JAMES F. McKAY III, Judge.

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 $50,000.00 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 $50,000.00 and a 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 $50,000.00 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. 9:2800.17.

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 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 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, 2006-0999 (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 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., 2007-0294, 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, 2010. 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. 9:2798.4. La. R.S. 2798.4 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 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:

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. 9:2800.17. 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, 2008. In pertinent part, that statute read as follows:

La. R.S. 2800.17.

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. 9:2800.17 was applicable in the instant case.

CONCLUSION

For the above and foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

TOBIAS, J., 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:

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 1500 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.1 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.

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:

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.2

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.3 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."

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.4 He testified that he suffers constant pain every day, although the mornings are worse. Daily medication is necessary to deal with the pain.

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.5

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 $50,000.00.6 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.

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. 9:2800.17.7

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:

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:

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:

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.

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:

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:

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:

See Mart v. Hill, 505 So.2d 1120, 1127 (La. 1987).

In Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 883 (La. 1993), the Court stated:

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.9

The record contains the photographs of the accident scene, showing inter alia the position of the ambulance following the accident.10 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.

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:

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.11 I am unable to find any fault on the part of Advanced in this case.

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.