Unpublished Disposition, 904 F.2d 40 (9th Cir. 1990)

Annotate this Case
US Court of Appeals for the Ninth Circuit - 904 F.2d 40 (9th Cir. 1990)

No. 88-2783.

United States Court of Appeals, Ninth Circuit.

Before SCHROEDER and CANBY, Circuit Judges, and WILLIAM J. REA, District Judge* .

MEMORANDUM** 

Stanley and Claudette Joseph sued the United States pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671 et seq., after Joseph was injured when his truck was hit by a vehicle driven by a government employee. The government concedes liability but appeals the awards of $215,000 in general damages to Mr. Joseph and $80,000 in general damages to Mrs. Joseph. We affirm.

We review damage awards in FTCA cases for clear error. Trevino v. United States, 804 F.2d 1512, 1514 (9th Cir. 1986), cert. denied, 484 U.S. 816 (1987). An award is clearly erroneous if, upon review of the record, we are "left with the definite and firm conviction that a mistake has been committed." Id. at 1515 (quoting United States v. United States Gypsum, Co., 333 U.S. 364, 395 (1948)). We look to Hawaii state law to determine whether the award in this case is excessive. Id. Under Hawaii law, a trial court's award is excessive if reasonable persons could not reach the same conclusion. Kang v. Harrington, 59 Haw. 652, 663, 587 P.2d 285, 292 (1978). To make that determination, we compare the challenged award to awards in similar cases in Hawaii. Trevino, 804 F.2d at 1515. Our task is complicated by the paucity of comparable reported cases from Hawaii.1  Nevertheless, there are some reported cases from Hawaii that give us general guidance regarding the reasonable limits for general damages awards.

We turn first to Mr. Joseph's award. The district court of Hawaii recently considered the proper measure of general damages arising from an injury in Ward v. American Hawaii Cruises, Inc., 719 F. Supp. 915 (D.Hawaii 1988). Plaintiff John Ward, a 61 year-old able-bodied seaman employed with the defendant, was injured when a spring line on the ship on which he was working parted and struck him on the knee. The knee required surgery, followed by several months of rehabilitation. Despite the surgery, Ward's knee was left permanently unstable. Nevertheless, he was able to return to his work a year later. The district court found that Ward had sustained $175,000 in general damages, although there is no indication that the emotional component of Ward's suffering was at all comparable to that of Joseph.

In McKeague v. Talbert, 3 Haw.App. 646, 658 P.2d 898 (1983), the Hawaii Intermediate Court of Appeals affirmed a jury verdict of $92,000 general damages for plaintiff McKeague, a service station attendant who sustained injuries when his knee was pinned between two vehicles. As a result of the accident, McKeague suffered a weakened knee and a "drop foot"2  problem that required less than three years to heal completely. By comparison, Joseph's physical injuries were more extensive than McKeague's and the district court found that his recovery would take five years. Moreover, there is no indication that McKeague suffered the severe emotional distress and loss of enjoyment of life that Joseph did. In addition, moderate inflation has decreased the value of the dollar to some extent since McKeague was decided in 1983.

In Kaneko v. Hilo Coast Processing, 65 Haw. 447, 654 P.2d 343 (1982), the Hawaii Supreme Court considered an appeal from an order denying a Motion for a New Trial or in the alternative for a Remittitur. The plaintiff in Kaneko was an ironworker who injured his back in a fall when the beam on which he was standing came loose. As a result, the plaintiff had to undergo two laminectomies, was unable to perform as an ironworker and could do no heavy lifting. The court affirmed an award of $123,000 for pain and suffering (prior to a reduction proportionate to Kaneko's comparative fault). Again, there was no indication in Kaneko that the plaintiff suffered the emotional trauma or loss of enjoyment of life Joseph did. Given some degree of inflation since 1982, Joseph's recovery is not inconsistent with the award in Kaneko.

We recognize that there are distinctions between the cited cases and the case before us. Nevertheless, taking these differences into account, we believe that a reasonable person could establish Joseph's damages at the level set by the district court. We conclude that the $215,000 award of general damages to Joseph, although generous, is not clearly erroneous.

Mrs. Joseph's recovery also is consistent with previous damage awards in Hawaii. In Masaki v. General Motors Corp., 1989 Haw. LEXIS 58, 780 P.2d 566 (1989), for example, the plaintiff was rendered a quadriplegic when a van that he was repairing lurched backward unexpectedly and broke his neck. The plaintiff's parents were awarded $560,000 each for loss of consortium and $460,000 each for emotional distress (prior to a reduction proportionate with the plaintiff's comparative negligence). Certainly the injury to the plaintiff in Masaki was more permanent and severe than that suffered by Joseph. Nevertheless, during Joseph's convalescence, the degree of Mrs. Joseph's distress was comparable to that of the Masakis'. Her recovery, appropriately, is substantially less than the Masakis', reflecting the shorter duration of her distress. Moreover, compensation for a spouse's loss of consortium generally is greater than for such a loss between a parent and child.

In Ward, the district court also addressed a claim by Mrs. Ward for loss of consortium. The bases of this claim were that as a result of Mr. Ward's injury, Mrs. Ward was separated from her husband for four months, she had less assistance with domestic chores, and the couple's recreation activities were limited. The court found that she had suffered damages in the amount of $20,000. Clearly, the duration and intensity of Mrs. Ward's injuries were significantly less than those of Mrs. Joseph. Mrs. Joseph saw her family hurt physically and emotionally, her marriage nearly ended, and her distress drove her to the brink of suicide.

Mrs. Joseph's award of general damages in the amount of $80,000 is not excessive in light of the recoveries awarded the Masakis and Mrs. Ward.

AFFIRMED.

 *

The Honorable William J. Rea, United States District Judge for the Central District of California, sitting by designation

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3

 1

The government's brief includes summaries of unpublished personal injury cases from Hawaii compiled by a private organization. The summaries, however, do not review the evidence presented on damages issues such as pain and suffering, loss of consortium, loss of enjoyment of life, or emotional distress. Thus, they are not sufficiently detailed for us to draw valid comparisons with this case

 2

A condition in which the muscle that raises the toes toward the knee is weakened, causing the foot to remain in the "dropped" position

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.