MEAFATU ALA,
Plaintiff,
v.
AMERICAN SAMOA GOVERNMENT, Defendant.
High Court of American Samoa
Trial Division
CA No. 133-95
August 18, 1998
Before RICHMOND, Associate
Justice, and LOGOAI, Associate Judge.
Counsel: For
Plaintiff, Jennifer L. Joneson
For Defendant, Gwen F.
Tauiliili-Langkilde, Assistant Attorney General
[1] Sovereign immunity protects the American Samoa
Government from any claim based upon the exercise or performance of, or the
failure to exercise or perform, a discretionary function or duty on the part of
an officer or employee, whether or not the discretion involved is abused.
[2] Governmental conduct at the planning stage should
usually be considered discretionary, while the actions government specifically
undertakes to carry out its programs and policies should usually be considered
operational.
[3] Routine cleaning or maintenance is not a
discretionary governmental function but is operational in nature.
[4] When sovereign
immunity is waived, the government is liable in the same manner and to the same
extent as a private individual under like circumstances.
[5] In American Samoa,
a land occupant’s duty of care is not governed by abstract classifications of
those persons who enter the land such as invitee, licensee, and trespasser; but
is instead based on ordinary principles of negligence.
[6] The owner of land is
under a duty to exercise ordinary care in the maintenance of these premises in
order to avoid exposing persons to an unreasonable risk of harm caused by unsafe
conditions on its premises. [2ASR3d164]
[7] Ordinary care is
that care which persons of ordinary prudence would use to preclude injury to
themselves or others under these or similar circumstances.
[8] When an unreasonable
and foreseeable risk is the product of a dangerous condition existing on land,
the duty of ordinary care is breached if the owner had knowledge of the
dangerous condition or if the condition existed for such a length of time that
the owner, by using reasonable care in inspecting the premises, would have
discovered the condition in time to remedy it or to give warning before the
injury occurred.
[9] Knowledge of a
dangerous condition acquired by an owner’s employee in the course and scope of
his or her employment is imputed to the owner from the time the employee
created or discovered, or should have discovered, the condition.
[10] Where floor was wet
and dirty from water, human waste, and debris, and maggots were present, it was
properly inferred that a dangerous, slippery condition had existed for a
substantial period of time.
[11] A legal cause of an
injury is something that is a substantial factor in bringing about an injury.
[12] American Samoa follows the comparative
negligence doctrine.
[13] When a plaintiff’s own negligence is a
contributing cause in bringing about his injury, damages must be reduced by the
percentage of fault attributable to his actions and recovery may even be
eliminated in an appropriate case.
[14] Where dangerous, slippery condition was obscured
by dim lighting and where plaintiff approached and entered room cautiously, he
was not contributorily negligent.
[15] Although a
plaintiff may not recover damages for preexisting conditions and disabilities,
he or she is entitled to recover for the exacerbation of such attributable to a
subsequent fall.
OPINION AND ORDER
Plaintiff Meafatu Ala (“Ala”)
filed this action for damages against defendant American Samoa Government
(“ASG”) resulting from a slip and fall accident on ASG’s premises on April 28,
1995. ASG claimed sovereign immunity in
a motion for summary judgment. The court
denied the motion without prejudice to develop this defense further at [2ASR3d165] trial. The trial began on April 9 and concluded on
April 14, 1998.
Facts
The
premises at issue is a restroom in Lions
Park (“the restroom”), a
public park managed by ASG’s Department of Parks and Recreation (“DPR”). ASG designed and installed the restroom. The restroom is of concrete block construction. It has two separate toilet rooms accessible
by a single front entrance, which is closed by a steel bar door when locked. The two separate toilet rooms are
windowless. They do not have electric light
and are illuminated only by daylight around the eaves and above the block wall
immediately behind the front entrance.
The two separate toilet rooms are not marked with “men” and “women”
signs.
DPR maintains the restroom, along with the restrooms
at the golf course, baseball field, public market, and four other public
parks. The crewmen, usually two, are
scheduled to open and clean the restrooms daily, beginning between 5:30 and
6:00 a.m., and to close them, between 5:00 and 6:00 p.m. The crewmen normally start at either the most
easterly or westerly facility and move in the order of locations to the other
end. However, if a location is reserved by a particular group for use at a
particular time, the crew will adjust the schedule to accommodate the group. The cleaning routine includes sweeping,
hosing, and scrubbing the restroom floors.
Supervisors check the restrooms, as their schedules permit, and, if
necessary, require the crew to return to clean them. When the restrooms are closed for an extended
time, checks are also sporadically made to ensure that the restrooms remain
locked. This maintenance program is
apparently not formalized in writing.
The lead crewman testified that on Friday, April 28,
1998, the date of the incident, the crew did the maintenance work at the
restroom in question at about 10:30 a.m. and the light inside was sufficient
to see the floor. The maintenance routine, however, was not logged. A written statement concerning the incident
was prepared in November 1995 for the lead crewman to sign. The statement essentially described the
cleaning routine and provided that the lead crewman saw no evidence of an
accident. By signing the statement, the
lead crewman also fixed the incident date, apparently suggested to him, as
Thursday, April 27. These factors,
coupled with his demeanor as a witness, clearly demonstrated that the lead
crewman did not have truly independent recollection of his [2ASR3d166] workday events or activities in late April 1995 and
specifically on April 28.
The restrooms at Lions Park
were also occasionally vandalized during the time period of the incident. Locks and lock chains are sometimes broken or
destroyed and taken, leaving the restrooms open until repairs are made.
On April 28, 1995, between 10:30 and 11:00 a.m., the
restroom was unlocked and open. Ala stopped to use the
restroom on his way home from a customary Friday golf game. He hesitated at the initial entrance to look
for “men” and “women” signs. Seeing
none, he entered one of the two toilet rooms.
The floor in this toilet room was wet and dirty from water, human waste,
and debris. The human waste odor was
very strong. Ala,
however, did not see the slippery condition of the concrete floor or take
special note of the odor before he entered the toilet room and fell. Ala’s
eyes probably had not adjusted to the reduced lighting in the unlit room before
he fell. He slipped at his second step
inside and fell to the floor, striking his left side. He was rendered unconscious for a time from
the fall.
Ala’s wife was waiting in their vehicle for him. Concerned at the length of time Ala remained in the
restroom, his wife went into the restroom to check on him. She found Ala on the floor, unconscious, wet with
water and urine, and smeared with excrement containing crawling maggots. When
he regained consciousness, Ala
could not move his left arm. He was in
severe pain. His wife assisted him to
stand and took him home. Because of the intense pain from the swelling and
abnormal position of his left arm, Ala
could not remove his shirt by himself.
His wife and son cut off the shirt and cleaned Ala’s body.
Later, his son and another man pulled Ala’s arm into place. Ala visited
a Samoan fofo that day and went to
ASG’s LBJ Tropical Medical
Center (“LBJ”) the next
day.
Ala dislocated and broke his left shoulder in the
fall. He also injured his back and
neck. The testimony given by both Ala and Dr. John H.
Bannister (“Bannister”) clearly shows that these injuries resulted from the
fall.
ASG sought to disqualify Bannister as an expert
witness. At the time of the trial,
Bannister was chief of surgery at LBJ.
He received his medical degree in Australia
in 1964 and a fellowship in surgery (“F.R.C.S.”) in England in 1972. In 1992, however, an appointed medical
tribunal of New South Wales investigated six complaints against Bannister, and
found him “guilty of professional misconduct” with respect to surgical care in
two cases in 1986 and for “improper or unethical conduct” and being “not of
good character” for charging “phantom visits” from 1985 [2ASR3d167] to 1990. The medical tribunal considered a reprimand
sufficient punishment for the surgical cases, but based on his unethical
charging practices, the tribunal directed that Bannister be deregistered from the
practice of medicine in Australia. Since then, Bannister has not been registered
in Australia but has
practiced medicine in Saudi Arabia
and in American Samoa. Bannister applied for an American Samoa license but, as of the time
of this trial, had not yet been issued a license.
We admitted Bannister’s expert
testimony on the diagnosis and treatment of Ala’s injuries, subject to thorough review
of his background. Bannister has the
prescribed medical education as well as lengthy experience in orthopedic
practice. Since his deregistration was principally based on lack of good
character in management matters, we do take his testimony, along with Ala’s testimony, into
account.
Ala
still experiences stiffness and pain in his left shoulder and pain and numbness
in his left arm. He has difficulty
lifting heavy objects and cannot move his left arm more than 60 degrees above
horizontal. He has degenerative
conditions in the cervical spine, neck pain with related pain in both arms, and
neck movement limited to 50% of the normal range. He has disc pathology at the site of the pain
in his lumbar spine, a sciatica condition with associated pain in the lower
back, left hip, and down his left leg.
Spinal mobility, related to the diseased disc, some spinal deformity,
and lower back pain, is also restricted to about 50% of the normal range. Bannister examined Ala
in August 1997 and found all these medical conditions attributable to Ala’s fall in 1995.
Ala will suffer from these conditions permanently. He
gains some temporary relief from manipulation of his back and shoulder. In August 1997, Bannister administered back
manipulation and a depomedral injection in Ala’s spine under general anesthesia. This treatment provided relief from the
sciatica condition. However, the pain
caused by this condition was recurring at the time of the trial. Surgical removal of the diseased disc and
spinal fusion may be necessary to achieve long-term relief from the sciatica
condition.
Ala was not free from preexisting conditions at the time
of the fall. His left shoulder was
injured in a vehicular accident in 1968.
He suffered a stroke in 1991 with temporary left-side paralysis. In 1993, Ala may have fallen in a bathtub or shower
accident, striking his left side, but he apparently does not recall this
incident now. Left shoulder pain was
recorded by LBJ in 1969 and four times in 1991, and lower back pain in 1990 and
1994. During a Social Security medical
disability examination in 1994, the examining physician noted Ala’s mild stroke;
diabetes; left shoulder, hip and leg pains; restricted left shoulder movement;
about 30% decreased strength in his left hand; walking imbalance due to a very [2ASR3d168] mild left-foot drop; lower
back tenderness; and disc pathology at the same spinal location presently at
issue with other associated degenerative changes.
Bannister opined, giving reasons, that these earlier
events and preexisting medical findings were either unrelated to or consistent
with his medical findings in 1997. He
believes that Ala’s injuries from the
vehicular accident in 1968 were sustained when Ala’s
chest struck the steering wheel and are essentially unrelated to Ala’s injuries from the
fall in 1995. He seems to ignore, however, the LBJ notation in 1991 of a left
shoulder injury from this accident. He
also believes that Ala’s several left shoulder
complaints in 1991 were related to Ala’s
stroke or his plantation work, and are different in nature from Ala’s complaints after
the fall in 1995. He further believes
that since Ala’s
complaints in 1990 and 1994 included chest pain as well as lower back pain,
these symptoms were more likely caused by viral infections. Finally, he believes that Ala’s preexisting medical conditions
recorded in the 1994 examination do not contradict the effects of the fall in
1995.
Discussion
I. Sovereign Immunity
[1] ASG
reasserts governmental sovereign immunity as a first line of defense. ASG essentially argues that Ala’s claim is based on alleged deficiencies
in the design, construction, and maintenance of the restroom, which are
discretionary functions excepted in A.S.C.A. § 43.1203(b)(2) from the waiver of
sovereign immunity by the “Government Tort Liability Act.” A.S.C.A. §
43.1203(b) (2) reads:
(b) The
provisions of this chapter do not apply to:
* * *
(2) any claim
based upon the exercise or performance of, or the failure to exercise or
perform, a discretionary function or duty on the part of an officer or
employee, whether or not the discretion involved is abused;
[2] The
major United States Supreme Court decision in this area, Dalehite v. United
States, 346 U.S. 15,
73 S.Ct. 956, 19 L.Ed. 1427 (1953), held that government conduct at the
planning stage should usually be considered discretionary, while the actions
government specifically undertakes to carry out its programs and policies
should usually be considered operational.
See also Savage v.
Am. Samoa Gov’t, 1
A.S.R.2d 102, 105 (Trial Div. 1983); Hansen v. City of Audubon, 378 N.W.2d 903, 904-05 (Iowa, 1985). The Supreme Court later held that only
governmental action based on considerations of public policy is [2ASR3d169] considered
discretionary. Berkowitz v. United States, 486 U.S.
531, 546-47, 108 S. Ct. 1945, 100 L.Ed.2d 531,
546-47 (1988).
[3] ASG
mischaracterizes Ala’s
claim. The claim is not based on either
the design or construction of the restroom.
Design features are part of the relevant fact mix but not the basis of
the alleged liability. The absence of
“men” and “women” door signs was a minor factor, and the lack of electrical
lighting was a significant factor.
However, the claim does not involve the design decision on these
matters. Rather, the claim is based
simply and solely on improper cleaning maintenance of the toilet room. Restroom cleaning does not involve any
executive decision making at ASG’s policy or program level. It is an operational, non-discretionary
function of ASG to carry out on a daily or other similarly frequent routine.
We hold that sovereign immunity is not a viable
defense for ASG in this action.
II. ASG’s Tort Liability
A. Liable to
Same Extent as Private Parties
[4] We next
address the tort liability issue. When sovereign immunity is waived, ASG “is
liable . . . in the same manner and to the same extent as a private individual
under like circumstances.” A.S.C.A. § 43.1203(a). ASG is responsible for the
negligent act or omission of any ASG employee who is acting in the course and
scope of his office or employment. A.S.C.A. § 43.1209(a). Restrooms under DPR’s
management must be properly maintained for public use. A.S.C.A. § 18.0213. Except for this general statutory direction
and DPR’s informal restroom maintenance program, American Samoa is without relevant statutory
or administrative direction, whether alike or different, on the tort liability
of public and private possessors of land.
Thus, in essence, non-statutory principles of tort liability for either
public or private possessors of land are applicable and determinative in this
case.
B. Strained
Common Law Classifications
The common law categorized persons injured while on
another’s land as invitees, licensees, or trespassers and adopted particular rules
on the duty of care owed to each group in the analysis of imposing tort
liability for the injury on the possessor of the land. See Rowland v.
Christian, 443 P.2d
561, 564-65 (Cal.
1968).
The
conceptual distinctions between these three classifications and the duty owed
to each group were originally clear cut. Id.
at 565. [2ASR3d170]
The
difference between licensees and invitees, however, became blurred, confused,
strained, and complex over time, as courts dealt with situations where the possessor
of land should be obligated, for humanitarian and other social reasons, to
exercise due care for the protection of persons on the land who did not neatly
fit into the rigid concepts of the traditional licensee or invitee categories. Id. at
565-69.
Ala would not be a classical invitee, because he was not
a business visitor “invited or permitted to enter or remain [in the restroom]
for a purpose directly or indirectly connected with business dealings” with
ASG. Rowland, 443 P.2d at 565; see
also Restatement (Second) of Torts
§ 332 (3). He might be a public invitee,
because he was a person “invited to enter or remain [in the restroom] as a
member of the public for a purpose for which [the restroom was] held open to
the public.” See Restatement (Second)
of Torts § 332(2). This class is
one of the modern-day adaptations of the classical invitee concept created to
fit particular fact situations. See
O’Keefe v. South End Rowing Club,
414 P.2d 830, 836 (Cal.
1966)
He might also be a traditional licensee, because he
was a person who was not a business invitee but was “privileged to enter or
remain [in the restroom] by virtue of [ASG’s] consent.” See Rowland, 443 P.2d at 565; see also
Restatement (Second) of Torts
§ 330.
It is
conceivable, even if only barely, that he might even be considered a
trespasser, because he was a person who was without any privilege to enter or
remain in the restroom. See Rowland, 443 P.2d at 565; see also Restatement (Second) of Torts § 329.
The difficulty in this case with applying a
non-occupant label on Ala
stems from the lack of credible direct evidence on the precise way the front
entrance to the restroom happened to be unlocked and open on April 25, 1995,
between 10:30 and 11:00 a.m. DPR
employees may have routinely opened the entrance that morning and have either
not cleaned the toilet room or not cleaned it properly. DPR employees may have opened the entrance
the day before or several days before April 25, with or without proper
cleaning, and not closed and locked the entrance at day’s end. In any of these scenarios, Ala would be a non-traditional public
invitee. A vandal may have broken the
lock and left the entrance open that morning or at some earlier time, in which
case Ala
could be either a public invitee or a licensee.
[5] We agree
with the Rowland court that the classifications of invitee, licensee,
and trespasser have little direct bearing on such tort law considerations as [2ASR3d171]
the foreseeability of harm to the plaintiff, the
degree of certainty that the plaintiff suffered injury, the closeness of the
connection between the defendant’s conduct and the injury suffered, the moral
blame attached to the defendant’s conduct, the policy of preventing future
harm, the extent of the burden to the defendant and consequences to the
community of imposing a duty to exercise care with resulting liability for
breach, and the availability, cost, and prevalence of insurance for the risk
involved.
Rowland, 443 P.2d at 564. A land occupant’s duty of care should
be based on ordinary principles of negligence. See Id. at 568-69.
C. Duty of
Ordinary Care
[6] When a
reasonably prudent person under the same or similar circumstances should have
foreseen the risk, ASG as the owner of Lions Park
and the restroom is under a duty to exercise ordinary care in the maintenance
of these premises in order to avoid exposing persons to an unreasonable risk of
harm caused by unsafe conditions on its premises. See California Jury Instructions—Civil (8th ed.),
BAJI No. 8.01 (1997 Revision). Breach of
this duty is negligence, giving rise to ASG’s liability for damages for
injuries proximately caused by the breach.
See BAJI No. 8.00.
On April 25, 1995 between 10:30 and 11:00 a.m., Ala as a member of the public,
was greeted with an open-door invitation, or at least permission, to enter the
restroom. The floor in the toilet room
within the restroom where Ala
fell was then in a perilous, slippery condition. The risk of harm from this condition to
persons entering the toilet room could be readily remedied by ASG’s employees
and was thus unreasonable. See BAJI No. 8.02. The risk of harm to such persons was
certainly foreseeable. ASG had the duty
to exercise ordinary care to prevent injury to these persons.
[7-9] Ordinary
care is that care which persons of ordinary prudence would use to preclude
injury to themselves or others under these or similar circumstances. See BAJI No. 8.01. When the unreasonable and foreseeable risk is
the product of a dangerous condition, the duty of ordinary care is breached if
the owner had knowledge of the dangerous condition or if the condition existed
for such a length of time that the owner, by using reasonable care in
inspecting the premises, would have discovered the condition in time to remedy
it or to give warning before the injury occurred. See BAJI No. 8.20; see also
Bridgman v. Safeway Stores, Inc.,
348 P.2d 696, 698 (Cal.
1960). Knowledge of a dangerous
condition acquired by an owner’s employee in the course and scope of [2ASR3d172] his or her employment is
imputed to the owner from the time the employee created or discovered, or
should have discovered, the condition. See
BAJI No. 8.21; see also Hatfield v. Levy Brothers, 117 P.2d 841, 845 (Cal. 1941).
[10-11] The
floor in the toilet room where Ala
fell was wet and dirty from water, human waste, and debris. Maggots were
present. Given these circumstances, this
dangerous, slippery condition existed for a substantial period of time. DPR employees either created the condition by
failing to clean or properly clean the floor, or they had ample time to
discover and correct the condition before Ala was injured. Thus, ASG breached its duty of ordinary care
to avoid endangering Ala
from harm. A legal cause of an injury
“is something that is a substantial factor in bringing about an injury.” BAJI
No. 3.76. Ala
would not have been injured but for ASG’s negligent breach of its duty to him.
We conclude that ASG is liable in damages to Ala for his injuries
from the fall.
III. Contributory Negligence
[12] ASG
maintains that even if it is liable to Ala,
Ala was so contributorily
negligent that he is entirely barred from recovery of damages under the
comparative negligence doctrine. American Samoa adopted
this doctrine by statute. A.S.C.A. § 43.5101; see Masania`i
v. Tedrick, 2 A.S.R.3d
142, 144-145 (Trial Div. 1998).
[13] When a
plaintiff’s negligence is a contributing cause in bringing about the injury,
the plaintiff can only recover damages in an amount proportionate to the
defendant’s negligence. A.S.C.A. § 43.5101; see also BAJI No. 3.50. The damages must be reduced in this manner
and may even be eliminated in an appropriate case.
[14] ASG
argues that Ala was contributorily negligent,
because the slippery floor was an obvious condition that Ala could, and should, have discovered by
the ordinary use of his senses. We
disagree. The slippery floor was
obscured by the dim natural lighting in the toilet room, especially compared to
the daylight outside. Ala did not rush into the toilet room where
he fell but approached and entered the room cautiously. Ala
was not contributorily negligent.
We conclude that Ala’s damages will not be diminished under the
comparative negligence rule. [2ASR3d173]
IV. Damages
Ala is entitled to reasonable compensation for the
substantial pain, discomfort, fears, anxiety, and other mental and emotional
distress that he suffered, and will likely still experience, as a result of the
injuries he sustained to his neck, lower back, and left shoulder in his fall on
April 28, 1995.
[15] Clearly, Ala
had medical conditions and partial disabilities with respect to his neck, lower
back, and left arm and side that existed before his fall. Unmistakenly, however, he suffered additional
injuries from the fall that aggravated these preexisting conditions and
disabilities. While he may not recover
damages for preexisting conditions and disabilities, he is entitled to recover
damages for the exacerbation of them attributable to the fall. See BAJI No. 14.65; see also Ng v.
Hudson, 75 Cal. App.3d 250, 255, 142 Cal. Rptr. 69, 72 (1977).
We set Ala’s
damages for pain and suffering resulting from the fall in the sum of $35,000.
Order
ASG shall pay Ala
$35,000 in damages, plus usual costs of suit. It is so ordered.
**********