2/7/2020 1:06 PM

Velva L. Price
District Clerk
Travis County
D-1-GN-20-000772
CAUSE NO. D-1-GN-20-000772
_____________ Carrisa Stiles

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COREY MITCHELL ELMQUIST AND § IN THE DISTRICT COURT
JESSICA ANN ELMQUIST, §
INDIVIDUALLY, AND AS §

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REPRESENTATIVES OF THE ESTATE §
OF EMILIA MARIE ELMQUIST, §

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Plaintiffs §

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VS. § TRAVIS COUNTY, TEXAS
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BRASS MANAGEMENT LLC D/B/A §

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1ST STEP EARLY LEARNING CENTER §

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DENISE DENTON, AND CASSONDRA §
MANCUSO, §

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Defendants § 126TH
_______ JUDICIAL DISTRICT
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PLAINTIFFS’ ORIGINAL PETITION

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AND REQUEST FOR DISCLOSURE

COME NOW, COREY MITCHELL ELMQUIST AND JESSICA ANN ELMQUIST,

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INDIVIDUALLY, AND AS REPRESENTATIVES OF THE ESTATE OF EMILIA MARIE

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ELMQUIST, Plaintiffs in the above-entitled and numbered cause of action, and files this their

Plaintiffs’ Original Petition and Request for Disclosure complaining of BRASS MANAGEMENT
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LLC D/B/A 1ST STEP EARLY LEARNING CENTER (hereinafter referred to as “1ST Step”),
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DENISE DENTON, and CASSONDRA MANCUSO, Defendants, and would respectfully show the
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Court as follows:
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1.00 LEVEL OF DISCOVERY CONTROL PLAN

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Discovery is intended to be conducted under Level 3 of Rules 190.1 and 190.4 of the Texas
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Rules of Civil Procedure.

PLAINTIFFS’ ORIGINAL PETITION Page 1

 2.00 PARTIES

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2.01 Plaintiff Corey Mitchell Elmquist is a natural person and father of Decedent Emilia

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Marie Elmquist. Corey Mitchell Elmquist is a resident of Austin, Williamson County, Texas. The

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last 3 digits of Mr. Elmquist’s Texas driver’s license are 016 and the last 3 digits of his Social

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Security number are 593. Mr. Elmquist brings his claims both in his individual capacity and on

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behalf of the estate, Application For Determination of Heirship and Letters of Independent

Administration having been made in Williamson County, Texas.

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2.02 Plaintiff Jessica Ann Elmquist is a natural person and mother of Decedent Emilia

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Marie Elmquist. Jessica Ann Elmquist is a resident of Austin, Williamson County, Texas. The last

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3 digits of Mrs. Elmquist’s Texas driver’s license are 698 and the last 3 digits of her Social Security
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number are 712. Mrs. Elmquist brings her claims both in her individual capacity and on behalf of
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the estate, Application For Determination of Heirship and Letters of Independent Administration
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having been made in Williamson County, Texas.

2.03 Defendant BRASS MANAGEMENT LLC D/B/A 1ST STEP EARLY LEARNING
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CENTER is a limited liability company doing business in the state of Texas. The members of the
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limited liability company are Cassondra Mancuso and Brenda Sloan. Cassondra Mancuso resides at

807 Edgecliff Terrace, Apartment A, Austin, Texas 78704, and Brenda Sloan resides at 135
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Holmstrom Street, Hutto, Texas 78634. Brass Management LLC d/b/a 1st Step Early Learning
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Center may be served by serving its registered agent for service of process, Brenda Sloan, 401 FM
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685, Suite 104, Plugerville, TX 78660.

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2.04 Defendant DENISE DENTON is a natural person residing in Austin, Williamson

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County, Texas. Defendant Denise Denton may be served with process by serving her at her home
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located at 8716 Clearbrook Trail, Austin, Texas 78729 or wherever she may be found.

PLAINTIFFS’ ORIGINAL PETITION Page 2

 2.05 Defendant CASSONDRA MANCUSO is a natural person residing in Austin, Travis

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County, Texas. Defendant Cassondra Mancuso may be served with process by serving her at home

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located at 807 Edgecliff Terrace, Apartment A, Austin, Texas 78704 or wherever she may be found.

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3.00 JURISDICTION AND VENUE

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3.01 Plaintiffs prefer to have the jury determine the fair amount of compensation for

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Plaintiffs’ damages. It is early in the case to be assessing the full nature and scope of Plaintiffs’

injuries, and Plaintiffs place the decision regarding the amount of compensation to be awarded in the

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jury’s hands. Rule 47 of the Texas Rule of Civil Procedure, however, requires Plaintiffs to provide a

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statement regarding the amount of monetary relief sought. Accordingly, Plaintiffs state that

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monetary relief of over $1,000,000 each, in an amount to be determined by the jury, is being sought.
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3.02 Pursuant to §15.002 of the Texas Civil Practice & Remedies Code, venue is proper in
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Travis County as Defendant Cassondra Mancuso resides in Travis County, Texas.

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4.00 FACTUAL BACKGROUND

4.01. At all times material hereto, Defendant Brass Management LLC was doing business
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as 1st Step Early Learning Center located at 9112 Anderson Mill Road #B400, Austin, Texas 78729.
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1st Step Early Learning Center (“1st Step”) is a licensed child care center / child care
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4.02.

program facility. At the time of this incident in question, Denise Denton was the caregiver for
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Emilia Elmquist and Cassandra Mancuso was the director of the center / child care program facility.
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Decedent Emilia Elmquist was a baby enrolled at the center / facility.

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4.03. On or about March 15, 2018, five-month old Emilia Elmquist was placed in the care
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of Denise Denton by her father, Corey Elmquist, at approximately 10:35 a.m. Shortly after
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returning home to prepare for work, Mr. Elmquist received a phone call from 1st Step urging him to
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return to the center / facility immediately. Upon his arrival, he found Sheriff Deputies, Firefighters,

PLAINTIFFS’ ORIGINAL PETITION Page 3

 and EMS paramedics surrounding Emilia and performing CPR. According to records from the

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Jollyville Fire Department, fire crews did seven (7) minutes of compressions before EMS arrived on

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scene and took over. EMS continued with approximately 20 minutes of CPR before a pulse was

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obtained and Emilia was packaged into an ambulance. Emilia was transported to North Austin

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Medical Center where she arrived post cardiorespiratory arrest with a severe anoxic brain injury.

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Baby Emilia was admitted to the Pediatric Intensive Care Unit, where she remained intubated and on

life support until she died on March 18, 2018.

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4.04. Baby Emilia’s death was investigated by the Texas Department of Family Protective

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Services Child Care Licensing Division, as well as the Williamson County Sheriff’s Department.

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Facts stated in paragraphs 4.04 – 4.06 are based on information included in the Investigation Report
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issued by the Texas Department of Family Protective Services, Texas Health and Human Services
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Commission, Child Care Licensing Division.

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4.05. According to Defendant Denton, on the day in question, Emilia arrived at 1st Step at

approximately 10:30 a.m. At that time, Emilia appeared happy and showed no signs that anything
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was wrong or out of the ordinary. Denton placed Emilia in an orange Bumbo chair while she was on
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the floor and playing with a rattle. Around 10:50 a.m., Emilia started whining, so Denton took her

out of the Bumbo chair and began to heat a bottle. By 11:30 a.m., Defendant Denton was holding
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Emilia and trying to feed her, at which time her whining had progressed to crying. Emilia sucked a
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little of the milk and then began turning her head side-to-side refusing the bottle. After a diaper
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change, Denton placed Emilia in a playpen while propped-up on a Boppy pillow. Immediately
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thereafter, Emilia’s crying turned to screaming. Although Denton stated that general crying and
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screaming were not unusual for Emilia, Denton told investigators that on this occasion, Emilia’s
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screaming was “different” and “serious,” and that her behavior was “out of the ordinary.” Emilia

PLAINTIFFS’ ORIGINAL PETITION Page 4

 continued to shake her head from side-to-side and her screams got louder. Denton stated to

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investigators that Emilia appeared uncomfortable propped on the Boppy pillow in the crib.

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Nonetheless, Denton left Emilia in the crib and left to prepare lunch for other children. Emilia

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continued to scream, and according to Denton, her screaming stopped at approximately 12:00 noon.

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Denton did not investigate or check on Emilia until sometime after 12:05 p.m., at which time she

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noticed that Emilia looked “weird.” She picked Emilia up, and Baby Emilia was limp, grey in color,

and not breathing. Rather than issue immediate assistance, Denton laid Emilia back in the playpen

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and sought help from others.

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4.06. During the course of the investigation, Defendant Denton: stated to Department of

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Family Services Investigators that on the occasion in question she used the Boppy in the playpen
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even though she knew that a playpen should be empty when a child is sleeping in it; stated to
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Sheriff’s Deputies that she did not maintain a line of sight for Emilia at all times; stated to
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Department of Family Services Investigators that she did not check on Emilia and feels that she

should have done so; and stated to Department of Family Services Investigators that she wishes she
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had asked for help when Emilia was screeching. When the investigation was concluded, the
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Investigation Report issued by the Texas Department of Family Protective Services Child Care

Licensing Division noted the following violations of the Minimum Standards For Child-Care
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Centers published in Chapter 746, Title 40, Social Services & Assistance, Part 19, Dept. of Family
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and Protective Services:

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 By the caregiver’s own admittance to the police and to the Child Care Investigator,
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the caregiver placed the 5 month old victim on her back being propped up by a
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Boppy pillow. The caregiver/operation did not have permission by the victim’s
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parents to do this;

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  The caregiver also had the victim in the pack-n-play behind a half wall where the

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caregiver did not have visual contact of the victim;

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 When the caregiver noticed that the victim was unresponsive she did not immediately

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start CPR, she called for assistance and waited for the other operation staff to come

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into the room and had them start CPR.

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5.00 CAUSES OF ACTION – BRASS MANAGEMENT LLC D/B/A 1ST STEP
EARLY LEARNING CENTER

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Defendant 1st Step is vicariously liable for the damages proximately caused to

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5.01

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Plaintiffs by the conduct of its employees and/or caregiver Denise Denton and/or caregiver and

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director Cassondra Mancuso in that said employees and/or Defendants Denton and Mancuso were
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acting within the course and scope of their employment with Defendant 1st Step when that conduct
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occurred.
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5.02 At all times relevant to this cause of action the Defendant, acting by and through their
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employees, agents, and/or vice principals, had a duty to act reasonably and prudently as the operator
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of a childcare facility. The Defendant breached this duty, by failing to exercise the ordinary care a
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reasonable and prudent childcare facility would have done under the same or similar circumstances,
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by, among other things:

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a. Failing to implement adequate policies and protections to prevent accidents such

as the one made the basis of this suit;
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b. Failing to properly train its employees;

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c. Failing to properly monitor and/or supervise baby Elmquist;

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d. Failing to maintain a proper policy regarding the proper child care safety for
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babies while in cribs and playpens and/or while sleeping;

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e. Placing baby Elmquist on her back propped up on a Boppy pillow;

f. Placing baby Elmquist in a pack-n-play behind a half wall where the caregiver did

PLAINTIFFS’ ORIGINAL PETITION Page 6

 not have visual contact of a child of her age at all times;

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g. Failing to immediately start CPR when the caregiver noticed that baby Elmquist

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was unresponsive;

h. Not keeping proper watch over baby Elmquist; and

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i. Other acts of negligence.

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5.03 Negligence per se

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Defendant’s conduct amounts to violations of governmental regulations and/or statutes and

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constitutes negligence per se. Decedent and Plaintiffs are members of the class of persons said

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regulations and/or statutes were intended to protect.

5.04 Vicarious Liability

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Defendant 1st Step is vicariously liable for the acts and omissions of Denton and Mancuso
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under the doctrine of respondeat superior because 1st Step exercised control over the details of
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Denton’s and Mancuso’s work.

To the extent Defendant 1st Step may attempt to contend any other person or entity should
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bear responsibility in connection with the hiring and supervision of Denise Denton and/or Cassondra
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Mancuso, Plaintiffs would show that 1st Step exercised and retained the right to control over the
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work of all persons and entities performing the work at 1st Step, including without limitation, the
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work of Denise Denton and Cassondra Mancuso as performed, and such control extended to more
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than just the right to order the work to be performed or to inspect progress.
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Plaintiffs believe Denise Denton and Cassondra Mancuso acted under the direction and
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control of Defendant 1st Step at all relevant times herein. Plaintiff incorporates all prior paragraphs
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and causes of action by reference and incorporate those allegations against Defendants Denise

Denton and Cassondra Mancuso.

PLAINTIFFS’ ORIGINAL PETITION Page 7

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5.05 Causation

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The above described acts and/or omissions were singularly and severally the proximate cause

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of the occurrence in question and resulting injuries and damages sustained by Decedent and

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Plaintiffs.

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6.00 CAUSE OF ACTION AS TO DENISE DENTON

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6.01 At all times relevant to this incident, Defendant Denise Denton had a duty to act as a

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reasonable and prudent childcare caregiver would have acted under the same or similar

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circumstances. She breached this duty by, among other acts and/or omissions:
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a. Failing to follow a proper policy regarding the proper child care safety for babies
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while in cribs and playpens and/or while sleeping;
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b. Placing baby Elmquist on her back propped up on a Boppy pillow while

unattended;
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c. Placing baby Elmquist in a pack-n-play behind a half wall where the caregiver did
not have visual contact of a child of her age at all times;
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d. Failing to immediately start CPR when the caregiver noticed that baby Elmquist
was unresponsive;
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e. Not keeping proper watch over baby Elmquist;

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f. Failing to follow safe practices;

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g. Failing to properly monitor and/or supervise baby Elmquist;

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h. Other acts of negligence;

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6.02 Negligence per se

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Defendant’s conduct amounts to violations of governmental regulations and/or statutes and

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constitutes negligence per se. Decedent and Plaintiffs are members of the class of persons said

regulations and/or statutes were intended to protect.

PLAINTIFFS’ ORIGINAL PETITION Page 8

 6.03 Causation

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The above described acts and/or omissions were singularly and severally the proximate

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cause of the occurrence in question and resulting injuries and damages sustained by Decedent

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and Plaintiffs.

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7.00 CAUSE OF ACTION AS TO CASSONDRA MANCUSO

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7.01 At all times relevant to this incident, Defendant Cassondra Mancuso had a duty to act

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as a reasonable and prudent childcare caregiver and childcare facility administrator/operator/director

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would have acted under the same or similar circumstances. She breached this duty by, among other

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acts and/or omissions:

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a. Failing to conduct activity in a safe and reasonable manner, in that Defendant
failed to have adequate policies and procedures in place against employees acting
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in an unsafe and unreasonable manner, and failed to enforce such policies and
procedures if they did exist;
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b. Failing to properly supervise the daycare employees;

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c. Failing to properly train the daycare employees in the proper safety precautions
when laying an infant down in a playpen;
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d. Negligent supervision of the daycare employees;

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e. Failing to follow safe practices;

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f. Failing to properly monitor and/or supervise baby Elmquist;

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g. Failing to maintain a proper policy regarding the proper child care safety for
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babies while sleeping and/or while in a pack-n-play;

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h. Placing a child of this age propped up on a Boppy pillow while unattended;

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i. Failing to ensure pack-n-plays were not behind a half wall where a caregiver
could not have visual contact of a child at all times daycare;
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j. Failing to ensure that caregivers were properly trained and experienced such that
they would immediately start CPR when a caregiver noticed that a child such as
baby Elmquist was unresponsive;

PLAINTIFFS’ ORIGINAL PETITION Page 9

 k. Not keeping proper watch over baby Elmquist; and

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l. Other acts of negligence.

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7.02 Negligence per se

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Defendants’ conduct amounts to violations of governmental regulations and/or statutes

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and constitutes negligence per se. Plaintiffs are a member of the class of persons said regulations

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and/or statutes were intended to protect.

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7.03 Causation

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The above described acts and/or omissions were singularly and severally the proximate

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cause of the occurrence in question and resulting injuries and damages sustained by Decedent

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8.00 GROSS NEGLIGENCE
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As to Defendants 1st Step and Denton, Plaintiffs would further show that they are entitled to
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recover exemplary damages from Defendant under §41.001 et seq. of the Texas Civil Practice and

Remedies Code because there is clear and convincing evidence that the Defendants were grossly
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negligent in that:
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(a) Defendants’ conduct, when viewed objectively from the standpoint of the Defendants
at the time of its occurrence, involved an extreme degree of risk, considering the
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probability and magnitude of the potential harm to others; and

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(b) Defendants had actual, subjective awareness of the risk involved, but nevertheless
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proceeded with conscious indifference to the rights, safety and welfare of

Decedent and Plaintiffs.
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9.00 DAMAGES
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9.01 The negligence of the Defendants proximately caused the injuries to and subsequent
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death of Emilia Elmquist.

9.02 Plaintiffs Corey Mitchell Elmquist and Jessica Ann Elmquist, as co-personal

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 representatives of the Estate of Emilia Elmquist, assert claims to recover all damages recoverable by

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the estate of Emilia Elmquist pursuant to the Texas Wrongful Death and Survival statute, Tex. Civ.

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Prac. & Rem. Code § 71.001, et seq., and under Texas law, including but not limited to:

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a. The physical pain and suffering and mental anguish suffered by Emilia Elmquist
prior to her death;

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b. The medical expenses incurred to treat and care for Emilia Elmquist prior to her

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death;

b. The funeral and burial expenses associated with Emilia Elmquist’s death.

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9.03 Plaintiffs Corey Mitchell Elmquist and Jessica Ann Elmquist, as the father and

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mother of Emilia Elmquist, assert claims to recover all damages recoverable by them pursuant to

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Tex. Civ. Prac. & Rem. Code § 71.001, et seq., and under Texas law, including but not limited to:
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a. Past and future loss of companionship and society with their daughter Emilia
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Elmquist;
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b. Past and future mental anguish including the emotional pain, torment and
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suffering experienced due to the death of their daughter;

c. Past and future pecuniary loss resulting from the death of their daughter;
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d. The medical expenses incurred to treat and care for Emilia Elmquist prior to her
death; and
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e. The funeral and burial expenses associated with Emilia Elmquist’s death.
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10.00 REQUEST FOR DISCLOSURE

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Pursuant to TEX. R. CIV.P. 194, Defendants are requested to disclose within (50) days of
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service of this request, the information or material described in TEX. R. CIV. P. 194.2.
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Plaintiffs request that copies of responsive documents and other tangible items be produced
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by Defendants along with the written responses to this request, or if the responsive documents are
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voluminous, that the response state a reasonable time and place for the production of the documents,

pursuant to TEX. R. CIV. P. 194.4.

PLAINTIFFS’ ORIGINAL PETITION Page 11

 11.00 JURY TRIAL

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Plaintiffs respectfully request a jury trial in the above-entitled and numbered cause.

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12.00 PRAYER FOR RELIEF

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Plaintiffs pray that Defendants be cited to appear and answer herein; and that, upon final

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determination of these causes of action, Plaintiffs receive judgment of and from the Defendants for

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damages as pled herein, and all such other and further relief, at law or in equity, to which the

Plaintiffs may show themselves justly entitled:

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12.01 Damages as plead;

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12.02 Exemplary damages;

12.03 Costs of court; ct

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12.04 Prejudgment interest at the highest legal rate allowed by law;
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12.05 Interest on the judgment at the highest legal rate from the date of judgment until
collected; and
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12.06 Any and all such further relief in law and equity to which Plaintiffs may show
themselves justly entitled.
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Respectfully submitted,
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CRAIN BROGDON ROGERS, L.L.P.

___/s/ John J. Spillane______

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ROBERT D. CRAIN
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State Bar No. 00790525

JOHN J. SPILLANE
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State Bar No. 00788449

3400 Carlisle Street, Suite 200
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Dallas, Texas 75204

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Phone: (214) 522-9404

Facsimile: (214) 613-5101
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Email: rcrain@cbrlawfirm.com
Email: jspillane@cbrlawfirm.com
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ATTORNEYS FOR PLAINTIFFS

PLAINTIFFS’ ORIGINAL PETITION Page 12