Edgar Monserratt v. Tesla Inc, et al Document 2

County Court in and for Broward County, Florida
Case No. CACE19000422
Filed January 8, 2019

Complaint (eFiled)

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Page 1 Case Number: CACE-19-000422 Division: Filing # 83012909 E-Filed 01/08/2019 01:32:10 PM
IN THE CIRCUIT COURT OF THE
17°" JUDICIAL CIRCUIT IN AND
FOR BROWARD COUNTY, FLORIDA
CASE NO.:
EDGAR MONSERRATT, as Personal
Representative of THE ESTATE OF
EDGAR MONSERRATT MARTINEZ,
Deceased,
Plaintiff,
Vv.
TESLA, INC. a/k/a TESLA FLORIDA,
INC. and JAMES CONSTANTINO,
Defendants.
/

COMPLAINT
COMES NOW the Plaintiff, EDGAR MONSERRATT, as Personal Representative of the
ESTATE OF EDGAR MONSERRATT MARTINEZ, Deceased, by and through his undersigned
attorneys, and sues the Defendants, TESLA, INC. a/k/a TESLA FLORIDA, INC. and JAMES
CONSTANTINO, as grounds therefore would state:
1. This is an action for damages that exceeds Fifteen Thousand Dollars ($15,000.00),
exclusive of costs and fees.
2. At all times alleged herein the Plaintiff, EDGAR MONSERRATT has been or will
be duly appointed as the personal representative of THE ESTATE OF EDGAR MONSERRATT
MARTINEZ, and litigates this wrongful death action on behalf of the ESTATE OF EDGAR
MONSERRATT MARTINEZ and on behalf of all survivors.
* FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 1/8/2019 1:32:08 PM.***%*
Page 2 3. EDGAR MONSERRATT MARTINEZ, died on May 8, 2018 as a result of injuries
suffered in an automobile crash in the 1300 block of Seabreeze Boulevard in Fort Lauderdale,
Broward County, Florida caused by the Defendants alleged in this Complaint.
3. At the time of the death of EDGAR MONSERRATT MARTINEZ was 18 years
old and was not married and had no children.
4. EDGAR MONSERRATT MARTINEZ its survived by his natural parents, EDGAR
MONSERRATT and ESPERANZA MARTINEZ DE MONSERRATT, who are survivors under
the Florida Wrongful Death Act.
5. At all times material to this action, the Defendant, TESLA, INC. a/k/a TESLA
FLORIDA, INC. (hereinafter referred to as “TESLA”), was a foreign corporation licensed and
authorized to do business in the State of Florida.
6. At all times hereinafter mentioned and at the time of the incident complained of, the
Defendant, TESLA, had an office for the transaction of its customary business in Broward County,
Florida, had agents and other representatives in Broward County, Florida, and was actually doing
business in Broward County, Florida by virtue of its designing, assembling, manufacturing, and/or
shipping automobiles into Broward County, Florida.
7. At all times hereinafter mentioned and at the time of the incident complained of, the
Defendant, TESLA, was in the business of designing, testing, inspecting, manufacturing,
distributing, selling, maintaining, repairmg and otherwise placing into the stream of commerce,
and causing same to come into the State of Florida, certain automobiles, including a certain specific
automobile designated and described as a 2014 Tesla Model S, VIN: S5YJSA1H24EFP
(Hereinafter described as the “Vehicle’’).
Page 3 8. At all times material to this action Defendant, JOSEPH CONSTANTINO, was an
employee and agent of TESLA and acting in the full course and scope of his responsibilities for
TESLA.
9. At all times hereinafter mentioned and at the time of the incident complained of,
JOSEPH CONSTANTINO was sui juris and a resident of Broward County, Florida.
10. At all times material to this action, JAMES B. RILEY was a registered owner of
the Vehicle.
11. At all times material to this action, the Vehicle was kept and maintained at the home
of JAMES B. RILEY and JENNY B. RILEY and they maintained custody, possession, and control
of the Vehicle.
12. BARRETT RILEY, deceased, was the son of JAMES B. RILEY and JENNY B.
RILEY.
13. That on May 8, 2018 the decedent, EDGAR MONSERRATT MARTINEZ, was
the front seat passenger in the Vehicle which was then operated by BARRETT RILEY southbound
in the 1300 block of Seabreeze Boulevard, in Fort Lauderdale, Florida.
14. That at that time and place, BARRETT RILEY lost control of the automobile,
resulting in the Vehicle striking a wall on the west side of the road. The Vehicle then re-entered
the roadway, mounted the curb on the east side of the street, and struck a metal light pole and wall.
The Vehicle then erupted in flames.
15. EDGAR MONSERRATT MARTINEZ perished as a result of tnjuries he sustained
in the crash.
wo
Page 4 COUNT I
MONSERRATT v. TESLA and CONSTANTINO
NEGLIGENCE/RESPONDENT SUPERIOR
The Plaintiff, EDGAR MONSERRATT, as Personal Representative of THE ESTATE OF
EDGAR MONSERRATT MARTINEZ, Deceased, realleges each and every allegation contained in
paragraphs 1| through 15, and, by reference, further states:
16. The Vehicle was traveling at a speed in excess of 116 mph when BARRETT
RILEY lost control of the vehicle immediately before the crash.
17. Prior to May 8, 2018, BARRETT RILEY had a history of negligent operation of
motor vehicles, including speeding and, in particular, speeding in the Tesla Model S, which
endangered his passengers and the general public.
18. On March 3, 2018, approximately two months prior to the automobile crash,
BARRETT RILEY, was clocked at 112 mph on a Florida highway and ticketed for such.
19. As aresult of BARRETT RILEY’s traffic citation, his parents, JAMES B. RILEY
and/or JENNY B. RILEY, sought to limit the top speed of the Vehicle in an effort to improve its
safety and safe operation for the benefit of their son and any passengers in the Vehicle.
20. JAMES B. RILEY and/or JENNY B. RILEY then requested that Defendant,
TESLA install a speed limiter/governor on the Vehicle which would limit its top speed to 85 mph.
21. On or about March 6, 2018 the Defendant, TESLA, through its employees or
agents, installed the 85 mph speed limiter/governor on the Vehicle limiting any driver to going a
maximum of 85 mph.
22. Between March 29, 2018 and April 3, 2018, while the Vehicle was in for service at
Defendant TESLA’s Bahia Beach, Broward County service center, Defendant TESLA, through its
Page 5 agent CONSTANTINO, improperly removed the 85 mph speed limiter/governor without the
permission and consent of JAMES B. RILEY or JENNY B. RILEY.
23. The 85 mph speed limiter/governor was never reinstalled prior to the May 8, crash.
24. Neither JAMES B. RILEY nor JENNY B. RILEY were ever made aware by
TESLA that the 85 mph speed limiter/governor had been removed from the Vehicle until after the
May 8, 2018 crash.
25. Had JAMES B. RILEY or JENNY B. RILEY been made aware of the fact that the
85 mph speed limiter/governor had been improperly removed, they would not have permitted their
son, BARRETT RILEY, to operate the vehicle.
26. The Defendants, TESLA, by and through its agent, CONSTANTINO, and
COSANTINO individually, owed a duty of care not to remove the speed limiter/governor in the
Vehicle in any manner which could potentially affect its safe operation, or the safety of any
passengers who may ride within it.
27. The Defendants, TESLA and CONSANTINO, breached their duties of care by
negligently removing the 85 mph speed limiter/governor and thereby endangering any passengers
who may have ridden in the Vehicle, including the decedent, EDGAR MONSERRATT
MARTINEZ.
28. Had the 85 mph speed limiter/governor not been improperly removed by
Defendants, TESLA and CONSANTINO, the Vehicle would not have exceeded 85 mph and
BARRET RILEY would not have lost control of the vehicle.
Page 6 29. Had the 85 mph speed limiter/governor not been improperly removed by the
Defendants, TESLA and its agent, CONSTANTINO, the May 8, 2018 crash would not have
occurred and EDGAR MONSERRATT MARTINEZ would not have died.
30. Asa direct and proximate cause of the negligence of TESLA and its agent,
CONSTANTINO, the ESTATE OF EDGAR MONSERRATT MARTINEZ, deceased, suffered
the following damages and EDGAR MONSERRATT as personal representative of the ESTATE
OF EDGAR MONSERRATT MARTINEZ, deceased, seeks the following damages on behalf of
the ESTATE OF EDGAR MONSERRATT MARTINEZ:
a) Funeral and burial expenses,
b) Loss of net accumulations that would have been available to the Estate had the decedent
lived for the duration of his natural life.
31. Asa direct and proximate cause of the negligence of Defendant TESLA and its
agent, CONSTANTINO, the ESTATE OF EDGAR MONSERRATT MARTINEZ, deceased,
suffered the following damages and EDGAR MONSERRATT as personal representative of the
ESTATE OF EDGAR MONSERRATT MARTINEZ, deceased, seeks the following damages on
behalf of EDGAR MONSERRATT as surviving father of EDGAR MONSERRATT MARTINEZ:
a) EDGAR MONSERRATT’s mental pain and suffering, mental anguish, inconvenience
and loss of his son’s companionship and affection from the date of his death up and
through EDGAR MONSERRATT’s normal life expectancy.
32. Asa direct and proximate cause of the negligence of Defendant, TESLA, and its
agent, CONSTANTINO, the ESTATE OF EDGAR MONSERRATT MARTINEZ, deceased,
suffered the following damages and EDGAR MONSERRATT as personal representative of the
ESTATE OF EDGAR MONSERRATT MARTINEZ, deceased, seeks the following damages on
Page 7 behalf of ESPERANZA MARTINEZ DE MONSERRATT as surviving mother of EDGAR
MONSERRATT MARTINEZ:
a) ESPERANZA MARTINEZ DE MONSERRATT’s mental pain and suffering, mental
anguish, inconvenience and loss of her son’s companionship and affection from the
date of his death up and through ESPERANZA MARTINEZ DE MONSERRATT?’s
normal life expectancy.
WHEREFORE, the Plaintiff, EDGAR MONSERRATT, as Personal Representative of the
ESTATE OF EDGAR MONSERRATT MARTINEZ, Deceased, demands judgment against the
Defendant, TESLA, INC. a/k/a TESLA FLORIDA, INC., for compensatory damages together with
post-judgment interest and taxable costs incurred in this action.
COUNT II
MONSERRATT v. TESLA
STRICT LIABILITY IN TORT
The Plaintiff, EDGAR MONSERRATT, as Personal Representative of THE ESTATE OF
EDGAR MONSERRATT MARTINEZ, Deceased, realleges each and every allegation contained
in paragraphs | through 15, and, by reference, further states:
33. The Vehicle as hereinabove described was designed, manufactured, assembled,
serviced, repaired, placed within the stream of commerce and market place, and/or allowed to be used
therein by the said Defendant, TESLA.
34. The Vehicle as previously described was defective when it left the possession of the
Defendant, TESLA, and was in a condition that was unreasonably dangerous to foreseeable users,
and said Vehicle was expected to and did reach foreseeable users without substantial change affecting
its condition.
Page 8 35.
The Vehicle as hereinabove described was defective and unreasonably dangerous at
the time it was so designed, manufactured, assembled, sold, distributed, marketed, promoted, placed
within the stream of commerce and market place, and allowed to be used therein, in the ways set forth
herein:
36.
d)
g)
h)
The Vehicle was not crashworthy;
The Vehicle’s batteries were inherently unstable and subject to explosion
and spontaneous fire;
The Vehicle’s batteries were inadequately protected and shielded; to wit:
the battery pack of the Tesla Model S was not treated with an intumescent
material to protect and provide protection from the propagation of thermal
runaway from one cell to adjacent cells;
The Vehicle had inadequate measures to prevent a post-collision fire; to wit:
the battery pack of the Tesla Model S was not treated with an intumescent
material to protect and provide protection from the propagation of thermal
runaway from one cell to adjacent cells;
The Vehicle had inadequate measures to contain or extinguish any fire;
The Vehicle was prone to extremely intense fires incapable of being timely
extinguished;
Failed to contain a warning to end users and their passengers of the
defective and unreasonably dangerous condition of the Vehicle;
Was otherwise defective in ways which will be demonstrated by the
evidence adduced during discovery.
The aforesaid defects existed at the time of the design, manufacture, and assembly of
Page 9 said Vehicle, continued to remain an integral characteristic of said vehicle at the time it was sold,
distributed, placed within the stream of commerce and market place, and allowed to be used therein
by the Defendant TESLA and remained as such up to and imcluding the time that EDGAR
MONSERRATT MARTINEZ perished by said defects, and, as a result, the Defendant, TESLA, is
strictly liable to the Plaintiff.
37. The decedent, EDGAR MONSERRATT MARTINEZ, was unaware of the aforesaid
defects and dangerousness of said product, which made such product unsafe for its tended and
foreseeable use, nor were such defects apparent by reasonable inspection.
38. As a direct and proximate cause of the defects in the Vehicle, the ESTATE OF
EDGAR MONSERRATT MARTINEZ, deceased, suffered the following damages and EDGAR
MONSERRATT as personal representative of the ESTATE OF EDGAR MONSERRATT
MARTINEZ, deceased, seeks the following damages on behalf of the ESTATE OF EDGAR
MONSERRATT MARTINEZ:
a) Funeral and burial expenses,
b) Loss of net accumulations that would have been available to the Estate had the decedent
lived for the duration of his natural life.
39. As a direct and proximate cause of the defects in the Vehicle, the ESTATE OF
EDGAR MONSERRATT MARTINEZ, deceased, suffered the following damages and EDGAR
MONSERRATT, as personal representative of the ESTATE OF EDGAR MONSERRATT
MARTINEZ, deceased, seeks the following damages on behalf of EDGAR MONSERRATT as
surviving father of EDGAR MONSERRATT MARTINEZ:
a) EDGAR MONSERRATT’s mental pain and suffering, mental anguish, inconvenience
and loss of his son’s companionship and affection from the date of his death up and
Page 10 through EDGAR MONSERRATT’s normal life expectancy.
40. As a direct and proximate cause of the defects in the Vehicle, the ESTATE OF
EDGAR MONSERRATT MARTINEZ, deceased, suffered the following damages and EDGAR
MONSERRATT, as personal representative of the ESTATE OF EDGAR MONSERRATT
MARTINEZ, deceased, seeks the following damages on behalf of ESPERANZA MARTINEZ DE
MONSERRATT as surviving mother of EDGAR MONSERRATT MARTINEZ:
a) ESPERANZA MARTINEZ DE MONSERRATT?’s mental pain and suffering, mental
anguish, inconvenience and loss of her son’s companionship and affection from the
date of his death up and through ESPERANZA MARTINEZ DE MONSERRATT?’s
normal life expectancy.
WHEREFORE, the Plaintiff, EDGAR MONSERRATT, as Personal Representative of the
ESTATE OF EDGAR MONSERRATT MARTINEZ, Deceased, demands judgment against the
Defendant, TESLA, INC. a/k/a TESLA FLORIDA, INC., for compensatory damages together with
post-judgment interest and taxable costs incurred in this action.
COUNT III
MONSERRATT vy. TESLA
NEGLIGENCE — FAILURE TO WARN
The Plaintiff, EDGAR MONSERRATT, as Personal Representative of THE ESTATE OF
EDGAR MONSERRATT MARTINEZ, Deceased, realleges each and every allegation contained
in paragraphs | through 15, and, by reference, further states:
41. At all times relevant herein, it was the duty of Defendant TESLA to exercise due
care in the design, manufacture, assembly, distribution, and/or sale of the Vehicle, and in placing
such Vehicle into the stream of commerce, so that such Vehicle would be reasonably safe for its
Page 11 intended use and for other uses that were foreseeably probable.
42. At all times relevant herein, it was the duty of Defendant TESLA to ensure that the
Vehicle that it placed in the stream of commerce was safe for use by its intended users and those
persons who may foreseeably come into close proximity to it, such as the decedent, EDGAR
MONSERRATT MARTINEZ.
43. At all times hereinafter mentioned and at the time of the incident complained of,
Defendant TESLA failed to warn that the vehicle was defective in the manners and ways set forth
herein:
a)
b)
d)
The Vehicle was not crashworthy;
The Vehicle’s batteries were inherently unstable and subject to explosion
and spontaneous fire;
The Vehicle’s batteries were inadequately protected and shielded; to wit:
the battery pack of the Tesla Model S was not treated with an intumescent
material to protect and provide protection from the propagation of thermal
runaway from one cell to adjacent cells;
The Vehicle had inadequate measures to prevent a post-collision fire; to wit:
the battery pack of the Tesla Model S was not treated with an intumescent
material to protect and provide protection from the propagation of thermal
runaway from one cell to adjacent cells;
The Vehicle was prone to extremely intense fires incapable of being timely
extinguished;
Defendant TESLA failed to warn anyone of the defective and unreasonably
dangerous condition of the Vehicle;
Page 12 g) The Vehicle was otherwise defective in ways which will be demonstrated
by the evidence adduced during discovery.
44, Defendant TESLA designed, manufactured, assembled, distributed, sold and placed
within the stream of commerce and market place the Vehicle, as hereinabove specifically described,
the Vehicle intended to be used by the ultimate consumer, and TESLA knew, or with the exercise of
reasonable care should have known, that the said Vehicle was negligently designed, manufactured
and assembled.
45. Defendant TESLA negligently failed to give proper warnings to any purchaser or user
of the Vehicle concerning its dangerous condition and propensities, or the fact that the Vehicle was
unreasonably dangerous during use, and, as such, could cause injury to those persons in close
proximity thereto.
46. Defendant TESLA negligently designed, manufactured, assembled, marketed, sold,
and/or allowed to be used in the market place the aforesaid Vehicle without warnings as to its dangers
and as to its proper use, and knew or should have known the aforesaid Vehicle, when used within the
purposes for which it was designed, manufactured, and intended, was unreasonably dangerous and
hazardous to those persons in close proximity thereto.
47. Defendant TESLA negligently failed to warn the consumer, user, operator, and those
in the vicinity of said Vehicle of its extremely dangerous and hazardous characteristics, propensities,
and defects, and, after placing said Vehicle on the market and allowing its use therein, failed to recall
the said Vehicle from the market, said recall being necessitated because of said unreasonably
dangerous and hazardous defects contained therein.
48. The decedent, EDGAR MONSERRATT MARTINEZ, was unaware of the aforesaid
defects and dangerousness of said product which made such product unsafe for its intended and
Page 13 foreseeable use, nor were such defects apparent by reasonable inspection.
49. As a direct and proximate cause of the negligence of Defendant ,TESLA, the
ESTATE OF EDGAR MONSERRATT MARTINEZ, deceased, suffered the following damages
and EDGAR MONSERRATT as personal representative of the ESTATE OF EDGAR
MONSERRATT MARTINEZ, deceased, seeks the following damages on behalf of the ESTATE
OF EDGAR MONSERRATT MARTINEZ:
a) Funeral and burial expenses,
b) Loss of net accumulations that would have been available to the Estate had the decedent
lived for the duration of his natural life.
50. As a direct and proximate cause of the negligence of Defendant, TESLA, the
ESTATE OF EDGAR MONSERRATT MARTINEZ, deceased, suffered the following damages
and EDGAR MONSERRATT as personal representative of the ESTATE OF EDGAR
MONSERRATT MARTINEZ, deceased, seeks the following damages on behalf of EDGAR
MONSERRATT as surviving father of EDGAR MONSERRATT MARTINEZ:
a) EDGAR MONSERRATT’s mental pain and suffering, mental anguish, inconvenience
and loss of his son’s companionship and affection from the date of his death up and
through EDGAR MONSERRATT’s normal life expectancy.
51. As a direct cause of the negligence of Defendant, TESLA, as afore alleged, the
ESTATE OF EDGAR MONSERRATT MARTINEZ, deceased, suffered the following damages
and EDGAR MONSERRATT as personal representative of the ESTATE OF EDGAR
MONSERRATT MARTINEZ, deceased, seeks the following damages on behalf of ESPERANZA
MARTINEZ DE MONSERRATT as surviving mother of EDGAR MONSERRATT MARTINEZ:
a) ESPERANZA MARTINEZ DE MONSERRATT’s mental pain and suffering, mental
Page 14 anguish, inconvenience and loss of her son’s companionship and affection from the
date of his death up and through ESPERANZA MARTINEZ DE MONSERRATT?’s
normal life expectancy.
WHEREFORE, the Plaintiff, EDGAR MONSERRATT, as Personal Representative of the
ESTATE OF EDGAR MONSERRATT MARTINEZ, Deceased, demands judgment against the
Defendant, TESLA, INC. a/k/a TESLA FLORIDA, INC., for compensatory damages together with
post-judgment interest and taxable costs incurred in this action.
[Remainder of Page Intentionally Blank]
Page 15 DEMAND FOR JURY TRIAL
The Plaintiff in the above styled cause hereby demands a trial by jury of all of the issues
triable by right.
DATED this 8th day of January, 2019.
Respectfully submitted,
/s/ Scott P. Schlesinger
SCHLESINGER LAW OFFICES, P.A.
Scott P. Schlesinger, Esq.
Florida Bar No.: scott@schlesingerlaw.com
Jonathan R. Gdanski, Esq.
Florida Bar No.: jonathan@éschlesingerlaw.com
Zane Berg, Esq.
Florida Bar No.: zane@schlesingerlaw.com
1212 S.E. 3rd Avenue
Fort Lauderdale, FL Telephone: 954.467.Facsimile: 954.320.

-and-
/s/ Philip Harnett Corboy, Jr.
CORBOY & DEMETRIO, P.C.
Philip Harnett Corboy, Jr. — Pro-Hac Vice anticipated
Illinois Bar No.:
fhe@corboydemetrio.com
33 N. Dearborn Street
Chicago, IL
Telephone: (312) 346-

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