FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2010-030

JOHN PALASKO,			)						
)
Plaintiff,		)
)
vs.				)
)
POHNPEI GOVERNMENT,		)
)
Defendant.		)
___________________________________	)

	ORDER GRANTING MOTION FOR DISMISSAL

	Beauleen Carl-Worswick
	Associate Justice

	Trial:  November 22, 2017
	Decided:  May 28, 2018

APPEARANCES:

For the Plaintiff:	Salomon M. Saimon, Esq.
Micronesian Legal Services Corporation
P.O. Box 129
Kolonia, Pohnpei FM 96941

For the Defendant:	Monaliza Abello-Pangelinan, Esq.
Assistant Attorney General
Pohnpei Department of Justice
P.O. Box 1555
Kolonia, Pohnpei FM 96941

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	HEADNOTES

Torts  Battery
Battery is a harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff to suffer such a contact.  Palasko v. Pohnpei, 21 FSM R. 562, 564 (Pon. 2018).

Torts  Use of Excessive Force
In effecting an arrest, a police officer may employ no more force than he reasonably believes to be necessary.  The tort of use of excessive force results from the arrest by a person having the authority to do so but accomplished by the use of unreasonable force.  Palasko v. Pohnpei, 21 FSM R. 562, 564-65 (Pon. 2018).

Evidence  Burden of Proof

In a civil case, the plaintiff has the burden of proving each element of his cause of action by a preponderance of the evidence, and if he fails to do so, judgment will be entered against him.  Palasko v. Pohnpei, 21 FSM R. 562, 565 (Pon. 2018).

Torts  Infliction of Emotional Distress
A person must exercise due care not to cause others emotional distress that leads in turn to a foreseeable physical result.  Palasko v. Pohnpei, 21 FSM R. 562, 565 (Pon. 2018).

Torts  Infliction of Emotional Distress
When there is no evidence in the record of physical injury to the plaintiff or of any physical manifestation of emotional distress by the plaintiff, no award of damages for can be made for emotional distress.  Palasko v. Pohnpei, 21 FSM R. 562, 565 (Pon. 2018).

Torts  Infliction of Emotional Distress
When the plaintiff’s physical injury to support his intentional infliction of emotional distress claim was contingent on his battery claim, and when the court concluded that the battery cause of action was unsubstantiated, the intentional infliction of emotional distress claim must also be dismissed.  Palasko v. Pohnpei, 21 FSM R. 562, 565 (Pon. 2018).

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	COURT’S OPINION

BEAULEEN CARL-WORSWICK, Associate Justice:

	I.  Background

The Summons and Complaint in this matter were filed by the plaintiff, John Palasko (herein "Palasko"), on November 18, 2010, against defendants Pohnpei Government and Kitti Government.  The Complaint states the following causes of action: 1) false imprisonment, 2) trespass, 3) battery, 4) failure to read constitutional rights to the accused, 5) destruction of standing in the community, 6) wrongful invasion of privacy – false light, 7) infliction of emotional distress, 8) violation of statute – 28 PC 6-101, and 9) civil rights violations.

The defendant Pohnpei Government, entered a Motion to Dismiss on December 8, 2010, and an opposition was filed by Palasko on December 20, 2010.  On January 7, 2011, Kitti Government filed a Joinder in Motion to Dismiss, in the Alternative Motion for More Definite Statement.

Palasko filed a response to Kitti Government’s motion on January 20, 2011.  On February 22, 2011, Kitti Government entered a Supplement to Motion to Dismiss in the Alternative Motion for Summary Judgment.

An Order entered on July 17, 2015 granted Partial Summary Judgment in favor of the defendants.  The Order granted judgment for the defendants against all of the plaintiff’s claims, except for the causes of action for battery, violation of civil rights, and infliction of emotional distress.  [Palasko v. Pohnpei, 20 FSM R. 90, 98 (Pon. 2015).]

Defendant Kitti Government, on October 21, 2015 filed a Motion for Summary Judgment.  On January 8, 2016, the parties entered a Stipulated Dismissal with Prejudice, dismissing the defendant Kitti Government from this matter.

Trial with the remaining defendant, Pohnpei Government, on the emotional distress, battery, and civil rights claims, was held on November 22, 2017.  During Trial, the court received the testimony of the following witnesses:  John Palasko, Sarapina Palasko, Vincent Wichep, Emerald Eperiam, Molten Henley, Solomon Eperiam, Senoleen Elpet, and Wincy Elpet.  The court makes the following determination of facts and dismisses the claims by the plaintiff.

	II.  Facts

The plaintiff, John Palasko, resides in the village of Mwakot, Kitti, in the State of Pohnpei.  Palasko’s home and property are located next to Wincy Elpet, who is Palasko’s neighbor.  In 2009, Palasko claims that pigs owned by Wincy Elpet came onto his property and destroyed his crops, namely, yams and taro.

Palasko testified that a total of ten (10) pigs entered his property, and he was able to capture six (6) of the pigs, which he placed in his pig pen.1  Palasko argues that he held the pigs pursuant to 28 Pon. C. § 6-102, which allows individuals to hold livestock that are found to be damaging property.2  Palasko did not intend to keep the pigs, rather, he was awaiting compensation from Wincy Elpet for his crops that were destroyed.  Palasko v. Pohnpei, 20 FSM R. 90, 94 (Pon. 2015).

On November 30, 2009, John Palasko was arrested in Kolonia by Pohnpei State and Kitti municipal police officers Molten Henley and Solomon Eperiam.  The pigs were retrieved from Palasko’s pig pen, and this lawsuit was filed on November 18, 2010.  As stated above, the remaining claims are for battery, violation of civil rights, and infliction of emotional distress.

	III.  Discussion

Battery and Violation of Civil Rights

John Palasko claims that the defendant had committed the intentional tort of battery against him without privilege or consent.  Pl.’s Compl. at 4.  Specifically, Palasko claims injuries from the arrest on November 30, 2009 by Pohnpei State police officer Molten Henley and Kitti municipal police officer Solomon Eperiam.  Palasko, 20 FSM R. at 97.

Battery is defined as a "harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff . . . to suffer such a contact."  Plais v. Panuelo, 5 FSM R. 179, 189 (Pon. 1991); Paul v. Celestine, 4 FSM R. 205, 207 (App. 1990) (citing W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts 39 (5th ed. 1984)).

In effecting an arrest, a police officer may employ no more force than he reasonably believes to be necessary.  Nena v. Kosrae, 14 FSM R. 73, 82 (App. 2006).  The tort of use of excessive force results from the arrest by a person having the authority to do so but accomplished by the use of unreasonable force.  Conrad v. Kolonia Town, 8 FSM R. 183, 191 (Pon. 1997) (citing Restatement (Second) of Torts §§ 121 and 132 (1964)).

Here, at Trial, Palasko testified that when he was handcuffed on November 30, 2009, he suffered a small cut on his hand which required local medicine, but did not require medical attention, and did not necessitate going to the hospital.  No further evidence was submitted to substantiate the plaintiff’s claim, including the extent and details of the injury, or the duration or type of local medicine required.

Molten Henley testified that he is currently an officer for the FSM National Police, but previously served as an officer for Pohnpei State for eleven (11) years.  The testimony further showed that Molten Henley has never had a disciplinary matter filed against him during his tenure as an officer.3

Based on the experience of the officers, the demeanor of the witnesses while testifying, and the lack of evidence to substantiate the plaintiff’s battery claim, the court finds that the plaintiff did not suffer harmful or offensive contact by Molten Henley or Solomon Eperiam.  Further, the evidence shows that the officers did not apply any excessive force other than the amount of force reasonably necessary to arrest Palasko.

The July 7, 2016 Order Granting Partial Summary Judgment draws the correlation between the battery and civil rights claim.  Palasko, 20 FSM R. at 97.  Because the evidence shows that there was no use of excessive force by the officers, the court can also conclude that the plaintiff’s civil rights were not violated.

In a civil case, the plaintiff has the burden of proving each element of his cause of action by a preponderance of the evidence, and if he fails to do so, judgment will be entered against him.  Tulensru v. Wakuk, 10 FSM R. 128, 132 (App. 2001); Ehsa v. Kinkatsukyo, 16 FSM R. 450, 456 (Pon. 2009).  See also Meitou v. Uwera, 5 FSM R. 139, 141-42 (Chk. S. Ct. Tr. 1991).

Emotional Distress Claim

A defendant must exercise due care not to cause others emotional distress that leads in turn to a foreseeable physical result.  Hauk v. Lokopwe, 14 FSM R. 61, 66 (Chk. 2006).  See also Eram v. Masaichy, 7 FSM R. 223, 226-27 (Chk. S. Ct. Tr. 1995).

When there is no evidence in the record of physical injury to the plaintiff or of any physical manifestation of emotional distress by the plaintiff, no award of damages for can be made for emotional distress.  Hauk, 14 FSM R. at 66 (citing Narruhn v. Aisek, 13 FSM R. 97, 99 (Chk. S. Ct. App. 2004); Tomy v. Walter, 12 FSM R. 266, 272 (Chk. S. Ct. Tr. 2003); Hauk v. Board of Dirs., 11 FSM R. 236, 241 (Chk. S. Ct. Tr. 2002); Eram v. Masaichy, 7 FSM R. at 227; also Pau v. Kansou, 8 FSM R. 524, 526 (Chk. 1998)).

In the present matter, Palasko’s physical injury to support his intentional infliction of emotional distress claim is contingent on the battery claim.  Palasko, 20 FSM R. at 98.  Therefore, because the court concludes that the cause of action for battery is unsubstantiated, the assertion of intentional infliction of emotional distress is hereby dismissed.

	IV.  Conclusion

Therefore, the defendant’s Motion for Dismissal is hereby granted.  The matter is hereby dismissed.

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