PISA SCHWENKE and SINA SCHWENKE, parents of Raymond Tauese
Schwenke; and BROTHERS and SISTERS of Decedent Raymond Tauese Schwenke,
Schwenke, and PISA SCHWENKE,
as Representative of
Decedent’s ESTATE, Plaintiffs
v.
and TOLEAFOA LEIATO,
Defendants
High Court of
Trial Division
CA No. 23-97
January 12, 2000
[1] Under the American Samoa
Government Tort Liability Act, the American Samoa Government is generally
liable in the same manner and to the same extent as private individuals.
[2] The American Samoa
Government is immune from liability for any claim based upon the exercise or
performance of, or the failure to exercise or perform, a discretionary function
or duty of an officer or employee.
[3] In determining whether
the government is immune under the “discretionary functions” defense, the Court
looks at whether the government’s officer or employee, regardless of position
or rank, was allowed to make independent policy judgments, or was simply
carrying out a legal duty.
[4] The duty to exercise
ordinary diligence to keep prisoners safe and free from harm prescribes a duty
to act in the face of a known danger.
[5] When prison officials
are aware that an inmate is suicidal, a non-discretionary duty to act arises,
and the government does not have immunity from liability for its officers’ or
employees’ actions when such duty is breached.
[6] The duty to use reasonable care in protecting inmates
extends to protecting inmates from self-inflicted injury.
[7] ASG is not liable for all harm that comes to prisoners.
[8] ASG will only have breached its duty of care if it knew
or should [4ASR3d42] have known of
the risk of suicide to a prisoner and fails to take reasonable measures to
prevent it.
[9] Where correctional officers
were aware that inmate had attempted suicide and also knew enough to search for
dangerous items, but either failed to inspect inmate’s cot or did not do so
thoroughly, such was sufficient for a finding of negligence.
[10] To be liable for negligent conduct, a party’s actions
must be a substantial factor in bringing about the harm.
[11] It is foreseeable that a prisoner who has attempted
suicide will attempt to do so again.
[12] Where inmate attempted
suicide the previous night, his death the following day, by suicide, was
foreseeable, and failure of correctional officers to adequately protect him
from harming himself was found to be a proximate cause of his death.
[13] In an action for personal injuries or wrongful death,
the fact that the person injured may have been guilty of contributory
negligence does not bar recovery, but damages are diminished by the court in
proportion to the amount of negligence attributable to the person injured.
[14] Recovery should be reduced under the rubric of
comparative negligence if a party voluntarily and intentionally subjects
himself unnecessarily to an unreasonable risk or to a dangerous instrumentality
or condition, the peril of which is, or should be, appreciated by the person
injured.
[15] Where decedent-plaintiff committed suicide while
housed in a correctional facility, and although previously had attempted
suicide, had never been diagnosed with mental illness, Court concluded that he
was 50% negligent in causing his own demise.
[16] The claimants in a wrongful death action may receive
compensation for both pecuniary injury and loss of love and affection,
including loss of society, companionship, comfort, consortium, or protection;
and loss of filial care or attention.
[17] The claimants’ pecuniary loss is the value of the
decedent’s estimated annual financial benefit to the claimants for as long as
such benefit could have been expected to continue.
[18] In a wrongful death action, parents of the decedent
should generally receive a larger share of recovery than siblings based on
pecuniary injury because decedents are more likely to support parents than
siblings. [4ASR3d43]
[19] Siblings are ordinarily entitled to recover for
wrongful death even though a parent may be living, provided that they can show
the requisite injury.
Before
Counsel: For Plaintiffs, Salaonoa
Aumoeualogo Soli
For Defendant, Gwen J. Tauiliili-Langkilde,
Assistant
Attorney-General
OPINION AND ORDER
Plaintiffs are the parents,
brothers, and sisters of decedent Raymond Tauese Schwenke (“Raymond”). They sued defendants American Samoa
Government (“ASG”) and Toleafoa Leiato (“Leiato”) for damages. They allege that ASG’s employees were
negligent in failing to protect Raymond from committing suicide while Raymond
was a prisoner at ASG’s Correctional Facility (“CF”), and that this negligence
was the proximate cause of Raymond’s death.
Plaintiffs are pursuing
their cause of action under the Government Tort Liability Act, A.S.C.A. §§
43.1201-.1213. This act provides for an
exclusive remedy against ASG and insulates ASG’s officers and employees acting
within the scope of their employment from suit. A.S.C.A. § 43.1207. Leiato, who was the CF’s warden at the time
of Raymond’s death, was such an employee.
Thus, on June 8, 1998, on ASG’s motion and with plaintiffs’ concurrence,
the Court dismissed the action against Leiato.
The case proceeded to trial
on August 19 and 20, 1999. At the
beginning of the trial, ASG raised the sufficiency of plaintiffs’ designation
of Raymond’s next of kin in wrongful death actions, as required by A.S.C.A. §
43.5001(b). Although the case caption is
general, the body of the complaint does identify Raymond’s parents, Pisa
Schwenke (“Pisa”) and Sina Schwenke (“Sina”), and siblings, Pisa Pisa,
Jr. (“Pisa, Jr.”), Joanna Levi (“Joanna”), Henry Schwenke (“Henry”), Jerry
Schwenke (“Jerry”), Sulusi Schwenke (“Sulusi”), Siulagi Schwenke (“Siulagi”),
and Afele Schwenke (“Afele”). No
evidence of other next of kin was presented during the trial. Thus, we hold that the designation of
Raymond’s next of kin is sufficient for purposes of this case. See Saufo`i
v. Am. Samoa Gov’t, 14 A.S.R.2d 51, 52-53 (Trial Div. 1990).
I. Facts
The parties stipulate that
following his conviction of assault in the third degree, Raymond was a prisoner
at the CF serving a five year term of [4asr3D44]
detention as a condition of probation; that on July 1, 1995, at 3:00 a.m., Raymond
attempted to commit suicide by hanging himself with electric wire; and that
later the same day, at 4:47 p.m., Raymond committed suicide by hanging himself
with a rope.
Other relevant facts are not
seriously in dispute. Raymond began
serving his five year detention period on May 22, 1995. Raymond escaped from the CF on June 24, and
was returned to the CF on June 28.
Raymond was then placed in a holding cell, which allowed for closer
monitoring than other cells. The holding
cell was visible from the CF’s receiving desk 30 or less feet away. Because the floor in the holding cell was
frequently wet from flushing the toilet, a cot for sleeping, rather than a mat,
was brought to the cell. However, the
cot frame was tied together with electric wire and fishing net rope.
At 3:00 am, on July 1, 1995, during a routine check, CF
Officers Solovaa Mageo and Liaiga Seui discovered bruises on Raymond’s
neck. They searched Raymond’s cell and
discovered a piece of electric wire and a piece of glass, which they removed
from the cell. They found nothing else
unusual in the cell. Raymond indicated
that the glass was simply a mirror. The
CF officers concluded that Raymond has attempted to kill himself using the
electric wire.
The watch commander that night, CF Officer Fauamoli
Taufete`e Ah Mu (“Ah Mu”) counseled Raymond for approximately 10 to 15
minutes. She spoke to Raymond about the
marks on his neck and advised him that it was against God’s will to commit
suicide. She also reminded him of his
family. According to Ah Mu, Raymond
seemed to be “O.K.” and happy after the counseling. He indicated that he was tired and wanted to
sleep. Raymond was returned to the
holding cell.
Part of the guard duty at the CF entails checking inmates’
cells every half hour. In actuality, at
the time of Raymond’s suicide, cell checks occurred between every half hour and
every hour due to the length of time it takes to check all the cells with a
duty staff of only two to four guards.
The CF officers continued to check on Raymond after returning him to the
holding cell. However, this was done
more often, approximately every half hour, to ensure his safety. At the end of the shift at 6:00 a.m., Ah Mu
informed the incoming watch commander about Raymond’s attempted suicide.
On the afternoon of the same
day, July 1, Raymond refused to eat dinner at the 4:00 p.m. regular
mealtime. He was last seen alive at
approximately 4:25 p.m., when CF Officer Kilisitina Simanu (“Simanu”) checked
Raymond’s cell. Simanu then found
Raymond, at approximately 4:47 p.m., hung by his neck in his cell. Raymond hung himself with the rope that had
been used to tie his cot together. [4ASR3d45]
II. Governmental Immunity
[1-2] Under the Government Tort
Liability Act, A.S.C.A. §§ 43.1201-.1213, ASG is generally liable in the same
manner and to the same extent as private individuals, but is immune from
liability for “any claim based upon the exercise or performance of, or the
failure to exercise or perform, a discretionary function or duty of an officer
or employee.” A.S.C.A. §§ 43.1203(a), (b)(2).
Section 43.1203(b)(2), almost identical to its counterpart in the
Federal Tort Claims Act, 28 U.S.C.A. § 2680(a), means that ASG is immune from
liability if the activity its officer or employee was performing is deemed
discretionary.
This Court’s interpretations have come to differing
conclusions as to the proper standard for what constitutes discretionary
functions. Two cases, Savage v.
Am. Samoa Gov’t, 1 A.S.R.2d 102, 105-06 (Trial Div. 1983) and Ala v. Am. Samoa Gov’t, 2 A.S.R.3d
163, 168-69 (Trial Div. 1998), utilize the traditional distinction between
activities at the “planning level” and those at the “operational level.” Under this distinction, actions at the
planning stage are considered discretionary and are therefore afforded
immunity, while actions undertaken to carry out government programs are not
afforded such protection. See
Berkowitz v.
The
The Court revisited the issue of what constitutes
discretionary action in the recent case of Gibbons v.
Am. Samoa Gov’t, 3 A.S.R.3d 135 (Trial Div. 1999). Gibbons involved the tortious acts of
an escaped CF prisoner. In analyzing
whether the CF officers’ actions constituted a discretionary function, the Gibbons
Court followed the standard enunciated in United States v. Gaubert,
499 U.S. 315, 322-23 (1991). Gibbons,
3 A.S.R.3d at 139. The Gaubert
standard is one in which “discretionary functions” were defined as acts which
“involve an element of judgment or choice.” Gaubert, 499
While we agree with the
matters involv[ing] basic issues of resource
allocation and requir[ing] close judgment calls . . . are best left to those
trained in the field of penal administration. Within reason, prison officials
must be given appropriate leeway to run the Correctional Facility as they deem
to be most effective given their available resources; in short, the court will
not seize our inevitable advantage of perfect hindsight to hold such decisions
unreasonable after the fact.
Gibbons, 3
A.S.R.3d at 140.
[3] However,
A.S.C.A. § 43.1203(b)(2) is not reasonably interpreted to provide immunity for
every activity in which any choice is made.
In determining immunity, it is necessary to look at whether ASG’s
officer or employee, regardless of position or rank, was allowed to make
independent policy judgments, or was simply carrying out a legal duty. Patterson
v.
When prison officials become aware of a dangerous
situation, the decision to act is not discretionary. Indeed, the specific actions taken in these
situations involve some element of judgment. However, “[w]hatever is done or
not done at any institution involves a decision by someone, but this does not
mean that all acts are exempt from tortious liability as discretionary.” Cohen
v. United States, 252 F. Supp. 679, 687 (N.D. Ga. 1966) (duty of
protection and safekeeping of prisoners includes ordinary care in the
classification of prisoners and their custody once classified).
[4-5] It is
impossible to precisely delineate where the line should be drawn; it is enough
here to say that the duty to exercise ordinary diligence to keep prisoners safe
and free from harm, Savage, 1 A.S.R.2d at 106, prescribes a duty to act
in the face of a known danger.[2] When a [4ASR3d47] prison is confronted with a
suicidal inmate, there arises a non-discretionary duty to act, and ASG does not
have immunity from liability for its officers’ or employees’ actions.
III. Liability
In a negligent death action, the plaintiff must show a
duty owed to the decedent and a breach of that duty that proximately caused the
death.
A. Duty
[6] As
discussed above with reference to immunity, ASG owes a duty to all prisoners to
keep them safe and free from harm. Am. Samoa
Gov’t v. Agasiva, 6 A.S.R.2d 32, 39 (Trial Div. 1987). This Court in Rakshan
v. Tuilefano, 118 A.S.R.2d 46, 48 (Trial Div. 1991) stated that
ASG has an obligation to protect fellow inmates and members of the general
public from a prisoner’s harmful acts. Cases in other jurisdictions have found
that the duty to use reasonable care in protecting inmates extends to
protecting inmates from self-inflicted injury.
See, e.g., Scott v. Louisiana, 618 So. 2d 1053, 1056-58 (
B. Breach
[7-8] The
duty to protect prisoners is not absolute, and ASG is not liable for all harm
that comes to prisoners, regardless of the cause. Even with the knowledge that a prisoner may
be suicidal, ASG does not have an absolute duty to prevent it from happening.
ASG will only have breached its duty of care if it knew or should have known of
the risk to Raymond and it failed to take reasonable measures to prevent the
suicide. Scott, 618 So.2d
at 1056.
The CF officers knew that Raymond was a risk to
himself, since they knew he had attempted to commit suicide. It is not entirely clear that they understood
that Raymond posed an ongoing risk after Ah Mu counseled him. However, they checked Raymond more frequently
after his suicide attempt, and knowledge of this attempt was passed on to the [4ASR3d48] next shift of CF
officers. Regardless, prison officials
should know that a prisoner, having demonstrated suicidal tendencies, might
attempt suicide again.
We now turn to the question of whether the TCF guards
took adequate measures to protect Raymond.
The steps taken included 10 to 15 minutes of counseling from Ah Mu, an
examination of Raymond’s cell, an increase in the frequency of routine checks
of his cell, and passing on information of his attempted suicide to the incoming
staff shift. We are mindful that it
easier to determine optimal responses with the benefit of hindsight, and are
wary of substituting our judgment for that of the CF’s personnel, who must make
on-the-spot decisions about the proper course of action. Nonetheless, we find these measures to be
inadequate under the circumstances.
[9] The CF
officers examined Raymond’s cell, indicating that they knew to search for
dangerous items, but they either failed to inspect the cot that was placed in
the cell or did not do so thoroughly. A
rope tying the bed together would not be something so hidden that it would not
be discovered by inspection. In failing
to adequately check the bed, they left a rope in the cell, an item similar to
the wire which Raymond had just used in an attempt to kill himself.
The failure to check the cot properly is, in itself,
sufficient for finding negligence. Other
failures also contributed to the inadequacy of the CF officers’ actions to
protect Raymond. The CF officers did not
obtain counseling services from a mental health professional, conduct a 24-hour
suicide watch, or undertake any other substantial action to protect Raymond
until his mental health could be assessed.
While these oversights alone might not support a finding of negligence,
they underscore the insufficiency of the actions actually taken to protect
Raymond.
C. Proximate
Causation
[10] To be
liable for negligent conduct, a party’s actions must be a “substantial factor
in bringing about the harm.” Restatement
(Second) of Torts § 431 (1977).
Even when another person’s actions are a cause of the harm, a party is
not absolved of responsibility if that party’s negligence creates the
foreseeable risk of harm and is a substantial factor in causing the harm. Restatement
(Second) of Torts § 442A.
In determining whether or not the actions of the CF’s
guards were a substantial factor in causing Raymond’s death, it is not enough
to determine that Raymond committed suicide.
Instead, we must look at whether or not it was foreseeable that Raymond
would harm himself due to the failure of the CF’s officers to remove the rope
from his cell. [4ASR3d49] Simply
stated, if it was foreseeable that Raymond might attempt suicide again, then
ASG is liable for its failure to protect him.
[11-12] It
is foreseeable that a prisoner who has attempted suicide would attempt to do so
again. See Guice v. Enfinger, 389
So. 2d 270, 271 (Fla. App. 1980) (no duty to remove prisoner’s belt when his
suicide was not foreseeable because he had not attempted suicide in the past
and had shown no suicidal tendencies).
Based upon Raymond’s suicide attempt during the previous night, we find
that Raymond’s death by suicide was foreseeable, and that the failure of the
CF’s officers to adequately protect him from harming himself was a proximate
cause of his death.
D. Comparative
Negligence
ASG neither argued nor briefed comparative negligence
as an issue, perhaps in expectation of total, undiluted victory. Plaintiffs did not raise the issue,
understandably, but perhaps had a similar expectation. In any event, this is a very important issue
that requires resolution in this case. Thus, we have considered whether
Raymond’s actions constituted negligence that would reduce the family’s
recovery. We find that Raymond’s suicide
was comparatively negligent under the circumstances, and reduce plaintiffs’
recovery accordingly.
1. Comparative
Negligence Generally
[13-14]
Under ASCA § 43.5101, in an action for personal injuries, or where the injuries
resulted in death, “the fact that the person injured . . . may have been guilty
of contributory negligence shall not bar a recovery, but damages shall be
diminished by the court in proportion to the amount of negligence attributable
to the person injured . . . .” Although
we no longer use the principle of contributory negligence to bar recovery to
injured parties or their next of kin in this jurisdiction, it is instructive to
look at that principle in determining the comparative degree of fault.
Contributory negligence has been defined as:
(a) an
intentional and unreasonable exposure of himself to danger created by the
defendant’s negligence, of which danger the plaintiff knows or has reason to
know, or
(b) conduct
which . . . falls short of the standard to which the reasonable man should
conform in order to protect himself from harm.
Restatement (Second) of Torts § 925.
Recovery should be reduced under the rubric of comparative negligence if
a party “voluntarily and intentionally subjects himself unnecessarily to an
unreasonable risk or to a dangerous instrumentality or condition, the peril of
which is, or should be appreciated by the person injured.” 57A Am. Jur. 2d Negligence § 4ASR3d50] 860 (1989).
2. Suicide as Comparative Negligence
Several courts have considered whether suicide can
constitute contributory or comparative negligence, and they have come to
varying results. Several cases have found that plaintiff-decedents may be
comparatively negligent when they committed suicide while in custody. In Heflin
v. Stewart County, No. 01-A-01-9504-CV-00131, slip op. at 2 (Tenn. App.
Oct. 20, 1995), the court found comparative negligence in circumstances very
similar to the present case. In that
case, the prison knew the decedent was a flight risk, and knew he had attempted
suicide once previously.
Other courts have come to the contrary rule that the
suicide of a person in custody cannot constitute comparative negligence. These
courts reason that because the duty of care encompasses protection of another
from a specific harm, the failure of the deceased to exercise reasonable care
in preventing that harm cannot be the basis of a contributory negligence
defense. Sauders v.
Several of the courts in the cases rejecting the
contributory negligence defense were concerned that allowing contributory
negligence would effectively eliminate the cause of action for wrongful death
in suicide cases. See, e.g., Saunders,
693 N.E.2d at 19. One court stated,
“because it would serve to excuse defendants’ own failure to exercise
reasonable care, such conduct by the plaintiff could not be the basis of a
contributory negligence defense.” Cowan,
545 A.2d at 163. This concern,
however, does not exist in a jurisdiction that has abolished contributory
negligence in favor of comparative negligence because finding the decedent
comparatively negligent will not absolve custodians of responsibility. Damages will be reduced in some
circumstances, but it [4ASR3d51] will
not excuse defendants’ failures or bar recovery.
Some of these courts also proceeded under the view
that intentional conduct cannot constitute contributory negligence. One court, for example, stated that
negligence is qualitatively different from intentional conduct, rendering the
two impossible to compare. Hickey, 487
N.W.2d at 121 (three judge concurrence on this issue). It is true that the language of “fault” and
“negligence” do not fit well when discussing the decision to end one’s
life. However, as discussed above,
intentional conduct can constitute contributory negligence when it indicates a
disregard for one’s own safety.
Furthermore, the goal of comparative negligence is served by allowing a
diminution in damages for the intentional conduct of another as well as
negligent conduct. The majority in Hickey
is in accord:
[The goal of apportioning damages] is thwarted when a
slightly negligent defendant is held liable for one hundred percent of the
damages caused principally by the wrongful conduct of another. Jurors are
capable of reaching a rational and sensible balance between the decedent’s
fault and the negligent jailer’s fault. Comparison of “qualitatively different”
conduct, which the signers of the lead opinion find to be “not capable of
comparison,” is not only possible, but is required by this Court’s adoption of
“pure” comparative fault.
Hickey, 487
N.W.2d at 124 (four judge majority on this issue).
3. Standard of Care
A capacity-based standard has now become generally
accepted in analyzing the comparative negligence of a mentally disturbed
person. See, e.g., Cowan, 545 A.2d at 163; Warner v. Kiowa
County Hospital Authority, 551 P.2d 1179, 1187-88 (Okla. App. 1976);
Feldman v. Howard, 214 N.E.2d 235, 237 (
Unlike most of the cases that have dealt with this
issue, this is not a situation in which Raymond had been found to have a mental
illness. In fact, we have little
information on Raymond’s mental state that would aid us in determining his
capacity. We simply know that he was a
prisoner at the CF, he had recently escaped from there and had been returned,
and he had attempted suicide earlier the same day that he killed himself. However, there is no indication that he was
insane or that he [4ASR3d52] had
been suicidal for a substantial period.
At the same time, one of the CF officers’ shortcomings in this situation
was their failure to seek mental health evaluation and treatment for Raymond.
[15] We have
sympathy for any person pained and desperate enough to kill oneself. Nonetheless, in finding comparative
negligence, we are acknowledging that Raymond disregarded his own safety and
was a significant causal factor in his own death. We find that plaintiffs’ recovery should be
reduced by 50%.
IV. Damages
A. Damages
Requested
Plaintiffs request $336,000, the money they state
Raymond would have made had he been released as expected and had he lived until
age 67. Raymond would have been released from CF at age 27, and plaintiffs
assume he would have lived until age 67.
They state that Raymond made $700.00 per month before he was
incarcerated, $300.00 from selling food from the family plantation and $400.00
from selling fish that he caught. To
reach the $336,000 figure, plaintiffs multiplied $700.00 by 12 months per year
by 40 years.
When Raymond worked at a wage-earning job, he gave the
family $200.00 every two weeks. However,
before he was incarcerated, he stopped working the job and began working on the
family’s plantation.
Plaintiffs also note that they may receive
compensation under A.S.C.A. § 43.5001(c) for loss of love and affection, but do
not request a specific amount.
B. Damage to
Plaintiffs
[16] Under
A.S.C.A. § 43.5001(c), the claimants in a wrongful death action may receive
compensation for both “pecuniary injury and loss of love and affection,
including: . . . loss of society, companionship, comfort, consortium, or
protection; . . . [and] loss of filial care or attention .”
1. Pecuniary Injury
[17] The claimants’
pecuniary loss is the value of the decedent’s estimated annual financial
benefit to the claimants for as long as such benefit could have been expected
to continue. Fa`avae v. Am. Samoa Power Auth., [4ASR3d53] 5 A.S.R.2d 53, 56
(Trial Div. 1987). The Fa`avae Court
allowed for $1,000 per year, and determined the duration of the payments based
on the estimated life span of the parents, not the decedent, because the
decedent would have only paid money to the parents for the length of the
parents’ lives.
a. Parents
Since Raymond provided $200.00 each month to his
parents while earning wages and $300.00 when working on the farm, $250.00 per
month is a reasonable estimate of the average amount Raymond would have given
them, or $3,000 per year. While it is
never comfortable to estimate how long someone will live, we may only provide
damages for pecuniary loss during the lives of the parents.
Money recovered now is worth more than if the decedent
had provided it years in the future. It
is therefore proper to discount recovery to the money’s present value. For example, the Fa`avae Court
discounted the value of recovery as follows: the Court estimated 25 years of
$1,000 payments, making recovery $25,000, but reduced the amount to $16,000 by
discounting the present value, using an interest rate of 6% and assuming an
unchanged inflation rate. Fa`avae,
5 A.S.R.2d at 57.
Once the appropriate discount percentage is assessed,
the present value of periodic payments for a specified future period can be
determined mathematically. Selection of
the appropriate discount percentage is anything but an exact process. However, we believe that since Fava’ve was
decided, economic conditions in the Territory, in terms of interest and
inflation rates, have not dramatically changed and will not do so in the
foreseeable future. We are also
cognizant of some inherent doubt or risk that, given his history as a wage earner
and farmer, Raymond would actually have been able to support his parents
continuously as much as the amount specified by the Court for 15 years. Considering these factors, we find that a 5%
discount rate is appropriate. Using that
rate, and applying an applicable mathematical table, we have determined that
the present value of the $45,000 that would have been paid over 15 years is
$25,000.00.[3][4ASR3d54]
b. Siblings
[18] Parents
should generally receive a larger share than siblings based on pecuniary injury
because decedents are more likely to support parents than siblings. See
Saufo`i v. Am. Samoa Gov’t, 14 A.S.R.2d 51, 53 (Trial Div. 1990). With the exception of Siulagi, his 16
year old sister, the siblings are all older than Raymond, who was 22 at the
time of his death.
All of Raymond’s siblings are or will be adults by the
time Raymond would have been released from his CF detention period. As there is no evidence that Raymond
supported them financially prior to his incarceration, we find that they are
unlikely to have received financial support from him after his release. The siblings therefore will not be awarded
any damages for pecuniary losses.
2. Loss of Love and Affection
[19] It is
nearly impossible to provide standards for determining amounts for
non-pecuniary losses, and placing a value on the loss of a loved one is
speculative, at best. Siblings are
ordinarily entitled to recover for wrongful death even though a parent may be
living, provided that they can show the requisite injury. Saufo`i, 14 A.S.R.2d at
53. As with pecuniary injury, this Court
has tended to award more to parents than siblings.
We find that Raymond’s parents are together entitled
to $10,000, Siulagi, the 16 year old sister, is entitled to $2,500, and the
other siblings are entitled to $1,000 each, making $6,000 total for these six
siblings. One sister, Joanna, is now deceased, so her share shall be
distributed to her estate.
3. Pain and Suffering
The estate is also named as a party, and may recover
as the successor in [4ASR3d55] interest
to a claim Raymond would have had for his pain and suffering. ASCA § 43.5002; Galo,
10 A.S.R.2d at 97-98 ($4,000 for both pain and suffering and funeral
expenses in an infant’s death). Raymond
would have had a claim for his pain and suffering. It is impossible to determine how long
Raymond suffered before his death. We
assume his death came quickly, however, and award $3,000 to Raymond’s estate
for his pain and suffering.
C. Summary
of Damages
We summarize our damage calculations as follows:
Pecuniary Loss:
Parents (present value of $45,000). . . . . . . . . .
. . $25,000
Siblings . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . 0
Loss of Love and Affection:
Parents.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,000
Sister
Siulagi . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . 2,500
Other
siblings (at $1,000 each). . . . . . . . . . . . . . . 6,000
Pain and Suffering:
Estate of
Raymond Schwenke . . . . . . . . . . . . . . . . 3,000
Total before comparative negligence adjustment:
$46,500
Total after comparative negligence adjustment: $23,250
Order
Plaintiffs shall recover from ASG damages in the total
amount of $26,500 for the wrongful death of Raymond. This amount shall be
apportioned among and paid to the plaintiffs, as follows:
Parents
Sister Siulagi .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,250
Brother Pisa, Jr. . . . . . . . . . . . . . . . . . .
. . . . . . . . . 500
Sister Joanna’s estate .
. . . . . . . . . . . . . . . . . . . . .
500
Brother Henry. . . . . . . . . . . . . . . . . . . . .
. . . . . . . . 500
Brother Jerry. . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . 500
Brother Sulusi. . . . . . . . . . . . . . . . . . . .
. . . . . . . . . 500
Brother Afele. . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . 500
Raymond’s estate. . . . . . . . . . . . . . . . . . .
. . . . . . . 1,500
Total
$23,250
ASG shall pay the total judgment amount into the
Court’s registry. The Clerk of the Court
shall then distribute the funds to plaintiffs, according [4ASRd356] to ‘their respective entitlements. Until she reaches majority or is otherwise
emancipated, however, the Clerk of the Court shall retain Siulagi’s share of
the funds in the Court registry. A
guardianship of Siulagi’s estate is created, with
Judgment shall enter accordingly.
It is so ordered.
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[1] The
[2] Under federal law,
there is a duty requiring the “exercise of ordinary diligence to keep prisoners
safe and free from harm.” 18 U.S.C.A. § 4042.
[3] For this purpose, we used a computerized net present value (NPV) function to calculate the present value from the interest rate and payments. More specifically, we calculated the net present value of $250.00 per month for 15 years at 5% annual interest (.4167% monthly interest, calculated by dividing 5% by 12 months), beginning in five years. The payments and interest rate were set to zero for the first five years (60 months), the years Raymond would have been incarcerated. For tile following 15 years (180 months), we used the .4167% monthly interest rate and $250.00 monthly payment. The total present value came to $24,633.65, and this figure is properly rounded off for simplicity to $25,000.