IN THE CHANCERY COURT FOR DAVIDSON COUNTY, TENNESSEE. TWENTIETH JUDICIAL DISTRICT AT NASHVILLE : SHARON SHEILA RAMIREZ and GUSTAVO RAMIREZ, individually and as next of kin to the Decedent, GUSTAVO ENRIQUE RAMIREZ; and JOSHUA RAMIREZ, Plaintiffs, ve STOVER & SONS CONTRACTORS, INC; and HIGINIO SANCHEZ-GONZALEZ, individually and in his related capacities; and D.F. CHASE, IN RAMAN G. DAYAL, SURESH G. DAYAL, and VALLABH B, PATEL; and EZ DISTRIBUTING INSTALLATION, INC.; and EZ DISTRIBUTING, INC., Defendants. A Civil Action No. 20-97007T JURY DEMANDED WRONGFUL DEATH COMPLAINT ‘Come now the Plaintiffs, Sharon Sheila Ramirez, Gustavo Ramirez, and Joshua Ramirez, complaining against Defendants for causing the wrongful death of Gustavo Enrique Ramirez, their beloved 16-year-old child and brother, and would allege as follows: {0088812037100526519 DOC Ver} 1PARTIES 1. Plaintiffs Sharon Sheila Ramirez and Gustavo Ramirez (hereinafter collectively “Mr. and Mrs. Ramirez”) are the natural parents and next of kin of young Gustavo Enrique Ramirez (hereinafter “Gustavo"). Mr. and Mrs. Ramirez are both residents of Springfield, Tennessee. 2. Plaintiff Joshua Ramirez is the older brother of Gustavo and natural child of Mr. and Mrs. Ramirez. He turned 18 years old in September 2019. He is a resident of Springfield, Tennessee. Defendant Stover & Sons Contractors, Inc. (“Stover”) is a Tennessee corporation engaged in stucco, plastering, and similar exterior finishing work in the construction industry, with its principal office located in Davidson County at 330 E, Old Hickory Blvd. Madison, TN 37115-3937. Stover can be served via its registered agent, Ryan Stover, at the same address. 4, Defendant Higinio “Raul” Sanchez-Gonzalez (“Sanchez”) is a resident of Davidson County, Tennessee, At all times relevant, he was employed in a supervisory capacity by Stover. Additionally, Defendant Sanchez. has served in the dual capacity as the pastor of the church the Ramirez family attended. 5. Defendant D.F. Chase, Inc. (“D.F. Chase”) is a Tennessee corporation engaged in general contracting work in the construction industry, with its principal office located in Davidson County, Tennessee at 3001 Armory Drive, Suite 200, Nashville, TN 37204-3711. D.F. Chase can be served via its registered agent, Dean F. Chase, at the same address. 6 Defendant EZ Distributing, Inc. is a Tennessee corporation engaged in the design, manufacture, sale and lease of scaffolding, as well as training and service, with its principal office located in Tennessee at 810 Mayberry Springs Rd. Columbia, TN 38401-9339. It can be served via its registered agent, Curtis G. Bridges, at the same address. (005881/2037:00825519.00€ Ver) 27. Defendant EZ Distributing Installation, Inc. is a Tennessee corporation engaged in the design, manufacture, sale and lease of scaffolding, as well as training and service, with its principal office located in Tennessee at 810 Mayberry Springs Rd. Columbia, TN 38401-9339. It can be served via its registered agent, Mark Derryberry, at the same address, 8, Upon information and belief, Defendants EZ Distributing Installation, Inc. and EZ Distributing, Inc. do business as EZ Scaffold. Plaintiffs hereinafter refer to these two Defendants as the EZ Distributing Defendants. 9. Upon information and belief, Defendants Raman Dayal, Suresh Dayal, and Vallabh Patel ("Owners") are the owners of the real property located at 315 Interstate Drive, Nashville, Tennessee, in Davidson County, upon which Owners have undertaken the construction of a La Quinta hotel (hereafter referred to as the “Prujeet”) FACTUAL BACKGROUND 10. Plaintiffs complain of the wrongful and premature death of Gustavo Enrique Ramirez, Jr., Mr. and Mrs. Ramirez's youngest child, who was born on March 2, 2004. He died as a result of Defendants’ actions on June 23, 2020, just months after his sixteenth birthday. 11, Atall times relevant hereto, young Gustavo was an employee of Stover & Sons Contractors, Inc. (hereinafter “Stover”), a Tennessee for-profit corporation having its principle location in Davidson County, Tennessee. 12, In May 2020, the Ramirez family moved from Kentucky to Springfield, Tennessee, and Joshua and young Gustavo took a summer job with Stover. 13, At that time, Joshua had just graduated from high school and Gustavo had just completed his sophomore year of high school. Gustavo was an excellent student and planned to 20 to college after graduation. {005881/20371100826819.D0C Vex.) 314, The Ramirez family attended a church called Casa de Oracion, which has a location in Hendersonville as well as Springfield. Defendant Sanchez is the pastor of the church, 15, Gustavo was very involved in their church community, including youth group and the church band, In fact, he was the president of the youth group for 2020. 16. Defendant Sanchez recruited Joshua and Gustavo to work for Stover, with the knowledge and approval of Donnie Stover, the executive vice president of Stover. 17. Defendant Sanchez often recruited church youth group members to work on construction projects for his employer, Stover. Due to his trusted position in the church, he was able to use young church members as a pool of supplemental labor for the benefit of Stover. 18. Joshua had previously worked summer jobs for Stover, through Sanchez, beginning in May or June of 2018, when he was 16 years ol, Sanchez gave Gustavo his first job working for Stover in or about March of 2019, over spring break, when Gustavo was just 15 years old. 19. Gustavo and Joshua began working for Stover on the La Quinta Project in late May 2020. 20. Upon information and belief, Defendant D.F. Chase was, and continues to be, the general contractor on the Project, under contract with the Owners. Upon information and belief, D.F. Chase subcontracted exterior finishing work to Stover. 21. Upon information and belief, Stover willfully failed to secure workers’ compensation insurance, or to self-insure its liability, to cover underaged workers, including Gustavo. 22. Nevertheless, Joshua and Gustavo performed exterior finishing application work ‘on the Project for Stover, from the ground floor up to the roof, which at the time of the accident ‘was just above the 11" story of the hotel. {008881/20371100524519 DOC Vex.) 423. Upon information and belief, Stover employed at least one other employee, besides Gustavo, who was under the age of 18 to perform work on the Project. 24, On June 4, 2020, Joshua and Gustavo attended an orientation at the Project. 25. A representative of the EZ Distributing Defendants conducted the orientation, which provided basic information about mast climber scaffolding. The EZ Distributing Defendants made no mention of any age requirements for use and operation of scaffolds, nor did they provide instruction for installing an attachment to prevent falls through a gap in the platform around a column on the building, nor did they provide any particular instruction about avoiding fall hazards or proper planking around the column. 26. The same day, Joshua, Gustavo, and the other Stover workers travelled to the Stover office in Madison, Tennessee, fur further orientation. There, they watched a slide show prepared by D.F. Chase. However, D.F. Chase did not present the slideshow to them. 27. Defendants did not ensure that the information in the slide show was accurately communicated. Defendants carelessly directed Joshua, an eighteen-year-old man with no formal training or education in language, to translate the slides into Spanish for the other workers to the best of his abilities. 28. This slideshow was the only training D.F. Chase ever provided to Stover employees about safety on the Project. 29. There were two, independent mast climber scaffold platforms assembled on the Project. The two scaffolds were located beside each other, to the left and right, on the front side of the hotel building, 30. The two platforms were primarily used by Stover employees, including Joshua ‘and Gustavo, but they were also used by workers in other trades. 31. Typically, there were about six to eight individuals working on each platform. {05881/20871100824819 DOC Vex.) 532. Defendants were all awate that Gustavo and the other minor employee were under the age of eighteen as they worked on the Project. Gustavo and his co-workers openly and visibly worked on the scaffolding for most of the work day. None of the Defendants ever reprimanded Gustavo for being on the scaffolds or otherwise instructed him that he was not allowed to be on the scaffolds. In fact, being on the scaffolding, and in particular, moving ‘materials on and off the scaffolding while it was elevated, were key functions of his job, 33. Defendant Sanchez was on the Project site nearly every day to inspect progress and provide instruction for Stover. 34. Stover employees, including Gustavo, regularly crossed back and forth between the scaffold and the building when working on each floor, without lowering the scaffold. In other words, they crossed in mid-air, as high as 120 fect in clevation, between the building aud the scaffolding 35. Defendants were aware that workers were using the building to access the scaffolds and vice versa, rather than lowering the scaffolding to the ground to enter and exit the platform, but never corrected that practice. 36. None of the Defendants ever offered Gustavo or Joshua a hamess during their work on the Project to protect them from falls as they moved from the building to the scaffolding, 37. Defendants did not hold periodic safety meetings on the Project site, nor did they inspect the mast climber scaffolding before work began each day. 38. Upon information and belief, Defendant D.F. Chase did not employ a safety coordinator or inspector to be on the Project site every day. (00581/2037100826818.D0C Ver.) 639. When the scaffolds moved up the exterior face of the building crossing each floor of the hotel, there was an approximately two-foot-wide gap between the platform, where the workers stood, and the face of the building. 40. Outriggers are beams that extend from the scaffold platform to increase the base width of a scaffold in order to provide support and increased stability. A plank may then be laid across the outrigger beams to help close the gap between the scaffold platform and the building. 41. There is an extemal column that protrudes on the left side of the face of the La Quinta building. The column continues all the way up to the eleventh-floor level. 42, This column blocked the last outrigger on the left scaffold from extending. This created about a three-foot long gap in the platform from the last extended outrigger to the column. In other words, the left-side platfoum had an approximately three-foot wide hole in the scaffolding platform 43. Industry standard is to attach a temporary outrigger near this column so planks can be placed to cover the gap in a stable manner. However, Defendants removed this outrigger and failed to otherwise cover or block the large gap around the column in any other way. 44, None of the Defendants ever discussed this gap or wamed Gustavo or Joshua about dangers associated with it. 45. On June 23, 2020, Joshua and Gustavo arrived to the Project at around 6:00 a.m., as usual, and began work. They took their lunch as usual, and began returning to work after lunch. At that time, the Stover employees were performing work at the top of the building, and the left scaffold platform was near the roof level. 46. The Stover workers typically accessed the platform by climbing to the roof and jumping over the roof ledge, across the approximately two-foot gap, and onto the scaffolding {00888172037100526519.DOC Ver} 7platform. Joshua and several other Stover workers accessed the left platform in this manner on this day. Defendant Sanchez was on the roof watching them retum to work after lunch, 47. When it was Gustavo’s turn to enter the scaffolding platform, he began to cross, as always, from the roof, over the ledge, across the gap, eleven stories in the air, and onto the platform. 48. However, as Gustavo hoisted himself off the roof and onto the scaffolding, he did not find footing on the platform, but instead landed in the large, unmitigated gap in the platform created by the column, His entire body slipped through the large gap. 49. Joshua saw his brother fall through the gap in the platform, recalling the last image of Gustavo’s arm slipping quickly through the hole. 50. Young Gustavo Ramirez fell eleven stories to his death, He was 16 years old. CAUSES OF ACTION COUNTI NEGLIGENCE/GROSS NEGLIGENCE Mr. and Mrs. Ramirez against All Defendants 51. Mr. and Mrs. Ramirez incorporate by reference and re-allege each and every preceding allegation, as though fully set forth herein. 52. Defendants owed a duty of care to all workers on the Project, including young Gustavo, to provide and maintain a safe workplace free of hazards. 53. Defendants owed a duty of care to all workers on the Project, including young Gustavo, to follow all applicable laws, codes, and industry standards concerning off-the-ground work on the Project. 54. Defendants owed a duty of care to all workers on the Project, including young, Gustavo, to provide safe equipment and to provide adequate training on the use of equipment and other general safety measures on the Project. {005881/20371100526819 DOC /Ver.1} 855. Because of the heights at which work occurred on the Project, it was foreseeable that a worker would be injured, as Gustavo was, due to Defendants’ actions and inactions described herein, As such, Defendants had a duty to refrain from the misfeasance and nonfeasance described herein. 56. Defendants breached these duties by failing to construct, maintain and operate the ‘mast climber scaffolding in a correct, safe, and hazard-free manner, in compliance with applicable regulations, industry standards, and manufacturer recommendations, and such proximate negligence caused the accident and injuries to Gustavo. 57. Defendants further breached these duties by failing to provide personal fall protection equipment to workers on the Project, in compliance with applicable regulations and industry standards, and such proximate negligence caused the accident and injusies to Gustave. 58. Defendants further breached these duties by failing to train and designate ‘competent persons on the Project, failing to train workers on fall hazards and other particularized hazards on the Project, failing to train workers on the defects and dangers of the mast climber scaffolding, in particular the hazards created by the column on the left-side platform, and failing to conduct safety meetings, inspections and otherwise failing to ensure even a basic level of safety on the Project, and such proximate negligence caused the accident and injuries to Gustavo. 59. The hazardous conditions created by Defendants DF Chase and Stover on the Project were of an ongoing nature for approximately 20 days, that Defendants Dayal, Dayal, and Patel would have discovered them had they engaged in proper diligence, making them liable for injuries that occurred on their premises. 60. Gustavo’s death would not have occurred but for Defendants’ grossly negligent, reckless, and willful conduct, Gustavo’s injuries and death are the natural and probable consequence of the Defendants’ acts of misfeasance and nonfeasance. (00s881/2037100525519.00€ Ver} 961. Defendants’ actions and inactions constitute a pattem of gross negligence, recklessness, and malicious conduct carried out with a flagrant disregard for the rights and safety of workers on the Project, including Gustavo. As such, Defendants are liable to Plaintiffs for punitive and exemplary damages. COUNT NEGLIGENCE PER SE ‘Mr. and Mrs. Ramirez against All Defendants 62. Mr. and Mrs. Ramirez incorporate by reference and re-allege each and every preceding allegation, as though fully set forth herein 63. State and federal laws govern the prevention of falls on multi-story construction sites such as the Project, safety and training on such sites, as well as the protection of children working on such a work site, Defendants violated numerous such laws. 64. Various regulations, see, eg., 29 CFR. § 1910.140, 1926.500 et seg., mandate training and equipment to protect workers from falls. Defendants violated these regulatory safety mandates by providing no training and no personal fall protection equipment to Gustavo. 65. Various regulations, see, e.g, 29 C.F.R. § 1926.450 et seq., mandate planking and railing on scaffolding systems, as well as training, inter alia, to protect workers from falls. Defendants violated these regulatory safety mandates by failing to address large gaps on the mast climber scaffolding, failing to adequately plank so as to limit gaps between the scaffolding and the face of the work, and failing to adequately train workers, including Gustavo, and designate competent persons as required by law. 66. Further, U.S. Department of Labor Hazardous Occupation Orders 7 and 16 prevent a 16-year-old child, like Gustavo, from ever performing work involving the operation of power-driver hoisting apparatus, like the mast climber scaffolding on the Project, or performing {08681/20371100526519 DOC Vert} 10work on or about a roof, See 29 C.F.R. § 570.58, 570.67. Defendants violated these per se child labor prohibitions by suffering and permitting Gustavo to perform such prohibited work 67. Despite this per se prohibition on children working on mast climber scaffolding, the EZ Distributing Defendants actually trained and certified Gustavo, a 16-year old boy, as a qualified user and operator on the mast climber system. 68. Upon information and belief, Defendants continue to employ children under the age of 18 in hazardous occupations on the Project as of the date of filing in violation of child labor laws. 69. Defendants are in violation of the duties established by federal and state regulation governing the safe and proper performance of work at elevated heights, especially by children, which violations caused the death of Gustavo. The vivlatious of said mandates constitute negligence per se. 70. Further, the malfeasance and nonfeasance of Defendants as described herein constitute gross negligence and reckless and malicious conduct with disregard for the safety of workers and, in particular, Gustavo. COUNT I TENNESSEE PRODUCTS LIABILITY ACT Mr. and Mrs, Ramirez against EZ Distributing Defendants 71. Mr. and Mrs, Ramirez incorporate by reference and re-allege each and every preceding allegation, as though fully set forth herein. 72. The EZ Distributing Defendants are manufacturers and sellers of the mast climber scaffolding system used on the Project, as defined by the Tennessee Products Liability Act of 1978, Tenn. Code Ann, § 29-28-101 et seq 73. The EZ Distributing Defendants prepared, assembled, tested and serviced the ‘mast climber scaffolding on the Project in a grossly negligent and reckless manner. In particular, {00s881/20371;0826819 DOC Ver} ttthey set up the mast climber left-side platform around a column on that side of the building that created a large, open gap on the platform, but failed to install the outrigging attachment or any other safety device that would have covered that gap, making the mast climber scaffolding defective and unreasonably dangerous at the time it left the EZ. Distributing Defendants’ control on the Project site in early June 2020, 74, Further, the design of the temporary outrigger, which allows the platform to be operated without attachment of the outrigger or any supported planking, was a known flaw in the scaffolding system, one which the EZ Distributing Defendants’ took no steps to correct. 75. A reasonably prudent manufacturer or seller would have known that the ‘unmitigated gap in the scaffolding created an unreasonable risk to ordinary adult and child users of the product aud would not have marketed the product in that condition. 76. The EZ Distributing Defendants failed to provide any warning and instruction to users of the mast climber scaffolding about the defective and unreasonably dangerous design and set up of the system around the column when it was initially sold or leased and assembled, ‘making these Defendants strictly liable for the injuries and damages Gustavo suffered. 77. Even after the EZ Distributing Defendants initially set up the mast climber scaffolding, they continued to visit the Project site and observed that the left-side platform was being utilized without the outrigging attachment or any other safety device that would have covered the gap around the column, but they failed to warn the product's users of the defective and unreasonably dangerous design and set up of the system around the column at any time. 78. — Gustavo's death was directly and proximately caused by the EZ Distributing Defendants’ defective and unreasonably dangerous product. 79. As a result of Defendants’ actions described herein, Gustavo sustained lost wages, lost eaming capacity, and loss of enjoyment of life. Defendants are liable for those damages. (005881/2037/00826519.00 Vera} R80. Asa result of Defendants’ actions described herein, Mr. and Mrs, Ramirez have been denied the affection and companionship of their child, whom they loved and adored. Defendants are liable for their loss of consortium, 81. Asa result of Defendants’ actions described herein, Joshua Ramirez has suffered ‘mental anguish and physical manifestations as a result of witnessing his brother’s death, in addition to having been denied the affection and companionship of his brother, for whom he cared deeply. Defendants are liable for his damages. 82. The rights of action contained herein do not abate as a result of young Gustavo’s death, but pass to his next of kind, his parents Mr. and Mrs. Ramirez, pursuant to Tenn, Code Ann, § 20-5-106. COUNT Iv TORTIOUS INFLICTION OF EMOTIONAL DISTRESS All Plaintiffs against All Defendants 83. Plaintiffs incorporate by reference and re-allege each and every preceding allegation, as though fully set forth herein. 84, Almost immediately after Plaintiff Joshua Ramirez witnessed his brother’s death, Defendant Sanchez and other Stover employees approached , Not to console him, but to cajole him into lying about the details of Gustavo’s death, 85. This harassment continued the next day when Defendant Sanchez showed up at ‘the Ramirez home with falsified documents he asked Plaintiffs to sign. 86. Since that day, Defendants Stover and Sanchez have continued to terrorize the Plaintiffs, so much so that Mr. and Mrs. Ramirez decided to move to a new home in a new town out of fear of continued harassment and reprisals from Defendants. {0088812037100526519.D0C / Ver!) 1387. These Defendants’ prolonged harassment of a family in mourning, undertaken intentionally and maliciously over the course of several weeks, is $0 outrageous that it simply cannot be tolerated in a civil society. 88. Additionally, all Defendants have, by their negligence as described herein, inflicted unbearable emotional distress on all Plaintiffs. 89. Plaintiffs have suffered physical manifestations of their distress, such as panic attacks and seizures, as well as severe emotional injuries proximately caused by theit inability to adequately cope with the mental stress engendered by the death of their youngest child and beloved brother, the injustice and indignity of the circumstances of his death, and the subsequent harassment from certain Defendants. THE EXCLUSIVE REMEDY PROVISION OF THE TENNESSEE WORKERS’ COMPENSATION LAW, TENN. CODE ANN. § 50-6-108, IS UNCONSTITUTIONAL, 90. The exclusive remedy provision of the Tennessee Workers’ Compensation Law, as amended in 2014, Tenn, Code Ann. § 50-6-108, is an unconstitutional deprivation of Plaintiffs’ constitutionally protected right to access the Courts and to have their claims tried by a jury. See Article 1, Sections 6 and 17 of the Constitution of the State of Tennessee. 91. Further, the Tennessee Workers’ Compensation Law, as amended in 2014, does violate the separation of powers and the due process guarantee of that separation as provided by the state and federal constitutions. See, e.g., Article II, Sections 1 and 2 of the Constitution of the State of Tennessee, 92. The Constitution provides that these rights “shall never be violated on any pretense whatever... and shall forever remain inviolate.” Article XI, Section 16 of the Constitution of the State of Tennessee. {00584120371;0826519 DOC Vert} 493. Plaintiffs request a declaration, pursuant to Tenn. Code Ann. § 29-14-103, that the challenged provisions are void ab initio and as applied to this case and are, therefore, of no application to their claims. 94, Pursuant to Tenn, Code Ann. § 29-14-107, a copy of this Complaint is being served on the Attorney General of the State of Tennessee as notice of Plaintiffs’ challenge. WHEREFORE, having fully complained, the Plaintiffs pray: 1. That process issue and cause the Defendants to answer. ‘That Plaintiffs have and recover a judgment for damages as described herein for the injuries to and for the wrongful death of their beloved son and brother, including but not limited to his mental and physical pain, the loss of value of his life and his lost earning capacity, and funeral and other resultant expenses in an amount to be determined by u jury 3. That Plaintiffs have and recover a judgment for their own loss of consortium and mental anguish caused by the loss of their beloved son and brother in an amount to be determined by a jury. 4, That Plaintiffs have and recover punitive or exemplary damages in an amount to bbe determined by a jury. 5. That the court award such further relief to which Plaintiffs, on their own behalf and/or on behalf of their son and brother, are entitled. {00st81/20371100526519.D0C Ver.) 15(00se81/2037100526519.00C /Ver.1) 16 Respectfully submitted: ich, TN, BPR #2542 ipbell, BPR #27132 Callie Jennings, BPR #35198 BRANSTETTER, STRANCH & JENNINGS 223 Rosa L. Parks Avenue, Suite 200 Nashville, TN 37203 kcampbell@bsifirm.com Tel: (615) 254-8801 Attorneys for Plaintiffs