Zito v. Advanced Emergency Medical Services, Inc.

89 So. 3d 372, 2012 WL 1605868, 2012 La. LEXIS 1314
Supreme Court of Louisiana·Decided May 8, 2012·No. No. 2011-C-2382·Published·Cited by 11 cases

Opinions

PER CURIAM.

I ;In this case, we are called upon to determine whether the district court erred in assessing 100% of the fault to defendants for an accident in which plaintiffs vehicle struck a stalled ambulance belonging to defendants. For the reasons that follow, we conclude the district court’s factual findings are manifestly erroneous, and therefore reverse the district court’s judgment.

FACTS AND PROCEDURAL HISTORY

On June 7, 2006, an ambulance belonging to Advanced Emergency Medical Services, Inc. (“Advanced”) was traveling southbound on Louisiana Highway 28, a four-lane highway in Plaquemines Parish. Due to transmission problems, the ambulance became disabled, and was parked on the shoulder of the highway.

At approximately 10:05 p.m. on the night of June 7, 2006, plaintiff, Jeryd Zito, was proceeding southbound in the right-hand lane of Highway 23 in a pickup truck. Plaintiffs truck struck the left rear corner and left side of the ambulance.

Subsequently, plaintiff filed the instant suit against Advanced and its insurer, Empire Indemnity Insurance Co. Plaintiff stipulated his damages from the accident did not exceed $50,000, and the case proceeded to a bench trial.

l2At trial, the district court received the deposition of the investigating officer, Louisiana State Trooper Henry Thompson, into evidence. Trooper Thompson, a fourteen-year veteran with the State Police, testified he investigated the accident, arriving at 10:10 p.m. From the skid marks left by the ambulance on the shoulder of the road, Trooper Thompson believed the ambulance was parked approximately five feet from the right travel lane. According to Trooper Thompson, the ambulance was covered in reflective tape, and he was able to see its reflection from approximately three to five-tenths of a mile away. Trooper Thompson observed no evidence at the scene to indicate plaintiff tried to brake prior the collision. Based on his investigation, Trooper Thompson issued plaintiff a citation for careless operation of a vehicle. Trooper Thompson also testified that plaintiff admitted to him he had reached over to place his cell phone on the [374]*374passenger seat of his vehicle, at which time he veered to the right and hit the ambulance.

Gary Jones, the president of Advanced, testified the company was based in North Louisiana, and was operating in Plaque-mines Parish pursuant to a state contract to assist in recovery efforts following Hurricanes Katrina and Rita. He stated the ambulance involved in the accident was one of the ambulances providing service under this contract. According to Mr. Jones, the ambulance developed transmission problems, and was moved to the side of the road a few hours before the accident. He also testified the ambulance was covered in Scotchlite, a reflective tape.

Plaintiff testified on his own behalf, stating that on the night of the accident he was headed southbound on Highway 23 to pick up a friend, and was traveling at approximately 60 to 65 miles per hour. He testified he never saw the ambulance until he hit it, and never saw any reflective tape on the ambulance. On direct examination, plaintiff testified that he had picked up his phone to call his friend, and hung up thelsphone immediately before the accident. However, on redirect, he stated he was not on his cell phone or reaching for it at the time of the accident. Plaintiff admitted he received a ticket for careless operation of a vehicle, and paid the ticket without contesting it.

Plaintiff also testified that on the date of the accident he was taking various prescription narcotic drugs (Valium, Lortab, and methadone) for a previous back injury, explaining that he last took his prescription medication the morning of the accident. Although amphetamines were found in plaintiffs blood analysis performed at the hospital immediately after the accident, plaintiff denied using amphetamines two to three days before the accident.

Michael Gauthier, a friend of plaintiffs family, testified for plaintiff. He reported that he was traveling southbound on Highway 23 shortly before plaintiffs accident. Mr. Gauthier stated he first saw the ambulance approximately 200 to 300 feet away. According to Mr. Gauthier, the ambulance was clearly visible when it came into view of his headlights, as it was marked with reflective tape and reflectors. Although he moved slightly over in the right lane when he passed the ambulance, he testified he was able to remain fully in the right-hand lane. He testified the ambulance was off the road, but close to or possibly on the white line.

At the conclusion of trial, the district court rendered judgment for plaintiff and against defendants in the amount of $50,000, plus costs and interest from the date of demand. In reasons for judgment, the district court stated:

This suit arises out of an accident that occurred on or about June 7, 2006, on Louisiana Highway 23 at approximately 10:05 p.m. Plaintiff was traveling south bound in the right lane of traffic when an ambulance, owed and registered to Advanced EMS, was stopped on the right side of the roadway disabled, without hazard lights or signals. The ambulance was not completely out of the travel lane. Just 23 minutes prior to the accident in question, Mr. Michael 14 Gauthier had to swerve to avoid hitting the unmarked ambulance. Mr. Gauthier also testified that the ambulance was blocking the right lane of travel with no flares or markers. Plaintiffs vehicle collided with the disabled ambulance, and both personal and property damages resulted.
The court finds that the ambulance owned and operated by Advanced EMS was negligently parked on the roadway and was solely liable for the accident in [375]*375question. The court also finds no comparative fault on the part of plaintiff. It is uncontested that there were no lights or signals in operation on the ambulance at the time of the accident. Louisiana Revised Statute 32:141 provides that a vehicle left unattended on any highway between sunset and sunrise shall display appropriate signal lights to warn approaching vehicles of its presence. The negligence of Advanced EMS resulted in the impact of the ambulance with plaintiffs truck, resulting in a severe accident in which the plaintiff suffered significant injuries.

Defendants appealed. The court of appeal affirmed in a split opinion. Zito v. Advanced Emergency Medical Services, 11-0218 (La.App. 4 Cir. 9/28/11), 72 So.3d 490 (not designated for publication). The majority concluded the district court’s factual findings were not manifestly erroneous. A dissenting judge disagreed with the majority, finding no reasonable review of the record supported the district court’s judgment, and concluding plaintiffs negligence alone caused the accident.

Upon defendants’ application, we granted certiorari to review the correctness of the judgments below. Zito v. Advanced Emergency Medical Services, Inc., 11-2382 (La.1/13/12), 77 So.3d 967. The sole issue presented for our consideration is whether the district was manifestly erroneous in finding the sole cause of the accident was defendants’ negligence.

DISCUSSION

It is well-settled in our jurisprudence that a reviewing court may not disturb the factual findings of the trier of fact in the absence of manifest error. Ardoin v. 5Firestone Polymers, L.L.C., 10-0245 at p. 6 (La.1/19/11), 56 So.3d 215, 219.

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Zito v. Advanced Emergency Medical Services, Inc., 89 So. 3d 372, 2012 WL 1605868, 2012 La. LEXIS 1314 (La. 2012).

89 So. 3d 372 (Zito v. Advanced Emergency Medical Services, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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