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O'Connor v. Litchfield

12/31/2003

Disposition: AFFIRMED.


Defendant-appellant, Elmer Litchfield in his capacity as the Sheriff of East Baton Rouge Parish (the Sheriff), appeals the trial court's judgment awarding damages in survival and wrongful death actions in favor of plaintiffs-appellees, Janice O'Connor and George O'Connor, Jr., the surviving widow and son of deputy lieutenant George O'Connor, Sr. (Lt. O'Connor). The O'Connors answer the appeal. We affirm.



FACTUAL AND PROCEDURAL BACKGROUND


On April 2, 1997, Lt. O'Connor, a long-term employee of the East Baton Rouge Sheriffs Office, was working as a shift lieutenant at the Kleinpeter Substation when he slipped and fell on a wet floor which had recently been mopped by a trustee/innate who had been transported to the substation by sheriff deputies for the purpose of performing maintenance of the premises. Lt. O'Connor initially thought he had merely sprained his ankle but when the swelling had not abated, at the direction of his supervisor, he sought medical attention. After x-rays were taken, Lt. O'Connor was advised that he had sustained an ankle fracture. Because he experienced continued weakness in his right leg, his treating physician referred him to a neurologist, Dr. Steven Zuckerman. Based on continued complaints of muscle weakness, as well as difficulty with speaking and swallowing, Dr. Zuckerman concluded that some of Lt. O'Connor's symptoms could be explained in part by a disc herniation with compression on his cervical spinal cord. Dr. Zuckerman referred Lt. O'Connor to a neurosurgeon who performed surgery on Lt. O'Connor's cervical spine in March 1998.



Lt. O'Connor filed this lawsuit against his employer in March 1998 seeking redress for injuries to his ankle, neck, and head. Despite the March 1998 surgery, Lt. O'Connor continued to experience the symptoms for which he had been referred to Dr. Zuckerman: muscle weakness as well as an increased inability to speak and swallow. After consultation with experts in Houston, Texas, on May 13, 1998, Dr. Zuckerman diagnosed Lt. O'Connor with Amyotrophic lateral sclerosis (ALS). On December 28, 1998, Lt. O'Connor died.



On December 16, 1999, Janice O'Connor and George O'Connor, Jr., supplemented the earlier-filed petition, substituting themselves as proper-party plaintiffs and averring entitlement to damages for the survival action and wrongful death of Lt. O'Connor. After a two-day trial, the trial court awarded $404,894.83 for the survival action. Awards of $300,000 in favor of Janice and $200,000 in favor of George were made for their respective wrongful death claims. Costs were assessed against the Sheriff. From the judgment signed on October 9, 2002, the Sheriff appeals.



On appeal, the Sheriff challenges the trial court's liability conclusion; apportionment of fault; failure to reduce the amount of medical damages awarded in the survival action for payments and write offs made by the employer for Lt. O'Connor's medical expenses; and failure to statutorily limit the O'Connors' total recovery to $500,000. In their answer, the O'Connors aver the trial court's failure to render awards to each of them for loss of consortium damages constitutes reversible error.



LIABILITY


The parties do not disputed that in this lawsuit although the Kleinpeter Substation was outfitted with orange warning cones that cautioned of the wet condition of the floor, at the time and place of Lt. O'Connor's fall, these devices were not in place. According to the testimony of all the witnesses, it was the responsibility

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