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Albinger v. Harris6/6/2002
sue 3.
Did the District Court err in awarding Harris compensation for general damages resulting from an assault and battery by Albinger?
Harris counter-claimed for personal injuries stemming from the severe beating she sustained on February 23, 1997, seeking $35,000 to cover medical and psychiatric treatment, lost wages, emotional distress, pain and suffering. The District Court found Albinger admitted liability for the incident and paid Harris' resulting medical bills shortly after the incident. Harris was not employed during the time she lived with Albinger, and the court found no evidence of lost earnings. Noting that Harris failed to present evidence of past or anticipated psychiatric counseling needs and expenses, the court awarded Harris $2500 in general damages for emotional distress, pain and suffering. Albinger appeals the award.
Once liability is established, it is the duty of the finder of fact to award damages for pain and suffering when the evidence clearly establishes that the plaintiff suffered painful injury and the defendant presents no evidence to the contrary. Thompson v. City of Bozeman (1997), 284 Mont. 440, 446, 945 P.2d 48, 51; Lee v. Kane (1995), 270 Mont. 505, 514, 893 P.2d 854, 859; Walls v. Rue (1988), 233 Mont. 236, 236, 759 P.2d 169, 170 (citing Gehert v. Cullinan (1984), 211 Mont. 435, 439, 685 P.2d 352, 354). This Court will not disturb an award of damages unless the amount awarded is so grossly out of proportion to the injury as to shock the conscience. Hansen v. Hansen (1992), 254 Mont. 152, 159, 835 P.2d 748, 752; Frisnegger v. Gibson (1979), 183 Mont. 57, 66, 598 P.2d 574, 579 (citing Kelleher v. State (1972), 160 Mont. 365, 375, 503 P.2d 29, 34-35). The amount to be awarded is properly left to the finder of fact and this Court will not substitute its judgment unless we find the judgment to be the product of passion or prejudice. Frisnegger, 183 Mont. at 67, 598 P.2d at 580 (citing Salvail v. Great Northern Railway Co. (1970), 156 Mont. 12, 31, 473 P.2d 549, 560). In personal injury actions there is no measuring stick by which to determine the amount of damages to be awarded for pain and suffering other than the intelligence of a fair and impartial trier of fact governed by a sense of justice; each case must of necessity depend upon its own peculiar facts. Johnson v. United States (D.C.Mont. 1981) 510 F.Supp. 1039, 1045 (citing Pfau v. Stokke (1945), 110 Mont. 471, 475, 103 P.2d 673, 674-75).
The record contains substantial and uncontroverted evidence that Harris endured numerous incidents of domestic violence during her relationship with Albinger. Harris testified that she experienced considerable pain, emotional distress and inconvenience as a result of the particularly severe beating she sustained on February 23, 1997. Brandishing a knife and threatening to cut off her finger, Albinger forcibly removed the ring from Harris' left hand, which resulted in permanent nerve damage. Albinger also pummeled Harris with a railroad lantern. Photographs, taken shortly after this incident and admitted into evidence without objection, document the bruises, swelling and abrasions on Harris's face, head, neck, shoulders and arms.
The clear weight of authority holds that any award that fails to include a sum for the general damages of pain, suffering and emotional distress is inadequate or inconsistent when the evidence in support is beyond controversy. The trial judge's assessment of $2500 for such damages certainly is not excessive and does nothing to "shock the conscience" of this Court. We hold that the District Court legitimately acted upon its legal duty to award general damages as part of its judgment in this case.
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