Opinion
NO. 2011-CA-0218
09-28-2011
JERYD ZITO v. ADVANCED EMERGENCY MEDICAL SERVICES, INC. AND EMPIRE INDEMNITY INSURANCE COMPANY
, DISSENTS AND ASSIGNS REASONS.
Sometimes a reviewing court makes serious errors in reviewing the judgments from the court(s) below. The majority's affirmation of the trial court's judgment in favor of Mr. Zito is one of those sometimes, so much so that one would question whether the majority and I read the same record on appeal. The trial court's judgment is manifestly erroneous and clearly wrong as a matter of law and fact and must be reversed.
No evidence in this case supports the following statements made by the majority:
• The ambulance caused an obstruction to the right lane of southbound Highway 23.
Michael Gauthier swerved to avoid hitting the disabled ambulance.
Mr. Gauthier testified that the ambulance had no flares or markings.
On 7 June 2006, an Advanced Emergency Medical Services, Inc. ambulance traveling southbound on Louisiana Highway 23 in Plaquemines Parish broke down due to transmission problems and became disabled. The ambulance was moved to the shoulder of Highway 23. Several hours later, Mr. Zito, was traveling southbound in the right-hand lane of Highway 23 in a 2001 Chevrolet l500 pickup truck when he hit the left rear corner and left side of the ambulance. Highway 23 is a four-lane highway with two lanes going south and two lanes going north at the point of the accident.
Trooper Henry Thompson, a 14-year Louisiana State Police officer with Troop B, investigated the accident and testified at trial by way of deposition. According to Trooper Thompson, he arrived at the scene of the accident around 10:10 p.m.
It was Trooper Thompson's determination and he testified that, from the skid marks/tire marks left by the ambulance on the shoulder of the road, the ambulance was parked approximately five feet from the right-hand travel lane of the roadway prior to impact. He also observed reflective tape on the ambulance as he was approaching the scene. According to Trooper Thompson, the ambulance was covered in reflective tape; he was able to see the reflection of the ambulance from three-to-five-tenths of a mile away. Trooper Thompson observed no evidence at the scene indicating that Mr. Zito tried to brake prior to crashing into the ambulance. Mr. Zito was issued a ticket by Trooper Thompson for careless operation of a motor vehicle. Either at the scene or later at the hospital, Mr. Zito told the trooper that he had reached over to place his cell phone on the passenger seat of his vehicle, at which time he veered right and hit the ambulance.
This location of the ambulance is discussed in greater detail infra.
Gary Jones, President of Advanced, testified on behalf of the defendants at trial. Advanced is an ambulance service based in North Louisiana in the town of Minden. As a result of Hurricanes Katrina and Rita, Advanced originally contracted with the federal government to provide among other things emergency medical services in Plaquemines Parish.
When the contract with the federal government ended, Advanced was awarded a contract with the state in March 2006. Its purpose was to provide services and assist Plaquemines Parish in recovery efforts. The ambulance involved in this accident was one of the ambulances providing services under the state contract.
According to Mr. Jones, the ambulance was covered in Scotchlite, a reflective tape. Mr. Jones also testified that the ambulance was moved to the shoulder of Highway 23 a few hours prior to this accident because it was having transmission problems and was inoperable.
Mr. Zito testified that on the night of the accident he was southbound on Highway 23, headed to pick up a friend to go shoot pool, traveling at approximately 60 m.p.h. He stated that he never saw the ambulance until he actually made impact with it. Mr. Zito said he never saw any reflective tape on the ambulance and only saw a "flash" of an object before hitting the ambulance. Under direct examination, he stated:
I'm heading down there; and, actually, the only part about a phone I can think of that might have came up was, when I passed the checkpoint, or coming up on the checkpoint, I picked the phone up. I called him. I said I was about, you know, 15 minutes away. I hung the phone up, and it--it just jumped out at me. You know? And--and the next thing I know, I'm a couple of hundred yards on side of the road flipping.
Later in the trial, Mr. Zito sought to change his previous testimony and admissions (in the petition and pre-trial inserts) that he was placing his phone on the passenger seat immediately before the time of impact. On redirect, he stated that he was not on the cell phone or reaching for the cell phone at the time of the accident. The plaintiff confirmed that he received a ticket from Trooper Thompson for careless operation of a motor vehicle. He testified that he paid the ticket.
Mr. Zito entered a guilty plea by paying the fine prescribed. A plea of guilty is an admission against interest by the driver, and is admissible as relevant evidence to show fault. Moore v. Skidmore, 301 So.2d 428, 430 (La. App. 4th Cir. 1974). As such, it may be given some weight; however, it is not conclusive. The amount of weight to be given such a plea must be determined in connection with other evidence offered. Proper considerations include the circumstances surrounding the issuance of the citation and the reason for the guilty plea. Id.
Mr. Zito testified that he was taking various prescription narcotic drugs for a previous back injury on the date of the accident, namely Valium, Lortab, and methadone. He also stated that, although amphetamines were found in the blood analysis performed at the hospital immediately after the accident, they did not enter his "bloodstream within two to three days before this accident."
Under cross examination, Mr. Zito admitted that he was being treated for pre-existing neck and back injuries prior to the accident. The medical records indicate a car accident in 1999, where Mr. Zito was thrown from his car, and further treatment in 2005.
As a result of the accident, Mr. Zito testified that he sustained a total of eight herniated discs in his neck and back. He had a laceration to his shoulder; a large scar is located there. He also has several scars on the right side of his head. He testified that he suffers constant pain every day, although the mornings are worse. Daily medication is necessary to deal with the pain.
Although the hospital records are in the appellate record, they are almost impossible to decipher. Consequently, I am relying solely on Mr. Zito's testimony regarding his immediate injuries that were treated in the hospital.
Since the accident, Mr. Zito had to change jobs because he was required to lift 50-60 pound fire extinguishers and could no longer perform his duties. He asserts that he cannot perform many recreational activities and the pain has affected his relationship with his wife and children. Many days are spent on the couch.
The last visit to his treating physician for this accident was in December 2009. The records do not support his claim of having eight herniated discs. At that time, Mr. Zito was advised of alternatives to the narcotic medication he was taking for chronic pain, which included steroid injections and non-addictive medication for pain. He was assigned a permanent anatomical impairment of 10-15% of the lumbar spine. He was advised to avoid repetitive stooping or bending and repetitive lifting of objects over 10-12 pounds, as well as prolonged sitting or standing for approximately 45 minutes without being able to move around or change position. These restrictions would be the same with or without surgery. However, I note that the same impairment rating and restrictions were given to Mr. Zito on 4 May 2005, one year preceding the accident. Medical expenses from the date of the accident until November 2009, totaled $30,107.51.
Michael Gauthier, a family friend of Mr. Zito, testified for the plaintiff at trial. Mr. Gauthier stated that he was traveling south on Highway 23 a short time before Mr. Zito's accident. Mr. Gauthier was traveling in the right-hand lane of the highway in his Chevrolet pickup truck at approximately 55 m.p.h. when he first noticed the ambulance about 200 to 300 hundred feet away. According to Mr. Gauthier, as soon as the ambulance came into the view of his headlights, it was clearly visible because of the reflective tape and reflectors on the ambulance itself. Although he moved over slightly, Mr. Gauthier was able to remain fully in the right-hand lane of the two southbound travel lanes while passing the ambulance; he testified that the ambulance was off the road, but close to, or possibly on, the white fog line.
It is clear from his testimony that the ambulance was not in a travel lane of the highway and thus was on the shoulder.
This matter proceeded to trial on 31 August 2010. The trial court found that the accident was caused by the sole fault of Advanced. In its reasons for judgment, the court stated that the ambulance was not completely out of the travel lane and that Mr. Gauthier testified that it was blocking the right lane of travel with no flares or lights. See La. R.S. 32:141. The trial court noted that the plaintiff stipulated before trial that he damages would not exceed $50,000.00. However, it stated that his damages far exceeded that amount, but did not indicate what that amount might be. Therefore, the court awarded $50,000.00 plus costs and judicial interest from the date of judicial demand, until paid. This timely appeal followed.
Although originally a jury trial, Mr. Zito later stipulated that his damages were less than $50,000.00 in his supplemental and amending petition filed on 18 September 2008. The case proceeded to a trial as a bench trial. See La. C.C.P. art. 1732 A.
Advanced has assigned several errors. It argues that the trial court erred by finding that it caused the accident and was 100% at fault. It claims that the trial court abused its discretion by refusing to allow Advanced to present the testimony of its pharmacologist and toxicologist, Dr. William J. George. Finally, it contends that the trial court erred when it failed to find Advanced statutorily immune from liability pursuant to the following statutes: La. R.S. 9:2798.4; La. R.S. 29:721, et seq., and particularly La. R.S. 29:735; and La. R.S. 9:2800.17.
During the course of the litigation, Advanced filed a writ application with this court after the trial court denied its motion for summary judgment on the issue of statutory liability. Another panel of the court denied the writ, adding language regarding La. R.S. 9:2900.17 and stating its understanding of the facts of this case. The court's comment on these issues is purely obiter dicta and is not binding on this court. Boyd v. Wackenhut Corp., 08-1388, p. 1 (La. 10/24/08), 993 So.2d 216, 217 (per curiam).
I first address the arguments that Advanced is statutorily immune from liability. It first relies on a section of the "Louisiana Homeland Security and Emergency Assistance and Disaster Act," La. R.S. 29:721, et seq., which was added by 1993 Acts, No. 800, § 1, eff. June 22, 1993. That statute cited is R.S. 29:735, which provides in pertinent part:
A. (1) Neither the state nor any political subdivision thereof, nor other agencies, nor, except in case of willful misconduct, the agents' employees or representatives of any of them engaged in any homeland security and emergency preparedness activities, while complying with or attempting to comply with this Chapter or any rule or regulation promulgated pursuant to the provisions of this Chapter shall be liable for the death of or any injury to persons or damage to property as a result of such activity. [Emphasis supplied.]
I agree with the trial court, that the ambulance in this case was not engaged in "any homeland security and emergency preparedness activities," at the time of the accident. In fact, the ambulance, due to a mechanical failure in its transmission, was not engaged in any activity at all.
The next statute relied upon by the appellant is La. R.S. 9:2800.17, a law that was enacted by the legislature by 2006 Acts, No. 402, with retroactive effect to 29 August 2005; the statute terminated by law on 28 August 2008. It stated in pertinent part:
A. (1) The state, or any political subdivision thereof, or any public entity, meaning and including the state and any of its branches, departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, employees, and their agents, employees, contractors, volunteers, or representatives engaged in any operational decisions or activities in the aftermath of Hurricanes Katrina and Rita shall not be civilly liable for the death of, or any injury to, any person or damage to property as a result of such activity, except in the event of gross negligence or willful misconduct. [Emphasis supplied.]
An inoperative, abandoned ambulance is not engaged in "operational activities" in the aftermath of Hurricanes Katrina and Rita. I find that this statute has no relevance to the facts of this case.
Finally, Advanced cites La. R.S. 9:2798.4, which addresses immunity from liability when the injured person is driving under the influence of alcoholic beverages or drugs:
A. Neither the state, a state agency, or a political subdivision of the state nor any person shall be liable for damages, including those available under Civil Code Article 2315.1 or 2315.2, for injury, death, or loss of the operator of a motor vehicle, aircraft, watercraft, or vessel who:Before one can determine whether this statute has any relevance to the case before us, one must address the assignment of error that the trial court abused its discretion by refusing to allow Advanced to present the testimony of Dr. George.
(1) Was operating a motor vehicle, aircraft, watercraft, or vessel while his blood alcohol concentration of 0.08 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood; orB. The provisions of this Section shall not apply unless:
(2) Was operating a motor vehicle, aircraft, watercraft, or vessel while he was under the influence of any controlled dangerous substance described in R.S. 14:98(A)(1)(c) or R.S. 40:964.
(1) The operator is found to be in excess of twenty-five percent negligent as a result of a blood alcohol concentration in excess of the limits provided in R.S. 14:98(A)(1)(b), or the operator is found to be in excess of twenty-five percent negligent as a result of being under the influence of a controlled dangerous substance described in R.S. 14:98(A)(1)(c); and
(2) This negligence was a contributing factor causing the damage.
A scheduling conference was held via telephone on 21 May 2010 between the trial court and the attorneys representing the parties. A scheduling order, signed by the court, was filed on 11 June 2010 and set the trial to start on 31 August 2010, less than three months later. The trial court's order, relative to the disclosure of experts and information pertinent thereto, specifically required that the disclosures "shall be governed by the provisions of La. C.C.P. arts. 1425 and 1428 (depending on whether the expert is expected to testify or not)." The scheduling order also mandated that a pre-trial brief be filed with the court on or before the seventh day before the pre-trial conference and must include a list of all witnesses, actual, may-call, and rebuttal. The pre-trial conference was set for 27 August 2010.
On 3 August 2010, Advanced filed a supplemental witness list adding Dr. George as an expert witness. On 12 August 2010, the plaintiff filed a motion to quash the addition of Dr. George because he (his counsel) did not have sufficient time to depose the witness and, in violation of La. C.C.P. art. 1425, no expert report was available. Advanced opposed the motion, stating that it had complied with the scheduling order and no expert report was required. The matter was heard on 25 August, less than a week before trial; the motion to quash was granted in open court, with a judgment signed the next day. Essentially, the court ruled that Advanced had violated both the scheduling order and article 1425 on providing an opponent with the name and address of an expert witness and perhaps a report from that expert. Advanced was permitted to proffer Dr. George's testimony after the trial concluded.
In the proffer in which counsel for all parties participated and questioned the witness, Dr. George testified that the drug regimen that Mr. Zito was under included hydrocodone, a narcotic analgesic; Valium (diazepam), an anti-anxiety drug; methadone; and Soma, a muscle relaxant. All of these are central-nervous-system depressants in one way or another; they tend to produce effects such as sedation, lethargy, and drowsiness. Someone taking these drugs would experience sedation and a decreased reaction time.
The ambulance report noted that, on the night of the accident, Mr. Zito had taken Soma between 5:30 and 6:00 p.m., Valium between 30 to 50 minutes before the accident, and Lortab 30 to 40 minutes before the accident. In the emergency room, Mr. Zito also admitted taking hydrocodone on the night of the accident, as well as drinking alcohol.
In Dr. George's opinion, based on the combination of drugs, their dosages, and the times they were taken, Mr. Zito would have had a significant impairment in the terms of alertness and reaction time.
Under cross examination, Dr. George conceded that someone with a head injury may have misspoken with regard to the time the various drugs were taken. However, as the ambulance and emergency room reports were generated so soon after the accident and were fairly consistent, Dr. George did not think it was likely that they were both wrong. Dr. George also admitted that had the drugs been taken earlier in the day, their effects would be less.
Article 1425 of the Code of Civil Procedure states:
A. A party may through interrogatories or by deposition require any other party to identify each person who may be used at trial to present evidence under Articles 702 through 705 of the Louisiana Code of Evidence.
B. Upon contradictory motion of any party or on the court's own motion, an order may be entered requiring that each party that has retained or specially employed a person to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony provide a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor and the data or other information considered by the witness in forming the opinions. The parties, upon agreement, or if ordered by the court, shall include in the report any or all of the following: exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.
C. The disclosures of Paragraph B of this Article shall be made at the times and in the sequence directed by the court. In the absence of other directions from the court or stipulation by the parties, the disclosures required pursuant to Paragraph B of this Article shall be made at least ninety days before the trial date or, if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Paragraph B of this Article, within thirty days after the disclosure made by the other party. The parties shall supplement these disclosures when required by Article 1428.
D. (1) Except as otherwise provided in Paragraph E of this Article, a party may, through interrogatories, deposition, and a request for documents and tangible things, discover facts known or opinions held by any person who has been identified as an expert whose opinions may be presented at trial. If a report from the expert is required under Paragraph B, the deposition shall not be conducted until after the report is provided.
(2) A party may, through interrogatories or by deposition, discover facts known by and opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Article 1465 or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.
(3) Unless manifest injustice would result, the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under this Paragraph; and with respect to discovery obtained under Subparagraph (2) of this Paragraph, the court shall also require the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.
E. (1) The expert's drafts of a report required under Paragraph B of this Article, and communications, including notes and electronically stored information or portions thereof that would reveal the mental impressions, opinions, or trial strategy of the attorney for the party who has retained the expert to testify, shall not be discoverable except, in either case, on a showing of exceptional circumstances under which it is impractical for the party seeking discovery to obtain facts or opinions on the same subject by other means.
(2) Nothing in this Article shall preclude opposing counsel from obtaining any facts or data the expert is relying on in forming his opinion, including that coming from counsel, or from otherwise inquiring fully of an expert into what facts or data the expert considered, whether the expert considered alternative approaches, or into the validity of the expert's opinions.
F. (1) Any party may file a motion for a pretrial hearing to determine whether a witness qualifies as an expert or whether the methodologies employed by such witness are reliable under Articles 702 through 705 of the Louisiana Code of Evidence. The motion shall be filed not later than sixty days prior to trial and shall set forth sufficient allegations showing the necessity for these determinations by the court.
(2) The court shall hold a contradictory hearing and shall rule on the motion not later than thirty days prior to the trial. At the hearing, the court shall consider the qualifications and methodologies of the proposed witness based upon the provisions of Articles 104(A) and 702 through 705 of the Louisiana Code of Evidence. For good cause shown, the court may allow live testimony at the contradictory hearing.
(3) If the ruling of the court is made at the conclusion of the hearing, the court shall recite orally its findings of fact, conclusions of law, and reasons for judgment. If the matter is taken under advisement, the court shall render its ruling and provide written findings of fact, conclusions of law, and reasons for judgment not later than five days after the hearing.
(4) The findings of facts, conclusions of law, and reasons for judgment shall be made part of the record of the proceedings. The findings of facts, conclusions of law, and reasons for judgment shall specifically include and address:
(a) The elements required to be satisfied for a person to testify under Articles 702 through 705 of the Louisiana Code of Evidence.
(b) The evidence presented at the hearing to satisfy the requirements of Articles 702 through 705 of the Louisiana Code of Evidence at trial.
(c) A decision by the judge as to whether or not a person shall be allowed to testify under Articles 702 through 705 of the Louisiana Code of Evidence at trial.
(d) The reasons of the judge detailing in law and fact why a person shall be allowed or disallowed to testify under Articles 702 through 705 of the Louisiana Code of Evidence.
(5) A ruling of the court pursuant to a hearing held in accordance with the provisions of this Paragraph shall be subject to appellate review as provided by law.
(6) Notwithstanding the time limitations in Subparagraphs (1), (2), and (3) of this Paragraph, by unanimous consent of the parties, and with approval by the court, a motion under this Paragraph may be filed,
heard, and ruled upon by the court at any time prior to trial. The ruling by the court on such motion shall include findings of fact, conclusions of law, and reasons for judgment complying with the provisions of Subparagraph (4) of this Paragraph.
(7) The provisions of this Paragraph shall not apply to testimony in an action for divorce or annulment of marriage, or to a separation in a covenant marriage, to a property partition, or to an administration of a succession, or to testimony in any incidental or ancillary proceedings or matters arising from such actions.
(8) All or a portion of the court costs, including reasonable expert witness fees and costs, incurred when a motion is filed in accordance with this Paragraph may, in the discretion of the court, be assessed to the non-prevailing party as taxable costs at the conclusion of the hearing on the motion. [Emphasis supplied.]
Although the trial court, by reference to article 1425, gave the parties a deadline of 90 days before trial in which to disclose expert witnesses, the scheduling order was entered into the record less than 90 days from the trial date. Therefore, it was impossible for Advanced to comply with the statute. On 3 August 2010, Advanced filed a supplemental witness list naming Dr. George as an expert witness and then complied with the order by filing its pre-trial brief on or before the seventh day before the pre-trial conference, again listing Dr. George as a witness. Neither the scheduling order in this case nor article 1425 requires that an oral or written expert report be automatically given to opposing counsel.
Provided that it is not contrary to law, a trial court's rulings in pretrial matters are generally given great deference absent an abuse of discretion. Munster v. Bill Watson Ford, Inc., 07-0294, p. 3 (La. App. 4 Cir. 10/24/07), 970 So.2d 36, 38-39. Additionally, trial courts enjoy great discretion with regard to modification or enforcement of pre-trial orders. Id. Regardless of the deadlines imposed by either the scheduling order or article 1425, as a procedural matter, the trial court erred in striking Dr. George as an expert witness for Advanced. Advanced could not have complied with either based upon the time frame that existed (between the date of the scheduling order issued and the date of trial).
Generally, all relevant evidence is admissible. La. C.E. art. 402. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to a determination of the action more or less probable than it would be without the evidence. La. C.E. art. 401. Whether evidence is relevant is within the discretion of the trial judge, and its ruling will not be disturbed on appeal in the absence of a clear abuse of discretion. State v. Lewis, 97-2854, p. 20 (La. App. 4 Cir. 5/19/99), 736 So.2d 1004, 1017; Belle Pass Terminal, Inc. v. Jolin, Inc., 92-1544, pp. 6-7 (La. App. 1 Cir. 3/11/94), 634 So.2d 466, 476-477, writ denied, 94-0906 (La. 6/17/94), 638 So.2d 1094.
La. C.E. art. 103 A states in pertinent part as follows:
Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.
The proper inquiry for determining whether a party was prejudiced by a trial court's alleged erroneous ruling is whether the alleged error, when compared to the entire record, had a "substantial effect" on the outcome of the case. Roger v. Dufrene, 97-1946, p. 6 (La. App. 4th Cir. 9/9/98), 718 So.2d 592, 596. In this case, it did.
One of Advanced's defenses is that Mr. Zito was significantly impaired at the time of the accident and that his impairment was the cause or a contributory cause of the accident. Dr. George, whose testimony I summarized above, gave an expert opinion that Mr. Zito was impaired at the time of the accident. If the trial court had heard this testimony, it might have assigned to Mr. Zito a percentage of fault such that Advanced could be statutorily immune as per La. R.S. 9:2798.4.
As the majority notes, a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong." Rosell v. ESCO, 549 So. 2d 840 (La. 1989). The Supreme Court has announced a two-part test for the reversal of a factfinder's determinations:
1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, andSee Mart v. Hill, 505 So. 2d 1120, 1127 (La. 1987).
2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).
In Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 883 (La. 1993), the Court stated:
This test dictates that a reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court's finding. Id. The reviewing court must review the record in its entirety to determine whether the trial court's finding was clearly wrong or manifestly erroneous.
Nevertheless, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. See generally, Cosse v. Allen-Bradley Co., 601 So.2d 1349, 1351 (La. 1992); Housley v. Cerise, 579 So.2d 973 (La. 1991); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La. 1990). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. ESCO,
549 So.2d 840 (La. 1989); Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978). However, where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness's story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Rosell, 549 So.2d at 844-45. Nonetheless, this Court has emphasized that "the reviewing court must always keep in mind that 'if the trial court or jury's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.' " Housley v. Cerise, 579 So.2d 973 (La. 1991) (quoting Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La. 1990)).
This court has recognized that "[t]he reason for this well-settled principle of review is based not only upon the trial court's better capacity to evaluate live witnesses (as compared with the appellate court's access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts." Canter v. Koehring Co., 283 So.2d 716 (La. 1973). Thus, where two permissible views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Id. [Emphasis supplied.]
Even if I were reviewing the case under the manifest error/clearly wrong standard, the testimony and photographs completely contradict the trial court's finding that (a) the ambulance was not completely out of the travel lane and (b) Mr. Gauthier testified that it was blocking the right lane of travel.
However, where one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and if the record is otherwise complete, the appellate court should make its own independent de novo review of the record, including the proffered evidence and determine a preponderance of the evidence. Evans v. Lungrin, 97-0541, 97-0577, pp. 6-7 (La. 2/6/98), 708 So.2d 731, 735; Lam v. State Farm Mut. Auto. Ins. Co., 03-0180, pp. 7-8 (La. App. 4 Cir. 4/1/05), 901 So.2d 559, 566, aff'd in part, rev'd in part on other grounds, 05-1139 (La.11/29/06), 946 So.2d 133. This I now do.
As discussed infra, even in the absence the application of a de novo standard of review, the record establishes that the trial court was clearly wrong in holding Advanced 100% at fault for the accident. Moreover, even assuming some Advanced was partially at fault (something that I do not find), its fault was minimal compared to that of Mr. Zito. And the record does not support a judgment for $50,000 when one assigns some percentage of fault to Advanced and computes the highest quantum of damages (general and special) that a reasonable trier of fact could find Mr. Zito sustained and incurred.
The record contains the photographs of the accident scene, showing inter alia the position of the ambulance following the accident. The pictures demonstrate that the ambulance was off the road although the photographs in evidence indicate only a foot or so from the white line that separates the roadway from its shoulder (sometimes called a fog line). The shoulder at the place of the accident is approximately five feet wide; at the end of the shoulder is grass. After the accident, the ambulance's right wheels were resting on the grass. It appears that Mr. Zito's truck struck the ambulance on the left rear corner and left side pushing the ambulance forward, and then pushing it to the right. This is evident from the tire marks left by the ambulance on the pavement as it was pushed by Mr. Zito's truck in the allision.
Inexplicably, when the record was lodged with this court, the original exhibits were not included; this court had to request them and I have actually viewed them. The black and white photocopies of the photographs in the record are of little or no use.
Mr. Gauthier testified that he was able to remain totally in the right-hand lane while passing the ambulance; that the ambulance was off the road, but close to, or possibly on, the white fog line. He also testified that he saw the ambulance clearly with sufficient time to ease slightly to his left when he passed the disabled vehicle. Although I cannot estimate the percentage of impairment that should be assigned to Mr. Zito as a result of the various narcotic drugs that were in his system, I do find that the evidence clearly establishes that his reaction time was slowed. In addition to slowed reaction time, had Mr. Zito not been distracted by the telephone call to his friend (or by placing the phone on the passenger seat of his truck), I find that he could have avoided the ambulance as did his friend, Mr. Gauthier.
Pursuant to La. R.S. 32:141:
A. Upon any highway outside of a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicles shall be available from a distance of two hundred feet in each direction upon such highway.
* * *
C. The driver of any vehicle left parked, attended or unattended, on any highway, between sunset and sunrise, shall display appropriate signal lights thereon, sufficient to warn approaching traffic of its presence.
In this case, Advanced complied with the statute. No evidence exists that the ambulance was left on the traveled portion of the highway. A sufficient unobstructed width of the highway existed for other vehicles to pass without changing lanes. Finally, both Mr. Gautier and Trooper Thompson testified that the ambulance was visible from at least 200 feet away as a result of the reflective tape on the back and sides of the ambulance. I am unable to find any fault on the part of Advanced in this case.
I take judicial notice of the fact that a vehicle traveling 60 m.p.h. covers approximately 87.67 feet in one second (5,260 feet in a mile ÷ 3600 seconds in an hour = 1.46111 feet per second; 1.46111 feet times 60 m.p.h. = 87.66666 feet). Thus, Mr. Zito should have observed the ambulance more than a couple of seconds before the collision. This is more than enough time to completely avoid the ambulance, even assuming the ambulance was in the right hand travel lane of the road, which it was not.
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Therefore, based on the foregoing, I would reverse the judgment of the trial court and render judgment for Advanced Emergency Medical Services, Inc. and Empire Indemnity Insurance Company, dismissing plaintiff's case with prejudice. I respectfully dissent.