FSM SUPREME COURT
TRIAL DIVISION
Cite as Fabian v. Ting Hong Oceanic Enterprises ,
8 FSM Intrm. 63 (Chk. 1997)

[8 FSM Intrm. 63]

KERIO FABIAN,
Plaintiff,

vs.

TING HONG OCEANIC ENTERPRISES CO., LTD.,
Defendant.

CIVIL ACTION NO. 1996-1025

MEMORANDUM OF DECISION

Trial:  February 17-18, 1997
Decided:  February 18, 1997
Opinion Entered:  May 15, 1997

APPEARANCES:
For the Plaintiff:          Kerio Fabian, pro se

For the Defendant:     Andrew Clayton, Esq.
                       Law Offices of Hollinrake & Saimon
                       P.O. Box 1450
                       Kolonia, Pohnpei FM 96941

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HEADNOTES
Choice of Law; Torts ) Negligence
     Because tort law is primarily state law a negligence action will be governed by the substantive state law and the FSM Supreme Court's duty is to try to apply the law the same way the highest state court would.  Fabian v. Ting Hong Oceanic Enterprises, 8 FSM Intrm. 63, 64-65 (Chk. 1997).

Torts ) Negligence
     Under Chuuk state law the elements of actionable negligence are the breach of a duty on the part of one person to protect another from injury, and that breach is the proximate cause of an injury to the person to whom the duty is owed, which may be summarized as:  a duty of care, a breach of that duty, which breach proximately causes damages.  Fabian v. Ting Hong Oceanic Enterprises, 8 FSM Intrm. 63, 65 (Chk. 1997).

Employer ) Employee; Torts ) Duty of Care
     An employer owes a duty of care toward its employee to see that the employee is properly educated about the operation of clearly dangerous machinery.  Fabian v. Ting Hong Oceanic Enterprises, 8 FSM Intrm. 63, 65 (Chk. 1997).

Employer ) Employee; Torts ) Duty of Care
     Where the employer is aware that unsafe procedures are being used and safe procedures are

[8 FSM Intrm. 64]

possible, but the employer does not demand them, the employer breaches its duty of care toward its employees.  Fabian v. Ting Hong Oceanic Enterprises, 8 FSM Intrm. 63, 65 (Chk. 1997).

Equity ) Laches, Estoppel and Waiver
     Laches is a plaintiff's inexcusable delay or lack of diligence in bringing suit, and resulting prejudice to the defendant.  Fabian v. Ting Hong Oceanic Enterprises, 8 FSM Intrm. 63, 65 (Chk. 1997).

Equity ) Laches, Estoppel and Waiver
     The affirmative defense of estoppel requires a long non-assertion of one's rights by the plaintiff and the defendant's reliance on that non-assertion to its detriment.  There can be no estoppel where there is no loss, injury, damage, detriment, or prejudice to the party claiming it.  Fabian v. Ting Hong Oceanic Enterprises, 8 FSM Intrm. 63, 65-66 (Chk. 1997).

Torts ) Comparative Negligence
     Under the "pure" form of comparative negligence, which is a defense available in Chuuk, a 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, but the plaintiff may still recover for all of the harm attributable to the defendant's wrongdoing even if plaintiff's negligence was greater than the defendant's.  Fabian v. Ting Hong Oceanic Enterprises, 8 FSM Intrm. 63, 66 (Chk. 1997).

Torts ) Damages
     Calculating damages for pain and suffering is a difficult task because no fixed rules exist to aid in that determination which lies in the sole discretion of the trier of fact, and in making the calculation, it is proper to consider not only past pain but future pain. Fabian v. Ting Hong Oceanic Enterprises, 8 FSM Intrm. 63, 66 (Chk. 1997).

Torts ) Damages
     Punitive damages are not recoverable for ordinary negligence.  Fabian v. Ting Hong Oceanic Enterprises, 8 FSM Intrm. 63, 67 (Chk. 1997).

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COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     This was an action in negligence.  At the conclusion of trial I delivered my findings of fact and conclusions of law orally, and granted judgment for the plaintiff, Kerio Fabian.  The purpose of this memorandum is to memorialize those findings and conclusions and to explain my reasoning further.

     Ting Hong, a foreign corporation, employed Fabian, a citizen of Chuuk, at its ice crusher on Tonoas, Chuuk.  The ice crusher was in a small housing and Fabian was working within that housing on the day of the accident.  One hundred pound blocks of ice came down a slide incline into the housing.  It was Fabian's duty to move those blocks into the ice crusher.  While doing this on May 11, 1994, he slipped and his right foot went into the ice crusher causing the injury complained of.

I.  Negligence
     The court's jurisdiction is based on diversity of citizenship.  FSM Const. art. XI, § 6(b).  Tort law is primarily state law.  This action is thus governed by the substantive law of the State of Chuuk and

[8 FSM Intrm. 65]

my duty is to try to apply the law the same way the highest state court would. Nethon v. Mobil Oil Micronesia, Inc., 6 FSM Intrm. 451, 455 (Chk. 1994).  Under Chuuk state law the elements of actionable negligence are "the breach of a duty on the part of one person to protect another from injury," and that breach is the proximate cause of "an injury to the person to whom the duty is owed."  Ludwig v. Mailo, 5 FSM Intrm. 256, 259 (Chk. S. Ct. Tr. 1992).  These may be summarized as:  a duty of care, a breach of that duty, which breach proximately causes damages.

     Was there a duty on Ting Hong's part?  I answered that, yes.  It owed a duty of care toward the employee to see that the employee was properly educated about the operation of clearly dangerous machinery.  Cf. Epiti v. Chuuk, 5 FSM Intrm. 162, 166 (Chk. S. Ct. Tr. 1991) (reasonable employer has responsibility to create safe working conditions); accord Koike v. Ponape Rock Products, Inc., 3 FSM Intrm. 57, 68-69 (Pon. S. Ct. Tr. 1986) (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).

     Was this duty of care breached?  I found that it was.  There was no evidence that Ting Hong had ever instructed or warned Fabian about the proper and safe operation of the machinery.  Ting Hong had required the employee to wear rubber boots, the purpose of which is not clear ) that was not in testimony.  On exhibits one and two (large sketches of the ice crusher housing from the outside and a floor plan of its interior, respectively), the path that the ice came in on is called the ice aisle.  On each side of the path was what was described in testimony as a fence, a low pipe barricade, maybe two or two and a half feet high.  The employee in the path just up the slide from Fabian, however, had to step into that aisle in order to perform his job of moving the ice along.  Fabian did the same thing. Fabian's supervisors had seen him inside the fence on the aisle on previous occasions and had said nothing.  The ice aisle was often wet from the ice.

     Was this breach of duty the proximate cause of the injury?  Yes, unsafe procedures were used.  Safe procedures were possible, but were not demanded. The injury to Fabian's right foot was the loss of the big toe and the two toes next to it.  The amputation is not traverse, but rather diagonal so that the base of the big toe is entirely gone.

II.  Affirmative Defenses
     Ting Hong presented three affirmative defenses.  The first was laches.  Laches is a plaintiff's "inexcusable delay or lack of diligence in bringing suit, and resulting prejudice to the defendant."  Nahnken of Nett v. Pohnpei, 7 FSM Intrm. 485, 489 (App. 1996).  The statute of limitation for personal injury is only two years.  6 TTC 303(4).  This action was brought on May 9, 1996, just two days before its expiration.  I did not find that was an inexcusable delay.

     The second requirement for laches is prejudice to the defendant such it would be unjust to permit the claimant to succeed.  Id. at 491.  Ting Hong asserts prejudice in that about nineteen or twenty months after the accident, the ice crusher plant was closed and the equipment moved to Yap.  There was also general statement that certain witnesses moved on and were no longer available. There was no testimony or adequate showing that some essential witness was unavailable.  As far as the machinery's absence was concerned, Ting Hong presented as a witness the engineer who installed the ice crusher.  He prepared exhibits one, two and three (another diagram of the ice crusher plant), which were admitted into evidence.  There was no showing that they do not adequately show the machine and its location and operation so that I can understand the incident. Thus even if the delay were inexcusable there was no resulting prejudice to Ting Hong.

     The next affirmative defense was estoppel.  Estoppel requires a long non-assertion of one's rights by the plaintiff and the defendant has relied on that non-assertion to its detriment.  See NIH Corp.

[8 FSM Intrm. 66]

v. FSM, 5 FSM Intrm. 411, 414 (Pon. 1992); see also 28 Am. Jur. 2d Estoppel and Waiver §§ 27, 35 (1966) (estoppel is reliance by someone who had the right to rely on another's words or conduct and who thereby changed his position in such a way that he would now suffer injury if the contrary assertion is allowed).  I did not find that a long non-assertion had occurred.  But even if it had, Ting Hong did not rely upon it.  There was no evidence that Ting Hong's decision to close and move the ice crusher was because Fabian had not asserted his claim, or that Fabian's non-assertion caused Ting Hong to change its position to its detriment.  "[T]here can be no estoppel where there is no loss, injury, damage, detriment, or prejudice to the party claiming it."  28 Am. Jur. 2d Estoppel and Waiver § 78, at 716 (1966).

     The third defense was comparative negligence.  The "pure" form of comparative negligence is available as a defense in this state.  Epiti, 5 FSM Intrm. at 167-68 (defendant entitled to a proportional reduction in any damage award upon proof that the plaintiff's negligence was in part the cause of his injuries; plaintiff may still recover "for all of the harm attributable to the wrongdoing of the defendant" even if plaintiff's negligence was greater than the defendant's); see also 57B Am. Jur. 2d Negligence § 1141, at 76 (1989) (under "pure" comparative negligence "a plaintiff who is 99% negligent may recover 1% of his damages"). Fabian had worked for Ting Hong for over two years at the time of the accident and had been on the duty at the ice crusher for a considerable period prior to the accident.  Fabian was familiar with the machinery and that it was manifestly dangerous.  This defense was therefore allowed to the extent that I found that the injury was caused through the negligence of both parties, forty per cent of which I found attributable to Fabian.

III. Damages
     In fixing the damages, I mentioned the unusual circumstances of this case. First, there were no special damages at all ) hospital bills, lost wages, anything of that sort.  The second point was that Fabian did not testify as to the injury; that is, he did not even say that it hurts.  I therefore determined the damages based on the surrounding circumstances that were uncontested.  In arriving at this I carefully consulted the cases in the state courts and in the FSM Supreme Court.  One of those cases was a Chuuk State Supreme Court case, in which the injury was the loss of an arm.  Epiti, 5 FSM Intrm. at 169-70.

     Calculating damages for pain and suffering is a difficult task because no fixed rules exist to aid in that determination which lies in the sole discretion of the trier of fact.  Id. at 169.  Therefore I want to say carefully what items I considered concerning Fabian's pain and the suffering.  First of all, it was twenty minutes before his leg could be freed from the machinery.  Fabian then spent one month in the hospital following the injury.  Although he was paid during this time and thus Ting Hong could make demands on him, he remained at home for an additional two months before returning to work.  (He continued thereafter to work for Ting Hong up until the time it left Chuuk.)

     In determining pain and suffering, it is proper to consider not only past pain but future pain.  Id. at 170.  In this case, Fabian testified that he cannot walk distances and it is now almost three years since the loss of part of his foot.  Also as a part of pain and suffering, I have considered his disfigurement, which is serious.  To seriously disfigure means that it is something that affects the appearance or deforms.  The foot is unsightly.

     When considering loss of enjoyment of life as an element of pain and suffering, I took Fabian's change of lifestyle into account.  This is a society that normally does not wear shoes and socks.  But Fabian can be expected to cover his foot if at all possible, especially when he is outdoors.  The most common footwear here are zoris, which he cannot wear.  He also testified to a number of things that he can no longer do because of the injury.  All of these are things that are commonly expected of

[8 FSM Intrm. 67]

Chuukese males.  He cannot climb trees.  He cannot walk distances, so he remains home.  Walking in shoes hurts his foot.  Specially made shoes might alleviate that, but they are not available on Chuuk.  His foot is painful if it is in a cool place, and the example he gave was fishing.  He cannot lift heavy things.

     I therefore concluded that the damages for pain and suffering was thirty thousand dollars.  Because of Fabian's negligence that sum was reduced by forty per cent to eighteen thousand dollars.  There was no basis for awarding punitive damages.  Punitive damages are not recoverable for ordinary negligence.  Elwise v. Bonneville Constr. Co., 6 FSM Intrm. 570, 572 (Pon. 1994) (citing Meitou v. Uwera, 5 FSM Intrm. 139, 146 (Chk. S. Ct. Tr. 1991)).  Judgment was entered accordingly on February 21, 1997.
                                                                                                                                                                                                                                                                                                           
committal without the calling of witnesses, you must: ensure that the accused receives in open Court a set of documents consisting of one summary of the statements of the prosecution witnesses, one copy of the list of exhibits, and one copy of the documentary exhibits; endorse on your copy that the accused has received his or her set of documents; commit the accused to the Supreme Court for trial in custody or on bail as appropriate; and forward the remaining set of documents along with a record of the proceedings in Form 21 of the Schedule of the Magistrates’ Courts Act to the Registrar of the Supreme Court: s42(5) Magistrates’ Courts Act. H4.2 Evidence of Sick or Absent Witnesses If it appears to you that a person able to give material evidence either for or against the accused is so ill as to be unable to attend Court or is about to leave the Kingdom for a period extending beyond the time when the accused would be tried, you may take the evidence of such person at the place where the person is lying ill or in the case of a person about to leave the Kingdom in open Court: s44(1) Magistrates’ Courts Act. Before taking this evidence, you must give the prosecutor and the accused reasonable notice in writing, specifying the time and place where the evidence will be given as in Form 16 of the Schedule to the Magistrates’ Courts Act. The prosecution and accused must then have the opportunity to attend and cross-examine the person whose evidence is being taken: s44(1) Magistrates’ Courts Act. If the accused is in custody, you may order the custodian to convey the accused to the place and time where the evidence is being taken: s44(2) Magistrates’ Courts Act. Record of Evidence Taken Any evidence taken from sick or absent witnesses must state the date and place where it was taken, the reason for taking it, and the names of those present when it was taken: s45 Magistrates’ Courts Act. In indictable cases, 2 transcribed copies of sick or absent witnesses must be included in the copies of the record of the preliminary inquiry forwarded to the Registrar of the Supreme Court or the Chief Police Magistrate and may be used as evidence at trial unless it is proved that the person who gave the evidence has returned to the Kingdom or has recovered from illness, so as to be able to present evidence in person: s45 Magistrates’ Courts Act. H4.3 Exhibits All exhibits must be labelled at the preliminary inquiry with the name of the case and must be numbered consecutively in the order they are produced in Court: s43(1) Magist