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CAUSE NO.

________________

MACY CHIASSON, § IN THE DISTRICT COURT


§
Plaintiff, §
§
v. §
§
BIGGE CRANE AND RIGGING, § ____ JUDICIAL DISTRICT
ELAN DALLAS CITY LIGHTS §
OWNER, LP, ELAN DALLAS §
CITY LIGHTS GP, LLC, GREP §
GENERAL PARTNER, LLC, §
GABRIELLA TOWER, LLC AND §
GABRIELLA NATIONWIDE, LLC, §
§
Defendants. § DALLAS COUNTY, TEXAS

PLAINTIFF’S ORIGINAL PETITION AND APPLICATION FOR


TEMPORARY AND PERMANENT INJUNCTIVE RELIEF
TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Plaintiff Macy Chiasson (“Plaintiff,” and/or “Chiasson”) and

files this, Plaintiff’s Original Petition and Application for Temporary and Permanent

Injunctive Relief, complaining of and against Defendants Bigge Crane and Rigging, Elan

Dallas City Lights Owner, LP, Elan Dallas City Lights GP, LLC, GREP General Partner,

LLC, Gabriella Tower, LLC, and Gabriella Nationwide, LLC, (collectively herein after

“Defendants”) and, for cause, would respectfully show the Court the following:

DISCOVERY CONTROL PLAN AND RULE 47 DISCLOSURE

1. Pursuant to RULE 190.4 of the TEXAS RULES OF CIVIL PROCEDURE, Plaintiff

requests that discovery be conducted under Level 3.

2. Pursuant to TEXAS RULE OF CIVIL PROCEDURE 47, Plaintiff seeks monetary

relief over $1,000,000.00, and non-monetary relief.

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PARTIES
3. Plaintiff Macy Chiasson, is a resident Dallas of Texas.

4. Defendant Bigge Crane and Rigging, Co. is a foreign for-profit corporation

who may be served by and through its registered agent Paracorp Incorporated located at

3610-2 N. Josey Lane, Suite 223, Carrollton, Texas 75007-0000 USA or wherever she/he

may be found.

5. Defendant Elan Dallas City Lights GP, LLC is a foreign limited liability

company who may be served by and through its registered agent CT Corporation, 1999

Bryan Street, Suite 900, Dallas, Texas 75201 or wherever she/he may be found.

6. Defendant Elan Dallas City Lights Owner, LP is a foreign limited

partnership who may be served by and through its registered agent CT Corporation, 1999

Bryan Street, Suite 900, Dallas, Texas 75201 or wherever she/he may be found.

7. Defendant GREP General Partner, LLC is a foreign limited liability

company who may be served by and through its registered agent CT Corporation, 1999

Bryan Street, Suite 900, Dallas, Texas 75201 or wherever she/he may be found.

8. Defendant Gabriella Tower, LLC is a foreign limited liability company who

may be served by and through its registered agent CT Corporation, 1999 Bryan Street,

Suite 900, Dallas, Texas 75201 or wherever she/he may be found.

9. Defendant Gabriella Nationwide, LLC, is a foreign limited liability

company who may be served by and through its registered agent CT Corporation, 1999

Bryan Street, Suite 900, Dallas, Texas 75201 or wherever she/he may be found.

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JURISDICTION AND VENUE
10. Jurisdiction is proper in this Court because the amount of damages sought

by Plaintiff falls within the jurisdiction limits of the Court and because the Court has

general subject matter jurisdiction to determine the controversies at issue in this action.

11. Venue is proper in Dallas County, Texas, because all or a substantial part of

the events or omissions giving rise to Plaintiff’s claims occurred in Dallas County, Texas.

TEX. CIV. PRAC. REM. CODE § 15.002.

FACTS

12. Chiasson is an American mixed martial arts fighter (“MMA”) and winner of

The Ultimate Fighter 28 Women's Featherweight as May 15, 2019, she is #11 in the official

UFC bantamweight rankings.

13. Sunday, June 9, 2019 appeared to be a normal day, the sun was out, people

were brunching on patio’s, lounging at the pool and even golfing. Suddenly about 1:40 pm

the weather turned, a giant storm cloud surrounded central Dallas, wind gusts got as high

as 71 mph, 100-year old trees fell, street signs snapped, even lawn furniture flew.

14. Chiasson had just returned to her apartment from taking a friend to the

airport and had been back in her apartment [Elan City Lights Apartment Community

located at 2627 Live Oak St, Dallas, Texas 75204] for about twenty minutes, when she

heard an unusually loud boom. Chiasson knew construction across the street was going

on but never on a Sunday.

15. Unbeknownst to Chiasson the crane attached to The Gabriella apartment

complex under construction had begun to sway uncontrollably. The model of the crane, a

Peiner SK 415-20, should be able to withstand 95-mph winds and like the other cranes in

the area it should have been weathervaning in the storm. Weathervaning is a practice
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known in the construction industry where companies allow their cranes to spin freely in

the winds.

16. Chiasson immediately, looked outside her window and all she could see was

black smoke, glass breaking, cement and cars falling. Chiasson immediately grabbed her

phone, shoes and whistled for her dog all while she could hear the crane now ripping

through her apartment building floor by floor. Chiasson ran out barefoot, into the hall

where alarms were blaring and fire doors were closing. As the chaos ensued she managed

to run outside with her dog, phone and a pair of shoes which are the only possessions she

still has. As she made it outside, she put her shoes on as her foot was in pain, she realized

she had been cut by the glass she ran over as she fled for her safety. Chiasson looked up

and the apartment manager, was signaling people into the apartment lobby; however, she

noticed the ceiling cracking and water starting to come through so she grabbed her dog

and ran another two blocks to safety.

17. Unfortunately, the crane failed and in the ensuing crash killed at least 1,

injuring several others and displacing all 500 residents. The crane which had been on the

construction site for more than a year was owned by Bigge Crane and Rigging (“Bigge”)

which touts on its website the fact that for more than 100 years, Bigge has been one of

America’s premier global crane sales, crane rental, and project services companies.

Despite also touting the fact that safety is their most important core value, Bigge has been

fined $154,525 for 14 Occupational Safety and Health Administration (“OSHA”)

violations during the past ten (10) years. As recently as 2013, in an incident that occurred

in Arkansas OSHA found that Bigge’s crane contributed to hazards that caused the fatal

collapse.

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18. Defendants Bigge and/or Greystar had actual or constructive control or

possession of the premises at issue and the operations on the premises. The crane affixed

to the premises, including the attachments to the crane as installed and maintained,

posed an unreasonable risk of harm to those using the crane and those in the area

surrounding the crane in that it was not properly installed and/or maintained to hold up

during natural weather conditions. Defendants knew or reasonably should have known of

the danger posed to workers, invitees, passers by and others in the vicinity of the crane.

19. Defendants breached their duties of ordinary care to the Plaintiff by failing

to adequately warn the Plaintiff and others of the condition and failing to make that

condition reasonably safe. Defendants breach of these duties proximately caused

Plaintiff’s injury.

20. Defendants further had a duty to exercise reasonable care in the

maintaining of the crane. The Defendants duty of reasonable care included installing and

maintaining the crane so that it conformed with specifications and regulations.

Defendants breached that duty in that they failed to properly inspect and maintain the

subject crane on a regular basis in order to keep it in conformity with safety regulations.

21. Defendants breached their duties in hiring an incompetent contractor to

inspect, maintain, and/or repair the crane on the premises possessed, controlled and/or

operated by the Defendants. Because the work on the premises for the purpose of

inspecting, maintaining and/or repairing the subject crane possessed and/or controlled

by the Defendants posed a peculiar unreasonable risk of physical harm unless special

precautions were taken, Defendants had a duty to require any contractor hired to perform

the work to take necessary precautions by contract or any other manner necessary to

ensure the taking of such precautions. Defendants breached these duties in that they

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failed to require any contractor to take necessary precautions regarding the inspection,

maintenance, operation and/or repair of the subject crane.

22. As a direct and proximate result of the breaches of the Defendants duties

the Plaintiff was injured. This event and the Defendants’ breaches of duties are the

proximate and/or producing cause of Plaintiff’s damages.

CAUSES OF ACTION

GROSS NEGLIGENCE

23. Plaintiff incorporates by reference all the allegations set forth in the

paragraphs above and below as if set forth verbatim herein.

24. The act or omission when viewed objectively from the Defendants’

standpoint at the time it occurred involved an extreme degree of risk considering the

probability and magnitude of the potential harm to others. Defendants, their agents,

servants and/or employees committed various acts and/or omissions constituting gross

negligence.

25. The Defendants had actual, subjective awareness of the risk but proceeded

with conscious indifference to the rights, safety and welfare of others. The wrongful

conduct of the Defendants involved more than momentary thoughtlessness, inadvertence

or error of judgment. Rather, Defendants’ conduct constituted a heedless, reckless and

wanton disregard for the rights, welfare, or safety of the Plaintiff and when viewed

objectively from the standpoint of said Defendants at the time of the acts or omissions,

the conduct involved extreme risk, considering the probability and magnitude of the

potential harm to others and said Defendants had actual, subjective awareness of the risk

involved, but nevertheless, proceeded with conscious indifference to the rights safety, or

welfare of others.
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26. The Defendants’ conduct constituted malice and/or gross negligence and

Plaintiff is entitled to recover judgment against Defendants for exemplary damages in an

amount exceeding the minimum jurisdictional limit of this Court and as set forth in TEX.

CIV. PRAC. & REM. CODE §41.001 and §41.0011.

NEGLIGENCE

27. Plaintiff incorporates by reference all the allegations set forth in the

paragraphs above and below as if set forth verbatim herein.

28. The Defendants owed a legal duty to the Plaintiff.

29. The Defendants breached said duty.

30. The breach proximately caused the Plaintiff personal injuries.

NEGLIGENCE PER SE

31. Plaintiff incorporates by reference all the allegations set forth in the

paragraphs above and below as if set forth verbatim herein.

32. The Plaintiff belongs to the class of persons the statute was designed to

protect, and Plaintiff’s injury is of the type the statute was designed to prevent.

33. The statute is one for which tort liability may be imposed when violated.

34. The Defendants violated the statute without excuse.

35. The Defendants’ act and/or omission proximately caused the Plaintiff’s

injury.

APPLICATION FOR TEMPORARY RESTRAINING ORDER


AND TEMPORARY INJUNCTION

36. Plaintiff incorporates by reference all the allegations set forth in the

paragraphs above and below as if set forth verbatim herein.

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37. This case involves the injuries of the Plaintiff. The injuries occurred through

no fault of the Plaintiff. The facts of this case will undoubtedly demonstrate that the acts

and/or omissions of the Defendants caused the injuries sustained by the Plaintiff. As such,

the Plaintiff will have a probable right to relief on the merits.

PLAINTIFF WILL SUFFER PROBABLE INJURY IF INJUNCTIVE RELIEF IS NOT GRANTED

38. The harm is imminent. It is necessary for Plaintiff’s representative’s to

immediately inspect the premises, subject crane, and any and all attachments and related

equipment as well as documents, photographs and recordings relevant to the site,

including those described herein and/or involved in or connected with the incident in

questions, for the purpose of inspecting, measuring, surveying, photographing,

videotaping, analyzing, examining and testing said articles in order to accumulate and

preserve material evidence necessary for the proper investigation and/or determination

of the facts and circumstances in question in connection with Plaintiff’s claim under

applicable Texas law.

39. Plaintiff will sustain imminent and irreparable harm if the relief requested

herein is not granted. The Defendants and/or their agents, servants, and/or employees

have already begun their investigation of the incident made the basis of this lawsuit, that

the incident site and the crane and any and all attachments and related equipment are

not being preserved by any investigative authorities and that material evidence may be

lost, altered and/or destroyed.

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THE PROBABLE INJURY WILL BE IRREPARABLE IF INJUNCTIVE RELIEF IS NOT
GRANTED

40. If Defendants are allowed to do any additional investigation, testing or

preservation of evidence, Defendants will likely engage in modifications, alterations, or

repairs that will impair the development and/or prosecution of this lawsuit.

41. It is critical to the investigation, discovery and proof of the Plaintiff’s claims

alleged herein to inspect, measure, survey, photograph, videotape, analyze, and examine

the premises and subject crane and any and all related equipment and attachments. Relief

is requested to accumulate and preserve material evidence, which is necessary for the

proper investigation and/or determination of the true facts and circumstances in question

in connection the Plaintiff’s claim.

Plaintiff has No Adequate Remedy at Law

42. There is no legal remedy available to Plaintiff that will protect Plaintiff’s

rights and interests in this lawsuit if critical physical evidence is lost, destroyed and/or

altered. There is no reliable method of calculating damages to Plaintiff if such physical

evidence is lost, destroyed or modified.

43. Plaintiff has acted timely and is willing to post a bond although Plaintiff

believes a bond is not necessary.

44. The Plaintiff will suffer immediate and irreparable harm unless the

Defendants, their agents, representatives, servants, employees, affiliates and anyone with

actual or constructive knowledge of an injunction from this Court are immediately

restrained and prohibited from, directly or indirectly, engaging in the following acts,

without the written authorization of the Plaintiff or his undersigned legal representative

or the order of this Court:

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Altering, repairing, moving, modifying, damaging, destroying, conveying,

transferring, or in any way changing the condition of:

The crane, any and all attachments and related equipment;

The statements, recordings, memos, notes summaries, inspections,


or other documents generated by Defendants investigation of the incident;

Any videos and/or electronic recordings of any kind taken by


Defendants of the site of the incident including the crane.

45. Furthermore, Plaintiff requests that this Court extend the Injunctive Relief

to any person in active concert or participation with Defendants.

46. The Plaintiff is willing to post a bond.

EXEMPLARY DAMAGES

47. Moreover, Plaintiff respectfully requests that exemplary damages be

awarded against the Defendants in a sum that is not less than three times the amount of

the Plaintiff’s actual damages.

REQUEST FOR DISCLOSURE


48. Pursuant to Rule 194 of the TEXAS RULES OF CIVIL PROCEDURE, the

Defendants are hereby requested to disclose the information or material described in Rule

194.2. This is a continuing duty and requires supplementation in accordance with the

TEXAS RULES OF CIVIL PROCEDURE.

CONDITIONS PRECEDENT

49. All conditions precedent necessary to Plaintiff’s right to recover in this

action have been performed, have occurred, or have been waived.

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PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Defendants

be cited to appear and to answer herein and that, injunctive relief requested herein be

granted, and that upon final hearing, the Court enter judgment in favor of Plaintiff against

Defendants, jointly and severally, in an amount in excess of the minimum jurisdictional

limits of this Court for actual, special, consequential and punitive damages, reasonable

attorneys’ fees, reasonable paralegal fees, costs of court, and pre-and post-judgment

interest at the highest rate allowed by law, and for such other and further relief at law or

in equity, to which the Plaintiff may show himself to be justly entitled.

Respectfully submitted,

FRIEDMAN & FEIGER, L.L.P.

/s/ Jason H. Friedman


by:_____________________________
Lawrence J. Friedman
State Bar No. 07469300
lfriedman@fflawoffice.com
Jason H. Friedman
State Bar No. 24059784
jhfriedman@fflawoffice.com

5301 Spring Valley Road, Suite 200


Dallas, Texas 75254
(972) 788-1400 (Telephone)
(972) 788-2667 (Telecopier)

ATTORNEYS FOR PLAINTIFF

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CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 1.06: RELATED CASES

Plaintiff certifies that no other related action exists that would require transfer
pursuant to Local Rule 1.06.
/s/ Jason H. Friedman
__________________________
Attorney

CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 2.02:


APPLICATION FOR TRO AND OTHER EX PARTE ORDERS

Plaintiff further certifies that irreparable harm is imminent and there is


insufficient time to notify the opposing party or counsel.

/s/ Jason H. Friedman


__________________________
Attorney

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