Suit by Cheryl Fuller vs. City of DubuqueIN THE IOWA DISTRICT COURT IN AND FOR DUBUQUE COUNTY
CHERYL FULLER,
No. 01311
Plaintiff,
vs.
TINA MEDEL PIMENTEL and
The CITY OF DUBUQUE,
Defendants.
ORIGINAL NOTICE
TO THE ABOVE-NAMED DEFENDANTS:
cD
N
Mag
YOU ARE HEREBY NOTIFIED that there is now on file in the office of the Clerk of the
above Court, a Petition in the above -entitled action, a copy of which Petition is attached hereto.
The Plaintiff's attorney is Jeffrey L. Walters of Clemens, Walters, Conlon & Meyer, L.L.P. 2080
Southpark Court - Dubuque, Iowa 52003 - Telephone 563/582-2926 — Facsimile 563/582-2998.
YOU ARE FURTHER NOTIFIED that you must serve a Motion or Answer within twenty
(20) days after service of this Original Notice upon you, and, within a reasonable time thereafter,
file your Motion or Answer, with the Clerk of Court for Dubuque County, at the County
Courthouse in Dubuque, Iowa. If you do not, judgment by default may be rendered against you
for the relief demanded in the Petition.
If assistance of auxiliary aids or services is required to participate in court due to a disability such as
hearing impaired, call the ADA Coordinator at (319) 833-3332. If you need dual party telephone relay
services, call Relay Iowa TTY at 1-800-735-2942.
(SEAL)
CLERK OF THE ABOVE COURT
Dubuque County Courthouse
Dubuque, Iowa
NOTE: YOU ARE ADVISED TO SEEK LEGAL ADVICE AT ONCE TO PROTECT YOUR INTERESTS.
STATE OF IOWA JUDICIARY
Case Title FULLER V MEDEL PIMENTAL ETAL
Case No. LACV102006
County Dubuque
THIS CASE HAS BEEN FILED IN A COUNTY THAT USES ELECTRONIC FILING.
Therefore, unless the attached Petition and Original Notice contains a hearing date for your appearance, or unless you obtain an
exemption from the court, you must file your Appearance and Answer electronically.
You must register through the Iowa Judicial Branch website at http://www.iowacourts.state.ia.us/Efile and obtain a log in and
password for the purposes of filing and viewing documents on your case and of receiving service and notices from the court.
FOR GENERAL RULES AND INFORMATION ON ELECTRONIC FILING, REFER TO THE IOWA COURT RULES CHAPTER
16 PERTAINING TO THE USE OF THE ELECTRONIC DOCUMENT MANAGEMENT SYSTEM:
http://wwwiowacourts,state.ia.us/Efile
FOR COURT RULES ON PROTECTION OF PERSONAL PRIVACY IN COURT FILINGS, REFER TO DIVISION VI OF IOWA
COURT RULES CHAPTER 16: http://www.iowacourts.state.ia.us/Efile
Scheduled Hearing:
If you require the assistance of auxiliary aids or services to participate in court because of a disability, immediately call your district
ADA coordinator at (319) 833-3332 . (If you are hearing impaired, call Relay Iowa TTY at 1-800-735-2942.)
Date Issued 09/30/2014 04:15:01 PM
District Clerk of Dubuque
/s/ Kati Ernst
County
E -FILED 2014 SEP 30 11:49 AM DUBUQUE CLERK OF DISTRICT COURT
IN THE IOWA DISTRICT COURT IN AND FOR DUBUQUE COUNTY
CHERYL FULLER,
VS,
No,
TINA MEDEA, RIMENTEL and
The CITY OF DUBUQUE,
De.fendants,
PETITION AT LAW AND JURY DEMAND
COMES NOW the Plaintiff, Cheryl Fuller, by and through the undersigned attorney,
and for her cause of action against Defendants, Tina Medel Pimentel and the City of
Dubuque, and states the following:
PARTIES
1. Plaintiff, Cheryl Fuller, (hereinafter "Cheryl Fuller") is a resident
Jackson County, Iowa.
Ma ci
oketa, in
2, Defendant, Tina Medel Pimentel (hereinafter "Tina Medel Pimentel"), was and is
at all times material hereto a resident of Dubuque County, Iowa,
3. Defendant, the City of Dubuque, is located in Dubuque County, Iowa.
JURISDICTIONAL FACTS
4. The damages herein exceed the jurisdictional requirements set forth in Section
602.6306(2) and 602,6405(1), The Code.
5. The jurisdiction and venue of Dubuque County District Court is proper pursuant
to Section 616,18, The Code.
6, All acts referred to herein occurred in Dubuque County, Lowe,
COUNT!
COMES- NOW the Plaintiff, Cheryl Fuller,by and through the undersigned attorney,
and for her cause of action against Defendant, Tina Medel Pimentel, and states the
following:
E -FILED 2014 SEP 30 11:49 AM DUBUQUE - CLERK OF DISTRICT COURT
7. Cheryl Fuller restates and. repleads Paragraphs 1 through 6 of said Petition as if fully
set forth herein.
Tina Medel Pimentel, is the owner of a rental property located at 1684 West 3rd
Street in Dubuque, Iowa, that is occupied by various tenants to whom Defendant
leases said real estate.
9. At approximately 6:00 p.m. on October 11, 2013, Cheryl Fuller was walking
eastbound on the sidewalk at Defendant Pimental's rental property located at 1684
West :3rd St., .Dubuque, Iowa, when her foot caught en the sidewalk slab that had a
vertical rise in excess of two [2) inches, causing her to fall.
10. As a result of raffling on the sidewalk, Cheryl Fuller received substantial bodily
injuries and was in severe pain, necessitating substantial and, continued medical
care.
11. The City of Dubuque has established standards for defective sidewalks that vertical
separation equal to or no greater than 3A, of an inch creates an affirmative duty upon
the property owner, Tina Medel Pimental, to initiate immediate repair or post
sufficient warning to pedestrians of the dangerous condition.
12. Defendant, Tina Medel Pimentel was negligent as the owner of the rental real estate
located at 1684 West 3rd St., Dubuque, Iowa, in one or more of the following
particulars:
a. Failing to maintain the sidewalk along West 3rd Street, in a safe condition;
h. Failing to properly inspect the sidewalk, wherein the Plaintiff was caused
to fall is a result of the uneven surface;
c, Failing to maintain the premises owned by the Defendant in good and safe
condition for the Plaintiff and others;
d. Failing otherwise to comply with the applicable laws and regulations of the
State of Iowa and City of Dubuque, including maintaining or repairing the
sidewalk such there was not a vertical rise in excess of Y4 of an inch, or
alternatively, to post sufficient warning to pedestrians of this dangerous
condition,
E -FILED 2014 SEP 30 11:49 AM DUBUQUE - CLERK OF DISTRICT COURT
e. Failing to warn Plaintiff or other similes situation situated pedestrians of
the danger associated with the excessive vertical rise in the sidewalk on her
property;
f. Otherwise failing to exercise the degree of care required under the
circumstances; and,
g. Otherwise being negligent,.
13. The negligence of Defendant Tina Medel Pirnentel is the direct and proximate cause
of -the Plaintiffs injuries.
14. Plaintiff, Cheryl Fuller has incurred damages and loss as a result of the negligence
acts and omissions of Defendant Tina Male! Pimentel, and requests fair, full, and
reasonable compensation in an amount in excess of the jurisdictional minimum of
this Court for damages, including but not limited to: past medical expenses; future
medical expenses; out of pocket expenses; past pain and suffering; future pain and
suffering; past loss of earning; past loss of full use of body; and, future loss of full use
of body.
WHEREFORE, Plaintiff Cheryl Fuller, prays for judgment against Defendant Tine
Medel Pimentel, in such sum as will fully, fairly, and adequately compensate her for
damages and loss, plus interest and costs as provided by law; and for such other relief as
the evidence shall show she is entitled to,
COUNT 11
COMES NOW the Plaintiff, Cheryl Fuller, by and through the undersigned attorney,
and for her cause of action against Defendant, the City of Dubuque, and states the following:
15. Cheryl Fuller restates and repleads Paragraphs 1 through 14 of said Petition as if
fully. set forth herein,
16. lowa Code §364.12 creates an affirmative duty upon the Defendant, the City of
Dubuque, to keep all sidewalks in repair and free from nuisance,
17, The City of Dubuque has assumed its Ownobligation and established a standard of
care under 'Dubuque City Ordinance, Title 10-1-2-C, which requires that whenever
the city manager determines that the conditions of any sidewalk constitute a safety
E -FILED 2014 SEP 30 11:49 AM DUBUQUE CLERK OF DISTRICT COURT
hazard or public nuisance, the city manager shall serve notice by certified mail on
the abutting property owner, as shown by the records of the county auditor,
requiring the abutting property owner to replace, repair or reconstruct the
sidewalk.
18. Defendant, City of Dubuque was negligent in failing to ensure the sidewalks located
at 1684 West 3rd St., Dubuque, Iowa, were kept in repair and free from nuisance or
dangerous conditions, which caused the injuries to Plaintiff, in one or more of the
following particulars:
a, Failing to maintain the above sidewalk in a safe condition to insure that the
Plaintiff would not be caused to trip and fall;
b. Failing to properly inspect the sidewalk wherein the Plaintiff was caused
to fall as a result of the uneven surface;
c. Failing to serve by certified mail upon Defendant, Tina Med& Pimental, the
owner of the real estate located at 1684 West 3rd St., Dubuque, Iowa, of the
safety hazard caused by the condition of the sidewalk at said location,
including a vertical rise in excess of two (2) inches and otherwise failing to
require Defendant. Tina Medel Pimento!, replacing, repairing or
reconstructing the sidewalk so that no such hazard exists;
d. Failing otherwise to comply with the applicable laws and regulations of the
State of Iowa and Ci ty of Dubuque, including maintaining or repairing the
sidewalk such there was not a vertical rise in excess of .3/4 of an inch, or
alternatively, to post sufficient warning to pedestrians of this dangerous
condition;
e, Otherwise failing to exercise the degree of care required under the
circumstances;
f. Failing to warn Plaintiff or other similes situation situated pedestrians of
the danger associated vvith the excessive vertical rise in the sidewalk on her
property; and,
g. Otherwise being negligent,
E -FILED 2014 SEP 30 11:49 AM DUBUQUE - CLERK OF DISTRICT COURT
19, The negligence of Defendant, City of Dubuque, is the direct and proximate cause of
the Plaintiffs injuries.
20. Plaintiff, Cheryl Fuller, has incurred damages and loss as a result of the negligent
acts and omissions of Defendant, City of Dubuque, and requests fair, full and
reasonable compensation in an amount in excess of the jurisdictional minimum of
this Court for damages, including but not limited to: past medical expenses; future
medical expenses; out of pocket expenses; past pain and suffering; future pain and
suffering; past loss of earning; paid loss of full use of body; and, future loss of full
body.
WHEREFORE, Plaintiff Cheryl Fuller, prays for judgment against Defendant, City of
Dubuque, in such sum as will fully, fairly, and adequately compensate her for damages and.
loss, plus interest and costs as provided by law; and for such other relief as the evidence
shall show she is entitled to.
JURY DEMAND
COME NOW the Plaintiff, by and through the undersigned attorney, and hereby
demands a trial by jury on the above issues.
/s/ Jeffrey 1.„ Walters
CLEMENS, WALTERS, CONL N ' EYER,
2080 Southpark Court
Dubuque, IA 52003
Telephone: (5631 582-2926
Email: j;Ealters_PEwsanlaW.CQM
E -FILED 2014 SEP 30 11:49 AM DUBUQUE - CLERK OF DISTRICT COURT
VERIFICATION
I, Cheryl Fuller, being first duly sworn on oath, depose and state that I a.m the
Plaintiff named in the foregoing Petition; that I have read the foregoing Petition and
that all the statements and allegations contained therein are true and correct to the best
of my knowledge, information and belief.
STATE OF IOWA
COUNTY OF
- -
Cheryl Fu1 r, Plaintiff
SS:
On this day of L-1-4") " • • Z0_, before me, the undersigned
Notary Public., personally appeared Cheryl Fuller to me known to be the identical
person named in and who executed the foregoing instrument and acknowledged that
she executed the same as her voluntary act and deed.
LONNA ti-AUSSEti
COMMISSIOVI NUTY111
Commiscion
ire4 taa-Vki
NOTARY PUBLIC IN AND FOR SAID
COUNTY AND STATE