Ychitaro v Lotius [1965] TTLawRp 1; 3 TTR 3 (19 January 1965)

3 TTR 3

YCHITARO,
Appellant,

v.

LOTIUS,
Appellee

Civil Action No. 192
Trial Division of the High Court
Truk District

January 19, 1965

Appeal from judgment of District Court awarding $1,000.00 in damages to plaintiff, father of student child who drowned as result of defendant teacher's negligent operation of motorboat. The Trial Division of the High Court, Chief Justice E. P. Furber, held that father could sue as personal representative of deceased. The Court further held that Truk customary law on liability for negligence resulting in death was unclear and that rules of American common law were controlling. The Court also held that teacher was liable for negligence which was proximate cause of death of child but that damages must be limited to present value in dollars of services which next of kin may have reasonably expected from deceased, reduced by the additional expense of raising her.

Modified and affirmed.

1. Torts – Wrongful Death

Teacher who permits students to over-crowd boat which he is operating so that boat capsizes and child drowns is negligent, and his negligence is proximate cause of child's death

2. Torts – Negligence

Where defendant in negligence action is public school teacher, question of liability should be governed by American common law rules since matter of schools and responsibility of teachers is foreign to Truk custom and there is no express provision as to teacher's liability in written enactment.

3. Trust Territory – Applicable Law

Rules of common law as expressed in restatements of law and generally understood and applied in United States are rules of decision in courts of Trust Territory in cases to which they apply, in absence of written or customary law. (T.T.C., Sees. 20, 21, 22, 24)

4. Torts – Negligence – Vicarious Liability

Public schools and boards which control them are not held liable for injuries caused to pupils by negligence of teachers or other employees of school in performance of their duties.

5. Torts – Generally

Tort is legal term for wrong independent of contract, including both wilful and negligent wrongs.

6. Torts – Immunity – Government

Immunity extends to municipal corporations which are not liable for torts committed in course of purely governmental functions.

7. Torts – Immunity – Public Employees

Immunity of school and municipal corporation does not extend to individual whose wrongful conduct caused injury, whether he is public officer or employee.

8. Torts – Generally

Individual should be liable in damages for injuries caused by negligence or wilful wrong.

9. Torts – Immunity – Public Employees

Board of education is not liable for torts committed in exercise of governmental function, but where members are sued in individual capacities, no legal theory insulates public official from personal tortious acts.

10. Torts – Immunity – Public Employees

Fact that defendant in tort action was public school teacher at time of incident does not relieve him of liability he might otherwise have.

11. Truk Custom – Torts – Wrongful Death

Under Truk custom, there is no consensus on matter of liability for unintentionally causing death.

12. Truk Custom – Torts – Wrongful Death

Under Truk custom, in former times, compensation for death was paid by transfer of land from lineage of wrong-doer to lineage of deceased.

13. Truk Custom – Torts – Wrongful Death

Under Truk custom, deaths caused unintentionally have been forgiven where person causing death has shown proper regret, sorrow, and sympathy for surviving members of family or lineage of deceased.

14. Truk Custom – Torts – Wrongful Death

If there is liability for money damages under traditional Truk custom for unintentionally causing death, it should go to deceased's lineage rather than to father.

15. Truk Custom – Torts

Under Truk custom, there be no such thing as liability for negligence, there being no middle ground between absolute liability for all harm inflicted or intentional wrongs only.

16. Custom - Generally

"Custom" is usage by common consent, or uniform practice which becomes law of place or subject matter to which it relates.

17. Custom – Generally

Custom must be accepted by those upon whom it places burden as well as by those who hope to profit from it.

18. Torts – Wrongful Death

Where court can·find no custom as to liability in money damages for unintentionally causing death, it must hold that liability for wrongful death which is not wilful does not depend on custom but on other parts of law.

19. Torts – Negligence

Where court found liability for damages arising out of automobile accident in Palau District, case involved new elements introduced by outsiders, not covered by local custom, and governed by rules of common law. (T.T.C., Sec. 22)

20. Torts – Negligence

Liability for damages arising out of motorboat accident is governed by rules of common law.

21. Admiralty – Motorboats

In case of accident involving motorboats, there may be liability in admiralty.

22. Torts – Negligence

Liability for negligence in situations not clearly covered by local custom in part of Trust Territory concerned must be governed by common law principles so far as not governed by any written law.

23. Torts – Negligence

Common law concept of negligence is very broad.

24. Torts – Negligence

Negligence is omission to do something which reasonable man guided by considerations which regulate conduct of human affairs would do, or doing something which reasonable man not do.

25. Torts – Negligence

Actionable negligence is violation of duty to use care.

26. Torts – Negligence

If person's negligence causes injury to person or property of another as natural, direct and immediate result of the negligence, negligent person will be held liable to pay injured person value in money of damage caused, provided injured person was acting properly at time of injury.

27. Torts – Negligence – Standard of Care

Teacher has duty to use reasonable care to protect students from danger.

28. Torts – Negligence – Standard of Care

Teacher has duty to prevent third persons from intentionally harming students or conducting themselves in such manner as to, create unreasonable risk of harm to students.

29. Torts – Negligence – Standard of Care

In determining what is reasonable care in action for tort, standards of people and area involved must be considered.

30. Torts – Wrongful Death – Personal Representative

Personal representative of deceased may bring any action for wrongful death such as would have entitled party injured to maintain action if death had not ensued. (T.T.C., Sec. 25(a) and (b) )

31. Torts – Wrongful Death – Damages

Court may award damages in wrongful death actions not exceeding ten thousand dollars, proportional to pecuniary injury resulting from such death, to surviving spouse, children or other next of kin. (T.T.C., Sec. 25(b) and (c) )

32. Torts – Wrongful Death – Personal Representative

Requirement of bringing action for wrongful death in name of personal representative of deceased is procedural matter which should not affect question of liability except to protect defendant from actions by other claimants.

33. Torts – Wrongful Death – Personal Representative

Logical person to represent deceased in wrongful death action in Truk is father or maternal uncle of deceased child.

34. Torts – Wrongful Death – Damages

In wrongful death action, court may grant money damages to next of kin only for pecuniary injury and not for sorrow or grief.

35. Torts – Wrongful Death – Damages

Past expenditures for child is not proper measure of damages in action for wrongful death of child.

36. Torts – Wrongful Death – Damages

Pecuniary benefits in wrongful death action include present value of future -services and value of any services rendered immediately before death.

37. Torts – Wrongful Death – Damages

In case of a child, pecuniary damages in wrongful death action is the excess in present value in dollars of services which next of kin might reasonably have expected from deceased, reduced by the additional expense which they would have incurred in raising her.

FURBER, Chief Justice

This is an appeal from a judgment of the Truk District Court in favor of the father of a ten-year old girl against the girl's public schoolteacher for causing her death. The father requested one thousand dollars ($1,000) damages and the District Court granted judgment for that amount.

[1] There was no dispute about most of the basic facts. The teacher was endeavoring to take his students by outboard motorboat in the waters of Truk Atoll to see a cacao plantation. He was personally operating the boat, which was badly over-crowded; he was the only adult on board and says the plug was out of order; when he speeded up the motor, the bow went under the water, the boat capsized, and in the excitement, the ten-year old girl in question drowned. The teacher testified that he asked four children who had jumped on the boat at the last minute to get off, but that they failed to do so. He proceeded on the trip, however, and speeded up the motor. From the evidence it appears clear that the defendant appellant's negligence was what caused the child's death without the intervention of any new cause which was not naturally to be expected. That is, his negligence was what is called in legal terms the "proximate cause" of the child's death. The principal questions raised by this appeal, therefore, are whether he is liable in money damages for the death, and if so, for how much, and to whom.

Counsel for the defendant-appellant raised three main grounds for appeal:-.

1. The defendant-appellant was acting as a teacher. As he understands it, American schools and other governmental bodies are not liable for the injuries caused in the exercise of governmental functions, and that rule should apply in the Trust Territory.
2. The defendant-appellant never intended or desired that the child should drown; her death was accidental; he had gone promptly to the child's father and expressed his regret, sorrow, and sympathy. Therefore, under Trukese custom he should be forgiven and not required to pay damages.
3. The damages awarded are excessive since the child was only ten years old and didn't work regularly.