Complaint for damages, demand for jury trial

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SUPERIOR COURT OF THE STATE OF WASHINGTON FOR THURSTON COUNTY

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B.W., an individual, Plaintiff,

ll

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NO.

vs.

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BLACK HILLS FOOTBALL CLUB, a Washington nonprofit corporation; DAVID E. CROSS and KIMBERLY S. CROSS, individually, and as a marital community,

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COMPLAINT FOR DAMAGES Demand for Jury Trial

Defendants.

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COMES NOW Plaintiffs, by and through their attorneys Darrell L. Cochran and Kevin

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M. Hastings, and the law firm of Pfau Cochran Vertetis Amala PLLC, and brings this cause of

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action against Defendants, and allege the following:

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I.

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1.1

PARTIES

At all relevant times, B.W. was a resident of Thurston County, Washington.

Plaintiff was a minor at the time of the sexual abuse and exploitation alleged herein. To prevent further damage and injury to the Plaintiff, this complaint for damages identifies her by initials only. Plaintiff will be identified more fully in discovery or by amendment.

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COMPLAINT FOR DAMAGES 1 of 10

911 Pacific Avenue, Suite 200 Tacoma, WA 98402 Phone (253) ?T!-0799 Facsimile (2'i3) 627-06'i4

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"BHFC") is a nonprofit corporation organized under the laws of Washington that operates in Thurston County, Washington.

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At all relevant times, Defendant Black Hills Football Club (hereinafter,

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At all relevant times, Defendants David Cross and Kimberly Cross were

residents of Thurston County, Washington.

Upon information and believe, they are still

residents of Thurston County.

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II. 8 9

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2.1

Under article IV, section 6 of the Washington State Constitution, the Superior

Court, Thurston County, has universal original jurisdiction over this lawsuit. The Court also has personal jurisdiction over each named defendant.

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JURISDICTION AND VENUE

2.2

Venue is proper within Thurston County because Defendants reside m

Thurston County, Washington. It is also where the torts detailed below were committed.

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III.

FACTS

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3.1

B. W. was born in 1992 and has played soccer since she was 6 years old. In or

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around 2005, when she was 13 years-old, B.W. joined BHFC. At first, she made the "B" 16

team but was promoted to the "A" team within a few months. David Cross, a man who was 17

then in his mid-to-late 40s, was the coach for the "A" team. 18

3.2

Cross was B.W.'s coach for about five years.

This was unusual because

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coaches would normally rotate teams every couple of years to give players experience in 20

dealing with different coaching styles. 21

3.3

Although B.W. did not know it at the time, Cross began grooming her for

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sexual contact from the time he first met her. Cross had the phone numbers for every player 23

and texted his favorite players occasionally. 24

3.4

By January 2009, when B.W. was 16 years-old, the grooming escalated and

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Cross was texting her more frequently. At first, Cross was texting weekly with soccer-related 26

questions, but then he began texting her daily with friendlier conversations. B.W. liked the COMPLAINT FOR DAMAGES 2 of 10

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attention because she admired Cross as her mentor, having worked harder for him than any 2 3 4 5

other person and learning valuable life lessons through mental and physical discipline. B.W. started in 2005 at the bottom of the skill level on the team and by 2009 was at the top on the starting lineup. This increase in confidence and talent level was reinforced by her mentor Cross.

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3.5

B.W. how far she had been with a boy. B.W. was embarrassed that he asked such a private question, but she still told Cross.

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3.6

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with wound care and he attempted to kiss her. On the second occasion, Cross asked B.W. to meet her at Tumwater Falls Park. Cross held her hand and said that he had a dream about her in a nightgown and getting naked.

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3.7

Eventually, Cross started talking to B.W. about sex. Through manipulation

and constant grooming, Cross convinced B.W. to have sexual intercourse with him and lose her virginity before college. B.W. was 17 years-old. Cross met B.W. at LBA Park, near Margaret McKenny Elementary School, and he took her virginity inside his white van before her school soccer tryouts later that day. On another occasion B.W. met Cross at Ferrellis off Yelm Highway in the parking lot. He was far too intoxicated to drive so B.W. had to sit with him to prevent him from injuring himself or others. 3.8

Cross told B.W. several times throughout the relationship that what "they"

were doing was wrong and illegal and that "they" could get in a lot of trouble. Cross insisted that B.W. never tell anyone for the rest of her life.

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Only 17 years-old at the time, B.W. was shocked,

uncomfortable, and flattered at the same time.

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Cross continued grooming B.W. and started becoming increasingly physical.

On the first occasion, Cross was at a bar and B.W. crashed her bike. She went to him for help

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Eventually, the text conversations escalated to the point where Cross asked

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Cross had sexual intercourse with B. W. several more times in various locations

throughout Thurston County, including in the back of his van, the Red Lion Hotel and in the

COMPLAINT FOR DAMAGES 3 of 10

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II II middle of three public parks. B.W. never instigated the sexual contact, which was always 2 3

solely initiated by Cross for his own sexual gratification. She was going along because she thought that was the only way to have an adult friend at the time.

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3.10

while the entire team was in California for a tournament. She refused his offers and wanted to be with the team instead. Cross finally forced B.W. to kiss her while the team was in Disney Land, California, to celebrate the end of the tournament.

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conduct for coaches while on soccer trips. 3.12

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3.13

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time Cross had sex with B.W., he used his cellular phone to take a photograph of his penis inside of her vagina. 3.14

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there over an hour and that it was suspicious. 3.15

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Police arrived and Cross pulled away. Police stopped Cross and asked what he

was doing parked in the dark in the middle of a neighborhood. Cross said that he had to stop for a medical condition and that he was "just talking" to B. W. and trying to "help" her.

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On February 7, 2010, Cross was with B.W. in his van parked in the

Beckonridge neighborhood. Someone called the police and reported that the van had been

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Cross would often ask B.W. to send him sexually explicit photos. B.W. never

sent such photos, but Cross took photos of her while having sex. During the first or second

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Cross attempted to have sex with B.W. in a public park. Cross also would

frequently make B.W. kiss him in public places, hold his hand, or show other affection.

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Upon information and belief, BHFC did not have any policies and procedures

in place regarding boundary invasions, social interactions between coaches and players, or

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Cross also pleaded and begged B.W. to join in sexual acts in his hotel room

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B.W. was nervous and scared, and she denied a relationship with Cross. The

police officer was suspicious of Cross's activities and "did not believe he had to stop for a medical condition and furthermore as a coach and adult [the police officer] felt [Cross's] actions were highly suspect and inappropriate."

COMPLAINT FOR DAMAGES 4 of10

911 Pacific Avenue, Suite 200 Tacoma, WA 98402 Phone (25,) 777·0799 Facsimile. (25,) 627·06'i4

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have any inappropriate communication with B.W.

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3.18

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3.19

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After graduating, B. W. chose to attend Portland State, in part, so that she could

get away from Cross. There, she had an academic career marked by mood swings, anxiety, and bouts of deep depression. 3.20

B. W. was also having trouble with relationships. She sought counseling where

she eventually talked about what Cross had done to her. At counseling, B.W. learned in or around August 2014 that the emotional issues she was having were related to being exploited as a minor by Cross.

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For B.W., she felt saved by the police because she would no longer have to

communicate with Cross or lie to her family about her activity.

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They also had Cross sign a conduct

contract.

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The

following day, B.W.'s parents had Cross come over and told him that he was no longer to

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B.W.'s parents were contacted and told about what had happened.

3.21 had done.

In or around January 2015, B.W. went to the authorities to reveal what Cross An investigation ensued, but Cross refused to talk to the authorities.

The

detectives referred the matter to prosecutors for criminal charges, but the prosecutor ultimately did not pursue the matter because the statute of limitations had ran for the crimes referred.

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IV.

CAUSES OF ACTION

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A. First Cause of Action: Intrusion Upon Exclusion and Violation of Privacy 21

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4.1

Plaintiff re-alleges the paragraphs set forth above.

4.2

"The common law right of privacy exists in this state and ... individuals may

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bring a cause of action for invasion of that right." Reid v. Pierce County, 136 Wn.2d 195, 24

206, 961 P.2d 333 (1998); Mark v. Seattle times, 96 Wn.2d 473, 635 P.2d 1081 (1981). 25

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Defendant Cross intentionally intruded upon Plaintiffs solitude, seclusion and

private affairs by, inter alia, (1) taking explicit photographs of B.W. without consent and (2) COMPLAINT FOR DAMAGES 5 of 10

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forcing B.W. to engage in sexual acts in public places. B.W. had a legitimate and reasonable 2 3

expectation of privacy from being free from photographs and not engaging in sexual acts in public places.

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4.4

and his conduct was a proximate cause of damage to Plaintiff.

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Defendant Cross's intrusion would be highly offensive to a reasonable person,

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Defendant BHFC is vicariously liable for this conduct under the doctrine of

respondeat superior.

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B. Second Cause of Action: All forms of Common Law Negligence 9 10 11

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Defendants and/or each of them had a special relationship with Plaintiff and

At all material times herein, Cross was Defendant BHFC's employee and/or

agent, and he was under its direction and control. 4.9

Defendant BHFC knew or should have known that there was a danger that a

soccer coach could or would exploit young soccer players.

The danger of adults using

positions of power to target younger children is well recognized in literature.

Given the

likelihood that adult soccer coaches would target and exploit young soccer players, BHFC should have had a system in place where at least two adults were assigned to supervise players, particularly when transporting them or during social gatherings. BHFC should have also had a boundary invasion, sexual harassment, and sexual misconduct policy that was provided not only to the coaches but also to the players.

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4.7

4.8

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Plaintiff re-alleges the paragraphs set forth above.

also had a duty to protect her from reasonable foreseeable harm.

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4.6

4.10

BHFC should also have had policies that prohibited coaches from ( 1) engaging

in social interactions with players outside of the regular team celebration milieu, (2) texting with players or otherwise calling them on private phones for personal reasons, (3) transporting players without set boundary invasion policies in place, and (4) transporting players while intoxicated.

COMPLAINT FOR DAMAGES 6 of 10

911 Pacific Avenue, Suite 200 Tacoma, WA 98402 Phone (2.'i,) 7!1·0799 Facsimile (2'i3) 627-0654

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was a proximate cause of the damages complained herein.

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4.12

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Defendant BHFC failed to warn victims, parents, and others that Cross was a danger to minors who he was coaching. 4.13

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minors by exploiting their respect for his position as a coach; and that he would continue to exploit his status and offices as a coach to molest minors if allowed to continue to serve as a coach. 4.14

Defendant BHFC knowingly allowed, permitted, and/or encouraged Cross's

abuse of B. W. in one or more of the following ways: (I) tolerating the sexual abuse of minors by employees and/or agents; (2) concealing and covering-up the sexual abuse of minors by employees and/or agents; (3) failing to report known acts of sexual misconduct with minors to law enforcement and governmental child welfare agencies pursuant to RCW 26.44.030 and other legal duties; (4) allowing Cross, in his capacity as their employee and/or agent and servant, to have unsupervised contact with minors; (5) failing to warn that Cross was exploiting minors for sexual gratification; (6) representing that Cross was a worthy and honorable man when he was known to the Defendants to be a predator who sexually exploited minors; (7) failing to timely adopt policies and procedures to identify potential and actual sex offenders, prevent their employment and/or remove them from a role of power once their propensity to abuse minors was known; and (8) failing to properly investigate claims of abuse and provide solace and counseling to victims.

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Before Cross sexually assaulted B.W., Defendant BHFC knew or should have

known that Cross had a propensity to engage in sexual acts with minors; that he had abused

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Defendant BHFC negligently retained and supervised Cross when they knew

or should have known of his predatory pedophile tendencies and sexual abuse of minors.

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BHFC's failure to have such policies amounted to corporate negligence, and it

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Defendant BHFC also negligently trained other agents by failing to appraise

them of the signs of grooming for sexual contact with minors.

COMPLAINT FOR DAMAGES 7 of10

911 Pacific Avenue, Suite 200 Tacoma, vVA 98402 Phone (253) 777-0799 Facsimile (253) 627-0654

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As a direct and proximate result thereof, B.W. has suffered personal physical

injuries and emotional injuries and continues to be damaged psychologically and physically and to experience mental anguish, humiliation, and emotional distress, as well as physical symptoms, all in an amount to be proved at trial.

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C. Third Cause of Action: Negligent Infliction of Emotional Distress 6 7 8

4.18

Defendants owed Plaintiff a duty to use reasonable care. Defendants breached

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Defendants' breach was the proximate cause of emotional distress which was

manifested through Plaintiff.

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Plaintiff re-alleges the paragraphs set forth above.

this duty through the negligent acts described above.

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4.17

4.20

As a result of these actions, Plaintiff sustained both general and special

damages in amounts to be proven at trial.

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D. Fourth Cause of Action: Outrage and Intentional Infliction of Emotional Distress

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4.21

Plaintiff re-alleges the paragraphs set forth above.

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4.22

Defendant Cross engaged in tortious wrong doing by sexually assaulting B.W.

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4.23

Defendant Cross knew that his extreme and outrageous conduct would

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irreparably and severely harm B.W., or he recklessly disregarded the same. 4.24

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As a direct and proximate result of Defendant Cross's extreme and outrageous

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conduct, B. W. suffered and continues to suffer irreparable, severe emotional distress and

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other general and special damages.

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E. Fifth Cause of Action: Assault and Battery

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Plaintiff re-alleges the paragraphs set forth above.

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4.26

Defendant Cross intentionally engaged in harmful and offensive contact with

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B.W. while she was a minor. This contact included sexual assault.

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COMPLAINT FOR DAMAGES 8 of 10

~J4PFAU COCHRAN L·~~VERTETIS AMALA /\ Professional Umitcd Uabi!!Ly Company 911 Pacific Avenue, Suite 200 Tacoma, WA 98402 Phone (253) 777-0799 Facsimile (2'i,) 627-06';4

4.27 2

As a direct and proximate result of that intentional harmful and offensive

contact, B.W. suffered general and special damages.

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F. Sixth Cause of Action: False Imprisonment 4 5 6 7

Plaintiff re-alleges the paragraphs set forth above.

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The conduct of Defendant Cross resulted in the intentional confinement,

unlawful taking, seizing and detaining of B. W. 's person, which was unjustified under the circumstances and unlawful.

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4.30

Defendant Cross's conduct toward Plaintiffs constitutes false imprisonment.

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As a direct and proximate result of the Defendant Cross's conduct, B.W.

sustained injuries and damages.

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G. Seventh Cause of Action: Violation of RCW 9.68A Sexual Exploitation of Children

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Plaintiff re-alleges the paragraphs set forth above.

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4.33

Cross's actions of sexually assaulting and exploiting B.W. violated RCW

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9.68A, the Sexual Exploitation of Children Act, including RCW 9.68A.040, 9.68A.070, and

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9.68A.090. 4.34

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Cross's violations of RCW 9.68A, the Sexual Exploitation of Children Act,

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were done with the knowledge and acquiescence of Defendant BHFC. Accordingly, under

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RCW 9A.08.030, the Defendant BHFC and has also violated RCW 9.68A. 4.35

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Defendants and/or each of them pursuant to RCW 9.68A.130.

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v.

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B.W. is therefore entitled to an award of attorney's fees and costs against the

5.1

RESERVATION OF RIGHTS

Plaintiffs reserve the right to assert additional claims as may be appropriate

following further investigation and discovery.

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COMPLAINT FOR DAMAGES 9 of 10

911 Pacific Avenue, Suite 200 Tacoma, WA 98402 Phone (253) lT!-0799 Facsimile (253) 627·0654

VI.

Under the Washington State Civil Rules, Plaintiff demands that this action be

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tried before a jury

VII.

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PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays that this Court enter a judgment against the Defendants

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JURY DEMAND

and/or each of them on Plaintiffs behalf for the following: 7.1

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For special damages for medical treatment expenses, the expenses of

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medication, and other special expenses, including lost wages, both in the past and continuing

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into the future, in amounts to be determined at the time of trial; 7.2

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emotional, resulting from the acts complained of herein; 7.3

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7.4

For such reasonable costs, attorney fees, prejudgment interest, and exemplary

damages otherwise allowed under law; and 7.5

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For such attorney's fees, prejudgment interest, costs, and exemplary damages

allowed by RCW 9.68A.130 and other law;

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For all general damages for pain and suffering, including physical and

For such other and further relief as this Honorable Court determines just in the

premises. SIGNED this 9th day of September, 2015.

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PF AU COCHRAN VERTETIS AMALA PLLC

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By\]UMQ~

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Darrell L. Cochran, WSBA No. 22851 Kevin M. Hastings, WSBA No. 42316 Attorneys for Plaintiffs

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4827-2788-8420, v. 1

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COMPLAINT FOR DAMAGES 10 of 10

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