OPEN RECORDS ACT
(Injunction)
134. Plaintiff adopts and restates the previous paragraphs.
135. The injury to the Plaintiff is capable of repeating and therefore an injunction to order Defendants to cease acting in a manner which violates the State of Tennessee access to the records of government and private agents whom accept the functional equivalent of a governmental agency.
136. Plaintiff seeks temporary and permanent injunctions to suspend the City of Knoxville contract with Defendant Redflex, and between Defendant Redflex and Defendant Photonotice until the contract is revised in a manner consistent with the Tennessee Open Records Act.
OUTRAGEOUS CONDUCT / INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
137. Plaintiff re-alleges above paragraphs as if fully set forth, and alleges the following:
138. Tennessee state law allows for a claim of intentional infliction of emotional distress, the standard of such a claim being set forth in Miller v. Willbanks, 8 S.W.3d 607 (Tenn., 1999). The Tennessee Supreme Court in Miller set forth the standard for intentional infliction of emotional distress as follows, "the tort typically exists when the recitation of the facts [of a commission of the tort] to an average member of the community would arouse his resentment against the actor, and lead him to exclaim ¿Outrageous¿!" Id. at 616. The Court in Miller also sets forth the types of distress that may be remedied, which include: "fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea." Id. at 616.
139. Plaintiff alleges that Defendant¿s conduct meets the exacting standard of intent set forth in Miller because the conduct as it relates to Plaintiff would cause the average member of the community to exclaim "Outrageous!"
140. Plaintiff suffered damages for harm to reputation in the community, humiliation, shame, embarrassment, anger, chagrin, disappointment, and worry.
141. Defendant¿s conduct rises to the level of intent set forth in Miller, Plaintiff seeks an award of $1,000,000.00 in compensatory damages and punitive damages in an amount to be determined at trial.
NEGLIGENCE/GROSS NEGLIGENCE
142. Plaintiff re-alleges above paragraphs as if fully set forth, and alleges the following:
143. Defendant s City of Knoxville, Mayor, and City Council, did negligently, or with gross negligence, fail to properly supervise or train Defendant Sullivan.
144. Defendants City of Knoxville, Mayor, and City Council, have a duty to properly supervise and train law enforcement officers to protect the public from uncontrolled abuse of power and are negligent or grossly negligent for failing to properly supervise employees who act in a manner inconsistent with Constitutional provisions.
145. Defendant Sullivan did negligently, or with gross negligence, cause a citation to be issued and Plaintiff liable for a charge the defendants knew or should have known should not be filed.
146. Defendant Redflex knew or should have known that intersections fail to comply with the standards of 23 CFR 655 and failed to take any step to inform the City of Knoxville.
147. Defendant Redflex benefitted financially from the failure to inform the public or the City of Knoxville of the violations of 23 CFR 655.
148. Defendant Redflex, by contracting to assist the City of Knoxville in the establishment of a photo enforcement program, and actually assisting the City of Knoxville, accepted a duty to the public to protect the public from the potential abuse that a photo citation system is subject, and Defendant Redflex failed in the duty to prevent abuse of the photo citation system.
149. Plaintiff claims damages in the unpaid $50.00 fine, and unpaid administrative cost of $67.50, additional damages in the amount of $1,000,000.00, in compensatory damages.
150. Plaintiff claims that the Defendants must disgorge themselves of the obtained funds and return the money to the parties from whom Defendants using unconstitutional practices did seize the money from, all members of the Class, that each member of the class individually receive $1,000,000.00 in damages for the negligent conversion of funds.
CIVIL CONSPIRACY
151. Plaintiff re-alleges above paragraphs as if fully set forth, and alleges the following:
152. That in committing the acts alleged herein, Defendants, acting in concert, committed the act of civil conspiracy, under state law and 42 U.S.C. § 1985, by agreeing to act together to harm the Plaintiff, and other members of the public, each acting for the purpose of promoting or facilitating the commission of harm against Plaintiff, agreeing that one or more will engage in these acts.
153. That Defendant Sullivan has a duty to Plaintiff to reasonably enforce the statutes of the State of Tennessee.
154. That Defendants City of Knoxville and/or Defendant Redflex did actually act in concert to harm the Plaintiff for the reasons set forth above.
155. Plaintiff seeks an award of $1,000,000.00 in compensatory damages.
156. That punitive damages are appropriate in an amount to be calculated.
157. That defendants are jointly and severally liable for the damages.
VICARIOUS LIABILITY
158. Defendant Sullivan, employee of Knoxville City Police Department, under the supervision and control of the department, acting with color of office, in furtherance of the duty or duties assigned to him.
159. Defendant Mayor Haslam, is responsible for the actions of its agents which those agents took in it¿s behalf.
160. Defendant City of Knoxville is vicariously liable for the actions and inactions by employees which contributed, directly or indirectly, to the harm suffered, which occurred with color of office, while individual defendant was on duty with the Knoxville City Police Department.
161. Defendant Mayor Haslam, and Defendant City of Knoxville, are jointly and severally liable for the actions of their agent which occur with color of office. Defendant Mayor Haslam and Defendant City of Knoxville is vicariously liable for the actions and inactions by employees which contributed, directly or indirectly, to the harm suffered, which occurred with color of office, while Defendant Sullivan was on duty with the City of Knoxville Police Department.
162. Defendants are liable, under the Governmental Tort Liability Act, for the negligent supervision and/or the negligent or grossly negligent training of their employees, and for the conduct of their agents.
163. Defendants are liable under the federal statutes for the conduct of their agents.
WHEREFORE, Plaintiff prays:
That service of process be issued and that Defendants be ordered to appear and answer this complaint.
That Plaintiff elect her remedy where appropriate.
That a jury of 12 hear this matter.
That a temporary injunction and a permanent injunction be granted against Defendant City of Knoxville to bar enforcement of Knoxville Code Sec. 17-210, by any officer of the law until such time as the Constitutional infirmities of the ordinance are removed.
That a temporary and a permanent injunction be granted against Defendant City of Knoxville, Defendant Redflex, and Defendant Photonotice until the contract and conduct of the parties conforms to the requirements of the Tennessee Open Records Act.
That the contract between Defendant City of Knoxville and Defendant Redflex be declared ultra vires and therefore void and that Defendant Redflex abandon all efforts to collect any sum due, and to disgorge itself of funds gained by the enforcement of the Redflex Contract.
That Plaintiff be reimbursed for costs, expenses, and attorney fees.
That Plaintiff be granted such further and general relief to which she is entitled.
THIS IS THE FIRST APPLICATION FOR EXTRAORDINARY PROCESS IN THIS CAUSE
RESPECTFULLY SUBMITTED,
s/David B. Hamilton
DAVID B. HAMILTON (020783)
Attorney for Plaintiff
P.O. Box 12891
1810 Merchant Drive, Ste. 1
Knoxville, TN 37912
865.219.9250 / 865.219.7982 fax
dbh@dbhamilton.com
