Cite as Leeruw v. Yap State Gov't, (Yap, 97)

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 Margaret Leeruw,


 Yap State Government,
 (Yap Memorial Hospital)

Civil Action-No. 1994-090

Ruling On Motion For Summary Judgement

     On July 24, 1997, hearing on Defendant State's Motion for Summary Judgment was held. Both opposing counsels were present for argument. As reasoned below, the court grants partial summary judgment on the issue of failure to state a cause of action with respect to whether a fetus has a cause of action under the wrongful death waiver provision of the Government Liability Act and under the FSM national wrongful death statute. Summary judgment on the remaining issues in Defendant State's motion is denied.

     Defendant State requested summary judgment from this court the following grounds: (1) Plaintiff failed to state a cause of action on which relief can be granted; (2) Plaintiff improperly pled this case under the FSM wrongful death statute, 6 F.S.M.C. 501 and 502; (3) Plaintiff also pled pursuant to Yap State Government Liability Act, Title 31 of the Yap State Code, which has a recovery limit of $20,000.00 for wrongful death, well under the claim of damages alleged in the complaint; (4) the defense of assumption of risk by Plaintiff is sufficiently demonstrated in Defendant's affidavits to show that there is no genuine issue of material fact; and (5) the defense of contributory negligence by Plaintiff is sufficiently demonstrated in Defendant's affidavits to show that there is

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no genuine issue of material fact.
      In response, Plaintiff asserted that summary judgment should be denied because (1) the complaint meets the requirements of Rule 8(a) of the Yap State Court Rules of Civil Procedures; (2) the Yap State Government ability Act permits both the personal injury wrongful death claims and the recoverable damages can exceed the $20,000.00 limit for wrongful death because of the inclusion of the personal injury claim; and (3) there are genuine issues of material facts in dispute relating to the defenses of assumption of risk and contributory negligence, not to mention the arguments of whether or not the defenses are available to litigants in this jurisdiction, compounded by the absence of a declarationby this court of whether it is a contributory negligence or comparative negligence jurisdiction.  

     This is a case in which the court finds itself treading on uncharted ground in many of the issues raised and argued by the litigants. In the short history of this constitutional court, it has not had the opportunity to deal with at least a couple of major issues raised by the parties.

Sufficiency of Plaintiff's Complaint:
     An issue at the outset has to do with the sufficiency of the complaint. The complaint filed in this case leaves more to be desired. While it attempted to establish three causes of actions, the court had to struggle to discern and distinguish the actionable negligence that the complaint alleges. This is not to say that the essential elements of the alleged negligence were lacking, but merely that they were scattered throughout the complaint. Plaintiff argued that this court's Civil Procedure Rule 8(a) is similar to the FSM Civil Procedure Rule 8(a) and both sets of rules were derived from the United States Federal Rules of Civil Procedures. This being the case, the FSM Supreme Court has ruled in Faw vs. FSM, 6 FSM Intrm 33 (Yap 1993), that a complaint is sufficient if it contains adequate grounds of jurisdiction and statements of facts sufficient. to put the defendant on notice as to the nature and basis of the claim, that is, a "notice pleading" format. This court has had no occasion to set out the requirements of its adopted Rule 8(a) and sees no compelling reason to

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require any more than the "notice pleading" requirements of the FSM Rule 8(a).

     In the instant case, the complaint indeed stated the jurisdictional allegations in its first paragraph. Throughout the rest of the complaint, factual elements of the alleged negligence which resulted in a fetal death and injury to the mother of the fetus were presented. The judgment prayed for could be found in the last paragraph. The complaint therefore meets the minimal standard outlined in Faw.

     The issues raised by the parties in the motion pleadings are varied and diverse. Two categories of issues were involved in the motion pleadings: one category involving mainly issue, of law and another involving a mixture of law and of facts.

Issues of Law:
         The first category included the following issues: (1) whether Plaintiff failed to state a cause of action which relief can be granted and (2) whether this court has subject matter jurisdiction to hear the wrongful death claim under a national statute. Defendant State requests summary judgment on these issues of law.

Failure to State a Cause of Action:
        In Defendant State's motion, it argued under the failure to state a cause of action argument that Plaintiff's wrongful death claim filed in State Court pursuant to an FSM wrongful death statutory provision is not maintainable because that statute is silent on the whether a wrongful death action may be filed on behalf of a fetus. The FSM statute merely refers to actions on behalf of a "person." It is Defendant State's position that a fetus is not a "person" under the FSM Statute. The FSM statute was adopted by the FSM Congress from the Trust Territory Code and the legislative history of the TT Code is undiscoverable. The issue of whether a fetus is a "person" under the FSM wrongful death statute has not been raised in FSM caselaw.

     Plaintiff responded that the death of a fetus is actionable and permitted under the Government Liability Act because it has come to full term when it was stillborn. For the reasons below, the court disagrees.

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     Because Plaintiff attempts to recover from the State under the Liability Act and the Act is a State law, the court's first impulse is to analyze this issue by looking to the Liability Act to determine whether the statute permits a wrongful death action on behalf of a fetus. The court will then consider whether Plaintiff state a cause of action under the national statute.

1.  The Yap State Government Liability Act:
         A "person" is defined by Black's Law Dictionary as "in common usage, a human being, (i.e. natural person), though by statute [the] term may include labor organizations, partnerships, associations, corporations, legal representatives, trustees, trustees in bankruptcy, or receivers." Black's Law Dictionary 1142 (6th ed. 1990). Black's Law Dictionary further defines a "fetus" as "[a]n unborn child. The unborn offspring of any viviparous animal specifically the unborn offspring in the post embryonic period after major structures have been outlined (in man from seven or eight weeks after fertilization until birth)." id. at 621. The definition of a "person" here does not include a "fetus" and the list of entities which are considered a "person" are, foremost, a "human being" and other entities which the law already recognizes as natural persons. Inversely, the definition of a "fetus" does not establish that it is a person. In fact, the definition by indicating that a "fetus" is "in man from seven or eight weeks after fertilization until birth," seems to suggest that the term "fetus" is distinct from a human being or a person.

     With the foregoing as background, the section on Statement of Policy of the Government Liability Act states that "[t]he purpose of this chapter . . . is to implement Section 12 of Article II of the Yap State Constitution which allows every person to sue for redress." 31 YSC 102. The relevant wattex. -provision of the Act, "Limited waiver of sovereign immunity," provides:

       104. Actions upon the following claims may be brought against the State of Yap with original and exclusive jurisdiction residing in the Trial Division of the State Court of Yap:
                                                            * * * *
                       (d) Claims for injury or loss of property or personal injury or death
            caused by the wrongful act or omission of

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an employee or the State Government while acting within the scope of his office or employment, under the circumstances where the State Government, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. Actions shall be commenced pursuant to this subsection only within-two-years after the cause of actions occurs.

31 YSC 104. The Act does not expressly include a fetus in the category of "persons" who may maintain an action against the State. The Act does not define person" as used in its provisions.

     The legislative history of a statute is always a proper source for legislative intent. However, the Standing Committee Report of the Act, SCR No. 1-197, does not give any indication that the inclusion of a fetus under "person" was intended.

     In Title 1 of the State Code, "General Provisions," a provision of definitions is provided and those definitions control "except as otherwise specifically defined in the Code." 1 YSC 103. In that section, a "person" is an "individual, corporation, government or governmental division or agency, business trust, estate, trust, partnership or association, or any other legal entity." 1 YSC 103(p). Clearly, this definition does not provide for a fetus.

     Given the above discussion, this court arrives at the conclusion that when the Legislature enacted the Liability Act, it did not intend for a fetus to be included in the class of persons who can maintain a wrongful death action against the State under the Act.

     Viewed against the background of the entire Act, this holding is consistent with the conservative and limited design of the liability of the State which the Act permits. Moreover, today's holding shows this court's reluctance in reading more into a legislative statute than what was intended by that body. Surely, unlike constitutional interpretations, if the Legislature had the intention all along and this court is not so aware, it can readily amend the law.

     While there are times that this court and other courts in the FSM

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have looked to United States caselaw for guidance on the grounds that the FSM national and state legal systems are modeled after the United States legal system, in this instance, United States caselaw presents mixed results. All the American States, have wrongful death statutes. Speiser, Krausel Madole, Recovery for Wrongful Death and Injury, 1:8 (3rd Ed., 1992). In those states where the statutes do not name a fetus as a person on whose behalf a wrongful death action may be maintained, the results are mixed. 84 ALR3d 411, 422. These cases are therefore of limited value on this point.

     The court's holding today finds support in Yapese custom and tradition. In fact, it is required by the State Constitution that court decisions "be consistent with . . . traditions and customs, and the social and geographical configuration of the State." Yap Const., art. VII, sec. 7.

     It is the court's understanding that in Yapese culture, while there are some slight variations depending on the island locality, it is generally the view that a fetus has not quite achieved the status of personhood. As best that the court can determine, a fetus is always considered a part of its mother. This is certainly so given that the fetus cannot live independently of the mother. While there is always great expectations of a fetus, be it becoming a boy or girl, being able to be given a particular name in the family lineage, growing up to be a contributing member to the family or leader in the community, becoming a source of joy and pride for a newly wed couple, or becoming the first born to a couple, there is always the understanding that the expectations and wishes will not be fully realized until the live birth. It is always a solemn recognition that the expectations of and for a fetus materializes only upon a live birth. In this culture, a significant status of a person is his or her Yapese name. This court is not aware of any practice whereby a family would formally1  name a fetus before its live birth. The name-giving ceremony for a newborn is usually conducted soon after birth.
     Upon the miscarriage of a fetus or in the case of a stillbirth, the burial is carried out in simple terms. The midwife or attendant to the

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mother of the fetus or stillborn would carry out the burial almost immediately. Relatives are not informed as opposed to the normal practice in the death of a once living person. Culturally, the funeral denotes the passing away of a person. The common practice with the burial of a fetus does not quite follow the routine of a customary funeral.  The fetus is usually buried immediately.  The burial site is usually at a specially designated site.2 The clan and relatives are not informed; usually only the immediate family is aware of the loss.

     Based on the foregoing, this court believes that a fetus is not considered a being of full personhood in this culture.

     Given this ruling, Plaintiff's complaint cannot proceed with the cause of action of a wrongful death of a fetus against the State utilizing the waiver provisions of the Government Liability Act. This determination does not affect the remaining cause of action in personal injury to the mother of the fetus contained in Plaintiff's complaint.

2. The National Wrongful Death Statute:
     Defendant State argued in its motion that Plaintiff does not have a cause of action under the national wrongful death statute, 6 F.S.M.C. 501 and 502, because a fetus is not a "person" under that statute.

      Plaintiff's counter argument proffered that the fetus has come to full term when it was stillborn and had it not been for the negligence of the Yap Memorial Hospital staff, Plaintiff's pregnancy would have resulted in a live birth. Hence, the fetus is an actionable "person" under the national wrongful death statute. For similar reasons stated in tie analysis of the Liability Act above, the court disagrees.

     As pointed out by Defendant State, the FSM caselaw is silent on whether a fetus is a "person" for purposes of wrongful death actions. While normally, statutes enacted by the FSM Congress are best left to the FSM Courts for interpretation, this court does not find anything in the

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state or National Constitutions which prohibit this court from interpreting a national statute. In fact, the FSM Supreme Court decided in Edwards v. Pohnpei, 3 FSM Intrm. 350 (Pon. 1988), that the wrongful death provisions are part of the law of the FSM states. Edwards v. Pohnpei, 3 FSM Intm. 350,: 359 (Pon. 1988). Moreover, in Gimnang v. Yap, 5 FSM Intrm.13 (App), the FSM Supreme Court held that while Article XI, Section 6(b) of the FSM Constitution places primary responsibility in national courts over issues of national laws, the Constitutional provision does not prohibit state court jurisdiction over national law issues.Gimnang v. Yap, 5 FSM Intrm. 13, 18 (App. 1991).

           Section 501 of the national wrongful death statute provides:

      (1) When the death of a person is caused by wrongful act, neglect, or default such as would have entitled the party injured to maintain an action and recover damages in respect thereof if death had not ensued, the person or corporation which would have been liable if death had not ensued, or the administrator or executor of the estate of such person, as such administrator or executor, shall be liable to an action for damages notwithstanding the death of the death of the person injured, and although the death was caused under circumstances which make it in law murder in the first or second degree, or manslaughter.

      6 F.S.M.C. 501(1) Subsection (2) permits an action against an administrator or executor to be valid against the estate of the deceased person. Subsection (3) provides for the enforceability in the FSM of a wrongful death statute of a foreign jurisdiction and limits the commencement of wrongful death actions to two years.

      Section 502 of the national wrongful death statute permits an action to be brought in the name of the personal representative of the deceased and provides for the scope of beneficiaries of the action.

      Similar to the analytical view taken to the Liability Act, the language of the national wrongful death statute does not list a fetus as a "person" on whose behalf a wrongful death action may be maintained. Clearly, if the FSM Congress had intended to name a fetus as an actionable "person," it could have so included. It seems from the language that Congress must have intended an individual to have attained full viability

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apart from the mother in order to maintain such actions. A fetus however has not had an independent life.
     The FSM wrongful death statute was adopted from the Trust Territory Code. Its legislative history is undiscoverable. Nevertheless, it seems safe to assume that without  the indication in the statutory language, the FSM Congress did not intend a fetus to be an actionable "person" under the law and this court will not venture to assume any more than what is expressed in this particular law. Therefore, this court finds that a fetus does not have a cause of action for wrongful death under the national statute.

Subject Matter Jurisdiction:
     Defendant State's argument contended that Plaintiff's wrongful death claim cannot be heard in this court because the court lacks subject matter jurisdiction. Defendant claimed that this court has no subject matter jurisdiction under the FSM wrongful death statute because the suit is instituted against the State and in such instances of suits against the State, the Government Liability Act controls. Because the court has found that a fetus is not a "person" under both statutes, the court does not reach the issue of subject matter jurisdiction presented by Defendant.

Issues of Law and Facts:
     The second category of issues posed for summary judgment includes (1) whether based on the submitted pleadings and affidavits before the court there are no genuine issues of material fact still in dispute that Plaintiff assumed the risks of her acts and (2) whether based on tie submitted pleadings and affidavits before the court there are no genuine issues of material fact still in dispute that Plaintiff contributed to the negligence which resulted in her injury.

1.  Assumption of Risk:
     Defendant State argued that Plaintiff assumed the risk of injury when she failed to keep her appointment at the crucial stage in her pregnancy and as a result she missed the opportunity for a planned cesarean section to deliver her large baby. By this failure, effectively, Plaintiff, "with appreciation and knowledge, . . . purposely elected to

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abandon her position of relative safety . . . and chose to reposition herself in a place of obvious danger . . . which resulted in injury to herself."

     In support of Defendant State's arguments, it submitted affidavits 3 from two hospital prenatal care nurses and two doctors who had substantial contact with Plaintiff during her April, 1992 admission at the hospital and at her appointments during her pregnancy.

     One of the two nurses stated that she explained to Plaintiff the risks involved with the pregnancy due to Plaintiff's gestational diabetes and that upon Plaintiff's failure to make one of her appointment, the nurse stopped by her employment place at a gas station to warn Plaintiff not to miss any appointments. The other nurse stated that she also warned Plaintiff about missing appointments; the high risk of her pregnancy; and the fact that working at a gas station may not be good for pregnant mothers. This nurse also said she advised Plaintiff regarding her exercise and diet and the nurse believed that Plaintiff was aware of her own risky condition since she was on insulin.

     One of the three doctors who saw Plaintiff during her prenatal visit stated that although it has been a while since, it is his belief that he advised Plaintiff on her high risk pregnancy and the possibility of a cesarean section delivery. The second doctor stated that Plaintiffs sugar level test showed a negative result (after her April, 1992, admission for the problem) on her May 12, 1992, prenatal care visit and then scheduled her May 19, 1992, visit which Plaintiff did not make.

     Plaintiff responded that, because she was not informed, she was not aware of the risky and grave circumstances of her pregnancy, particularly if she missed her appointment. As a result of the ignorance of the potential complications of her pregnancy and the lack of an express warning by the medical staff, it cannot be said that she purposely elected to place herself in harms way.

     Plaintiff also pointed out that the defense of assumption of risk has recently been disfavored by the courts in the United Stales. In some

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jurisdictions the defense has been made unavailable in certain types of tort actions.

      Plaintiff submitted her own affidavit and two others in support of her arguments. In her own, she declared that she was never fully informed of her condition.  In fact, one doctor told her during a May 1992, visit that her sugar test was negative and she was not given insulin or other medication for the sugar problem. She was never told that her baby was large or of the possibility of an elective cesarean section. She thought the last appointment which she missed would be routine and since she was expecting the baby that same month she did not think it imperative to make the appointment. Plaintiff also stated in her affidavit that she was not told that working at the gas station would pose any problems to her pregnancy. Finally, she stated that she inquired about an emergency cesarean section when she came in to labor and was told everything was fine.

     A relative of Plaintiff who attended to Plaintiff in labor also stated in her affidavit that Plaintiff told her she wanted an operation to deliver the baby because she could not do it herself and when affiant conveyed Plaintiff's wish to the attending nurse and doctor, they said it was not necessary.

     A doctor practicing in the State of Pohnpei also reviewed Plaintiff's medical and pregnancy record. In his sworn conclusions based on his review of Plaintiff's record, he stated that Plaintiff's prolonged first stage of labor should have alerted the medical attendants and doctor that there might be complications. An emergency cesarean section should have been done. "Active interventions" such as a cesarean section and other modes of delivery should have been conducted when there was also a prolonged second stage of labor. Finally, it was the doctor's opinion that the macrosomic baby could have been delivered by other modes of delivery had the right action been taken at the right time when Plaintiff was in labor.

      In considering a motion for summary judgment, the court is required to view facts and draw inferences in a light as favorable to the party against whom the judgment is sought as may reasonably be done

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and the motion may  the only be granted if it is clear that there is no genuine issue of material fact and that the moving party must prevail as a matter of law Demarlane v. Pohnpei Transportation Authority, 5 FSM lntrm. 1, 3 (Pon. 1991). The court recognizes that almost all of the facts supporting Defendant: State's position that Plaintiff had knowledge of the high risks involved pregnancy and she voluntarily venture assume them and the consequences they posed are controverted by Plaintiff's sworn assertions.

     The court concludes that on the issue of assumption of risk, there remain issues of triable fact and therefore, summary judgment must be denied on this issue. Plaintiff had pointed out other courts' disfavor of the particular affirmative defense. The court will comment on this point later below.

2.  Contributory Negligence:
     Defendant State's final argument contended that Plaintiff contributed to the negligence which resulted in her injury and therefore bars Plaintiff from recovery. Defendant pointed out that the affidavits of the nurses and doctors assert that Plaintiff was made aware of her high risk pregnancy. A reasonably prudent (pregnant) woman with the information and advise from the medical staff regarding her condition would not have missed her appointment.

     Defendant State proceeded to point out that the Yap State Court has not declared whether the rule of contributory negligence or comparative negligence should control. Defendant explained that the rulings in the FSM and its other States which have considered the issue are mixed and somewhat confusing. Defend argued that since the Yap State Court has not ruled on this issue, it must so now as a common law contributory negligence jurisdiction. Yap State custom and tradition would also support such a holding.

     Plaintiff countered that due to the lack of warning and advice regarding her pregnancy and the negative result of her sugar test, she acted reasonably when she missed an appointment, one which she believed was

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of the routine type and she was also due to deliver that same month of the appointment.

     Furthermore, Plaintiff asserted that based on the medical opinion of an independent doctor who reviewed her medical records, even if Plaintiff was somehow negligent, there was evidence that an independent and superseding cause existed when Plaintiff was in labor at the hospital to overcome her negligence.

      In response to Defendant State's urging for the court to follow the rule of contributory negligence, Plaintiff argued that comparative negligence is the better rule and without any law prohibiting the court, the court may rule that comparative negligence is the rule of law here.

     Upon consideration of the arguments of both parties, the court finds that genuine issues of material fact still remain as to whether or not Plaintiff acted unreasonably. In her affidavit, her statements regarding her belief that her pregnancy was normal directly controverts Defendant's supporting affidavits. The court believes there is also an issue here which was not discussed regarding the definition of a reasonably prudent person. In Micronesia and specifically Yap, the issue being what level of conduct would we expect of a reasonably prudent Yapese pregnant women in the situation. Given these and applying the Damarlane standard for granting summary judgment, the court is of the opinion that triable facts remain in dispute and summary judgment cannot be granted on this issue.

     The affirmative defenses of assumption of risk and contributory negligence will remain as available defenses to litigants in Yap. In Yapese custom and tradition, if is the court's understanding that individuals must to some extent assume responsibilities for their actions. Those involved in activities or enjoying relationships with others must, in light of their ages and competencies, take reasonable precaution and employ the common sense expected in the situation.

     In the instant case, the court did not find any compelling argument to convince the court to do away with the two types of affirmative

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defenses and abolish their uses among litigants in this jurisdiction. Certainly, if the Legislature decides to speak on the issue, that will be the law.

      On the, issue of whether contributory or comparative negligence should be the rule in Yap, the court is inclined to agree with Defendant State's argument that common law contributory negligence should be the rule of law in Yap. As indicated above, the court is of the opinion that contributory negligence is more in keeping with Yapese tradition and custom. Moreover, it is the court's opinion that the adoption of comparative negligence is more of a legislative function than it is judicial. The concept of percentage fault is definitely arbitrary in most situations. Perhaps when the Legislature speaks the law in this area of tort litigation here in Yap, it will provide some guidance on how the court will allocate fault to more accurately reflect justice and fairness.

     Based on the foregoing discussion, the court grants partial summary judgment on the issue that a fetus is not a "person" for wrongful death purposes under the Government Liability Act and the FSM wrongful death statute. Summary judgment is denied for the remaining issues in Defendant State's motion.

SO ORDERED, this 29th day of August, 1997.


                         Constantine Young, Chief Justice

Clerk of Court


1. There are instances where male and female names would be suggested by the appropriate relative for a fetus before its delivery. Following the live birth of the baby, the formal name giving would be carried out by calling live child the appropriate gender name which was previously suggested. (Back to Opinion)

2.  Not too long ago, these specially designated sites are usually in the vicinity of the menstruation compound where women reside in huts during their menstruation period. Each village in Yap has such an area. Today, because menstruation compounds are no longer used, the compounds and nearby designated areas for burial of fetuses are no longer maintained. As a result, the cemeteries are becoming the common place for the burial of miscarried fetuses and stillbirths (Back to Opinion)

3. The affidavits on file with the court, while containing signatures of the declarant are not notarized.(Back to Opinion)
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