Complaint For Damages and Jury D

Filed: 11/29/2021 2:47 PM
Clerk
St. Joseph County, Indiana
STATE OF INDIANA ) IN THE ST. JOSEPH SUPERIOR/CIRCUIT COURT

) SS:
COUNTY OF ST. JOSEPH ) CAUSE NO. 71C01-2111-CT-000437
BROOKE KLEVEN and CHRISTOPHER )

KLEVEN Individually and as Parents and Natural )
Guardians of HENDRIK KLEVEN, a Minor, )
JAMES KLEVEN, a Minor, Deceased, and )
NATALIE KLEVEN, a Minor, Deceased, )
)
Plaintiffs, )
)
v. )
)
ST. JOSEPH COUNTY, JEFFREY DOWNEY, )
In His Official Capacity, JENNIFER STITSWORTH, )
In Her Official Capacity, CITY OF MISHAWAKA, )
CLAY TOWNSHIP, GREAT LAKES CAPITAL )
MANAGEMENT, LLC DBA CITY PLAZA, LLC, )
BRADLEY COMPANY, LLC, and )
MOTOROLA SOLUTIONS, INC., )
)
Defendants. )
PLAINTIFFS’ COMPLAINT AT LAW AND JURY DEMAND
NOW COME Plaintiffs BROOKE KLEVEN and CHRISTOPHER KLEVEN, Individually
and as Parents and Natural Guardians of HENDRIK KLEVEN, a Minor, JAMES KLEVEN, a
Minor, Deceased, and NATALIE KLEVEN, a Minor, Deceased, by and through their attorneys,
JOHN M. MOLLOY LAW GROUP, and for their Complaint at Law against Defendants, ST.
JOSEPH COUNTY, a municipal corporation, JEFFREY DOWNEY, in his official capacity,
JENNIFER STITSWORTH, in her official capacity, CITY OF MISHAWAKA, CLAY
TOWNSHIP, GREAT LAKES CAPITAL MANAGEMENT, LLC DBA CITY PLAZA, LLC,
BRADLEY COMPANY, LLC, and MOTOROLA SOLUTIONS, INC., allege and state as
follows:
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JURY DEMAND
1. Plaintiffs hereby demand a trial by jury.
JURISDICTION AND VENUE
2. This action arises under the laws of the State of Indiana and pursuant to the
provisions of 42 U.S.C. §1983 and the Fourteenth Amendment to the United States Constitution.
3. This Court has jurisdiction over all causes of action pled herein.
4. Notices of the tort claims were timely provided pursuant to the requirements of the
Indiana Tort Claims Act. Defendants have not provided written notice of approval or denial of the
claims, and more than ninety (90) days have elapsed; therefore, the claims are considered denied
and are ripe for filing under Ind. Code § 34-13-3-11 and Ind. Code § 34-13-3-13.
5. Defendant ST. JOSEPH COUNTY, Defendant CITY OF MISHAWAKA, and
Defendant CLAY TOWNSHIP have been put on notice of these claims pursuant to Ind. Code §
34-13-3.
6. The claims related to Decedent JAMES KLEVEN (“JAMES”) and Decedent
NATALIE KLEVEN (“NATALIE”) are being brought pursuant to the provisions of Ind. Code §
34-23-2-1 et seq., commonly known as the Child Wrongful Death Act.
PARTIES
7. At all relevant times, Plaintiffs BROOKE KLEVEN and CHRISTOPHER
KLEVEN (“BROOKE” and “CHRISTOPHER” respectively) were married and residents of the
County of St. Joseph, and State of Indiana.
8. At all relevant times, BROOKE and CHRISTOPHER were the parents and natural
guardians of HENDRIK KLEVEN (“HENDRIK”), a minor and resident of the County of St.
Joseph, and State of Indiana.
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guardians of JAMES, a minor, deceased, and resident of the County of St. Joseph, and State of
Indiana.
guardians of NATALIE, a minor, deceased, and resident of the County of St. Joseph, and State of
Indiana.
11. At all relevant times, ST. JOSEPH COUNTY was a municipal corporation and
governmental entity organized under the laws of the State of Indiana.
12. At all relevant times, ST. JOSEPH COUNTY maintained, as a division, a certain
public safety answering point, commonly referred to as the St. Joseph County Public Safety
Communications Consortium (“PSCC”), which was located at 58266 Downey Avenue in the City
of Mishawaka, County of St. Joseph, and State of Indiana.
13. At all relevant times, ST. JOSEPH COUNTY was the employer and principal of
Defendant, JEFFREY DOWNEY (“DOWNEY”), who was a Telecommunicator for the PSCC.
14. At all relevant times, DOWNEY was acting under color of state law, in the course
of his employment with ST. JOSEPH COUNTY, and pursuant to the policies, customs, and/or
usages of ST. JOSEPH COUNTY when he engaged in the conduct alleged within this Complaint
at Law.
15. At all relevant times, ST. JOSEPH COUNTY was the employer and principal of
Defendant, JENNIFER STITSWORTH (“STITSWORTH”), who was a Telecommunicator for the
PSCC.
16. At all relevant times, STITSWORTH was acting under color of state law, in the
course of her employment with ST. JOSEPH COUNTY, and pursuant to the policies, customs,
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and/or usages of ST. JOSEPH COUNTY when she engaged in the conduct alleged within this
Complaint at Law.
17. At all relevant times, CITY OF MISHAWAKA was a municipal corporation and
18. At all relevant times, CLAY TOWNSHIP was a municipal corporation and
19. At all relevant times, Defendant GREAT LAKES CAPITAL MANAGEMENT,
LLC DBA CITY PLAZA, LLC (“GREAT LAKES”) was a foreign limited liability company with
its principal place of business located at 112 W. Jefferson Blvd., Ste. 200 in the City of South
Bend, County of St. Joseph, and State of Indiana.
20. At all relevant times, Defendant BRADLEY COMPANY, LLC (“BRADLEY”)
was a domestic limited liability company with its principal place of business located at 112 W.
Jefferson Blvd., Ste. 300 in the City of South Bend, County of St. Joseph, and State of Indiana.
21. At all relevant times, Defendant MOTOROLA SOLUTIONS, INC.
(“MOTOROLA”) was a foreign for-profit corporation with its principal place of business located
in the State of Illinois, conducting business in several states, including the State of Indiana.
FACTS COMMON TO ALL COUNTS
A. Scene and Surrounding Area
22. At all relevant times, East University Drive was a public road that generally
traveled in an east and west direction in the County of St. Joseph, and State of Indiana.
23. At all relevant times, University Drive Court was a public road that generally
traveled in a north and south direction in the County of St. Joseph, and State of Indiana.
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24. At all relevant times, the intersection of East University Drive and University Drive
Court was located in the City of Mishawaka, County of St. Joseph, and State of Indiana (“Subject
Intersection”).
25. At all relevant times, the Subject Intersection was located near multiple commercial
plazas that encompassed shopping centers, restaurants, retail stores and professional buildings on
both sides of East University Drive, commonly referred to as “City Plaza Complex.”
26. At all relevant times, City Plaza Complex was comprised of multiple City Plazas,
commonly referred to as “City Plaza West,” “City Plaza North,” and “City Plaza South.”
27. At all relevant times, City Plaza West was located at or near the northeast and
northwest corners of the Subject Intersection.
28. At all relevant times, City Plaza South was located at or near the southwest corner
of the Subject Intersection.
29. At all relevant times, there was a retention pond located at or near the southwest
corner of the Subject Intersection that treated and stored stormwater runoff from City Plaza South
(“Subject Pond”).
30. At all relevant times, there was a retention pond located at or near the northwest
corner of the Subject Intersection that treated and stored stormwater runoff from City Plaza West
and City Plaza North (“Nearby Pond”).
31. At all relevant times, the Subject Pond measured approximately eighty (80) feet
long by sixty (60) feet wide.
32. At all relevant times, the Subject Pond was at least eight (8) feet deep at or near its
center.
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33. At all relevant times, the area of City Plaza South located between the Subject
Intersection and the Subject Pond sloped away from the Subject Intersection toward the Subject
Pond.
34. At all relevant times, there were no artificial barriers between the Subject
Intersection and the Subject Pond.
35. At all relevant times, there were no signs at or near the Subject Intersection that
disclosed the depth of the Subject Pond.
36. At all relevant times, there were no signs at or near the Subject Pond that disclosed
the depth of the Subject Pond.
B. Prior Pond Immersions
37. Prior to December 31, 2019, and at all relevant times, there were at least two (2)
other incidents that involved motorists who lost control of their vehicles at or near the Subject
Intersection, which resulted in vehicle immersions in the Subject Pond.
38. Prior to December 31, 2019, and at all relevant times, there was at least one (1)
other incident that involved a motorist who lost control of her vehicle at or near the Subject
Intersection, which resulted in her vehicle’s immersion in the Nearby Pond.
39. Prior to December 31, 2019, and at all relevant times, there were at least eleven
(11) recorded vehicle immersion incidents in St. Joseph County.
C. Weather
40. On December 30, 2019, the weather conditions included rain and snowfall
throughout Mishawaka and the surrounding areas, including at the Subject Intersection.
41. On December 31, 2019, and at all relevant times, the weather conditions were clear
and sunny.
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42. On December 31, 2019, and at all relevant times, the temperature was
approximately 30 (thirty) degrees.
43. On December 31, 2019, and at all relevant times, the temperature of the Subject
Pond was near freezing.
44. On December 31, 2019, and at all relevant times, the roadway surface conditions at
and near the Subject Intersection were icy and slippery.
D. St. Joseph County and the Public Safety Communications Consortium
45. At all relevant times, ST. JOSEPH COUNTY included the governmental
municipalities of CITY OF MISHAWAKA, CLAY TOWNSHIP and the City of South Bend.
46. At all relevant times, ST. JOSEPH COUNTY, CITY OF MISHAWAKA, CLAY
TOWNSHIP and the City of South Bend entered into an Interlocal Agreement that established,
among other things, the PSCC.
47. At all relevant times, ST. JOSEPH COUNTY, CITY OF MISHAWAKA, CLAY
TOWNSHIP and the City of South Bend agreed that the governance and administration of each
public safety answering point in ST. JOSEPH COUNTY would be under the authority of ST.
JOSEPH COUNTY, acting by and through the PSCC.
48. On December 31, 2019, and at all relevant times, ST. JOSEPH COUNTY hired
PSCC personnel including, but not limited to, an Executive Director, a Fire Operations Chief, a
Quality Assurance Manager, Communications Supervisors, Supervising Telecommunicators, and
Telecommunicators.
49. On December 31, 2019, and at all relevant times, ST. JOSEPH COUNTY was
required to maintain a minimum staffing level of fifteen (15) Telecommunicators for each shift,
which did not include the Communications Supervisor.
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50. On December 31, 2019, and at all relevant times, a Telecommunicator could be
assigned to be a Call Taker – the person who receives the 911 Call – or a Dispatcher – the person
who relays the information from the PSCC to the proper department.
51. On December 31, 2019, and at all relevant times, a shift consisted of eight (8) hours.
52. On December 31, 2019, and at all relevant times, there were three (3) types of shifts
at the PSCC: a Day Shift; an Afternoon Shift; and a Night Shift.
53. On December 31, 2019, and at all relevant times, the Afternoon Shift ran from 2:00
PM to 10:00 PM.
54. Prior to and on December 31, 2019, and at all relevant times, the Afternoon Shift
received the highest number of calls of all the shifts.
55. Prior to and on December 31, 2019, and at all relevant times, New Year’s Eve was
one of the busiest days of the year for the PSCC.
56. Prior to December 31, 2019, and at all relevant times, the PSCC would handle 911
calls and respond to incidents related to vehicle immersions and/or sinking vehicles in St. Joseph
County.
57. Prior to December 31, 2019, and at all relevant times, the PSCC mishandled 911
Calls regarding incidents that involved sinking vehicles with occupants.
E. City of Mishawaka Fire Department
58. At all relevant times, CITY OF MISHAWAKA maintained the Mishawaka Fire
Department (“MFD”) as a division.
59. At all relevant times, CITY OF MISHAWAKA maintained a certain fire station
commonly referred to as Station 3, which was located at 333 E. Douglas Road in the City of
Mishawaka, County of St. Joseph, and State of Indiana (“MFD Station 3”).
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60. At all relevant times, CITY OF MISHAWAKA maintained a certain emergency
water rescue unit commonly referred to as Rescue 1 (“MFD Rescue 1”).
61. At all relevant times, MFD Rescue 1 was based in MFD Station 3, and was
comprised of the emergency medical personnel, units, apparatuses and equipment needed to
respond to incidents involving below-surface water rescues.
62. At all relevant times, MFD Station 3 was the only MFD station that had the
personnel, units, equipment and/or apparatuses required to perform a below-surface water rescue.
F. Clay Township Fire Department
63. At all relevant times, CLAY TOWNSHIP maintained as a division a certain fire
department commonly referred to as Clay Township Fire Department (“CFD”).
64. At all relevant times, CLAY TOWNSHIP maintained a certain fire station
commonly referred to as Station 21, which was located at 18776 Cleveland Road in the City of
South Bend, County of St. Joseph, and State of Indiana (“CFD Station 21”).
65. At all relevant times, CFD did not have an emergency water rescue unit based in
any of its CFD stations, including CFD Station 21.
66. At all relevant times, CFD did not have the personnel, units, equipment and/or
apparatuses required to perform a below-surface water rescue.
67. At all relevant times, CFD did not have the authority to perform a below-surface
water rescue.
G. South Bend Fire Department
68. At all relevant times, the City of South Bend maintained as a division a certain fire
department commonly referred to as the South Bend Fire Department (“SBFD”).
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69. At all relevant times, SBFD maintained a certain emergency water rescue unit
commonly referred to as Rescue 1 (“SBFD Rescue 1”).
70. At all relevant times, SBFD Rescue 1 was comprised of emergency medical
personnel, units, apparatuses and equipment necessary to respond to incidents involving below-
surface water rescues.
H. The Subject Incident
71. On December 31, 2019, and at all relevant times, BROOKE was operating a 2015
Toyota Sienna minivan (“Subject Vehicle”) in which HENDRIK, JAMES, and NATALIE were
passengers.
72. On December 31, 2019, and at all relevant times, the Subject Vehicle was traveling
in an eastbound direction on East University Drive toward the Subject Intersection.
73. December 31, 2019, and at approximately 2:40 PM, the Subject Vehicle entered the
Subject Intersection and lost control as result of the icy and slippery roadway conditions.
74. On December 31, 2019, and at all relevant times, the Subject Vehicle left the
roadway at or near the southeast corner of the Subject Intersection.
75. On December 31, 2019, and at all relevant times, the Subject Vehicle slid onto the
area of City Plaza South located between the Subject Intersection and the Subject Pond.
76. On December 31, 2019, and at all relevant times, the Subject Vehicle slid down the
sloped area of City Plaza South located between the Subject Intersection and the Subject Pond.
77. On December 31, 2019, and at all relevant times, the Subject Vehicle slid into the
Subject Pond.
78. On December 31, 2019, and at all relevant times, the Subject Vehicle subsequently
became completely submerged in the Subject Pond.
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79. On December 31, 2019, and at all relevant times, BROOKE, JAMES, NATALIE,
and HENDRIK became entrapped in the Subject Vehicle that was completely submerged in the
near freezing water of the Subject Pond.
80. On December 31, 2019, and at all relevant times, the Subject Incident was under
the jurisdiction of the MFD because of the location of the Subject Intersection and the Subject
Pond.
81. On December 31, 2019, and at all relevant times, the International Academies of
Emergency Dispatch (“IAED”) protocol applicable to the Subject Incident was Protocol 81.
I. Jeffrey Downey and The First 911 Call.
82. On December 31, 2019, and at all relevant times, DOWNEY was a
Telecommunicator at the PSCC.
83. On December 31, 2019, and at all relevant times, DOWNEY was scheduled to work
as a Call Taker at the PSCC during the Afternoon Shift.
84. On December 31, 2019, and at all relevant times, DOWNEY was using a PSCC
work computer for personal purposes prior to the Subject Incident.
85. On December 31, 2019, and at all relevant times, DOWNEY was continuing to use
the PSCC work computer for personal purposes at the time of the Subject Incident.
86. On December 31, 2019, at or about 2:44 PM, a witness observed the Subject Vehicle
enter the Subject Pond and immediately called 911 (“First 911 Call”).
the PSCC work computer for personal purposes at the time the First 911 Call was made.
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the PSCC work computer for personal purposes at the time DOWNEY answered the First 911
Call.
the PSCC work computer for personal purposes at the time the witness who made the First 911
Call began to report the Subject Incident to DOWNEY.
90. On December 31, 2019, and at all relevant times, DOWNEY had not activated the
ProQA software by the time the witness who made the First 911 Call began to report the Subject
Incident to DOWNEY.
91. On December 31, 2019, and at all relevant times, the witness who made the First
911 Call immediately told DOWNEY, “Yeah, I’m at City Plaza in Granger.”
911 Call then told DOWNEY, “There’s a car that was trying to take a corner over by the hotel . .
. they are in the [expletive] pond right now and they are stuck.”
911 Call then told DOWNEY, “University Drive is where they were trying to turn . . . Fir Street is
the next cross street up, but it’s University Drive that they just went off at.”
911 Call then told DOWNEY, “I can see the van still sitting inside the water, but I don’t think
anybody has tried to get out.”
95. On December 31, 2019, and at all relevant times, DOWNEY typed the incident
location as Fir Road and E. University Drive in Granger.
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96. On December 31, 2019, and at all relevant times, DOWNEY typed the incident
type as a Motor Vehicle Collision.
97. On December 31, 2019, and at all relevant times, DOWNEY typed the injuries as
Unknown.
98. On December 31, 2019, and at all relevant times, DOWNEY ended the First 911
Call.
99. On December 31, 2019, and at all relevant times, the First 911 Call lasted
approximately three (3) minutes and fifty (50) seconds.
100. On December 31, 2019, after DOWNEY ended the First 911 Call, DOWNEY
launched the ProQA and then immediately closed it.
101. On December 31, 2019, and at all relevant times, DOWNEY never verified the
address with the witness who made the First 911 Call.
102. On December 31, 2019, and at all relevant times, DOWNEY never requested the
phone number of the witness who made the First 911 Call.
103. On December 31, 2019, and at all relevant times, DOWNEY never attempted to
input “City Plaza” into the PSCC’s System.
104. On December 31, 2019, and at all relevant times, DOWNEY did not use ProQA at
any time during the First 911 Call.
105. On December 31, 2019, and at all relevant times, DOWNEY did not use Protocol
81 at any time during the First 911 Call.
106. On December 31, 2019, and at all relevant times, the PSCC dispatched CFD to Fir
Road and University Drive for a motor vehicle collision with unknown injuries.
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J. Jennifer Stitsworth and The Second 911 Call
107. On December 31, 2019, and at all relevant times, STITSWORTH worked as a
Telecommunicator at the PSCC.
108. On December 31, 2019, and at all relevant times, STITSWORTH was scheduled to
work as a Call Taker at the PSCC for the Afternoon Shift.
109. On December 31, 2019, and at all relevant times, STITSWORTH was using a
PSCC work computer for personal purposes prior to the Subject Incident.
110. On December 31, 2019, and at all relevant times, STITSWORTH was continuing
to use the PSCC work computer for personal purposes at the time of the Subject Incident.
111. On December 31, 2019, at or about 2:44 PM, about one (1) second after the First
911 Call, BROOKE called 911 from inside the Subject Vehicle entrapped in the Subject Pond
(“Second 911 Call”).
112. On December 31, 2019, and at all relevant times, STITSWORTH was still using a
PSCC work computer for personal purposes at the time the Second 911 Call was made.
to use the PSCC work computer for personal purposes at the time she answered the Second 911
Call.
to use the PSCC work computer for personal purposes at the time BROOKE began to report the
Subject Incident to STITSWORTH.
115. On December 31, 2019, and at all relevant times, STITSWORTH had not activated
the ProQA software by the time BROOKE began to report the Subject Incident to STITSWORTH.
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116. On December 31, 2019, and at all relevant times, BROOKE immediately told
STITSWORTH, “Help, I’m stuck inside a pond on University Drive.”
STITSWORTH, “My van is filling up with water by a pond next to Costco by the Red Roof Inn.”
118. December 31, 2019, and at all relevant times, BROOKE immediately told
STITSWORTH that she was unable to get out of the Subject Vehicle.
STITSWORTH, “The water is coming in and I don’t know how to get out.”
120. On December 31, 2019, and at all relevant times, STITSWORTH could not activate
the ProQA program on her own and requested assistance from her colleagues.
121. On December 31, 2019, and at all relevant times, STITSWORTH placed BROOKE
and the Second 911 Call on mute for the first time as she attempted to locate a nearby Costco by
using the online search engine Google.
122. On December 31, 2019, and at all relevant times, STITSWORTH never advised
BROOKE that she was going to place her and the Second 911 Call on mute.
123. On December 31, 2019, and at all relevant times, STITSWORTH continued to mute
BROOKE and the Second 911 Call while she then asked other PSCC staff members how to
correctly spell “Costco” as she attempted to locate a nearby Costco using the online search engine
Google.
BROOKE and the Second 911 Call when she then launched ProQA at or about (1) minute and
thirty-three (33) seconds into the Second 911 Call.
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BROOKE and the Second 911 Call when she asked BROOKE if she could roll down a window.
126. On December 31, 2019, and at all relevant times, STITSWORTH then unmuted
BROOKE and the Second 911 Call, and asked BROOKE if she could roll down a window to exit
the Subject Vehicle.
127. On December 31, 2019, and at all relevant times, BROOKE advised
STITSWORTH that she could not roll down a window because “it doesn’t work.”
128. On December 31, 2019, and at all relevant times, BROOKE then advised
STITSWORTH that she “ha[d] a baby in here,” and “the water is coming in faster.”
129. On December 31, 2019, and at all relevant times, STITSWORTH then told
BROOKE she needed to get out of the Subject Vehicle.
130. On December 31, 2019, and at all relevant times, BROOKE advised
STITSWORTH that she could not get out of the Subject Vehicle because she could not get the
back windows to open, only the front window, and there was too much water in the Subject
Vehicle.
131. On December 31, 2019, and at all relevant times, STITSWORTH then placed
BROOKE and the Second 911 Call on mute again at or about two (2) minutes and sixteen (16)
seconds into the Second 911 Call.
132. On December 31, 2019, and at all relevant times, STITSWORTH never advised
BROOKE that she was going to place her and the Second 911 Call on mute.
BROOKE and the Second 911 Call while BROOKE requested that STITSWORTH provide her
instructions on how to exit the Subject Vehicle.
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BROOKE and the Second 911 Call while BROOKE asked STITSWORTH to send help to the
Subject Pond.
BROOKE and the Second 911 Call for the remainder of the Second 911 Call, an additional three
(3) minutes and thirty (30) seconds before the Second 911 Call was lost.
136. On December 31, 2019, and at all relevant times, the Second 911 Call lasted
approximately five (5) minutes and forty-five (45) seconds.
and HENDRIK can be heard screaming while entrapped in the Subject Vehicle.
138. On December 31, 2019, and at all relevant times, STITSWORTH induced
BROOKE, JAMES, NATALIE, and HENDRIK to rely on her services and assurances to render
emergency assistance.
and HENDRIK relied on the services and assurances offered by STITSWORTH to render
emergency assistance.
140. On December 31, 2019, and at all relevant times, STITSWORTH did not use
ProQA at any time during the Second 911 Call.
141. On December 31, 2019, and at all relevant times, STITSWORTH did not use
Protocol 81 at any time during the Second 911 Call.
K. Computer-Aided Dispatch System, Dispatch Software and Protocols
142. On December 31, 2019, and at all relevant times, the PSCC utilized a Computer-
Aided Dispatch (“CAD”) system that – among other things – prioritized and recorded incident
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calls, identified the location of incidents and dispatched the multiple departments to jurisdictions
located throughout ST. JOSEPH COUNTY.
143. On December 31, 2019, all relevant times, the PSCC utilized the MOTOROLA
CAD system called the PremierOne System (“P1 System”).
144. On December 31, 2019, and all relevant times, the PSCC used a dispatch software
program called ProQA, which assists the Call Taker in relaying and collecting information to/from
the 911 Caller and/or the responding department.
145. On December 31, 2019, and at all relevant times, the PSCC integrated the IAED
protocols, which included the scripted questions to be used by a Call Taker to identify the 911
Caller’s chief complaint and incident.
146. On December 31, 2019, and at all relevant times, the PSCC integrated the IAED
protocols with the P1 System, which included Protocol 81.
147. On December 31, 2019, and at all relevant times, Protocol 81 was the protocol
Telecommunicators were required to use for 911 Calls involving sinking vehicles that contained
the key questions and instructions the Call Taker was to provide the 911 Caller.
L. Training
148. On December 18, 2017, and at all relevant times, ST. JOSEPH COUNTY selected
Raymond Schultz (“Schultz”) to be the Executive Director of the PSCC.
149. Over the next several months, at all relevant times, and after selecting Schultz, ST.
JOSEPH COUNTY continued to experience problems with multiple aspects of the PSCC, which
included, but were not limited to, the Geographical Information System (“GIS”), call-taking, and
dispatching.
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150. Over the next several months, and at all relevant times, ST. JOSEPH COUNTY
received voluminous complaints about 911 calls not being properly handled at the PSCC.
received complaints about the wrong departments being dispatched to incidents.
received complaints about departments being dispatched to the wrong locations.
153. During the aforementioned time period, and at all relevant times, Schultz publicly
blamed the CAD System and its manufacturer for the problems experienced at the PSCC.
154. During the aforementioned time period, and at all relevant times, the CAD System
manufacturer indicated the PSCC problems were related to – among other things – ST. JOSEPH
COUNTY’s GIS and the obstacles created by Schultz.
155. Prior to January of 2019, and at all relevant times, ST. JOSEPH COUNTY
terminated the agreement with the CAD System manufacturer.
156. On or about January of 2019, and at all relevant times, ST. JOSEPH COUNTY and
MOTOROLA entered into an agreement regarding the full implementation of a new CAD System,
the P1 System.
157. During the aforementioned time period, and at all relevant times, Schultz indicated
that it would take ST. JOSEPH COUNTY at least one (1) year to properly train the PSCC personnel
on how to use the P1 System.
158. During the aforementioned time period, and at all relevant times, MOTOROLA
indicated that it would take at least one (1) year to replace the former CAD system and implement
the P1 System.
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159. During the aforementioned time period, and at all relevant times, ST. JOSEPH
COUNTY announced that the “Go-Live Date” for the P1 System was March 1, 2020.
160. On February 5, 2019, and at all relevant times, ST. JOSEPH COUNTY publicly
announced the agreement between ST. JOSEPH COUNTY and MOTOROLA regarding the full
implementation of the P1 System.
COUNTY and MOTOROLA discussed a range of topics for the upcoming “Kick-Off Meeting”
for the P1 System implementation project (“P1 System Project”).
COUNTY advised MOTOROLA of the ST. JOSEPH COUNTY and PSCC representatives who
would be on the Project Team that was to assist in training the PSCC personnel on how to use the
P1 System.
163. On February 6, 2019, and at all relevant times, ST. JOSEPH COUNTY and
MOTOROLA had the “Kick-Off Meeting” for the P1 System Project.
164. On February 9, 2019, and at all relevant times, MOTOROLA signed the written
agreement between ST. JOSEPH COUNTY and MOTOROLA regarding the implementation of
the P1 System, which included, but was not limited to, provisioning the P1 System, testing the P1
System, and training the PSCC personnel on how to use the P1 System.
COUNTY decided to move forward the “Go-Live Date” for the P1 System from March 1, 2020,
to November 12, 2019.
COUNTY continued to experience the same issues at the PSCC.
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167. During the aforementioned period, and at all relevant times, ST. JOSEPH
COUNTY and MOTOROLA discussed the ongoing issues related to the 911 Dispatch Recording
System not properly syncing.
COUNTY and MOTOROLA discussed the ongoing issues related to the ProQA software
COUNTY and MOTOROLA discussed the ongoing issues related to the Records Management
System (“RMS”) software.
COUNTY and MOTOROLA discussed the ongoing issues related to the GIS software.
COUNTY and MOTOROLA discussed the ongoing issues related to the Premises Hazard Records.
COUNTY and MOTOROLA discussed issues with scheduling and completing the necessary P1
System training, which included, but was not limited to, Train-the-Trainer (“TTT”) training and
P1 System End User training.
COUNTY continued to publicly claim that full implementation of the P1 System and training of
PSCC personnel was ahead of schedule.
174. As of June 1, 2019, and at all relevant times, ST. JOSEPH COUNTY had not
scheduled any P1 System training for PSCC personnel.
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175. On September 18, 2019, and at all relevant times, Schultz advised MOTOROLA
that formatting and importing certain data “is hit and miss and we are not getting any stations. I
honestly don’t know where we are on the station data.”
176. On September 18, 2019, and at all relevant times, MOTOROLA advised ST.
JOSEPH COUNTY that P1 System data is pulled from the GIS and may not be available when
GIS address geo-verification is deliberately bypassed by the user.
177. On September 23, 2019, and at all relevant times, ST. JOSEPH COUNTY and
MOTOROLA requested a certain department wait until after the “Go-Live Date” to address the
issue of the P1 System not announcing assigned units dispatched to an incident because it involved
a “considerable amount of work.”
COUNTY and MOTOROLA had not fully installed, tested and/or validated the P1 System on the
PSCC workstations or mobile devices.
COUNTY and MOTOROLA had not fully installed, tested and/or validated the P1 System on the
departments’ workstations or mobile devices.
180. During the aforementioned period, and at all relevant times, a ST. JOSEPH
COUNTY department official described the completion of the outstanding P1 System issues as a
“huge undertaking.”
181. On October 10, 2019, and at all relevant times, ST. JOSEPH COUNTY,
MOTOROLA and department representatives attended the PSCC Operations Board Meeting. The
board members discussed the ongoing problems associated with installing, testing and validating
22
the P1 System interfaces and software, training delays, and the general communication issues
between ST. JOSEPH COUNTY, MOTOROLA and the departments.
182. During the aforementioned period, and at all relevant times, Schultz told the other
board members that he understood there were “a lot of known issues and cause for concern” based
on what occurred during the implementation of the Former CAD System in 2017.
183. During the aforementioned period, and at all relevant times, Schultz advised the
other board members that he planned to use the failures of 2017 “as lessons learned to prevent that
now.”
184. During the aforementioned period, and at all relevant times, Schultz acknowledged
to the board members that ST. JOSEPH COUNTY and MOTOROLA did not know if the P1
System was fully importing all the data to the departments.
other board members that ST. JOSEPH COUNTY and MOTOROLA assumed there were no
importing issues because he received “zero feedback” from certain departments.
other board members that if “it’s a train wreck” on November 1, 2019, then “we don’t go live.”
187. During the aforementioned period, and at all relevant times, a board member and
department representative stated that ST. JOSEPH COUNTY and MOTOROLA were “being way
too optimistic” about resolving all ongoing problems with the P1 System before the “Go-Live
Date” of November 12, 2019.
department representative informed ST. JOSEPH COUNTY that a certain department was unable
to access the P1 System.
23
department representative stated that ST. JOSEPH COUNTY and MOTOROLA’s plan for training
department personnel on how to operate the P1 System was “ridiculous.”
department representative advised ST. JOSEPH COUNTY and MOTOROLA that he was
concerned about the P1 System and “he would rather have it right than rushed.”
department representative advised ST. JOSEPH COUNTY and MOTOROLA that “those of us
who listen to Marion County lessons learned, they said they wished they had more time before
going live.”
department representative advised ST. JOSEPH COUNTY and MOTOROLA that if “we aren’t
ready we just can’t say well it’s not our fault they weren’t ready. Someone has to be responsible
for everyone being ready.”
other board members that ST. JOSEPH COUNTY and MOTOROLA did not know what “not
ready looks like” from the department side.
other board members that ST. JOSEPH COUNTY and MOTOROLA could not decide for the
departments whether or not P1 System training was complete for their respective staffs.
other board members that ST. JOSEPH COUNTY and MOTOROLA could not decide for the
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departments whether their respective RMS’s would be ready by the “Go-Live Date” of November
12, 2019.
board members that if ST. JOSEPH COUNTY, MOTOROLA and the departments were not ready
by the “Go-Live Date,” then ST. JOSEPH COUNTY and MOTOROLA would change the “Go-
Live Date” back to the original date in March of 2020.
COUNTY and MOTOROLA advised the board members that the decision to move forward with
the planned “Go-Live Date” needed to be made by November 1, 2019.
198. During the aforementioned period, and at all relevant times, Schultz promised the
board members that ST. JOSEPH COUNTY and MOTOROLA would correct all the “minor
issues” by the end of the week.
COUNTY and MOTOROLA assured the board members and departments that all of the PSCC
staff and department personnel would be trained on how to properly use the P1 System before the
“Go-Live Date” of November 12, 2019.
COUNTY, MOTOROLA and the departments scheduled the next Operations Board Meeting for
October 31, 2019, at which time ST. JOSEPH COUNTY, MOTOROLA and the departments
would report the status of their readiness and discuss whether to push back the “Go-Live Date”
from November 12, 2019, to March of 2020.
201. On October 15, 2019, and at all relevant times, the ongoing problems involving the
P1 System and the PSCC staff’s training remained unresolved when ST. JOSEPH COUNTY and
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MOTOROLA created an order form for the P1 Project Team to purchase T-shirts displaying the
“Go-Live Date” as November 12, 2019.
202. On October 17, 2019, and at all relevant times, the ongoing problems involving the
P1 System and the PSCC staff’s training remained unresolved when ST. JOSEPH COUNTY and
MOTOROLA began planning a “VIP Night” during the week of November 4, 2019, that “would
be a stakeholder event geared for the councils/elected officials.”
203. On October 18, 2019, and at all relevant times, ST. JOSEPH COUNTY and
MOTOROLA scheduled the lockdown of the P1 System to occur during the week leading up to
the “Go-Live Date” of November 12, 2019.
COUNTY and MOTOROLA decided to “officially document” the Change Orders for the ongoing
problems with P1 System interfaces and software that could not be deployed by the “Go-Live
Date” of November 12, 2019.
COUNTY and MOTOROLA continued to experience problems with the P1 System and the PSCC
staff being unable to verify addresses of incidents.
COUNTY and MOTOROLA discussed how the P1 System “numbers don’t look good” for the
mobile devices being ready by the “Go-Live Date” of November 12, 2019.
207. On October 29, 2019, and at all relevant times, Schultz requested that a P1 System
software vendor provide a list of common names currently recorded because the ST. JOSEPH
COUNTY Department of GIS had “made major changes that I literally just found out L” and
Schultz was “chasing [his] tail at the moment.”
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208. On October 31, 2019, and at all relevant times, ST. JOSEPH COUNTY,
MOTOROLA and department representatives attended the PSCC Operations Board Meeting. The
board members discussed the status of the ongoing problems associated with installing, testing and
validating the P1 System interfaces and software, training delays and the general communication
issues between ST. JOSEPH COUNTY, MOTOROLA and the departments.
COUNTY and MOTOROLA recommended proceeding with the “Go-Live Date” of November
12, 2019, despite the unresolved problems with the P1 System and training the PSCC staff.
210. On November 5, 2019, and at all relevant times, ST. JOSEPH COUNTY and
MOTOROLA discussed the current open, unresolved issues with the P1 System and training the
PSCC staff.
COUNTY and MOTOROLA had “several lengthy conversations” with fire department
representatives about the ongoing problems and “confusion” regarding how the PSCC staff was
inputting data into the P1 System which was creating discrepancies between the Incident Number
and the Report Numbers sent to the responding departments.
COUNTY and MOTOROLA discussed how this ongoing problem was further complicated by the
PSCC staff manually entering the Incident Number and Report Number values.
213. During the aforementioned period, and at all relevant times, a MOTOROLA
representative advised ST. JOSEPH COUNTY and MOTOROLA to “discontinue this practice”
because there was a “misunderstanding of the data being sent.”
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214. During the aforementioned period, and at all relevant times, a MOTOROLA
representative advised ST. JOSEPH COUNTY and MOTOROLA that “fundamental and sweeping
changes” needed to be made to provisioning, dispatch, workflow, and management.
215. On November 12, 2019, and at all relevant times, ST. JOSEPH COUNTY and
MOTOROLA proceeded with the “Go-Live Date,” and publicly announced that the P1 System
had been fully implemented.
216. On December 2, 2019, and at all relevant times, ST. JOSEPH COUNTY and
MOTOROLA could not explain what caused a reporting and dispatching error involving MFD on
November 21, 2019.
MOTOROLA had not set up a “support process” for the PSCC staff and department personnel.
COUNTY and MOTOROLA had not set up a “ticketing system” for the PSCC staff and
department personnel to report problems with the P1 System.
COUNTY and the PSCC staff did not know how to “open a ticket” to report problems with the P1
System.
MOTOROLA attended a meeting and discussed the ongoing problems involving the P1 System
and the training of the PSCC staff.
MOTOROLA were still in the process of diagnosing ongoing problems when they agreed to “start
fresh after the holidays” with the support meetings.
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MOTOROLA attended a conference call to discuss the ongoing problems involving the P1 System
and the training of the PSCC staff.
223. On December 30, 2019, and at all relevant times, ST. JOSEPH COUNTY and the
PSCC staff continued to have issues understanding and navigating the ProQA software, which
included the PSCC staff’s inability to “grab focus” from the P1 System and send the call for
dispatch.
224. On December 31, 2019, and at all relevant times, and prior to the Subject Incident,
ST. JOSEPH COUNTY advised MOTOROLA of the issue involving the PSCC staff’s inability to
properly perform a focus shift from the P1 System interface to the ProQA interface.
225. From January of 2019 through March of 2019, and at all relevant times, ST.
JOSEPH COUNTY scheduled online CDE training and tests for PSCC personnel whose
responsibilities included Emergency Fire Dispatch and Emergency Medical Dispatch.
COUNTY did not offer any in-person dispatch training or tests for PSCC personnel.
227. During the aforementioned time period, and at all relevant times, the PSCC Fire
Operations Chief failed to complete mandatory CDE training courses and/or tests.
228. During the aforementioned time period, and at all relevant times, multiple
Supervising Telecommunicators, including, but not limited to, the supervisors for DOWNEY and
STITSWORTH, failed to complete mandatory CDE training courses and/or tests.
Telecommunicators failed to take mandatory CDE training courses and/or tests.
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230. During the aforementioned time period, and at all relevant times, multiple PSCC
Staff Supervising Telecommunicators and Telecommunicators who initially failed the CDE tests
were allowed to re-take the test within minutes after failing each test until they eventually passed.
COUNTY failed to reprimand and/or discipline any PSCC personnel arising from their failure to
complete any mandatory CDE training and/or tests.
232. From April of 2019 through June of 2019, and at all relevant times, ST. JOSEPH
COUNTY scheduled in-person dispatch training on ECHO Fast Track in a classroom setting for
PSCC personnel.
233. During the aforementioned time period, and at all relevant times, ECHO Fast Track
was a procedure that allowed a Telecommunicator to quickly navigate the protocols and process
the information gathered from a 911 Caller to effectively dispatch the appropriate departments
and/or units to an incident.
COUNTY required PSCC personnel to attend the mandatory in-person dispatch training on ECHO
Fast Track at the PSCC Training Lab.
COUNTY required that a PSCC training instructor be present at any mandatory in-person dispatch
training on ECHO Fast Track at the PSCC Training Lab.
COUNTY required PSCC personnel to print, date, and sign an attendance sheet for the mandatory
in-person dispatch training on ECHO Fast Track at the PSCC Training Lab.
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COUNTY required PSCC personnel to complete the mandatory in-person dispatch training on
ECHO Fast Track at the PSCC Training Lab before July 1, 2019.
238. During the aforementioned time period, and at all relevant times, PSCC personnel
filled out the attendance sheets for other PSCC personnel.
239. During the aforementioned time period, and at all relevant times, DOWNEY never
attended the mandatory in-person dispatch training on ECHO Fast Track at the PSCC Training
Lab.
printed, dated or signed the attendance sheet for the mandatory in-person dispatch training on
ECHO Fast Track at the PSCC Training Lab.
241. During the aforementioned time period, and at all relevant times, DOWNEY failed
the test on ECHO Fast Track.
242. During the aforementioned time period, and at all relevant times, DOWNEY then
took a second test on ECHO Fast Track less than five (5) minutes after he failed the first test and
failed a second time.
243. During the aforementioned time period, and at all relevant times, DOWNEY took
a third test on ECHO Fast Track less than three (3) minutes after he failed the second test and
finally passed.
Operations Chief failed the test on ECHO Fast Track.
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245. During the aforementioned time period, and at all relevant times, a PSCC
Supervising Telecommunicator for DOWNEY and STITSWORTH failed the test on ECHO Fast
Track.
246. During the aforementioned time period, and at all relevant times, the same PSCC
Supervising Telecommunicator for DOWNEY and STITSWORTH then took a second test on
ECHO Fast Track less than three (3) minutes after he failed the first test before he finally passed.
Telecommunicators failed to attend the mandatory in-person ECHO Fast Track training at the
PSCC Training Lab.
248. During the aforementioned time period, and at all relevant times, a senior
Telecommunicator assigned to the P1 System Project Team did not take the ECHO Fast Track test
until December 26, 2019 – after the “Go Live Date.”
COUNTY failed to reprimand and/or discipline any PSCC personnel for their failure to complete
the mandatory in-person dispatch training on ECHO Fast Track at the PSCC Training Lab.
250. From June 9, 2019 through June 12, 2019, and at all relevant times, ST. JOSEPH
COUNTY hosted the first round of mandatory in-person P1 System training at the PSCC Training
Room.
COUNTY was required to use MOTOROLA’s attendance log form for the mandatory in-person
P1 System training at the PSCC Training Room.
252. During the aforementioned time period, and at all relevant times, each PSCC
employee attending the mandatory in-person P1 System training at the PSCC Training Room was
32
required to print his or her own name, disclose his or her own responsibility, disclose his or her
own email address and write his or her own initials on MOTOROLA’s attendance log form.
253. During the aforementioned time period, and at all relevant times, the mandatory in-
person P1 System training at the PSCC Training Room had a maximum attendee limit of ten (10)
PSCC personnel.
COUNTY and the PSCC Staff allowed at least twelve (12) PSCC Staff members to attend the
mandatory in-person P1 System training at the PSCC Training Room.
COUNTY and PSCC personnel filled out the attendance sheets for other PSCC personnel.
256. During the aforementioned time period, and at all relevant times, DOWNEY did
not attend the mandatory in-person P1 System training at the PSCC Training Room.
257. During the aforementioned time period, and at all relevant times, STITSWORTH
did not attend the mandatory in-person P1 System training at the PSCC Training Room.
attend the first round of mandatory in-person P1 System training at the PSCC Training Room.
259. From July 30, 2019 through August 2, 2019, and at all relevant times, ST. JOSEPH
COUNTY hosted a second round of mandatory in-person P1 System training at the PSCC Training
Room.
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262. During the aforementioned time period, and at all relevant times, the mandatory in-
person P1 System training at the PSCC Training Room had a maximum attendee limit of ten (10)
PSCC personnel.
COUNTY allowed at least twelve (12) PSCC personnel to attend the mandatory in-person P1
System training at the PSCC Training Room.
attend the second round of mandatory in-person P1 System training at the PSCC Training Room.
267. From August 20, 2019 through August 23, 2019, and at all relevant times, ST.
JOSEPH COUNTY hosted a third round of mandatory in-person P1 System training at the PSCC
Training Room.
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attend the third round of mandatory in-person P1 System training at the PSCC Training Room.
274. From August 20, 2019 through August 23, 2019, and at all relevant times, ST.
JOSEPH COUNTY hosted a fourth round of mandatory in-person P1 System training at the PSCC
Training Room.
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attend the fourth round of mandatory in-person P1 System training at the PSCC Training Room.
281. In August of 2019, and at all relevant times, ST. JOSEPH COUNTY sent the PSCC
personnel a memo about the mandatory August 2019 online emergency fire dispatch training and
multiple-choice test.
were required to print their own names, sign their own signatures and date an attendance sheet for
the mandatory August 2019 online emergency fire dispatch training.
COUNTY created the format of the mandatory August 2019 online emergency fire dispatch
training and the multiple-choice test.
284. During the aforementioned time period, and at all relevant times, the mandatory
August 2019 online emergency fire dispatch training and test subjects included, but were not
limited to, ProQA software, emergency fire dispatch protocols, emergency medical dispatch
protocols and inputting the chief complaints.
36
COUNTY did not have anyone monitoring the PSCC personnel during the mandatory August 2019
online emergency fire dispatch training to ensure it was done properly.
COUNTY did not have anyone monitoring the PSCC personnel during the mandatory August 2019
online emergency fire dispatch multiple-choice test to ensure it was done properly.
COUNTY advised the PSCC personnel in the same memo that they “only have 3 tries to do the
test so please make sure you are paying attention to all the possible answers to the questions!”
COUNTY advised the PSCC personnel in the same memo about “several” recent dispatch mistakes
and that the mandatory August 2019 emergency dispatch training and test will “help cut down on
the confusion.”
COUNTY advised the PSCC personnel in the same memo that everyone was required to sign
his/her own names on the attendance sheet.
August 2019 multiple-choice test created by ST. JOSEPH COUNTY was less than twenty (20)
questions.
August 2019 test created by ST. JOSEPH COUNTY included such questions as “Name this hair
band of the 1980s,” “Favorite Disney Characters,” and “There’s No Crying in . . .”
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August 2019 multiple-choice test created by ST. JOSEPH COUNTY featured non-sensical choices
designed to ensure the PSCC personnel would select the correct answer.
293. During the aforementioned time period, and at all relevant times, the options to the
multiple-choice test question, “Sinking Vehicles are considered…” were “Problematic,”
“Submerged,” “Occupied,” and “Sinking – DUH.”
Operations Chief did not timely complete the mandatory August 2019 online emergency fire
dispatch training and/or multiple-choice test.
295. During the aforementioned time period, and at all relevant times, several PSCC
Supervising Telecommunicators for DOWNEY and STITSWORTH did not timely complete the
mandatory August 2019 online emergency fire dispatch training and/or multiple-choice test.
296. During the aforementioned time period, and at all relevant times, a senior PSCC
Telecommunicator assigned to the P1 System Project Team failed the mandatory August 2019
online emergency fire dispatch multiple-choice test.
297. During the aforementioned time period, and at all relevant times, the same senior
PSCC Telecommunicator assigned to the P1 System Project Team then took a second test about
six (6) minutes after he failed the first time and failed again.
298. During the aforementioned time period, and at all relevant times, the same senior
PSCC Telecommunicator assigned to the P1 System Project Team then took a third test about six
(6) minutes after he failed the second time and finally passed.
38
filled out the attendance sheet for other PSCC personnel for the August 2019 online emergency
fire dispatch training.
participated in the mandatory August 2019 online emergency fire dispatch training.
took the mandatory August 2019 online emergency fire dispatch multiple-choice test.
never participated in the mandatory August 2019 online emergency fire dispatch training.
never took the mandatory August 2019 online emergency fire dispatch multiple-choice test.
304. In September of 2019, and at all relevant times, ST. JOSEPH COUNTY sent PSCC
personnel a memo about the mandatory September 2019 online emergency medical dispatch
training and multiple-choice test.
COUNTY advised PSCC personnel that everyone was required to print his/her own names, sign
his/her own signatures, and date an attendance sheet for the mandatory September 2019 online
emergency medical dispatch training.
COUNTY created the format of the September 2019 online emergency medical dispatch training
and the multiple-choice test.
September 2019 online emergency medical dispatch training and tests covered subjects that
39
included, but were not limited to, navigating the ProQA software, understanding emergency
dispatch protocols, assigning proper departments and units to an incident, and importing the proper
information.
COUNTY did not have anyone monitoring the PSCC personnel during the September 2019 online
emergency medical dispatch training to ensure it was done properly.
COUNTY did not have anyone monitoring the PSCC personnel during the September 2019 online
emergency medical dispatch multiple-choice test to ensure it was done properly.
COUNTY advised the PSCC personnel in a September 2019 memo to “[m]ake sure to log in as
yourself so it can be tracked and make sure to put TEST in the call and in ProQA.”
COUNTY advised the PSCC personnel in the same memo, “When you complete them have your
supervisors look at them so that they can check you off for completing them.”
312. During the aforementioned time period, and at all relevant times, the September
2019 multiple-choice test created by ST. JOSEPH COUNTY was less than fifteen (15) questions.
2019 test created by ST. JOSEPH COUNTY included such questions as “Best Wedding Reception
Dance,” “Who is your favorite boy band,” and “Who is [PSCC Staff Member] in love with?”
2019 multiple-choice test created by ST. JOSEPH COUNTY featured non-sensical choices
designed to ensure the PSCC personnel would select the correct answer.
40
315. During the aforementioned time period, and at all relevant times, the options to the
September 2019 multiple-choice test question, “What is the best position for a person having an
allergic reaction with difficulty breathing?” were “Standing,” “Lying Down,” “Sitting,” and
“Hokie Pokie.”
Operations Chief did not timely complete the mandatory September 2019 online emergency
medical dispatch training and/or multiple-choice test.
317. During the aforementioned time period, and at all relevant times, several
Supervising Telecommunicators for DOWNEY and STITSWORTH did not timely complete the
mandatory September 2019 online emergency medical dispatch training and/or multiple-choice
test.
318. During the aforementioned time period, and at all relevant times, several senior
PSCC personnel assigned to the P1 System Project Team did not timely complete the mandatory
September 2019 online emergency medical dispatch training and/or multiple-choice test.
319. During the aforementioned time period, and at all relevant times, multiple PSCC
personnel failed their respective mandatory September 2019 online emergency medical dispatch
tests more than (4) times in less than a fifteen (15) minute time span.
participated in the mandatory September 2019 online emergency medical dispatch training.
41
not timely pass the mandatory September 2019 online emergency medical dispatch multiple-
choice test.
never participated in the mandatory September 2019 online emergency medical dispatch training.
never took the mandatory September 2019 online emergency medical dispatch multiple-choice
test.
325. From September 12, 2019 through September 20, 2019, and at all relevant times,
ST. JOSEPH COUNTY was required to host a fifth round of mandatory in-person P1 System
training at the PSCC Training Room.
COUNTY failed to host any mandatory in-person P1 System training at the PSCC Training Lab
in September of 2019.
327. PSCC personnel failed to attend any mandatory in-person P1 System training at the
PSCC Training Lab in September of 2019.
328. In October of 2019, and at all relevant times, ST. JOSEPH COUNTY sent PSCC
personnel a memo about the mandatory October 2019 CAD Scenario Training for the P1 System.
COUNTY was required to use MOTOROLA’s attendance log form for the mandatory October
2019 in-person P1 System training at the PSCC Training Room.
attending the October 2019 mandatory in-person P1 System training at the PSCC Training Room
42
were required to print their own names, disclose their own responsibilities, disclose their own
email addresses and write their own initials on MOTOROLA’s attendance log form.
COUNTY advised the PSCC personnel in an October 2019 memo to “sign next to your name on
the sign-in sheet.”
COUNTY advised the PSCC Staff in the same memo that, “We will be logging in to make sure
that everyone has completed training.”
COUNTY advised PSCC personnel in the same memo to “make sure you are assigning units to
the calls where they apply. Use recommendations or put your own units on the call. Please play
around with it so you get used to it. If you find errors with units, addresses, etc. please email [P1
System Project Team Member] so he can get it resolved before go live!”
COUNTY advised PSCC personnel in the same memo, “I know everyone is so very sad but this
will also be our last training of the year. We will not have any training in November and December
to focus on CAD and the holidays with our families! Training will start again at the beginning of
2020! However, please use this time to get caught up on anything outstanding in PowerDMS and
to continue to refresh on all the updates that just came out.”
43
337. During the aforementioned time period, and at all relevant times, none of the PSCC
personnel, including, but not limited to, DOWNEY or STITSWORTH, attended the mandatory
October 2019 in-person P1 System training at the PSCC Training Room.
338. During the aforementioned time period, and at all relevant times, none of the PSCC
personnel, including, but not limited to, DOWNEY or STITSWORTH, took any tests on
emergency fire dispatch, emergency medical dispatch, and/or the P1 System in October of 2019.
339. From November 1, 2019 through January 1, 2020, and at all relevant times, ST.
JOSEPH COUNTY did not offer PSCC personnel, including, but not limited to, DOWNEY or
STITSWORTH, any training on emergency fire dispatch, emergency medical dispatch, and/or the
P1 System.
COUNTY did not offer PSCC personnel, including, but not limited to, DOWNEY or
STITSWORTH, any tests on emergency fire dispatch, emergency medical dispatch, and/or the P1
System.
M. Quality Assurance Managers and Incident Performance Reports
341. Prior to December 31, 2019, and at all relevant times, ST. JOSEPH COUNTY used
a quality assurance software program that utilized Incident Performance Reports (“IPRs”) to
evaluate the quality of service provided by the Telecommunicators and monitor the level of
compliance with dispatch protocols and standards.
342. Prior to December 31, 2019, and at all relevant times, the Quality Assurance
Manager assigned by ST. JOSEPH COUNTY to evaluate each Telecommunicator’s performance
would vary for each 911 Call received by that Telecommunicator.
44
343. Prior to December 31, 2019, and at all relevant times, ST. JOSEPH COUNTY’s
Quality Assurance Managers repeatedly failed to grade the performance of the
Telecommunicators, which included the performances of DOWNEY and STITSWORTH.
344. Prior to December 31, 2019, and at all relevant times, ST. JOSEPH COUNTY’s
Quality Assurance Managers repeatedly noted the performances of the Telecommunicators were
“Non-Compliant,” which included the performances of DOWNEY and STITSWORTH.
Managers inconsistently scored the performances of the Telecommunicators, which included the
performances of DOWNEY and STITSWORTH.
Managers improperly noted the performances of the Telecommunicators as “Compliant” despite
numerous and significant mistakes being made, which included the performances of DOWNEY
and STITSWORTH.
Managers mispresented the performance scores of the Telecommunicators as “Compliant,” which
included the performances of DOWNEY and STITSWORTH.
N. Downey Incident Performance Reports Prior to the Subject Incident
348. Prior to December 31, 2019, and at all relevant times, IPRs noted DOWNEY
repeatedly failed to input the correct addresses of incidents during 911 Calls.
repeatedly failed to use the proper IAED protocols during 911 Calls.
repeatedly failed to enter the proper Chief Complaints during 911 Calls.
45
351. Prior to December 31, 2019, and at all relevant times, IPRs noted DOWNEY failed
to properly launch ProQA during a 911 Call.
352. Prior to December 31, 2019, and at all relevant times, IPRs noted DOWNEY failed
to properly launch ECHO Fast Track during a 911 Call.
O. Stitsworth Incident Performance Reports Prior to the Subject Incident
353. Prior to December 31, 2019, and at all relevant times, IPRs noted STITSWORTH
repeatedly and improperly muted callers during 911 Calls.
repeatedly had “long silent gaps” during 911 Calls.
repeatedly failed to provide reassurance that help was on the way during 911 Calls.
repeatedly failed to use the proper IAED protocols during 911 Calls.
repeatedly failed to enter the proper Chief Complaints during 911 Calls.
failed to properly launch ProQA during a 911 Call.
failed to properly launch ECHO Fast Track during a 911 Call.
P. PSCC Staffing on the Date of the Subject Incident
360. On December 31, 2019, and at all relevant times, the Subject Incident occurred at
approximately 2:44 PM., which would be the Afternoon Shift at the PSCC.
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361. On December 31, 2019, and at all relevant times, ST. JOSEPH COUNTY did not
schedule the minimum staffing level for Telecommunicators at the PSCC required to work the
Afternoon Shift.
schedule the minimum staffing level of Call Takers at the PSCC required to work the Afternoon
Shift.
schedule the minimum staffing level of Communication Supervisors at the PSCC required to work
the Afternoon Shift.
have any supervisory or executive level PSCC personnel scheduled to work the Afternoon Shift.
have any PSCC personnel trained on Protocol 81 scheduled to work the Afternoon Shift.
have any PSCC personnel trained on how to use the ProQA software scheduled to work the
Afternoon Shift
have any PSCC personnel trained on how to dispatch the SBFD Dive Team scheduled to work the
Afternoon Shift.
Q. The Terminations of Downey and Stitsworth
368. On January 8, 2020, and at all relevant times, DOWNEY attended a Fact-Finding
Meeting where he told Schultz and other PSCC executive members that he bypassed the ProQA
47
software and instead processed and reported the First 911 Call based on the training he received
with the Former CAD System.
369. On January 20, 2020, and at all relevant times, DOWNEY sent ST. JOSEPH
COUNTY a resignation email and indicated that he could “no longer serve an organization that
has grossly neglected training and mistreated employees the way that they have over the last 2
years.”
370. On January 20, 2020, and at all relevant times, DOWNEY’s email to ST. JOSEPH
COUNTY further stated, “[T]he corruption, lack of accountability, abuse of power, failure to
follow [the Union Bargaining Agreement] and lies” have caused him to resign. DOWNEY
concluded his correspondence by stating the ST. JOSEPH COUNTY and PSCC “leaders are not
interested in better[ing] our agency, only protecting themselves.”
371. On January 20, 2020, and at all relevant times, STITSWORTH attended a Fact-
Finding Meeting where she told Schultz and other PSCC executive members that she was trained
to place the 911 Caller on mute while verifying an address using the ProQA software.
372. On January 20, 2020, and at all relevant times, STITSWORTH admitted she still
had BROOKE on mute when she eventually gave the instructions pursuant to ProQA and Protocol
81.
COUNTY and Schultz concluded that STITSWORTH failed to perform her duties as a PSCC
Telecommunicator and was unfit to be a PSCC Telecommunicator, and terminated her
employment.
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COUNT I
42 U.S.C. §1983 –Downey and Stitsworth
374. Plaintiffs adopt and incorporate by reference the allegations contained in
paragraphs twenty-two (22) through three hundred and seventy-three (373) of the “Facts Common
to All Counts” as paragraph three hundred and seventy-four (374) of Count I as though set out
fully herein.
375. Plaintiffs bring this cause of action pursuant to the provisions of 42 U.S.C. §1983.
376. On December 31, 2019, and at all relevant times, Plaintiffs had a cognizable interest
under the Due Process Clause of the Fourteenth Amendment of the United States Constitution to
be free from state actions that deprive them of life, liberty, and/or property in such a manner as to
shock the conscience.
377. On December 31, 2019, and at all relevant times, DOWNEY AND STITSWORTH
were authorized agents and/or employees of ST. JOSEPH COUNTY, and were acting in the course
of their agency and/or employment, under the color of state law and pursuant to the policies,
customs, and/or usages of ST. JOSEPH COUNTY.
owed a duty of care to refrain from consciously disregarding known risks in violation of Plaintiffs’
constitutional rights.
owed a duty of care to refrain from affirmatively creating and/or increasing the dangers faced by
Plaintiffs.
380. Notwithstanding said duties, on December 31, 2019, and at all relevant times,
DOWNEY AND STITSWORTH shocked the conscience in that they acted with deliberate
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indifference and/or reckless disregard of Plaintiffs’ constitutional rights by engaging in one or
more of the following acts and/or omissions:
a. Recklessly used PSCC work computers for personal purposes knowing such
conduct could cause a distraction and adversely affect their abilities to handle
and/or respond to a 911 call;
b. Recklessly used PSCC work computers for personal purposes knowing a distraction
could delay their ability to handle and/or respond to a 911 call;
c. Recklessly used PSCC work computers for personal purposes knowing a delay in
handling and/or responding to a 911 call could result in significant bodily harm
and/or death;
d. Recklessly placed BROOKE on mute despite knowledge of impending harm;
e. Recklessly failed to launch ProQA software;
f. Recklessly failed to launch ECHO Fast Track;
g. Recklessly characterized the Subject Incident as a Motor Vehicle Accident despite
knowledge it was a sinking vehicle with occupants;
h. Recklessly characterized potential injuries involved in the Subject Incident as
Unknown despite knowledge it was a sinking vehicle with occupants;
i. Recklessly failed to perform their duties and responsibilities pursuant to the
PSCC’s internal safety policies, procedures, and protocols;
j. Recklessly failed to perform their duties and responsibilities pursuant to local, state
and national emergency response and management policies, procedures, and
protocols;
k. Recklessly failed to perform their duties and responsibilities pursuant to the rules,
policies, and procedures set forth in the ST. JOSEPH COUNTY Employee
Handbook;
l. Recklessly used the PSCC’s information technologies to browse the internet for
personal purposes knowing the internet browser screen could block a P1 System
window displaying the location of an emergency, adversely affecting the response
to an emergency situation;
m. Recklessly bypassed the P1 System interfaces and software programs designed to
verify the location of an incident;
n. Recklessly failed to perform their duties and responsibilities pursuant to the P1
System User Manual;
o. Recklessly failed to perform their duties and responsibilities pursuant to the P1
System Lesson Plan;
p. Recklessly failed to perform their duties and responsibilities pursuant to the TTT
guidelines;
q. Recklessly circumvented mandatory P1 System training classes;
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r. Recklessly failed to perform their duties and responsibilities pursuant to the
Employee Handbook;
s. Recklessly failed to perform their duties and responsibilities pursuant to the PSCC
Standard Operating Guidelines;
t. Recklessly failed to perform their duties and responsibilities pursuant to the
Collective Bargaining Agreement between ST. JOSEPH COUNTY and the
American Federation of State County and Municipal Employees;
u. Recklessly created and/or increased the dangers faced by Plaintiffs.
381. On December 31, 2019, and at all relevant times, the actions taken by DOWNEY
AND STITSWORTH were objectively unreasonable and were undertaken intentionally with
willful indifference and conscious disregard for Plaintiffs’ constitutional rights.
had sufficient knowledge of the impending danger and harm to Plaintiffs, but they consciously
disregarded and/or refused to prevent it.
had sufficient knowledge of the significant risk of serious bodily injury and/or death to the
Plaintiffs, but they consciously refused to prevent it.
384. On December 31, 2019, and at all relevant times, DOWNEY AND
STITSWORTH’s affirmative actions created and/or increased the dangers faced by Plaintiffs.
385. On December 31, 2019, and at all relevant times, the risk of death and/or serious
bodily injury resulting from DOWNEY AND STITSWORTH’s actions was obvious and/or
known.
displayed a deliberate indifference to the known risks and dangers of their actions.
387. On December 31, 2019, and at all relevant times, DOWNEY AND
STITSWORTH’s conduct placed 911 Callers at risk.
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388. As a further direct and proximate result of DOWNEY AND STITSWORTH’s
deliberate indifference and/or reckless disregard for Plaintiffs’ constitutional rights, the Plaintiffs
BROOKE, CHRISTOPHER, and HENDRIK sustained significant damages, including, but not
limited to, medical expenses, severe and permanent injuries, pain and suffering, emotional distress,
disability, loss of normal life, loss or impairment of earning capacity, disfigurement, rehabilitation
and home care expenses, and other damages.
deliberate indifference and/or reckless disregard for Plaintiffs’ constitutional rights, the Estates of
JAMES AND NATALIE sustained significant damages, including, but not limited to, loss of life,
pain and suffering, pecuniary losses, loss of society, and other damages.
violated the substantive due process rights of Plaintiffs to be free from state actions that deprive
them of life, liberty, and property in such a manner as to shock the conscience.
391. DOWNEY AND STITSWORTH engaged in conduct with a willful and wanton,
deliberate indifference and/or reckless disregard for the safety and constitutional rights of Plaintiffs
so as to warrant the imposition of punitive damages against them.
deliberate indifference and/or reckless disregard for Plaintiffs’ constitutional rights, and in addition
to the aforementioned injuries and damages, Plaintiffs have incurred and will continue to incur
attorneys’ fees.
WHEREFORE, Plaintiffs BROOKE KLEVEN and CHRISTOPHER KLEVEN
Individually and as Parents and Natural Guardians of HENDRIK KLEVEN, a Minor, JAMES
KLEVEN, a Minor, Deceased, and NATALIE KLEVEN, a Minor, Deceased, by counsel, pray for
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judgment in their favor and against Defendants, JEFFREY DOWNEY AND JENNIFER
STITSWORTH, jointly or severally, for compensatory damages, economic losses, special losses,
special damages, punitive damages, attorneys’ fees, costs and expenses related to this matter
pursuant to 42 U.S.C. §1988(b) and (c), and for all other relief this Court may deem proper under
the circumstances.
COUNT II
42 U.S.C. §1983 – St. Joseph County - Monell Claim – Failure to Train
to All Counts” as paragraph three-hundred and ninety-three (393) of Count II as though set out
fully herein.
394. On December 31, 2019, and at all relevant times, ST. JOSEPH COUNTY had in
effect policies, procedures, practices, and customs that perpetuated and fostered the
unconstitutional conduct of DOWNEY AND STITSWORTH.
395. On December 31, 2019, and at all relevant times, ST. JOSEPH COUNTY failed to
properly train its agents and employees, which included, but were not limited to, DOWNEY AND
STITSWORTH, regarding the following:
a. The proper procedures for obtaining and providing information to/from the 911
Caller for an incident involving a sinking vehicle with occupants;
b. The proper procedures for providing information and instructions to an occupant of

a sinking vehicle;
c. The applicable IAED protocols, including, but not limited to, Protocol 81 for an
incident involving a sinking vehicle with occupants;
d. The proper procedures on how to launch the P1 System;
e. The proper procedures on how to launch the ProQA software;
f. The proper procedures on how to launch the ECHO Fast Track software;
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g. The proper procedure on verifying the address of an incident;
h. The proper procedures for dispatching departments, units, and personnel to an

incident involving a sinking vehicle with occupants;
i. The proper procedures for dispatching the MFD Rescue Team;
j. The proper procedures for dispatching the SBFD Dive Team;
k. The proper procedures for Communication Supervisors and Supervising

Telecommunicators to use to train Telecommunicators; and
l. The proper procedure for requesting assistance from a colleague on how to handle
a 911 Call.
396. On December 31, 2019, and at all relevant times, ST. JOSEPH COUNTY knew or
should have known PSCC personnel, which included, but was not limited to, DOWNEY and
STITSWORTH, lacked the requisite training to handle an incident involving a sinking vehicle
with occupants.
397. On December 31, 2019, at all relevant times, ST. JOSEPH COUNTY knew or
should have known PSCC personnel, which included but was not limited to, DOWNEY and
STITSWORTH, lacked the requisite training to properly use the P1 System to respond to an
incident involving a sinking vehicle with occupants.
STITSWORTH, lacked the requisite training to properly use software programs like ProQA and
ECHO Fast Track to respond to an incident involving a sinking vehicle with occupants.
STITSWORTH, did not attend mandatory CDE and P1 System training, which covered incidents
involving sinking vehicles with occupants.
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should have known that allowing PSCC personnel to not be properly trained would likely cause
injuries to ST. JOSEPH COUNTY’s residents like the Plaintiffs.
should have known that allowing PSCC personnel to not be properly trained would likely cause
constitutional injuries to ST. JOSEPH COUNTY’s residents like the Plaintiffs.
402. On December 31, 2019, and at all relevant times, ST. JOSEPH COUNTY was
deliberately indifferent and reckless with respect to the obvious consequences of its failure to train
its employees adequately, which included, but was not limited to, the potential violation of the
constitutional rights of ST. JOSEPH COUNTY’s residents like the Plaintiffs.
403. On December 31, 2019, and at all relevant times, ST. JOSEPH COUNTY’s failure
to train PSCC personnel constituted an official policy.
404. On December 31, 2019, and at all relevant times, ST. JOSEPH COUNTY
recklessly moved the Go-Live Date from March of 2020 to November 12, 2019, despite knowledge
that the PSCC personnel were not trained to respond to an incident involving a sinking vehicle
with occupants.
405. As a further direct and proximate result of ST. JOSEPH COUNTY’s deliberate
indifference and/or reckless disregard for Plaintiffs’ constitutional rights, the Plaintiffs BROOKE,
CHRISTOPHER and HENDRIK sustained significant damages, including, but not limited to,
medical expenses, severe and permanent injuries, pain and suffering, emotional distress, disability,
loss of normal life, loss or impairment of earning capacity, disfigurement, rehabilitation and home
care expenses, and other damages.
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indifference and/or reckless disregard for Plaintiffs’ constitutional rights, the Estates of JAMES
AND NATALIE sustained significant damages, including, but not limited to, loss of life, pain and
suffering, pecuniary losses, loss of society, and other damages.
407. On December 31, 2019, and at all relevant times, ST. JOSEPH COUNTY violated
the substantive due process rights of Plaintiffs to be free from state actions that deprive them of
life, liberty, and property in such a manner as to shock the conscience.
408. ST. JOSEPH COUNTY engaged in conduct with a willful and wanton, deliberate
indifference and/or reckless disregard for the safety and constitutional rights of Plaintiffs so as to
warrant the imposition of punitive damages against them.
indifference and/or reckless disregard for Plaintiffs’ constitutional rights, and in addition to the
aforementioned injuries and damages, Plaintiffs have incurred and will continue to incur attorneys’
fees.
judgment in their favor and against Defendants, ST. JOSEPH COUNTY, for compensatory
damages, economic losses, special losses, special damages, punitive damages, attorneys’ fees,
costs and expenses related to this matter pursuant to 42 U.S.C. §1988(b) and (c), and for all other
relief this Court may deem proper under the circumstances.
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COUNT III
42 U.S.C. §1983 – St. Joseph County - Monell Claim – Custom, Policy and Practice
to All Counts” as paragraph four hundred and ten (410) of Count III as though set out fully herein.
411. On December 31, 2019, and at all relevant times, ST. JOSEPH COUNTY had a
duty to refrain from violating the constitutional rights of the Plaintiffs, including their substantive
due process rights to be secure in their bodily integrity.
412. On December 31, 2019, and at all relevant times, it was the custom, policy and
practice of PSCC personnel to not properly complete mandatory CDE training and tests.
practice of PSCC personnel to not properly complete mandatory P1 System training and tests.
practice of PSCC personnel to design mandatory tests with improper questions to ensure passing
grades.
practice of PSCC personnel to improperly fill out mandatory training attendance sheets for other
PSCC personnel.
practice of PSCC personnel to improperly immediately retake failed mandatory tests until a
passing score was achieved.
practice of PSCC personnel to not properly evaluate Telecommunicators, which included, but was
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not limited to, DOWNEY AND STITSWORTH, regarding the quality of service and level of
compliance with dispatch protocols and standards.
practice of PSCC personnel to not schedule the proper number of Telecommunicators for an
Afternoon Shift.
practice of PSCC personnel to not schedule the proper number of Communication Supervisors for
an Afternoon Shift.
practice of PSCC personnel to not schedule the proper number of Supervising Telecommunicators
for an Afternoon Shift.
421. On December 31, 2019, and at all relevant times, ST. JOSEPH COUNTY knew the
Communications Supervisors and/or Supervising Telecommunicators did not supervise and/or
monitor PSCC personnel to ensure mandatory training and tests were properly and timely
completed.
enforce internal policies and procedures against PSCC personnel regarding the aforementioned
customs, policies, and practices.
reprimand and/or discipline any PSCC personnel regarding the aforementioned customs, policies,
and practices.
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424. On December 31, 2019, and at all relevant times, ST. JOSEPH COUNTY
authorized, approved and encouraged the aforementioned customs, policies, and practices of the
PSCC personnel by condoning the behavior.
425. On December 31, 2019, and at all relevant times, ST. JOSEPH COUNTY created
the culture that allowed PSCC personnel to engage in the aforementioned customs, policies, and
procedures without fear of being reprimanded and/or disciplined.
426. On December 31, 2019, and at all relevant times, ST. JOSEPH COUNTY created,
implemented, and maintained the aforementioned customs, policies, and procedures with a
deliberate indifference so that it encouraged DOWNEY AND STITSWORTH to commit the
alleged acts and/or omissions against the Plaintiffs.
427. On December 31, 2019, and at all relevant times, ST. JOSEPH COUNTY had
knowledge that New Year’s Eve was one of the busiest days of the year for the PSCC.
knowledge that the Afternoon Shift at the PSCC received the highest number of calls.
knowledge that the PSCC did not have the proper number of trained PSCC personnel scheduled to
work the Afternoon Shift on New Year’s Eve.
430. December 31, 2019, and at all relevant times, ST. JOSEPH COUNTY knew the
PSCC did not have any supervisory or executive level PSCC personnel scheduled to work the
Afternoon Shift on New Year’s Eve, which included, but was not limited to, the Executive
Director, the Fire Operations Chief, a Quality Assurance Manager, and/or a Communications
Supervisor.
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431. On December 31, 2019, and at all relevant times, despite knowledge of the above
risks, and with deliberate indifference, ST. JOSEPH COUNTY refused to make the necessary
changes to properly staff the Afternoon Shift with the proper number of trained PSCC personnel.
432. On December 31, 2019, and at all relevant times, ST. JOSEPH COUNTY’s
deliberate indifference carried the force of law.
433. On December 31, 2019, and at all relevant times, ST. JOSEPH COUNTY’s actions
shocked the conscience.
indifference and/or reckless disregard for Plaintiffs’ constitutional rights, and in addition to the
aforementioned injuries and damages, Plaintiffs suffered damages as a result of the violation of
their constitutional rights that include, but are not limited to, attorneys’ fees that have incurred and
attorneys’ fees that continue to incur.
435. On December 31, 2019, and at all relevant times, ST. JOSEPH COUNTY violated
the substantive due process rights of Plaintiffs to be free from state actions that deprive them of
life, liberty, and property.
judgment in their favor and against Defendants, ST. JOSEPH COUNTY, for compensatory
damages, economic losses, special losses, special damages, punitive damages, attorneys’ fees,
costs and expenses related to this matter pursuant to 42 U.S.C. §1988(b) and (c), and for all other
relief this Court may deem proper under the circumstances.
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COUNT IV
State Cause of Action – St. Joseph County
to All Counts” as paragraph four hundred and thirty-six (436) of Count IV as though set out fully
herein.
437. At all relevant times, ST. JOSEPH COUNTY owed a duty of care, including a non-
delegable duty, to exercise reasonable care and caution and to refrain from acting recklessly in the
full implementation of the P1 System.
training of the PSCC staff on the P1 System.
hiring, supervision, retention, and oversight of the PSCC staff.
delegable duty, to exercise reasonable care and caution and to refrain from acting recklessly in
complying with local and national 911 emergency standards.
delegable duty, to exercise reasonable care and caution and to refrain from acting recklessly in
complying with the safety duties and responsibilities set forth in the written agreement between
ST. JOSEPH COUNTY and MOTOROLA.
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442. Notwithstanding said duties, on and prior to December 31, 2019, ST. JOSEPH
COUNTY committed one or more of the following negligent, grossly negligent and/or reckless
acts and/or omissions:
a. Recklessly failed to properly hire, retain, and supervise the PSCC staff;
b. Recklessly failed to perform their duties and responsibilities to train the PSCC staff
on the use and operation of the P1 System;
c. Recklessly failed to perform their duties and responsibilities to test the PSCC staff
on the use and operation of the P1 System;
d. Recklessly failed to perform their duties and responsibilities to supervise the PSCC
staff on the use and operation of the P1 System;
e. Recklessly failed to create, implement and enforce proper training policies and
procedures for the PSCC staff;
f. Recklessly failed to create, implement and enforce proper quality assurance
policies and programs;
g. Recklessly failed to resolve known handling, reporting and dispatching errors
committed by the PSCC staff leading up to the Subject Incident;
h. Recklessly failed to allow the sufficient amount of time required to properly
implement the functional P1 System;
i. Recklessly failed to perform their duties and responsibilities pursuant to the
PSCC’s internal safety policies, procedures and protocols;
j. Recklessly failed to perform their duties and responsibilities pursuant to local, state
and national emergency response and management policies, procedures and
protocols;
k. Recklessly failed to perform their duties and responsibilities pursuant to the rules,
policies and procedures set forth in the ST. JOSEPH COUNTY Employee
Handbook;
l. Recklessly used the PSCC’s information technologies to browse the internet for
personal purposes knowing the internet browser screen could block a P1 System
window displaying the location of an emergency, adversely affecting the response
to an emergency situation;
m. Recklessly bypassed the P1 System interfaces and software programs designed to
verify the location of an incident;
n. Recklessly failed to perform their duties and responsibilities pursuant to the P1
System User Manual;
o. Recklessly failed to perform their duties and responsibilities pursuant to the P1
System Lesson Plan;
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p. Recklessly failed to perform their duties and responsibilities pursuant to the TTT
guidelines;
q. Recklessly failed to perform their duties and responsibilities pursuant to the
Employee Handbook;
r. Recklessly failed to perform their duties and responsibilities pursuant to the PSCC
standard operating procedures;
s. Recklessly implemented, launched and allowed to remain in operation a P1 System
with numerous known and unresolved provisioning issues, including, but not
limited to, mapping, reporting, importing, formatting and processing data;
t. Recklessly implemented, launched and allowed to remain in operation a P1 System
with numerous known and unresolved compatibility issues between interfaces and
software products within the P1 System and those within the departments’ systems;
u. Recklessly implemented, launched and allowed to remain in operation a P1 System
with numerous known and unresolved issues with the Recording System not
properly syncing;
v. Recklessly implemented, launched and allowed to remain in operation a P1 System
with numerous known and unresolved issues with verifying the location of an
incident;
w. Recklessly implemented, launched and allowed to remain in operation a P1 System
without a CAD manager and/or technician on site at the PSCC;
x. Recklessly implemented, launched and allowed to remain in operation a P1 System
with numerous known and unresolved issues with the GIS software;
y. Recklessly implemented, launched and allowed to remain in operation a P1 System
with numerous known and unresolved issues with the ProQA software;
z. Recklessly implemented, launched and allowed to remain in operation a P1 System
with numerous known and unresolved issues with the ADSi software;
aa. Recklessly implemented, launched and allowed to remain in operation a P1 System
with numerous known and unresolved issues with the PulsePoint software;
bb. Recklessly decided to delay necessary training of the PSCC staff on the P1 System
until after the busy holidays knowing the P1 System was not properly implemented
and the PSCC staff was not properly trained;
cc. Recklessly circumvented required P1 System training classes presented by
MOTOROLA;
dd. Recklessly allowed the PSCC staff to circumvent required P1 System training
classes presented by MOTOROLA;
ee. Recklessly allowed the PSCC to be insufficiently staffed with telecommunicators
on one of the known busiest dates of the year for the PSCC;
ff. Recklessly allowed the PSCC to be insufficiently staffed with supervisors on one
of the known busiest dates of the year for the PSCC;
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gg. Recklessly retained employees on the PSCC staff with a history of being unfit to
handle emergency calls pursuant to their performance scores;
hh. Recklessly retained employees on the PSCC staff with a history of being unfit to
activate and navigate the P1 System, including, but not limited to, the ProQA
program;
ii. Recklessly used PSCC work computers for personal purposes knowing such
conduct could cause a distraction and adversely affect their ability to handle and/or
respond to a 911 call;
jj. Recklessly used PSCC work computers for personal purposes knowing a distraction
could delay their ability to handle and/or respond to a 911 call;
kk. Recklessly used PSCC work computers for personal purposes knowing a delay in
handling and/or responding to a 911 call could result in significant bodily harm
and/or death.
443. As a direct and proximate result of ST. JOSEPH COUNTY, individually and by
and through its employees and/or agents’ negligent and/or reckless acts and/or omissions, the
PSCC dispatched the wrong department, CFD, to respond to the Subject Incident.
PSCC dispatched CFD to the wrong location, University Drive and Fir Rd., instead of the Subject
Intersection.
PSCC then dispatched MFD to the Subject Incident without MFD Rescue 1.
and through its employees and/or agents’ negligent and/or reckless acts and/or omissions, the first
group of personnel to arrive at the Subject Pond, including, but not limited to, CFD and MFD
personnel, did not have the necessary members, apparatuses and/or equipment to perform an
underwater rescue.
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and through its employees and/or agents’ negligent and/or reckless acts and/or omissions, there
was a significant delay in dispatching MFD Rescue 1 to the Subject Pond.
and through its employees and/or agents’ negligent and/or reckless acts and/or omissions,
BROOKE, JAMES, NATALIE and HENDRIK remained entrapped and submerged in the near
freezing temperature water of the Subject Pond while CFD, MFD and other departments waited
for the arrival of MFD Rescue 1.
and through its employees and/or agents’ negligent and/or reckless acts and/or omissions, MFD
Rescue 1 did not have the proper amount of water rescue equipment and apparatuses because they
were unaware of the number of people entrapped in the Subject Vehicle.
and through its employees and/or agents’ negligent and/or reckless acts and/or omissions, MFD,
CFD and other department personnel were unaware that HENDRIK was still trapped in the
submerged Subject Vehicle when the emergency personnel exited the Subject Pond and ordered
that the Subject Vehicle be removed by a tow-truck.
CFD and other department personnel failed to remove HENDRIK from the Subject Vehicle until
after the Subject Vehicle was removed from the Subject Pond by a tow-truck.
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BROOKE remained entrapped and submerged in the near freezing temperature water of the
Subject Pond for almost twenty-five (25) minutes from the time she called 911.
and through its employees and/or agents’ negligent and/or reckless acts and/or omissions, JAMES
remained entrapped and submerged in the near freezing temperature water of the Subject Pond for
almost thirty (30) minutes from the time BROOKE called 911.
NATALIE remained entrapped and submerged in the near freezing temperature water of the
Subject Pond for almost thirty-five (35) minutes from the time BROOKE called 911.
and through its employees and/or agents’ negligent and/or reckless acts and/or omissions
HENDRIK remained entrapped and submerged in the near freezing temperature water of the
Subject Pond for over forty (40) minutes from the time BROOKE called 911.
BROOKE suffered and will continue to suffer severe, painful and permanent personal injuries
including, but not limited to, an anoxic brain injury resulting in spastic paraplegia, which affect
her daily quality of life and ability to function as a whole person; loss or impairment of earning
capacity; permanent severe emotional distress; loss of enjoyment of life; lost opportunities; the
reasonable value of necessary medical care, treatment, and services; and disfigurement and
deformity resulting from her injuries.
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CHRISTOPHER has experienced the loss of consortium of his spouse and Plaintiff herein,
BROOKE.
HENDRIK has experienced the permanent loss of BROOKE’s earnings, services, kindness, and
attention that BROOKE reasonably would have provided and which he is reasonably expected to
lose.
HENDRIK suffered and will continue to suffer severe, painful and permanent personal injuries
including, but not limited to, a hypoxic anoxic brain injury resulting in uniplegia and loss of
speech, which affect his daily quality of life and ability to function as a whole person; loss or
impairment of earning capacity; permanent severe emotional distress; loss of enjoyment of life;
lost opportunities; the reasonable value of necessary medical care, treatment, and services; and
disfigurement and deformity resulting from his injuries.
BROOKE has experienced the permanent loss of HENDRIK’s earnings, services, kindness, and
attention that HENDRIK reasonably would have provided and which she is reasonably expected
to lose as a result of respondent’s wrongful conduct and the reasonable value of necessary medical
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care, treatment, and services HENDRIK incurred and will incur in the future as a result of his
injuries.
CHRISTOPHER has experienced the permanent loss of HENDRIK’s earnings, services, kindness,
and attention that HENDRIK reasonably would have provided and which he is reasonably
expected to lose as a result of respondent’s wrongful conduct and the reasonable value of necessary
medical care, treatment, and services HENDRIK incurred and will incur in the future as a result of
his injuries
462. As a further direct and proximate result of ST. JOSEPH COUNTY, individually
and by and through its employees and/or agents’ negligent and/or reckless acts and/or omissions,
JAMES suffered severe and painful personal injuries, which resulted in death.
BROOKE and CHRISTOPHER, as the parents of JAMES, each lost services, love and
companionship, and incurred health care expenses, funeral and burial expenses, administration
expenses, psychiatric and psychological counseling expenses, as well as attorneys’ fees.
and by and through its employees and/or agents’ negligent and/or reckless acts and/or omissions
NATALIE suffered severe and painful personal injuries, which resulted in death.
BROOKE and CHRISTOPHER, as the parents of NATALIE, each lost services, love and
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BROOKE suffered damages as a result of the Negligent Infliction of Emotional Distress.
HENDRIK suffered damages as a result of the Negligent Infliction of Emotional Distress.
judgment in their favor and against Defendant ST. JOSEPH COUNTY for compensatory damages
in an amount to be determined herein, for the costs of this action, prejudgment interest, for trial by
jury, and for all other relief this Court may deem proper under the circumstances.
COUNT V
State Cause of Action – City of Mishawaka
to All Counts” as paragraph four hundred and sixty-eight (468) of Count V as though set out fully
herein.
469. Prior to December 31, 2019, and at all relevant times, CITY OF MISHAWAKA
maintained as a division a certain department called the Engineering Department that was
responsible for managing, overseeing, and ensuring compliance with access and drainage
requirements in new development projects within the jurisdiction of CITY OF MISHAWAKA.
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approved all the site plans during the development of City Plaza Complex, including, but not
limited to, the placement and dimensions of the Subject Pond.
knew, or through the exercise of reasonable care should have known, the Subject Pond presented
a danger to the public.
knew, or through the exercise of reasonable care should have known, of the likelihood of a vehicle
immersion event involving a motorist and the Subject Pond.
knew, or through the exercise of reasonable care should have known, of the likelihood of serious
bodily harm to a motorist involved in a vehicle immersion event at the Subject Pond.
knew, or through the exercise of reasonable care should have known, that there were at least two
(2) other incidents that involved motorists who lost control of their vehicles at or near the Subject
knew, or through the exercise of reasonable care should have known, there was at least one (1)
knew, or through the exercise of reasonable care should have known, there were at least eleven
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477. Prior to December 31, 2019, and all relevant times, CITY OF MISHAWAKA
maintained as a division a certain department called the Code Enforcement Department that was
responsible for ensuring property code compliance by property owners within the jurisdiction of
CITY OF MISHAWKA.
knew, or through the exercise of reasonable care should have known, the Subject Pond did not
comply with all applicable local, state and/or national codes regarding the design, development,
construction and/or maintenance of the Subject Pond.
maintained as a division a certain department called the Central Services Department that was
responsible for performing snow and ice removal services on public roadways within the
jurisdiction of CITY OF MISHAWKA.
480. On December 31, 2019, and at all relevant times, CITY OF MISHAWAKA,
individually and by and through its employees and/or agents, was responsible for performing snow
and ice removal services on the Subject Intersection.
481. On December 31, 2019, at all relevant times, CITY OF MISHAWAKA assigned
an operator and a vehicle to perform snow and ice removal services in the area that included the
Subject Intersection.
482. On December 31, 2019, at all relevant times, CITY OF MISHAWAKA assigned
an operator and a vehicle to perform snow and ice removal services on the Subject Intersection to
be completed prior to the Subject Incident.
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483. On December 31, 2019, at all relevant times, the assigned operator and vehicle that
was scheduled to perform snow and ice removal services at the Subject Intersection was recorded
as parked and idling for a significant and improper amount of time.
484. On December 31, 2019, at all relevant times, the assigned operator and vehicle that
was scheduled to perform snow and ice removal services at the Subject Intersection was recorded
as parked and idling during the moments leading up to and including the time of the Subject
Incident.
485. On December 31, 2019, and at all relevant times, CITY OF MISHAWAKA knew,
or through the exercise of reasonable care should have known, the assigned operator and vehicle
scheduled to perform snow and ice removal services at the Subject Intersection was parked and
idling instead of performing his duties and responsibilities.
486. On December 31, 2019, and at all relevant times, the Subject Incident occurred
within the jurisdiction of MFD.
487. On December 31, 2019, and at all relevant times, MFD assumed command of the
scene of the Subject Incident.
488. On December 31, 2019, and at all relevant times, MFD directed MFD and CFD
personnel during the emergency response to the Subject Incident.
489. On December 31, 2019, and at all relevant times, MFD directed MFD and CFD
personnel to cease searching the submerged Subject Vehicle and to have it removed from the
Subject Pond by a tow truck.
490. On December 31, 2019, and at all relevant times, the Subject Vehicle continued to
be submerged with HENDRIK entrapped inside while MFD and CFD prepared the Subject Vehicle
to be removed from the Subject Pond by a tow truck.
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491. On December 31, 2019, and at all relevant times, MFD and CFD did not realize
HENDRIK was still in the Subject Vehicle until after the tow truck pulled the Subject Vehicle out
of the Subject Pond.
492. On December 31, 2019, and at all relevant times, MFD and CFD did not remove
HENDRIK from the Subject Vehicle until after the tow truck pulled the Subject Vehicle out of the
Subject Pond.
individually and by and through its employees and/or agents, owed a duty of care, including a non-
delegable duty, to refrain from acting recklessly while performing its engineering services.
delegable duty, to refrain from acting recklessly while performing its code enforcement services.
delegable duty, to refrain from acting recklessly while performing its snow and ice removal
services.
delegable duty, to refrain from acting recklessly while performing its emergency response services.
497. Notwithstanding said duties, on and prior to December 31, 2019, CITY OF
MISHAWAKA, individually and by and through its employees and/or agents, committed one or
more of the following grossly negligent and/or reckless acts and/or omissions:
a. Recklessly approved the site location and dimensions of the Subject Pond despite
the known risks and safety concerns of vehicle immersions;
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b. Recklessly failed to install artificial barriers around the Subject Pond despite the
danger posed by the Subject Pond to the public;
c. Recklessly failed to install additional natural barriers around the Subject Pond
despite the danger posed by the Subject Pond to the public;
d. Recklessly failed to install artificial barriers around the Subject Pond despite having
knowledge of prior incidents involving vehicle immersions within the Subject
Pond;
e. Recklessly failed to install additional natural barriers around the Subject Pond
despite having knowledge of prior incidents involving vehicle immersions within
the Subject Pond;
f. Recklessly failed to perform inspections at the Subject Pond to ensure compliance
with local, state and national codes regarding the improper and dangerous depth of
the Subject Pond;
g. Recklessly failed to perform inspections at the Subject Pond to ensure compliance
with local, state and national codes regarding the improper and dangerous internal
slope of the Subject Pond;
h. Recklessly failed to perform inspections at the Subject Pond to ensure compliance
with local, state and national codes regarding the improper and dangerous retention
of the Subject Pond;
i. Recklessly failed to execute and/or enforce local, state and national safety policies
and procedures pertaining to property code compliance by property owners within
the jurisdiction of CITY OF MISHAWAKA;
j. Recklessly failed to execute and/or enforce local, state and national safety policies
and procedures applicable to the design, development, construction and/or
maintenance of the Subject Pond;
k. Failed to execute and/or enforce internal safety policies and procedures pertaining
to snow and ice removal services;
l. Failed to remove snow and ice at the Subject Intersection despite having knowledge
of the dangers and risks to the public caused by slippery roadway surfaces;
m. Recklessly parked and idled the snow removal vehicle instead of removing the
snow and ice at the Subject Intersection despite having knowledge of the dangers
the slippery roadway surface posed to the public;
n. Recklessly allowed the snow removal vehicle to remain parked and idling instead
of removing the snow and ice at the Subject Intersection despite having knowledge
of the danger the slippery road surfaced posed to the public;
o. Failed to follow internal standard operating procedures pertaining to snow removal;
p. Failed to properly train its personnel in regard to performing a below-surface rescue
in water near freezing temperature that involved four (4) individuals entrapped in
the Subject Vehicle;
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q. Failed to respond to the Subject Incident with the proper personnel to perform a
below-surface rescue in water near freezing temperature that involved four (4)
individuals entrapped in the Subject Vehicle;
r. Failed to respond to the Subject Incident with the proper units to perform a below-
surface rescue in water near freezing temperature that involved four (4) individuals
entrapped in the Subject Vehicle;
s. Failed to respond to the Subject Incident with the proper apparatuses to perform a
t. Failed to respond to the Subject Incident with the proper equipment to perform a
u. Recklessly terminated the below-surface water rescue while HENDRIK remained
entrapped inside the Subject Vehicle;
v. Failed to properly identify and relay the severity and urgency of the Subject
Incident;
w. Failed to utilize the P1 System to locate the Subject Pond in a timely manner;
x. Failed to enforce, execute and/or implement internal policies, procedures and/or
protocols in regard to performing a below-surface water rescue; and
y. Failed to perform a below-surface water rescue pursuant to local, state and national
emergency response standards and codes.
498. As a direct and proximate result of CITY OF MISHAWAKA, individually and by
Subject Vehicle became entrapped in the Subject Pond.
and CFD did not have the necessary personnel, units, apparatuses and/or equipment to perform a
below-surface water rescue.
BROOKE, JAMES, NATALIE and HENDRIK remained entrapped and submerged in the near
freezing temperature water of the Subject Pond.
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and CFD were unaware of the number of individuals entrapped in the Subject Vehicle.
CFD and other department personnel were unaware that HENDRIK was still trapped in the
submerged Subject Vehicle when the emergency personnel exited the Subject Pond and ordered
that the Subject Vehicle be removed by a tow-truck.
CFD and other department personnel failed to remove HENDRIK from the Subject Vehicle until
after the Subject Vehicle was removed from the Subject Pond by a tow-truck.
BROOKE remained entrapped and submerged in the near freezing temperature water of the
Subject Pond for almost twenty-five (25) minutes from the time she called 911.
and through its employees and/or agents’ negligent and/or reckless acts and/or omissions, JAMES
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NATALIE remained entrapped and submerged in the near freezing temperature water of the
Subject Pond for almost thirty-five (35) minutes from the time BROOKE called 911.
Subject Pond for over forty (40) minutes from the time BROOKE called 911.
BROOKE suffered and will continue to suffer severe, painful and permanent personal injuries
including, but not limited to, an anoxic brain injury resulting in spastic paraplegia, which affect
her daily quality of life and ability to function as a whole person; loss or impairment of earning
deformity resulting from her injuries.
BROOKE.
HENDRIK has experienced the permanent loss of BROOKE’s earnings, services, kindness, and
attention that BROOKE reasonably would have provided and which he is reasonably expected to
lose.
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HENDRIK suffered and will continue to suffer severe, painful and permanent personal injuries
including, but not limited to, a hypoxic anoxic brain injury resulting in uniplegia and loss of
speech, which affect his daily quality of life and ability to function as a whole person; loss or
impairment of earning capacity; permanent severe emotional distress; loss of enjoyment of life;
lost opportunities; the reasonable value of necessary medical care, treatment, and services; and
disfigurement and deformity resulting from his injuries.
BROOKE has experienced the permanent loss of HENDRIK’s earnings, services, kindness, and
attention that HENDRIK reasonably would have provided and which they are reasonably expected
to lose as a result of respondent’s wrongful conduct and the reasonable value of necessary medical
care, treatment, and services HENDRIK incurred and will incur in the future as a result of his
injuries.
and attention that HENDRIK reasonably would have provided and which they are reasonably
his injuries.
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514. As a further direct and proximate result of CITY OF MISHAWAKA, individually
and by and through its employees and/or agents’ negligent and/or reckless acts and/or omissions
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WHEREFORE Plaintiffs BROOKE KLEVEN and CHRISTOPHER KLEVEN
judgment in their favor and against Defendant CITY OF MISHAWAKA for compensatory
damages in an amount to be determined herein, for the costs of this action, prejudgment interest,
for trial by jury, and for all other relief this Court may deem proper under the circumstances.
COUNT VI
State Cause of Action – Clay Township
to All Counts” as paragraph five hundred and twenty (520) of Count VI as though set out fully
herein.
521. On December 31, 2019, and at all relevant times, CFD did not have the emergency
personnel required to properly perform a below-surface rescue in water near freezing temperature.
units required to properly perform a below-surface rescue in water near freezing temperature.
apparatuses required to properly perform a below-surface rescue in water near freezing
temperature.
equipment required to properly perform a below-surface rescue in water near freezing temperature.
PSCC dispatched CFD to respond to the Subject Incident.
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PSCC subsequently notified CFD that MFD was responding to the Subject Incident because it was
within MFD’s jurisdiction.
527. On December 31, 2019, and at all relevant times, CFD advised ST. JOSEPH
COUNTY and the PSCC that it would continue to respond to the Subject Incident.
528. On December 31, 2019, and at all relevant times, CFD arrived before MFD and
assumed command of the scene of the Subject Incident.
529. On December 31, 2019, and at all relevant times, after MFD arrived at the scene,
CFD continued its command of the scene of the Subject Incident.
530. On December 31, 2019, and at all relevant times, CFD directed CFD and MFD
personnel during the emergency response to the Subject Incident.
531. On December 31, 2019, and at all relevant times, MFD and CFD ceased searching
the submerged Subject Vehicle to have it removed from the Subject Pond by a tow truck.
532. On December 31, 2019, and at all relevant times, the Subject Vehicle continued to
be submerged with HENDRIK entrapped inside while MFD and CFD prepared the Subject Vehicle
to be removed from the Subject Pond by a tow truck.
533. On December 31, 2019, and at all relevant times, MFD and CFD did not realize
HENDRIK was still in the Subject Vehicle until after the tow truck pulled the Subject Vehicle out
of the Subject Pond.
534. On December 31, 2019, and at all relevant times, MFD and CFD did not remove
HENDRIK from the Subject Vehicle until after the tow truck pulled the Subject Vehicle out of the
Subject Pond.
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535. On December 31, 2019, and at all relevant times, CLAY TOWNSHIP, individually
and by and through its employees and/or agents, owed a duty of care, including a non-delegable
duty, to refrain from acting recklessly while performing its emergency response services.
536. Notwithstanding said duties, on and prior to December 31, 2019, CLAY
TOWNSHIP, individually and by and through its employees and/or agents, committed one or more
of the following grossly negligent and/or reckless acts and/or omissions:
a. Recklessly responded to the Subject Incident knowing it lacked the training to

perform a below-surface rescue in water near freezing temperature that involved
four (4) individuals entrapped in the Subject Vehicle;
b. Recklessly responded to the Subject Incident knowing it lacked the proper
personnel to perform a below-surface rescue in water near freezing temperature that
involved four (4) individuals entrapped in the Subject Vehicle;
c. Recklessly responded to the Subject Incident knowing it lacked the proper units to
perform a below-surface rescue in water near freezing temperature that involved
four (4) individuals entrapped in the Subject Vehicle;
d. Recklessly responded to the Subject Incident knowing it lacked the proper
apparatuses to perform a below-surface rescue in water near freezing temperature
that involved four (4) individuals entrapped in the Subject Vehicle;
e. Recklessly responded to the Subject Incident knowing it lacked the proper
equipment to perform a below-surface rescue in water near freezing temperature
that involved four (4) individuals entrapped in the Subject Vehicle;
f. Recklessly terminated the below-surface water rescue while HENDRIK remained
entrapped inside the Subject Vehicle;
g. Failed to properly identify and relay the severity and urgency of the Subject
Incident;
h. Failed to enforce, execute and/or implement internal policies, procedures and/or
protocols in regard to performing a below-surface water rescue;
i. Failed to perform a below-surface water rescue pursuant to local, state and national
emergency response standards and codes.
537. As a direct and proximate result of CLAY TOWNSHIP, individually and by and
through its employees and/or agents’ negligent and/or reckless acts and/or omissions, the Subject
Vehicle became submerged in the Subject Pond.
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through its employees and/or agents’ negligent and/or reckless acts and/or omissions, the Plaintiffs
became entrapped in the Subject Vehicle.
through its employees and/or agents’ negligent and/or reckless acts and/or omissions, MFD and
CFD did not have the necessary personnel, units, apparatuses and/or equipment to perform a
below-surface water rescue.
through its employees and/or agents’ negligent and/or reckless acts and/or omissions, BROOKE,
JAMES, NATALIE and HENDRIK remained entrapped and submerged in the near freezing
temperature water of the Subject Pond.
through its employees and/or agents’ negligent and/or reckless acts and/or omissions, MFD and
CFD were unaware of the number of individuals entrapped in the Subject Vehicle.
through its employees and/or agents’ negligent and/or reckless acts and/or omissions, MFD, CFD
and other department personnel were unaware that HENDRIK was still trapped in the submerged
Subject Vehicle when the emergency personnel exited the Subject Pond and ordered that the
Subject Vehicle be removed by a tow-truck.
through its employees and/or agents’ negligent and/or reckless acts and/or omissions, MFD, CFD
and other department personnel failed to remove HENDRIK from the Subject Vehicle until after
the Subject Vehicle was removed from the Subject Pond by a tow-truck.
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through its employees and/or agents’ negligent and/or reckless acts and/or omissions, BROOKE
almost twenty-five (25) minutes from the time she called 911.
through its employees and/or agents’ negligent and/or reckless acts and/or omissions, JAMES
through its employees and/or agents’ negligent and/or reckless acts and/or omissions, NATALIE
almost thirty-five (35) minutes from the time BROOKE called 911.
through its employees and/or agents’ negligent and/or reckless acts and/or omissions, HENDRIK
over forty (40) minutes from the time BROOKE called 911.
suffered and will continue to suffer severe, painful and permanent personal injuries including, but
not limited to, an anoxic brain injury resulting in spastic paraplegia, which affect her daily quality
of life and ability to function as a whole person; loss or impairment of earning capacity; permanent
severe emotional distress; loss of enjoyment of life; lost opportunities; the reasonable value of
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necessary medical care, treatment, and services; and disfigurement and deformity resulting from
her injuries.
through its employees and/or agents’ negligent and/or reckless acts and/or omissions,
BROOKE.
has experienced the permanent loss of BROOKE’s earnings, services, kindness, and attention that
BROOKE reasonably would have provided and which he is reasonably expected to lose.
suffered and will continue to suffer severe, painful and permanent personal injuries including, but
not limited to, a hypoxic anoxic brain injury resulting in uniplegia and loss of speech, which affect
his daily quality of life and ability to function as a whole person; loss or impairment of earning
deformity resulting from his injuries.
has experienced the permanent loss of HENDRIK’s earnings, services, kindness, and attention that
HENDRIK reasonably would have provided and which they are reasonably expected to lose as a
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result of respondent’s wrongful conduct and the reasonable value of necessary medical care,
treatment, and services HENDRIK incurred and will incur in the future as a result of his injuries.
through its employees and/or agents’ negligent and/or reckless acts and/or omissions,
and attention that HENDRIK reasonably would have provided and which they are reasonably
his injuries.
554. As a further direct and proximate result of CLAY TOWNSHIP, individually and
by and through its employees and/or agents’ negligent and/or reckless acts and/or omissions,
by and through its employees and/or agents’ negligent and/or reckless acts and/or omissions
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judgment in their favor and against Defendant CLAY TOWNSHIP for compensatory damages in
an amount to be determined herein, for the costs of this action, prejudgment interest, for trial by
jury, and for all other relief this Court may deem proper under the circumstances.
COUNT VII
Great Lakes Capital Management LLC DBA CITY PLAZA LLC
to All Counts” as paragraph five hundred and sixty (560) of Count VII as though set out fully
herein.
561. On December 31, 2019, and at all relevant times, GREAT LAKES owned,
developed, constructed, operated, managed, maintained and otherwise controlled the City Plaza
Complex.
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562. On December 31, 2019, and at all relevant times, GREAT LAKES owned,
developed, constructed, operated, managed, maintained and otherwise controlled the Subject Pond
and the Nearby Pond.
563. Prior to December 31, 2019, and at all relevant times, GREAT LAKES knew, or
through the exercise of reasonable care should have known, of the safety concerns and risks to the
public pertaining to the location of the Subject Pond.
public pertaining to the improper depth of the Subject Pond.
public pertaining to the improper slope within the Subject Pond.
public pertaining to the drainage and retention problems with the Subject Pond.
through the exercise of reasonable care should have known, that the safety concerns and dangerous
conditions pertaining to the Subject Pond were hidden to the public.
through the exercise of reasonable care should have known, of the likelihood of a vehicle
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through the exercise of reasonable care should have known, of the likelihood of serious bodily
harm to a motorist involved in a vehicle immersion event at the Subject Pond.
through the exercise of reasonable care should have known, that there were at least two (2) other
incidents that involved motorists who lost control of their vehicles at or near the Subject
through the exercise of reasonable care should have known, there was at least one (1) other incident
that involved a motorist who lost control of her vehicle at or near the Subject Intersection, which
resulted in her vehicle’s immersion in the Nearby Pond.
through the exercise of reasonable care should have known, there were at least eleven (11) recorded
vehicle immersion incidents in St. Joseph County.
573. On December 31, 2019, and at all relevant times, GREAT LAKES knew, or through
the exercise of reasonable care should have known, of the existence of hazards, defective
conditions, dangerous conditions and/or unreasonable risks at the City Plaza Complex, the Subject
574. On December 31, 2019, and at all relevant times, despite knowledge of the
aforementioned incidents and the existence of hazards, defective conditions, dangerous conditions
and/or unreasonable risks at the City Plaza Complex, the Subject Intersection and the Subject
Pond, GREAT LAKES failed to take any reasonable precautions to eliminate, address or otherwise
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respond to the existence of said unsafe property conditions at the City Plaza Complex, the Subject
575. On December 31, 2019, and at all relevant times, GREAT LAKES owed a duty of
care, including a non-delegable duty, to exercise reasonable care and caution and to refrain from
acting negligently in the development, construction, operation, management, maintenance and/or
control of the City Plaza Complex, the Subject Intersection and the Subject Pond so as to avoid
injuring the public, including Plaintiffs.
576. On December 31, 2019, and at all relevant times, GREAT LAKES owed a duty of
care, including a non-delegable duty, to exercise reasonable care and caution and to refrain from
acting negligently in the development, construction, operation, management, maintenance and/or
control of the City Plaza Complex, the Subject Intersection and the Subject Pond to ensure that no
unsafe property conditions, about which they knew or should have known, were present on and
before December 31, 2019, so as to avoid injuring the public, including Plaintiffs.
577. On December 31, 2019, and at all relevant times, GREAT LAKES committed one
or more of the following careless and negligent, acts and/or omissions:
a. Failed to properly maintain City Plaza Complex and the Subject Pond so they
existed free of unsafe property conditions;
b. Created and maintained the Subject Pond with an improper and dangerous depth in
violation of local, state and national codes and industry standards;
c. Created and maintained the Subject Pond with an improper and dangerous internal
slope in violation of local, state and national codes and industry standards;
d. Created and maintained the Subject Pond with a defective retention and drainage
system;
e. Failed to install artificial barriers at or near the Subject Pond to prevent vehicle
immersions despite knowledge of prior immersion incidents involving the Subject
Pond and the Nearby Pond;
f. Failed to install the proper number of natural barriers at or near the Subject Pond to
prevent vehicle immersions despite knowledge of prior immersion incidents
involving the Subject Pond and the Nearby Pond;
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g. Failed to warn the public of the hidden dangerous conditions of the Subject Pond,
including, but not limited to, the improper depth and improper internal slope of the
Subject Pond;
h. Failed to address the known dangerous conditions of the Subject Pond despite the
foreseeability and likelihood of vehicle immersions involving the Subject Pond;
i. Failed to address the known dangerous conditions of the Subject Pond despite the
foreseeability and likelihood of serious injury or death of a member of the public
as a result of vehicle immersions involving the Subject Pond.
578. As a direct and proximate result of GREAT LAKES, individually and by and
through its employees and/or agents’ negligent acts and/or omissions, the Subject Vehicle was
caused to become submerged in the Subject Pond.
through its employees and/or agents’ negligent acts and/or omissions, the Plaintiffs became
entrapped in the Subject Vehicle.
through its employees and/or agents’ negligent acts and/or omissions, BROOKE remained
entrapped and submerged in the near freezing temperature water of the Subject Pond for almost
twenty-five (25) minutes from the time she called 911.
through its employees and/or agents’ negligent acts and/or omissions, JAMES remained entrapped
and submerged in the near freezing temperature water of the Subject Pond for almost thirty (30)
minutes from the time BROOKE called 911.
through its employees and/or agents’ negligent acts and/or omissions, NATALIE remained
thirty-five (35) minutes from the time BROOKE called 911.
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through its employees and/or agents’ negligent acts and/or omissions, HENDRIK remained
entrapped and submerged in the near freezing temperature water of the Subject Pond for over forty
(40) minutes from the time BROOKE called 911.
through its employees and/or agents’ negligent acts and/or omissions, BROOKE suffered and will
continue to suffer severe, painful and permanent personal injuries including, but not limited to, an
anoxic brain injury resulting in spastic paraplegia, which affect her daily quality of life and ability
to function as a whole person; loss or impairment of earning capacity; permanent severe emotional
distress; loss of enjoyment of life; lost opportunities; the reasonable value of necessary medical
care, treatment, and services; and disfigurement and deformity resulting from her injuries.
through its employees and/or agents’ negligent acts and/or omissions, CHRISTOPHER has
experienced the loss of consortium of his spouse and Plaintiff herein, BROOKE.
through its employees and/or agents’ negligent acts and/or omissions, HENDRIK has experienced
the permanent loss of BROOKE’s earnings, services, kindness, and attention that BROOKE
reasonably would have provided and which he is reasonably expected to lose.
through its employees and/or agents’ negligent acts and/or omissions, HENDRIK suffered and will
continue to suffer severe, painful and permanent personal injuries including, but not limited to, a
hypoxic anoxic brain injury resulting in uniplegia and loss of speech, which affect his daily quality
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his injuries.
through its employees and/or agents’ negligent acts and/or omissions, BROOKE has experienced
the permanent loss of HENDRIK’s earnings, services, kindness, and attention that HENDRIK
reasonably would have provided and which they are reasonably expected to lose as a result of
respondent’s wrongful conduct and the reasonable value of necessary medical care, treatment, and
services HENDRIK incurred and will incur in the future as a result of his injuries.
through its employees and/or agents’ negligent acts and/or omissions, CHRISTOPHER has
experienced the permanent loss of HENDRIK’s earnings, services, kindness, and attention that
590. As a further direct and proximate result of GREAT LAKES, individually and by
and through its employees and/or agents’ negligent acts and/or omissions, JAMES suffered severe
and painful personal injuries, which resulted in death.
and through its employees and/or agents’ negligent acts and/or omissions BROOKE and
CHRISTOPHER, as the parents of JAMES, each lost services, love and companionship, and
incurred health care expenses, funeral and burial expenses, administration expenses, psychiatric
and psychological counseling expenses, as well as attorneys’ fees.
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and through its employees and/or agents’ negligent acts and/or omissions, NATALIE suffered
severe and painful personal injuries, which resulted in death.
and through its employees and/or agents’ negligent acts and/or omissions, BROOKE and
CHRISTOPHER, as the parents of NATALIE, each lost services, love and companionship, and
and through its employees and/or agents’ negligent acts and/or omissions, BROOKE suffered
damages as a result of the Negligent Infliction of Emotional Distress.
and through its employees and/or agents’ negligent acts and/or omissions, HENDRIK suffered
judgment in their favor and against Defendant GREAT LAKES ENTITIES for compensatory
damages in an amount to be determined herein, for the costs of this action, prejudgment interest,
for trial by jury, and for all other relief this Court may deem proper under the circumstances.
COUNT VIII
Bradley Company, LLC
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to All Counts” as paragraph five hundred and ninety-six (596) of Count VIII as though set out fully
herein.
597. On December 31, 2019, and at all relevant times, BRADLEY COMPANY owned,
operated, managed, maintained and otherwise controlled the City Plaza Complex.
598. On December 31, 2019, and at all relevant times, BRADLEY COMPANY owned,
operated, managed, maintained and otherwise controlled the Subject Pond and the Nearby Pond.
599. Prior to December 31, 2019, and at all relevant times, BRADLEY COMPANY
knew, or through the exercise of reasonable care should have known, of the safety concerns and
risks to the public pertaining to the location of the Subject Pond.
risks to the public pertaining to the improper depth of the Subject Pond.
risks to the public pertaining to the improper slope within the Subject Pond.
risks to the public pertaining to the drainage and retention problems of the Subject Pond.
knew, or through the exercise of reasonable care should have known, that the safety concerns and
dangerous conditions pertaining to the Subject Pond were hidden to the public.
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knew, or through the exercise of reasonable care should have known, of the likelihood of a vehicle
knew, or through the exercise of reasonable care should have known, of the likelihood of serious
bodily harm to a motorist involved in a vehicle immersion event at the Subject Pond.
knew, or through the exercise of reasonable care should have known, that there were at least two
(2) other incidents that involved motorists who lost control of their vehicles at or near the Subject
knew, or through the exercise of reasonable care should have known, there was at least one (1)
knew, or through the exercise of reasonable care should have known, there were at least eleven
609. On December 31, 2019, and at all relevant times, BRADLEY COMPANY knew,
or through the exercise of reasonable care should have known, of the existence of hazards,
defective conditions, dangerous conditions and/or unreasonable risks at City Plaza Complex, the
Subject Intersection and the Subject Pond.
610. On December 31, 2019, and at all relevant times, despite knowledge of the
aforementioned incidents and the existence of hazards, defective conditions, dangerous conditions
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and/or unreasonable risks at City Plaza Complex, the Subject Intersection and the Subject Pond,
BRADLEY COMPANY failed to take any reasonable precautions to eliminate, address or
otherwise respond to the existence of said unsafe property conditions at City Plaza Complex, the
Subject Intersection and the Subject Pond.
611. On December 31, 2019, and at all relevant times, BRADLEY COMPANY owed a
duty of care, including a non-delegable duty, to exercise reasonable care and caution and to refrain
from acting negligently in the development, construction, operation, management, maintenance
and/or control of the City Plaza Complex, the Subject Intersection and the Subject Pond so as to
avoid injuring the public, including Plaintiffs.
612. On December 31, 2019, and at all relevant times, BRADLEY COMPANY owed a
duty of care, including a non-delegable duty, to exercise reasonable care and caution and to refrain
from acting negligently in the development, construction, operation, management, maintenance
and/or control of the City Plaza Complex, the Subject Intersection and the Subject Pond to ensure
that no unsafe property conditions, about which they knew or should have known, were present on
and before December 31, 2019, so as to avoid injuring the public, including Plaintiffs.
613. On December 31, 2019, and at all relevant times, BRADLEY COMPANY
committed one or more of the following careless and negligent, acts and/or omissions:
a. Failed to properly maintain City Plaza Complex and the Subject Pond so they
existed free of unsafe property conditions;
b. Failed to properly perform its duties and responsibilities pursuant to the written
agreement;
c. Created and maintained the Subject Pond with an improper and dangerous depth in
violation of local, state and national codes and industry standards;
d. Created and maintained the Subject Pond with an improper and dangerous internal
slope in violation of local, state and national codes and industry standards;
e. Created and maintained the Subject Pond with a defective retention and drainage
system;
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f. Failed to install artificial barriers at or near the Subject Pond to prevent vehicle
immersions despite knowledge of prior immersion incidents involving the Subject
Pond and the Nearby Pond;
g. Failed to install the proper number of natural barriers at or near the Subject Pond to
prevent vehicle immersions despite knowledge of prior immersion incidents
involving the Subject Pond and the Nearby Pond;
h. Failed to warn the public of the hidden dangerous conditions of the Subject Pond,
including, but not limited to, the improper depth and improper internal slope of the
Subject Pond;
i. Failed to address the known dangerous conditions of the Subject Pond despite the
foreseeability and likelihood of vehicle immersions involving the Subject Pond;
j. Failed to address the known dangerous conditions of the Subject Pond despite the
foreseeability and likelihood of serious injury or death of a member of the public
as a result of vehicle immersions involving the Subject Pond.
614. As a direct and proximate result of BRADLEY COMPANY, individually and by
and through its employees and/or agents’ negligent acts and/or omissions, the Subject Vehicle was
caused to become submerged in the Subject Pond.
and through its employees and/or agents’ negligent acts and/or omissions, the Plaintiffs became
entrapped in the Subject Vehicle.
and through its employees and/or agents’ negligent acts and/or omissions, BROOKE remained
twenty-five (25) minutes from the time she called 911.
and through its employees and/or agents’ negligent acts and/or omissions, JAMES remained
thirty (30) minutes from the time BROOKE called 911.
98
and through its employees and/or agents’ negligent acts and/or omissions, NATALIE remained
thirty-five (35) minutes from the time BROOKE called 911.
and through its employees and/or agents’ negligent acts and/or omissions, HENDRIK remained
entrapped and submerged in the near freezing temperature water of the Subject Pond for over forty
(40) minutes from the time BROOKE called 911.
and through its employees and/or agents’ negligent acts and/or omissions, BROOKE suffered and
will continue to suffer severe, painful and permanent personal injuries including, but not limited
to, an anoxic brain injury resulting in spastic paraplegia, which affect her daily quality of life and
ability to function as a whole person; loss or impairment of earning capacity; permanent severe
emotional distress; loss of enjoyment of life; lost opportunities; the reasonable value of necessary
medical care, treatment, and services; and disfigurement and deformity resulting from her injuries.
and through its employees and/or agents’ negligent acts and/or omissions, CHRISTOPHER has
experienced the loss of consortium of his spouse and Plaintiff herein, BROOKE.
and through its employees and/or agents’ negligent acts and/or omissions, HENDRIK has
experienced the permanent loss of BROOKE’s earnings, services, kindness, and attention that
BROOKE reasonably would have provided and which he is reasonably expected to lose.
99
and through its employees and/or agents’ negligent acts and/or omissions, HENDRIK suffered and
will continue to suffer severe, painful and permanent personal injuries including, but not limited
to, a hypoxic anoxic brain injury resulting in uniplegia and loss of speech, which affect his daily
quality of life and ability to function as a whole person; loss or impairment of earning capacity;
permanent severe emotional distress; loss of enjoyment of life; lost opportunities; the reasonable
value of necessary medical care, treatment, and services; and disfigurement and deformity
resulting from his injuries.
and through its employees and/or agents’ negligent acts and/or omissions, BROOKE has
and through its employees and/or agents’ negligent acts and/or omissions, CHRISTOPHER has
626. As a further direct and proximate result of BRADLEY COMPANY, individually
and by and through its employees and/or agents’ negligent acts and/or omissions, JAMES suffered
severe and painful personal injuries, which resulted in death.
100
and by and through its employees and/or agents’ negligent acts and/or omissions BROOKE and
and by and through its employees and/or agents’ negligent acts and/or omissions, NATALIE
suffered severe and painful personal injuries, which resulted in death.
and by and through its employees and/or agents’ negligent acts and/or omissions, BROOKE and
and by and through its employees and/or agents’ negligent acts and/or omissions, BROOKE
suffered damages as a result of the Negligent Infliction of Emotional Distress.
and by and through its employees and/or agents’ negligent acts and/or omissions, HENDRIK
suffered damages as a result of the Negligent Infliction of Emotional Distress.
judgment in their favor and against Defendant BRADLEY COMPANY ENTITIES for
101
compensatory damages in an amount to be determined herein, for the costs of this action,
prejudgment interest, for trial by jury, and for all other relief this Court may deem proper under
the circumstances.
COUNT IX
Motorola Solutions, Inc.
to All Counts” as paragraph six hundred and thirty-two (632) of Count IX as though set out fully
herein.
633. At all relevant times, MOTOROLA owed a duty of care, including a non-delegable
duty, to exercise reasonable care and caution and to refrain from acting recklessly in the full
implementation of the P1 System.
duty, to exercise reasonable care and caution and to refrain from acting recklessly in the training
of the PSCC staff on the P1 System.
duty, to exercise reasonable care and caution and to refrain from acting recklessly in complying
with the safety duties and responsibilities set forth in the written agreement between ST. JOSEPH
COUNTY and MOTOROLA.
636. Notwithstanding said duties, on and prior to December 31, 2019, MOTOROLA
committed one or more of the following negligent, grossly negligent and/or reckless acts and/or
omissions:
a. Failed to properly uninstall the Former CAD System;

b. Failed to properly install the P1 System;
c. Failed to adequately train the PSCC staff on the use and operation the P1 System;
102
d. Failed to adequately test the PSCC staff on the use and operation of the P1 System;
e. Failed to adequately supervise the PSCC staff on the use and operation of the P1
System;
f. Failed to adequately create, implement and enforce proper training policies and
procedures for the PSCC staff;
g. Failed to adequately create, implement and enforce proper quality assurance
policies and programs;
h. Failed to address and solve known and repeated handling, reporting and dispatching
errors committed by the PSCC staff leading up to the Subject Incident;
i. Failed to allow the sufficient amount of time required to properly implement the
functional P1 System;
j. Failed to properly install the P1 System and train the PSCC staff pursuant to internal
training policies, procedures and protocols;
k. Failed to properly install the P1 System and train the PSCC staff pursuant to state
and national protocols and industry customs;
l. Failed to properly train the PSCC staff pursuant to the P1 System User Manual;
m. Failed to properly train the PSCC staff pursuant to the P1 System Lesson Plan;
n. Failed to properly train the PSCC staff pursuant to the TTT Outline;
o. Carelessly implemented, launched and allowed to remain in operation a P1 System
with numerous known and unresolved provisioning issues, including, but not
limited to, mapping, reporting, importing, formatting and processing data;
p. Carelessly implemented, launched and allowed to remain in operation a P1 System
with numerous known and unresolved compatibility issues between interfaces and
software products within the P1 System and those within the departments’ systems;
q. Carelessly implemented, launched and allowed to remain in operation a P1 System
with numerous known and unresolved issues with the Recording System not
properly syncing;
r. Carelessly implemented, launched and allowed to remain in operation a P1 System
with numerous known and unresolved issues with verifying the location of an
incident;
s. Carelessly implemented, launched and allowed to remain in operation a P1 System
without a CAD manager and/or technician on site at the PSCC;
t. Carelessly implemented, launched and allowed to remain in operation a P1 System
with numerous known and unresolved issues with the GIS software;
u. Carelessly implemented, launched and allowed to remain in operation a P1 System
with numerous known and unresolved issues with the ProQA software;
v. Carelessly implemented, launched and allowed to remain in operation a P1 System
with numerous known and unresolved issues with the ADSi software;
103
w. Carelessly implemented, launched and allowed to remain in operation a P1 System
with numerous known and unresolved issues with the PulsePoint software;
x. Carelessly decided to delay necessary PSCC staff training on the P1 System until
after the busy holidays knowing the P1 System was not properly implemented and
the PSCC staff was not properly trained;
y. Carelessly allowed the PSCC staff to circumvent required P1 System training
classes presented by MOTOROLA.
637. As a direct and proximate result of MOTOROLA, individually and by and through
its employees and/or agents’ negligent acts and/or omissions, the PSCC dispatched the wrong
department, CFD, to respond to the Subject Incident.
its employees and/or agents’ negligent acts and/or omissions, the PSCC dispatched CFD to the
wrong location, University Drive and Fir Rd., instead of the Subject Intersection.
its employees and/or agents’ negligent acts and/or omissions, the PSCC then dispatched MFD to
the Subject Incident at the Subject Intersection without MFD Rescue 1 unit.
its employees and/or agents’ negligent acts and/or omissions, the first group of personnel to arrive
at the Subject Pond, including, but not limited to CFD and MFD personnel, did not have the
necessary members, apparatuses and/or equipment to perform an underwater rescue.
its employees and/or agents’ negligent acts and/or omissions, there was a significant delay in
dispatching MFD Rescue 1 to the Subject Pond.
its employees and/or agents’ negligent acts and/or omissions, BROOKE, JAMES, NATALIE and
104
Subject Pond while CFD, MFD and other departments waited for the arrival of MFD Rescue 1.
its employees and/or agents’ negligent acts and/or omissions, MFD Rescue 1 did not have the
proper amount of water rescue equipment and apparatuses because they were unaware of the
number of people entrapped in the Subject Vehicle.
its employees and/or agents’ negligent acts and/or omissions, MFD, CFD and other department
personnel were unaware that HENDRIK was still trapped in the submerged Subject Vehicle when
the emergency personnel exited the Subject Pond and ordered that the Subject Vehicle be removed
by a tow-truck.
its employees and/or agents’ negligent and/or reckless acts and/or omissions, MFD, CFD and other
department personnel failed to remove HENDRIK from the Subject Vehicle until after the Subject
Vehicle was removed from the Subject Pond by a tow-truck.
its employees and/or agents’ negligent acts and/or omissions, BROOKE remained entrapped and
submerged in the near freezing temperature water of the Subject Pond for almost twenty-five (25)
minutes from the time she called 911.
its employees and/or agents’ negligent acts and/or omissions, JAMES remained entrapped and
submerged in the near freezing temperature water of the Subject Pond for almost thirty (30)
105
its employees and/or agents’ negligent acts and/or omissions, NATALIE remained entrapped and
submerged in the near freezing temperature water of the Subject Pond for almost thirty-five (35)
its employees and/or agents’ negligent acts and/or omissions, HENDRIK remained entrapped and
submerged in the near freezing temperature water of the Subject Pond for over forty (40) minutes
from the time BROOKE called 911.
its employees and/or agents’ negligent acts and/or omissions, BROOKE suffered and will continue
to suffer severe, painful and permanent personal injuries including, but not limited to, an anoxic
brain injury resulting in spastic paraplegia, which affect her daily quality of life and ability to
function as a whole person; loss or impairment of earning capacity; permanent severe emotional
distress; loss of enjoyment of life; lost opportunities; the reasonable value of necessary medical
care, treatment, and services; and disfigurement and deformity resulting from her injuries.
its employees and/or agents’ negligent acts and/or omissions, CHRISTOPHER has experienced
the loss of consortium of his spouse and Plaintiff herein, BROOKE.
its employees and/or agents’ negligent acts and/or omissions, HENDRIK has experienced the
permanent loss of BROOKE’s earnings, services, kindness, and attention that BROOKE
reasonably would have provided and which he is reasonably expected to lose.
106
its employees and/or agents’ negligent acts and/or omissions, HENDRIK suffered and will
continue to suffer severe, painful and permanent personal injuries including, but not limited to, a
hypoxic anoxic brain injury resulting in uniplegia and loss of speech, which affect his daily quality
his injuries.
its employees and/or agents’ negligent acts and/or omissions, BROOKE has experienced the
permanent loss of HENDRIK’s earnings, services, kindness, and attention that HENDRIK
services HENDRIK incurred and will incur in the future as a result of his injuries.
its employees and/or agents’ negligent acts and/or omissions, CHRISTOPHER has experienced
the permanent loss of HENDRIK’s earnings, services, kindness, and attention that HENDRIK
services HENDRIK incurred and will incur in the future as a result of his injuries
656. As a further direct and proximate result of MOTOROLA, individually and by and
through its employees and/or agents’ negligent acts and/or omissions, JAMES suffered severe and
painful personal injuries, which resulted in death.
107
through its employees and/or agents’ negligent acts and/or omissions, BROOKE and
through its employees and/or agents’ negligent acts and/or omissions, NATALIE suffered severe
and painful personal injuries, which resulted in death.
through its employees and/or agents’ negligent acts and/or omissions, BROOKE and
through its employees and/or agents’ negligent acts and/or omissions, BROOKE suffered damages
as a result of the Negligent Infliction of Emotional Distress.
through its employees and/or agents’ negligent acts and/or omissions, HENDRIK suffered
judgment in their favor and against Defendant MOTOROLA SOLUTIONS, INC. for
108
compensatory and punitive damages in an amount to be determined herein, for the costs of this
action, prejudgment interest, for trial by jury, and for all other relief this Court may deem proper
under the circumstances.
Respectfully submitted:
/s/ Molly M. Heber

One of Plaintiffs’ Attorneys
Molly M. Heber (34135-45)

JOHN M. MOLLOY LAW GROUP
177 N. State St., 3rd Floor
Chicago, IL 60601
(312) 346-4444 (phone)
(312) 346-4455 (fax)
molly@molloy-law.com
109

Complaint For Damages and Jury D

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Complaint For Damages and Jury D

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Filed: 11/29/2021 2:47 PM

STATE OF INDIANA ) IN THE ST. JOSEPH SUPERIOR/CIRCUIT COURT

BROOKE KLEVEN and CHRISTOPHER )

PLAINTIFFS’ COMPLAINT AT LAW AND JURY DEMAND

NOW COME Plaintiffs BROOKE KLEVEN and CHRISTOPHER KLEVEN, Individually

JOSEPH COUNTY, a municipal corporation, JEFFREY DOWNEY, in his official capacity,

JENNIFER STITSWORTH, in her official capacity, CITY OF MISHAWAKA, CLAY

1. Plaintiffs hereby demand a trial by jury.

JURISDICTION AND VENUE

5. Defendant ST. JOSEPH COUNTY, Defendant CITY OF MISHAWAKA, and

6. The claims related to Decedent JAMES KLEVEN (“JAMES”) and Decedent

34-23-2-1 et seq., commonly known as the Child Wrongful Death Act.

7. At all relevant times, Plaintiffs BROOKE KLEVEN and CHRISTOPHER

County of St. Joseph, and State of Indiana.

Joseph, and State of Indiana.

governmental entity organized under the laws of the State of Indiana.

of Mishawaka, County of St. Joseph, and State of Indiana.

Defendant, JENNIFER STITSWORTH (“STITSWORTH”), who was a Telecommunicator for the

governmental entity organized under the laws of the State of Indiana.

governmental entity organized under the laws of the State of Indiana.

19. At all relevant times, Defendant GREAT LAKES CAPITAL MANAGEMENT,

Bend, County of St. Joseph, and State of Indiana.

20. At all relevant times, Defendant BRADLEY COMPANY, LLC (“BRADLEY”)

21. At all relevant times, Defendant MOTOROLA SOLUTIONS, INC.

FACTS COMMON TO ALL COUNTS

A. Scene and Surrounding Area

northwest corners of the Subject Intersection.

of the Subject Intersection.

and City Plaza North (“Nearby Pond”).

long by sixty (60) feet wide.

Intersection and the Subject Pond.

disclosed the depth of the Subject Pond.

the depth of the Subject Pond.

B. Prior Pond Immersions

Intersection, which resulted in vehicle immersions in the Subject Pond.

Intersection, which resulted in her vehicle’s immersion in the Nearby Pond.

(11) recorded vehicle immersion incidents in St. Joseph County.

approximately 30 (thirty) degrees.

Pond was near freezing.

and near the Subject Intersection were icy and slippery.

D. St. Joseph County and the Public Safety Communications Consortium

among other things, the PSCC.

JOSEPH COUNTY, acting by and through the PSCC.

Quality Assurance Manager, Communications Supervisors, Supervising Telecommunicators, and

which did not include the Communications Supervisor.

at the PSCC: a Day Shift; an Afternoon Shift; and a Night Shift.

received the highest number of calls of all the shifts.

one of the busiest days of the year for the PSCC.

Calls regarding incidents that involved sinking vehicles with occupants.

E. City of Mishawaka Fire Department

Department (“MFD”) as a division.

water rescue unit commonly referred to as Rescue 1 (“MFD Rescue 1”).

respond to incidents involving below-surface water rescues.

F. Clay Township Fire Department

department commonly referred to as Clay Township Fire Department (“CFD”).

any of its CFD stations, including CFD Station 21.

apparatuses required to perform a below-surface water rescue.

G. South Bend Fire Department

department commonly referred to as the South Bend Fire Department (“SBFD”).

commonly referred to as Rescue 1 (“SBFD Rescue 1”).

surface water rescues.

H. The Subject Incident

in an eastbound direction on East University Drive toward the Subject Intersection.