CAUSE NO.

2012-67930
BRETT HARTMANN

PLAINTIFF,
VS.
SMG AND HARRIS COUNTY SPORTS &
CONVENTION CORPORATION,
DEFENDANTS.

IN THE DISTRICT COURT OF

HARRIS COUNTY, T E X A S

334th JUDICIAL DISTRICT

PLAINTIFFS FIRST AMENDED ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:
COME S NOW, BRETT HARTMANN, Plaintiff in the above referenced and numbered
cause, respectfully files and submits this his First Amended Original Petition, complaining of
Defendants, SMG and HARRIS COUNTY SPORTS & CONVENTION CORPORATION, and
would respectfully show this Honorable Court as follows:
I.
PARTIES
1.

Plaintiff is an individual and resident of Menomonee Falls, Waukesha County,

Wisconsin.
2.

Defendant SMG (hereinafter referred to as SMG) is a partnership formed under

the laws of the State of Pennsylvania and doing business in Harris County, Texas. SMG has no
registered agent for service in the State of Texas, but may be served with process through the
Texas Long-Arm Statute, TEX. CIV. PRAC. & REM. CODE 17.045(a) and (c), by service
through the Texas Secretary of State upon SMGs Agent at its home office address of 300

Conshohocken State Road, Suite 770, West Conshoshocken, Pennsylvania, 19428. SMG has
been previously served with processed and answered.
3.

Defendant HARRIS COUNTY SPORTS & CONVENTION CORPORATION

(hereinafter referred to as HCSCC) is a Texas Corporation and a governmental unit within the
meaning of 101.001(3)(A) of the Texas Civil Practices and Remedies Code, with its principal
place of business in Harris County, Texas. HCSCC may be served with process by and through
its registered agent for service in the State of Texas: Willie Paul Loston, One Reliant Park,
Houston, Harris County, Texas, 77054. HCSCC has been previously served with processed
and answered.
II.
JURISDICTION AND VENUE
4.

The subject matter controversy is within the jurisdictional limits of this Court.

5.

This Court has personal jurisdiction over Defendants because one or more of the

Defendants is a Texas Corporation and all Defendants engaged in foreseeable, intentional,

continuous, and/or systematic contacts in the State of Texas.
6.

This Court has jurisdiction over Defendant HCSCC because it is an agency of the

State of Texas and Hartmanns claims are brought under the Texas Tort Claims Act (TTCA).
See TEX. CIV. PRAC. & REM. CODE 101.001 et seq.
7.

Venue is proper in Harris County, Texas under TEX. CIV. PRAC. & REM. CODE

15.002(a)(1) because all or a substantial part of the events or omissions giving rise to this
lawsuit occurred in Harris County, Texas.
8.

Venue is proper in Harris County, Texas under TEX. CIV. PRAC. & REM. CODE

15.0181(c)(1) because Defendant HARRIS COUNTY SPORTS & CONVENSTION

CORPORATION is a Texas Corporation with its principal place of business in Harris County,
Texas.
III.
DISCOVERY
9.

Plaintiff intends to conduct discovery under Level III of TEX. R. CIV. P. 190.
IV.
FACTUAL BACKGROUND

10.

Plaintiff Brett Hartmann (hereinafter "Hartmann") is a professional football player

and during the 2011 NFL season was a punter for the Houston Texans. On December 4, 2011, in
a game against the Atlanta Falcons at Reliant Stadium in Houston, Texas, Hartmann suffered a
significant and career-threatening knee injury after a punt during the last minute of the Texans
17-10 victory.
11.

Knee injuries are unfortunately not uncommon for professional football players.

Such injuries, however, are extremely rare for punters, and even rarer during plays where there is
no physical contact. Nevertheless, Hartmann suffered his devastating knee injury not at the hands
of an opposing player or an unfortunate collision, but because his foot became caught in one of
the countless seams which blanket the grass turf of Reliant Stadium. Coach Gary Kubiak was
quoted after the game as stating he understood that Hartmann's foot was caught in a seam. Video
of the injury conclusively shows this to be correct. Furthermore, Hartmann has testified that, as
he was jogging downfield to cover his punt, his foot became stuck in one of the many seams in
the field formed by the Defendants modular grass tray system.1 As he turned to track the
movement of the punt returner, his foot was held in one direction by the seam and his knee went

Exhibit A, Excerpts from Deposition of Brett Hartmann, October 16, 2013 (Hartmann Dep.) at 102:1-3; 137:7
138:19; 144:11145:4.

the other way[.]2 With his foot wedged into the seam and his knee wrenching in the opposite
direction, bones shattered and ligaments tore in Hartmanns left leg, sending him sprawling to
the turf.
12.

Defendant HCSCC is the owner of Reliant Stadium. Upon information and

belief, Defendant HCSCC contracted with Defendant SMG, a venue management company, to
operate and manage Reliant Stadium. At all times relevant to the allegations contained herein,
and more particularly on or about December 4, 2011, Defendants were in control of and
maintained the football field located inside Reliant Stadium. The Houston Texans, Hartmanns
employer, paid for the use of Reliant Stadium, including the field, for its players. As possessors
of Reliant Stadium, Defendants have the duty to provide these players with a reasonably safe
playing surface, including preventing unreasonable risks of harm.

Indeed, Mark Miller

Defendant SMGs general manager for the Reliant complexhas stated that the paramount
consideration when making decisions about the playing surface at Reliant Stadium should be
player safety.3 This supposed commitment to safety has been echoed by other SMG employees,
including Rodney Griffinthe head groundskeeper for SMG at Reliant when Mr. Hartmann
suffered his injury. Griffin agreed that the most important element of any sports turf managers
job is to provide a safe field for the athletes,4 and that player safety should always take
precedence over issues of cost.5
13.

Despite this lip service to player safety, the facts of this case reveal what truly

motivates Defendants when it comes to selecting, managing, and maintaining the Reliant
Stadium playing surface: money.

Id. at 145:3.
Exhibit B, Excerpts from Deposition of Mark Wiley Miller, July 8, 2014 (Miller Dep.) at 28:9-15; 38:5-8.
4
Exhibit C, Excerpts from Deposition of Rodney Griffin, May 29, 2014 (Griffin Dep.) at 131:6-17.
5
Id. at 101:22102:4.
3

14.

The modular grass playing surface that has been used at Reliant Stadium since its

inception in 2002 is simply unsafe and unsuitable for its primary purpose of hosting professional
football games. SMG general manager Mark Miller testified that the decision to use the modular
system was made collectively by the Harris County Sports & Convention Corporation and the
Texans . . . .6 While many observers assume a grass field is safer than artificial surfaces, such is
not the case at Reliant Stadium. Inexplicably, rather than letting the grass grow on the field in
one "piece," as is done at most other NFL stadiums utilizing grass, the turf for Reliant Stadium is
transported into the stadium in 8'x8' pieces, known as trays (Grass Trays), thus producing
innumerable seams and uneven partitions which crisscross the playing field. In fact, it has been
reported that the field in Reliant Stadium contains over 1,250 separate Grass Trays. This surface
was in place at Reliant Stadium on December 4, 2011 when Hartmann suffered his devastating
knee injury.
15.

At the time of Hartmanns injury, the Texans organization was consulted on a

regular basis regarding the condition of the playing field.

Former groundskeeper, Rodney

Griffin, testified that Texans Director of Football Operations, Doug West, played a role in
determining whether to replace portions of the field before games. In terms of doing a field
move, partial or complete, Griffin explained, the discussion would be held with Doug West of
the Texans on whether or not were gonna leave it, whether or not were gonna move it . . . .7
16.

Other football stadiums using grass surfaces that are transported in from the

outside, such as the stadium in Glendale, Arizona, use a single Grass Tray that is moved in and
out of the stadium as a whole, rather than in small pieces. Using one single Grass Tray
eliminates the hazards of seams and uneven partitions.

6
7

Exhibit B, Miller Dep. at 25:16-25.

Exhibit C, Griffin Dep. at 33:2-16.

17.

The staff of Defendant SMG is charged with rolling and checking the field to

eliminate the seams, but as any player that has played on the field, or fan who has attended a
game or television viewer can attest, these efforts are hardly successful. One can simply view
the videos available on YouTube and elsewhere to see just how poorly the field is managed.
18.

Complicating matters further, other eventssuch as high school and college

football gamesoften take place on the grass surface at Reliant Stadium in the days and weeks
prior to NFL games. In fact, high school games were played on that very field the night before
Hartmanns incident, further damaging the field and rendering it unfit for NFL play on
December 4, 2011. Texans' Defensive Tackle Shaun Cody said after the game that players were
complaining about the field being torn up. Hartmann also recalls other players openly criticizing
the condition of the field before the game.8
19.

Even more troubling, Defendants SMG and HCSCC maintain enough Grass Trays

nearby to fill nearly 3 full football fields. So why wasn't the torn up turf replaced prior to the
Texans-Falcons game? During the same game, Texans' Andre Johnson and Brian Cushing also
suffered injuries to their legs on plays where they were untouched. After his injury, Hartmann
spoke briefly with Texans owner Bob McNair about how his foot had become stuck in a seam.9
McNair said he would look into it.10 Hartmann also spoke to the Texans trainers and special
teams coach about what had happened.11
20.

At the time of Hartmanns injury, it was well known to Defendants that the use of

Grass Trays causes continuity problems including gaps, seams, indentions, and lifted areas that
can cause players to trip or worseget their feet caught in the turf. Moreover, Defendants knew

Exhibit A, Hartmann Dep. at 142:1-17.

Id. at 102:10-18.
10
Id.
11
Id. at 103:12104:17.
9

that allowing high school games to be played on Reliants grass field would further degrade the
condition of the already perilous playing surface. Yet, Defendants continued to place NFL
players, including Hartmann, in danger by using and improperly maintaining these Grass Trays.
21.

Sworn deposition testimony reveals that cost was the prime motivation behind

Defendants decision not to use an artificial playing surface for non-NFL events, even though
they were well aware of the toll these events took on the quality of the already perilous Grass
Tray system.

Using an artificial playing surface for non-NFL events would have at least

prevented the seam-riddled playing surface from incurring additional wear and tear prior to the
December 4, 2011 game. According to SMG general manager Mark Miller, in the years prior to
Hartmanns injury, there had been numerous discussions about using an artificial turf system for
non-NFL events.12 Defendants had longstanding concerns about whether the Grass Tray system
could hold up to the wear and tear of numerous non-NFL events and still be suitable for play
on Sundays.13

However, Defendants delayed purchasing artificial turf until the year after

Hartmanns injury, simply because they were unsure if there was enough business to warrant
the purchase[.]14

[U]ltimately, admitted Miller, the decision to . . . buy the turf was a

business decision, whether or not the additional event activity warranted the purchase of the
turf.15
22.

Former head groundskeeper Rodney Griffin was even more direct. When asked

during his deposition if it was his understanding that the primary reason that the move to use
Astroturf for non-Texans events didnt occur until 2012 was . . . because of the cost? Griffin

12

Exhibit B, Miller Dep. at 90:2-4.

Id. at 36:437:7; see also Exhibit C, Griffin Dep. at 101:5-9.
14
Exhibit B, Miller Dep. at 37:19.
15
Id. at 95:8-11.
13

plainly answered, Yes.16 Seconds later, when asked whether or not athlete safety should take
priority over issues of cost in making the field suitable for play, Griffin also answered Yes.17
23.

Additionally, Dr. John Rodgers, a professor of Turfgrass Management at

Michigan State University, a turf consultant for Reliant Stadium from 1999-2002, and a pioneer
of modular turf systems has been highly critical of the way the Grass Trays have been
implemented and managed at Reliant Stadium. Dr. Rodgers has pointed out that, at other
stadiums that use modular turf systems, each module is numbered by row and space, and the
modules do not deviate from that order. According to Dr. Rodgers, this consistent placement is
critical in terms of making sure seams fit as tight as possible and minimizing any
imperfections in the levels of the modules.

Consequently, Dr. Rodgers has criticized

Defendants decision to shuffle modules in and out of Reliant Stadium in a random order during
field changes. Dr. Rodgers has also opined that, given the weakened, slow-growing condition of
the modular grass field in December 2011, it would have been unreasonable to allow high school
football games to be played on the same grass modules the day before a professional football
game.
24.

Sadly, warnings from those like Dr. Rodgers have gone unheeded, and several

players in addition to Hartmann have suffered serious injuries SOLELY attributable to the field
at Reliant Stadium. These include then-New England Patriots Wide Receiver, Wes Welker, who
suffered a major knee injury in 2009. Three-time Super Bowl winning coach Bill Belichick was
highly critical of the field surface, saying "the turf down there is terrible...I really think it's one of
the worst field I've seen." Another critic is former Tampa Bay and Indianapolis coach Tony
Dungy, also a Super Bowl winner and now an analyst with NBC. Dungy has been quoted as

16
17

Exhibit C, Griffin Dep. at 101:14-21.

Id. at 101:22102:4.

stating the Colts were "definitely concerned about the injury factor" when playing on Reliant's
field.
25.

Eventually, Defendants were forced to publically acknowledge the safety

problems and "wear and tear" caused to the grass surface by the high school and college football
games played at Reliant Stadium.

In 2012the year following Hartmanns injury

Defendants announced that a new synthetic surface had been purchased and would be used for
future non-NFL events.18 In a press conference announcing the purchase, SMG general manager
Mark Miller stated that the new field turf system will give us a lot more uses that the natural
grass system just wont accommodate, and admitted that the grass field just cant hold up to
the level of play that this field will[.]19
26.

To this day, however, Defendants continue to knowingly put NFL players in

jeopardy by refusing to replace its flawed Grass Tray system, and by failing to reserve the grass
surface it does have for NFL play only. Despite having a new, synthetic surface at their disposal,
Defendants persist in scheduling high school and college games to be played on the same grass
surface that NFL athletes are scheduled compete on, sometimes just hours later. Consequently,
the field at Reliant Stadium (now known as NRG Stadium) has become a pariah among players
and commentators alike. Houston Texans safety D.J. Swearinger has been a vocal critic of the
Grass Tray system, telling ESPN radio, I definitely think they need to do something about it.
We like the grass, but I think there definitely could be a better way to put the grass down. When
we go out there for a walk-through, some days we may see a hole and we ask coach Whats

18

Exhibit D, David Barron, Reliant Stadium adds AstroTurf with state title games in mind, THE HOUSTON
CHRONICLE BLOG (Oct. 29, 2012), http://blog.chron.com/ultimatetexans/2012/10/astroturf-comes-to-reliantstadium/#8153101=0.
19
Id.

going on today? Can they fix this?20 Other players have been more blunt. Philadelphia Eagles
center, Jason Kelce, stated, I think its actually a pretty dangerous playing surface[.]21 I dont
understand, like, what the deal with it is, Kelce continued, But it definitely is uneven and it
definitely doesnt feel very good.22
27.

Likewise, Philadelphias star running back LeSean McCoy recently came out

strongly against the Grass Tray field. Yeah, that field is terrible, bad, bad, McCoy said.23
Theres so many holes, potholes in it, rocky, McCoy elaborated.24 Its like they measured the
squares out and put them in piece by piece. Theres so many holes, its like this cant be a real
NFL field.25 Tellingly, McCoy called the playing surface probably the worst field I ever
played on.
28.

Its always been like that, Eagles cornerbackand former TexanCary

Williams told the media.26 I dont like it, Ive never liked it.27 Eagles linebacker, Mychal
Kendricks demanded action: Something needs to be done about it. Absolutely.28
29.

Unfortunately, NFL athletes continue to pay the price for Defendants decision to

place higher profits above player safety. During the 2014 season opener, first-overall draft pick,
Jadeveon Clowney, suffered a torn meniscus after stepping into one of the many holes in
Defendants field. Clowneys teammate, D.J. Swearinger, recounted what happened: He told

20

Exhibit E, Will Grubb, NRG Stadiums Playing Surface An Abomination, CBS HOUSTON (Sept. 9, 2014 9:17
PM), http://houston.cbslocal.com/2014/09/09/nrg-stadiums-playing-surface-an-abomination/.
21
Exhibit F, Matt Hammond, Eagles Players Rip NRG Stadium Turf, CBS HOUSTON (Nov. 2, 2014 5:27 PM),
http://houston.cbslocal.com/2014/11/02/eagles-players-rip-nrg-stadium-turf/.
22
Id.
23
Exhibit G, Mike Florio, McCoy says Texans field is probably the worst hes ever played on, Pro Football
Talk, NBC Sports (Nov. 3 2014, 4:51 PM), http://profootballtalk.nbcsports.com/2014/11/03/mccoy-says-texansfield-is-worst-hes-ever-played-on/.
24
Id.
25
Id.
26
Exhibit F, Matt Hammond, Eagles Players Rip NRG Stadium Turf, CBS HOUSTON (Nov. 2, 2014 5:27 PM),
http://houston.cbslocal.com/2014/11/02/eagles-players-rip-nrg-stadium-turf/.
27
Id.
28
Id.

10

me on the field when it happened, he was just like, Bro, I just jumped, came down and hit one of
the holes in the field.29 Similarly, starting Philadelphia linebacker DeMeco Ryans suffered a
serious non-contact injury on November 2, 2014 while playing on the Grass Tray system
managed by Defendants.30 As was the case when Hartmann was injured, Defendants had
allowed a non-professional football game (this time collegiate) to take place on the same grass
field where Ryans was injured less than a day later.
30.

The abysmal condition of Defendants field on November 2, was obvious to

players and spectators alike. As one Houston sports writer noted, the NRG field on Sunday had
been used less than 24 hours prior by Sam Houston and Stephen F. Austin in the Battle of the
Piney Woods, and quite honestly, that usage was highly visible on Sunday morning.31 So
visible[,] the journalist continued, that I actually got a text from Egdorf [the undersigned
attorney for Hartmann] (who was at the game Sunday) before the game, who almost presciently
said Same field as yesterday[.]32 Four hours later, the journalist summarized, former
Texan and current Eagles defensive leader DeMeco Ryans was being carted off the field with a
non contact Achilles injury that visually looked a lot like Hartmanns injury and Wes Welkers
injury back in 2009, with Ryans crumbling to the ground with nobody touching him.33
31.

When questioned about the poor condition of the field after the November 2, 2014

game, Texans Head Coach Bill OBrien declined to comment, saying that conversations about
the playing surface were more of a postseason discussion. While OBrien admitted that he did

29

Exhibit H, Barry Petchesky, Jadeveon Clowney Blames Texans Crappy Turf For Knee Injury, DEADSPIN (Sept.
8, 2014), http://deadspin.com/jadeveon-clowney-blames-texans-crappy-turf-for-knee-inj-1632097247.
30
See Exhibit F, Matt Hammond, Eagles Players Rip NRG Stadium Turf, CBS HOUSTON (Nov. 2, 2014 5:27 PM),
http://houston.cbslocal.com/2014/11/02/eagles-players-rip-nrg-stadium-turf/.
31
Exhibit I, Sean Pendergast, Eagles 31, Texans 21: 4 Winners, 4 Losers, Houston Press (Nov. 3, 2014 10:00 AM),
http://blogs.houstonpress.com/news/2014/11/eagles_31_texans_21_4_winners_4_losers.php.
32
Id. (emphasis in original).
33
Id.

11

have some input on that, he said he would wait to review that after the postseason.
Meanwhile, non-contact injuries on NRGs playing surface continue to mount.
32.

As a result of the incident on December 4, 2011, Hartmann was diagnosed with

serious injuries to his left leg and knee, including a torn anterior cruciate ligament (ACL), and
a fracture at the proximal fibula.
33.

Hartmanns physician, Dr. Walter Lowe, further determined that the ACL injury

was high-grade, and thus required extensive reconstructive surgery, including posterolateral
corner side repair, and a bone-patellar tendonbone autograph for the ACL. Hartmanns surgery
took place on December 13, 2011, just before Christmas.
34.

Post-surgery Hartmann endured a lengthy and painful rehabilitation process. It

was hoped that upon completion he would not only be able to return to a normal life with his
fiance, but also to continuing to live his dream as an NFL player.
35.

Hartmann ultimately underwent a second operative procedure to remove a

metallic screw. However, he continued to have discomfort and instability in his knee. Hartmann
was cut by the Houston Texans in August, 2012.

It has been medically determined that

Hartmann is permanently disabled. Nevertheless, Hartmann is still working hard in the hopes
that one day he can resume his dream of playing in the NFL.
36.

Prior to his injury, Hartmann was the leading rookie punter in the National

Football League. Not only was Hartmann highly praised for his skills as a punter, but he was
also considered one of the leagues best kickoff specialists. As such, he also handled kickoffs for
the Texans, further increasing his value as a player. Now, as a result of the Defendants'
negligence and conscious indifference to player safety, Hartmann may never play again.

12

V.
CAUSES OF ACTION
COUNT ONE NEGLIGENCE CLAIM (SMG)
37.

Hartmann realleges all preceding paragraphs as though fully set forth herein.

38.

Defendant SMG is a possessor of Reliant Stadium because Defendant SMG

operated, managed, and controlled the premises. At the time Hartmann was injured, Hartmann
was an invitee of Defendant SMG on the premises of Reliant Stadium, in that he entered the
stadium with Defendant SMGs express knowledge and permission and for the parties mutual
benefit.
39.

As possessor of Reliant Stadium, Defendant SMG had a legal duty of ordinary

care to invitees, including Hartmann, to reduce or eliminate any unreasonable risks of harm and
to warn them of any premises defects about which Defendant SMG knew or reasonably should
have known. Alternatively, even if Hartmann were only a licensee, Defendant SMG still owed
him a legal duty of ordinary care to reduce or eliminate any unreasonable risks of harm and to
warn Hartmann of any dangerous conditions known to Defendant SMG about which Hartmann
was unaware.
40.

While on the field of Reliant Stadium, Hartmann suffered serious bodily injuries

as a direct and proximate result of a fall caused by the dangerous condition of the premises.
Specifically, the Grass Trays had been installed and maintained on the field in such a way as to
create an unreasonably dangerous condition on the premises (i.e., a severe tripping hazard). This
dangerous condition posed, and still poses, an unreasonable risk of harm to individuals using the
field, such as Hartmann, in that there was such a probability of a harmful event occurring that a
reasonably prudent person would have foreseen that such an event was likely to happen.

13

41.

Defendant SMG, by and through its officers, employees, agents, and

representatives, knew, or in the exercise of ordinary care, should have known, that such
dangerous condition existed. Said dangerous condition was created by Defendant SMG, by and
through its officers, employees, agents, and representatives. Further, the dangerous condition of
the premises had continued for such a period of time that it should have been noticed and
removed or repaired if Defendant SMG, by and through its officers, employees, agents, and
representatives, had been exercising ordinary care in the maintenance of the premises. Hartmann
had neither actual knowledge nor constructive knowledge of the dangerous condition of the
premises.
42.

Defendant SMG, by and through its officers, employees, agents, and

representatives, negligently allowed the premises to become dangerous, negligently failed to

eliminate or reduce such dangerous condition, and negligently failed to warn Hartmann of the
dangerous condition, despite the fact that it knew, or in the exercise of ordinary care, should have
known of the existence of the dangerous condition of the premises and its potential for injury.
Specifically, Hartman alleges that Defendant SMG, by and through its officers, employees,
agents, and representatives, breached its duty of ordinary care by (a) choosing to use multiple
Grass Trays on the field, (b) installing the Grass Trays in such a way that they constituted a
dangerous tripping hazard, (c) failing to maintain the field in a reasonably safe condition, (d)
failing to inspect the field prior to the December 4, 2012 football game to discover any latent
defects, (e) failing to repair any damage inflicted by other parties onto the Grass Trays prior to
the December 4, 2012 football game, and (f) failing to warn Hartmann of the dangerous
condition on the field. These actions and omissions constituted negligence under Texas law.

14

43.

Defendant SMG also owed Hartmann the duty to not injure him willfully,

wantonly, or through gross negligence. Yet Defendant SMG acted willfully, wantonly, and/or
with gross negligence by failing to provide a safe surface for the players to play on. Defendant
SMG, by and through its officers, employees, agents, and representatives, was aware (a) of the
dangerous condition created by the use of the Grass Trays on the field at Reliant Stadium, (b)
that such dangerous condition had been exacerbated by the damage done to the field by various
high school football games in the days and weeks prior to December 4, 2011, and (c) that
tripping hazards on the field can lead to severe and career-ending injuries for football players.
Despite its actual, subjective awareness of all of these facts, Defendant SMG, by and through its
officers, employees, agents, and representatives, acted in conscious indifference to the rights,
safety, and welfare of Hartmann and the other Texans players by failing to make the field safer
and failing to warn those playing on the field of the danger. Considering the probability and
magnitude of the potential harm to players such as Hartmann, Defendant SMGs failure to act
involved an extreme degree of risk.
44.

As a direct and proximate result of Defendant SMGs acts or omissions as

described above, Hartmann suffered severe and disabling injuries.

COUNT TWO NEGLIGENCE CLAIM UNDER THE
TEXAS TORT CLAIMS ACT (HCSCC)
45.

Hartmann realleges all preceding paragraphs as though fully set forth herein.

46.

Defendant HCSCC is a governmental unit whose sovereign immunity has been

waived in this matter pursuant to the TTCA. Specifically, Defendant HCSCC is liable for the
personal injuries sustained by Hartmann because they were caused by a condition of real
property that constituted a premises defect. TEX. CIV. PRAC. & REM. CODE 101.021(2) and

15

101.022(a). Were Defendant HCSCC a private person, it would be liable to Hartmann under
Texas law.
47.

No exception to the waiver of immunity bars the claim because no exception

applies. In particular, Hartmann did not use the premises for recreational purposes as defined
under the Texas Recreational Use Statute, TEX. CIV. PRAC. & REM. CODE 75.001 et seq.
48.

Defendant HCSCC is a possessor of Reliant Stadium because Defendant HCSCC

owned, operated, and controlled the premises. At the time of Hartmanns incident, Hartmann,
through his employer, had paid for the use of Reliant Stadium and, because of such payment,
Defendant HCSCC owed Hartmann the duty that a private landowner owes to an invitee.
Specifically, Defendant HCSCC owed Hartmann a legal duty to use ordinary care to reduce or
eliminate any unreasonable risks of harm and to warn him of any premises defects about which
Defendant SMG knew or reasonably should have known. Alternatively, even if Hartmann had
not paid for the use of Reliant Stadium, Defendant HCSCC still owed Hartmann the duty that a
private landowner owes to a licensee namely, to exercise ordinary care to reduce or eliminate
any unreasonable risks of harm and to warn Hartmann of any dangerous conditions known to
Defendant HCSCC about which Hartmann was unaware.
49.

While on the field of Reliant Stadium, Hartmann suffered serious bodily injuries

as a direct and proximate result of a fall caused by the dangerous condition of the premises.
Specifically, the Grass Trays had been installed and maintained on the field in such a way as to
create an unreasonably dangerous condition on the premises (i.e, a severe tripping hazard). This
dangerous condition posed, and still poses, an unreasonable risk of harm to individuals using the
field, such as Hartmann, in that there was such a probability of a harmful event occurring that a
reasonably prudent person would have foreseen that such an event was likely to happen.

16

50.

Defendant HCSCC, by and through its officers, employees, agents, and

representatives, knew, or in the exercise of ordinary care, should have known, that such
dangerous condition existed. Said dangerous condition was created by Defendant HCSCC, by
and through its officers, employees, agents, and representatives.

Further, the dangerous

condition of the premises had continued for such a period of time that it should have been
noticed and removed or repaired if Defendant HCSCC, by and through its officers, employees,
agents, and representatives, had been exercising ordinary care in the maintenance of the
premises. Hartmann had neither actual knowledge nor constructive knowledge of the dangerous
condition of the premises.
51.

Defendant HCSCC, by and through its officers, employees, agents, and

representatives, negligently allowed the premises to become dangerous, negligently failed to

eliminate or reduce such dangerous condition, and negligently failed to warn Hartmann of the
dangerous condition, despite the fact that it knew, or in the exercise of ordinary care, should have
known of the existence of the dangerous condition of the premises and its potential for injury.
Specifically, Hartman alleges that Defendant HCSCC, by and through its officers, employees,
agents, and representatives, breached its duty of ordinary care by (a) choosing to use multiple
Grass Trays on the field, (b) installing the Grass Trays in such a way that they constituted a
dangerous tripping hazard, (c) failing to maintain the field in a reasonably safe condition, (d)
failing to inspect the field prior to the December 4, 2012 football game to discover any latent
defects, (e) failing to repair any damage inflicted by other parties onto the Grass Trays prior to
the December 4, 2012 football game, and (f) failing to warn Hartmann of the dangerous
condition on the field. These actions and omissions constituted negligence under Texas law.

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52.

Defendant HCSCC also owed Hartmann the duty to not injure him willfully,

wantonly, or through gross negligence. Yet Defendant HCSCC acted willfully, wantonly, and/or
with gross negligence by failing to provide a safe surface for the players to play on. Defendant
HCSCC, by and through its officers, employees, agents, and representatives, was aware (a) of the
dangerous condition created by the use of the Grass Trays on the field at Reliant Stadium, (b)
that such dangerous condition had been exacerbated by the damage done to the field by various
high school football games in the days and weeks prior to December 4, 2011, and (c) that
tripping hazards on the field can lead to severe and career-ending injuries for football players.
Despite its actual, subjective awareness of all of these facts, Defendant HCSCC, by and through
its officers, employees, agents, and representatives, acted in conscious indifference to the rights,
safety, and welfare of Hartmann and the other Texans players by failing to make the field safer
and failing to warn those playing on the field of the danger. Considering the probability and
magnitude of the potential harm to players such as Hartmann, Defendant HCSCCs failure to act
involved an extreme degree of risk.
53.

As a direct and proximate result of Defendant HCSCCs acts or omissions as

described above, Hartmann suffered severe and disabling injuries.

COUNT THREE VICARIOUS LIABILITY (HCSCC)
54.

Alternatively, and without waiving the foregoing, Defendant HCSCC, as owner of

Reliant Stadium, is vicariously liable for the negligence of Defendant SMG under the theory of
agency and/or respondeat superior. At all times relevant to the allegations contained herein,
Defendant SMG was the venue management company for Defendant HCSCC and was acting as
Defendant HCSCCs agent, servant and employee. Defendant HCSCC is vicariously liable for
any negligence of Defendant SMG while acting within the scope of its role as venue manager of

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Reliant Stadium. Defendant SMGs negligent acts and omissions related to the installation and
maintenance of the field were performed while in the employment of Defendant HCSCC, to
further Defendant HCSCCs business, to accomplish the objective for which Defendant SMG
was hired, and were within the course and scope of that employment or within the authority
delegated to Defendant SMG. Accordingly, Defendant HCSCC is vicariously liable for any
negligence of Defendant SMG related to the installation or maintenance of the Grass Trays.
55.

Alternatively, and without waiving the foregoing, Defendant HCSCC is

vicariously liable for the negligence of Defendant SMG under the theory of joint enterprise.
Upon information and belief, Defendants were involved in a joint enterprise, in that they had an
express agreement, a common purpose (i.e., to operate and manage Reliant Stadium), a
community of pecuniary interest in that common purpose, and an equal right to a voice in the
direction of the enterprise, which gives an equal right of control. Defendant SMGs negligent
acts and omissions related to the installation and maintenance of the field were performed while
acting within the scope of the joint enterprise. Accordingly, Defendant HCSCC is vicariously
liable for any negligence of Defendant SMG related to the installation or maintenance of the
Grass Trays.
VI.
NOTICE
56.

Defendant HCSCC had actual notice of Hartmanns injury within 6 months

following the occurrence, as provided by TEX. CIV. PRAC. & REM. CODE 101.101(c), such that
written notice was not required. Specifically, Hartmanns injury, and the fact that it was caused
by him tripping on a seam in the field, was highly publicized in the news in the days following
the incident.

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VII.
DAMAGES
57.

As a direct and proximate result of the Defendants negligence set forth herein,

Plaintiff Hartmann seeks damages for the following:

a. Physical pain and mental anguish in the past and in the future;
b. Reasonable and necessary medical expenses incurred in the past and to be
incurred in the future for the treatment of Plaintiffs injuries;
c. Lost earnings and benefits in the past and loss of future earnings and benefits
and/or future earning capacity;
d. Physical impairment in the past and in the future;
e. Disfigurement in the past and in the future;
f. Costs of Court;
g. Prejudgment and post-judgment interest at the maximum legal rate under Texas
law;
h. Attorneys fees; and
i. Such other and further relief to which Plaintiff may be entitled.
VII.
JURY DEMAND
47.

Pursuant to Texas Rule of Civil Procedure 216, Plaintiff requests a trial by jury and

would show that the appropriate fee is paid contemporaneously with the filing of this Petition.
VIII.
REQUEST FOR DISCLOSURE
48.

Under Texas Rule of Civil Procedure 194, Plaintiff requests that Defendants

disclose, within 50 days of the service of this request, the information or material described in
Rule 194.2(a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), and (l).
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CONCLUSION AND PRAYER

WHEREFORE, PREMISES CONSIDERED Plaintiff prays that Defendants be cited to
appear and answer herein, that this case be set for trial, and that Plaintiff recover a judgment
against all Defendants, both jointly and severally, for all damages in such amount as the evidence
may show and the trier of fact may determine to be proper, in addition to prejudgment interest,
post-judgment interest, costs of court, and all other and further relief, both at law and in equity,
to which Plaintiff may show himself justly entitled.
DATED: November 10, 2014.
Respectfully submitted,
THE LANIER LAW FIRM

W>

By: /s/ Eugene R. Egdorf

.
W. Ma W. MARK LANIER
wml@lanierlawfirm.com
State Bar No.: 11934600
Eugene R. Egdorf
gene.Egdorf@lanierlawfirm.com
State Bar No. 06479570
P.O. Box 691448
6810 FM 1960 West (77069)
Houston, Texas 77269-1448
Telephone: (713) 659-5200
Telecopier: (713) 659-2204
ATTORNEYS FOR PLAINTIFF,
BRETT HARTMANN

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CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing instrument has been
forwarded to all counsel of record as follows and served in accordance with the Texas Rules of
Civil Procedure on this the 10th day of November, 2014.
Via Email and Court Electronic Mail
Mr. Peter J. Bambace
pbambace@holmbambace.com
HOLM BAMBACE LLP
1010 Lamar, Suite 1100
Houston, TX 77002
ATTORNEYS FOR DEFENDANTS
CORPORATION AND SMG

W>

HARRIS

COUNTY

SPORTS

&

CONVENTION

By: /s/ Eugene R. Egdorf

.
Eugene R. Egdorf
gene.Egdorf@lanierlawfirm.com

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