Preview
5/17/2021 4:25 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 53522721
2021-29518 / Court: 061 By: Joshua Hall
Filed: 5/17/2021 4:25 PM
CAUSE NO.
DINUKA EKANAYAKE IN THE DISTRICT COURT OF
HARRIS COUNTY, TEXAS
JUDICIAL DISTRICT
ARMANDO GUZMAN,
MANCO ASSOCIATES, L.C.,
AND ANC HOMES, L.C. JURY TRIAL DEMANDED
PLAINTIFF’S ORIGINAL PETITION
NOW COMES Plaintiff, DINUKA EKANAYAKE (hereafter referred to as “Plaintiff’),
complaining of Defendants ARMANDO GUZMAN, MANCO ASSOCIATES, L.C., (“Manco
Associates” or “Manco”) and ANC HOMES, L.C. (“ANC Homes” or “ANC”) (hereafter collectively
referred to as “Defendants”) and for cause of action would respectfully show this Court the following
I FACTUAL BACKGROUND.
On or about July 16, 2020, Defendant Armando Guzman shot Plaintiff Dinuka Ekanayake at
his place of work. Defendants Manco Associates and ANC Homes were well aware of Defendant
Guzman’s violent tendencies prior to this incident and yet did nothing to protect their employees from
danger, resulting in the near death of Mr. Ekanayake.
At all times herein, Mr. Guzman was an employee/contractor of Manco Associates and ANC
Homes. Plaintiff was also an employee of Manco Associates and ANC Homes. Mr. Guzman has a
history of violent behavior, often becoming verbally abusive towards Plaintiff in the past and making
threats. Plaintiff reported Mr. Guzman to his supervisor several times previously, warning his
supervisor that he was afraid that Mr. Guzman may attack him. However, Plaintiff's complaints fell
on deaf ears. His supervisor would dismiss Plaintiff's complaints, blaming Mr. Guzman’s threats on
his old age. Defendants Manco and ANC took no action in response to Plaintiff’ s legitimate concerns.
Additionally, Defendants Manco and ANC were aware that Mr. Guzman was in possession of a
1
firearm prior to the incident and even made the decision to employ him as an unofficial security guard,
even though Mr. Guzman was not qualified to be a security officer. Mr. Guzman does not have a
valid security guard license nor does he have a sponsor.
Defendants allowed Guzman to live on the job site. The day before the incident, Armando
Guzman swore and yelled at Plaintiff and another coworker, threatening them both. Guzman
incorrectly believed that Plaintiff was responsible for reducing his work hours, which made Guzman
angry. Plaintiff repeatedly explained to Guzman that Plaintiff had no authority to reduce his work
hours and that he was mistaken. Plaintiff reported this conduct to his supervisor but nothing was done.
On the day of the incident, Plaintiff and a co-worker again reported Guzman to their supervisor,
saying that Guzman was extremely angry, and threatening everyone and that they were concerned
that he may do something violent. Again, Defendants Manco and ANC took no action. Later that day,
Plaintiff arrived at the office where he saw Guzman standing outside of the office with a gun. Guzman
confronted Plaintiff, accusing Plaintiff of cutting his hours. Plaintiff once again told Guzman that he
was not the one responsible for this decision. Guzman then pointed his gun at Plaintiff, and shot him
Plaintiff tried to scramble to safety by climbing into his truck. Guzman shot Plaintiff again while he
was in his vehicle. A witness nearby called the police and the ambulance.
Armando Guzman was engaged by the Houston Police Department where he was arrested and
removed from the property. Emergency medical personnel immediately rushed Plaintiff to the
hospital
The Harris County District Attorney charged Armando Guzman with Aggravated Assault
with a Deadly Weapon, a felony, which is currently pending before the 337th Judicial District
Court.
Plaintiff is lucky to be alive. The incident caused Plaintiff to suffer significant injuries to his
body, including but not limited to his head, eye, lungs, and neck. Plaintiff fell into a coma for several
weeks immediately after the incident and at just 30 years old, he had to learn how to walk again
Plaintiff underwent brain surgery where a part of his scalp was removed, causing him to live without
a skull for months. Plaintiff also underwent eye surgery where one of his eyes was removed. He now
must wear a prosthetic eye and has permanently lost vision in one of his eyes. Plaintiff also suffers
from daily seizures that completely debilitate him for hours. Plaintiff suffers from depression,
anxiety, post-traumatic stress disorder and severe panic attacks. He has difficulty sleeping as
flashbacks from the shooting come rushing back to him in nightmares. Plaintiff will never be the
same. He can no longer do the things he loves and enjoys. Plaintiff continues to suffer from his
injuries, and now bring this suit to recover for his damages.
Il. DISCOVERY PLAN
Plaintiff intends to conduct discovery under Level 2 of the Texas Rules of Civil Procedure
Til. PARTIES
Plaintiff Dinuka Ekanayake is an individual residing in Texas.
Defendant Armando Guzman is an individual residing in Texas. Defendant may be served
with process at 4423 Terrell Street, Houston, Texas 77093 or wherever he may be found.
Defendant Manco Associates, L.C. is a domestic limited liability company headquartered
in Texas. Defendant may be served with process via its registered agent, Neil Jayasinghe, 2055 S.
Gessner, Ste. 270, Houston, Texas 77063.
Defendant ANC Homes, L.C. is a domestic limited liability company headquartered in
Texas. Defendant may be served with process via its registered agent, Niel Jayasinghe, 403 Green
Cove, Houston, Texas 77024
IV. VENUE
AND JURISDICTION
Venue and jurisdiction are proper. The amount in controversy is within jurisdictional limits of
this Court. Plaintiffs seek over $1,000,000 in damages. Harris County is the proper venue for this
action pursuant to the Texas Civil Practice and Remedies Code, Section 15.001(a)(1), ef seg., because
this is the county in which at least one Defendant resides and in which all or a substantial part of the
events or omissions giving rise to the claim occurred.
There is no 28 U.S.C. § 1332 diversity of citizenship jurisdiction because Plaintiff is a citizen
of the State of Texas. Defendant Armando Guzman is a citizen of the State of Texas. Defendants
Manco Associates and ANC Homes are Texas corporate citizens. These Defendants are not
improperly joined, as Plaintiff's well-pleaded complaint states a plausible cause of action against
Defendants, and Defendants cannot demonstrate that there is no possibility of recovery by Plaintiff
against these Defendants.
This Court has personal jurisdiction over Defendants Manco Associates and ANC Homes
because Defendants conduct a substantial amount of business in Texas, committed a tort in whole or
in part in Texas, and are amenable to service by a Texas Court.
There is no removal jurisdiction under 28 U.S.C. § 1441(b)(2) inasmuch as the properly joined
Defendants, Manco Associates, ANC Homes and Armando Guzman are all citizens of Texas
Finally, there is no 28 U.S.C. §1331 federal question jurisdiction. Plaintiff's claims raise no
federal question, nor does Plaintiff seek relief under federal law, statute, regulation, treaty or the U.S
Constitution. Accordingly, Plaintiff’s right to relief does not depend on the resolution of a substantial
question of federal law.
The Court has personal jurisdiction over all other parties to this cause.
Vv. CAUSES
OF ACTION
A. ASSAULT AND BATTERY: ARMANDO GUZMAN
Plaintiff re-alleges each aforementioned allegation as if fully incorporated below.
Defendant Armando Guzman committed civil assault and battery on Plaintiff. Specifically,
Guzman intentionally or knowingly caused physical contact with Plaintiff when Defendant knew, or
should have reasonably known, that Plaintiff would regard such contact as offensive. As a proximate
result of the assault and battery, Plaintiff has suffered damages as described herein. Plaintiff’s harm
arises as a result of conduct that violates several sections of the Texas Penal Code, including
(1) Section 22.01(a)(3), Penal Code (assault);
(2) Section 22.02, Penal Code (aggravated assault); and
(3) Section 22.05, Penal Code (deadly conduct).
B. NEGLIGENCE: ALL DEFENDANTS
Plaintiff re-alleges each aforementioned allegation as if fully incorporated below.
The negligence of Defendant Guzman proximately caused Plaintiff's injuries. The
negligence of Defendants Manco Associates and ANC Homes also proximately caused Plaintiff’ s
injuries. At the time of the incident, Defendants Manco Associates and ANC Homes owed Plaintiff
a duty of ordinary care to prevent Guzman from assaulting him, including the duty of care hiring,
employing, managing, and retaining Guzman. As set forth herein, Defendants Manco Associates and
ANC Homes breached this duty and this breach proximately caused Plaintiff to suffer damages as
described below. Plaintiff's personal injuries arise as a result of conduct that violates:
(1) Section 22.01(a)(3), Penal Code (assault);
(2) Section 22.02, Penal Code (aggravated assault); and
(3) Section 22.05, Penal Code (deadly conduct).
Each of these acts and omissions, singularly or in combination with others, constitutes
negligence, which was the proximate cause of this incident and the injuries sustained by Plaintiff.
C. VICARIOUS LIABILITY: ALL DEFENDANTS
Plaintiff re-alleges each aforementioned allegation as if incorporated below.
Defendants are responsible for the conduct of their agents due to the relationship that
existed, among other acts and omissions of negligence which may be shown during the trial of this
5
cause.
D. PREMISES LIABILITY
Plaintiff re-alleges the allegations above
Plaintiff was an invitee at the location where the incident occurred, which is owned, operated
and managed by Defendants Manco Associates and ANC Homes. Defendants breached their duty
of care owed to Plaintiff, as an invitee of the premises, by failing to properly manage and supervise
their employee/contractor, Guzman. As a result, Guzman shot Plaintiff with a gun. Defendants’ acts
and omissions proximately caused Plaintiff to suffer damages as described below. Plaintiff's
personal injuries arise as result of conduct that violates:
(1) Section 22.01(a)(3), Penal Code (assault);
(2) Section 22.02, Penal Code (aggravated assault); and
(3) Section 22.05, Penal Code (deadly conduct).
In addition to actual damages, Plaintiff seeks punitive damages.
E. TEXAS NON-SUBSCRIBER LIABILITY AGAINST DEFENDANTS MANCO
ASSOCIATES AND ANC HOMES
On the date of the incident, Defendants Manco Associates and ANC Homes were not
subscribers to workers’ compensation insurance in the State of Texas. Accordingly, Plaintiff
complains, pursuant to §406.033 of the Texas Labor Code, that it is not a defense to Defendants that:
a) Plaintiff was guilty of contributory negligence;
b) Plaintiff assumed the risk of injury or death; or
c) The injury or death was caused by the negligence of a fellow employee.
F. NEGLIGENT HIRING, SUPERVISION, TRAINING AND RETENTION:
DEFENDANTS MANCO ASSOCIATES AND ANC HOMES
Plaintiff incorporates the previous allegations.
Defendants Manco Associates and ANC Homes are liable for the negligent hiring, supervision,
training and retention of Guzman. Defendants had a duty to exercise due care to secure a competent
contractor for the work. Defendants failed to exercise such care and are liable for the negligent acts
of Guzman. Defendants owed a duty to Plaintiff to use ordinary care in retaining Guzman. Defendants
failed to exercise ordinary care in employing Guzman. Defendants retained the services of Guzman
but failed to properly screen him as to whether he was a threat to his fellow employees. Defendants
also failed to remain knowledgeable about Guzman’s competence and fitness. Defendants knew or
should have known the continued employment/contracting of Guzman would create an unreasonable
risk of harm to others. Defendants knew or should have known that Guzman was incompetent.
Plaintiff's injuries are the result of Guzman’s incompetence. Defendants’ failure in this regard
proximately caused Plaintiff’s injuries alleged herein.
G. NEGLIGENT EXERCISE OF CONTROL: DEFENDANTS MANCO
ASSOCIATES AND ANC HOMES
Plaintiff incorporates the previous allegations.
At all times, Defendants maintained control over their employee/contractor Guzman. Defendants
owed a duty to Plaintiff to exercise control over Mr. Guzman.
Defendants breached that duty.
Defendants’ negligent control over Guzman proximately caused Plaintiff's injuries.
H. GROSS NEGLIGENCE OF DEFENDANTS MANCO ASSOCIATES AND ANC
HOMES
Plaintiff will further show that the acts and/or omissions of Defendants as described above,
when viewed objectively from their standpoint, involve an extreme degree of risk considering the
probability and magnitude of the potential harm to others. Defendants had actual subjective
awareness of the risk involved, but nevertheless proceeded in conscious indifference to the rights,
safety, and/or welfare of the others, including Plaintiff. As such, these actions and omissions
constitute gross negligence and malice as those terms are understood by law.
Nothing Plaintiff did or failed to do was a proximate or contributing cause of the incident
made the basis of this suit
VI. DAMA: E
As a direct and proximate result of the Defendants’ negligent acts and/or omissions, Plaintiff
has suffered substantial damages for which he seeks recovery from Defendants. Plaintiff prays that he
recovers a judgment from Defendant for damages in excess of $1,000,000 and that he recovers from
Defendants for the following:
a. Physical pain and suffering in the past;
b Physical pain and suffering in the future;
Mental anguish in the past;
Mental anguish in the future;
Physical impairment in the past;
Plaintiff will, in all reasonable probability, suffer physical impairment in thefuture;
Reasonable medical care and expenses in the past. Plaintiff incurred these expenses for the
necessary care and treatment of injuries resulting from the incident complained of herein,
and such charges were reasonable and were usual and customary charges for such services;
Plaintiff will, in all reasonable probability, incur reasonable and necessary medical care and
expenses in the future;
Disfigurement in the past;
Disfigurement in the future;
Loss of earning capacity in the past;
Plaintiff will, in all reasonable probability, incur loss of earning capacity in the future;
Loss of household services in the past;
Loss of household services in the future;
Cost of monitoring and prevention in the future;
8
Punitive damages in such amount as may be found proper and just under the facts and
circumstances as determined by thejury;
Costs of suit;
Prejudgment and post-judgment interest; and
All other relief to which Plaintiff may be justly entitled
Because of the egregious nature of the actions of the Defendants, Plaintiff seeks punitive
damages.
Vil. EXEMPLARY DAMAGES
Plaintiff is also entitled to and seeks exemplary damages because the aforementioned
independent actions of Defendants were grossly negligent. Defendants independently acted with
flagrant and malicious disregard of Plaintiff Dinuke Ekanayake’s health and safety. Defendants
independently were subjectively aware of the extreme risks posed by the conditions which caused
Plaintiff Dinuke Ekanayake’s injuries but did nothing to rectify them. Defendants’ independent acts
and/or omissions involved an extreme degree of risk considering the probability and magnitude of
potential harm to Plaintiff and others. Defendants independently had actual, subjective awareness of
the risks, and consciously disregarded such risks
VIII. PRESERVING EVIDENCE
Plaintiff hereby requests and demands that Defendants preserve and maintain all evidence
pertaining to any claim or defense related to the incident made the basis of this lawsuit or the damages
resulting therefrom, including, but not limited to
a.) photographs;
b.) videotapes;
c.) audiotapes;
d) recordings;
e.) statements;
f) medical records;
g) bills;
h) estimates;
i) invoices;
i) checks;
k) measurements;
1) equipment,
m.) correspondence;
n) certificates;
0.) memoranda;
p.) inspection records;
q.) files;
nr) facsimiles;
8.) agreements and/or contracts;
t) emails;
uw) 911 communications;
v.) Any records related to the rescue or treatment of Plaintiff;
w.) Voicemails;
x) Text messages;
y) Investigation;
z) Cellular telephone records;
aa.) Calendar entries;
bb.) Diary entries;
cc.) Log books;
dd.) Any incident reports;
ee.) All records indicating the personnel who inspected, repaired, maintained, or tested the
security systems;
ff.) All fixtures, tools, equipment, weapons involved in the incident;
gg.) Insurance policies;
bh.) Witness statements; and
ii.) Any electronic image, date or information related to the referenced incident, or
Plaintiff.
Failure to maintain such items will constitute “spoliation” of the evidence.
IX. CONDITIONS PRECEDENT
Pursuant to TEX. R. CIV. P. 54, Plaintiff avers that all conditions precedent have been
performed or have occurred, and that every notice required by law to be given has been properly
and timely given.
X. NOTICE OF AUTHENTICATION OF DOCUMENTS
Plaintiff hereby provides actual notice to Defendants and other parties that Plaintiff will use
any or every document produced by any and all other parties in response to written discovery in a
pretrial proceeding or at trial. Pursuant to Rule 193.7 of the Texas Rules of Civil Procedure,
1¢
Defendants’ production of a document in response to written discovery authenticates the document
for use against defendant unless—within ten (10) days or longer or shorter time ordered by the
Court—Defendants object to the authenticity of the document, or any part of it, stating the specific
basis for his objection. An objection must be either on the record or in writing and must have a good
faith factual and legal basis. An objection made to the authenticity of only part of a document does
not affect the authenticity of the remainder.
XI. REQUEST
FOR JURY TRIAL
Plaintiff respectfully demands a jury trial and tenders the appropriate fee.
XII. PRAYER
By reason of all the above and foregoing, Plaintiff is entitled to recover from Defendants
the damages set forth in this petition, jointly and severally, within the jurisdictional limits of this
Court. Plaintiff seeks damages over $1,000,000. Plaintiff also seeks pre- and post-judgment
interest at the maximum legal rate, costs of court, and any other relief to which Plaintiff may be
justly entitled.
11
Respectfully submitted,
THE BUZBEE LAW FIRM
By: 4s/ Anthony G. Buzbe:
Anthony G. Buzbee
State Bar No. 24001820
Cornelia Brandfield-Harvey
State Bar No. 24103540
JPMorgan Chase Tower
600 Travis Street, Suite 7300
Houston, Texas 77002
Tel: (713) 223-5393
Fax: (713) 223-5909
Email: thuzbee@txattorneys.com
Email: cbrandfieldharvey@txattorneys.com
www.txattorneys.com
MCCARTHY AND ASSOCIATES
Jeffrey R. McCarthy
State Bar No. 24073548
Michael A. Takla
State Bar No. 24106488
5225 Katy Fwy, Suite 605
Houston, Texas 77007
Tel: (713) 300-8304
jeff@mclawtx.com
mike@mclawtx.com
ATTORNEYS FOR PLAINTIFF
12
Preview
5/17/2021 4:25 PM Marilyn Burgess - District Clerk Harris County Envelope No. 53522721 2021-29518 / Court: 061 By: Joshua Hall Filed: 5/17/2021 4:25 PM CAUSE NO. DINUKA EKANAYAKE IN THE DISTRICT COURT OF HARRIS COUNTY, TEXAS JUDICIAL DISTRICT ARMANDO GUZMAN, MANCO ASSOCIATES, L.C., AND ANC HOMES, L.C. JURY TRIAL DEMANDED PLAINTIFF’S ORIGINAL PETITION NOW COMES Plaintiff, DINUKA EKANAYAKE (hereafter referred to as “Plaintiff’), complaining of Defendants ARMANDO GUZMAN, MANCO ASSOCIATES, L.C., (“Manco Associates” or “Manco”) and ANC HOMES, L.C. (“ANC Homes” or “ANC”) (hereafter collectively referred to as “Defendants”) and for cause of action would respectfully show this Court the following I FACTUAL BACKGROUND. On or about July 16, 2020, Defendant Armando Guzman shot Plaintiff Dinuka Ekanayake at his place of work. Defendants Manco Associates and ANC Homes were well aware of Defendant Guzman’s violent tendencies prior to this incident and yet did nothing to protect their employees from danger, resulting in the near death of Mr. Ekanayake. At all times herein, Mr. Guzman was an employee/contractor of Manco Associates and ANC Homes. Plaintiff was also an employee of Manco Associates and ANC Homes. Mr. Guzman has a history of violent behavior, often becoming verbally abusive towards Plaintiff in the past and making threats. Plaintiff reported Mr. Guzman to his supervisor several times previously, warning his supervisor that he was afraid that Mr. Guzman may attack him. However, Plaintiff's complaints fell on deaf ears. His supervisor would dismiss Plaintiff's complaints, blaming Mr. Guzman’s threats on his old age. Defendants Manco and ANC took no action in response to Plaintiff’ s legitimate concerns. Additionally, Defendants Manco and ANC were aware that Mr. Guzman was in possession of a 1 firearm prior to the incident and even made the decision to employ him as an unofficial security guard, even though Mr. Guzman was not qualified to be a security officer. Mr. Guzman does not have a valid security guard license nor does he have a sponsor. Defendants allowed Guzman to live on the job site. The day before the incident, Armando Guzman swore and yelled at Plaintiff and another coworker, threatening them both. Guzman incorrectly believed that Plaintiff was responsible for reducing his work hours, which made Guzman angry. Plaintiff repeatedly explained to Guzman that Plaintiff had no authority to reduce his work hours and that he was mistaken. Plaintiff reported this conduct to his supervisor but nothing was done. On the day of the incident, Plaintiff and a co-worker again reported Guzman to their supervisor, saying that Guzman was extremely angry, and threatening everyone and that they were concerned that he may do something violent. Again, Defendants Manco and ANC took no action. Later that day, Plaintiff arrived at the office where he saw Guzman standing outside of the office with a gun. Guzman confronted Plaintiff, accusing Plaintiff of cutting his hours. Plaintiff once again told Guzman that he was not the one responsible for this decision. Guzman then pointed his gun at Plaintiff, and shot him Plaintiff tried to scramble to safety by climbing into his truck. Guzman shot Plaintiff again while he was in his vehicle. A witness nearby called the police and the ambulance. Armando Guzman was engaged by the Houston Police Department where he was arrested and removed from the property. Emergency medical personnel immediately rushed Plaintiff to the hospital The Harris County District Attorney charged Armando Guzman with Aggravated Assault with a Deadly Weapon, a felony, which is currently pending before the 337th Judicial District Court. Plaintiff is lucky to be alive. The incident caused Plaintiff to suffer significant injuries to his body, including but not limited to his head, eye, lungs, and neck. Plaintiff fell into a coma for several weeks immediately after the incident and at just 30 years old, he had to learn how to walk again Plaintiff underwent brain surgery where a part of his scalp was removed, causing him to live without a skull for months. Plaintiff also underwent eye surgery where one of his eyes was removed. He now must wear a prosthetic eye and has permanently lost vision in one of his eyes. Plaintiff also suffers from daily seizures that completely debilitate him for hours. Plaintiff suffers from depression, anxiety, post-traumatic stress disorder and severe panic attacks. He has difficulty sleeping as flashbacks from the shooting come rushing back to him in nightmares. Plaintiff will never be the same. He can no longer do the things he loves and enjoys. Plaintiff continues to suffer from his injuries, and now bring this suit to recover for his damages. Il. DISCOVERY PLAN Plaintiff intends to conduct discovery under Level 2 of the Texas Rules of Civil Procedure Til. PARTIES Plaintiff Dinuka Ekanayake is an individual residing in Texas. Defendant Armando Guzman is an individual residing in Texas. Defendant may be served with process at 4423 Terrell Street, Houston, Texas 77093 or wherever he may be found. Defendant Manco Associates, L.C. is a domestic limited liability company headquartered in Texas. Defendant may be served with process via its registered agent, Neil Jayasinghe, 2055 S. Gessner, Ste. 270, Houston, Texas 77063. Defendant ANC Homes, L.C. is a domestic limited liability company headquartered in Texas. Defendant may be served with process via its registered agent, Niel Jayasinghe, 403 Green Cove, Houston, Texas 77024 IV. VENUE AND JURISDICTION Venue and jurisdiction are proper. The amount in controversy is within jurisdictional limits of this Court. Plaintiffs seek over $1,000,000 in damages. Harris County is the proper venue for this action pursuant to the Texas Civil Practice and Remedies Code, Section 15.001(a)(1), ef seg., because this is the county in which at least one Defendant resides and in which all or a substantial part of the events or omissions giving rise to the claim occurred. There is no 28 U.S.C. § 1332 diversity of citizenship jurisdiction because Plaintiff is a citizen of the State of Texas. Defendant Armando Guzman is a citizen of the State of Texas. Defendants Manco Associates and ANC Homes are Texas corporate citizens. These Defendants are not improperly joined, as Plaintiff's well-pleaded complaint states a plausible cause of action against Defendants, and Defendants cannot demonstrate that there is no possibility of recovery by Plaintiff against these Defendants. This Court has personal jurisdiction over Defendants Manco Associates and ANC Homes because Defendants conduct a substantial amount of business in Texas, committed a tort in whole or in part in Texas, and are amenable to service by a Texas Court. There is no removal jurisdiction under 28 U.S.C. § 1441(b)(2) inasmuch as the properly joined Defendants, Manco Associates, ANC Homes and Armando Guzman are all citizens of Texas Finally, there is no 28 U.S.C. §1331 federal question jurisdiction. Plaintiff's claims raise no federal question, nor does Plaintiff seek relief under federal law, statute, regulation, treaty or the U.S Constitution. Accordingly, Plaintiff’s right to relief does not depend on the resolution of a substantial question of federal law. The Court has personal jurisdiction over all other parties to this cause. Vv. CAUSES OF ACTION A. ASSAULT AND BATTERY: ARMANDO GUZMAN Plaintiff re-alleges each aforementioned allegation as if fully incorporated below. Defendant Armando Guzman committed civil assault and battery on Plaintiff. Specifically, Guzman intentionally or knowingly caused physical contact with Plaintiff when Defendant knew, or should have reasonably known, that Plaintiff would regard such contact as offensive. As a proximate result of the assault and battery, Plaintiff has suffered damages as described herein. Plaintiff’s harm arises as a result of conduct that violates several sections of the Texas Penal Code, including (1) Section 22.01(a)(3), Penal Code (assault); (2) Section 22.02, Penal Code (aggravated assault); and (3) Section 22.05, Penal Code (deadly conduct). B. NEGLIGENCE: ALL DEFENDANTS Plaintiff re-alleges each aforementioned allegation as if fully incorporated below. The negligence of Defendant Guzman proximately caused Plaintiff's injuries. The negligence of Defendants Manco Associates and ANC Homes also proximately caused Plaintiff’ s injuries. At the time of the incident, Defendants Manco Associates and ANC Homes owed Plaintiff a duty of ordinary care to prevent Guzman from assaulting him, including the duty of care hiring, employing, managing, and retaining Guzman. As set forth herein, Defendants Manco Associates and ANC Homes breached this duty and this breach proximately caused Plaintiff to suffer damages as described below. Plaintiff's personal injuries arise as a result of conduct that violates: (1) Section 22.01(a)(3), Penal Code (assault); (2) Section 22.02, Penal Code (aggravated assault); and (3) Section 22.05, Penal Code (deadly conduct). Each of these acts and omissions, singularly or in combination with others, constitutes negligence, which was the proximate cause of this incident and the injuries sustained by Plaintiff. C. VICARIOUS LIABILITY: ALL DEFENDANTS Plaintiff re-alleges each aforementioned allegation as if incorporated below. Defendants are responsible for the conduct of their agents due to the relationship that existed, among other acts and omissions of negligence which may be shown during the trial of this 5 cause. D. PREMISES LIABILITY Plaintiff re-alleges the allegations above Plaintiff was an invitee at the location where the incident occurred, which is owned, operated and managed by Defendants Manco Associates and ANC Homes. Defendants breached their duty of care owed to Plaintiff, as an invitee of the premises, by failing to properly manage and supervise their employee/contractor, Guzman. As a result, Guzman shot Plaintiff with a gun. Defendants’ acts and omissions proximately caused Plaintiff to suffer damages as described below. Plaintiff's personal injuries arise as result of conduct that violates: (1) Section 22.01(a)(3), Penal Code (assault); (2) Section 22.02, Penal Code (aggravated assault); and (3) Section 22.05, Penal Code (deadly conduct). In addition to actual damages, Plaintiff seeks punitive damages. E. TEXAS NON-SUBSCRIBER LIABILITY AGAINST DEFENDANTS MANCO ASSOCIATES AND ANC HOMES On the date of the incident, Defendants Manco Associates and ANC Homes were not subscribers to workers’ compensation insurance in the State of Texas. Accordingly, Plaintiff complains, pursuant to §406.033 of the Texas Labor Code, that it is not a defense to Defendants that: a) Plaintiff was guilty of contributory negligence; b) Plaintiff assumed the risk of injury or death; or c) The injury or death was caused by the negligence of a fellow employee. F. NEGLIGENT HIRING, SUPERVISION, TRAINING AND RETENTION: DEFENDANTS MANCO ASSOCIATES AND ANC HOMES Plaintiff incorporates the previous allegations. Defendants Manco Associates and ANC Homes are liable for the negligent hiring, supervision, training and retention of Guzman. Defendants had a duty to exercise due care to secure a competent contractor for the work. Defendants failed to exercise such care and are liable for the negligent acts of Guzman. Defendants owed a duty to Plaintiff to use ordinary care in retaining Guzman. Defendants failed to exercise ordinary care in employing Guzman. Defendants retained the services of Guzman but failed to properly screen him as to whether he was a threat to his fellow employees. Defendants also failed to remain knowledgeable about Guzman’s competence and fitness. Defendants knew or should have known the continued employment/contracting of Guzman would create an unreasonable risk of harm to others. Defendants knew or should have known that Guzman was incompetent. Plaintiff's injuries are the result of Guzman’s incompetence. Defendants’ failure in this regard proximately caused Plaintiff’s injuries alleged herein. G. NEGLIGENT EXERCISE OF CONTROL: DEFENDANTS MANCO ASSOCIATES AND ANC HOMES Plaintiff incorporates the previous allegations. At all times, Defendants maintained control over their employee/contractor Guzman. Defendants owed a duty to Plaintiff to exercise control over Mr. Guzman. Defendants breached that duty. Defendants’ negligent control over Guzman proximately caused Plaintiff's injuries. H. GROSS NEGLIGENCE OF DEFENDANTS MANCO ASSOCIATES AND ANC HOMES Plaintiff will further show that the acts and/or omissions of Defendants as described above, when viewed objectively from their standpoint, involve an extreme degree of risk considering the probability and magnitude of the potential harm to others. Defendants had actual subjective awareness of the risk involved, but nevertheless proceeded in conscious indifference to the rights, safety, and/or welfare of the others, including Plaintiff. As such, these actions and omissions constitute gross negligence and malice as those terms are understood by law. Nothing Plaintiff did or failed to do was a proximate or contributing cause of the incident made the basis of this suit VI. DAMA: E As a direct and proximate result of the Defendants’ negligent acts and/or omissions, Plaintiff has suffered substantial damages for which he seeks recovery from Defendants. Plaintiff prays that he recovers a judgment from Defendant for damages in excess of $1,000,000 and that he recovers from Defendants for the following: a. Physical pain and suffering in the past; b Physical pain and suffering in the future; Mental anguish in the past; Mental anguish in the future; Physical impairment in the past; Plaintiff will, in all reasonable probability, suffer physical impairment in thefuture; Reasonable medical care and expenses in the past. Plaintiff incurred these expenses for the necessary care and treatment of injuries resulting from the incident complained of herein, and such charges were reasonable and were usual and customary charges for such services; Plaintiff will, in all reasonable probability, incur reasonable and necessary medical care and expenses in the future; Disfigurement in the past; Disfigurement in the future; Loss of earning capacity in the past; Plaintiff will, in all reasonable probability, incur loss of earning capacity in the future; Loss of household services in the past; Loss of household services in the future; Cost of monitoring and prevention in the future; 8 Punitive damages in such amount as may be found proper and just under the facts and circumstances as determined by thejury; Costs of suit; Prejudgment and post-judgment interest; and All other relief to which Plaintiff may be justly entitled Because of the egregious nature of the actions of the Defendants, Plaintiff seeks punitive damages. Vil. EXEMPLARY DAMAGES Plaintiff is also entitled to and seeks exemplary damages because the aforementioned independent actions of Defendants were grossly negligent. Defendants independently acted with flagrant and malicious disregard of Plaintiff Dinuke Ekanayake’s health and safety. Defendants independently were subjectively aware of the extreme risks posed by the conditions which caused Plaintiff Dinuke Ekanayake’s injuries but did nothing to rectify them. Defendants’ independent acts and/or omissions involved an extreme degree of risk considering the probability and magnitude of potential harm to Plaintiff and others. Defendants independently had actual, subjective awareness of the risks, and consciously disregarded such risks VIII. PRESERVING EVIDENCE Plaintiff hereby requests and demands that Defendants preserve and maintain all evidence pertaining to any claim or defense related to the incident made the basis of this lawsuit or the damages resulting therefrom, including, but not limited to a.) photographs; b.) videotapes; c.) audiotapes; d) recordings; e.) statements; f) medical records; g) bills; h) estimates; i) invoices; i) checks; k) measurements; 1) equipment, m.) correspondence; n) certificates; 0.) memoranda; p.) inspection records; q.) files; nr) facsimiles; 8.) agreements and/or contracts; t) emails; uw) 911 communications; v.) Any records related to the rescue or treatment of Plaintiff; w.) Voicemails; x) Text messages; y) Investigation; z) Cellular telephone records; aa.) Calendar entries; bb.) Diary entries; cc.) Log books; dd.) Any incident reports; ee.) All records indicating the personnel who inspected, repaired, maintained, or tested the security systems; ff.) All fixtures, tools, equipment, weapons involved in the incident; gg.) Insurance policies; bh.) Witness statements; and ii.) Any electronic image, date or information related to the referenced incident, or Plaintiff. Failure to maintain such items will constitute “spoliation” of the evidence. IX. CONDITIONS PRECEDENT Pursuant to TEX. R. CIV. P. 54, Plaintiff avers that all conditions precedent have been performed or have occurred, and that every notice required by law to be given has been properly and timely given. X. NOTICE OF AUTHENTICATION OF DOCUMENTS Plaintiff hereby provides actual notice to Defendants and other parties that Plaintiff will use any or every document produced by any and all other parties in response to written discovery in a pretrial proceeding or at trial. Pursuant to Rule 193.7 of the Texas Rules of Civil Procedure, 1¢ Defendants’ production of a document in response to written discovery authenticates the document for use against defendant unless—within ten (10) days or longer or shorter time ordered by the Court—Defendants object to the authenticity of the document, or any part of it, stating the specific basis for his objection. An objection must be either on the record or in writing and must have a good faith factual and legal basis. An objection made to the authenticity of only part of a document does not affect the authenticity of the remainder. XI. REQUEST FOR JURY TRIAL Plaintiff respectfully demands a jury trial and tenders the appropriate fee. XII. PRAYER By reason of all the above and foregoing, Plaintiff is entitled to recover from Defendants the damages set forth in this petition, jointly and severally, within the jurisdictional limits of this Court. Plaintiff seeks damages over $1,000,000. Plaintiff also seeks pre- and post-judgment interest at the maximum legal rate, costs of court, and any other relief to which Plaintiff may be justly entitled. 11 Respectfully submitted, THE BUZBEE LAW FIRM By: 4s/ Anthony G. Buzbe: Anthony G. Buzbee State Bar No. 24001820 Cornelia Brandfield-Harvey State Bar No. 24103540 JPMorgan Chase Tower 600 Travis Street, Suite 7300 Houston, Texas 77002 Tel: (713) 223-5393 Fax: (713) 223-5909 Email: thuzbee@txattorneys.com Email: cbrandfieldharvey@txattorneys.com www.txattorneys.com MCCARTHY AND ASSOCIATES Jeffrey R. McCarthy State Bar No. 24073548 Michael A. Takla State Bar No. 24106488 5225 Katy Fwy, Suite 605 Houston, Texas 77007 Tel: (713) 300-8304 jeff@mclawtx.com mike@mclawtx.com ATTORNEYS FOR PLAINTIFF 12