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MARTIN G. YINUG, Associate Justice:
This matter was tried on the issues of liability and damages, if any, of defendants Municipality of Patta and its Police Force, Roro Res, Ruby Ponun, and Man Karute on the plaintiff’s wrongful death allegations; of liability and damages of defendants Roro Res and Man Karute on the civil rights allegations; and of the amount of damages caused by defendants Municipality of Patta and Ruby Ponun for their violation of plaintiff Noru Herman’s civil rights. Summary judgment for Patta’s and Ponun’s liability for civil rights violations was previously granted on December 27, 2002.
In this civil rights and wrongful death action, the plaintiffs seek damages consisting of Noru Herman’s burial and funeral expenses, loss of his income that contributed to the wife’s and children’s support, a loan for building a house that was never finished, the wife’s and children’s pain and suffering because of Noru Herman’s death, costs and attorney’s fees, and punitive damages.
At the start of trial the plaintiffs moved to dismiss all their claims against defendant Joseph Ioichy. That motion was granted without opposition.
Trial was held on April 8-9, 2003. Manuel Sailas, the Chuuk Hospital’s records supervisor; Karie Herman, Noru Herman’s widow; Harry Narruhn, former police supervisor; Noe Herman, Noru Herman’s son; Pinasia, Noru Herman’s mother; and Dr. Herlip Nowell testified. The depositions of Man Karute, Roro Res, and Ruby Ponun were admitted into evidence and made a part of the record without objection. The parties submitted post-trial briefs to supplement oral argument. On April 24, 2003, the
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plaintiffs filed their response to the defendants’ brief. In addition, the plaintiff’s filed a motion for attorney’s fees and costs. It was not opposed.
Based on the evidence and testimony presented, the court makes the following
Findings of Fact.
1. Noru Herman was born on June 6, 1953 and died on July 5, 1998.
2. Karie Herman is his widow.
3. In 1998, Noru Herman and his wife Karie resided in Sapota village on Patta with their minor children Nusia, Markos, Neo, Knor, and Lastman. Also residing with them and relying on Noru Herman’s support were two minor grandchildren.
4. Noru Herman was employed on Weno as a Chuuk state police officer. His biweekly pay at the time of his death was $144.11. His annual salary was about $3,500. He was the sole support for his household, except that a son on Guam, Jimmy, occasionally sent money. In addition to his wages, he frequently fished and farmed some crops, which also were provided to the household. Based upon the allotmnets from his salary and inferences drawn from the witnesses’ testimony, at least half of Noru Herman’s biweekly salary went to support his family.
5. On June 29, 1998, in the early evening when Noru Herman returned from Weno, he was intoxicated. Under a municipal ordinance it is unlawful to drink or be intoxicated on Patta.
6. Noru Herman was arrested for intoxication. Patta municipal police officer Man Karute and Patta Chief of Police Ruby Ponun performed the arrest. Noru Herman was asleep at the time. He did not offer any resistance.
7. The arresting officers took Noru Herman to the nearby municipal jail in Sapota village.
8. Roro Res was then Patta’s mayor. His house was across from the municipal jail.
9. It was the policy and practice of Patta municipality and the Patta municipal police to arrest intoxicated people and handcuff them to the pillar in the jail. These arrestees were not released until they were sober. The jail was a cement building that had no locked door and no bars on the windows. Usually a police officer would be present to watch the arrestee.
10. Both Mayor Roro Res and Chief of Police Ruby Ponun were policy-making officials.
11. Man Karute punched Noru Herman once in the head before he was placed in the jail.
12. Noru Herman was handcuffed to the pillar in the jail. He was handcuffed with his hands behind him and around the pillar behind him. The pillar was square. As Noru Herman could not remain standing that way eventually he was seated or lying on the floor with his hands handcuffed to the pillar behind him.
13. Mayor Res was later seen physically assaulting Noru while he was handcuffed to the pillar. He jumped up and down or applied strong pressure with his feet to Noru Herman’s chest or torso and to Noru Herman’s handcuffed hands.
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14. Noru Herman was released from the jail the next morning and his family took him home. He could not walk by himself. He was in pain, especially his arms and chest, and could not sleep. He kept asking for water to cool himself and often yelled out in pain. He had a laceration and his back was scratched and bruised.
15. On the following day, Noru Herman was taken to the Chuuk Hospital on Weno. It was a one hour boat ride from Patta to Weno.
16. While in the hospital Noru Herman was treated with antibiotics and morphine and other painkillers. Noru Herman died in the hospital.
17. The clinical cause of Noru Herman’s death was cardio-respiratory failure caused by bilateral pulmonary thrombosis and severe septicemia. The septicemia was caused by the infections of the wounds made by the handcuffs.
18. Noru Herman’s treatment while in the Patta municipal jail caused his bilateral pulmonary thrombosis and severe septicemia. Noru Herman’s treatment by Roro Res and Ruby Ponun while he was in the Patta municipal jail was thus the proximate cause of his death. There were no supervening or intervening causes of death.1
19. About $5,000 was spent on the wake, burial and funeral expenses, and the subsequent novena.
20. On March 21, 2001, Ruby Ponun was convicted in Chuuk State Supreme Court of assault on Noru Herman while he was detained in Patta jail. Man Karute was acquitted.
21. At all relevant times, Man Karute, Roro Res, and Ruby Ponun were acting under the color of authority of the Municipality of Patta.
Based upon these findings, the court makes the following
Conclusions of Law.
A. Civil Rights Cause of Action
1. Man Karute, Roro Res, and Ruby Ponun violated Herman’s civil right to be free from excessive force while detained by the Patta municipal police. This is a violation of 11 F.S.M.C. 701(3).
2. Roro Res’s and Ruby Ponun’s violations of Noru Herman’s civil rights were the proximate cause of his wrongful death.
3. Civil rights causes of action survive the victim’s death because if it did not then the national civil rights statute’s purpose would be thwarted. Estate of Mori v. Chuuk, 10 FSM Intrm. 6, 13 (Chk. 2001).
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4. A government entity may be held liable under 11 F.S.M.C. 701(3) when violations are caused by officials who are responsible for final policy making with respect to the action chosen from various alternatives. Plais v. Panuelo, 5 FSM Intrm. 179, 205-06 (Pon. 1991).
5. The Chief of Police Ruby Ponun was the policy maker for the Patta municipal police and Mayor Roro Res was the policy maker for the municipality. They either instituted or maintained the policy of handcuffing detainees to a pillar in the Patta municipal jail while they remained in custody.
B. Wrongful Death Cause of Action
6. "Wrongful death is a state law cause of action created by a Trust Territory statute, 6 TTC 201-203, that is state law pursuant to the FSM and Chuuk Constitutions’ transition clauses, FSM Const. art. XV, § 1; Chk. Const. art. XV, § 9." Estate of Mori, 10 FSM Intrm. at 13.
7. The FSM Supreme Court may exercise pendent jurisdiction over this wrongful death action because it arises from the same nucleus of operative fact and is such that it would be expected to be tried in the same judicial proceeding as Herman’s national civil rights claims. Id.
8. A detainee has a civil right to be free of excessive force while detained in the custody. Atesom v. Kukkun, 10 FSM Intrm. 19, 22 (Chk. 2001). The use of excessive force results from the arrest by a person having the authority to do so but accomplished by the use of unreasonable force. Conrad v. Kolonia Town, 8 FSM Intrm. 183, 191 (Pon. 1997).
9. When force is employed by a police officer in an apparent use of official authority, the governmental employer should be held responsible for what is done. Plais, 5 FSM Intrm. at 201. See also Alaphen v. Municipality of Moen, 2 FSM Intrm. 279, 280 (Truk 1986) (municipality held responsible for police use of excessive force and summary punishment handcuffing prisoner’s leg to a table and his arms behind his back, then kicking and abusing him).
10. The defendants (Patta municipality, Roro Res, and Ruby Ponun) owed Herman a duty of care to see that he was free from the use of excessive force while detained in municipal custody.
Based upon these findings and conclusions, the court determines the following
Liability and Damages.
A. Patta’s Sovereign Immunity
Patta asserts that in this action it is entitled to sovereign immunity under the Chuuk State Sovereign Immunity Act of 2000, Chk. S.L. No. 5-01-39, which became law on January 25, 2001.
However, Noru Herman’s detention and death and the filing of this suit took place before this law was enacted. The question of whether a statute acts retrospectively or only prospectively is one of legislative intent. 73 Am. Jur. 2d Statutes § 350, at 487 (1974). The Act was not intended to be retroactive because it provided that the Act’s "revision" should "not be construed to extinguish any rights or remedies of any party which may have arisen prior to such revision, unless specifically provided otherwise." Chk. S.L. No. 5-01-39, § 19. Furthermore, Patta has not shown how a state law could extinguish rights granted by an FSM statute, 11 F.S.M.C. 701 (civil rights cause of action), pursuant to rights guaranteed in the FSM Constitution, which is the supreme law of the land. The Chuuk State Sovereign Immunity Act of 2000 does not apply to this action.
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B. Civil Rights
The plaintiffs are awarded $30,000 for Roro Res’s violation of Noru Herman’s civil rights. Roro Res and Patta Municipality are jointly and severally liable for this amount. And the plaintiffs are awarded $2,500 for Ruby Ponun’s violation of Noru Herman’s civil rights. Ruby Ponun and Patta Municipality are jointly and severally liable for this amount.
These amounts include damages for Noru Herman’s pain and suffering before his death. Calculating damages for pain and suffering is difficult because no fixed rules exist to aid in that determination, which lies in the court’s sole discretion. Fabian v. Ting Hong Oceanic Enterprises, 8 FSM Intrm. 63, 66 (Chk. 1997); see also Amayo v. MJ Co., 10 FSM Intrm. 244, 252 (Pon. 2001); Elymore v. Walter, 9 FSM Intrm. 450, 459 (Pon. 2000) (in making an award for pain and suffering court guided by other FSM cases which have addressed the issue); Primo v. Refalopei, 7 FSM Intrm. 423, 434 (Pon. 1996).
The plaintiffs are also awarded $500 for Man Karute’s violation of Noru Herman’s civil rights. Man Karute and Patta Municipality are jointly and severally liable for this amount.
The civil rights damages, exclusive of attorney’s fees and costs, total $33,000.
2. Attorney’s Fees
The plaintiffs seek attorney’s fees of one-third of the total recovery or, in the alternative, $9,288 (77.4 hours at $120 per hour) and $1,606.09 in costs. The prevailing party in civil rights actions under 11 F.S.M.C. 701 is entitled to reasonable attorney fees and costs of suit as compensatory damages. Estate of Mori, 10 FSM Intrm. at 14; Davis v. Kutta, 8 FSM Intrm. 218, 220 (Chk. 1997); Davis v. Kutta, 7 FSM Intrm. 536, 549 (Chk. 1996) (relying on 11 F.S.M.C. 701(3)).
The plaintiffs note that an attorney’s fees award of one third of the recovery was made by the Davis court based on an attorney’s contingency fee agreement. They also note that they have a one third contingency fee agreement in this case. The usual method is to award fees based on the hourly rate. See, e.g., Tolenoa v. Kosrae, 3 FSM Intrm. 167, 173 (App. 1987); Bank of Guam v. O’Sonis, 9 FSM Intrm. 106, 110 (Chk. 1999) (in determining a reasonable attorney’s fees award, the fair hourly rate in the locality is used), aff’d sub nom., Hartman v. Bank of Guam, 10 FSM Intrm. 89 (App. 2001); Plais v. Panuelo, 5 FSM Intrm. 319, 322 (Pon. 1992) (hourly rate of $100 awarded). Thus the initial estimate of a reasonable attorney’s fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate. Davis, 8 FSM Intrm. at 220.
While a continency fee is not an arbitrary ceiling with respect to attorney’s fees recoverable under an 11 F.S.M.C. 701(3) civil rights action, Davis, 8 FSM Intrm. at 222, neither is it a floor. In Davis, the contingency fee was used as a basis for an attorney fee award because there were no contemporaneous records of the time the attorney had spent on the case. The court nevertheless noted that "[t]he point of departure for determining a reasonable fee under 11 F.S.M.C. 701(3) is to look at the amount of time spent," and warned that "[i]n civil rights litigation brought pursuant to 11 F.S.M.C. 701, counsel should maintain careful records of time actually spent, notwithstanding the existence of any contingency fee agreement." Davis, 8 FSM Intrm. at 224.
The detailed hourly fees requested in this case are reasonable as are the costs sought and will thus be awarded. The plaintiffs are awarded $10,894.09 in reasonable fees and costs as compensatory
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damages under 11 F.S.M.C. 701(3). The liability for this $10,894.09 will be assessed upon the defendants in proportion to their total liability on the rest of the judgment. Davis, 8 FSM Intrm. at 224.
C. Wrongful Death
Roro Res and Ruby Ponun and Patta Municipality are liable for the wrongful death of Noru Herman as it was their wrongful acts which caused his death. 6 TTC 201(1).
Wrongful death actions are brought for the exclusive benefit of the deceased’s "surviving spouse, the children and other next of kin." 6 TTC 202. The pecuniary injury consists of the $5,000 in funeral expenses (including the novena) and $26,225 in earnings that Noru Herman would have used to support his family, had he lived. The future earnings calculation is based on Noru Herman’s continued employment and earnings at the same rate until he reached the FSM retirement age of 60, 53 F.S.M.C. 801(2)(b), in June 2013. Cf. Mathebei v. Ting Hong Oceanic Enterprises, 9 FSM Intrm. 23, 27 (Yap 1999) (award of lost earning capacity damages calculated until retirement age). That sum would equal $52,500. Since it was estimated that Herman would have used at least half of this to support his spouse, children and other next of kin, half of $52,500 is hereby awarded.
The plaintiffs also asked for the cost of a loan to finish building a cement house Noru Herman started before his death. The court can seen no justification for this as any loan would have been repaid out of Noru Herman’s earnings had he lived. The court has just awarded these damages.
Ruby Ponun, Roro Res, and Patta Municipality are jointly and severally liable for the $31,225 of wrongful death damages.
D. Punitive Damages
The plaintiffs also seek punitive damages against all defendants. As a matter of public policy, governments are generally not liable for punitive damages. See Atesom, 10 FSM Intrm. at 24; Kaminaga v. Chuuk, 7 FSM Intrm. 272, 274 (Chk. S. Ct. Tr. 1995) (as a matter of law, 6 TTC 253, punitive damages are not recoverable against State of Chuuk); Damarlane v. United States, 6 FSM Intrm. 357, 361 (Pon. 1994) (under international law foreign governments not liable for punitive damages); see also 22 Am. Jur. 2d Damages § 800 (rev. ed. 1988); 57 Am. Jur. 2d Municipal, County, School and State Tort Liability §§ 648-53 (rev. ed. 2001) (a municipality is not subject to punitive damages unless a statute specifically provides that it is).
Under the Chuuk State Sovereign Immunity Act of 2000, punitive (or exemplary) damages not greater than the compensatory damages and of not more than $20,000 may be awarded against the state or a municipality, but only if the injury was as a result of a government employee or agent acting under color of authority who violated the individual rights secured by the Chuuk Constitution. Chk. S.L. No. 5-01-39, §§ 5(e), 6. That would appear to describe this case. However, as previously noted, the Chuuk State Sovereign Immunity Act of 2000 is not retrospective ) it does not apply to claims that arose before its enactment. It only applies to claims that arose after its enactment. Chk. S.L. No. 5-01-39, § 18. Therefore prior law applies. Prior law barred any punitive damage awards against a government. 6 TTC 253;2 Atesom, 10 FSM Intrm. at 24; Kaminaga, 7 FSM Intrm. at 274. Thus no punitive damages can be awarded against Patta Municipality.
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While punitive damages are not permitted against Patta Municipality, they can be awarded and are justified against Roro Res and Ruby Ponun by the wanton, malicious, and deliberately violent nature of their treatment of Noru Herman in detention. Atesom, 10 FSM Intrm. at 24. Since the purpose of punitive damages is to punish the tortfeasor, not to compensate the victim, Elymore v. Walter, 10 FSM Intrm. 166, 168 (Pon. 2001), a defendant’s financial condition is relevant to a punitive damages claim because the defendant’s financial condition has a bearing on the amount of punitive damages to be awarded. Elymore v. Walter, 9 FSM Intrm. 251, 253 (Pon. 1999). When a defendant with no net worth and no income was liable for punitive damages in addition to a substantial damage award, only a nominal punitive damage award of $1 is proper. Bank of Guam v. O’Sonis, 9 FSM Intrm. 106, 113 (Chk. 1999). While the net worth and income of defendants Res and Ponun is not known, it is known that they are employed and thus have an income ) according to their depositions Roro Res is now employed at the Chuuk Agriculture Department and Ruby Ponun is now a Patta police officer. It is therefore appropriate to award more than just nominal punitive damages. Punitive damages of $100 each are therefore assessed against Roro Res and against Ruby Ponun.
Ruby Ponun, Roro Res, and Patta Municipality are all jointly and severally liable for $31,225 for Noru Herman’s wrongful death; and, for violation of Noru Herman’s civil rights, Roro Res and Patta Municipality are jointly and severally liable for $30,000 and fees and costs of $7,729.86; Ruby Ponun and Patta Municipality are jointly and severally liable for $2,500 and fees and costs of $3,079.68; and Man Karute and Patta Municipality are jointly and severally liable for $500 and fees and costs of $84.55. Ruby Ponun is solely liable for $100 in punitive damages. Roro Res is solely liable for $100 in punitive damages. The plaintiffs’ combined award, including fees and costs, is $75,319.09.
Let judgment be entered accordingly.
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1. The lack of quality medical care, or that different medical treatment might have led to a different result, or even medical malpractice by hospital staff does not relieve a tortfeasor of his responsibility for damages, because any injuries that might have been caused by the medical treatment or lack thereof flowed naturally from the tortfeasor’s own acts. Primo v. Refalopei, 7 FSM Intrm. 423, 429 (Pon. 1996).
2. Until the enactment of Chk. S.L. No. 5-01-39, this Trust Territory Code provision was a part of Chuuk state law due to the operation of the Chuuk Constitution Transition Clause, Chk. Const. art. XV, § 9.