FSM SUPREME COURT TRIAL DIVISION
Cite as Luzama v. Mai Xong, Inc., 21 FSM R. 23(Pon. 2018)
WELSON LUZAMA,
Plaintiff,
vs.
MAI XONG, INC.,
Defendant.
CIVIL ACTION NO. 2012-005
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Beauleen Carl-Worswick
Associate Justice
Trial: July 6, 2017
Submitted: July 24, 2017
Decided: August 21, 2018
APPEARANCES:
For the Plaintiff:
Salomon M. Saimon, Esq.
Directing Attorney
Micronesian Legal Services Corporation
P.O. Box 129
Kolonia, Pohnpei FM 96941
For the Defendants:
Marstella E. Jack, Esq.
P.O. Box 2210
Kolonia, Pohnpei FM 96941
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Negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances; it is the doing of some act which a person of ordinary prudence would not have done under similar circumstances or failure to do what a person of ordinary prudence would have done under similar circumstances. Luzama v. Mai Xong, Inc., 22 FSM R. 23, 27 (Pon. 2018).
Negligence consists of four essential elements: 1) a duty of care, 2) a breach of that duty, 3) injury to the plaintiff, and 4) a showing that the breach was the proximate cause of the plaintiff's injury. Luzama v. Mai Xong, Inc., 22 FSM R. 23, 27 (Pon. 2018).
Only when there is a duty of care, breach of this duty, damages caused by the breach, and determination of the value of damage can there be liability for negligence. The plaintiff has the burden of proving each of these elements in order to prevail on a negligence claim, and if the plaintiff fails to prove any one element, judgment will be entered against him. Luzama v. Mai Xong, Inc., 22 FSM R. 23, 27 (Pon. 2018).
An employer has a duty to exercise ordinary or reasonable care commensurate with the nature of the business to protect the employee from hazards incident to it. The employer is bound to exercise this degree of diligence in providing its employee with a safe working place. Duty of care is one of the four elements of a negligence cause of action. Luzama v. Mai Xong, Inc., 22 FSM R. 23, 28 (Pon. 2018).
Since tort law is primarily state law, a tort action will be governed by the substantive law of the state where the injury occurred. Luzama v. Mai Xong, Inc., 22 FSM R. 23, 28 (Pon. 2018).
An employer has a duty to provide its employee with proper training, equipment, and a safe work environment. Luzama v. Mai Xong, Inc., 22 FSM R. 23, 28 (Pon. 2018).
In a place like Pohnpei, where industrial and economic development continues to take shape and the people are not quite sophisticated about the uses or proper handling of certain machinery or equipment, a procurer, user, owner, or seller of equipment or machinery must take extra precautionary measures in educating the people about the proper handling, operation, or storage of any such machinery or equipment and also inform the people about the potential harm if such machinery or equipment is not properly handled, operated, or stored. Failure to observe such extra precautionary measures may render the equipment's procurer, user, owner, operator, or the seller liable for any injury that might result from such failure. Luzama v. Mai Xong, Inc., 22 FSM R. 23, 28 (Pon. 2018).
Education or information about dangerous machinery or equipment can be made in writing, or by oral explanation, through demonstration, or uses of signs easily understood and noticeable. Luzama v. Mai Xong, Inc., 22 FSM R. 23, 28 (Pon. 2018).
When an employer is aware that unsafe procedures are being used and safe procedures are possible but the employer does not demand them, the employer breaches its duty of care toward its employees. Luzama v. Mai Xong, Inc., 22 FSM R. 23, 28 (Pon. 2018).
An employer breaches its duty of care when it fails to provide its employee with proper footwear appropriate for the hazardous work site despite being aware of the importance of proper footwear on the work site and despite it being company policy to require proper work equipment. Luzama v. Mai Xong, Inc., 22 FSM R. 23, 28 (Pon. 2018).
When the employer provided the employee with a short safety briefing prior to his beginning work, but failed to provide him with the proper safety equipment necessary to safely perform his work duties, namely proper protective work shoes which are standard to the industry, it is clear that but for the employer's breach in not providing for or otherwise requiring the proper working boots before allowing him to begin work, he would not have been injured. Luzama v. Mai Xong, Inc., 22 FSM R. 23, 29 (Pon. 2018).
When considering loss of enjoyment of life, the court takes into account the plaintiff's change of lifestyle. Luzama v. Mai Xong, Inc., 22 FSM R. 23, 30 (Pon. 2018).
When the employer paid the employee's salary during the time he was attempting to recover from his workplace injury, even after his discharge from the hospital, until the termination of his employment, and when the employer also paid his medical bills, damages for lost wages during that time and for his medical bills is inappropriate. Luzama v. Mai Xong, Inc., 22 FSM R. 23, 30 n.1 (Pon. 2018).
Since Pohnpei is a mixed subsistence and cash economy, people rely on his employability to bring in the cash necessary to help support himself and his family in addition to the farm and fish products which he could produce through farming on his lands and fishing. Thus, a workplace injury, may greatly impair both the person's employability and his ability to provide from farming and fishing. Luzama v. Mai Xong, Inc., 22 FSM R. 23, 30 (Pon. 2018).
A plaintiff's voluntary reduction, in his closing arguments, in damages sought from the defendant is a Rule 15(b) motion to amend his complaint to conform to the evidence, and, when there has been no objection, the court will grant the amendment. Luzama v. Mai Xong, Inc., 22 FSM R. 23, 31 (Pon. 2018).
According to Pohnpei law, battery is a harmful or offensive contact with a person, resulting from
an act intended to cause the plaintiff to suffer such contact. Luzama v. Mai Xong, Inc., 22 FSM R. 23, 31 (Pon. 2018).
Since an essential element for the tort of battery is that the act constituting the battery intended to cause the plaintiff to suffer such contact, the battery claim will be dismissed when there is no evidence to suggest that the forklift operator intended to batter the plaintiff and when this was a workplace accident, not an intentional act. Luzama v. Mai Xong, Inc., 22 FSM R. 23, 31-32 (Pon. 2018).
Recovery for intentional infliction of emotional distress requires conduct that is extreme and outrageous. This tort is sharply limited and only applies in the most egregious circumstances. Luzama v. Mai Xong, Inc., 22 FSM R. 23, 32 (Pon. 2018).
An employer's negligence by not providing proper work boots to its employee and an unfortunate workplace accident do not satisfy the "extreme and outrageous" element necessary to recover damages under the tort of intentional infliction of emotional distress. Luzama v. Mai Xong, Inc., 22 FSM R. 23, 32 (Pon. 2018).
A claim for negligent infliction of emotional distress requires evidence of such extreme mental anguish and distress that medical assistance is sought or necessary as a result of the negligence. Luzama v. Mai Xong, Inc., 22 FSM R. 23, 32 (Pon. 2018).
When a plaintiff does indeed suffer from some distress, but it does not rise to the degree required to recover under the tort of negligent infliction of emotional distress, the emotional distress claim must be dismissed. Luzama v. Mai Xong, Inc., 22 FSM R. 23, 32 (Pon. 2018).
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BEAULEEN CARL-WORSWICK, Associate Justice:
This matter came before the Court for trial on July 6, 2017. Salomon M. Saimon, Esq. appeared on behalf of the Plaintiff Welson Luzama, who was present before the Court. Attorney Marstella E. Jack, Esq. represented the Defendant Mai Xong, Inc. The Court provided translation for Plaintiff Luzama.
Plaintiff Luzama brought three causes of action against Defendant Mai Xong, Inc. for an injury sustained while employed on Mai Xong, Inc.'s work site. He brings causes of action for negligence, battery, and emotional distress for his injury.
The Court heard the testimony of Dr. Johnny Hedson, Chief of Medical Services at Pohnpei State Hospital, Plaintiff Welson Luzama, Plaintiff's mother Mrs. Luciana Luzama, and Plaintiff's wife Iaki Barnabas. Plaintiff Luzama's hospital discharge record was stipulated to by both counsel and admitted into evidence as Plaintiff's Exhibit A. Both parties also stipulated to the fact that Luzama's injury was
sustained on Mai Xong Inc.'s property while he was working.
Both parties rested their cases and requested that closing arguments be submitted in writing, which the Court granted. Plaintiff Luzama submitted his closing arguments on July 24, 2017. Defendant Mai Xong, Inc. did not file any closing arguments.
The Court finds the testimony and documentary evidence presented during trial established the following facts:
1. Luzama was an employee for Mai Xong, Inc. from 2010 to 2011. He was hired to disassemble parts from vehicles for recycling; assemble, stack, and pack recycling; crush recyclables with heavy machinery, including hydraulic machinery; and fill shipping containers for shipment of the collected recycled parts.
2. While engaged in his regular employment duties, Luzama was injured sometime in April 2011. An employee of Mai Xong, Inc. who was operating a forklift caused an accident which resulted in Luzama losing a significant part of his big toe. On the day of his injury, Luzama was not wearing safety boots because, although company policy required them, Mai Xong, Inc. did not explicitly require them to begin work and had yet to supply him with a pair before the date of his injury.
3. As a result of his injury, Luzama was hospitalized twice; the first time was for surgery to try to save the toe and the second was in order to amputate the toe after recovery was determined to be medically impossible.
A. Negligence
Luzama's first cause of action against Mai Xong Inc. is for negligence in the workplace. He claims that Mai Xong, Inc. had a duty to him to keep a safe work environment, to fully train employees, to keep employees from injury, and to maintain sufficient safety measures, that these duties were breached, and that the breach caused his injury.
Negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances; it is the doing of some act which a person of ordinary prudence would not have done under similar circumstances or failure to do what a person of ordinary prudence would have done under similar circumstances.
Koike v. Ponape Rock Products, Inc., 3 FSM R. 57, 66 (Pon. S. Ct. Tr. 1986).
Negligence consists of four essential elements: 1) a duty of care, 2) a breach of that duty, 3) injury to the plaintiff, and 4) a showing that the breach was the proximate cause of the plaintiff's injury. Lebehn v. Mobil Oil Micronesia, Inc., 10 FSM R. 348, 352-53 (Pon. 2001). Only when there is a duty of care, breach of this duty, damages caused by the breach, and determination of the value of damage can there be liability for negligence. The plaintiff has the burden of proving each of these elements in order to prevail on a negligence claim, and if the plaintiff fails to prove any one element, judgment will be entered against him. William v. Kosrae State Hosp., 18 FSM R. 575, 580 (Kos. 2013); Nena v. Kosrae, 5 FSM R. 417, 420 (Kos. S. Ct. Tr. 1990).
i. Duty
An employer has a duty to exercise ordinary or reasonable care commensurate with the nature of the business to protect the employee from hazards incident to it, and the employer is bound to exercise this degree of diligence in providing his employee with a safe working place. Duty of care is one of the four elements of a negligence cause of action. Amayo v. MJ Co., 10 FSM R. 244, 250 (Pon. 2001). Luzama's negligence claim is based on Mai Xong, Inc.'s alleged breach of its duty of care to provide a safe workplace, specifically proper work equipment.
Tort law is primarily state law. Therefore, this action is governed by the substantive law of the State of Pohnpei – the place the injury occurred. Fabian v. Ting Hong Oceanic Enterprises, 8 FSM R. 63, 64 (Chk. 1997). As Luzama's employer, Mai Xong, Inc. had a duty to provide him with proper training, equipment, and a safe work environment. Koike, 3 FSM R. at 68-69 (an employer who recognizes the potential danger of a work situation but fails to reduce the danger or warn his employees of it is liable for negligence); Amayo, 10 FSM R. at 250. This is especially true
in a jurisdiction like Pohnpei where industrial and economic development [continues] to take shape and the people are not quite sophisticated about the uses or proper handling of certain machinery or equipment being introduced to our communities to support such developments that the procurer, user, owner, or seller of a piece of equipment or machinery takes extra precautionary measures in educating the people about the proper handling, operation, or storing of any such piece of machinery or equipment and also inform the people about the potential harm to persons or property if such piece of machinery or equipment is not properly handled, operated, or stored. Failure to observe such extra precautionary measures may render the procurer, user, owner, operator, or the seller of such machinery or equipment liable for any injury which might result from such failure. Such education or information can be made in writing, or by oral explanation, through demonstration, or uses of signs easily understood and noticeable.
Koike, 3 FSM R. at 68. The same reasoning used by the Koike court can be applied here where, even if the injury was not caused by an employee's ignorance about the operation of the forklift which caused Luzama's injury, it was caused by Mai Xong, Inc.'s failure to provide or require proper workplace safety precautions before allowing him to enter to the work site.
Thus, as his employer, Mai Xong, Inc. owed Luzama a duty of care to provide him with proper training, equipment, and a safe work environment.
ii. Breach
The Court has held that when an employer is aware that unsafe procedures are being used and safe procedures are possible but the employer does not demand them, the employer breaches its duty of care toward its employees. Fabian, 8 FSM R. at 65.
Testimony showed that Mai Xong, Inc. failed to provide Luzama with proper footwear appropriate for the hazardous work site despite being aware of the importance of proper footwear on the work site. Indeed, Mai Xong, Inc. conceded in its pre-trial statement that it was company policy to require proper work equipment. That Luzama was not given the proper footwear is apparent from not only his testimony, but also the extent of his injury.
Also, it is clear Mai Xong, Inc. was aware that proper footwear was necessary in order to protect its employees who constantly worked with heavy machinery and equipment, but allowed Luzama to
work anyway. This is apparent because it had a program whereby it would deduct funds from the employees' paychecks and when the sufficient amount had been reached, it would purchase the work boots for them.
iii. Proximate Cause
The next inquiry is whether Mai Xong, Inc.'s breach of its duty to Luzama was the proximate cause of his injury. Based on the record and testimony heard from the witnesses during trial, it is clear that it was.
Although it provided Luzama with a short safety briefing prior to him beginning work, Mai Xong, Inc. failed to provide Luzama with the proper safety equipment necessary to safely perform his work duties, namely proper protective work shoes which are standard to the industry. It is clear that but for Mai Xong, Inc.'s breach in not providing for or otherwise requiring the proper working boots before allowing Luzama to begin work, he would not have been injured.
iv. Injury
During Luzama's testimony, the Court was able to observe the amputated big toe, which is admittedly unsightly. Based on the Court's observation, it is clear that Luzama suffered injury to his body. It is clear from uncontested testimony that the injury Luzama suffered was a consequence of the violation of Mai Xong, Inc.'s duty to him to provide a safe workplace environment.
In addition to Luzama's, the Court heard testimony from Dr. Johnny Henson, Luzama's mother Mrs. Luciano Luzama, and his wife Ms. Iaki Barnabas confirming the effect the injury has on his ability to perform daily tasks.
Luzama testified that the only time he has cried in his adult life is from the pain that he experienced from both the accident and the resulting amputation, that he has been in continuous pain since then, and that it has changed the way he will be able to live his life forever. His mother and wife corroborated the pain and change in his behavior as a result of the injury. Furthermore, Dr. Hedson testified that an injury to bone such as a severed big toe is one of the three most painful injuries a person can experience.
In addition to the physical injury, there is the fact that Luzama will never be able to be one-hundred percent physically able as he was before the injury. Previous to his injury, Luzama's primary way to make a living, in addition to his job at Mai Xong, Inc., was making Sakau which requires him to be able to stand for long periods of time in order to plant, harvest, and prepare it for sale. After the injury, his ability to do so was significantly diminished. Additionally, he cannot climb in order to cultivate yams, gather breadfruit, and coconuts in order to supply food for his family, or harvest betelnut for sale.
In addition to his diminished ability to make money and provide sustenance for his family, Luzama testified that he is embarrassed of his permanent deformity which hinders his ability to continue to maintain his social status in the community. He also testified that his ability to participate in traditional activities in the community has been negatively affected by his injuries. Further testimony tended to prove that Luzama has searched for gainful employment since his injury, but that he has not been able to find work due to his injury and low level of education.
Furthermore, Dr. Johnny Hedson testified about Luzama's handicap, stating that such an injury would greatly hinder a person's ability to perform tasks as efficiently as before. Testimony from
Luzama's mother and wife confirm that Dr. Hedson's evaluation is indeed the reality Luzama now faces as a result of his injury.
When considering loss of enjoyment of life, the Court takes into account the plaintiff's change of lifestyle. Id. Pohnpei is a society where people normally do not wear shoes and socks, but Luzama can be expected to cover his foot if at all possible, especially when he is outdoors. See id. The Court notes that Luzama was, indeed, wearing socks with his zoris during trial. This, however, does not diminish the seriousness of his injury.
Based on the testimony and documentary evidence, it is clear that Luzama suffered grave injury.
v. Damages1
It remains true that "[t]he people of Pohnpei today live in a mixed subsistence and cash economy." Koike, 3 FSM R. at 71. Like the plaintiffs in Koike, Luzama relied on his employability to bring in the cash necessary to help support himself and his family in addition to the farm and fish products which he could produce through farming on his lands and fishing. After the injury, both Luzama's employability and ability to provide from farming and fishing have been greatly impaired.
There is no question that Luzama will be permanently physically disabled for the rest of his life. However, there is no way to know how many more years Luzama will live, making any calculation of damages impossible. In Koike, a case similar to this matter, then Chief Justice Edwel H. Santos of the Pohnpei Supreme Court determined damages for lost wages for a private employee, applying the following reasoning:
The court however must in all fairness determine a reasonable time frame to aid in the determination of the amount of damages that can be awarded to each plaintiff. Pohnpei Government has a law which provides mandatory retirement of government employees at age 60. (S.L. No. 2L-57-81). While this mandatory retirement age is not binding on private employees, I think, given the circumstances of this case, that the sixty year age limit is a reasonable time frame.
This Court finds that reasoning sound and applies it to this matter.
Evidence shows that immediately prior to the injury, Luzama was making $1.75 per hour, the minimum wage provided by Pohnpei law.2 Luzama testified that, at the time of trial, he was twenty-six (26) years old. The mandatory retirement age for Pohnpei Government employees remains 60 years old3. Thus, at the rate of $1.75 per hour assuming a 40-hour work week, twenty-six (26) pay periods
per year, and no overtime hours,4 Luzama would have been making $280 a month, which equates to $3,640 per year. Multiplying that figure by thirty-four (34)years results in a total of $123,760 in lost wages. This is the amount that Luzama is entitled to under his negligence claim.
In his closing argument, Luzama represented that he seeks only seventy-five percent (75%) of the award he believes he originally requested in his Complaint because he now acknowledges that he retains some capability to perform work to support himself and his family, albeit extremely limited.
Rule 15(b) of the FSM Rules of Civil Procedure reads:
(b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party's action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.
The Court finds Luzama's voluntary reduction in damages sought from Mai Xong in its closing arguments as a Rule 15(b) motion to amend his Complaint to conform to the evidence. No objection has been filed by Mai Xong, Inc.
Accordingly, the Court will grant Luzama's closing argument as a Rule 15(b) motion to amend the amount of damages sought in his complaint. Seventy-five percent (75%) of the $123,760 he believes he is entitled to equates to $92,820.
B. Battery
Luzama's second cause of action is for battery.
According to Pohnpei law, battery is a harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff to suffer such contact. Berman v. Pohnpei, 17 FSM R. 360, 372 (App. 2011); Paul v. Celestine, 4 FSM R. 205, 207 (App. 1990); Elymore v. Walter, 9 FSM R. 450, 458 (Pon. 2000); Conrad v. Kolonia Town, 8 FSM R. 183, 191 (Pon. 1997).
Luzama argues that his co-worker who was operating the forklift that caused the injury made contact with his foot, that such contact was harmful and offensive because the unwanted touching was invasive, violent, and resulted in a significant injury, and that Mai Xong, Inc. is vicariously liable.
One of the essential elements to a claim for the tort of battery is that the act constituting the battery intended to cause the plaintiff to suffer such contact. Here, there is no evidence in the record
to suggest that the forklift operator intended to batter Luzama. The Court is convinced, based on the testimony and record before it, that this was a workplace accident, not an intentional act.
Accordingly, Luzama's second cause of action for battery is HEREBY DISMISSED.
C. Emotional Distress
Luzama does not indicate whether his third cause of action is intentional infliction of emotional distress or negligent infliction of emotional distress. Thus, the Court will address both torts separately.
i. Intentional Infliction of Emotional Distress
Recovery for intentional infliction of emotional distress requires conduct that is extreme and outrageous. The tort of intentional infliction of emotional distress is sharply limited and only applies in the most egregious circumstances. Nakamura v. FSM Telecomm. Corp., 17 FSM R. 41, 48 (Chk. 2010) (quoting 38 AM. OUR. 2D Fright, Shock, and Mental Disturbance § 15, at 21-22 (rev. ed. 1999)).
As the Court has already stated, there is no evidence that the forklift operator who caused the injury did so intentionally or that by not providing him proper work boots Mai Xong, Inc. intended for Luzama to get injured. It is rather clear that this event was an accident with unfortunate results for Luzama.
Moreover, the conduct of Mai Xong, Inc. and the forklift operator does not satisfy the "extreme and outrageous" element necessary to recover damages under the tort of intentional infliction of emotional distress. Accordingly, to the extent Luzama intended to bring a cause of action for intentional infliction of emotional distress, it is dismissed.
ii. Negligent Infliction of Emotional Distress
A claim for negligent infliction of emotional distress requires evidence of such extreme mental anguish and distress that medical assistance is sought or necessary as a result of the negligence. See Tomy v. Walter, 12 FSM R. 266 (Chk. S. Ct. Tr. 2003).
There was some testimony by Luzama, his wife, and his mother that his behavior has negatively changed and that he is embarrassed of his permanent deformity which hinders his ability to continue to maintain his social status in the community. However, the Court cannot conclude that such a change amounts to extreme mental anguish and distress. Indeed, Luzama maintains that he retains some ability to perform the tasks he performed before the injury and that he still takes pride in providing for his family. Although the Court acknowledges that Luzama does indeed suffer from some distress, it does not rise to the degree required to recover under the tort of negligent infliction of emotional distress.
Accordingly, to the extent Luzama intended to bring a cause of action for negligent infliction of emotional distress, it must be dismissed.
For the reasons set forth above, the Court finds in favor of Plaintiff Welson Luzama and against Defendant Mai Xong, Inc. on the first cause of action for negligence as set forth in the Complaint.
ACCORDINGLY, it is ADJUDGED, ORDERED and DECREED that Plaintiff Welson Luzama is awarded
judgment of damages in the amount of $92,820 for his negligence claim, minus the appropriate wage taxes earned thereon calculated up to the time he reaches the retirement age of sixty (60) years old. Mai Xong, Inc. shall deduct the appropriate wage taxes earned on the judgment and remit them to the appropriate authorities.
Luzama's second and third causes of action for battery and emotional distress are HEREBY DISMISSED.
_____________________________________Footnotes:
1 Luzama testified that Mai Xong, Inc. paid his salary during the time he was attempting to recover from the injury, even after his discharge from the hospital, until the termination of his employment. Thus, damages for lost wages during that time is inappropriate. He also testified that Mai Xong, Inc. paid for his medical bills; therefore, an award for such damages is also inappropriate.
2 "Every employer shall pay to each employee employed by the employer wages at the rate of not less than $1.75 per hour." 9 PC 3-104.
3 "Any employee of the public service, upon reaching the age of 60 years, must retire from public service in the calendar year during his or her attainment of 60 years." 9 PC 2-107.
4 No employer shall employ any employee for a work week longer than 40 hours unless the employee receives overtime compensation for the employee's employment in excess of the hours above, specified at a rate of not less than one and one-half times the regular rate at which the employee is employed.
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