THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Suka v. Truk,
4 FSM Intrm. 123 (Truk S. Ct. Tr. 1989)

[4 FSM Intrm. 123]

CLARENCE SUKA individuallyand
as personal representative of the
ESTATE of ORLANDO SUKA, deceased,
Plaintiff,

vs.

TRUK STATE,
Defendant.

CIVIL ACTION NO. 59-86

OPINION

Decided:  July 11, 1989

Before:  Hon. Keske Marar, Associate Justice, Truk State Court

APPEARANCES:
For the Plaintiff:       Camillo Noket
                                  Micronesia Legal Services
                                  Truk Office
                                  Moen, Truk  96942

For the Plaintiff:       R. Barrie Michelsen
                                  Attorney at Law
                                  Ramp & Michelsen
                                  Kolonia, Pohnpei  96941

For the Defendant:  Jeanne Rayphand
                                  Office of the Attorney General
                                  Truk State
                                  Moen, Truk  96942

*    *    *    *

HEADNOTES
Torts - Vicarious Liability
     An employer may be liable for the negligent acts of employees, but not for acts committed outside the scope of employment.  Suka v. Truk, 4 FSM Intrm. 123, 126 (Truk S. Ct. Tr. 1989).

Custom and Tradition - Truk; Torts - Contributory Negligence
     The doctrine of contributory negligence should not be adopted in Truk State in the absence of a statute because it is not in conformity with traditional

[4 FSM Intrm. 124]

Trukese concepts of responsibility; in Trukese custom, the wrongdoer cannot excuse his obligations to the injured person or the injured family by arguing that the injury was in part caused by the negligence of the injured party, or that someone else was also responsible.  Suka v. Truk, 4 FSM Intrm. 123, 127 (Truk S. Ct. Tr. 1989).

Custom and Tradition - Truk; Settlement
     Since the judicial system and customary settlement in Truk are fundamentally different and serve different goals, the primary concern of customary settlement being community harmony rather than compensation for loss, the use of one should not prevent the use of the other.  Suka v. Truk, 4 FSM Intrm. 123, 128 (Truk S. Ct. Tr. 1989).

Custom and Tradition - Truk; Settlement
     Offers or acceptances of customary settlement should neither be used in court to prove liability on the part of the wrongdoer, nor be deemed the same as a legal release on the part of the plaintiff.  Suka v. Truk, 4 FSM Intrm. 123, 129 (Truk S. Ct. Tr. 1989).

Custom and Tradition - Truk; Settlement
     To the extent that customary settlements are given any binding effect at all, they should be only binding as to those persons that are part of custom; state agencies and non-Trukese persons are not part of that system.  Suka v. Truk, 4 FSM Intrm. 123, 129 (Truk S. Ct. Tr. 1989).

Torts - Negligence
     Where the driver of a vehicle dropped off a child and then failed to see that the way was clear before starting the vehicle in motion, the driver was negligent and is liable for the death of the child. Suka v. Truk, 4 FSM Intrm. 123, 129-30 (Truk S. Ct. Tr. 1989).

Torts - Damages
     In a wrongful death claim, parents of the deceased child are entitled to claim pecuniary damages and damages for their own pain and suffering from the loss of their child.  Suka v. Truk, 4 FSM Intrm. 123, 130 (Truk S. Ct. Tr. 1989).

Torts - Damages
     The mental anguish or grief aspect of a damage award reflects the loss of a broad range of mutual benefits each family member normally receives from others' continued existence, including love, affection, care, attention, companionship, comfort and protection.  Suka v. Truk, 4 FSM Intrm. 123, 130 (Truk S. Ct. Tr. 1989).

Torts - Damages
     Although in the usual case in Truk the damages for loss of income will be lower than, for instance, Guam or Hawaii because of the wage scale there, and medical expense damages will normally be greatly reduced because in the usual case the government absorbs the medical bills, there is no justification for reducing a mental pain and suffering award because of the citizenship of the parents or the geographic location of the accident causing the injury.  Suka

[4 FSM Intrm. 125]

v. Truk, 4 FSM Intrm. 123, 131 (Truk S. Ct. Tr. 1989).

*    *    *    *

COURT'S OPINION
KESKE S. MARAR, Associate Justice:

I.  INTRODUCTION
     This wrongful death action arose out of a tragic motor vehicle accident in Dublon that cost the life of Orlando Suka, who was not quite four years old at the time of his death.  The case was brought by his parents as personal representatives of his estate against Iowan Konik, the driver of the pickup truck involved, and the State of Truk, owner of the vehicle and employer of Defendant Konik, pursuant to 6 TTC 201.

     There are a few disputed facts in the case.  The questions raised concern the application of those facts to the relevant principles of law.

     The parties are in agreement that Orlando Suka died January 25, 1985, which was the day of the accident, and his date of birth was April 21, 1981.  His death was a result of being run over by the pickup truck previously mentioned.  At the time of the injury to the decedent, the motor vehicle was being operated by Iowan Konik.

     The evidence at trial showed the following:  Iowan Konik drove his wife, two of his children, and Sowana Suka, his wife's sister, along with two of Sowana's children (including Orlando) to the sub-center for Special Education in Dublon. Mr. Konik was a driver for Special Ed, and the purpose of the trip was to drop Mrs. Suka, a Special Ed teacher, off at work.  Apparently Mrs. Konik and her children went along to visit a nearby house.  It was not clear from the testimony why Mrs. Suka had two of her children with her.1  When the pickup arrived at the sub-center, the two sisters and their children got off.  Ansina Kony and Julie Ludwig happened to be at the sub-center and asked if Mr. Konik was going in their direction.  It turned out that he was, and he agreed they could ride along to one of his stops where he would be picking up children.

     Mr. Konik had turned off the ignition when he stopped the truck, and when he was ready to leave, had to try three times to start it.  His testimony was that the first time he tried to start the pickup, he noticed his wife and her sister, as well as their children, moving toward the front of the vehicle.  On the third try, he stated that he saw the two sisters and he saw his children, but not Orlando, and assumed he had gone in a nearby house.  After checking his mirrors and looking back, he then put the car into reverse.  It turned out that Orlando had gone to the rear of the vehicle and was fatally injured when the pickup truck backed up.

[4 FSM Intrm. 126]

     Three defenses have been suggested by the Defendants.  These defenses, if valid, would preclude a judgment from being entered against them even if Mr. Konik was in fact negligent.  For that reason the Court will address these issues first.

II. SCOPE OF EMPLOYMENT
     The State argued that Mr. Konik was not acting within the scope of his employment at the time of the accident.  An employer may be liable for the negligent acts of an employee, but not for acts committed outside the scope of employment.

     Although early in the stages of the development of the law of master and servant it seems to have been the rule that the master was to be held liable for the wrongful acts of the servant only where the act was shown to have been expressly commanded by the master, it has long since been established that the employer, to incur liability, need not have commanded the particular wrongful act. The test of the liability of a master for the tortious act of his servant.  Now universally accepted, is whether there was express or implied authority for doing the act upon which the plaintiff bases his action.  In the customary legal phraseology, to make the master responsible for the acts of his servant the act must be done in the scope of course of the servant's employment, that is, under the express or implied authority of the master.

53 Am. Jur. 2d Master and Servant 426, at 441 (1970).

     Here, the state argued that the job description of the defendant did not include providing teachers with transportation to school.  However, the defendant testified that he had been told to provide transportation to teachers by his supervisor to insure that the schools were ready for students and to assist students on the trip to the school.  The State did not dispute this testimony.  The instruction the Defendant said he received from his supervisor on this point is also consistent with the testimony of Isauo Kuuena, State Director of Personnel, who agreed that the defendant's job description included performing such other tasks "as assigned" by his supervisor.  The Court concludes that the Defendant was acting within the scope of his employment when he drove Mrs. Suka to school.  In any event, the accident did not occur on the trip to school.  The trip was over, and all had disembarked.  Mr. Konik was then backing up and was on his way to pick up students when the accident occurred.  At that point he was indisputably acting within the scope of his employment, and if the Defendant was negligent in the operation of the pickup, the State is liable.2

[4 FSM Intrm. 127]

III.  CONTRIBUTORY NEGLIGENCE
     Both defendants suggest that Mrs. Suka was contributorily negligent because she did not watch her son carefully enough and keep him out of the way of the truck.  This issue raises the question of whether the doctrine of contributory negligence applies in the State of Truk.  There is no reference to contributory negligence in the law of the State of Truk.  The Trust Territory Code at 1 TTC 103 indicates that the Restatement "shall be the rules of decision in the courts of the Trust Territory," and since the Restatement only discusses contributory negligence rather than comparative negligence, it can be assumed that the High court was bound to apply the doctrine of contributory negligence.  However, "by its terms ... [that statute] applies only to 'courts of the Trust Territory.'"  Rauzi v. FSM, 2 FSM Intrm. 8, 14 (Pon. 1985).  There is no law other than the above cited statute that would lead one to believe that contributory negligence applied in Truk.  The fact that the doctrine of contributory negligence has fallen into disfavor is another reason why this Court should not be quick to adopt it.

     The hardship of the doctrine of contributory negligence upon the plaintiff is readily apparent.  It places upon one party the entire burden of a loss for which two are, by hypothesis, responsible.  The negligence of the defendant has played no less a part in causing the damage; the plaintiff's deviation from the community standard of conduct may even be relatively slight, and the defendant's more extreme: the injured man is in all probability, for the very reason of his injury, the less able of the two to bear the financial burden of his loss; and the answer of the law to all this is that the defendant goes scot free of all liability, and the plaintiff bears it all,

     There has been for many years an increasing dissatisfaction with the absolute defense of contributory negligence.  Courts are becoming more reluctant to rule that the plaintiff's conduct is negligent as a matter of law, and juries are notoriously inclined to find that there has been no such negligence, or to make some more or less haphazard reduction of the plaintiff's damages in proportion to his fault.

W. Prosser, The Law of Torts 432-33 (4th ed. 1971).

     The most important reason not to adopt contributory negligence in the absence of a statute passed by our state legislature is that the doctrine is not in conformity with traditional Trukese concepts of responsibility.  In Trukese custom, the important question is who caused the harm.  Once that is established, the wrongdoer cannot excuse his obligations to the injured person or the injured family by arguing that the injury was part caused by the negligence of the injured party, or that someone else was also responsible.  The injury happened.  It was caused by the wrongdoer.  The injury must be

[4 FSM Intrm. 128]

compensated.

     In this case the Court does not have to choose between contributory negligence, comparative negligence, or Trukese custom, because the Court holds that Mrs. Suka, on these facts, was not negligent.  Mrs. Suka was carrying a small infant, and the amount of time she had her eyes off her son during the the rather brief time it took for this tragedy to occur was not long.  This case is not like Ray v. Electrical Contracting, 2 FSM Intrm. 21 (App. 1985), where the trial court found the parents contributorily negligent because they knew about the hole in which their children drowned.  Here, Mrs. Suka did not know that the defendant was going to back up his truck in spite of the fact that he did not know where Orlando was.

     Mrs. Suka neither abandoned Orlando, knowingly let him play in traffic, nor, as happened in the Ray case, let him play near an excavation ditch filled with water. A mother holding an infant while disembarking from a truck is warranted in assuming that the driver of the truck will act in a reasonable and prudent manner while she and her children are getting a safe distance away, and that taking her eyes off the other child during the time it took the accident to happen is not a negligent act. Therefore, she cannot be said to be contributorily negligent.

III.  CUSTOMARY SETTLEMENT
     Both defendants argue that there was a customary settlement in this case. From this they conclude that no cause of action can be maintained.  The only evidence of a customary settlement provided by the defendants was that defendant Konik was told that his parents had gone to the plaintiffs to apologize to them and offer a taro patch in compensation for the loss of their son.  There was also testimony that the defendants had "apologized."  This is hardly persuasive evidence that a full and binding settlement has been made that prevents this case from being brought. Both plaintiffs did agree that the offer of a taro patch was made, but the plaintiffs maintain they have not taken the property. Mr. Suka knew that the offered property was the subject of a title dispute, and Mr. Konik also testified that a title dispute is on-going.  The plaintiffs did indicate to the authorities that they had no interest in defendant being criminally prosecuted for the incident.  That, however is a separate matter from waiving their right to bring a civil action.

     There are two primary dispute resolution systems in Truk:  one is the judicial system, and the other is generally called "customary settlement."  In the context of the personal injury case, the judicial system seeks to compensate persons for their loss.  The customary settlement, the primary concern is community harmony. There can be no peace on a small island or group of islands until an accommodation between the families involved can be made.  Since the two systems are fundamentally different and serve different goals, the use of one should not prevent the use of the other.

     If the Courts held that the acceptance of an apology or a settlement between the families would affect a legal action at some later date, then

[4 FSM Intrm. 129]

Trukese custom would be damaged.  The potential defendant would have to avoid an apology so that his statements would not be used against him if the apology is not accepted.  The plaintiff would have to refuse to accept any customary apology or settlement, so that it could not later be said that there had been a waiver of rights.  This would damage community harmony.  A wrongdoer and his family should be encouraged to approach the harmed family and make amends.  The harmed family should be encouraged to accept sincere and honest apologies. Such actions should neither be used in court to prove liability on the part of the wrongdoer, or be deemed the same as legal release on the part of the plaintiff.

     The Court notes that there is no authority in Trukese custom for a "customary settlement" to be made by or for the Government, or any non-party, non-lineage individuals.  If such third party forgiveness was adopted, then we could expect non-Trukese litigants, for instance insurance companies, arguing that since the parties have apologized, or participated in a "customary settlement," the insurance company would not need to pay the insurance proceeds.  To the extent that customary settlements are given any binding effect at all, they should be only binding as to those persons that are part of custom.  State agencies and non-Trukese persons are not part of the system.

     The Court finds that the defendant Iowan Konik did offer his apologies in this case, but there was no customary settlement accepted in this case.  Even if there had been, the court finds that a customary settlement does not, standing alone, prevent a legal cause of action from being filed against the defendant, and as to the state government, such a settlement is simply inapplicable.

IV.  THE ISSUE OF NEGLIGENCE
     We therefore come to the issue of negligence.  The defendants argue that no negligence was shown in this case by the driver.

     The applicable standard is as follows:

     The operator of a motor vehicle is required to exercise ordinary or reasonable care under the circumstances before and while starting or backing his vehicle, with respect to any children who may be in the vicinity, particularly where he has, or should have, knowledge of their presence, and where he has reason to anticipate that a child may be near his vehicle, it is his duty to see that the way is clear before starting it in motion.

60 C.J.S. Motor Vehicles 396(4), at 783-84.

     In this case defendant knew that Orlando was in the area -- he had dropped him off.  As he got the truck started he knew he saw his wife, and his children, and his sister-in-law, but not Orlando.  He assumed that Orlando had gone in the house. The exercise of reasonable care at that point would have

[4 FSM Intrm. 130]

been to ask where the child was, or whether it was all clear from behind.  He did neither.  Either response to the situation would have avoided the tragedy.  Failing to do so was negligent.  It was "his duty to see that the way is clear before starting [the vehicle] in motion."  The Court finds that Iowan Konik, and hence the State of Truk, is liable for the death of Orlando Suka.

V.  DAMAGES
     Title 6 TTC 203 provides that in a wrongful death action the trial court may award damages not in excess of $100,000.00.  The Court will assume, without deciding, that those limitations on damages are binding on the state court.  The original wrongful death statute in the Trust Territory had limitations amount of $10,000.00.  September 1, 1967 raising the limit to the present $100,000.00 level. See 6 TTC 203 (1970 ed., revisor's note).

     The original code provisions provided only for awards of pecuniary damages suffered as a result of a wrongful death.  However, effective April 1, 1972, P.L. 4C-36 added the language:

     Where the decedent was a child, and where the plaintiff in the suit brought under this chapter is the parent of such child, or one who stands in the place of a parent pursuant to customary law, such damages shall include mental pain and suffering for the loss of such child, without regard to provable pecuniary damages.

See 6 TTC 203 (1975 Supp. ed. note).

     Accordingly, the plaintiff's in this case, as the parents of the deceased child, are entitled to claim pecuniary damages and damages for their own pain and suffering from the loss of their child.  Skebong v. Trust Territory, 8 TTR 339 (Pal. 1981).

     Plaintiffs presented evidence at trail to support a claim for pecuniary damages in the amount of $800 for expense related to the death of their child.  This figure was not disputed by the defendants.

     Plaintiffs also presented evidence to support a claim for damages in the nature of their pain and suffering and loss of companionship of their deceased child. Admittedly this aspect of a damage award cannot be set with  precision. The United States Supreme Court in Sea-Land Services v. Gaudet, 414 U.S. 573, 94 S. Ct. 806, 39 L. Ed. 2d 9 (1974), has defined the mental anguish or grief aspect of such a damage award as including a "broad range of mutual benefits each family member receives from others' continued existence, including love, affection, care, attention, companionship, comfort and protection." Id. at 585, 94 S. Ct. at 815, 39 L. Ed. 2d at 21.

     The evidence here was that the parents lived together with their children, including Orlando.  It was the plaintiffs who raised him, and he lived with them all his life.  Both parents testified that they have not

[4 FSM Intrm. 131]

gotten over, and feel they will never get over, the loss of their child.  They have since had another baby, and named him Orlando.  Obviously, the loss of the child was a great loss as it would be for any parent who lives with, raises, and nurtures that child.  The damages are significant, and are not mitigated by any special factors such as the absence of the child from the home or a lack of a real parent-child relationship.

     That brings us to the issue of the appropriate amount of damages.  Although in the usual case in Truk the damages for loss of income will be much lower than, for instance, Guam or Hawaii because of the wage scale here, and medical expense damages will normally be greatly reduced because in the usual case the government absorbs the medical bills, there is no justification for reducing a mental pain and suffering award because of the citizenship of the parents or the geographical location of the accident causing the injury.  On the same facts, the award to compensate parents for the loss of a child in Guam or Hawaii should not be significantly different here for mental pain and suffering.

     The last opinions from the Trust Territory High Court in wrongful death cases gave awards close to or at the statutory limit.  Skebong, 8 TTR 399 (Pal. 1981), (for death of 6 yr. old girl, $95,000.00 for pecuniary and pain and suffering damages plus costs and expenses) and Wilson v. McCarthy, Civil Action No. 48-75 (Mrns. 1980) (for death of a 48-year old woman).

     In the United States, some feeling of the current thinking on the proper damages award for the "pain and suffering" of the surviving family members can be found in Self v. Great Lakes Dredge & Dock Co., 832 F.2d 1540 (11th Cir. 1987) in which the Eleventh Circuit, quoting a range of judgments, noted that an award to the wife of only $70,000.00 for loss of society, love and companionship, and $15,000.00 to each child as "small" but not unconscionably inadequate.  The defendant had cited to cases awarding $25,000.00 to $75,000.00 for loss of society.

     The Court concludes this review of the facts of this case, and awards in other jurisdictions for mental pain and suffering for the loss of a family member, by holding that an award of $15,000.00 to each parent for mental pain and suffering is justified.  In addition, an award of an additional $800 is made for pecuniary loss of the parents in this case.  The total award is therefore $30,800.00.  Let the judgment be entered accordingly.

     So ordered the 11th day of July, 1989.

*    *    *    *

Footnotes:

1.  Mr. Konik only recalled Orlando coming with Mrs. Suka.
 
2.  The Court has already ruled in this case that it will not judicially create the doctrine of sovereign immunity for the State of Truk.  The decision to place limits on the manner of recovery against the State is a legislative decision.  See also Panuelo v. Pohnpei, 2 FSM Intrm. 150 (Pon. 1989).