Lowery v. Savana

759 So. 2d 1020, 2000 WL 562823
CourtLouisiana Court of Appeal
DecidedMay 10, 2000
Docket33,384-CA
StatusPublished
Cited by5 cases

This text of 759 So. 2d 1020 (Lowery v. Savana) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lowery v. Savana, 759 So. 2d 1020, 2000 WL 562823 (La. Ct. App. 2000).

Opinion

759 So.2d 1020 (2000)

Teresa Debra Fitzgerald LOWERY, Plaintiff-Appellee,
v.
Danny SAVANA, Defendant-Appellant.

No. 33,384-CA.

Court of Appeal of Louisiana, Second Circuit.

May 10, 2000.

*1022 Lavalle B. Salomon, Monroe, Counsel for Appellant.

Thomas W. Rogers, Ruston, Counsel for Appellee.

Before WILLIAMS, KOSTELKA, DREW, JJ.

KOSTELKA, J.

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 sheriffs 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 [him] 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 *1023 income). The court also allowed Savana a $1,200 credit for sums paid to Lowery as the result of his criminal adjudication.[1] 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), 747 So.2d 720. In order to recover for a battery, a plaintiff must prove by a 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, Through 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.[2] 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.

*1024 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

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Cite This Page — Counsel Stack

Bluebook (online)
759 So. 2d 1020, 2000 WL 562823, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lowery-v-savana-lactapp-2000.