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Burse v. Allstate Insurance Co.3/28/2001
she had begun to suffer with pain in her left shoulder, and that she was still suffering occasionally as of the date of trial. In addition, she testified that there was no pre-existing condition which might have contributed to her pain and suffering. If Burse did not testify at great length or go into minute detail in her testimony, she nevertheless gave uncontradicted testimony linking her injury to the accident in question.
We agree with Burse that she is entitled to damages for her injury , and because the trial judge awarded none, we must set such an amount.
In fixing damages, we are not limited to either the highest or lowest amount of the reasonable range of awards that would have been affirmed [had the trial court awarded damages], but are bound to award an amount that is fair and just for the damages supported by the record. The primary considerations in the assessment of damages in a personal injury action are the severity and duration of the injury. Klaveness v. Massey, 99-867, at 6-7 (La. App. 5 Cir. 2/16/00), 756 So.2d 538, 543-4.
Burse related that she had been in "shock" immediately after the impact. A subjective symptom this may be, but it nevertheless expresses how severely the accident affected her. Her diagnosed injury , a soft tissue injury to one of her shoulders, was treated for roughly a month after the accident, and her treating physician noted that Burse continued to suffer, though he does not describe unrelenting pain, for over a year after the accident. Burse herself testified that she continued to experience occasional pain even as of the date of the trial.
We feel that Burse is entitled to the sum of $2,500.00 in general damages, plus her stipulated medical specials of $435.00.
Therefore, we reverse the judgment below, finding that Burse has proved she is entitled to damages, and award her damages in the amount of $2,500.00 general damages, $435.00 special damages, with interest from date of judicial demand, and all trial court costs. Appellee is to bear the costs of this appeal.
REVERSED
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