Asher v Kosrae [1998] FMKSC 3; 8 FSM Intrm. 443 (Kos. S. Ct. Tr. 1998) (10 September 1998)

KOSRAE STATE COURT
TRIAL DIVISION
Cite as Asher v Kosrae, 8 FSM Intrm. 443 (Kos. S. Ct. Tr. 1998)

KUN ASHER and SHRUE ASHER,
for themselves and on behalf of
KIM ASHER, a Minor,
Plaintiffs,

vs.

STATE OF KOSRAE
and KOSRAE UTILITIES AUTHORITY,
Defendants.

CIVIL ACTION NO. 33-95

MEMORANDUM OF DECISION; JUDGMENT

Aliksa B. Aliksa
Acting Chief Justice

Trial: July 2-3, 1998
Decided: September 10, 1998

APPEARANCES:

For the Plaintiffs:
Delson Ehmes, Esq.
P.O. Box 1018
Kolonia, Pohnpei FM 96941

For the Defendant (State of Kosrae):
Richard C. Martin, Esq.
Kosrae Attorney General
Office of the Kosrae Attorney General
P.O. Box 870
Tofol, Kosrae FM 96944

For the Defendant (Kosrae Utilities):
Ron Moroni, Esq.
P.O. Box 1618
Kolonia, Pohnpei FM 96941

* * * *

HEADNOTES

Torts - Duty of Care
Everyone has a duty of care to act in such a way that other people are not harmed. Duties of care differ according to the circumstances. The exact parameters of each person's responsibilities towards others will be defined through time by judicial decisions and statutes. Asher v. Kosrae, 8 FSM Intrm. 443, 449 (Kos. S. Ct. Tr. 1998).

Torts - Duty of Care
There is a duty to take precautions in installing a telephone pole and wires to avoid foreseeable harm, for example, a child or another person walking into the dangling wire and causing injury. Asher v. Kosrae, 8 FSM Intrm. 443, 449 (Kos. S. Ct. Tr. 1998).

Torts
A tort is a wrong for which the harm that resulted is capable of being compensated in an action at law. The purpose is to afford compensation for injuries sustained by one person as the result of the unreasonable or socially harmful conduct of another. Generally, one person may be liable in tort to another only if the first intentionally or negligently violates a duty owed to the other, and the other is injured as a result. Asher v. Kosrae, 8 FSM Intrm. 443, 449 (Kos. S. Ct. Tr. 1998).

Torts - Duty of Care
Generally, a breach of duty is proven by the testimony of a witness who describes what a reasonable person, acting in compliance with the duty of care, would have done or not done in the same situation. Asher v. Kosrae, 8 FSM Intrm. 443, 449 (Kos. S. Ct. Tr. 1998).

Torts - Duty of Care; Torts - Negligence
In determining liability for negligent injuries generally, electricity providers are required to use reasonable care in the construction and maintenance of their lines and apparatus, and will be responsible for any conduct falling short of this standard. Asher v. Kosrae, 8 FSM Intrm. 443, 449 (Kos. S. Ct. Tr. 1998).

Torts - Duty of Care
Electricity providers transmitting or using electricity are required to guard against events which can be reasonably foreseen or anticipated. The extent of the duty or standard of care is measured in the terms of foreseeability of injury from the situation created. It is not necessary that a power provider anticipate the precise injury to someone who had a right to be in the vicinity. Asher v. Kosrae, 8 FSM Intrm. 443, 449-50 (Kos. S. Ct. Tr. 1998).

Torts - Duty of Care
One in the business of generating and distributing electricity who engages to install electric equipment must exercise the care of a reasonably prudent person skilled in the practice and art of installing such equipment according to the state of the art or method generally used by persons engaged in a like business at the time the work is done. An electricity provider is also charged with the duty of maintaining their electrical equipment and appliances. Asher v. Kosrae, 8 FSM Intrm. 443, 450 (Kos. S. Ct. Tr. 1998).

Torts - Duty of Care; Torts - Negligence
It is the imperative duty of electricity providers to make reasonable and proper inspection of their wires and other equipment and to use due diligence to discover and repair defects. A failure to perform such duty constitutes negligence. Asher v. Kosrae, 8 FSM Intrm. 443, 450 (Kos. S. Ct. Tr. 1998).

Torts - Duty of Care
An electricity provider must make reasonable and proper inspections of its appliances with such frequency as appears reasonably necessary, and use due diligence to discover and remedy defects so that injury will not result. The presence of a conspicuous defect or dangerous condition of the electrical appliance which has existed for a considerable length of time will create a presumption of constructive notice of the defect. Asher v. Kosrae, 8 FSM Intrm. 443, 450 (Kos. S. Ct. Tr. 1998).

Torts - Negligence
The placing of a guy wire within areas that are traveled may constitute negligence where the wire is not guarded, covered, rendered easy to see, and a person is injured by a collision with it. An electricity provider can be held liable for injures sustained from a collision if it is shown that the company's negligence in the erection or the maintenance of such wire was the proximate cause of the injury. The test is whether the injury under all of the circumstances, might reasonably been foreseen by a person of ordinary intelligence and prudence. Asher v. Kosrae, 8 FSM Intrm. 443, 450 (Kos. S. Ct. Tr. 1998).

Torts - Negligence
It is reasonably foreseeable to a person of ordinary intelligence and prudence that a dangling, frayed wire could cause injury to passersby in the vicinity of the pole and wire. Asher v. Kosrae, 8 FSM Intrm. 443, 450 (Kos. S. Ct. Tr. 1998).

Torts - Negligence
A state will be liable for damages resulting from personal injury as a result of a collision with a guy wire when the state erected and maintained the guy wire to support a pole carrying its electric transmission wires, when for a considerable length of time prior to the accident it failed to make reasonable and proper inspections of the guy wire as necessary and failed to use due diligence to discover and remedy the defective guy wire so that that injury would not result, and when the type injury which occurred was reasonably foreseeable. Asher v. Kosrae, 8 FSM Intrm. 443, 450 (Kos. S. Ct. Tr. 1998).

Torts - Causation