DISTRICT COURT CIVEL COVER SHE! county. eat ~A- 17-752705-C e XV TERY Titration poe manne nding nnn pales Detencony (anno ORE) Hosa mamendes FRANCISCO DURBAN, an ingivual SPEEDVEGAS, LLC, 2 Nevada limited labilty company: WORLD CLASS DRIVING, an unknown foreiga entty: [SCOTT GRAGSON, ans DOES FX and Corporation ROE ENTITIES 1X, incisive Altomey (name adaessphone orn DominieP. Gentian Bar No. £923tanuce Mf, Marshal Bar No, 4608. ‘Sentie Crista Miler Arner! Savarese 416 S. Rampart Blvd, Suite 420, Las Vegas, NY 89°46 Tet: (202) B60-0000FOx: (792) 778-9709 nanos pone Th Nature of Controversy (prune wiecine one must publ ing pe hel ~ Civil Case Filing Types ea Property Tors ‘aac enant Neale ‘iter Tors eniantt Deine Drsio pratt loner tantra tone remiss Lib Dlr atacoode Tite Property loser negtiamse Benpioment Fon [Diaticiat Forestosers Nlatprastice Tower rit Papen vitae Otte Rea Propet Ciecst Ceontemeniowtmsne Dorin | [Jassie osc xs! tren Elower wipes Yrelate Consraction Dee & Contra Tadic Review pa ie” ome il an” | Casio Bee “aa Wave [Disuinmary adisnsration Ccremera Llvorecosure Mediation Case [loca saninitcaon loner consiassun beter Eston Sct Records Os Contrast Case Eldan Computonay Base asite esr Consraoi Coe Seva Sate Agen Appeat Ltsicimeniionng LEfseing anit consetion looper or nr Vere Coes rite [firsts carer Elceees Cmpensiion Estate Valve Fmt rane Potter sein state gna Blestssionor “est Onner wane saieoon | Eftapiorment Cat 1 Carpe ton omer Cou Nac Review pest Wy akan Bouts coset | Elo Ca Wve Other Cini Filing Goi Wat Otber Ci tng ven orcas corps Chee orton Jems snarl [wei ora Flower cin en reign dtement Ev orcs warrant Dloiay samy So ers fr fra eae fineCer anes 10 u 12 13 14 15 16 7 18 19 20 2 22 23 24 25 26 27 28 conto cauct ugar Soros “ieee ara Electronically Filed 03/20/2017 01:13:52 PM comp : GENTILE CRISTALLI ic. b Bhowimn— MILLER ARMENEI SAVARESE DOMINIC GENTILE CLERK OF THE COURT Nevada Bar No. 1923 Email: dgentle@gemastav.com JANIECE MARSHALL Nevada Bar No. 4686 Email: jmarshall@gemaslav.com 410 S, Rampart Blvd., Suite 420 Las Vegas, NV 89145 Tel.: 702.880.0000 Fax: 702.778.9709 LAW OFFICE OF DANIEL MARKS DANIEL MARKS ‘Nevada Bar No, 2003 Email: office@danielmarks.net 610 S. Ninth Street Las Vegas, NV 89101 Tel: (702) 386-0536 Fax: (702) 386-6812 Attomeys for Plaintiff Francisco Durban DISTRICT COURT CLARK COUNTY, NEVADA FRANCISCO DURBAN, an individual, casENo.A- 17-752705-C DEPT. XV Plaintiff, vs. COMPLAINT SPEEDVEGAS, LLC, a Nevada foreign limited | (With Demand For Jury Trial) liability company; WORLD CLASS DRIVING, an unknown foreign entity, SCOTT GRAGSON, | Exemption from Arbitration an individual, and DOES I-X and Corporation "| Damages in Excess of $50,000 ROE ENTITIES I-X, inclusive, Defendants. Plaintiff FRANCISCO DURBAN, by and through counsel, hereby complains and alleges against Defendants SPEEDVEGAS, LLC, WORLD CLASS DRIVING and SCOTT GRAGSON, as set forth hereinafter. ut 1 of 12 Ben-Kely-Dorban CompleintCaer auneen ete eae ‘oc sancow L THE PARTIES, JURISDICTION AND VENUE 1. Plaintiff Francisco Durban is and was at all times relevant hereto, an employee of Speed Vegas, LLC and a resident of Clark County. 2. Defendant SpeedVegas LLC is and was at all times relevant hereto, a Nevada foreign limited liability company conducting business in Clark County, Nevada, as a vehicle or tourism vehicle experience operating a racetrack on Las Vegas Boulevard (“SpeedVegas Racetrack”). 3. Defendant World Class Driving is and was at all times relevant hereto, an unknown foreign entity conducting business in Clark County, and upon information and belief an owner/operator of the SpeedVegas Racetrack. 4, Defendant Scott Gragson is an individual, a resident of Clark County and upon information and belief holds himself as the owner/operator of the SpeedVegas Racetrack, 5. Defendants designated herein as Does and Roe Entities are individuals and legal entities that are liable to Plaintiff for the claims set forth herein in that they, directly and/or indirectly, own, control, manage and/or otherwise operate the SpeedVegas vehicle or vehicle tourism experience located on Las Vegas Boulevard and/or under the control the named Defendants and/or are responsible for the operation or management conditions at the SpeedVegas racetrack. The true capacities of Does and Roe Entities are presently unknown to Plaintiff and, therefore, Plaintiff sue said defendants by such fictitious names. Plaintiff will amend his Complaint to assert the true names and capacities of such Does and Roe Entities when more information has been ascertained. 6. The actions and/or the duties and obligations relevant to Plaintiffs" claims in this Complaint occurred and/or arose in Clark County, Nevada, thus, jurisdiction is proper in the Courts of this State and venue is proper in this Judicial District. Wt wt Wt 2o0f 12 Benckely- Durban Complsint1 nL. 2 GENERAL ALLEGATIONS 3 7. Plaintiff repeats, realleges and incorporates each and every allegation contained in 4 | the preceding paragraphs of this Complaint as though fully set forth herein, 5 8. On or about March 17, 2016, SpeedVegas hired Plaintiff as a driving 6] instructor/coach. 7 9. As a condition of his employment, Plaintiff executed an agreement entitled 8 || “Confidentiality, Non-Disclosure and Non-Compete Agreement” (“Non-Compete Agreement”). 9 10. Under the terms of the Non-Compete Agreement, Plaintiff is restricted from 10 |) working at any other vehicle or tourism vehicle experience for a period of one (1) year. ul 11, SpeedVegas opened to the public on or about April 16, 2016. 12 12. World Class Driving is the billing entity for the “driving experience” at 13 | SpeedVegas as of March 3, 2017, and therefore, upon information and belief is an owner and 14 || operator of the SpeedVegas Racetrack 15 13, Upon information and belief, Scott Gragson represented himself as the owner of 16 || the SpeedVegas Racetrack. 7 14. At SpeedVegas, amateur drivers, having little or no sports car driving experience, 18 || pay to drive exotic sports cars on the Racetrack at the fastest speeds they can achieve, 19 15, According to the SpeedVegas website, the only requirements to drive on the 20 || SpeedVegas Racetrack are: (1) Be 18 years of age, (2) Have a valid driver’s license and 21 || @ywear closed-toe shoes. 22 16, Inhis role as a driving instructor/coach, Plaintiff was required to either ride as a 23 || passenger with SpeedVegas customers as they drive the Racetrack in an exotic sports car or 24 || drive customers in the exotic sports car. 25 17. SpeedVegas advertises itself as having the longest straightway and no speed limit. 26 18. SpeedVegas advertises is proprietary technology telemetry board (“Board”) 27 || known as SpeedPass. 28 | vs ont rt ‘orAmariSoverose 3 of 12 eet”, | sway. dotnet ieee | oom aSee ceo 1 ey 12 13 14 15 16 7 18 19 20 21 2 2B 24 25 26 27 28 ante Catt ‘nr Aa Soaroee +193 omg he 20, oa eget ao ‘asa sinoon 19. SpeedPass records the lap time and speed of the drivers, displaying it on the telemetry the Board at the Racetrack for all of the customers to see. 20. Customers would view their times on the Board and seek to top their fastest speed. 21. SpeedVegas posted on the top speeds of customers on its website and Instagram account, congratulating the customers who reached the fastest speed on the Racetrack. 22, SpeedPass would post that customers achieved fastest speeds of 150 mph or higher. 23. On February 12, 2017, a 2015 Lamborghini Aventador crashed into a conerete barrier wall and exploded at or near Turn 1 on the SpeedVegas Racetrack (“Fatal Crash”) 24, SpeedVegas driving instructor Gil Ben-Kely and Canadian tourist Craig Sherwood were killed in the Fatal Crash, their bodies burned beyond recognition, 25. The Aventador was a Roadster, having a convertible top. 26. Upon information and belief, SpeedVegas did not install a roll bar or cage before allowing the Aventador Roadster from being used on its commercial Racetrack. 27. Upon information and belief, SpeedVegas replaced the original Lamborghini brakes on the Aventador with the Girodise brand on or about February 7, 2017. 28. Upon information and belief, a mechanic at SpeedVegas was working on the ‘Aventador’s brakes on or about February 11, 2017, the day before the Fatal Crash. 29, Plaintiff was required to qualify to drive and to instruct customers in the sports cars at SpeedVegas. 30. The assistant track manager qualified Plaintiff to drive and instruct customers in the Aventador. 31. During the qualification drive, Plaintiff complained to the assistant track manager that the Aventador was not braking properly. 32. While Plaintiff was driving a customer on the Racetrack at a high rate of speed in a Ferrari a brake pad fell off. ue 4 of 12 Ben-Kely -Dutben Complaint10 iT 12 3 14 15 16 7 18 19 20 21 2 23 24 25 26 27 28 sng Ronda Od e20 ta vag 8. ‘ood sso) 33. Due to a significant loss of braking power after the brake pad fell off, Plaintiff ‘was unable to negotiate Turn 2 and the Ferrari left the Racetrack, 34. Plaintiff narrowly avoided crashing into the concrete barrier wall located on the left side of the track as well a drainage ditch. 35. Plaintiff also experienced problems in the Mercedes AMG GTS on the Racetrack. 36. Plaintiff complained to the assistant track manager that the mechanic did not fix the problem. 37. Eventually the mechanic determined that the Mercedes had a cracked rotor. 38. Upon information and belief, since the Fatal Crash, on or about March 10, 2017, a sports car at Speed Vegas, the Ferrari 458, experienced brake problems while a customer was driving. 39. Upon information and belief the Ferrari 458s anti-lock brakes locked up resulting in the driver having no ability to steer car and no brakes. 40. The Ferrari ran straight into the drainage ditch located on the left side of the Racetrack at Turns 1 and 2. 41. The SpeedVeges Racetrack is inherently, excessively and unnecessarily dangerous in design and operation for the following reasons: a, SpeedVegas encourages drivers with little or no experience to drive at unsafe speeds; b. The design of the Racetrack fails to provide adequate run-offs from the tums to allow the cars to slow down before crashing into the concrete barrier walls or other hard obstacles if, when a car leaves the Racetrack, whether due to driver or car failure; c. The concrete barrier walls are located too close to the Racetrack; 4, The concrete barrier wall to the right of Tum 1 is fewer than 20 feet from the Racetrack. €. _ SpeedVegas fails to maintain its fleet of exotic sports cars in a safe and proper manner. £ —_SpeedVegas has had multiple instances of brake pads falling off its cars Sof 12 Ben-kely- Durban Complaintwhile the cars are speeding down the Racetrack; g. Plaintiff was driving SpeedVegas’ Ferrari with a customer when a brake pad fell off, causing a substantial loss of braking power; h. Plaintiff narrowly avoided crashing into the concrete barrier wall and exposed drainage ditch at Tums 1 and 2 on the left side of the Racetrack; i. Plaintiff complained to the assistant track manager that the Aventador’s brakes were not working properly when the assistant track manager was qualifying Plaintiff to drive and instruct customers in the Aventador; j. Upon information and belief, SpeedVegas swaps out the original manufacture brakes on its fleet of cars to the Girodise brand of brakes; k. Upon information and belief, SpeedVegas’ head mechanic was aware of problems arising from using Girodise brakes on sports cars used on a commercial racetrack; 1. Upon information and belief, on or about February 7, 2017 (five days prior to the Fatal Crash), SpeedVegas swapped out the original Lamborghini carbon brakes for the Girodise brakes; m, Upon information and belief, on or about February 11, 2017, the day before the Fatal Crash, SpeedVegas’ mechanic was working on the front brakes of the Aventador, n, —SpeedVegas utilizes sports cars which are not suitable for use on a commercial racetrack; ©. The Lamborghini Aventador involved in the Fatal Crash was a Roadster, a convertible top; p. Upon information and belief, SpeedVegas did not install a roll bar or cage on the Aventador before allowing it to be used on its commercial Racetrack, q. Upon information and belief, SpeedVegas allowed the Aventador to be driven on the Racetrack despite numerous aftermarket modifications: brakes, rear wing/spoiler and exhaust system; wt 6 of 12 Ben-Kely- Durban Complaint«08 Ronan ie ec te vege. a5. ‘ood einen t. Upon information and belief, SpeedVegas was aware that Lamborghini ‘was voluntarily recalling the 2015 Aventador models on or before February 11, 2017 (the day before the Fatal Crash); s. The February 3, 2017 NHTSA Campaign Number 17V073000 recall notice for the 2015 Aventador states: “Fuel may Leak out of a Full Tank and cause a Fire.” t. The Recall Notice indicated that the risk was exacerbated if the exhaust system was modified aftermarket. u. Upon information and belief, SpeedVegas was aware that the Aventador had an aftermarket modification to its exhaust system. v. _ SpeedVegas did not pull the Aventador from its fleet of sports cars despite knowing of the exhaust issues that were the subject of the Recall; Ww. SpeedVegas has failed to institute and/or provide an adequate emergency response or equipment; 42. Upon information and belief, as a result of these unsafe conditions, five crashes have occurred on the Speed Vegas racetrack during its first ten months of operation. 43. The most recent crash occurred on or about February 12, 2017, when SpeedVegas’ Lamborghini Aventador, driven by Canadian tourist Craig Sherwood while being instructed by Plaintiff's fellow driving instructor, Gil Ben-Kely, crashed into the concrete barrier wall (the “Wall”) on Turn 1 (the “Fatal Crash”), The car exploded into flames, burning both men beyond recognition, 44. Following the Fatal Crash, SpeedVegas voluntarily closed the Racetrack. 45. Upon information and belief, on or about February 23, 2017, SpeedVegas reopened. 46. When SpeedVegas announced its reopening, its Chief Executive Officer, Aaron Fessler, publicly stated that “no changes have been made to the track since the (Fatal) accident.” 47. The Nevada Occupational Safety and Health Administration (“OSHA”) is investigating the Fatal Crash. 48. OSHA has classified the Fatal Crash as an industrial accident. 7 of 12 Ben-Kely - Durban ComplaintSecarau 1 WW 12 1B 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28 ‘cons Cet ‘a ges 3148 ‘oad eave. 49. Following the Fatal Crash and the reopening of SpeedVegas, Plaintiff filed a formal safety complaint with OSHA. 50. Plaintiff has requested that OSHA either close the Racetrack or issue an order to abate the unsafe conditions at SpeedVegas. 51. Following the Fatal Crash, SpeedVegas advised Plaintiff and the other driving instructors that in order to return to work, they must satisfy three conditions: (1) undergo a psychiatric evaluation; (2) perform a road test on the track; and 3) sign a form entitled Driving Coach Responsibilities Acknowledgment Form (“Acknowledgment Form”). 52. Paragraph 9 of the Acknowledgement Form states: “I acknowledge my job has inherent risk involved and every precaution has been taken to ensure my safety as well as the safety of our guests.” 53, Plaintiff cannot sign the Acknowledgment Form because SpeedVegas has not taken every precaution to ensure his or the customers’ safety. 54, Plaintiff requested that SpeedVegas remove the Wall further from the Racetrack, 55. SpeedVegas reopened without removing the Wall. 56. Plaintiff requested that SpeedVegas install additional safety measures, including but not limited to Formula One/TECPRO safety barriers. 57, SpeedVegas refused to install the Formula One/TECPRO safety barriers or other safety measures. 58. As of the date of this filing, Plaintiff has refused to sign the Acknowledgment Form because he cannot attest that “every precaution has been taken” to ensure his safety and that of the guests of SpeedVegas. 59. Unsafe or unreasonably dangerous conditions continue to exist at SpeedVegas following the Fatal Crash that SpeedVegas had not changed and that are a threat to Plaintiff, his coworkers as well as customers of SpeedVegas. mw 8 of 12 BeSow rxaaueon 1 u 12 13 “4 15 16 7 18 19 20 a 2 2B 4 28 26 2 28 gre Seren sod panera zo avant asi ‘oadsinson 60. If Plaintiff retums to work at SpeedVegas as a driving instructor, he would be putting himself in a knowingly dangerous situation, 61. Nevada public policy makes it illegal for an employer to terminate any employee for refusing to work in unsafe working conditions or to require an employee to put himself in an unreasonably dangerous situation. 62, In order to return to work as a driving instructor at SpeedVegas, Plaintiff must pass a road test and continue to drive and/or ride as a passenger with guests of SpeedVegas on the SpeedVegas racetrack, necessarily subjecting himself and guests of SpeédVegas to unsafe working conditions or unreasonably dangerous situations in violation of public policy. 63. Pursuant to the Non-Compete Agreement, Plaintiff is prohibited from working for vehicle experience/vehicle tourism establishment for a period of one (1) year. 64, As such, Plaintiff must either risk his health and safety as a driving instructor at SpeedVegas, or abandon his chosen profession of being a driving instructor. 65. Plaintiff should not have to choose between being killed or being fired by SpeedVegas for refusing to sign the Acknowledgement or drive on an unreasonably dangerous Racetrack, Ti. CAUSES OF ACTION FIRST CAUSE OF ACTION (Wrongful Termination in Violation of Public Policy: Tortious Discharge for Public Policy Reasons -- Refusing to Work in an Unsafe Workplace) 66. Plaintiff repeats, re-alleges, and incorporates the allegations in the preceding paragraphs of this Complaint as though fully set forth herein. 67. It is the declared public policy of the State of Nevada “to protect the welfare, prosperity, health and peace of all people of the State” pursuant to Nevada Revised Statute § 233.0102). 68. An employer is required to provide a safe and health working environment for employees. wi 9 of 12 Ben-Kely - Durban Complaintwe aw 10 u 2 13 4 15 16 7 18 19 20 rut 2 2B 24 25 26 Fi 28 conve cea unr amor Soros “Uae wise ‘7 sto 69. Nevada public policy makes it illegal for an employer to terminate an employee, for refusing to work in an unsafe working condition. 70, Plaintiff's continued employment at SpeedVegas requires that he perform his duties as a driving instructor at SpeedVegas in unsafe working conditions and/or unreasonably dangerous situations. 71. Inthe event Plaintiff refuses to perform his duties in unsafe working conditions or to put himself in an unreasonably dangerous situation, pursuant to the Non-Compete Agreement, Plaintiff is prohibited from working as a driving instructor at any other driving experience for a period of one (1) year. 72. Plaintiff has been or will be effectively terminated because he refuses to work in unsafe working conditions or to put himself in an unreasonably dangerous situation, as required by SpeedVegas. 73. Asa direct and proximate result of SpeedVegas’ wrongful conduct, Plaintiff has suffered damages, including but not limited to, loss of pay in excess of $10,000.00, with an exact amount to be proven at trial. 74, SpeedVegas’ above-referenced acts were fraudulent, malicious, oppressive and done with the intent to harm Plaintiff. 75, Consequently, Plaintiff seeks an award of punitive damages in an amount sufficient to punish and deter SpeedVegas from harming other similarly situated employees pursuant to Nevada Revised Statute § 42.005 et seg. 76. Plaintiff has been forced to engage the services of an attomey to prosecute this matter and, as such, Plaintiff is entitled to an aware of attorneys’ fees, costs and interest. SECOND CAUSE OF ACTION (Injunetive Relief) 77. Plaintiff repeats, re-alleges, and incorporates the allegations in the preceding paragraphs of this Complaint as though fully set forth herein, 78. Based on the foregoing facts, Plaintiff is without a sufficient remedy to cause Defendants to correct the unsafe working conditions at Speed Vegas. wt 10 0f 12 ‘Ben-Kely - Durban ComplaintRO) ee Oe 79. If SpeedVegas is permitted to maintain the existing unsafe or unreasonably dangerous working conditions, Plaintiff, in his position as driving instructor, will suffer irreparable harm in the form of significant risk to personal health and safety, loss of employment and/or damage to reputation, 80. Pursuant to the Non-Compete Agreement, Plaintiff has no choice but to risk his health and safety as a driving instructor at Speed Vegas, or abandon his chosen profession. 81. Plaintiff is therefore entitled to injunctive relief from this Honorable Court in the form of an Order compelling the SpeedVegas racetrack to close until such time as: (1) the Racetrack is redesigned by a competent track expert to address the existing safety issues; (2) the sports cars in use at SpeedVegas are maintained properly and suitable for use ina commercial racetrack and (3) proper fire and safety protocols are instituted and equipment secured to ensure an adequate emergency response. 82. Plaintiff has been forced to engage the services of an attomey to prosecute this matter and, as such, Plaintiff is entitled to an aware of attorneys’ fees, costs and interest. Vv. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays for relief as follows: 1. Fortrial by jury; 2. For compensatory damages in an amount in excess of $10,000.00 against all Defendants jointly and severally; 3. For punitive damages in an amount in excess of $10,000.00 against all Defendants jointly and severally; 4, Fora temporary restraining order, preliminary injunction and an order compelling the SpeedVegas racetrack to close until such time as (1) the Racetrack is redesigned by a ‘competent track expert to address the existing safety issues; (2) the sports cars in use at SpeedVegas are properly maintained and are suitable in a commercial setting; and (3) proper fire 11 of 12 Ben-ely - Durban Complaint1 | and safety protocols are instituted and equipment secured to ensure an adequate emergency 2 | response. | 3 3. For attomey’s fees and costs: and 4 6 For such other and further relief as the Court deems just and proper. i 5 v. : 6 JURY DEMAND ! 7 Pursuant to Role 38(b) of the Nevada Rules of Civil Procedure and general state law, 8 | Plainttr demands a jury sal jp connection with the subject action, 9 DATED this x _ day of March, 2017, 10 u 12 7 B 4 wade Bar No. 1923 IECE MARSHALL, 18 Bar No. 4686 410 S, Rampart Blvd., Suite 420 16 is Vegas, NV 89148 ‘Tel: 702.880.0000 7 LAW OFFICE OF DANIEL MARKS 18 DANIEL MARKS Nevada Bur No, 2003 19 Email: office@danielmarks.net 610 S. Ninth Street 20 Las Vegas, NV 89101 "Pet (103) 386-0536 a4 Fas: (703) 386-6812 2 Attorneys for Plaintiff Franeiseo Durban 3 24 i 25 / 26 | 12 of 12 Bencely - urd Corplnt