FSM SUPREME COURT
TRIAL DIVISION
Cite as Alfons v. Edwin ,
5 FSM Intrm. 238 (Pon. 1991)

[5 FSM Intrm. 238]

DAKIO ALFONS,
Plaintiff,

v.

MISKO EDWIN and PONAPE
ECONOMIC PROGRESS,
Defendants.

FSM CIV. 1991-003

OPINION
 
Edward C. King
Chief Justice
Trial:  October 16 to 25, 1991
Decision:  November 5, 1991

APPEARANCES:
For the Plaintiff:            Daniel J. Berman
                                       Rush, Moore, Craven, Sutton, Morry & Beh
                                       P.O. Box 1491
                                       Kolonia, Pohnpei  FM 96941

For the Defendants:     Fredrick L. Ramp
                                       Attorney at Law
                                       P.O. Box 1480
                                       Kolonia, Pohnpei  FM 96941

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HEADNOTES
Employer - Employee
     Plaintiff employee not barred from recovery for his failure to exercise due care because defendant employer's conduct amounted to a reckless disregard for the safety of its employees.  Alfons v. Edwin, 5 FSM Intrm. 238, 241 (Pon. 1991).

Custom and Tradition - Pohnpei; Torts - Comparative Negligence
     The doctrine of comparative negligence is more consistent with life in Pohnpei in that the doctrine recognizes that injuries and damages are often caused through a combination of errors and misjudgments by more than one person. Nothing in Pohnpei custom absolves a party who caused injury to

[5 FSM Intrm. 239]

another from the customary obligations of apology and reconciliation because the injured party's negligence contributed to the injury.  Alfons v. Edwin, 5 FSM Intrm. 238, 242 (Pon. 1991).

Torts - Comparative Negligence
     Comparative negligence, unlike contributory negligence permits assessment of relative degrees of responsibility and allows awards on that basis.  Alfons v. Edwin, 5 FSM Intrm. 238, 242 (Pon. 1991).

Torts - Comparative Negligence
     Doctrine of comparative negligence is more consistent with custom and tradition on Pohnpei and it thus should apply in Pohnpei unless, and until the highest Pohnpei State Court rules otherwise.  Alfons v. Edwin, 5 FSM Intrm. 238, 242-43 (Pon. 1991).

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COURT'S OPINION
EDWARD C. KING, Chief Justice:
     This case arises out of an injury sustained by the plaintiff, Dakio Alfons, on Tuesday, January 2, 1990 while he was engaged as an employee for defendant, Ponape Economic Progress (PEP), in mangrove logging operations in Rohi, Kitti.

     Plaintiff contends that the injuries were caused by PEP's failure to provide proper training, adequate equipment, safeguards or sufficient numbers of assistants in the logging work.

     Trial of this action began on October 16 and continued through October 25, 1991.  At the conclusion of the trial, plaintiff admitted that there had been a failure to prove the charges against Misko Edwin and those charges therefore are dismissed.  Based upon the evidence adduced, the Court makes the following findings of fact and conclusions of law  concerning the claims against PEP.
 
Findings of Fact
     1. Dakio Alfons was an employee of PEP, engaged to work as a logger.  He was assigned to cut mangrove in Rohi, Kitti and on January 2, 1990, at the time of his injury, he was engaged in that work.

     2. PEP took absolutely no safety precautions calculated to protect its loggers against injury.

          a.  No testing was done to assure that employees hired would be proficient and safe workers.

[5 FSM Intrm. 240]

          b.  No training was provided for new employees.

          c.  Only a chain saw, and no safety equipment, was provided by PEP to its loggers.

          d.  PEP made no effort to assure that each logging crew would work under the supervision of an experienced, knowledgeable and sound logger.

          e.  PEP had no policy of encouraging or requiring its loggers to use any techniques aimed at reducing the physical risk of logging.

     3.  Ponape Economic Progress had no procedures to be followed by loggers who had felled a tree which had fallen in such a way that further cutting and sectioning might pose substantial damages to the loggers.

     4.  No instruction, or even affirmative permission, was given by PEP to its loggers to leave such a tree untouched until safety equipment (e.g., ropes, chains, winch and pulley or a come-along) could be employed to hold or reposition the tree so that its cutting would not pose a substantial danger to the loggers.

     5.  Ponape Economic Progress had no policy of providing special safety equipment to assist in the handling of such dangerous trees.

     6.  On January 2, 1990, the second tree which the PEP logging group of Dakio Alfons, Benito Alfons and Benjamin Alfons felled, did not fall completely to the ground but instead remained above the ground with the trunk resting on its own stump, a second tree ("tree #2"), a root system and its own branches.
 
     7.  PEP loggers were expected to section a fallen tree at 20-foot intervals.  At the place where the 20-foot section cut would normally have been made on the fallen tree in question, the tree was approximately 5 feet above the ground.  The tree as it had fallen would not have been cut without safety equipment under standard reasonable logging procedures as they are practiced in Pohnpei.

     8.  In attempting to cut the tree without safety equipment Dakio Alfons was acting in compliance with standard PEP logging procedures.

     9.  In his attempts to section the fallen tree, Dakio Alfons stood to the side of the tree at a place below it and cut it from the underside.  This was an extremely unsafe position from which to cut the tree and as a result, the tree fell against Dakio Alfons, breaking the tibia and fibula in his left leg.

     10. Even without the kind of equipment referred to in finding No. 4, other methods could have been employed by Dakio Alfons, to reduce the risk to himself in sectioning the fallen tree.  These other methods could have included cutting tree #2 so that its pressure on the fallen tree would have been eliminated, and clearing the fallen tree from its own stump.  However,

[5 FSM Intrm. 241]

even if Dakio Alfons and his co-workers had employed those alternative methods available to them without safety equipment, the risk to their own personal safety would have been great.  Moreover, the actions taken by Dakio Alfons in his attempt to section the tree were not contrary to the policies of PEP and PEP had no reason to believe that Dakio Alfons would follow any safer procedure.

     11.  Dakio Alfons suffered great pain as a result of the tree falling against him and breaking his leg.  As a result of his leg injury, Dakio Alfons has a slight bone growth near where the bones broke and he continues to suffer some pain and weakness.  The prognosis is good however.  He now nearly has, and soon will have, full and complete recovery of the leg.  The Court finds that Mr. Alfons sustained damages of pain and suffering in the amount of $4,000.

     12.  Dakio Alfons did not suffer loss of income as a result of this injuries because PEP continued to pay him fully up until January of 1991, and did so despite the fact that Dakio Alfons provided little work for PEP during the entire year of 1990 and despite the fact that Dakio Alfons was working for, and being paid by, Robbie Etscheit during part of that time.

     13.  There is no indication that Dakio Alfons sustained medical expenses, or expenses of any kind, as a result of his broken leg.

Conclusions of Law
     1.  PEP breached its duty to Dakio Alfons to take reasonable steps to provide training, a safe place to work, safe procedures and safety equipment, and supervision.  Cf. Koike v. Ponape Rock Products, Inc., 3 FSM Intrm. 57, 68 (Pon. S. Ct. Tr. 1986)("It is imperative in a jurisdiction like Pohnpei where industrial and economic development is beginning 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 ...owner...takes extra precautionary measures in educating the people about the proper handling...and also informs the people about the potential harm to persons or property....")

     2.  PEP's breach of its duty was the proximate cause of plaintiff's injury.

     3.  PEP's conduct, described in the findings at Nos. 2 through 5, amounts to a reckless disregard for the safety of its loggers.  Dakio Alfons is thus not barred from recovery for his failure to exercise due care when making the section cut without first taking the steps described in finding No. 10.  Ray v. Electrical Contracting Corp., 2 FSM Intrm. 21 (App. 1985).

     4.  Dakio Alfons did not assume the risk of his own injury in that there is no showing that either he or his fellow workers recognized the risk to

[5 FSM Intrm. 242]

themselves in proceeding.

     5.  Although there have been decisions in Pohnpei and elsewhere in the Federated States of Micronesia in which courts have spoken of contributory negligence, no court has squarely faced the question of whether the negligent plaintiff is barred completely from recovering any damages (the doctrine of contributory negligence), or whether the plaintiff's contributory negligence should merely reduce the award of damages in proportion to the negligence attributed to the plaintiff (the doctrine of comparative negligence).  See Koike v. Ponape Rock Products, 3 FSM Intrm. 57 (Pon. S. Ct. Tr. 1986) and Suka v. Truk, 4 FSM Intrm. 123 (Truk S. Ct. Tr. 1989) (plaintiff not contributorily negligent); Ray v. Electrical Contracting Corp., 2 FSM Intrm. 21 (App. 1985)(contributory negligence not a defense where defendant's conduct is in reckless disregard for the plaintiff's safety); Opet v. Mobil Oil Micronesia, 3 FSM Intrm. 159 (App. 1987)(contributory negligence of the owner of property is not a defense in an action for conversion); Amor v. Pohnpei, 3 FSM Intrm. 519 (Pon. 1988)(contributory negligence not in issue due to court's conclusion that defendant's conduct towards plaintiff was not negligent).

     Accordingly, this Court is free and required to consider which mode of analysis is better suited to serve the people of Pohnpei in this case.  Plais v. Panuelo, 5 FSM Intrm. 179, 203 (Pon. 1991); Semens v. Continental Air Lines, Inc., 2 FSM Intrm. 200, 204 (Pon. 1986).

     6.  The doctrine of comparative negligence is more consistent with life in Pohnpei and elsewhere in that the doctrine recognizes that injuries and damages are often caused through a combination of errors and misjudgments by more than one person.  This Court is aware of nothing in Pohnpei custom which absolves a party, whose lapse of judgment or wrongdoing caused injury to another, from the normal customary obligations of apology and reconciliation, on the ground that the injured party's negligence or error in judgment contributed to the injury.  See Suka v. Truk, 4 FSM Intrm. at 127-28 (the doctrine of contributory negligence "is not in conformity with traditional Trukese concepts of responsibility").

     7.  The doctrine of comparative negligence provides more precision than that of contributory negligence as the comparative negligence doctrine permits assessment of relative degrees of responsibility and allows awards on that basis.  In contrast, the contributory negligence method of analysis is essentially an all or nothing approach, barring recovery by an injured party whose negligence contributes to the injury, even if the injured person's negligence was relatively insignificant when compared to another's primary negligence.

     8.  The Court concludes that the comparative negligence doctrine is more consistent with custom and traditions in Pohnpei and also would better serve the interests of justice in Pohnpei because it offers greater precision of analysis and compensation.

[5 FSM Intrm. 243]

     9.  Pending a contrary ruling of the highest Pohnpei state court, this Court concludes that the doctrine of comparative negligence should apply in Pohnpei. For purposes of applying that doctrine in this case, the Court concludes that an ordinary reasonable and prudent logger with the background and experience of Dakio Alfons would not have made the section cut of the fallen tree without first taking the steps described in finding No. 10, and that the negligence of Dakio Alfons in failing to take those steps constituted 20% of the negligence which led to his injuries.  Therefore the award of damages should be reduced from actual damages of $4,000 to an award of $3,200 for compensatory damages.

     10.  There is no basis for an award of punitive damages in this case.

Conclusion
     Judgment shall issue in favor of Dakio Alfons in the amount of $3,200.

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