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Lowery v. Savana5/10/2000
enjoyment or other losses of life or lifestyle that cannot be definitively measured in monetary terms. Minkler, supra.
A trial court must balance many factors in assessing damages in assault and battery cases. These include, besides physical pain and suffering, the factors of provocation, reasonableness of force used, attendant humiliating circumstances, sex of the victim, mental distress, etc. There is no rule or standard of law fixing or establishing the amount of recovery. Each case, consequently, must rest on its own set of facts, with great discretion afforded the trial court to assess general damages. Eddy v. Litton, 586 So. 2d 670 (La. App. 2d Cir. 1991), writ denied, 590 So. 2d 1203 (La. 1992).
Before an appellate court may disturb a damage award, the record must clearly reveal that the trial court abused its broad discretion in making the award, based on the facts and circumstances peculiar to the case and the individual under consideration. Youn v. Maritime Overseas Corp., 623 So. 2d 1257 (La. 1993), cert. denied, 510 U.S. 1114, 114 S. Ct. 1059, 127 L. Ed. 2d 379 (1994). In determining whether the trier of fact abused its discretion by making an excessive award, the evidence must be viewed in the light most favorable to the plaintiff. Babb v. Boney, 30,443 (La. App. 2d Cir. 04/08/98), 710 So. 2d 1132. Of course, upon finding an award is beyond that which a reasonable trier of fact could assess, the reviewing court may lower an award of general damages to the highest amount that could appropriately be granted. Youn, supra.
In this case, the evidence shows that Lowery received serious physical injury from the battery. Photographs introduced into evidence reveal the visible force with which Lowery was hit. The pain and humiliation attendant to the lengthy unprovoked ordeal through which Savana continually hit Lowery about the head and face, cursed at her, repeatedly threatened to kill her, and spat in her face are obvious. Such factors were obviously intensified when Savana declined Lowery's request to allow her to seek medical assistance despite her obvious swelling and pain. Moreover, Lowery's humiliation culminated, when out of fear for her life, she acquiesced to offering an unjustified apology and having sexual relations with Savana.
Lowery testified that for a week after the incident, she experienced constant physical pain, headaches, faintness and dizziness; she also had knots on the back of her head, ear and neck and bruising about her body. During that time, she could not eat, was bedridden and missed one week of work. She returned to the emergency room approximately one week after the incident with complaints of serious head pain, faintness and dizziness. She lived with her brother and his wife for a week after the incident and then moved in with another friend for three weeks at the apartment complex where she worked. Lowery was forced to return to work a week after the accident because she needed the money. She continued to experience headaches through June of 1998 when she quit her job ; she was no longer able to perform the required maintenance duties of her apartment manager's position. She obtained another apartment manager's post in Bossier City, Louisiana, which required her to perform only office duties. She took a cut in pay and was forced to cease receiving any medical treatment after the move because she lost her insurance coverage.
The headaches, which she experienced from January through June of 1998, required medical treatment by a neurologist; she also had nightmares. During that six-month period, Lowery also sought medical treatment for her eyes and ears. She testified that after the accident, she could not see as well as be
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