FSM SUPREME COURT
TRIAL DIVISION
Cite as Glocke v. Pohnpei,
8 FSM Intrm. 60 (Pon. 1997)

[8 FSM Intrm. 60]

PHYLLIS GLOCKE and SAMSON JOHN,
Plaintiffs,

vs.

STATE OF POHNPEI and POHNPEI
TRANSPORTATION AUTHORITY and
DOMINGKO IFAMILIK,
Defendants.

CIVIL ACTION NO. 1993-041

MEMORANDUM

Decided:  May 13, 1997

APPEARANCES:
For the Plaintiff:            Ron Moroni, Esq.
                  P.O. Box 1618
                  Kolonia, Pohnpei FM 96941

For the Defendants:     Todd Richards, Esq.
(Pohnpei & PTA)          Assistant Attorney General
                  Pohnpei Department of Justice
                  P.O. Box 1555
                  Kolonia, Pohnpei FM 96941

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HEADNOTES
Torts ) Negligence
     Violation of a statute creates a rebuttable presumption of negligence.  Put another way, the unexcused violation of law which defines reasonable conduct is negligence in itself.  Glocke v. Pohnpei, 8 FSM Intrm. 60, 61 (Pon. 1997).

Civil Procedure ) Summary Judgment; Torts ) Governmental Liability
     Summary judgment will be granted on the issue of the state's liability for the its employee's act when there is no genuine issue of material fact that at the time of the accident the employee was negligent, that he was acting at the direction of his employer and within the scope of his employment, and that his conduct was not wanton or malicious.  Glocke v. Pohnpei, 8 FSM Intrm. 60, 61-62 (Pon. 1997).

Civil Procedure ) Summary Judgment; Evidence ) Hearsay
     A statement, which if it had been made by the defendant would have been admissible as an admission of a party-opponent, is inadmissible hearsay when made by the defendant's then spouse as part of a traditional apology, and cannot be considered on a summary judgment motion.  Glocke v.

[8 FSM Intrm. 61]

Pohnpei, 8 FSM Intrm. 60, 62 (Pon. 1997).

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COURT'S OPINION
MARTIN YINUG, Associate Justice:
     The purpose of this memorandum is to explain the court's reasoning for the order dated May 5, 1997.  That order granted summary judgment in favor of the plaintiffs on the issue of the liability of the state of Pohnpei ("Pohnpei") and the Pohnpei Transportation Authority ("PTA").  In granting the motion, the court considered the motion itself, filed February 16, 1996; the response of Pohnpei state and PTA filed April 12, 1996; and plaintiffs' reply, filed April 17, 1996.

       The familiar language of Rule 56 of the Rules of Civil Procedure is that the
judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issues of liability alone although there is a genuine issue as to the amount of the damages.

Plaintiffs have moved for summary judgment on the issue of the liability of Pohnpei and PTA.  The basis for plaintiffs' motion is that defendant Domingko Ifamilik, an employee of PTA acting within the scope of his employment, was negligent per se because his violation of a Pohnpei statute resulted in the accident in which the plaintiffs were injured.  Pohnpei State Law No. 2L-132-82, as cited by the plaintiffs, provides at section 405 that

Upon all roads of sufficient width, a vehicle shall be driven upon the right-half of the road, except as follows:

            (1)  when overtaking or passing another vehicle proceeding in the same
       direction under the rules governing such movement;

    (2)  when an obstruction exists making it necessary to drive to the left of the center of the highway . . . upon a road restricted to one-way traffic.

Violation of a statute creates a rebuttable presumption of negligence.  57A Am. Jur. 2d Negligence 728.  Put another way, the unexcused violation of law which defines reasonable conduct is negligence in itself.  2 Restatement (Second) of Torts 288 B(1) (1965).  Plaintiffs have established by the affidavit of Johnny Hentrick, the driver of the truck in which plaintiffs were riding at the time of the collision, and the affidavit of Domingko Ifamilik that Mr. Ifamilik was in his left hand lane at the time he collided head-on with the truck driven by Mr. Hentrick, which was in its proper lane.  Defendants, in their response, offer nothing to excuse the conduct of Mr. Ifamilik in driving in the lane of the on-coming traffic.  Mr. Ifamilik's conduct constitutes negligence per se.

     Plaintiffs also establish, via the affidavit of Mr. Ifamilik, that he was acting within the scope of his employment with PTA at the time of the accident.  At the time of the accident and acting on instructions from his employer, he was delivering a PTA vehicle from the PTA vehicle pool located in Kolonia to the rock crushing plant in Uh, where it was to be used to transport workmen from Uh to a

[8 FSM Intrm. 62]

project in Kitti.  By the terms of section 4 of the Pohnpei State Sovereign Immunity Act, Pon. S.L. 2L-192-91, the state is liable for the negligent acts of its employees when the acts are done while acting within the scope of employment.  In their response, Pohnpei and PTA do not contest that Mr. Ifamilik made the trip from Kolonia to Uh the morning of the accident at the direction of his employer, and for his employer's benefit.  Instead, they contend that they are not liable for Mr. Ifamilik's negligence because his actions in causing the accident were "wanton" within the meaning of section 18 of the Pohnpei State Sovereign Immunity Act, Pon. S.L. 2L-192-91.  That section on its face appears to provide protection to the state employee, as opposed to the state, and governs the indemnity relationship between those two parties.  However, assuming for purposes of this motion only, and without deciding, that Pohnpei is not liable for the malicious acts of its employees, Pohnpei and PTA have failed to raise a genuine issue of fact on this point.

     Under Rule 56(e) of the Rules of Civil Procedure, affidavits supporting or opposing summary judgment "shall set forth such facts as would be admissible in evidence."  In their effort to create an issue of fact, Pohnpei and PTA look to a purported conflict between the deposition testimony of Mr. Ifamilik, and a statement made by his then-wife (now ex-wife) to Mr. Johnny Hentrick, the driver of the vehicle in which plaintiffs were riding.  Mrs. Ifamilik made the statement to Mr. Hentrick as part of an apology to him while he was in the hospital being treated for injuries sustained in the accident.  Mr. Ifamilik's deposition testimony was that he had been drinking Pohnpeian sakau and beer the night before the accident, and then went to sleep at 1 or 2 a.m.  Mrs. Ifamilik's statement was that her husband had admitted to her that he had been drinking heavily the night before the accident, and had not slept the night before the morning of the accident, which occurred at approximately 7:30 a.m.  Pohnpei and PTA take the position at page 4 of their response that "the actions of Domingko Ifamilik as stated by his now ex-wife, if true, constitute wanton behavior by Domingko Ifamilik which would negate liability, if any, on behalf of PTA and Pohnpei State."  Pohnpei and PTA do not maintain that Mr. Ifamilik was intoxicated the morning of the accident, even assuming that he had been drinking heavily the night before.  According to Plaintiffs' Pre-Trial Memorandum filed February 7, 1994, Mr. Ifamilik was cited for speeding, reckless driving, and no driver's license as a result of the accident. There is no indication based on the record before the court that Mr. Ifamilik was cited for driving while intoxicated.  Hence, Pohnpei and PTA's argument reduces to the contention that Mr. Ifamilik's conduct was "wanton" within the meaning of Section 18 of the Sovereign Immunity Act because he was driving while fatigued. Pohnpei and PTA offer no authority for the proposition that conduct of this order is "wanton."

     Mrs. Ifamilik's statement to Mr. Hentrick about what Mr. Ifamilik allegedly told her about his conduct the night before the accident is a hearsay statement not subject to any exception.  Contained within her statement is the statement of Mr. Ifamilik, which is not hearsay, because it is the admission of a party opponent under Rule 801(d)(2) of the Rules of Evidence.  As such, that statement, if made by Mr. Ifamilik to Mr. Hentrick himself, would be admissible.  However, Mrs. Ifamilik's report of it to Mr. Hentrick is not admissible, because her statement does not fall within the nonhearsay category of statements as defined by Rule 801(d), or any of the hearsay exceptions set out in Rule 803 or 804, including the "other exceptions" provisions ) 803(24) and 804(b)(6) ) of both rules.  Since Pohnpei and PTA rely on an inadmissible statement under Rule 56(e) to create an issue of fact, summary judgment in favor of plaintiffs is appropriate.

     For the reasons set out herein, the court, on May 5, 1997, granted plaintiffs' motion for summary judgment on the issue of liability of Pohnpei and PTA.

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