William Jones 10000 Mount High Blvd. Nowhere, California SUPERIOR COURT OF CALIFORNIA COUNTY OF CALAMITY William Jones ) CASE NO. ________ ) Plaintiff, ) FIRST AMENDED ACTION ) OF TRESPASS, AND v. ) TRESPASS ON THE CASE ) ROBERT SMITH; ) VERIFIED MARY SMITH, a minor; ) and STATE OF CALIFORNIA; ) ) Defendants. ) ________________________________)_____________________________________________1. This First Amended Action amends by entire substitution the action filed October 7, 1998, in the above entitled court.
CAUSE OF ACTION2. William Jones (hereinafter "Plaintiff") is one of the people of California, and in this court of record complains of Mary Smith (hereinafter "Defendant-A"), Robert Smith (hereinafter "Defendant-B"), and State of California (hereinafter "Defendant-C"), who are each summoned to answer the said Plaintiff in a plea of trespass and trespass on the case, to wit:
3. Defendant-A is a minor, licensed by Defendant-C to drive a motor vehicle and to exercise all powers and authority implied by that license. Defendant-A's license number is Z987654321. Defendant-A is the driver in command of the motor vehicle (hereinafter "vehicle"), the license number of which appears to be 9ZZZ999 granted by Defendant-C on Exhibit-1.
4. Defendant-B is parent of Defendant-A, and is jointly and severally liable with Defendant-A for the damages proximately and legally resulting from Defendant-A's action. Defendant-B, according to the official report (Exhibit-1), is the registered owner of the vehicle licensed by Defendant-C.
5. Defendant-C (who is DOE 1 of the former action, and who's person, actions, and relationships are now ascertained) is the owner of the vehicle. The nature of Defendant-C's ownership is allodial. Defendant-C is the true holder of the Manufacturer's Statement of Origin ("MSO" or "allodial title"). Defendant-C licenses and bails the vehicle for legal and registered ownership and for use only by licensed drivers (bailees). Defendant-C is jointly and severally liable with Defendant-A and Defendant-B for the damages proximately and legally resulting from Defendant-A's actions. Defendant-C, according to Defendant-C's official report, is the licensor of Defendant-A and of the vehicle.
6. As licensor, Defendant-C shows three significant characteristics which are admitted and mandated in Defendant-C's secondary controlling rules, the California Vehicle Code: (a) Defendant-C receives a direct financial benefit from Defendant-C's actions and from bringing Defendant-C's and others' services, products, and actions into the stream of commerce. (b) Defendant-C's role is integral to the Defendant-C's transportation business of bringing Defendant-C's own and others' services, products, actions, and licensees into the stream of commerce; and (c) Defendant-C has close operational non-discretionary control over, or a substantial ability to influence, the production and distribution of said services, products, and actions; and actively micromanages at great expense through several statewide and local agency organizations such as California Highway Patrol. Defendant-C effects the licenses through its various agencies such as the Business, Transportation and Housing Agency, Department of Motor Vehicles, and local police to assure high quality standards and both voluntary and involuntary participation in the stream of commerce. Defendant-C's services, products, and actions include, but are not limited to, training programs, testing programs, licensed drivers, certificates of competency, investigations, reports, analyses, and close monitoring for quality assurance, all for the purpose of motor vehicle operation in the stream of commerce.
7. At all times mentioned in this action Defendant-A and Defendant-B are each the agent and bailee of the other and of Defendant-C, and in doing the things alleged in this action, each is acting within the course and scope of this agency and bailment.
8. Exhibit-1 (official report), Exhibit-2 (photographs), Exhibit-3 (medical records), Exhibit-4 (medical expenses), and Exhibit-5 (copies of x-rays of injuries) are included by reference as though fully stated herein. The physical injuries, examinations, treatments, and surgeries are reported in Exhibit-3. Exhibit-2 contains two photographs showing the external appearance of some of the injuries that the doctors are unable to permanently correct. Exhibit-5 is the x-rays of the injuries. Because of a Demand for Production and Inspection of Documents by Defendant-A and Defendant-B, Exhibit-5 is in full possession and control by Defendant-A, Defendant-B, and defendants' agents for examination by all defendants, and for presentation at trial.
9. On October 8, 1997, in the city of Disruption, County of Calamity, California, Plaintiff William Jones duly travels on a bicycle eastward on Highland. By right, Plaintiff reasonably expects to proceed without injury, secure in his capacities. Mary Smith (Defendant-A), drives the vehicle northward on Oleander. Defendant-A turns eastward onto Highland. Defendant-A does not yield the right of way to Plaintiff. Defendant-A, while controlling the vehicle, causes the vehicle to violently collide with Plaintiff directly causing injuries to Plaintiff. The first points of contact are the vehicle's left end of the front bumper at the left front quarter panel, and Plaintiff's right foot and the bicycle rear wheel at a point behind the right pedal assembly. The initial impact bent the rear wheel. The injuries itemized in Exhibit-3 require ongoing medical treatment, surgery, and therapy. Defendant-A's action causes permanent diminishing of Plaintiff's capacity to perform his primary trade of heavy construction work. Plaintiff's ability to perform his secondary skills as a field architect are likewise diminished. Of necessity, Plaintiff is now occasionally doing low-paying odd jobs and mechanical work on cars, despite the accompanying pain.
10. Defendant-A had a duty to not act in such a way as to cause injuries to Plaintiff. The City of Disruption Police Department official Traffic Collision Report (Local Report Number T999-87654) (Exhibit-1) by peace officer Copper, and reviewed the following day by CPL Maninblu, on State of California CHP forms, details the statements of the parties and the official administrative opinion that, "the collision occurred when Smith failed to yield to traffic after stopping at the stop sign, in violation of VC 21802(a)" (Exhibit-1, Page 5).
11. Fire department paramedics provide emergency help to Plaintiff. Plaintiff is transported by Breakumore ambulance to Community Hospital of Calamity, Emergency Department. Plaintiff incurred, is incurring, and continues to incur medical bills for treatments, surgeries, and therapies. The bodily injuries, treatments, surgeries, and therapies are detailed in Exhibit-3. The operative/procedure record of Surgeon I. Wuzza Barber, M.D., dated December 19, 1997, particularly describes the extent of the shoulder injuries. The expenses for treatments, surgeries, and therapies are detailed in Exhibit-4. As a direct and legal result of the actions of Defendant-A, Plaintiff was injured in his health, strength, and activity, sustaining injury to his person, all of which injuries cause Plaintiff great mental, emotional, and physical pain and suffering.
12. As a further direct and legal result of the actions of Defendant-A, Plaintiff incurs, and continues to incur, medical and related expenses. Plaintiff does not know at this time the exact amount of medical expenses that are incurring. When Plaintiff has ascertained this amount, Plaintiff will seek leave of court, orally or in writing, to amend this complaint to insert this amount.
13. As a further direct and legal result of the actions of Defendant-A, Plaintiff's earning capacity is greatly impaired. Plaintiff's quality of life is permanently decreased: no longer is there a very active life style nor participation in such sports as Aikido, tennis and working out in a gym. This is summarized in the report of Osteo Karacus, D.C. on March 28, 1999.
COUNT 1 OF CAUSE OF ACTION14. Paragraphs 2 through 13 of CAUSE OF ACTION are included by reference as though fully stated herein.
15. By right, Plaintiff reasonably expects to proceed without injury, secure in his capacities.
16. Defendant-A, the driver in command, has a legal duty to use due care and not cause an injury to Plaintiff.
17. Defendant-A breached that duty by proximately or legally, and directly, causing the injuries to Plaintiff.
18. The damages claimed are all a result of the injuries.
COUNT 2 OF CAUSE OF ACTION19. Paragraphs 2 through 13 of CAUSE OF ACTION are included by reference as though fully stated herein.
TRESPASS ON THE CASE
20. By right, Plaintiff reasonably expects to proceed without injury, secure in his capacities.
21. Defendant-A, the driver in command, has a legal duty to use due care and yield the right of way to Plaintiff.
22. Defendant-A breached that duty by not yielding the right of way, proximately or legally, and directly, causing the injuries to Plaintiff.
23. The damages claimed are all a result of the injuries.
COUNT 3 OF CAUSE OF ACTION24. Paragraphs 19 through 23 of CAUSE OF ACTION are included by reference as though fully stated herein.
TRESPASS ON THE CASE
VICARIOUS LIABILITY: MASTER-SERVANT RELATIONSHIP
25. Defendant-A and Defendant-B have a servant relationship with their master, Defendant-C. Defendant-C requires that when driving a motor vehicle, the driver in command must strictly follow the rules of the California Vehicle Code. Any breach of the rules may result in citation and prosecution of the violator.
26. The master, by virtue of the relationship, necessarily maintains control (with plentiful assistance from its agents known as peace officers), whether direct or indirect, over the subject servant. For purposes of this count, the terms "licensor," "master," "bailor," "lessor," "employer", "principal," "state," and "government agency" are analogous. For purposes of this count, the terms "licensee," "servant," "bailee," "lessee," "employee," "agent," "citizen," and "subject" are analogous. They are analogous because the chain of authority from master to servant creates a vicarious liability for the master; i.e. he assumes the mantle of responsibility and risk for the servant's actions while the servant is acting in the course of the master's normal expectations and directions.
27. Defendant-C has provided the rules, the California Vehicle Code for Defendant-A to obey. That alone is not sufficient for vicarious liability. However, Defendant-C has chosen to be involved beyond the mere level of policy making. Defendant-C is intimately, operationally involved, with no discretionary authority, with every level of its licensee's actions as it relates to the operation of a motor vehicle. And, because it is in commerce, it is all the more liable: by its own choice, every action by the Vehicle Code enforcement agents and Defendant-C is described in micro detail in the Vehicle Code with no opportunity for the free exercise of policy-level discretion.
28. In summary, Defendant-C has a participatory connection for a personal profit or other benefit; is involved with injury-producing services and products; is involved in the promotion and creation of demand for, and reliance on, its services; is one or more interrelated and dependent links in the chain from creation to execution of the products and services. It must necessarily assume the cloak of responsibility for its direct, operational, non-discretionary involvement.
COUNT 4 OF CAUSE OF ACTION29. Paragraphs 19 through 23 of CAUSE OF ACTION are included by reference as though fully stated herein.
TRESPASS ON THE CASE
VICARIOUS LIABILITY: PARENT-CHILD RELATIONSHIP
30. Defendant-B has custody of Defendant-A, a minor.
31. Defendant-A was operating the vehicle with the permission of Defendant-B.
LAW OF THE CASE32. The law of this case is further decreed:
33. If any claim, statement, fact, or portion in this action is held inapplicable or not valid, such decision does not affect the validity of any other portion of this action.
34. The singular includes the plural and the plural the singular.
35. The present tense includes the past and future tenses; and the future the present, and the past the present.
36. The masculine gender includes the feminine and neuter.
37. California Vehicle Code, Section 21802. (a) The driver of any vehicle approaching a stop sign at the entrance to, or within, an intersection shall stop as required by Section 22450. The driver shall then yield the right-of-way to any vehicles which have approached from another highway, or which are approaching so closely as to constitute an immediate hazard, and shall continue to yield the right-of-way to those vehicles until he or she can proceed with reasonable safety.
38. The Federal Rules of Civil Procedure are the rules of the above entitled court. The rules shall be construed and administered to secure the just, speedy, and inexpensive determination of this action.
SIMPLEX DICTUM39. Power is never without responsibility. And when authority derives in part from Government's thumb on the scales, the exercise of that power by private persons becomes closely akin, in some respects, to its exercise by Government itself.
40. The purpose of imposing vicarious liability is to insure the costs of injuries resulting from defective actions are placed on the source of the actions and others who make the actions possible rather than on injured persons who are powerless to protect themselves. For a defendant, including a lessor, bailor or licensor, to be vicariously liable it must play an integral and vital part in the overall production and promotion activity so that the actor is in a position to affect others or, at the very least, it must provide a link in the chain of exposing the ultimate victim to the actor. The vicariously liable Defendant must be in the business of controlling, leasing, bailing, or licensing the actors.
For that cause of action therefore Plaintiff brings his suit.
WHEREFORE, Plaintiff prays judgment against Defendants, and each of them, as follows:
On all counts:
41. For general damages in the sum of $2,000,000;
42. For medical and related expenses according to proof;
43. For loss of earnings according to proof;
44. For interest as allowed by law;
45. For costs of suit incurred and attorney's fees; and
46. For such other and further relief as the court may deem proper.
I declare under penalty of perjury that the foregoing facts are true and correct to the best of my knowledge.
June 7, 1999, Calamity, California