Home Depot USA Inc v Jackson Supreme Court

COMPLAINT

IN THE COURT OF COUNTY

STATE OF

Vs.

Respondent/Defendant

1. Defendant, , is a corporation organized pursuant to the laws of the State of and at all times material hereto was the designer, manufacturer, assembler, supplier, and seller of orthopedic and prosthetic devices.

2. Defendants John Doe I, John Doe II, John Doe III, John Doe IV and John Doe V, are those persons, corporations, partnerships or other entities who manufactured, designed, engineered, distributed, sold, assembled and/or supplied, the orthopedic shoe involved in this matter, whose names and identities are unknown at the present but will be added by amendment when ascertained.

3. Plaintiff, , was diabetic and consequently had a transmeditarsal amputation of her right foot due to diabetic disease; approximately the front half of Plaintiff's right foot was amputated.

4. Because of this amputation, Plaintiff received a prescription by her treating physician for a special orthopedic shoe to have a rigid sole and particular type of filler insert in order to give support to the Plaintiff's right foot while walking and keep her from falling due to balance problems from the amputation.

5. Pursuant to said prescription, Plaintiff purchased two pairs of orthopedic shoes from the Defendant's business located at , . Said shoes were proper, adequate, and appropriate for Plaintiff as same had a metal bar/shoe shank in the right sole of the shoe to keep the sole rigid as prescribed. Plaintiff suffered no falls with these pairs of shoes.

6. Subsequent to selling, merging with, or changing hands to the Defendant, , Plaintiff returned to purchase a third pair of the same type of shoes pursuant to prescription. Plaintiff ordered said shoes on the day of , 20 , from the same workers/employees as had been with . Said employee(s) pulled her file and made her a pair of orthopedic shoes. Said shoes were delivered on the day of , 20.

7. However, this third pair of shoes purchased by the Plaintiff from the Defendant did not have the metal bar/shoe shank/metal reinforcement in the right sole as was appropriate, proper, and pursuant to prescription as ordered.

8. Consequently, Plaintiff started falling while walking approximately one month later after the shoes were broken in and the sole of the right shoe started bending. Plaintiff fell approximately five to six times between and , sustaining serious injuries in two of the falls.

9. Plaintiff discovered, after the fall, that the shoe was made improperly, inadequately, and not per her prescription as it did not contain the metal bar/shoe shank/metal reinforcement through the sole of the right shoe. Defendants were the designers, manufacturers, assemblers, distributors, and sellers of the pair of shoes made the basis of this suit as stated above.

10. The damages claimed by Plaintiff exceed the jurisdictional limits of this Court.

COUNT ONE

(NEGLIGENCE)

11. Plaintiff adopts and realleges paragraphs 1 through 10.

12. On or about the day of , 20, while walking at her place of employment, Plaintiff sustained a fall when her right foot turned and/or went out from underneath her and she went down with her ankle bent backwards.

13. Plaintiff's fall was caused by the following actions or omissions of negligence of the Defendants:

a. Failing to design, engineer, manufacture, sell and/or furnish a pair of orthopedic shoes which were safe and fit for their intended and particular purpose;

b. Failing to design, engineer, manufacture, sell and/or furnish a pair of orthopedic shoes per Plaintiff's prescription from her treating physician;

c. Failing to design, engineer, manufacture, sell and/or furnish an adequate, proper, and safe, not unreasonably dangerous, pair of orthopedic shoes, particularly, containing a metal bar/shoe shank/metal reinforcement of the right sole;

d. Designing, engineering, manufacturing, selling and/or furnishing an unsafe, inadequate, improper, defective, unreasonably dangerous product, particularly without the rigid sole-metal bar/shoe shank/metal reinforcement in the right shoe;

e. Designing, engineering, manufacturing, selling and/or furnishing a pair of orthopedic shoes not safe and fit for their intended and particular purpose, and not made pursuant to prescription;

f. Failing to have said shoes inspected for safety or dangerous conditions for non-conformity with prescription and accepted standard;

g. Failing to warn the Plaintiff of the unsafe, defective, and unreasonably dangerous condition of said shoes and that they were not fit for their intended and particular purpose for which they were made and sold; and

h. Failure to use due care under the circumstances.

14. As a proximate consequence of the above negligent actions or omissions of said Defendants, Plaintiff was caused to suffer injuries and damages; specifically suffered abrasions, fracture of her right knee, contusions, her injuries are permanent, she has incurred medical expenses and will so incur same in the future, she has lost wages, will lose future wages and/or her earning capacity has been diminished, she has suffered much physical pain and mental anguish and will suffer same in the future.

WHEREFORE, Plaintiff demands judgment against the Defendants, , John Doe I, John Doe II, John Doe III, John Doe IV and John Doe V, for such sum as she may be entitled to receive by law, together with interest and costs.

COUNT TWO

(WANTONNESS)

15. Plaintiff adopts and realleges paragraphs 1 through 10 and Count One with the exception that Plaintiff substitutes the word "wanton" for the word "negligent" and the word "wantonness" for the word "negligence".

WHEREFORE, Plaintiff demands judgment against the Defendant, , John Doe I, John Doe II, John Doe III, John Doe IV and John Doe V, for such sum as she may be entitled to receive by law, including punitive or exemplary damages, together with interest and costs.

COUNT THREE

(AEMLD)

16. Plaintiff adopts and realleges paragraphs 1 through 10 and paragraph 14.

17. Plaintiff brings this count/cause of action against the Defendants pursuant to the Extended Manufacture's Liability Doctrine.

18. Defendant and Defendants John Doe I through John Doe V, are as stated, engaged in the designing, manufacturing, assembling, distributing and/or selling of orthodics and prosthetics, which include orthopedic shoes such as those prescribed for the Plaintiff in this matter due to her amputated portion of her right foot.

19. Defendants did design, manufacture, assemble, and sell the pair of shoes causing and contributing to the Plaintiff's injuries.

20. Said shoes intended to and did in fact reach the Plaintiff, as the user/consumer of the shoe, without any substantial change in their condition from the time that they were sold by the Defendants.

21. The shoes, at the time they reached the Plaintiff, were in a defective condition and unreasonably dangerous to the Plaintiff as the ultimate user/consumer, as defined under the Extended Manufacturer's Liability Doctrine, in that: the shoes were defectively designed and manufactured in that they lacked a metal/bar/shoe shank/metal reinforcement in the right shoe and were not properly and adequately made for the amputation of Plaintiff's foot.

22. Plaintiff was using the aforesaid shoes as they were intended to be used, and as a proximate consequence of the defective condition, unreasonably dangerous, Plaintiff was caused to sustain several falls, and in the fall at her place of employment, she suffered serious and permanent injuries as stated in paragraph 14.

WHEREFORE, Plaintiff demands judgment against the Defendant, ; John Doe I, John Doe II, John Doe III, John Doe IV and John Doe V, for such sum as she may be entitled to receive by law, together with interest and costs.

COUNT FOUR

(NEGLIGENCE)

23. Plaintiff adopts and realleges paragraphs 1 through 10.

24. On or about the day of , 20, while walking in the parking lot in , , the Plaintiff fell with her right foot turning/coming out from under her and her going down and hitting her right eyebrow and right side.

25. The Plaintiff's fall was caused by the following actions or omissions of negligence of Defendants:

a. Failing to design, engineer, manufacture, sell and/or furnish a pair of orthopedic shoes which were safe and fit for their intended and particular purpose;

b. Failing to design, engineer, manufacture, sell and/or furnish a pair of orthopedic shoes per Plaintiff's prescription from her treating physician;

c. Failing to design, engineer, manufacture, sell and/or furnish an adequate, proper, and safe, not unreasonably dangerous, pair of orthopedic shoes, particularly, containing a metal bar/shoe shank/metal reinforcement of the right sole;

d. Designing, engineering, manufacturing, selling and/or furnishing an unsafe, inadequate, improper, defective, unreasonably dangerous product; particularly without the rigid sole-metal bar/shoe shank/metal reinforcement in the right shoe;

e. Designing, engineering, manufacturing, selling and/or furnishing a pair of orthopedic shoes not safe and fit for their intended and particular purpose, and not made pursuant to prescription;

f. Failing to have said shoes inspected for safety or dangerous conditions for non-conformity with prescription and accepted standard;

g. Failing to warn the Plaintiff of the unsafe, defective, and unreasonably dangerous condition of said shoes and that they were not fit for their intended and particular purpose for which they were made and sold; and,

h. Failure to use due care under the circumstances.

26. As a proximate consequence of the above negligent actions or omissions of said Defendants, Plaintiff suffered injuries and damages, specifically, abrasions, lacerations, contusions, a black eye, injuries to her neck and back, arms, and ribs, including fracture of her right shoulder/arm, her injuries are permanent, she has incurred medical expenses and will incur future medical expenses, she has lost wages and will lost future wages and/or her earning capacity has been diminished, and she has suffered much physical pain and mental anguish and will suffer same in the future.

WHEREFORE, Plaintiff demands judgment against the Defendants, , John Doe I, John Doe II, John Doe III, John Doe IV, John Doe V, for such sum as she may be entitled to receive by law together with costs and interest.

COUNT FIVE

(WANTONNESS)

27. Plaintiff adopts and realleges paragraphs 1 through 10 and Count Four with the exception that Plaintiff substitutes the word "wanton" for the word "negligent" and the word "wantonness" for the word "negligence".

WHEREFORE, Plaintiff demands judgment against the Defendants, , John Doe I, John Doe II, John Doe III, John Doe IV, John Doe V, for such sum as she may be entitled to receive by law together with cost.

COUNT SIX

(AEMLD)

28. Plaintiff adopts and realleges paragraphs 1 through 10 and paragraphs 26.

29. Plaintiff brings this count/cause of action against the Defendants pursuant to the Extended Manufacturer's Liability Doctrine.

30. Defendants are, as stated, engaged in the designing, manufacturing, assembling, distributing and/or selling of orthodics and prosthetics which include orthopedic shoes such as those prescribed for the Plaintiff in this matter due to the amputated portion of her right foot.

31. Defendants did design, manufacture, assemble, and sell the pair of shoes causing and contributing to the Plaintiff's injury.

32. Said shoes intended to and did in fact reach the Plaintiff as the user/consumer of the shoes, without any substantial change in their condition from the time that they were sold by the Defendants.

33. The shoes, at the time they reached the Plaintiff, were in a defective condition unreasonably dangerous to the Plaintiff as the ultimate user/consumer, as defined under the Extended Manufacturer's Liability Doctrine, in that: the shoes were defectively designed and manufactured in that they lacked a metal bar/shoe shank/metal reinforcement in the right shoe and were not properly and adequately made for the amputation of Plaintiff's foot.

34. Plaintiff was using the aforesaid shoes as they were intended to be used, and as a proximate consequence of the defective condition, unreasonably dangerous, Plaintiff was caused to sustain several falls, and in the fall she suffered serious and permanent injuries as stated in paragraph 26.

WHEREFORE, Plaintiff demands judgment against the Defendants, , John Doe I, John Doe II, John Doe III, John Doe IV, John Doe V, for such sum as she may be entitled to receive by law together with costs and interest.

COUNT SEVEN

(STRICT LIABILITY)

35. Plaintiff adopts and realleges paragraphs 1 through 10 and paragraph 26.

35. Defendant, and John Doe I, John Doe II, John Doe III, John Doe IV, John Doe V, designed, manufactured, engineered, distributed, assembled, and/or sold the aforesaid shoes in a defective condition and unreasonably dangerous to foreseeable users such as the Plaintiff, . Furthermore, said Defendants knew or reasonably should have known that the above-mentioned product would be purchased and used without knowledge of any defects by Plaintiff, , and persons similarly situated.

36. The above-mentioned product was unreasonably dangerous and unsafe for use by reason of the fact that it was defective. For example, and not in limitation of the foregoing, the product was defective in its design, manufacture, inspection, testing, labeling, representing, supplying, furnishing, and selling; and because the product neither had nor was accompanied by permanent, accurate, adequate and fair warning of the characteristics, dangers and hazards of the product to a purchaser and user, prospective purchaser and user, and a member of the general public, including but not limited to the Plaintiff, , the accident and occurrences and injuries of the Plaintiff, , were directly and proximately caused.

37. The defects of the Defendant's product include but are not limited to the unreasonably dangerousness resulting from lack of a metal bar/shoe shank/metal reinforcement in the right shoe, or otherwise being improperly and inadequately made for the amputation of Plaintiff's right foot.

38. In addition, the previously mentioned product was defective in that it failed to contain or be accompanied by proper warnings and instructions to the Plaintiff as to the defect/unreasonably dangerousness.

39. Defendants failed to recall or otherwise cure the defects.

40. The aforesaid defect could have been eliminated entirely at a reasonable cost to the Defendants.

41. Plaintiff, , was unable, as a practical matter, to cure or guard against the defective condition in said shoes.

42. As a proximate consequence of the previously mentioned defects, , Plaintiff, was seriously injured when she was caused to sustain several falls, and in the fall as stated above, she suffered serious and permanent injuries as stated previously in paragraph 26.

WHEREFORE, Plaintiff demands judgment against the Defendants, , John Doe I, John Doe III, John Doe III, John Doe IV and John Doe V, for such sum as she may be entitled to receive by law together with costs and interest.

Respectfully submitted,

CERTIFICATE OF SERVICE

I, , do hereby certify that I have this day mailed, U.S. Mail, postage prepaid, a true and correct copy of the above and foregoing to , at the following address;

THIS the day of , 20.

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