FSM 5 Intrm. 417-425

Until proven contrary to Kosraean custom the Kosrae State Court will entertain actions for negligence as tort liability for negligence is consistent with Micronesian culture. Nena v. Kosrae, 5 FSM Intrm. 417, 420 (Kos. S. Ct. Tr. 1990).

Only when there is a duty of care, breach of this duty, damage caused by the breach and determination of the value of the damage can there be liability for negligence. Nena v. Kosrae, 5 FSM Intrm. 417, 420 (Kos. S. Ct. Tr. 1990).

Everyone has a duty of care to act in such a way that other people are not harmed. Duties of care differ according to the circumstances and the exact parameters of each person's responsibilities towards others will be defined through time by judicial decisions and statutes. Nena v. Kosrae, 5 FSM Intrm. 417, 421 (Kos. S. Ct. Tr. 1990).

The state when building a road has the duty of care to take precautions to avoid foreseeable harm, and it has the duty of care not to take undue advantage of a landowner's generosity and lack of understanding of his rights. Nena v. Kosrae, 5 FSM Intrm. 417, 421 (Kos. S. Ct. Tr. 1990).

Generally, a breach of duty is proven by the testimony of witnesses who describe what a reasonable person, acting in compliance with the duty of care, would have done or not done in the same situation. In rare circumstances when the facts are indisputable and when they raise such a strong inference that all reasonable people agree on the duty of care, the court can decide, as a matter of law, the person has breached his duty of care. Nena v. Kosrae, 5 FSM Intrm. 417, 421 (Kos. S. Ct. Tr. 1990).

When the state fails to tell a landowner that he has the option to refuse to grant the state an easement for a road it has breached its duty of care to the landowner. Nena v.Kosrae, 5 FSM Intrm. 417, 421-22 (Kos. S. Ct. Tr. 1990).

Constitutional analysis always starts with the words of the Constitution. Where the wording is inconclusive and where the wording is unique to the FSM Constitution, then the court should look to the journals of the Constitutional Convention and the historical background at the time the clause was adopted for guidance. But when there is a conflict with the language of the Constitution, then the actual wording of the Constitution prevails. Nena v. Kosrae, 5 FSM Intrm. 417, 422 (Kos. S. Ct. Tr. 1990).

Easements are not indefinite land use agreements prohibited by the Constitution because "indefinite land use agreement" is a term of art referring to Trust Territory leases for an indefinite term. Nena v. Kosrae, 5 FSM Intrm. 417, 423 (Kos. S. Ct. Tr. 1990).

When a landowner voluntarily signs a statement of intent for an easement for a road even though the state failed in its duty of care to inform him that he could refuse to sign, the state has not violated the landowner's due process rights. Nena v. Kosrae, 5 FSM Intrm. 417, 424 (Kos. S. Ct. Tr. 1990).

When a landowner voluntarily enters into a statement of intent to grant the state an easement the state has not violated the landowner's constitutional rights by "taking" his property without just compensation, and is not liable for trespass. Nena v. Kosrae, 5 FSM Intrm. 417, 425 (Kos. S. Ct. Tr. 1990).

On November 1, 1988, a trial was held in this case. Delson Ehmes of Micronesian Legal Services Corporation represented the plaintiff, Ezra Nena (Nena). Richard Kaminski, Assistant Attorney General, represented the State of Kosrae (State).

Nena claims that the State negligently built the road, causing the accumulation of water on his property, thus damaging his crops. In broad terms, negligence is the failure to act like a reasonable person under similar circumstances. In Kosrae, this Court has never formally discussed whether liability exists for negligence; however, this form of tort is consistent with the culture on other Micronesian islands. See Semens v. Continental Airlines, 2 FSM Intrm. 131, 140 (Pon. 1985); Koike v. Ponape Rock Products, Inc., 3 FSM Intrm. 57 (Pon. S. Ct. Tr. 1986).1 Furthermore, it appears that the drafters of the Kosrae Code assumed that tort liability for negligence exists in Kosrae. Chapter 25 of Title 6 provides statutory time periods for the commencement of civil actions for medical malpractice, KC 6.2504(3); banking negligence, KC 6.2504(5); and wrongful death. Chapter 26 includes negligence as one of the actions which may be brought against the government. Therefore, until proven otherwise contrary to Kosraean custom, this Court will entertain this and similar actions for negligence.

For better understanding, I have divided the analysis of this issue into four parts: duty of care, breach of this duty, damage caused by the breach and the determination of the value of the damage. Only when all four elements are satisfied can the State be liable for negligence.

Duty of Care. In our society, everyone has a duty of care to act in such a way that other people are not harmed. Duties of care differ according to the circumstances (for instance, when helping a sick person, a doctor will have a greater duty of care than a lawyer) and the exact parameters of each person's responsibilities towards others will be defined through time by judicial decisions and statutes.

In this case, I find that when the State built the circumferential road, it had two different duties of care. One, it had to take precautions in building the road to avoid foreseeable harm; i.e., so that adjacent property was not unnecessarily altered or harmed. Two, it must not have taken undue advantage of the landowner's generosity and lack of understanding of his rights, meaning that the State must have informed the landowner of all options reasonably available to him including refusing to sign the Statement of Intent and thereby denying the State its easement.

Generally, a breach of duty is proven by the testimony of witnesses who describe what a reasonable person, acting in compliance with the duty of care, would have done or not done in the same situation. In rare circumstances when the facts are indisputable and when they raise such a strong inference that all reasonable people would agree that the person has either not done what he should have done, or has done what he should not have done then the Court can decide that, as a matter of law, the person has breached his duty of care.

In this case, the first question is whether the State took the necessary precautions when it built the part of the circumferential road that borders on Wan Taf. At trial, there was testimony from Nena and his witnesses that the problems with Wan Taf began about the time the road was built. Thus, Nena asked the Court to draw the inference that the State did not take the necessary precautions. On its own behalf, the State introduced extensive testimony from its engineers about the analysis and precautions that went into designing and constructing the road. Nena did not rebut the State's engineers with his own engineer.

After considering all the evidence, I am persuaded that the State took the necessary precautions when it designed and constructed the road. The analysis for the design of the road appeared to be thorough (despite the fact that the engineers admitted that they did not consider the existence of the spring) and, without the testimony of an independent engineer, I cannot find fault with the way in which the road was constructed. For this reason, I find that the State did not breach its duty of care to take the necessary precautions.

The second question is whether the State violated its duty of care to inform Nena of all options reasonably available to him before obtaining the easement. At the trial, it was undisputed that the State did not tell Nena that he could refuse to grant the easement. Therefore, I find that State

In this case, the issue is whether the State's failure to inform Nena of his options somehow caused the road to be built resulting in the accumulation of water on Wan Taf. At best, the State's failure to inform Nena of his options caused the road to be built. However, since the road has not been shown to be the cause of the flooding, then the State's failure to inform Nena is also not the cause of the flooding. Indeed, there was evidence that plaintiff's flooding problems were due to the lack of maintenance on the property. For this reason, I find that the State's breach of its duty is not the legal or factual cause of the damage to Wan Taf; therefore, the State is not negligent.

Conclusion. I find that the State is not liable for negligence because the State fulfilled its duty of care to take the necessary precautions to avoid changing or altering property at Wan Taf so as to cause damage to Nena's property and because the State's failure to inform Nena of all his option is unrelated to the problems he is having with his property.

Nena argues the Statement of Intent which represents the easement for the road at Wan Taf expired under article XIII, section 5 of the FSM Constitution and that the road was built without Nena's permission. Nena understands that this Court already decided that article XIII, section 5 did not invalidate a similar Statement of Intent in Melander v. Kosrae, 3 FSM Intrm. 324 (Kos. S. Ct. Tr. 1988) but he asks this Court to reconsider that decision because, he says, the language of this section is understandable on its face and it is inappropriate to consider the legislative history.

In the FSM, Constitutional analysis always starts with the words of the Constitution. Semens v. Continental Airlines , 2 FSM Intrm. at 139. Where the wording is inconclusive and where the clause, phrase or paragraph is unique to the FSM Constitution (not adopted from the United States Constitution) then the Court should look to the journals of the FSM Constitutional Convention and the historical background at the time the clause was adopted for guidance. Tammow v. FSM, 2 FSM Intrm. 53 (App. 1985). Where a committee report or the understanding of a minority number of delegates conflicts with the language of the Constitution, then the actual wording of the Constitution prevails. Bank of Guam v. Semes, 3 FSM Intrm. 370, 374 (Pon. 1988).

An agreement for the use of land for an indefinite term is prohibited. An existing agreement becomes void 5 years after the effective date of this Constitution. Within that time, a new agreement shall be concluded between the parties. When the national government is a party, it shall initiate negotiations.

FSM Const. art. XIII, § 5. As this section relates to the Statement of Intent which Nena signed, I find that the meaning of the Constitution is unclear. Specifically, the easement represented in the Statement of Intent stays in effect until the survey is conducted: by its terms, the Statement of Intent could be terminated. This raises the question whether article XIII, section 5 applies to agreements which can end. Another question is whether the easements are land use agreements within the meaning of the section. Since the Constitution is not certain on its face, it is appropriate to consider the legislative history.

With this in mind and after reviewing the Constitution's journals, I affirm the decision in Melander that "The legislative history shows, therefore, that article XIII, section 5 was intended to rectify injustices created by the indefinite land leases entered into by the TTPI and to prohibit the creation of any new indefinite leases."Melander v. Kosrae, 3 FSM Intrm. 324, 330 (Kos. S. Ct. Tr. 1988). After writing the Melander decision, our library received a copy of volume II of the FSM Attorney General Opinions. In an opinion regarding article XIII, section 5 and road easements, the Attorney General states: "[s]ince the time of the Constitutional Convention the term `indefinite land use agreement' has become as term of art referring to the Trust Territory Government leases for an indefinite term." II Att'y Gen. Op. 1985-1, at 6. This raises the inference that at the time the Constitution was ratified, there was a general understanding that this section applied only to TT indefinite leases.

With the strong legislative support identified in the Melander decision and with the historical background that the TT indefinite leases were popularly referred to as land use agreements, I find that article XIII, section 5 does not apply to road easements. I therefore find that article XIII, section 5 does not invalidate the Statement of Intent (containing the road easement) which Ezra signed.

Land plays a fundamental and unique role in the lives of Micronesians. The special importance of land here is in part traceable to its scarcity. The Federated States of Micronesia consists of numerous relatively small islands scattered across a vast expanse of ocean. Land is also uniquely significant in Micronesia, however, because it is so thoroughly intertwined with social structures in Micronesia....

Heirs of Mongkeya v. Heirs of Mackwelung, 3 FSM Intrm. 92, 98 (Kos. S. Ct. Tr. 1987) (quoting Etpison v. Perman, 1 FSM Intrm. 405, 420 (Pon. 1984)). In recognition of the special importance of land, the FSM Supreme Court has declared that the state has a substantial interest in assuring that land disputes are decided fairly. Etpison v. Perman, 1 FSM Intrm. 405, 421 (Pon. 1984).

It should be pointed out, however, that the due process clause protects the individual and his land at all times, not just at dispute hearings. When an individual and the state enter into a land transaction, which protects the individual and ensures that the state, with all its resources, does not coerce him by trick, fraud, or other means into making the transaction. Another way of explaining this protection is by saying that the due process clause protects the individual from conveying his property or any part of his property involuntarily. 3 When considering whether a transaction was entered into voluntarily the Court will consider the totality of the circumstances.

In this case, Nena was not told that he could refuse to grant the easement for the circumferential road. This raises the possibility that Nena did not realize that he had an option and that he did not voluntarily sign the Statement of Intent. However, when he appeared before this Court, Nena never said nor by his demeanor did he indicate that he disagreed with the existence of the road or the necessity of using a portion of his property in order to attain that goal. Instead he was concerned with the damage that the thought the road caused to the rest of his property. With only these facts before me, I find that Nena signed the Statement of Intent voluntarily and that his related due process rights were not violated.

in violation of the Kosrae Constitution, the Kosrae Charter and the FSM Constitution. Since the Court has determined that the plaintiff voluntarily entered into the Statement of Intent which gave the State the easement across plaintiff's property and since the Statement of Intent recites consideration for granting such rights, i.e. "in consideration of similar grants by other property owners." The plaintiff has failed to demonstrate that his property was taken "without due process of law and without just compensation" as alleged in his third claim for relief.

In conclusion, I find that the State was not negligent in constructing the circumferential road, that the State did not trespass on Wan Taf, that the State did not "take" Nena's property, and that Nena's due process rights were not violated. I therefore find that the State is not liable in this action.

1. Both counsel assume that tort liability for negligence exists. Pursuant to KC 6.303 the Court cannot use tradition in reaching a decision unless evidence of it is introduced. For the purposes of this lawsuit, I also assume that the theory of negligence is consistent with Kosraean tradition and culture.

2. Plaintiff's third claim for relief states: "Defendant's acts constituted an unlawful taking of plaintiff's property without due process of law and without just compensation." Complaint, para. 12. In order to simplify this decision, the due process and taking issues will be treated separately.