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COURT'S OPINION

MARTIN G. YINUG, Associate Justice:

     This is an action for damages for a severed spinal cord that plaintiff Alfredo Amayo ("Amayo") sustained in a construction accident in Pohnpei occurring on July 17, 1999, which rendered him a paraplegic for life. The trial was held on February 5, 2001. Amayo did not appear at trial; however, the video tape and transcript of his deposition were admitted into evidence. In addition, the court has received and considered the written closing arguments received from defendant Ioanis Panuelo dba IP Enterprises ("Panuelo") on February 26, 2001, and from plaintiffs on March 5, 2001.

     The amended complaint contains four counts. As discussed below, the court finds in favor of

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plaintiffs and against Panuelo on counts 1 and 4, which present negligence and loss of consortium claims respectively. On those same counts the court finds in favor of defendants MJ Company ("MJC") and Ron Pangelinan ("Pangelinan"). As to count 2, breach of warranty, and count 3, punitive damages, the court finds in favor of all defendants.

I. Facts

     In the afternoon of Thursday, July 15, 1999, Panuelo spoke with Johnny at the construction site of the Ocean View Hotel in Pohnpei. During that conversation, Panuelo asked if he could borrow one of MJC's workers to speed up construction on the project. Johnny told Panuelo that he would ask his co-workers first to see if one of them would want to work with him. Panuelo responded that the worker could start any time he was available. On that same day, Johnny told Amayo that the latter would be transferring temporarily to Panuelo, and would begin working the next day. On July 16, 1999, Amayo transferred to the employ of IP Enterprises to work as a carpenter. Amayo's name was transferred to Panuelo's payroll record, and for purposes of timing in and out, he was to report to Panuelo's timekeeper.

     The next day, July 17, 1999, which was a Saturday, Amayo appeared at the job site in the morning and began work for Panuelo building plywood forms for pouring concrete. He was working at the direction of Boy, Panuelo's foreman. Below Amayo's working area was an exposed basement floor, on top of which were two additional floors. Amayo was working on the second floor above the exposed basement, which put him on the third story above the ground, the project being on a sloping site. Amayo was doing carpentry work preparing forms for pouring concrete. He had just started to cut a 2 X 4 using a handsaw when he stepped on a 2 X 4 that appeared to be nailed in position but was not. It gave way and he fell. As he testified in his video taped deposition, he closed his eyes as he fell thinking that he would die from being barbecued on jutting rebars below, which fortunately had been removed. He was semiconscious and aware of an intense pain in his back when the other workers picked him up. He was taken to the Pohnpei hospital where he remained for over a month before going to the Philippines, where he underwent further extended hospitalizations.

     There were no safety ropes or safety railings in place at the job site at the time of the accident. Amayo had no safety harness, safety belt, or hard hat. Panuelo did not provide Amayo with any safety instructions, nor any safety procedures. At the time of the accident, Amayo was 42 years old, was earning $2.50 an hour, and was working a 48-hour week.

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II. Discussion

     This case proceeded to trial on the four-count amended complaint.1 Count one alleges that all defendants were negligent in failing to provide a safe work place, which resulted in the injuries to Amayo. Specifically, plaintiffs allege that defendants failed to take any safety precautions to protect workers against the risks associated with doing construction work at unsafe heights. Count two alleges breach of contract and warranty, and alleges that all defendants had warranted that the construction project would be a reasonably safe workplace. Count three alleges that defendants' acts of negligence were reckless, wanton, and willful, and seeks punitive damages. Count four is for damages on behalf of Amayo's wife and children for the losses they have suffered as a result of Amayo's injury. Before turning to Amayo's negligence claim, the court disposes of counts two and three, and certain defenses which Panuelo raises for the first time in his written closing argument.

    Count two of the amended complaint alleges that the defendants warranted to Amayo that the construction site where Amayo was working would be safe. The contract between Amayo and MJC does not contain such a warranty, and no other evidence supports the allegation that such an express warranty was made to Amayo by any defendant. Count two is therefore dismissed.2 Count three alleges that the defendants' conduct was willful, wanton, and reckless in failing to provide medical care when requested, and also alleges similar willful conduct with respect to the defendants' failure to provide a safe workplace. Any positive duty to provide medical care3 in this case was contractual, based on the employment contract that Amayo had with MJC, and not with Panuelo. That contract provides at section 9 that "[t]he employer shall bear all cost of hospitalization and medical expenses incurred by the employee as a result of job related injury during working hours." Amayo has not sued MJC on this contract provision to recover medical expenses, and the court does not decide MJC's liability in this regard. But even if Amayo had sued on the contract, punitive damages are not a contract remedy, since only compensatory damages are allowed for breach. 22 Am. Jur. 2d Damages

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  § 754 (1988). As to the failure to provide a safe workplace, the court finds that Panuelo's conduct in failing to provide a safe workplace was negligent. However, ordinary negligence is not a basis for punitive damages. Fabian v. Ting Hong Oceanic Enterprises, 8 FSM Intrm. 63, 67 (Chk. 1997). In order for negligence to constitute wantonness meriting imposition of punitive damages, the plaintiff must show that the one acting or failing to act realized the imminence of the danger and failed to take steps to prevent it because he was indifferent to whether the injury occurred. Atkinson v. Orkin Exterminating Co., 625 P.2d 505 (Kan. Ct. App.), aff'd and remanded, 634 P.2d 1071 (Kan. 1981) (opinion of the appellate court adopted). The facts do not support such a conclusion in this case. Count three is likewise dismissed.

     That said, even if the court considered the illegality defense, Panuelo would be estopped from raising it as a defense to Amayo's negligence claim, because as the other party to the allegedly illegal contract he had the benefit of it. See Nanpei v. Kihara, 7 FSM Intrm. 319, 325 (App. 1995). Likewise, as to Panuelo's assumption of risk defense, even if the court were to consider this defense the court would reject it. Since Alfons v. Edwin, 5 FSM Intrm. 238 (Pon. 1991), comparative negligence has been the rule in Pohnpei, not assumption of risk. On the evidence before it, the court cannot conclude that Amayo was comparatively negligent. Thus, in addition to being untimely, Panuelo's post-trial defenses fall on their merits as well.

     a. Amayo's negligence claim

     The failure to exercise the degree of care that a reasonably prudent and careful person would use under the same circumstances constitutes negligence. Pohnpei v. M/V Miyo Maru No. 11, 8 FSM Intrm. 281, 293 (Pon. 1998). "A general contractor in control of a structure or premises owes to the employees of any other contractor rightfully thereon a duty to exercise ordinary care to keep the structure or premises in a safe condition for their use." 13 Am. Jur. 2d Building and Construction Contracts § 135 (1964) (footnotes omitted). Further, an employer has a duty to "exercise ordinary or reasonable care commensurate with the nature of the business to protect the employee from the hazards incident to it, and the employer is bound to exercise this degree of diligence in providing his employee with [a] safe . . . working place." 27 Am. Jur. 2d Employment Relationship § 250 (1996). An owner/general contractor who actively supervises daily construction operations has a duty to keep the premises safe for all workers on the job and is ultimately liable for injuries occurring on the worksite where those injuries result from failure to perform that duty. Atlantic Coast Dev. Corp. v. Napoleon Steel Contractors, 385 So. 2d 676, 679 (Fla. Dist. Ct. App. 1980). Panuelo, as general contractor, had a duty to provide a safe work environment for the construction work to be done at the second story heights involved in the project. His duty in this regard ran not only to the employees of subcontractors, but to those that he employed directly as well, which included Amayo, who began working directly for Panuelo on July 16, 1999. His failure to provide any kind of safety equipment, precautions, instructions or supervision resulted in Amayo's fall and consequent injury. Although Panuelo pled certain affirmative defenses in his answer to the original complaint, the evidence did not support any of those defenses, and they are insufficient as a matter of law. Panuelo is therefore liable to Amayo

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for the damages he suffered as a result of that injury.

     The amended complaint also names MJC as a defendant. MJC's liability turns on its relationship with Amayo at the time of the accident. Instructive in this regard is Semens v. Continental Air Lines, Inc., 2 FSM Intrm. 131 (Pon. 1985). In Semens one company assigned its employee to work for another company, and the employee was injured. That case involves issues relating to indemnification contracts that are not germane here. However, in ruling on various motions for summary judgment involving negligence issues the court found no negligence liability on the part of the assigning company where the assigning company was "effectively stripped of control" over the way the work was done, and where the assigning company had "no knowledge of facts unknown to [the plaintiff] that would have affected the risk [faced] by him, and did nothing else to cause the injury." Id. at 136, 144. Because of the case's posture on motions for summary judgment, the court did not decide ultimate liability, merely noting that "[i]f any party's wrongful action or omission caused injury to Semens, it would have been that of Air Micronesia or Continental." Id. at 149-50. Semens had been assigned to work for Air Micronesia. Id. at 136. Here, MJC was similarly "stripped of control" over Amayo at the time of his injury, which occurred after he had been assigned to work for Panuelo. Further, there is no basis to conclude that MJC had any "knowledge of facts not known" to Amayo that would have "affected the risk [faced] by him." Id. at 144. Nor did MJC do anything else to cause Amayo's injury. Id. Consequently, it was the duty of Panuelo to take the appropriate safety precautions to guard against the hazards associated with working at dangerous heights. MJC is not liable to Amayo on a negligence theory.

     An analysis under the Restatement (Second) of Agency § 227 (1958) is also useful. Section 227 provides pertinently that "[a] servant directed or permitted by his master to perform services for another may become the servant of such other in performing the services." Comment a to that section states that "[s]ince the question of liability is always raised because of some specific act done, the important question is . . . whether or not, as to the act in question he is acting in the business of and under the direction of one or the other." MJC was Amayo's original employer under a written employment contract. After Amayo transferred to Panuelo's employ he became, from MJC's perspective, a lent servant; conversely, from Panuelo's perspective, Amayo was a borrowed servant. Comment a speaks to the specific actions required of Amayo in that capacity, which were to construct forms for pouring concrete. This was Panuelo's business, and not MJC's, since MJC's involvement with the project was to do plumbing. Also, Amayo was acting under the direction of Panuelo, with Panuelo's foreman, Boy, as his immediate supervisor. It follows that liability rests with Panuelo. MJC is not liable for the damages resulting from Amayo's injury.

b. Amayo's damages

     Amayo seeks compensation for lost wages, medical expenses, and pain and suffering, all of which are compensable. Koike v. Ponape Rock Products, Inc., 3 FSM Intrm. 57, 74 (Pon. S. Ct. Tr. 1986) (lost wages and pain and suffering, past and future); 1 Jacob A. Stein, Stein on Personal Injury Damages §§ 5:1, 5:18 (1991) (medical expenses, past and future).

1. Lost wages

     Amayo is totally disabled as a result of his injuries. The court adopts Amayo's calculations in determining lost wages. He was 42 at the time of the accident and making $2.50 an hour, and states that he would have worked until at least age 60. Using Amayo's calculations, this translates to $2.50 X 48 hours per week X 50 weeks per year X 18 years, for a total of $108,000. The court awards this amount.

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2. Medical expenses

     Amayo requests medical expenses in the amount of $8,400.00. Amayo has not provided receipts or other documentation for these services. However, where the injuries sustained are plainly evident, the court is entitled to presume that expenditures for medical expenses were made. Meitou v. Uwera, 5 FSM Intrm. 139, 145 (Chk S. Ct. Tr. 1991). At pages 11 and 12 of his deposition, Amayo testified to specific expenses that he had incurred post accident. Excluding those expenses incurred for his family's support, which are compensated as lost wages, those amounts total $5,000 for medical expenses, plus $100 for travel and $300 for temporary lodging in Manila associated with treatment. Travel and lodging are compensable where the expenditure results from defendant's fault; the charge is reasonable; and the expense serves a medical purposes. 1 Stein, supra, § 5:14. Thus the total is $5,400, and with the virtual certainty that some additional medical expenses will be incurred in the future, the court does not hesitate to award this amount for medical expenses.4

3. Pain and suffering

     Amayo seeks compensation for physical pain and suffering, emotional distress, permanent disfigurement and scarring, and loss of enjoyment of life and functions. The court treats these specific claims as elements of the larger, general concept of pain and suffering, which has been summarized as follows:

Id. § 2:2. Determining damages for pain and suffering is difficult because there are no precise rules for determining the amount, which lies within the sole discretion of the trier of fact. Fabian v. Ting Hong Oceanic Enterprises, 8 FSM Intrm. 63, 66 (Chk. 1997). In arriving at a damages figure, the court discerns what guidance it can from the few recent FSM negligence cases, none of which deals with the catastrophic injury of the kind suffered by Amayo. See, e.g., Mathebei v. Ting Hong Oceanic Enterprises, 9 FSM Intrm. 23 (Yap 1999) ($25,000 awarded for pain and suffering for foot injury resulting in limitations on lifting and climbing); Fabian v. Ting Hong Oceanic Enterprises, 8 FSM Intrm. 63 (Chk. 1997) ($30,000 awarded for pain and suffering associated with partial loss of foot rendering victim unable to walk distances (award reduced by 40% to reflect victim's negligence); Asher v. Kosrae, 8 FSM Intrm. 443 (Kos. S. Ct. Tr. 1998) ($10,000 awarded to eight-year-old child who suffered eye injury).

     Amayo suffered a crushed type fracture of the L1 vertebra as a result of the fall, and is paralyzed from the waist down. He cannot and will never walk again. He suffered an infection from strictures in the urethra resulting from the catheterization procedure performed to allow him to void urine. This required surgery to ameliorate. Amayo was hospitalized in Pohnpei for over a month before returning to the Philippines, where he underwent further extended hospitalizations, and at least part of that time

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was spent in a one room, forty-bed, unairconditioned charity ward.

     Before his injury, Amayo was an able tradesman with masonry, plumbing, and carpentry skills. He also enjoyed swimming, bicycling, basketball, and volleyball. When in the Philippines he would assist with chores on the family's small farm such as cleaning, household repairs, and looking after livestock. His family lost the tenancy of their small rice farm because they were not able to make the rent payments, which were paid in the form of a portion of the crops. Amayo's income provided money for fertilizers and seed. Amayo's ability to assist with the rearing of his children, who were 9, 5, and 2 years old at the time of his deposition, has been affected. He previously had enjoyed playing with them and assisting with their daily care. He testified that he must cope with the inconvenience and embarrassment of living in a wheel chair and of not having normal bowel or bladder function. He is unable to sleep on his stomach because it interferes with the catheter used to void urine, which must be replaced every two weeks. Although he still has sexual desires, he has lost all sexual function. He must wear a back brace to prevent the development of spine curvature which would result in a hunchback condition. Since the accident, Amayo has experienced a constant residual pain in his legs, with occasional attacks of excruciating pain.

     As a comprehensive award encompassing all aspects of Amayo's pain and suffering, the court awards $225,000.

     c. The claims of the other plaintiffs

     Plaintiff Elsa Amayo, Alfredo Amayo's wife, is seeking damages for loss of consortium. The right to recover damages of this sort was recognized in Koike v. Ponape Rock Products, Inc., 3 FSM Intrm. 57, 74 (Pon. S. Ct. Tr. 1986). Definitions for loss of consortium abound, but it has been said that "[l]oss of consortium contemplates something more than loss of general overall happiness," and includes components of "love and affection, society and companionship, sexual relations, right of performance of material services, right of support, aid and assistance, and felicity." Detraz v. Hartford Accident & Indem. Co., 647 So. 2d 576, 581 (La. Ct. App. 1995). Considering all the facts and circumstances in light of these criteria, the court awards plaintiff Elsa Amayo the sum of $25,000 on her loss of consortium claim.

     Amayo's children seek damages for loss of parental consortium as a result of the injury to their father. No reported FSM decision addresses this point. In the United States, the majority of jurisdictions deny any right of recovery for loss of parental consortium, or the loss of the society and companionship of an injured parent, while a substantial minority permits such a cause of action. 2 Stein, supra, § 13.20. Qualifications that some states have placed on this right have been that the children must be minors, and that the "injury to the parent must be serious, permanent, and disabling so as to render the parent unable to provide the love, care, companionship, and guidance to the child, and so overwhelming and severe that the parent-child relationship is destroyed or nearly destroyed." Id.

     The familiar admonition of Article XI, Section 11 of the FSM Constitution, the Judicial Guidance Clause, is that decisions of our court are to be consistent with the "social and geographical configuration of Micronesia." A cause of action for loss of parental consortium is consistent with this admonition in that it acknowledges the important role played by the family in the many distinct cultures of Micronesia. Specifically, it acknowledges the value of the relationship between parent and child. Koike, 3 FSM Intrm. at 74, which was decided in 1986, held that under Pohnpei state law, a wife had a cause of action for loss of consortium where her husband was injured. Similarly, under the circumstances of a catastrophic injury like the one at issue here, there can be no doubt that Amayo's relationship with his small children has also been harmed. State law generally determines tort issues,

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and the FSM Supreme Court in diversity cases must attempt to apply the law in the manner that the highest state court would. Nethon v. Mobil Oil Micronesia, Inc., 6 FSM Intrm. 451, 455 (Chk. 1994). A claim for Amayo's children's loss of parental consortium is consistent with Koike.

     The court finds that Amayo's minor children have a right of recovery for the loss of their father's love, care, affection, companionship, and guidance which they have suffered as a result of the grievous injury to their father. Considering all the circumstances of this case, the court awards plaintiffs Alfie, April, and Jilleen Amayo each the sum of $10,000 for their loss of parental consortium.

     d. Final point: the John Doe defendants

     Plaintiffs adopted the not uncommon practice of naming John Doe defendants in the caption of both the complaint and amended complaint. The court deleted these defendants from the caption earlier without comment. In the United States, "[n]o federal statute or rule specifically countenances the naming of fictitious, or `John Doe,' defendants, and the federal courts typically do not permit the substitution of real parties for John Doe defendants under FR Civ P 15(c)." 63B Am. Jur. 2d Products Liability § 1690 (1997). The better practice is to move under Rule 15 of the FSM Rules of Civil Procedure for leave of court to add parties as their identities become known.

III. Conclusion

     On count one of the amended complaint, the court awards Alfredo Amayo the sum of $338,400 ($108,000 for lost wages; $5,400 for medical expenses; and $225,000 for pain and suffering) against the defendant Ioanis Panuelo. As to defendants Ron Pangelinan and MJ Construction, the court finds in their favor on count one.

     Counts two and three of the amended complaint are dismissed.

     On count four, the court awards plaintiff Elsa Amayo the sum of $20,000 on her loss of consortium claim against defendant Ioanis Panuelo, while on the loss of parental consortium claims the court awards Alfredo and Elsa Amayo, as the next friends of their children, the sum of $30,000, or $10,000 per child, against defendant Ioanis Panuelo. The court finds in favor of the defendants Ron Pangelinan and MJ Construction as to count four of the amended complaint.

     Plaintiffs are awarded their costs, and will submit a final itemized listing of those costs within 30 days.

     Pursuant to this court's order of September 15, 2000, plaintiffs are awarded costs and attorney's fees against defendant Panuelo in the amount of $495.50 associated with the bringing of the supplemental motion to compel filed July 6, 2000.

     A judgment consistent with this opinion issues here with.

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Footnotes:

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