Complaint for damages, demand for jury trial

8/20/2019 Complaint for damages, demand for jury trial

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SUPERIOR COURT OF THE STATE OF WASHINGTON

FOR THURSTON COUNTY

B.W., an individual,

Plaintiff,

vs.

BLACK HILLS FOOTBALL CLUB, a

Washington nonprofit corporation; DAVID

E. CROSS and KIMBERLY

S

CROSS,

individually, and as a marital community,

Defendants.

NO.

COMPLAINT FOR DAMAGES

Demand for Jury Trial

COMES NOW Plaintiffs, by and through their attorneys Darrell L Cochran and Kevin

M Hastings, and the law firm

of

Pfau Cochran V ertetis Amala PLLC, and brings this cause of

action against Defendants, and allege the following:

I

P RTIES

1 1

At all relevant times, B.W. was a resident of Thurston County, Washington.

Plaintiff was a minor at the time of the sexual abuse and exploitation alleged herein. To

prevent further damage and injury to the Plaintiff, this complaint for damages identifies her by

initials only. Plaintiff will be identified more fully in discovery or by amendment.


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911

Pacific Avenue, Suite 200

Tacoma,

W

98402

Phone (253) ?T -0799 Facsimile (2'i3) 627-06'i4


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1.2 At all relevant times, Defendant Black Hills Football Club (hereinafter,

"BHFC") is a nonprofit corporation organized under the laws of Washington that operates in

Thurston County, Washington.

1 3

At all relevant times, Defendants David Cross and Kimberly Cross were

residents of Thurston County, Washington. Upon information and believe, they are still

residents of Thurston County.

II.

JURISDICTION AND VENUE

2 1

Under article IV, section 6 of the Washington State Constitution, the Superior

Court, Thurston County, has universal original jurisdiction over this lawsuit. The Court also

has personal jurisdiction over each named defendant.

2.2 Venue is proper within Thurston County because Defendants reside m

Thurston County, Washington. It is also where the torts detailed below were committed.

III FACTS

3 1 B W was born in 1992 and has played soccer since she was 6 years old. In or

around 2005, when she was 13 years-old, B.W. joined BHFC. At first, she made the "B"

team but was promoted to the

A

team within a few months. David Cross, a man who was

then in his mid-to-late 40s, was the coach for the A team.

3.2 Cross was B.W.'s coach for about five years. This was unusual because

coaches would normally rotate teams every couple of years to give players experience in

dealing with different coaching styles.

3.3 Although B.W. did not know

it

at the time, Cross began grooming her for

sexual contact from the time he first met her. Cross had the phone numbers for every player

and texted his favorite players occasionally.

3.4 By January 2009, when B.W. was 16

years-old, the grooming escalated and

Cross was texting her more frequently. At first, Cross was texting weekly with soccer-related

questions, but then he began texting her daily with friendlier conversations. B.W. liked the


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attention because she admired Cross as her mentor, having worked harder for him than any

other person and learning valuable life lessons through mental and physical discipline. B.W.

started in 2005 at the bottom

of

the skill level on the team and by 2009 was at the top on the

starting lineup. This increase in confidence and talent level was reinforced by her mentor

Cross.

3.5

Eventually, the text conversations escalated to the point where Cross asked

B.W. how far she had been with a boy. B.W. was embarrassed that he asked such a private

question, but she still told Cross.

3.6

Cross continued grooming B.W. and started becoming increasingly physical.

On

the first occasion, Cross was at a bar and B.W. crashed her bike. She went to him for help

with wound care and he attempted to kiss her. On the second occasion, Cross asked B.W. to

meet her at Tumwater Falls Park. Cross held her hand and said that he had a dream about her

in a nightgown and getting naked. Only 17 years-old at the time, B.W. was shocked,

uncomfortable, and flattered at the same time.

3.7

Eventually, Cross started talking to B.W. about sex. Through manipulation

and constant grooming, Cross convinced B.W. to have sexual intercourse with him and lose

her virginity before college. B.W. was 17 years-old. Cross met B.W. at LBA Park, near

Margaret McKenny Elementary School, and he took her virginity inside his white van before

her school soccer tryouts later that day. On another occasion B.W. met Cross at Ferrellis

off

Yelm Highway in the parking lot. He was far too intoxicated to drive so B.W. had to sit with

him to prevent him from injuring himself or others.

3.8

Cross told B.W. several times throughout the relationship that what "they"

were doing was wrong and illegal and that "they" could get in a lot

of

trouble. Cross insisted

that B.W. never tell anyone for the rest

of

her life.

3.9

Cross had sexual intercourse with

B

W. several more times in various locations

throughout Thurston County, including in the back

of

his van, the Red Lion Hotel and in the


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middle of three public parks. B.W. never instigated the sexual contact, which was always

solely initiated by Cross for his own sexual gratification. She was going along because she

thought that was the only way to have an adult friend at the time.

3.10 Cross also pleaded and begged B.W. to join in sexual acts in his hotel room

while the entire team was in California for a tournament. She refused his offers and wanted to

be with the team instead. Cross finally forced B.W. to kiss her while the team was in Disney

Land, California, to celebrate the end of the tournament.

3.11 Upon information and belief, BHFC did not have any policies and procedures

in place regarding boundary invasions, social interactions between coaches and players, or

conduct for coaches while on soccer trips.

3.12 Cross attempted to have sex with B.W. in a public park. Cross also would

frequently make B.W. kiss him in public places, hold his hand, or show other affection.

3.13 Cross would often ask B.W. to send him sexually explicit photos. B.W. never

sent such photos, but Cross took photos of her while having sex. During the first or second

time Cross had sex with B.W., he used his cellular phone to take a photograph of his penis

inside of her vagina.

3.14 On February 7, 2010, Cross was with B.W. in his van parked in the

Beckonridge neighborhood. Someone called the police and reported that the van had been

there over an hour and that it was suspicious.

3.15 Police arrived and Cross pulled away. Police stopped Cross and asked what he

was doing parked in the dark in the middle of a neighborhood. Cross said that he had to stop

for a medical condition and that he was just talking to

B

W and trying to help her.

3.16 B.W. was nervous and scared, and she denied a relationship with Cross. The

police officer was suspicious of Cross's activities and did not believe he had to stop for a

medical condition and furthermore as a coach and adult [the police officer] felt [Cross's]

actions were highly suspect and inappropriate.


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911 Pacific Avenue, Suite 200

Tacoma,

WA

98402

Phone 25,) 777·0799 Facsimile. (25,) 627·06'i4


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3.17 B.W.'s parents were contacted and told about what had happened. The

following day, B.W.'s parents had Cross come over and told him that he was no longer to

have any inappropriate communication with B.W. They also had Cross sign a conduct

contract.

3.18 For B.W., she felt saved by the police because she would no longer have to

communicate with Cross or lie to her family about her activity.

3.19 After graduating, B W chose to attend Portland State, in part, so that she could

get away from Cross. There, she had an academic career marked by mood swings, anxiety,

and bouts

of

deep depression.

3 20

B

W was also having trouble with relationships. She sought counseling where

she eventually talked about what Cross had done to her. At counseling, B.W. learned in or

around August 2014 that the emotional issues she was having were related to being exploited

as a minor by Cross.

3.21 In or around January 2015, B.W. went to the authorities to reveal what Cross

had done. An investigation ensued, but Cross refused to talk to the authorities. The

detectives referred the matter to prosecutors for criminal charges, but the prosecutor

ultimately did not pursue the matter because the statute of limitations had ran for the crimes

referred.

IV CAUSES OF CTION

A First Cause

o

Action: Intrusion Upon Exclusion and Violation o Privacy

4 1

Plaintiff re-alleges the paragraphs set forth above.

4.2 The common law right

of

privacy exists in this state and individuals may

bring a cause of action for invasion of that right. Reid v Pierce County, 136 Wn.2d 195,

206,

961

P.2d 333 (1998);

Mark v Seattle times,

96 Wn.2d 473, 635 P.2d

1081

(1981).

4.3 Defendant Cross intentionally intruded upon Plaintiffs solitude, seclusion and

private affairs by, inter alia, (1) taking explicit photographs of B.W. without consent and (2)


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forcing B.W. to engage in sexual acts in public places. B.W. had a legitimate and reasonable

expectation of privacy from being free from photographs and not engaging in sexual acts in

public places.

4.4 Defendant Cross s intrusion would be highly offensive to a reasonable person,

and his conduct was a proximate cause

of

damage to Plaintiff.

4.5

Defendant BHFC is vicariously liable for this conduct under the doctrine

of

respondeat superior.

B. Second Cause of

Action All forms

o

Common

Law Negligence

4.6 Plaintiff re-alleges the paragraphs set forth above.

4.7 Defendants and/or each

of

them had a special relationship with Plaintiff and

also had a duty to protect her from reasonable foreseeable harm.

4.8 At all material times herein, Cross was Defendant BHFC s employee and/or

agent, and he was under its direction and control.

4.9 Defendant BHFC knew or should have known that there was a danger that a

soccer coach could or would exploit young soccer players. The danger of adults using

positions of power to target younger children is well recognized in literature. Given the

likelihood that adult soccer coaches would target and exploit young soccer players, BHFC

should have had a system in place where at least two adults were assigned to supervise

players, particularly when transporting them or during social gatherings. BHFC should have

also had a boundary invasion, sexual harassment, and sexual misconduct policy that was

provided not only to the coaches but also to the players.

4.10 BHFC should also have had policies that prohibited coaches from (1 engaging

in social interactions with players outside of the regular team celebration milieu, (2) texting

with players or otherwise calling them on private phones for personal reasons, (3) transporting

players without set boundary invasion policies in place, and (4) transporting players while

intoxicated.


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911

Pacific Avenue, Sui te 2

Tacoma,

WA

98402

Phone (2. i,)

7 1·0799

Facsimile (2 i3) 627-0654


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4.11 BHFC s failure to have such policies amounted to corporate negligence, and it

was a proximate cause of the damages complained herein.

4.12 Defendant BHFC negligently retained and supervised Cross when they knew

or should have known of his predatory pedophile tendencies and sexual abuse of minors.

Defendant BHFC failed to warn victims, parents, and others that Cross was a danger to

minors who he was coaching.

4.13 Before Cross sexually assaulted B.W., Defendant BHFC knew or should have

known that Cross had a propensity to engage in sexual acts with minors; that he had abused

minors by exploiting their respect for his position as a coach; and that he would continue to

exploit his status and offices as a coach to molest minors

if

allowed to continue to serve

as

a

coach.

4.14 Defendant BHFC knowingly allowed, permitted, and/or encouraged Cross s

abuse

of

B.W in one or more

of

the following ways: I) tolerating the sexual abuse of minors

by employees and/or agents; (2) concealing and covering-up the sexual abuse of minors by

employees and/or agents; (3) failing to report known acts of sexual misconduct with minors to

law enforcement and governmental child welfare agencies pursuant to RCW 26.44.030 and

other legal duties; (4) allowing Cross, in his capacity

as

their employee and/or agent and

servant, to have unsupervised contact with minors; ( 5) failing to warn that Cross was

exploiting minors for sexual gratification; ( 6) representing that Cross was a worthy and

honorable man when he was known to the Defendants to be a predator who sexually exploited

minors; (7) failing to timely adopt policies and procedures to identify potential and actual sex

offenders, prevent their employment and/or remove them from a role of power once their

propensity to abuse minors was known; and (8) failing to properly investigate claims of abuse

and provide solace and counseling to victims.

4.15 Defendant BHFC also negligently trained other agents by failing to appraise

them of the signs of grooming for sexual contact with minors.


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4.16 As a direct and proximate result thereof, B.W. has suffered personal physical

injuries and emotional injuries and continues to be damaged psychologically and physically

and to experience mental anguish, humiliation, and emotional distress, as well as physical

symptoms, all in an amount to be proved at trial.

C.

Third Cause

of Action: Negligent Infliction

of

Emotional Distress


4.18 Defendants owed Plaintiff a duty to use reasonable care. Defendants breached

this duty through the negligent acts described above.

4.19 Defendants breach was the proximate cause

of

emotional distress which was

manifested through Plaintiff.

4.20 As a result

of

these actions, Plaintiff sustained both general and special

damages in amounts to be proven at trial.

D. Fourth

Cause

of Action: Outrage and Intentional Infliction

of

Emotional

Distress


4.22 Defendant Cross engaged in tortious wrong doing by sexually assaulting B.W.

4.23 Defendant Cross knew that his extreme and outrageous conduct would

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irreparably and severely harm B.W., or he recklessly disregarded the same.

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4.24 As a direct and proximate result of Defendant Cross s extreme and outrageous

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conduct, B. W. suffered and continues to suffer irreparable, severe emotional distress and

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other general and special damages.

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E. Fifth

Cause

of Action: Assault and

Battery

23


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4.26 Defendant Cross intentionally engaged in harmful and offensive contact with

25 B.W. while she was a minor. This contact included sexual assault.

26


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98402

Phone (253) 777 0799 Facsimile

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4.27 As a direct and proximate result of that intentional harmful and offensive

contact, B.W. suffered general and special damages.

F. Sixth Cause of Action: False

Imprisonment


4.29 The conduct of Defendant Cross resulted in the intentional confinement,

unlawful taking, seizing and detaining of

B

W s person, which was unjustified under the

circumstances and unlawful.

4.30 Defendant Cross s conduct toward Plaintiffs constitutes false imprisonment.

4.31 As a direct and proximate result

of

the Defendant Cross s conduct, B.W.

sustained injuries and damages.

G. Seventh Cause of Action: Violation of RCW 9.68A Sexual Exploitation of

Children


4.33 Cross s actions

of

sexually assaulting and exploiting B.W. violated RCW

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9.68A, the Sexual Exploitation of Children Act, including RCW 9.68A.040, 9.68A.070, and

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9.68A.090.

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4.34 Cross s violations of RCW 9.68A, the Sexual Exploitation of Children Act,

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were done with the knowledge and acquiescence of Defendant BHFC. Accordingly, under

19 RCW 9A.08.030, the Defendant BHFC and has also violated RCW 9.68A.

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4.35 B.W. is therefore entitled to an award of attorney s fees and costs against the

2 Defendants and/or each of them pursuant to RCW 9.68A.130.

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v

RESERVATION OF RIGHTS

5 1

Plaintiffs reserve the right to assert additional claims

as

may be appropriate

following further investigation and discovery.


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WA

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Phone (253)

lT -0799

Facsimile (253) 627·0654


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VI. JURY DEM ND

2

6.1

Under the Washington State Civil Rules, Plaintiff demands that this action be

3 tried before a

jury

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VII.

PRAYER

FOR

RELIEF

5

WHEREFORE, Plaintiff prays that this Court enter a judgment against the Defendants

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and/or each

of

them on

Plaintiffs

behalf for the following:

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7.1

For special damages for medical treatment expenses, the expenses

of

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medication, and other special expenses, including lost wages, both in the past and continuing

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into the future, in amounts to be determined at the time

of

trial;

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7.2

For all general damages for pain and suffering, including physical and

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emotional, resulting from the acts complained

of

herein;

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7.3

For such attorney s fees, prejudgment interest, costs, and exemplary damages

13 allowed by RCW 9.68A.130 and other law;

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For such reasonable costs, attorney fees, prejudgment interest, and exemplary

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damages otherwise allowed under law; and

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7.5

For such other and further relief as this Honorable Court determines just in the

premises.

SIGNED this

9th

day

of

September, 2015.

4827-2788-8420, v. 1


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PF AU COCHRAN VERTETIS AMALA PLLC

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Darrell

L

Cochran, WSBA No. 22851

Kevin M. Hastings, WSBA No. 42316

Attorneys for Plaintiffs

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Complaint for damages, demand for jury trial

Documents

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