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Tuitele’s claim of negligence remains before court, illegal destruction claim dismissed

reporters@samoanews.com

The trial court has granted the American Samoa government’s summary judgment motion partially, against Punamai Tuitele who filed a complaint last year alleging that during an execution of a search warrant at his residence the police officers damaged and destroyed real and personal property.

The court denied the government’s motion to dismiss the negligence claim by the plaintiff, but dismissed Tuitele’s claim of illegal destruction of his property by police.

Tuitele’s claim was filed in October 2011 through his lawyer Mark Ude. The plaintiff is also asking the government for “lost rent” given that after the police executed the search warrant on his house he was unable to rent it out, given the condition of the house.

Tuitele alleges that there was an illegal ‘taking’ by the government when DPS Officers purportedly destroyed or damaged his property in Leone and the government should be held liable for negligence.

In response to the claim Assistant Attorney General Bensy Benjamin filed a summary judgment noting that “takings” claim alleged by Tuitele should be dismissed. According to the motion, the government noted the plaintiff does not include any facts sufficient to support this cause of action and the government believes the plaintiff can prove no set of facts.  “The plaintiff cannot remember the damages to the property, how the said damages were repaired, or the amount of money spent to repair or replace these purported damages.”

As to Count II, “lost rent” should be dismissed also because the property was not being rented out at the time of the execution of the search warrant.

DISCUSSION

The trial court said in count two of his complaint, Tuitele claims that the alleged destruction of his property by the police officers constituted a prohibited taking under the fifth amendment of the United States Constitution.

The government first argues the plaintiff’s taking claims must be dismissed because he failed to allege any facts showing that his private property was taken by the government for public use.

The trial court quoted case laws which states that the taking clause of the fifth amendment of the United States Constitution provides that private property shall not be taken for public use without just compensation, also the taking clause does not apply when property is damaged as a result of the government’s exercise of it’s authority pursuant to some power other than eminent domain.

The court ruled that in this matter, the plaintiff alleges that his property was destroyed but he did not allege that his property was taken by the government let alone taken for a public use, a requirement for a taking clause violation claim. “Moreover, the actions here were clearly taken pursuant to the ASG’s police power, and accordingly Count II of the claims must be dismissed”, states the order.

The government asserts that the negligence claims should also be dismissed given that the plaintiff cannot prove damages. The trial court quoted case law Lang VS ASG 1997, “in order to establish a negligence cause of action a party must prove duty, breach duty, causation and damages”.

According to the order in the instant case, while the plaintiff may not remember the extent of the alleged damage to his house, he has produced the affidavit of Luana Neufeldt an occupant of the house at the time of the search.

“Neufeldt’s affidavit contains information concerning damage to the door of the house, as well as furniture, walls and the ceiling and it's sufficient to create a question of fact regarding damage. “It is not required that the plaintiff establish the exact amount of the alleged damages (holding that it is not necessary that damages be assessed with mathematical precision).

“Moreover, Punamai (plaintiff) has the burden of proving at trial the nature and extent of his alleged damages such as destruction to property, lost rent or airfare”.

The trial then denied the government’s motion to dismiss the negligence claim by the plaintiff. The order issued last week was signed by Associate Justice Lyle L Richmond and Associate Judge Fa’amausili Pomele.



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