B. NEGLIGENCE AND GROSS NEGLIGENCE: JOSHUA PRIMO AND THESAN ANTONIO SPURS AS PRINCIPAL AGENT OF JOSHUA PRIMO
Plaintiff hereby incorporates by reference the paragraphs above as if fully set forth herein.
Plaintiff firmly believes and has pled that Primo’s conduct as described was intentional.
Plaintiff alleges that Primo’s conduct, while employed by the Spurs and during the course and
scope of that employment, was unreasonable and thus negligent and grossly negligent. Primo,
individually and as agent of the San Antonio Spurs, owed Plaintiff the duty of reasonable care.
Primo breached that duty in at least the following ways:
a. Scheduling appointments to be alone with Plaintiff knowing of his own sexual
proclivities;
b. Failing to warn Plaintiff of his proclivities and his past conduct;
c. Exposing himself to the Plaintiff;
d. Failing to obtain Plaintiff’s actual consent before attempting to engage in sexual
misconduct;
e. Engaging in sexual misconduct even though Plaintiff did not consent; and
f. Failing to take affirmative steps during the appointments to control his unusual sexual
proclivities.
Defendant Primo’s negligence, individually and as agent for the Spurs, was a proximate
and producing cause of damage to Plaintiff. Defendant’s conduct was malicious and grossly
negligent. Thus, in addition to actual damages, Plaintiff seeks punitive damages.
In addition to being vicariously liable for Primo’s conduct, the Spurs are liable for their
own actions and inactions. Defendant had a duty to Plaintiff and breached that duty. The
negligence of Defendant was a proximate cause of Plaintiff’s injuries and damages.
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Defendant breached the duty of reasonable case in one or more of the following ways,
among others:
a. Failing to prevent Primo from harassing Plaintiff;
b. Negligently hiring, supervising and retaining Primo;
c. Negligently controlling Primo;
d. Failing to properly supervise and control Primo;
e. Failing to create or enforce policies to prevent misconduct;
f. Failing to take precautions prior to the appointments to prevent a reoccurrence of
Primo’s known prior conduct;
g. Failing to warn Plaintiff of Primo’s proclivities and his past conduct;
h. Failing to take affirmative steps during the appointments to control his unusual
sexual proclivities;
i. Providing Primo a safe haven so that he could continue his conduct;
j. Providing Primo a room where he engaged in illicit behavior;
k. Failing to investigate Primo’s unusual behavior;
l. Turning a blind eye to indications that Primo was seeking sex rather than legitimate
therapy.
m. Failing to investigate complaints relating to Primo; and
n. Creating an atmosphere where it was acceptable for Primo to seek sexual conduct
with staff.
Each of these acts and omissions, singularly or in combination with others,
cons ute negligence, which was the proximate cause of this incident and the injuries and
damages sustained by Plaintiff.
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Plaintiff will further show that the acts and/or omissions of Defendants as described
above, when viewed objectively from their standpoint, involve an extreme degree of risk
considering the probability and magnitude of the potential harm to others. Defendants had
actual subjective awareness of the risk involved, but nevertheless proceeded in conscious
indifference to the rights, safety and/or welfare of others, including Plaintiff. As such,
these acts and omissions cons ute gross negligence and malice as those terms are
understood by law.
D. VICARIOUS LIABILITY: SAN ANTONIO SPURS
Plaintiff re-alleges each aforementioned allegation as if incorporated below.
Defendant the San Antonio Spurs is responsible for the conduct of its agents due to the
relationship that existed, among other acts and omissions of negligence which may be shown
during the trial of this cause.
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