Mogabgab v. Orleans Parish School Bd.

• Decision Date: 15 July 1970
• Docket Number: No. 3881,3881
• Citation: 239 So.2d 456
• Parties: Joy MOGABGAB, wife of/and Dr. William J. Mogabgab v. ORLEANS PARISH SCHOOL BOARD, Robert E. O'Neil, Sam A. Mondello, Estelle Barkemeyer, Jack Pizzano, Dr. Carl J. Dolce, and Continental Casualty Company.
• Court: Court of Appeal of Louisiana — District of US

Page 456

239 So.2d 456

Joy MOGABGAB, wife of/and Dr. William J. Mogabgab v. ORLEANS PARISH SCHOOL BOARD, Robert E. O'Neil, Sam A Mondello, Estelle Barkemeyer, Jack Pizzano, Dr Carl J. Dolce, and Continental Casualty Company.

No. 3881.

Court of Appeal of Louisiana, Fourth Circuit.

July 15, 1970.

Rehearing Denied Oct. 5, 1970.

Writ Refused Nov. 25, 1970.

Ivor A. Trapolin, New Orleans, Jack Peebles, Metairie, for plaintiffs-appellants.

Polack, Rosenberg & Rittenberg, Samuel I. Rosenberg and Franklin V . Endom, Jr., New Orleans, for Orleans Parish School Board, Robert E . O'Neil, Sam A. Mondello, Estelle Barkemeyer and Dr. Carl J. Dolce, defendants-appellees.

S. Roccaforte, New Orleans, for Succession of Jack Pizzano, defendant-appellee.

Before SAMUEL, LeSUEUR and SWIFT, JJ.

LeSUEUR, Judge.

The plaintiffs, Joy Mogabgab and her husband, Dr. William J. Mogabgab, filed this suit against the defendants, Orleans Parish School Board, Robert E. O'Neil, head coach at Benjamin Franklin Senior High School, Sam A. Mondello, assistant coach, Estelle Barkemeyer, principal of the school, Dr. Carl J. Dolce, superintendent of Orleans Parish School Board, Jack Pizzano, supervisor of Health, Safety and Physical Education Division of Instruction of Orleans Parish School System, and Continental Casualty Company. Plaintiffs sued to recover a judgment in favor of Mrs. Joy Mogabgab in the amount of $55,000.00, and in favor of Dr. William J. Mogabgab in the amount of $56,634.75, together with a judgment against Continental Casualty Company for $1,693.50, a penalty of 12% On the total claim, and attorneys' fees and costs, which they assert are the damages incurred by the death of their son, Robert, and which they allege resulted from the negligence of the defendants in failing to perform their duty of providing all necessary and reasonable safeguards to prevent accidents, injuries and sickness of the football players at Benjamin Franklin Senior High School, and, also, in failing to provide for prompt treatment when injuries or sickness occur. Plaintiffs further allege that the defendants did not follow the recommendations of the American Medical Association for the prevention of heat stroke and heat exhaustion during football workouts, which they assert was the cause of Robert's suffering a heat stroke or that it at least contributed thereto. Plaintiffs aver that the first symptoms of illness appeared at approximately 5:20 o'clock p.m. on August 16, 1966, and that Robert became unconscious at 5:25 o'clock p.m., after which, plaintiffs allege, improper treatment was administered which contributed or caused deterioration of Robert's condition to such an extent that proper medical treatment was of no avail and death occurred. Plaintiffs further assert that not until 6:45 o'clock p.m . was Mrs. Mogabgab notified of her son's condition and that it was she who notified Dr. J. H. Phillips, who could not be reached until 7:00 o'clock p.m., and it was not until 7:15 o'clock p.m. that Dr. Phillips arrived at the school. After noting Robert's condition, he rushed the boy to Baptist Hospital, arriving there at approximately 7:30 o'clock p.m., where Robert received medical treatment, but because of the delay and improper treatment administered by the defendant coaches, Robert died on August 17, 1966, at 2:30 o'clock a .m., from a heat stroke. Plaintiffs further allege that Estelle Barkemeyer, Dr. Carl J. Dolce and Jack Pizzano were negligent in failing to supervise properly and make certain that football squad workouts at Benjamin Franklin were properly conducted, in failing to see that proper equipment was used and that the coaches were properly trained, and in failing to see that arrangements were made for injured or sick players to be properly cared for.

The defendants answered and denied the allegations of negligence. Defendants admitted that the first signs of illness exhibited by Robert occurred at approximately 5:20 o'clock p.m. on August 16, 1966, when, during the course of football practice, he staggered and became faint, and that Mrs. Mogabgab was not called until approximately 6:30 o'clock p.m., after which she telephoned Dr. John H. Phillips, who arrived at the school at 7:15 o'clock p.m. Defendants further assert that salt tablets and a drinking fountain were available during the workout session, adequate rest periods were provided, and that at the first signs of fatigue, Coach Mondello removed Robert from the workout and sent him to the school bus. Defendants further assert that the boy's skin was cool and damp to the touch at all times, and that he was not unconscious during the ride from Audubon Park, where the practice was held, to Franklin Senior High School, but that he did vomit, and when the bus arrived at the school, at approximately 5:40 o'clock p.m., Robert was assisted into the school, placed on a blanket on the floor, his clothing removed, and immediately he was given a shower with water at room temperature and then covered with a blanket, after which an unsuccessful attempt was made to have him drink salt water. Defendants further assert that not until 6:25 o'clock p.m. was it apparent medical assistance was needed, and that it was then the coaches telephoned the boy's home to determine his parents preference of a physician. Defendants further assert that the first aid administered by them was proper for mild heat exhaustion, which frequently occurs during opening days of football practice. Dr. Dolce and Jack Pizzano alleged that they were completely unaware of the events surrounding the illness and death of Robert, and are not guilty of any acts of negligence contributing to his death. Mrs. Estelle Barkemeyer alleged that she was on vacation on August 16, 1966, and, therefore, was not guilty of any negligence. The defendants plead the contributory negligence of the plaintiffs in permitting their son to play football when they knew, or should have known, he had periodic increases in blood pressure and abnormal heart sounds, and that they assumed the risk.

During the course of the suit, Jack Pizzano died and his wife, Inez C. Pizzano, executrix of his succession, was substituted as defendant in his place.

Following a trial on the merits, the lower court rendered judgment in favor of the defendants, dismissing the plaintiffs' suit, at their cost. From that judgment, the plaintiffs have perfected this appeal.

The record discloses that Robert Mogabgab was on the football squad of Benjamin Franklin Senior High School, and on August 16, 1966, he was engaged in training exercises, the second day of practice for that school year. The coaches, Robert E. O'Neil and Sam A. Mondello, were supervising the practice, which began at 3:45 o'clock p.m. at Audubon Park in New Orleans. At approximately 5:20 o'clock p.m., while participating in an ecercise known as 'wind sprints', Robert displayed fatigue and fell down, after which he was assisted to the school bus by two of his teammates. He was nauseous and vomited prior to entering the bus and while en route to Benjamin Franklin Senior High School.

Robert Wissner, a teammate, testified that youg Mogabgab appeared to collapse when climbing the steps of the bus and that he had to be carried onto the bus. Wayne Webb, a former student and football player at Benjamin Franklin, testified that Robert fell during the wind springs and, within a minute or two, two boys carried him to the bus, with his feet on the ground, but that he was put into the bus, and the boys had difficulty getting him up the steps of the bus . Wayne Webb further testified that while seated on the front seat of the bus Robert seemed to 'lose himself'. He estimated that the bus arrived at the school about 5:40 o'clock p.m., that Robert was helped into the school building, where he was placed on the cafeteria floor on a blanket, and the other players began undressing him. He described Robert's appearance as pale, tired and exhausted. He did not observe Robert talking at any time. He further testified that Robert was later placed in the shower, was taken out about 5:50 o'clock p.m., placed on a blanket, with a...