Filed: 9/3/2019 10:49 AM

Dana DeBeauvoir
Travis County Clerk
C-1-PB-19-001720
C-1-PB-19-001720 Sophia Delacroix
CAUSE NO. _______________________

TONYA JONES AS INDEPENDENT § IN THE PROBATE COURT

ADMINISTRATOR FOR THE ESTATE §
OF NICOLE BURTON AND AS §
GUARDIAN FOR EUGENE BURTON, §
AND DAVID PASSMAN. §
Plaintiffs, §
§
V. § NUMBER 1
§
TEXAS GAS SERVICE COMPANY, A §
DIVISION OF ONE GAS, INC., ONE §
GAS, INC., H&T UTILITIES, INC., §
KALEB ADAMS AND KIMBERLY §
WESTFIELD § TRAVIS COUNTY, TEXAS
Defendants.

PLAINTIFFS’ ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

Comes now Tonya Jones as Independent Administrator for the Estate of Nicole Burton and

as Guardian for Eugene Burton, and David Passman, (Hereinafter “Plaintiffs”) complaining of

Texas Gas Service Company, (Hereinafter “TGS”), ONE Gas. Inc. (Hereinafter “ONE Gas”) H&T

Utilities, Inc., (Hereinafter “H&T”), Kaleb Adams (Hereinafter “Adams”) and Kimberly Westfield

(Hereinafter “Westfield) and for cause of action would respectfully show the court as follows:

I.
DISCOVERY CONTROL PLAN AND NOTICE OF RELATED CASE

Pursuant to Rule 190 of the Texas Rules of Civil Procedure, discovery will be conducted

under Level III. Plaintiffs seek monetary relief over $1,000,000.00 as the principal relief sought;

and seek additional relief.

II.
PARTIES

Plaintiff Tonya Jones is the sister of Nicole Burton and appears as the Independent

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Administrator of the Estate of Nicole Burton, Deceased. Tonya Jones also appears as the Guardian

for Eugene Burton, the father of Nicole Burton.

David Passman is an individual appearing on his own behalf. All of the above-referenced

parties are Plaintiffs residing in Travis County, Texas. As Plaintiffs herein, they may only be

contacted via the undersigned counsel.

TGS is a Defendant that is headquartered in Tulsa, Oklahoma and licensed to do business

in the State of Texas. TGS can be served with process and commanded to answer and appear herein

by service on its registered agent for service at National Registered Agents, Inc., 1999 Bryan St.,

Suite 900, Dallas, Texas 75201.

ONE Gas, Inc. is a Defendant that is headquartered in Tulsa, Oklahoma and licensed to do

business in the State of Texas. ONE Gas, Inc. can be served with process and commanded to

answer and appear herein by service on its registered agent for service at National Registered

Agents, Inc., 1999 Bryan St., Suite 900, Dallas, Texas 75201.

H&T Utilities, LC. is a Defendant that is headquartered in Elgin, Texas and licensed to do

business in the state of Texas. H&T Utilities, LC can be served with process and commanded to

answer and appear herein by service on its registered agent for service at James Reves, 16732

Albert Voelker Road, Elgin, Texas 78621, Elgin, Texas

Kimberly Westfield is an individual who can be served with process and commanded to

answer and appear herein by service at 1900 Aquarena Springs Drive, #17203, San Marcos, Texas

78666.

Kaleb Adams is an individual who can be served with process and commanded to answer

and appear herein by service at 2729 Lewis Street, Killeen, Texas 76543.

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 III.
VENUE AND JURISDICTION

Venue is proper in Travis County, Texas pursuant to §15.002(a)(1) and §15.002(a)(3) of

the Civil Practice and Remedies Code because Travis County, Texas is the county where TGS

maintains its principal office in the State of Texas and because all events complained of herein that

occurred on or before October 27, 2018 occurred in Travis County, Texas. Jurisdiction is proper

because the amount in controversy is within the jurisdictional limits of this Court.

Jurisdiction in this Court is proper under Tex. Estate Code, including §§ 32.007 and 33.002.

This action is related to Estate of Nicole Burton, C-1-PB-18-002322, in Probate Court Number

One, Travis County, Texas and exceeds the minimum jurisdictional limits of this court.

IV.
VICARIOUS LIABILITY AND RESPONDEAT SUPERIOR

Whenever it is alleged in this petition that TGS and ONE Gas did or failed to do anything,

it is meant that TGS and ONE Gas acting by and through their agents, predecessors in interest in

the relevant pipeline, predecessors in ownership of the relevant pipeline, employees, principals

and vice principals acted or failed to act as alleged. The actions, inactions and failures of TGS and

ONE Gas, Inc. that caused the events described below were actions of its vice principals and/or

actions approved and ratified by the corporations and the corporations breached non-delegable

duties.

Whenever it is alleged in this petition that H&T did or failed to do anything, it is meant

that H&T acting by and through their agents, employees, principals and vice principals acted or

failed to act as alleged. The actions, inactions and failures of H&T that caused the events described

below were actions of its vice principals and/or actions approved and ratified by the corporation

and the corporation breached non-delegable duties.

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 V.
FACTUAL PREDICATE

On October 27, 2018, Nicole Burton and David Passman were inside their home located at

2301 Bendridge Trail, Austin, Texas. At approximately 1:30 PM, the home exploded. The force

of the explosion was enormous and reduced the home to what fire officials described as looking

like a “jumble of parts from a hardware store.” Portions of the roof ended up 89 feet away. The

rear wall was blown back approximately 30 feet. The house next door was blown off its foundation,

and surrounding residences suffered structural damage. A natural gas leak from a 42-year old,

cracked pipeline caused the explosion. TGS and ONE Gas owned, operated, controlled and

maintained the subject pipeline. The following image reflects severity of the explosion and the

damage caused by the TGS and ONE Gas gas leak:

Immediately following the explosion, witnesses observed Nicole Burton climbing out of

the rubble and screaming in pain while ripping off her melted dress. Witnesses describe David

Passman having to be dug out of the rubble, and both victims had to be helped across the street.

Paramedics arrived at the scene to find Nicole Burton and David Passman laying on the lawn of a
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neighboring property. Nicole was naked and badly burned. Nicole suffered 70% total body surface

area burn wounds and severe internal injuries. Paramedics noted that Nicole Burton’s skin was

sloughing off and that she was in severe pain. Four days after the explosion, Nicole Burton died

from burns and conflagration injuries.

In addition to losing his residence and all his possessions in the explosion, David Passman

suffered horrific injuries. The force of the explosion caused an immediate blast injury and rib

fracture. He suffered second and third degree burns to 22% of his body surface, with burns to his

hands and arms, including all ten fingers, and burns along his feet and legs, including all of his

toes and the bottom of his feet. He had burns to his face, including his ears, lips and nares, and

upon admission to the Emergency Room, he was found to have extensive soot around his nostrils

and mouth, indicating an inhalation injury. He had to be placed into a medically induced coma and

intubated while his lungs recovered. Mr. Passman was hospitalized at Dell Seton Medical Center

from October 27, 2018 until December 6, 2018. During the hospitalization, Mr. Passman

underwent over ten separate debridement and skin grafting surgeries.

As a result of the burns to his hands, Mr. Passman has suffered contractures which have

led to decreased hand strength and grip. He underwent an additional surgical procedure on

February 19, 2019, for infection complications. He continues to deal with the fear of skin graft

infections which could lead not only to the loss of his grafts, but a larger, more systemic infection.

The burns and the impairment caused by the contractures are a constant concern.

The home located at 2301 Bendridge Trail, Austin, Texas 78744 was owned by Nicole

Burton’s father, Eugene Burton. Eugene Burton suffers from dementia and was a patient at

Southpark Meadows Nursing and Rehabilitation Center at the time of the explosion. Nicole Burton

was the only living descendant of Eugene Burton. Nicole Burton also was the primary caregiver

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for Eugene Burton. The home and virtually all of Plaintiffs’ property were destroyed in the

explosion.

Eugene Burton’s home, where Nicole Burton and David Passman lived prior to its

destruction, was surrounded by the TGS and ONE Gas gas system. TGS and ONE Gas operated a

poorly maintained 42-year old service and a main line in a right-of-way located west of the Burton

home. The service line was connected to the main line by corroded poor integrity welds and a

byzantine pipe configuration. The subject pipes are part of TGS and ONE Gas’s crumbling

infrastructure that blankets Travis County. As built and maintained, the TGS and ONE Gas system

cannot be maintained in compliance with the minimum safety rules and regulations when operated

in the manner it is operated by TGS and ONE Gas. TGS and ONE Gas failed to maintain the

subject pipes and failed to safely handle the gas until it reached the point of delivery. The following

is an image of the 42-year old cracked and heavily corroded pipe assembly that was unearthed by

TGS and ONE Gas representatives after the explosion:

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 The TGS and ONE Gas system is required to be maintained and operated in accordance

with the minimum safety regulations set forth in 49 CFR parts 190 - 192 as adopted by 16 TAC

Chapter 8. TGS and ONE Gas does not maintain its system as required by these safety regulations.

TGS and ONE Gas’ failure to properly maintain its system has led to thousands of recent gas

pipeline leaks, including leaks close to the Burton home. These leaks are the result of mechanical

and corrosion damage that TGS and ONE Gas are duty-bound to prevent. The subject regulations

do not merely address the requirement to repair pipes; the regulations require ongoing

maintenance, inspection, and operation to prevents leaks.

TGS and ONE Gas are aware that its ancient system of Central Texas pipes is prone to

breaking and leaking gas into homes—especially after long periods of drought, followed by

rainfall. In 2012, a TGS and ONE Gas main pipeline cracked and leaked gas into the home of

Renald Ferrovecchio. Mr. Ferrovecchio was killed by the explosion that was caused by the TGS

and ONE Gas gas leak. After the explosion, TGS and ONE Gas issued a public statement and

claimed that the “[l]ikely contributing cause of the break in the main on January 9, 2012, was

shifting soil due to severe drought conditions followed by rainfall.”

The explosion that killed Nicole Burton and severely injured David Passman occurred on

October 27, 2018—a date which was proceeded by a period of drought followed by rainfall. TGS

and ONE Gas are aware that these common Central Texas weather patterns cause soil to shift. TGS

and ONE Gas are also aware that its crumbling pipelines and poor-integrity pipe welds are

incapable of withstanding even modest amounts of soil movement.

Within the State of Texas, TGS and ONE Gas are devoting significant resources to

aggressively expanding its services to new customers in order to increase its profits. At the same

time, TGS and ONE Gas is employing a minimalistic approach for inspecting pipes and a

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patchwork practice of repairing its decaying infrastructure. TGS and ONE Gas are aware that its

dilapidated and crumbling infrastructure creates a significant risk to Travis County residents,

including the Plaintiffs. Between 2016 and 2018, TGS and ONE Gas has admitted to the U.S.

Department of Transportation Pipeline and Hazardous Materials Safety Administration that from

2016-2018, its gas distribution system suffered 4,132 corrosion failure leaks and 5,926 equipment

failure leaks. In fact, in 2018, TGS admits that it cannot account for 2.15% of the gas in its

distribution system and that it averages over 6 gas system leaks per day. A significant portion of

that “lost” gas escaped through cracks in the TGS gas distribution system. TGS was aware that its

porous gas system put the Plaintiffs’ and other Travis County residents at risk for suffering a

sudden and catastrophic home explosion.

TGS provides information to the public indicating that natural gas is colorless and odorless,

and as such, it adds “…a chemical agent called mercaptan, which has an unnatural scent, to warn

you if a gas leak is present.” TGS and ONE Gas is aware, however, that the odorant can fade or

lose its smell as it travels though pipe or when it passes through soil. Despite its knowledge, TGS

and ONE Gas does not warn or make its customers aware of the fact that odor intensity can be

diminished when its pipes leak and gas travels through the soil and into homes.

TGS and ONE Gas are required to develop and implement a risk-based program for the

removal and/or replacement of high-risk distribution lines, including steel service lines. TGS and

ONE Gas also are required to establish a risk ranking for pipeline segments and facilities and to

support their own risk analysis with data collected to validate system integrity analysis that allows

identification of segments or facilities within its gas system that have the highest relative risk. TGS

and ONE Gas is required to consider the following factors when developing its risk analysis: 1)

age of the pipe, 2) proximity of pipe to buildings, 3) leak history, 4) corrosion control history, 5)

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known areas where corrosive environments are known to exist, 6) environmental factors that affect

gas migration, 7) extended periods of drought, 8) unstable soil or areas subject to earth movement,

and 9) conditions that can exert substantial longitudinal force on pipe joints. TGS and ONE Gas

failed to comply with the above requirements, and as such, the risks surrounding the Burton’s

southeast Austin home were never identified and addressed.

TGS and ONE Gas hired H&T to perform work at the Burton home and to gather data for

risk analysis—including gathering evidence of corrosion on TGS pipelines adjacent to the home

located at 2301 Bendridge Trail. In the course of performing work and gathering data for risk

analysis, H&T failed to identify and recognize obvious signs of corrosion, soil movement and

conditions that would subject the pipeline near the Burton home to forces and conditions that could

result in damage, failures, and leaks. Despite the existence of such signs and conditions, H&T

failed to institute or recommend inspections and maintenance procedures necessary for the

continued safe operation of the TGS and ONE Gas gas pipeline near the Burton home.

TGS and ONE Gas hired Westfield and Adams to conduct leak surveys and to gather data

for risk analysis. Westfield and Adams performed leak surveys prior to the explosion and identified

numerous leaks, but failed to identify the subject leak. In addition, in the course of conducting leak

surveys and gathering data for risk analysis, Westfield and Adams failed to identify, recognize

and report obvious signs of soil movement and conditions that would subject the pipeline near the

Burton home to forces and conditions that could result in damage, failures, and leaks.

VI.
CONDUCT OF TEXAS GAS SERVICE AND ONE GAS AND LIABILITY

The conduct of TGS and ONE Gas constitutes negligence in failing to exercise ordinary

care in the construction, inspection, maintenance, and operation of its gas pipeline. The conduct of

TGS constitutes negligence per se for violations of 49 CFR 190-192, 199. The conduct of TGS

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constitutes gross negligence as described in Civil Practice & Remedies Code. Such conduct was a

proximate cause of the occurrence, injuries, damages and death in question. But for TGS and ONE

Gas’ actions, omissions, and failures, the occurrence, injuries and death in question would not have

happened. These events and damages were the foreseeable result of the conduct of TGS and ONE

Gas.

Ordinary care required TGS and ONE Gas to meet or exceed the minimum safety

regulations; TGS and ONE Gas did not do so. State law and federal regulations were violated. The

regulations that TGS and ONE Gas violated which were a proximate cause of the gas leaks from

its system that exploded include, but are not limited to regulations found in 49 CFR 191 and 49

CFR 192:

VII.
CONDUCT OF H&T AND LIABILITY

The acts, omissions and conduct of H&T constitutes negligence in failing to exercise

ordinary care in failing to identify and recognize obvious signs of corrosion, soil movement and

conditions that would subject the pipeline near the Burton home to forces and conditions that could

result in damage, failures, and leaks. Such acts, omissions and conduct were a proximate cause of

the occurrence, injuries, damages and death in question. But for H&T’s actions, omissions, and

failures, the occurrence, injuries and death in question would not have happened. These events and

damages were the foreseeable result of the acts, omissions and conduct of H&T.

VIII.
CONDUCT OF WESTFIELD AND LIABILITY

The acts, omissions and conduct of Westfield and Adams constitutes negligence in failing

to exercise ordinary care in the inspection of the subject gas pipeline and in failing to detect gas

leaks near the home located at 2301 Bendridge Trail. Such acts, omissions and conduct were a

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proximate cause of the occurrence, injuries, damages and death in question. But for Westfield’s

actions, omissions, and failures, the occurrence, injuries and death in question would not have

happened. These events and damages were the foreseeable result of the acts, omissions and conduct

of Westfield.

IX.
CIVIL PRAC. & REM. CODE CHAPTER 71

Tonya Jones as Independent Administrator for the Estate of Nicole Burton and as Guardian

for Eugene Burton brings this lawsuit under the provisions of the Wrongful Death Act of the State

of Texas and under the Survival Statute of the State of Texas.

X.
DAMAGES

As a direct and proximate result of the occurrence made the basis of this lawsuit, Nicole

Burton and David Passman were caused to suffer personal injuries, and to incur the following

damages—and Plaintiffs seeks a declaration of the total damages suffered in the subject explosion,

including:

A. Reasonable medical care and expenses in the past. These

expenses were incurred by Nicole Burton and David Passman for
the necessary care and treatment of the injuries resulting from the
explosion complained of herein and such charges are reasonable
and were usual and customary charges for such;

B. Reasonable and necessary medical care and expenses which will

in all reasonable probability be incurred in the future by David
Passman;

C. Physical pain and suffering in the past for Nicole Burton and
David Passman, including but not limited to physical pain caused
by the explosion and subsequent surgeries and recovery;

D. Physical pain and suffering in the future for David Passman,

including but not limited to physical pain caused by the accident
and subsequent surgery and recovery associated with the
accident;

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 E. Physical impairment in the past for David Passman and which, in
all reasonable probability, will be suffered in the future;

F. Disfigurement in the past for David Passman and which, in all

reasonable probability, will be suffered in the future;

G. Mental anguish in the past for Nicole Burton and David Passman,
and Mental anguish in the future for David Passman;

H. Loss of companionship and society and loss of care,

maintenance, support, and services sustained in the past and
future by Eugene Burton associated with the death of his
daughter, Nicole Burton;

I. Property damages associated with the destruction of Eugene

Burton’s home and the home’s contents;

J. Pre- and post-judgment interest;

K. Costs; and

L. Any other relief the court determines is proper.

Plaintiffs reserve the right to plead for additional equitable relief.

XI.
GROSS NEGLIGENCE

Plaintiffs, including David Passman and Tonya Jones, as Independent Administrator for

the Estate of Nicole Burton and as Guardian for Eugene Burton would respectfully show this Court

that the injuries and damages of Plaintiffs were caused by the gross negligence of TGS and ONE

Gas, acting by and through their employees, agents, officers and representatives in the course of

employment. Plaintiffs would further show, at the time and on the occasion in question, TGS’ and

ONE Gas’ actions and/or inactions constituted intentional, heedless and reckless disregard for the

rights and safety of Plaintiffs, exhibiting such an entire want of care as to indicate their conduct

was the result of conscious indifference to the rights, welfare, and safety of others, including the

Nicole Burton and David Passman. Accordingly, TGS and ONE Gas should be held liable to

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Plaintiffs for exemplary damages in an amount calculated to punish the Defendants. The level of

culpability is at least to a level of knowing. Plaintiffs therefore bring suit here against TGS and

ONE Gas pursuant to Civil Practice & Remedies Code, Sec. 41.008(c)(1), (4) and (7).

Additionally, TGS and ONE Gas were grossly negligently and reckless in hiring and

retaining unfit and incompetent maintenance personnel, agents, supervisors and management. As

a result of personnel decisions of TGS and ONE Gas from top executive to field level workers, the

subject gas distribution system was operated in violation of the minimum safety standards

applicable to the system that were designed to prevent the occurrence in question. TGS and ONE

Gas also breached non-delegable duties.

XII.
DOCUMENTS TO BE USED

Pursuant to Rule 193.7 of the Texas Rules of Civil Procedure, Plaintiff hereby give

notice to TGS, ONE Gas, H&T, Westfield, and Adams of their intent to use all documents

exchanged and produced between the parties (including, but not limited to, correspondence,

pleadings, records and discovery responses) during the trial of this matter.

XIII.
PLAINTIFF’S REQUESTS FOR DISCLOSURE TO DEFENDANTS

Pursuant to Rule 194.2 of the Texas Rules of Civil Procedure, Plaintiffs propounds this

Request for Disclosure to Defendants TGS, ONE Gas, H&T, Adams, and Westfield. Defendants

have 50 days from the date of service to provide all the information detailed in Rule 194.2 (a)

through (k). This Request for Disclosure incorporates all requirements embodied in Rule 194.2

(a) through (k) as set forth fully herein for all purposes.

Plaintiffs expressly reserve the right to amend their petition anytime to show any

additional facts, circumstances, causes of action, and relief and damages, if necessary. All

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 conditions precedent has been performed or has occurred.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiffs respectfully pray that TGS, ONE

Gas, H&T Westfiled, and Adams be cited to appear and answer herein, and that upon final trial,

Plaintiffs have judgment against TGS, ONE Gas, H&T, Adams and Westfield for all damages

proved, all of which are within the jurisdictional limits of this Court, cost of court, exemplary

damages, pre-judgment and post-judgment interest in accordance with the law and all other

appropriate relief to which Plaintiffs show themselves justly entitled both at law and in equity; that

the events which gave rise to the causes of action described above never again be allowed to again

manifest.

Respectfully submitted,
FOGELMAN & VON FLATERN, LLP
3101 Bee Cave Road, Suite 301
Austin, Texas 78746
Tel. (512) 956-4789
Fax (512) 956-9290
Texas Bar No. 00792494
Email: mark@fvlawfirm.com
eservice@fvlawfirm.com

/s/ Mark W. Farris ________

MARK W. FARRIS
ATTORNEY FOR PLAINTIFF TONYA JONES AS THE
INDEPENDENT ADMINISTRATOR OF THE ESTATE OF
NICOLE BURTON AND AS THE GUARDIAN OF
EUGENE BURTON

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 SLACK DAVIS SANGER, LLP
Mike Davis, Esq.
State Bar No. 05549500
2705 Bee Cave Road, Suite 220
Austin, Texas 78746
Tel: (512) 795-8686
(800) 455-8686
Fax: (512) 795-8787
Email: mdavis@slackdavis.com

_____________________________
MIKE DAVIS
ATTORNEY FOR PLAINTIFF DAVID PASSMAN

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