CAUSE NO.

_______________
DONNA M. COSTER,

INDIVIDUALLY AND AS

REPRESENTATIVE OF THE

ESTATE OF ADAM COSTER,

MARIA R. DIANCE, INDIVIDUALLY,

AND AS REPRESENTATIVE OF THE
ESTATE OF JOSE CRUZ DIANCE, JR.,
CHRISTOPHER MCGUIRE, AND

TERRI PENN, INDIVIDUALLY,

AND AS REPRESENTATIVE OF THE

ESTATE OF JENNIFER ERIN PENN

Plaintiffs,

vs.

TRINITY HIGHWAY PRODUCTS,

LLC. AND TRINITY INDUSTRIES, INC.

Defendants.

IN THE DISTRICT COURT OF

DALLAS COUNTY,

___

JUDICIAL

TEXAS

DISTRICT

PLAINTIFFS' ORIGINAL PETITION

TO THE HONORABLE COURT:
COME NOW, DONNA M. COSTER, INDIVIDUALLY AND AS REPRESENTATIVE
OF THE ESTATE OF ADAM COSTER, MARIA R. DIANCE, INDIVIDUALLY AND AS
REPRESENTATIVE OF THE ESTATE OF JOSE CRUZ DIANCE, JR., CHRISTOPHER
MCGUIRE, and TERRI PENN, INDIVIDUALLY AND AS REPRESENTATIVE OF THE
ESTATE OF JENNIFER ERIN PENN, Plaintiffs herein, and file this Original Petition against
De f en d ant s TRINITY

HIGHWAY PRODUCTS, LLC. AND TRINITY INDUSTRIES,

INC. (collectively TRINITY), and for causes of action would respectfully show the following:

I. DISCOVERY PLAN
1. Pursuant to TRCP 190.1, Plaintiffs respectfully request that discovery in this case be
conducted under Level 3 by further order of this Court, as set forth in TRCP 190.4.
II. PARTIES
2. Plaintiff DONNA M. COSTER, INDIVIDUALLY AND AS REPRESENTATIVE OF THE
ESTATE OF ADAM COSTER, is an individual residing in Gloucester, Virginia. Her son
Adam Coster was a resident of Hampton, Virginia, at the time he was killed in a vehicular
collision with a TRINITY guardrail and end terminal that occurred in Newport News,
Virginia on October 9, 2011.
3. Plaintiff MARIA R. DIANCE, INDIVIDUALLY AND AS REPRESENTATIVE OF THE
ESTATE OF JOSE CRUZ DIANCE, JR. is an individual residing in Sylmar, California. Her
son JOSE CRUZ DIANCE, JR. was a resident of Sylmar, California, at the time he was killed
in a vehicular collision with a TRINITY guardrail and end terminal that occurred in Sylmar,
California, on April 23, 2011.
4. Plaintiff CHRISTOPHER MCGUIRE is an individual residing in Roselle, DuPage County,
Illinois, at the time he collided with a TRINITY guardrail and end terminal on December 31,
2009 in Itasca, Illinois.
5. Plaintiff TERRI PENN, INDIVIDUALLY AND AS NEXT FRIEND OF JENNIFER ERIN
PENN, is an individual residing in Waddington, New York. Her daughter, JENNIFER
PENN, was a resident of Frankfort, Kentucky at the time she was killed in a vehicular
collision with a TRINITY guardrail and end terminal that occurred in Georgetown, Kentucky
March 14, 2009.

6. Defendant TRINITY HIGHWAY PRODUCTS, LLC, is a limited liability company

organized under the laws of the State of Delaware with its principal place of business in
Dallas, Texas. Trinity Highway Products, LLC may be served with process by serving
its registered agent for service of process: C T Corporation System, 1999 Bryan Street Suite 900, Dallas, TX 75201-3136.
7. Defendant TRINITY INDUSTRIES, INC. is a corporation organized under the laws of the
S tate of Delaware with its principal place of business in Dallas, Texas. Trinity Industries,
Inc. may be served with process by serving its registered agent for service of process:
C T Corporation System, 1999 Bryan Street - Suite 900, Dallas, TX 75201-3136.
III. JURISDICTION AND VENUE
8. This Court has jurisdiction over this matter for the reason that the amount in
controversy exceeds the jurisdictional minimum of this court, exclusive of costs and
interest, and for the reason that one (1) or more Defendants are citizens of the State of
Texas, maintain their principal place of business in Texas and/or are doing business in the
State of Texas.
9. Venue is proper in Dallas County under Texas Civil Practice and Remedies Code
15.002(a)(2) because at least one (1) Defendant is a resident of Dallas County. Venue is
proper to all other Defendants under the Texas Civil Practice and Remedies Code 15.005.
IV. THE OCCURRENCE
10. These cases arise out of incidents where the person was driving on a highway and collided
with a TRINITY guardrail and end terminal.
11. The TRINITY guardrail and end terminal system struck by each vehicle was designed,
manufactured and marketed by TRINITY. As intended, the guardrail and end terminal was
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designed to extrude the guardrail through the head so the guardrail flattens out into a
ribbon, which allows the energy from the impact to be absorbed and prevent the
guardrail from penetrating the vehicle upon impact.

However, TRINITYs original

and/or modified, revised or altered guardrail and end terminal prevented the original
design from operating and performing as intended as described above.
12. At the time of each of these collisions, TRINITYs original and/or a modified, revised or
altered guardrail and end terminal was defective and unreasonably dangerous. As a
proximate result, instead of performing as intended, the guardrail penetrated the vehicle.
This penetration continued into the passenger compartment and impaled Plaintiffs, causing
massive injuries and/or deaths.
V. CONDITIONS PRECEDENT
13. All conditions precedent have been performed or have occurred. TEX. R. CIV. P. 54.
VI.

FACTUAL BACKGROUND

14. Trinity Industries, Inc. is the parent corporation of Trinity Highway Products, LLC and
as such controls Trinity Highway Products, LLC. (Again, collectively referred to herein as
TRINITY.)
15. TRINITY is in the business of manufacturing and selling various highway safety and
construction products for use across the United States. TRINITY specifically
manufactures and sells the ET-Plus guardrail end terminal (ET-Plus) under an
exclusive licensing agreement from Texas A & M University.
16. The ET-Plus unit is commonly referred to as a head or end terminal and when
used in conjunction with the standard W-beam style guardrail seen throughout the roads

and highways of America is designed to safely absorb and dissipate the energy of a
vehicular impact.
17. Upon impact, the guardrail is designed to be extruded through the head and
flattened out into a ribbon, thus absorbing the majority of the collision energy.
18. The ET-Plus, along with each and every other product used on the National Highway
System throughout the United States, must undergo testing to determine and validate
crashworthiness before the product may be placed on the National Highway System or
on the roads of any state.
19. The Federal Highway Administration, a division of the United States Government under the
U.S. Department of Transportation, along with other state and federal organizations, are
charged with establishing the crashworthiness criteria for products such as the ET-Plus.
20. The respective Department of Transportation (DOT) of each state must approve any
product installed on its roadways. Further, each highway project is governed by
contracts issued by that DOT. These documents typically require that any products
installed on the states highways be both previously approved by the DOT and compliant
with National Cooperative Highway Research Program Report 350 (NCHRP 350), if
tested prior to January 1, 2011, or tested using the Manual for Assessing Safety
Hardware (MASH), if presented for testing after that date. Products previously accepted
under NCHRP 350 do not need to be retested unless, of course, the product is changed.
21. NCHRP 350, Recommended Procedures for the Safety Performance Evaluation of Highway
Features, establishes a performance range on several criteria that guardrail end terminals
must satisfy through as many as seven (7) different tests to be deemed safe and

reliable for installation. The prime contractor who submits a winning bid on a project
must sign contracts agreeing with the DOT to install only state-approved, NCHRP 350
or MASH- compliant products.
22. All states relevant to this lawsuit have an Approved Products List for the product at issue.
TRINITY manufactures and sells guardrail and end terminals under the names ET-2000
Plus, ET-Plus and ET-31 among others. The ET-Plus, also known as ET-2000 Plus, was
approved by NCDOT and placed on NCDOTs Approved List for End Terminal. The
version of the ET-Plus approved by NCDOT remains on NCDOTs current Approved
Product List. NCDOT has not approved any other version of the ET-Plus.
23. Once a product is approved for use along the National Highway System or the
roadways of a particular state, its design specifications cannot be altered; or if altered, the
product must undergo additional testing and approval prior to its placement on the
roadways of that state or the National Highway System.
24. Beginning sometime between 2000 and 2005, a different or altered ET-Plus started
appearing along the National Highway System and on the roads in the subject states that
had a modified, revised or altered head manufactured with an exit gap of approximately
1.0 inches rather than approximately 1.5 inches as originally tested, approved, and
manufactured.
25. Beginning in early 2005, yet another different or altered ET-Plus started appearing
along the National Highway System and on the roads in the subject states that had a
m o d i f i e d , revised or altered head was manufactured with a 4" feeder chute (as
opposed to the prior approved 5" feeder chute) and a shorter overall height.

26. In addition to the above, due to the shortened height, the feeder rails are actually inserted
into the head .75" rather than being welded flush to it as originally designed and
approved, thus drastically reducing the overall space of the feeder chute.
27. The ET-Plus, as modified, revised or altered in 2005 and at issue in this case, does not
allow the guardrail to feed properly through the chute due to the reduced internal area of
the head itself causing the guardrail to throat lock in the head during impact.
28. Once throat lock occurs, as is the case in this action, the ET-Plus system violently
stops or redirects the vehicle in a manner causing serious injury or deaths often by
impalement.
29. Based on information and belief, TRINITY, at all times relevant hereto, knew of the
dangerous conditions created by its unapproved, ET-Plus system, as literally hundreds of
thousands of these unapproved, secretly, inherently dangerous ET-Plus systems have been
in use across the country for several years preceding the incident at issue in this lawsuit.
Based upon information and belief, TRINITY never officially notified or petitioned the
Federal Highway Administration, the s u b j e c t states DOT, or any branch or unit of
any federal or state government for approval or consideration of the feeder chute
changes as described above.
30. To make matters worse, TRINITY knew or should have known there was a problem with
their unilateral, unapproved modification of its guardrail and end terminal. Specifically,
TRINITY twice petitioned the Federal Highway Administration (FWHA) for
modifications to other components of the overall ET-Plus system, once in September of
2005 and then again in August of 2007. These September 2005 and August 2007 requests
dealt with components sold with the ET-Plus and their configuration, and nowhere in these
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design changes does TRINITY mention the reduced feeder chute size or any other changes
to the ET-Plus head.
31. Based upon information and belief, TRINITY never officially notified or petitioned the
Federal Highway Administration, the s u b j e c t states DOT, or any branch or unit of
any federal or state government for approval or consideration of the feeder chute
changes as described above.
VI.

FRAUDULENT CONCEALMENT AND EQUITABLE TOLLING OF

APPLICABLE STATUTES O F LIMITATIONS

32. The running of any statute of limitation has been tolled by reason of TRINITYs conduct.
TRINITY, through their affirmative misrepresentations and omissions, actively concealed
from Plaintiffs and the general public the true risks associated with its guardrail.
33. As a result of TRINITYs actions, no one could have known or been aware of these risks,
and could not reasonably know or have learned through reasonable diligence that there was a
risk of impalement, serious injuries and deaths if the original and/or modified, revised or
altered guardrail was struck head-on. Plaintiffs were unwittingly exposed to those risks
alleged herein and that those risks and the resulting injuries and deaths were the direct
and proximate result of the TRINITYs acts and omissions.
34. Furthermore, TRINITY is stopped from relying on any statute of limitations because of
their concealment of the truth, quality and nature of the original and/or modified, revised
or altered guardrail and end terminal. TRINITY was under duty to disclose the true
character, quality and nature of the original and/or modified, revised or altered guardrail
and end terminal because this was non-public information which the TRINITY had and
continued to have exclusive control, and because the TRINITY knew that this
information was not available to those using the highways and byways where these
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modified, revised or altered guardrail and end terminal had been installed.
35. TRINITY had the ability to and did spend enormous amounts of money in furtherance of
their purpose marketing and promoting a profitable original and modified, revised or
altered guardrail, notwithstanding the known risks. Plaintiffs were unaware of and could
not have discovered the nature, extent and identity of these risks, and were forced
to rely on the TRINITYs representations by the placement of the product itself that it
was there to protect, minimize and possibly prevent serious injuries, more serious injuries, or
even deaths.
VII.

CAUSES OF ACTION

Count OneStrict Liability

36. TRINITY is the manufacturer of a product which is unreasonably and dangerously defective
in its design, its manufacture, and as marketed. Plaintiffs, therefore, invoke the doctrine of
strict liability as enunciated in 402A of the Restatement (Second) of Torts and adopted by
the Supreme Court of Texas.
37. TRINITY had a duty at the time of manufacture of its guardrail and end terminal to design,
manufacture and market those products in a responsible and safe way so as not to cause
injury to Plaintiffs or members of the general public.
38. The defective nature of the original guardrail and end terminal and/or as modified, revised or
altered was a proximate and producing cause of Plaintiffs respective deaths, injuries and
damages, thus rendering TRINITY strictly liable. The TRINITY guardrail and end terminal
as originally designed and constructed and/or as modified, revised or altered was in
substantially the same condition on the date of each occurrence made the basis of this action

as it was when it was originally placed into the stream of commerce and installed by
TRINITY or a contractor at its instruction and direction.
39. The TRINITY original and/or modified, revised or altered guardrail and end terminal, which
is the subject matter of this suit, was defective in the following respects:
a. The original TRINITY guardrail and end terminal was defectively designed and
manufactured and did not operate and perform as intended;
b. The modified, revised or altered TRINITY guardrail and end terminals revised or
altered head manufactured with an exit gap of approximately 1.0 inches rather
than approximately 1.5 inches as originally tested, approved, and manufactured was
defectively designed and manufactured and did not operate and perform as intended;
c. The early 2005 different or altered ET-Plus t h a t started appearing along the
National Highway System and on the roads in the subject states that had a revised or
altered head was manufactured with a 4" feeder chute (as opposed to the prior
approved 5" feeder chute) and a shorter overall height was defectively designed and
manufactured and did not operate and perform as intended;
d. The feeder rails being inserted into the head .75" rather than being welded flush
to it as originally designed and approved, drastically reduced the overall space of
the feeder chute and prevented the modified, revised or altered guardrail from
feeding properly through the chute due to the reduced internal area of the head
itself. This caused the modified, revised or altered guardrail to throat lock in the
head during impact. This modification rendered the TRINITY guardrail and end
terminal to be defectively designed and manufactured and did not operate and
perform as intended;

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e. Once throat lock occurs, as is the case in this action, the ET-Plus system
violently stops or redirects the vehicle in a manner causing serious injury or
deaths often by impalement. This modification rendered the TRINITY guardrail
and end terminal to be defectively designed and manufactured and did not operate and
perform as intended;
f. The TRINITY original and/or modified, revised or altered guardrail and end terminal
was defective as marketed in that the advertising and marketing campaigns and
programs undertaken by TRINITY as to the safety features of the product and failed
to warn consumers and the general public of its dangerous conditions as described
more fully herein; and
g. The TRINITY original and/or modified, revised or altered guardrail and end terminal
was generally defective in its design, manufacture, marketing, assembly, testing and
warnings because it failed to provide adequate stability, because of its small width
and wheels and because it was furnished without adequate warning regarding its
stability and use.
40. It was entirely foreseeable and well known by the TRINITY that incidents involving its
TRINITY original and/or modified, revised or altered guardrail and end terminal, such as
described herein, would on occasion take place during its normal and ordinary use.
41. TRINITY made representations of material facts, as alleged hereinafter, concerning the
character and quality of the TRINITY original and/or modified, revised or altered guardrail
and end terminal sold by them of such a nature as to render the TRINITY strictly liable for
the injuries and damages suffered by Plaintiffs.

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42. All of this conduct was known by TRINITY prior to the design and sale and modification of
that design and sale of the TRINITY original and/or modified, revised or altered guardrail
and end terminal, and proximately caused the deaths, injuries and damages to Plaintiff, thus
rendering TRINITY liable to Plaintiffs under common law and the doctrine expressed in the
Restatement (Second) of Torts, 402A and 402B.
43. Moreover, a safer alternative design existed at the time of TRINITYs original and/or
modified, revised or altered guardrail and end terminal design and manufacture, as well as
when they left the possession of TRINITY. The safer alternative design would have
prevented or significantly reduced the risk of the Plaintiffs deaths, injuries and/or damages,
without substantially impairing the products utility. Further the safer alternative design was
economical and technologically feasible at the time TRINITYs original and/or modified,
revised or altered guardrail and end terminals design when it left the control of TRINITY by
application of existing or reasonably achievable scientific knowledge.
Count TwoNegligence
44. Plaintiffs hereby adopt, restate and re-allege every preceding paragraph as if completely set
forth herein..
45. TRINITY has a duty to exercise ordinary care in the design, testing, marketing and
distribution of the TRINITY original and/or modified, revised or altered guardrail and impact
head system to ensure that it was not unreasonably dangerous for its intended and foreseeable
use on the highways of the subject states. TRINITY knew, or in the exercise of ordinary
care should have known, that the impact head as re-designed in approximately 2005 was
defective and unreasonably dangerous to members of the driving public, including Plaintiffs.
TRINITY breached its duty of ordinary care by placing the design
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and end terminal

into the stream of commerce in a defective and unreasonably dangerous condition and
by certifying it as NCHRP 350 compliant. This negligence on the part of TRINITY was
a proximate cause and cause-in-fact of the injuries sustained by Plaintiffs when their cars
impacted the original and/or modified, revised or altered guardrail and end terminal, the
guardrail went through the passenger compartment of these cars.
46. TRINITY is the manufacturer of the original and/or modified, revised or altered guardrail
and impact head system installed by a contractor at the location in question and in place
at the time of the incidents made the basis of this lawsuit. It was foreseeable to TRINITY
that these incidents would occur involving impact between vehicles and the original
and/or modified, revised or altered guardrails placed along the highways of the subject
states. TRINITY defectively designed, manufactured, assembled, marketed and/or
distributed the original and/or modified, revised or altered guardrail and end terminal
system when it the product in approximately 2005 in a manner that prevents the impact
head system from operating as intended. As such, TRINITY is liable under the doctrine of
strict product liability. To the extent necessary, Plaintiffs invoke the doctrine of strict
product liability as set forth in the Restatement (Second) of Torts 402A and
Restatement (Third) of Torts, Product Liability 1-2. The defective nature of the end
terminal system was a producing cause and cause-in-fact of the injuries sustained by
Plaintiffs when their car impacted the original and/or modified, revised or altered guardrail
and end terminal.
47. The Texas Uniform Com merc ial Code prov ide s fo r an impli ed w arranty of
m erchant ability on products sold in Texas. As such, there was an implied warranty that
the original and/or modified, revised or altered guardrail and end terminal sys tem was
13

merchantable. Defendant Trinity breached this implied warranty because the original and/or
modified, revised or altered guardrail and end terminal system was of such condition to
render it unfit for the ordinary purpose for which it was to be used. This breach of the
implied warranty of merchantability by TRINITY was a producing cause and cause-in-fact
of the injuries sustained by Plaintiffs when their car impacted original and/or modified,
revised or altered guardrail and the end terminal. The Texas Uniform Com merc ial Code
further provides for an implied warranty of fitness for a particular purpose on products sold
in Texas. As such, there was an im plied warr ant y th at the original and/or modified,
revised or altered guardrail and impa ct head s yst em was fit f or t he particula r purpos e of
use on roadways such as I-40. TRINITY has reason to know the particular purpose for
which the original and/or modified, revised or altered guardrail and end terminal system
was intended, and that users like Plaintiffs would rely on the skill and judgment of
TRINITY to select or furnish a suitable end terminal system. TRINITY breached this
implied warranty because the original and/or modified, revised or altered guardrail and
end terminal system was not suitable for use on I-4 0. This b reach o f th e implied warr anty
of fi tness for a parti cular purpose by TRINITY was a produc ing cau se a nd cause -in-fact
o f t he inju rie s sust aine d by Plaintiffs when their c ar impact ed t he original and/or
modified, revised or altered guardrail and end terminal.
48. The incidents made the basis of this lawsuit resulted from the negligence of TRINITY.
TRINITYs conduct constituted negligence, and such negligent conduct was a proximate
cause of the incidents, deaths, injuries, and damages made the basis of this lawsuit.
Specifically, TRINITY failed to design, manufacture and market, test, and inspect its

14

original and/or modified, revised or altered guardrail and end terminal, and warn the
respective states DOT and the public of dangers associated with it.
49. More specifically, TRINITY had a duty to design, manufacture and market original and/or
modified, revised or altered guardrail and end terminal that was safe for use. In their design,
manufacture and marketing of the original and/or modified, revised or altered guardrail and
end terminal in question, TRINITY breached these duties in including but not limited to the
following respects:
A. That upon impact,

the ET-Plus unit head or end terminal used in

conjunction with the standard W-beam style guardrail and end terminal safely
absorbs and dissipates the energy of a vehicular impact.
B. That upon impact, the guardrail extrudes through the head and flattens out into
a ribbon, thus absorbing the majority of the collision energy.
C. That upon impact, the guardrail is crashworthy before the product may be placed
on the National Highway System or on the roads of any state.
D. To not revise or alter the guardrail and end terminal once previously approved by
the DOT and compliant with National Cooperative Highway Research Program
Report 350 (NCHRP 350), if tested prior to January 1, 2011, or tested using
the Manual for Assessing Safety Hardware (MASH), if presented for testing
after that date.
E. Once, approved for use along the National Highway System or and on the roads
in the subject states, to not alter its design specifications, or if altered, conduct
additional testing and approval prior to its placement on the roadways of that
National Highway System and on the roads in the subject states.

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F. Not to install between 2000 and 2005, a different or altered ET-Plus started
appearing along the National Highway System and on the roads in the subject
states a revised or altered head was manufactured with an exit gap of
approximately 1.0 inches rather than approximately 1.5 inches as originally tested,
approved, and manufactured.
G. Not to install in early 2005, yet another different or altered ET-Plus started
appearing along the National Highway System and on the roads in the subject states;
in particular, a revised or altered head was manufactured with a 4" feeder chute
(as opposed to the prior approved 5" feeder chute) and a shorter overall height.
TRINITY had a duty to test to make sure that that shortened height, causing the
feeder rails are actually inserted into the head .75" rather than being welded
flush to it as originally designed and approved, did not reduce the overall space of
the feeder chute.
H. TRINITY had a duty to officially notify or petition the Federal Highway
Administration, the s u b j e c t states DOT or any branch or unit of any federal or
state government for approval or consideration of the guardrail, end terminal and
feeder chute changes as described above.
I. To test the ET-Plus, as in 2005 and at issue in this case, to make sure it does allow
the guardrail to feed properly through the chute due to the reduced internal area of
the head itself causing the guardrail to throat lock in the head during impact.
J. To test to insure that throat lock does not occur, and if it does as is the case in this
action, that the ET-Plus system does not violently stop or redirect the vehicle in a
manner causing serious injury or deaths often by impalement.

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50. Plaintiffs would show that one, some, or all of the above foregoing acts and/or omissions, or
others on the part of TRINITY constitute negligence and proximately caused the occurrence
and Plaintiffs deaths, injuries and damages. As a producing and proximate result of
TRINITYS negligence, Plaintiffs have sustained deaths, injuries and damages.
Count Three - Gross Negligence
51. Plaintiffs re-allege and incorporate by reference all preceding paragraphs as if fully set forth
herein.
52. TRINITY committed various acts and omissions of gross negligence, which both
individually and collectively, were the proximate cause of the occurrence, deaths and
damages sustained by Plaintiffs as set forth above.
53. TRINITYs conduct as described herein, when viewed objectively from the standpoint of
TRINITY at the time of its occurrence involved an extreme degree of risk, considering the
probability and magnitude of the potential harm to others and of which TRINITY had actual,
subjective awareness of the risk involved, but nevertheless proceeded with conscious
indifference to the rights, safety, or welfare of others.

Plaintiffs bring this claim for

exemplary damages.
Count FourMisrepresentation
54. Plaintiffs re-allege and incorporate by reference all preceding paragraphs as if fully set forth
herein.
55. TRINITY, by advertising and the construction of its original and/or modified, revised or
altered guardrail and end terminal across the nation, made to the public, including Plaintiffs,
misrepresentations of a material fact and/or facts concerning the character and/or quality of
the original and/or modified, revised or altered guardrail and end terminal sold by them of
17

such a nature as to render them strictly liable for the deaths, injuries and damages suffered by
the Plaintiffs.
56. TRINITY, acting by and through its agents, engaged in a course of advertising and
promoting its original and/or modified, revised or altered guardrail, which included express
and implied misrepresentations of material fact concerning the character and quality of its
original and/or modified, revised or altered guardrail and end terminal, which included
advertising, marketing installation, and promotional activities, the totality of which, taken as
a whole, falsely represented that the guardrail and end terminal was a quality product that had
been adequately tested and inspected to ensure the utmost safety of its users.
57. Plaintiff justifiably relied upon these misrepresentations of material facts when driving on the
states highway and byways where TRINITY guardrail and end terminal were installed.
58. At the time TRINITY made these misrepresentations the entity knew they were false or made
them recklessly without any knowledge of the truth and as a positive assertion.
59. TRINITY made these misrepresentations with the intention that they should be acted upon
and, in fact, Plaintiffs acted upon these misrepresentations.
60. All of this conduct, under the circumstances of this case, was known by TRINITY prior to
the incident made the basis of this lawsuit and was a proximate and/or producing cause of the
damages to Plaintiffs, thus rendering TRINITY liable to Plaintiffs under the common law
doctrine expressed in Restatement (Second) of Torts 402B.
VIII. DAMAGES
63. As a result of the occurrence in question, Plaintiffs were killed or sustained severe,
permanent, and disabling injuries.

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64. As a result o f these deaths or i njuries, Plaintiffs are entitled to recover compensatory damages
in an amount that exceeds the jurisdictional minimum of this court for each of the
following elements which are applicable to their case:
a. Economic damages resultid178ng from Plaintiffs decedents financial support;
b. Loss of Inheritance;
c. Loss of consortium;
d. The cost of reasonable and necessary medical care sustained in the past and that in
reasonable probability will be sustained in the future;
e. The lost earnings and loss of earning capacity sustained in the past; and loss of
earning capacity that, in reasonable probability, will be sustained in the future;
f. Physical impairment sustained in the past; and physical impairment that, in
reasonable probability, will be sustained in the future;
g. Disfigurement sustained in the past and disfigurement that, in reasonable
probability, will be sustained in the future;
h. Physical pain sustained in the past and physical pain that, in reasonable
probability, will be sustained in the future;
i. Mental anguish sustained in the past; and mental anguish that, in reasonable
probability, will be sustained in the future.
j. Plaintiffs are also entitled to pre-judgment and post-judgment interest at the
highest rates allowed by law.
IX.

JURY DEMAND

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65. Plaintiffs hereby make demand for their right to a trial by jury afforded by the Texas
Constitution and the United States Constitution and tenders the requisite fee to the district
clerk concurrent with the filing of this Original Petition.
X.

REQUEST FOR DISCLOSURE

66. Pursuant to Texas Rule of Civil Procedure 194, Defendants Trinity Industries, Inc. and
Trinity Highway Products, LLC are requested to disclose all information as provided by Rule
194.2 within fifty (50) days of being served with a copy of this request and Original Petition.

PRAYER
67. WHEREFORE, PREMISES CONSIDERED, Plaintiffs request that TRINITY be cited to
appear and answer herein, and that on final trial Plaintiffs have and recover:
a. Judgment against TRINITY, jointly and severally, for compensatory and punitive
damages in an amount that exceeds the minimum jurisdictional limits of the Court
more fully set forth hereinabove;
b. Pre judgment and post judgment interest as provided by law;
c. Costs of suit; and
d. Such other and further relief to which Plaintiffs are entitled.
Respectfully submitted,
BRENT COON & ASSOCIATES

/s/Robert A. Schwartz
ROBERT A. SCHWARTZ
Texas Bar No. 17869670
bob.schwartz@bcoonlaw.com
SIDNEY F. ROBERT
Texas Bar No. 24074968
Sidney@bcoonlaw.com
Brent Coon & Associates
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300 Fannin, Suite 200

Houston, Texas 77002
713-225-1682 Telephone
713-225-1785 Facsimile
ATTORNEYS FOR PLAINTIFFS

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