FSM SUPREME COURT TRIAL DIVISION
Cite as Pelep v. Lapaii, 22 FSM R. 482 (Pon. 2020)
JOSEPH PELEP,
Plaintiff-Counter-Defendant,
vs.
THEODORO LAPAII,
Defendant-Counterclaimant.
CIVIL ACTION NO. 2017-055
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Beauleen Carl-Worswick
Associate Justice
Trial: March 28, 2019
Decided: February 17, 2020
APPEARANCES:
For the
Plaintiff: Danally Daniel, Esq.
Micronesian Legal Services Corporation
P.O. Box 129
Kolonia, Pohnpei FM 96941
For the Defendants: Joseph S. Phillip, Esq.
P.O. Box 464
Kolonia, Pohnpei FM 96941
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Under Pohnpei law, battery is a harmful or offensive contact with a person, resulting from an act intended to cause that person to suffer such contact. Pelep v. Lapaii, 22 FSM R. 482, 486 (Pon. 2020).
In a civil case, the plaintiff has the burden of proving each element of the plaintiff's cause of action by a preponderance of the evidence, and if the plaintiff fails to prove any one element, judgment will be entered against the plaintiff. Pelep v. Lapaii, 22 FSM R. 482, 486 (Pon. 2020).
Even in a criminal case, eyewitness testimony may not be necessary if there is abundant evidence in the record to support the court's conclusion. In civil matters, a less rigorous standard of proof applies. Pelep v. Lapaii, 22 FSM R. 482, 487 (Pon. 2020).
Proof may be made by testimony as to reputation or by testimony in the form of an opinion, and the contents of writings, recordings, or photographs may be proved by the testimony of the party against whom offered, without accounting for the nonproduction of the original. Pelep v. Lapaii, 22 FSM R. 482, 487 (Pon. 2020).
An essential element to a claim for the tort of battery is that the act constituting the battery was intended to cause the plaintiff to suffer injury from such contact. Pelep v. Lapaii, 22 FSM R. 482, 487 (Pon. 2020).
The defense of voluntary intoxication is not applicable when the defendant's actions constituting a battery were harmful and intentional. Pelep v. Lapaii, 22 FSM R. 482, 487 (Pon. 2020).
Recovery for intentional infliction of emotional distress requires conduct that is extreme and outrageous. This tort is sharply limited and only applies in the most egregious circumstances. One element of such a claim is that the plaintiff must have suffered some physical manifestation of the alleged infliction of emotional distress. Pelep v. Lapaii, 22 FSM R. 482, 488 (Pon. 2020).
A defendant who followed the plaintiff and attacked him with a machete, cutting him four times, acted in an extreme and outrageous manner and inflicted serious physical injuries on the plaintiff, which shocked him at the time and continue to cause him to feel scared. Accordingly, the plaintiff's cause of action for intentional infliction of emotional distress is sustained. Pelep v. Lapaii, 22 FSM R. 482, 488 (Pon. 2020).
In awarding compensatory damages, a court may consider past and future lost wages, medical expenses, and a plaintiff's pain and suffering. Pelep v. Lapaii, 22 FSM R. 482, 488 (Pon. 2020).
A plaintiff, who has proved that the defendant committed battery, is entitled to an award of compensatory damages when he has lost wages and his future ability to earn income is impaired because of the battery. The plaintiff is allowed to recover damages for loss of his capacity to earn wages even if he was unemployed at the time of the injuries, and therefore unable to prove actual lost wages or if the plaintiff was rendering gratuitous services without compensation when injured. Pelep v. Lapaii, 22 FSM R. 482, 489 & n.5 (Pon. 2020).
"Pain and suffering" is a convenient label under which a plaintiff may recover not only for physical pain but also for fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, terror, or ordeal and it covers disfigurement and deformity, impairment of ability to work or labor, anxiety or worry proximately attributable to an injury and mental distress caused by impairment of the enjoyment of life, and it includes anxiety and embarrassment from disfigurement or limitations on activities. To award damages for pain and suffering, such must be the result of physical injury. Pelep v. Lapaii, 22 FSM R. 482, 489 (Pon. 2020).
A person, who is injured through another's negligent or intentional tort, is entitled to an award of damages for pain and suffering. Calculating the amount is difficult because there are no fixed rules to help in that determination. The determination lies in the sole discretion of the trier of fact. Pelep v. Lapaii, 22 FSM R. 482, 489 (Pon. 2020).
Punitive damages may be awarded when a tort was committed with actual malice, or deliberate violence, or the acts complained of were wanton, reckless, malicious and oppressive and are given to enhance compensatory damages. Punitive damages depend on the existence of compensatory damages and cannot be awarded in the absence of compensatory damages. Pelep v. Lapaii, 22 FSM R. 482, 490 (Pon. 2020).
Punitive damages are awarded to punish a defendant for his wrongful act and as a warning and example to deter him and others from committing similar acts in the future. As a general rule, punitive damages are allowed for an assault and battery committed wantonly, maliciously, or under circumstances of aggravation. Since battery usually is a matter of the worst kind of intentions, it frequently justifies punitive damages. Pelep v. Lapaii, 22 FSM R. 482, 490 (Pon. 2020).
If a defendant is found liable for punitive damages, a court cannot make an award having a meaningfully deterrent effect unless the court knows the extent of the defendant's wealth. The greater or lesser the degree of defendant's wealth, the greater or lesser would be the punitive award's amount, since a small award relative to overall wealth would not meaningfully deter, whereas a large award relative to overall wealth would be unduly onerous. Pelep v. Lapaii, 22 FSM R. 482, 490 (Pon. 2020).
When a defendant with no net worth and no income is liable for punitive damages in addition to a substantial damage award, only a nominal punitive damage award of $1 is proper. Pelep v. Lapaii, 22 FSM R. 482, 490 (Pon. 2020).
When an award of punitive damages is appropriate, evidence of the defendant's financial status must be submitted to the court before it will enter a punitive damages award. The court cannot enter a punitive damages award when no testimony was adduced about the defendant's financial status and the court does not have any information about the defendant's income and expenses. Pelep v. Lapaii, 22 FSM R. 482, 490-91 (Pon. 2020).
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BEAULEEN CARL-WORSWICK, Associate Justice:
This matter came before the court for trial on March 28, 2019. Danally Daniel, Esq. appeared for the plaintiff Joseph Pelep, who was present in court. Attorney Joseph Phillip represented defendant Theodoro Lapaii, who was also present in court. The court provided translation for the plaintiff.
Plaintiff Joseph Pelep (Pelep) brought forth two causes of action against defendant Theodoro Lapaii (Lapaii) for injuries sustained when Lapaii struck Pelep multiple times with a machete: 1) Battery and 2) Intentional Infliction of Emotional Distress. Lapaii waived his counterclaims.
The court received testimony from Pelep and Lapaii.
The Court finds the testimony presented during the trial established the following facts:
1. Pelep and Lapaii are married to sisters. Pelep is thirty-three (33) year old and is from Pohnpei. Lapaii is fifty-two (52) years old. He is from the Philippines.
2. The incident occurred on June 6, 2017 in Kolonia, Pohnpei. Tr. at 3. According to Lapaii, the incident occurred on June 12, 2017. Tr. at 7.
3. The testimony is confused regarding the events immediately preceding the subject incident. According to Pelep, he began drinking sakau and beer at 5 p.m. and continued drinking up to 7 p.m., almost 8 p.m. Tr. at 5. Pelep testified, "We were drinking sakau at the man's [Lapaii's] house and the man [Lapaii] came at the house and he was drunk, so, he told me to leave. So I leave [sic] the house and was walking up the road and he came after me and cut me with the machete." Tr. at 1; Tr. at 6. Pelep testified, "I don't know why [he attacked me with the machete], the reason why, but I think there is an assumption, and I know why." Tr. at 3.
4. According to Lapaii, "I'm [sic] drinking on that night, then, Joseph joined us [my wife and I], drinking. Then, drunk." Tr. at 7. Pelep and Lapaii's wife were drinking sakau and beer ("kapopo"). Tr. at 7-8. Lapaii drank three (3) beers. Tr. 8.
5. Lapaii testified that what started the "commotion" was that his residence is a "barracks" owned by his employer and no one else is allowed to stay there except company workers. Lapaii permitted Pelep and his wife to stay "for a day or a week"; however, they stayed for one month and one week and Lapaii's employer "scolded" him about it. According to Lapaii, the cause of
the incident is that, "I got mad, because, I told him to get out [and he didn't leave]." Lapaii stated that "accident" was another reason that he "cut" Pelep. Lapaii testified that his mind was "crazy" when he attacked Pelep. Tr. at 8-9.
6. Pelep left Lapaii's residence and walked up the road toward Pali Ais. Lapaii followed him with a machete and attacked him near the homes of Waltis Samuel and Larry Tom. Tr. 5-6. Lapaii struck Pelep five times with the machete and cut Pelep's hand when he tried to "grab" the knife. Tr. at 1. According to Lapaii, he "cut" him four (4) times. Tr. at 9.
7. D's & A's Taxi Service transported Pelep to Pohnpei State Hospital. It is unclear who call the Taxi. According to Pelep, his wife "caught" Lapaii, held him and then called the taxi. Tr. at 1. However, Lapaii testified that the neighbors called the taxi. Tr. 11.
8. At the hospital, Pelep's wounds were "covered up," rather than stitched up, because there was no one to do it then. Pelep was "really dizzy" and "vomited." The next day, Pelep received four (4) to six (6) stitches in his hand, five (5) stitches in his arm and three (3) stitches in his chest. Pelep was hospitalized for three days. Tr. 1-2 and 11. Pelep has not paid his hospital bill. Tr. 4-5.
9. Pelep testified that he performed maintenance work for Mideon Neth during the time that he and his wife stayed with the Lapaiis. He, "cut grass, lift[ed] things and arrange[d] them, and also feed [sic] his pigs." Tr. at 2. According to Pelep, he was paid $15.00 to $20.00 daily, in cash, depending on the difficulty of the work. Pelep was working with Mideon Neth six (6) months before the incident and returned to work three (3) months after the incident. Pelep stopped working for Mideon Neth "last year." Tr. at 5. Lapaii contends that Pelep was "roaming around," rather than working and did not contribute food to the household. Instead, Lapaii and his wife fed Pelep and his wife. Tr. 11-13.
10. One year after the incident, Pelep still feels "numbness" and he cannot lift "heavy things" like he did before the incident. Tr. at 2. Pelep did not see a doctor in 2018 or prior to trial in 2019. Tr. at 6.
11. Pelep testified that, the "incident is very shocking to me; [it] makes me scare[d] these days." Tr. at 2.
12. Lapaii entered a guilty plea in Pohnpei State Court to criminal charges regarding this same incident and knows that he is liable for Pelep's injuries. Lapaii has not paid any money to the plaintiff in the criminal case. Tr. at 10.
A. Battery
Pelep's first cause of action is for battery.
According to Pohnpei law, battery is a harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff to suffer such contact. Berman v. Pohnpei, 17 FSM R. 360, 372 (App. 2011); Paul v. Celestine, 4 FSM R. 205, 207 (App. 1990); Elymore v. Walter, 9 FSM R. 450, 458 (Pon. 2000); Conrad v. Kolonia Town, 8 FSM R. 183, 191 (Pon. 1997).
In a civil case, the plaintiff has the burden of proving each element of the plaintiff's cause of
action by a preponderance of the evidence, and if the plaintiff fails to prove any one element, judgment will be entered against the plaintiff. Nakamura v. FSM Telecomm. Corp., 17 FSM R. 119, 123 (Chk. 2010).
Pelep argues that the testimony establishes that Lapaii cut him several times with a machete, that the actions were "malicious and wanton" and left him with severe injuries.
Lapaii argues that Pelep failed to meet his burden of proof. Lapaii contends that Pelep's "self-serving testimonial evidence," "standing alone," without witness testimony and documentary evidence is insufficient to support his claim. Lapaii testified that he "cut" Pelep four times. In his Closing Argument, Lapaii argues that, "[p]laintiff adduced no evidence to support his claim that one [cut] requires stitching. He says the remainder of the alleged four cuts was treated with band aid[s]."
The defendant urges a standard of proof that appears to apply in criminal cases. In Kosrae v. Y. George, (Kos. S. Ct. Tr. 1992), the defendant was convicted of aggravated assault with a machete based on testimony of the victim and a witness with an unobstructed view of incident.1 However, even in a criminal case, eyewitness testimony may not be necessary if there is "abundant evidence" in the record to support the court's conclusion. Bueka v. FSM, 1 FSM R. 487, 493 (App. 1984). In Bueka, the defendant was convicted of sexual assault based on the victim's testimony that defendant threatened her with a knife and physically abused her, testimony of a witness who heard her screams and found her crying and scratched, and testimony of a third witness in the area who heard screams and saw the alleged perpetrator in the vicinity of the victim's house. The court held that, "There is no logical inconsistency in finding the use of force, even without ruling that the knife forced the victim to submit. This is especially so here where the victim apparently never ceased struggling."2 Id. at 494.
In civil matters, a less rigorous standard of proof applies. Hartman v. Chuuk, 8 FSM R. 580, 582 (Chk. S. Ct. Tr. 1998) (plaintiff granted title to land based on plaintiff's uncorroborated testimony); George v. George, 17 FSM R. 8, 10 (App. 2010) (court awarded damages based on testimony regarding exhibit not introduced in evidence).
FSM statutory authority also provides that testimony alone is evidence. Per FSM Evidence Rule 405, proof may be made by testimony as to reputation or by testimony in the form of an opinion. Pursuant to FSM Evidence Rule 1007, the contents of writings, recordings, or photographs may be proved by the testimony of the party against whom offered, without accounting for the nonproduction of the original.
One of the essential elements to a claim for the tort of battery is that the act constituting the battery was intended to cause the plaintiff to suffer injury from such contact.
Here, the testimony shows that Lapaii told Pelep to "leave" his residence on June 6, 2017. The testimony further demonstrates that Lapaii was angry because Pelep had failed to leave his "barracks" prior to the subject date. As a result, Lapaii followed Pelep with a machete from his home and attacked and cut Pelep four or five times with the machete causing serious injuries. The Court is convinced, based on the testimony that Lapaii's actions were harmful and intentional.
Lapaii claims the defense of voluntary intoxication. The court does not find it applicable.
Machuo v. FSM, 6 FSM R. 40, 44 (App. 1993) (the court found that the defendant in an aggravated assault prosecution was not entitled to claim the defense of voluntary intoxication despite the fact that he was so inebriated he was not aware of the risk his actions created).
Accordingly, plaintiff's first cause of action for battery is HEREBY SUSTAINED.
B. Intentional Infliction of Emotional Distress
Pelep's second cause of action is for intentional infliction of emotional distress.
Recovery for intentional infliction of emotional distress requires conduct that is extreme and outrageous. The tort of intentional infliction of emotional distress is sharply limited and only applies in the most egregious circumstances. Nakamura v. FSM Telecomm. Corp., 17 FSM R. 41, 48 (Chk. 2010) (quoting 38 AM. JUR. 2D Fright, Shock, and Mental Disturbance § 15, at 21-22 (rev. ed. 1999). One element of an intentional infliction of emotional distress claim is that the plaintiff must have suffered some physical manifestation of the alleged infliction of emotional distress. Poll v. Victor, 18 FSM R. 235, 246 (Pon. 2012).
Here, Lapaii deliberately followed Pelep from Lapaii's residence with a machete. There was no legitimate reason for him to have the knife and he used it only to cut Pelep multiple times, inflicting serious injuries, which required hospitalization.
There is no justification or excuse for Lapaii's behavior. The fact that Pelep did not move from Lapaii's employer's property within "a day or a week" is not a valid reason for battery with a machete. Lapaii has made no showing that Pelep and his wife's presence in his residence posed a danger. Lapaii did not attempt to remove them legally.
The court finds that Lapaii acted in an extreme and outrageous manner and inflicted serious physical injuries on Pelep, which shocked him at the time and continue to cause him to feel scared. Accordingly, Pelep's second cause of action for intentional infliction of emotional distress is HEREBY SUSTAINED.
C. Damages
Pelep is seeking $4,432.00 for compensatory damages, "[a]ll further relief the court deem[s] just and proper"3 and "reasonable punitive damages."
Compensatory Damages
In awarding compensatory damages, a court may consider past and future lost wages, medical expenses, and a plaintiff's pain and suffering. Higgins v. Kolonia Town, 17 FSM R. 254, 261 (Pon. 2010).
Pelep's compensatory damages claim is broken down into twenty-two (22) months of lost wages since June of 2017, at $10.00-$15.00 per day, for a total award of $4,400.00 in lost wages plus $32.00 in hospital bills.
Lapaii argues that Pelep failed to meet his burden of proof to support his damages claim. Lapaii
points out that FSM laws require those who work to have a social security number, to pay income taxes and make social security contributions. In addition, Pelep did not produce pay stubs or other documentary evidence or proof of income that could be used to calculate damages.
It appears to the court that Pelep, like many Pohnpeians,4 works in the cash economy, which does not necessarily require or provide the formal evidence of income cited by defense counsel. Regardless, at trial, Pelep's claims as to the amount of compensation were unrefuted. The court finds Lapaii's claim that Pelep was "roaming around" and not working while staying with Lapaii equivocal, as Lapaii was working during the days "until night time" and he did not have first-hand knowledge as to whether Pelep was working. Tr. at 12.
Pelep is entitled to an award of compensatory damages. He has lost wages and his future ability to earn income is impaired because of Lapaii's battery.5 Accordingly, the court awards Pelep $4,432.00 for compensatory damages.
Pain and Suffering
Pain and suffering serves as a convenient label under which a plaintiff may recover not only for physical pain but also for fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, terror, or ordeal and it covers disfigurement and deformity, impairment of ability to work or labor, anxiety or worry proximately attributable to an injury and mental distress caused by impairment of the enjoyment of life and it includes anxiety and embarrassment from disfigurement or limitations on activities, but to award damages for pain and suffering, such must be the result of physical injury. Lee v. FSM, 19 FSM R. 80, 83 (Pon. 2013).
A person injured through the negligent or intentional tort of another is entitled to an award of damages for pain and suffering. Calculating the amount is difficult because there are no fixed rules to help in that determination. The determination lies in the sole discretion of the trier of fact. Asher v. Kosrae, 8 FSM R. 443, 453-54 (Kos. S. Ct. Tr. 1998).
In calculating damages for pain and suffering, the court considers Elymore v. Walter, 9 FSM R. 450, 458-59 (Pon. 2000). In that matter the defendant committed battery by smashing the windshield of plaintiff's car with a baseball bat, while plaintiff was in the car, causing superficial cuts to the plaintiff's hands and head. The plaintiff was still able to drive from the scene and did not seek medical attention until the following day. In the court's assessment,
The greater injury to [plaintiff] was not the physical injury, but the suffering associated with the shock and affront to his personal dignity resulting from [defendant's] repeated, unexpected baseball bat blows into the windshield, which came unexpectedly out of the
night. [Defendant's] unjustified and violent conduct had a substantial traumatic effect on [plaintiff], for which he is entitled to compensation.
Id. Based on these facts, the court awarded plaintiff Elymore $700 for pain and suffering.6
In addition, the court looks to precedent in Meitou v. Uwera, 5 FSM R. 139, 146-47 (Chk. St. Ct. Tr. 1991). Meitou was thrown to the ground while in police custody and beaten with sufficient force to cause bleeding, bruises and swelling to his face and he became unconscious. The court concluded that the officer committed battery and entered judgment awarding Meitou $800 in damages for pain and suffering.7
Here, Lapaii attacked Pelep with a machete and Pelep went directly to the hospital. Pelep is permanently disfigured and continues to have fear associated with the incident. The court finds that the violence of Lapaii's battery is more consistent with the facts in Meitou and the psychological impact exceeds that in Elymore. Accordingly, the court awards Pelep $1,500 for pain and suffering.
Punitive Damages
Punitive damages may be awarded when a tort was committed with actual malice, or deliberate violence, or the acts complained of were wanton, reckless, malicious and oppressive and are given to enhance compensatory damages. Punitive damages depend on the existence of compensatory damages and cannot be awarded in the absence of compensatory damages. Talley v. Lelu Town Council, 10 FSM R. 226, 239 (Kos. S. Ct. Tr. 2001).
Punitive damages are awarded as a punishment to the defendant for his wrongful act and as a warning and example to deter him and others from committing similar acts in the future. As a general rule, punitive damages are allowed for an assault and battery committed wantonly, maliciously, or under circumstances of aggravation. Since battery usually is a matter of the worst kind of intentions, it frequently justifies punitive damages. Elymore, 9 FSM R. at 459.
If a defendant is found liable for punitive damages, a court cannot make an award having a meaningfully deterrent effect unless the court knows the extent of the defendant's wealth. The greater or lesser the degree of defendant's wealth, the greater or lesser would be the amount of the punitive award, since a small award relative to overall wealth would not meaningfully deter, whereas a large award relative to overall wealth would be unduly onerous. Elymore v. Walter, 9 FSM R. 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 R. 106, 113 (Chk. 1999).
When an award of punitive damages is appropriate, materials relating to the defendant's financial status must be submitted to the court before it will enter a punitive damages award. Elymore, 9 FSM R. at 460.
Here, the court is unable to enter a punitive damages award. No testimony was adduced about Lapaii's financial status; accordingly, the court does not have information about his income and expenses upon which to enter such an order. The Pohnpei State Court has already convicted and sanctioned Lapaii and this court will deem that sufficient.
This court's award of compensatory damages and damages for pain and suffering is not dependent on the defendant's criminal conviction. The plaintiff's damages are proximately attributable to the injuries and mental distress caused by the egregious behavior of the defendant.
ACCORDINGLY, it is ADJUDGED, ORDERED and DECREED that plaintiff is awarded judgment of compensatory damages of $4,432.00 and damages for pain and suffering of $1,500.00 pursuant to his tort claims of Battery and Intentional Infliction of Emotional Distress. The court awards plaintiff $5,932.00 in total damages. The Clerk's Office shall enter Judgment in favor of the plaintiff and against the defendant.
_______________________________Footnotes:
1 Kosrae v. Y. George, (Kos. S. Ct. Tr. 1992), www.fsmlaw.org/kosrae/decisions/yoanageorge.htm.
2 In the instant matter, Pelep attempted to grab the knife.
3 The court will deem this a request for damages for "Pain and Suffering."
4 "The people of Pohnpei today live in a mixed subsistence and cash economy." Koike v. Ponape Rock Products, Inc., 3 FSM R. 57, 71 (Pon. S. Ct. Tr. 1986).
5 Plaintiff is allowed to recover damages for loss of his capacity to earn wages. This is true even if he was unemployed at the time of the injuries, and therefore unable to prove actual lost wages. Meitou v. Uwera, 5 FSM R. 139, 145 (Chk. St. Ct. Tr. 1991) (citing United States v. Jacobs, 308 F.2d 906, 907-08 (5th Cir. 1962); 22 AM. JUR. 2D Damages § 185). Damages are allowed even if plaintiff may have been rendering gratuitous services without compensation at the time of the injuries. District of Columbia v. Woodbury, 136 U.S. 450, 459, 10 S. Ct. 990, 993, 34 L. Ed. 472, 475 (1890); Dowling v. Herbert, 152 A.2d 642, 643 (Conn. 1959).
6 Adjusted for inflation, $700 in 2000 is equal to $1044.94 in 2019, based on annual inflation of 2.13%. DollarTimes, https://www.dollartimes.com/inflation/inflation.php?amount=700&year=2000
7 Adjusted for inflation, $800 in 1991 is equal to $1,502.14 in 2019, based on annual inflation of 2.28%. DollarTimes, https://www.dollartimes.com/inflation/inflation.php?amount=700&year=2000
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