CHUUK STATE COURT
TRIAL DIVISION
Cite as Meitou v. Uwera,
5 FSM Intrm. 139 (Chk. St. Ct. Tr. 1991)

[5 FSM Intrm. 139]

SWINGLY MEITOU,
Plaintiff,

v.

KENNEDY UWERA et al.,
Defendants.

CSSC CA NO. 106-90

OPINION
 
Keske Marar
Associate Justice
June 10, 1991

APPEARANCES:
For the Plaintiff:          Johnny Meippen
                                     Micronesian Legal Services Corp.
                                     P.O. Box D
                                     Weno, Chuuk FM 96942

For the Defendant:     Ready Johnny
                                     Office of the Public Defender
                                     Weno, Chuuk FM 96942

*    *    *    *

HEADNOTES
Evidence
     The concept of Burden of Proof has two aspects.  First the plaintiff in a civil case must produce sufficient evidence to establish a prima facie case in order to avoid a nonsuit.  Second, the sufficiency of evidence necessary to prove a disputed fact in a civil case is proof by a preponderance of the evidence - the facts asserted by the plaintiff are more probably true than false.  Meitou v. Uwera, 5 FSM Intrm. 139, 141-42 (Chk. S. Ct. Tr. 1991).

Torts - Battery
     When the evidence clearly establishes that plaintiff suffered in injuries as a result of intentional direct contact by the defendant the court need only consider the tort of battery, not the separate tort of assault.  Meitou v. Uwera, 5 FSM Intrm. 139, 142 (Chk. S. Ct. Tr. 1991).

[5 FSM Intrm. 140]

Torts - Battery
     Despite the finding of battery, defendant will not be found liable for damages if plaintiff consented to battery, or if defendant was in some way privileged to inflict harmful or offensive contact.  Meitou v. Uwera, 5 FSM Intrm. 139, 143 (Chk. S. Ct. Tr. 1991).

Criminal Law and Procedure - Arrest and Custody;
Public Officers and Employees - Chuuk
     In making an otherwise lawful arrest, a police officer "may use whatever force is reasonably necessary to ... effect the arrest, and no more; he must avoid using unnecessary violence."  Meitou v. Uwera, 5 FSM Intrm. 139, 143 (Chk. S. Ct. Tr. 1991).

Criminal Law and Procedure - Arrest and Custody; - Intoxication
      The use of force by police officers is not privileged or justified when the arrestee was so drunk and unstable to resist or defend himself and when the police officer used force because he was enraged at being insulted by the arrestee.  Meitou v. Uwera, 5 FSM Intrm. 139, 144 (Chk. S. Ct. Tr. 1991).

Civil Rights; Criminal Law and Procedure - Arrest and Custody; Constitutional Law - Due Process; Criminal Law and Procedure - Cruel and Unusual Punishment
     A person's constitutional right to due process of law, and his right to be free from cruel and unusual punishment is violated when an officer instead of protecting the person from attack, threw him to the ground, and beat the person in the jail.  Meitou v. Uwera, 5 FSM Intrm. 139, 144 (Chk. S. Ct. Tr. 1991).

Torts - Damages
     Despite lack of evidence of medical expenses, either that medical treatment was necessary, or that medical treatment was obtained as a result of injuries to presume that some expenditures were made, and finds that plaintiff should recover damages for those expenses, even in the absence of proof of purchase.  Meitou v. Uwera, 5 FSM Intrm. 139, 145 (Chk. S. Ct. Tr. 1991).

Torts - Damages
     An injured victim is entitled to recover for mental anguish, including humiliation, resulting from unlawful conduct in violation of the victim's civil rights.  Meitou v. Uwera, 5 FSM Intrm. 139, 146 (Chk. S. Ct. Tr. 1991).
 
Torts - Government Liability
     An employer generally may not be held liable for punitive damages for the tortious acts of its employees.  However, an employer may be held liable for punitive damages if 1) the employer authorized the act, 2) the employer knew the employee was unfit for the position at the time of the hiring, or 3) the employer ratified the tortious act of the employee.  Meitou v. Uwera, 5 FSM Intrm. 139, 146 (Chk. S. Ct. Tr. 1991).

*    *    *    *
[5 FSM Intrm. 141]

COURT'S OPINION
KESKE MARAR, Associate Justice:

I.  STATEMENT OF THE CASE
     This action arose out of events surrounding the arrest and incarceration of plaintiff Swingly Meitou by defendant Kennedy Uwera, a policeman employed by the Municipality of Moen.

     The evidence presented at trial established the following facts.  On June 9, 1988, in the neighborhood of Shigeto's Store, Nepukos, Moen, plaintiff was engaged in an argument with the brother of defendant Kennedy Uwera.  The Court is satisfied that at the time, plaintiff was drunk, having admitted that he had consumed both 151 proof liquor and beer.  Thus, plaintiff had committed an offense, specifically the crime of drunk and disorderly conduct, CSL 6-66, 603, for which defendant Kennedy Uwera had probable cause to effect an arrest.  Loch v. FSM, 1 FSM Intrm. 566, 569 (App. 1984).

     While some dispute exists regarding the interpretation of the events which occurred during the arrest, the evidence convinces the Court that as plaintiff was being taken into custody, he was attacked by the brother of defendant Uwera. Defendant, rather than subduing his brother, grabbed plaintiff and threw him to the ground.  While laying on the ground, plaintiff was handcuffed.  He was then placed in a pick-up truck and taken to Moen jail.

     At the jail, plaintiff was pulled off the truck and thrown into the jail with sufficient force to cause him to stumble and fall, and to injure himself.  While still handcuffed, drunk, and unable to defend himself, plaintiff was struck in the head and face several times by defendant.

     There is no dispute that as a result of plaintiff being thrown to the ground, and thereafter beaten, he sustained injuries sufficient to cause bleeding, bruises, and swelling to his face.  He was also rendered unconscious.  Plaintiff's mother testified that he sustained internal injuries, although no medical testimony confirmed that fact, and plaintiff introduced no evidence of medical treatment for his injuries.  As a result of the injuries, plaintiff has sued for assault and battery, and for violation of his civil rights.

     Aside from defendant Kennedy Uwera, plaintiff claims damages from the Municipality of Moen, defendant's employer.  The default of the Municipality of Moen was entered by this Court on October 2, 1989.

II.  BURDEN OF PROOF
     The concept of "burden of proof" has two aspects.  The first concerns the party which has the duty to introduce evidence, while the second involves the degree, or sufficiency, of evidence necessary to prove or disprove the claims before the Court.

[5 FSM Intrm. 142]

     The obligation of introducing evidence, sometimes called the "burden of going forward with the evidence," or the "burden of producing evidence," lies with the party who seeks to prove an affirmative fact.  In other words, the duty lies with the party who must establish a "prima facie" case, and thereby avoid a nonsuit or other adverse ruling on a claim or issue.  29 Am. Jur. 2d Evidence 123; Chk. St. Evid. R. 301.  In civil cases, generally this   burden lies with the plaintiff.  Lilianthal's Tobacco v. United States, 97 U.S. 237, 24 L. Ed. 901; 29 Am. Jur. 2d Evidence 128-29. In this case, plaintiff, having alleged assault and battery and violation of his civil rights, has the burden of going forward with evidence in support of those allegations.

     The second aspect of "burden of proof" is the degree or sufficiency of evidence necessary to prove a disputed fact, issue or claim.  Depending on the nature of the case, the degree of proof may range from proof beyond a reasonable doubt (criminal cases), to the burden in civil cases of proof by a "preponderance of the evidence."  Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979); Herman & MacLean v. Huddleston, 459 U.S. 375, 103 S. Ct. 683, 74 L. Ed. 2d 548 (1983); 30 Am. Jur. 2d Evidence 1163.

     Preponderance of the evidence is not evidence to a "moral certainty" or "clear and convincing evidence."  As a standard of proof, "preponderance of the evidence" has been held to mean that "the facts asserted by the plaintiff are more probably true than false."  Burch v. Reading Co., 240 F.2d 574, 579 (3d Cir. 1957).  The party having the burden of establishing his claim by a preponderance of the evidence must "establish the facts by evidence at least sufficient to destroy the equilibrium and overbalance any weight of evidence produced by the other party."  30 Am. Jur. 2d Evidence 1164, at 340.

     Preponderance of the evidence is not "dependent upon the number of witnesses testifying on either side, but rather upon the credibility which...the jury attributes to their testimony."  Burch v. Reading Co., 240 F.2d at 578.

III.  ASSAULT AND BATTERY
     Plaintiff's claim for damages is based upon his allegations that he was injured as a result of an unlawful, unjustified and unprivileged assault and battery at the hands of defendant Kennedy Uwera.  Since the evidence clearly established that plaintiff suffered injuries as a result of intentional direct contact by defendant Kennedy, the Court need not consider the separate tort of assault.

     This Court adopts the definition of battery set forth in the Restatement (Second) of Torts, at sections 13 and 18(1):

[5 FSM Intrm. 143]

A person is subject to liability to another for battery if he acts intending to cause harmful... contact with the person of the other or a third person, or an imminent apprehension of such a contact, and [1] a harmful contact with the other's person directly or indirectly results, Restatement, (Second) of Torts 13, [or 2] an offensive contact with the other person directly or indirectly results.  Id. 18(1)(b).

     Viewing the evidence as a whole, the Court is convinced that defendant Uwera did intend to throw plaintiff to the ground outside Shigeto's Store, and did so.  The Court is further convinced that defendant did intend to strike plaintiff on more than one occasion, while plaintiff was in custody, handcuffed and totally unable to defend himself, and that he did so.  The Court therefore finds that the defendant did commit a battery against plaintiff, and that the battery caused physical injury and mental duress to plaintiff.

     Despite the finding of battery, defendant will not be found liable for damages if plaintiff consented to the battery, or if defendant was in some way privileged to inflict the harmful or offensive contact.  See Am. Jur. 2d Assault and Battery 111, at 97.

     There is no contention that plaintiff consented to being struck and injured. However, it has been found herein that plaintiff was drunk, and therefore subject to arrest.  Defendant claims that the injuries were received in the course of a lawful arrest, and therefore defendant, as the arresting officer, was privileged to use force even if that force might result in injury.

A.  Privileged or Justifiable Force
     As the Court has already found that the defendant had probable cause to effect the arrest, the issue presented by the assertion of privilege is whether the force used was reasonably necessary, or excessive.

     In making an otherwise lawful arrest, a police officer "may use whatever force is reasonably necessary to...effect the arrest and no more; he must avoid using unnecessary violence."  Loch v. FSM, 1 FSM Intrm. 566, 570-71 (App. 1984).

     This Court adopts the rule set forth in the Restatement (Second) of Torts, regarding a privileged level of force: "The use of force for the purpose of effecting an arrest...or of maintaining custody of a prisoner is not privileged if the means employed are in excess of those which the arresting person believes to be necessary."  Restatement (Second) of Torts, 132; Loch v. FSM, 1 FSM Intrm. at 570 n.2.

     The amount of force reasonably necessary depends on the facts of each case, and is therefore to be determined by the trier of fact.  5 Am. Jur. 2d Arrest, 81, at 768.

[5 FSM Intrm. 144]

     Where, as here, the arrest itself was lawful, the Court finds that the burden of proving excessive force lies with the plaintiff, who must prove that excessive force was used by a preponderance of the evidence.  The Court acknowledges that in some jurisdictions, the burden is placed on the defendant to show that the force used was reasonable.  The Court rejects that approach, in cases where the force used was less than deadly force, on the grounds that use of necessary force is privileged.  To place the burden on defendant would, in the opinion of the Court, eliminate the privilege, and place an undue burden on police officers which might unreasonably interfere with the proper exercise of discretion in making arrests.  See Annotation, 83 A.L.R.3d 238, 247-48 (discussion of burden of proof).  Of course, the Court renders no opinion regarding the burden of proof where the force used results in death, or where the arrest may be arguably illegal.  For a discussion of the use of deadly force see Loch v. FSM, 1 FSM Intrm. 566 (App. 1984).

     Applying these principles to this case, the Court is convinced that the force used by defendant Uwera, both in making the arrest, and in maintaining custody at the Moen jail, was unreasonable and unnecessary.  No evidence was produced that plaintiff did, or even could have, resisted arrest.  He was apparently so drunk that he was picked up and swung around by defendant, without resistance.

     The testimony surrounding the events at Shigeto's Store convinces the Court that defendant, instead of stopping his brother Joseph Uwera from attacking plaintiff, assisted in the attack, and in so doing caused injury to the plaintiff.  The Court is further convinced, and so finds, that defendant struck plaintiff several times at the jail, while plaintiff was handcuffed, weak, unresisting and unable to defend himself.  The Court also finds that the defendant inflicted this punishment because he was enraged at being insulted by plaintiff.  Insults simply do not warrant the response shown by defendant, and the Court finds that the actions of defendant were motivated by malice, and that defendant intended to, and did, cause physical injury to plaintiff.

IV.  VIOLATION OF CIVIL RIGHTS
     The Constitution of the State of Chuuk contains rights which are fundamental to all citizens of the State.  Article III, section 2 states: "No person may be deprived of life, liberty or property without due process of law, be denied equal protection under the law, be denied the enjoyment of civil rights..."(emphasis added).
 
     Article III, 6 states: "Excessive bail may not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted."

     The actions of officer Kennedy Uwera, in throwing plaintiff to the ground instead of protecting him from attack, and in beating plaintiff in jail, where the plaintiff could not defend himself, violated both plaintiff's constitutional right to due process of law, and his right to be free from  cruel and unusual punishment.  Tolenoa v. Alokoa, 2 FSM Intrm. 247, 250 (Kos. 1986), rev'd on other grounds, Tolenoa v. Kosrae, 3 FSM Intrm. 167 (App. 1987).

[5 FSM Intrm. 145]

While a police officer may use force to effect an arrest and to protect himself and other citizens,    he may not use force or violence simply to punish people he dislikes or those he decides have done wrong....
 
Punishment is no part of the police officer's assignment. A policeman who chooses to mete out punishment violates his office and does so at his own peril.

Loch v. FSM, 1 FSM Intrm. at 574-75.

     The Court notes that the actions of officer Uwera themselves constitute the crime of assault and battery under the Chuuk State Criminal Code.  Chk. S.L. 6-66, 409.

V.  DAMAGES
     Plaintiff seeks both compensatory and punitive damages.

     A.  Compensatory Damages
          1.  Expenses and lost earnings.
     Plaintiff is permitted to recover, as elements of compensatory damages, expenses incurred as a result of the injuries suffered, as well as damages for pain and suffering, and mental aguish and humiliation.  22 Am. Jur. 2d  Damages 133 et seq.  Included as items of damage are medical expenses and loss of earnings. 22 Am. Jur. 2d Damages 197 (medical expenses) and    151 et seq. (earnings).

     Here, plaintiff failed to introduce any evidence of medical expenses, either that medical treatment was necessary, or that medical treatment was obtained. Furthermore, while there is no doubt that plaintiff was seriously injured, and caused substantial pain, the types of injuries suffered (bruises, cuts and scrapes, bloody nose) are injuries that normally heal with time, even in the absence of medical treatment.

     Despite the lack of evidence, however, the Court is entitled to presume that some expenditures were made, for bandages, aspirin and other remedies, and finds that plaintiff should recover damages for those expenses, even in the absence of proof of purchase.  22 Am. Jur. 2d Damages 199.

     Plaintiff is allowed to recover damages for loss of his capacity to earn wages. This is true even if he was unemployed at the time of the injuries, and therefore unable to prove actual lost wages.  United States v. Jacobs, 308 F.2d 906 (5th Cir. 1962); 22 Am. Jur. 2d Damages 185.  Damages are allowed even if plaintiff may have been rendering gratuitous services without compensation at the time of the injuries.  District of Columbia v. Woodbury, 136 U.S. 450, 10 S. Ct. 990, 34 L. Ed. 472 (1890); Dowling v. Herbert, 146

[5 FSM Intrm. 146]

Conn. 516, 152 A.2d 642.

     2.  Pain and Suffering
     A person injured through the negligent or intentional tort of another is entitled to an award of damages for pain and suffering.  22 Am. Jur. 2d Damages 239.  The injured victim is also entitled to recover for mental anguish, including humiliation, resulting from unlawful conduct in violation of the victim's civil rights.  Alaphen v. Municipality of Moen, 2 FSM Intrm. 279, 281 (Truk 1986); 22 Am. Jur. 2d Damages 251.

     B.  Punitive Damages
     Punitive damages are recoverable for tortious acts where there is a finding that the tort was committed with actual malice, or deliberate violence.  Scott v. Donald, 165 U.S. 58, 17 S. Ct. 263, 41 L. Ed. 632 (1897).  Punitive damages are proper where excessive force by a police officer interferes with an individual's civil rights. Young v. New Orleans, 751 F.2d 794 (5th Cir. 1985).  This is so even where the individual is a prisoner.  Tolenoa v. Alokoa, 2 FSM Intrm. 247, 249-50 (Kos. 1984); Davidson v. Dixon, 386 F. Supp. 482 (D. Del. 1974).

     In the instant case, the Court has found that defendant acted with actual malice in inflicting the injuries upon plaintiff.  The Court further finds that defendant acted with deliberate violence.  An award of punitive damages against defendant Kennedy Uwera is therefore proper.

VI.  LIABILITY OF MOEN MUNICIPALITY
     Evidence was introduced sufficient to establish that defendant Kennedy Uwera failed to receive training from the municipality of Moen in proper police procedures and in restraint in the use of force.  Employment of untrained police officers, and failure to adequately train its officers, subjects the employing municipality to liability for the tortious acts of the officers.  Moses v. Municipality of Polle, 2 FSM Intrm. 270, 271 (Truk 1986); Alaphen v. Municipality of Moen, 2 FSM Intrm. 279, 280 (Truk 1986).
 
     An employer generally may not be held liable for punitive damages for the tortious acts of its employees.  An employer may be held liable for punitive damages if (1) the employer authorized the act, (2) the employer knew the employee was unfit for the position at the time of the hiring, or (3) the employer ratified the tortious act of the employee.  22 Am. Jur. 2d Damages 786.

     While the Court acknowledges that the Municipality of Moen failed to adequately train Uwera, the Court has not been convinced that in this case the lack of training rises to the level of recklessness.  Furthermore, the Court takes judicial notice of the fact that defendant was terminated by the Municipality of Moen, and therefore no evidence of ratification exists.

[5 FSM Intrm. 147]

Neither was there any evidence that the beating was authorized by the Municipality. The Court finds therefore that the Municipality of Moen shall be jointly and severally liable with defendant Uwera for all damages awarded with the exception of punitive damages.

VII.  CONCLUSIONS OF LAW
     The defendant Kennedy Uwera committed battery on plaintiff.  Defendants Kennedy Uwera and Municipality of Moen unlawfully deprived plaintiff of the enjoyment of his civil rights, in violation of the Chuuk State Constitution and 11 F.S.M.C. 701(3).  The plaintiff is entitled to damages for injuries as follows:

          1.  Against defendants Uwera and the municipality of Moen, jointly and severally:

               a)  Medical expenses               $  40.00
               b)  Lost earnings                         160.00
               c)  Pain and suffering                  800.00
               d)  unlawful infliction of
                    punishment and                   1,000.00
                     humiliation

          2.  Against Defendant Uwera:
               a)  Punitive damages             $1,000.00

                    TOTAL DAMAGES           $3,000.00
 
     Reasonable attorney's fees will also be awarded to plaintiff.

*    *    *    *