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Donald Mealy v. B-Mobile

May 24, 2011

DONALD MEALY, PLAINTIFF AND APPELLANT,
v.
B-MOBILE, INC., ET AL., DEFENDANTS AND RESPONDENTS.



Los Angeles County Super. Ct. No. YC058891 APPEAL from a judgment of the Superior Court of Los Angeles County, Andrew C. Kauffman, Judge. Affirmed in part and reversed in part with directions.

The opinion of the court was delivered by: Croskey, Acting P. J.

CERTIFIED FOR PUBLICATION

Donald Mealy appeals a defense judgment on his counts against B-Mobile, Inc., and Guldmann, Inc., for loss of consortium and negligent infliction of emotional distress after the granting of a motion for judgment (Code Civ. Proc., § 631.8) in a non-jury trial. He contends the trial court's findings that he suffered no cognizable damages on either count are based on legal error and are not supported by the evidence. We conclude that the evidence compels the conclusion that Donald Mealy suffered a compensable loss of consortium and that the trial court's finding to the contrary was error. We also conclude that Donald Mealy has shown no error in the denial of relief on his count for negligent infliction of emotional distress. We therefore will affirm the judgment in part and reverse it in part.

FACTUAL AND PROCEDURAL BACKGROUND

1. Factual Background

Donald Mealy, born in 1925, and Adelaide Mealy, born in 1927, married in 1951. Adelaide Mealy was stricken with polio in 1952 and suffered almost complete paralysis in both legs. She was confined to a wheelchair after that time, but was able to drive a car and work outside the home. She had five children and worked as a counselor for Catholic Social Services for 30 years, until she retired at the age of 63 in 1990. She began to lose strength in her arms at about that time, and mobility became more difficult.

Adelaide Mealy used a device known as a Hoyer lift to transfer her from the bed to a wheelchair beginning in approximately 2000. She would rest on a sling that was suspended from an arm by two chains. She fell from the device in 2006, suffering a broken hip. She recuperated within one year.

The Mealys replaced the Hoyer lift with a Guldmann lift system. The new lift system included a sling with straps to support her, an electric motor to lift and lower her, and a track mounted overhead to transport her from the bedroom to the bathroom. Donald Mealy transferred his wife in and out of bed and from the bedroom to the bathroom using the lift system. After being transferred from the bed in the morning, she typically would sit in her wheelchair for three to five hours at a time, resting in bed for an hour at noon and again late in the afternoon. She was able to do household chores such as mop and sweep the floor, clean house, cook, and garden. She also participated in leisure activities away from home such as eating lunch with friends, visiting family out of town, and going to parks and art galleries. Apart from having to be transferred into and out of bed, she was very independent.

In August 2008, part of the sling gave way as Donald Mealy was preparing to lower his wife onto the commode, causing her to fall to the floor. She lay on the floor for approximately 10 to 12 minutes until the paramedics arrived. She spent three days in the hospital followed by three weeks at a rehabilitation center. She suffered a hip fracture in the fall. Her extended bed rest resulted in atrophy of her trunk muscles.

After the fall, Adelaide Mealy requires assistance in almost every aspect of her daily living. She is unable to groom herself as she was before the fall. She is able to sit in her wheelchair for only two hours at a time, after which she requires bed rest to relieve the pain. She is incontinent, which she was not before the fall. She is unable to do household chores or participate in leisure activities as before. Her husband has become her full-time caretaker.

2. Trial Court Proceedings

Plaintiffs filed a complaint against the defendants in January 2009, alleging counts by Adelaide Mealy for negligence, products liability and breach of warranty, and counts by Donald Mealy for loss of consortium and negligent infliction of emotional distress. A non-jury trial commenced in March 2010.

Donald Mealy testified at trial on cross-examination:

Question: "You're with your wife more now, not less than ...


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