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CAUSE NO. _______________

DONNA M. COSTER, § IN THE DISTRICT COURT OF 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. § DALLAS COUNTY, TEXAS

§ TRINITY HIGHWAY PRODUCTS, § LLC. AND TRINITY INDUSTRIES, INC. § § §

Defendants. § ___ JUDICIAL 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

Defendants TRINITY HIGHWAY PRODUCTS, LLC. AND TRINITY INDUSTRIES,

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

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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.

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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

State 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, TRINITY’s 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, TRINITY’s 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

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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 state’s 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

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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 NCDOT’s Approved List for End Terminal. The

version of the ET-Plus approved by NCDOT remains on NCDOT’s 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.

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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 subjec t state’s 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 subjec t state’s 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 TRINITY’s 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 TRINITY’s 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 TRINITY’s 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 TRINITY’s 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 One—Strict 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

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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 terminal’s 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 TRINITY’s 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 product’s utility. Further the safer alternative design was

economical and technologically feasible at the time TRINITY’s original and/or modified,

revised or altered guardrail and end terminal’s design when it left the control of TRINITY by

application of existing or reasonably achievable scientific knowledge.

Count Two—Negligence

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 and end terminal

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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

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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 breach of the implied warr anty

of fi tness for a particular 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 car impacted the 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.

TRINITY’s 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

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original and/or modified, revised or altered guardrail and end terminal, and warn the

respective state’s 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 subjec t state’s 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

TRINITY’S 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. TRINITY’s 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 Four—Misrepresentation

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

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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

state’s 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 of these deaths or injuries, 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