Free Complaint - District Court of Delaware - Delaware

Case 1:08-cv-00082-JJF

Document 1

Filed 07/24/2007

Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND BRIAN DONNELLY 119 North West Creek Drive Stevensville, Maryland 21666 Plaintiff v. SLINGSHOT SPORTS LLC 40 SW Cascade Avenue, Suite 45O PO Box 759 Stevenson, Washington 98648 Serve On: Registered Agent: Jeffrey Logosz 65435 Highway 14 PO Box 477 White Salmon, Washington 98672 Defendant * * * * * * * * * * * COMPLAINT AND DEMAND FOR JURY TRIAL * * * * * * * * * * *

Plaintiff, Brian Donnelly, by and through his attorneys, Paul D. Bekman, Gregory G. Hopper, and Salsbury, Clements, Bekman, Marder & Adkins, L.L.C., hereby sues Defendant, Slingshot Sports LLC, and, in support thereof, states as follows:

Case 1:08-cv-00082-JJF

Document 1

Filed 07/24/2007

Page 2 of 10

PARTIES AND JURISDICTION 1. Brian Donnelly was seriously injured on August 21, 2004 on navigable waters

off the coast of Dewey Beach, Delaware while using 2004 Slingshot Fuel kiteboarding system developed, designed, tested, manufactured, assembled, sold, distributed, and placed into the stream of commerce by Slingshot Sports LLC. Mr. Donnelly alleges that the Slingshot Fuel was defective and unreasonably dangerous due to problems with its design and manufacture. 2. 3. Plaintiff, Brian Donnelly, is a resident of the State of Maryland. Defendant, Slingshot Sports LLC, is a limited liability company organized and

existing under the laws of the State of Washington that designs, manufactures, assembles, distributes, and sells kiteboarding and other maritime recreational equipment traditionally used on navigable waters. 4. This Court has jurisdiction over this action under the admiralty and maritime

provision found in 28 U.S.C. 1333(1) and the diversity of citizenship provision found in 28 U.S.C. 1332. The amount in controversy in this action exceeds $75,000 (Seventy Five Thousand Dollars). 5. Venue is proper pursuant to 28 U.S.C. 1391(a). FACTS IN COMMON TO ALL COUNTS 6. On August 24, 2004, Brian Donnelly was using a Slingshot Fuel 15 kite with

a Slingshot Profire bar in the navigable waters off the coast of Dewey Beach, Delaware when

2

Case 1:08-cv-00082-JJF

Document 1

Filed 07/24/2007

Page 3 of 10

he was lofted high into the air by a gust of wind, carried back towards shore, and then dropped with great force in a tidal marsh. In addition to the fear and upset he faced, Mr. Donnelly suffered a number of physical injuries including, but not limited to, multiple spinal fractures of the cervical and thoracic spine, multiple rib fractures, bilateral hemothorax, left pneumothorax, and fractures of his clavicle and scapula. 7. Defendant, Slingshot Sports LLC, developed, designed, tested, manufactured,

assembled, inspected, distributed, and sold the Slingshot Fuel that Brian Donnelly was using and injured by as part of its regular business. 8. The Slingshot Fuel was expected to reach and did reach the hands of Brian

Donnelly without substantial change in the condition in which it was designed, manufactured, assembled, distributed, and sold. 9. Defendant, Slingshot Sports LLC, knew that the Slingshot Fuel would be used

without inspection for defects and represented that it could be safely used and would be fit for the ordinary purposes for which it was purchased. 10. At all times relevant to this action, Brian Donnelly used the Slingshot Fuel for

the purpose in which it was designed, manufactured, assembled, distributed, and sold and in a reasonable, foreseeable, and anticipated manner. COUNT I: STRICT LIABILITY 11. Plaintiff, Brian Donnelly, hereby reasserts and incorporates by reference the

statements and allegations in paragraphs 1 through 10 as if fully set forth herein.

3

Case 1:08-cv-00082-JJF

Document 1

Filed 07/24/2007

Page 4 of 10

12.

At all times relevant to this action, including but not limited to the time

Defendant, Slingshot Sports LLC, designed, manufactured, assembled, distributed, sold, and placed the Slingshot Fuel kiteboarding system into the stream of commerce and when it was used by Brian Donnelly in a reasonable, foreseeable, and anticipated manner, it was defective and unreasonably dangerous because it: a. b. c. was defectively designed; was defectively manufactured; did not incorporate adequate safety mechanisms or release systems to allow

users or operators of the kiteboarding system to depower or collapse their kites to prevent injuries in foreseeable lift-off or lofting situations; d. did not incorporate adequate safety mechanisms or release systems to allow the

users or operators of the kiteboarding system to release or disconnect themselves from the bar to prevent injures in foreseeable lift-off or lofting situations; e. did not provide adequate or complete warnings to purchasers, operators, and/or

users about the dangers, hazards, or injury producing potential of lift-off or lofting situations; f. did not provide adequate or complete to purchasers, operators, and/or users

about the need for adequate safety mechanisms or release systems to prevent injuries in foreseeable lift-off or lofting situations; and g. was otherwise defective and unreasonably dangerous.

4

Case 1:08-cv-00082-JJF

Document 1

Filed 07/24/2007

Page 5 of 10

13.

As a direct and proximate result of the defective and dangerous condition of

the Slingshot Fuel kiteboarding system, Brian Donnelly suffered pre-impact fright and suffered and, for the remainder of his life, will suffer severe and permanent bodily injury, physical pain and suffering, mental anguish, emotional injury and trauma, disfigurement, humiliation, inconvenience, physical impairment, economic damages including medical and other expenses, lost wages, lost earnings capacity, and other related injuries and harms. WHEREFORE, Plaintiff, Brian Donnelly, hereby demands judgment against Defendant, Slingshot Sports LLC, for compensatory damages in the amount of Ten Million Dollars ($10,000,000) plus interest and the costs of this action. COUNT II: NEGLIGENCE 14. Plaintiff, Brian Donnelly, hereby reasserts and incorporates by reference the

statements and allegations in paragraphs 1 through 10 as if fully set forth herein. 15. Defendant, Slingshot Sports LLC, as a designer, developer, manufacturer,

tester, distributor, and seller of the Slingshot Fuel kiteboarding system, owed a duty to those who would use or otherwise come into contact with its products to exercise due care, ensure that its products were free of any defects that would make them unreasonably dangerous for use in a reasonable, foreseeable, and anticipated manner, and provide adequate and complete warnings of the nature of any such dangers. 16. At all times relevant to this action, including the time it designed,

manufactured, and sold the Slingshot Fuel kiteboarding system and before and at the time

5

Case 1:08-cv-00082-JJF

Document 1

Filed 07/24/2007

Page 6 of 10

when Brian Donnelly used the Slingshot Fuel on August 21, 2004, Defendant, Slingshot Sports LLC, knew or should have known that it was defective and unreasonably dangerous based upon the information known or knowable to it. 17. Defendant, Slingshot Sports LLC, breached its duty and was careless and

negligent in that it: a. failed to adequately and safely design, test, and manufacture the Slingshot Fuel

kiteboarding system; b. failed to incorporate adequate safety mechanisms or release systems in the

Slingshot Fuel kiteboarding system to allow users or operators to depower or collapse their kites to prevent injuries in foreseeable lift-off or lofting situations; c. failed to incorporate adequate safety mechanisms or release systems in the

Slingshot Fuel kiteboarding system to allow the users or operators to release or disconnect themselves from the bar to prevent injures in foreseeable lift-off or lofting situations; d. failed to provide adequate and complete warnings to purchasers, operators,

and/or users of the Slingshot Fuel kiteboarding system about the dangers, hazards, or injury producing potential of lift-off or lofting situations; e. failed to provide adequate and complete warnings to purchasers, operators,

and/or users of the Slingshot Fuel kiteboarding system about the need for adequate safety mechanisms or release systems to prevent injuries in foreseeable lift-off or lofting situations;

6

Case 1:08-cv-00082-JJF

Document 1

Filed 07/24/2007

Page 7 of 10

f.

failed provide adequate and complete post-sale warnings to purchasers,

operators, and/or users of the Slingshot Fuel kiteboarding system about the dangers, hazards, or injury producing potential of lift-off or lofting situations; g. failed to provide adequate and complete post-sale warnings to purchasers,

operators, and/or users of the Slingshot Fuel kiteboarding system about the need for adequate safety mechanisms or release systems to prevent injuries in foreseeable lift-off or lofting situations; h. failed to provide adequate and complete post-sale warnings to purchasers,

operators, and/or users of the Slingshot Fuel kiteboarding system about the need to add adequate safety mechanisms or release systems to prevent injuries in foreseeable lift-off or lofting situations; and i. failed to comply with the applicable standard of care and was otherwise

careless and negligent. 18. As a direct and proximate result of the carelessness and negligence of the

Defendant, Slingshot Sports LLC, Brian Donnelly suffered pre-impact fright and suffered and, for the remainder of his life, will suffer severe and permanent bodily injury, physical pain and suffering, mental anguish, emotional injury and trauma, disfigurement, humiliation, inconvenience, physical impairment, economic damages including medical and other expenses, lost wages, lost earnings capacity, and other related injuries and harms.

7

Case 1:08-cv-00082-JJF

Document 1

Filed 07/24/2007

Page 8 of 10

19.

All of Brian Donnelly's injuries and damages were caused by the wrongful

acts and omissions of the Defendant, Slingshot Sports LLC, without any negligence on his part contributing thereto. WHEREFORE, Plaintiff, Brian Donnelly, hereby demands judgment against Defendant, Slingshot Sports LLC, for compensatory damages in the amount of Ten Million Dollars ($10,000,000) plus interest and the costs of this action. COUNT III: BREACH OF WARRANTY 20. Plaintiff, Brian Donnelly, hereby reasserts and incorporates by reference the

statements and allegations in paragraphs 1 through 10 as if fully set forth herein. 21. Defendant, Slingshot Sports LLC, designed, developed, manufactured, tested,

distributed, and sold the Slingshot Fuel kiteboarding system and held it out to Brian Donnelly and other members of the general public as a safe kiteboard system, free of any defects that make it unreasonably dangerous for use in a reasonable, foreseeable, and anticipated manner in a manner ­ actions and representations that created and amounted to implied warranties of merchantability and fitness for a particular purpose. 22. Defendant, Slingshot Sports LLC, breached its implied warranties of

merchantability and fitness for a particular purpose with respect to its Slingshot Fuel kiteboarding system because it was sold in a defective and unreasonably dangerous condition without incorporating adequate safety mechanisms or release systems to allow users or operators of the kiteboarding system to depower or collapse their kites to prevent injuries in

8

Case 1:08-cv-00082-JJF

Document 1

Filed 07/24/2007

Page 9 of 10

foreseeable lift-off or lofting situations or adequate safety mechanisms or release systems to allow the users or operators of the kiteboarding system to release or disconnect themselves from the bar to prevent injures in foreseeable lift-off or lofting situations and/or did not give adequate and complete warnings to purchasers, operators, and users about the dangers, hazards, or injury producing potential of lift-off or lofting situations or the need for adequate safety mechanisms or release systems to prevent injuries in foreseeable lift-off or lofting situations. 23. At all times relevant to this action, including the time it designed,

manufactured, and sold the Slingshot Fuel kiteboarding system and before and at the time when Brian Donnelly used the Slingshot Fuel on August 21, 2004, Defendant, Slingshot Sports LLC, knew or should have known that it was defective and unreasonably dangerous based upon the information known or knowable to it. 24. As a direct and proximate result of the actions or omissions of Defendant,

Slingshot Sports LLC, in breaching its implied warranties of merchantability and fitness for a particular purpose with respect to its Slingshot Fuel kiteboarding system, Brian Donnelly suffered pre-impact fright and suffered and, for the remainder of his life, will suffer severe and permanent bodily injury, physical pain and suffering, mental anguish, emotional injury and trauma, disfigurement, humiliation, inconvenience, physical impairment, economic damages including medical and other expenses, lost wages, lost earnings capacity, and other related injuries and harms.

9

Case 1:08-cv-00082-JJF

Document 1

Filed 07/24/2007

Page 10 of 10

WHEREFORE, Plaintiff, Brian Donnelly, hereby demands judgment against Defendant, Slingshot Sports LLC, for compensatory damages in the amount of Ten Million Dollars ($10,000,000) plus interest and the costs of this action. Respectfully submitted,

____________________________________ Paul D. Bekman Gregory G. Hopper Salsbury, Clements, Bekman, Marder & Adkins 300 W. Pratt Street, Suite 450 Baltimore, Maryland 21201 (410) 539-6633 Attorneys for Plaintiffs

10

JS-44 'Rev.I/DS OC';

Case 1:08-cv-00082-JJF

Document 1-2 Filed 07/24/2007 CIVIL COVER SHEET
DEFENDANTS

Page 1 of 3

I (a) PLAINTIFFS
Brian Donnelly

Slingshot

Sports,

LLC

" ,. OUi YL.~

;

(b) COUN1Y OF RESIDENCEOF FIRST USTED PLAINTIFF (EXCEPT IN V.s. PLAINTIJ1F CASES)
I

88888
NUMBER)

COUNTY OF RESIDENCEOF FIRST USTED DEFENDANT (IN u.s. PLAINTIFFCASES ONLV) NarE: IN LAND CONDEMNAnON CASFS. USE THE LOCAnON OF THE TRACT OF LAND INVOLVED -' C~_[R)Ij"S n~'s:'l"
A 1TORNEYS (IF KNOWN)

~JIJ8JUL 24
~--C-3

.. 3: ~

(c) ATTORNEYS

(FIRM NAME. ADDRESS, AND TELEPHONE

;~ ALTftiOIti

Gregory G. Hopper, :Salsbury, Clements, 300 W. Pratt Street, Baltimore, Maryland

Esquire
Bekman, Marder Suite 450 21201 & Adkins

8Y~ --OaF

UT~

D. BASIS OF JURISDICnON
(pLACE AN x IN ONE BOX ONL V)

m CITIZENSHIP OF PRINCIPAL PARTIES (pLACE AN x IN ONE BOX FeR PWNTIFF AND ONE BOX FOR DEFENDANT) FOR DIVERSITY CASES ONLY! PTF
Citizen of this State

U.S. Govern~t 3 FederalQuestion Plaintiff (U.S. Govenunent a Party) Not

DFT
Incorporated or Principal Place of Business in This State Incorporated and Principal Place of Business in Another State Foreign Nation

PTF 4

OFf

X I

2 U.S. Government

X

Defendant

4 Diversity (Indicate Citizenship of Partiesin item "I)

Citizen of Another State

s
6

Xs

Citizen or Subjectof a ForeignCountry

IV. CASE ASSIGNMENT AND NATtJRE OF SUIT

(Place a X in one catel!orv. A-~,-!hat best reoreseD'S your causeof ~t!on and one in a corres~ondinl! Nat~_o' Suit)

A. Antitrust

B. PersonalInjury/ Malpractice
310 315 320 330 340 X 345 350 355 360 362 365 368 Airplane Airplane Product Liability Assault, Libel & Slander Federal Employers Liability Marine Marine Product LiabilitY Motor Vehicle Motor Vehicle Product LiabilitY Other Personal Injury Medical Malpractice Product LiabilitY Asbestos Product Liability

C. Administrative Agency Review
151 Medicare Act

D. Temporary Restraining Order/Preliminary Injunction
Any nature of suit from any category may ~Iected for this cateeorv of case

410 Antitrust

Social Security
861 RIA «13950) 862 Black Lung (923) 863 DIWC/DIWW (405(g) 864 SSID Title XVI 865 RSI (405(g) Other Statutes 891 892 893 894 890 Agricultural Acts Economic Stabilization Act Environmental Matters Energy Allocation Act Other Statutory Actions (If Administrative Agency is Involved)

~signment.
(If Antitrust, then A governs)*

E. GeneralCivil (Other)

OR

F. Pro Se General Civil

- Real Property Case 1:08-cv-00082-JJF Document Bankruptcy 422 Appeal 28 USC 158 210 Land Condemnation 423 Withdrawal 28 USC 157 220 Foreclosure 230 Rent, Lease& Ejectment 240 Torts to Land Prisoner Petitions 245 Tort Product Liability 535 Death Penalty 290 All Other Real Property 540 Mandamus & Other 550 Civil Rights 555 Prison Condition Personal Property 370 Other Fraud 371 Truth in Lending Property Rights 380 Other Personal Property Damage 820 Copyrights 385 Property Damage Product 830 Patent 840 Trademark Liability
Federal Tax Suits 870 Taxes (US plaintiff or defendant 871 IRS-Third Party 26 USC 7609

1-2 Forfeiture/Penalty Filed 07/24/2007
610 Agriculture 620 Other Food &Drug 625 Drug Related Seizure of Property 21 USC 881 630 Liquor Laws 640 RR & Truck 650 Airline Regs 660 Occupational Safety/Health 690 Other

470 Racketeer Page 2 of 3Influenced & Corrupt Organizations Consumer Credit Cable/Satellite TV SelectiveService Securities/Commodities! Exchange 875 Customer Challenge 12 USC 3410 900 Appeal of fee determination under equal acces.~ Justice to 950 Constitutionality of State Statutes 890 Other Statutory Actions (if not administrative agency review or Privacy Act 480 490 810 850

Other Statutes 400 State Reapportionment 430 Banks & Banking 450 Commerce/ICC Rates/etc. 460 Deportation

G. Habeas Corpus! 2255
530 HabeasCorpus-General 510 MotionNacate Sentence

H. Employment

Discrimination
442 Civil Rights-Employment (criteria: race, gender/sex, national origin, discrimination, disability age, religion, retaliation)
*(Ifpro se, select this deck). *(lfpro

I. FOIAIPRIV ACY ACT
895 Freedom of Information Act 890 Other Statutory Actions (if Privacy Act)

J. StudentLoan
152 Recovery of Defaulted Student Loans (excluding veterans)

Se. select this deck).

K. LaborlERISA
(non-employment)
710 Fair Labor Standards Act 720 Labor/Mgmt. Relations 730 Labor/Mgmt. Reporting & Disclosure Act 740 Labor Railway Act 790 Other Labor Litigation 791 Empl. Ret. Inc. Security Act

L. Other Civil Rights (non-employment)
441 Voting (if not Voting Rights Act) 443 Housing/Accommodations 444 Welfare 440 Other Civil Rights 44S American w/Disabilities Employment 446 Americans w/DisabilitiesOther

M. Contract
110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment &. Enforcement of Judgment 153 Recovery of Overpayment of Veteran's Benefits 160 Stockholder's Suits 190 Other Contracts 195 Contract Product Liability 196 Franchise

N. Three-JudgeCourt
441 Civil Rights-Voting (If Voting Rights Act)

v. O~GIN ){ I Original 2 Removed 3 Remandedfrom from State Appellate Court or Reopened Proceeding

4 Reinstated 5 Transferred from another district Litigation Court

6 Multi district 7 Appeal to District Judge rrom Mag. Judge (speeify)

~

DEMAND .9. 0, 000 , 000 OQ:heck YES only CHECK IF THIS IS A CLASS VII. REQUESTED IN CaseACTION UNDER F.R.C.P.23 1:08-cv-00082-JJF Document JURY DEMAND: 1-2 Filed 07/24/2007 Page 3 of X YES ~ COMPL_~

.

3

if demanded in complaint

YES
(Seeinstruction)

X NOlf yes, please complete related case fonn.

"-

INSTRUCTIONS

FOR COMPLETING CIVIL COVER SHEET JS-44 Authority for Civil Cover Sheet

The JS-44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleadings or other papers as required by law, except as provided by local rules of court. This fOm1, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. Listed below are tips for completing the civil cover sheet. These tips coincide with the Roman Numerals on the Cover Sheet.

I. COUNTY OF RESIDENCEOF FIRST LISTED PLAlNTIFF/DEFENDANT (b) County of residence:Use 11001to indicateplaintiff is resident of Washington.D.C.; 88888 ifplaintiffis residentof the United Statesbut not of Washington,D.C., and 99999 if plaintiff is outsidethe United States. III.
cmZENSHIP OF PRINCIPAL PAR11ES: This section is cornjeted onlv if diversity of citizenship was selected as the Basis of Jurisdiction under Section

u.
IV.

~

CASE ASSIGNMENT AND NATURE OF SUIT: The assignment a judge to your casewill dependon the categoryyou selectthat best represents of the causeof action found in your complaint You may selectonl~ category. You must also selectoneconesponding natureof suit found under the category of case. VI. VIII. Office.
CAUSE OF ACTION: Cite the US Civil Statute under which you are filing and write a brief state~t of the primary cause.

RELATED CASES, IF ANY: If you indicated that there is a related case, you must complete a related case form. which may be obtained from the Clerk's

Because of d1e need for accurate and complete information, you should ensure d1e accuracy of d1e information provided prior to signing the form.