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Lowery v. Savana5/10/2000
Danny Savana ("Savana") appeals the trial court's assessment against him of $35,000 general damages and $5,133 past medical expenses arising from his perpetration of intentional tort upon Teresa Lowery ("Lowery"). We affirm in part and reverse in part.
Facts
Savana and Lowery began a dating relationship after the July 4th, 1997 weekend. In early December, 1997, the two began cohabiting in a trailer owned by Savana. On the afternoon of December 27th, however, one of the parties made the decision to break up the relationship. Lowery testified that she told Savana she wanted to end their relationship; Savana claims to have informed Lowery of his desire to move out of the trailer. The parties agree that Savana departed the trailer sometime after this discussion. He returned to the unlocked trailer at approximately 2:00 a.m the following morning. The parties' accounts of what thereafter transpired diverge.
Lowery claims that she woke up and heard Savana in the bathroom. He then came into the bedroom and began touching her stomach. After Lowery rejected Savana's sexual advances toward her, he proceeded to beat her in the head for a "little over two hours," spat in her face, cursed at her and threatened to kill her. Fearing for her safety, Lowery eventually apologized to Savana. He accepted her apology but then turned out the lights and again began touching her. Scared to again reject his advances, Lowery engaged in sexual relations with Savana. Thereafter, Lowery attempted to convince Savana that she needed medical attention. He first refused to let her go, fearing that he would be arrested. After Lowery assured him that she would tell no one what had happened, Savana relented. Lowery then drove to the apartment complex that she managed and went to the apartment of her tenant/friend, Judy Puckett ("Puckett"). At approximately 4:00 a.m., Lowery drove herself and Puckett to the hospital. After being released from the emergency room at least one hour later, Lowery went to Puckett's apartment to sleep. At some point, Lowery called the sheriff's department to report the incident. Lowery stayed with her brother and sister-in-law, Charles and Ann Fitzgerald, for a week after the incident. Savana was arrested on criminal charges.
Savana claims that upon his entrance into the trailer at 2:00 a.m., Lowery was still awake and asked where he had been. When he attempted to obtain pillows and a blanket from the bedroom, Lowery began hitting him while she was still in bed. After she got out of the bed, she kicked him in the groin which caused him to fall. When "something caught in the eye . . . ." as he went down, he hit her. Afterwards, the two talked and Lowery began kissing him. Savana claims to have refused her advances and denies that the two engaged in sexual intercourse. Eventually, Lowery left the trailer.
On January 23, 1998, Lowery filed this personal injury suit against Savana seeking damages and medical expenses. After hearing the evidence, the trial court accepted Lowery's version of the incident and found that she had carried her burden of proving that Savana had committed a battery upon her by a preponderance of the evidence. The court awarded her $45,133 ($35,000 in general damages, $5,133 in past medical expenses, $3,000 in future medical expenses and $2,000 in lost income). The court also allowed Savana a $1,200 credit for sums paid to Lowery as the result of his criminal adjudication. This appeal ensued.
Discussion
Battery is defined as an intentional offensive contact with another person. Minkler v. Chumley, 32,558 (La. App. 2d Cir. 12/08/99), ____So. 2d ____. In order to recover for a battery, a plaintiff must prove by a
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