author: VICTORY, J. JOHNSON, J. KNOLL, J., WEIMER, J.,

text:
    Joseph C. TRASCHER, et al. v. Peter TERRITO, et al.
    No. 2011-CC-2093.
    Supreme Court of Louisiana.
    May 8, 2012.

      Blue Williams, LLP, Brian Carl Bossier, Metairie, LA, Crawford Lewis, PLLC, Samuel Milton Rosamond, III, Baton Rouge, LA, Lee, Futrell & Perles, LLP, Gary Allen Lee, New Orleans, LA, for Applicant.
    Courington, Kiefer & Sommers, LLC, Kaye N. Courington, Forman Perry Watkins Krutz & Tardy, LLP, R. Dean Church, Jr., Frilot, LLC, John J. Hainkel, III, New Orleans, LA, Hailey, McNamara, Hall, Larmann & Papale, LLP, Christopher Kelly Lightfoot, Hebbler & Giordano, LLC, Charles V. Giordano, Metairie, LA, Kuchler Polk Schell Weiner & Richeson, LLC, Deborah DeRoche Kuchler, Logan Law Office, LLC, James Robert Logan, IV, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, Kristopher Todd Wilson, Mart-zell & Bickford, Scott R. Bickford, Ro-shawn Husband Donahue, Phelps Dunbar, LLP, Barbara L. Arras, Simon, Peragine, Smith & Redfearn, LLP, Susan B. Kohn, New Orleans, LA, Willingham, Fultz & Cougill LLP, Thomas L. Cougill, for Respondent.
   VICTORY, J.

| ]This writ application involves the admissibility of a video deposition taken to perpetuate testimony where the deposition was halted due to the deponent’s failing health and fatigue, and the deponent died before his deposition could be continued and before he could be cross-examined by opposing counsel. After reviewing the record and the applicable law, we find that while most of the video deposition is inadmissible, parts of the deposition are admissible under an exception to the hearsay rule. Accordingly, we reverse the judgment of the district court in part and affirm in part.

FACTS AND PROCEDURAL HISTORY

In March 2007, Joseph C. Trascher (Mr. Trascher) filed a petition in the district court seeking an ex parte order to perpetuate his testimony, alleging that he had been diagnosed with asbestosis in August 2006, and that it was unlikely that he would survive more than another six months. Mr. Trascher also alleged he sustained occupational exposures to asbestos while working as a tack welder at the Avondale Shipyard from 1960 to 1964, and at the Equitable Shipyard from 1965-1974. He |grequested service on these parties and a number of other parties he identified as expected defendants in his anticipated suit for damages. The district court granted the ex parte order and the videotaped perpetuation deposition was scheduled for April 3, 2007, at Mr. Trascher’s home.

The deposition began at 2:20 on April 3, 2007, and most of the potential defendants were present through counsel. Mr. Trascher testified about the effects of the failing state of his health and the circumstances of his exposure to asbestos at Avondale. After 15 minutes of direct examination by his attorney, Mr. Trascher indicated he was too fatigued to continue and the deposition was recessed, followed by a discussion by counsel:

PLAINTIFF COUNSEL:
Again, this is Jeff Burg on the record. We just took a break for Mr. Trascher. At this time he’s extremely exhausted. We had to turn up the oxygen. And he just cannot complete this deposition today. We’re certainly going to hold it open. We didn’t get through the work history and some other things that I would like to complete, and I know all defense counsel may have some questions. This may be a situation we may have to do this a few more times. But we have to abide by Mr. Trascher’s wishes during this deposition. And at this time I’m going to conclude the deposition. If anybody would like to put anything on the record at this time, that’s fine, but at this time we’re just going to conclude the deposition.
DEFENSE COUNSEL:
Jeff, you’re going to recess the deposition? It’s not concluding it?
PLAINTIFF COUNSEL:
Mr. Schuette corrected me. And it is correct, I’m not concluding it in the sense of ending it. We’re just going to recess it until another time, in which Mr. Trascher’s in better condition to continue this deposition.
1 .DEFENSE COUNSEL:
This is Gary Lee. For the record, while we have no objection whatsoever to recessing at this time — we certainly respect Mr. Trascher’s situation and his condition — at the same time, I need to reserve all rights to either have an opportunity to continue this deposition at another time to conduct cross-examination and to explore other potential exposures. If that opportunity is not forthcoming, we reserve our rights to ask that the deposition as it stands be stricken in its entirety for the inability of defense counsel to conduct any cross-examination.
[All defense counsel join in that objection.]

The deposition was never completed as Mr. Trascher died eight days later, on April 11, 2007.

Plaintiffs filed suit against numerous defendants in August 2007, asserting survival and wrongful death claims arising out of Mr. Trascher’s illness and death allegedly caused by his work place exposure to asbestos. Avondale was a named defendant as Mr. Trascher’s employer at one of the five work sites where Mr. Trascher was exposed. In May 2011, plaintiffs moved for summary judgment against Avondale and its insurer, relying in part on Mr. Trascher’s video deposition testimony. Avondale opposed the motion, and moved to strike the deposition from consideration in connection with the summary judgment motion, and for an in li-mine order precluding its admission into evidence against them for any purpose, in-eluding trial, on the grounds that the deposition was incomplete and that no defendant had been afforded the opportunity to cross-examine Mr. Trascher. All the motions were heard together. The motion for summary judgment was denied. The motion to strike the deposition was also denied, with the trial court further ruling that “I’m going to |4allow the deposition to be read at trial.” The court’s questions to counsel reflect that it based its decision to admit the deposition on its apparent understanding that Mr. Trascher was not the only one who was going to be able to testify as to the facts Mr. Trascher alleged in his deposition. The Fourth Circuit declined to exercise its supervisory jurisdiction on the showing made. Trascher v. Territo, 11-0891 (La.App. 4 Cir. 8/25/11), — So.3d -. We granted Avondale’s writ application to determine the admissibility of the video deposition at trial. Trascher v. Territo, 11-2093 (La.12/16/11), 76 So.3d 1187.

DISCUSSION

A ruling on the admissibility of evidence is a question of law and is not subject to the manifest error standard of review. Frank L. Maraist, Louisiana Civil Law Treatise: Evidence and Proof, Vol. 19, § 2.10, p. 36. A party may not complain on appeal about an evidentiary ruling in the trial court unless the trial judge was given the opportunity to avoid the perceived error, and the ruling “affected” a “substantial right” of the party. Id. (Citing La. C.E. art. 103(A)(1)).

Defendants, argue that the substantial right that was affected by this evidentiary ruling is their right to cross-examine the witness. While a defendant’s right to confront his accusers in a criminal case is guaranteed by the Confrontation Clause of the Sixth Amendment of the United States Constitution, “the importance of cross-examination cannot be minimized” in civil cases. Garza v. Delta Tau Delta Fraternity Nat., 05-1508 (La.7/10/06), 948 So.2d 84, 90, and n. 12. Where opposing party never has the opportunity to cross examine the deponent, troubling ramifications are presented because this violates a party’s fundamental right to cross-examine witnesses against him. Indeed, one of the basic reasons for excluding | ¿hearsay testimony, is that “there is no opportunity for cross-examination.” Id. at 90 (citing Donnelly v. U.S., 228 U.S. 243, 273, 33 S.Ct. 449, 459, 57 L.Ed. 820 (1913)).

Plaintiffs claim the deposition is admissible as a deposition taken to perpetuate testimony. Articles 1429-1432 of the Louisiana Code of Civil Procedure govern the requirements for the taking of a deposition to perpetuate testimony. Article 1429 contains the requirements of the petition for the perpetuation of testimony. Notice must be given to all expected adverse parties, and if timely notice cannot be given, the court “shall appoint ... an attorney who shall represent them, and, in case they are not otherwise represented, shall cross examine the deponent.” La. C.C.P. art. 1430. An ex parte order granting the perpetuation of testimony may be issued under the following circumstances:

(1) The facts set forth in the petition show the desire to perpetuate testimony is based upon a reasonable belief that there is a substantial possibility that the person whose testimony is sought will die or be too incapacitated to testify before a contradictory hearing can be held; and
(2) The interest of justice requires the immediate perpetuation of the testimony.

lfiLa. C.C.P. art. 1430.1. The deposition to perpetuate testimony “may be used in any action involving the same subject matter subsequently brought in any court of this state, in accordance with the provisions of Article 1450.” La. C.C.P. art. 1432.

La. C.C.P. art. 1450 provides in pertinent part:

A. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the Louisiana Code of Evidence applied as though the witnesses were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:
(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:
(a) That the witness is unavailable;
(b) That the witness resides at a distance greater than one hundred miles from the place of trial or hearing or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition; or
(c) Upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.
(4) If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce any other part which, in fairness, should be considered with the part introduced, and any party may introduce any other parts.
C. Conflicts between this Article and Code of Evidence Article 804, regarding the use of depositions, shall be resolved by the court in its discretion.

The thrust of La. C.C.P. art. 1450, particularly Paragraph A, seems to be that the party against whom a deposition is sought to be used must have been afforded a 17meaningful opportunity to cross-examine the deponent. La. C.C.P. art. 1450 states that the admissibility of any deposition, including a deposition offered because the witness is unavailable, is dependent on whether the deposition would be admissible under the Code of Evidence as if the witness were present and testifying at trial. La. C.C.P. art. 1450(A). Clearly, if a witness provides testimony at trial but the opposing party never is given the opportunity to cross-examine him, there would be grounds to strike the testimony given. Further, the reference in La. C.C.P. art. 1450(C) to La. C.E. art. 804, which provides the very limited circumstances in which hearsay evidence is admissible at trial when the declarant is unavailable as a witness, is a recognition by the Legislature that the admissibility of a deposition where the deponent is unavailable could conflict with the hearsay rule, and particularly the limited exceptions provided by La. C.E. art. 804. As explained herein, one of the reasons hearsay is excluded is because the credibility of the statement cannot be tested by cross-examination. Further, the necessity of an opportunity for cross-examination is evident from the notice provisions of La. C.C.P. art. 1430, which provide that if a party cannot be given timely notice of a deposition to perpetuate testimony, the court must appoint an attorney to represent that party who “shall cross examine the deponent.” Thus, for this deposition to be admissible under La. C.C.P. art. 1450, the opposing party would have to have been given the opportunity to cross-examine the witness. Because defendants did not have this opportunity, the testimony is inadmissible as a deposition under La. C.C.P. art. 1450.

Thus, as out of court statements, the admissibility of his statements are governed by the hearsay rule. Hearsay is “a statement, other than one made by the | sdeclarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” La. C.E. art. 801 C. Hearsay is inadmissible “except as otherwise provided by this Code or other legislation.” La. C.E. art. 802. Hearsay is excluded because the value of the statement rests on the credibility of the out-of-court asserter who is not subject to cross-examination and other safeguards of reliability. State v. Brown, 562 So.2d 868, 877 (La.1990); State v. Martin, 458 So.2d 454 (La.1984). However, when an extrajudicial declaration or statement is offered for a purpose other than to establish the truth of the assertion, its evidentiary value is not dependent upon the credibility of the out-of-court asserter and the declaration or statement falls outside the scope of the hearsay exclusionary rule. Id.

Plaintiffs claim that the deposition is admissible under three hearsay exceptions. Two are found in La. C.E. art. 804, which governs the admissibility of hearsay statements where the declarant is “unavailable,” which obviously includes the situation where the declarant is dead at the time of trial. La. C.E. art. 804(A)(4). The other is found in La. C.E. art. 803, which governs the admissibility of hearsay statements regardless of the availability of the declarant.

First, plaintiffs claim that the deposition testimony is admissible under La. C.E. art. 804(B)(2) as a “statement under belief of impending death,” which is “[a] statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death.” This “dying declaration” exception was adopted from the common law, which developed the exception based upon a reasoning that “a person would not be likely to lie as he or she prepared to meet the Maker.” Maraist, supra, § 10.9, p. 254. This applicability of this exception is determined not by the substance of the statement, but by the circumstances under which the statement was made. It is the | fldeclarant’s subjective belief in the imminence of his death that provides the independent indicia of reliability that warrants the admission of the statement. However, “[although a declarant is seriously ill for a time prior to her eventual death, not all communications made while ill or depressed are admissible under the dying declaration exception.” Garza, supra at 94. To fall under this exception, “fear or even belief that illness will end in death will not avail of itself to make a dying declaration” and “there must be ‘a settled hopeless expectation’ that death is near at hand, and what is said must have been spoken in the hush of its impending presence.” Id. at 94-95 (citing Shepard v. U.S., 290 U.S. 96, 99-100, 54 S.Ct. 22, 23-24, 78 L.Ed. 196 (1933)). We have held that spontaneity is important in a dying declaration exception and that the use of the words “impending” and “imminent” in La. C.E. art. 804(B)(2) “require that a mortal wound or injury be inflicted at the time of the statement.” Garza, supra at 96, 98. In this case, a scheduled deposition taken because the deponent was not expected to live more than six months does not qualify under the dying declaration exception. Mr. Trascher did not believe his death was “imminent” as that term is contemplated in the dying declaration exception and thus the circumstances under which the statements were made lack the indicia of reliability that would warrant its admissibility. Further, all in attendance, apparently including Mr. Trascher, believed the deposition would be continued at some time in the future.

Plaintiffs next claim that Mr. Trascher’s deposition testimony contains certain statements that are admissible as an exception to the hearsay rule under La. C.E. art. 803(3), which provides as follows:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
I m(B) Then existing mental, emotional, or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), offered to prove the de-clarant’s then existing condition or his future action. A statement of memory or belief, however, is not admissible to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declar-ant’s testament.

A review of the video shows Mr. Trascher in a hospital type bed, hooked up to oxygen, obviously in very poor health and struggling to breathe. After answering general questions about deposition procedures and stating his name and where he lives, Mr. Trascher is asked the following question: “And today how do you feel?” In response, Mr. Trascher answers:

A. Awful. I feel awful, like every day. I wake up in the morning. It’s the same, same thing all the time. I’m locked up in this room here. I’m locked up in this little room. I was hoping— hoping — I was hoping to go fishing with my grandchildren and fishing and hunting and watch them grow up to be healthy Christians. That was my biggest dream. Now I’m not going to be able to see — I’m not going to be able to see a thing. I love my grandchildren. And I really thought — I retired 66, one year, and then this comes on me.

Plaintiffs claim the above statement is admissible under La. C.E. art. 808(3) and we agree. The testimony fits squarely within that exception as it is a statement of Mr. Trascher’s then existing state of mind and physical condition offered to prove his then existing condition. He is clearly in very poor health, having trouble breathing, depressed that he is confined to a hospital bed and upset that he will die without getting the chance to be with his grandchildren as they grow up. This information is highly relevant in a wrongful death and survival action and plaintiffs are entitled to present this facet of their case and are entitled to have the fact finder consider the weight of this evidence. This portion of the video deposition is admissible under La. C.E. art. 803(3).

|nFor the rest of the deposition, Mr. Trascher testifies that he is mad and disappointed at the people who made asbestos, that asbestos caused his disease, and that “they” knew about it all along. He also describes his work at Avondale, his recollections of asbestos in his work environment and his exposure to it, and the lack of safety precautions taken at Avondale relative to asbestos. Plaintiffs plan to introduce this testimony to prove the truth of those matters. These statements fall under no specific exception to the hearsay rule and will only be admissible if they fall under the “residual” hearsay exception of La. C.E. art. 804(B)(6), which provides:

B. Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(6) Other exceptions. In a civil case, a statement not specifically covered by any of the foregoing exceptions if the court determines that considering all pertinent circumstances in the particular case the statement is trustworthy, and the proponent of the evidence has adduced or made a reasonable effort to adduce all other admissible evidence to establish the fact to which the proffered statement relates and the proponent of the statement makes known in writing to the adverse party and to the court his intention to offer the statement and the particulars of it, including the name and address of the declarant, sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it. If, under the circumstances of a particular case, giving of this notice was not practicable or failure to give notice is found by the court to have been excusable, the court may authorize a delayed notice to be given, and in the event the opposing party is entitled to a recess, continuance, or other appropriate relief sufficient to enable him to prepare to meet the evidence.

This exception exists to provide a trial court with discretion to admit a statement by an unavailable declarant which is not specifically covered by any other hearsay exception, if the statement was made under sufficient assurances of trustworthiness, the evidence in the statement generally is otherwise unavailable, and the opponent is given a fair opportunity to meet the evidence in the statement. 112Maraist, supra at § 10.12, p. 257. The Official Comments indicate that this exception is intended to apply only in extraordinary circumstances:

[Article 804(B)(6) ] is purposefully narrower than its federal counterparts, ... making it even clearer than under the federal rules that the residual exception is to be available only in truly extraordinary circumstances. Thus, the formulation employed in this Subparagraph demonstrates that the exception is not to be used to emasculate the hearsay rule, as its counterpart in the federal rules is sometimes said to be employed.

La. C.E. art. 804, Official Comment(C).

In Buckbee v. United Gas Pipe Line Co., 561 So.2d 76, 82 (La.1990), we held that for hearsay to be admissible under La. C.E. art. 804(B)(6), it must “possess circumstantial guarantees of trustworthiness and that a necessity exists for its introduction in a particular case.” As stated, the testimony in the deposition at issue concerns Mr. Trascher’s statements about his employment at Avondale, his employment duties, his exposure to asbestos during his employment, and the lack of safety precautions concerning asbestos. To a limited extent, he also mentions he worked for Boland Shipyard and Equitable Shipyard.

Regarding necessity, plaintiffs claim that this testimony is necessary as they have made a reasonable effort to adduce all other admissible evidence to establish the fact that Mr. Trascher was exposed to asbestos while working at Avondale. Plaintiffs claim they have conducted numerous investigative searches for Avon-dale coworkers of Mr. Trascher to no avail as such persons are either deceased or their whereabouts are unknown. Assuming there are no other witnesses available to testify as to Mr. Trascher’s exposure to asbestos while at Avondale, this testimony still does not meet the second requirement for admissibility under La. C.E. art. 804(B)(6), i.e., trustworthiness.

_Jj2While the testimony was made under oath, it lacks any other guarantees of trustworthiness sufficient to justify its admission under this hearsay exception. First, there was no opportunity for cross-examination during which the reliability and truthfulness of his statements could have been tested. Second, the testimony concerned events that occurred nearly 50 years ago. Such a substantial lapse of time diminishes the reliability of the testimony because it heightens the probability that memory has become fogged by the passage of time. Indeed, the effects of this lapse of time are apparent from reading parts of the deposition:

PLAINTIFF COUNSEL:
Q. Do you know how you got this disease:
A. I sure do. I worked at — I worked at Avondale Shipyard, and I worked at — I worked at — I worked at — I worked at — oh, man. My mind’s messed up. I worked at Avondale Shipyard. Then I worked at—
Q. Well, Mr. Trascher, why don’t we start with Avondale.
[Objection by defense counsel.]
Q. Let’s start with Avondale, Mr. Trascher, since that’s the one you remember at this time. Do you recall when you were working at Avondale, when you started working at Avondale?
A. Yeah. I was working at Avondale around 1993 to about — I don’t know. It must have been '98 to '97, somewhere around there.
Q. Okay. Let me ask you—
A. Oh, and I worked for Boland, too, Boland Shipyard.
[Objection by defense counsel.]
A. Is that the one I forgot?
Q. That’s one of them, sir. You stated you worked at Avondale in '93 to possibly '97. Could you be incorrect about those dates? Could it be 1963?
IH[Objection by defense counsel.]
A. It was '63. I’m sorry. It was 1963 is when it was.

The inconsistencies and errors is this testimony convince us that it is not trustworthy given the strict parameters of the residual exception. In addition, “[a]rguably, the residual exception should not be applied to admit hearsay that falls within the general confines of another exception but fails to meet all of the requirements for admissibility under that exception.” Maraist, supra at § 10.12, p. 259, n. 4. To use the residual exception in that way would seem to “emasculate the hearsay rule,” as cautioned against in the Official Comments. For all of the above reasons, the deposition testimony does not meet the requirements of the residual exception of La. C.E. art. 804(B)(6) and is therefore inadmissible.

CONCLUSION

For a deposition taken to perpetuate testimony to be admissible under La. C.C.P. art. 1450 where the witness is unavailable at trial, the party against whom it is being used or with similar interests to that party must have been given the opportunity to cross-examine the witness. Otherwise, assuming the objectionable testimony is hearsay, it must fall within one of the limited hearsay exceptions. Here, the only portion of the deposition testimony that is admissible is the video portion showing Mr. Traseher being asked and answering the question: “[a]nd today how do you feel?” His answer reflects his then existing mental, emotional, or physical condition and is offered to prove his then existing condition, which is highly relevant in a wrongful death and survival claim. However, the rest of the video deposition is inadmissible hearsay. It fails to meet the “dying declaration” exception as the deposition was not taken when Mr. Traseher believed his death was “imminent,” but was instead scheduled because Mr. Trascher’s doctor attested that Mr. Traseher may 11Bnot survive for more than six months. Though Mr. Traseher believed he would soon die of his disease, the statements made in this scheduled deposition lack the spontaneity which provide the independent indicia of reliability required of this exception. Further, the deposition testimony does not fall under the “residual” exception because, although it was taken under oath, the substance of Mr. Trascher’s answers show that his memory may have lapsed over the 50 year time span since the events occurred and therefore lack the indicia of trustworthiness required of this exception.

DECREE

For the reasons stated herein, the judgment of the district court is affirmed in part and reversed in part. The only portion of this deposition that will be admissible at trial is the part referred to in this opinion as meeting the requirements of La. C.E. art. 808(3). The case is remanded to the district court for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

JOHNSON, Justice, dissents.

KNOLL, Justice, dissents and assigns reasons.

WEIMER, Justice, concurs with reasons.

JOHNSON, J.

Iil dissent from the majority opinion.

KNOLL, J.,

dissents.

Iil respectfully dissent from the majority opinion and would recall the writ as improvidently granted. I do not believe this case, which arises from an interlocutory judgment on a pretrial motion in limine regarding the admissibility of evidence, merits the exercise of this Court’s supervisory jurisdiction.

This Court’s docket is largely discretionary. That discretion must be exercised carefully, with an eye to clarifying uncertain or disputed areas of law and resolving issues with ramifications stretching beyond the present case. As Justice Lemmon cogently noted in his concurrence to Touchard v. Slemco Elec. Foundation, 99-3577 (La.10/17/00), 769 So.2d 1200:

A certiorari court should not merely be concerned with error correction (which is the function for which intermediate courts are established in a three-tier system), but should primarily be concerned with addressing the most important legal issues of the time and providing guidance to lower court judges, lawyers and law professors by thorough and concise analysis and resolution of those issues.

Id. at 1206, n. 1

laGiven the natural bounds on this Court’s time and judicial resources, we should limit our discretionary review to those cases most likely to have a widespread impact on the development of the law of the state of Louisiana. The exercise of discretionary review on a district court’s ruling on a motion in limine is a highly inefficient use of our time:

As Justice Kimball observed in her dissenting opinion in Lenard v. Dilley, 01-1522 (La.1/15/02), 805 So.2d 175, it is poor policy for this court to grant certio-rari in cases where the decision appealed is one granting a motion in limine, a motion which is not provided for by our Codes, but has come into being by trial practice. Reviewing decisions stemming from motions in limine is an inefficient allocation of this court’s already strained judicial time and resources because decisions relating to such motions are generally made prior to trial, are interlocutory rulings that can be changed by the trial court during the course of trial, and often reach this court without a developed record upon which to review the trial court’s decision.

Scott v. Poole’s Classic Travels, Inc., 03-2748 (La.5/25/04), 874 So.2d 835, 838 (Knoll, J., dissenting)

Reviewing motions in limine inevitably leads to piecemeal adjudication of a dispute, and it is simply not feasible for this Court to rule on the admissibility of each piece of evidence to be presented at trial, one by one. It is a better and more efficient use of this Court’s resources to allow the case to proceed to judgment, after which we can address all of the relator’s assignments of error at once. This is especially true for interlocutory rulings on motions in limine, which may be reconsidered by the district court at any time prior to judgment.

Moreover, I do not find the district court committed clear error in finding plaintiffs deposition excerpts were admissible. The excerpts meet the requirements of La. Code of Civ. Proc. art. 1450, which permits a party to introduce the deposition testimony of an unavailable witness “against any party | swho was present or represented at the taking of the deposition or who had reasonable notice thereof.” Avondale and the other defendants were timely notified of plaintiffs scheduled deposition and were actually represented by counsel at the deposition. Therefore, the express requirements of article 1450 are met.

The majority disagrees, finding an implied requirement of cross-examination within article 1450’s penumbras. I do not find this is a proper interpretation of article 1450, but rather changes the law by effectively adding new words to the statute. This simply is not our function. This Court should yield to the Legislature to make such a change in the law, where the legislative process would allow careful consideration of all possible circumstances under which such a requirement may be imposed. Moreover, I find the Legislature anticipated extreme extenuating circumstances could exist and, through article 1450(C), expressly granted the trial court discretion to rule on such matters, as the court properly did in this case.

As to the claimed right to cross-examine a witness, in an ordinary case, all parties would certainly have the right to question a deponent. However, this case presents extreme extenuating circumstances, outside the control of either party, which unfortunately made this impossible. By the time the deposition was scheduled, the witness’s health had already seriously deteriorated. Only minutes into the deposition, he became extremely tired, asked for additional oxygen, and was soon unable to continue. This is not a case where a plaintiff or his attorney acted in bad faith or purposefully conspired to deny the defendant an opportunity to cross-examine. Plaintiffs own attorneys were not even able to complete their direct examination. Although the defense attorneys had no chance to cross-examine plaintiff, they were able to assert objections during the direct examination, thus protecting their rights to some extent. Given the unique circumstances of this Lease, where a witness is so ill that he cannot reasonably be expected to complete his deposition, it is enough that the adverse parties were actually represented at the deposition and had the opportunity to assert objections. This is all that is required by La.Code of Civ. Proc. art. 1450, and it is not the province of this Court to impose additional requirements beyond those mandated by the express language of the statute.

Defendants also raise a hearsay objection. However, article 1450(C) includes a discretionary exception to the hearsay rule for depositions administered under that article:

Conflicts between this Article and Code of Evidence Article 804, regarding the use of depositions, shall be resolved by the court in its discretion.

I do not find the trial court abused its discretion in finding the proffered deposition excerpts admissible under La. Code of Civ. Proc. art. 1450(C). Indeed, the majority of courts who have addressed this issue have permitted the introduction of deposition testimony without cross-examination where, as here, the deponent passes away before the deposition can be completed.

The leading case of Derewecki v. Pennsylvania Railroad Co., 358 F.2d 436 (3d Cir.1965) is closely on point. Plaintiff Joseph Derewecki brought suit against his former employer, the Pennsylvania Railroad Company, claiming that an accident at the railyard caused a serious heart injury. Id. at 438. During plaintiffs deposition, he suffered a heart attack. The deposition was continued and later reconvened, but plaintiff was only able to talk for about fifteen minutes before he suffered another attack. He died later that day. Id. at 439.

Plaintiffs widow moved to introduce the depositions into evidence, as they were the sole evidence regarding the railyard accident. Defendant objected, |ficlaiming the depositions “had not been completed and that it did not have the opportunity to exercise its ‘right’ to cross-examine Derew-ecki.” Id. The trial court ruled the deposition admissible, and the jury entered judgment for plaintiff. The court of appeal affirmed, finding the introduction of the deposition testimony did not violate defendant’s due process rights given the unusual set of factual circumstances before the court:

We realize that the right of cross-examination inheres in every adversary proceeding and that it is established beyond any necessity for citation of authorities, with certain exceptions not pertinent here, that if cross-examination of an available witness is not had the litigant, deprived of cross-examination, has been denied due process of law. But here we have the extraordinary situation of the witness, a one-time party, not being available and having been put beyond the reach of any process by death.
In endeavoring to dispense justice we are required to weigh the right of cross-examination against the right of the plaintiff at bar to maintain her suit when the sole direct evidence of how the accident occurred is contained in Derew-ecki’s depositions.

Id. at 442.

This rule has been widely adopted by later courts and endorsed by leading civil practice treatises. By enacting La.Code of Civ. Proc. art. 1450(C), the | (¡Louisiana Legislature expressly granted trial courts the discretion to permit introduction of deposition testimony where the circumstances warrant. Given the highly unusual set of facts surrounding this case, I find no abuse of discretion in the trial court’s decision.

WEIMER, J.,

concurs.

|TI agree for the most part with the reasoning and analysis of the majority opinion, but write separately to express my reservations about language in the opinion that is not central to its holding and may have the effect of eviscerating La. C.E. art. 804(B)(6)’s residual exception. Particularly, I am concerned with the majority’s suggestion that “arguably,” the residual exception should not be used to admit testimony that falls within another exception, but fails to meet the requirements of that exception. Op. at 367-68, citing 19 MaRAISt, Louisiana Civil Law Treatise: Evidence and Proof, § 10.12, p. 259 n. 4.

The residual exception “is designed to take care of the rare situation where in a civil case the declarant of a trustworthy out-of-court hearsay statement is unavailable, but the out-of-court statement does not fit neatly within any of the categorical exceptions provided in [La. C.E.] Articles 803 and 804(B)(1) to (5), nor within any hearsay exception otherwise provided by the Legislature.” Pugh Force, Rault & Triche, Handbook on Louisiana Evidence law, p. 707 (2010). In other words, the exception is intended to avert the necessity (and impossibility) of having to pigeonhole every situation into a neat category of exception where the element of trustworthiness that lies at the heart of every hearsay exception is otherwise met. While there is no question but that the Louisiana legislature intended to make the residual exception narrower than its federal counterpart, the ^majority’s suggestion that the exception cannot be applied to a situation that might nominally fall under a recognized exception to the hearsay rule when the requirements of general unavailability and trustworthiness are otherwise met, in my view, unduly subverts and “emasculates” the residual exception.

      . He attached the affidavit of his treating physician, Dr. Henry Jackson, who attested to the diagnosis and stated "Mr. Trascher may not survive beyond six (6) months of the date of this affidavit.”

      . These potential defendants were: Taylor-Seidembach, Inc.; Garlock, Inc.; Rapid American, Inc.; The McCarty Corporation; Uniroyal, Inc.; Eagle, Inc.; Reilly-Benton Company, Inc.; Hopeman Brothers, Inc.; Foster Wheeler, Inc.; Viacom, Inc.; Peter Territo; OneBeacon Risk Management, Inc.; and American Motorists Insurance Co.

      . The plaintiffs are Mr. Trascher's wife, Mary Ann Trascher, and his daughters, Karen Carroll and Toni Burrell.

      . For ease of reference, we refer to the named defendant and applicant in this case as "Avondale.” However, technically, the applicant/defendants in this matter are Northrop Grumnam Shipbuilding,' Inc. (n/k/a Huntington Ingalls Incorporated, f/k/a Avondale Industries, Inc., f/k/a Avondale Shipyards, Inc.) and its insurer Commercial Union Insurance Company.

      . La. C.C.P. art. 1429 provides:
      A person who desires to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of this state may file a verified petition in a court in which the anticipated action might be brought. The petition shall be entitled in the name of the petitioner and shall show:
      (1)That the petitioner expects to be a party to an action cognizable in a court of this state but is presently unable to bring it or cause it to be brought.
      (2) The subject matter of the expected action and his interest therein.
      (3) The facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it.
      (4) The names or a description of the persons he expects will be adverse parties and their addresses so far as known.
      (5) The names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony.

      . Further, La. C.C.P. art. 1430.1 provides that "[t]he admissibility at trial or other proceeding of any testimony perpetuated under this Article shall be governed by the Louisiana Code of Evidence.”

      . In addition, Article 801(D)(1) recognizes four types of prior out of court statements that are not classified as hearsay, but in each type, the out of court declarant must have testified at the trial or hearing and must be "subject to cross-examination concerning the statement.”

      . There are a few exceptions. La. Const, art. V, § 5(D) vests the Court with appellate jurisdiction over any case where a law or ordinance has been declared unconstitutional, or the defendant has been convicted of a capital offense and the penalty of death has been imposed. The Court also has original disciplinary jurisdiction over members of the bench or bar. La. Const, art. V, § 5(B).

      . VaSalle v. Wal-Mart Stores, Inc., 01-462 (La.11/28/01), 801 So.2d 331, 334-5.

      . Enlarging the scope of a statute "is a matter that lies exclusively within the province of the legislative branch of our government.” Mossier Acceptance Co. v. Denmark, 211 La. 1078, 31 So.2d 216, 218 (1947).

      . Citation to federal authority is appropriate because the relevant sections of La.Code of Civ. Proc. art. 1450 are substantively identical to Fed.R.Civ.P. 32.

      . See Treharne v. Callahan, 426 F.2d 58, 63 (3d Cir.1970); Waterman Steamship Corp. v. Gay Cottons, 414 F.2d 724, 728 (9th Cir.1969); Duttle v. Bandler & Kass, 127 F.R.D. 46, 50 (S.D.N.Y.1989); Continental Can Co. v. Crown Cork & Seal, Inc., 39 F.R.D. 354, 356 (E.D.Pa.1965); Re-Trac Corp. v. J.W. Speaker Corp., 212 F.Supp. 164, 169 (E.D.Wis.1962); Rosenthal v. Peoples Cab Co., 26 F.R.D. 116, 118 (W.D.Pa.1960); Inland Bonding Co. v. Mainland National Bank, 3 F.R.D. 438, 439 (D.N.J.1944); Draper v. Vetter, 38 Pa. D. & C.3d 652, 656-57 (1983)(permitting introduction of interrogatory responses of deceased party).

      . "If the witness died during the taking of the deposition, so that a party did not have adequate opportunity to cross-examine, the court has discretion whether to admit the deposition." 8A Wright & Miller, Fed. Prac. and Proc. § 2146 (2011 ed.).
      "The mere fact that a party was not able to fully cross-examine the witness or ask additional questions will not necessarily prevent use of the deposition at trial. Incompleteness and the freer range of questions and answers for the purpose of discovery are factors that the court may conclude bear on the weight of the testimony and not on its admissibility.” 7 Moore’s Fed. Prac. § 32.22[4] (3d ed.2012).


source: Caselaw Access Project

author:
PER CURIAM.
      KNOLL, J.,

license: Public Domain

text:
    Jeryd ZITO v. ADVANCED EMERGENCY MEDICAL SERVICES, INC. and Empire Indemnity Insurance Company.
    No. 2011-C-2382.
    Supreme Court of Louisiana.
    May 8, 2012.

      Bernard, Cassisa, Elliott & Davis, Caroline Davis Elliott, Stephen Nolan Elliott, Metairie, LA, for Applicant.
    The Andry Law Firm, Gilbert Victory Andry, IV, New Orleans, LA, for Respondent.
   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 passenger 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 question. 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. 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. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. at 882-883. However, where documents or objective evidence so contradict the witness’ story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness’ story, the court of appeal may find manifest error or clear wrongness, even in a finding purportedly based upon a credibility determination. Id. at 882; Rosell v. ESCO, 549 So.2d 840 (La.1989).

In the instant case, the district court found defendants’ negligence was predicated upon a violation of La. R.S. 32:141. This statute provides, in pertinent part:

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, [emphasis added]

In determining defendants breached their duty under this statute, the district court made a factual finding that “[t]he ambulance was not completely out of the travel lane.” Based on our review of the record, we conclude this factual finding is not reasonable in light of the record reviewed in its entirety.

|fiIn making its factual finding, the district court relied entirely on the testimony of Mr. Gauthier, explaining Mr. Gauthier “had to swerve to avoid hitting the unmarked ambulance,” and he “testified that the ambulance was blocking the right lane of travel.... ” However, a careful review of the record indicates Mr. Gauthier never testified the ambulance was in the travel lane of the highway. Rather, he testified the ambulance was “sitting on the edge of the road,” and “was off the road, but really close on the line, if not on the line.” When asked on direct examination whether he needed to take any evasive action to avoid the ambulance, he testified “I just eased toward the middle, kind of swerved a little out; you know, just to make sure I didn’t hit it.” On cross-examination, he explained “when I saw the ambulance, I eased to the center, just to give myself more room.” In response to additional questioning, he clarified that he never actually left his lane of travel; rather, he simply moved closer to the center line of the two lanes of traffic on the southbound side of the highway. Clearly, nothing in this testimony supports the district' court’s conclusion that the ambulance “was blocking the right lane of travel....”

Considered in its entirety, the evidence in the record indicates the cause of the accident was plaintiffs inattentiveness, rather than any negligence on the part of defendants. Both Trooper Thompson and Mr. Gauthier testified that the reflective tape on the ambulance was visible from a considerable distance. Plaintiffs own testimony on direct examination indicated he was using his cell phone immediately before the accident, causing him to become distracted. The conclusion that the accident was caused by plaintiffs inattentiveness is reinforced by Trooper 17Thompson’s investigation, which revealed there was no evidence at the scene to indicate plaintiff tried to brake prior the collision. It is also significant that Trooper Thompson cited plaintiff for reckless operation, and plaintiff did not dispute this citation.

In summary, based on the undisputed evidence, we conclude there is no reasonable interpretation of the record which could support the district court’s factual finding that defendants’ negligence was the cause of the accident. Rather, the evidence in the record clearly establishes the sole cause of the accident was plaintiffs inattentiveness.

DECREE

For the reasons assigned, the judgment of the court of appeal affirming the district court’s judgment is reversed. Judgment is rendered in favor of Advanced Emergency Medical Services, Inc. and Empire Indemnity Insurance Co., dismissing plaintiffs suit with prejudice at his cost.

REVERSED AND RENDERED.

KNOLL, Justice, dissents and assigns reasons.

KNOLL, J.,

dissents.

hi respectfully dissent from the majority in this per curiam opinion.

As an initial matter, I do not believe this case is worthy of this Court’s attention, as it presents no conflict of authority, no unsettled question of law, and no precedent which must be reconsidered or overruled. See La. Supreme Court Rule X, § 1. The writ was apparently granted solely for the purpose of conducting a manifest error review of the facts of this particular case. This is directly contrary to this Court’s long-settled practice. As Justice Summers stated over forty years ago, “we grant writs only on questions of law.” Dick v. Phillips, 253 La. 366, 218 So.2d 299, 301 (1969); Porteous v. St. Ann’s Café & Deli, 97-837 (La.5/29/98), 713 So.2d 454, 456 n. 2 (“Under this Court’s standards for granting writs, the Court does not normally grant simply to review the facts of a case.”) Within the Louisiana judicial system’s three-tiered hierarchy, the Supreme Court’s institutional purpose is to provide guidance to the lower courts by clarifying the law, harmonizing inconsistent jurisprudence, and resolving disputed questions of public policy. This opinion serves none of these purposes.

The Court’s decision to grant writs in this case is doubly perplexing because |gthe amount in controversy is relatively small compared to many other potentially worthy applications which we deny every week. Plaintiffs demand was $50,000, a modest figure which does not even meet the amount in controversy requirements necessary to justify a jury trial under La. Code of Civ. Proc. art. 1732. Our decision today sets no meaningful precedent, decides no novel issue of law, and corrects no manifest injustice. The decisions handed down today in this case and Trascher v. Territo, 11-2093 (La.5/8/12), 89 So.3d 357, suggest this Court has taken on the role of an error correcting court, even for relatively minor disputes. I fundamentally disagree with this newfound expansion of our discretionary docket, and I would recall the writ as improvidently granted.

Because a writ was granted and we are disposing of this case with a per curiam, I do find the trial court manifestly erred in casting the defendant with 100% of fault. Notwithstanding this finding, because writ denials do not make law, I still adhere to my view that we should not have granted a writ in this relatively “simple and routine” case. Howard v. Union Carbide Co., 09-2750 (La.10/19/10), 50 So.3d 1251, 1258 (per curiam) (Knoll, J., dissenting).

Turning to the merits of the case, the majority goes too far in finding plaintiffs inattentiveness was the sole factor in the accident and assigning him 100% of the fault. Defendant Advanced Emergency Medical Services is an ambulance company based ■ in and operating out of Webster Parish. After Hurricane Katrina devastated Plaquemines Parish and its EMS services, defendant signed a contract with the state to provide ambulance services in the southern part of the parish. The ambulance involved in this accident had ongoing transmission [ ¿¡problems and had been brought to New Orleans for repairs. On the way back to Plaquemines Parish on June 7, 2006, it broke down again. Although the ambulance was supplied with the appropriate cones and reflective markers, they were not set out, and the hazard lights were left off. Defendant did not call a tow truck or otherwise attempt to remove the vehicle. Instead, the ambulance was left, derelict and unmarked, on the edge of the right shoulder of Highway 23.

On the night of June 7, 2006, plaintiff was driving south on Highway 28 to pick up a friend. No street lights were operational because of the storm, and the night was pitch black. Plaintiff never clearly saw the ambulance before he hit it; he saw a “flash,” lost consciousness, and woke up some time later with blood pouring down his face. Plaintiffs injuries were extensive, and he incurred significant medical bills in addition to his general damages.

The per curiam presents the central question in this case as whether the ambulance was completely pulled off to the side of the road or whether it encroached over the white line. The evidence on this issue is uncertain and open to interpretation. The only photographs of the accident scene were taken well after the wreck. The tire skid marks show the ambulance’s tires were parked on the shoulder but, according to the testimony of defendant’s president, the “box” of the ambulance continues for three to three and one-half feet past the edge of the tires. Unfortunately, the investigating state trooper did not take measurements of the accident scene, so it is impossible to tell whether the skid marks were more or less than three and one-half feet from the white line.

The only other evidence regarding the ambulance’s position at the time of the accident was the testimony of Mark Gau-thier. About 45 minutes to an hour before plaintiffs accident, Gauthier was driving south in the right hand lane of 1 ¿Highway 23 when he came upon the ambulance parked “on the shoulder, right hand shoulder of the road but it was close, very close, if not on the white line.” Because there were no reflectors or flares, Gauthier did not see the ambulance until the last second, when it “caught me by surprise.” In order to avoid an accident, Gauthier “had to swerve to miss it” and “hit my brakes and moved out to the center lane to give em room.”

The trial court, relying on the (admittedly unclear) photographs and Gauthier’s testimony, found the ambulance was “not completely out of the travel lane.” The majority reverses, finding this is “not reasonable in light of the record reviewed in its entirety.” I disagree.

Gauthier explicitly testified the ambulance was “very close, if not on the white line” marking the travel lane, and he had to swerve partially into the center lane in order to avoid the ambulance. The trial court chose to credit his testimony. A basic principle of appellate review is that the “role of the fact-finder [is] to weigh the respective credibilities of the witnesses, and this court will not second-guess the credibility determinations of the trier of fact.” State ex rel. Graffagnino v. King, 436 So.2d 559, 563 (La.1983). A trial court’s credibility determination may only be overturned where the testimony is “internally inconsistent or implausible on its face,” or there is objective evidence which conclusively discredits the testimony. Rosell v. ESCO, 549 So.2d 840, 844-5 (La.1989). Neither is true here. This Court is bound to accept the credibility determinations made by the finder of fact. There is sufficient evidence for a reasonable determination finding the ambulance encroached upon the travel lane of the highway and created a potential danger for drivers.

|sThere is significant record evidence supporting a finding of negligence on the part of the defendant. A reasonable driver would have made every attempt to get the ambulance as far away from the traveled portion of the road as possible, and would not leave it “very close to, if not on the white line.” As all the streetlights were out, a reasonable driver would have set out the cones and reflectors which were provided inside the vehicle. Defendant neglected to contact a tow company to try to move the vehicle off the road before nighttime. These actions and failures to act fell below a reasonable standard of care, and it was well within the trial court’s discretion to find the defendant’s negligence was a proximate cause of plaintiffs accident.

The record also reflects plaintiffs negligence, but the per curiam greatly overstates the extent of plaintiffs fault. For instance, there is the issue of plaintiffs prescription drug use. Plaintiff was lawfully prescribed painkillers as a result of an earlier car accident. However, it is a careless misstatement of the record to claim, as the per curiam does, that “on the date of the accident [plaintiff] was taking various prescription narcotic drugs.” A review of the record reflects that, on the morning of the accident, plaintiff took one Lortab, in accordance with his prescription. He had also taken a Valium the night before the accident. There is no evidence that taking a single Lortab several hours earlier, and a single Valium the night before, would affect plaintiffs ability to drive a vehicle. The trial court was well within its wide discretion to find plaintiffs medication was irrelevant to this case.

IfiThe per curiam also claims plaintiff was using his cell phone “immediately before the accident,” which caused him to be distracted. Plaintiff admitted to making a phone call approximately 3 to 4 miles away from the scene of the accident. Plaintiff was driving at 65 miles per hour, the posted speed limit, meaning he had been off the phone for 3 to 4 minutes by the time of the accident. Plaintiff explicitly denied being on his cell phone during or just before the accident:

Q: You were asked, other than driving, were you doing anything before the accident. This is my question: You weren’t on the cell phone or reaching for your cell phone. Is — is that what you’re saying?
A: That’s correct. I was not.

That being said, there is evidence of plaintiffs inattentiveness or carelessness. Given the poor condition of the roads after Katrina and the lack of streetlights, a reasonable driver should not have been driving at 65 miles per hour in such poor visibility. It is also unclear whether plaintiff had his headlights set to “bright,” which may have allowed him' to see the ambulance from slightly farther away.

Plaintiff bears some responsibility for not seeing the ambulance in time and avoiding it, as Gauthier was able to do. However, plaintiffs contributing negligence does not give the defendant a free pass for its own inexplicably negligent behavior in leaving the ambulance in a place where it posed a serious threat to drivers. A driver who was “momentarily inattentive or careless” before an accident is not necessarily barred from all recovery. Instead, where “several 17dangerous hazards combine to produce an accident, comparative fault is applicable.” Brown v. Beauregard Elec. Co-op., Inc., 94-512 (La.App. 3 Cir. 12/14/94), 647 So.2d 668, 671, writ denied, 95-122 (La.3/10/95), 650 So.2d 1186.

This case is reminiscent of Monceaux v. Jennings Rice Drier, Inc., 590 So.2d 672 (La.App. 3 Cir.1991), writ denied, 592 So.2d 1289 (La.1992). Plaintiff Johanna Monceaux was killed when her car crossed the white line and hit a disabled rice truck left on the shoulder of 1-10 without any markers or road flares. Id. at 673. There, as here, the negligence of both plaintiff and defendant were substantial factors in causing the accident. While Monceaux bore some of the blame, as witnesses saw her vehicle veer slightly onto the shoulder before the accident, the defendant was also found at fault. As the court of appeal held:

There is no doubt that the unmarked, unlighted truck parked on the side of I-10 at night posed a dangerous traffic situation and subjected motorists to an unreasonable risk of harm.

Id. at 675. After a careful review of the record, the court of appeal allocated 50% of the fault to defendant, 25% to plaintiff, and 25% to the State.

As in the Monceaux case, I would apportion fault between plaintiff and defendant. When modifying a trial court’s allocation of fault between negligent parties, this Court does not perform a de novo review. Instead, we decrease (or increase) the erroneous allocation of fault to the lowest percentage which could be found by a reasonable finder of fact. Clement v. Frey, 95-1119, 95-1163 (La.1/16/96), 666 So.2d 607, 609-10.

In conclusion, I believe this case does not present any issues worthy of this Court’s consideration and would recall the writ as improvidently granted. Failing | sthat, I would find the trial court committed manifest error in its allocation of 100% fault to the defendant and would apportion fault between the plaintiff and the defendant.

      . The district court also placed emphasis on the failure of the ambulance to display appropriate signal lights under La. R.S. 32:141(C), which provides: "[t]he 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” [emphasis added]. Because the evidence indicates the ambulance was not left on the traveled portion of the highway, this provision is inapplicable. Moreover, even assuming this provision applied, the testimony of Trooper Thompson and Mr. Gauthier establish the reflective tape and other reflective devices on the ambulance were sufficient to warn approaching traffic of its presence.

      . Because of this conclusion, we pretermit discussion of defendants' remaining assignments of error.

      . See Daniel Meador, American Courts at 15-16(1991).

      . Defendant asserts an affirmative defense under La.Rev.Stat. § 9:2800.17 and § 29:735, which provide limited immunities for injuries related to emergency preparedness activities. The majority does not reach this issue, so I do not address it in detail other than to note that any claim of statutory immunity must be strictly construed. Monteville v. Terrebonne Parish, 567 So.2d 1097, 1101 (La.1990). Under a narrow interpretation of the statutes, I find the asserted immunities are inapplicable under the facts at hand because plaintiff’s injury did not arise from an “emergency preparedness activity” on the part of the defendant.

      . Indeed, the ambulance caused one near-accident and one actual accident within a few hours of breaking down; this is almost per se evidence of the serious danger it posed.

      . The body of the ambulance was marked with reflective tape known as Scotchlite. The testimony was that Scotchlite reflects light from anywhere from 200 to 500 feet away, depending on conditions. At 65 miles per hour, 200 feet of visibility provides two seconds of warning. This reflective tape is no substitute for flashing markers or road flares.

      .Although plaintiff did.test positive for amphetamines, he testified that he had not taken any amphetamines for two to three days before the accident and was not affected by them- on the night of June 7, 2006. Plaintiff's testimony regarding his drug intake was consistent with the toxicology tests taken after the accident at West Jefferson Medical Center.

        . Monceaux v. Jennings Rice Drier, Inc., 590 So.2d 672, 675 (La.App. 3 Cir.1991), writ denied, 592 So.2d 1289 (La.1992); Trahan v. State, Dept. of Transportation and Development, 536 So.2d 1269, 1274-75 (La.App. 3 Cir. 1988), writ denied, 541 So.2d 854 (La.1989).

      . I was a member of the Third Circuit panel which reviewed this case on appeal.

      . The State’s liability was based on the failure of the State Police to inspect and secure the broken-down rice truck after being contacted and promising to do so.


author: PAUL A. BONIN, Judge.

text:
    Ann HARE v. PALEO DATA, INC., Leo Waterman and ABC Insurance Company.
    No. 2011-CA-1034.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 4, 2012.

      Charles M. Raymond, Taggart Morton, L.L.C., New Orleans, LA, for Plaintiff/Appellant.
    Walter W. Christy, Amanda Wingfield Goldman, New Orleans, LA, M.L. Juran, Metairie, LA, for Defendant/Appellee.
    (Court composed of Judge ROLAND L. BELSOME, Judge PAUL A. BONIN, Judge DANIEL L. DYSART).
   PAUL A. BONIN, Judge.

hAnn Hare, a former employee of defendant Paleo Data, Inc., complains on appeal that the trial court, because it failed to recognize the presence of genuine issues of material fact, erred in granting Paleo Data’s motion for partial summary judgment and in dismissing with prejudice her lawsuit against her former employer. We review de novo the trial court’s grant of the defendant’s motion for summary judgment and conclude that the trial court did not err when it dismissed with prejudice Mrs. Hare’s claims for hostile work environment and constructive discharge. Because she has failed, effectively, to brief the issue of the dismissal of her claims for gender discrimination, we also affirm the trial court’s dismissal with prejudice of those' claims. As a result of the dismissal of all of her claims against Paleo Data, the trial court dismissed Paleo Data with prejudice as a party defendant in Mrs. Hare’s lawsuit, and we affirm that dismissal.

We explain our reasoning in more detail below.

Before addressing Mrs. Hare’s assignments of error, we provide some background facts and discuss this matter’s procedural history. This matter arises out of a dispute between Mrs. Hare and Mr. Waterman that occurred on the premises of Paleo Data. Defendant Paleo Data is a micro-paleontological consulting firm that provides biostratigraphic services for the petroleum industry. The company was incorporated in 1968 with William Campbell as its first president. One or more of the company’s paleontologist-employees have always owned the entirety of the company’s stock. Accordingly, when Mr. Campbell retired in 1993, Francis Plai-sance, a paleontologist-employee and shareholder, purchased additional shares to become Paleo Data’s next president. In 2003, Mr. Plaisance retired and sold his shares in the company to several of the remaining paleontologist-employees. Defendant Arthur Waterman, a paleontologist-employee and shareholder who began working for the company in 1978, purchased the majority of Mr. Plaisance’s stock and, thus, became its current president.

Paleo Data first employed Mrs. Hare in July 1989 as a secretary. By June 12, 2008, Mrs. Hare had taken on the role of Paleo Data’s office manager, and was responsible for, among other things, office bookkeeping, the payroll, and the maintenance of its computerized database of mi-cropaleontological reports and findings. Mr. Waterman became Mrs. Hare’s supervisor when he assumed Paleo Data’s presidency. The record indicates that Mr. Waterman and Mrs. Hare’s work relationship could be fairly characterized as sporadically contentious. Mrs. Hare, however, readily admits that over the course of their work relationship, Mr. |SWaterman regularly gave her raises, bonuses, and opportunities for professional growth.

The incident that sparked Mrs. Hare’s departure, and which forms the basis for this lawsuit, occurred on the morning of June 12, 2008. Specifically, the record indicates that Mike Center, a paleontologist employed by Paleo Data, was at the time in Florida attending to his ill mother. Mr. Center’s mother died on June 12, 2008. Mr. Center called Paleo Data’s offices on the morning of June 12, 2008, and informed Renee Hudson, a co-worker, about the funeral arrangements. Mr. Waterman asked Mrs. Hudson to give the information to Mrs. Hare. Mrs. Hudson passed along the information to Mrs. Hare after she arrived at work, who in turn looked up the obituary online and emailed the relevant details to the rest of Paleo Data’s employees. Upon arriving at the office, yet prior to checking his email, Mr. Waterman was informed by Hudson about Mr. Center’s mother. Thinking that she had failed to send the email, Mr. Waterman approached Mrs. Hare and demanded to know why she had failed to send him the requested email. Mrs. Hare insisted that he already knew all the information, and the two began to argue.

Although there is a factual dispute as to which of the two was shouting, the conversation ended with Mrs. Hare repeatedly cursing Mr. Waterman as a “f* * *ing liar.” Mr. Waterman put his hands down on Mrs. Hare’s desk, insisted that she had no right to talk to him this way because he was in charge. Mrs. Hare responded by stating, “I’m f* * *ing out of here.” At this point, Mr. Waterman approached Mrs. Hare, placed his hands on her, asked her to calm down, and insisted that she stay. Mrs. Hare testified that Mr. Waterman grabbed her shoulders and shook her. jyMegan Porter Abbott testified that Mr. Waterman merely touched Mrs. Hare’s forearm. Mr. Waterman testified that he touched Mrs. Hare’s shoulders in an attempt to calm her down. Regardless, Mrs. Hare again cursed Mr. Waterman, brushed his hands away, and stormed out of the office. Although his initial response was to state, “If you leave now, don’t bother coming back,” Mr. Waterman later left voicemail and email messages apologizing for his failure to read the email from Mrs. Hare and asking her to return to work.

Mrs. Hare never returned to work, but instead filed the present lawsuit against Paleo Data and Mr. Waterman on January 23, 2009. Mrs. Hare asserted gender discrimination, hostile work environment, constructive discharge, and intentional infliction of emotional distress as well as assault and battery causes of action against the defendants. Mr. Waterman filed an exception of no cause of action, arguing that the plaintiff has no cause of action against him for gender discrimination damages, pursuant to La. R.S. 23:332, because he was not her employer as defined by La. R.S. 23:302. The trial court granted Mr. Waterman’s exception and signed a judgment on June 4, 2009, dismissing without prejudice all claims brought against him pursuant to Louisiana’s Employment Discrimination Law. The trial court also afforded Mrs. Hare sixty days to amend her petition in order to allege sufficient facts to state an employment discrimination claim against Mr. Waterman. Mrs. Hare, however, failed to amend her petition.

Mr. Waterman and Paleo Data each filed motions for summary judgment on January 18, 2011. Mr. Waterman’s motion sought the dismissal of plaintiffs assault, battery, and intentional infliction of emotional distress claims. Paleo Data’s motion sought the dismissal of Mrs. Hare’s gender-based employment discrimination claims.. The parties submitted the matter on briefs, and the trial | .¡rendered judgment on April 5, 2011, granting Paleo Data’s motion, but denying Mr. Waterman’s motion. Mrs. Hare filed a timely motion for devolutive appeal on June 3, 2011, seeking the reinstatement of her hostile work environment, constructive discharge, and gender discrimination claims. On November 30, 2011, this Court ordered the parties to show cause why the appeal should not be dismissed because the trial court’s judgment: 1) is a partial summary judgment which had not been designated as final by the trial court; and 2) has no decretal language describing the relief granted to Paleo Data. In response to this Court’s order, the parties petitioned the trial court to amend the judgment. See La. C.C.P. art. 1915 B. See also Favrot v. Favrot, 10-0986, p. 5 (La.App. 4 Cir. 2/9/11), 68 So.3d 1099, 1103—1104; Johnson v. Mount Pilgrim Baptist Church, 05-0337, p. 3 (La.App. 1 Cir. 3/24/06), 934 So.2d 66, 67 and Lalla v. Calamar, N.V., 08-0952, p. 6 (La.App. 4 Cir. 2/11/09), 5 So.3d 927, 931.

The trial court acceded to the parties’ request under La. C.C.P. art. 1951 and amended the judgment accordingly, to where it now clearly: 1) grants Paleo Data’s motion for summary judgment on Mrs. Hare’s claims for hostile work environment, constructive discharge, and gender discrimination; 2) dismisses Mrs. Hare’s petition against Paleo Data with prejudice; and 3) denies Arthur Waterman’s motion for summary judgment with respect to Mrs. Hare’s claims against him for assault, battery, and intentional/negligent infliction of emotional distress. The amended judgment is, accordingly, a partial final judgment pursuant to La. C.C.P. art. 1915 A(l) because it dismisses with prejudice Paleo Data from RMrs. Hare’s suit. In the interest of judicial economy, we permitted the parties to supplement the record with the amended judgment. We affirm the trial court’s judgment in favor of Paleo Data, and now explain our reasoning in the following Parts.

II

In this part, we discuss the law governing a compound hostile work environment/constructive discharge claim brought pursuant to La. R.S. 23:332. Although Louisiana is an at-will employment state, federal and state law contain several exceptions to that general rule. Both federal and Louisiana law, for example, prohibit employers from taking adverse employment actions based upon certain “protected” characteristics, such as race, gender, age, national origin, or religion. The statutory source for such claims can be found in La. R.S. 23:332 A, which provides as follows:

A. It shall be unlawful discrimination in employment for an employer to engage in any of the following practices:
(1) Intentionally fail or refuse to hire or to discharge any individual, or otherwise to intentionally discriminate against any individual with respect to his compensation, or his terms, conditions, or privileges of employment, because of the individual’s race, color, religion, sex, or national origin.
(2) Intentionally limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or otherwise adversely affect his status as an employee, because of the individual’s race, color, religion, sex, or national origin.

Because this statute is similar in scope to the federal anti-discrimination prohibitions in Title VII of the Civil Rights Act of 1964, “Louisiana courts have routinely looked to the federal jurisprudence for guidance in determining whether a |7claim has been asserted” under La. R.S. 23:332 A. Plummer v. Marriott Corp., 94-2025 (La.App. 4 Cir. 4/26/95), 654 So.2d 843, 848. Penn. State Police v. Suders, 542 U.S. 129, 146-147, 124 S.Ct. 2342, 2354, 159 L.Ed.2d 204 (2004), held that Title VII encompasses employer liability for a constructive discharge and discussed the burden of proof applicable to compound hostile work environment/constructive discharge claims accordingly:

The constructive discharge here at issue stems from, and can be regarded as an aggravated case of, sexual harassment or hostile work environment. For an atmosphere of sexual harassment or hostility to be actionable ... the offending behavior “must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” A hostile-environment constructive discharge claim entails something more: A plaintiff . who advances such a compound claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign. (Citations omitted.)

We will now examine in more detail the Louisiana jurisprudence applicable to both aspects of Mrs. Hare’s compound claim.

A

In order to state a claim for a hostile work environment, Mrs. Hare has the burden of proving that: 1) she belongs to a protected group; 2) she was subjected to harassment; 3) the harassment was motivated by discriminatory (gender) animus; 4) the harassment affected a term, condition, or privilege of employment; and 5) the employer knew or should have known of the harassment and failed to take proper remedial action. Brooks v. Southern University and Agric. and Mech. College, 03-0231, pp. 45-46 (La.App. 4 Cir. 7/14/04), 877 So.2d 1194, 1220. The notice element, however, is not required in a hostile environment case where it is 18alleged, as here, that the employee’s supervisor committed the alleged harassment. Nash v. Electrospace System, Inc., 9 F.3d 401, 405 (C.A.5 1993).

In order to prevail against Paleo Data’s hostile workplace motion for summary judgment, Mrs. Hare was compelled to show a genuine issue of material fact as to whether the conduct was so hostile and abusive that a reasonable person would have been offended by it and also that she, subjectively, actually was offended. Sears v. Home Depot, USA, Inc., 06-0201, p. 18 (La.App. 4 Cir. 10/18/06), 943 So.2d 1219, 1232. In determining whether a work environment is objectively hostile or abusive, all circumstances must be analyzed, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee’s work performance. Sears, 06-0201, p. 18, 943 So.2d at 1232.

Furthermore, Mrs. Hare must demonstrate that the conduct was so egregious as to alter the conditions of employment and destroy equality in the workplace. Id. Likewise, a lack of an objective offense that results in discriminatory changes in the terms and conditions of employment militates against there being evidence of a subjective offense. Sears, 06-0201, p. 19, 943 So.2d at 1232.

B

In order to prevail in her claim that her alleged constructive termination was gender-based, and thus in violation of La. R.S. 23:332, Mrs. Hare must have first established that discriminatory conduct in the workplace was so pervasive that it created an environment abusive to the employee. Penn. State Police, supra. In order to prevail on the constructive discharge aspect of her claim, Mrs. Hare must next prove that the working conditions to which she was subjected were so difficult [9or unpleasant that a reasonable person in her shoes would have felt compelled to resign. See King v. Phelps Dunbar, L.L.P., 01-1735, p. 10 (La.App. 4 Cir. 4/2/03), 844 So.2d 1012, 1019. That is, Mrs. Hare must demonstrate that the abusive environment was so intolerable that resignation qualified as a fitting response. Penn. State Police, supra. The Supreme Court gave as examples a humiliating demotion, extreme cut in pay, or a transfer to a position in which the employee would face “unbearable working conditions.” Id. The intolerable conduct must be of a greater severity or pervasiveness than the minimum required to prove a hostile working environment. Plummer v. Marriott Corp., 94-2025 (4/26/95), 654 So.2d 843, 849. A single isolated instance of employment discrimination is insufficient as a matter of law to support a finding of constructive discharge. Id. Thus, a plaintiff alleging a constructive discharge must show some aggravating factors, such as a continuous pattern of discriminatory treatment. Francois v. Acadiana Sec. Plus, Inc., 07-1112, p. 5 (La.App. 3 Cir. 2/13/08), 976 So.2d 809, 813.

Ill

In this part, we set out the now-canonical standard governing motions for summary judgment. It is axiomatic that appellate courts review the granting of summary judgment de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Chaney v. Home Depot, USA, Inc., 05-1484, pp. 5-6 (La. App.8/16/06), 940 So.2d 18, 21. “A summary judgment may be rendered disposi-tive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of summary judgment does not dispose of the entire ease.” La. C.C.P. art. 966 E. “[A] motion which shows that there is no genuine issue as to material |infact and that the mover is entitled to judgment as a matter of law shall be granted.” La. C.C.P. art. 966 C(l). “The burden of proof remains with the movant.” La. C.C.P. art. 966 C(2). “However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense.” Id. “Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” Id.

IV

In this part, we examine Mrs. Hare’s argument that the trial court improperly dismissed her hostile work environment claim. To reiterate, Mrs. Hare must prove the following elements in order to establish a hostile work environment claim: 1) she belongs to a protected group; 2) she was subjected to harassment; 3) the harassment was motivated by discriminatory (gender) animus; 4) the harassment affected a term, condition, or privilege of employment; and 5) the employer knew or should have known of the harassment and failed to take proper remedial action. Brooks, 03-0231, pp. 45-46, 877 So.2d at 1220. There is no dispute that Mrs. Hare has met the first element. Paleo Data argues, however, that Mrs. Hare cannot establish that she was subject to gender-based harassment.

I,,Mrs. Hare testified that Mr. Waterman was often impatient, a micromanager, distrustful, and frequently moody. Further, Mrs. Hare stated that Mr. Waterman would sporadically speak sternly, yell, and get in the face of both Donna Lacoste and herself when he would become cross about some matter. Mrs. Hare explained that Mr. Waterman would raise his voice, and speak in an irritated tone, but that it was not “like Saints game yelling type thing or yelling at your children really loud, but just enough” to where it made her upset. Mrs. Hare also testified that Mr. Waterman treated her in this fashion for the entirety of her employment at Paleo Data, and that his actions would often cause her to go into the bathroom to cry. Mrs. Hare, however, could not state how often Mr. Waterman acted in this fashion. Mrs. Hare further testified that Mr. Waterman would, from time to time, speak in this way towards “everyone” else in Paleo Data’s offices, and testified to seeing both male and female employees spoken to in this manner.

Mrs. Lacoste testified that while Mr. Waterman could be “high strung,” he only raised his voice, and spoke in a stern tone towards her on one or two occasions. Mrs. Lacoste further noted that Mr. Waterman never yelled at her. On the other hand, Renee Hudson, a part-time lab technician who was promoted to assistant lab manager under Mr. Waterman’s management, testified that Mr. Waterman did not micro manage. Mrs. Hudson, moreover, testified that she never observed Mr. Waterman behave rudely or yell. Mrs. Hudson also noted that Mr. Waterman treated Paleo Data’s female employees with deference and respect. Mrs. Hudson further noted that no other employee complained to her about Mr. Waterman’s behavior. Mrs. Hudson additionally noted that she never observed Mr. Waterman act rudely towards Mrs. Hare, though .she did observe the converse. 112In fact, Mrs. Hudson testified that, in her opinion, Mr. Waterman was very tolerant of Mrs. Hare.

Ryan Weber, a paleontologist and former Paleo Data employee, testified that Mr. Waterman was a good mentor and treated the other paleontologists with respect. Mr. Weber further testified that he never observed Mr. Waterman yell at Mrs. Hare, and that Mr. Waterman treated her with respect. Indeed, Mr. Weber was aware of no tension between Mr. Waterman and Mrs. Hare. Similarly, Norman Vallette, a paleontologist and Paleo Data shareholder, testified that he never observed, or heard about, Mr. Waterman losing his temper after Mr. Waterman assumed the role of Paleo Data’s president. Moreover, Mike Center testified that he never witnessed Mr. Waterman raise his voice to either Mrs. Hare or Mrs. Lacoste, though he did recall Mr. Waterman yelling at him once and at Mr. Vallette once or twice. Megan Porter Abbott, Mrs. La-coste’s former assistant, testified that she never saw Mr. Waterman lose his temper. Lastly, Francis Plaisance testified that while he was president, he had received some complaints, which he characterized as minor, about Mr. Waterman acting rudely towards .coworkers, and that he observed Mr. Waterman yell at co-workers. Mr. Plaisance noted that he might hear Mr. Waterman raise his voice once a month. Mr. Plaisance explained Mr. Waterman’s behavior: “I know that pressure was a problem for him. If he was involved in a project and had several telephone calls, that he would become upset, and then the next problem that came up, he might fuss about.” Mr. Plaisance also testified that Mr. Waterman would yell at both male and female co-workers. Although Mr. Plaisance observed Mr. Waterman yell at Mrs. Hare, it did not appear to him that Mrs. Hare was afraid of Mr. Waterman.

11sIn light of the foregoing, it appears that Mrs. Hare has raised a genuine issue of material fact as to whether she was subjected to harassment. Although the remainder of the witnesses testified otherwise, Mrs. Hare stated that on some days Mr. Waterman could be moody, yell at, and get in the face of, Mrs. Lacoste and herself. Further, Mrs. Hare testified that she did not observe Mr. Waterman treat male co-workers in a similar fashion. Thus, there appears to be a genuine issue of material fact as to whether Mrs. Hare was subject to harassment. It does not appear, however, that Mrs. Hare can establish that Mr. Waterman’s actions were motivated by discriminatory animus. Simply put, the record indicates that Mr. Waterman could be equally moody and cranky with co-workers of either gender. Even if one accepts Mrs. Hare’s testimony as true, the evidence does not support an inference that Mr. Waterman’s treatment of Mrs. Hare was motivated by a discriminatory animus. Thus, Mrs. Hare has not raised a genuine issue of fact on this issue, and it does not appear that she can prove Paleo Data’s liability for hostile work environment damages.

V

In this part, we examine Mrs. Hare’s assertion that the trial court erred when it dismissed her claim for constructive discharge. Mrs. Hare claims that she was constructively discharged on June 12, 2008, when Mr. Waterman put his hands on her. We have already concluded that the trial court properly granted the defendants’ motion for summary judgment on Mrs. Hare’s hostile working environment claim. Given Mrs. Hare’s inability to establish that portion of her compound claim, we are compelled to affirm the trial court’s dismissal of her constructive discharge claim given the clear dictates of Penn. State Police, supra, and Plummer, 94-2025, 654 So.2d at 849. At least one Louisiana court of appeal, |14echoing Penn. State Police, has ruled that a claimant’s failure to prove that she was subjected to a hostile work environment necessitates a finding that she failed to satisfy her burden of proof in a claim of constructive discharge because a finding of a hostile work environment is a precursor to a finding of constructive discharge. Francois, 07-1112, p. 5, 976 So.2d at 813.

Without condoning what occurred in this instance, we find that the conduct about which Mrs. Hare complains insufficient to constitute a constructive discharge under the circumstances. Further, we note that the trial court denied Mr. Waterman’s motion for summary judgment on Mrs. Hare’s claims for assault, battery, and intentional infliction of emotional distress. Mrs. Hare, therefore, is not without recourse in the event that she is able to meet her burden of proving these tort causes of action. Accordingly, we conclude that the trial court did not err when it granted Paleo Data’s motion for summary judgment on the constructive discharge portion of Mrs. Hare’s compound claim.

VI

In this part, we briefly examine Mrs. Hare’s claim that the trial court erred when it dismissed her claim for gender discrimination. In order to establish a claim for employment discrimination pursuant to La. R.S. 23:332, a claimant must establish the following elements: 1) she was a member of a protected class; 2) she was qualified for the position; 3) she suffered an adverse employment action; and 4) similarly situated employees outside the protected class were treated more favorably. Knapper v. Hibernia National Bank, 09-1036, p. 7 (La.App. 4 Cir. 9/8/10), 49 So.3d 898, 902. Mrs. Hare argues that the trial court erred when it dismissed her claim for employment discrimination against Paleo Data. Mrs. Hare, however, cites to no law or disputed fact, but merely argues that the “evidence 11scited throughout the Record which is too voluminous to include in this brief is more than sufficient to provide a prima facie claim for gender discrimination and carry her burden.” In essence, Mrs. Hare has failed to brief this issue. Rule 2-12.4, of the Uniform Rules-Courts of Appeal, provides in part: “All specifications or assignments of error must be briefed. The court may consider as abandoned any specification or assignment of error which has not been briefed.” Although she mentions and assigns as error the trial court’s dismissal of her employment discrimination claim, Mrs. Hare has abandoned the issue by her failure to brief it. Accordingly, we treat as abandoned Mrs. Hare’s assertion that the trial court erred when it dismissed with prejudice her employment discrimination claim.

CONCLUSION

Finding no reversible error, we affirm the judgment of the trial court that dismissed with prejudice all of Mrs. Hare’s claims against Paleo Data. We have examined Mrs. Hare’s assignments of error and hold that the trial court did not error when it granted Paleo Data’s motion for partial summary judgment and dismissed Mrs. Hare’s compound claim for hostile work environment and constructive discharge. Further, we preclude examination of Mrs. Hare’s assignment of error on the trial court’s dismissal of her gender discrimination claim against Paleo Data because she has failed to brief the issue. We acknowledge, lastly, that Mrs. Hare may still pursue her claims against Mr. Waterman alone for assault, battery, and intentional/negligent infliction of emotional distress.

| ^DECREE

The judgment of the district court in favor of Paleo Data, Inc., and against Ann Hare, dismissing her lawsuit against it with prejudice is affirmed. Each party to bear its own costs on appeal. See La. C.C.P. art. 2164.

AFFIRMED

      . We note, however, that Mrs. Hare's claims for assault, battery, and intentional/negligent infliction of emotional distress against Arthur Waterman, her former supervisor, are still active and have yet to be submitted to a trier of fact.

      . Micropaleontology is the branch of paleon-togy that studies microfossils. Biostratigra-phy is the branch of stratigraphy that focuses on correlating and assigning relative ages of rock strata by using the fossil assemblages contained within them. The study of various microfossils, and their relative places in the geologic record, has proven to be a very useful resource in petroleum exploration.

      . The judgment also dismisses the plaintiff’s gender based employment discrimination claims against Mr. Waterman even though Mr. Waterman's motion for summary judgment sought no such relief. The trial court, however, dismissed these claims against Mr. Waterman without prejudice.on June 4, 2009. Mr. Waterman has not sought review of the denial of his motion for summary judgment. Thus, while the trial court dismissed with prejudice all of Mrs. Hare's claims against Paleo Data, the plaintiff is still pursuing assault, battery, and intentional infliction of emotional distress claims against Mr. Waterman.

      . Paleo Data also argues that Mrs. Hare cannot prove that defendants’ actions affected a condition of her employment. That is, the defendants assert that Mrs. Hare cannot establish the constructive discharge portion of her compound claim. Given the dual nature of her claim, we will analyze these arguments in the following section.

      . We also note that we would deny Mrs. Hare’s assignment of error on this point were we to entertain her "argument.” Specifically, Mrs. Hare cannot meet her burden of proving that similarly situated employees outside the protected class were treated more favorably because the record shows clearly that her position was filled by another woman — Mrs. Lacoste — and that the Mrs. Lacoste’s prior position was likewise filled by a woman. Indeed, the record shows that under Mr. Waterman’s tenure as president, female Paleo Data employees were given raises, bonuses, and invited to take part in the company’s profit sharing plan. Further, the record indicates that under Mr. Waterman’s tenure, Paleo Data hired women to act as lab workers, lab managers, and paleontologists.