FSM SUPREME COURT TRIAL DIVISION

Cite as Ruben v. Chuuk, 18 FSM Intrm. 425 (Chk. 2012)

[18 FSM R. 425]

KINO RUBEN, next of kin to Ruben Kino Ruben

Plaintiff,

vs.

CHUUK STATE, JIMMY JOSEPH, GIBSON KUN,
STEPHAN SOS, JASON KONINOS, and KERSON
RIZAL in his official capacity as Director of Public
Safety, Department of Public Safety,

Defendants.

CIVIL ACTION NO. 2011-1005

ORDER GRANTING SUMMARY JUDGMENT

Martin G. Yinug
Chief Justice

Decided: October 16, 2012

APPEARANCES:

        For the Plaintiff:                   Joseph C. Razzano, Esq. (pro hac vice)
                                                    Teker Torres & Teker, P.C.
                                                    Suite 2A, 130 Aspinall Avenue
                                                    Hagatna, Guam 96910

        For the Defendants:            Jayson Robert
                                                    Deputy Attorney General
                                                    Aaron L. Warren, Esq. (supervising attorney)
                                                    Assistant Attorney General
                                                    Office of the Chuuk Attorney General
                                                    P.O. Box 1050
                                                    Weno, Chuuk FM 96942

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HEADNOTES

Civil Procedure – Summary Judgment – Grounds

A court must deny a summary judgment motion unless the court, viewing the facts presented and the inferences made in the light most favorable to the non-moving party, finds that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Ruben v. Chuuk, 18 FSM Intrm. 425, 428 (Chk. 2012).

Civil Procedure – Judgment on the Pleadings; Civil Procedure – Summary Judgment

If matters outside the pleadings are presented along with a motion for judgment on the pleadings,

[18 FSM R. 426]

that motion becomes a summary judgment motion. Ruben v. Chuuk, 18 FSM Intrm. 425, 428 (Chk. 2012).

Civil Rights; Constitutional Law – Due Process; Torts – Duty of Care

The police, as state officers, have no constitutional duty to rescue persons because due process considerations are not implicated when the state fails to help someone already in danger. Ruben v. Chuuk, 18 FSM Intrm. 425, 429 (Chk. 2012).

Civil Rights; Constitutional Law – Due Process

A police officer's threat of arrest does not constitute a violation of constitutional rights, and merely investigating a suspicious occurrence or merely patrolling the area where someone fled is not a violation of any clearly established constitutional right. Ruben v. Chuuk, 18 FSM Intrm. 425, 429 (Chk. 2012).

Torts – Negligence

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. Ruben v. Chuuk, 18 FSM Intrm. 425, 430 (Chk. 2012).

Civil Procedure – Summary Judgment – Grounds; Torts – Negligence

When a plaintiff has failed to make a showing sufficient to establish the existence of any element essential to its case on which it will bear the burden of proof at trial, summary judgment in the defendant's favor is appropriate. Ruben v. Chuuk, 18 FSM Intrm. 425, 430 (Chk. 2012).

Torts – Duty of Care

As a general rule, a person has no legal duty to control the conduct of another. An affirmative duty to aid or protect arises only when a special relationship exists between the parties. Ruben v. Chuuk, 18 FSM Intrm. 425, 430 (Chk. 2012).

Common Law

Statute law authorizes the court to consider the common law as expressed in the ALI Restatements of Law. Ruben v. Chuuk, 18 FSM Intrm. 425, 430 n.1 (Chk. 2012).

Statutes; Transition of Authority

A statute in force in Chuuk on the Chuuk Constitution's effective date continues in effect to the extent it is consistent with the Chuuk Constitution or until it is amended or repealed. Thus 1TTC 103 is still effective statutory law in Chuuk. Ruben v. Chuuk, 18 FSM Intrm. 425, 430 n.1 (Chk. 2012).

Criminal Law and Procedure – Arrest and Custody; Torts – Duty of Care

A special relationship creating a duty of care exists when a person is in police custody, but when an officer pursues but does not have any actual contact with the person pursued, that person was never seized or in custody. Ruben v. Chuuk, 18 FSM Intrm. 425, 430 (Chk. 2012).

Torts – Duty of Care; Torts – Governmental Liability

When a person was never in police custody, the "deliberate indifference" duty of care standard for the liability of law enforcement officials towards prisoners does not apply. Ruben v. Chuuk, 18 FSM Intrm. 425, 430 (Chk. 2012).

Torts – Duty of Care

When a person is in police custody, a special duty arises because the police would have then assumed responsibility for the person as he would not be able to protect himself. Ruben v. Chuuk, 18

[18 FSM R. 427]

FSM Intrm. 425, 430 (Chk. 2012).

Torts – Duty of Care

The police, by giving up their search for him and leaving the area, did not breach any special duty they might have had toward a person they had seen running away. Ruben v. Chuuk, 18 FSM Intrm. 425, 431 (Chk. 2012).

Torts – Duty of Care

When a person has created the dangerous situation himself, other persons have no duty to rescue him unless they had a special relationship with him – a special duty towards him. Ruben v. Chuuk, 18 FSM Intrm. 425, 431 (Chk. 2012).

Torts – Duty of Care; Torts – Governmental Liability

The police are generally not liable to a plaintiff who injures himself fleeing the police. Ruben v. Chuuk, 18 FSM Intrm. 425, 431 (Chk. 2012).

Civil Procedure – Summary Judgment – Grounds; Torts – Duty of Care; Torts – Negligence

When there is no factual basis for the existence of a special duty, the defendants' summary judgment motion should be granted since one of the essential elements of negligence cannot be proven. Ruben v. Chuuk, 18 FSM Intrm. 425, 431 (Chk. 2012).

Torts – Causation; Torts – Wrongful Death

When it was the decedent's own actions that were the proximate cause of his death, the causation element of wrongful death cannot be proven. Ruben v. Chuuk, 18 FSM Intrm. 425, 431 (Chk. 2012).

Torts – Governmental Liability; Torts – Respondeat Superior

Since supervisory liability requires proof of the underlying liability of the officers being supervised, when the officers on the scene cannot be held liable because they did not breach any duty owed to the decedent and because they were not the proximate cause of his death, the Director of Public Safety (and Chuuk as respondeat superior) cannot be held liable either. Ruben v. Chuuk, 18 FSM Intrm. 425, 431 (Chk. 2012).

Torts – Damages – Punitive

When the court has dismissed the underlying causes of action for compensatory damages, the punitive damages claim must also be dismissed because punitive damages are not an independent cause of action but must rest upon some other, underlying cause of action as merely an element of damages in the underlying cause of action. Ruben v. Chuuk, 18 FSM Intrm. 425, 431 (Chk. 2012).

Civil Procedure – Summary Judgment – Grounds; Torts – Wrongful Death

When a plaintiff cannot prove that the defendants had a duty toward the decedent that the defendants breached, the plaintiff cannot prove an essential element of his case and the defendants must be granted summary judgment. Ruben v. Chuuk, 18 FSM Intrm. 425, 431 (Chk. 2012).

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COURT'S OPINION

MARTIN G. YINUG, Chief Justice:

This comes before the court on the defendants' Motion to Dismiss and Motion for Judgment on

[18 FSM R. 428]

the Pleadings with Points and Authorities, filed February 29, 2012; and the plaintiff's Opposition to Motion for Judgment on the Pleadings and Opposition to Motion to Dismiss, filed April 13, 2012; and also on the defendants' Motion for Summary Judgment with Points and Authorities, filed May 23, 2012; and the plaintiff's Opposition to Chuuk State Government Motion for Summary Judgment, filed June 29, 2012. The defendants are granted summary judgment. The reasons follow.

I. BACKGROUND

Early in the morning of May 31, 2009, police officers Jimmy Joseph, Gibson Kun, Stephan Sos, and Jason Koninos were on duty and on patrol in a police truck headed southbound on the main road in the downtown/boatpool area of Weno. Ruben Kino Ruben ("Ruben") was standing near a shipping container on the waterside of the road. When Ruben saw the police truck coming, he ran from the shipping container and along the shoreline rocks toward the Transco dock. When the police truck reached Shigeto's Store, it turned around and headed back toward the Transco dock to investigate what seemed to be a suspicious occurrence. Ruben ran into the Transco dock area. Sakora Shakup, a security guard at nearby Island Mart, shouted to the officers, "Watch out for the thief." When the police truck drove through the open Transco gate, the police discovered that Ruben had already jumped into the water. Ruben was a good swimmer. The officers called for Ruben to come out of the water, but he swam away. Officer Sos and one other took a fiberglass boat that was docked nearby and paddled out into the boatpool where they had seen Ruben swimming between the Chief Mailo and the Exodus. They could not locate him. Eventually, the officers, believing that Ruben was hiding from them, stopped searching and left the Transco area.

Later that morning, Kino Ruben ("Kino"), Ruben's father, became worried because his son had not come home. Having been told that Ruben had run from the police and jumped into the water, Kino asked the police if Ruben had been arrested. Ruben had a recent history of being arrested and held for public drunkenness but he had never been charged. The police told Kino that they did not have Ruben in custody. Kino asked the police for help in an underwater search for Ruben but the police did not have anyone qualified available. Kino went to the nearby Truk Stop Hotel where he was able to obtain the assistance of divers to look for his son. The Truk Stop divers found Ruben's body underwater lodged near the Chief Mailo's hull. The cause of death was believed to have been drowning. No autopsy was performed.

II. SUMMARY JUDGMENT STANDARD

The foregoing facts, as just recited, are undisputed. A court must deny a summary judgment motion unless the court, viewing the facts presented and the inferences made in the light most favorable to the non-moving party, finds that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Allen v. Allen, 17 FSM Intrm. 35, 39 (App. 2010); Bualuay v. Rano, 11 FSM Intrm. 139, 149 (App. 2002); Weno v. Stinnett, 9 FSM Intrm. 200, 206 (App. 1999); Tafunsak v. Kosrae, 7 FSM Intrm. 344, 347 (App. 1995); Luzama v. Ponape Enterprises Co., 7 FSM Intrm. 40, 48 (App. 1995).

The motion for judgment on the pleadings and the summary judgment motion are similar except that the summary judgment motion presents matters outside the pleadings. If matters outside the pleadings are presented along with a motion for judgment on the pleadings, that motion becomes a summary judgment motion. Mori v. Hasiguchi, 17 FSM Intrm. 630, 644 (Chk. 2011); Alokoa v. FSM Social Sec. Admin., 16 FSM Intrm. 271, 276 (Kos. 2009); Richmond Wholesale Meat Co. v. George, 11 FSM Intrm. 86, 88 (Kos. 2002). Because of this, the court will consider the two motions together as one for summary judgment, or, alternatively, that the summary judgment motion has superseded the earlier one for judgment on the pleadings.

[18 FSM R. 429]

III. PARTIES' POSITIONS

The defendants move for dismissal of the punitive damages claim and for judgment in their favor. The defendants contend that the pleadings do not state a claim for negligence because they did not have a duty toward Ruben and that in the absence of a duty there can be no liability and further assert that the plaintiff's claims are based on speculation, guess, and surmise concerning Ruben's death. They further contend that no one violated any of Ruben's civil rights; that the police officers did not breach any duty connected with their offices; that they acted reasonably at all times; and that therefore no liability can arise for Ruben's death. The defendants add that the officers' supervisor, the Director of Public Safety, cannot be held liable since he was not personally involved and since his subordinates are not liable. They also assert that they are protected from any liability by qualified immunity.

Kino contends that but for the police chase Ruben would not have jumped in the water and that therefore the police caused his death. Kino claims that there are several triable issues and therefore summary judgment cannot, as a matter of law, be granted at this time. He asserts that not only do the police have a duty to protect peace and property, but that, in this case, the police also had a second, special duty toward Ruben as a person "who had been drinking, and exhausted from running and then jumping into a deep place where commercial ships moor." Opp'n to Chuuk State Gov't Mot. Summ. J. at 6 (June 29, 2012). Kino adds that chasing an intoxicated person and seeing him jump into the water must create some special duty to rescue Ruben and that only a trial can determine whether the police breached that duty. Kino argues that the police had a duty to render assistance to Ruben and that if they had rendered assistance and gotten Ruben out of the water, Ruben would have survived. Kino alleges that the police caused Ruben's death by chasing him into the deep water and that they cannot claim that they are protected by the qualified immunity doctrine.

Kino further contends that there is supervisory liability because of the respondeat superior doctrine. Kino also notes that his First Amended Complaint does not allege punitive damages against the government and that trial will determine if the individual defendants are liable for punitive damages because of their egregious actions.

IV. ANALYSIS

It is not clear, from what the parties have put before the court, that the police knew that the running man was intoxicated or whether they assumed that since it was Saturday night (early Sunday morning) that he must be drunk. There is no evidence of that in the material that the parties have filed with the court. Nor is it known if Ruben was in fact intoxicated because no autopsy was performed.

A. Civil Rights

The basis of the civil rights claim is that the police, through their negligence, caused Ruben's wrongful death, depriving him of his life and liberty without the due process of law. The police, as state officers, have no constitutional duty to rescue persons because due process considerations are not implicated "when the state fails to help someone already in danger." Bradberry v. Pinellas County, 789 F.2d 1513, 1517-18 (11th Cir. 1986) (government not liable for due process violations because lifeguards failed to rescue drowning victim). Nor is a police officer's threat of arrest (assuming that Ruben ran because he feared arrest) constitute a violation of constitutional rights. Kurtz v. City of Shrewsbury, 245 F.3d 753, 759 (8th Cir. 2001). Merely investigating a suspicious occurrence or merely patrolling the area where Ruben fled is not a violation of any clearly established constitutional right.

[18 FSM R. 430]

B. Essential Elements

But even if Kino's cause of action pled only negligence instead of civil rights Kino's claims still fail. The court will therefore not decide now whether negligence can ever form the basis of a civil rights claim.

Kino must prove negligence in order to support his wrongful death claim. Estate of Mori, 10 FSM Intrm. at 14 (Chk. 2001); Asan v. Truk, 4 FSM Intrm. 51, 56 (Truk S. Ct. Tr. 1989). 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. Kileto v. Chuuk, 15 FSM Intrm. 16, 17 (Chk. S. Ct. App. 2007).

When a plaintiff has failed to make a showing sufficient to establish the existence of any element essential to its case on which it will bear the burden of proof at trial, summary judgment in the defendant's favor is appropriate. FSM v. GMP Hawaii, Inc., 17 FSM Intrm. 555, 573 (Pon. 2011); Suldan v. Mobil Oil Micronesia, Inc., 10 FSM Intrm. 574, 583 (Pon. 2002).

C. Duty of Care

The key element of negligence that the defendants contend that cannot be proven is duty. The defendants assert that, under the facts of this case, that they had no duty toward Ruben that could have been breached. Kino insists that under the circumstances the defendants must have owed a special duty toward Ruben. As a general rule, a person has no legal duty to control the conduct of another. FSM v. Esefan, 17 FSM Intrm. 389, 396 (Chk. 2011). An affirmative duty to aid or protect arises only when a special relationship exists between the parties. See RESTATEMENT (SECOND) OF TORTS § 314A (1965).1 A special relationship would have existed if Ruben had been in police custody. See id. § 314A(4). But when an officer pursues but does not have any actual contact with the person pursued, that person was never seized or in custody. Horta v. Sullivan, 4 F.3d 2, 9-11 (1st Cir. 1993).

The police never had Ruben in their custody. Since he was never in police custody, the "deliberate indifference" duty of care standard for the liability of law enforcement officials towards prisoners, Lippwe v. Weno Municipality, 14 FSM Intrm. 347, 352 (Chk. 2006); Walter v. Chuuk, 14 FSM Intrm. 336, 340 (Chk. 2006); Estate of Mori, 10 FSM Intrm. at 13; Plais v. Panuelo, 5 FSM Intrm. 179, 208 (Pon. 1991), does not apply here. If Ruben had been in police custody, a special duty would have arisen because the police would have then assumed responsibility for him as he would not be able to protect himself. Cf. Lippwe, 14 FSM Intrm. at 353 (a duty of care owed to prisoner and jailers had a duty to regularly observe his condition); Estate of Mori, 10 FSM Intrm. at 14 (jailers owe detainees a duty of care, which may include the duty to regularly observe a detainee's condition and a duty of watchfulness).

[18 FSM R. 431]

The court concludes that by giving up their search for Ruben and leaving the Transco dock, the police did not breach any special duty they might have had toward Ruben. Since Ruben created the dangerous situation himself, the defendants had no duty to rescue him unless they had a special relationship with him – a special duty towards him. Serrano v. City of New York, 541 N.Y.S.2d 803, 805 (N.Y. Sup. Ct. 1989). The police are generally not liable to a plaintiff who injures himself fleeing the police. Since there is no factual basis for the existence of a special duty, the defendants' summary judgment motion should be granted. Kircher v. City of Jamestown, 531 N.Y.S.2d 152, 153 (1988).

D. Causation

The defendants also contend that Kino has not shown that they are the proximate cause of Ruben's death. They contend, that based on the facts alleged, Ruben drowned because he chose to run away from the police and jump into the water and then kept swimming away from the police and kept ignoring their entreaties to come to shore and get out of the water. In other words, the defendants contend that it was Ruben's own actions that were the proximate cause of his death and that if Ruben had complied with their entreaties he would not have drowned. That being so, the causation element cannot be proven either.

E. Supervisory Liability

Kino's claims against Chuuk and its Director of Public Safety are based on the alleged failure to adequately train the police officers who were present at the scene on May 31, 2009. Supervisory liability requires proof of the underlying liability of the officers being supervised. Hinkle v. City of Clarksburg, 81 F.3d 416, 420 (4th Cir. 1996); Harrell v. Purcell, 236 F. Supp. 2d 526, 535 (M.D.N.C. 2002). Since the officers on the scene cannot be held liable because they did not breach any duty owed to Ruben and because they were not the proximate cause of Ruben's death, the Director of Public Safety (and Chuuk as respondeat superior) cannot be held liable either.

F. Punitive Damages

The court having dismissed the underlying causes of action for compensatory damages, the punitive damages claim must also be dismissed since punitive damages are a derivative, not an independent cause of action and must rest upon some other, underlying cause of action since it is merely an element of damages in the underlying cause of action. Semwen v. Seaward Holdings, Micronesia, 7 FSM Intrm. 111, 113 (Chk. 1995) (if all other causes of action are dismissed then punitive damages must also be dismissed); see also FSM v. Koshin 31, 16 FSM Intrm. 15, 20 (Pon. 2008).

G. Summary Judgment

The plaintiff, as a matter of law, cannot prove that the defendants had a duty toward Ruben that the defendants breached. Since the plaintiff cannot prove an essential element of his case, the defendants must be granted summary judgment. The same holds true for the causation element.

V. CONCLUSION

Accordingly, the defendants' summary judgment motion is granted and judgment shall be entered in their favor.

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Footnotes:

1 Statute law authorizes the court to consider the common law as expressed in the ALI Restatements of Law. 1 TTC 103 ("The rules of the common law, as expressed in the restatements of the law approved by the American Law Institute . . . shall be the rules of decision in the courts of the Trust Territory in applicable cases, in the absence of written law . . . or local customary law . . . ."); see also 1 F.S.M.C. 203 ("The rules of the common law, as expressed in the restatements of the law approved by the American Law Institute . . . shall be the rules of decision . . . in applicable cases . . . ."). A statute in force in Chuuk on the Chuuk Constitution's effective date continues in effect to the extent it is consistent with the Chuuk Constitution or until it is amended or repealed. Dereas v. Eas, 15 FSM Intrm. 446, 448 (Chk. S. Ct. Tr. 2007). Therefore 1 TTC 103 is still effective statutory law in Chuuk.

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