IN THE CIRCUIT COURT OF HAMILTON COUNTY
AT CHATTANOOGA TENNESSEE
MALCOLM BYRD, as Personal Representatives CASE NO:
of the Estate of WILBERT BYRD, deceased
JURY DEMANDED
Plaintiffs,
v.
VALMONT INDUSTRIES, INC., a foreign
corporation; VALMONT HIGHWAY, a foreign
corporation; ARMORFLEX INTERNATIONAL
LIMITED, a foreign corporation; LINDSAY
CORPORATION, a foreign corporation;
LINDSAY TRANSPORTATION SOLUTIONS
SALES & SERVICE, LLC, a foreign company;
BARRIER SYSTEMS, a foreign corporation; and
CUMBERLAND GUARDRAIL, INC., a
Tennessee corporation,
Defendants.
______________________________________/
COMPLAINT
Plaintiff, MALCOLM BYRD, as Personal Representative of the Estate of
WILBERT BYRD, deceased, now appears, by and through counsel, in this case, which
arises out of the injuries and wrongful death suffered by WILBERT BYRD in a traffic
accident on July 2, 2016, in Hamilton County, Tennessee, on account of the wrongful
and negligent conduct by and/or attributable to the Defendants herein; for cause of
action against these Defendants, Plaintiffs state the following contentions:
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PARTIES, JURISDICTION, AND VENUE
1. Plaintiff MALCOLM BYRD is a citizen and resident of Detroit, Wayne
County, Michigan, residing at 20534 Faust Avenue, Detroit, Michigan 48219.
2. WILBERT BYRD, deceased, was the natural father of MALCOLM BYRD.
WILBERT was born on March 29, 1947 and died on July 2, 2016.
3. MALCOLM BYRD, as the surviving child of WILBERT BYRD, is duly
appointed as the Personal Representative of his Estate. (Letter of Administration is
attached hereto as Exhibit A.)
4. The potential beneficiaries of the Estate of WILBERT BYRD in this
wrongful death action and the relationship of each to the decedent are as follows:
a. Malcolm Byrd, surviving child;
b. Kimciana Hunter, surviving child; and
c. The Estate of WILBERT BYRD.
5. Defendant VALMONT INDUSTRIES, INC., organized in the State of
Nebraska, which at all relevant times was doing business in the jurisdiction of this
Honorable Court. Valmont Industries is a foreign for-profit corporation organized and
existing under the laws of Nebraska with its principal place of business at One Valmont
Plaza, Omaha, Nebraska 68154-5215. Valmont Industries is subject to personal
jurisdiction in the state of Tennessee because it is engaged in substantial and not
isolated activity within the state of Tennessee; and Plaintiffs action arises from Valmont
Industries transacting business in Tennessee or contracting to supply services or things
in Tennessee; or committing a tortious act within Tennessee; or causing injury to
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
Page 3
persons or property within Tennessee arising out of an act or omission by Valmont
Industries while, at or about the time of the injury, Valmont Industries was engaged in
solicitation or service activities within Tennessee, or products, materials, or things
processed, serviced, or manufactured by Valmont Industries were used or consumed
within Tennessee in the ordinary course of commerce, trade, or use, for which Valmont
Industries derived substantial revenue. (T. C. A. 20-2-223)
6. In 2013, Defendant Valmont Industries acquired Defendant Armorflex
International Limited and its products, including the X-LITE guardrail end terminals
involved in the accident at issue in this lawsuit. This acquisition amounted to a merger
or de facto merger wherein liability for defects associated with the subject guardrail
system was assumed by Valmont.
7. Valmont Industries designs, develops, manufactures, tests, markets,
promotes, advertises, distributes, sells, and/or participates in governmental approval
processes of guardrail systems installed in Tennessee and throughout the United
States, including the subject guardrail and end terminal. Valmont Industries uses the
registered trademark name X-LITE to identify its unique and patented highway
guardrail end terminals. The X-LITE can be used at the termination of flexible barriers
on the shoulder of a roadway or in the median.
8. Defendant VALMONT HIGHWAY, a subsidiary of Valmont Industries, Inc.,
is a foreign for-profit corporation organized and existing under the laws of Australia with
its principal place of business at 57-65 Airds Road, Minto NSW 2566 Australia. Valmont
Highway is subject to personal jurisdiction in the state of Tennessee because it is
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Telephone: (561) 515-1400 Facsimile (561) 515-1401
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engaged in substantial and not isolated activity within the state of Tennessee; and
Plaintiffs action arises from Valmont Highway transacting business in Tennessee or
contracting to supply services or things in Tennessee; or committing a tortious act within
Tennessee; or causing injury to persons or property within Tennessee arising out of an
act or omission by Valmont Highway while, at or about the time of the injury, Valmont
Highway was engaged in solicitation or service activities with in Tennessee, or products,
materials, or things processed, serviced, or manufactured by Valmont Highway were
used or consumed within Tennessee in the ordinary course of commerce, trade, or use,
for which Valmont Highway derived substantial revenue. (T. C. A. 20-2-223)
9. Valmont Highway, designs, develops, manufactures, tests, markets,
promotes, advertises, distributes, sells, and/or participates in governmental approval
processes of guardrail systems installed in Tennessee and throughout the United
States, including the subject guardrail and end terminal. Valmont Highway uses the
registered trademark name X-LITE to identify its unique and patented highway
guardrail end terminals. The X-LITE can be used at the termination of flexible barriers
on the shoulder of a roadway or in the median.
10. Defendant ARMORFLEX INTERNATIONAL LIMITED (hereinafter
Armorflex), a subsidiary of Valmont Industries, Inc., is a foreign for-profit corporation
organized and existing under the laws of New Zealand with its principal place of
business at 8 Paul Matthew Road, Auckland 0632, New Zealand. Armorflex was
acquired by Valmont Industries Inc., in 2013. Armorflex is subject to personal
jurisdiction in the state of Tennessee because it is engaged in substantial and not
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
Page 5
isolated activity within the state of Tennessee; and Plaintiffs action arises from
Armorflex transacting business in Tennessee or contracting to supply services or things
in Tennessee; or committing a tortious act within Tennessee; or causing injury to
persons or property within Tennessee arising out of an act or omission by Armorflex
while, at or about the time of the injury, Armorflex was engaged in solicitation or service
activities with in Tennessee, or products, materials, or things processed, serviced, or
manufactured by Armorflex were used or consumed within Tennessee in the ordinary
course of commerce, trade, or use, for which Armorflex derived substantial revenue.
(T. C. A. 20-2-223)
11. Armorflex designs, develops, manufactures, tests, markets, promotes,
advertises, distributes, sells, and participates in governmental approval processes of
guardrail systems installed in Tennessee and throughout the United States, including
the subject guardrail and end terminal. Armorflex uses the registered trademark name
X-LITE to identify its unique and patented highway guardrail end terminals. The X-
LITE can be used at the termination of flexible barriers on the shoulder of a roadway or
in the median. Armorflex holds the patent on the X-LITE.
12. Defendant LINDSAY CORPORATION (hereinafter Lindsay Corp) is a
foreign corporation, organized in the State of Delaware, which at all relevant times was
doing business in the jurisdiction of this Honorable Court. Lindsay Corp's principal
place of business is located at 222 North 111th Street, Omaha, Nebraska 68164.
Lindsay Corp is subject to personal jurisdiction in the state of Tennessee because it is
engaged in substantial and not isolated activity within the state of Tennessee; and
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
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Plaintiffs action arises from Lindsay Corp transacting business in Tennessee or
contracting to supply services or things in Tennessee; committing a tortious act within
Tennessee; or causing injury to persons or property within Tennessee arising out of an
act or omission by Lindsay Corp while, at or about the time of the injury, Lindsay Corp
was engaged in solicitation or service activities within Tennessee, or products,
materials, or things processed, serviced, or manufactured by Lindsay Corp were used
or consumed within Tennessee in the ordinary course of commerce, trade, or use, for
which Lindsey Corp derived substantial revenue. (T. C. A. 20-2-223)
13. Lindsay Corp designs, develops, manufactures, tests, markets, promotes,
advertises, distributes, sells, and participates in governmental approval processes of
guardrail systems installed in Tennessee and throughout the United States, including
the subject guardrail and end terminal. Lindsay Corp. uses the registered trademark
name X-LITE to identify its unique and patented highway guardrail end terminals. The
X-LITE can be used at the termination of flexible barriers on the shoulder of a roadway
or in the median. Lindsay Corp. holds the license and the trademark to the patented X-
LITE.
14. Defendant LINDSAY TRANSPORTATION SOLUTIONS SALES &
SERVICE, INC. (hereinafter Lindsay TSSS) is a foreign corporation, organized in the
State of California, and is a wholly owned subsidiary and/or operational unit or division
of Lindsay Corp, which at all relevant times was doing business in the jurisdiction of this
Honorable Court. Lindsay TSSSs principal place of business is located at 180 River
Road, Rio Vista, California 94571. Lindsay TSSS is subject to personal jurisdiction in
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
Page 7
the state of Tennessee because it is engaged in substantial and not isolated activity
within the state of Tennessee; and Plaintiffs action arises from Lindsay TSSS
transacting business in Tennessee or contracting to supply services or things in
Tennessee; or committing a tortious act within Tennessee; or causing injury to persons
or property within Tennessee arising out of an act or omission by Lindsay TSSS while,
at or about the time of the injury, Lindsay TSSS was engaged in solicitation or service
activities with in Tennessee, or products, materials, or things processed, serviced, or
manufactured by Lindsay TSSS were used or consumed within Tennessee in the
ordinary course of commerce, trade, or use, for which Lindsey Corp derived substantial
revenue. (T. C. A. 20-2-223).
15. Lindsay TSSS designs, develops, manufactures, tests, markets,
promotes, advertises, distributes, sells, and participates in governmental approval
processes of guardrail systems installed in Tennessee and throughout the United
States, including the subject guardrail and end terminal. Lindsay TSSS uses the
registered trademark name X-LITE to identify its unique and patented highway
guardrail end terminals. The X-LITE can be used at the termination of flexible barriers
on the shoulder of a roadway or in the median.
16. Defendant BARRIER SYSTEMS, INC., (hereinafter Barrier Systems) is a
foreign corporation, organized in the State of California, and is a wholly owned
subsidiary and/or operational unit or division of Lindsay Corp or Lindsay TSSS, which at
all relevant times was doing business in the jurisdiction of this Honorable Court. Barrier
Systems principal place of business is located at 180 River Road, Rio Vista, California
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
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94571. Barrier Systems is subject to personal jurisdiction in the state of Tennessee
because it is engaged in substantial and not isolated activity within the state of
Tennessee; and Plaintiffs action arises from Barrier Systems transacting business in
Tennessee or contracting to supply services or things in Tennessee; or committing a
tortious act within Tennessee; or causing injury to persons or property within Tennessee
arising out of an act or omission by Barrier Systems while, at or about the time of the
injury, Barrier Systems was engaged in solicitation or service activities with in
Tennessee, or products, materials, or things processed, serviced, or manufactured by
Barrier Systems were used or consumed within Tennessee in the ordinary course of
commerce, trade, or use, for which Barrier Systems derived substantial revenue. (T. C.
A. 20-2-223)
17. Barrier Systems designs, develops, manufactures, tests, markets,
promotes, advertises, distributes, sells, and participates in governmental approval
processes of guardrail terminals in Tennessee and throughout the United States,
including the subject guardrail and end terminal. The X-LITE can be used at the
termination of flexible barriers on the shoulder of a roadway or in the median.
18. Defendant CUMBERLAND GUARDRAIL, INC. [hereinafter Cumberland]
is a Tennessee for-profit corporation, which at all relevant times was doing business in
the jurisdiction of this Honorable Court. Cumberland's principal place of business is
located at 478 N. Grove Street, Pikeville, Tennessee 37367. Cumberland is subject to
personal jurisdiction in the state of Tennessee because it is a Tennessee citizen; it is
engaged in substantial and not isolated activity within the state of Tennessee; and
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
Page 9
Plaintiffs action arises from Cumberland transacting business in Tennessee or
contracting to supply services or things in Tennessee; or committing a tortious act within
Tennessee; or causing injury to persons or property within Tennessee arising out of an
act or omission by Cumberland while, at or about the time of the injury, Cumberland
was engaged in solicitation or service activities with in Tennessee, or products,
materials, or things processed, or serviced by Cumberland were used or consumed
within Tennessee in the ordinary course of commerce, trade, or use, for which
Cumberland derived substantial revenue. (T. C. A. 20-2-223)
19. Cumberland maintains, inspects, and/or installs guardrail terminals and
end terminals in Tennessee, including the subject guardrail and end terminal.
20. VALMONT INDUSTRIES, INC.; VALMONT HIGHWAY; ARMORFLEX
INTERNATIONAL LIMITED; LINDSAY CORPORATION; LINDSAY
TRANSPORTATION SOLUTIONS SALES & SERVICE, LLC; and BARRIER SYSTEMS
are referred to as collectively Lindsay or Lindsay Defendants.
21. Jurisdiction and venue are proper in this Honorable Court because
Cumberland County is the county in which the subject accident giving rise to this
Complaint took place.
ALLEGATIONS COMMON TO ALL COUNTS
22. On or about July 2, 2016, on Interstate 75 near mile marker 1.65 in
Hamilton County, Tennessee, WILBERT BYRD was a belted front seat passenger in a
2015 Ford Explorer, Vehicle Identification Number (VIN) 1FM5K8D85FGC61277,
Michigan License Number CAV4027.
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23. At that time and place, the 2015 Ford was traveling westbound on I-75,
within the speed limit, when it left the roadway and collided head on with the X-LITE
guardrail end terminal that bordered I-75.
24. During the collision, the X-LITE end terminal and rail system failed to
perform its intended safety function and purpose due to a defect(s) with its design,
manufacturing, and/or warnings. Specifically, the X- LITE guardrail failed to properly
perform/telescope upon impact. As a result, when the X- LITE end terminal was
impacted by the Ford, it provided no protection to the vehicle in order to stop the W-
beams from enter the occupant survival space. As a result, the W-beams pierced
completely through the Fords engine compartment, into the passenger occupant space,
and completely through the rear of the vehicle.
25. Approximately over 60 feet of guardrail pierced through the vehicle.
During the collision, the W-beams penetrated the occupant compartment of the vehicle
where WILBERT BYRD was sitting, violently striking BYRD, and causing him to suffer
fatal injuries.
26. In the alternative, the X-LITE guardrail failed to perform as intended during
the collision because it was improperly installed by Cumberland due to the Lindsay
Defendants failure to provide adequate installation and/or maintenance instructions.
COUNT I NEGLIGENCE AGAINST THE LINDSAY DEFENDANTS
27. Plaintiffs hereby incorporate by reference previous paragraphs 1 through
26 as if fully set forth herein:
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
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28. The Lindsay Defendants owed a duty of reasonable care in the design
development, testing, manufacture, assembly, inspection, marketing, distribution,
promotion, training, advertisement and sale of the Subject Guardrail so as to avoid
exposing Plaintiffs to unnecessary and unreasonable risks.
29. The Lindsay Defendants breached that duty in one or more of the
following ways:
a. By negligently failing to use due care in the design, development,
manufacture, assembly, testing, inspection, marketing, promotion,
training, distribution, advertising, sale, or processing of the Subject
Guardrail and its component parts, in order to avoid the
aforementioned risks to individuals;
b. By failing to adequately warn foreseeable purchasers, installers, and
end users of the unreasonable dangerous and defective condition(s) of
the X-LITE end terminal, despite the fact that they knew or should have
known of the unreasonably dangerous condition(s);
c. By failing to disclose known problems and defects;
d. By marketing the X-LITE as safe;
e. By failing to adequately provide proper and clear installation, repair,
maintenance, and/or instruction manuals, and failing to provide
adequate warnings;
f. By failing to comply with reasonable and necessary guidelines,
including those of the Department of Transportation, the Federal
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
Page 12
Highway Administration, and/or the National Cooperative Highway
Research Program (NCHRP);
g. By failing to design and/or manufacture the X-LITE end terminal
according to the specifications approved by the Department of
Transportation, the Federal Highway Administration, and/or the
NCHRP;
h. By failing to make timely corrections to the design of the subject
guardrail to correct the guardrail system;
i. By failing to adequately identify and mitigate the hazards associated
with the guardrail system in accordance with good engineering
practices;
j. By failing to adequately test the subject guardrail system, including the
head and rail system, to ensure it provided foreseeable owners and
passengers of the motoring public with reasonable safety in
foreseeable impacts;
k. By manipulating, misrepresenting, and/or concealing testing data
pertaining to the subject guardrail system;
l. By failing to disclose known problems and defects;
m. By failing to meet or exceed internal corporate guidelines;
n. By failing to recall the guardrail system or, alternatively, retrofitting the
guardrail system to provide reasonable safety for the motoring public;
and
Cohen Milstein Sellers & Toll, PLLC
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o. By failing to recall the X-LITE end terminal to enhance safety.
30. As a direct and proximate result of the Lindsay Defendants negligence,
WILBERT BYRD suffered fatal injuries and the Defendants are responsible for his death
and damages as set forth below:
a. MALCOLM BYRD, the surviving son of WILBERT BYRD, deceased,
has suffered and will continue to suffer mental and physical anguish,
loss of society and companionship, and all other damages and
expenses allowed under Tennessee law;
b. KIMCIANA HUNTER, the surviving daughter of WILBERT BYRD,
deceased, has suffered and will continue to suffer mental and physical
anguish, loss of society and companionship, and all other damages
and expenses allowed under Tennessee law;
c. The Estate of MALCOLM BYRD has lost prospective net
accumulations and has incurred medical and funeral expenses due to
the decedents injury and death.
WHEREFORE, Plaintiff, MALCOLM BYRD, as the Personal Representative of
the Estate of WILBERT BYRD, deceased, for the benefit of the respective survivors and
Estates, demand judgment for compensatory damages and costs against Defendants,
VALMONT INDUSTRIES, INC.; VALMONT HIGHWAY; ARMORFLEX
INTERNATIONAL LIMITED; LINDSAY CORPORATION; LINDSAY
TRANSPORTATION SOLUTIONS SALES & SERVICE, LLC; and BARRIER
SYSTEMS.
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
Page 14
COUNT II- STRICT LIABILITY AGAINST THE LINDSAY DEFENDANTS
31. Plaintiffs hereby incorporate by reference previous paragraphs 1 through
26 as if fully set forth herein.
32. This is a Count for strict liability against the Lindsay Defendants.
33. At all times material to this cause of action, the Lindsay Defendants were
in the business of, and gained profits from, the design development, testing,
manufacture, assembly, inspection, marketing, distribution, promotion, advertisement,
and/or sale of X-LITE guardrail system through the stream of commerce.
34. At all times material to this cause of action, the subject Guardrail system
was unreasonably dangerous and defective because:
a. The Lindsay Defendants failed to use due care in the design,
development, manufacture, assembly, testing, inspection, marketing,
promotion, distribution, advertising, sale, and/or processing of the Subject
Guardrail and its component parts, in order to avoid the aforementioned
risks to individuals;
b. The Lindsay Defendants failed to adequately warn foreseeable
purchasers, installers, and end users of the unreasonable dangerous and
defective condition(s) of the X-LITE end terminal, despite the fact that they
knew or should have known of the unreasonably dangerous condition(s);
c. The Lindsay Defendants failed to disclose known problems and defects;
d. The Lindsay Defendants marketed the X-LITE as safe;
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
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e. The Lindsay Defendants failed to adequately provide proper and clear
installation, maintenance, and repair instruction manuals, and failed to
provide adequate warnings;
f. The Lindsay Defendants failed to comply with reasonable and necessary
guidelines, including those of the Department of Transportation, the
Federal Highway Administration, and the NCHRP;
g. The Lindsay Defendants failed to design and/or manufacture the X-LITE
end terminal according to the specifications approved the Department of
Transportation, the Federal Highway Administration, and/or the NCHRP;
h. The Lindsay Defendants failed to make timely corrections to the design of
the subject guardrail to correct the guardrail system;
i. The Lindsay Defendants failed to adequately identify and mitigate the
hazards associate with the guardrail system in accordance with good
engineering practices;
j. The Lindsay Defendants failed to adequately test the subject guardrail
system, including the head and rail system to ensure it provided
foreseeable owners and passengers of the motoring public with
reasonable safety in foreseeable impacts;
k. The Lindsay Defendants manipulated, misrepresented, and/or concealed
testing data pertaining to the subject guardrail system;
l. The Lindsay Defendants failed to disclose known problems and defects;
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
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m. The Lindsay Defendants failed to meet or exceed internal corporate
guidelines;
n. The Lindsay Defendants failed to recall the guardrail system or,
alternatively, retrofit the guardrail system to provide reasonable safety for
the motoring public; and
o. The Lindsay Defendants failed to recall the X-LITE end terminal to
enhance safety.
35. The Lindsay Defendants designed, developed, manufactured, assembled,
tested, inspected, marketed, promoted, distributed, advertised, sold, and/or processed
the guardrail system and/or its component parts that is the subject of this litigation with
unintended and unreasonably dangerous defects, which unintended and unreasonably
dangerous defects were present in the guardrail system and/or its component parts
when the Defendants placed the guardrail system and/or its component parts into the
stream of commerce.
36. The subject guardrail did not undergo any material change or alteration
from the time of sale through, up to and including, the time of the aforementioned crash.
37. As a direct and proximate result of the Lindsay Defendants negligence,
WILBERT BYRD suffered fatal injuries and the Defendants are responsible for his death
and damages as set forth below:
a. MALCOLM BYRD, the surviving son of WILBERT BYRD, deceased, has
suffered and will continue to suffer mental and physical anguish, loss of
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
Page 17
society and companionship, and all other damages and expenses allowed
under Tennessee law;
b. KIMCIANA HUNTER, the surviving daughter of WILBERT BYRD,
deceased, has suffered and will continue to suffer mental and physical
anguish, loss of society and companionship, and all other damages and
expenses allowed under Tennessee law;
c. The Estate of MALCOLM BYRD has lost prospective net accumulations
and has incurred medical and funeral expenses due to the decedents
injury and death.
WHEREFORE, Plaintiff, MALCOLM BYRD, as the Personal Representative of
the Estate of WILBERT BYRD, deceased, for the benefit of the respective survivors and
Estates demand judgment for compensatory damages and costs against Defendants,
VALMONT INDUSTRIES, INC.; VALMONT HIGHWAY; ARMORFLEX
INTERNATIONAL LIMITED; LINDSAY CORPORATION; LINDSAY
TRANSPORTATION SOLUTIONS SALES & SERVICE, LLC; and BARRIER
SYSTEMS.
COUNT III: NEGLIGENCE OF CUMBERLAND GUARDRAIL
38. Plaintiffs hereby incorporate by reference previous paragraphs 1 through
37 as if fully set forth herein.
39. Defendant Cumberland contracted with the Tennessee Department of
Transportation (TDOT) to complete TDOT projects of adding, installing, inspecting,
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maintaining, repairing, replacing, and/or overseeing the subject guardrail on I-75 in
Cumberland County, Tennessee.
40. Cumberland had a duty to properly install, inspect, maintain, repair,
monitor, and/or oversee such projects in a manner so as to protect individuals such as
WILBERT BYRD from unnecessary and unreasonable risks.
41. Cumberland knew or should have known by the exercise of reasonable
care that the Guardrail was not properly installed and secured such that upon impact at
highway speed, it would separate allowing for a failure of the Guardrail system and thus
allow intrusion of the guardrail into the subject vehicle.
42. Cumberland breached its duty in one of more of the following ways:
a. Failing to properly install, construct, maintain, repair, monitor,
and/or inspect the subject Guardrail/X-LITE end terminal;
b. Failing to discover the hazardous and unsafe condition of the
subject Guardrail/X-LITE end terminal;
c. Failing to correct the hazardous and unsafe condition of the subject
Guardrail/X-LITE end terminal; and
d. Failing to ensure its agents, subcontractors, and/or employees
properly installed, constructed, maintained, repaired and/or inspected the
subject Guardrail/X-LITE end terminal.
43. Cumberlands acts and/or omissions created an unreasonable risk of
injuries to vehicle occupants and the motoring public, including WILBERT BYRD.
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44. As a direct and proximate result of the Cumberlands negligence,
WILBERT BYRD suffered fatal injuries and the Defendant is responsible for his death
and damages as set forth below:
a. MALCOLM BYRD, the surviving son of WILBERT BYRD, deceased, has
suffered and will continue to suffer mental and physical anguish, loss of
society and companionship, and all other damages and expenses allowed
under Tennessee law;
b. KIMCIANA HUNTER, the surviving daughter of WILBERT BYRD,
deceased, has suffered and will continue to suffer mental and physical
anguish, loss of society and companionship, and all other damages and
expenses allowed under Tennessee law;
45. The Estate of MALCOLM BYRD has lost prospective net accumulations
and has incurred medical and funeral expenses due to the decedents injury and death
WHEREFORE, Plaintiff, MALCOLM BYRD, as the Personal Representative of
the Estate of WILBERT BYRD, deceased, for the benefit of the respective survivors and
Estates demand judgment for compensatory damages and costs against Defendant
CUMBERLAND GUARDRAIL.
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
Page 20
Respectfully submitted on June ___, 2017,
THEODORE J. LEOPOLD, ESQ.
Florida Bar No: 705608
tleopold@cohenmilstein.com
Pro Hac Pending
LESLIE M. KROEGER, ESQ.
Florida Bar No: 989762
lkroeger@cohenmilstein.com
Pro Hac Pending
POORAD RAZAVI, ESQ.
Florida Bar No.: 0022876
prazavi@cohenmilstein.com
Pro Hac Pending
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200
Palm Beach Gardens, FL 33410
(561) 515-1400
/s/ Gregory F. Coleman________
Gregory F. Coleman
TN Bar No 14092.
Adam A. Edwards
TN Bar No. 23253
GREG COLEMAN LAW PC
800 S. Gay Street, Suite 1100
Knoxville, Tennessee 37929
Telephone: (865) 247-0080
Facsimile: (865) 522-0049
greg@gregcolemanlaw.com
adam@gregcolemanlaw.com
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Page 21
COST BOND
I, the undersigned, pursuant to T.C.A. 20-12-125, acknowledge myself as surety
for amounts required by law or included in the Clerks bill of costs in this cause.
GREG COLEMAN LAW, P.C.
By: __________________________________
Justin G. Day, Esq.
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
