CHUUK STATE COURT
TRIAL DIVISION
Cite as Ludwig v. Mailo ,
5 FSM Intrm. 256 (Chk. S. Ct. Tr. 1992)

[5 FSM Intrm. 256]

LORDES LUDWIG, OSCAR LUDWIG
 individually and as personal
representative of OphlinLudwig,
Plaintiffs,

v.

REXY MAILO and REDLEYKILLION,
Defendants.

CIVIL ACTION NO. 197-86

OPINION
 
 John R. Petewon
Associate Justice
 January 20, 1992

APPEARANCES:
For the Plaintiffs:        R. Barrie Michelsen
                                     Attorney at Law
                                     Kolonia, Pohnpei  FM 96941

For the Defendant      Maketo Robert
(Killion)                        Attorney at Law
                                     Kolonia, Pohnpei  FM 96941

For the Defendant:     Pro Se
(Mailo)

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HEADNOTES
Torts - Duty of Care; Negligence
     When a person elects to operate a vehicle on the public streets he owes a duty to pedestrians and others using the road and adjacent areas to operate the vehicle in a safe and prudent manner.  When the breach of this duty by driving in a fast and careless manner is the proximate cause of an injury the driver will be held liable.  Ludwig v. Mailo, 5 FSM Intrm. 256, 259 (Chk. S. Ct. Tr. 1992).

Torts - Respondeat Superior
     The individuals owning an unincorporated business are liable under the respondeat superior principle for the tortious injuries caused by their employee who was acting on behalf of the business and within the scope of his employment.  Ludwig v. Mailo, 5 FSM Intrm. 256, 259 (Chk. S. Ct. Tr. 1992).

Torts - Respondeat Superior
     Since the plaintiffs could have discovered the defendant's true ownership interest in the liable employer, it would place an undue burden on a minority interest owner in an unincorporated business to impose liability on him in excess of his ownership interest.  Ludwig v. Mailo, 5 FSM Intrm. 256, 260 (Chk. S. Ct. Tr. 1992).

Torts - Comparative Negligence; Negligence
     In order for a third party's negligent conduct to afford any relief to defendants by way of a contributory (comparative) negligence theory, it must be demonstrated that the negligent act or omission somehow caused or contributed to the injury sustained and that there was not an independent or superseding cause.  Ludwig v. Mailo, 5 FSM Intrm. 256, 261 (Chk. S. Ct. Tr. 1992).

[5 FSM Intrm. 258]

Torts - Damages
     To recover for pain and suffering a plaintiff need only show "suffering," not both "pain" and "suffering" as the term includes not only the physical pain but also fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror or ordeal.  Ludwig v. Mailo, 5 FSM Intrm. 256, 262 (Chk. S. Ct. Tr. 1992).

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COURT'S OPINION
JOHN R. PETEWON, Associate Justice:

INTRODUCTION
     This case involves a wrongful death action brought by parents of the deceased, Ophlin Ludwig, a two year old child.  The case was tried in the Trial Division of the Truk State Court on September 18 and 21, 1989.  The plaintiffs were represented by R. Barrie Michelsen.  The defendant Rexy Mailo was pro se and the defendant Redley Killion was represented by Maketo Robert.

FACTUAL BACKGROUND
     Lordes Ludwig and Oscar Ludwig, plaintiffs were the parents of Ophlin Ludwig, who died on the afternoon of March 7, 1986, when she was struck while standing near a public road in Moen Municipality by a truck driver by defendant, Rexy Mailo.

     While the evidence was somewhat conflicting and contradictory it appeared that Ophlin Ludwig, a two year old girl was standing on the shoulder of the road when the defendant, Rexy drove the truck at a high and unsafe rate of speed, lost temporary control of the truck, and fatally struck Ophlin.

     At the time of the incident, Ophlin was in the care of a 14 year old baby sitter, Afita Kas, the sister of plaintiff Lordes.  Previously Afita had been instructed by Lordes to keep Ophlin with her at all times.  Shortly before the incident, Afita walked to a nearby store with Ophlin.  At the time of the accident, Afita was on one side of the road talking with a friend and Ophlin was by herself on the other side.

     The defendant, Redley Killion was part owner (40%) of a business which was doing business under the name of Truk Development Enterprise (hereinafter "TDE").  The Truk Development Enterprise either owned or otherwise had the right to possession and control over the truck which Rexy Mailo was driving at the time of the incident.

     While the defendant, Redley Killion was not personally responsible for hiring Rexy Mailo, Rexy did work for the Truk Development Enterprise business which was partially owned by Redley Killion.  The facts showed that Rexy was

[5 FSM Intrm. 259]

operating the truck on behalf of the Truk Development Enterprise business and within the scope of him employment at the time of the accident.

LEGAL ANALYSIS
     I.  Liability of defendants.
          A.  Liability of Rexy Mailo.
     The facts indicate that Rexy drove the truck in a careless manner and as a result of this act, a child, Ophlin Ludwig, was struck and killed.  This court finds that when Rexy elected to operate the truck on public streets of Moen, he owed a duty to pedestrians and others using the road and adjacent areas to operate the truck in a safe and prudent manner.  In this regard he owed such a duty to Ophlin Ludwig.  The facts indicate he breached that duty by driving in a fast and careless manner and that a proximate result of such conduct was the death of Ophlin Ludwig.

     Section 78 of 57A Am. Jur. 2d. Negligence provides in part:

     The primary wrong upon which a cause of action for negligence is based consists in the breach of a duty on the part of one person to protect another against injury, the proximate result of which is an injury to the person to whom the duty is owed.  These elements of duty, breach, and injury are essentials  of actionable negligence and in fact most judicial definitions of the term "negligence" or "actionable negligence" are couched in those terms.

Id. at 133-35 (footnotes omitted).

     This Court therefore has determined that the defendant Rexy Mailo should be held responsible for his negligent conduct.

          B.  Liability of Redley Killion.
     Having already determined that negligent conduct of Rexy Mailo resulted in the death of Ophlin Ludwig, the court must now determine whether, under the doctrine of respondeat superior the defendant, Redley Killion, should also be held liable for the fatal injuries sustained.  This principle has been described in section 404 of 53 Am. Jur. 2d Master and Servant, in part, as follows:

It is universally recognized that a master is civilly liable for the injuries to the person or property of third persons occasioned by the torts, negligence...and other malfeasances...of his  employee, which although not directly authorized or ratified by the master, are identical to the class  of acts which the servant is hired to perform-which are within the scope of his employment.

[5 FSM Intrm. 260]

Id. at 410-11 (footnotes omitted).

     Since the court has determined that (a) Rexy Mailo was an employee of Truk Development Enterprise, an unincorporated  individually owned business partially (40%) owned by Redley Killion, and that (b) Rexy Mailo was operating the truck on behalf of the business and within the scope of his employment, this is a case where the respondeat superior principle applies.

     That next issue that arises is the extent of Redley Killion's liability for any damages sustained.  Since Redley Killion only owned a 40% interest in Truk Development Enterprise, can he be held responsible for more than 40% of any liability owing from Truk Development Enterprise?  This court has not located any local authority on this issue and therefore, this issue is one of first impression.

     Since, through readily available discovery procedures the plaintiffs could have discovered the true ownership interest in Truk Development Enterprise prior to trial, this court feels that it would place an undue burden on defendant Killion, a minority interest owner in the Truk Development Enterprise business, to impose liability on him in excess  of his ownership interest.  Therefore, this court finds that Redley Killion's responsibility for the liability of Truk Development Enterprises is limited to his interest in Truk Development Enterprise to wit 40% of Truk Development Enterprise's liability.

     II.  Analysis of various proposed defenses
          A.  Negligence of the Plaintiffs.
     The defendants have suggested that the plaintiffs, the parents of Ophlin Ludwig were negligent in entrusting their young daughter into the care and custody of the fourteen year old baby sitter, Afita Kas, sister of plaintiff Lordes. The defendants imply that the act of using a fourteen year old baby sitter is negligent per se.  The record is silent with regard to any facts indicating that the baby sitter Afita was in any respect, other than the fact of her age, unsuited to competently take care of her sister's two year old child.  Absent a showing that the parents had prior reason to believe that the person would not act in a reasonable and prudent manner with respect to the child placed in her care, this court can not say that, as a matter of law, placing a two year old child in the care of a fourteen year old baby sitter is a negligent act.  Therefore this court finds no negligence on part of the plaintiff with respect to their placing their child in the care of Afita Kas.

          B.  Negligence of the Baby Sitter
     The defendants allege that Afita Kas, the baby sitter charged with looking after Ophlin Ludwig, was negligent for allowing the child to become separated from her and be standing on the other side of the street on the shoulder of the road. They further claim that as a result of this act or omission the child was struck by a truck and killed.  They also argue in effect, that Afita was the agent or employee of the plaintiffs and that her

[5 FSM Intrm. 261]

negligence should be imputed to the plaintiffs thereby negating under a contributory negligence theory, any right they may otherwise have had to recover from the defendants.

     This court would agree that a factual situation under which a baby sitter takes the child she was caring for for a walk and allows her to become separated by a well traveled street indicates negligent conduct on the part of the baby sitter with regard to her duty of care to the child.  However, in order for the baby sitter's negligent conduct to afford any relief to defendants by way of a contributory (comparative) negligence theory, it must be demonstrated that the negligent act or omission somehow caused or contributed to the injury sustained and that there was not an independent intervening or "superseding" cause.  Section 596 of 57A Am. Jur. 2d  Negligence provides:

     The concept of superseding cause has been described by the courts in various ways.  Terms used to describe the concept have included descriptions of a superseding cause as an efficient intervening cause or force, an independent cause, a new and independent cause, an independent intervening cause, and a supervening cause.  Furthermore, some courts have apparently used the term "intervening cause" as being synonymous with "superseding cause."  However described, a superseding cause is generally one which operates, in succession to a prior wrong, as the proximate cause of an injury.  In other words, the question of intervening efficient cause is simply a question of whether the original act of negligence or an independent intervening cause is the proximate cause of an injury.

Id. (footnotes omitted).

     Section 598 goes on in part to provide, "It is well established that where a new, independent, and efficient cause, which was not reasonably foreseeable intervenes, the original actor's negligence is not the proximate cause of an injury." 57A Am. Jur. 2d Negligence 598 (footnote omitted).

     In our case, while the facts are disputed, this court believes that the deceased child was standing on the shoulder of the road.  At this time the defendant, Rexy Mailo, drove the truck at a high and unsafe rate of speed, temporarily lost control of the truck, thereby striking and killing Ophlin Ludwig.  The court further believes that the same accident would still have occurred even if the baby sitter had been standing beside Ophlin on the shoulder of the road and holding her hand.  The court, absent a showing of notice of impending danger or similar good reason does not believe that it is a careless and negligent act to stand on the shoulder of a public road way.

     Since it appears to the court that the actions of Rexy Mailo were an independent intervening or superseding cause of the fatality, the original

[5 FSM Intrm. 262]

negligence of Afita Kas was not the cause of the injury.  Since Afita Kas is relieved of liability for harm, her prior negligence can not operate against the plaintiffs to preclude their rights to recovery from the defendants.

     C.  Insufficiency of evidence regarding damages.
     The defendant Redley Killion suggest that there was insufficient evidence introduced to entitle plaintiff to damages sought for compensatory damages for the alleged wrongful death and the resulting mental pain and suffering.  On the other hand, the plaintiff suggests that the evidence was at least as compelling as the facts contained in the Suka v. Truk, 4 FSM Intrm. 123 (Truk S. Ct. Tr. 1989), a case in which a judgment in the amount of $30,000.00 was assessed for the pain and suffering experienced by the parents of the deceased child.

     The defendants further attempt to escape liability by alleging that only proof of "suffering" but no proof of "pain" is showing at the trial.  The position is without merit.

     At section 240 in 22 Am. Jur. 2d Damages it provides in part:
 
     Courts have not attempted to draw distinctions between the elements of "pain" on the one hand, and "suffering" on the other.  Rather, the unitary  concept of "pain and suffering" has served as a convenient label under which a plaintiff may recover not only for physical pain but for fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror or ordeal.

     Therefore, the court has determined that the plaintiffs have met their required burden of proof and are entitled to a $10,000.00 for the pain and suffering caused to them by such injury.  Total compensation in the amount of thirty thousand dollars ($30,000.00) is hereby awarded to the plaintiffs.

CONCLUSION
     This court concludes that the defendant Rexy Mailo and Redley Killion are liable to the plaintiffs, Lordes Ludwig and Oscar Ludwig in the total sum of $30,000.00.  However, the liability of the defendant Redley Killion is limited to forty percent (40%) of such sum.

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