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KIERAN MARSHALL, Plaintiff, vs. EQUINE OXYGEN THERAPY ACQUISITIONS, LP, et al, Defendants.

 

No. 12-2672-CAG

Circuit Court of Marion County

COMPLAINT

COUNT I- Negligence- Equine Oxygen Therapy Acquisitions, LP and Equine Oxygen Therapy Resources, Inc.


COUNT II – Strict Liability – Equine Oxygen Therapy Acquisitions, LP and Equine Oxygen Therapy Resources, Inc.


COUNT III -Negligence- KESMARC South, LLC and KESMARC Equine Rehabilitation, LLC


COUNT IV- Premises Liability- Farnsworth Rehab Property, LLC and Farmsworth Farms, Inc.

Plaintiff, KIERAN MARSHALL, as Personal Representative of the ESTATE OF ERICA MARSHALL, deceased, sues Defendants, EQUINE OXYGEN THERAPY ACQUISITIONS, LP, a Foreign ULPA Limited Partnership; EQUINE OXYGEN THERAPY RESOURCES, INC., a Foreign Corporation; KESMARC SOUTH, LLC, a Florida Limited Liability Company;

KESMARC EQUINE REHABILITATION, LLC, a Florida Limited Liability Company; FARNSWORTH REHAB PROPERTY, LLC, a Florida Limited Liability Company; and FARNSWORTH FARMS, INC., a Florida for Profit Corporation, and alleges:

General Allegations

1. This is an action for damages in excess of Fifteen Thousand Dollars ($15,000.00), exclusive of interest and costs brought pursuant to Florida Statute 768.16, the Florida Wrongful Death Act.
2. Plaintiff is the duly appointed, qualified and acting Personal Representative of the Estate of Erica Marshall.
3. At the time of her death, Erica Marshall was 28 years of age. This action is brought on behalf ofher surviving spouse, Kieran Marshall (DOB: 11/29/86).

4. At all times material to the allegations contained herein, Plaintiff and Plaintiff’s Decedent resided at 15500 West Highway 326, Morriston, Marion County, Florida.
5. At all times material to the allegations contained herein, the location of the incident at Issue was at 15500 West Highway 326, Morriston, Marion County, Florida (Morriston facility”).
6. At all times material to the allegations contained herein, Defendant, EQUINE OXYGEN THERAPY ACQUISITIONS, LP (“EQUINE ACQUISITIONS”), was and is currently a Foreign ULPA Limited Partnership, licensed to do business in Kentucky, with its principle place of business in Lexington, Kentucky. Defendant, EQUINE ACQUISITIONS, has
conducted and/or is conducting substantial business in the State of Florida, including Marion County. Defendant, EQUINE ACQUISITIONS, is subject to the jurisdiction of this Court pursuant to Section 48.193, Florida Statutes, by:

a) Committing a tortious act within this State by selling, delivering, and/or installing a defective equine hyperbaric chamber to persons, firms, or corporations;
b) Conducting and engaging in substantial business and other activities in Florida by selling, delivering, and/or installing equine hyperbaric chambers to persons, firms, or corporations in this State;
c) The acts or omissions of Defendant, EQUINE ACQUISITIONS, caused injuries to persons in Florida, including Plaintiff; and
d) Selling equine hyperbaric chambers, including the subject chamber, with knowledge or reason to foresee that its chambers would be shipped in interstate commerce and would reach the market of Florida users or consumers, and specifically Marion County.

7. At all times material to the allegations contained herein, Defendant, EQUINE OXYGEN THERAPY RESOURCES, INC. (“EQUINE RESOURCES”), was and is currently a Foreign Corporation, licensed to do business in Texas, with its principle place of business in Flower Mound, Texas. Defendant, EQUINE RESOURCES, has conducted and/or is conducting substantial business in the State of Florida, including Marion County. Defendant, EQUINE RESOURCES, is subject to the jurisdiction of this Court pursuant to Section 48.193, Florida Statutes, by:

a) Committing a tortious act within this State by selling, delivering, and/or installing a defective equine hyperbaric chamber to persons, firms, or corporations;
b) Conducting and engaging in substantial business and other activities in Florida by selling, delivering, and/or installing equine hyperbaric chambers to persons, firms, or corporations in this State;
c) The acts or omissions of Defendant, EQUINE RESOURCES, caused injuries to persons in Florida, including Plaintiff; and
d) Selling equine hyperbaric chambers, including the subject chamber, with knowledge or reason to foresee that its chambers would be shipped in interstate commerce and would reach the market of Florida users or consumers, and specifically Marion County.

8. At all times material to the allegations contained herein, Defendant, KESMARC SOUTH, LLC (“KESMARC SOUTH”), was and is currently a Florida Limited Liability Corporation, licensed to do business in Florida, with its principle place of business in Morriston, Florida. Defendant, KESMARC SOUTH, by and through its agents, apparent agents, employees, and/or servants, owned, occupied, possessed, and/or otherwise controlled an equine therapy facility located at 15500 West Highway 326, Morriston, Marion County, Florida.

9. At all times material to the allegations contained herein, Defendant, KESMARC EQUINE REHABILITATION, LLC (“KESMARC REHABILITATION”), was and is currently a Florida Limited Liability Corporation, licensed to do business in Florida, with its principle place of business in Tequesta, Florida. Defendant, KESMARC REHABILITATION, by and through its agents, apparent agents, employees, and/or servants, owned, occupied, possessed, and/or otherwise controlled an equine therapy facility located at 15500 West Highway 326, Morriston, Marion County, Florida.

10. At all times material to the allegations contained herein, Defendant, FARNSWORTH REHAB PROPERTY, LLC (“FARNSWORTH REHAB”), was and is currently a Florida Limited Liability Corporation, licensed to do business in Florida, with its principle place of business in Tequesta, Florida. Defendant, FARNSWORTH REHAB, by and through its agents, apparent agents, employees, and/or servants, owned, occupied, possessed, and/or otherwise controlled an equine therapy facility located at 15500 West Highway 326,
Morriston, Marion County, Florida.

11. At all times material to the allegations contained herein, Defendant, FARNSWORTH FARMS, INC. (“FARMSWORTH FARMS”), was and is currently a Florida for Profit Corporation, licensed to do business in Florida, with its principle place of business in Tequesta, Florida. Defendant, FARNSWORTH FARMS, by and through its agents, apparent agents, employees, and/or servants, owned, occupied, possessed, and/or otherwise controlled an equine therapy facility located at 15500 West Highway 326, Morriston, Marion County, Florida.

 

GENERAL ALLEGATIONS COMMON TO ALL COUNTS

12. At all times material to the allegations contained herein and on the morning of February 10, 2012, Plaintiff’s Decedent, ERICA MARSHALL, in the course and scope of her
employment with Defendants, KESMARC SOUTH and/or KESMARC REHABILITATION, was operating an equine oxygen hyperbaric chamber (hereinafter “subject chamber”) manufactured by Defendants, EQUINE ACQUISITIONS and EQUINE RESOURCES.

13. An equine oxygen hyperbaric chamber is a pressure vessel, large enough for a horse to enter and comfortably move around. The operator stands at a console outside the
chamber and introduces enriched oxygen under pressure. This is used for treatment and therapy for various equine conditions. During operation, the atmosphere in the chamber is highly flammable.

14. In the weeks leading up to the subject incident, Defendants, KESMARC SOUTH and/or KESMARC REHABILITATION, by and through its agents, apparent agents, employees, and/or servants, discovered that the subject chamber was not working properly with regards to the operator’s ability to effectively and adequately control the internal pressure and/or oxygen content of the chamber upon pressure. Defendants, KESMARC SOUTH and/or KESMARC REHABILITATION, communicated these concerns to and requested that appropriate repairs be performed by Defendants, EQUINE ACQUISITIONS and/or EQUINE RESOURCES. Said repair work was not performed by Defendants, EQUINE ACQUISITIONS and/or EQUINE RESOURCES, before the subject incident. Notwithstanding the fact that these necessary repairs were not performed, Defendants, KESMARC SOUTH and/or KESMARC REHABILITATION, by and through their agents, apparent agents, employees, and/or servants, continued to utilize the subject chamber. Additionally, Defendants, KESMARC SOUTH and/or KESMARC REHABILITATION, by and through their agents, apparent agents, employees, and/or servants, allowed an unqualified and untrained individual(s) to attempt to perform repairs and/or maintenance to the subject chamber.

15. During the operation of the subject chamber on February 10, 2012, the horse being treated became agitated and began kicking. As he kicked, he dislodged a protective cover exposing metal inside the subject chamber. When he kicked again, his steel horseshoe came in contact with metal inside the chamber. This resulted in a spark and subsequent fire. The resulting fire resulted in a catastrophic explosion, causing injury and death to Plaintiffs Decedent, Erica Marshall.

COUNT I
Equine Oxygen Therapy Acquisitions, LP and
Equine Oxygen Therapy Resources, Inc.
(Negligence)

16. Plaintiff KIERAN MARSHALL, as Personal Representative ofthe ESTATE OF ERICA MARSHALL, deceased, realleges paragraphs one (1) through fifteen (15), as fully set
out herein.

17. At all times material to the allegations contained herein, Defendants, EQUINE ACQUISITIONS and EQUINE RESOURCES, were jointly in the business of designing, manufacturing, selling, delivering, installing, maintaining, and providing instruction and training on the use of equine hyperbaric chambers to equine rehabilitation facilities throughout the nation, including the Morriston facility.

18. At all times material hereto, Defendants, EQUINE ACQUISITIONS and EQUINE RESOURCES, adopted a design process and a manufacturing process for its equine hyperbaric chambers and the subject chamber which were not common, usual, customary, prudent, or in accordance with established industry standards relating to the design and manufacturing of similar chambers with similar intended and/or foreseeable functions.

19. At all times material hereto, Defendants, EQUINE ACQUISITIONS and EQUINE RESOURCES, failed to perform testing adequate to determine the circumstances under
which its equine hyperbaric chambers and the subject chamber were likely to catch fire and explode while being used under intended and/or reasonably foreseeable conditions, or in an intended and/or reasonably foreseeable manner.

20. The subject chamber manufactured, delivered and installed by Defendants, EQUINE ACQUISITIONS and EQUINE RESOURCES, was unfit and unsafe for its intended use and purpose because of design, manufacturing, and inspection defects that caused the subject chamber to catch fire and explode.

21. The subject chamber was manufactured by Defendants, EQUINE ACQUISITIONS and EQUINE RESOURCES, without adequate quality control measures and inappropriate manufacturing procedures and processes, including, but not limited to, failing to properly adhere an adequate anti-sparking material within the subject chamber. Said inappropriate quality control measures and inappropriate manufacturing practices and procedures contributed to the in-service failure and explosion of the subject chamber.

22. The subject chamber was also defective in its design and manufacture in that it failed to adequately design against a known or reasonably expected occurrence, to wit: an
unsettled horse kicking within the interior of the pressurized chamber, so as to prevent metal-on metal contact within the pressurized vessel.

23. The subject chamber failed to incorporate appropriate spark and explosion countermeasures such as sufficient humidity controls, any fire suppression system, or an
adequate pressure relieving capability, including, but not limited to an adequate burst disc or an adequate relief valve, which constitutes additional design defects ofthe subject chamber.

24. The subject chamber was also defective in its design and manufacture in that operating system of the chamber failed to include adequate and/or appropriate controls to allow safe operation of the chamber.

25. Defendants, EQUINE ACQUISITIONS and EQUINE RESOURCES, designed, manufactured, delivered, and installed the subject chamber, intending that it be used in the
precise manner that it was being used at the time the above-mentioned failure and resulting explosion.

26. The subject chamber was in substantially the same defective condition at the time of the above-mentioned failure and resulting explosion when it was designed, manufactured, sold, delivered and installed at the Morriston facility.

27. Before February 10, 2012, Defendants, EQUINE ACQUISITIONS and/or EQUINE RESOURCES, sold, delivered, installed, and provided instruction and training on the use of the subject chamber to the agents, apparent agents, employees, and servants of Defendants, KESMARC SOUTH and/or KESMARC REHABILITATION.

28. Defendants, EQUINE ACQUISITIONS and/or EQUINE RESOURCES, had a duty to properly design, manufacture, deliver, install and instruct and/or train the agents, apparent agents, employees, and servants of Defendants, KESMARC SOUTH and/or KESMARC REHABILITATION, on the safe operation ofthe subject chamber.

29. Defendants, EQUINE ACQUISITIONS and EQUINE RESOURCES, negligently breached that duty by:

a. Failing to adequately cover the metal interior of the subject chamber to prevent the contact of metal on metal, which would result in a spark;
b, Failing to warn of the hazards of allowing metal objects in the subject chamber;
c. Failing to provide sufficient humidity controls to prevent spark production;
d. Failing to have any fire suppression system within the subject chamber to prevent fires and explosions;

e. Failing to design an adequate pressure safety relieving capability;
f. Failing to properly inspect and maintain the subject chamber;
g. Failing to provide sufficient technical and maintenance support to customers following installation ofthe subject chamber;
h. Failing to design and install an operating system of the subject chamber with adequate and/or appropriate controls to allow safe operation of the subject chamber; and
i. Failing to act reasonably and appropriately in light of all the surrounding circumstances.

30. As a direct and proximate result of the negligence of Defendants, EQUINE ACQUISITIONS and EQUINE RESOURCES, the subject chamber caught fire and exploded,
resulting in the death of Plaintiff’s Decedent, Erica Marshall.

31. This action is brought to recover the wrongful death damages for the ESTATE OF ERICA MARSHALL, including funeral expenses and the Estate’s loss of the Decedent’s net
accumulations.

32. This action is also brought for the damages sustained by Kieran Marshall, as the Decedent’s surviving spouse, including the loss of support and services, guidance,
companionship, and mental pain and suffering.

WHEREFORE, the Plaintiff, KIERAN MARSHALL, as Personal Representative of the ESTATE OF ERICA MARSHALL, deceased, sues Defendants, EQUINE ACQUISITIONS and
EQUINE RESOURCES, for damages, costs and requests a trial by jury on all issues.

COUNT II
Equine Oxygen Therapy Acquisitions, LP and
Equine Oxygen Therapy Resources, Inc.
(Strict Liability)

33. Plaintiff KIERAN MARSHALL, as Personal Representative of the ESTATE OF ERICA MARSHALL, deceased, realleges paragraphs one (1) through thirty-two (32) as fully set

out herein.

34. On the date of the incident, the subject chamber was in the same condition as when it was designed, manufactured, assembled and sold by Defendants, EQUINE
ACQUISITIONS and/or EQUINE RESOURCES.

35. At the time of the sale, the subject chamber was defective and unreasonably dangerous for its intended use by reason of the matters alleged in paragraphs eighteen (18)
through twenty-nine (29) above.

36. As a direct and proximate result of the defects in the subject chamber, it caught fire and exploded causing injury and death to Plaintiffs Decedent, ERICA MARSHALL.
WHEREFORE, the Plaintiff, KIERAN MARSHALL, as Personal Representative of the ESTATE OF ERICA MARSHALL, deceased, sues Defendants, EQUINE ACQUISITIONS and
EQUINE RESOURCES, for damages, costs and requests a trial by jury on all issues.

COUNT III
KESMARC South, LLC and KESMARC Equine Rehabilitation, LLC
(Negligence)

37. Plaintiff KIERAN MARSHALL, as Personal Representative of the ESTATE OF ERICA MARSHALL, deceased, realleges paragraphs one (1) through fifteen (15), as fully set
out herein.

38. At all times material to the allegations contained herein, Plaintiffs Decedent, Erica Marshall, was an employee of Defendants, KESMARC SOUTH and/or KESMARC REHABILITATION.

39. At all times material to the allegations contained herein and pursuant to Florida Statutes §440.10 and §440.38, Defendants, KESMARC SOUTH and/or KESMARC
REHABILITATION, were required to secure workers’ compensation insurance for employees, including Erica Marshall.

40. At all times material to the allegations contained herein, Defendants, KESMARC SOUTH and/or KESMARC REHABILITATION, failed to secure workers’ compensation
insurance.

41. Pursuant to Florida Statutes §440.06 and §440.11, Defendants, KESMARC SOUTH and/or KESMARC REHABILITATION’s, failure to secure workers’ compensation
insurance therefore bars their defense of workers’ compensation immunity.

42. Defendants, KESMARC SOUTH and/or KESMARC REHABILITATION, had a duty to properly inspect, operate, and maintain the subject chamber.

43. Defendants, KESMARC SOUTH and/or KESMARC REHABILITATION, by and through their agents, apparent agents, employees, and/or servants negligently breached that
duty by:

a. Continuing to operate the subject chamber before necessary repairs were made;
b. Allowing untrained and unqualified individuals to perform repairs and/or maintenance;
c. Proceeding with and continuing the therapy session with an unsettled and anxious horse as a result of inadequate sedation;
d. Failing to remove or otherwise cover the horse’s metal shoes;
e. Failing to adequately inspect the subject chamber;
f. Failing to properly operate the subject chamber;

g. Failing to properly maintain the subject chamber;
h. Failing to design, implement, or enforce appropriate policies and
procedures governing the use of the subject chamber; and
i. Failing to act reasonably and appropriately in light of all of the surrounding circumstances.

44. As a direct and proximate result of the negligence of Defendants, KESMARC SOUTH and/or KESMARC REHABILITATION, the subject chamber caught fire and exploded, resulting in the death of Plaintiffs Decedent, Erica Marshall.

WHEREFORE, the Plaintiff, KIERAN MARSHALL, as Personal Representative of the ESTATE OF ERICA MARSHALL, deceased, sues Defendants, KESMARC SOUTH and/or
KESMARC REHABILITATION, for damages, costs and requests a trial by jury on all issues.

COUNT IV
Farnsworth Rehab Property, LLC and
Farnsworth Farms, Inc.
(Premises Liability)

45. Plaintiff KIERAN MARSHALL, as Personal Representative of the EST ATE OF ERICA MARSHALL, deceased, realleges paragraphs one (1) through fifteen (15), as fully set
out herein.

46. Defendants, FARNSWORTH REHAB and FARNSWORTH FARMS, as owners, users and possessors of the premises, have the right, power and duty to maintain, operate and control their premises to be used by the individuals on their premises, including the Plaintiffs Decedent, Erica Marshall. The Defendants have the duty to maintain the premises and reasonably safe condition for the use of persons lawfully in and about the said premises.

47. Defendants, FARNSWORTH REHAB and FARNSWORTH FARMS, notwithstanding their duty as aforesaid, negligently failed to maintain the premises in a
reasonable safe manner in that the Defendants allowed the following:

a. Operation of a defective and dangerous equine hyperbaric chamber which exploded and caused the death of Plaintiffs Decedent, Erica Marshall.

48. Said dangerous and unsafe condition of the Defendants’ premises existed on February 10, 2012 and had existed for a long enough period oftime that the Defendants knew, or in the exercise of reasonable care, should have known of the existence of the dangerous and unsafe condition.

WHEREFORE, the Plaintiff, KIERAN MARSHALL, as Personal Representative of the ESTATE OF ERICA MARSHALL, deceased, sues Defendants, FARNSWORTH REHAB and
FARNSWORTH FARMS, for damages, costs and requests a trial by jury on all issues.

DEMAND FOR JURY TRIAL

WHEREFORE, Plaintiff demands a trial by jury of all issues so triable.
Dated this 29th day of June, 2012.

Robert F. Spohrer, Esquire

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