IN THE CIRCUIT COURT OF THE
FOURTH JUDICIAL CIRCUIT IN AND
FOR DUVAL COUNTY, FLORIDA
ARILSON OMAR BACK SOMOZA and
NIEVES MELINA CRUZ DE BACK,
individually, and as Parents, Natural Guardians, CASE NO: 16-2015-CA-001596
and Next Friends of their minor child, JBC. DIVISION: CV-A
Plaintiffs,
v.
SANDRA ABBOT, a Florida resident,
ANTHONY ABBOT, a foreign resident, and
EVENFLO COMPANY, INC., a foreign
corporation.
Defendants.
__________________________________________/
AMENDED COMPLAINT
The Plaintiffs, Arilson Omar Back Somoza and Nieves Melina Cruz de Back,
individually, and as Parents, Natural Guardians, and Next Friends of their minor child, JBC,
hereby sue Defendants Sandra Abbot, a Florida resident, Anthony Abbot, an individual, and
Evenflo Company, Inc., a foreign corporation, and further allege as follows:
PARTIES, JURISDICTION, AND VENUE
1. This is an action for damages in excess of fifteen thousand dollars, exclusive of
attorneys’ fees, interest, and costs.
2. At all times material hereto, Plaintiff Arilson Omar Back Somoza was and is a
resident of Duval County, Florida, and is otherwise sui juris.
3. At all times material hereto, Plaintiff Nieves Melina Cruz de Back was and is a
resident of Duval County, Florida, and is otherwise sui juris.
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
Back-Cruz v. Evenflo
Case No.: 16-2015-CA-001596-XXXX-MA
Amended Complaint
Page 2
4. At all times material hereto, Plaintiffs Arilson Omar Back Somoza and Nieves
Melina Cruz de Back are the parents, natural guardians, and Next Friend of their minor daughter
JBC.
5. The Plaintiffs, Arilson Omar Back Somoza and Nieves Melina Cruz de Back
bring this action as Next Friend of their minor daughter, JBC, pursuant to 1.210(b), Florida Rule
of Civil Procedure.
6. At all times material hereto, Defendant Sandra Abbot was and is a resident of
Flagler Beach, Florida.
7. At the time of the subject crash, Defendant Sandra Abbot maintained a motor
vehicle registration in Duval County, Florida.
8. At all times material hereto, Defendant Anthony Abbot was and is a resident of
Hamilton, Michigan.
9. At all times material hereto, Defendant Evenflo Company, Inc. (“Evenflo”) was
and is a foreign corporation with its principal address located at 225 Byers Road, Miamisburg,
Ohio, and its registered agent located at 1200 South Pine Island Road, Plantation, Florida 33324.
10. Defendant Evenflo is subject to jurisdiction in the State of Florida because it: (1)
operated, conducted, engaged in, or carried on business in Florida; (2) committed a tortious act in
Florida; (3) caused injury to persons or property in Florida at or about the time that it was
engaged in solicitation or services activities within Florida, at or about the time products or
materials it manufactured were used or consumed within Florida in the ordinary course of
commerce, trade, or use; or (4) engaged in substantial and not isolated activity within Florida.
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
Back-Cruz v. Evenflo
Case No.: 16-2015-CA-001596-XXXX-MA
Amended Complaint
Page 3
11. All conditions precedent to filing this action have been met or waived.
GENERAL ALLEGATIONS
12. On May 14, 2014, the Plaintiffs were involved in an automobile crash in or near
Jacksonville, Duval County, Florida.
13. On May 14, 2014, the Plaintiffs were driving a 2012 Toyota Corolla (hereinafter
referred to as the “Plaintiffs’ vehicle”).
14. On May 14, 2014, the Defendant, Sandra Abbot, was driving a 2004 Audi A6
(hereinafter referred to as the “Defendants’ vehicle”).
15. The Defendants’ vehicle was owned by Defendant Anthony Abbott and was being
operated by Defendant Sandra Abbot on May 14, 2014, with Defendant Anthony Abbot’s
express and/or implied permission.
16. On May 14, 2014, Defendant Sandra Abbot made a left-hand turn and failed to
yield to Plaintiffs’ vehicle (hereinafter referred to as the “subject crash”). As a result, the
Plaintiffs’ vehicle crashed into the Defendants’ vehicle.
17. As a result of her actions on May 14, 2014, the Defendant, Sandra Abbot,
received a traffic citation, citation number A26AGBE (hereinafter referred to as “the subject
traffic citation”) for violating § 316.075(1)(a)1, Florida statutes.
18. On or about June 16, 2014, Defendant Sandra Abbot pled guilty to the subject
traffic citation for violating of §316.075(1)(a)1, Florida statutes.
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
Back-Cruz v. Evenflo
Case No.: 16-2015-CA-001596-XXXX-MA
Amended Complaint
Page 4
19. Prior to May 14, 2014, the Plaintiffs purchased an Evenflo Big Kid Booster seat
(hereinafter referred to as the “child safety seat” and/or “booster seat”) bearing model number
3391787A.
20. On May 14, 2014, the Plaintiffs’ daughter, JBC, was properly restrained in the
booster seat.
21. On May 14, 2014, during the subject crash the Plaintiffs’ daughter, JBC,
submarined and/or was ejected from her child safety seat and sustained serious injuries,
including, but not limited to, serious injuries to her spine.
22. The subject booster seat was manufactured on or about August 11, 2007 by
Defendant Evenflo.
23. At all times material hereto, Evenflo knew that the Plaintiffs and similarly
situated persons could not realize the dangerousness of the subject booster particularly in the face
of Evenflo’s messaging that the subject booster seat was safe for children who weighed as little
as 30 pounds.
COUNT I – NEGLIGENCE AGAINST SANDRA ABBOT
24. The Plaintiffs re-allege paragraphs 1 – 23, above, as if fully set forth herein.
25. At all times material hereto, Defendant Sandra Abbot had a duty to operate her
motor vehicle in a reasonably careful and safe manner, including but not limited to not violating
the right of way of other motor vehicles, such as the motor vehicle in which JBC was a
passenger.
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
Back-Cruz v. Evenflo
Case No.: 16-2015-CA-001596-XXXX-MA
Amended Complaint
Page 5
26. At all times material hereto, Defendant Sandra Abbot breached that duty by
violating the right of way of the vehicle in which JBC was a passenger and causing the subject
crash.
27. As a direct and proximate result JBC suffered bodily injury and resulting pain and
suffering, disability, disfigurement, mental anguish, loss of capacity for the enjoyment of life,
expense of hospitalization, medical and nursing care and treatment, loss of earnings, loss of
ability to earn money, and aggravation of a previously existing condition.
28. The losses suffered by JBC are either permanent or continuing and JBC will
suffer the losses in the future.
WHEREFORE, the Plaintiff demands judgment for any and all compensatory damages
allowable by law against the Defendant, Sandra Abbot, together with any and all post-judgment
interest, and taxable costs allowable by law.
COUNT II – VICARIOUS LIABILITY AGAINST ANTHONY ABBOT
29. The Plaintiffs re-allege paragraphs 1 – 23, above, as if fully set forth herein.
30. At all times material hereto, the Defendant Sandra Abbot operated the motor
vehicle that she was driving with the knowledge and/or implied and/or express consent of its
owner, Defendant Anthony Abbot.
31. At the time of the subject crash, Defendant Sandra Abbot negligently operated the
motor vehicle that she was driving by violating the right of way of the vehicle in which JBC was
a passenger and causing the subject crash.
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
Back-Cruz v. Evenflo
Case No.: 16-2015-CA-001596-XXXX-MA
Amended Complaint
Page 6
32. Defendant Anthony Abbot, as the vehicle’s owner, is vicariously liable for the
negligence of Defendant Sandra Abbot.
33. As a direct and proximate result JBC suffered bodily injury and resulting pain and
suffering, disability, disfigurement, mental anguish, loss of capacity for the enjoyment of life,
expense of hospitalization, medical and nursing care and treatment, loss of earnings, loss of
ability to earn money, and aggravation of a previously existing condition.
34. The losses suffered by JBC are either permanent or continuing and JBC will
suffer the losses in the future.
WHEREFORE, the Plaintiff demands judgment for any and all compensatory damages
allowable by law against the Defendant, Anthony Abbot, together with any and all post-
judgment interest, and taxable costs, allowable by law.
COUNT III – NEGLIGENCE AGAINST EVENFLO
35. The Plaintiffs re-allege paragraphs 1 – 23, above, as if fully set forth herein.
36. Defendant Evenflo had a duty to use reasonable care in the design, development,
testing, manufacture, marketing, and/or distribution of its product, to wit, the subject booster
seat, an Evenflo Big Kid Booster seat bearing model number 3391787A.
37. Defendant Evenflo breached that duty in one or more of the following ways.
a. By designing, developing, testing, manufacturing, marketing, a product
that does not provide adequate crash protection under reasonably foreseeable conditions.
b. By designing, developing, testing, manufacturing, marketing, a product for
children under 40 pounds that does not incorporate a five-point harness.
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
Back-Cruz v. Evenflo
Case No.: 16-2015-CA-001596-XXXX-MA
Amended Complaint
Page 7
c. By failing to adequately warn foreseeable end-users, including the
Plaintiffs, of the unreasonably dangerous and defective conditions of its product.
d. By failing to adequately warn foreseeable end-users, including the
Plaintiffs, of the unreasonably dangerous risks of using its product instead of an
alternative that incorporates a five-point harness.
e. By marketing as safe a booster seat for child that is less than 40 pounds.
f. By failing to meet or exceed internal standards.
g. By failing to meet or exceed industry standards.
38. Defendant Evenflo is vicariously liable for the negligence of its employees and/or
agents under respondent superior.
39. As a direct and proximate cause of Defendant Evenflo’s negligence JBC suffered
bodily injury and resulting pain and suffering, disability, disfigurement, mental anguish, loss of
capacity for the enjoyment of life, expense of hospitalization, medical and nursing care and
treatment, loss of earnings, loss of ability to earn money, and aggravation of a previously
existing condition.
40. The losses suffered by JBC are either permanent or continuing and JBC will
suffer the losses in the future.
WHEREFORE, the Plaintiff demands judgment for any and all compensatory damages
allowable by law against the Defendant, Evenflo, together with any and all post-judgment
interest, and taxable costs allowable by law.
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
Back-Cruz v. Evenflo
Case No.: 16-2015-CA-001596-XXXX-MA
Amended Complaint
Page 8
COUNT IV – STRICT LIABILITY AGAINST EVENFLO
41. The Plaintiffs re-allege paragraphs 1 – 23, above, as if fully set forth herein.
42. Defendant Evenflo designed, developed, tested, manufactured, marketed, and/or
distributed, sold, and placed into the stream of commerce the subject booster seat, an Evenflo
Big Kid Booster seat bearing model number 3391787A.
43. The subject booster seat was unreasonably dangerous and defective because:
a. The product does not provide adequate crash protection under reasonably
foreseeable conditions.
b. The product does not incorporate a five-point harness.
c. The failure of the product and Evenflo to adequately warn foreseeable
end-users, including the Plaintiffs, of the unreasonably dangerous and defective
conditions of its product.
d. The failure of the product and Evenflo to adequately warn foreseeable
end-users, including the Plaintiffs, of the unreasonably dangerous risks of using its
product instead of an alternative that incorporates a five-point harness.
e. The product was marketed as safe for a child that is less than 40 pounds.
f. The product did not meet or exceed internal standards.
g. The product did not meet or exceed industry standards.
44. The unreasonably dangerous defects were present in the subject booster seat when
it was placed into the stream of commerce by Defendant Evenflo and the product did not
undergo material change or alteration up to and including the time the injuries suffered by JBC.
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
Back-Cruz v. Evenflo
Case No.: 16-2015-CA-001596-XXXX-MA
Amended Complaint
Page 9
45. As a direct and proximate cause of Defendant Evenflo’s negligence JBC suffered
bodily injury and resulting pain and suffering, disability, disfigurement, mental anguish, loss of
capacity for the enjoyment of life, expense of hospitalization, medical and nursing care and
treatment, loss of earnings, loss of ability to earn money, and aggravation of a previously
existing condition.
46. The losses suffered by JBC are either permanent or continuing and JBC will
suffer the losses in the future.
WHEREFORE, the Plaintiff demands judgment for any and all compensatory damages
allowable by law against the Defendant, Evenflo, together with any and all post-judgment
interest, and taxable costs, allowable by law.
COUNT V – LOSS OF PARENTAL CONSORTIUM AGAINST ALL DEFENDANTS
47. The Plaintiffs re-allege paragraphs 1 – 23, above, as if fully set forth herein.
48. Plaintiffs’ daughter, JBC, suffered a significant injury that resulted in her
permanent total disability.
49. As a result of the injuries suffered by JBC, her parents, Arilson Omar Back
Somoza and Nieves Melina Cruz de Back, have in the past and will in the future suffer the loss
of companionship, society, love, affection, and solace of her injured daughter, JBC.
WHEREFORE, the Plaintiffs, Arilson Omar Back Somoza and Nieves Melina Cruz de
Back, demands judgment for compensatory damages and costs, including pre-judgment interest
on all out-of-pocket damages, against all the Defendants, and for whatever further relief this
Court deems appropriate.
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
Back-Cruz v. Evenflo
Case No.: 16-2015-CA-001596-XXXX-MA
Amended Complaint
Page 10
DEMAND FOR JURY TRIAL
The Plaintiffs hereby demand a jury trial on all issues so triable as a matter of right.
Respectfully submitted,
s/ Adam J. Langino, Esq
LESLIE KROEGER, ESQ.
Florida Bar No.:
[email protected] ADAM J. LANGINO, ESQ.
Florida Bar No.: 0031368
[email protected] Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200
Palm Beach Gardens, FL 33410
(561) 515-1400
CERTIFICATE OF SERVICE
I hereby certify that on this 3rd day of November, 2015, I electronically filed a true and
correct copy of the foregoing via the Florida Courts E-Filing Portal with the Clerk of the Court
and served upon those listed below via the Florida Courts E-Filing Portal:
Peter P. Sledsik, Esq.
[email protected]Boyd & Jenerette, P.A.
201 N. Hogan Street
Suite 400
Jacksonville, FL 32202
Phone: (904)-353-6241
Fax: (904)-493-3744
Attorneys for Evenflo Company, Inc.
J. Stephen O'Hara, Jr.,Esq.
[email protected]Michael Patrick Regan, Jr., Esq.
[email protected];
[email protected]O'Hara Law Firm, P.A.
4811 Beach Blvd.
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
Back-Cruz v. Evenflo
Case No.: 16-2015-CA-001596-XXXX-MA
Amended Complaint
Page 11
Suite 303
Jacksonville, FL 32207
Phone: (904)-346-3166
Fax: (904)-346-5445
Attorneys for Anthony Abbot and Sandra Abbot
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200
Palm Beach Gardens, FL 33410
(561) 515-1400
(561) 515-1401 (facsimile)
By: s/ Adam J. Langino, Esq.
ADAM J. LANGINO, ESQ.
Florida Bar No.: 0031368
[email protected] Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
