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IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA

NAOMI KIDIMBU, as Mother and Next Friend of REBECCA MAYELA, DECEASED;

PLAINTIFF, CIVIL ACTION NO.

VS. ___________________

GOFF CAPITAL PARTNERS, LLC; THE HABITAT COMPANY, LLC; THE HABITAT COMPANY OF ALABAMA, LLC; CRESCENT REAL ESTATE HOLDINGS, LLC; BLUE ROCK PARTNERS, LLC; BOULDER BIRMINGHAM, LLC; RILEY SECURITY, LLC; JUSTIN BROWN;

There may be other entities whose true names and identities are unknown to the plaintiff at this time who may be legally responsible for the claim(s) set forth herein and who may be added by amendment by the plaintiff when their names and identities are accurately ascertained by further discovery. Until that time, the plaintiff will designate these parties in accordance with ARCP 9(h). The word "entity" as used herein is intended to refer and include any and all legal entities including persons any and all forms of partnership, any and all types of corporation and unincorporated associations. The symbol by which these party(ies) defendant(s) are designated is intended to include more than one entity in the event that discovery reveals that the descriptive characterization of the symbol applies to more than one entity. In the present action, the party defendants which the plaintiff must include by descriptive characterization are as follows:

DEFENDANT A, the legal entity known and doing business as Goff Capital Partners, LLC, on the occasion described herein;

DEFENDANT B, the legal entity known and doing business as The Habitat Company, LLC, on the occasion described herein;

DEFENDANT C, the legal entity known and doing business as The Habitat Company of Alabama, LLC, on the occasion described herein;

DEFENDANT D, the legal entity known and doing business as Crescent Real Estate Holdings, on the occasion described herein;

DEFENDANT E, the legal entity known and doing business as Blue Rock Partners, LLC, on the occasion described herein;

DEFENDANT F, the legal entity known and doing business as Boulder Birmingham, LLC, on the occasion described herein;

ELECTRONICALLY FILED5/1/2017 3:31 PM

01-CV-2017-901789.00CIRCUIT COURT OF

JEFFERSON COUNTY, ALABAMAANNE-MARIE ADAMS, CLERK

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DEFENDANT G, the legal entity known and doing business as Riley Security, LLC, on the occasion described herein;

DEFENDANT H, the individual known as Justin Brown, Manager of the Park at Buckingham on the occasion described herein;

DEFENDANT I, J, & K, the person(s), firm(s), corporation(s) or other entities responsible for the condition of the pool area;

DEFENDANT L, M, & N, the person(s), firm(s), corporation(s) or other entities responsible for maintaining the pool area;

DEFENDANT O, P, & Q, the person(s), firm(s), corporation(s) or other entities responsible for inspecting the pool area;

DEFENDANT R, S, &T, the person(s), firm(s), corporation(s) or other entities responsible for repairing the pool area;

DEFENDANT U, V, & W, the person(s), firm(s), corporation(s) or other entities responsible for reporting unsafe conditions in the pool area;

DEFENDANT X, Y, & Z, the person(s), firm(s), corporation(s) or other entities responsible for security of the pool area;

DEFENDANT AA, BB, & CC, the person(s), firm(s), corporation(s) or other entities responsible for the condition of the pool gates;

DEFENDANT DD, EE, & FF, the person(s), firm(s), corporation(s) or other entities responsible for maintaining the pool gates;

DEFENDANT GG, HH, & II, the person(s), firm(s), corporation(s) or other entities responsible for inspecting the pool gates;

DEFENDANT JJ, KK, & LL, the person(s), firm(s), corporation(s) or other entities responsible for repairing the pool gates;

DEFENDANT MM, NN, & OO, the person(s), firm(s), corporation(s) or other entities responsible for reporting unsafe conditions of the pool gates;

DEFENDANT PP, QQ, & RR, the person(s), firm(s), corporation(s) or other entities responsible for security of the pool gates;

DEFENDANT SS, TT, & UU, the person(s), firm(s), corporation(s) or other entities responsible for the hiring, training, education, and/or supervision of the personnel responsible for the inspection and/or care and/or maintenance and/or repair of the pool area;

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DEFENDANT VV, WW, & XX, the person(s), firm(s), corporation(s) or other entities responsible for the development and/or implementation of policies, procedures, protocols, rules, regulations and /or other guidelines in effect at The Park at Buckingham Apartment Homes;

Plaintiff avers that the identity of the fictitious party defendants herein is otherwise unknown to plaintiff at this time or, if their names are known to plaintiff, their identity as proper party defendants is not known to plaintiff at this time, and their true names will be substituted by amendment when the aforesaid is ascertained.

DEFENDANTS.

COMPLAINT

PARTIES

1. Plaintiff, Naomi Kidimbu, (hereinafter “Naomi”) is a resident of Jefferson County,

Alabama, over the age of nineteen years, and is the mother of Rebecca Mayela, deceased,

(hereinafter “Rebecca”).

2. The Defendant, Goff Capital Partners, is a Delaware limited liability corporation, with its

primary place of business in Texas. It has a legal interest in The Park at Buckingham

Apartment Homes and was doing business in Alabama on the date of Rebecca’s death.

3. The Habitat Company, LLC, and its affiliate, The Habitat Company of Alabama, LLC, are

Illinois limited liability corporations with their primary places of business in Illinois. They

have a legal interest in The Park at Buckingham Apartment Homes and were doing

business in Alabama on the date of Rebecca’s death.

4. Crescent Real Estate Holdings, LLC is a Delaware corporation with its primary place of

business in Texas. It has a legal interest in The Park at Buckingham Apartment Homes

and was doing business in Alabama on the date of Rebecca’s death.

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5. Blue Rock Partners, LLC, is a Florida corporation with its primary place of business in

Florida. It has a legal interest in The Park at Buckingham Apartment Homes and was

doing business in Alabama on the date of Rebecca’s death.

6. Boulder Birmingham, LLC, is a Delaware corporation with its primary place of business

in Florida. It has a legal interest in The Park at Buckingham Apartment Homes and was

doing business in Alabama on the date of Rebecca’s death.

7. Riley Security, LLC, is an Alabama corporation with its primary place of business in

Elkmont, Alabama. It provided security services and security personnel to The Park at

Buckingham Apartment Homes prior to and at the time of Rebecca’s death.

8. Justin Brown, is an Alabama resident who was acting in the line and scope of his

employment as the Manager of the Park at Buckingham on the date of Rebecca’s death.

FACTS

9. On Saturday, September 17, 2016, in the early morning, Rebecca, a severely disabled,

eight-year-old little girl, wandered out of her home while her family slept. Rebecca and her

family were residents of The Park at Buckingham, (hereinafter “Buckingham”) an

apartment community in Homewood, Alabama.

10. After leaving her apartment, Rebecca walked toward the small pool across the parking lot

and just a few hundred feet away from her front door. (See Photo No. 1) At the time, the

pool had been closed for the season and its gates should have been locked and secured so

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that no one could gain entry.

11. Rebecca gained access to the pool through a gate which was in a terrible state of disrepair,

with no adequate means to be locked. In fact, the gate Rebecca entered violated every

standard of care and pool safety regulation in America. It was basically no gate at all. There

was no operable self-closing, positive self-latching mechanism. (Photo No. 2) The gate’s

hinges were broken (Photo No. 3) and the gate was held in place at the top by a chain.

(Photos Nos. 4-5) The lower part of the gate was not secured at all. Anyone, including an

innocent child, could simply push the bottom of the gate, create a wide opening, and gain

entry. (Photo 6) This is how Rebecca entered the pool area.

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1

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12. Once past the gate (a trap for the unwary child), Rebecca removed all her clothes and placed

them on a chair, (Photos 7- Evidence Bag and Photo 8 - Clothes) just as she would do

before taking a bath at home. She loved to take baths, but she had never in her short life

been in a pool or any other body of water. Rebecca’s family believes it likely that Rebecca

thought the pool to be little more than a big bathtub. Tragically, Rebecca then entered the

pool.

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4

6

5

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13. At approximately 7:30 AM, a resident of Buckingham saw Rebecca’s body floating at the

bottom of the pool and called 911.

14. Emergency personnel from Homewood Fire and Rescue arrived at the Buckingham pool

at 7:39 AM. They saw Rebecca and immediately removed her from the pool. Rebecca was

cold. She was unresponsive. Her pupils were fixed and dilated. Her first rhythm strip

showed asystole. At 7:41 AM, rescue personnel initiated CPR, suctioned froth from her

nose and mouth, and established an airway to give Rebecca oxygen. For approximately 7

minutes, EMTs continued Advanced Life Support measures without a response. At

approximately 7:49 AM, the EMTs were ordered to stop their efforts to save Rebecca and

she was pronounced dead. Rebecca’s lifeless body was turned over to Homewood Police

and the Jefferson County Coroner.

15. Deputy Coroner Phillip Russell arrived to conduct the scene investigation at 8:52 AM. He

did initial inquiries to gather information from the police officers on the scene and made

general observations about Rebecca’s body and the scene. He fully documented the scene

with photographs. Deputy Coroner Russell also conducted a detailed investigation into

Rebecca’s means of access to the pool. His report sets out as follows:

The swimming pool at the apartments (The Park of Buckingham Apartments) is

approx. 40 feet by 22 feet with the s[h]allow end being 3 ft. 6 inches and the deep

end being 6 ft. 6 inches. The swimming pool has a metal (wrought iron fencing)

around the pool which is approx. 50 inches high. The wrought iron fencing has

three gates which according to the apartment security guards are locked with a

pad lock and chain every evening. The wrought iron gate on the Southeast end of

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the fencing has the top hinge broken and held to the fencing post by a chain and

pad lock. This gate can be pushed opened at the bottom to gain access to the pool.

16. Deputy Coroner Russell documented the broken gate he described with multiple

photographs, including Photo Nos.2, 3, 4, 5, 6 and Photo 9 below.

17. Rebecca’s body was transported to Cooper Green Hospital where an autopsy was

performed by Gregory Davis, M.D. Dr. Davis concluded that the Cause of Rebecca’s

Death was drowning and the Manner of Death was accidental. He found no visible signs

of disease or injury which was consistent with drowning. Rebecca’s toxicology results

showed no drugs or alcohol.

18. The Homewood Police Department investigated Rebecca’s drowning and determined it to

be accidental. No fault was attributed to Rebecca’s family by the police.

19. The pool in which Rebecca drowned was in a public area with an unattended, uncovered

pool that was accessible to tenants, including youth and “at risk” children like Rebecca.

20. The fencing and gates surrounding the pool in which Rebecca drowned were in a total

state of disrepair, such that they could easily be penetrated and entered by children

playing in the area or anyone else who wanted to enter the pool area.

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21. The dangerous conditions in the fence and gates were known or should have been known

to the Defendants. They had persisted for years and were easily discoverable by any of

the Defendants’ employees, agents or servants through simple observation and inspection

of the gates. This is particularly true for the employee, agent or servant who closed the

gate on the last occasion prior to Rebecca’s death. Failure to secure and lock this gate

was reckless and shameful conduct which allowed extremely dangerous conditions to

remain unchanged. These Defendants allowed this child to drown under dangerous

circumstances which they had created and which were easily and effectively remedied,

even on a temporary basis as they had done with other gates, using a 50-cent zip-tie

(Photo No. 10) or a secure lock and chain. (Photo Nos. 11 and 12)

22. Despite the presence of video surveillance equipment and signs indicating 24-hour

monitoring of the pool area, according to the Defendants, no video of Rebecca’s entry

and subsequent drowning exists.

23. Based on current information and belief, Defendant Goff purchased the former Highland

Peak Apartments, with its 583 units, in 2014 and renamed it The Part at Buckingham.

Simultaneously, Goff purchased six additional Birmingham metropolitan area apartment

complexes totaling approximately 3,600 apartments. Each of these complexes were

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renamed. They became The Park at Callington, The Park at Carlyle, The Park at

Wakefield, The Park at Wellington, The Park at Deerfield, and The Park at Hoover.

24. In October of 2015, Naomi leased an apartment in The Park at Buckingham for herself

and her four children. The lease Naomi signed identified the Owner as “Boulder

Birmingham, LLC” and the entity designated to act on the Owner’s behalf as “Blue Rock

Partners, LLC”. Riley Security, LLC, was chosen to provide security services to the

apartment complex.

25. In November of 2015, Goff Capital Partners selected The Habitat Company as property

managers for the seven “Park” complexes, including the Park at Buckingham.

26. Each of these complexes has one or more pools and these Defendants have years of

experience in operating and maintaining pools for their residents. They use the presence

of pools to entice tenants to rent apartments and they go to great lengths to advertise the

scope of their knowledge about and inspection of these pools from a safety perspective.

(No. 13 - http://www.bluerockpartnersllc.com/)

The periodic inspections the Defendants touted on their website were performed at

Buckingham’s pool and the deplorable conditions which caused Rebecca’s death were

seen and negligently allowed to continue or these inspections never took place. Either

We have rigorous inspections of our properties weekly, monthly & quarterly all of which are conducted by our managers, our VP's as well as our owner.We inspect everything…

to how the pool & club house bathrooms look and smell.

Reuven Oded

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way, this is little more than a callous “bait and switch” tactic which cost an innocent

child’s life.

27. The Defendants also knew they were required to notify the Jefferson County Department

of Health annually so their pools could be inspected. Despite this knowledge and

previous experience, according to Jefferson County Health Department Records, the last

time the pool Rebecca drowned in was inspected by them was in June of 2013, when it

had a different name, ownership and management. (No. 14 - Screenshot)

28. The Defendants well knew that these public pools present a very real risk of drowning,

especially to children. Rebecca was at even greater risk because her severe disability

prevented her from appreciating and understanding the danger presented by the pool. It is

for this reason that the Defendants’ failure to provide a safe and effective barrier around

the pool is so egregious. Once inside the ineffective barriers provided at this pool,

Rebecca would never have realized that her life was about to be taken as she entered the

shallow end, just as she did in her own bathtub.

29. The named defendants, who had a legal interest in The Park at Buckingham, as well as Riley

Security, and the fictitious defendants described hereinabove, acting vicariously by and

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through their agents, servants and employees, as well as independently in their capacity as

the apartment owner and/or operator and/or manager, undertook to provide a community

pool for their residents. At the time, each of them had legal duties as follows:

a) To provide a reasonably safe, code compliant pool for tenants with an enclosure and gates

which should and likely would have prevented Rebecca from accessing the pool area.

The Jefferson County Health Department Regulations for pool fences and enclosures

have been in force since 1988. The fence and gate enclosing the pool in which Rebecca

drowned did not meet even one of the six regulations below.

8.13 Fence and Enclosures

All swimming pools which are located outdoors shall be protected by a fence, wall, building or other enclosure or any combination thereof which completely encloses the swimming pool area such that all of the following conditions are complied with:

8.13.1 Constructed so as to afford no external handholds or footholds.

8.13.2 Constructed of materials which are impenetrable by children under the age of three (3) years/

8.13.3 A four (4) feet minimum height is provided entirely around the swimming pool.

8.13.4 The horizontal space between vertical members of the enclosure shall not exceed two (2) inches.

8.13.5 The height of any opening under the bottom of the enclosure shall not exceed two (2) inches.

8.13.6 All gates and doors shall be equipped with self-closing and positive self-latching closure mechanisms which shall be located at a height at least three (3) feet and shall be equipped with permanent locking devices.

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b) To provide training, education, and/or supervision of their personnel who patrol,

inspect, maintain and operate a community pool so that dangerous conditions would be

seen and remedied and Rebecca would not have been able to access the pool area.

c) To provide for effectively maintaining, repairing, inspecting, securing, and operating

a community pool by having periodic inspections, close monitoring of conditions and

requiring remedial actions which would have prevented Rebecca from accessing the

pool area.

d) To develop and/or implement policies, procedures and/or protocols to ensure a safe and

code compliant pool with effective barriers that would have prevented Rebecca from

accessing the pool area.

COUNT I

The Alabama Wrongful Death Act

30. Plaintiff adopts and realleges the allegations contained in paragraphs 1 through 29

hereinabove.

31. The drowning of an innocent child in a public pool is a well-known and, unfortunately,

an all too frequent event. Countless safety organizations and other industry associations

spend enormous amounts of time and effort to educate apartment complex owners and

operators in the prevention of these events. These defendants were well aware of the

hazards pools present to children, as well as the regulations, laws and reasonably

affordable methods and strategies designed to prevent injury and death of innocent

children.

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32. Plaintiff alleges that the named and fictitiously described A-XX defendants were negligent

in one or more of the following respects:

a) Defendants owned, operated, and managed The Park at Buckingham Apartments which had a dangerous community pool, enclosed by a fence and gate which did not meet Jefferson County Health Department Regulations and violated the nationally accepted standard of care for any public pool in America.

b) Defendants owned and operated Buckingham’s dangerous community pool, with a gate in such a total state of disrepair that the pool was easily accessible to tenants and “at risk” children like Rebecca.

c) Defendants failed to provide a reasonably safe pool for their residents, including innocent children.

d) Defendants failed to take steps to assure the pool fence and its gate were in a condition which was reasonably safe for their residents, including innocent children.

e) Defendants failed to properly maintain the fence and gates of the pool in a reasonably safe, code compliant condition.

f) Defendants failed to inspect and maintain the pool and its surrounding fence and gates so they would be reasonably safe for their residents, including innocent children.

g) Defendants failed to equip the pool with a lifeline located at the point where the pool depth increases.

h) Defendants failed to reasonably and effectively warn of the dangers posed by the pool to residents, particularly children.

i) Failing to provide sufficient and adequately trained personnel to ensure that the pool met all safety regulations and effectively protected their residents, including children.

j) Failing to follow policies, procedures, protocols, rules, regulations and/or other guidelines relating to a properly maintained fence and gate for an apartment pool.

k) Failing to adopt, implement, and/or follow policies, procedures, protocols, rules, regulations and/or other guidelines relating to pool safety for “at risk”

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children like Rebecca.

l) Undertaking to inspect, maintain, and repair the pool gate and callously allowing it to remain in a dangerous, defective, and deplorably unsafe condition.

m) Failing to have the pool inspected by the Jefferson County Health Department, as well as allowing the fence and gates at Buckingham and other complexes to remain in a dangerous condition for residents, particularly children.

n) Following Jefferson County Health Department Inspections at Buckingham and its other “Park” complexes which revealed the presence of critical conditions in its pools, including defective gates and failure to have self-closing and positive self-latching mechanisms, these Defendants received actual notice through written citations that remedial measures were required to reopen their pools. These Defendants consciously and deliberately failed to repair or lock the gate which allowed Rebecca to enter the pool and, in so doing, cost this innocent child her life.

o) After closing the pool for the season, the Defendants failed to lock the gate and secure the pool from entry. They knew how to accomplish this safety measure as demonstrated below. (Photo No. 15) Failure to take these same measures at Buckingham was a callous and reckless disregard for the children who were exposed to this danger.

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33. As a proximate consequence of the above described negligent conduct of the Defendants,

which combined and concurred to create a death trap for an unwary child, Rebecca

drowned. Her death was easily avoidable through a number of well-known and readily

available methods, including a zip-tie or chain for temporarily securing the gate, as well as

replacing the self-closing and positive self-latching mechanism required for this pool. At

the trial of this case under Alabama Law, the jury will be asked to consider the Defendants’

total disregard for human life, their outrageous failure to act after actual notice of

deficiencies in other swimming pools at their apartment complexes and the ease with which

Rebecca’s death could have been avoided. These are factors for the jury's consideration in

determining the “enormity of the wrong” which took Rebecca’s life, including assessing

the finality of death, the propriety of punishing the wrongdoer or wrongdoers, whether the

death could have been prevented, and, if so, the lack of difficulty that would have been

involved in preventing the death, as well as the public's interest in deterring others from

committing the same or similar wrongful conduct.

34. Plaintiff avers that the negligence, and other tortious conduct of the named and fictitious

defendants, identified as Defendants A-XX, combined and concurred to cause Rebecca’s

death. All Defendants, named and fictitious, are separately and severally responsible

under the law, including for their own independent acts of negligence and their vicarious

responsibility for the acts of their agents, servants, and employees.

WHEREFORE, PREMISES CONSIDERED, Plaintiff seeks punitive damages for Rebecca’s

death, the only relief allowed under the Wrongful Death Act of Alabama, for the purpose of

preserving human life, to punish the defendants and, more importantly, to serve as a deterrent to

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others to prevent similar wrongs in the future. In accordance with the law of this State, Plaintiff

asks that damages be awarded by the jury in an amount that reflects the sanctity of human life

and the necessity of preventing acts or omissions which put human life in danger, especially our

children. Plaintiff demands judgment against the defendants in the amount of Thirty Million

Dollars ($30,000,000.00).

s/ Don McKenna___________ Don McKenna MCK045 D. Leon Ashford ASH001 Attorneys for Plaintiff HARE, WYNN, NEWELL & NEWTON, LLP 2025 Third Avenue, North, STE 800 Birmingham, AL 35203 Telephone: (205) 328-5330 Fax: (205) 324-2165 E-Mail: don@hwnn.com

leon@hwnn.com

PLAINTIFF DEMANDS TRIAL BY STRUCK JURY IN THIS CAUSE.

s/ Don McKenna______________ OF COUNSEL

Plaintiff's Address:

Homewood, Alabama

Serve Defendants by Certified Mail:

GOFF CAPITAL, LLC C/O National Registered Agents, Inc. 160 Greentree Drive Suite 101 Dover, Delaware 19904

THE HABITAT COMPANY, LLC C/O Stephen F. Galler 350 West Hubbard Street Suite 500 Chicago, Illinois 60654

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THE HABITAT COMPANY OF ALABAMA, LLC C/O CT Corporation System 2 North Jackson Street Suite 605 Montgomery, Alabama 36104

CRESCENT REAL ESTATE HOLDINGS, LLC C/O Corporation Service Company 2711 Centerville Road Suite 400 Wilmington, Delaware 19808

BLUE ROCK PARTNERS, LLC C/O CSC Lawyers Incorporating Service, Inc. 150 South Perry Street Montgomery, Alabama 36104

BOULDER BIRMINGHAM, LLC C/O Capitol Corporate Services, Inc. 150 South Perry Street Montgomery, Alabama 36104

RILEY SECURITY, LLC C/O Jason A. White 27583 Grant Drive Elkmont, Alabama 35620

JUSTIN BROWN C/O The Park at Buckingham 114 Aspen Circle Homewood, Alabama 35209

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