The Trial Division of the High Court has ordered the American Samoa Government to pay $10,754.75 to Fa’asamoa Fanene for his personal injury claim, his pain and suffering, his vehicle, and negligent infliction of emotional distress.

According to the opinion and order issued last week, this matter came before the court on Sept. 7, 2010 where petitioners Ben Fa’asamoa Fanene and Matavia Fanene filed their action against the government for negligence and negligent infliction of emotional distress (NIED).

The order says petitioners alleged that Fa’asamoa was injured, and his 1993 Toyota pick up truck was damaged, while he and a companion were attempting to remove Fa’asamoa’s stalled vehicle out of the public highway, when an ASG school bus driven by an ASG employee collided with his vehicle.

The couple’s son was in the school bus at the time of the incident.

The employee did not stop to render assistance but went on to finish his duties before returning to the scene.

DISCUSSION

Petitioners asked for damages resulting from two counts of negligence and two counts of NIED and under the provisions of ASCA 43.1203 ASG is liable for the consequences of the negligent operations of ASG’s school bus by an ASG employee in the course and scope of his employment. “ASG’s employee, the driver of the school bus, had a duty not only to the Petitioners but to everyone on the road, just like any other driver.”

“It is foreseeable that failing to drive carefully in the rainy, wet conditions existing in this case may result in injury. ASG breached that duty when its bus driver carelessly hit Petitioners’s vehicle while Fa’asamoa was attempting to avoid being further injured or possibly killed, and then again, by leaving the scene of the crime. “Causation, both proximate and actual, of the resulting personal and property injury damage is self-explanatory for both negligence claims,” says the order.

The order further stated that the court has gone further to limit the bystander theory to family members, those in close proximity and first hand witnesses. In this case, Ben was in the bus that nearly killed his father Fa’asamoa. “In fact, Ben was left to believe that his father had died since the ASG’s driver drove the bus away from the scene. The detrimental effect this event had on Ben is well detailed in his medical report from separation anxiety and clinginess to not speaking.”

As for Ben’s mother, Matavia, the order says that there is no proof in evidence that she suffered damages, either on her person or property from the negligent operation of ASG’s school bus.

“Also while she was undoubtedly distressed as Ben’s mother and Fa’asamoa’s spouse by the bus accident, there is again no proof in evidence to quantify her NIED damages other than a nominal amount.”

ORDER

The court denied the government’s motion to dismiss the suit and ordered that ASG be held liable to petitioners.  ASG shall pay $10,754.74.  For his personal injury claim $4,000 is for his pain and suffering; for his vehicle injury claim $2,754.75 based on estimated cost of repair; for negligent infliction of emotional distress claims, $4,000 is for pain and suffering.

ASG was further ordered to pay $4,000 to the Clerk of Courts to be held in trust in the court’s registry, subject to withdrawal only by court order on behalf of petitioner Ben Fanene for  the negligent infliction of emotional distress claim.

“ASG shall pay petitioners their costs of suit to be stated in an affidavit submitted to and approved by the court, plus post-judgment interest at the rate of 6% per annum on the unpaid balance of each of the total principal amounts.”