FSM SUPREME COURT TRIAL DIVISION

Cite as Amayo v. MJ Co., 14 FSM Intrm. 487 (Pon. 2006)

[14 FSM Intrm. 487]

ALFREDO AMAYO, and ELSA AMAYO, individually,

and as next friends of ALFIE AMAYO, APRIL

AMAYO, and JILLEEN AMAYO,

Plaintiffs,

vs.

MJ COMPANY, RON PANGELINAN, and IOANIS

PANUELO d/b/a IP ENTERPRISES,

Defendants.

CIVIL ACTION NO. 1999-091

ORDER DENYING SUMMARY JUDGMENT

Martin Yinug

Associate Justice

Decided: November 22, 2006

APPEARANCES:

For the Plaintiffs:      Daniel J. Berman, Esq.

                                 P.O. Box 2069

                                 Kolonia, Pohnpei   FM   96941

 

For the Defendant:  Ron Moroni, Esq.

       (Panuelo)         134 West Soledad Avenue, Suite 402

                                Hagatna, Guam   96910

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HEADNOTES

Civil Procedure ) Summary Judgment

     A court must deny a motion for summary judgment unless it finds there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law, but the court must view the facts presented and inferences made in the light most favorable to the nonmoving party, and the burden of showing a lack of triable issues of fact belongs to the moving party. Amayo v. MJ Co., 14 FSM Intrm. 487, 488 (Pon. 2006).

[14 FSM Intrm. 488]

Civil Procedure ) Summary Judgment

     When the facts lead to differing reasonable inferences, thus establishing a genuine issue of fact, summary judgment is not available. Amayo v. MJ Co., 14 FSM Intrm. 487, 488 (Pon. 2006).

Civil Procedure ) Summary Judgment

     Summary judgment will be denied when the court, having carefully reviewed the parties’ submissions,

concludes that genuine issues of material fact do exist. Amayo v. MJ Co., 14 FSM Intrm. 487, 488 (Pon. 2006).

Constitutional Law ) Judicial Guidance Clause; Custom and Tradition

     Customary business practice is distinguished from customary law, that is, from the "custom and tradition" enshrined in the Constitution. Amayo v. MJ Co., 14 FSM Intrm. 487, 489 (Pon. 2006).

Civil Procedure ) Summary Judgment; Torts ) Negligence

     A genuine issue of material fact precluding summary judgment is whether, even if the Pohnpei construction industry’s customary business practice did not include safety features that would have prevented or lessened the plaintiff’s injuries, one or more of those safety feature(s) was so simple or so inexpensive in relation to the possible consequences that the Pohnpei construction industry ought to have adopted them and should be liable for the failure to adopt them. Amayo v. MJ Co., 14 FSM Intrm. 487, 489 (Pon. 2006).

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COURT’S OPINION

MARTIN G. YINUG, Associate Justice:

     This comes before the court on defendant Ioanis Panuelo’s Motion for Summary Judgment, filed September 15, 2006; the plaintiffs’ Opposition to Motion for Summary Judgment, filed October 20, 2006; and Panuelo’s reply, filed October 23, 2006.

     A court must deny a motion for summary judgment unless it finds there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The court must view the facts presented and inferences made in the light most favorable to the nonmoving party. The burden of showing a lack of triable issues of fact belongs to the moving party. Taulung v. Kosrae, 8 FSM Intrm. 270, 272 (App. 1998); Nahnken of Nett v. United States, 7 FSM Intrm. 581, 586 (App. 1996); Nanpei v. Kihara, 7 FSM Intrm. 319, 323 (App. 1995); Adams v. Etscheit, 6 FSM Intrm. 580, 582 (App. 1994). When the facts lead to differing reasonable inferences, thus establishing a genuine issue of fact, summary judgment is not available. Adams v. Etscheit, 6 FSM Intrm. at 583.

     Panuelo contends that there is no genuine issue as to any material fact and moves for summary judgment that his alleged failure to provide a safe workplace was not the proximate cause of plaintiff Alfredo Amayo’s injuries and that Panuelo did not breach any duty of care he might have owed Amayo and that therefore he could not have been negligent. Panuelo further contends that the custom and usual practice in the construction industry on Pohnpei is not to provide any of the safety features that Amayo contends could have prevented his injuries and that there is no evidence that, even if implemented, those safety measures would have prevented Amayo’s injuries. To support these factual contentions, Panuelo offers his own affidavit, although he was not an eyewitness to Amayo’s accident.

     The summary judgment motion is denied. The court, having carefully reviewed the parties’ submissions, concludes that genuine issues of material fact do exist. These include:

[14 FSM Intrm. 489]

      1)   whether any (and which of any) workplace safety precautions would have prevented all of Amayo’s injuries or lessened the severity of those injuries;

     2)   what, at the time of Amayo’s accident, was the customary business practice (as distinguished from customary law, that is, from the "custom and tradition" enshrined in the Constitution) toward workplace safety in the Pohnpei construction industry;

      3)   whether, even if the Pohnpei construction industry’s customary business practice did not include safety features that would have prevented or lessened Amayo’s injuries, one or more of those safety feature(s) was so simple or so inexpensive in relation to the possible consequences that the Pohnpei construction industry ought to have adopted them and should be liable for the failure to adopt them, see, e.g., The T.J. Hooper, 60 F.2d 737, 740 (2d Cir. 1932) (Learned Hand, J.) and its progeny; and

     4)   whether, if any defendant is liable for Amayo’s injuries, Amayo himself was also negligent and, under the Pohnpei doctrine of comparative negligence, Amayo’s (and the other plaintiffs’) recovery ought to be reduced in proportion to Alfredo Amayo’s own fault.

      Since these factual issues may only be resolved through trial, Panuelo’s summary judgment motion must be denied.

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