Author Topic: wrongfull death law suit against SCL.  (Read 697 times)

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Offline firstresponder

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wrongfull death law suit against SCL.
« on: March 18, 2009, 11:19:42 PM »
MANLEY LAW FIRM
James A. Manley, Esq.
Ann L. Moderie, Esq.
201 Fourth Avenue East
Polson, Montana 59860
Telephone: (406) 883-6285








MONTANA TWENTIETH JUDICIAL DISTRICT COURT, SANDERS COUNTY

JUDITH NEWMAN, as Personal Representative )
of the Estate of Karlye Newman, ) Cause No. DV-06-164
)
Plaintiff, ) AMENDED
)
vs. ) COMPLAINT
)
SPRING CREEK LODGE ACADEMY; SPRING CREEK )
LODGE, LLC; SPRING CREEK LODGE, INC.; )
CAMERON PULLAN; CHAFFIN PULLAN; )
and JOHN DOES 1 through 20, )
)
Defendants. )
)
COMES NOW the Plaintiff, through her attorneys, and for a complaint against the Defendants, and each of them, states:
PARTIES

1. Plaintiff, Judith Newman, is the mother of Karlye Newman and the duly appointed and acting personal representative for the estate of Karlye Newman, deceased. Plaintiff brings this action on behalf of the estate and on behalf of the heir or heirs as defined by Montana wrongful death law.
2. Defendant Spring Creek Lodge, LLC, is or was at material times, a Montana Limited Liability Company. Defendant Spring Creek Lodge, Inc., is or was at material times, a Montana corporation. Said entities are or were at material times also known as Spring Creek Lodge and Spring Creek Lodge Academy (hereafter, these defendants are referred to as “Spring Creek”). Upon information and belief, Defendants Cameron Pullan and Chaffin Pullan are principal owners, directors, officers, managers or agents of the above entities, and are primarily responsible for the planning, supervision, and operation of the Spring Creek. Spring Creek is a boarding facility for minors children, located in Sanders County, Montana. This boarding facility is the principal business of the said legal entities.
3. John Does 1 through 5 are additional individuals, whose exact identities are not known at this time, who were responsible for the planning, supervision, management and/or operation of the Spring Creek John Does 6 through 20 are business entities, persons, or other legal entities, which were involved in the planning, supervision, management, operation, or profiting from the Spring Creek. Their exact identities are not known at this time. This Complaint will be amended under the appropriate rules, to specifically identify John Doe Defendants.
4. The Defendants are liable for their independent tortious conduct set forth below. In addition, Defendants are liable under the theory of respondiot superior, for vicarious liability for such injuries and damages which were caused by agents, employees or others under Defendants’ control, acting within the scope and course of their agency, employment, or control.
5. One or more of the Defendant legal entities, either specifically named or named as a John Doe Defendant, did not have actual separate existence, but operated as the alter ego of other Defendants. Said entities were used for unlawful or other purposes contrary to Montana public policy. The corporate liability shield or veil should be pierced as appropriate under the facts of this case.
6. Numerous Defendants engaged in joint tortious conduct, in causing the injuries and damages set forth below. Each of the said Defendants so acting is personally and legally liable for the injuries and damages caused by the other Defendants.


FACTS RELEVANT TO ALL COUNTS

1. Karlye Newman was born October 13, 1987. Karlye died October 7, 2004, at the age of 16.
2. At the time of Karlye’s death, she was a minor child in the physical care, custody, and control of Defendants.
3. At all material times, Defendants marketed and represented to the public that Spring Creek was a boarding school suitable for care, supervision, and benefit for teenagers who have problems of various kinds, including behavior, emotional and adjustment problems.
4. Defendants represented, lead or allowed the parents of such children to believe that Spring Creek would provide good quality care, supervision, training, education, living facilities, and medical and mental health care, and that the facility was run professionally and consistent with the best interests of the students. Defendants represented, lead or allowed such parents to believe that the Spring Creek had adequate and qualified teachers, supervisors, counselors and staff, and would provide necessary medical and psychological health care services as needed by the children in the care of Spring Creek. Defendants represented, lead or allowed such parents to believe that Spring Creek was designed and operated with the primary objective of benefitting the children in the care of the program.
5. Said representations are not true. The program was not designed or operated to provide quality or even adequate care or programs as marketed and sold. These facts were concealed from Karlye Newman, Judith Newman and the public generally.
6. Defendants planned and operated Spring Creek Lodge Academy in such a manner that physical, educational, mental or emotional harm was consistently and foreseeably caused to the children at Spring Creek, including Karlye Newman. The actions, omissions and conditions imposed by Defendants caused depression, despair, pain hopelessness, mental anguish and serious emotional distress to children at the facility, including Karlye Newman.
7. In 2004, Karlye Newman’s parents were concerned about Karlye, and investigated boarding schools to help her. Based on information provided by the Defendants, and by others the Defendants authorized and knew were engaged in marketing the Spring Creek boarding facility and program, Karlye and her parents were led to believe that placing Karlye at Spring Creek would be in Karlye’s best interests, and that Spring Creek would provide a healthy, safe placement for Karlye, where she could grow physically, emotionally and academically. Karlye’s parents signed a contract provided by Spring Creek, paid the substantial cost, and Karlye entered the program. Thereafter, according to the rules imposed by the program, Karlye was prevented from speaking with her parents. Her parents were dependant upon information supplied by Spring Creek..
8. Based on the information Defendants provided Karlye’s parents, they believed Karlye was progressing in a positive manner, that the program was benefitting Karlye, and that she was safe. In reliance, Karlye’s parents continued to pay significant sums to Defendants, agreed to allow Karlye to remain in the program, and agreed to allow Spring Creek to continue make decisions affecting Karlye’s health, safety and education.
9. In fact, Karlye was not progressing well, and was deteriorating physically, mentally and emotionally, as a result of the acts and omissions of Defendants and their agents. Karlye expressed self loathing, hatred of her life there, depression, and despair. Karlye began threatening suicide, and engaged in suicidal behaviors. Karlye’s depression worsened. She stated that she was going to kill herself. Karlye made statements indicating that she was afraid she could not control her behavior. Karlye begged to see a therapist before it was too late. Karlye became increasingly unstable, and kept expressing her intention . All of this was known, or should have been known, by Defendants. None of this was revealed to Karlye’s parents.
10. Despite such continuing statements and behavior, Defendants did not provide Karlye with the mental or physiological care she needed, never sought or conducted a competent suicide evaluation for Karlye, and failed to take appropriate steps to monitor, supervise, or protect Karlye.
11. On October 7, 2004, Karlye was missing for over an hour. Defendants made no attempt to look for her, or otherwise protect her. Karlye hanged herself in the bathroom of the dormitory where she lived. When a staff member found Karlye hanging, the untrained and unqualified staff member ran out in panic. Defendants failed to provide immediate and necessary aid which might have saved Karlye’s life.
COUNT I
WRONGFUL DEATH; MCA 27-1-513
1. Plaintiff repeats all paragraphs above.
2. Defendants were negligent:
A. For failure to adopt or implement policies and procedures adequate and necessary for the care and protection of children in their care, including Karlye Newman, whom they knew, or should have known, were emotional unstable.
B. For failure to adequately hire, train, and supervise staff, and other employees and agents, who were charged with the responsibility for care and protection of the children.
C. For implementing policies, procedures, and programs which foreseeable caused harm to the children in their care, including physical, mental and emotional harm.
D. For failure to adequately and properly evaluate the level of risk which Karlye Newman’s degenerating and unstable mental state presented to Karlye’s well being.
E. For failure to supervise and monitor Karlye and her condition.
F. For failure to adequately take action to save Karlye’s life.
G. For failure to provide Karlye with the physical, medical, and psychological help which she needed.
H. For failure to fully inform Karlye, and her parents, of the limitations and inadequacies of the facility, and failure to inform Karlye’s parents of her degenerating and dangerous mental condition.

1. At all material times before Karlye’s death, Karlye was in the physical custody, care and control of Defendants, and Defendants had the authority, duty and ability to get Karlye the help she needed, and otherwise protect her from harm.
2. The said acts and omissions of the Defendants were a legal cause of the injuries and death of Karlye Newman.
3. As a result of said negligence and harm, Karlye’s heir or heirs have suffered legal harm. The Court should assess damages against the Defendants, and each of them, in the full amount provided by Montana law for such injury and harm.
4. Defendants acted with actual malice and/or actual fraud as defined by MCA 27-1-221. Defendants, and each of them should be assessed punitive damages in a reasonable amount, sufficient to punish and educate these Defendants, and other persons or entities similarly situated, that such conduct will not be allowed by the Courts of Montana.

COUNT II
SURVIVORSHIP ACTION, MCA 27-1-501
NEGLIGENCE
1. Plaintiff repeats paragraphs 1 through 17 above.
2. Defendants were negligent, as set forth in paragraphs 18 through 23 above. Said negligence was a legal cause of serious physical, mental and emotional harm to Karlye Newman, prior to her death, and a legal cause of Karlye’s ultimate death.
3. After Karlye suffered such injury and harm, she lived for an appreciable period, sufficient to suffer physical pain and mental anguish and serious emotional distress.
4. As a result of such harm and injuries, Karlye Newman suffered compensatory damages.
5. Karlye Newman’s estate is entitled to judgment for all such compensatory damages allowed by Montana law.
6. Defendants acted with actual malice and/or actual fraud as defined by MCA 27-1-221. Defendants, and each of them should be assessed punitive damages in a reasonable amount, sufficient to punish and educate these Defendants, and other persons or entities similarly situated, that such conduct will not be allowed by the Courts of Montana.

COUNT III
SURVIVORSHIP ACTION, MCA 27-1-501
BREACH OF CONTRACT
1. Plaintiff repeats the allegations above in paragraphs
2. The contract was entered into between Defendant Spring Creek and Karlye Newman’s mother. The contract was made for the benefit of Karlye Newman, and Karlye Newman was the third party beneficiary thereof.
3. Defendants breached the contract as set forth above.
4. Karlye Newman was damaged as a result of said breach.
5. Karlye Newman’s estate is entitled to full compensatory damages to the extent allowed by Montana law, for such breach.
6. Said contract was an adhesion contract, and certain provisions in the contract are contrary to Montana law and/or Montana public policy. Such provisions are void, and should not be given effect by the Court.

COUNT IV
SURVIVORSHIP ACTION, MCA 27-1-501
CONSTRUCTIVE FRAUD, BREACH OF FIDUCIARY DUTY, AND BREACH OF DUTY OF GOOD FAITH AND FAIR DEALING
1. Plaintiff repeats the allegations above in paragraphs 1 through 17.
2. While Karlye was in the care, custody, and control of Defendants and Spring Creek Lodge Academy, there was a fiduciary relationship between the parties. Defendants had fiduciary duties of utmost good faith, honesty, full disclosure and fair dealing in dealing with Karlye Newman, for her care, benefit, and protection.
3. In addition, “special circumstances” existed, as defined by Montana law. Defendants created a false impression concerning the true nature of the Spring Creek staff, program and facilities, and the risks presented to Karlye Newman thereby. Defendants failed to disclose relevant facts, and Karlye Newman and her mother reasonably relied to Karlye’s detriment on such misrepresentations and false impressions. If the true nature of the Spring Creek staff, program and facilities had been disclosed, Karlye Newman would not have been placed there.
4. Defendants breached said duties, as set forth above.
5. As a result of said breach, Karlye Newman suffered serious financial, physical, mental and emotional harm. Karlye Newman’s estate should be compensated therefore.
6. Defendants acted with actual malice and/or actual fraud as defined by MCA 27-1-221. Defendants, and each of them should be assessed punitive damages in a reasonable amount, and sufficient to educate these Defendants, and other persons or entities similarly situated, that such conduct will not be allowed by the Courts of Montana.

COUNT V
SURVIVORSHIP ACTION, MCA 27-1-501
DECEIT, MCA 27-1-712
1. Plaintiff repeats the allegations above in paragraphs
2. As set forth above, Defendants willfully deceived Karlye Newman and her mother and guardian, with the intent to induce them to alter Karlye’s position to her injury or risk.
3. Defendants’ actions constitute “deceit” as defined by one or more of the provisions of MCA 27-1-712(2)(a-e).
4. Defendants acted with actual malice and/or actual fraud as defined by MCA 27-1-221. Defendants, and each of them should be assessed punitive damages in a reasonable amount, sufficient to punish and educate these Defendants, and other persons or entities similarly situated, that such conduct will not be allowed by the Courts of Montana.


WHEREFORE Plaintiff prays for judgment against Defendants, and each of them, jointly and severally:

1. For all compensatory damages allowed by law;
2. For punitive damages in an appropriate amount;
3. For such other and further relief as the Court deems appropriate.

Respectfully submitted this day of , 2006.


_____________________________
James A. Manley
Attorney for Plaintiff
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