v.
COUNTRY CLUB,
and
High Court of
Trial Division
CA No. 121-95
[1] A land possessor is
not an insurer of the safety of its invitees against the acts of third persons,
but it has duty to exercise reasonable care in providing them protection, and
there being a sufficient history of violence at drinking establishments in
American Samoa to warrant adequate security, the defendant, as such an
establishment, owed a duty to the plaintiff to provide a reasonable number of
security personnel to afford patrons reasonable protection.
[2] A drinking
establishment would be vicariously liable for the negligence of its employees
only if it discovers, or in the exercise of reasonable care should discover, an
impending or occurring accidental, negligent, or intentionally harmful act of a
third person.
[3] Security guard
employees of a drinking establishment have a duty to [2ASR3d121] act reasonably under the circumstances, but do not have
a duty to risk their lives, or a duty to act perfectly; for liability to
attach, the evidence must show that they acted unreasonably in trying to prevent
a fight, to protect a patron, or in rendering aid to the patron.
[4] Under A.S.C.A.
§ 27.0531 (a) and (f), a drinking establishment has a duty to refuse entry
and service to an intoxicated person, and this duty is breached when alcohol is
served to a person who, by his staggering, slurred speech, spitting while
talking, glazed eye, and not making sense, is obviously intoxicated, and should
have been reasonably discernible to the establishment’s employees.
[5] Negligent conduct is
the legal cause of harm to another if the conduct is a substantial factor in
bringing about the harm, but the negligent serving of alcohol to a person is
not a substantial factor in that person’s injuries where no evidence shows that
he drank it.
[6] A drinking
establishment breaches its duty under A.S.C.A. § 27.0531(f) when its
employees allow an intoxicated person to enter its premises.
[7] Allowing an
intoxicated person to enter a drinking establishment increases the foreseeable
and predictable risk that the person will be involved in a drunken altercation,
and the establishment is not excused from liability when that person suffers
injuries during such an altercation with employees and other patrons, and the
establishment is therefore liable for its proportionate share of those
injuries.
[8] A plaintiff seeking
damages for injuries has the burden of proving by a preponderance of the
evidence that a defendant acted to cause harmful contact with him.
[9] Judicial notice may be
taken of the court’s records in the criminal cases involving the same incident
as the civil case, and those records may be sufficient to support a default
where the defendants fail to appear at the civil trial.
[10] Under A.S.C.A. §
43.5101, contributory negligence is not a bar to recovery in actions brought
for personal injuries; rather, damages are diminished by the court in
proportion to the amount of negligence attributable to the person injured, and
a person who voluntarily consumes alcohol to the point of intoxication is at
least partially responsible for his own injuries.
[11] Where a battery by
the defendants is not the superseding cause of the plaintiff’s injuries, but
was the principal cause of his harm, they are [2ASR3d122] jointly and severally liable for their share of the
damages to the plaintiff.
[12] Recovery of
punitive or exemplary damages are not denied merely because the wrongful act on
which the action is based may be criminally punished; punitive damages are
awarded for the sake of example and by way of punishment, and are not
unreasonable double punishment.
[13] For punitive or
exemplary damages to be awarded, there must exist circumstances of aggravation
or outrage which includes malicious conduct, and where a beating exhibited a
callous disregard for the value of human life, such damages are appropriate.
Before KRUSE, Chief
Justice, TAUANU`U, Chief Associate Judge, and SAGAPOLUTELE, Associate Justice.
Counsel: For
Plaintiff, Jennifer L.
For Defendants Apoua and Bill Tedrick d.b.a. The
Country Club,
OPINION AND ORDER
Facts
Sometime in the early
afternoon of February 24, 1994, plaintiff (“Masania`i”), then a Marine Patrol
Officer with the Department of Public Safety, began drinking alcohol with some
fellow officers after spending a morning cleaning one of their Marine Patrol
vessels. Masania`i continued to drink a
large quantity of alcohol throughout the day and into the early evening. He eventually ended up at the home of one of
his fellow officers, and continued drinking solidly until approximately
After entering the
Country Club, Masania`i tried to order a drink but had no money. He then persuaded two or three different
people to buy him drinks. The cashier
sat these drinks in front of Masania`i, but testified that she did not see
Masania`i actually drink them. [2ASR3d123]
After approximately one
hour, Masania`i approached a table to speak with Lena Sevaaetasi
(“Sevaaetasi”).
As Kisena,
Immediately after the
bottle hit Masania`i, other young men ran outside. Schwenke immediately grabbed
Masania`i and dragged him from where he fell in between cars into the open parking
lot. Schwenke, Alefosio, and Tiumalu
then began beating and kicking Masania`i.
There is contradictory evidence as to who helped stop the fight but it
appears that Kisena, Pau and Vitale all tried, to some extent, to protect
Masania`i. Apparently the beating lasted
less then a minute and then stopped abruptly, with Schwenke, Alefosio and
Tiumalu returning into the Country Club.
Immediately after the
attack, Kisena brought Masania`i ice and a towel and Vitale cleared Masania`i’s
bloody nose so he could breathe. When
the police arrived a short time later, Kisena and Vitale helped place Masania`i
in the patrol car for transport to the hospital. [2ASR3d124]
Discussion
Masania`i brings this
action to recover the damages he suffered that evening. His action against the Tedricks and the
Country Club (referred to jointly as the “Country Club”) is based upon three
theories: first, that the Country Club breached its duty to provide reasonable
security; second, that the Country Club is vicariously liable for the negligent
acts of its employees; and, third, that the Country Club breached its statutory
duty to refuse to allow admittance to an intoxicated individual and to serve
alcohol to an intoxicated individual, violations of A.S.C.A. §§ 27.0531(a)
and (f) respectively.
Masania`i also sues
I. The Country Club
A. Negligence
[1] First, Masania`i alleges the Country Club breached the duty
a land possessor owes an invitee. While
a land possessor is not an insurer of the safety of its invitees against the
acts of third persons, it has duty to exercise reasonable care in providing
them protection. Restatement (Second) Torts § 344, cmt. d.[1]
The Country Club is a
drinking establishment. The evidence
presented at trial suggests that a sufficient history of violence exists at
this, and other drinking establishments in
We conclude that the
Country Club, as a drinking establishment in
B. Vicarious Liability
[2] Masania`i also argues that the employees of the Country
Club acted negligently and that the Country Club would therefore be vicariously
liable for their negligence. Masania`i
argues that the Country Club employees had a duty to act reasonably in
rendering aid to him and that they failed to do so. As stated above, this duty arises only if the
land possessor or his employee discovers, or in the exercise of reasonable care
should discover, an impending or occurring accidental, negligent, or
intentionally harmful act of a third person.
Specifically, Masania`i
argues that the security guards acted negligently in removing him from the
premises without adequately insuring that the assailants remained inside the
establishment until he was out of danger.
As stated above, the
security guards immediately broke up the fight inside the Country Club,
separated the combatants, and escorted Masania`i outside. Vitale, however, had no idea that an
altercation had occurred inside when Schwenke ran past him. Before Vitale could adequately inform
himself, Schwenke had already thrown the bottle. At that time, many other people came running
out of the Country Club and an immediate, vicious beating ensued which was over
as fast as it began. During this very short period of time, the security guards
did their best to protect Masania`i, risking serious harm to themselves in the
process.
[3] The employees had a duty to act reasonably under the circumstances.
The employees did not have a duty to risk their lives, and they did not have a
duty to act perfectly. It is true that
the security guards could have acted differently, and had they done so,
Masania`i may not have been injured as much.
However, the evidence is insufficient to show that any employee of the
Country Club acted unreasonably in trying to prevent the fight, protect
Masania`i, or in rendering aid to Masania`i after the beating was over.
We, therefore, find that
none of the employees of the Country Club acted negligently in rendering aid to
Masania`i, and thus no employee negligence exists for which the Country Club
can be held vicariously liable.
C. Violation of A.S.C.A. § 27.0531
[4] Masania`i also argues that the Country Club breached its
statutory duty to refuse entry and service to an intoxicated person. See A.S.C.A. §§ 27.0531 (a) and
(f). [2ASR3d126]
Both Kisena and Alama
testified at trial that they could discern that Masania`i had been drinking
but, based on their experience, he did not appear to them to be
intoxicated. They also testified that it
is the policy of the Country Club to deny access to any person who appears
intoxicated. We find, however, that
Masania`i was intoxicated and his condition should have been visibly apparent
to Kisena and Alama, as it was to others.
(1) Prohibited Service
A.S.C.A.
§ 27.0531(a) prohibits the service of alcohol to intoxicated
individuals. It is clear from the
testimony that although Masania`i did not purchase alcohol for himself, he was
indeed served alcohol while he was intoxicated.
As such, we find that the Country Club breached its statutory duty to
deny service to intoxicated persons. The
next question, however, is whether that breach was the proximate cause of
Masania`i’s injuries.
[5] An actor’s negligent conduct is the legal cause of harm to
another if his conduct is a substantial factor in bringing about the harm. Restatement (Second) Torts
§ 431(a). Because no evidence
suggests that Masania`i drank the beers that were served to him, we cannot find
that the
(2) Prohibited Admission
[6] A.S.C.A. § 27.0531(f) prohibits a licensee from allowing
intoxicated persons to enter the premises.
As stated above, we find that Masania`i was intoxicated upon entering
the Country Club. Since the Country
Club’s employees allowed Masania`i entrance, the Country Club breached its duty
under A.S.C.A. § 27.0531(f). [2ASR3d127]
[7] Again, causation turns on whether the Country Club’s breach
of its statutory duty to deny Masania`i entrance into the club when he was
intoxicated was a substantial factor in bringing about the harm Masania`i
suffered. In order to be a legal cause
of another’s harm, it is not enough that the harm would not have occurred had
the actor not been negligent. Restatement
(Second) Torts § 431 cmt. a.
The negligence must be a substantial factor in bringing about the
harm. See
We hold that one of the
harms § 27.0531(f) was designed to prevent is harm to intoxicated
individuals and patrons of a licensed drinking establishment. It is clear that intoxicated individuals have
an increased tendency to be drawn to altercations.[2] Drunken behavior is highly unpredictable;
slight irritations, whether real or imagined, readily lead to aggressive and
irrational behavior on the part of the inebriates.[3] As such, we find that the conduct of the
Country Club in allowing Masania`i to enter the club while he was intoxicated
increased the foreseeable and predictable risk that Masania`i would be involved
in an altercation. Since the harm that
Masania`i received was indeed the result of a drunken altercation, we find that
this harm was well within the scope of the risk created by the Country Club’s
inexcusable failure to refuse entry to Masania`i as mandated by statute. See Restatement (Second) Torts § 442B. We look upon the Country Club’s statutory
breach with grave disapprobation.
Accordingly, we find that the actions of Schwenke, Tiumalu, and Alefosio
does not excuse the Country Club from liability and that the Country Club’s
negligence in allowing entrance to Masania`i was a substantial factor in
bringing about his injuries. [2ASR3d128] Therefore, we find that the Country Club is
liable for its proportionate share of those injuries. We will address the apportionment of
liability below.
II.
[8] Fairholt was initially charged with assault and battery,
but was acquitted at the criminal trial.
Masania`i has offered little evidence to suggest that Fairholt
participated in the beating. Although
some testimony was offered by
III.
[9] Both Tiumalu and Alefosio failed to appear at trial. We take judicial notice of the court’s
records in
IV. Comparative Fault
[10] In this jurisdiction, contributory negligence is not a bar
to recovery in actions brought for personal injuries. See A.S.C.A. § 43.5101. Rather, damages shall be diminished by
the court in proportion to the amount of negligence attributable to the person
injured.
As we stated in our
Order on the Motion to Dismiss, CA No. 121-95, slip op. at 6 (Trial Div. March
4, 1997), we believe that a person who voluntarily consumes alcohol to the
point of intoxication is at least partially responsible for his own injuries. Although we obviously do not believe that
Masania`i deserved the injuries that he received or that violence is the
appropriate reaction to offensive language, we do believe that Masania`i’s own
actions contributed to his injuries and must hold [2ASR3d129] him accountable for his actions at least to some
extent.
V. Liability
[11] We find that the battery by Schwenke, Alefosio, and
Tiumalu, while not the superseding cause of Masania`i’s injuries, was the
principal cause of his harm. Since
Schwenke is now deceased and his estate was not joined in this action, we hold
that Alefosio and Tiumalu are jointly and severally liable for 50 percent of
the damages sustained by Masania`i.
We hold that Masania`i’s
own actions contributed to the cause of his injuries by 25 percent.
We find that the Country
Club’s breach of its statutory duty under A.S.C.A. § 27.0531(f) reflected
25 percent of the cause of Masania`i’s injuries.
VI. Damages
Masania`i claims he has suffered
substantial injuries and continuing damages.
Overwhelming evidence shows that Masania`i indeed sustained substantial
injuries and continues to suffer as a result of those injuries. Prior to his injuries, Masania`i was a
healthy 42-year-old athletic person. He
had had 10 years of employment with the Department of Public Safety having made
the rank of Watch Commander within the department’s Marine Patrol
Division. Masania`i is reduced to a
pathetic figure beset by severe bouts of melancholy because his injuries have
left him debilitated: partially paralyzed, and bereft of sensory faculties,
motor skills and muscular control.
The head trauma
sustained from the beating resulted in the loss of his visual acuity, blurring
of his sight, and “tunnel vision,” the substantial constriction of one’s field
of vision. Moreover, he has lost his
spatial judgment, leaving him prone to bumping into things. Nerve damage from shattered bone fragments in
his face has resulted in facial paralysis and the loss of his sense of taste
and smell. Masania`i is also unable to
close his eyelids properly, which required his undergoing a surgical insertion
of gold weights in his eyelids. He now
has to continuously use eye drops (as artificial tears) to lubricate his
eyes. He has difficulty speaking and
eating, because he has lost some control of his mandibular muscles. Consequently, he has difficulty in not only
chewing his food but even keeping it in his mouth. This has also left him facially disfigured, a
source of constant embarrassment to him to the extent that he avoids contact
with other people. He also suffers
post-traumatic hearing impairment, tinnitus, severe headaches, and bouts of
dizziness. [2ASR3d130]
A. Future Wages
Masania`i is permanently
disabled economically. We find
In addition, the
discounted present value of plaintiff’s projected lost retirement benefits from
the date of his retirement at age 65 over his projected life span of 82.6 years[4]
reduced by the amount of medical retirement benefits that he is due to receive
is $31,468.00.
Therefore, total lost
wages and retirement benefits that the plaintiff is owed as a result of his
injuries are $317,995.
B. General Damages
In consideration of
plaintiff’s past and present circumstances, his bleak prognosis, uncertain
future, and his multiple debilitating injuries, we fix general damages,
including pain and suffering, in the amount of $100,000.
C. Punitive Damages Against Alefosio and
Tiumalu
[12] The majority of states hold that recovery of punitive or
exemplary damages will not be denied merely because the wrongful act upon which
the action is based may be or has been criminally punished. 22 Am.
Jur. 2d, Damages § 757. The
minority view would bar recovery on the basis of double jeopardy.
[P]unitive damages are
principally awarded for the sake of example and by way of punishment. Viewed from this perspective when a defendant
has been criminally prosecuted [2ASR3d131]
and sentenced, punitive damages are not unreasonable double punishment.
[13] The beating plaintiff suffered at the hands of Schwenke,
Alefosio, and Tiumalu exhibited a callous disregard for the value of human
life. Indeed, these defendants’ actions
would have ended in death had it not been for the intervention of Kisena and
others. The actions of these defendants
may be characterized as an abominable savagery and cowardice that shocks the
conscience. Vitale the security guard
openly wept on the stand as he recounted in disbelief the sheer horror of the
evening’s events that he witnessed in the Country Club’s parking lot.
We conclude that
punitive or exemplary damages against Alefosio and Tiumalu are appropriate and
accordingly award such damages in the amount of $100,000.
Conclusion
Defendants Alefosio and Tiumalu
are jointly and severally liable for 50 percent of all damages as follows:
$158,997 for future earnings, $50,000 for general damages including pain and
suffering and $100,000 in punitive damages.
Total damages being $308,997.
Defendants
Judgment will enter
accordingly.
It is so Ordered.
**********
[1] The Country Club argues that it does not own
the parking lot and is not responsible for any injury that occurred there. Substantial evidence showed that the Country
Club exercised exclusive dominion and control over the parking lot during
evening hours. Moreover, the fight
outside was a continuation of the fight that began inside. See also Holiday Inns v. Shelborne [ ],
576 So. 2d 322 (Fla.Dist.Ct.App. 1991).
[2] There can little argument that there is a
relationship between alcohol and aggression.
The High Court’s criminal case files reveal that the bulk of violent
crimes committed in the territory are alcohol-related, and that a significant
number of aggravated assaults occur in bars or among drinking companions.
[3] These are factors that would clearly have
been in the Fono’s contemplation when it enacted A.S.C.A. § 27.0531(f),
an enactment that provides some ameliorative measures to the territory’s
alcohol-related problems by imposing on liquor establishments the duty to, inter
alia, refuse entry to intoxicated individuals.
Moreover, this community’s alcohol per capita consumption is staggering,
lending even more reason for alcohol related caution. According to the most current published
statistics from the Research and Statistics Division, of the Economic Planning
Development Office, the territory’s population in 1995 was estimated at 56,000,
while the value of its beer imports alone for the preceding year 1994 was given
at $1.6 million. These statistics are
even more striking when compared to our very minimal tourism industry. A mere 7,337 tourists visited the territory
in 1995.
[4] The Country Club argues that the life
expectancy for a Polynesian man is lower than the life expectancy for a
Caucasian man. In 1980, the life
expectancy for a Samoan was 75.3 years.