Richard D. Burbidge (#0492) rburbidge@bmgtrial.com Jefferson W. Gross (#8339) jwgross@bmgtrial.com Aida Neimarlija (#12181) aneimarlija@bmgtrial.com BURBIDGE MITCHELL & GROSS 215 South State Street, Suite 920 Salt Lake City, Utah 84111 Telephone: 801-355-6677 Facsimile: 801-355-2341 Attorneys for Plaintiffs IN THE THIRD JUDICIAL DISTRICT COURT SALT LAKE COUNTY, STATE OF UTAH ELVIR and ZERNADA MEHANOVIC, individually and as the natural parents and heirs of Sacir Mehanovic, a minor, deceased, Plaintiffs, COMPLAINT AND JURY DEMAND vs. COTTONWOOD HEIGHTS PARKS AND RECREATION SERVICE AREA, a Utah corporation; COTTONWOOD HEIGHTS RECREATION CENTER FOUNDATION, a Utah corporation; CITY OF COTTONWOOD HEIGHTS, a Utah corporation; SALT LAKE COUNTY, a Utah corporation; MICHAEL J. PETERSON, an individual; LYSE DURRANT, an individual; ANDREW FISHER, an individual; BROOKE MARIE OLSON, an individual; WILLIAM HUNTER O NEAL, an individual; DAVID PERRIN TEMPLEMAN, an individual; CLAIRE TEMPLEMAN, an individual; MATTHEW EVAN TEMPLEMAN, an individual; ZACHARY DANIEL DUGDALE, an individual; SPENCER BENNION WALLACE, an individual; and DOES 1-50, Case No. Judge Tier 3 Defendants. 1
Plaintiffs Elvir and Zernada Mehanovic, individually and as the natural parents and heirs of Sacir Mehanovic, a deceased minor, by and through their counsel of record, allege and complain as follows: PARTIES 1. Plaintiff Elvir Mehanovic is the natural father of Sacir Mehanovic ( Sacir ), a minor, who was seven (7) years old at the time of the incident that gives rise to this action. He is a resident of Salt Lake County, State of Utah. 2. Plaintiff Zernada Mehanovic is the natural mother of Sacir and is a resident of Salt Lake County, State of Utah. 3. Upon information and belief, Defendant Cottonwood Heights Parks and Recreation Service Area ( CHPRSA ) is a Utah governmental entity in the State of Utah, with its principal place of business located at 7500 South 2700 East, Cottonwood Heights, UT 84121, in Salt Lake County. Upon information and belief, CHPRSA owns part of the land and was involved in the design and construction of the Cottonwood Heights Recreation Center ( Center ) where the incident that gives rise to this action took place. CHPRSA also operates the Center directly or through agents. 4. Upon information and belief, Defendant Cottonwood Heights Recreation Center Foundation ( Foundation ) is a Utah entity with its principal place business at 7500 South 2700 East, Cottonwood Heights, UT 84121. Upon information and belief, the Foundation was involved in the design and construction of the Center and the swimming pool and/or has operated the Center directly or through agents. 1
5. Upon information and belief, Defendant City of Cottonwood Heights is a Utah governmental entity with its principal place of business at 1265 Fort Union Blvd., Suite 250, Salt Lake City, Utah 84047. Upon information and belief, it was involved in the design and construction of the Center and the swimming pool and/or it has operated the Center directly and through agents. 6. Upon information and belief, Defendant Salt Lake County is a governmental entity located at 2001 South State Street, Suite 2200, Salt Lake City, UT 84190. Upon information and belief, Salt Lake County owns the land where the incident occurred, it was involved in the design and construction of the Center and the swimming pool and/or it has operated the Center directly and through agents. 7. At all times mentioned in this Complaint, Defendants Michael J. Peterson, Lyse Durrant, Andrew Fisher, Brooke Marie Olson, William Hunter O Neal, David Perrin Templeman, Claire Templeman, Matthew Evan Templeman, Zachary Daniel Dugdale and Spencer Bennion Wallace were employees or agents of Defendants CHPRSA, the Foundation and the City of Cottonwood Heights, and were acting in the course and scope of their employment as agents and employees of these Defendants, performing duties of lifeguards and Center/swimming pool supervisors at the swimming pool maintained by the Defendants, a public park dedicated for public use and situated in the City of Cottonwood Heights and operated by those Defendants. 2
8. Upon information and belief, Defendants CHPRSA, City of Cottonwood Heights, and Salt Lake County are governmental entities within the meaning of the Governmental Immunity Act of Utah, Utah Code Ann. 63G-7-401. 9. Plaintiffs complied with Utah Code Ann. 63G-7-401 and filed a Notice of Claim with the above-referenced governmental entities on October 7, 2014. The Notice was directed and hand-delivered according to the requirements of Section 68-3-8.5 to the Officers and Agents designated to receive a Notice of Claim under Section 63G-7-401(3)(b). Those persons names and addresses were on file as of the date of the Notice of Claim with the Division of Corporations and Commercial Code within the Department of Commerce, as required by Section 63G-7-401(5)(a), which names and addresses are required to be kept accurate by Section 63G-7-401(5)(b). Defendant City of Cottonwood Heights denied the claim on October 9, 2014. Defendant Salt Lake County denied the claim on October 13, 2014. Sixty-days have expired and Defendant CHPRSA and/or its insurance carrier have denied the Plaintiffs claim pursuant to the terms of Utah Code Ann. 63G-7-403(1)(b) by failing to inform the Plaintiffs in writing that the claim has been either approved or denied. 10. Plaintiffs have commenced this action within one-year after the expiration of the denial period as found in Utah Code Ann. 63G-7-403, and within the maximum four-year period set forth by Utah Code Ann. 78B-3-404. 11. Upon information and belief DOES 1-50 are persons or entities not yet identified who owned, managed, supervised and operated the Center, as well as persons or entities that were or may have been involved in any manner in activities such as the ownership, design, 3
construction, maintenance or any other activity related to the swimming pool. DOES 1-50 also includes persons or entities in any way involved with lifeguard training or any other actions in any way related to Sacir s death. DOES 1-50 owed duties to Sacir and their breach of such duties and other acts and omissions caused Sacir s drowning and death. Plaintiffs will amend their Complaint to allege Defendants DOES 1-50 true names and capacities when ascertained. JURISDICTION AND VENUE 12. This Court has jurisdiction over the parties herein because they are Utah residents and/or have done business in the State of Utah. 13. This court has subject matter jurisdiction pursuant to Utah Code Ann. 78B-3-102. 14. Plaintiffs Elvir and Zernada Mehanovic are the surviving natural parents pursuant to Utah Code Ann. 78B-3-102 and legal heirs pursuant to Utah Code Ann. 78B-3-105 of their minor child Sacir, deceased. GENERAL ALLEGATIONS 15. Plaintiffs incorporate allegations above as if fully referenced herein. 16. On or about July 6, 2014, at approximately 1:00 p.m., Sacir arrived at the Cottonwood Heights Recreation Center with his father to spend the afternoon swimming. 17. Defendants owned, designed, constructed and operated the Center, including a large outdoor swimming pool. Defendants and their employees or agents also engaged in performing supervisory duties and duties of lifeguards at the said pool at various times, including July 6, 2014. 4
18. Sacir s father paid an admission fee for the two of them to enter the Center. Shortly, after arriving at the Center, Sacir entered the shallow (south) end of the large outdoor swimming pool. 19. Near the center of the pool is a steep slope between the shallow and the deeper ends. 20. After spending sometime in the pool, Sacir became submerged under water near or at the sloped area. 21. At least one of the Center s lifeguards, David Templeman ( Templeman ), was standing directly above Sacir and watching Sacir when he was under water. 22. Neither the lifeguard Templeman nor any other lifeguard or supervisor, including the Defendants named herein, reacted to Sacir being submerged or attempted to save Sacir. 23. The lifeguard Templeman did not have any conspicuous markings indicating that he was a lifeguard. 24. After some time had passed, a pool guest alerted another lifeguard, Brooke Marie Olson ( Olson ), who was standing by the neighboring child pool, that Sacir had been under water for a long time and that someone should check on him. 25. Olson walked over to Templeman and, after some discussion, the two finally proceeded to enter the pool area where Sacir was submerged. They spent time in the water with Sacir waiting for the third lifeguard, after which point the lifeguards finally pulled Sacir out of the water. 26. Sacir passed away due to drowning. 5
FIRST CAUSE OF ACTION (Wrongful Death Negligence/Premises Liability ) 27. By this reference, Plaintiffs incorporate all preceding paragraphs of this Complaint as if set forth in full herein. 28. Pursuant to Utah Code Ann. 78B-3-106, Sacir s parents brought this wrongful death action against Defendants for their negligence and wrongful conduct. 29. The Defendants, their officers, agents and employees owed a duty of care to children and other citizens invited to use the above-mentioned swimming pool. Among other things, Defendants owed a duty to exercise all proper precaution, skill and care to put and maintain the place and every part of it in a reasonably safe condition for the invitees use. 30. Defendants were negligent in the manner they designed and constructed the swimming pool and the way they operated the Center. 31. Instead of fulfilling their duty of reasonable care to supervise and watch over the minor children known to be swimming in the pool, these Defendants were reckless, negligent, and failed entirely to supervise the operations of the swimming pool or the persons swimming in the pool. 32. As a result of Defendants acts and omissions, Sacir drowned in Defendants swimming pool and died. 33. As a result of Defendants acts and omissions, Plaintiffs have suffered economic damages, including but not limited to burial and medical expenses in the amount of at least $9,725.27, and general damages, due to the deprivation of the society comfort, protection, and companionship of the Decedent, in an amount to be proved at trial. 6
SECOND CAUSE OF ACTION ( Survival Action/Negligence/Gross Negligence ) 34. By this reference, Plaintiffs incorporate all preceding paragraphs of this Complaint as if set forth in full herein. 35. Pursuant to Utah Code Ann. 78B-3-107, Sacir s parents have brought this suit against Defendants to recover damages for the injuries Sacir suffered which were caused by Defendants negligence and wrongful conduct described above. As a result of Defendants negligence and wrongful conduct, Sacir suffered specific and general damages in an amount to be proven at trial. PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for the following relief: 1. An award of Plaintiffs actual/special damages both on account of their wrongful death claim and the survival action in an amount to be established at trial; 2. An award of Plaintiffs general damages both on account of their wrongful death claim and the survival action in an amount to be established at trial; paid. 3. An award of Plaintiffs costs of court; 4. For such further and additional relief as the Court deems just and proper; and 5. Interest on such damages awarded at the legal rate from the date of judgment until JURY DEMAND Plaintiffs hereby demand trial by jury of the above-captioned matter. 7
DATED this 23 rd day of December, 2014. BURBIDGE MITCHELL & GROSS By /s Aida Neimarlija Attorneys for Plaintiffs Plaintiffs Address: Elvir and Zernada Mehanovic c/o Aida Neimarlija BURBIDGE MITCHELL & GROSS 215 South State Street, Suite 920 Salt Lake City, Utah 84111 8