JERYD ZITO NO CA-0218 VERSUS COURT OF APPEAL ADVANCED EMERGENCY MEDICAL SERVICES, INC. AND EMPIRE INDEMNITY INSURANCE COMPANY FOURTH CIRCUIT

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1 JERYD ZITO VERSUS ADVANCED EMERGENCY MEDICAL SERVICES, INC. AND EMPIRE INDEMNITY INSURANCE COMPANY * * * * * * * * * * * NO CA-0218 COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA APPEAL FROM 25TH JDC, PARISH OF PLAQUEMINES NO , DIVISION B HONORABLE JOY COSSICH LOBRANO, JUDGE * * * * * * JAMES F. MCKAY III JUDGE * * * * * * (Court composed of Judge James F. McKay III, Judge Max N. Tobias, Jr., Judge Daniel L. Dysart) TOBIAS J., DISSENTS AND ASSIGNS REASONS. GILBERT V. ANDRY IV THE ANDRY LAW FIRM, L.L.C. 610 Baronne Street New Orleans, Louisiana Counsel for Plaintiff/Appellee STEPHEN N. ELLIOTT CAROLINE D. ELLIOTT BERNARD CASSISA ELLIOTT & DAVIS, APLC 1615 Metairie Road P. O. Box Metairie, Louisiana Counsel for Defendants/Appellants AFFIRMED

2 In this auto tort case, the defendants, Advanced Emergency Medical Services, Inc. and Empire Indemnity Company, appeal the trial court s judgment in favor of the plaintiff, Jeryd Zito, and the trial court s award of damages to him in the amount of $50, plus costs and judicial interest from the date of judicial demand until paid. We affirm. FACTS AND PROCEDURAL HISTORY On June 7, 2006, at approximately 10:05 p.m., Jeryd Zito was travelling southbound in the right lane of traffic on Louisiana Highway 23 in Plaquemines Parish. A disabled ambulance, owned and registered to Advanced Emergency Medical Services, was stopped on the right side of the roadway. The ambulance did not have any hazard lights or signals and caused an obstruction to the right lane of southbound Highway 23. Mr. Zito s vehicle collided with the disabled ambulance and he suffered personal injuries and property damage as a result. Mr. Zito filed suit against Advanced EMS and its insurer, Empire Indemnity Company. Mr. Zito stipulated that his damages were below $50, and a 1

3 bench trial was held. The trial court found that the ambulance was negligently parked on the roadway and that the defendants were solely liable for the accident. The trial court also found that Mr. Zito experienced herniated discs in his neck, facial lacerations and disfigurement, as well as other injuries and lost wages as a result of the accident. The trial court awarded Mr. Zito $50, plus costs and judicial interest from the date of judicial demand until paid. It is from this judgment that the defendants now appeal. DISCUSSION On appeal, the defendants raise the following assignments of error: 1) the trial court erred in finding that the accident was caused by the fault of Advanced EMS; 2) the trial court was clearly wrong in allocating 100% fault to Advanced EMS; 3) the trial court abused its discretion in not allowing Dr. George to testify and excluding his proffered testimony; 4) the trial court erred in failing to find that Advanced EMS is immune from liability pursuant to La. R.S. 9:2798.4; 5) the trial court erred in failing to find that Advanced EMS is statutorily immune pursuant to the Louisiana Homeland Security and Emergency Assistance and Disaster Act, La. R.S. 29:271, et seq., and particularly La. R.S. 29:735; and 6) the trial court erred in failing to find that Advanced EMS is statutorily immune pursuant to the Louisiana Homeland Security and Emergency Assistance and Disaster Act, La. R.S. 9: In their first two assignments of error, the defendants contend that the trial court erred in finding that the accident was caused by Advanced EMS and that 2

4 Advanced EMS was 100% at fault in the accident. These are clearly findings of fact. It is well established that 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, and where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La. 1978); Watson v. State farm Fire and Casualty Ins. Co., 469 So.2d 967 (La. 1985). Where there are two permissible views of the evidence, the factfinder s choice between them cannot be manifestly erroneous or clearly wrong. Id. When findings are based on determinations regarding the credibility of witnesses, the manifest error clearly wrong standard demands great deference to the trier of fact s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener s understanding and belief in what is said. Canter v. Kohring, 283 So.2d 716 (La. 1973). Where two permissible views of the evidence exist, the factfinder s choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 883 (La. 1993). The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder s conclusion was a reasonable one. Id. at 882. The reviewing court may not disturb reasonable evaluations of credibility and reasonable inferences of fact 3

5 when viewed in light of the record in its entirety even though it feels its evaluations are more reasonable. Id. 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. Id. To reverse a factfinder s determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and the record establishes that the finding is clearly wrong. Rabalais v. Nash, (La. 3/9/07), 952 So.2d 653. A trier of fact s findings as to percentages of fault are factual and in the absence of clear or manifest error, must be upheld on appeal. Allen v. Rawlins, 669 So.2d 1282 (La.App. 4 Cir. 1996); Fairconetue v. Williams, 482 So.2d 198 (La.App. 4 Cir. 1986). In the instant case, the trial court based its findings on the testimony and other evidence adduced at trial, particularly the testimonies of the plaintiff and Michael Gauthier. Mr. Gauthier testified that approximately twenty-three minutes before the accident at issue in this case, he had to swerve to avoid hitting the disabled ambulance. Mr. Gauthier also testified that the ambulance had no flares or markings. Although there was conflicting testimony regarding the position of the ambulance relative to the roadway, the trial court chose to accept the testimony of the plaintiff and Mr. Gauthier. Clearly, there was evidence in the record to make it reasonable for the trial court to find that the accident was caused by Advanced EMS. There was also no clear or manifest error in the trial court s 4

6 allocating 100% of the fault in the accident to Advanced EMS because but for the ambulance being where it was the accident would never have happened. In their third assignment of error, the defendants contend that the trial court abused its discretion in not allowing Dr. William George to testify as an expert and excluding his proffered testimony. Trial courts are generally given great discretion regarding pre-trial orders and their enforcement and modification. See Munster v. Bill Watson Ford, Inc., , p. 3 (La.App. 4 Cir. 10/24/07), 970 So.2d 36. The trial court issued a scheduling order on June 11, 2010 and trial was scheduled to begin on August 31, It was ordered that all discovery be completed within sixty days prior to trial. On August 3, 2010, Advanced EMS filed a supplemental witness list adding Dr. George as an expert witness. Notice of this witness was given within twenty-eight days of trial. The plaintiff filed a motion to quash Dr. George s testimony. The trial court granted this motion. Considering the violation of the court s pre-trial order and the proximity to the date of trial, this was not an abuse of the trial court s discretion. In their fourth assignment of error, the defendants contend that the trial court erred in failing to find that Advanced EMS is immune from liability pursuant to La. R.S. 9: La. R.S addresses immunity from liability when the injured person is driving under the influence of alcoholic beverages or drugs. There is no evidence in the record to support this contention. The defendants base their contention on the testimony of Dr. George, which the trial court properly 5

7 excluded. In any event, Dr. George s testimony would been inconclusive as to this issue. In their fifth assignment of error, the defendants contend that the trial court erred in failing to find that Advanced EMS is statutorily immune pursuant to the Louisiana Homeland Security and Emergency Assistance and Disaster Act, La. R.S. 29:721, et seq., particularly la. R.S. 29:735. La. R.S. 29:735 provides in pertinent part: A. (1) Neither the state nor any political subdivision thereof, nor other agencies, nor, except in the 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. La. R.S. 29:735. In the instant case, the trial court found that the disabled ambulance was not engaged in any homeland security and emergency preparedness activity, at the time of the accident. Based on the record before this Court, we find no error in the trial court s finding. Accordingly, La. R.S. 29:735 is not applicable in this case. In their final assignment of error, the defendants contend that the trial court erred in failing to find that Advanced EMS is statutorily immune pursuant to the Louisiana Homeland Security and Emergency Assistance and Disaster Act, La. R.S. 9: That law was enacted by the Louisiana Legislature by 2006 Acts, No. 402, with retroactive effect to August 29, 2005; the statute s effectiveness terminated by law on August 28, In pertinent part, that statute read as follows: 6

8 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, 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. La. R.S Clearly, a disabled ambulance on the side of the road is not engaged in operational activity in the aftermath of Hurricanes Katrina and Rita. Accordingly, we find no error in the trial court s failure to find that La. R.S. 9: was applicable in the instant case. CONCLUSION For the above and foregoing reasons, the judgment of the trial court is affirmed. AFFIRMED 7