2 MILR 114

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.Ct. CIVIL NO. 96-06
(High Ct. Civil No. 96-54)

JORBI ANITOK,
Plaintiff-Appellee

-v-

TILLY BINEJAL,
Defendant-Appellant.

APPEAL FROM THE HIGH COURT

JANUARY 6, 1998

FIELDS, C.J.
TAYLOR, A.J. pro tem,1 and DANZ, A.J. pro tem2

SUMMARY:

Plaintiff failed to establish any negligent act of defendant and attorney's fees are not to be awarded in the absence of a contractual obligation or unless allowed by statute.

DIGEST:

1. TORTS - Negligence - General: Negligence is the omission to do something an ordinarily prudent person would have done or the doing of something which an ordinarily prudent person would not have done under such circumstances.

2. CIVIL PROCEDURE - Claims - When Made: As a general rule, a plaintiff should not be prevented from pursuing a valid claim just because he did not set forth in the complaint a theory on which he could recover, "provided always that a late shift in the thrust of the case will not prejudice the other party in maintaining his defense upon the merits."

3. ATTORNEYS - Fees: Under "common law" attorney's fees are not awarded to the prevailing party in the absence of an agreement between the parties or a statute authorizing the award of attorney's fees.

OPINION OF THE COURT BY FIELDS, C.J.

Plaintiff-Appellee claimed Defendant-Appellant was negligent in the operation of Appellant's [Appellee's ?] boat (Bum-Bum) and that as a result of the damage done to the boat and the loss of the contents, the Defendant should pay for the losses and should also reimburse Plaintiff for the attorney's fees incurred in bringing this law suit.

Plaintiff-Appellee was to deliver to Defendant-Appellant certain goods on Arno Atoll. Defendant was to pay for the goods upon delivery on Arno. This was in accord with their previous transaction. Plaintiff directed his son to load the bum-bum and to deliver the goods to Arno. The son navigated the bum-bum into the channel underneath the bridge going from the Majuro Lagoon out into the ocean for the short trip to Arno. According to the testimony of Plaintiff his son had little experience in navigating that channel, and he requested Defendant to assist his son if necessary. Plaintiff did not go on the bum-bum on this trip, but rather directed the son to take the bum-bum to Arno. The son was never told by the father not to make the trip to Arno. Once in the channel the son of Plaintiff became concerned about the wave action coming in from the ocean side. He voluntarily handed over the wheel of the boat to Defendant. Defendant testified that it was then too late to turn the bum-bum around and at that point a large wave overturned the Bum-bum. The cargo was lost in the water and the bum-bum suffered damage on being washed onto the rocks.

Plaintiff then filed suit claiming a breach of contract made the Defendant liable for the damage to the bum-bum, the lost cargo as well as attorney's fees incurred by Plaintiff in bringing this action. During argument by Plaintiff's attorney the trial Judge advised counsel that he would not award judgment based on his claim on a contract theory but would only give a judgment on a theory of negligence. Thereupon the wise counsel then argued that Defendant was negligent and that Plaintiff should prevail as a result of his negligence. No negligence was pled, only a cause of action on contract can be found in the pleadings.

I

[1] Negligence is the omission to do something an ordinarily prudent person would have done or the doling of something which an ordinarily prudent person would not have done under such circumstances. The Restatement of Law (Rest. 2nd Torts § 282) defines the term as follows "Negligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm." The conduct of Defendant did not fall below a standard of conduct that a reasonable ordinary person would have done under the same circumstances. Defendant took control of the bum-bum after the Plaintiff's employee, his own son, navigated it into the channel from which it could not turn around but only go foreword. There is no evidence that Defendant could have taken any action to avoid the consequences of the oncoming wave. An act of God, or any accident that occurs does not necessarily mean that someone was negligent. There must be some evidence introduced before the trier of fact to show that the conduct of the party failed to meet the standard required of an ordinarily prudent person. The transcript of the proceedings in this action fails to show any negligence of the part of Defendant-Appellant.

II

While the court does not have to decide the issue of pleading of one cause of action only to be changed at the direction of the trial judge during argument, such practice should be discouraged. The change in theories should be done by counsel prior to the commencement of the trial and not after the introduction of all the evidence and then at the insistence of the trial Judge.

[2] As a general rule, a plaintiff should not be prevented from pursuing a valid claim just because he did not set forth in the complaint a theory on which he could recover, "provided always that a late shift in the thrust of the case will not prejudice the other party in maintaining his defense upon the merits." 5 C. Wright & A. Miller, Federal Practice & Procedure, Sec. 1219 at 94 (1990). Evans v. McDonalds 936 F.2d 1087, 1090 (1991). The purpose of "fact pleading," as provided by Fed.R.Civ.P. 8(a)(2), is to give the defendant fair notice of the claims against him without requiring the plaintiff to have every legal theory or fact developed in detail before the complaint is filed and the parties have opportunity for discovery. The liberalized pleading rules do not permit plaintiffs to wait until the last minute to ascertain and refine the theories on which they intend to build their case. This practice, if permitted, would waste the parties' resources, as well as judicial resources, and would unfairly surprise defendants, requiring the court to grant further time for discovery or continuances.

III

[3] Under "common law" attorney's fees are not awarded to the prevailing party in the absence of an agreement between the parties or a statute authorizing the award of attorney's fees. Huecker v. Milburn, 538 F.2d 1241, 1245 (CA6 1976). 6 Moore's Fed. Prac. § 54.77. This Court hereby adopts and declares the "common law" America Rule to be the law of the Marshall Islands. The trial court's ruling to the contrary is hereby rejected.

The judgment is hereby reversed. The trial court is hereby ordered to set aside its judgment heretofore entered in this case and to enter judgment in favor of Defendant-Appellant, Tilly Binejal.

Harold Van Voorhis, Trial Court Judge
Filimon M. Manoni, for Appellant
Hemos.A. Jack, for Appellee

_______________

1Honorable Marty W.K. Taylor, Chief Justice of the Supreme Court of the Commonwealth of the Northern Mariana Islands, sitting by designation by the Cabinet.

2Honorable Gregory J. Danz, Member of the Nuclear Claims Tribunal, sitting by designation by the Cabinet.