EDWARD CHARLES WASHINGTON AND TRAVIS PARKER Vs. AETNA LIFE INSURANCE COMPANY, D/B/A ONE CANAL PLACE, OTIS ELEVATOR COMPANY, ABC INSURANCE COMPANY, THE UNKNOWN INSURER OF OTIS ELEVATOR COMPANY, SCHINDLER ELEVATOR CORPORATION, (AND/OR SCHINDLER HAUGHTON ELEVATOR CORPORATON), ET AL.
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EDWARD CHARLES WASHINGTON AND TRAVIS PARKER * NO. 2004-CA-0135 * COURT OF APPEAL VERSUS * FOURTH CIRCUIT AETNA LIFE INSURANCE COMPANY, D/B/A ONE CANAL PLACE, OTIS ELEVATOR COMPANY, ABC INSURANCE COMPANY, THE UNKNOWN INSURER OF OTIS ELEVATOR COMPANY, SCHINDLER ELEVATOR CORPORATION, (AND/OR SCHINDLER HAUGHTON ELEVATOR CORPORATON), ET AL. * STATE OF LOUISIANA * * ******* GORBATY, J. DISSENTS IN PART AND CONCURS IN PART. I respectfully dissent. The trial judge’s role here was not to resolve conflicting evidence, but rather to decide admissibility. In Barriere Constr. Co., Inc., v. Sys. Contractors, Corp., 99-2869, p.6 (La. App. 4 Cir. 5/29/96), 764 So.2d 127, 130-131, this court stated, “[T]he test for admissibility is whether or not there are indicia of genuineness sufficient to support a finding that the item in question is what it purports to be.” In the instant case, the testimony at trial, particularly from John Baker Potts, II, was sufficient to support the finding that the tape was that which it was purported to be and was probative. Thus, it should have been up to the jury to “ultimately determine… whether the evidence [was] genuine,” according to Cross v. Cutler Biological Div. Of Miles, Inc., 94-1477, p.11 (La. App. 4 Cir. 5/29/96), 676 So.2d 131, 140. Accordingly, for these reasons, I would reverse the judgment of the trial court and remand this matter for a new trial on liability and damages, allowing the jury to see the videotape in question. Alternatively, I concur in the portion of the majority’s opinion reducing the damages awarded.
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