CHUUK STATE SUPREME COURT APPELLATE DIVISION

Cite as Kileto v. Chuuk, 15 FSM Intrm. 16 (Chk. S. Ct. App. 2007)

[15 FSM Intrm. 16]

RUFINA KILETO,

Appellant,

vs.

STATE OF CHUUK,

Appellee.

CIVIL APPEAL NO. 02-2000

OPINION

Argued:  May 2, 2007

Decided:  May 8, 2007

BEFORE:

Hon. Camillo Noket, Chief Justice

Hon. Benjamin Rodriguez, Temporary Justice*

Hon. Repeat Samuel, Temporary Justice**
 

*Associate Justice, Pohnpei Supreme Court, Kolonia, Pohnpei

**Attorney at Law, Weno, Chuuk
 

APPEARANCES:

For the Appellant:   Michael Marco

                               P.O. Box 1578

                               Weno, Chuuk FM 96942
 

For the Appellee:   Julius Sapelalut, Esq. (argued)

                               Assistant Attorney General

                               P.O. Box 189

                               Weno, Chuuk FM 96942

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HEADNOTES

Appellate Review ) Standard of Review ) Civil Cases

      When a trial court decision was based on an erroneous conclusion of law, the appellate court will reverse and remand the case to the trial court for further proceedings. Kileto v. Chuuk, 15 FSM Intrm. 16, 17 (Chk. S. Ct. App. 2007).

Torts ) Negligence

     The elements of actionable negligence are the breach of a duty of care 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. Kileto v. Chuuk, 15 FSM Intrm. 16, 17 (Chk. S. Ct. App. 2007).

[15 FSM Intrm. 17]

Torts ) Contributory Negligence and Assumption of the Risk; Torts ) Duty of Care

     "Assumption of the risk" is a common law defense to negligence, which acts as a complete bar to the plaintiff’s recovery because it relieves the defendant of any duty of care to the plaintiff. Kileto v. Chuuk, 15 FSM Intrm. 16, 17-18 (Chk. S. Ct. App. 2007).

Torts ) Contributory Negligence and Assumption of the Risk

    The assumption of the risk defense is contrary to the traditional Chuukese concepts of responsibility and is generally not available in Chuuk. Kileto v. Chuuk, 15 FSM Intrm. 16, 18 (Chk. S. Ct. App. 2007).

Torts ) Contributory Negligence and Assumption of the Risk

     Those who dash in to save their own property from a peril created by the defendant’s negligence, do not assume the risk where the alternative is to allow the threatened harm to occur. Kileto v. Chuuk, 15 FSM Intrm. 16, 18 (Chk. S. Ct. App. 2007).

Torts ) Comparative Negligence

     Comparative fault or comparative negligence is the rule in Chuuk. Under the "pure system" of comparative negligence, which has been recognized as an available defense 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 the plaintiff’s injuries. Kileto v. Chuuk, 15 FSM Intrm. 16, 18 (Chk. S. Ct. App. 2007).

Appellate Review

     In a case that has been reversed and remanded a new trial may not be necessary when a complete trial transcript was prepared for the appeal, but if the trial court deems it necessary, it may take further evidence. Kileto v. Chuuk, 15 FSM Intrm. 16, 18 (Chk. S. Ct. App. 2007).

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COURT’S OPINION

CAMILLO NOKET, Chief Justice:

      This appeal is from a judgment in favor of the defendant Chuuk State Government in Civil Action No. 76-1998, in which the plaintiff, Rufina Kileto, sought damages for injuries and the subsequent amputation of her fingertip that occurred when she shut off the electrical power to her home to protect her property from sudden power fluctuations in the electrical supply.  Since the trial court decision was based on an erroneous conclusion of law, we reverse and remand the case to the trial court for further proceedings.

      Trial was held in this case on July 22, and August 27, 1998 and January 13, 1999.  The trial court entered its decision on April 5, 2000, and held that Kileto had failed to prove that the State’s alleged negligence was the proximate cause of her injuries because Kileto "was assuming the risk by handling the situation which exposed her to a greater danger." Order at 2, Civ. No. 76-1998 (Apr. 5, 2000).  This appeal followed. Kileto filed an opening brief, and although the State of Chuuk failed to file an answering brief, it was permitted to present argument.

      In Chuuk, the elements of actionable negligence are "the breach of a duty [of care] 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).  "Assumption of the risk" is a common law defense to negligence, which acts as a complete

[15 FSM Intrm. 18]

bar to the plaintiff’s recovery because it relieves the defendant of any duty of care to the plaintiff.  Prosser and Keeton on the Law of Torts § 68, at 480-81 (W. Page Keeton et al. eds., 5th ed. 1984).  The trial court erroneously concluded that a defendant’s assumption of the risk negated the causation element.

      However, the assumption of the risk defense is contrary to the traditional Chuukese concepts of responsibility and is generally not available in Chuuk. Epiti v. Chuuk, 5 FSM Intrm. 162, 167 (Chk. S. Ct. Tr. 1991) (absolute defenses of assumption of the risk and contributory negligence are not available in Chuuk). Furthermore, even if assumption of the risk were an available defense in Chuuk, the trial court misapplied the defense. "Those who dash in to save their own property . . . from a peril created by the defendant’s negligence, do not assume the risk where the alternative is to allow the threatened harm to occur." Prosser and Keeton, supra, § 68, at 491.

      Comparative fault or comparative negligence is the rule.  Under the "pure system" of comparative negligence, which has been recognized as an available defense 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 the plaintiff’s injuries. Epiti, 5 FSM Intrm. at 167-68.  The trial court thus erroneously applied an assumption of the risk defense to the plaintiff’s claims when it should have considered comparative negligence.

      Accordingly, the trial court decision is reversed.  On remand, the trial court shall determine whether the defendant State owed the plaintiff Kileto a duty and breached that duty, and, if so, whether that breach caused, in whole or in part, Kileto’s injuries.  If the trial court determines the State was negligent, the trial court shall then reduce the amount of damages by whatever percentage, if any, that Kileto’s damages were the result of her own fault or negligence.  A new trial may not be necessary. A complete trial transcript was prepared for this appeal.  That may be sufficient.  But if the trial court deems it necessary, it may take further evidence.  See Rosokow v. Bob, 11 FSM Intrm. 210, 217 (Chk. S. Ct. App. 2002).

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