Div. I - FairWarning. Defendant Faurecia Automotive Seating, Inc., (hereinafter refen-ed to as...

ELECTRONICALLY FILED2015 May 19 PM 2:25

CLERK OF COURT - CIRCUIT

IN THE CTRCmT COURT OF SHELBY COUNTY, TENNESSEE FOR THE THTRTIETH JUDICIAL DISTRICT AT MEMPHIS

KA YLA DAVIDSON, individuaUy and as surviving parent of Maxximus Sales, deceased,

Plaintiff,

vs.

GENERAL MOTORS LLC, a Delaware Limited Liability Company,

and

) ) ) ) ) ) ) ) ) ) ) ) )

FAURECIA AUTOMOTIVE SEATING, INC., ) A Delaware Corporation,

and

FAURECIA AUTOMOTIVE SEATING, LLC, A Delaware Limited Liability Company,

and

RICHARD CHAD DAVIS, JORDANNA KATHERINE DAVIS, and ZACHARY GRAY DAVIS, as Administrators/ Personal Representatives of the Estatc of Richard L. Davis

and

HERBERT SLATERY, Ill, in his official Capacity as Attorney Gcneral for the State of Tennessee,

Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No: CT-003414-14 Div. I JURY DEMANDED

THIRD AMENDED COMPLAINT

TO THE HONORABLE JUDGES OF THE CTRCUIT COURT OF SHELBY COUNTY, TENNESSEE FOR THE THIRTIETH JUDICIAL DISTRICT AT MEMPHIS:

1

Comes now Plaintiff, Kayla Davidson, individually and as surviving parent of decedent

Maxximus Sales, by and through counsel, and hereby files her Complaint for damages and states

her causes of action against Defendants General Motors LLC; Faurecia Automotive Seating,

Inc.; Faurecia Automotive Seating, LLC; Richard Chad Davis, Jordallna Katherine Davis, and

Zachary Gray Davis, as Administrators/Personal Representatives of the estate of Richard L.

Davis, and Herbert Slatery, 1II, in his official capacity as Attorney General for the State of

Termessee as follows:

PARTIES, JURISDJCTlON, AND VENUE

1. Plaintiff Kayla Davidson (the " Plaintiff') is a resident of Cordova, Shelby County,

Tennessee.

2. Defendant General Motors LLC (hereinafter referred to as "GM LLC") is a Delaware limited

liability company with its primary office in Detroit, Michigan. GM LLC is domiciled in a

state other than TelUlessee but is authorized to conduct business in Tennessee, conducts

business in Tennessee and derives substantial economic profits from Tennessee. GM LLC is

subject to personal jurisdiction in this state. GM LLC may be served through its registered

agent for service of process, Corporation Service Company at 2908 Poston A venue,

Nashville, TN 37203.

3. In 2009, GM LLC acquired substantially all of the assets of Motor Liquidation Company

(fonnerly General Motors Corporation), and assumed certain liabilities ofthe former General

Motors Corporation, including liability for the claims asserted in this action. (GM LLC and

General Motors Corporation are hereinafter collectively referred to as "GM.")

4. This Court has personal jurisdiction over Defendant GM pursuant to TeLU1. Code Ann. § 20-

2-223(a).

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5. Defendant Faurecia Automotive Seating, Inc., (hereinafter refen-ed to as "Faurecia Inc.") is a

Delaware corporation with its primary office in Aubum Hills, Michigan. Faurecia Inc. is

domiciled in a state other than Tennessee but is authorized to conduct business in Tennessee,

conducts business in Telmessee and derives substantial economic profits trom Tennessee.

Faurecia Inc. is subject to personal jurisdiction in tltis state.

6. Defendant Faurecia Automotive Seating, LLC, (hereinafter refen'ed to as "Faurecia LLC") is

a Delaware corporation with its primary office in Aubum Hills, Michigan. Faurecia LLC is

domiciled in a state other than Tennessee but is authorized to conduct business in Tennessee,

conducts business in Tennessee and derives substantial econOnllC profits from Tennessee.

Faurecia LLC is subject to personal jurisdiction in tltis state.

7. This Court has personal jurisdiction over Defendant Faurecia Inc. and Faurecia LLC pursuant

to Tenn. Code Ann. § 20-2-223(a).

8. Richard L. Davis, the decedent tortfeasor, was a resident of Shelby County, Tennessee,

immediately prior to his death.

9. The estate of Richard L. Davis was opened III Shelby County, Telmessee, and will be

probated in Shelby County, Tennessee.

10. This Court has personal jUlisdiction over the Administrators of the estate ofRicllard L. Davis

pursuant to Tenn. Code Ann. § 20-5- 103.

11. This suit is being brought against Defendant Herbert Slatery, III (hereafter "Defendant

Slatery") in his official capacity as Attomey General for the State of Tennessee pursuant to

Tennessee Code Atmotated § 29-14-107 and Tennessee Rule of Civi l Procedure 24.04.

Defendant Slatery may be served at the Attorney General 's Office located at 425 5th Avenue

NOIih , Suite 2, Nashville, TN 37243.

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12. Venue is proper in Shelby County, Tennessee, pursuant to Tenn. Code Ann. § 20-4-101 et

seq.

FACTS

13. On April 16, 2014, Plaintiff Kayla Davidson was the driver ofa 2012 Chevrolet Malibu, VIN

IOlZC5E02CF167457 (the "Subject Vehicle"), and proceeding southbound on Covington

Pike in Memphis, Tennessee, at approximately 4:50 p.m.

14. On the same day and approximately the same time, Richard L. Davis was driving a 2006

Ford Mustang ("the Mustang") southbound on Covington Pike.

15. After striking three other vehicles, the right side of the Mustang struck the rear of the Subject

Vehicle while the Subject Vehicle was stopped at a red light.

16. After being struck by the Mustang, the front of the Subject Vehicle struck the rear of a 2000

Chevrolet Tahoe driven by Joe N. Pettis. The Subject Vehicle came to rest facing eastbound

on the grass median dividing northbound and southbound traffic on Covington Pike.

17. After striking the Subject Vehicle, the Mustang continued on to strike three additional

vehicles.

18. During the accident sequence, as the rear seat containing Maxximus Sales was forced

forward as a result of the Mustang striking the rear of the Subject Vehicle, the driver's seat of

the Subject Vehicle slid backward upon the almost simultaneous front end collision with the

Chevrolet Tahoe, and struck Plaintiff's son, the decedent, Maxximus Sales, who suffered

severe injuries that caused his ultimate death on April 19, 2014.

19. Plaintiff Kayla Davidson suffered serious injuries resulting from the accident sequence.

20. The Subject Vehicle was originally designed, engineered, manufactured and marketed by

OM and placed into the stream of commerce, where it reached the consumer in substantially

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the same condition as when it left the control of GM and had not been materially altered,

modified or damaged.

21. The driver's seat of tbe Subject Vehicle was designed, tested, engineered, manufactured,

marketed and sold by Faurecia Inc. and/or Faurecia LLC.

22. Immediately prior to the accident on April 16, 2014, the Subject Vehicle was in substantially

the same condition as when it left the control of GM and had not been matelially altered,

modified or damaged plior to the accident.

23 . At the time ofthe accident on April 16,2014, the Subject Vehicle was being used as intended

and in a manner reasonably foreseeable by GM.

24. At the time the Subject Vehicle was sold new, it was defective in its design and manufacture,

and it was unfit, unsafe and unreasonably dangerous when used as intended when it left

GM's control.

25. The accident and danger posed by the defective and unreasonably dangerous condition of the

Subject Vehicle was known or should have been known by GM.

26. The Subject Vehicle failed to function as expected.

27. Alternative feasible designs existed that would not impair the Subject Vehicle's usefulness or

desirability.

28. hmnediately plior to the accident on April 16,2014, the driver's seat of the Subject Vehicle

was in substantially the same condition as when it left the control of Faurecia Inc. and/or

Faurecia LLC and had not been materially altered, modified or damaged prior to the accident.

29. At the time of the accident on April 16, 2014, the driver's seat of the Subject Vehicle was

being used as intended and in a manner reasonably foreseeable by Faurecia Inc. and/or

Faurecia LLC.

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30. At the time the driver's seat of the Subject Vehicle was sold new, it was defective in its

design and manufacture, and it was unfit, unsafe and unreasonably dangerous when used as

intended when it left Faurecia Inc. 's and/or Faurecja LLC's control.

31. The accident and danger posed by the defective and unreasonably dangerous condition of the

driver's seat of the Subject Vehicle was known or should have been known by Faurecia inc.

and/or Faurecia LLC.

32. The driver's seat of the Subject Vehicle failed to function as expected.

33. Alternative feasible designs existed that would not impair the Subject Vehicle's driver's

seat's usefulness or desirability.

34. The alternative feasible designs would have to a reasonable probability prevented the harm

and Plaintiffs injUIies and decedent's death.

35. Decedent Maxximus Sales suffered extreme pall1 and severe injuries, including skull

fractures, hemOiThages, cerebral edema, lung contusions, and anoxic brain damage, and was

"neurologically devastated" prior to his death.

36. As a direct and proximate result of the conduct, acts and omissions of GM, Faurecia inc.

and/or Faurecia LLC, and Richard L. Davis, Maxximus Sales suffered injuries and died.

Plaintiff has additionally suffered substantial damages for which recovery is provided

pursuant to the wrongfitl death statute, TerU1. Code Ann. § 20-5-113 and/or pursuant to the

Termessee Products Liability Act of 1978, Tenn. Code Ann. § 29-28-101 e/ seq. and loss of

consottium pursuant to Tenn. Code Ann. § 20-5-113.

COUNT I - NEGLIGENCE - GM

37. Plaintiff incorporates by reference the allegations contained in the above paragraphs as if set

fOith fully herein.

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38. At all times relevant to the Complaint, GM owed to tbe general public, including the Plaintiff

and Plaintiff's decedent, a duty to design, manufacture and market only such vehicles as were

not defective and unreasonably dangerous to use.

39. GM breached its duty to Plaintitf and Plaintiff's decedent by manufacturing and marketing

the 2012 Malibu, including the Subject Vehicle, in a defective and unreasonably dangerous

condition, in tbat the seat adjustment mechanisms failed, causing Maxximus Sales's injuries

and death. Additionally, the Subject Vehicle was not crashworthy and lacked available

technologically feasible safety features and altemative designs as set forth in earlier

paragraphs.

40. The Subject Vehicle was dangerously defective und unsafe for normal and foreseeable use by

and in the presence of the public because of its unsafe design, defective manufacture and

failure of the seat adjustment mechanisms.

41. GM failed to exercise reasonable care in the manufacture and design oftbe Subject Vehicle.

42. GM knowingly failed to adequately inspect and/or test the 2012 Malibu, including the

Subject Vehicle, before and during the design, production and sale of the vehicle to the

public and/or knowingly placed the defective and unreasonably dangerous vehicle in the

stream of commerce.

43. GM negligently, recklessly and/or knowingly sold the 2012 Malibu, including the Subject

Vehicle, without technologically available safety features, despite being fully aware of tbe

important safety benefits provided by such systems.

44. GM negligently, recklessly and/or knowingly failed to warn of the potential dangers posed to

consumers and the public by the use of the Subject Vehicle.

7

45. As a direct and proximate result of the conduct, acts and omissions of GM, Maxximus Sales

suffered injuries and died. Plaintiff has additionally suffered substantial damages for which

recovery is provided pursuant to the wrongful death statute, TeIID. Code Ann. § 20-5-113

and/or pursuant to the Termessee Products Liabil ity Act of 1978, Term. Code Ann. § 29-28-

101 et seq. and loss of consortium pursuant to Tenn. Code Ann. § 20-5-113 .

COUNT 11- STRICT LIABILITY - GM

46. Plaintiff incorporates by reference each of the above paragraphs as if fully set forth herein.

47. GM designed, fabricated, produced, compounded, proceeded, assembled, developed,

manufactured, tested, distributed, sold, wan-anted and placed on the market and into the

stream of commerce a defective and unreasonably dangerous product, namely the 2012

Malibu, including the Subject Vehicle, knowing that the Subject Vehicle would reach

consumers without substantial change in the condition in which it was sold and that, at the

time the Subject Vehicle left GM's control, it was defective and in an unreasonably

dangerous condition.

48. GM knew or should have known that ultimate users, operators, and/or consumers would not

properly inspect the 2012 Malibu for defects and dangerous conditions, and that such defects

would be beyond the capabili ties of such persons, including Plaintiff.

49. On April 16, 2014, tJle Subject Vehicle was being used for the purpose for which it was

reasonably and foreseeably intended and was involved in a motor vehicle accident which was

likewise reasonably foreseeable.

50. The Subject Vehicle was defective and unreasonably dangerous because it was not

reasonably crashworthy.

8

51. The Subject Vehicle was defective and unreasonably dangerous because GM failed to use

teclmologically feasib le and available seat adjustment mechanisms.

52. The structure of the Subject Vehicle, including the seat adjustment mechanisms, was

unreasonably dangerous.

53. The Subject Vehicle was defective and unreasonably dangerous because of its unreasonable

and dangerous propensity to experience severe and unreasonable rear-end crush under

foreseeable circumstances.

54. The structure of the Subject Vehicle was unreasonably dangerous because the unibody

construction allowed the bottom panel of the car to twist upward into the vehicle.

55. GM knowingly failed to adequately test the 2012 Malibu before and during the design,

production and sale of the Subject Vehicle to the public and/or knowingly placed the

dangerously designed vehicle into the stream of commerce.

56. GM also rendered the Subject Vehicle wlreasonably dangerous by failing to adequately warn

consumers about the hazards of driving the vehicle with a defective and/or inadequately

designed, tested and manufactured seat adjustment mechanisms.



recovery is provided pursuant to the wrongful death statute, Tenn. Code Ann. § 20-5-113

and/or pursuant to the Tennessee Products Liability Act of 1978, Tenn. Code Ann. § 29-28-

101 el seq. and loss ofconsortiurn pursuant to Tenn. Code Ann. § 20-5-113.

COUNT Ul- BREACH OF WARRANTY - GM

58. Plaintiff incorporates by reference each of the above paragraphs as iffulJy set forth herein.

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59. GM warranted, both expressly and impliedly, in and through its advertisements and sales

representatives, that the 2012 Malibu, including the Subject Vehicle, was of merchantable

quality, fit for the ordinary purpose for which it was sold.

60. GM is and was aware that all motor vehicles sold in the United States must comply with the

National Traffic and Motor Vehicle Safety Act, 49 U.S.C. § 30101 el seq. (the "Act") and the

Federal Motor Vehicle Safety Standards (the "Safety Standards") issued pursuant to the Act.

By selling its products, GM is required to and does represent that its vehicles comply with

the Act and the Safety Standards.

61. GM is aware that consumers rely on its representations regarding vehicle safety when

choosing whether to buy a GM vehicle.

62. Because of the defective and unreasonably dangerous design and/or manufacture of the

Subject Vehicle as set out above, it was not of merchantable quality or fit for the ordinary

purpose for which it was sold.

63. The defective and unreasonably dangerous condition of the Subject Vehicle constituted a

breach ofGM's express and implied warranties.



recovery is provided pursuant to the wrongful death statute, TeIUl. Code Ann. § 20-5-113


101 et seq. and loss of consortium pursuant to Tenn. Code Ann. § 20-5-113.

COUNT IV -FAILURE TO WARN -GM

65 . Plaintiff incorporates by reference each of the above paragraphs as if fully set forth herein.

10

66. As more fully described above, GM designed and/or manufactured a defective and

unreasonably dangerous vehicle, namely, the 2012 Malibu, including the Subject Vehicle.

67. The Subject Vehicle was fi.lliher rendered unreasonably dangerous because an adequate

warning about the hazards associated with operating and/or using the vehicle with the defects

described above was not provided to consumers, either at or after the time that the Subject

Vehicle left GM's control.

68. At the time the Subject Vehicle left the control of GM, GM knew or in light of reasonably

available knowledge sbould have known about the danger and risk of tlle design and/or

manufacture of tile 2012 Malibu, including the Subject Vehicle.

69. The Subject Vehicle possessed characteristics, as more fully described above, which caused

damage to users and consumers of the vehicle, and GM failed to use reasonable care to

provide an adequate warning of such characteristics and dangers to users and handlers of the

vehicle, including Plaintiff.

70. The Subject Vehicle was further rendered unreasonably dangerous because an adequate

warning about the hazards associated with placing a child seat behind the driver's seat was

not provided to consumers, either at or after the time that the Subject Vehicle left GM 's

control.

71. At the time of the accident iliat is the subject of this Complaint, the Subject Vehicle was

dangerous to an extent beyond that which would be contemplated by the ordinary consumer

of the product, with the ordi nary knowledge common to the community as to the product 's

characteristics.

72. On April 16, 2014, a reasonably prudent manufactnrer would not have marketed the Subject

Vehicle ifit had knowledge of the dangerous conditions found in the Subject Vehicle.

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73. Users of the 2012 Malibu, including the Subject Vehicle, such as Ms. Davidson, did not

know and should not have been expected to know of the characteristics of the 2012 Malibu

that had the potential to cause damage and of the danger of such characteristics.



recovery is provided pursuant to the wrongful death statute, Tenn. Code Ann. § 20-5-113


101 et seq. and loss of consortium pursuant to Tenn. Code Ann. § 20-5-113.

COUNT V NEGLlGENCE FAURECIA INC AND FAURE CIA LLC


76. At all times relevant to the Complaint, Faurecia Inc. and/or Faurecia LLC owed to the

general public, including the Plaintiff and Plaintiffs decedent, a duty to design, manufacture

and market only such automotive seats as were not defective and unreasonably dangerous to

use.

77. Faurecia Inc. and/or Faurecia LLC breached its duty to Plaintiff and Plaintiffs decedent to

design, test, manufacture, inspect, market, distribute and supply automotive seats free of

unreasonable risk of physical hann to prospective owners, users, and occupants, including

Plaintiff and Plaintiffs decedent. Faurecia Inc. and/or Faurecia LLC breached its duty as

follows :

a. The driver's seat Faurecia Inc. and/or Faurecia LLC supplied for the Subject Vehicle

lacked the strength and structural integrity to hold Plaintiff in an upright and stable

position during a foreseeable collision;

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b. Faurecia Inc. and/or Faurecia LLC did not adequately test its automotive seats to

detennine whether prospective owners, users and occupants of its seats would be

exposed to an unreasonable risk of physical hann during foreseeable collisions;

c. Faurecia [nco and/or Faurecia LLC knew, or should have known, from its own crash

tests that the driver's seat it supplied for the Subject Vehicle would fail in foreseeable

collisions and that serious inj ury to the vehicle occupants in the seats or behind the

seats could result ;

d. Faurecia Inc. and/or Faurecia LLC negligently, recklessly andlor knowingly failed to

wam GM or prospective owners, users or occupants, including Plaintiff and

Plaintiffs decedent, of the unreasonabLe risk of pbysical harm associated with the

dangers of the dl;ver's seat Faurecia Inc. and/or Faurecia LLC supplied for the

Subject Vehicle.

78. The driver' s seat Faurecia Inc. and/or Faurecia LLC supplied for the 20 12 Malibu, including

the Subject Vehicle, was dangerously defective and unsafe for normal and foreseeable use by

and in the presence of the public because of its unsafe design, defective manufacture and

failure of seat track and/or seat back.

79. Faurecia Inc. and/or Faurecia LLC failed to exercise reasonable care in the manufacture and

design of the dl;ver's seat it supplied for the 2012 Malibu, including the Subject Vehicle.

80. Faurecia lJ1C. and/or Faurecia LLC knowingly failed to adequately inspect and/or test the

driver's seat it supplied for the 2012 Malibu, including the Subject Vehicle, before and

during the design, production and sale of the seat to GM and/or knowingly placed the

defective and unreasonably dangerous seat in the stream of commerce.

13

81. As a direct and proximate result of the conduct, acts and omissions of Faurecia Inc. and/or

Faurecia LLC, Maxximus Sales suffered injuries and died. Plaintiff has additionally suffered

substantial damages for which recovery is provided pursuant to the wrongful death statute,

TeJU1. Code Ann. § 20-5-113 and/or pursuant to the Tennessee Products Liability Act of

1978, Tenn. Code Ann. § 29-28-101 el seq. and loss of consortium pursuant to Tenn. Code

Ann. § 20-5-113.

COUNT VI-STRICT LIABILITY - FAURECIA INC AND FAURECIA LLC


83 . Faurecia luc. and/or Faurecia LLC designed, fabricated, produced, compounded, proceeded,

assembled, developed, manufactured, tested, distributed, so ld, warranted and placed on the

market and into the stream of commerce a defective and unreasonably dangerous product,

namely the driver' s seat Faurecia Inc. and/or Faurecia LLC supplied for the 2012 Malibu,

including the Subject Vehicle, knowing that the driver' s seat would reach consumers without

substantial change in the condition in which it was sold and that, at the time the driver' s seat

left Faurecia Inc.'s and/or Faurecia LLC's control , it was defective and in an unreasonably

dangerous condition.

84. Faurecia Inc. and/or Faurecia LLC knew or should have known that ultimate u ers, operators,

and/or consumers would not properly inspect the driver's seat it supplied for the 20 12

Malibu, including the Subject Vehicle, for defects and dangerous conditions, and that such

defects would be beyond the capabilities of such persons, including Plaintiff.

85. On Aplil16, 2014, the driver's seat of the Subject Vehicle was being used for the purpose for

which it was reasonably and foreseeably intended and was involved in a motor vehicle

accident which was likewise reasonably foreseeab le.

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86. Tbe driver's seat Faurecia Inc. and/or Faurecia LLC supplied for the 2012 Malibu, including

the Subject Vehicle, was defective and unreasonably dangerous because Faurecia Inc. and/or

Faurecia LLC fai led to use technologically feasible and avai lable seat adjustment

mechanisms.

87. The structure of the driver's seat Faurecia Inc. and/or Faurecia LLC supplied for the 2012

Malibu, including the Subject Vehicle, including the seat adjustment mechanisms were

unreasonably dangerous in a foreseeab le accident.

88. Faurecia Inc. and/or Faurecia LLC knowingly failed to adequately test the driver' s seat it

supplied for the 2012 Malibu, including the Subject Vehicle, before and during the design,

production and sale of the seat to the public and/or knowingly placed the dangerously

designed seat into the stream of commerce.

89. Faurecia Inc. and/or Faurecia LLC also rendered the dliver's seat it supplied for the 2012

Malibu, including tbe Subject Vehicle, unreasonably dangerous by failing to adequately warn

consumers about the hazards of driving thc vehicle with defective and/or inadequately

designed, tested and manufactured seat adjustment mechanisms.

90. As a direct and proximate result of the conduct, acts and omissions of Faurecia Inc. and/or

Faurecia LLC, Maxximus Sales suffered injuries and died. Plaintiff has additionally suffered

substantial damages for which recovery is provided pursuant to tbe wrongful death statute,

Tenn. Code Ann. § 20-5-113 and/or pursuant to the Tennessee Products Liability Act of

1978, TeIU1. Code Ann. § 29-28-101 e/ seq. and loss of consortium pursuant to Tenn. Code

Ann. § 20-5-113 .

COUNT VII - FAILURE TO WARN - FAURECIA iNC. AND FAUREClA LLC

91. Plaintiff incorporates by reference each of the above paragraphs as if fully set forth berein.

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92. As more fully described above, Faurecia Inc. and/or Faurecia LLC designed and/or

manufactured a defective and unreasonably dangerous automotive seat, namely, the driver's

seat Faurecia Inc. and/or Faurecia LLC supplied for the 2012 Malibu, including the Subject

Vehicle.

93. The driver's seat Faurecia Inc. and/or Faurecia LLC supplied for the 2012 Malibu, including

the Subject Vehicle, was further rendered unreasonably dangerous because an adequate

warning about the hazards associated with operating and/or using the driver's seat with the

defects described above was not provided to consumers, either at or after the time that the

seat left Faurecia Inc. 's and/or Faurecia LLC's control.

94. At the time the seat left the control of Faurecia Inc. and/or Faurecia LLC, Faurecia Inc.

and/or Faurecia LLC knew or in light of reasonably available knowledge should have known

about the danger and risk of the design and/or manufacture of the seat it supplied for the

2012 Malibu, including the Subject Vehicle.

95. The driver' s seat Faurecia Inc. and/or Faurecia LLC supplied for the 2012 Malibu, including

the Subject Vehicle, possessed characteristics, as more fully described above, which caused

damage to users and consumers of the seat, and Fauricia failed to use reasonable care to

provide an adequate warning of such charactel;stics and dangers to users and handlers of the

seat, including Plaintiff.

96. The driver's seat Faurecia Inc. and/or Faurecia LLC supplied for the 2012 Malibu, including

the Subject Vehicle, was further rendered unreasonably dangerous because an adequate

warning about the hazards associated with placing a child seat behind the driver's seat was

not provided to consumers, either at or after the time that the seat left Faurecia Inc. 's and/or

Faurecia LLC's control.

16

97. At the time of the accident that is the subject of this Complaint, the driver's seat of the

Subject Vehicle was dangerous to an extent beyond that which would be contemplated by the

ordinary consumer of the product, with the ordinary knowledge common to the community

as to the product's characteristics.

98. On April 16,2014, a reasonably pl1ldent manufacturer would not have marketed the driver's

seat Faurecia Inc. and/or Faurecia LLC supplied for the 20 12 Malibu, including the Subject

Vehicle, ifit had knowledge of the dangerous conditions found in the seat.

99. Users of the driver's seat in the 2012 Malibu, including the Subject Vehicle, such as Ms.

Davidson, did not know and should not have been expected to know of the characteristics of

the seat that had the potential to cause damage and of the danger of such characteristics.

100. As a direct and proximate result of the conduct, acts and omissions of Faurecia Inc.

and/or Faurecia LLC, Maxximus Sales suffered injuries and died. Plaintiff has additionally

suffered substantial damages for which recovery is provided pursuant to the wrongful death

statute, Tenn. Code Ann. § 20-5-113 and/or pursuant to the Tennessee Products Liability Act

of 1978, Teon. Code Ann. § 29-28-101 el seq. and loss of consortium pursuant to Tenn. Code

Ann. § 20-5-113.

COUNT VUI- NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS - GM, FAURECIA INC .. FAURECIA LLC, AND RICHARD L. DAVIS

101. Plaintiff incorporates by reference each of the above paragraphs as if fully set forth

herein.

102. Plaintiff was present at the accident which caused Maxximus Sales's injuries and ultimate

death, and suffered severe and serious emotional injuries as a result of witnessing not

only the accident, but also witnessing Maxximus's suffering for the subsequent four days

prior to his death.

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103. Plaintiffs claims for severe and serious emotional injuries are on account of the harms

and conduct alleged herein against Defendants.

COUNT IX - NEGLIGENCE OF RICHARD L. DAVIS

104. Plaintiff incorporates by reference each of the above paragraphs as if fully set fOlth

herein.

105. Richard L. Davis owed a duty to the Plaintiff Kayla Davidson and decedent Maxximus

Sales to act with the highest degree of care in the operation and/or driving of the

Mustang.

106. Richard L. Davis was negligent in one or more of the following respects:

a. by operating his vehicle at an excessive rate of speed under the circumstances

existing at tile time and place of the collision;

b. by failing to exercise that degree of care and caution as required of a reasonably

prudent person under the same or similar circumstances;

c. by failing to maintain proper control of the vehicle;

d. by failing to maintain a proper lookout;

e. by failing to devote full time and attention to tile operation of tile vehicle;

f. by operating tile vehicle in a reckless manner;

107. Plaintiff charges and alleges that at the time of the accident in question, the following

statutes of tile State of Termessee were in full force and effect and were violated by

Richard L. Davis, constituting negligence per se, to wit:

Sectioll 55-8-103 Required obedience to traffic laws -

It is unlawfit! and, unless otherwise declared in this chapter

and chapter 10, parts 1-5 of this title with re~pect to

particular offenses, it is a Class C misdemeanor, for any

18

person to do any act forbidden or fail to perform any act required in this chapter and chapter 10 of this title

Sectioll 55-8-136 Drivers to exercise due care -

(b) Notwithstanding any speed limit or zone in effect at the time, or right of way rules that may be applicable, every driver of a motor vehicle shall exercise due care to avoid colliding with any other motor vehicle, either being driven or legally parked, upon any roadway, or any road sign, guard rail or any .fixed object Legally placed within or beside the roadway right of way, by operating such motor vehicle at a safe speed, by maintaining a safe lookout, by keeping such motor vehicle under proper control and by devoting .fiJIl time and attention to operating such motor vehicle, under the existing circumstances to avoid endangering life, limb or property.

Sectioll 55-10-202 Operatil/g a vehicle cOl/trary to lalV -(a) It is unlawfol for the owner. or any other person. employing or otherwise directing the driver of any vehicle to require or knowingly to permit the operation of such vehicle upon a highway in any manner con trUlY to law.

Section 55-10-205 Reckless driving. (a) Any person who drives any vehicle in willfiJL or wanton disregard for the safety of persons or property commits reckless driving.

108. Plaintiff charges and alleges that Richard L. Davis violated certain ordinances of the City

of Memphis which were in full force and effect at the time and place of the accident and

applicable as set forth in the City of Memphis Municipal Code, constituting negligence

per se, to wit:

SectioIl1I-16-3: Duty to drive at safe speed, mailltail/ lookout al/d keep vehicle ul/der cOl/trol

Notwithstanding any speed limit or zone in effect at the time, or right-of-way ruLes that may be applicable, every driver shall: 1. Operate his vehicle at a safe speed; 2. Maintain a safe Lookout; 3. Use due care to keep his vehicle under control.

Sectioll 11-16-44: Reckless drivillg

19

.-1

Any person who drives allY vehicle ill a willful or wanton disregard for the sa/ety of persons or p roperty is guilty of reckless driving.

109. As a direct and proximate result of Richard L. Davis's negligence as set forth above,

Maxximus Sales was caused to die; decedent Maxximus Sales suffered extreme pain and

severe injuries prior to his death; and Plaintiff Kayla Davidson suffered substantial

damages for which recovery is provided pursuant to the wrongful death statute, Tenn.

Code Ann. § 20-5-113 and loss of consortium pursuant to Tenn. Code Ann. § 20-5-113.

DAMAGES

1 10. Plaintiff incorporates by reference each of the above paragraphs as if fully set forth

herein.

Ill. As a direct and proximate result of Defendants' conduct, Maxximus Sales sustained

severe injuries and died . Plaintiff has additionally suffered substantial damages for

which recovery is provided pursuant to the wrongful death statute, Tenn. Code Ann. §

20-5-1 13 , and pursuant to the Telmessee Products Liability Act of 1978, Tenn. Code

Ann. § 29-28-101 ef seq. and loss of consortium pursuant to Tenn. Code Ann. § 20-5-

113, including but not limited to damages for the loss of love, attention, companionship,

cooperation, affection, pain and suffering, and has incun'ed medical, funeral, and burial

expenses. Plaintiff therefore seeks a judgment against Defendants, in an amount to be

detennined by the jury, but not to exceed ten million dollars ($10,000,000), pursuant to

Tenn. Code Ann. § 29-28- 107.

112. In addition, Defendant OM's and Defendant Faurecia lnc.'s and/or Faurecia LLC's acts

and omissions as set forth above demonstrate that each acted with actual malice, gross

negligence that evinces a willful, wanton or reckless disregard for the safety of others or

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that each committed actual fraud and thus warrants the imposition of punitive damages in

this case in an amount to be set by a jury necessary to punish or deter GM and Faurecia

Inc. and/or Faurecia LLC and others and considering all reasonable factors under

Tennessee law.

COUNT X - DECLARATORY JUDGMENT

113 . Plaintiff incorporates by reference each of the above paragraphs as if fully set forth

herein.

114. Plaintiff seeks a declaratory judgment pursuant to Termessee Code Annotated § 29-14-

10 I, el seq., declming the provisions of Termessee Code Annotated §29-39- 102, which

limit the amount of civil awards for non-economic damages, unconstitutional.

115. Plaintiff alleges that the limitations placed on jury awards unconstitutionally infringes

upon the Plaintiffs constitutionally protected right to have a jury determine the amount

of damages and unconstitutionally invades the constitutionally protected province of the

jury to detennine the amount of dmnages sustained by an injured party as set forth in

TelUlessee Constitution Article I, § 6 and the United States Constitution Amendment 7.

116. Plaintiff further alleges that, because of the enactment of the United States and Termessee

Constitutions, such limitations on damages are not permitted. Therefore, Tetmessee Code

Annotated §29-39-102 violates the right to trial by jury as guaranteed by Tennessee

Constitution Article I, § 6 mld the United States Constitution Amendment 7.

117. Plaintiff alleges that the provisions of Tennessee Code Annotated § 29-39-102 unjustl y

deprives the Plaintiff of propet1y without due process of law in direct violation of

Tennessee Constitution Article I, § 8, Tetmessee Constitution Article I, § 17, and United

States Constitution Amendment 14, § 1.

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118. Plaintiff alleges that the provisions of Tennessee Code Annotated § 29-39-102 violate the

equal protection clauses found in Tennessee Constitution Article I, § 8, Tennessee

Constitution Article I, § 17, Tennessee Constitution Article XI, § 8, and United States

Constitution Amendment 14, § I .

119. Plaintiff alleges that the provisions ofTelmessee Code Annotated § 29-39-102 constitute

a violation of the distIibution and separation of powers found in Tennessee Constitution

Allicle 1I, § 2, Tennessee Constitution Article VI, and Telmessee Constihltion Article XI,

§ 2.

120. Plaintiff alleges that the provisions of Tennessee Code Annotated § 29-39-102 violate

other United States Constitution and Termessee Constitution provisions as well as United

States and Temlessee common law.

121. Plaintiff alleges tbat the provisions of Tennessee Code Annotated § 29-39-102 and the

uncertainty of the constitutionality of the cap impedes the settlement and litigation

process and leaves the Plaintiff unable to assess what resources are appropriate to expend

in litigating the case.

122. Plaintiff further alleges that the provisions of Tennessee Code Annotated § 29-39-102

violate both the Federal and Tennessee Constitutions; therefore, the statute is void ab

initio and the Plaintiff, and other citizens of this state have a right not to live in its

shadow.

WHEREFORE, Plaintiff demands a declaratory judgment issuing ajudicial detennination

of the constitutionality of Tennessee Code Armotated § 29-39-102 and for the Court to hold that

the limitations placed on jury awards in the State of Tennessee are 1U1constitutional and that the

statute is void ab initio.

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PRA YER FOR RELIEF

WHEREFORE, Plaintiff prays for relief against Defendants as to all counts as follows:

I. That a trial by jury be had on all issues;

2. That Plaintiff recover a judgment for compensatory damages against Defendants;

3. That Plaintiff recover a judgment for punitive damages against General Motors LLC and

Faurecia Inc. andlor Faurecia LLC;

4. That Plaintiff recover reasonable costs and court costs;

5. A declaratory judgment issuing a judicial detem1ination of the constitutionality of

Tennessee Code Annotated § 29-39-102 and for the Court to hold that the limitations

placed on jury awards in the State of Tennessee are unconstitutional and that the statute is

void ab initio; and

6. That Plaintiff have and receive any other further relief to which she may show herself

justly entitled.

Respectfully submitted,

~~MdiW.~ WOLFF ARDIS, P.C.

5810 Shelby Oaks Drive

Memphis, TN 38134

Telephone (901) 763-3336

Facsimile (901) 763-3376

E-mail [email protected]

AND

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[email protected]

ggaia@woltrm·dis.com

II

Adam H. Johnson (TN Bar #27328) Nahon, Saharovich & Trotz, PLC 488 South Mendenhall Road Memphis, TN 38119 Telephone (90 I) 259-0435 Facsimile (901) 746-1580 E-mail [email protected]

Counsel Jor Plaintiff

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the foregoing has been electronically served this J.:L~ay of May, 2015 to the following:

J. Randolph Bibb P.O. Box 198615 Nashville, TN 37219

Aaron J. Burke Wendy D. May Hartline Dacus Barger Dreyer LLP 8750 N. Central Expressway, Suite 1600 Dallas, TX 75231

Deborah Bullion Gasconye & Bullion, P.C. 77 Sugar Creek Center Boulevard, Suite 280 Sugar Land, TX 77478

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Nathan E. Shelby Bradford Box 209 E. Main Street P.O. Box 1147 Jackson, TN 38302-1147

Emily Landry BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ, PC First Tennessee Building 165 Madison Avenue, Suite 2000 Memphis, TN 38103

Edd L. Peyton Lewis Thomason 40 S. Main Street, Suite 2900 Memphis, TN 38103

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