9334P.

001b

D-1-GN-15-004821

CAUSE NO. ______________

BARBARA DI MICELI, Plaintiff
VS.

THE CITY OF AUSTIN, TEXAS AND

CAPITAL METROPOLITAN TRANSPORTATION
AUTHORITY, AKA CAPITAL METRO,
Defendants

10/20/2015 2:52:00 PM
Velva L. Price
District Clerk
Travis County
D-1-GN-15-004821
Patricia Winkler

98TH DISTRICT COURT

IN THE _______

OF

TRAVIS COUNTY, TEXAS

PLAINTIFFS ORIGINAL PETITION AND REQUEST FOR DISCLOSURE

Plaintiff, Barbara Di Miceli, individually, and as heir and personal representative of the Estate of
Bethany Clark, deceased, files this petition against the City of Austin, Texas, and for cause of action
respectfully shows the Court and Jury the following:
1. RULE 47(4) CLAIM FOR RELIEF
1.01

Plaintiff affirmatively pleads seeking monetary relief over $250,000.00.

2. DISCOVERY PLAN

2.01

Plaintiff affirmatively pleads seeking monetary relief aggregating over $50,000.00 and that

Discovery Control Plan Level 2 shall apply under Civil Procedure Rule 190.3.
3. PARTIES
3.01

Plaintiff, Barbara Di Miceli, is the Mother of Bethany Clark (referred to as the Ms. Clark)

and is the heir and personal representative of the Ms. Clarks estate.
3.02

Defendant City of Austin, Texas (referred to as the City"), is a Texas municipality and may

be served through its Mayor, Steve Adler, 301 West 2nd Street, 3rd Floor, Austin, Texas 78701.
3.03

Defendant Capital Metropolitan Transportation Authority, commonly known as Capital

Metro, is a public transportation provider located in Austin, Texas. This party can be served via its

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CEO, Linda Watson, 2910 East 5th Street, Austin, Texas 78702.
3.04

Both Defendants may be served by mail pursuant to TRCP 103 and TRCP 106 (2).
4. SUBJECT MATTER JURISDICTION AND VENUE

4.01

This court has jurisdiction over this matter pursuant to the Common Law of Texas and

Chapter 101 of the Texas Civil Practice and Remedies Code, (the Texas Tort Claims Act). The
Defendants have actual and timely written notice of the claim.
4.02

This court has jurisdiction over this matter because the amount in controversy is within the

jurisdictional limits of the court. Pursuant to 15.002(a)(1) of the Texas Civil Practice and Remedies
Code, venue is proper in this county as it is where all or a substantial part of the events or omissions
giving rise to the claim occurred.
5. STANDING/NATURE OF SUIT
5.01

Wrongful Death Claim - Plaintiff brings this action against the Defendant pursuant to

71.004 of the Texas Civil Practice and Remedies Code.

5.02

Survival Statute Claim - Plaintiff is the Mother of Bethany Clark; she is an heir and the

personal representative of the Estate of the Deceased, pursuant to 71.021 of the Texas Civil Practice
and Remedies Code.
6. FACTS
6.01

The injuries and damages suffered by the Plaintiff, in her capacities, and which are made the

basis of this action, arose out of an occurrence on or about 8:45 p.m., September 14, 2015, at the
intersection of Howard Lane with Metric Boulevard in the City of Austin, Texas, Travis County, Ms.
Clark was crossing the street, when she was struck by a Capital Metro bus making a turn from Metric
Boulevard on to Howard Lane. As a result of the negligence of the Defendants, Ms. Clark died.
7. NEGLIGENCE
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7.01

Defendants failed to use ordinary care by various acts and omissions which were a proximate

cause of the injury to and death of Bethany Clark in at least the following ways: in failing to:
(a)

keep or make the roadway reasonably safe for all travelers;

(b)

provide and maintain adequate lighting at the cross-walk in question;

(c)

failing to reduce or eliminate any unusually dangerous conditions;

(d)

failing to exercise adequate and reasonable care in making a right hand turn; and

(e)

failing to yield the right of way to a pedestrian in the crosswalk.

8. DAMAGES

8.01

The negligence was a proximate cause of damages:

(a)

Conscious physical pain and mental anguish on the part of Bethany Clark;

(b)

loss of income earning capacity;

(c)

Loss of companionship and society;

(d)

Mental anguish on the part of Plaintiff;

(e)

Funeral Expenses.
9. PREJUDGEMENT AND POST-JUDGMENT INTEREST

9.01

Plaintiff seeks prejudgment and post-judgment interest as allowed by law.

10. JURY DEMAND

10.01

The Plaintiff demands a trial by jury of the issues in this case and tenders the jury fee.
11. REQUEST FOR DISCLOSURE

11.01

Pursuant to Rule 194, Defendants are requested to disclose, within fifty (50) days of service

of this request, the information or material described in Rule 194.2 of the Texas Rules of Civil
Procedure.
12. PRAYER
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12.01

WHEREFORE, PREMISES CONSIDERED, the Plaintiff prays that the Defendant be cited

to appear and answer and that on final trial, judgment be entered against the Defendant for damages in
such amounts as the evidence may show and the jury determines proper together with costs,
pre-judgment and post judgment interest, and for such other and further relief, general and special, at
law or in equity, to which Plaintiff is entitled.
FILED this 21st day of October, 2015.
Respectfully submitted,
ATTORNEY FOR PLAINTIFF
Broadus A. Spivey
State Bar No. 00000076
LAW OFFICES OF BROADUS A. SPIVEY
3303 Northland Dr, Ste. 205
Austin, TX 78731-4955
o:512.474.6061 f:512.474.1605
bas@spivey-law.com

By: __________________________________
Broadus A. Spivey

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