in the future;

H.

Loss of Consortium in the past, including damages to the family

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relationship, loss of care, comfort, solace, companionship, protection and

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services;

I.

Loss of Consortium in the future, including damages to the family


relationship, loss of care, comfort, solace, companionship, protection and
services; and

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Such other and further relief that Plaintiffs may be justly entitled.
EXEMPLARY DAMAGES

37.

Plaintiffs incorporate the paragraphs above as if fully set forth herein.

38.

Defendants acts or omissions described above, when viewed from the standpoint

of Defendants at the time of the act or omission, involved an extreme degree of risk, considering
the probability of harm to Decedent, Plaintiffs and others.
Defendants had actual, subjective awareness of the risk involved in the above-

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described acts or omissions, but nevertheless proceeded with conscious indifference to the rights,
safety, or welfare of Decedent, Plaintiffs and others.

Therefore, for such actions/inactions on behalf of Defendants, Plaintiffs sue for

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exemplary damages.

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Plaintiffs demand a trial by jury.

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JURY DEMAND

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Pursuant to Rule 194 of the Texas Rules of Civil Procedure, Defendants are

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REQUEST FOR DISCLOSURE

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requested to disclose the information and material described in Rule 194.2 within fifty (50) days

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of the service of this Plaintiffs Request for Disclosure to Defendant.

All conditions precedent have been performed, have occurred or have been

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CONDITIONS PRECEDENT

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waived.

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PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiffs respectfully pray that

Defendants be cited to appear and answer herein, and that upon final hearing of the cause,
judgment be entered for Plaintiffs against Defendants for damages in a n amount within the
jurisdictional limits of the 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 such other and further relief to which Plaintiffs may be entitled at
law or in equity.

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Respectfully submitted,

RADACK AND BORUNDA, P.C.

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By: /s/ Orjanel Lewis


Jorge Borunda
State Bar No. 24027205
Orjanel Lewis
State Bar No. 24083667
1345 Campbell, Suite 220
Houston, Texas 77055
Telephone: 713.795.8000
Facsimile: 877.234.4982
Email: Opointer@radacklaw.com
ATTORNEYS FOR PLAINTIFFS