The “clearly erroneous” standard is used by an appellate court to test a lower court’s findings of negligence, as well as related findings such as “proximate cause.” A.S.C.A. § 43.0801(b); T.C.R.C.P. 52(a). Saufo’i v. American Samoa Gov’t, 19 A.S.R.2d 54.

Failure to use ordinary or reasonable care is negligence. Maifea v. National Pacific Insurance Co., 27 A.S.R.2d 104.

To establish a cause of action for negligence a party must prove duty, breach, causation, and damages. Lang v. American Samoa Gov’t, 1 A.S.R.3d 148 (Trial Div. 1997).

§ 1(2) —Duty

§ 1(2)(a)—General Provisions

Duties of care toward other people include the duty to take precautions against natural phenomena, which, although unusual and inconvenient, happen often, enough to be reasonably foreseeable. Fonoti v. Nam, 3 A.S.R.2d 58.

§ 1(2)(b)—Relating to Vehicles and Accidents

Driver encountering children or entering an area where they are expected to be present is under a special duty of care to drive in a manner anticipating possible unexpected, imprudent childish behavior. Lauoletolo v. Setenaisilao, 14 A.S.R.2d 37.

Driver is not under a special duty of care to drive in a manner anticipating small unsupervised children where the accident occurred on a rainy evening near a shopping area with heavy holiday traffic. Lauoletolo v. Setenaisilao, 14 A.S.R.2d 37.

Fact that a child crossed from the opposite side of a straight stretch of road before being struck by an auto did not prove that the driver breached his general duty of care to keep a proper lookout where the accident occurred on a rainy evening near a shopping area with glare from artificial lighting and heavy holiday traffic. Lauoletolo v. Setenaisilao, 14 A.S.R.2d 37.

Both motorists and pedestrians have a duty to exercise care on the roadway. A.S.C.A. §§ 22.0403, 22.0406, 22.0701. Alofipo v. Va, 20 A.S.R.2d 119.

Drivers have an overriding duty to pedestrians, especially children, and a duty to refrain from careless driving. A.S.C.A. §§ 22.0406, 22.0701. Sciascia v. Lutali, 23 A.S.R.2d 38.

Drivers whose conduct might result in injury to a child have a duty to exercise proportional vigilance and caution. Sciascia v. Lutali, 23 A.S.R.2d 38.

People are under a duty to drive their respective motor vehicles with ordinary or reasonable care, which persons of ordinary prudence would use under the circumstances shown by the evidence, in order to avoid injury to themselves or others. Maifea v. National Pacific Insurance Co., 27 A.S.R.2d 104.

§ 1(2)(c)—Relating to Medical Profession

RESERVED

§ 1(2)(d)—Relating to Land

Territorial utility had a duty to maintain and operate safely its equipment situated on its customers’ property, notwithstanding the special difficulties posed to such efforts in American Samoa. Fa’avae v. American Samoa Power Authority, 5 A.S.R.2d 53.

An owner or possessor of land has a duty to cause no unreasonable risk of harm to others in the vicinity and so is liable for creating or maintaining dangerous artificial conditions. Crispin v. American Samoa Gov’t, 21 A.S.R.2d 60.

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. Masaniai v. The Country Club, 2 A.S.R.3d 120 (Trial Div. 1998).

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. Ala v. American Samoa Gov’t, 2 A.S.R.3d 163 (Trial Div. 1998).

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. Ala v. American Samoa Gov’t, 2 A.S.R.3d 163 (Trial Div. 1998).

Ordinary care is that care which persons of ordinary prudence would use to preclude injury to themselves or others under these or similar circumstances. Ala v. American Samoa Gov’t, 2 A.S.R.3d 163 (Trial Div. 1998).

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. Ala v. American Samoa Gov’t, 2 A.S.R.3d 163 (Trial Div. 1998).

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. Ala v. American Samoa Gov’t, 2 A.S.R.3d 163 (Trial Div. 1998).

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. Ala v. American Samoa Gov’t, 2 A.S.R.3d 163 (Trial Div. 1998).

§ 1(2)(e)—Relating to Schools and Students

Where employee charged with supervision of children specifically violated her employer’s instructions in pursuance of a private arrangement with a child’s parents, she did not thereby automatically remove herself from the course and scope of her duty, where at the time of her negligent acts she was still at her place of work performing her duties as an employee and the negligence was clearly related to these duties. Saufo`i v. American Samoa Government, 14 A.S.R.2d 15.

Constant and unremitting scrutiny of students on school premises in order to prevent injury has not been expected of school officials and teachers. Motu v. American Samoa Gov’t, 28 A.S.R.2d 3.

§ 1(2)(f)—Relating to Admiralty

The duty of the shipowner to provide for the ill or injured seaman can be traced as far back as the Sea Codes of the Middle Ages. This right, to recover maintenance and cure without regard to fault, is among the most pervasive incidents of the responsibility anciently imposed upon a shipowner. Interocean Ships v. Samoa Gases, 26 A.S.R.2d 28.

§ 1(2)(g)—Relating to Alcohol Consumption

Under common law, a seller of alcohol does not owe any duty based solely on the serving of alcoholic beverages to an obviously intoxicated consumer. Absent statute, no cause of action may lay against the seller of alcohol in favor of those injured by the intoxicated consumer. Masaniai v. Tedrick, 31 A.S.R.2d 186.

A duty may be established by a safety statute if it is intended, exclusively or in part, (a) to protect a class of consumers which includes the one whose interest is invaded, and (b) to protect the particular interest which is invaded, and (c) to protect that interest against the kind of harm which has resulted, and (d) to protect that interest against the particular hazard from which the harm results. Masaniai v. Tedrick, 31 A.S.R.2d 186.

A.S.C.A. § 27.0531 is clearly a safety statute. Masaniai v. Tedrick, 31 A.S.R.2d 186.

A.S.C.A. § 27.0531(a)(2) imposes a duty on the seller of alcohol to act with reasonable care in providing alcohol to intoxicated person, and the intoxicated persons are within the protected class created by the statute. Thus, A.S.C.A. § 27.0531 creates an action wherein a commercial supplier can be held accountable for injuries to an intoxicated person occasioned by the supplier’s failure to refrain from providing liquor to that intoxicated person. Masaniai v. Tedrick, 31 A.S.R.2d 186.

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. Masaniai v. The Country Club, 2 A.S.R.3d 120 (Trial Div. 1998).

Security guard employees of a drinking establishment have a duty to 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. Masaniai v. The Country Club, 2 A.S.R.3d 120 (Trial Div. 1998).

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. Masaniai v. The Country Club, 2 A.S.R.3d 120 (Trial Div. 1998).

§ 1(2)(h)—Relating to Prison

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. Schwenke v. American Samoa Gov’t, 4 A.S.R.3d 41 (Trial Div. 2000).

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. Schwenke v. American Samoa Gov’t, 4 A.S.R.3d 41 (Trial Div. 2000).

The duty to use reasonable care in protecting inmates extends to protecting inmates from self-inflicted injury. Schwenke v. American Samoa Gov’t, 4 A.S.R.3d 41 (Trial Div. 2000).

§ 1(2)(i)—Relating to Power Company

Power company has no duty to insure that load bearing appliances and circuit breakers in a premises are turned off prior to reconnection of power supply. It is the responsibility of utility consumers to ensure that their safety switches, circuit breakers, wiring, and all other components of their respective electrical systems are adequately designed, sized, and put in place. Seva`aetasi v. Am. Samoa Power Auth., 5 A.S.R.3d 91 (Trial Div. 2001).

§ 1(3) —Breach of Duty

A storekeeper who requested and paid for the construction of a porch over his parking lot was responsible for damage caused when the defectively built porch fell on a customer’s car. Fonoti v. Nam, 3 A.S.R.2d 58.

Evidence that automobile struck a pedestrian, without more, does not constitute proof that driver was negligent. Matalolo v. Penitusi, 4 A.S.R.2d 46.

Forklift operator was negligent where it was proven that he was driving with a load that partly obstructed his view in the direction the forklift was moving, that he paid undue attention to the sides of his load with a corresponding lack of attention to what was in front of the forklift, and that he was going slowly enough to have been able to avoid an accident if he had been paying attention. Kim v. Star-Kist Samoa, Inc., 7 A.S.R.2d 11.

Seasoned fisherman who should know of the haphazard movements of forklifts near the docks, who was conversing with other fishermen on the dock adjacent to the forklift traffic, and who was injured by slow moving forklift, was negligent. Kim v. Star-Kist Samoa, Inc., 7 A.S.R.2d 11.

Where record reflected only that fisherman was engaged in conversation while standing on dock, started to walk away, and was struck by forklift, evidence was insufficient to support trial court finding that fisherman was negligent. Kim v. Star-Kist Samoa, Inc., 8 A.S.R.2d 146.

In the absence of evidence of specific negligent conduct by person who was struck by forklift, attribution of negligence on the ground that victim was a seasoned fisherman and ranking deck hand who should have been familiar with dangers attendant to unloading fish on a wharf was not a finding of fact or an inference from the facts, but amounted to the imposition of strict liability. Kim v. Star-Kist Samoa, Inc., 8 A.S.R.2d 146.

Since issue of negligence depends on the reasonableness of a party’s conduct, it cannot ordinarily be disposed of by summary judgment. Utu v. National Pacific Insurance Co., 9 A.S.R.2d 88.

Where the operator of backhoe, operating near or on the road and without a flagman, did not see a bus being operated on the road in the proper lane and therefore struck the bus, the backhoe’s operator was negligent for failure to keep a proper lookout. Bohanak v. Samoa Maritime, Inc., 11 A.S.R.2d 12.

Government was not negligent in placing early childhood education classes in a private home in a high traffic area without posting the area as a school zone, where government was forced to choose between having such classes in private homes or not having them at all, and adopted a variety of safeguards which were at least as effective as the designation and posting of a school zone. Saufo`i v. American Samoa Government, 14 A.S.R.2d 15.

Fact that a child was struck by an auto does not necessarily mean that the driver was negligent. Lauoletolo v. Setenaisilao, 14 A.S.R.2d 37.

Defendant acted negligently where he failed to reasonably anticipate oncoming traffic approaching a blind curve and slow his speed accordingly, but instead drove so fast around the curve that he drifted into the oncoming lane and hit a vehicle there. Puailoa v. Barber, 17 A.S.R.2d 21.

A trial court’s finding of parents’ negligent entrustment was not supported by the record when no evidence showed that the teacher, albeit a relative, was the sort of person who could not be entrusted with the minor’s safety or suggested that the teacher’s want of care at the critical moment was other than an isolated lapse in attention. Saufo’i v. American Samoa Gov’t, 19 A.S.R.2d 54.

A trial court’s finding of negligence based on a school’s violating a rule regarding the pickup and delivery of children is unsupported when no evidence showed that compliance with the rule would have prevented the accident. Saufo’i v. American Samoa Gov’t, 19 A.S.R.2d 54.

Negligence, without contribution, is found on the part of the government when its employee allowed an eleven-year-old to ride on the doorway steps of an overcrowded bus with a faulty door, and allowed the child to bound off and on the bus as it made its stops. Utu v. American Samoa Government, 20 A.S.R.2d 53.

A reasonably prudent school bus driver would not abandon the driver’s station of the bus with the engine running and students aboard, thereby inviting a student to operate the bus, regardless of whether he knew that doing so was a violation of the Pupil Transportation Program’s written policy. Tuufuli v. American Samoa Government, 25 A.S.R.2d 24.

An ordinarily prudent school bus driver would not alight from a crowded bus to control student exit from the outside, even if the engine of the bus were turned off. Tuufuli v. American Samoa Government, 25 A.S.R.2d 24.

While a few students exiting the bus through the rear emergency exit may have been an attractive diversion, it did not justify the bus driver leaving his post while students were disembarking from the authorized exit. Tuufuli v. American Samoa Government, 25 A.S.R.2d 24.

The fact that adolescent youth and younger children are often thoughtless and impulsive only increases the degree of vigilance and caution which a school bus driver ought to exercise toward student passengers. Tuufuli v. American Samoa Government, 25 A.S.R.2d 24.

A trial court’s determination of negligence is reviewed under the “clearly erroneous” standard, not by a de novo re‑ weighing of the evidence at the appellate level. The test for clear error is not whether a dissatisfied litigant has presented evidence of superior evidentiary support to sustain his version of the facts, but whether the trial court’s findings are substantially supported. Moananu v. Alofipo, 25 A.S.R.2d 37.

Failure to use ordinary or reasonable care is negligence. Maifea v. National Pacific Insurance Co., 27 A.S.R.2d 104.

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. Masaniai v. The Country Club, 2 A.S.R.3d 120 (Trial Div. 1998).

ASG will only have breached its duty of care if it knew or should have known of the risk of suicide to a prisoner and fails to take reasonable measures to prevent it. Schwenke v. American Samoa Gov’t, 4 A.S.R.3d 41 (Trial Div. 2000).

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. Schwenke v. American Samoa Gov’t, 4 A.S.R.3d 41 (Trial Div. 2000).

ASG is not liable for all harm that comes to prisoners. Schwenke v. American Samoa Gov’t, 4 A.S.R.3d 41 (Trial Div. 2000).

§ 1(4) —Causation

Trial court’s finding that proximate cause of motor vehicle collision was negligence of defendant driver was not error. Faatamala v. Haleck, 4 A.S.R. 888.

Negligence of a landowner or land occupier is not a substantial factor proximately causing harm if the harm would have occurred despite the negligence of the landowner or land occupier. Crispin v. American Samoa Gov’t, 21 A.S.R.2d 60.

In determining proximate cause for tort cases in admiralty, American Samoa adopts the approach of weighing all of plaintiff’s conduct, defendant’s liability, and all other factors causing the loss or injury. Interocean Ships, Inc. v. Samoa Gases, 23 A.S.R.2d 76.

In a tort suit, plaintiff must furnish evidence which affords a reasonable basis for the conclusion that defendant’s conduct was, more likely than not, the cause-in-fact of the injury; mere possibilities are not enough. Ale v. Peter E. Reid Stevedoring, Inc., 24 A.S.R.2d 42.

A court will not attempt to reach a conclusion as to an injury’s cause when circumstances from which causation can be determined are not within common knowledge and when experts have not provided a basis for such a conclusion. Ale v. Peter E. Reid Stevedoring, Inc., 24 A.S.R.2d 42.

Negligence of a landowner or occupant is not a substantial factor proximately causing harm, if harm would have occurred anyway, despite the negligence of the landowner or occupant. Crispin v. American Samoa Government, 25 A.S.R.2d 49.

The question of whether a litigant’s conduct was a substantial factor is for the trial court to determine unless testimony is so undisputed and uncontradictory that reasonable men could not differ. Crispin v. American Samoa Government, 25 A.S.R.2d 49.

To recover for symptoms resulting from conversion reaction, a victim must establish that the negligence of the defendant is the proximate cause of the symptoms. Ale v. Peter E. Reid Stevedoring, Inc., 25 A.S.R.2d 142.

A plaintiff bears the burden to prove that, more likely than not, the defendant’s conduct is the proximate cause of the relevant injury. The trial court has the duty to make definite findings as to causation. Ale v. Peter E. Reid Stevedoring, Inc., 25 A.S.R.2d 142.

The phrase “the proximate cause of the death” in A.S.C.A. § 22.0706 refers to the legal cause of the death, as distinguished from other causes in fact. American Samoa Government v. Mase, 26 A.S.R.2d 119.

Injured persons are entitled to compensation when a defendant’s negligence is the proximate cause of the injury. Maifea v. National Pacific Insurance Co., 27 A.S.R.2d 104.

When injured persons would not have been injured but for defendant’s negligence, defendant’s conduct is the proximate cause of the injuries. Maifea v. National Pacific Insurance Co., 27 A.S.R.2d 104.

Where two parties’ conduct contributed concurrently as proximate causes of injuries, one party cannot be relieved of responsibility simply because the other party was not joined as a defendant in the action. Maifea v. National Pacific Insurance Co., 27 A.S.R.2d 104.

Plaintiff has the burden of proof to establish a reasonable basis for the conclusion that the accident was, more probable than not, the proximate cause of his symptoms. Mere possibilities are not enough. Ale v. Peter E. Reid Stevedoring, Inc., 28 A.S.R.2d 161.

Nearness in time or space is not the proper test of cause in fact. A causal chain can continue for a great deal of time into the future or through many intervening occurrences. Thus, if A causes B, B causes C, and C causes D, then A, B, and C are all causes in fact of D, though each may not necessarily be a proximate cause. Clifton v. Voyager, 31 A.S.R.2d 12.

The question of proximate cause considers temporal and spatial proximity, incorporates the foreseeability of a plaintiff’s injury, and distinguishes natural and ordinary consequences from extraordinary consequences. Clifton v. Voyager, 31 A.S.R.2d 12.

The Defendant is entitled to judgment in its favor where the trier of fact can do no more than speculate as to which of several possible causes was the actual cause of the injury in question. Lang v. American Samoa Gov’t, 1 A.S.R.3d 148 (Trial Div. 1997).

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. Masaniai v. The Country Club, 2 A.S.R.3d 120 (Trial Div. 1998).

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. Masaniai v. The Country Club, 2 A.S.R.3d 120 (Trial Div. 1998).

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. Masaniai v. The Country Club, 2 A.S.R.3d 120 (Trial Div. 1998).

A legal cause of an injury is something that is a substantial factor in bringing about an injury. Ala v. American Samoa Gov’t, 2 A.S.R.3d 163 (Trial Div. 1998).

To be liable for negligent conduct, a party’s actions must be a substantial factor in bringing about the harm. Schwenke v. American Samoa Gov’t, 4 A.S.R.3d 41 (Trial Div. 2000).

It is foreseeable that a prisoner who has attempted suicide will attempt to do so again. Schwenke v. American Samoa Gov’t, 4 A.S.R.3d 41 (Trial Div. 2000).

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. Schwenke v. American Samoa Gov’t, 4 A.S.R.3d 41 (Trial Div. 2000).

In order to be liable for negligent conduct, a party’s actions must be a substantial factor in bringing about the harm. Gibbons v. American Samoa Gov’t, 5 A.S.R.3d 36 (Trial Div. 2001).

Even when another party’s actions are a cause of harm, a defendant is not absolved of responsibility if its negligent action creates the foreseeable risk of harm and is a substantial factor in causing the harm. Gibbons v. American Samoa Gov’t, 5 A.S.R.3d 36 (Trial Div. 2001).

If plaintiff was healthy prior to the incident and the injury appeared shortly afterward, her disability is presumed to have been caused by the incident if she can prove a causal nexus between the incident and her illness. Gibbons v. American Samoa Gov’t, 5 A.S.R.3d 36 (Trial Div. 2001).

§ 1(5) —Negligence Per Se

That a legislature has imposed a criminal sanction on certain conduct does not always mean that it also intended to give persons injured by such conduct the right to recover in tort. Foma’i v. Samana, 4 A.S.R.2d 102.

Where a statute restates, reinforces, or gives rise to a community standard, and when it is reasonably foreseeable that the failure to observe this standard will cause a particular kind of harm to a particular kind of victim, such a victim can generally recover damages in tort when he suffers such harm. Foma’i v. Samana, 4 A.S.R.2d 102.

An act which constitutes careless driving in violation of A.S.C.A. § 22.0701, prohibited overtaking in violation of A.S.C.A. § 22.0209, and hazardous passing in violation of A.S.C.A. § 22.0307(e)(1), is, for any or all of these reasons, negligence per se. Maifea v. National Pacific Insurance Co., 27 A.S.R.2d 104.

§ 1(6) —Res Ipsa Loquitur

The doctrine of res ipsa loquitur, when applicable, merely establishes a permissive inference of negligence, which the factfinder is not required to adopt. Iosia v. National Pacific Insurance Ltd., 20 A.S.R.2d 123.

The doctrine of res ipsa loquitur applies to an accident only under the following conditions: (1) it ordinarily does not occur without someone’s negligence, (2) it was caused by an agency or instrumentality within defendant’s exclusive control, and (3) it was not due to a voluntary action by the plaintiff. Lang v. American Samoa Government, 24 A.S.R.2d 59.

The evidentiary value of a plaintiff’s case is always buttressed by the absence of credible evidence to the contrary. The court will find negligence not because a defendant failed to disprove elements of a plaintiff’s claim, but because a plaintiff’s evidence, as viewed in light of a defendant’s failure to present contradictory evidence, supported such a finding. Clifton v. Voyager, 31 A.S.R.2d 12.

Whether trial court employed term, res ipsa loquitur, with pristine acuity is not important, so long as there was sufficient evidence to support the trial court’s findings. Meredith & Associates v. Blue Pacific Management Corp., 1 A.S.R.3d 4 (App. Div. 1997).

The doctrine of res ipsa loquitur permits the factfinder to infer negligence from circumstantial evidence. Meredith & Associates v. Blue Pacific Management Corp., 1 A.S.R.3d 4 (App. Div. 1997).

Res ipsa loquitur is applicable when (1) the event is of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it was caused by an agency or instrumentality within the exclusive control of the defendant; (3) it was not due to any voluntary action or contribution on the part of the plaintiff. Lang v. American Samoa Gov’t, 1 A.S.R.3d 148 (Trial Div. 1997).

Res ipsa loquitur applies to the consequences of professional treatment if such consequences would not ordinarily occur in the absence of the allegedly culpable conduct. Lang v. American Samoa Gov’t, 1 A.S.R.3d 148 (Trial Div. 1997).

The mere fact that an injury occurred is not evidence of negligence. Lang v. American Samoa Gov’t, 1 A.S.R.3d 148 (Trial Div. 1997).

Plaintiff not entitled to the permissive inference of negligence that res ipsa loquitur affords without demonstrating that the medical consequences she suffered would not have otherwise occurred. Lang v. American Samoa Gov’t, 1 A.S.R.3d 148 (Trial Div. 1997).

Where res ipsa loquitur is inapplicable, plaintiffs must produce some medical proof of causation. Lang v. American Samoa Gov’t, 1 A.S.R.3d 148 (Trial Div. 1997).

The doctrine of res ipsa loquitur applies when an accident’s nature is such that past experience has shown that it probably resulted from someone’s negligence and that the defendant is probably responsible. Seva`aetasi v. Am. Samoa Power Auth., 5 A.S.R.3d 91 (Trial Div. 2001).

The doctrine of res ipsa loquitur applies to an accident only under the following conditions: (1) it ordinarily does not occur without someone’s negligence, (2) it was caused by an agency or instrumentality within defendant’s exclusive control, and 3) it was not due to a voluntary action by the plaintiff. Seva`aetasi v. Am. Samoa Power Auth., 5 A.S.R.3d 91 (Trial Div. 2001).

The doctrine of res ipsa loquitur, when applicable,merely establishes a permissive inference of negligence which the fact finder is not required to adopt. Seva`aetasi v. Am. Samoa Power Auth., 5 A.S.R.3d 91 (Trial Div. 2001).

Evidence was insufficient to sustain inference of negligence on the part of power company where house fire started from electrical panel located on opposite side of wall where meter was located and electricity had been recently re-connected by utility. There was nothing particularly involved, or untoward, in the utility employee’s disconnecting and reconnecting power supply which would suggest negligence. Seva`aetasi v. Am. Samoa Power Auth., 5 A.S.R.3d 91 (Trial Div. 2001).

§ 2 Intentional Torts

§ 2(1) —General Provisions

Consent, by words and actions, to an intentional tort bars recovery. Fetui v. Am. Samoa Gov’t, 2 A.S.R.2d 52 (Trial Div. 1985).

Where bus owner allowed creditor to hold his bus as security for repayment of the debt, and the creditor subsequently operated the bus at a profit equal to or greater than the amount of the debt, the debt was discharged and the creditor’s continued refusal to return the bus to its owner would amount to conversion. Chan Kau v. Samasoni, 7 A.S.R.2d 21.

Because third-degree assault can be committed “recklessly” or even “with criminal negligence,” a guilty plea does not establish what injuries, if any, were inflicted upon plaintiff, nor does it establish that defendant acted intentionally, an essential element of the tort of battery. A.S.C.A. § 46.3522(a)(1) & (4). Galea`i v. Atofau, 16 A.S.R.2d 76.

Although plaintiff’s consent to a fist fight will ordinarily bar his recovery for injuries suffered in the fight, the majority rule is that when mutual combat is conducted with weapons calculated to cause death or serious physical injury, consent is no defense to civil liability. Galea`i v. Atofau, 16 A.S.R.2d 76.

A suit against police officers for assault, unlawful entry, and wrongful arrest was dismissed when hospital records showed a minor’s injuries took place four months after the complaint was filed and when the credible evidence showed that his mother consented to the search of the house and that the minor was brought to the police station by another youth. Sepulona v. Mau, 22 A.S.R.2d 90.

Even if apportionment of damages among joint tortfeasors can be reasonably applied, joint and several liability remains the rule for intentional torts. Fiaui v. Faumuina, 27 A.S.R.2d 36.

Damages for intentional infliction of emotional distress are usually only awarded for mental suffering so extraordinary, vindictive, extreme, or outrageous as to give rise to a cause of action for intentional infliction of emotional distress. Fiaui v. Faumuina, 27 A.S.R.2d 36.

A right of action for personal injuries survives both the tortfeasor’s and the injured person’s death. A.S.C.A. §§ 43.5001 and 43.5002. Newton v. Taleka, 30 A.S.R.2d 86.

§ 2(2) —Defamation

Slanderous remarks and assault and battery by one party against another cannot be considered by courts in interpreting trust, but do constitute crimes and torts, and court may give warning to that effect to offending party. Tolivale v. Ufanua, 3 A.S.R. 196.

Publication of defamatory statements requires that statements be heard and understood by third person. Dwyer v. McDonald, 1 A.S.R. 652.

When Governor of American Samoa is investigating in his official capacity, statements made to him are privileged and, as such, cannot form the basis for actionable slander. Dwyer v. McDonald, 1 A.S.R. 652.

Statements published in connection with litigation enjoy judicial privilege and may not form the basis of a tort recovery for defamation. Rose v. Hall, 1 A.S.R.2d 17 (Trial Div. 1980).

Defamatory statement must be one of fact and not of opinion. King v. Ala`ilima, 16 A.S.R.2d 6.

Whether a statement is one of opinion or rhetorical hyperbole or of fact is a question of law. King v. Ala`ilima, 16 A.S.R.2d 6.

Whether a statement is one of opinion or rhetorical hyperbole or of fact is determined from the perspective of an ordinary reader. King v. Ala`ilima, 16 A.S.R.2d 6.

Court must examine both the allegedly defamatory language and its context in determining whether it is a statement of fact or a statement of opinion, since language which taken alone might seem to be a statement of fact may be a statement of opinion when viewed in context. King v. Ala`ilima, 16 A.S.R.2d 6.

Attorney’s published letter held to be a statement of opinion not actionable in a suit for defamation, where the letter arose from a public controversy regarding a labor dispute, was in the form of an attorney’s demand letter, and used language indicating the statements contained within were opinions rather than facts. King v. Ala`ilima, 16 A.S.R.2d 6.

Statements which would typically be considered slander constitute libel when said in association with a libelous act. Fou v. Talofa Video, 2 A.S.R.3d 132 (Trial Div. 1998).

Libel may occur where a defamatory writing is read aloud. Fou v. Talofa Video, 2 A.S.R.3d 132 (Trial Div. 1998).

Posting defamatory material so that it is viewable by third persons constitutes publication. Fou v. Talofa Video, 2 A.S.R.3d 132 (Trial Div. 1998).

Publication of a defamatory statement can be done intentionally or negligently. Fou v. Talofa Video, 2 A.S.R.3d 132 (Trial Div. 1998).

A communication is defamatory if it so harms the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. Fou v. Talofa Video, 2 A.S.R.3d 132 (Trial Div. 1998).

Where store posted a patron’s properly drafted, but out-of-state, check for its employees to see as “unacceptable”, where check was placed in public view, and where store employees told others that it was posted because of its “unacceptable” nature, the obvious implication was that the drafter had drawn the check on insufficient funds and thus such actions constituted libel. Fou v. Talofa Video, 2 A.S.R.3d 132 (Trial Div. 1998).

A written or printed imputation of any crime of moral turpitude or punishable by confinement is libelous per se. Fou v. Talofa Video, 2 A.S.R.3d 132 (Trial Div. 1998).

Where libel per se is shown, actual damages need not be proven. Fou v. Talofa Video, 2 A.S.R.3d 132 (Trial Div. 1998).

Libel is a form of defamation and is defined as a false and unprivileged publication by writing which exposes any person to hatred, contempt, ridicule, or obloquy or which causes him to be shunned or avoided or which has a tendency to injure him in his occupation. Matamua v. Carribean Fishing Co., 4 A.S.R.3d 126 (Trial Div. 2000).

The following elements are required in order to establish liability for defamation: (1) A false; (2) and defamatory; (3) statement concerning the plaintiff; (4) that is unprivileged; (5) made to a third party; (6) with fault amounting to at least negligence on the part of the publisher; (7) and either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication of the statement. Matamua v. Carribean Fishing Co., 4 A.S.R.3d 126 (Trial Div. 2000).

In the case of a private plaintiff in a matter not of public concern and not involving the news media, the defendant has the burden of proving the truth of a defamatory statement as an affirmative defense. Matamua v. Carribean Fishing Co., 4 A.S.R.3d 126 (Trial Div. 2000).

Where a defendant repeats a statement attributed to another, he must establish the truth of the statement repeated because one who repeats a defamatory statement endorses it. Matamua v. Carribean Fishing Co., 4 A.S.R.3d 126 (Trial Div. 2000).

To discern whether a statement is defamatory, a court looks to the impression it would naturally produce in the average reader among whom it was intended to reach. Matamua v. Carribean Fishing Co., 4 A.S.R.3d 126 (Trial Div. 2000).

Statements made by employers that attack the honesty, integrity, or competence of employees are defamatory, and can give rise to an action for defamation if not true or protected by privilege. Matamua v. Carribean Fishing Co., 4 A.S.R.3d 126 (Trial Div. 2000).

The common interest privilege is a defense to defamation and applies where a statement contained in a communication is made without malice to a person interested therein by one who is also interested. Matamua v. Carribean Fishing Co., 4 A.S.R.3d 126 (Trial Div. 2000).

The common interest privilege is conditional, and may be lost upon a showing of abuse, malice, or a reckless disregard for the truth. Matamua v. Carribean Fishing Co., 4 A.S.R.3d 126 (Trial Div. 2000).

The common interest privilege applies to statements made concerning a current or former employee, but only when the statement is reasonably calculated to protect a common interest of the employer and employees. Matamua v. Carribean Fishing Co., 4 A.S.R.3d 126 (Trial Div. 2000).

The common interest privilege is forfeited when the statement includes matters that have no bearing on the interest sought to be protected. Matamua v. Carribean Fishing Co., 4 A.S.R.3d 126 (Trial Div. 2000).

Where supervisor saw employee in a truck with fish and heard from employee’s coworker that employee had taken some fish, but made no effort to ascertain whether employee or driver of truck had actually taken fish, how many fish were taken, or whether any of the fish were sold, Court found that supervisor’s subsequent statement that employee had illegally taken and sold fish was done with a reckless disregard for its truth. Matamua v. Carribean Fishing Co., 4 A.S.R.3d 126 (Trial Div. 2000).

There are three categories of damages to which victims of defamation may be entitled: compensatory, nominal, and punitive. Matamua v. Carribean Fishing Co., 4 A.S.R.3d 126 (Trial Div. 2000).

In an ordinary action for defamation, special damages must be proven before the plaintiff is allowed any recovery. Matamua v. Carribean Fishing Co., 4 A.S.R.3d 126 (Trial Div. 2000).

A statement that is libel per se is actionable without proof of special damages. Matamua v. Carribean Fishing Co., 4 A.S.R.3d 126 (Trial Div. 2000).

Irrelevant matter in a communication otherwise privileged may be held libelous per se. Matamua v. Carribean Fishing Co., 4 A.S.R.3d 126 (Trial Div. 2000).

Where a statement is libelous per se, general damages are presumed. Matamua v. Carribean Fishing Co., 4 A.S.R.3d 126 (Trial Div. 2000).

Where a statement is libelous per se, punitive damages may be awarded without a showing of actual malice on the part of the defendant. Matamua v. Carribean Fishing Co., 4 A.S.R.3d 126 (Trial Div. 2000).

Where plaintiff had shown that defendant had published a defamatory statement, which was libelous per se, with a reckless disregard for its truth, Court held such recklessness justified imposition of punitive damages. Matamua v. Carribean Fishing Co., 4 A.S.R.3d 126 (Trial Div. 2000).

§ 2(3) —Trespass

SEE REAL PROPERTY § 14 – PROPERTY TORTS

§ 2(4) —Malicious Prosecution

An action for malicious prosecution may not be asserted by way of cross-complaint or counterclaim in the original proceedings, prior to its termination, since it is essential that the original proceedings shall have previously terminated in favor of the party bringing the malicious prosecution action. Bank of Hawaii v. Randall, 1 A.S.R.3d 141 (Trial Div. 1997).

§ 2(5) —Conversion

The improper guaranteeing of a loan by an officer of the Development Bank of American Samoa for the officer’s personal use is a conversion of the Development Bank’s credit and constitutes the offense of willful misapplication. Am. Samoa Gov’t v. To’oto’o, 2 A.S.R.2d 61 (App. Div. 1985).

In actions for conversion, the cause of action accrues on the date of the conversion, regardless of when the plaintiff discovers the conversion or whether he demanded the return of the property, unless the case involves fraudulent concealment or other act of deceit designed to hide the defendant’s actions from the plaintiff. Pouesi v. American Samoa Gov’t, 5 A.S.R.3d 164 (Trial Div. 2001).

§ 2(6) —Intentional Infliction of Emotional Distress

Breach of contract is not such extreme and outrageous conduct as will subject the breacher to liability for reckless or intentional infliction of emotional distress. Rose v. Hall, 1 A.S.R.2d 17 (Trial Div. 1980).

Damages for the intentional infliction of emotional distress are awarded in the context of employment termination only where the employer’s method of terminating the employee, or conduct accompanying the termination, is outrageous. Velega v. Legislature of American Samoa, 4 A.S.R.3d 145 (Trial Div. 2000).

As a matter of law, plaintiff’s allegations of intentional infliction of emotional distress are insufficient to withstand a motion to dismiss where employer merely questioned a co-worker about employee’s fraternization with another employee. Haleck v. Agaoleatu, 7 A.S.R.3d 203 (Trial Div. 2003).

Actions not directed at the employee have been held insufficient as a matter of law to support an intentional infliction of emotional distress claim. Haleck v. Agaoleatu, 7 A.S.R.3d 203 (Trial Div. 2003).

Claim of emotional distress denied where defendant continued to occupy house that was subject of threats of destruction. Fanene v. Vaona, 7 A.S.R.3d 285 (Land & Titles Div. 2003).

§ 3 Strict Liability

While motorists must be vigilant when encountering children, the fact that an injury occurred does not automatically give rise to strict liability without fault. Estate of Tuilesu v. Asifoa, 20 A.S.R.2d 60.

In general, strict liability looks at the product itself and determines if it is defective, whereas negligence looks at the act of the manufacturer and determines if it exercised ordinary care, although this distinction is not as clear in failure-to-warn cases. Interocean Ships, Inc. v. Samoa Gases, 23 A.S.R.2d 76.

The widely accepted rule of Restatement (Second) of Torts § 402A, which states that an action for recovery under a theory of strict products liability may be entertained by a court sitting in admiralty, is now accepted in American Samoa. Interocean Ships, Inc. v. Samoa Gases, 23 A.S.R.2d 76.

Under Restatement (Second) of Torts § 402A, the elements of a strict-liability action are (1) the product is sold in a defective condition which is unreasonably dangerous to the user or consumer or to his property, (2) the seller is engaged in the business of selling such a product, and (3) the product is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. Interocean Ships, Inc. v. Samoa Gases, 23 A.S.R.2d 76.

Under Restatement (Second) of Torts § 402A, a seller is not strictly liable when he delivers the product in a safe condition and when subsequent mishandling or other causes make it harmful by the time it is consumed; thus, a plaintiff bears the burden of proving that the product was in a defective condition when it left the seller. Interocean Ships, Inc. v. Samoa Gases, 23 A.S.R.2d 76.

The general rule is that subsequent changes in the condition of the product do not relieve the seller or manufacturer of strict liability, if the changes were foreseeable and did not unforeseeably render the product unsafe. Interocean Ships, Inc. v. Samoa Gases, 23 A.S.R.2d 76.

Under Restatement (Second) of Torts § 388, a supplier is liable for physical harm caused by the product’s use if the supplier (1) knows or has reason to know that the product’s use is likely to be dangerous, (2) has no reason to believe that the product’s users will realize its dangerous condition, and (3) fails to exercise reasonable care to inform users of the product’s dangerous condition. Interocean Ships, Inc. v. Samoa Gases, 23 A.S.R.2d 76.

A seller has a duty to warn of the inherent dangers of its products, though the warning’s adequacy must take into account the expertise of the consumer to whom the warning is directed. Interocean Ships, Inc. v. Samoa Gases, 23 A.S.R.2d 76.

Under Restatement (Second) of Torts § 402A, a manufacturer may be strictly liable even if a product is used in an unintended manner and so is not warned against, if the misuse is reasonably foreseeable. Interocean Ships, Inc. v. Samoa Gases, 23 A.S.R.2d 76.

§ 4 Nuisance

Legislature may declare anything to be nuisance which is detrimental to health, morals, peace or welfare of people, but in absence of legislative determination that coconut leaves and mats used for decoration of inn are nuisance as fire hazard, court will not find that they are. Bank of American Samoa v. Brown, 2 A.S.R. 365.

In order to render building a nuisance by reason of exposure of other buildings to fire, hazardous character of danger must be imminent and leave no doubt as to probability of injurious results, and placing of coconut leaves and mats in inn for decoration does not constitute such danger and is not nuisance. Bank of American Samoa v. Brown, 2 A.S.R. 365.

In order to convict man for letting his pig run at large, prosecution must show willfulness or negligence. American Samoa v. Asuemu, 2 A.S.R. 646.

Court finds that licensee’s house does not block passage of air, thereby jeopardizing health and life of licensor. Tago v. Leota, 4 A.S.R. 341.

Foul, sickening, and noxious odors emitted by tuna cannery may form basis of tort recovery for nuisance; damages thereby occasioned for involuntary abandonment of homestead are the fair market value of similar quarters. Siofele v. Van Camp, 1 A.S.R.2d 114 (Trial Div. 1983).

Violation of a statute can constitute a pub1ic nuisance per se. Muavaefa`atasi v. American Samoa Gov’t, 4 A.S.R.3d 184 (Trial Div. 2000).

In order to civilly prosecute an action for public nuisance, a plaintiff typically must allege and prove a specific injury beyond that suffered by the general public. Muavaefa`atasi v. American Samoa Gov’t, 4 A.S.R.3d 184 (Trial Div. 2000).

§ 5 Attractive Nuisance

Resulting in an attractive nuisance, the actions and omissions of a school’s employees amounted to a serious breach of their duty to take care for the schoolchildren’s safety when they left a long-abandoned trailer on the premises and failed to remove an air-conditioning unit or replace its missing support braces. Moors v. American Samoa Gov’t, 19 A.S.R.2d 67.

§ 6 Liability for Animals

Protection from a known and inherently dangerous condition, a wild dog known to bite children, is an operational rather than a discretionary function for which government has no sovereign immunity under statute. Neither may government avail itself of sovereign immunity when acting in a proprietary capacity, as in the rental of housing to its employees. Savage v. Am. Samoa Gov’t, 1 A.S.R.2d 102 (Trial Div. 1983).

When the government knows of a dangerous condition, it is liable for damages caused by its failure to attempt to alleviate it. Savage v. Am. Samoa Gov’t, 2 A.S.R.2d 6 (App. Div. 1984).

Man could not willfully have let his pig run loose in violation of statute if he was unaware that pig was loose, since willful means intending result which actually comes to pass, not involuntary or accidental. American Samoa v. Asuemu, 2 A.S.R. 646.

Where accused kept pig wall in good condition and it was new and of adequate height, he has not negligently permitted pig to stray if pig gets loose. American Samoa v. Asuemu, 2 A.S.R. 646.

Fact stones are missing from top of pig wall does not necessarily mean that pig is running stray in violation of statute. Government v. Nomura, 2 A.S.R. 658.

Harboring an animal or exercising apparent ownership is enough to create liability for an injury caused by that animal. Gates v. Gebauer, 29 A.S.R.2d 123.

Where a dog bites a person, the owner will be presumed to be at fault. This presumption, however, can be overcome by an affirmative showing on the part of the defendant that the harm was caused by the fault of the plaintiff, the fault of a third person for whom the defendant is not responsible, or by an independent cause. Gates v. Gebauer, 29 A.S.R.2d 123.

The owner of an animal is under a legal obligation to keep the animal under his control and to guard innocent parties from harm by the animal. Gates v. Gebauer, 29 A.S.R.2d 123.

The law in American Samoa prohibits anyone from possessing a live vicious animal. Neufeldt v. Don, 2 A.S.R.3d 183 (Trial Div. 1998).

The owner of an animal is under a legal obligation to keep the animal under his control and to guard innocent parties from harm by the animal. Neufeldt v. Don, 2 A.S.R.3d 183 (Trial Div. 1998).

Where defendants owned multiple, unrestrained dogs which possessed proclivity for harassing passersby and at least one of which had a known disposition towards attacking and biting small children, permanent injunctive relief was proper. Neufeldt v. Don, 2 A.S.R.3d 183 (Trial Div. 1998).

§ 7 Malpractice

§ 7(1) —General Provisions

In a malpractice action, Plaintiff bears the burden of proving, by a preponderance of the evidence, the recognized standard of care. Lang v. American Samoa Gov’t, 1 A.S.R.3d 148 (Trial Div. 1997).

§ 7(2) —Legal Profession

SEE LEGAL PROFESSION § 3(3) – MALPRACTICE

§ 7(3) —Architects

An architect is liable for a failure to exercise the reasonable care and diligence exercised by one in the in the profession. G.M. Meredith and Assoc. v. Blue Pacific Management Corp., 28 A.S.R.2d 60.

An architect must be evaluated on the basis of technology available at the time he or she performed the work. G.M. Meredith and Assoc. v. Blue Pacific Management Corp., 28 A.S.R.2d 60.

The existence and scope of an architect’s duty to supervise the implementation of plans or work methods must be determined from contractual terms, or, in their absence, from the architect’s actual conduct. G.M. Meredith and Assoc. v. Blue Pacific Management Corp., 28 A.S.R.2d 60.

The distinction between the supervision of design implementation and the supervision of work method is a not a meaningful one is therefore not legally recognized. G.M. Meredith and Assoc. v. Blue Pacific Management Corp., 28 A.S.R.2d 60.

The burden to establish the scope of supervision demanded by the profession rests upon the party alleging a breach of the architect’s duty. G.M. Meredith and Assoc. v. Blue Pacific Management Corp., 28 A.S.R.2d 60.

The standard of care is ordinarily provided by expert witnesses who testify to the customs or prevailing standards of the profession. G.M. Meredith and Assoc. v. Blue Pacific Management Corp., 28 A.S.R.2d 60.

Expectation damages are the proper measure of damages for an architect’s malpractice. G.M. Meredith and Assoc. v. Blue Pacific Management Corp., 28 A.S.R.2d 60.

Hurricanes are a fact of life in American Samoa and architects are expected to design structures to withstand hurricanes of normal strength, knowing that such structures will likely be required to withstand one or more hurricanes during their normal life span. G.M. Meredith and Assoc. v. Blue Pacific Management Corp., 28 A.S.R.2d 204.

Where evidence indicated that skylight did not survive the force of Hurricane Ofa, but replacement skylight survived Hurricane Val, a hurricane of substantially greater force than that of Ofa, there was sufficient evidence for Court to conclude that Appellant’s skylight was negligently designed and constructed. Meredith & Associates v. Blue Pacific Management Corp., 1 A.S.R.3d 4 (App. Div. 1997).

An architect is liable for a failure to exercise the reasonable care and diligence exercised by one in the profession. G.M. Meredith and Assoc. v. Blue Pacific Management Corp., 28 A.S.R.2d 60.

§ 7(4) —Medical Profession

In malpractice actions, the burden is on the plaintiff to prove the recognized standard of medical care in the community, a lack of reasonable and ordinary care by the medical professional, and that the medical professional’s negligence was the proximate cause of the injury. Lang v. American Samoa Gov’t, 1 A.S.R.3d 148 (Trial Div. 1997).

Injury, death, or an otherwise unsuccessful result of treatment does not shift the burden of proof in a malpractice action. Lang v. American Samoa Gov’t, 1 A.S.R.3d 148 (Trial Div. 1997).

Injury, death, or an otherwise unsuccessful result of treatment does not give rise to an inference of negligence in a malpractice action. Lang v. American Samoa Gov’t, 1 A.S.R.3d 148 (Trial Div. 1997).

The duty of a medical professional is to act with the standard of care ordinarily exercised under the same or similar circumstances by members of the profession in the same or similar communities. Lang v. American Samoa Gov’t, 1 A.S.R.3d 148 (Trial Div. 1997).

Mere argument, or slight indication, as to the applicable standard of care for a medical professional is not sufficient. Specific evidence should be presented. Lang v. American Samoa Gov’t, 1 A.S.R.3d 148 (Trial Div. 1997).

Unless proved otherwise, a physician is presumed to have carefully and skillfully treated his patient. Lang v. American Samoa Gov’t, 1 A.S.R.3d 148 (Trial Div. 1997).

§ 8 Vicarious Liability

§ 8(1) —Vehicle Owners

Owner’s consent to another person’s use of a vehicle may be inferred from a past course of conduct or relationship between the parties. Toleafoa v. Sioka, 5 A.S.R.2d 18.

When the driver of a vehicle is a member of the vehicle owner’s family or household, it is more likely that the driver has the owner’s implied consent to use the vehicle. Toleafoa v. Sioka, 5 A.S.R.2d 18.

Principle that family relationship between driver and vehicle owner suggests owner’s implied consent does not apply to Samoan extended communal family. Toleafoa v. Sioka, 5 A.S.R.2d 18.

Vehicle owner was not vicariously liable for injuries caused by another person driving his car under theory of implied consent when evidence indicated that driver acquired the owner’s keys through artifice. Toleafoa v. Sioka, 5 A.S.R.2d 18.

When a defective vehicle is driven without the express or implied consent of the owner, the owner cannot be held liable for injuries caused by the defect. Toleafoa v. Sioka, 5 A.S.R.2d 18.

A vehicle owner may limit the time, place, and purpose of the use of his vehicle to which he consents and thereby assume liability only for negligence that occurs within the scope of his consent. A.S.C.A. § 22.2003. Sataua v. Himphill, 5 A.S.R.2d 61.

A vehicle owner cannot restrict his consent to a particular manner of driving in order to escape liability under automobile consent statutes. A.S.C.A. § 22.2003. Sataua v. Himphill, 5 A.S.R.2d 61.

Vehicle owner who took his car to a garage for repairs did not consent, either expressly or implicitly, to use of the car by the repairman or his associate for purposes totally unrelated to the repairs. Sataua v. Himphill, 5 A.S.R.2d 61.

When a vehicle’s owner did not insure his car as required by law and the driver was using the car with his permission, the owner is liable to compensate the plaintiff for any losses up to the $10,000 insurance amount he had a duty to provide. A.S.C.A. § 22.2003. Vaiti v. So’oso’o, 19 A.S.R.2d 71.

The liability of an uninsured vehicle’s owner is secondary to that of a principal tortfeasor who was driving with the owner’s permission; while a plaintiff may collect from either defendant, the vehicle’s owner has a right of indemnity and subrogation against the driver. Vaiti v. So’oso’o, 19 A.S.R.2d 71.

When a wife was driving a vehicle with her husband’s express or implied knowledge and consent, her negligence in injuring a pedestrian was imputed to him, and he is equally liable. Sciascia v. Lutali, 23 A.S.R.2d 38.

Where company policy gives only three persons permission to drive a company vehicle, and defendant is not one of those persons, defendant does not have “express” permission to drive the vehicle. Maifea v. National Pacific Insurance Co., 27 A.S.R.2d 104.

Permission to drive a vehicle may be implied from a failure to take precautions to prevent an individual from driving a vehicle in circumstances where it is reasonably foreseeable that the person might do so. Maifea v. National Pacific Insurance Co., 27 A.S.R.2d 104.

Where defendant openly participated in relocating a company, and the company vehicle is entrusted to defendant’s group, it is reasonably foreseeable that defendant would drive the company vehicle. Maifea v. National Pacific Insurance Co., 27 A.S.R.2d 104.

A vehicle owner is vicariously liable for accidents caused by the negligence of others driving the vehicle with permission, but has a right to indemnity from the principal tortfeaser when forced to pay damages. Kent Samoa Inc. v. Shimasaki, 29 A.S.R.2d 44

The owner of a rental vehicle is vicariously liable as long as the offending driver operates the vehicle with the rental company’s express or implied permission. Foma`i v. Samana, 4 A.S.R.2d 102, 106-07 (Trial Div. 1987). Kent Samoa Inc. v. Shimasaki, 29 A.S.R.2d 44

A person must be at fault in the accident to be considered the principal tortfeasor, causing vicarious liability to attach to the vehicle’s owner for third party claims, and for the owner to consequently have a right of indemnity against the driver. Kent Samoa Inc. v. Shimasaki, 29 A.S.R.2d 44.

Where a motor vehicle is driven by unlicensed and inexperienced minor and the vehicle was entrusted to him by a parent, both are jointly and severally liable to a third party whose injuries are proximately caused by the negligence of the minor in operating the vehicle and his parent in negligently entrusting the same to him. Elisara v. Togiola, 1 A.S.R.3d 75 (Trial Div. 1997).

§ 8(2) —Family Purpose Doctrine

Under the family purpose doctrine, hereby adopted by American Samoa, a vehicle’s owner may be held liable for the negligence of a driver who is using the vehicle with the former’s express or implied permission for the family’s purpose. Gibson v. Mulitauaopele, 24 A.S.R.2d 105.

Factors used in determining whether the head of a household furnished the vehicle for a family member’s use and so is liable under the family purpose doctrine include the following: (1) who holds legal title to the vehicle, (2) who paid for the vehicle, (3) who controlled the vehicle’s use, (4) the intent of the vehicle’s buyers and sellers, (5) the intent of the parents and child regarding who was the vehicle’s owner, (6) who received delivery of the vehicle, and (7) who exercised property rights in the vehicle between the date of purchase and the date of the accident. Gibson v. Mulitauaopele, 24 A.S.R.2d 105.

Even if an adult, a child residing with the head of household may nonetheless be a family member in regards to the family purpose doctrine. Gibson v. Mulitauaopele, 24 A.S.R.2d 105.

Under the family purpose doctrine, when the head of a family owns, furnishes and maintains a vehicle for the general use, pleasure and convenience of a family, he is liable for the negligence of a member of the family having general authority to drive it while the vehicle is so being used. Maifea v. National Pacific Insurance Co., 27 A.S.R.2d 104.

Even though owner of a vehicle is a corporation, family purpose doctrine applies where the owner of the vehicle was motivated by his allegiance to his family and not out of employment obligations to the corporation. Maifea v. National Pacific Insurance Co., 27 A.S.R.2d 104.

The fact that the vehicle is owned by the family business or is at times used for business purposes does not preclude the application of the family purpose doctrine. Maifea v. National Pacific Insurance Co., 27 A.S.R.2d 104.

§ 8(3) —Compulsory Insurance Act

SEE INSURANCE § 2 – AUTOMOBILE INSURANCE

Battery of passenger by taxi driver is liability imposed by statute on liability insurer of taxicab. Tung v. Ah Sam, 4 A.S.R. 764.

Defendant insurer is liable under compulsory motor vehicle liability insurance statute for intentional unauthorized battery by insured’s employee, despite policy language to contrary. Tung v. Ah Sam, 4 A.S.R. 764.

Public policy is not violated by protecting insured taxi-owner against unauthorized battery of passenger by his employee, by holding owner’s insurer liable. Tung v. Ah Sam, 4 A.S.R. 764.

Statute requiring the owner of a vehicle to purchase and maintain liability insurance for losses inflicted by any person using his vehicle, and related statutes forbidding the operation of uninsured vehicles on the public highway and giving an injured person the right to bring direct action against the insurer, were intended to ensure recovery in tort for victims injured by drivers who could not afford to pay damages. A.S.C.A. §§ 22.1001, 22.2002-03. Foma’i v. Samana, 4 A.S.R.2d 102.

Rental company that allowed its automobile to be operated on the highway without insurance required by law was liable for damages suffered by person injured by negligent driver of company’s automobile, up to the amount that would have been covered by insurance if the rental company had not breached its statutory duty to provide insurance. A.S.C.A. §§ 22.1001, 22.2002-03. Foma’i v. Samana, 4 A.S.R.2d 102.

Legislature designed the compulsory insurance statute to facilitate compensation of, and afford a realistic remedy for, victims of negligence. A.S.C.A. § 22.2001 et seq. Pu`u v. Lepule, 8 A.S.R.2d 68.

Compulsory Insurance Act limits recovery to victims who prove actionable fault on the part of a named insured or persons driving the insured vehicle with his express or implied permission. A.S.C.A. § 22.2003(2). Mauga v. National Pacific Insurance, 15 A.S.R.2d 35.

Insurance statute that specifically includes certain losses but does not comprehensively define “liability insurance” does not necessarily exclude all other losses. Holland v. Haleck’s Island Motors, 15 A.S.R.2d 44.

§ 8(4) —Employers

SEE EMPLOYMENT LAW § 3 – INDEPENDNET CONTRACTORS

SEE AGENCY & PRINCIPAL § 3 – RIGHTS, DUTIES, AND LIABILITIES

A garageman who had possession of a vehicle in order to repair it and who was outside the direction or control of the owner was an “independent contractor” for whose negligence the owner could not be held liable under a theory of agency or master/servant liability. Sataua v. Himphill, 5 A.S.R.2d 61.

The employer of an independent contractor is generally not liable for physical harm done by the contractor or the contractor’s employees; however, an employer is liable when he knows or has reason to know that, in the ordinary course of doing the work in a usual or prescribed manner, the work is likely to result in trespass. Letuli v. Le’i, 22 A.S.R.2d 77.

As a general rule, the employer of an independent contractor is not liable for harm resulting from that contractor’s acts or omissions. American Samoa Gov’t v. .145 Acres, 5 A.S.R.3d 61 (Trial Div. 2001).

§ 9 Common Carrier Liability

Common carriers are liable for tortuous assault and battery by employee upon passenger whether or not employee was acting in line of duty or scope of authority. Tung v. Ah Sam, 4 A.S.R. 764.

Despite the high standard of care demanded of airlines, liability must be based upon negligence, and the mere fact that an injury occurred is insufficient to raise a presumption of the carrier’s negligence. Lang v. American Samoa Government, 24 A.S.R.2d 59.

Under federal common law, carriers may partially limit their liability pursuant to the “released valuation” doctrine, whereby the shipper does not declare a value and the released value. Amerika Samoa Bank v. United Parcel Service, 25 A.S.R.2d 159.

Failure to aid customers in locating missing packages is not the kind of behavior that voids a contract. Amerika Samoa Bank v. United Parcel Service, 25 A.S.R.2d 159.

§ 10 Government Tort Liability Act

SEE AMERICAN SAMOA GOVERNMENT § 6 – SOVEREIGN RIGHTS

§ 10(1) —General Provisions

It is not necessary to file a tort claim against the government prior to bringing a civil rights action. Tuivai v. Suiava, 2 A.S.R.2d 35 (Trial Div. 1984).

Plaintiff alleging injury by employee of territorial government had the option, in accordance with territorial statute, to bring an action against the employee or to waive this action and follow statutory procedures for making a claim against the government. Government Tort Liability Act, A.S.C.A. 43.1201 et seq. Aga v. American Samoa Government, 3 A.S.R.2d 130.

In order for a government subdivision to be a separate entity capable of suing or being sued in its own name, such status must bestowed by statute or constitution. Aga v. American Samoa Gov’t, 3 A.S.R.2d 130.

Territorial government is not a “person” liable under federal civil rights law for conspiracy to violate federal rights. 42 U.S.C. § 1985. Ferstle v. American Samoa Gov’t, 4 A.S.R.2d 160.

Government Tort Liability Act does not constitute waiver of immunity from suit so as to give right of action against territorial government under federal civil rights law. A.S.C.A. § 43.1203 et seq.; 42 U.S.C. § 1983. Ferstle v. American Samoa Gov’t, 4 A.S.R.2d 160.

Administrative code provision purporting to free territorial utility from liability for any damages attributable to the presence of the utility’s property on consumer’s premises, was inconsistent with statute providing that utility could be sued, especially in light of public policy that provisions purporting to absolve the drafting party from liability for its own negligence should be strictly construed. A.S.A.C. § 12.0207(b). Fa’avae v. American Samoa Power Authority, 5 A.S.R.2d 53.

Court has jurisdiction over civil actions against the government for personal injury caused by the negligent or wrongful act or omission of a government employee acting within the scope of his office or employment. A.S.C.A. § 43.1209. Tauiliili v. American Samoa Government, 13 A.S.R.2d 61.

In a civil action for personal injury caused by the negligent or wrongful act or omission of a government employee acting within the scope of his office or employment, the government is liable in the same manner and to the same extent as a private individual under like circumstances, subject to a number of specific exceptions. A.S.C.A. § 43.1203(a). Tauiliili v. American Samoa Government, 13 A.S.R.2d 61.

Where a suit filed under the Government Tort Liability Act has a jurisdictional defect which is cured while the suit is pending, the court will not dismiss the suit and require plaintiff to refile since to do so would be a needless and wasteful exercise. Mataipule v. Tifaimoana Partnership, Ltd. (Mem), 14 A.S.R.2d 100.

“Claim” and “cause of action” are synonymous under the Government Tort Liability Act, though in other situations a “claim” may sometimes be defined as occurring at the time of injury. Mataipule v. Tifaimoana Partnerships, Ltd., 16 A.S.R.2d 48.

Suits for false arrest or imprisonment are outside the scope of the Government Tort Liability Act. A.S.C.A. §§ 43.1201 et seq. Rakhshan v. American Samoa Government, 20 A.S.R.2d 1.

Under A.S.C.A. § 43.1201, ASG is subject to a limited waiver of its immunity from suit for actions based in tort. Johnson v. American Samoa Gov’t, 2 A.S.R.3d 173 (Trial Div. 1998).

The ASG waives its immunity when it acts in a proprietary fashion, such as when it establishes and operates a bank or acts as a landlord, but immunity is specifically preserved under A.S.C.A. § 43.1203 for claims arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit or interference with contract rights. Johnson v. American Samoa Gov’t, 2 A.S.R.3d 173 (Trial Div. 1998).

A.S.C.A. § 43.1203(b) does not exclude all intentional torts from the Government Tort Liability Act (GTLA), and a claim for intentional infliction of emotional distress is a proper claim against ASG under the GTLA, and exclusion from the Government Tort Liability Act is limited to the torts specifically enumerated. Johnson v. American Samoa Gov’t, 2 A.S.R.3d 173 (Trial Div. 1998).

Under A.S.C.A. §§ 16.2002, 16.2003-.2004, and A.S.C.A. § 4.0301(a)(9), the American Samoa Community College may sue and be sued, the Board of Higher Education is an agency of the ASG that may not sue or be sued, the Land Grant Program is a program and not an agency, and may not sue or be sued, and the Department of Public Safety, as an agency of ASG established under and not being able to sue or be sued, it is not a proper named party under the Government Tort Liability Act. Johnson v. American Samoa Gov’t, 2 A.S.R.3d 173 (Trial Div. 1998).

High Court is conferred with exclusive trial jurisdiction over actions under the GTLA. Lagapagatele v. Lagapagatele, 2 A.S.R.3d 195 (Land & Titles Div. 1998).

The doctrine of governmental immunity, which at common law shielded the king from imputation of wrongdoing, has been supplanted in American Samoa by the Government Tort Liability Act, A.S.C.A. § 43.1203 Gibbons v. American Samoa Gov’t, 3 A.S.R.3d 135 (Trial Div. 1999).

Under A.S.C.A. § 43.1203, the American Samoa Government has voluntarily waived immunity for most tortious acts of misfeasance and nonfeasance, and retains its common law shield against liability only in certain particular circumstances. Gibbons v. American Samoa Gov’t, 3 A.S.R.3d 135 (Trial Div. 1999).

Governmental immunity 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 is retained under A.S.C.A. § 43.1203(b)(2). Gibbons v. American Samoa Gov’t, 3 A.S.R.3d 135 (Trial Div. 1999).

As to discretionary functions under A.S.C.A. § 43.1203(b) (2), a distinction is made between activity that occurs at the executive or planning level and that which occurs at the operational level; the former is immune under the discretionary function exception, while the latter is subject to potential tort liability. Gibbons v. American Samoa Gov’t, 3 A.S.R.3d 135 (Trial Div. 1999).

Day-to-day decisions involved with running a prison are not necessarily operational in nature such that they would lose their cloak of governmental immunity; some are discretionary. Gibbons v. American Samoa Gov’t, 3 A.S.R.3d 135 (Trial Div. 1999).

Although decisions such as whether to move a prisoner to a lower-security unit, how often to conduct bed checks, and how many lights and guards will be posted and where occur at the operational level, such decisions are discretionary. Gibbons v. American Samoa Gov’t, 3 A.S.R.3d 135 (Trial Div. 1999).

Although prison officials are free under A.S.C.A. § 43.1203(b)(2) to use their judgment as to most daily decisions regarding facility administration, there is no discretion involved pertaining to basic security measures. Gibbons v. American Samoa Gov’t, 3 A.S.R.3d 135 (Trial Div. 1999).

Such things as not closing off a hole in a cell wall large enough for an inmate to escape through, a failure to secure a perimeter gate, and generally maintaining a prison in such a sorry state that the warden refers to security as “a joke,” are not shielded from immunity as the product of governmental discretion; unlike decisions involving judgment, such basic acts and omissions require none, and so are not exempt from liability under the discretionary function exception to the Government Tort Liability Act. Gibbons v. American Samoa Gov’t, 3 A.S.R.3d 135 (Trial Div. 1999).

The American Samoa Government has a legal obligation to protect fellow inmates and members of the general public from those whom it has taken within its custody, and may be held liable for harm done by an inmate negligently permitted to escape. Gibbons v. American Samoa Gov’t, 3 A.S.R.3d 135 (Trial Div. 1999).

A failure to secure the walls and fencing of a prison is unreasonable, and constitutes a breach of duty of owed by the American Samoa Government to a party living near the prison. Gibbons v. American Samoa Gov’t, 3 A.S.R.3d 135 (Trial Div. 1999).

A prison custodian’s duty to third parties is to take reasonable precautions to keep criminals confined so that they may not commit further crimes. Gibbons v. American Samoa Gov’t, 3 A.S.R.3d 135 (Trial Div. 1999).

Where an escapee proceeds within hours to attack a party living next to the prison, especially where such attack is exactly the type of crime in the same area for which he had been convicted, it is clearly foreseeable that the breach of the prison custodian’s duty of care–by neglecting to cover huge holes in the prison’s walls, by leaving perimeter gates unsecured, by negligently allowing alcohol into the compound, and by generally failing to provide reasonable security measures–could result in such a crime and the injuries to the person attacked. Gibbons v. American Samoa Gov’t, 3 A.S.R.3d 135 (Trial Div. 1999).

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. Schwenke v. American Samoa Gov’t, 4 A.S.R.3d 41 (Trial Div. 2000).

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. Schwenke v. American Samoa Gov’t, 4 A.S.R.3d 41 (Trial Div. 2000).

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. Schwenke v. American Samoa Gov’t, 4 A.S.R.3d 41 (Trial Div. 2000).

The Government Tort Liability Act and its accompanying procedural requirements are inapplicable to contract actions against the American Samoa Government or its agencies. McConnell Dowell (Am. Samoa), Ltd. v. Am. Samoa Power Auth., 4 A.S.R.3d 73 (Trial Div. 2000).

An ASG agency may only be sued in its own name if it is established as an entity separate from ASG by statute or the constitution. McConnell Dowell (Am. Samoa), Ltd. v. Am. Samoa Power Auth., 4 A.S.R.3d 73 (Trial Div. 2000).

The Attorney General’s Office is required to defend any civil action or proceeding brought against any employee of the government, or his estate, under the Government Tort Liability Act. Afele-Fa`amuli v. Am. Samoa Cmty. Coll., 4 A.S.R.3d 219 (Trial Div. 2000).

§ 10(2) —Relation to Government Employee Suit

Statute providing that a judgment against or payment of a claim by the territorial government bars an action by the claimant against the responsible employee merely proscribes double recovery for a single harm, not suit against the individual government employee in the first instance. A.S.C.A. § 43.1207. Tevaseu v. American Samoa Gov’t, 5 A.S.R.2d 10.

Territorial statute has the effect of immunizing territorial employees from personal liability for torts they commit while acting within the scope of their employment, provided that the injured person chooses to proceed against the government employer. A.S.C.A. § 43.1211(a). Tevaseu v. American Samoa Gov’t, 5 A.S.R.2d 10.

Individual government employee should not be stricken as defendant in a suit against territorial government under government tort liability statute unless and until it is shown that the employee was acting within the scope of his employment at the time of the alleged injury. A.S.C.A. § 43.1211(a). Tevaseu v. American Samoa Gov’t, 5 A.S.R.2d 10.

Statute providing that judgment against government precludes later claim against government employee based on same event does not bar suit against employee prior to judgment against government. A.S.C.A. § 43.1207. Lutu v. American Samoa Government, 7 A.S.R.2d 61.

Statute immunizing government employees from personal liability for wrongful acts committed within the scope of their employment bars suit against employee only after it has been established that the wrongful conduct underlying the claim was committed within the scope of employment. A.S.C.A. § 43.1211(a). Lutu v. American Samoa Government, 7 A.S.R.2d 61.

Under A.S.C.A. § 43.1211, a plaintiff may seek recourse against ASG employees individually for false arrest, and a claim for tortious conduct may be pursued against such employees who acted out of their own negligent conduct while acting within the scope of their employment or who acted outside of the scope of the employment. Johnson v. American Samoa Gov’t, 2 A.S.R.3d 173 (Trial Div. 1998).

Under A.S.C.A. § 43.1211, an ASG employee may not be sued when a plaintiff elects to pursue a claim under the Government Tort Liability Act, but where a plaintiff chooses not proceed under the Government Tort Liability Act, she is not precluded from suing the employee for negligence. Johnson v. American Samoa Gov’t, 2 A.S.R.3d 173 (Trial Div. 1998).

Police officers, as individual employees of ASG, are not proper defendants while a party is pursuing a claim against ASG under the Government Tort Liability Act. Johnson v. American Samoa Gov’t, 2 A.S.R.3d 173 (Trial Div. 1998).

§ 10(3) —Statute of Limitations

Under statute barring action against territorial government unless begun within two years after the claim accrues, a party’s action against the government was barred when she had discovered her claim against the government no later than 1984, filed a complaint against several defendants in 1985, and named the government as a defendant by amended complaint in 1987. Utu v. National Pacific Insurance Co., 9 A.S.R.2d 88.

Under statute providing that minors shall have one year after the termination of their disability to commence any action, a claim by a minor against the government is not barred so long as action is begun within one year after attainment of majority or appointment of a guardian ad litem, notwithstanding the two-year statute of limitations otherwise applicable to actions against the government. A.S.C.A. §§ 43.0126, 43.1204. Utu v. National Pacific Insurance Co., 9 A.S.R.2d 88.

An action under the Government Tort Liability Act filed within the statutory limitation period but before the court’s subject matter jurisdiction is invoked by exhausting administrative remedies may be incapable of tolling the statute of limitations. Mataipule v. Tifaimoana Partnership, Ltd. (Mem), 14 A.S.R.2d 100.

Government Tort Liability Act requires a tort claim against the government to be filed within two years after the claim accrues. A.S.C.A. § 43.1204. Mataipule v. Tifaimoana Partnerships, Ltd., 16 A.S.R.2d 48.

Claim under the Government Tort Liability Act accrues when an administrative claim is denied. Mataipule v. Tifaimoana Partnerships, Ltd., 16 A.S.R.2d 48.

Where a cause of action does not accrue until plaintiff first performs a requisite act and the period for performing such act is indefinite or unspecified, the statute of limitations begins to run after a reasonable time for performance lapses; plaintiff cannot indefinitely suspend the running of the limitations period by delaying the required act. Mataipule v. Tifaimoana Partnerships, Ltd., 16 A.S.R.2d 48.

A prospective plaintiff’s “claim” under the Government Tort Liability Act does not accrue, and therefore the two-year limitation period does not begin to run, until after the claim has been finally denied by the Attorney General. A.S.C.A. §§ 43.1204-43.1205. Randall v. American Samoa Gov’t, 19 A.S.R.2d 111.

Under the statute of limitations applicable to the Government Tort Liability Act, the High Court has construed the term “claim” as being synonymous with “cause of action.” A.S.C.A. § 43.1204. Randall v. American Samoa Gov’t, 19 A.S.R.2d 111.

The general rule is that a tort claim accrues when a person has been injured and knows or should have known the essential facts about his injury and its probable cause. Randall v. American Samoa Gov’t, 19 A.S.R.2d 111.

The usual reason given for construing statutes of limitation for suits against the United States Government as jurisdictional (i.e., not subject to waiver and/or tolling)–that the limitations are deemed an integral part of the initial waiver of sovereign immunity, which should not be extended by courts beyond the intent of Congress–does not apply to ASG. Randall v. American Samoa Gov’t, 19 A.S.R.2d 111.

Persons who have been injured by private persons have two years after the cause of action accrues in which to file suit. A.S.C.A. § 43.0120(2). Randall v. American Samoa Gov’t, 19 A.S.R.2d 111.

Under the Government Tort Liability Act, injured persons may bring suit within two years from the date of injury (or, in certain cases, of knowledge thereof). A.S.C.A. § 43.1204. Randall v. American Samoa Gov’t, 19 A.S.R.2d 111.

The right to sue under the Government Tort Liability Act is absolutely barred by failure to bring an administrative claim within a two-year period from the date of injury, and the Attorney General has a reasonable time in which to review such claim. A.S.C.A. §§ 43.1204-43.1205. Randall v. American Samoa Gov’t, 19 A.S.R.2d 111.

An action under the Government Tort Liability Act is subject to dismissal when the statute of limitations has run or when administrative remedies have not been exhausted. A.S.C.A. §§ 43.1204-43.1205; T.C.R.C.P. 12(b). Randall v. American Samoa Gov’t, 19 A.S.R.2d 111.

ASG waived the statute of limitations applicable to the Government Tort Liability Act when it did the following: filed an answer which affirmatively admitted that the Court had jurisdiction over the parties and the subject matter; vigorously litigated the merits of the action for several years; required the defendant to undergo a deposition and to answer numerous interrogatories, requests for production of documents, and requests for admissions; sought and obtained affirmative relief from the Court by filing what amounted to a mandatory counterclaim, a permissive counterclaim, and another permissive counterclaim on behalf of a wholly-owned entity; and effectively reduced one of these claims to a substantial judgment. A.S.C.A. § 43.1204. Randall v. American Samoa Gov’t, 19 A.S.R.2d 111.

The two-year statute of limitations applicable to the Government Tort Liability Act is not a jurisdictional prerequisite but is a statute of limitations, an affirmative defense which is waived if not affirmatively pled by the defendant. A.S.C.A. § 43.1204. Randall v. American Samoa Gov’t, 19 A.S.R.2d 111.

Unlike its quite differently phrased and structured counterpart in the Federal Tort Claims Act, the statute of limitations applicable to American Samoa’s Government Tort Liability Act has been held to be subject to tolling during the minority of an injured person. A.S.C.A. § 43.1204. Randall v. American Samoa Gov’t, 19 A.S.R.2d 111.

In the absence of any evidence that the Fono meant the two-year limitation on tort actions against ASG to be construed and applied differently than the similar two-year limitation on tort actions against private persons, the High Court will not conclude that the Fono intended or would have intended the “harsh result” of depriving litigants against the Government of the benefit of the traditional rule that a party entitled to plead the statute of limitations can waive the statute by not pleading it as an affirmative defense and by proceeding to litigate the suit on its merits. A.S.C.A. § 43.1204. Randall v. American Samoa Gov’t, 19 A.S.R.2d 111.

Prejudice to the plaintiff resulting from ASG’s failure to plead in its answer the statute of limitations applicable to the Government Tort Liability Act should be evaluated as of the time that the defendant finally asserted the statute, not when plaintiff failed to plead the statute as a defense and could not have cured the defect in his action by filing a new complaint. A.S.C.A. § 43.1204. Randall v. American Samoa Gov’t, 19 A.S.R.2d 111.

Even though the failure to plead in its answer the statute of limitations applicable to the Government Tort Liability Act could not be characterized as a waiver with respect to any future amendment of the complaint, ASG was estopped from raising the statute of limitations with respect to an amended complaint when the same combination of defenses raised in its motion to dismiss could have been raised in its answer to the original complaint five years earlier, but the government instead vigorously litigated on the merits for several years and also sought affirmative relief from plaintiff by way of counterclaims and cross-claims. A.S.C.A. § 43.1204. Randall v. American Samoa Gov’t, 19 A.S.R.2d 126.

When the defense that the complaint was not filed within the Government Tort Liability Act’s statute of limitations was not available at the time ASG filed its answer, failure to plead this defense did not amount to a waiver of the statute of limitations with respect to any future amendment of the complaint. A.S.C.A. § 43.1204. Randall v. American Samoa Gov’t, 19 A.S.R.2d 126.

It is not the intent of the Government Tort Liability Act, A.S.C.A. § 43.1202 et seq., to create a four-year limitation period in which the government can be sued in tort. A party may not wait two years to file an administrative clam and then two more years to file a court case. Bradcock v. American Samoa Gov’t, 28 A.S.R.2d 182.

In suits against the government, the court should ordinarily limit litigants to some overall period resembling the two-year statute of limitations imposed upon litigants suing private defendants, while taking into account the extra time required for exhausting administrative remedies. Bradcock v. American Samoa Gov’t, 28 A.S.R.2d 182.

When a plaintiff files a tort claim with the Attorney General at any time within the two-year period provided by § 43.1204, the running of the two-year period is stayed and the statute is tolled for such time as the Attorney General takes to act upon the claim or until such time as the claim is denied by default. Bradcock v. American Samoa Gov’t, 1 A.S.R.3d 42 (App. Div. 1997).

Tort claims against the American Samoa Government are subject to the Government Tort Liability Act, which states that such claims shall be forever barred unless an action on it is begun within 2 years after the claim accrues. Pouesi v. American Samoa Gov’t, 5 A.S.R.3d 164 (Trial Div. 2001).

§ 10(4) —Administrative Claim Requirement

Under statute requiring plaintiff to file an administrative claim before bringing action against the government, administrative claim by mother that she and her family had suffered damages adequately notified the government of the claims of her minor children, so that suit by minors should not be dismissed for failure to exhaust administrative remedies. A.S.C.A. § 43.1205(a). Utu v. National Pacific Insurance Co., 9 A.S.R.2d 88.

Requirement that a claimant against a government agency must exhaust administrative remedies before bringing suit comprises both waivable and non-waivable elements. Pago Petroleum Products, Inc. v. American Samoa Power Authority, 10 A.S.R.2d 75.

For a trial court to have subject matter jurisdiction over actions arising under the Government Tort Liability Act, an administrative claim must first be made and either denied or ignored for three months. A.S.C.A. § 43.1205(a). Mataipule v. Tifaimoana Partnership, Ltd. (Mem), 14 A.S.R.2d 100.

Filing of the administrative claim required as a prerequisite to suit under the Government Tort Liability Act may toll the Act’s statute of limitations. Mataipule v. Tifaimoana Partnership, Ltd. (Mem), 14 A.S.R.2d 100.

Under the Government Tort Liability Act, a party may not sue the government in tort until after he files an administrative claim with the Attorney General which is either still pending or denied within three months of its filing. A.S.C.A. §§ 43.1201 et seq. Mataipule v. Tifaimoana Partnerships, Ltd., 16 A.S.R.2d 48.

Requirement that an administrative claim first be filed is a jurisdictional prerequisite to suit under the Government Tort Liability Act. Mataipule v. Tifaimoana Partnerships, Ltd., 16 A.S.R.2d 48.

Cause of action accrues under the Government Tort Liability Act when the administrative remedies under the Act are exhausted, because plaintiff cannot seek judicial relief until then. Mataipule v. Tifaimoana Partnerships, Ltd., 16 A.S.R.2d 48.

When plaintiff is statutorily required to file an administrative claim with the attorney general before he may sue the government, the filing of such a claim begins an action and tolls the statute of limitations. A.S.C.A. § 43.1204. Mataipule v. Tifaimoana Partnerships, Ltd., 16 A.S.R.2d 48.

Because an injured person cannot sue until he has exhausted his administrative remedy, the Government Tort Liability Act provides that no tort action may be instituted against ASG unless the claimant has first presented the claim in writing to the Attorney General, and the claim has been finally denied by the Attorney General. A.S.C.A. § 43.1204. Randall v. American Samoa Gov’t, 19 A.S.R.2d 111.

An administrative claim is a jurisdictional prerequisite to a suit against ASG under the Government Tort Liability Act. A.S.C.A. §§ 43.1201 et seq. Rakhshan v. American Samoa Government, 20 A.S.R.2d 1.

Claims against the American Samoa Government for personal injury or property damage must be administratively submitted under the Government Tort Claims Act to the Attorney General for resolution before judicial action is instituted. A.S.C.A. § 43.1205. Crispin v. American Samoa Gov’t, 21 A.S.R.2d 60.

The requirement of filing an administrative claim before filing suit under the Government Tort Liability Act is jurisdictional. A.S.C.A. § 43.1205. Bryant v. Southwest Marine of Samoa, Inc., 22 A.S.R.2d 23.

Though modeled on the Federal Tort Claims Act, as amended in 1966, the territorial Government Tort Liability Act does not contain the F.T.C.A.’s exception from the administrative-claim prerequisite for a cause of action asserted by third-party complaint, cross-claim, or counterclaim. 28 U.S.C. § 2675(a); A.S.C.A. § 43.1205(a). Bryant v. Southwest Marine of Samoa, Inc., 22 A.S.R.2d 88.

Although based on the Federal Tort Liability Act, the territorial Government Tort Liability Act does not contain the former’s exception for third-party complaints from the requirement that an administrative-claim is a prerequisite to filing suit. 28 U.S.C. § 2675; A.S.C.A. § 43.1205. Bryant v. Southwest Marine of Samoa, Inc., 22 A.S.R.2d 23.

Although the Attorney General’s decision on an administrative claim is final and conclusively binding on all ASG officers, except when procured by fraud, his action cannot result in a waiver or estoppel preventing ASG from raising a jurisdictional issue at any stage of future litigation. A.S.C.A. § 43.1206. Bryant v. Southwest Marine of Samoa, Inc., 23 A.S.R.2d 55.

The sum-certain requirement for administrative claims filed against ASG is both statutorily and administratively an integral part of the jurisdictional administrative-claim process. A.S.C.A. § 43.1203(c); A.S.A.C. § 43.0103(a). Bryant v. Southwest Marine of Samoa, Inc., 23 A.S.R.2d 55.

Plaintiffs carry a legal duty to file administrative claims within a reasonable time or they will be barred by the doctrine of laches. Bradcock v. American Samoa Gov’t, 28 A.S.R.2d 66.

A claimant must first present his claim to the Attorney General and receive a final denial before he may bring an action under the Government Tort Liability Act. Lagapagatele v. Lagapagatele, 2 A.S.R.3d 195 (Land & Titles Div. 1998).

The Attorney General’s failure to make a final disposition of a claim within three months after it is filed may be deemed, at the option of the claimant, a final denial of the claim. Lagapagatele v. Lagapagatele, 2 A.S.R.3d 195 (Land & Titles Div. 1998).

Where plaintiff properly files administrative claim with Attorney General’s office but said office fails to dispose of the claim within the prescribed 90 day time period, the claim is deemed denied and plaintiff has satisfied the prerequisite to exhaust administrative remedies. Afele-Fa`amuli v. Am. Samoa Cmty. Coll., 4 A.S.R.3d 219 (Trial Div. 2000).

§ 11 Wrongful Death

SEE WILLS, TRUSTS & ESTATES § 14 – WRONGFUL DEATH

Court will not reject common law regarding wrongful death. Hsu v. Pratt, 4 A.S.R. 752.

Recovery for wrongful death is dependant wholly upon statutory authority. Hsu v. Pratt, 4 A.S.R. 752.

Court will not legislate wrongful death law which is solely within province of legislature. Hsu v. Pratt, 4 A.S.R. 752.

Lord Campbell’s Act was Parliamentary statute and not part of common law. Hsu v. Pratt, 4 A.S.R. 752.

Wrongful death action seeks recovery for damages suffered by others when a person dies; survival action seeks recovery on behalf of the estate of whatever the deceased could have recovered had the accident not been fatal. A.S.C.A. §§ 43.5001, 43.5002. Fa’avae v. American Samoa Power Authority, 5 A.S.R.2d 53.

Parents suing for the wrongful death of their son were entitled to receive the present discounted value of the son’s estimated annual financial benefit to them for as long as such benefit could have been expected to continue. Fa’avae v. American Samoa Power Authority, 5 A.S.R.2d 53.

Award of funeral expenses in American Samoa should not include full cost of traditional gifts to persons attending the funeral, since the expectation according to Samoan custom is that the gifts will be reciprocated over time. Fa’avae v. American Samoa Power Authority, 5 A.S.R.2d 53.

Most elements of the award in a wrongful death and survival action, including loss of financial support, companionship, affection, consortium, and parental guidance, devolve directly upon the survivors; only the damages attributable to the pain and suffering of the deceased party ordinarily accrue to the estate. Logoa’i v. South Pacific Island Airways, Inc., 6 A.S.R.2d 28.

Under territorial statutes governing wrongful death and the survival of actions, decedent’s estate is entitled to recover only the reasonable expenses of the decedent’s last illness and burial and compensation for injuries suffered by the decedent prior to his death. A.S.C.A. §§ 43.5001(b), 43.5002. In re Estate of Ah Mai (Mem.), 14 A.S.R.2d 32.

Under territorial wrongful death statute, damages for loss of society, companionship, comfort, protection, and related damages, as well as any pecuniary loss suffered on account of the decedent’s death, are recoverable not by decedent’s estate but by the surviving spouse, parents, children, or other next of kin, if any, as the court may direct. A.S.C.A. § 43.5001(b). In re Estate of Ah Mai (Mem.), 14 A.S.R.2d 32.

“Next of kin” in wrongful death statute does not designate only those persons who are first in line to inherit the decedent’s real or personal property; whether or not a person’s brothers and sisters are as closely related to him as his parents for inheritance purposes, they have frequently been allowed to recover along with parents in wrongful death actions. A.S.C.A. § 43.5001(b). In re Estate of Ah Mai (Mem.), 14 A.S.R.2d 32.

Where Court noticed after trial in wrongful death action that plaintiffs had never petitioned the Court for designation as “next of kin” as required by wrongful death statute, and where plaintiffs were not the only near relatives of the decedent, the court would withhold entry of judgment pending receipt of the required petition. A.S.C.A. § 43.5001. Saufo`i v. American Samoa Government (Mem.), 14 A.S.R.2d 51.

Practice under wrongful death statute has been to include brothers and sisters along with parents as plaintiffs in actions where the decedent has left no surviving spouse or descendants. A.S.C.A. § 43.5001. Saufo`i v. American Samoa Government (Mem.), 14 A.S.R.2d 51.

Where plaintiffs in wrongful death action had omitted other potential plaintiffs from their pleadings, amendment of the pleadings after trial to include additional plaintiffs would be permitted only insofar as it would work no prejudice on the defendants. Saufo`i v. American Samoa Government (Mem.), 14 A.S.R.2d 51.

Where damages had been assessed against defendants in wrongful death action, but plaintiffs had omitted other potential beneficiaries from their pleadings and sought to cure the omission by amendment after trial, plaintiffs would be required to share their damage award with their new co‑plaintiffs. Saufo`i v. American Samoa Government (Mem.), 14 A.S.R.2d 51.

Experience and precedent suggest that a person is likely to be more deeply affected by the death of his child than of his sibling, and that minor children are far more likely to provide future financial support to their parents than to their brothers and sisters; court has therefore approved wrongful death settlements by which the parents of a deceased child receive substantially more than the brothers and sisters, even though the parents were negotiating for all aggrieved parties. Saufo`i v. American Samoa Government (Mem.), 14 A.S.R.2d 51.

An application for designation as the proper parties in a wrongful death action has been the practice in the High Court, and such designation also appears to be statutorily required, at least in the absence of a prior designation of a personal representative (administrator or executor) of an estate. A.S.C.A. § 43.5001(b). Saufo`i v. American Samoa Government, 16 A.S.R.2d 71.

The personal representative in a wrongful-death action shall be the named plaintiff, but the action shall be brought on behalf of the surviving spouse, parents, children or other next of kin, as the court may direct. A.S.C.A. § 43.5001(b). Saufo`i v. American Samoa Government, 16 A.S.R.2d 71.

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 v. American Samoa Government, 16 A.S.R.2d 71.

When plaintiffs’ pleadings asked for damages for the death of their child in terms of “emotional distress,” the trial division properly treated the suit as an action for wrongful death. A.S.C.A. §§ 43.5001 et seq. Saufo’i v. American Samoa Gov’t, 19 A.S.R.2d 54.

Under the wrongful death statute, siblings with requisite injury may recover along with their parents. A.S.C.A. §§ 43.5001 et seq. Utu v. American Samoa Government, 20 A.S.R.2d 53.

The wrongful death statute did not envision granting relief to every relative who can claim some parental role in the decedent’s lifetime while there are surviving parents with compensable loss. Utu v. American Samoa Government, 20 A.S.R.2d 53.

The wrongful death statute is not to be read as allowing recovery for every relative who has a claim to loss of love and affection. Utu v. American Samoa Government, 20 A.S.R.2d 53.

At least for purposes of the wrongful death statute, the court has consistently applied the common law rule to determine who was next of kin. A.S.C.A. § 43.5001 et seq. Utu v. American Samoa Government, 20 A.S.R.2d 53.

Although a claim under the survival statute was not plead with specificity, the liberal rules of pleading allows the claim when the cause of action was sufficiently noticed. Utu v. American Samoa Government, 20 A.S.R.2d 53.

Award of punitive damages for wrongful death is a statutory creature, and American Samoa law does not allow punitive damages for wrongful death. Newton v. Taleka, 30 A.S.R.2d 86.

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. Schwenke v. American Samoa Gov’t, 4 A.S.R.3d 41 (Trial Div. 2000).

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. Schwenke v. American Samoa Gov’t, 4 A.S.R.3d 41 (Trial Div. 2000).

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. Schwenke v. American Samoa Gov’t, 4 A.S.R.3d 41 (Trial Div. 2000).

Siblings are ordinarily entitled to recover for wrongful death even though a parent may be living, provided that they can show the requisite injury. Schwenke v. American Samoa Gov’t, 4 A.S.R.3d 41 (Trial Div. 2000).

§ 12 Loss of Filial Consortium

No cause of action for “loss of filial consortium” was recognized at common law, although parents could recover damages for tangible losses such as a child’s lost wages and medical expenses. In re Guardianship of Falelua, 13 A.S.R.2d 83.

Although traditional limitation of damages for the injury of one’s child to palpable economic losses may reflect an outmoded view of children as mere economic assets, in a territory where the typical tortfeasor has few traceable assets and little or no insurance the recognition of a cause of action for collateral harm to a parent as a result of his child’s injuries would almost certainly have the principal effect of reducing the sum available to compensate the child for injuries more palpable, direct, and severe than those suffered by the parent. In re Guardianship of Falelua, 13 A.S.R.2d 83.

Recognition of a cause of action for collateral harm to parent arising out of his minor child’s injuries would practically guarantee a conflict of interest in every settlement negotiation arising out of such injuries, since zealous representation of the child’s claims would deplete the fund available to compensate the fiduciary. In re Guardianship of Falelua, 13 A.S.R.2d 83.

Case in which (1) child’s injuries were unlikely to have a shattering effect on the parent-child relationship; (2) the parent and guardian ad litem might herself have contributed to the injuries; and (3) the parent/guardian had waived any claim in her personal capacity by submitting a stipulated judgment requesting in effect that the entire settlement be deposited in a trust account for the child, was inappropriate for the recognition of a new cause of action for loss of filial companionship. In re Guardianship of Falelua, 13 A.S.R.2d 83.

§ 13 Bailments

SEE CONTRACTS §1(6) – BAILMENT CONTRACTS

§ 13(1) —Rights and Duties Between Bailor and Bailee

Common law concept of “bailment,” which would be less likely to result in imposition of liability on a rental company that had put an automobile into the hands of a stranger than on a private individual who had lent a car to a friend, is inappropriate doctrine for the resolution of cases involving automobiles and other dangerous instrumentalities. Foma’i v. Samana, 4 A.S.R.2d 102.

Rental company that puts as many vehicles as possible into the care of strangers should not be judged by less stringent standard of liability than that imposed on employer whose employees use vehicles in the course of his business. Foma’i v. Samana, 4 A.S.R.2d 102.

Bailee exercising “due diligence” in care of bailed property must use the ordinary care which ordinarily prudent persons, as a class, would show in caring for their own property in similar situation. Garcia v. Galea`i, 15 A.S.R.2d 14.

Under doctrine of respondeat superior, a bailee employer is vicariously liable for loss or injury with respect to the bailed property which results from the negligence or wrongful acts or omissions of his employees in executing the bailment within the course and scope of their employment. Garcia v. Galea`i, 15 A.S.R.2d 14.

Bailee may not escape liability for his employee’s negligence simply by instructing the employee to exercise due care. Garcia v. Galea`i, 15 A.S.R.2d 14.

Employer/bailee is also contractually liable for the negligence of his employees in executing the bailment, since he cannot receive money for performing a duty and at the same time escape liability for violating such duty by shifting the responsibility to an employee. Garcia v. Galea`i, 15 A.S.R.2d 14.

Bailee/employer was both vicariously and contractually liable for cash missing from bailed luggage, where he offered a luggage transport service to attract customers; his employee picked up the luggage; and both bailee/employer and employee failed to take adequate security precautions to prevent tampering with the luggage. Garcia v. Galea`i, 15 A.S.R.2d 14.

Bailee who fails to return bailed property upon the bailor’s demand is prima facie negligent, and must rebut the presumed negligence by showing he used due care in safeguarding the property. Garcia v. Galea`i, 15 A.S.R.2d 14.

It is a well-settled rule of law that an ordinary bailee is not an insurer of bailed property absent statute or express agreement but is liable only for loss resulting from his negligence in caring for and protecting the bailed property. Holland v. Haleck’s Island Motors, 18 A.S.R.2d 2.

In the case of a mutual bailment, it has been said that a bailee, in relation to the property bailed, is held to a duty of ordinary care. Holland v. Haleck’s Island Motors, 18 A.S.R.2d 2.

In the case of a mutual bailment, many courts have held that a prima facie case of negligence or breach of contract will have been established against the bailee where a bailor has shown: (1) a bailment, (2) delivery of property to the bailee, and (3) failure of the bailee to redeliver the property undamaged. Holland v. Haleck’s Island Motors, 18 A.S.R.2d 2.

In the case of a mutual bailment, in order to avoid liability under either a negligence or breach-of-contract theory, a bailor must provide a lawful excuse for non-return of the property or otherwise explain that damage to the property was not owing to his lack of due care. Holland v. Haleck’s Island Motors, 18 A.S.R.2d 2.

In a bailment for mutual purposes, a bailee will be held to a higher standard of care if he has either agreed to assume a greater liability or he is one of those special bailees, such as common carriers and innkeepers, upon whom the law has imposed a strict rule of liability on grounds of public policy. Holland v. Haleck’s Island Motors, 18 A.S.R.2d 2.

To escape liability in a mutual-bailment situation, a bailee should either go forward with exculpatory evidence accounting for the property or with evidence which exonerates him of fault. Holland v. Haleck’s Island Motors, 18 A.S.R.2d 2.

A bailee for mutual purposes is under no legal obligation to insure. Holland v. Haleck’s Island Motors, 18 A.S.R.2d 2.

When lessor takes possession of leased premises and its contents to the exclusion of the lessor, the lessee becomes the bailee of such property and thus has a duty to look after it while it remains in his custody. Sala v. Tuika, 18 A.S.R.2d 29.

Where there is no satisfactory explanation or accounting given by the bailee for missing, bailed items, the inference arises that the bailee failed to take due care of the bailor’s missing property. Sala v. Tuika, 18 A.S.R.2d 29.

When the defendant stated that a prudent man would have obtained fire insurance for bailed property and when such insurance is custom in the industry, a duty to obtain such insurance existed, and the trial court committed clear error in finding that the bailee’s failure to obtain insurance did not violate the prudent-man standard. Holland v. Haleck’s Island Motors, 21 A.S.R.2d 106.

In a breach of bailment suit, a plaintiff must make a prima facie case that the bailed object was delivered and not returned; the burden then shifts to the defendant to show why the bailed object was not returned. Holland v. Haleck’s Island Motors, 21 A.S.R.2d 106.

§ 13(2)—Rights and Duties Between Bailor or Bailee & Third Person

RESERVED

§ 13(3)—Conversion of Subject Matter

Warehouse owner who contracts to store certain property and then sells it thereby commits conversion, regardless of whether the contract is characterized as a bailment or as a lease of storage space. Purse Seine Inc. v. Lumana`i Development Inc., 11 A.S.R.2d 1.

The conversion doctrine is pertinent only when there has been a true conversion, i.e., where the carrier has appropriated the property for its own use or gain. The carrier may properly limit its liability where the conversion is by third parties or even by its own employees. Amerika Samoa Bank v. United Parcel Service, 25 A.S.R.2d 159.

§ 14 Comparative & Contributory Negligence

Person may recover for interference with his legally protected interests, even if at time of tort he also was committing tort or crime. Tung v. Ah Sam, 4 A.S.R. 764.

Youth who suffered electrocution while climbing a tree to knock down breadfruits with a metal pole, and who knew or should have known that there were electric wires in the immediate vicinity of the tree, was negligent and under comparative negligence statute his negligence would be evaluated as equal to that of utility that had permitted its wires to fray. Fa’avae v. American Samoa Power Authority, 5 A.S.R.2d 53.

Doctrines of last clear chance and intervening negligence are supplanted by comparative fault principles, whereby liability for damage is to be allocated among the parties proportionately to the comparative degree of their fault. United Airlines Employee Credit Union v. M/V Sans End, 15 A.S.R.2d 95.

Under A.S.C.A. § 43.5101, contributory negligence does not bar recovery, but damages are reduced in proportion to the extent of negligence attributable to the injured person. Alofipo v. Va, 20 A.S.R.2d 119.

Having been made applicable by statute to actions for personal injury or property damage and so being compatible with the legislature’s will, comparative negligence is properly incorporated into admiralty. Interocean Ships, Inc. v. Samoa Gases, 23 A.S.R.2d 76.

Rejecting “expert user,” assumption of risk, and contributory negligence defenses as barring recovery, American Samoa adopts the comparative-negligence approach in admiralty. Interocean Ships, Inc. v. Samoa Gases, 23 A.S.R.2d 76.

Pedestrian, a minor, was comparatively negligent in crossing the road into the unavoidable path of a vehicle and in failing to yield the right-of-way to vehicles when crossing at a point other than a crosswalk. A.S.C.A. §§ 22.0401(c)-(d), 43.5101. Sciascia v. Lutali, 23 A.S.R.2d 38.

Under the comparative fault doctrine, all parties to an occurrence have their fault determined in one action, even if some parties are absent because they cannot be formally joined or held legally responsible. Interocean Ships, Inc. v. Samoan Gases, 24 A.S.R.2d 108.

American Samoa’s comparative-negligence statute does not alter the common-law rule of joint and several liability in a personal-injury case and does not require apportionment of negligent conduct by a defendant and a non-party so as to reduce a defendant’s liability. A.S.C.A. § 43.5101. Euta v. Etimani, 24 A.S.R.2d 139.

The court may apportion damages among joint tortfeasors instead of applying joint and several liability, but only when it is feasible. Fiaui v. Faumuina, 27 A.S.R.2d 36 (Trial Div. 1994).

Apportionment of damages among joint tortfeasors is feasible when the plaintiff has suffered factually separable or divisible harm that can be allocated among tortfeasors with reasonable certainty. Fiaui v. Faumuina, 27 A.S.R.2d 36 (Trial Div. 1994).

Where injured persons substantially contribute to their injuries by engaging in hazardous conduct, their comparative negligence will not bar recovery, but may limit recovery. A.S.C.A. § 43.5101. Maifea v. National Pacific Insurance Co., 27 A.S.R.2d 104 (Trial Div. 1995).

Where it is possible to apportion liability, the need to invoke joint and several liability is negated. Masaniai v. The Country Club, 2 A.S.R.3d 142 (Trial Div. 1998).

Where it is possible to estimate and assign fault, it is a more equitable and fitting approach than automatically deeming liability “joint and several.” Masaniai v. The Country Club, 2 A.S.R.3d 142 (Trial Div. 1998).

A.S.C.A. § 27.0531(f) was enacted to make establishments that directly benefit financially from the consumption of alcohol accountable to the public, but it was not intended to unfairly penalize businesses, and it is unfair to invoke joint and several liability where it is possible to apportion fault to the parties involved. Masaniai v. The Country Club, 2 A.S.R.3d 142 (Trial Div. 1998).

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. Masaniai v. The Country Club, 2 A.S.R.3d 120 (Trial Div. 1998).

A.S.C.A. § 43.5101 abolishes the contributory negligence bar to recovery, but because it is silent on the appropriate application of the principles of joint and several liability or comparative fault in a multiple tortfeasor situation, the court must decide on the proper standard to apply. Masaniai v. The Country Club, 2 A.S.R.3d 142 (Trial Div. 1998).

Operationally, A.S.C.A. § 43.5101 functions as a comparative fault mechanism, and this court has previously affirmed the doctrine of comparative fault in our jurisdiction. Masaniai v. The Country Club, 2 A.S.R.3d 142 (Trial Div. 1998).

American Samoa follows the comparative negligence doctrine. Ala v. American Samoa Gov’t, 2 A.S.R.3d 163 (Trial Div. 1998).

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. Ala v. American Samoa Gov’t, 2 A.S.R.3d 163 (Trial Div. 1998).

Where dangerous, slippery condition was obscured by dim lighting and where plaintiff approached and entered room cautiously, he was not contributorily negligent. Ala v. American Samoa Gov’t, 2 A.S.R.3d 163 (Trial Div. 1998).

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. Schwenke v. American Samoa Gov’t, 4 A.S.R.3d 41 (Trial Div. 2000).

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. Schwenke v. American Samoa Gov’t, 4 A.S.R.3d 41 (Trial Div. 2000).

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. Schwenke v. American Samoa Gov’t, 4 A.S.R.3d 41 (Trial Div. 2000).

In determining whether apportionment of damages is appropriate, the threshold inquiry is whether a plaintiff has “fully recovered” from a pre-existing condition or injury or whether such condition was “dormant” or “latent”—if the plaintiff had not fully recovered, apportionment is proper. If, however, the condition was dormant or latent, then the defendant is liable for all damages legally caused by the incident. Gibbons v. American Samoa Gov’t, 5 A.S.R.3d 36 (Trial Div. 2001).

Apportionment among tortfeasors is appropriate when it is possible to ascertain the parties’ relative liability. Gibbons v. American Samoa Gov’t, 5 A.S.R.3d 36 (Trial Div. 2001).

Where inmate escaped from correctional facility and subsequently raped plaintiff, Court determined that apportionment was appropriate, holding that one-third of plaintiff’s damages occurred as a result of ASG’s negligence, and two-thirds occurred as a result of the intentional acts of the prisoner. Gibbons v. American Samoa Gov’t, 5 A.S.R.3d 36 (Trial Div. 2001).

A trial court does not abuse its discretion by considering apportionment during the damages phase of the trial rather than the liability phase. Gibbons v. Am. Samoa Gov’t, 6 A.S.R.3d 50 (App. Div. 2002).

Comparative fault is an appropriate defense in a tort action, not a contract one. American Samoa Power Auth. v. Deutz MWM Far East (PTE) Ltd., 7 A.S.R.3d 178 (Trial Div. 2003).

§ 15 Joint and Several Liability

§ 15(1) —General Provisions

Where one party to litigation, in violation of a court order, had released money to another party which had then spent it, both parties were jointly and severally liable to a third party who was held entitled to the money; as between the two parties who violated the order, the party who received and spent the money would be required to indemnify the party who merely released it. Bank of Hawaii v. Congregational Christian Church, 9 A.S.R. 2d 100.

If court finds third party tortfeasor liable for all, or partial, payments to one who has reached a settlement with injured parties, it must look to the reasonableness of the amounts paid. Interocean Ships v. Samoa Gases, 26 A.S.R.2d 28.

If multiple tortious acts concurrently cause a single indivisible injury, then those who committed the acts are liable as joint tortfeasors, and as joint tortfeasors, they are jointly and severally liable for compensatory damages. Fiaui v. Faumuina, 27 A.S.R.2d 36.

A participant in a tortious act is jointly and severally liable for harm resulting to a third person if the tortious act is done in concert with another, or if the participant knows that another’s conduct constitutes a breach of duty and gives substantial assistance or encouragement, whether or not the participant’s own conduct, separately considered, constitutes a breach of duty to the third person. Fiaui v. Faumuina, 27 A.S.R.2d 36.

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 jointly and severally liable for their share of the damages to the plaintiff. Masaniai v. The Country Club, 2 A.S.R.3d 120 (Trial Div. 1998).

Where different defendants each played a role in the harm suffered by the plaintiff, but the conduct of the defendants was not jointly linked, and the harm is not indivisible and the tortfeasors were not acting in concert as part of one inextricable, continuous act, the strictures of joint and several liability do not apply. Masaniai v. The Country Club, 2 A.S.R.3d 142 (Trial Div. 1998).

Where it is possible to apportion liability, the need to invoke joint and several liability is negated. Masaniai v. The Country Club, 2 A.S.R.3d 142 (Trial Div. 1998).

The common law rules of joint and several liability are subject to judicial modification in American Samoa, provided the modification is consistent with American Samoan law. Gibbons v. Am. Samoa Gov’t, 6 A.S.R.3d 50 (App. Div. 2002).

The trial court’s modification of the common law rules of joint and several liability to apportion damages across multiple joint tortfeasors was entirely consistent with American Samoan law. Gibbons v. Am. Samoa Gov’t, 6 A.S.R.3d 50 (App. Div. 2002).

Because no statute in American Samoa requires application of the common law rules of joint and several liability, the trial court’s apportioning of damages across muliple joint tortfeasors was proper. Gibbons v. Am. Samoa Gov’t, 6 A.S.R.3d 50 (App. Div. 2002).

§ 15(2) —Effect of Release of One Tortfeasor

The old common-law rule that the release of one tortfeasor releases all tortfeasors does not apply to workmen’s compensation claims because an employer is not a joint tortfeasor and the policy reasons behind a general release are inapplicable. Etimani v. Samoa Packing Co., 19 A.S.R.2d 1.

Reversing the earlier common-law rules, the modern trend is that a valid release of one tortfeasor from liability, by the injured person, does not discharge others liable for the same harm, unless they agree otherwise. Restatement (Second) of Torts § 885(1) (1979). Etimani v. Samoa Packing Co., 19 A.S.R.2d 1.

If only one of several tortfeasors is a party to the litigation, the amount of recovery should be diminished by the amount of settlements with absent tortfeasors and not by percentage of fault. Fiaui v. Faumuina, 27 A.S.R.2d 36.

§ 15(3) —Determining Liability

In the absence of any even minimally probative evidence tending to show that a defendant bore some quantifiable measure of responsibility, the court will decline to arbitrarily guess what that percentage may be. Interocean Ships v. Samoa Gases, 26 A.S.R.2d 28.

Courts should allocate damages liability in proportion to relative fault. Interocean Ships v. Samoa Gases, 26 A.S.R.2d 28.

§ 15(4) —Compensation by One Defendant

If only one of several tortfeasors is a party to the litigation, then the court must assure that the plaintiff is compensated even if a single defendant must pay all of the damages. Fiaui v. Faumuina, 27 A.S.R.2d 36.

If only one of several tortfeasors is a party to the litigation, then the single defendant has a right of contribution against any absent tortfeasor. Fiaui v. Faumuina, 27 A.S.R.2d 36.

Shifting the burden of recovery to the tortfeasors assures that the injured party is compensated. Fiaui v. Faumuina, 27 A.S.R.2d 36

§ 16 Indemnity

A shipowner has a right of indemnity against a third party tortfeasor for maintenance and cure paid to an injured seaman to the extent occasioned by the third party tortfeasor’s fault. Interocean Ships v. Samoa Gases, 26 A.S.R.2d 28.

Admiralty law recognizes that even where a party to a lawsuit settles, it may still bring an indemnity action against a joint tortfeasor. Interocean Ships v. Samoa Gases, 26 A.S.R.2d 28.

Even when defendant rejects plaintiff’s tender of defense of the personal injury and wrongful death claims, the failure to tender, alone, would not preclude an indemnity claim by plaintiff, if that claim still presented a valid theory of relief. Interocean Ships v. Samoa Gases, 26 A.S.R.2d 28.

The fact the crew themselves contributed to the injury does not preclude an indemnity claim, if they were liable as well. Interocean Ships v. Samoa Gases, 26 A.S.R.2d 28.

§ 17 Subrogation

SEE CIVIL PROCEDURE § 9(5) – SUBROGATION

ASG provides free medical attention to American Samoans and qualified residents, but it can, under the equitable principle of subrogation, look to the tortfeasor for reimbursement. A.S.C.A. § 13.0601. Puailoa v. Barber, 19 A.S.R.2d 48.

In regards to subrogation, an insurance company must be joined as a necessary party plaintiff only if it has compensated an insured for his entire loss and if a danger exists that a defendant will face future lawsuits from the insurance company. T.C.R.C.P. 17(a), 19. Interocean Ships, Inc. v. Samoan Gases, 24 A.S.R.2d 108.

§ 18 Damages

§ 18(1) —General Provisions

Generally, mere fact that damages awarded in original proceeding were excessive will not merit new trial. Jewett v. McMoor, 1 A.S.R. 611.

Party seeking to recover reasonable value of services rendered must produce evidence of value to support recovery. Jt. Holdings and Tr. Ltd. v. P.J. Brennan, Inc., of Samoa, 4 A.S.R. 812.

Fact American Samoa does not have liability and damage insurance does not relieve negligent defendant of liability for damages. Faatamala v. Haleck, 4 A.S.R. 888.

Damages resulting from auto accident were limited to the maximum insurance coverage under defendant’s policy where the evidence showed that some pain and suffering resulted from plaintiff’s delay in acting on and following up medical recommendations, and her loss of earnings resulted from an unrelated medical condition rather than from the injuries caused by the accident. To`omalatai v. Moliga, 15 A.S.R.2d 77.

Damage awards are subject to wide variation between jurisdictions, therefore American Samoan courts need not be bound by awards rendered in other American jurisdictions. Moors v. American Samoa Government, 20 A.S.R.2d 76.

The general rule for recovery when a bank is negligent in collecting a draft is that the bank is liable for the actual loss suffered by the owner of the commercial paper as a result of the negligent misconduct of the bank; however, only nominal damages are recoverable when it appears that the paper remains collectible. Ghiselli Bros., Inc. v. Ryan, Inc., 22 A.S.R.2d 57.

Civil damages cannot be awarded in the absence of evidence of some reasonable basis of the monetary amount of those damages which can be determined. Reine v. Fiame, 23 A.S.R.2d 25.

A damage award to a minor shall be deposited directly into the depositary of the High Court of American Samoa and placed in an interest-bearing account with the minor as beneficiary; disbursements are to be made only on application by the guardian ad litem and with the approval of one of the Justices. Sciascia v. Lutali, 23 A.S.R.2d 38.

Claims for money damages are seldom moot and are subject to judicial resolution, even if other issues in a lawsuit are moot. Samoana Fellowship, Inc. v. American Samoa Power Authority, 24 A.S.R.2d 71.

Defendant’s counterclaim for negligence and shoddy workmanship was not proven where inspection of boat failed to establish “delamination” claim and offer of proof nothing more than an unfounded guess as to damages. Ioane v. Aiga Tautai O Samoa, 1 A.S.R.3d 96 (Trial Div. 1997).

Simply because a business is reasonably successful, it is not necessarily appropriate to apply a “deep-pocket” theory of recovery, and it is appropriate to consider that the injury to the plaintiffs’ reputation and their consequential emotional distress is not lasting. Fou v. Talofa Video, 2 A.S.R.3d 152 (Trial Div. 1998).

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. Ala v. American Samoa Gov’t, 2 A.S.R.3d 163 (Trial Div. 1998).

A defendant cannot be liable for a pre-existing injury, but may be held liable for aggravating it. Gibbons v. American Samoa Gov’t, 5 A.S.R.3d 36 (Trial Div. 2001).

Defendants are entitled to a setoff if the tortious conduct also confers a benefit on the plaintiff. Gibbons v. American Samoa Gov’t, 5 A.S.R.3d 36 (Trial Div. 2001).

The method used by the Ninth Circuit in determining an award for economic loss under the Federal Tort Claims Act is appropriate for determining the same under the American Samoa Government Tort Liability Act. It consists of three steps: (1) compute the value of plaintiff’s loss under state law; (2) deduct federal and state taxes from the portion for lost earnings; and (3) discount the total award to present value. Gibbons v. American Samoa Gov’t, 5 A.S.R.3d 36 (Trial Div. 2001).

Deduction of past federal and state income taxes, as well as future federal and state income taxes, was proper where calculation of such taxes was not speculative, and could be determined without significant difficulty. Gibbons v. American Samoa Gov’t, 5 A.S.R.3d 36 (Trial Div. 2001).

§ 18(2) —Pain and Suffering

Disparity from place to place in amounts generally awarded for pain and suffering is accounted for by many factors, including variations in the value of money and in social attitudes toward pain, and that awards tend to be lower in American Samoa than in some other jurisdictions does not make such an award clearly erroneous. A.S.C.A. § 43.0801. Kim v. Star-Kist Samoa, Inc., 8 A.S.R.2d 146.

Parents, as personal representatives of their child’s estate, were entitled to recover for the child’s pain and suffering and for medical and funeral expenses. A.S.C.A. §§ 43.5001, 43.5002. Galo v. American Samoa Government, 10 A.S.R.2d 94.

On the scale of damage awards in American Samoa, fairly mild injuries frequently result in awards or settlements in the range of $10,000, but even the most serious and painful injuries rarely result in awards over $50,000. Moors v. American Samoa Gov’t, 19 A.S.R.2d 67.

Pain and suffering resulting from conversion reaction, or physical symptoms resulting from the psychological trauma of an actual injury, are compensable in tort. Ale v. Peter E. Reid Stevedoring, Inc., 25 A.S.R.2d 142.

The right to recover damages for a personal injury is a right which is “relative” to the personal injury. Patau v. Hildre, 27 A.S.R.2d 7.

A cause of action for pain and suffering accrues if a party lives, even for a few moments, after sustaining a fatal injury. Newton v. Taleka, 30 A.S.R.2d 86.

§ 18(3) —Medical Expenses

A plaintiff seeking damages for personal injuries is entitled to recover the reasonable value of medical services rendered to him because of the injury. Puailoa v. Barber, 19 A.S.R.2d 48.

A tortfeasor takes his victims as he finds them, so the actual medical expenses incurred by a particular victim, not the amount that would have been incurred had the defendant been lucky enough to hit some other person, are the measure of damages. Vaiti v. So’oso’o, 19 A.S.R.2d 71.

Damages for projected medical expenses are allowed when permanent and troublesome injuries will probably require medical treatment in the future. Sciascia v. Lutali, 23 A.S.R.2d 38.

Tort plaintiffs may recover medical and related treatment reasonably necessary to minimize an injury or the pain or disability that results from it. Gibbons v. American Samoa Gov’t, 5 A.S.R.3d 36 (Trial Div. 2001).

Plaintiff can recover for expenses associated with reasonable attempts at treatment of injuries, even if some treatments are ineffective. Gibbons v. American Samoa Gov’t, 5 A.S.R.3d 36 (Trial Div. 2001).

§ 18(4) —Lost Wages and Profits

Lost profits are awarded when a defendant’s actions are the direct cause of the loss. Additionally, while lost profits do not have to be calculated exactly, they generally must be “proved with reasonable certainty.” Interocean Ships v. Samoa Gases, 26 A.S.R.2d 28.

The goal in awarding damages for lost future wages is to replicate as accurately as possible the injured plaintiff’s lost stream of future income. Lost stream of income is composed of the difference between what the injured party would have earned had he not been injured and what his forecasted actual earnings will be, given his injuries. Clifton v. Voyager, 31 A.S.R.2d 12.

It is generally foreseeable that an uninjured plaintiff will continue his employment at his current wage rate, in his current position, and for the same number of hours per annum. Clifton v. Voyager, 31 A.S.R.2d 12.

Just as a court may consider foreseeable raises and promotions in determining future earning capacity, courts should also be able to consider foreseeable upgrades in employment status from an unemployed or part-time employee to full-time employee–but only if the evidence at trial reliably demonstrates that it is foreseeable that the individual would have achieved full-time employment status at a particular juncture. While an individual’s big break could be “right around the corner”, a court cannot, absent reliable evidence presented at trial to the contrary, speculate that the individual would be employed more often than he was employed during the year prior to the injury. Clifton v. Voyager, 31 A.S.R.2d 12.

Lost wages, both past and future, are allowed in cases of emotional injury that renders a plaintiff unable to work. Gibbons v. American Samoa Gov’t, 5 A.S.R.3d 36 (Trial Div. 2001).

A party’s recovery for lost earnings is reduced by the amount actually earned by the plaintiff. Gibbons v. American Samoa Gov’t, 5 A.S.R.3d 36 (Trial Div. 2001).

A trial court may consider income taxes when determining past and future income damages, since a person’s income tax is a relevant factor in determining his or her actual monetary loss. Gibbons v. Am. Samoa Gov’t, 6 A.S.R.3d 50 (App. Div. 2002).

An award or settlement can be exempt from government taxation only if: (1) the claim was based on tort or tort type rights and (2) the damages were received on account of personal physical injuries or physical sickness. Gibbons v. Am. Samoa Gov’t, 6 A.S.R.3d 50 (App. Div. 2002).

Even if an award for lost wages is not subject to post-judgment taxation, a court may still properly reduce the award by such taxes as the court has a reasonable basis for finding the victim would have owed on those wages. Gibbons v. Am. Samoa Gov’t, 6 A.S.R.3d 50 (App. Div. 2002).

§ 18(5) —Damages to Personal Property

Defendant who gave evasive and dilatory answers when asked to repair or replace plaintiff’s car, and who was ultimately held liable for the damage to the car, was also held liable for plaintiff’s loss of the use of a car during the period between the accident and the time defendant finally admitted he did not plan to pay for the damages. Fonoti v. Nam, 3 A.S.R.2d 58.

Mere possibility that plaintiff’s employer may hold him financially responsible for loss of employer’s equipment by defendant airline does not entitle plaintiff to recover damages for such loss. American Samoa Government ex rel. Langford v. Hawaiian Airlines, Inc., 10 A.S.R.2d 1.

An airline may not limit its liability for provable direct or consequential damage resulting from the disappearance of, damage to, or delay in delivery of a passenger’s personal property, including baggage, in its custody to an amount less than $1250 for each passenger. 14 C.F.R. § 254.4. American Samoa Government ex rel. Uikirifi v. Hawaiian Airlines, 13 A.S.R.2d 5.

Federal regulation prohibiting limitation of airline liability to an amount less than $1250 per passenger for “personal property, including baggage” is not limited only to baggage. 14 C.F.R. § 254.4 American Samoa Government ex rel. Uikirifi v. Hawaiian Airlines, 13 A.S.R.2d 5.

The measure of damages to personal property injured but not wholly destroyed is: (a) either: (1) the difference between the value of the property immediately before and after the injury, or (2) at the owner’s option when the property is economically repairable, the reasonable cost of repair, with due allowance for any difference between the original value and the value after repairs; and (b) loss of use. Fuia v. Tua, 23 A.S.R.2d 70.

Loss of use is based on the use’s value or the amount paid for a substitute during the period when the owner is prevented from using his personal property. Fuia v. Tua, 23 A.S.R.2d 70.

§ 18(6) —Mitigation of Damages

In action for damages by husband against seducer of wife, fact that husband knew wife was of loose character does not bar action but goes in mitigation of damages. Jewett v. McMoor, 1 A.S.R. 611.

Plaintiff’s failure to mitigate damages by promptly replacing destroyed vehicle is considered in determining damages for loss of vehicle’s use. Maulupe v. American International Underwriters, 12 A.S.R.2d 1.

A plaintiff whose personal property was injured has a duty to mitigate damages by undertaking repairs with due diligence; however, this duty may be moderated, and the period may be extended, if delays are encountered because necessary acts are unreasonable or impracticable. Fuia v. Tua, 23 A.S.R.2d 70.

Defendants are entitled to a setoff if the tortious conduct also confers a benefit on the plaintiff. Gibbons v. American Samoa Gov’t, 5 A.S.R.3d 36 (Trial Div. 2001).

§ 18(7)—Punitive, Exemplary, or Special Damages

In action for personal injury it is unnecessary for plaintiff to prove special damages. Jewett v. McMoor, 1 A.S.R. 611.

While special damages need not be averred in cases of seduction or criminal conversation, Court may grant punitive or exemplary damages. Jewett v. McMoor, 1 A.S.R. 611.

Plaintiff’s claim for exemplary damages against defendant who allegedly stopped payment on checks as part of a scheme to defraud plaintiff was not supported by the evidence when (1) a letter from the bank indicated that the checks had been dishonored because of insufficient funds and (2) plaintiff had failed to subpoena bank officials or records in support of its contention that defendant had stopped payment. R.P. Porter International, Inc., v. Samoa Roofing and Siding, Inc., 7 A.S.R.2d 54.

Intended to punish a wrongdoer and deter him and others from similar, future misconduct, punitive or exemplary damages may be awarded for outrageous conduct shown by acts done with evil motive or reckless indifference to others’ rights; among the circumstances to consider are the character of a defendant’s act and the nature and extent of a plaintiff’s harm which the defendant caused or intended to cause. Letuli v. Le’i, 22 A.S.R.2d 77.

Punitive damages may be recovered whenever the elements of fraud, malice, gross negligence, or oppression mingle in the controversy in order to punish the defendant and deter others from the commission of similar wrongs. Fiaui v. Faumuina, 27 A.S.R.2d 36.

Punitive damages are appropriate when a person suffers actual harm, or injury, as a result of another person’s malicious conduct, regardless of whether actual damages are awarded. Newton v. Taleka, 30 A.S.R.2d 86.

“Malice” includes conduct that is intended to cause injury; or which is despicable by nature, that is, blatantly vile or loathsome to ordinary decent people, and carried on with willful and conscious disregard for the rights or safety of others. Newton v. Taleka, 30 A.S.R.2d 86.

Punitive damages are principally awarded for the sake of example and by way of punishment. Newton v. Taleka, 30 A.S.R.2d 86.

A punitive damage award in addition to criminal conviction is not unreasonable double punishment, but criminal punishment may be properly considered in mitigation of punitive damages. Newton v. Taleka, 30 A.S.R.2d 86.

Award of punitive damages for wrongful death is a statutory creature, and American Samoa law does not allow punitive damages for wrongful death. Newton v. Taleka, 30 A.S.R.2d 86.

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. Masaniai v. The Country Club, 2 A.S.R.3d 120 (Trial Div. 1998).

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. Masaniai v. The Country Club, 2 A.S.R.3d 120 (Trial Div. 1998).

Where evidence failed to demonstrate malice, a prayer for punitive damages was properly denied. Neufeldt v. Don, 2 A.S.R.3d 183 (Trial Div. 1998).

Punitive or exemplary damages may be awarded whether or not compensatory damages are awarded, in order to punish a wrongdoer as well as to deter other from similar future misconduct which resulted in injury, loss or detriment to another. American Samoa Gov’t v. .145 Acres, 5 A.S.R.3d 61 (Trial Div. 2001).

In order to award punitive damages in a trespass action, the trespasser’s conduct must have been wantonly reckless or malicious. American Samoa Gov’t v. .145 Acres, 5 A.S.R.3d 61 (Trial Div. 2001).

Although trespassing parties’ actions did not appear to have based on any evil intent, they nonetheless were done with reckless disregard for rights of private property owner, in violation of written contract and public utilities’ rules, and despite repeated requests to cease. Consequently, punitive damages were warranted. American Samoa Gov’t v. .145 Acres, 5 A.S.R.3d 61 (Trial Div. 2001).

§ 18(8) —Interest

Judgments in tort against the government are subject to interest at the rate of 6% per annum from the entry date of the judgment. Tuufuli v. American Samoa Gov’t, 29 A.S.R.2d 56.

Private individuals are subject to payment of post judgment interest on judgments–at the rate of 6% per annum unless a contract calls for a lawful different rate. Tuufuli v. American Samoa Gov’t, 29 A.S.R.2d 56.

Interest accrues on judgments in tort as well as in contract. Tuufuli v. American Samoa Gov’t, 29 A.S.R.2d 56.

An offer of settlement is not a tender of payment that would stop prejudgment interest from accruing. Johnson v. Coulter, 30 A.S.R.2d 126.

In American Samoa, the decision whether to award prejudgment interest lies soundly within the court’s discretion. TCW Special Credits, Inc. v. F/V Kassandra Z, 3 A.S.R.3d 163 (Trial Div. 1999).

The purpose of post-judgment interest is to compensate a judgment creditor from being deprived of the monetary value of the judgment for the time between the entry of the judgment for damages and the judgment debtor’s full payment of the judgment amount. Interocean Ships, Inc. v. Samoa Gases, 3 A.S.R.3d 190 (Trial Div. 1999).

Payment of a judgment stops post-judgment interest from accruing. Interocean Ships, Inc. v. Samoa Gases, 3 A.S.R.3d 190 (Trial Div. 1999).

When a judgment creditor appeals an order vacating judgment in its favor, post-judgment interest does not accrue during the appellate process. Interocean Ships, Inc. v. Samoa Gases, 3 A.S.R.3d 190 (Trial Div. 1999).

A determination by the court regarding the award of prejudgment interest lies soundly within its discretion. TCW Special Credits, Inc. v. F/V Cassandra Z, 4 A.S.R.3d 154 (Trial Div. 2000).

§ 18(9) —Collateral Source Rule

Under the collateral source rule, which applies to torts in admiralty and virtually all other tort cases, an injured party’s compensation from a source independent of the tortfeasor is not deducted from damages otherwise collectable from the tortfeasor. Interocean Ships, Inc. v. Samoan Gases, 24 A.S.R.2d 108.

Under the collateral source rule, an injured party’s compensation from a source independent of the tortfeasor is not deducted from damages otherwise collectable from the tortfeasor. Gibbons v. American Samoa Gov’t, 5 A.S.R.3d 36 (Trial Div. 2001).

The collateral source rule applies in “virtually all tort cases”, id., including cases against the government. Gibbons v. American Samoa Gov’t, 5 A.S.R.3d 36 (Trial Div. 2001).

§ 18(10)—Effect of Preexisting Conditions

Plaintiff was not considered to have pre-existing depression condition where she was not depressed at the time of the injury, had recovered from previous episodes of depression, was not chronically depressed, and did not need therapy or medication during the period immediately preceding the incident at issue. Gibbons v. American Samoa Gov’t, 5 A.S.R.3d 36 (Trial Div. 2001).

A plaintiff may recover for all damages, including those caused by a subsequent aggravation of an injury, if the later aggravation is a likely result of the original injury. Gibbons v. American Samoa Gov’t, 5 A.S.R.3d 36 (Trial Div. 2001).

A tortfeasor takes a victim as he finds that victim, and is liable for the expenses incurred by that particular person, not for what may have been incurred by another. Gibbons v. American Samoa Gov’t, 5 A.S.R.3d 36 (Trial Div. 2001).

§ 18(11)—Compensatory Damages

Compensatory damages are designed to compensate for actual injury or loss, and punitive damages are awarded as punishment or deterrence for particularly egregious conduct. American Samoa Gov’t v. .145 Acres, 5 A.S.R.3d 61 (Trial Div. 2001).

In trespass actions, compensatory damages are to be measured by (1) diminution in value, i.e., difference between market value of land before and after the harm, or cost of restoration when appropriate, (2) loss of use of the land, and (3) discomfort and annoyance to the occupant of the land. American Samoa Gov’t v. .145 Acres, 5 A.S.R.3d 61 (Trial Div. 2001).

Where plaintiff in trespass action had testified that defendants had destroyed plants, fences and walls on his land, but had failed to present any evidence regarding the market value of such items, court would not award compensatory damages. American Samoa Gov’t v. .145 Acres, 5 A.S.R.3d 61 (Trial Div. 2001).

§ 18(12)—Nominal Damages

In trespass actions, where substantial actual damages are not susceptible to precise proof, the damage entitlement is limited to nominal damages. American Samoa Gov’t v. .145 Acres, 5 A.S.R.3d 61 (Trial Div. 2001).

§ 18(13)—Restoration Cost Damages

Although plaintiffs are normally required to prove the market value of items destroyed by a trespass, a “restoration cost exception” exists where the landscaping and vegetation destroyed have intrinsic value to the landowner and are located on a homesite or recreational lot. In such cases, intrinsic value is assumed, and evidentiary support is not required. American Samoa Gov’t v. .145 Acres, 5 A.S.R.3d 61 (Trial Div. 2001).

In trespass actions, restoration cost damages may exceed the diminution in market value of the real property on which the vegetation grew. American Samoa Gov’t v. .145 Acres, 5 A.S.R.3d 61 (Trial Div. 2001).

Where property and vegetation damaged as result of trespass was on rental property, court refused to award restoration cost damages. American Samoa Gov’t v. .145 Acres, 5 A.S.R.3d 61 (Trial Div. 2001).

§ 18(14)—Treble Damages

In trespass cases, damage awards must be trebled where the damage is to timber, young tree growth, products of tree growth, or cultivated grounds without lawful authority or permission. American Samoa Gov’t v. .145 Acres, 5 A.S.R.3d 61 (Trial Div. 2001).

§ 18(15)—Attorney Fees

SEE LEGAL PROFESSION §5(2) – LITIGATION EXPENSES

A request for costs is properly denied in a negligence suit sounding in tort because it is not a proceeding “in respect to any claim or compensation order.” A.S.C.A. § 32.0639. Etimani v. Samoa Packing Co., 19 A.S.R.2d 1.

Attorney’s fees are not ordinarily recoverable by a prevailing party, but may be awarded when an opposing party has acted in bad faith, wantonly, oppressively or when required by statute. American Samoa Gov’t v. .145 Acres, 5 A.S.R.3d 61 (Trial Div. 2001).

Where public agencies and their agents had acted oppressively and in wanton disregard of the valid property claims of an individual citizen, court determined an award of attorney’s fees to be proper. American Samoa Gov’t v. .145 Acres, 5 A.S.R.3d 61 (Trial Div. 2001).

§ 19 Statutes of Limitations

§ 19(1) —General Provisions

Commencement of an action ordinarily suspends the running of the statute of limitations not only in favor of parties to the action but also in favor of those claiming under them, including lessees. Roberts v. Sesepasara, 8 A.S.R.2d 43.

Specific provisions which toll a statute of limitations are provided by statute. A.S.C.A §§ 43.0124-43.0127. Patau v. Rosendahl Corp., 19 A.S.R.2d 80.

Tolling is frequently deemed consistent with the purposes of statutes of limitation, particularly when the plaintiff was unable to bring suit due to circumstances that were in the primary control of the defendant. Randall v. American Samoa Gov’t, 19 A.S.R.2d 111.

A party cannot deduct from the limitations period applicable to his case the time consumed by the pendency of an action in which he sought to have the matter adjudicated, but which was dismissed without prejudice as to him and if, before he commences a new action after having become nonsuited or having had his action abated or dismissed, the limitation runs, the right to a new action is barred. Pasesa v. Laumatia, 27 A.S.R.2d 88.

Under A.S.C.A. § 43.0210(7), the statute of limitations for torts based on injury to property is generally three years when not asserted against the government, and it begins to run when the damage occurs that gives rise to the cause of action, and a plaintiff must clearly allege a date of such damage which falls within the statute at the time the complaint is filed. Mulitauaopele v. American Samoa Gov’t and Tax Office, 4 A.S.R.3d 86 (Trial Div. 2000).

§ 19(2) —Accrual of Cause of Action

Where a statute or rule of common requires an administrative claim to be presented and prohibits suit until the claim has been rejected or a period for official action has expired, the cause of action does not accrue and the limitation period does not begin to run until the claim is rejected or the stated period expires. Mataipule v. Tifaimoana Partnership, Ltd. (Mem), 14 A.S.R.2d 100.

Limitations period generally begins to run when the right to file suit accrues. Mataipule v. Tifaimoana Partnership, Ltd. (Mem), 14 A.S.R.2d 100.

If the delay in perfecting a right to sue is out of the plaintiff’s control, the cause of action will unquestionably accrue when the right is perfected, but if the plaintiff controls the condition, he must perfect the right within a reasonable time, which is measured using the limitation period as an analogy in the absence of circumstances justifying a longer delay. Bradcock v. American Samoa Gov’t, 28 A.S.R.2d 182.

§ 19(3) —Personal Injuries

A two-year statute of limitations applies to actions founded on personal injuries. A.S.C.A. § 43.0120(2). Afatasi v. Ho Ching, 17 A.S.R.2d 173.

Actions founded on personal injuries, whether based on contract or tort, must be brought within two years. A.S.C.A. § 43.0120(2). Patau v. Rosendahl Corp., 19 A.S.R.2d 80.

The statutes of limitations for filing suit are two years for actions on personal injury, three years for actions on unwritten contracts, ten years for actions on written contracts, and twenty years for actions to recover real property. A.S.C.A. § 43.0120. Jennings v. Jennings, 19 A.S.R.2d 34.

Two-year statutory limitation period applies to causes of action for malpractice, because professional negligence that undermines the right to recover personal injury damages is an injury to a “relative right.” A.S.C.A. § 43.0210. Patau v. Hildre, 27 A.S.R.2d 7.

§ 19(4) —Minors and Insane Persons

Where statute provides that minor has one year after termination of minority to commence any action regardless of any otherwise applicable limitation period, an action brought within this one year period is not barred by two year statute of limitations on tort actions against the government. A.S.C.A. §§ 43.0126, 43.1204. Lutu v. American Samoa Government, 7 A.S.R.2d 61.

Tolling of the limitation period on account of insanity, incompetence, or mental incapacity does not require violent behavior or a prior adjudication of incompetency. Afatasi v. Ho Ching, 17 A.S.R.2d 173.

A clinical diagnosis of a pathological condition such as dementia or schizophrenia is neither necessary nor sufficient to establish insanity. Afatasi v. Ho Ching, 17 A.S.R.2d 173.

The test of insanity is whether the potential plaintiff suffered, during the statute of limitations period, from a mental disorder which resulted in his inability to manage his affairs. Afatasi v. Ho Ching, 17 A.S.R.2d 173.

The “inability to manage one’s affairs” test of legally-defined insanity is a functional one, for which the best evidence is empirical. Afatasi v. Ho Ching, 17 A.S.R.2d 173.

“Minors and insane persons” have one year from the termination of such disability within which to commence an action, regardless of any otherwise-applicable statute of limitations. A.S.C.A. § 43.0126. Afatasi v. Ho Ching, 17 A.S.R.2d 173.

The term “insane” in statutes providing for the tolling of a limitation period is generally construed as synonymous with terms such as “mentally incompetent.” Afatasi v. Ho Ching, 17 A.S.R.2d 173.

The one-year statute of limitations in A.S.C.A. § 43.0126 begins to accrue on the date on which a Guardian Ad Litem is appointed. A.S.C.A. § 43.0126. Pasesa v. Laumatia, 27 A.S.R.2d 88.

§ 20 Burden of Proof

In a civil suit the party with a preponderance of the evidence in his favor ordinarily prevails, and when the evidence does not preponderate in favor of either party the defendant ordinarily prevails. Tuia Suasuai v. Salave’a (Mem.), 3 A.S.R.2d 1.

“Preponderance” standard means that if the parties’ contradictory versions of the facts have equal evidentiary support and the plaintiff cannot establish superior credibility, the defendant must prevail. Lafaele v. Continental Insurance Co., 4 A.S.R.2d 131.

Although the law does not automatically hold the driver at fault in every automobile/pedestrian collision, this does not imply that judicial inquiry into every such collision must begin and end with surviving driver’s testimony that deceased pedestrian was at fault, especially where this testimony is at variance with the physical evidence. Saufo`i v. American Samoa Government, 14 A.S.R.2d 15.

Testimony of a third-party that plaintiff was in the wrong lane was suspect where both the driver of the struck vehicle and plaintiff testified that defendant was in the wrong lane, the third-party would have had to tailgate defendant to clearly see the accident (yet he avoided the collision), bystanders testified that the third-party arrived after the accident, and defendant knew the third-party and yet did not have him testify in earlier traffic court and civil actions concerning the same incident. Puailoa v. Barber, 17 A.S.R.2d 21.

A party who asserts a monetary claim has the burden of proving each element of the damages sustained with reasonable certainty and by a preponderance of the evidence. Cox v. Williams, 31 A.S.R.2d 110.

§ 21 Act of God

Twenty-eight mile per hour winds in American Samoa, which experienced winds of similar magnitude on 30 different days during the year in which the accident occurred, were not an “act of God” sufficient to excuse a person who would otherwise be liable for damages caused by his porch falling on plaintiff’s car. Fonoti v. Nam, 3 A.S.R.2d 58.

An act of God need not be unprecedented in a particular locality, if the event is extraordinary and unexpected. Bryant v. Southwest Marine of Samoa, Inc., 25 A.S.R.2d 18.

No novel obligation exists to protect another’s boats in the face of an act of God. Bryant v. Southwest Marine of Samoa, Inc., 25 A.S.R.2d 18.

TORTS

TORTS

14.Comparative & Contributory Negligence

15 .Joint and Several Liability

SEE REAL PROPERTY § 14 – PROPERTY TORTS

SEE WILLS, TRUSTS & ESTATES § 14 – WRONGFUL DEATH

Get In Touch!

About Us