 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Lowery v. Savana5/10/2000
preponderance of the evidence that her damages resulted from an unprovoked attack by defendant. Id. Louisiana's aggressor doctrine precludes tort recovery where the plaintiff acts in such a way as to provoke a reasonable person to use physical force in fear or anticipation of further injury at the hand of the aggressor plaintiff, unless the person retaliating has used excessive force to repel the aggression. Minkler, supra; Slayton v. McDonald, 29,257 (La. App. 2d Cir. 02/26/97), 690 So. 2d 914. Where a defendant relies upon provocation as justification for a battery, he must prove some conduct or action by plaintiff sufficient to provoke and arouse him to the point of physical retaliation. Id.
Burden of Proof
Savana first argues that the trial court erred in finding that Lowery had sustained her burden of proof that he committed a battery upon her by a preponderance of the evidence. We cannot agree.
An appellate court may not set aside a finding of fact unless that finding is manifestly erroneous or clearly wrong. Stobart v. State of Louisiana, DOTD, 617 So. 2d 880 (La. 1993). In order to reverse the trial court's findings, the appellate court must, after a review of the record in its entirety, find that there is no factual basis for the trial court's finding. Slayton, supra. The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the fact-finder's conclusion was a reasonable one. Stobart, supra. When findings of fact are based upon determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the trier of fact, because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Rosell v. ESCO, 549 So. 2d 840 (La. 1989). Credibility determinations are the function and prerogative of the trial court. Slayton, supra.
In this case, the trial court explicitly accepted Lowery's version of the incident and rejected Savana's claim that Lowery was the aggressor and that he did not use unreasonable force in repelling her actions. At trial, Puckett and Ann Fitzgerald corroborated Lowery's testimony. The photographs of Lowery's injuries introduced into evidence clearly validate her claims as well. Notably, those striking pictures also depict injuries which are inconsistent both with Savana's description of the blows he claimed to have inflicted on Lowery and his contended use of reasonable force. It is unlikely, too, that a physical attack by Lowery would have provoked an individual possessing Savana's strength to retaliate with fear-based physical force or anticipation of injury . Such a postulate is certainly inconsistent with Savana's testimony that he physically restrained Lowery on the bed in order to restrict her ability to hit him. Accordingly, we can discern no error in the trial court's credibility determinations.
Moreover, Lowery's testimony that Savana entered the couples' trailer in the early morning hours of December 28th and, without provocation, hit her about the face and head for an extended period of time which resulted in substantial physical injuries is sufficient proof of battery by a preponderance of the evidence. Accordingly, the trial court determination in this regard is more than reasonably supported by the record.
Quantum
Savana next claims that the $35,000 general damage award is excessive and should be reduced to $5,000.
General damages are those that may not be fixed with pecuniary exactitude. Such damages involve mental or physical pain or suffering, inconvenience, the loss of physical
Page 1 2 3 4 5 Louisiana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|