FSM SUPREME COURT
TRIAL DIVISION
Cite as Atesom v. Kukkun,
10 FSM Intrm. 19 (Chuuk 2001)

[10 FSM Intrm. 19]
 
IC ATESOM,
Plaintiff,

vs.

KES KUKKUN, SATAMICHY ANGANG, all
individually and in their official capacities,
and CHUUK STATE,
Defendants.

CIVIL ACTION NO. 1999-1018

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Richard H. Benson
Associate Justice

Trial:  September 26-27, 29, 2000
Decided:  January 24, 2001

APPEARANCES:
     For the Plaintiff:     Camillo Noket, Esq.
                                     Directing Attorney
                                     Micronesian Legal Services Corporation
                                     P.O. Box D
                                     Weno, Chuuk FM 96942

     For the Defendants:     Johnny Meippen, Esq.
     (Kukkun & Angang)      P.O. Box 705
                                             Weno, Chuuk FM 96942

     For the Defendant:     Ready Johnny, Esq.
          (Chuuk)                  Chief of Litigation
                                         Office of the Chuuk Attorney General
                                         P.O. Box 189
                                         Weno, Chuuk FM 96942

*    *    *    *

HEADNOTES
Civil Rights; Torts ) Battery; Torts ) Use of Excessive Force
     A detainee has a civil right to be free of excessive force while detained in the custody.  Use of excessive force may constitute a battery.  Atesom v. Kukkun, 10 FSM Intrm. 19, 22 (Chk. 2001).

Civil Rights
     The state violates a detainee's civil rights to appropriate care while detained through its use of

[10 FSM Intrm. 20]

untrained and inexperienced trainees as jailers, failure to supervise those trainees, and failure to refer an injured detainee for medical care.  Atesom v. Kukkun, 10 FSM Intrm. 19, 22 (Chk. 2001).

Torts ) Battery; Torts ) Governmental Liability
     The state, as employer of a police trainee, is responsible for the battery committed by the trainee while acting within the scope of that employment.  Atesom v. Kukkun, 10 FSM Intrm. 19, 22 (Chk. 2001).

Civil Rights
     A detainee's civil right to appropriate care while detained is violated by a jailer's false report of the extent of the detainee's injury which prevented a possible medical referral.  Atesom v. Kukkun, 10 FSM Intrm. 19, 22 (Chk. 2001).

Torts ) Damages
     When the state took prompt steps in accordance with medical advice to refer the plaintiff for off-island care and treatment, but the plaintiff abandoned the care mid-treatment to return to Chuuk, no damages for lost earnings or pain and suffering after he abandoned the health care will be awarded because there is no evidence as to what the plaintiff's degree of disability would have been had the expected prosthesis been fitted, nor the length of recovery and therapy following the fitting, nor the residual disfigurement, nor the loss, if any, of his future earnings would have been once a prothesis is fitted.  Atesom v. Kukkun, 10 FSM Intrm. 19, 23 (Chk. 2001).

Attorney, Trial Counselor and Client ) Fees; Civil Rights
     The prevailing party in civil rights actions under 11 F.S.M.C. 701 is entitled to reasonable attorney fees and costs of suit as compensatory damages, and liability for attorney's fees will be assessed among the defendants in proportion to their responsibility for the judgment.  Atesom v. Kukkun, 10 FSM Intrm. 19, 23 (Chk. 2001).

Civil Rights; Torts
     The purpose of tort law is to afford a victim compensation for injuries sustained as the result of the unreasonable or socially harmful conduct of another.  This is true whether the tort is statutorily created, as are the civil rights claims under 11 F.S.M.C. 701(3), or is a creature of the common law, as is a battery cause of action.  Atesom v. Kukkun, 10 FSM Intrm. 19, 23 (Chk. 2001).

Civil Rights; Torts ) Damages
     Although a civil rights violation claim and a battery claim are separate causes of action, when they arise from the same incident and they cause the same personal injury and when the damage award for the civil rights violation fully compensates the plaintiff for his personal injury, the court cannot award additional damages for the battery because such an award would constitute double recovery and would be a windfall and overcompensate the plaintiff.  Atesom v. Kukkun, 10 FSM Intrm. 19, 23 (Chk. 2001).

Torts ) Damages ) Punitive
     Punitive damages are not permitted against the State of Chuuk, but punitive damages may be awarded against a police officer trainee assigned as a jailer and which are justified by the wanton, malicious, deliberate and violent nature of his battery of a detainee.  Atesom v. Kukkun, 10 FSM Intrm. 19, 24 (Chk. 2001).

*    *    *    *
[10 FSM Intrm. 21]

COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     The plaintiff in this action, IC Atesom, seeks damages for injuries received while detained in the Chuuk State jail.  He alleges violations of his civil rights by all defendants, in that defendant Angang assaulted him, Kukkun had custody (with Angang) of Atesom and Chuuk State failed to train and its officers and tolerated such violence.  The civil rights claims are brought pursuant to 11 F.S.M.C. 701(3). Atesom further alleges that the individual defendants assaulted and the battered him, for which the Chuuk State is also liable as employer.

     The trial was held on September 26 and 27, with closing arguments completed on September 28, 2000.  The case was then taken under advisement by the court, which now enters its

Findings of Fact
     1.  On November 20, 1998, Atesom was arrested by a Tol Municipal police officer for drinking and intoxication.  He was placed in the custody of the Chuuk State police at the Chuuk State jail for detention about 5:00 o'clock p.m.  The individual defendants were jailers on this shift.

     2.  The parties stipulated that Atesom was injured while in Chuuk State police custody.

     3.  The parties further stipulated that the individual defendants were acting within the scope of their employment at all times relevant to this action.

     4.  While so detained the defendants had a duty of care for Atesom's well being and security.

     5.  In the early evening of November 20th, Satamichy Angang unlocked the padlock which secured the cell in which Atesom was confined, entered the cell and intentionally struck Atesom in the face with his left hand which was holding the padlock.  This finding of the left hand's use is based on the injury and on the witnesses' demonstration of the blow.

     6.  The blow by Angang was unprovoked.  Angang used excessive force in striking Atesom.  This breached his duty of care to Atesom, as well as constituting battery.

     7.  Atesom's right eye was ruptured, and Atesom has no sight in it.  There was an open wound on the upper right eyelid or eyebrow, with bloody discharge.  The severity of the injury was apparent.

     8.  Defendant Kes Kukkun did not cause the injury, or participate in any way in the attack.

     9.  The two individual defendants were police officer trainees on November 20th.  They were selected under and paid by the Joint Training Partnership Act. Their supervision, training and assignments were the responsibility of the Department of Public Safety.  Their training began in June 1998, and was to entail six months in the classroom and six months in the field.

     10.  It was improper to assign trainees as jailers and contrary to policy.

     11.  Kukkun examined the injury, used a cloth and water to remove blood, and reported the injury to the shift supervisor, saying falsely that it was minor and not serious.  The supervisor took no action, either by examining Atesom himself or by referring Atesom to the hospital for medical care.  Public Safety took no steps to refer Atesom for medical care before he was released from custody the next morning

[10 FSM Intrm. 22]

     12.  Had Kukkun reported the true condition that he observed, or asked the supervisor to examine Atesom himself, the supervisor could have then decided on whether to refer Atesom to the hospital.  By preventing decision-making based on accurate information, Atesom was deprived of the opportunity of medical care that night.

     13.  On the morning of 21 November, Atesom's aunt, who is the sister-in-law of the detective who later investigated the matter, came to the jail and Atesom was released.  She took Atesom to the hospital.

     14.  After two weeks in the Chuuk Hospital, Atesom was referred by Chuuk State to Guam.  In Guam he received medical advice that a prosthesis should replace the damaged eye.  The cost of such a procedure is $10,000.00.  After about two weeks in Guam, for a reason without substance, Atesom returned to Chuuk, abandoning the government referral.

     15. The prosthesis is necessary because the vacant eye socket is a source of infection which can reach the other eye and the brain.

     16.  Prior to the injury Atesom was a fisherman with an income of $100.00 a week.  Now he is unable to engage in any work at all ) fishing or diving or picking breadfruit.  It is painful when Atesom is in the sun.  The empty eyesocket wept, so that Atesom blotted it from time to time, using a towel.

     17.  The criminal investigation that followed the injury resulted in the filing of an information against the individual defendants.  The Director of Public Safety initiated no internal investigation into the officer assignments and the procedures the police took the evening of the injury, or the reason for no medical attention to Atesom.  This failure conflicts with policies of not assigning trainees as jailers and the policy of disciplinary action against those who injure detainees.  It fails to question the policy of assigning duties depending on the number of officers who show up for the shift.

     18.  The Director stated that he did not initiate an internal investigation because the initial report said that the individual defendants were municipal police officers. This reason has no substance.

     19.  The Director thus ratified the assignments and procedures, and the failure to refer Atesom for medical care ) all of which occurred or were omitted on the evening of November 20.

     Based on the foregoing findings, the court makes the following

Conclusions of Law.
     1.  Angang violated Atesom's civil right to be free of excessive force while detained in the custody of the Chuuk State jail.  This use of excessive force constituted a battery.

     2.  Chuuk State violated Atesom's civil rights to appropriate care while detained, through its use of untrained and inexperienced trainees as jailers, failure to supervise those trainees, and failure to refer an injured detainee for medical care. Chuuk State, as employer of Angang, is responsible for the battery committed by Angang while acting within the scope of that employment.

     3.  Kukkun violated Atesom's civil right to appropriate care while a detainee by his false report of the extent of Atesom's injury which prevented a possible medical referral.

[10 FSM Intrm. 23]     

Damages
     Chuuk State took prompt steps in accordance with medical advice to refer Atesom for off-island care and treatment.  It paid for his air fare and gave him a stipend during his time in Guam for medical care.  He was examined by the health care facility provided, but abandoned the care mid-treatment to return to Chuuk. Since the state did all that it could to repair the damage to Atesom, I award no damages for lost earnings or pain and suffering after he abandoned the health care.

     I conclude from the evidence that he would have been fitted with a prosthesis replacement of his right eye.  There is no evidence as to what Atesom's degree of disability would have been had the prosthesis been fitted, nor the length of recovery and therapy following the fitting, nor the residual disfigurement, nor the loss, if any, of his future earnings would be once a prothesis is fitted.

Civil Rights Cause of Action.
     The following damages are awarded against Satamichy Angang and Chuuk State, for which they are jointly and severally liable:  a) special damages of $10,000.00 (the cost of fitting the prosthesis); b) $400.00 lost earnings ; c) $30,000.00 for the permanent loss of the right eye; and d) $3,500.00 for Atesom's pain and suffering.

     The following damages are awarded against Kes Kukkun and Chuuk State, for which they are jointly and severally liable:  $1,500.00 for pain and suffering during the 15 hours elapsing between the injury and medical attention the next day are awarded.

     The prevailing party in civil rights actions under 11 F.S.M.C. 701 is entitled to reasonable attorney fees and costs of suit as compensatory damages.  Davis v. Kutta, 8 FSM Intrm. 218, 220 (Chk. 1997); Davis v. Kutta, 7 FSM Intrm. 536, 549 (Chk. 1996) (relying on 11 F.S.M.C. 701(3)).  Therefore within thirty days of receipt of this order plaintiff's counsel shall submit a detailed and itemized motion for attorney's fees and costs for this action.  Liability for attorney's fees will be assessed among the defendants in proportion to their responsibility for the judgment.  Davis, 8 FSM Intrm. at 224.

For Battery Cause of Action Against Satamichy Angang and Chuuk State
     Atesom is awarded the same amounts as set forth above in civil rights cause of action against these two defendants, Angang and Chuuk State, except no attorney's fees are awarded on the battery cause of action.  The purpose of tort law is to afford a victim compensation for injuries sustained as the result of the unreasonable or socially harmful conduct of another.  Primo v. Refalopei, 7 FSM Intrm. 423, 430 n.13 (Pon. 1996); Asher v. Kosrae, 8 FSM Intrm. 443, 449 (Kos. S. Ct. Tr. 1998).  This is true whether the tort is statutorily created, as are the civil rights claims under 11 F.S.M.C. 701(3), or is a creature of the common law, as is the battery cause of action.  Although Atesom's civil rights violation claim and his battery claim are separate causes of action, they arise from the same incident and they caused the same personal injury.  Since the damage award for the civil rights violation fully compensates Atesom for his personal injury, the court cannot award additional damages for the battery because such an award would constitute double recovery and would be a windfall and overcompensate Atesom.See Elymore v. Walter, 9 FSM Intrm. 450, 457 (Pon. 2000) (an award for loss of car's use well in excess of car's original price and current value and given in addition to award for the car's repair would result in a windfall and is not appropriate).

[10 FSM Intrm. 24]

Punitive Damages
     Punitive damages are not permitted against the State of Chuuk.  Kaminaga v. Chuuk, 7 FSM Intrm. 272, 274 (Chk. S. Ct. Tr. 1995) (relying on 6 TTC 253).  An award of punitive damages is not justified as to Kes Kukkun.  Punitive damages of $250.00 are awarded to Atesom against Satamichy Angang, and are justified by the wanton, malicious, deliberate and violent nature of his battery of Atesom.See Davis, 7 FSM Intrm. at 546.

Conclusion
     Chuuk State and Satamichy Angang are jointly and severally liable to IC Atesom for $43,900.00.  Chuuk State and Kes Kukkun are jointly and severally liable to IC Atesom for $1,500.00.  Satamichy Angang is solely liable to IC Atesom for $250.00 in punitive damages.

     Let judgment be entered accordingly.
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