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§1.2 Most significant relationship (Second Restatement of Conflict of Laws)
  • 1 §1.2.1 Choosing the law of the place of injury

    • 1.1 Garcia v. Public Health Trust of Dade County

      1
      841 F.2d 1062 (1988)
      2
      Juan Larena GARCIA, Plaintiff-Appellant,
      v.
      PUBLIC HEALTH TRUST OF DADE COUNTY, d/b/a Jackson Memorial Hospital, et al., Josefa Vasquez, the University of Miami, a Florida corporation, d/b/a the University of Miami School of Medicine, Don Rafael Penalver, M.D., and Iberia Airlines of Spain, S.A., Defendants-Appellees.
      3
      No. 87-5176.
      4

      United States Court of Appeals, Eleventh Circuit.

      5
      April 4, 1988.
      6

      [1063] Marilyn Sher, Chonin & Sher, P.A., Coral Gables, Fla., Joseph C. Segor, Miami, Fla., for plaintiff-appellant.

      7

      Christopher Lynch, Adams, Hunter, Angones, Adams, Adams & McClure, Miami, Fla., for Donald Rafael Penalver, M.D.

      8

      Michael J. Holland, Condon & Forsyth, New York City, Michael K. McLemore, Kimbrell & Hamann, P.A., Miami, Fla., for Iberia Airlines of Spain.

      9

      Before HATCHETT and EDMONDSON, Circuit Judges, and MARKEY[1], Chief Circuit Judge.

      10
      HATCHETT, Circuit Judge:
      11

      Applying Florida's choice of law principles, we affirm the district court's ruling that an action for medical malpractice brought by an employee of a foreign agency injured in Florida is barred by Florida's Worker's Compensation law.

      12
      FACTS
      13

      Iberia Airlines of Spain employed Juan L. Garcia, the appellant, as a flight attendant. Iberia Airlines is an agency of the Spanish government and is incorporated under the laws of Spain. On August 3, 1984, during a flight layover in Miami, Florida, Garcia was "mugged" and beaten. Garcia sustained injury to his left wrist and received treatment at Jackson Memorial Hospital (Public Health Trust of Dade County). Dr. Penalver, also an employee of Iberia, treated Garcia's injury. When Garcia returned to his home in Spain, he experienced complications with the injury and his personal physician advised him that the treatment for the injury was improper. Garcia received 100-percent of his salary and medical expenses through the Spanish workmen's compensation system.

      14
      PROCEDURAL HISTORY
      15

      In the Florida state courts at Miami, Garcia brought a medical malpractice action against Iberia Airlines and its employee, Dr. Penalver. He also brought a negligence action against Jackson Memorial Hospital (Public Health Trust of Dade County) and the University of Miami. Iberia Airlines removed the action to district court based upon the provisions of the Foreign Sovereign Immunity Act of 1976. Iberia Airlines is a foreign state within the meaning of the Act.[2] Iberia and Penalver moved for summary judgment on the ground that Garcia, an Iberia employee, is not entitled to bring a tort suit in Florida against his employer and co-employee.

      16

      Contending that Spanish law would permit a lawsuit in Florida notwithstanding the fact that he received compensation in Spain, Garcia also moved for partial summary judgment. The district court granted summary judgment in favor of Iberia and Penalver holding that Florida law bars tort recovery when one is entitled to full compensation for injuries under the Florida Worker's Compensation Act. Noting that Florida has the "most significant relationship" to the parties, the district court then remanded Garcia's suit against Public Health Trust and the University of Miami for further proceedings in state court, 657 F.Supp. 99.

      17
      CONTENTIONS AND ISSUES
      18

      On appeal, Garcia asserts that the district court erred in ruling that Florida had the "most significant relationship" regarding the question of employer immunity under Florida's Worker's Compensation Act. [1064] Garcia also contends that the district court erred in determining that the appellees are entitled to immunity under Florida's Worker's Compensation Act.

      19

      The issues are: (1) whether the district court applied the correct choice of law rule; and (2) whether the district court erred in holding that Florida's Worker's Compensation Act barred Garcia from recovery.

      20
      I.
      21
      A. Choice of Law
      22

      In Acme Circus Operating Co., Inc. v. Kuperstock, 711 F.2d 1538 (11th Cir.1983), this court applied choice of law principles and articulated a step-by-step analysis. This court noted:

      23
      The first step in choice of law analysis is to ascertain the nature of the problem involved, i.e., is the specific issue at hand a problem of law of contracts, torts, property, etc. The second step is to determine what choice of law rule the state ... applies to that type of legal issue. The third step is to apply the proper choice of law rule to the instant facts and thereby conclude which [jurisdiction's] substantive law applies.
      24

      Kuperstock, 711 F.2d at 1540.

      25

      The parties agree that Florida's choice of law rules apply because Florida is the site where the creation of liability originated. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Coral Gables Imported Motorcars v. Fiat Motors, 673 F.2d 1234, 1238 (11th Cir.1982). Nevertheless, the parties disagree on how the Florida choice of law rules should resolve the dispute.

      26

      In step one, the question is whether the action arises in contract or tort. Garcia contends that this is a contract action. The district court held for the appellees ruling that Garcia's claim is grounded in tort. We agree. Although the parties entered into the contract for employment in Spain, this action is filed in tort. Garcia sought compensation for medical malpractice allegedly committed in Florida. Additionally, Garcia alleged in his amended complaint that Iberia and Penalver were negligent in failing to render proper medical attention. The district court correctly noted that "[i]t is in Florida where the cause of the injury and the alleged negligent treatment occurred." Given the facts and pleadings, it is clear that Garcia filed a tort action.

      27

      Second, we must determine what choice of law principle Florida courts apply to issues of tort liability. In Bishop v. Florida Specialty Paint Co., 389 So.2d 999 (Fla.1980), the Florida Supreme Court abandoned the traditional lex loci delicti rule (law where injury occurred prevails) in favor of the modern "most significant relationship" test as set forth in the Restatement (Second) of Conflict of Laws §§ 145-146 (1971).

      28

      Section 145 of the Restatement sets forth the general principles in determining the applicable law under the "most significant relationship" analysis. Section 145 states:

      29
      § 145 The General Principle
      30
      1. The rights and liability of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6. [Emphasis added.]
      31
      2. Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
      32
      (a) the place where the injury occurred,
      33
      (b) the place where the conduct causing the injury occurred,
      34
      (c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and
      35
      (d) the place where the relationship, if any, between the parties is centered.
      36
      These contacts ought to be evaluated according to their relative importance with respect to the particular issue.
      37

      Section 146 of the Restatement (Second) of Conflict of Laws provides:

      38
      [1065] § 146 Personal Injuries
      39
      In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.[3]
      40

      The Bishop court reasoned that "[o]ther factors may combine to outweigh the place of injury as a controlling consideration, making the determination of applicable law a less mechanical, and more rational, process." Bishop, 389 So.2d at 1001. Several jurisdictions have abandoned the lex loci doctrine for the more flexible modern approach to conflict of laws analysis.[4] Florida indisputably was the site of the injury in this case; therefore, the "most significant relationship" test should be applied. Bishop, 389 So.2d at 1001; see also, Hertz Corp. v. Piccolo, 453 So.2d 12 (Fla.1984) (where Florida Supreme Court reaffirmed the rationale set forth in Bishop).

      41
      B. Application of State Law
      42

      The final step in the Kuperstock analysis is to apply the "most significant relationship" test to the facts in this case and decide which jurisdiction's substantive law applies. The district court correctly ruled that Florida has the "most significant relationship" to the occurrence and the parties. Garcia argues that Spain has the most significant relationship between the parties. He argues that: (1) Spain has an ownership interest in Iberia Airlines; (2) Spain is the residence of Iberia Airlines; (3) the employment relationship is centered in Spain; and (4) Spain is where the flight originated. Although Garcia articulates several contacts with Spain, the alleged medical malpractice occurred in Florida. Garcia was mugged and injured during a flight layover in Miami, Florida. Dr. Penalver, an Iberia employee, treated Garcia for his injuries in Florida, thereby creating a doctor-patient relationship in Florida. Dr. Penalver is domiciled in Florida, and the alleged medical malpractice is centered in Florida. See generally Restatement (Second) of Conflict of Laws §§ 145-146 (1971).

      43

      Moreover, Florida has a significant interest in maintaining compliance with its worker's compensation laws. Florida intended its worker's compensation system to strike a balance between compensating injured workers and limiting the liability of employers for accidents. Section 440.09 of the Florida Statutes provides in pertinent part that:

      44
      Where an accident happens while the employee is employed elsewhere than in this state, which would entitle him or his dependents to compensation if it had happened in this state, the employee or his dependents shall be entitled to compensation.... However, if an employee shall receive compensation or damages under the laws of any other state, nothing herein contained shall be construed so as to permit a total compensation for the same injury greater than is provided herein.
      45

      Fla.Stat.Ann. § 440.09 (West 1981). Florida workmen's compensation law provides that liability of the employer shall be exclusive and in place of all other liability to any third-party tortfeasor and to the employee. See Fla.Stat.Ann. § 440.10-.11 (West 1981); Seaboard Coastline Railroad Co. v. Smith, 359 So.2d 427, 428 (Fla.1978). Although Spanish law allows recovery in tort actions, Florida law does not permit an employee receiving worker's compensation benefits to institute an action in tort against his employer or his co-employee. [1066] Fla.Stat.Ann. § 440.11 (West 1981). Florida has articulated a strong public policy with respect to employer immunity for work related injuries. Because Spanish law allows suit against employers, Spanish law would contravene strong public policy of the forum state. See Restatement (Second) of Conflict of Laws § 6 (West 1971). This rationale was clearly set forth in Urda v. Pan Am World Airways, 211 F.2d 713 (5th Cir.1954). In Urda, the appellant's husband, an employee with Pan American, died in an aircraft disaster in Brazil. Brazilian law permitted suit against employers, however, Pan American was subject to the workmen's compensation law of Florida. The court held that "[w]ith the policy of the State of Florida expressed so positively in its statutes, it seems clear to us that any cause of action created by the law of Brazil cannot be enforced in Florida contrary to the public policy of the forum." Urda, 211 F.2d at 715; see Pacific Employer's Insurance Co. v. Industrial Accident Commission of California, 306 U.S. 493, 59 S.Ct. 629, 83 L.Ed. 940 (1939) (where state was not required to enforce the worker's compensation law of a foreign state).

      46

      In this case, Garcia received 100-percent compensation for his injuries under the Spanish worker's compensation system. As the district court noted, "[Garcia] is barred from seeking a tort recovery when he has already availed himself of the benefits obtainable under Spanish worker's compensation law. The fact that Spanish law would permit such a double recovery is of no significance...." See Fla.Stat.Ann. §§ 440.09 and 440.11 (West 1981); Urda, 211 F.2d at 715. The application of Spanish law would directly circumvent the established policy in Florida regarding employer immunity.[5] Given the facts and policy reasons presented in this case, the district court was correct in its application of Florida's choice of law rules.

      47
      II.
      48

      Garcia also argues for the first time on appeal that Iberia and Penalver are not entitled to immunity under Florida Statute § 440.11. Essentially, Garcia contends that an employer is immune from suit under Florida's worker's compensation law only if the employer secures payment of compensation as required by the statute. See Fla.Stat.Ann. § 440.11 (West 1981). We need not decide this question on appeal. Garcia did not raise the issue in the district court. "Failure to raise an issue, objection or theory of relief to the trial court is generally fatal." Denis v. Liberty Mutual Insurance Co., 791 F.2d 846, 849 (11th Cir.1986). "[F]actual assertions that defeat a summary judgment cannot be presented for the first time to appellate court, and only those matters properly before district court for summary judgment consideration are subject to appellate review." Denis, 791 F.2d at 849 (citing DeBardeleben v. Cummings, 453 F.2d 320 (5th Cir.1972) and Garner v. Pearson, 732 F.2d 850 (11th Cir.1984)). Nevertheless, appellate courts "will consider an issue not raised in district court if it involves a pure question of law, and if refusal to consider it would result in a miscarriage of justice." Roofing and Sheet Metal Services, Inc. v. LaQuinta Motor Inns, Inc., 689 F.2d 982, 990 (11th Cir.1982). In this case, the question of whether Iberia secured payment of compensation under the Worker's Compensation Act is purely a factual question. Thus, Garcia's appeal on this issue is barred.

      49

      [1067] Likewise, we need not decide whether the Spanish statute of limitations bars Garcia's cause of action. In Bates v. Cook, 509 So.2d 1112 (Fla.1987), the Florida Supreme Court held that the significant relationship test should be employed to decide conflict questions concerning statute of limitations as well as issues of substantive law. Bates, 509 So.2d at 1114-15. Because we find that Florida has the "most significant relationship" between the parties, the question of whether Spain's statute of limitations applies is irrelevant.

      50

      Accordingly, the grant of summary judgment in favor of Iberia Airlines and Penalver is affirmed.

      51

      AFFIRMED.

      52

      [1] Honorable Howard T. Markey, Chief U.S. Circuit Judge for the Federal Circuit, sitting by designation.

      53

      [2] Act of October 21, 1976, Pub.L. No. 94-583, 90 Stat. 2891 (1976), codified at 28 U.S.C. §§ 1330, 1332(a)(2)-1332(a)(4), 1391(f), 1441(d), and 1602-1611; see also Arango v. Guzman Travel Advisors Corp., 621 F.2d 1371 (5th Cir.1980).

      54

      [3] Section 6 of the Restatement (Second) emphasizes several factors to consider in choice of law determinations. Some of these factors are: (a) needs of interstate and international systems; (b) policies of the forum; (c) policies of other interested states; (d) protection of justified expectations; and (e) certainty and predictability of result.

      55

      [4] Several state courts have rejected the place of injury rule and adopted one of several "multiple factors" theories. Gutierrez v. Collins, 583 S.W.2d 312 (Tex.1979); First National Bank v. Rostek, 182 Colo. 437, 514 P.2d 314 (1973); Ingersoll v. Klein, 46 Ill.2d 42, 262 N.E.2d 593 (1970); and Armstrong v. Armstrong, 441 P.2d 699 (Alaska 1968).

      56

      [5]Although Florida has accepted several provisions of the Restatement (Second) of Conflicts, it is unclear whether Florida has adopted section 184. Section 184 provides in pertinent part:

      57

      Recovery for tort or wrongful death will not be permitted in any state if the defendant is declared immune from such liability by the workmen's compensation statute ... and under which

      (a) the plaintiff has obtained an award for the injury, or

      (b) the plaintiff could obtain an award for the injury, if this is the state (1) where the injury occurred ...

      58

      If Florida follows this section, clearly Garcia would be precluded from recovery under Spanish law. Nevertheless, we are satisfied that statutory authority and the rationale set forth in Urda indicate Florida's interest in maintaining employer immunity under its worker's compensation system.

  • 2 §1.2.2 Choosing the law of the place where the contract was made

    • 2.1 Saharceski v. Marcure

      1
      373 Mass. 304 (1977)
      2
      366 N.E.2d 1245
      3
      CHESTER J. SAHARCESKI
      vs.
      JOSEPH C. MARCURE, SR.
      4

      Supreme Judicial Court of Massachusetts, Franklin.

      5
      January 4, 1977.
      6
      September 12, 1977.
      7

      Present: HENNESSEY, C.J., QUIRICO, KAPLAN, WILKINS, & LIACOS, JJ.

      8

      [305] Neil Sugarman for the plaintiff.

      9

      Philip A. Brooks for the defendant.

      10
      WILKINS, J.
      11

      The plaintiff and the defendant, Massachusetts residents and employees of a Massachusetts corporation, were acting in the course of their employment when, on June 1, 1970, in the State of Connecticut, the plaintiff, a passenger, was injured as the result of the defendant's negligent operation of a motor vehicle. If the relevant circumstances involved in this case all related to Massachusetts, the plaintiff would not be entitled to recover from his negligent fellow employee. On the other hand, if the relevant circumstances all related to Connecticut, the plaintiff would be entitled to recover. We conclude that the law of this Commonwealth applies properly in this case to bar the plaintiff from recovering from his fellow worker.

      12

      The plaintiff was employed by the Ethan Ames Manufacturing Co., Inc. (company), which had its principal offices at its Turners Falls retail store outlet, of which the plaintiff was the manager. The plaintiff and the defendant were residents of this Commonwealth and had been hired here. The company had no store in Connecticut and had no employees resident or principally working there. It had purchased workmen's compensation insurance covering its employees as provided in G.L.c. 152. On June 1, 1970, the plaintiff, the defendant, and others traveled by motor vehicle on their employer's business from Massachusetts into Connecticut intending to pass through that State without stopping. Trips to Connecticut to pick up merchandise were an occasional part of the plaintiff's duties. The vehicle, which was registered in Massachusetts, was owned by the company.

      13

      The defendant, employed as a chauffeur, was operating the vehicle when it struck the rear of a motor vehicle which was stopped in the passing lane of the Connecticut [306] Turnpike. The plaintiff, who sustained injuries in the accident, collected workmen's compensation benefits from the company's insurance carrier.

      14

      The judge denied the defendant's motion for a directed verdict which was grounded on the claim that G.L.c. 152 prohibited a suit against a fellow employee. The jury returned a verdict for the plaintiff. However, on motion of the defendant, the judge ordered judgment for the defendant notwithstanding the verdict. Mass. R. Civ. P. 50 (b), 365 Mass. 814 (1974). The judge's decision was correct.

      15

      In this Commonwealth, where compensation benefits are available under G.L.c. 152, an employee injured in the course of his employment by the negligence of a fellow employee may not recover from that fellow employee if he also was acting in the course of his employment. Murphy v. Miettinen, 317 Mass. 633, 635 (1945), and cases cited. This long settled principle of Massachusetts law has not been subject to serious dispute, and is not challenged in this proceeding.[1]

      16

      An employee covered under the Massachusetts Workmen's Compensation Act is afforded compensation for an injury which occurs outside of the Commonwealth. G.L.c. 152, § 26. Unless an employee gives timely notice to his employer of his reservation of common law rights (and the plaintiff here did not do so), an employee is treated as having waived "his right of action at common law or under the law of any other jurisdiction in respect to an injury ..." occurring in the course of his employment. G.L.c. 152, § 24.[2] "Massachusetts has assumed exclusive jurisdiction [307] of rights to compensation where the contract of employment is made here and no notice in writing of claim of rights is given." Migues's Case, 281 Mass. 373, 375 (1933). We think it clear that Massachusetts law, as expressed in its Workmen's Compensation Act, contemplates that an employee covered under the act must look solely to his employer's compensation insurer (and any independent third-party tortfeasor) when he is injured in the course of his employment by the negligence of a fellow employee who is also acting in the course of his employment and that it makes no difference that the injury was received in another State.[3]

      17

      Although the defendant argues that these principles of Massachusetts law are dispositive of this case, the plaintiff contends that the substantive law of this Commonwealth is inapplicable to injuries arising from a tort which occurred in Connecticut. He argues that the Legislature has not mandated the application of Massachusetts substantive law to this case, that appropriate conflict of laws principles require this court to look to the law of the State of Connecticut, and that the law of Connecticut would permit the plaintiff to recover against a fellow employee in these circumstances.

      18

      It is clear that an employee injured in Connecticut in the course of his employment by the negligent operation of a motor vehicle by a fellow employee may recover from that fellow employee under Connecticut law. Many States permit a suit against a fellow employee in such circumstances. Annot., 21 A.L.R.3d 845, 850 (1968). Section 31-293a of the Connecticut General Statutes provides that "[i]f an employee ... has a right to benefits or compensation under ... [the Connecticut Workmen's Compensation Act] on account of injury ... caused by the negligence or [308] wrong of a fellow employee, ... [that] right shall be the exclusive remedy of such injured employee ... and no action may be brought against ... [the] fellow employee except for negligence in the operation of a motor vehicle ... or unless such wrong was wilful or malicious" (emphasis supplied). Conn. Gen. Stat. § 31-293a (1977). That statutory provision seemingly would not aid the plaintiff in this case because he probably had no right to compensation under the Connecticut compensation act where the Massachusetts compensation act extended a right to benefits in this circumstance. Hopkins v. Matchless Metal Polish Co., 99 Conn. 457, 464-465 (1923) (out-of-State compensation law applied to the exclusion of the Connecticut compensation law). Cf. Douthwright v. Champlin, 91 Conn. 524, 529-530 (1917) (Connecticut compensation act applied because, at the time, the Massachusetts act did not reach extraterritorially). But even if that provision of the Connecticut Workmen's Compensation Act did not apply to the plaintiff, apparently the plaintiff would be entitled to recover against a fellow employee under Connecticut law. In Stulginski v. Cizauskas, 125 Conn. 293, 297-298 (1939), at a time when there was no statutory restriction on suits against a fellow employee, the plaintiff was entitled to recover against a negligent fellow employee even after compensation benefits were paid. See Farm Bureau Mut. Auto. Ins. Co. v. Kohn Bros. Tobacco Co., 141 Conn. 539, 543 (1954). Thus, we accept the plaintiff's claim that, as to motor vehicle tort claims, the law of Connecticut does not bar tort actions against fellow employees where the injury occurs in the course of their common employment. We shall return to the question whether the Supreme Court of Connecticut would apply this general principle when a plaintiff has workmen's compensation benefits available under the law of the place of his employment and under that law the employee waives any claims against a fellow employee for injuries incurred within or without the State of his employment while each is in the course of his employment.

      19

      1. We start our analysis by noting that the choice of [309] law question involved in this case is not of constitutional dimensions. We are free to apply Connecticut law or Massachusetts law, just as Connecticut would have been free to apply the law of either State if this action had been brought there. Carroll v. Lanza, 349 U.S. 408, 413-414 (1955). 4 A. Larson, Workmen's Compensation § 88.21 (1976). Restatement (Second) of Conflict of Laws § 183 (1971).

      20

      The issue presented here has not been resolved uniformly in those cases where it has arisen and is left open by the Restatement (Second) of Conflict of Laws. See Restatement (Second) of Conflict of Laws § 184, Comment b (1971).[4] Some courts have undertaken to resolve the choice of law question by a largely mechanical, conclusory assertion of the result. Thus, the law of the forum has been applied, where the accident occurred out of State, by simply concluding that the forum's public policy is to deny recovery against a fellow employee. Hockmuth v. Perkins, 55 Ga. App. 649, 653 (1937). Fagan v. John J. Casale, Inc., 16 Misc.2d 1046, 1049 (N.Y. Sup. Ct. 1959). We do not regard the Connecticut rule of law as so repugnant to the declared policy of this State that we would not enforce it in appropriate circumstances.[5] On the other hand, the law of the forum allowing recovery against a fellow employee has been applied to a local accident in disregard of the exemption contained in the law of the State [310] of employment, perhaps on the ground that the exemption of the foreign law is obnoxious to the forum's public policy (Hutzell v. Boyer, 252 Md. 227, 233 [1969]), or on the simple assertion that the law of the place of the alleged tort governs all questions of law (Ellis v. Garwood, 168 Ohio St. 241, 246-247 [1958]).

      21

      In situations involving a conflict of laws concerning the fellow employee's claimed exemption from liability, the better reasoned cases focus on the established relationship of the parties, their expectations, and the degree of interest of each jurisdiction whose law might be applied. Stacy v. Greenberg, 9 N.J. 390, 397-398 (1952) (New York employment; New Jersey motor vehicle accident; New York law applied). Hunker v. Royal Indem. Co., 57 Wis.2d 588 (1973) (Ohio employment; Wisconsin motor vehicle accident; Ohio law applied). For cases involving claims against an employer or employer-related defendants, see Miller v. Yellow Cab Co., 308 Ill. App. 217, 232-233 (1941); Wayne v. Olinkraft, Inc., 293 So.2d 896, 898-900 (La. Ct. App. 1974); Busby v. Perini Corp., 110 R.I. 49, 51-53 (1972); Fleet Transp. Co. v. Insurance Co. of N. America, 340 F. Supp. 158, 160-161 (M.D. Ala. 1972); Davis v. Morrison-Knudsen Co., 289 F. Supp. 835, 837 (D. Or. 1968). See also R.A. Leflar, American Conflicts Law § 163, at 405 (rev. ed. 1968). Of course, if the law of the State of the employment does not purport to limit a tort claim against a fellow employee who negligently caused an injury to the plaintiff in an out-of-State accident, there is no reason to bar an action against that fellow employee where the law of the place of the injury permits it. Sade v. Northern Natural Gas Co., 458 F.2d 210, 214 (10th Cir.1972).

      22

      In resolving the choice of law problem presented in this case, we believe it is appropriate to look directly to the substantive law of this Commonwealth. Although traditionally we would look to the law of the place of the alleged wrong to determine whether the defendant's conduct was tortious, the matter of the right of a particular resident of this Commonwealth to sue and recover from another resident of this Commonwealth may be governed more [311] properly in particular instances by Massachusetts law.[6] Thus, in Pevoski v. Pevoski, 371 Mass. 358, 360 (1976), we held, as to a New York motor vehicle accident, that the law of this Commonwealth should determine the question whether one spouse may sue and recover from the other. We noted that the interest of this Commonwealth in the question was more substantial than that of New York, the place of the tort. In the case before us, the interest of Connecticut in the dispute is no more substantial than was that of New York in the Pevoski case.

      23

      Although the considerations involved in permitting or denying a right of action differ in this case from those present in the Pevoski case, there are substantial reasons for looking to the law of Massachusetts to determine whether the plaintiff should be allowed to maintain an action against his fellow employee. Most significant are the reasonable expectations of the parties, each of whom was hired and lived in Massachusetts. The workmen's compensation law of this Commonwealth bars an employee from recovering from a negligent fellow employee. An employee, by not reserving his common law rights, is deemed to have waived any claim against a fellow employee regardless of where an accident may occur. The plaintiff had no reasonable basis for expecting to recover in this situation, and the defendant had no reason to expect that he would be liable. Additionally, reference to the law of the place of common employment provides both a certain source for the resolution of the issue and assurance that the ability to maintain a tort action will not turn solely on the fortuitous circumstance of where the accident takes place. See Wilson v. Faull, 27 N.J. 105, 117-120 (1958). The elimination [312] of happenstance, a sort of unknowing geographical Russian roulette, as the controlling factor is particularly significant in a case where no business was to be transacted in the jurisdiction where the injury took place. As a matter of choice of law, we conclude that the substantive law of the Commonwealth should apply to bar recovery by the plaintiff in this case. See R.A. Leflar, American Conflicts Law §§ 104-105 (rev. ed. 1968).[7]

      24

      2. The result we reach might be attained by pursuing a different approach. Accepting the classical rule that the law of the place of the tort determines substantive rights, one might analyze this case in terms of the result which would be reached if this action had been brought in Connecticut. In such a case, one should look to the entire law of the State of Connecticut, including its conflict of laws rules.

      25

      The Connecticut Supreme Court has not been confronted with this question, and one can attempt to answer the question under Connecticut law only by anticipating the Connecticut result from decisions of that court on other conflict of laws questions.[8] In a recent opinion, the [313] Supreme Court of Connecticut has reaffirmed its position that "in motor vehicle cases `[t]he creation and extent of liability are fixed by the law of the state in which the tort is committed.'" Gibson v. Fullin, 172 Conn. 407, 411 (1977), quoting from Bissonnette v. Bissonnette, 145 Conn. 733, 734 (1958). In the Gibson case, the court noted that "[i]t has long been recognized that courts are not bound to decide all issues of a case under the local laws of a single state. In deciding this ultimate question, which does not frequently arise, we believe that the applicable law should not only be simple and easy to determine and apply, but should also lead to predictable and desirable results" (citation omitted). Id. at 412. The holding in the Gibson case was that a retroactive repeal of the Florida guest statute would not be recognized to permit a Connecticut resident to recover from another Connecticut resident for negligence in the operation of a motor vehicle in Florida. The reason given was a strong policy in Connecticut disfavoring retrospective laws. The Connecticut court declined to permit recovery for ordinary negligence by applying the substantive law of Connecticut, rejecting the idea of looking to the law of the jurisdiction with the "most significant relationship" or "center of gravity." Id. at 411. See Restatement (Second) of Conflict of Laws § 145 (1971). The court regarded "this newer approach" as "still very much in a transitional stage" and saw in the case before it "no compelling reason to abandon the traditional rule." Gibson, supra at 411.

      26

      On the question of interspousal immunity, the Connecticut court consistently refused to allow one Connecticut spouse to recover from the other who allegedly operated a motor vehicle negligently in a foreign jurisdiction where the local law denied one spouse the capacity to sue the other, even though Connecticut law did not bar such an action as to a Connecticut accident. Menczer v. Menczer, 160 Conn. 563, 564 (1971), and cases cited. Finally, the result was changed prospectively by statute. See Conn. Gen. Stat. § 52-572d (1977). Presumably, without the need for any statutory direction, we would take a view different from that of the Connecticut court as to Massachusetts [314] domiciliaries. See Pevoski v. Pevoski, 371 Mass. 358, 360 (1976).

      27

      In situations involving contractual relationships of a less personal nature than marriage, the Connecticut court has indicated respect for the law of the place of contract. In Douthwright v. Champlin, 91 Conn. 524, 529-530 (1917), the Connecticut court stated that it would have recognized the applicability of the Massachusetts workmen's compensation statute if Massachusetts had intended that it have extraterritorial effect. And, as indicated earlier, Connecticut will decline jurisdiction under its own Workmen's Compensation Act where the compensation law of the place of employment applies extraterritorially. Hopkins v. Matchless Metal Polish Co., 99 Conn. 457, 464 (1923). In Levy v. Daniels' U-Drive Auto Renting Co., 108 Conn. 333 (1928), the Connecticut court was concerned with a Massachusetts motor vehicle accident in circumstances where the lessor of a vehicle was not liable automatically under Massachusetts law for injury negligently caused by the lessee but was so liable under Connecticut law, the place of the leasing. The court treated the claim as founded on contract, even though the plaintiff had no contract with the defendant or any associated person, and applied Connecticut law. There is, thus, some support for the view that the Connecticut court would regard the facts of this case as involving principally a contractual relationship under Massachusetts law and not simply a tort claim under Connecticut law.

      28

      The conclusion that Connecticut might not apply Connecticut law in these circumstances is strengthened by the absence of strong local public policy considerations there in support of authorizing suits against fellow employees. Connecticut has abolished the right to sue a negligent fellow employee as a general principle of its law. The right to sue is limited now to motor vehicle torts and wilful or malicious conduct. Conn. Gen. Stat. § 31-293a (1977). The element of punishment for intentional or malicious wrongdoing is recognized, but Connecticut appears not to be concerned generally either with "punishment" of a negligent [315] wrongdoer or with providing recovery for an injured employee beyond the level of his available workmen's compensation. Indeed, the legislative policy behind the exemption for motor vehicle torts of fellow employees may be grounded on nothing more exhilarating than the allocation of losses between insurers.[9]

      29

      It is true that the exemption of employers from suit by the compensation law of the place of employment involves both a detriment and a gain to the employee, who loses his tort action in exchange for the certainty of compensation benefits (cf. Pinnick v. Cleary, 360 Mass. 1, 15 [1971]), while an exemption granted to a fellow employee involves no similar, direct exchange. However, such employees reciprocally surrender potential claims against one another in circumstances in which each is assured compensation benefits.

      30

      3. We suspect that the Connecticut court would regard Connecticut's transient interest in the circumstances of this case as insignificant in relation to the established, continuing [316] employment relationship of the plaintiff, the defendant, and their employer under Massachusetts law. In any event, we elect in this case to look directly to our own substantive law which, no matter where such a suit may be brought, is in the words of the Supreme Court of Connecticut "simple and easy to determine and apply" and leads "to predictable and desirable results." Gibson v. Fullin, 172 Conn. 407, 412 (1977).[10]

      31

      Judgment affirmed.

      32

      [1] Statute 1971, c. 941, § 1, which is not applicable to this 1970 accident (see id. § 2), amended G.L.c. 152, § 15, with language which recognizes this judicial construction of G.L.c. 152, § 15. Litigation in this area has dealt principally with the question whether the allegedly negligent fellow employee was acting in the course of his employment. See Connolly v. Miron, 353 Mass. 654 (1968).

      33

      [2] In Gould's Case, 215 Mass. 480, 486 (1913), we construed the Workmen's Compensation Act as applicable only to injuries received in this State. Statute 1927, c. 309, §§ 2 and 3, amended predecessor sections of G.L.c. 152, §§ 24 and 26, to refer to other jurisdictions. See Lavoie's Case, 334 Mass. 403, 406 (1956).

      34

      [3] In Grant v. Carlisle, 328 Mass. 25, 26 (1951), the employee was injured in Connecticut and conceded that, if she was an employee of the defendant, she was barred under G.L.c. 152, § 24, from maintaining a common law action against her fellow employee. The point which the plaintiff conceded in the Grant case is essentially the issue which is presented here.

      35

      [4]The Restatement notes that "[s]ome workmen's compensation statutes extend immunity from liability in tort or wrongful death to certain designated persons, such as fellow employees, who are not required to provide insurance against the particular risk. It is uncertain whether such immunity will be given effect in other states."

      36

      Section 184 indicates that the plaintiff's employer would be free from liability in tort in this circumstance.

      37

      [5] If P and D while in the course of their employment in Connecticut, and while covered by the Connecticut compensation act, were involved in a motor vehicle accident in which D allegedly negligently injured P, and if P were to sue D in Massachusetts, we would not decline to permit recovery to P on the ground that the Connecticut exception to the fellow servant statute was contrary to public policy of this Commonwealth.

      38

      [6] The case was tried, apparently without objection, on the theory of the defendant's negligence and not his gross negligence. This was an application of Connecticut law. See Massa v. Nastri, 125 Conn. 144, 146 (1939). Prior to January 1, 1972 (see St. 1971, c. 865, § 1, inserting G.L.c. 231, § 85L), gross negligence had to be proved under the law of this Commonwealth for a guest to recover. We imply no approval or disapproval of the application of Connecticut law in this respect. See Restatement (Second) of Conflict of Laws § 145, Comment d (1971).

      39

      [7] Professor Leflar has summarized the factors influencing choice of law to be: "(A) Predictability of results; (B) Maintenance of interstate ... order; (C) Simplification of the judicial task; (D) Advancement of the forum's governmental interests; (E) Application of the better rule of law." R.A. Leflar, American Conflicts Law § 105, at 245 (rev. ed. 1968).

      40

      [8] Almost twenty years ago, two Federal District Court judges undertook to deal with issues in this area. In Anderson v. New York, N.H. & H.R.R., 159 F. Supp. 90, 91 (D. Conn. 1958), the judge concluded that the Connecticut court would consider whether the law of the place of the employment (Massachusetts) would bar a third-party tort action. However, in a closer case factually, involving a motor vehicle tort claim against a fellow employee, another judge concluded, without citing the Anderson case, that Connecticut would permit an employee to maintain an action against a fellow employee for injuries sustained in Connecticut in the course of their employment, although the law of the place of common employment (New York) would not. Greene v. Verven, 204 F. Supp. 585, 587-588 (D. Conn. 1959). In the first case but not the second, the employee had actually collected workmen's compensation benefits. In the second case, the fellow employee's contacts with Connecticut were as tenuous as those in the case before us. These cases were decided, of course, before 1967 when the Connecticut Legislature drastically limited the circumstances in which one could recover from a negligent fellow employee by enacting Conn. Gen. Stat. § 31-293a (1977).

      41

      [9] If one assumes the availability of both workmen's compensation coverage and motor vehicle coverage, the difference in legislative policy between Massachusetts and Connecticut results in the insurer of the negligent fellow employee sustaining the loss in Connecticut and in the employer's workmen's compensation carrier sustaining the loss in Massachusetts. This difference in policy seems not to involve a major disagreement on a subject of substantial social importance. In this Commonwealth, where coverage from two different kinds of insurance might be available, the general tendency has been to exonerate the nonworkmen's compensation carrier and to place the responsibility on the workmen's compensation insurer. See G.L.c. 90, § 34A, defining "personal injury protection" for purposes of no-fault insurance coverage to deny no-fault benefits to any person entitled to payments or benefits under G.L.c. 152, the Workmen's Compensation Act. Flaherty v. Travelers Ins. Co., 369 Mass. 482 (1976). See G.L.c. 90, § 34A, as amended through St. 1964, c. 517, § 2, for a pre-no-fault exclusion of coverage for an occupant of a vehicle who was entitled to workmen's compensation benefits. See also G.L.c. 176B, § 14, providing that a medical service corporation (Blue Shield) may not be liable where there is workmen's compensation coverage. In these circumstances, concepts of public policy which, it is said, should guide courts in their choice of law (cf. L. Locke, Workmen's Compensation § 50, at 58 [1968]) do not include punishing the wrongdoer or reimbursing the employer or its insurer. Massachusetts exonerates the fellow employee completely from civil liability. Connecticut does so as well except in two instances (motor torts and intentional misconduct).

      42

      [10] In our view, predictability is important not only after but before any claim arises, that is, the parties should have a reasonable basis for ascertaining their rights and potential obligations in advance of any conduct.

  • 3 §1.2.3 Choosing the law of the parties’ common domicile

    • 3.1 Bryant v. Silverman

      1
      146 Ariz. 41 (1985)
      2
      703 P.2d 1190
      3
      Barbara BRYANT, as surviving spouse of Paul F. Bryant, deceased, on behalf of herself and the minor children and mother of Paul F. Bryant, deceased; Capital Bank, a national association, Executor of the Estate of Joyce L. Branham, deceased, Petitioners, and Alburquerque National Bank, a national banking corporation, as personal representative of the Estate of Mary T. Peters, deceased, on behalf of Laura Ann Peters and Craig Ashley Peters, the minor children of Mary T. Peters, deceased, Intervenors,
      v.
      Honorable Barry G. SILVERMAN, Judge of the Superior Court of Arizona for Maricopa County, Respondent, and SUN WEST AIRLINES, an Arizona corporation, Piper Aircraft Corporation, a Pennsylvania corporation; Edo Corporation, a New York corporation; and Century Flight Systems, Inc., a Texas corporation, Real Parties in Interest.
      4
      No. 17965-SA.
      5

      Supreme Court of Arizona, En Banc.

      6
      June 4, 1985.
      7
      Reconsideration Denied August 20, 1985.
      8

      [42] O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by John H. Westover, Charles J. Muchmore, Phoenix, for petitioners.

      9

      Bentley, Brandes & Brandes by Robert M. Brandes, Phoenix, for intervenors.

      10

      Beer & Toone by Thomas L. Toone, Rick E. Olson, Phoenix, for respondent.

      11
      GORDON, Vice Chief Justice:
      12

      Petitioners, Barbara Bryant, beneficiary of Paul E. Bryant deceased, and Capital Bank, executor for Joyce L. Branham, deceased, bring this special action challenging an order of the trial court that Colorado law apply to the issues of compensatory and punitive damages in petitioners' wrongful death action. The Albuquerque National Bank, personal representative of Mary T. Peters, was allowed to intervene in this special action. The primary issue raised in this special action is whether Arizona or Colorado wrongful death damages law should apply. We have jurisdiction pursuant to Ariz. Const. art. 6 § 5(1).

      13

      This case arises out of a tragic airplane crash which took the lives of several victims. On December 31, 1981, Sun West Airlines Flight 104 departed from Alburquerque, New Mexico en route to Durango, Colorado. Upon reaching Durango, the plane crashed while attempting to land at the airport, killing the pilot and passengers Paul Bryant, Mary Peters and Joyce Branham. Joyce Branham's children, Stacy and Jimmy Sadler, Jr. survived the crash. The cause of the crash is disputed by plaintiffs and defendant.

      14

      At the time of the crash, Paul Bryant was domiciled in Arizona, Mary Peters in New Mexico, and Joyce Branham in Texas. Sun West Airlines (hereafter Sun West) was an Arizona corporation having its principal place of business in Phoenix and servicing cities in New Mexico, Colorado and Arizona. All three decedents were on their way to Colorado to enjoy ski holidays.

      15

      In February 1982, plaintiff Barbara Bryant filed a wrongful death action in Arizona for the death of her husband Paul Bryant against defendant Sun West. Subsequently, similar actions were filed in Arizona for the deaths of Mary Peters, Joyce Branham and for the injuries to Stacy and Jimmy Sadler. All actions were consolidated.

      16

      After considering cross motions for summary judgment relating to the issues of compensatory and punitive damages, the trial judge found that Colorado had the most significant relationship to the occurrence and the parties on all compensatory and punitive damage issues, and therefore, held that Colorado law governed all damage issues. Under Colorado law, compensatory damages in wrongful death actions are limited to the net pecuniary loss suffered by the survivor (beneficiary). Lewis v. Great Western Distributing Co. of Borger, 168 Colo. 424, 451 P.2d 754 (1969). Additionally, Colorado prohibits recovery of punitive damages in wrongful death actions. Moffatt v. Tenney, 17 Colo. 189, 30 P. 348 (1892). All plaintiffs would prefer that Arizona law be applied to this case since Arizona places no limitation on compensatory or punitive damages. Accordingly, plaintiffs contend that Arizona law should govern the damage issues because plaintiff-Bryant, decedent-Paul Bryant, and defendant-Sun West were domiciled in Arizona at the time of the crash and because the misconduct occurred in Arizona. Sun West, on the other hand, argues that since Colorado was the place of injury and conduct and the place where the relationship between the parties arose, Colorado law should apply.

      17

      In determining which state's law to apply, this Court has adopted the rules embodied in the Restatement (Second) of Conflicts (1971) to analyze and solve conflicts problems arising in Arizona. See Schwartz v. Schwartz, 103 Ariz. 562, 447 P.2d 254 (1968) (discarding the doctrine of lex loci [43] delicti). Restatement (Second) of Conflicts (1971) §§ 175 and 178 deal specifically with the choice of law principles in an action for wrongful death and to the damage issues in such an action. Restatement § 178 sets out the choice of law principles for wrongful death damages, and states:

      18
      "§ 178 Damages
      19
      "The law selected by application of the rule of § 175 [wrongful death] determines the measure of damages in an action for wrongful death."
      20

      Comment b of this section notes that merely because the conduct and injury occur in one state does not ipso facto require application of that state's law to the issue of damages, but instead, the law of the state with the "dominant interest" or "greater interest" should govern:

      21
      "b. Rationale. The choice-of-law principles stated in § 6 should be applied in determining the state whose local law will be applied to determine the measure of damages in a wrongful death action. In general, this should be the state which has the dominant interest in the determination of this issue. The state of conduct and injury will not, by reason of these contacts alone, be the state which is primarily concerned with the measure of damages in a wrongful death action. The local law of this state will, however, be applied unless some other state has a greater interest in the determination of this issue. In a situation where one state is the state of domicile of the defendant, the decedent and the beneficiaries, it would seem that, ordinarily at least, the wrongful death statute of this state should be applied to determine the measure of damages." (emphasis added)
      22

      Restatement § 178 points to § 175 for the principles in determining conflict issues in wrongful death cases:

      23
      "§ 175. Right of Action for Death
      24
      "In an action for wrongful death, the local law of the state where the injury occurred determines the rights and liabilities of the parties unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied." (emphasis added)
      25

      As in Restatement § 178, this section emphasizes that the state with the "most significant relationship" or "greater interest" should govern rather than the place of injury:

      26
      "d. Rationale. The rule of this Section calls for application of the local law of the state where the injury occurred unless, with respect to the particular issue, some other state has a more significant relationship to the occurrence and the parties. Whether there is such another state should be determined in the light of the choice-of-law principles stated in § 6. In large part, the answer to this question will depend upon whether some other state has a greater interest in the determination of the particular issue than the state where the injury occurred. The extent of the interest of each of the potentially interested states should be determined on the basis, among other things, of the purpose sought to be achieved by their relevant local law rules and of the particular issue involved (see § 145, Comments c-d)." (emphasis added)
      27

      Restatement § 175, comment d. According to Restatement §§ 175 and 178, determination of which state has the greater interest in damages is influenced largely by the factors set forth in Restatement §§ 6 and 145.

      28

      Restatement § 145 sets forth the general principles by which tort choice of law questions are to be decided:

      29
      "§ 145. The General Principle
      30
      "(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.
      31
      "(2) Contacts to be taken into account in applying the principles of § 6 to determine [44] the law applicable to an issue include:
      32
      "(a) the place where the injury occurred,
      33
      "(b) the place where the conduct causing the injury occurred,
      34
      "(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and
      35
      "(d) the place where the relationship, if any, between the parties is centered.
      36
      "These contacts are to be evaluated according to their relative importance with respect to the particular issue."
      37

      Restatement § 6 sets out the various policy considerations and other factors for making a choice of law selection:

      38
      "§ 6. Choice of Law Principles
      39
      "(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.
      40
      "(2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include
      41
      "(a) the needs of the interstate and international systems,
      42
      "(b) the relevant policies of the forum,
      43
      "(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
      44
      "(d) the protection of justified expectations,
      45
      "(e) the basic policies underlying the particular field of law,
      46
      "(f) certainty, predictability and uniformity of result, and
      47
      "(g) ease in the determination and application of the law to be applied."
      48

      Our analysis starts with the four contacts specified in § 145(2), which will be taken into account in applying the principles enunciated in § 6 in ultimately determining whether Arizona or Colorado has the "most significant relationship" to the occurrence and the parties.[1] As to the first contact, the place where the injuries occurred is Colorado.

      49

      The location of the second contact, the place of the conduct causing the injury, is unclear. Both plaintiffs and defendant contest the cause of the crash. Plaintiffs' position is that the conduct occurred principally in Arizona because that is where Sun West negligently trained its pilots and adopted the policies relating to oxygen equipment in its fleet. Sun West argues that the cause of the crash was due to pilot error or mechanical failure which occurred exclusively in Colorado.

      50

      As to the third factor, plaintiff Bryant was domiciled in Arizona, as was her deceased husband, at the time of the crash. Sun West was incorporated and had its principal place of business in Arizona.[2]

      51

      Fourth, since the decedent, Bryant, purchased his ticket from Sun West in Durango, the contractual relationship between decedent and Sun West centered in Colorado.[3]

      52

      Thus, of the four contacts, two attach to Colorado, the place of injury and relationship between the parties, one attaches to Arizona, the domicile of the parties, and one is questionable, the place of [45] conduct. The determination of which state has the most significant contacts, however, is primarily qualitative and not quantitative. Schwartz v. Schwartz, supra; Moore v. Montes, 22 Ariz. App. 562, 529 P.2d 716 (1975). We must determine, therefore, the weight to be given each contact in light of the issues and facts of this case. See Restatement § 145(2) (providing that contacts are evaluated according to their relative importance to the particular issue).

      53

      Although Colorado is the state of injury, the state where the injury occurs does not have a strong interest in compensation if the injured plaintiff is a non-resident. See Wendelken v. Superior Court, 137 Ariz. 455, 671 P.2d 896 (1983); Fox v. Morrison Motor Freight, Inc., 25 Ohio St.2d 193, 267 N.E.2d 405 cert. denied, 403 U.S. 931, 91 S.Ct. 2254, 29 L.Ed.2d 710 (1971); Reich v. Purcell, 67 Cal.2d 551, 63 Cal. Rptr. 31, 432 P.2d 727 (1967). Compensation of an injured plaintiff is primarily a concern of the state in which plaintiff is domiciled. Branyan v. Alpena Flying Service, 65 Mich. App. 1, 236 N.W.2d 739 (1975); Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796, 806 (1964).[4]

      54

      As to punitive damages, in airplane crash cases the place of injury is much more fortuitous than the place defendant selects as his place of incorporation and principal place of business or the place of misconduct. Thus, the state where an injury occurs has less interest in deterrence and less ability to control behavior by deterrence or punishment than the state where the defendant airline is domiciled or the state where the misconduct occurred. In re Air Crash Near Chicago, 644 F.2d at 615, Cousins v. Instrument Flyers, Inc., 44 N.Y.2d 698, 405 N.Y.S.2d 441, 376 N.E.2d 914 (1978). Thus, the place of injury carries little weight in our selection of the applicable state law on punitive damages.

      55

      The third factor, the domicile of plaintiff and defendant, is significant. Comment b of Restatement (Second) of Conflicts § 178 suggests that if the defendant, the decedent, and the beneficiaries are domiciled in one state, that state's law should govern the damage issues:

      56
      "b.
      57
      * * * * * *
      58
      "The state of conduct and injury will not, by reason of these contacts alone, be the state which is primarily concerned with the measure of damages in a wrongful death action. The local law of this state will, however, be applied unless some other state has a greater interest in the determination of this issue. In a situation where one state is the state of domicil of the defendant, the decedent and the beneficiaries, it would seem that, ordinarily at least, the wrongful death statute of this state should be applied to determine the measure of damages." (emphasis added)
      59

      Many jurisdictions, including Arizona have determined that the state where plaintiff and defendant reside has a strong interest in making plaintiff whole and deterring wrongful conduct. See Wendelken, supra; Branyan v. Alpena Flying Service, supra; Fox v. Morrison Motor Freight, Inc., supra; Kilberg v. Northeast Airlines, Inc. 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526 (1961); Shaheen v. Schoenberger, 92 Mich. App. 491, 285 N.W.2d 343 (1979); Reich v. Purcell, supra; Woodward v. Stewart, 104 R.I. 290, 243 A.2d 917, cert. dismissed, 393 U.S. 957, 89 S.Ct. 387, 21 L.Ed.2d 371 (1968); Griffith v. United Airlines, Inc. supra; First National Bank in Fort Collins v. Rostek, 182 Colo. 437, 514 P.2d 314 (1973); In re Air Crash Near Chicago, supra. Since decedent Bryant, his beneficiaries, and defendant were all domiciled in Arizona at the time of the crash, Arizona has a strong interest in this case.

      60

      [46] Finally, although the ticket purchase centered the relationship between the parties in Colorado, this contact is of relatively low importance to this case. Although the relationship between the parties is a contractual relationship, the terms of the contract are not in dispute but only give rise to the duty of care owed by the airline to the passenger on which this action is based. See In re Air Crash Near Chicago, 644 F.2d at 612 (place relationship occurred has low interest in either punishment or protection of nonresident defendants).

      61

      Thus, under the facts of this case the domicile contact carries great weight in our determination of which state's law to apply; less significant are the place of injury and the relationship.

      62

      After determining the distribution of the contacts and their relative weight, we must next determine the state of the applicable law in light of the choice of law principles stated in § 6 of the Restatement (Second) of Conflicts. As noted by Restatement § 175 comment d, "the answer to this question will depend upon whether some other state has a greater interest in the determination of the particular issue than the state where the injury occurred."

      63

      The harmonious relationship or commercial interaction between Arizona and Colorado would best be fostered by applying Arizona law. Application of Arizona damage law allowing unlimited compensatory and punitive damages would fully compensate the Arizona plaintiffs and would deter the wrongful conduct of Sun West or other Arizona based airlines in Arizona and other states' air space. Thus, any interest Colorado has in providing safe travel through its air space would be protected. Application of Colorado law, however, would shield Sun West from a high damage award and potentially leave the Arizona plaintiff not fully compensated. Additionally, Colorado law would not deter future misconduct in Colorado or Arizona.

      64

      Certainly, predictability and uniformity of result are of greatest importance when parties are likely to give advance thought to the legal consequences of their transactions, such as the effect and validity of contracts or wills, and not when negligence is at issue. Wendelken v. Superior Court, supra, Gordon v. Kramer, 124 Ariz. 442, 604 P.2d 1153 (App. 1980); Restatement (Second) of Conflicts § 6, comment c. Furthermore, since airplane accidents are not planned, these considerations are largely irrelevant. Cf. Gordon v. Kramer, supra (consideration of predictability and uniformity irrelevant to unplanned automobile accidents).

      65

      In resolving the factual issues on wrongful death damages, the jury is capable of applying Arizona or Colorado wrongful death damage principles with about equal ease. See Wendelken v. Superior Court, supra; Gordon v. Kramer, supra.

      66

      Protection of justified expectations also is of little importance in this case. Since airplane crash accidents are unanticipated negligent acts, it is not likely that either party acted with the consequences of his conduct in mind or the law to be applied should a dispute arise out of such negligent conduct. Additionally, Sun West did fly over New Mexico and other states which did not limit wrongful death damages, and therefore, should have expected that at some time it might be subject to the laws of those states and face large verdicts against it. Accordingly, Sun West could have protected itself. See Griffith v. United Air Lines, Inc., supra.

      67

      The three last considerations deal with policy: the basic policies underlying the particular field of law involved, here tort law, and the relevant policies of the forum state, Arizona, and other interested states, Colorado, New Mexico and Texas.

      68

      The basic policies underlying tort law are to provide compensation for the injured victims, and to deter intentional and deliberate tortious conduct by imposing punitive damages. Prosser & Keeton on Torts, § 2 (5th Ed. 1984). Both Arizona and Colorado provide compensation for the injured victims, consistent with basic tort law. Only Arizona, however, allows punitive damages to deter similar future conduct. [47] Cassel v. Schacht, 140 Ariz. 495, 683 P.2d 294 (1984). Thus, basic tort law is better fostered by applying Arizona law.

      69

      In considering the relevant policies of Arizona and Colorado, the laws of both states differ significantly. Arizona has a strong policy interest in fully compensating injured plaintiffs to make them whole. Thus, Arizona allows unlimited recovery for actual damages, expenses for past and prospective medical care, past and prospective pain and suffering, lost earnings, and diminished earning capacity. Wendelken, supra; see also Standard Oil Co. v. Shields, 58 Ariz. 239, 119 P.2d 116 (1941); Allen v. Devereaux, 5 Ariz. App. 323, 426 P.2d 659 (1967); RAJI Negligence 10. The policy of fully compensating an injured plaintiff is embodied in our Constitution, Art. 2, § 31, which reads:

      70
      "No law shall be enacted in this state limiting the amount of damages to be recovered for causing the death or injury of any person."
      71

      Cf. Griffith v. United Air Lines, Inc. supra, (strong interest in compensating plaintiff fully is embodied in constitution of Pennsylvania). Thus, Arizona has a strong interest in compensating plaintiff for her injuries because plaintiff is a domiciliary and also because compensation helps injured plaintiffs make their medical bill payments to Arizona medical providers, preventing them from becoming wards of the state. See Wendelken, supra.

      72

      Colorado limits compensatory damages for wrongful death to plaintiff's net pecuniary loss. Espinoza v. O'Dell, 633 P.2d 455, 464 (Colo. 1981); Herbertson v. Russell, 150 Colo. 110, 371 P.2d 422, 425-26 (1962). This limitation prevents the jury from awarding speculative damages and more importantly, protects Colorado defendants from large verdicts. See Note, Blind Imitation of the Past — Analysis of Pecuniary Damages in Wrongful Death Actions, 49 Den.L.J. 99 (1972); See also Griffith v. United Air Lines, Inc., supra. As noted above, however, defendant Sun West Airlines is domiciled in Arizona with both its principal place of business and corporate offices there. Colorado's policy of limited liability is not fostered where defendant is not a resident of Colorado. Thus, Arizona's interest in compensation is stronger than Colorado's.

      73

      As to punitive damages, Arizona permits recovery of punitive damages in wrongful death actions. Boies v. Cole, 99 Ariz. 198, 407 P.2d 917 (1965). The purpose of allowing punitive damages is to punish defendant for his conduct and deter defendant or others from engaging in similar conduct in the future. Cassel v. Schacht, supra. Since Sun West is incorporated and has its principal place of business in Arizona, Arizona has a strong interest in assuring that one of its domiciliaries does not engage in gross, wanton, malicious or oppressive conduct.

      74

      On the other hand, Colorado does not permit punitive damages in a wrongful death action. See Colorado Rev.Statutes § 13-21-203 (1973); Herbertson v. Russell, supra. In interpreting the language of its wrongful death statute, Colorado courts determined that the general assembly had not authorized exemplary damages by the language employed in the statute. Moffatt v. Tenney, supra. The public policy behind such a denial is not clear. Perhaps it was to protect Colorado corporate defendants from excess liability. If so, since Sun West is domiciled in Arizona, Colorado has no interest in protecting an Arizona defendant. In any case, there does not appear to be a strong policy against punitive damages in Colorado because such damages are allowed in other tort actions. Cf. Short v. Downs, 36 Colo. App. 109, 537 P.2d 754 (1975) (medical malpractice); McNeill v. Allen, 35 Colo. App. 317, 534 P.2d 813 (1975); Barnes v. Lehman, 118 Colo. 161, 193 P.2d 273 (1948) (personal assault and battery). Since this case involves an Arizona corporate defendant causing injury to an Arizona domiciliary, Arizona has the dominant interest in controlling Sun West's conduct.

      75

      Our last probe into public policy considerations concerns the policies of Texas and [48] New Mexico relating to compensatory and punitive damages.

      76

      Texas, like Arizona, allows recovery for intangible personal losses. See Sanchez v. Schindler, 651 S.W.2d 249, 254 (Tex. 1983) (recovery of loss of society and companionship and damages for mental anguish for death of minor child allowed); Continental Bus System, Inc. v. Biggers, 322 S.W.2d 1 (Tex.Civ.App. 1959) (loss of parental care, guidance, training compensable). Thus, the policies underlying wrongful death statutes relating to compensatory damages in Arizona and Texas do not differ.

      77

      The New Mexico wrongful death statute permits compensatory damages beyond pecuniary loss, see Stang v. Hertz Corp., 81 N.M. 348, 467 P.2d 14 (1970) (substantial damages recoverable without proof of pecuniary loss); Baca v. Baca, 81 N.M. 734, 472 P.2d 997 (App. 1970), (accord), although not intangibles such as loss of society. Wilson v. Wylie, 86 N.M. 9, 518 P.2d 1213 (App. 1973). Thus New Mexico goes beyond Colorado pecuniary loss limitations and allows awards involving intangibles but not to the extent of Arizona. In order to foster the policy of New Mexico, Arizona law should be applied to avoid undercompensating the New Mexico plaintiff.

      78

      Both New Mexico and Texas permit recovery of punitive damages in wrongful death cases. N.M. Stat. Ann. § 41-2-3 (1978); Tex.Stat.Ann. art. 4673 (Vernon's 1952). Thus, both of these states support use of Arizona law on punitive damages.

      79

      After considering the relevant factors and the interest of both states, we conclude that Arizona has the greatest interest in the determination of this case. Although the injury and relationship between the litigants centered in Colorado, the value of these contacts is minimal in this case. The domicile of the litigants, when considered with the policy behind both Colorado and Arizona damage laws, points to application of Arizona law. This determination best protects our citizens and those of New Mexico and Texas from wrongful conduct by another of our citizens, without affecting trade and travel between Arizona and Colorado.

      80

      The petitioners' prayer for relief is granted. The portion of the order of the respondent trial judge dated January 31, 1985, striking petitioners' claim for punitive damages for wrongful death and limiting petitioners' compensatory damages to net pecuniary loss is vacated, and the court is directed to grant the motion of petitioners for summary judgment that Arizona law applies to the action below.

      81
      HOLOHAN, C.J., and HAYS, CAMERON and FELDMAN, JJ., concur.
      82

      [1] Because our choice of law analysis could result in one state having the greater interest in compensatory damages and the other punitive damages, we will apply the doctrine of depecage in resolving this case which allows us to apply different state laws to different issues. See, e.g., In re Air Crash Near Chicago, 644 F.2d 594, 611 (7th Cir.), cert. denied, 454 U.S. 878, 102 S.Ct. 358, 70 L.Ed.2d 187 (1981) (approving concept of "depecage"); Depecage: A Common Phenomenon In Choice of Law, 73 Colum.L.Rev. 58, 59-60 (1973) (depecage endorsed); Leflar, American Conflicts Law § 109, 221-22 (3rd ed. 1977); Wilde, Depecage in the Choice of Tort Law, 41 S.Cal.L.Rev. 329 (1968).

      83

      [2] Neither plaintiffs nor defendant argue that New Mexico or Texas wrongful death damage law should apply to this action, but instead all parties limited their arguments to Colorado and Arizona. Therefore, we will discuss all contacts in Arizona and Colorado and only those contacts of New Mexico or Texas when such contacts would favor application of Arizona or Colorado law. We need not decide whether in future cases different states' laws could be applied to different plaintiffs in the same case.

      84

      [3] Joyce Branham purchased her ticket in Colorado and Mary Peters purchased her ticket in New Mexico.

      85

      [4] The only interest of the state of injury would be in the compensation of those who rendered medical aid and other assistance to the injured parties. Where immediate death occurs, however, the state has no such interest. Griffith v. United Airlines, supra, 203 A.2d at 807.

  • 4 §1.2.4 Choosing the law of the place where the relationship between the parties is centered

    • 4.1 Hataway v. McKinley

      1
      830 S.W.2d 53 (1992)
      2
      Louis G. HATAWAY, Jr., and Freddie D. Hataway, Parents and Next of Kin of Louis G. Hataway, III, Deceased, and Louis G. Hataway, Jr., and Freddie D. Hataway, Co-Administrators of the Estate of Louis G. Hataway, III, Deceased, Plaintiffs/Appellants,
      v.
      Robert W. McKINLEY, Defendant/Appellee.
      3

      Supreme Court of Tennessee, at Jackson.

      4
      April 27, 1992.
      5

      [54] Lee L. Piovarcy, David Wade, Scott T. Beall, Martin, Tate, Morrow & Marston, P.C., Memphis, for plaintiffs/appellants.

      6

      John R. Cannon, Jr., Karen R. Renneisen, Hardison Law Firm, Memphis, for defendant/appellee.

      7
      OPINION
      8
      ANDERSON, Justice.
      9

      In this case, we are asked to decide whether the lex loci delicti conflicts-of-law doctrine should continue to be followed in tort cases in Tennessee. The decedent, Grady Hataway, died as a result of complications from a scuba dive in an Arkansas rock quarry. The dive took place as part of a scuba class taught at Memphis State University by the defendant, Robert McKinley. Although both the decedent and the defendant were life-long residents of Tennessee, the trial court followed previous decisions of this Court and held that Arkansas law governed the plaintiffs' wrongful death action under the lex loci delicti doctrine. The trial court's decision on this issue was affirmed by the Court of Appeals.

      10

      Our review of the background and modern development of conflicts of law rules convinces us that the lex loci delicti doctrine should be abandoned. Today we announce a new rule — the "most significant relationship" approach of the Restatement (Second) of Conflict of Laws (1971). Applying the "most significant relationship" approach to the facts of this case, we find that the State of Tennessee has a more significant relationship to the occurrence and the parties, and that Tennessee law should govern the action. Accordingly, we reverse the Court of Appeals' decision applying Arkansas law to this case.

      11
      BACKGROUND
      12

      On October 20, 1984, Grady Hataway died as a result of injuries he sustained during a scuba dive in a North Little Rock, Arkansas, rock quarry. The dive was supervised by the defendant, Robert W. McKinley, and conducted as part of a scuba class taught at Memphis State University. As a result of Hataway's death, his parents filed this wrongful death action in the Shelby County Circuit Court.

      13

      The trial court granted the defendant's motion to apply Arkansas law to the plaintiffs' wrongful death claims, based on Tennessee's lex loci rule, and the plaintiffs were allowed to amend their complaint to conform to Arkansas law. Thereafter, the case was tried before a jury on the basis of Arkansas's wrongful death statute, Ark. Code Ann. § 16-62-102 (Michie 1987), and Arkansas's comparative fault statute, Ark. Code Ann. § 16-64-122 (Michie 1987).

      14

      After a lengthy trial, the jury returned a verdict for the defendant. The plaintiffs appealed, and the Court of Appeals reversed, holding that although Arkansas law was correctly applied, the trial court had erred by excluding from evidence defendant's admission. From the Court of [55] Appeals' decision, both parties appealed to this Court. We granted the plaintiffs' application for permission to appeal limited to the issue of whether the trial court correctly applied Arkansas law to this case.

      15
      LEX LOCI DELICTI
      16

      The first issue we address on this appeal is whether there is a conflict between Arkansas and Tennessee law. Recovery by the plaintiffs under either Arkansas or Tennessee law is predicated on negligence, which is the failure to use reasonable and ordinary care under the circumstances which proximately causes the plaintiff's injuries. See Bowie v. Missouri Pacific Railroad Co., 262 Ark. 793, 561 S.W.2d 314 (1978); Lindsey v. Miami Dev. Corp., 689 S.W.2d 856 (Tenn. 1985). However, once the negligence of a defendant has been demonstrated, there is a major difference between the defenses that can be asserted by a defendant under Arkansas and Tennessee tort law.

      17

      Arkansas is a comparative fault state, which means that an Arkansas plaintiff's recovery is reduced by the amount of his fault. Ark. Code Ann. § 16-64-122 (Michie 1987). Under Arkansas law, a plaintiff is not barred from recovering damages from a defendant unless his fault is equal to or greater than the defendant's fault. Id. Under Tennessee law, however, a plaintiff is completely barred from recovering damages if he was contributorially negligent, even if his negligence was of a lesser degree than the defendant's. Arnold v. Hayslett, 655 S.W.2d 941, 945 (Tenn. 1983). The only way a plaintiff can recover damages in Tennessee despite his contributory fault is if a jury finds that his conduct was too remote in time and place to be considered a proximate cause of his injuries. Id.

      18

      In addition to the contrast in negligence law, there is a difference between the wrongful death statutes of Arkansas and Tennessee. Arkansas' wrongful death statute allows recovery "for the pecuniary injuries ... and mental anguish resulting from the death, to the surviving spouse and next of kin of the deceased person." Ark. Code Ann. § 16-62-102(f) (Michie 1987) (emphasis added). Tennessee's wrongful death statute, on the other hand, allows recovery "for the mental and physical suffering, loss of time, and necessary expenses resulting to the deceased from the personal injuries, and also the damages resulting to the parties for whose use and benefit the right of action survives from the death consequent upon the injuries received." Tenn. Code Ann. § 20-5-113 (1980) (emphasis added).

      19

      Given the difference between comparative fault in Arkansas and contributory negligence in Tennessee, as well as the difference between the wrongful death statutes, we conclude that there is a conflict between Arkansas and Tennessee law which is a necessary predicate to deciding which state's law should govern this wrongful death action.

      20

      The doctrine of lex loci delicti has been the rule in Tennessee for over 100 years. See East Tennessee, V. & G.R. Co. v. Lewis, 89 Tenn. 235, 14 S.W. 603 (1890). Under this doctrine, a Tennessee court will determine the substantive rights of an injured party according to the law of the state where the injury occurred. Winters v. Maxey, 481 S.W.2d 755, 756 (Tenn. 1972). However, there is a public policy exception to the doctrine and the law of Tennessee will be applied "where the law of the jurisdiction where the tort occurred is against good morals or natural justice, or for some other reason, its enforcement would be prejudicial to the general interests of our citizens." Id. (The majority in Winters v. Maxey, decided the public policy exception did not apply to an Alabama guest statute which requires a showing of willful or wanton conduct before a guest passenger can recover.)

      21

      The plaintiffs argue that the doctrine of lex loci delicti should be abandoned by this Court because it is obsolete, unjust, and arbitrary. Adherence to the doctrine, the plaintiffs say, often leads to application of the law of a state that has no interest in the controversy or no contact with the parties other than the fortuitous circumstance that the injury occurred in [56] that state. The defendant, on the other hand, maintains that we should retain the doctrine because it promotes certainty, predictability, and uniformity in conflicts cases. According to the defendant, the rationale of Winters v. Maxey is still viable today, because the jurisdictions abandoning lex loci delicti have suffered from increased litigation due to the inconsistent results reached under modern choice of law theories.

      22

      In Winters v. Maxey, supra, this Court was squarely confronted with the question of whether the lex loci delicti doctrine should be abandoned in Tennessee. After reviewing cases that had adopted and applied a modern "dominant contacts" rule, the Winters court retained the old rule because it found that the modern theories do not "provide any `uniform common law of conflicts' to take the place of the uniform rule of lex loci delicti." Winters, 481 S.W.2d at 758. Justice Humphrey's dissent recognized, however, that change was inevitable.

      23
      [W]hile I think the adoption of a general rule such as that in Restatement is inevitable as our society grows more mobile and the interest of the State in its citizens ever increases, I am content, for the present, to base my disagreement with the majority on its failure to recognize that the Alabama guest statute is contrary to justice, is contrary to good morals, and is contrary to the policy of this State....
      24

      Id. at 760.

      25

      At the time Winters was decided, lex loci was still the majority rule, although 15 states and the District of Columbia had repudiated lex loci delicti in favor of an "analysis of contacts" rule. Id. Since the Winters decision, however, numerous states have abandoned lex loci in favor of a more modern theory, just as Justice Humphrey predicted.

      26

      Our review of the cases from other jurisdictions reveals that an ever shrinking number of states (15) continue to follow lex loci delicti. These states include Alabama, Georgia, Kansas, Maryland, Montana, Nevada, New Mexico, North Carolina, South Carolina, South Dakota, Utah, Vermont, Virginia, West Virginia, and Wyoming. See Fitts v. Minnesota Mining & Mfg. Co., 581 So.2d 819 (Ala. 1991); Risdon Enterprises, Inc. v. Colemill Enterprises, Inc., 172 Ga. App. 902, 324 S.E.2d 738 (1984); Ling v. Jan's Liquors, 237 Kan. 629, 703 P.2d 731 (1985); Hauch v. Connor, 295 Md. 120, 453 A.2d 1207 (1983); Lewis v. Reader's Digest Ass'n, Inc., 162 Mont. 401, 512 P.2d 702 (1973); Karlsen v. Jack, 80 Nev. 201, 391 P.2d 319 (1964); First Nat'l Bank in Albuquerque v. Benson, 89 N.M. 481, 553 P.2d 1288, cert. denied, 90 N.M. 7, 558 P.2d 619 (1976); Boudreau v. Baughman, 322 N.C. 331, 368 S.E.2d 849 (1988); Oshiek v. Oshiek, 244 S.C. 249, 136 S.E.2d 303 (1964); Owen v. Owen, 444 N.W.2d 710 (S.D. 1989); Velasquez v. Greyhound Lines, Inc., 12 Utah 2d 379, 366 P.2d 989 (1961); Goldman v. Beaudry, 122 Vt. 299, 170 A.2d 636 (1961); McMillan v. McMillan, 219 Va. 1127, 253 S.E.2d 662 (1979); Paul v. Nat'l Life, 177 W. Va. 427, 352 S.E.2d 550 (1986); Ball v. Ball, 73 Wyo. 29, 269 P.2d 302 (1954). It follows that lex loci delicti is no longer the majority rule.

      27

      In the few jurisdictions that have recently addressed the issue and decided to retain lex loci, the reasoning has been that the modern theories have not brought certainty or uniformity to the law. See, e.g., Fitts v. Minnesota Mining & Mfg. Co., 581 So.2d 819 (Ala. 1991). They argue that the primary advantage of lex loci is that "[i]t is an objective and convenient approach which continues to afford certainty, uniformity, and predictability of outcome in choice of law decisions." Boudreau v. Baughman, 322 N.C. 331, 368 S.E.2d 849, 854 (1988).

      28

      The answer to these arguments, however, is that lex loci, in its search for uniformity of result and ease of application, ignored the very substantial interests of the forum state in applying its own laws. As a result, courts created exceptions to the rule, such as the public policy exception, or circumvented the rule's operation by strained characterizations, such as describing substantive laws as procedural rules. These actions undermined certainty, uniformity, and predictability, the supposed [57] virtues of lex loci delicti. Gutierrez v. Collins, 583 S.W.2d 312, 317 (Tex. 1979).

      29

      We agree with the great majority of other jurisdictions that the doctrine of lex loci is outmoded because of changes in society, causing a consequential development of modern law.[1] The lex loci doctrine had its conceptual foundation in the common-law vested rights doctrine, which was founded on respect for a state's territorial sanctity. See Traveler's Indemnity Co. v. Lake, 594 A.2d 38 (Del. 1991), Winters, supra, 481 S.W.2d at 756. We observe that in today's modern industrial world, the vested rights theory, with its emphasis on territorial boundaries, has little relevance. "State and national boundaries are of less significance today by reason of the increased mobility of our population and of the increasing tendency of men to conduct their affairs across boundary lines." Restatement (Second) of Conflicts of Law, ch. 7 at 413 (1971) (Introductory Note). See also Gutierrez v. Collins, 583 S.W.2d at 317 (Tex. 1979).

      30

      Having concluded that the doctrine of lex loci delicti is outmoded and increasingly irrelevant, we review the more modern rules adopted in other states in order to determine which is the better choice of law theory.

      31

      A majority of states abandoning lex loci have adopted the approach of the Restatement (Second) of Conflict of Laws (1971). Under this approach, a court applies the "law of the state where the injury occurred ... unless, with respect to the particular issue, some other state has a more significant relationship ... to the occurrence and the parties." Restatement (Second), §§ 146 and 175. At this writing, 21 states follow the Restatement (Second)'s "most significant relationship" approach, including Alaska, Arizona, Colorado, Connecticut, Delaware, Florida, Idaho, Illinois, Indiana, Iowa, Louisiana, Maine, Massachusetts, Mississippi, Missouri, Nebraska, Ohio, Oklahoma, Oregon, Texas, and Washington. See Ehredt v. DeHavilland Aircraft Co. of Canada Ltd., 705 P.2d 446 (Alaska 1985); Bryant v. Silverman, 146 Ariz. 41, 703 P.2d 1190 (1985); First Nat'l Bank in Fort Collins v. Rostek, 182 Colo. 437, 514 P.2d 314 (1973); O'Connor v. O'Connor, 201 Conn. 632, 519 A.2d 13 (1986) (R.2d where lex loci produces arbitrary or irrational results); Traveler's Indemnity Co. v. Lake, 594 A.2d 38 (Del. 1991); Bishop v. Florida Specialty Paint Co., 389 So.2d 999 (Fla. 1980); Johnson v. Pischke, 108 Idaho 397, 700 P.2d 19 (1985); Ingersoll v. Klein, 46 Ill.2d 42, 262 N.E.2d 593 (1970); Hubbard Mfg. Co. v. Greeson, 515 N.E.2d 1071 (Ind. 1987) (R.2d where the place of the tort is an insignificant contact); Fuerste v. Bemis, 156 N.W.2d 831 (Iowa 1968); Lee v. Ford Motor Co., 457 So.2d 193 (La. Ct. App. 1984), cert. denied, 461 So.2d 319 (La. 1984); Adams v. Buffalo Forge Co., 443 A.2d 932 (Me. 1982); Pevoski v. Pevoski, 371 Mass. 358, 358 N.E.2d 416 (1976) (lex loci unless another state has a more substantial interest); Mitchell v. Craft, 211 So.2d 509 (Miss. 1969) (lex loci unless another state has a more significant relationship); Kennedy v. Dixon, 439 S.W.2d 173 (Mo. 1969); Harper v. Silva, 224 Neb. 645, 399 N.W.2d 826 (1987) (lex loci unless another state has a more significant relationship); Morgan v. Biro Mfg. Co., 15 Ohio St.3d 339, 474 N.E.2d 286 (1984); Brickner v. Gooden, 525 P.2d 632 (Okla. 1974); Casey v. Manson Constr. & Eng'g Co., 247 Or. 274, 428 P.2d 898 (1967); Gutierrez v. Collins, 583 S.W.2d 312 (Tex. 1979); and Johnson v. Spider Staging Corp., 87 Wash.2d 577, 555 P.2d 997 (1976).

      32

      The primary advantage of the Restatement (Second) approach is that it utilizes a flexible mixture of the current thinking on choice of law. Gregory E. Smith, Choice of Law in the United States, 31 Hastings L.J. 1041, 1046 (1987). Some, however, have criticized the Restatement (Second) approach [58] because of its complexity. Id. The approach primarily advocates a governmental interest analysis, but many courts have merely counted contacts rather than engaging in an analysis of the interests and policies listed in the Restatement. Id.

      33

      The remaining states and the District of Columbia follow various alternative theories. Arkansas, Minnesota, New Hampshire, Rhode Island, and Wisconsin employ a theory propounded by Professor Robert Leflar in his law review article entitled, Choice Influencing Considerations in Conflicts Law, 41 N.Y.U.L.Rev. 267 (1966). Under this theory, a court examines the following five "choice influencing considerations" to determine which state's law should apply: (1) predictability of result, (2) maintenance of interstate and international order, (3) simplification of the judicial task, (4) advancement of the forum's governmental interest, and (5) the application of the better rule of law. See Wallis v. Mrs. Smith's Pie Co., 261 Ark. 622, 550 S.W.2d 453 (1977) (with emphasis on governmental interest and the better choice of law); Bigelow v. Halloran, 313 N.W.2d 10 (Minn. 1981) (with emphasis in tort cases on governmental interest and the better rule of law); Clark v. Clark, 107 N.H. 351, 222 A.2d 205 (1966); Woodward v. Stewart, 104 R.I. 290, 243 A.2d 917 (1968); and Hunker v. Royal Indem. Co., 57 Wis.2d 588, 204 N.W.2d 897 (1973).

      34

      The major criticism of Professor Leflar's theory is that it is "plagued by excessive forum favoritism." Smith, Choice of Law, 31 Hastings L.J. at 1049. The theory leads to forum favoritism because the third and fourth factors almost always point to the forum law, and judges rarely consider their state's own laws to be inferior to those of another state under the fifth factor. Id. In addition, the first two factors are usually irrelevant in torts cases, further emphasizing the last three, pro-forum factors. Id.

      35

      Another conflicts theory followed in some states is Professor Brainerd Currie's "governmental interest analysis." This theory requires a court to first identify the specific law in each state touching upon the disputed legal issue. Then, a court must determine the precise policies which the respective laws were designed to augment. Finally, a court examines each jurisdiction's relationship with the litigation and determines whether or not the application of a particular state's law would be consistent with the purposes identified as supporting that law. Gregory E. Smith, Choice of Law in the United States, 31 Hastings L.J. 1041, 1047 (1987). See also B. Currie, Selected Essays on the Conflict of Laws (1963).

      36

      California, the District of Columbia, Hawaii, New Jersey, and New York apply a "governmental interest" analysis similar to that developed by Professor Currie. See Bernhard v. Harrah's Club, 16 Cal.3d 313, 546 P.2d 719, 128 Cal. Rptr. 215 (1976); Rong Yao Zhou v. Jennifer Mall Restaurant, Inc., 534 A.2d 1268 (D.C.App. 1987); Lewis v. Lewis, 69 Haw. 497, 748 P.2d 1362 (1988) (flexible approach with emphasis on deciding which state would have the strongest interest in seeing its laws applied to the particular case); Mellk v. Sarahson, 49 N.J. 226, 229 A.2d 625 (1967); and Schultz v. Boy Scouts of America, 65 N.Y.2d 189, 480 N.E.2d 679, 491 N.Y.S.2d 90 (1985) (although New York began with a combination of a "grouping of contacts" and "dominant interest" analysis, see Babcock v. Jackson, 12 N.Y.2d 473, 191 N.E.2d 279, 240 N.Y.S.2d 743 (1963), the courts of New York have focused now on an "interest" analysis similar to Professor Currie's).

      37

      The advantage of Professor Currie's "interest analysis" is that it is sensitive to the substantive laws being considered. Smith, Choice of Law, 31 Hastings L.J. at 1048. The basic disadvantage of the theory, however, is that it fails to adequately deal with true conflicts, when the purposes behind either law would be served by its application. Id. Another disadvantage is that the theory can be manipulated easily by identifying alternative governmental interests of a forum law, thereby leading to forum favoritism. Id.

      38

      Another conflicts theory is lex fori, which states that the law of the forum governs the rights and liabilities of the [59] parties. Kentucky and Michigan follow a variation of the lex fori theory. See Foster v. Leggett, 484 S.W.2d 827 (Ky. 1972) (apply the law of the forum if the forum state has "enough" contacts); Olmstead v. Anderson, 428 Mich. 1, 400 N.W.2d 292 (1987) (lex fori unless another state has a more significant interest). The primary advantage of lex fori is that it is easy to apply, while the principal disadvantage is that it fails to consider the policies and interests represented by the substantive laws being considered.

      39

      The final two states, Pennsylvania and North Dakota, combine theories to resolve conflicts questions in tort cases. Pennsylvania approaches conflicts questions by applying a combination of the Restatement (Second) and "governmental interest" theories. See Griffith v. United Air Lines, 416 Pa. 1, 203 A.2d 796 (1964). North Dakota combines the grouping of contacts or dominant interest approach with Leflar's choice-influencing considerations. See Issendorf v. Olson, 194 N.W.2d 750 (N.D. 1972).

      40

      Our review of the various conflicts approaches persuades us that the better-reasoned rule for resolving conflicts questions in tort cases is the approach of the Restatement (Second).[2] We think the approach of the Restatement (Second) is superior for several reasons. The Restatement provides that the law of the state where the injury occurred will be applied unless some other state has a more significant relationship to the litigation. We conclude this is the more logical position because generally the law of the state where the injury occurred will have the most significant relationship to the litigation. In addition, the Restatement is easier to apply in difficult cases because it provides a "default" rule whereby trial courts can apply the law of the place where the injury occurred when each state has an almost equal relationship to the litigation. Moreover, the Restatement approach allows a court to apply the law of a state that legitimately has a stronger interest in the controversy, as opposed to a state that may have no interest at all in the proceedings.

      41

      Accordingly, we adopt the "most significant relationship" approach of §§ 6, 145, 146, and 175 of the Restatement (Second) of Conflict of Laws (1971), which provides:

      42
      § 145. The General Principle
      43
      (1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state, which with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.[3]
      44
      (2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
      45
      (a) the place where the injury occurred,
      46
      (b) the place where the conduct causing the injury occurred,
      47
      (c) the domicile, residence, nationality, place of incorporation and place of business of the parties,
      48
      (d) the place where the relationship, if any, between the parties is centered.
      49
      These contacts are to be evaluated according to their relative importance with respect to the particular issue.
      50
      [60] § 146. Personal Injuries
      51
      In an action for personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.
      52
      § 175. Right of Action for Death
      53
      In an action for wrongful death, the local law of the state where the injury occurred determines the rights and liabilities of the parties unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.
      54

      The rule we adopt today shall be applied to (1) all cases tried or retried after the date of this opinion, and (2) all cases on appeal in which the conflicts of law issue was raised on a timely basis in the litigation.

      55

      Having adopted the "most significant relationship" approach of the Restatement (Second), we return to the facts of this case to determine whether Arkansas or Tennessee law should be applied.

      56

      The only contact the parties had with the State of Arkansas was that the injury occurred in that state. Both the decedent and the defendant were life-long residents of Tennessee and neither owned any property in Arkansas. The parties' relationship was centered in Tennessee because the relationship was formed and continued as a result of the decedent's participation in the scuba class taught at Memphis State by the defendant. We think the fact that the injury occurred in Arkansas was merely a fortuitous circumstance, and that the State of Arkansas has no interest in applying its laws to this dispute between Tennessee residents. Under the facts here presented, we conclude that although the injury occurred in Arkansas, the State of Tennessee has a more significant relationship to the occurrence and the parties under the factors and contacts set out in §§ 6 and 145 of Restatement (Second).

      57

      Accordingly, the Court of Appeals is reversed, and this case is remanded to the trial court with instructions that the law of Tennessee should be applied to the plaintiffs' claims for wrongful death. The costs of this appeal are taxed to the defendant-appellee.

      58
      REID, C.J., and DROWOTA, O'BRIEN and DAUGHTREY, JJ., concur.
      59

      [1] "When the doctrine of lex loci delicti was first established in the mid-nineteenth century, conditions were such that people only occasionally crossed state boundaries. Under those circumstances, there was legitimacy in a rule which presumed that persons changing jurisdictions would be aware of the different duties and obligations they were incurring when they made the interstate journey." First Nat'l Bank in Ft. Collins v. Rostek, 182 Colo. 437, 514 P.2d 314, 316 (1973).

      60

      [2] "[The Restatement (Second) of Conflict of Laws, § 145] is the most desirable model currently available for use as a framework for making choice-of-law decisions." Westbrook, A Survey and Evaluation of Competing Choice-of-Law Methodologies: The Case for Eclecticism, 40 Mo.L.Rev. 407, 412 (1975).

      61

      [3]§ 6. Choice-of-Law Principles

      62

      (1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.

      63

      (2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include:

      64

      (a) the needs of the interstate and international systems,

      65

      (b) the relevant policies of the forum,

      66

      (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,

      67

      (d) the protection of justified expectations,

      68

      (e) the basic policies underlying the particular field of law,

      69

      (f) certainty, predictability, and uniformity of result, and

      70

      (g) ease in the determination and application of the law to be applied.

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