CHUUK STATE SUPREME COURT
TRIAL DIVISION
Cite as Epiti v. Chuuk,
5 FSM Intrm. 162 (Chk. St. Ct. Tr.1991)

[5 FSM Intrm. 162]

ICHIUO EPITI, KARMELA EPITI,
Plaintiff,

v.

CHUUK STATE GOVERNMENT,
Defendant.

CSSC CA. NO. 77- 86
JUDGMENT
John R. Petewon
Associate Justice
July 23, 1991

APPEARANCES:
For the Plaintiffs:          Robert C. Keogh, Esq.
                                       P.O. Box GZ
                                       Agana, Guam  96910

For the Defendant:      Thomas C. Sterling, Esq.
                                      1008 Pacific News Bldg.
                                       239 O'Hara Street
                                      Agana, Guam  96910

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HEADNOTES
Common Law; Torts
     Chuuk State has adopted common law tort principles as the law of Chuuk State where no specific constitutional or traditional impediment to its adoption exists.  Epiti v. Chuuk, 5 FSM Intrm. 162, 165 (Chk. S. Ct. Tr. 1991).

Evidence
     The trier of fact determines what should be accepted as the truth and what should be rejected as untrue or false, and in doing so is free to select from conflicting evidence, and inferences that which it considers most reasonable.  Epiti v. Chuuk, 5 FSM Intrm. 162, 166 (Chk. S. Ct. Tr. 1991).

[5 FSM Intrm. 163]


Torts - Negligence
     Where any reasonable employer would have ordered all electrical power cut off while any work was being performed in close proximity to high voltage lines, the failure to do so is clearly negligent.  Epiti v. Chuuk, 5 FSM Intrm. 162, 166 (Chk. S. Ct. Tr. 1991).

Sovereign Immunity
     The court will not judicially create the right of sovereign immunity from suit for Chuuk State.  This is a legislative function.  Epiti v. Chuuk, 5 FSM Intrm. 162, 166-67 (Chk. S. Ct. Tr. 1991).

Torts - Contributory Negligence; Custom and Tradition - Truk
     The absolute defenses of Assumption of the Risk and Contributory Negligence are contrary to the traditional Chuukese concepts of responsibility and shall not be available in Chuuk State.  Epiti v. Chuuk, 5 FSM Intrm. 162, 167 (Chk. S. Ct. Tr. 1991).

Torts - Comparative Negligence
     The "pure system" of comparative negligence is available as a defense to defendants in Chuuk State.  The defendant is entitled to a proportional reduction in any damage award upon proof that the plaintiff's negligence was in part the cause of his injuries.  Epiti v. Chuuk, 5 FSM Intrm. 162, 167-68 (Chk. S. Ct. Tr. 1991).

Employer - Employee; Torts - Comparative Negligence
     Where an employee is commanded to take action which creates a known risk of injury, his obedience to the command will not bar subsequent recovery for injuries suffered, even where the risk of injury is apparent, but this will not excuse clearly reckless conduct by the employee where he had full knowledge of reasonable means to limit or prevent the injury.  Epiti v. Chuuk, 5 FSM Intrm. 162, 169 (Chk. S. Ct. Tr. 1991).

Torts - Damages
     As a loss of consortium claim is derivative from a spouse's claim for damages an award for loss of consortium is properly reduced by the percentage of fault attributable to the spouse.  Epiti v. Chuuk, 5 FSM Intrm. 162, 170 (Chk. S. Ct. Tr. 1991).

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JUDGMENT
JOHN R. PETEWON, Associate Justice:

[5 FSM Intrm. 164]

I.  INTRODUCTION
     This is a personal injury action wherein plaintiff claims damages for severe and handicapping injuries resulting from accidental electrocution.  Plaintiff, an employee of Chuuk State Public Works Department, suffered the injuries in the course of his employment.  Plaintiff Karemela Epiti joins in the complaint seeking damages for loss of consortium.

     Trial of this action was held on March 6, 1989.  Plaintiffs were represented by Robert L. Keogh, Esq. and Keogh & Butler.  Defendant Chuuk State was represented by Thomas C. Sterling, Esq. and Klemm, Blair, Sterling & Johnson. Evidence was introduced, and argument made, and the matter was taken under submission on March 8, 1989.

     The facts of this tragic accident are basically straightforward.  Plaintiff had been an employee of the Department of Public Works of Chuuk State continuously from 1967, and had worked as an electrical lineman since 1961, a period of 24 years prior to the accident.

     At the time of the accident, plaintiff was the supervisor for the electrical line section.  As supervisor, it was his primary responsibility to decide whether to disconnect power when line work was being done.

     On June 1, 1985, plaintiff and other employees for the Department of Public Works began work on Deep Well No. 18 located in Neuo Village, Weno, near the Continental Hotel.  The task was to establish electrical power to the the well.  As supervisor, plaintiff was responsible for all aspects of the project.

     Plaintiff and his crew worked on the electrical hookup of Deep Well No. 18 on June 1, June 2, June 6, and June 8, 1985.  On each day, plaintiff cut all power to the pole upon which they were working.  On June 10, 1985, plaintiff and others were to complete the work on Deep Well No. 18.  According to plaintiff, he was instructed by his supervisor Kius Sananap, to keep current running through the primary power lines, and only shut off power to the secondary power lines.  According to plaintiff, this instruction was given as a result of complaints received from the Continental Hotel, and had ordered by Mel Morris, who was at that time the director of Public Works.  According to plaintiff, he protested this order, but was assured by Kius Sananap that it would be safe, as no work to be done that day involved the primary power transmission lines.  Plaintiff's testimony was corroborated by other employees of the Department of Public Works.

     Despite his concerns, plaintiff complied with the purported order of his supervisor.  Plaintiff himself went up the power pole that day.  He did so without a hard hat or rubber gloves.  He was wearing a metal watch and ring on his right hand, and holding a metal wrench.  He accidentally came into contact with the primary power transmission line, and suffered a severe electrocution.  As a result of his injuries, it became necessary to amputate

[5 FSM Intrm. 165]

plaintiff's right arm above the elbow.  Plaintiff as unable to work for six months, after which he returned to work at his regular position.

     Defendant Chuuk State vigorously opposed plaintiff's version of the events, and introduced evidence that no order to leave the primary transmission line electrified was given.  Defendant further raised the defenses of assumption of risk, contributory negligence and comparative negligence.

     Kius Sananap, was medically unable to testify in person regarding his contention that he did not instruct plaintiff to leave the primary transmission line electrified.  His testimony was offered by way of his deposition.  Defendant also introduced evidence purporting to corroborate the deposition of Kius Sananap.

     Plaintiff contends that defendant was negligent in ordering him to work in an extremely unsafe environment, and in failing to provide a safe work environment. Defendant, in addition to its contention that plaintiff was never ordered to leave the primary power lines electrified while working, also asserted the affirmative defenses of assumption of the risk, contributory negligence and comparative negligence.

II.  NEGLIGENCE OF DEFENDANT CHUUK STATE
      A.  Applicability of Foreign Law
     It is now well accepted that common law decisions of the United States Courts, and other United States legal authorities may be applied where no specific constitutional or traditional impediment to adoption of foreign law exists.  Semens v. Continental Airlines, Inc., 2 FSM Intrm. 131, 139-40 (Pon. 1985).

     The Chuuk State Supreme Court has adopted common law tort principles as the law of Chuuk State on numerous occasions.  No reason exists or has been asserted by either party to abandon that practice.  Thus the court will apply the common law of torts to the facts of this case, as well as the common law defenses asserted by defendant.  See Suka v. Truk, 4 FSM Intrm. 123 (Truk 1989); Meitou v. Uwera, 5 FSM Intrm. 139 (Chk. S. Ct. Tr. 1991).

      B.  Resolution of conflicting Testimony
     In this action plaintiff has the burden of proving, by a preponderance of the evidence, that defendant Chuuk State, by and through its employees, was negligent in ordering plaintiff to work on the Deep Well No. 18 project without turning off the electrical power to the primary electrical transmission lines.  Meitou v. Uwera, 5 FSM Intrm. at 142.  In order to determine whether the defendant was negligent, the court must decide an issue where the evidence is completely contradictory.  Plaintiff testified that he was ordered to keep electricity running through the primary transmission

[5 FSM Intrm. 166]

lines, and his testimony was corroborated by other employees of the Department of Public Works.  Defendant, through the deposition testimony of Kius Sananap, plaintiff's direct supervisor, stated that no such order was given by any superior of plaintiff, and that any such decision was made by plaintiff himself.  This evidence was also corroborated.

     In considering conflicting evidence, "the trier of fact determines what should be accepted as the truth and what should be rejected as untrue or false."  In doing so, the trier of fact is "free to select from conflicting evidence, and inferences that which it considers most reasonable."  30 Am. Jur. 2d Evidence 1082, at 230-31.

     The truth or falsity of proffered evidence should not be determined by the number of witnesses offering the evidence.  The trier of fact is free to believe one credible witness against many found to be less credible.  Meitou v. Uwera, 5 FSM Intrm. at 142; 30 Am. Jur. 2d Evidence 1088 at 244.  The court finds that the testimony of defense witnesses was evasive, and uncertain.  The court finds that plaintiff was ordered, on the morning of June 10, 1985, to keep electrical current running through the primary transmission lines, creating an extremely hazardous and dangerous condition.  The court further finds that Sananap assured plaintiff of the safety of the work to be done while the primary lines remained electrified.

      C.  Creation of Hazardous Condition as Negligence
     "Negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances.  It is the...failure to do what a person of ordinary prudence would have done under similar circumstances."  Koike v. Ponape Rock Products, Inc., 3 FSM Intrm. 57, 66 (Pon. S. Ct. Tr. 1986); Amor v. Pohnpei, 3 FSM Intrm. 519, 529 (Pon. 1988).

     The court concludes that any reasonable employer would have ordered all electrical power cut off while any work was being performed in close proximity to high voltage electrical transmission lines.  Failure to do so is clearly negligent.  In the court's opinion, to not only refuse to shut the power off, but to instruct an employee to work in close proximity to such danger might even rise to the level of reckless endangerment.  For the reasons set forth below, however, the court in this case declines to make such a ruling.

III.  NEGLIGENCE OF PLAINTIFF
     Defendant has raised certain defenses which if proven would limit or eliminate defendant's liability for plaintiff's injuries.  These defenses are, in order, sovereign immunity, assumption of the risk of injury, contributory negligence and comparative negligence.

      A.  Sovereign Immunity
     It has previously been held that this court will not judicially create

[5 FSM Intrm. 167]

the right of sovereign immunity from suit for the State of Chuuk.  This is a legislative function.  The court knows of no legislatively created sovereign immunity, and thus denies this claimed defense.  Suka v. Truk, 4 FSM Intrm. 123, 126 n.2 (Truk S. Ct. Tr. 1989).

      B.  Assumption of Risk
     For the same reasons that the defense of contributory negligence has fallen into disfavor (See section III. C. below), this court chooses to hold that the defense of assumption of risk is unavailable and inapplicable to tort actions in Chuuk.

      C.  Contributory Negligence
     This court in Suka v. Truk, 4 FSM Intrm. 123 (Truk S. Ct. Tr. 1989) discussed the defense of contributory negligence.  While there was no need under the facts of Suka for the court to determine whether the defense should be adopted as the law of Chuuk State, the court in dicta, expressed dissatisfaction with the defense on a number of grounds.

     Most importantly, the court viewed the defense as contrary to traditional Chuukese concepts of responsibility:

In Trukese custom, the important question is who caused the harm.  Once that is established, the wrongdoer cannot excuse his obligation to the injured person or the injured family by arguing that the injury was in part caused by the negligence of the injured party, or that someone else was also responsible.  The injury happened.  It was caused by the wrongdoer. The injury must be compensated.

Suka v. Truk, 4 FSM Intrm. at 127-28 (Truk 1989).  The court in Suka also agreed with legal authorities in the United States, which have abandoned the absolute defense of contributory negligence in favor of the more equitable and fair doctrine of comparative negligence.  Id. at 127.

     For the reasons set forth in Suka v. Truk, supra, this court    concluded that the absolute defense of contributory negligence, and the defense of assumption of the risk (see Section III. B, above) shall not be available in tort actions in Chuuk State.

      D.  Comparative Negligence
     The defense comparative negligence was a judicially created response to the unfairness of the absolute defenses of contributory negligence and assumption of the risk.  In the latter defenses, if the defendant could establish that the plaintiff, through his own negligence, was just one percent (1%) at fault, or if he had assumed the risk, plaintiff would be barred from

[5 FSM Intrm. 168]

any recovery, regardless of the extent to which the defendant's negligence was a legal cause of plaintiff's injuries.  Courts in various jurisdictions, reacting to the unfairness inherent in these defenses, adopted comparative negligence as the most reasonable alternative.

     Although there are three basic types of comparative negligence systems, the one adopted by most jurisdictions, known as the "pure system," appears to this court to be the most equitable form of the defense.  The "pure system" is designed to compensate an injured party for all of the harm attributable to the wrongdoing of the defendant;...."  Prosser and Keaton, The Law of Torts 67, at 472.  This court can think of no reason, either in custom or in law, why this defense should not be available to tort defendants in Chuuk State.  Therefore the court holds that defendant is entitled to assert the defense of comparative negligence, and is entitled to a reduction in any damage award upon satisfactory proof that the plaintiff, through his own negligence, was in part the cause of his injuries.  (For an extensive discussion of the history and development of the doctrine of comparative negligence, see Li v. Yellow Cab Co., 13 Cal. 3d 804, 532 P. 2d 1226 (1975); Prosser and Keaton, supra, 67).

     Having adopted the defense of comparative negligence as the law of Chuuk State, the court must address the facts of this case to determine whether plaintiff contributed to his injuries by negligent acts of his own.

     Preliminarily it must be understood that as a general rule, as between master and servant," the servant shall yield obedience to the master, and this obedience an employee properly may accord even on being confronted with perils that otherwise should be avoided."  53 Am. Jur. 2d Master and Servant 251, at 292.  Thus, where an employee is commanded to take action which creates a known risk of injury, his obedience to the command will not bar subsequent recovery for injuries suffered, even where the risk of injury is apparent.  Fillipon v. Albion Vein Slate Co., 250 U.S. 76, 39 S. Ct. 435, 63 L. Ed. 853 (1919).

     This general rule cannot be applied blindly, however, in order to excuse clearly reckless conduct by an employee.  If it can be shown that the employee had full knowledge of the risks and perils in complying with otherwise negligent orders of his employer, and also had full knowledge of reasonable means to limit or prevent serious injury from occurring, then evidence of the failure of the employee to take reasonable precautions may be sufficient to establish contributory negligence.  53 Am. Jur. 2d Master and Servant 278, 281, 283, 285, 286.  (While these sections deal with the denial of any recovery on the basis of assumption of risk, a disfavored defense, the principles expressed are equally applicable in determining comparative negligence).

     The burden of proving negligence on the part of the plaintiff lies with the defendant.  Meitou v. Uwera, 5 FSM Intrm. at 142.  Determination of whether the employee was negligent in obeying a command of his employer, knowing that obeying the command created an increased risk of injury, is a

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question of fact for the trier of fact.  53 Am. Jur. 2d Master and Servant 255.  And not only must defendant show that the employee was negligent in following the command or performing the known perilous task, the defendant must show that the negligence of the employee was a contributing legal cause of the injury.  Id. 262.

     It is sufficient here for the court to take judicial notice of the fact that electricity is one of the most dangerous forces known to man.  Plaintiff had worked as an electrical lineman for 24 years.  That he knew of the extreme danger involved in working in close proximity to the electrified primary transmission lines is evidenced by his protest to his superior.

     There can be no question, either, that plaintiff had knowledge of means and ways to lessen, if not eliminate, the risk of serious injury from electrocution.  Insulated or rubber gloves and shoes, a hard hat, closer attention to his proximity to the electrified wires, all would have lessened the risk of injury.  Despite this knowledge, plaintiff apparently took no precautions before climbing the pole.  He even failed to remove his metal wristwatch and ring.  Plaintiff's clear knowledge of and long experience with electricity, combined with his total failure to take even minimal precautions, convinces the court that plaintiff was at least in small part responsible for his own injuries.  The court concludes that plaintiff is 30% liable and the defendant is 70% liable for the injuries suffered by plaintiff.

IV.  DAMAGES
      A.  Plaintiff Ichiuo Epiti's Damages
     Plaintiff Ichiuo Epiti is entitled to recover damages for lost earnings, and for pain and suffering, both at the time of the injury, and permanently as a result of the amputation of his arm.

     As severe as the injury was, it did not prevent plaintiff from continuing in the employ of the Department of Public Works, apparently as an electrical lineman. Plaintiff is to be commended for his strength and courage in the face of this frightful injury.  Nonetheless, plaintiff did lose substantial time from work while hospitalized and in recovery for his injuries.  Plaintiff is entitled to damages equal to his normal pay from June 10, 1985 to the date he returned to work.  22 Am. Jur. 2d Damages 156.  According to the evidence, at the time of his injury plaintiff was earning $188.60 bi-weekly.  Plaintiff returned to work about six months later.  Plaintiff missed 15 weeks of work, and is entitled to a damage award of $1,500.00 for lost earnings, reduced by thirty percent, (30%) the percentage of plaintiff's comparable fault.

     Awarding damages for pain and suffering is one the most difficult tasks of the court, for the determination lies in the sole discretion of the trier of fact.  No fixed rules exist to assist in the determination.  Koike v. Ponape Rock Products, Inc., 3 FSM Intrm. 57, 73 (Pon. 1986).

     In making an award for plaintiff's disfigurement, handicap and pain

[5 FSM Intrm. 170]

resulting from the amputation of his arm, the court is not only mindful of the physical difficulties which will confront him for the remainder of his life, but also of the emotional scars such an injury can produce.  That plaintiff has returned to work is true testament of his faith and courage.

     At the same time, the court is also mindful of the fact that no amount of money can ever completely and adequately compensate plaintiff for his injury.  Finally, the court takes into consideration the understanding of plaintiff's own contribution to the severity of his injuries.

     The court awards plaintiff the sum of $125,000.00 for pain and suffering, to be reduced by thirty percent (30%), the percentage of plaintiff's fault.

      B.  Karemela Epiti's Damages
     A wife clearly has a claim for loss of consortium arising out of injury to her spouse resulting from the negligent act of third parties.  Koike v. Ponape Rock Products, Inc., 3 FSM Intrm. 57, 74 (Pon. 1986); Rodriquez v. Bethlehem Steel Corp., 13 Cal. 3d 386, 525 P.2d 669 (1974).

     Damages may be awarded for loss of the husband's assistance in the daily activities of life, as well as for loss or diminution of society and companionship. Pretre v. United States, 531 F. Supp. 931 (E.D. Mo. 1981).

     As loss of consortium is a claim derivative from the husband's claim for damages, an award for loss of consortium is properly reduced by the percentage of fault attributable to the husband.  Lee v. Colorado Dept. of Health, 718 P.2d 221 (Colo. 1986).

     Plaintiff Karemela Epiti is hereby awarded the sum of $15,000.00 as damages for loss of consortium, to be reduced by thirty percent (30%), the percentage of her husband's fault.

     Plaintiff Ichiuo Epiti and Karemela Epiti shall have judgment against defendant Chuuk State in the total sum of $99,050.00 plus cost of suit.  Let judgment be entered accordingly.

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