Mother can seek punitive damages from Cambria smoke shop in toddler's death, judge rules

Simon Brito, left, and Mason Simmonds-Gibson
Simon Brito, left, and Mason Simmonds-Gibson Courtesy photos

The mother of a toddler killed in a car accident that police say was caused by a driver high on the synthetic drug “spice” can pursue punitive damages against the Cambria smoke shop that sold the product, a judge ruled recently.

But attorneys for the smoke shop say blame rests with the driver and the companies that manufactured the drug — a mix of herbs and spices typically sprayed with a synthetic compound chemically similar to THC, the active ingredient in marijuana.

According to the CHP, Tanner Noah Mengore, 23, had smoked spice shortly before driving an SUV carrying four passengers — three siblings and their young nephew — at a high speed on Highway 1 near Cayucos last October. The SUV that Mengore was driving veered out of control, hit an embankment and became airborne before rolling several times.

Three of the four passengers were thrown from the vehicle. Mason Simmonds-Gibson, 22 months, and Simon Brito, 17, were killed. Wendi Brito, 20, who was baby-sitting the toddler, and Michael Brito, 24, suffered major injuries.

In an unrelated incident, Michael Brito was struck by a car and killed last week in Los Osos while crossing Los Osos Valley Road.

In March, Stacey Brito, Mason’s mother, filed charges against Paradise Smoke Shop, Mengore and the owner of the SUV, Andres Simmonds-Gibson, who was the toddler’s father.

Simmonds-Gibson later sued the smoke shop as well.

The owners of the smoke shop, the suits claim, were fully aware of the dangers associated with use of the drug. Chemicals used in the product were known to cause hallucinations, hysteria, paranoia and death, the suit said.

California criminalized the sale and distribution of synthetic marijuana in 2011. However, the lawsuit claims, manufacturers regularly change the chemical components of their products to skirt the law.

In April, attorneys for the smoke shop objected in a demurrer, writing, “It was Mr. Mengore’s consumption of spice, and not the defendants’ alleged act of selling it, that was the legal cause of the decedent’s injuries.”

Kristina Lemanski, attorney for the smoke shop, also wrote that a warning on the spice proclaiming, “Not for human consumption,” adequately warned customers not to consume the product.

That same month, the smoke shop also filed a cross complaint against spice manufacturers JK Wholesale Inc. and J2M Wholesale Inc. While the smoke shop denied all allegations in the Brito lawsuit, if found liable, their cross suit contends, it would be the result of JK Wholesale and J2M.

A motion filed by attorneys for JK and J2M have denied the allegations.

Attorneys for the toddler’s parents are seeking punitive damages, saying the warnings on the spice package were a “sham” and that the smoke shop acted in conscious disregard of the rights and safety of others by marketing and selling the product.

To seek punitive damages, attorneys for the plaintiffs must show that the defendants acted with malice. The smoke shop did so, attorney James Murphy contends in court papers, when it sold a product knowingly in violation of laws prohibiting the sale of synthetic drugs.

“The facts clearly show defendants were aware a possible danger existed and thus acted in conscious disregard for the safety of other drivers, passengers and pedestrians on the roads,” Murphy wrote in a June motion.

Spice is commonly marketed to young people in brightly colored shiny packages, wrote Nigel Whitehead, an attorney for Stacey Brito, in June. Mengore purchased spice brands named “Hysteria” and “Brain Freeze” from the smoke shop, Whitehead claimed.

In August, the smoke shop moved to have the punitive damages stricken from the suits, saying the grounds were “false, irrelevant, and/or improper.” Because the defendants were “several steps” away from Mengore’s conduct, the smoke shop claims, “it is difficult to imagine how punitive damages could be warranted.”

In a ruling issued Sept. 23, San Luis Obispo Superior Court Judge Martin Tangeman concluded that the plaintiffs could pursue punitive damages if they can show the defendants acted in conscious disregard for the safety of not just Mengore, but also bystanders and the general public.

Mengore has pleaded not guilty to four felonies, including two counts of gross vehicular manslaughter while intoxicated. He is scheduled to appear in court for a preliminary hearing Oct. 27.

Related stories from San Luis Obispo Tribune