THE WRONGFUL DEATH OF MARCELO TORRES
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY ODF ORANGE, CENTRAL JUSTICE CENTER
JAMES, CARMEN TORRES, CARMEN TORRES, and ESTATE OF MARCELO TORRES, Plaintiffs,
vs.
THE WALT DISNEY COMPANY, WALT DISNEY WORLD CO., AND DOES 1 THROUGH 300, INCLUSIVE
Defendants.
COMPALINT FOR
THE WRONGFUL DEATH OF MARCELO TORRES
Plaintiffs, JAMES TORRES, CARMEN TORRES, and ESTATE OF MARCELO TORRES, for their complaint against the defendants allege as follows:
1. On September 5, 2003, MARCELLO TORRES was on the Big Thunder Mountain roller coaster ride at Disneyland amusement park in the City of Anaheim, County of Orange, State of California. MARCELO TORRES died on Big Thunder Mountain and several other passengers were seriously injured. As alleged in the succeeding paragraphs, these injuries were the inevitable result of several wrongful acts and omissions by the employees and officers of THE WALT DISNEY COMPANY and WALT DISNEY WORLD COMPANY and DOES 1-300, that occurred in the days and years preceding this tragic event.
JURISDICTION & VENUE
2. Venue is proper in the current court given that the injuries and negligence complained of herein occurred within the County of Orange, State of California, and the damages sustained by Plaintiffs are within the unlimited jurisdiction of the Superior Court for the State of California
THE PARTIES
3. MARCELO TORRES was a resident of Los Angeles County, in the State of California. At the time of the incident, MARCELO TORRES was 22 years of age. MARCELO TORRES is survived by his loving parents, JAMES TORRES and CARMEN TORRES, and loving brother, JAIME TORRES, JR.
4. JAMES TORRES is a resident of Los Angeles County, State of California. At the time of the incident, JAIME TORRES was 49 years of age.
5. CARMEN TORRES is a resident of Los Angeles County, State of California. At the time of the incident, CARMEN TORRES was 46 years of age
6. Plaintiff, JAMES TORRES, is the personal representative of the ESTATE OF MARCELO TORRES. JAIMIE TORRES has been and/or will be issued letters of administration for the ESTATE OF MARCEL TORRES, deceased, by the Superior Court of California, County of Los Angeles.
7. THE WALT DISNEY COMPANY, WALT DISNEY WORLD CO., and DOES 1-300 (hereinafter collectively referred to as "DISNEY”) are, and at all times herein mentioned were, corporations doing business in California, and the owner, controller of a theme park known as "Disneyland.” Disneyland – self described as the "happiest place on earth” and, more recently, "its happier here” – markets itself to the tourist industry both nationally and internationally. Disneyland is located at 1313 S. Harbor Blvd., Anaheim, California.
8. Defendants, DISNEY, and DOES 1 through 300, are and were at all times herein mentioned corporations duly organized and existing under and by virtue of the laws of the State of California and/or authorized to do business and doing business in the County of Orange, State of California.
9. At all times herein mentioned, Defendants, DISNEY and DOES 1-300, were, and now are, partners doing business under the fictitious firm name and style of DISNEYLAND, in the County of Orange, State of California.
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10. The true names or capacities of the Defendants, DOES 1-300, whether individual, corporate, associate or otherwise, are unknown to Plaintiffs at the time of filing this Complaint and Plaintiffs, therefore, sue said Defendants by such fictitious names and will ask leave of Court to amend this Complaint to show their true names or capacities when the same have been ascertained. Plaintiffs are informed and believe, and based thereon allege, that each of the DOE defendants is, in some manner, responsible for the events and happenings herein set forth and proximately caused injury and damages to the Plaintiffs as herein alleged.
11. At all times herein mentioned, each of the Defendants were the agent and employee of each of the remaining Defendants and was at all times herein mentioned acting within the course and scope of said agency and employment.
FACTUAL ALLEGATIONS
12. The BIG THUNDER MOUNTAIN RAILROAD (hereinafter "BIG THUNDER MOUNTIAN”) is a roller coaster attraction manufactured by DISNEY and first put into operation in September of 1979. The attraction is a roller coaster style ride with a track length of 2,671 feet. The track is of a tri-rail design, with two load rails, a third rail or "backbone,” and three chain lifts. The track is divided into six zones, and each zone is sealed and air pressurized. Pneumatically activated and spring-released fin brakes affixed to the ground between rails slow or stop the trains, and linear inductions motors use a brake fin to accelerate or decelerate the train. BIG THUNDER MOUNTAIN has six total trains, and can operate with up to five trains at any given time. One train consists of one locomotive (9 feet 9 inches) and five railroad-style cars or passenger-carrying devices, each of which can carry up to 9 passengers. The locomotive has no function other than "cosmetic,” making the attraction look like a runaway train. The passenger cars push the locomotive around the attraction.
The locomotive and passenger cars are connected together by a tow bar and two cables to form a total length of 66 feet. Each car has 3 bench seats with a lap bar at each seat. Each car running gear consists of front and rear axle assemblies, each of which contains two bogie assemblies. The running gear for the locomotive consists of a front axle, guide, and upstop assembly, a floating axle assembly, and a rear axle assembly. The floating axle is non-weight bearing and has no function other than contributing to the appearance of the locomotive. A mechanism called an upstop wheel is fastened to the axle by two bolts and a safety wire intended to ensure that the bolts do not slip out. Trains can be dispatched at a minimum interval of 42 seconds, with a ride speed of 41 feet per second and a ride duration of 3 minutes, 15 seconds.
13. On September 5, 2003, MARCELO TORRES, along with his business associate and best friend, Vicente Gutierrez, and friends, Christina Becker and Shannon Zinda, arrived at the Disneyland theme park. They arrived at the park early in the day, and after riding other attractions, they decided to go on BIG THUNDER MOUNTAIN. As they boarded train #2 ("I.M. BRAVE”) on BIG THUNDER MOUNTAIN, MARCELO TORRES sat in the front of the first car just behind the locomotive. Marcelo was sitting on the right side of the car and Vicente on the left also immediately behind the locomotive. Christina and Shannon were sitting in the seats directly behind Marcelo and Vicente. With everyone properly seated, the train began its thirteenth run of the day.
14. Completely unknown to MARCELO TORRES, I.M. BRAVE had experienced numerous mechanical problems for weeks prior up to and including September 5th, 2003. These issues were known to DISNEY including but not limited to ride operators, mechanics and management who carelessly, and recklessly, ignored these warning signs including, but not limited to, the following:
A. On August 24, 2003, a clicking noise was reported on I.M. BRAVE.
B. On August 28, 2003, mechanics allegedly replaced a guide wheel on I.M. BRAVE.
C. On September 1, 2003, I.M. BRAVE was still making the same unusual clicking noise.
D. On September 2, 2003, DISNEY maintenance allegedly replaced an upstop wheel on I.M. BRAVE but failed to tighten the bolts and place a safety wire around the bolts. A Yellow Tag, which indicates that the train is not to be placed in service, was placed on I.M. BRAVE.
E. On September 5, 2003, I.M. BRAVE was placed into service despite being yellow tagged. DISNEY employees admitted did not understand that only green tagged trains were to be placed into service.
F. I.M. BRAVE was first loaded with passengers at approximately 10:30 A.M. on September 5, 2003. Several DISNEY ride operators and ride leads reported (several rides prior to the 13th ride) that unusual noises were detected on I.M. BRAVE. Despite such explicit knowledge, DISNEY employees did not pull the subject train in part or whole due to fear of reprisals by management.
G. DISNEY employees, several rides prior to the 13th ride of the day, concluded that I.M. BRAVE should be removed from service for safety reasons. DISNEY employees nonetheless allowed guests to ride on I.M. BRAVE knowing that such train was in a flawed condition.
15. About one-third of the way through the ride, as the train was entering the fastest part of the attraction, the floating axle of the locomotive shifted and derailed. As I.M. BRAVE entered the last turn before the tunnel, which immediately preceded "B" Lift, the train began to severely deteriorate.
16. I.M. BRAVE entered the tunnel at a substantial rate of speed. The derailed wheels slammed into the brakes attached to the floor between the rails. This impact forced the rear of the locomotive up and its nose down. When the front of the locomotive struck brake four, the back shot upwards towards the ceiling of the tunnel. Violently breaking away from the cars as it pitched up, the locomotive slammed into the tunnel roof and came crashing down on top of the first passenger car. The force of the impact crushed the fiberglass and metal frame of that car.
In doing so, the entire weight of the locomotive crashed down on top of MARCELO TORRES , crushing his chest, and pinning his body to his seat. The force of the locomotive drove his body back so far it bent the safety railing of the row behind him. Although seriously injured, MARCELO TORRES was alive and struggling due to the severe impact. A DISNEY cast member arrived on the scene and ordered everyone out of the train. MARCELO TORRES remained trapped in his seat. He died of extensive internal bleeding resulting from severe blunt force trauma to his chest causing rib fractures and lacerations to his lung at the scene of the incident and other injuries.
17. Investigation reports confirm that the following occurred with regard to the BIG THUNDER MOUNTAIN tragedy at Disneyland:
A. The fatal injuries sustained by deceased, MARCELO TORRES occurred when the first passenger car of I.M. Brave collided with the underside of I.M. Brave's locomotive.
B. The derailment was in part the result of a mechanical failure, which occurred as a result of, among other things, omissions during a maintenance procedure of at least two required actions:
1. The left side upstop/guide wheel on the floating axle of the I.M. Brave's locomotive was not tightened in accordance with specifications; and
2. A safety wire was not installed.
C. The I.M. Brave was dangerously unsafe for use on BIG THUNDER MOUNTAIN, but nevertheless put into service by ride operators, maintenance and management on the day of the incident.
D. There was an inadequate instruction in the Operation Guidelines as to what a ride operator at BIG THUNDER MOUNTAIN is expected to do when an unusual noise is detected.
E. Use of Green and Yellow maintenance tags on I.M. Brave was not carried out as required by alleged Disneyland Resort procedures, and on a number of occasions preceding the tragedy on September 5, 2003, the West Reliability Team (Disneyland maintenance) had not implemented the maintenance tag system properly on the other rides to which the Team was assigned and/or completed the necessary maintenance required by said tagging system, all with the knowledge of Disney management.
F. As of the time of the incident, Disneyland Resort procedures permitted a passenger train on BIG THUNDER MOUNTAIN to be added to the attraction without performing a test cycle for such passenger train.
G. An audit procedure which was part of the Disneyland Maintenance Operation Guideline and which was established on November 11, 2002, and applicable to the BIG THUNDER MOUNTAIN attraction was consciously ignored and the attraction was never subjected to this procedure.
H. As of the time of the incident, Disneyland Resort procedures allowed one outside machinist to sign for the work of another outside machinist (including completion of maintenance work, not actually inspected), thereby leading to inaccurate reporting of maintenance work.
18. DISNEY through it management knew, or should have known, that BIG THUNDER MOUNTAIN experienced numerous problems on I.M. BRAVE in the weeks, days and minutes leading up to September 5, 2003, incident, Disney and its officers, directors and managing agents acted wantonly, intentionally, carelessly and with a conscious disregard for the plaintiffs’ and the decedent's, and the public's personal safety by:
A. Intentionally placing I.M. BRAVE in service when I.M. BRAVE was in an "out of service" condition on the morning of September 5, 2003. Ride Leads complained of the problem on BIG THUNDER MOUNTAIN to management several days prior to the incident and were given misinformation by the Facilities Division that the problem was solved. I.M. BRAVE was specifically yellow tagged which indicated the out of service condition. Trains are only allowed to be placed in service if they are "green tagged". If Disney employees were properly trained, I.M. BRAVE would not have been placed into service in the first instance. Disney employees were not properly trained in the simple, yet crucial tagging system, a system vital to public safety.
B. Intentionally keeping I.M. BRAVE in service after having substantial notice of mechanical problems on the train prior to the 13th run of the day. Disney employees have testified that they heard unusual noises on I.M. BRAVE from around the time it was first loaded with passengers on the date of the incident. Various current and former ride operators will testify that upon any unusual sound , it was formerly the policy to pull the train off without question. New corporate policy and practices however, mandated "reduced down time" on the rides wherein DISNEY employees were fearful of taking a train out of service even with obvious deficiencies.
C. Intentionally keeping I.M. BRAVE in service after making the clear decision to remove the train from service. Ride Operators will testify that they had knowledge and made the decision well prior to the time that MARCELO TORRES and VICENTE GUTIERREZ boarded the subject train to remove that particular train from service. Despite this concern, employees continued to allow park guests on the subject train. Upon questioning by the State investigators about why the train was not removed, DISNEY employees confided that they were fearful to pull trains even with safety concerns because they would have to justify such actions to DISNEY management.
D. DISNEY employees consciously ignored these substantial warning signs and loaded I.M. BRAVE with passengers, including MARCELO TORRES and VICENTE GUTIERREZ , for its 13th run of the day.
19. Disney knew, or should have known, that its training and maintenance program would compromise the safety of the public at the time of the incident. Disney and its officers, directors and managing agents acted wantonly, intentionally, carelessly and with a conscious disregard for the plaintiffs’, decedent’s , and the public’s personal safety by:
A. Not training their employees in such a basic systems such as a basic tagging system which, if it had been understood, would have prevented the subject incident. The train was yellow tagged so that it would not go into service. Since the mechanics were not properly trained on this basic tag system, a yellow tagged train was placed into service, causing the death of MARCELO TORRES and seriously injuring VICENTE GUTIERREZ and others.
B. As opposed to previous policy, the subject yellow tagged train was placed into service without even doing a test run that would detect problems such as the ones that caused this incident. DISNEY employees disputed the public pronouncement by DISNEY that this train was given a test run prior to placing park guests on the train.
C. The mechanics indisputably did not tighten the subject bolts nor place a basic safety wire on I.M. BRAVE’s upstop assembly prior to releasing the train into the public.
D. In addition DISNEY had made substantial cut backs in their maintenance department, as detailed supra, directly contributing to the subject incident.
20. Disney knew, or should have known, that the design of BIG THUNDER MOUNTAIN was unsafe from its inception causing numerous unreported derailments, near misses, and component part failures repeatedly over its 25 year history. In that regard, Disney and its officers, directors and managing agents acted wantonly, intentionally, carelessly and with a conscious disregard for the plaintiffs’ personal safety of the decedent, the other plaintiffs, and the public by reducing necessary maintenance:
A. Knowing that the locomotive, due to its weight and design, caused various stressors on the ride, requiring high and constant maintenance nonetheless engaged in cut backs. The physical failures of BIG THUNDER MOUNTAIN were apparent and unreported to the public, yet known by DISNEY employees as well as DISNEY’s directors, officers and managing agents, who authorized and ratified the cutback in maintenance and continued operation of BIG THUNDER MOUNTAIN in conscious disregard for the safety of the public.
B. Knowing from its inceptions the upstops and guide wheels (along with various other component parts) would routinely fall off during the ride compromising the safety of the public over 25 year history of the ride.
C. Knowing that numerous injury-causing ride collisions and derailments occurred on BIG THUNDER MOUNTAIN over the 25 year history of the ride. For example, one of these failures, in the 1980’s, was almost identical to the failure that caused the injuries to MARCELO TORRES, VINCENTE GUTIERREZ and other occupants of the ride. Following this mishap, BIG THUNDER MOUNTAIN was neither redesigned nor repaired to prevent similar incidents from re-occurring in the future.
D. Knowing that in August, 2003, a month before the subject incident, BIG THUNDER MOUNTAIN experienced a breakdown causing an evacuation of the ride. Disney employees knew at that time that such breakdowns were routine occurrences.
21. DISNEY knew, or should have known, that making extensive cutbacks in their safety and maintenance programs would ultimately have devastating effects on the safety of the public. Despite this knowledge and as a matter of corporate policy implemented, ratified and adopted by its officers, directors and/or managing agents, DISNEY made decisions regarding maintenance and safety which eliminated various safety measures with the intent to increase corporate profits. Disney and its officers, directors and managing agents acted wantonly, carelessly and with a conscious disregard for decedent, the public and the other plaintiffs’ personal safety by (among other things):
A. In, and around 1995-1997, DISNEY, through its officers, directors and managing agents, hired a consulting group McKinsey & Company to assist in reshaping their maintenance department. These changes, detailed in a report released to then President Paul Pressler on May 13, 1997, entitled "Transforming Maintenance, Defining the Disney Standard”, allowed DISNEY to save millions of dollars in the operation of their theme park division thereby compromising the safety of their guests.
B. In implementing, authorizing and ratifying the recommendations made by McKinsey & Company, DISNEY’s officers, directors and managing agents adopted a "run to failure” philosophy with their attractions, including BIG THUNDER MOUNTAIN, which eliminated various safety procedures which were at the heart of DISNEY’s preventative maintenance program. This corporate policy was in direct contrast to the safety standards under which DISNEY had operated since the opening of Disneyland.
C. In an effort to limanate many experienced workers, DISNEY’s officers, directors and managing agents implemented, authorized and ratified McKinsey & Company recommendations that transferred many experienced worers to the "graveyard” shift under the guise of "efficiency.” This change caused DISNEY employees with decades of experience to leave the ride division. This further separated the mechanics from the ride operators. The teamwork between these two employment positions, a key safety element prior to McKinsey’s recommendations, compromised safety. This downsizing of the division, into what is now called a "maintenance response team,” saved DISNEY millions at the expense of public safety and personal cutbacks was produced.
D. In addition DISNEY’S officers, directors and managing agents implemented, authorized and ratified McKinsey & Company recommendations that eliminated the position of ride "leads,” the most experienced and highest paid employee of each particular ride. Current and former employees criticized the removal of this key position.
E. When DISNEY’s officers, directors and managing agents implemented, authorized and ratified a plan that brought back the "lead” positions, the new "leads” did not have the same length or level of experience as the former leads which led to various additional ride failures, including failures on BIG THUNDER MOUNTAIN.
F. While DISNEY officers, directors and managing agents implemented agents on the day of the Torres tragedy made public pronouncements that safety was DISNEY’s "number one” concern, in fact DISNEY’s directors, officers and managing agents had in fact established management "incentive plans” wherein DISNEY mangers and other employees were rewarded handsomely for money saved, while DISNEY managers and other employees were not appropriately rewarded for issues involving safety.
G. Employees were consistently pressured to keep rides in service. This corporate philosophy was the dangerous and unfortunate outgrowth of a philosophy focused on budget and profit over people. This was a corporate policy trade-off involving the loss of the life of a young man, MARCELO TORRES, and injury to others, versus the millions of dollars DISNEY sought to save by cutting back on maintenance expenses.
22. Disney knew, or should have known, that the cut backs regarding safety issues would have potential catastrophic consequences on the safety of the public due to the implementation of the McKinsey & Company recommendations in May of 1997. DISNEY, and its officers, directors and/or managing agents were given specific notice by DISNEY personnel of the severity of these cut backs as they related to public safety.
A. In October 1997, Bob Klostreich, a 20 year DISNEY employee sent a memorandum to DISNEY warning of the dangers that the cost-cutting measures posed to the park, stating "As you know, I have expressed to you and others on several occasions my deep concerns over what I feel has been a serious decline in management’s readiness, willingness and ability to properly and safely maintain the high speed attractions assigned to the ‘roller coaster’ team. Our staffing and labor distribution has been and is inconsistent with effective daily preventative maintenance…” DISNEY failed to take actions to react to this warning.
B. In 1998 due to cut backs, five year old David Fackler’s foot was crushed between the side of the car he was riding in and the loading platform on BIG THUNDER MOUNTAIN as the car approached the loading point. The incident resulted in the amputation of David’s toes and surgical reconstruction of the remaining foot.
C. In December 1998, DISNEY’s safety cutbacks claimed its first life. A metal cleat broke away from the Sailing Ship Columbia, located in Frontier Land, killing Luan Dawson and severely disfiguring Lieu Vuong in front of their son and grandson. State investigators blamed poor maintenance, lack of training and ride operator error as causes of the death and placed the maximum fines available on DISNEY. Disney employees candidly stated to the Division of Occupational Safety and Health at that time that they would call maintenance to fix problems on the rides, such as BIG THUNDER MOUNTAIN, but they would not get repaired so the calls stopped.
D. In February 1999, Bob Klostreich resent his October 1997 memorandum to the then DISNEY President, with a new warning: "I am concerned that the attractions are deteriorating even more so now than at the time I authored the attached memo. I am very concerned with the possibility of future unnecessary accidents involving guests and employees.” DISNEY and its managing agents again failed to respond.
E. On July 31, 2000, nine people were injured on Space Mountain when part of the wheel assembly fell off a rocket. Again, maintenance was identified as a cause of the injuries.
F. On September 22, 2000, Brandon Zucker, a four year old boy, was permanently brain damaged on the Roger Rabbit attraction. Ride design maintenance and ride operator error were identified as causes of the incident.
Other incidents, to name a few known at this time include:
G. On January 30, 2001, a woman suffered back and neck injuries on Pirates of the Carribean due to lack of training and ride operator error.
H. On May 4, 2001, a giant tree toppled in Frontier Land, injuring 27 park visitors and two DISNEY cast members. Again, maintenance was attributed as the cause of the incident.
23. At all relevant times mentioned herein and in committing the tortuous acts and/or omissions alleged above, Defendants DISNEY, and Does 1-300, engaged in willful, deliberate, intentional and reckless conduct intended by Defendants DISNEY, and Does 1-100, through their corporate officers, directors and/or managing agents and was authorized and ratified by such individuals on behalf of their corporations, to cause injury to Plaintiffs. Defendants DISNEY, and Does 1-100, engaged in despicable conduct with a willful and conscious disregard of Plaintiffs’ rights and/or safety and subjected Plaintiffs to cruel and unjust hardship in conscious disregard of Plaintiffs’ rights. These actions constituted malice and oppression as defined by Cal. Civ. Code Section 3294 (c)(1) and (2), and entitle Plaintiffs to punitive damages in an amount according to proof at trial.
24. As indicated by the facts above, Plaintiffs further allege that in engaging in the tortuous conduit alleged above, Defendants engaged in intentional misrepresentation, deceit and/or concealment of material facts from the public, including Plaintiffs, known to Defendants pertaining to the maintenance and training procedures concerning BIG THUNDER MOUNTAIN, with the intention to deprive Plaintiffs of their property, legal rights or otherwise causing injury and further entitle Plaintiffs to punitive damages in an amount to be shown according to proof. As a summary, the specific facts that support these allegation of malice, oppression and "fraud” as outlined in the Complaint are as follows:
A. Consciously and systematically allowing the theme park, including BIG THUNDER MOUNTAIN to fall into disrepair due to direct cut backs in DISNEY’s maintenance, training, and ride operation. These cut backs placed guests in harms way and led to multiple injuries and fatalities, such as the subject incident on BIG THUNDER MOUNTAIN.
B. Consciously making the decision to allow BIG THUNDER MOUNTAIN, among other rides, to "run to failure” which was a dramatic shift and change in the mid 1990’s in comparison to the preventative maintenance programs that were used since the era of Walt Disney.
C. Consciously ignoring repeated warnings by DISNEY employees with decades of experience, for corporate gain, thereby reducing the training and experience on the ride operation, such as BIG THUNDER MOUNTAIN, which led to injuries and fatalities such as the subject incident herein.
25. Plaintiffs incorporate by reference the allegations set forth in paragraphs 1 through 22 above, and each and every part thereof, with the same force and effect as though set out at length herein.
26. As the operator of an attraction at a theme park, Defendant DISNEY and Does 1 to 300 owed a duty of care to the visitors of Disneyland and members of the general public to maintain and operate their attractions in a safe and reasonable manner, including, but not limited to, BIG THUNDER MOUNTAIN. DISNEY owed a duty of care to ensure that BIG THUNDER MOUNTAIN was only operated by qualified employees trained and knowledgeable in the operation of BIG THUNDER MOUNTAIN, and done in a manner so as to comply with all regulations and standards. By the virtue of the hazards and risk of danger, defendant DISNEY and Does 1 to 300, owed such a duty to their patrons, including Plaintiffs to this action. In addition, defendant DISNEY and Does 1 to 300 owed a duty to supervise, train, and properly manage employees who engaged in the operation of the BIG THUNDER MOUNTAIN and to assure, at all times, that the BIG THUNDER MOUNTAIN was properly and correctly operated only by qualified personnel. Furthermore, defendant DISNEY and Does 1-300 owed a duty to properly maintain BIG THUNDER MOUNTAIN.
27. On or about September 5, 2003, defendant DISNEY and Does 1-300, and/or its agents, did negligently, recklessly and unlawfully maintain and operate their attraction which led to the locomotive slamming into the tunnel roof and violently crashing down on top of MARCELO TORRES. DISNEY and Does 1-300 negligently, recklessly and unlawfully trained, controlled, supervised and/or negligently managed persons who maintained and operated BIG THUNDER MOUNTAIN. This negligence created a dangerous and unsafe condition which led to BIG THUNDER MOUNTAIN’S locomotive to slam into the tunnel roof and violently crash down on top of the Plaintiffs.
28. As a direct and legal result of the conduct of defendants, and each of them, and the resulting conduct as aforesaid, MARCELO TORRES sustained severe and serious injury resulting in his death on September 5, 2003.
29. Plaintiffs, JAIME TORRES and CARMEN TORRES, were the parents of MARCELO TORRES and sole heirs and this action is brought for the benefit of said heirs. At the time of his death, decedent MARCELO TORRES was 22 years of age and was a strong and healthy person.
30. As a direct and legal result of the conduct of the defendants, and each of them, and of the death of MARCELO TORRES, JAIME TORRES and CARMEN TORRES have been deprived of the society and comfort of said decedent and have caused the loss of future services, earnings and protection of MARCELO TORRES, to their great loss and damage in an amount to be shown according to proof. JAIME TORRES and CARMEN TORRES have further been deprived of the society and comfort of said decedent and have been caused the loss of future services, earnings and protection of MARCELO TORRES, to their great loss and damage in an amount to be shown according to proof.
31. As a further legal result of said conduct of defendants, and each of them, and the resulting death of their son, MARCELO TORRES, plaintiffs JAIME TORRES and CARMEN TORRES were compelled to incur expenses for ambulances, for services of hospitals, physicians, surgeons, nurses and other professional services, and for the funeral and burial of said deceased.
SECOND CAUSE OF ACTION
(Wrongful Death – Strict Product Liability on Behalf Of Plaintiffs, JAIME and CARMEN TORRES v. THE WALT DISNEY COMPANY,WALT DISNEY WORLD CO. and Does 1-300)
32. Plaintiffs incorporate by reference the allegations set forth above in paragraphs 1 through 22 and 25 through 31 of Plaintiffs; Complaint, and each and every part thereof, with the same force as though set out at length herein.
33. At all times herein mentioned, defendants, DISNEY AND DOES 1 through 300, and each of them, owned, maintained, serviced, leased, repaired, licensed, manufactured, distributed, wholesaled, marketed, designed, and supplied component parts for the BIG THUNDER MOUNTAIN.
34. On or about the 5th day of September, 2003m the aforementioned product was in use at DISNEYLAND, located at 1313 South Harbor Boulevard, Anaheim, California.
35. At said time and place while Plaintiffs MARCELO TORRES and VICENTE GUTIERREZ were riding BIG THUNDER MOUNTAIN in a reasonably foreseeable manner, BIG THUNDER MOUNTAIN failed and the Plaintiffs, MARCELO TORRES and VICENTE GUTIERREZ, were injured as a direct and legal result thereof, resulting in death and severe and serious injury to their persons, respectively, all to their damage in a sum within the jurisdiction of this Court, and to be shown according to proof.
36. The direct and legal cause of the failure of said product was the negligence, carelessness, and recklessness of the Defendants, and each of them, in the manner in which they designed, manufactured, marketed, distributed, installed, inspected, purchased, maintained, controlled, and handled BIG THUNDER MOUNTAIN.
37. The direct and legal cause of said failure of BIG THUNDER MOUNTAIN and Plaintiffs’ resulting injuries was a defect in the design, manufacture, production, labeling, warnings, instructions and installation of BIG THUNDER MOUNTAIN.
THIRD CAUSE OF ACTION
(SURVIVAL ACTION on behalf of Plaintiff, ESTATE OF MARCELO TORRES vs. THE WALT DISNEY COMPANY, WALT DISNEY WORLD CO. and Does 1-300 inclusive)
38. Plaintiffs incorporate by reference the allegations set forth above in paragraphs 1 through 37 in Plaintiffs’ Complaint, and every part thereof, with the same force and effort as though set out at length herein.
39. On or about September 5, 2003, defendant DISNEY and Does 1 to 2300, and/or its agents did recklessly, intentionally, and unlawfully operate and maintain BIG THUNDER MOUNTAIN which led to the death of MARCELO TORRES. Prior to his death, the collision resulted in substantial damage to the property of MARCELO TORRES resulting in substantial loss.
40. This action is brought by Jaime Torres as a personal representative of the Estate of Marcelo Torres as previously alleged seeking both compensatory and punitive damages.
WHEREFORE, plaintiffs, JAIME TORRES, CARMEN TORRES, and ESTATE OF MARCELO TORRES, pray for judgment against the Defendants, and each of them, as follows:
A. General damages in a sum according to proof;
B. Sums incurred and to be incurred for services of hospitals, physicians, surgeons, nurses and other professional services, ambulance services, x-rays, and other medical supplies and services;
C. Loss of income incurred and to be incurred according to proof;
D. Loss of son’s services;
E. Funeral and burial expenses;
F. Loss of love, companionship, affection, society, and solace;
G. For interest provided by law including, but not limited to, Cal. Civ. Code Section 3291;
H. Costs of suit and
I. For such other and further relief as toe Court deems proper.
AS TO THE ESTATE OF MARCELO TORRES ONLY FOR THE THIRD CAUSE OF ACTION ONLY:
J. Punitive damages in an amount to be determined according to proof.
In addition hereto, toe Plaintiffs hereby demand a Trial by Jury as to all causes of action
Dated: October 5, 2004 AITKEN AITKEN & CONH