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Conflict of Laws -- Textbook
  • 0 A Pragmatic Guide to Conflicts

  • 1 1. Torts

    • 1.1 §1.1 First Restatement of Conflict of Laws

      • 1.1.1 §1.1.1 Tort—place of injury

        • 1.1.1.1 Alabama Great Southern R. R. Co. v. Carroll

          1

          11 So. 803
          97 Ala. 126 - 1892

          2
          Alabama Great Southern Rail Road Co.
          v.
          Carroll.
          3

          [126] Action by Employe for Injuries Sustained in Another State.

          4

          1. Negligence of fellow-Servant not cause of action against master at common-law.–Underthe common-law, both in Alabama and Mississippi, the master is not liable for an injury inflicted through the negligence of a fellow-servant.

          5

          2. Section 2590 of the Code has no extra territorial operation.—There can be no recovery in Alabama for injuries to the person sustained in another State, unless actionable by the law of the State where received, and this rule is not varied because the negligence which produced the casualty transpired in Alabama, where the common-law liability of the master is modified, nor by the facts that both master and employee reside in this State and services were required of the employee in both States.

          6

          3. Section 2590 imposes no contractual obligations.– The liability of the employer under Section 2590 of the Code, does not spring from the contract of employment, the only office of which is to establish the relation of master and servant, and it is alone upon the incidents of that relation that the statute operates. Hence, a servant injured in another State by the negligence of a fellow-servant, under such circumstances as would create no right of action against the master in that State, cannot recover against the latter in Alabama, although the contract was entered into and the services partly performed here

          7

          Appeal from City Court of Birmingham. Tried before Hon. H. A. SHARPE.

          8

          J. W. FEWELL, and A. G. SMITH, for appellant.

          9

          That the action is not for breach of contract, nor for breach of duty growing out of contract.-R. R. Go. v. Doyle, 60 Miss. 977; A .T. & R. R. v. :Moore, 11 Am. & Eng. R. R. cases 243; LeForest v. Tolman, 19 Am. Rep. 400; McMaster v. R. R. Co., 65 Miss. 264; Davis v. N. Y. R. R. 143 Mass. 301; 33 Kan. 83; 98 N. Y. 377; 61 Iowa 441; 61 Tex. 432; 72 Ind. 220; 10 Ohio St. 121; E. T. V. & G. Rwy. v. Lewis, 14 S. W. Rep. 603; 23 N. Y. 465; 5 Am. & Eng. Encyc. 127; 3 lb. 522; 10 S. Rep. 661; 2 Thomp. on Neg. p. 1282.

          10

          BROOKS & BROOKS, for appellee, as to jurisdiction, cited Denw1ck v. R. R. Go. 103 U. S. 18; Knight v. R. R. Co. 108 Pa. St. 38; Am. Rep. 492; A. G. S. v. Thomas, 89 Ala. 293.

          11

          That the law is part of the contract, Hanrick v. Andrews, 9 Port. 9; McDougald v. Rutherford, 30 Ala. 253; Walker v Forbes, 31 Ala. 9; Brouqhton v. Bradley, 36 Ala. 689; Cubbedge v. Napier, 62 Ala. 518; 100 U . S . 213; 116 lb. 647; 3 Am. & Eng. Encyc. 545.

          12
          McCLELLAN, J.
          13

          The plaintiff W. D. Carroll is, and was [127] at the time of being injured in that service, a citizen of Alabama. The defendant is an Alabama corporation operating a railroad extending from Chattanooga in the State of Tennessee through Alabama to Meridian in the State Mississippi. At the time of the casualty complained of, plaintiff was in the service of the defendant in the capacity of brakeman on freight trains running from Birmingham, Alabama, to Meridian, Mississippi, under a contract which was made in the state of Alabama. The injury was caused by the breaking of a link between two cars in a freight train which was proceeding from Birmingham to Meridian. The point at which the link broke and the injury was suffered was in the State of Mississippi. The evidence tended to show that the link which broke was a defective link and that it was in a defective condition when the train left Birmingham. It was shown that this link, had come to the defendant's road at Chattanooga, Tennessee, with a car which belonged to and came to that point over a road which was foreign to the A.G.S. road. That at Chattanooga, this foreign car was coupled into a train of the defendant by means of this link, the destination of the car next in rear of it being Birmingham, and the destination of the second car in the rear of it, which belonged to defendant, being Meridian, to which point the foreign car was also bound. At Birmingham the car between this foreign car and the A.G.S. car which were billed to Meridian was cut out, and these two were coupled together by means of the link which had come to the defendant with the foreign car. The evidence went also to show that the defect in this link consisted in or resulted from its having been bent while cold, that this tended to weaken the iron and in this instance had cracked the link somewhat on the outer curve of the bend, and that the link broke at the point of this crack. It was shown to be the duty of certain employees of defendant stationed along its line to inspect the links attached to cars to be put in trains or forming the couplings between cars in trains at Chattanooga, Birmingham, and some points between Birmingham and the place where this link broke, and [128] also that it was the duty of the conductor of freight trains and the other train-men to maintain such inspection as occasion afforded throughout the runs or trips of such trains; and the evidence affords ground for inference that there was a negligent omission on the part of such employees to perform this duty, or if performed, the failure to discover the defect in and to remove this link was the result of negligence..

          14

          The foregoing statement of facts, either proved or finding lodgment in the tendencies of the evidence, together with. the evidence of the law of Mississippi, as to the master's liability for injuries sustained by an employee in his service, will suffice for the consideration and determination of the question which is of chief importance in this case, namely, whether the defendant is liable at all on the facts presented by this record for an injury sustained by the defendant in the State of Mississippi. The affirmative of this inquiry is sought to be rested and maintained upon two distinct propositions. In the first place, it is insisted that the. negligence which one aspect of the evidence tends to establish Is that of the defendant m respect of a duty which the law imposes upon the master and which whether performed or undertaken to be performed in the particular instance by the hand of the master or by the hand of one to whom he had delegated its performance is yet to be taken as being performed or attempted to be performed by the master himself, in such sort that the employer is responsible for its misperformance or non-performance whereby injury results to one of his employees under the doctrine of the common-law and wholly irrespective of statutory provisions. These doctrines are presumed, and also shown by the evidence in this case, to obtain in the State of Mississippi; and the defendant being an Alabama corporation it can­ not be questioned that an action may be maintained in this State to recover damages for an injury sustained in Mississippi, by one of its servants, if the facts present a good cause of action under the law of that State. It is manifest beyond adverse inference on the evidence, conceding the link, the breaking of which caused the accident, to have been in a defective condition when it came to defendant's road at Chattanooga attached to, and intended to be used in the further transportation, of the foreign car, that it was so used from that point to the place of the accident, that this defective condition of the link was patent to such observation as should have been bestowed upon it and that the defect in it was the proximate cause of the injury to the plaintiff, it [129] is, we say clear upon every aspect of the testimony, conceding all this to be true, that the use of that link in coupling the foreign car to the defendant's train and also in its use throughout the voyage from Chattanooga into Mississippi was due to the negligence of employees of the defendant who were charged by it with the duty of inspecting the link before and at the time of incorporating the foreign car into this train and at the several points in Alabama where inspectors were stationed as shown by the evidence, and also of the train-men charged with the duty of inspection as the train was en route. There is no pretense that the defendant had not been sufficiently careful in the selection of these inspectors or that they were incompetent. It is not pretended that they were insufficient in number or stationed at points too widely separated along the line. There is no such idea advanced as that the defendant was negligent in the purchasing of links of adequate strength, and supplying them to these inspectors and to trains gene­ rally; or that there was any necessity for the continued use of this link upon a discovery of its defective condition; but on the contrary it is affirmatively shown that the defend­ ant purchased and supplied its trains and employees with all necessary links of good quality and perfect condition to be used in its trains, to supply the places of links which be­ came defective from use, and to substitute for defective links coming to this road with foreign cars. The only negligence, in other words and in short, which finds support by direction or inference in any tendency of the evidence, is that of per­ sons whose duty it was to inspect the links of the train, and remove such as were defective and replace them with others which were not defective. This was the negligence not of the master, the defendant, but of fellow-servants of the plaintiff, for which at common-law the defendant is not liable. Thus it is said in McKinney on Fellow-Servants, § 127 : "It is a very common thing for train hands to receive injury through the negligence of persons employed by the company to inspect their cars to discover defects and repair them. The weight of authority, perhaps, is to the effect that the negligence of such employees in the performance of such duties cannot be attributed to the company, and it is consequently not liable for it." Citing among other cases Smith v. Potter, 46 Mich. 258; s. c. 2 Am. & Eng. R. R. Cas. 140; Mackin v. Railroad Co., 135 Mass. 201; s. c.

          15

          15 Am. & Eng. R. R. Cas. 196; Railroad Co. v. Webb, 12 Ohio St. 475; Railroad Co. v. Rice, 11 So. West Rep. (Ark.) 699; Kidwell v. Railroad Co. 3 Wood (U. S.) 313; and our own case

          16

          [130] of Smoot v. Mobile & Montgomery R. R. Co. 67 Ala. 13; and these and other cases are cited to the same proposition in 7 Am. & En. Encyc. of Law p. 864, note.

          17

          There are cases which hold to the contrary, but the law is and has long been settled in this State as we have stated it, the case of Smoot v. Mobile (t Montgomery R. R. Co. supra, being directly in point.—Mobile & Ohio R. R. Co. v. Thomas, 42 Ala. 672, 720 et seq; Mobile & Montgomery Ry. Co. v. Smith, 59 Ala. 245; Louisville & Nashville R. R. Co. v. A.llen, 78 Ala. 494.

          18

          This being the common-law applicable to the premises as understood and declared in Alabama, it will be presumed in our courts as thus declared to be the common-law of Mississippi, unless the evidence shows a different rule to have been announced by the Supreme Court of the State as being the common-law thereof. The evidence adduced here fails to show any such thing; but to the contrary it is made to appear from the testimony of Judge Arnold and by the decisions of the Supreme Court of Mississippi which were introduced on the trial below that that court is in full accord with this one in this respect. Indeed, if any thing, those decisions go further than this court has ever gone in applying the doctrine of fellow-servants to the exemption of railway companies from liability to one servant for injuries resulting from the negligence of another, holding in one case that a hostler whose only duty it was to supply an engine with sufficient sand before turning it over to the engineer to go on the road is a fellow-servant of the engineer for whose negligent failure to supply the same the company would not be liable.–L. & N. R. R. Co. v. Petty, 67 Miss. 255; in another, that a section foreman and a laborer working under him were fellow-servants in such sort that their common master would not be liable for the negligence of the former in attempting to repair a fishbar which he ought to have discarded and applied for a new one.—Lagrave v. Mobile & Ohio R. R. Co. 67 Miss. 532; and in yet another case, that a section foreman and train-man are fellow-servants in respect of the Ifegligence of the former unknown to the company in failing to keep the track in repair, and that an engineer on a passing train who was injured in consequence could not recover against common employer.–N. 0. J. & G. N. R. R. Co. v. Hughes, 49 Miss. 258; and the doctrine of this case is said by Mr. McKinney to be "substantially the rule recognized by the English common-law decisions." McKinney on Fellow-servants, p. 82 § 29. See also McMaster v. Illinois Central R. R. Co. 65 Miss. 264.

          19

          [131] Proceeding therefore on the presumptions we are authorized to indulge and also on the evidence adduced in this case as to the law of Mississippi in this connection, and upon the testimony most favorable to the plaintiff as to the cause of his injuries, we feel entirely safe in declaring that plaintiff has shown no cause of action under the common-law as it is understood and applied both here and in Mississippi.

          20

          It is, however, further contended that the plaintiff, if his evidence be believed, has made out a case for the recovery sought under the Employer's Liability Act of Alabama, it being clearly shown that there is no such, or similar law of force in the State of Mississippi. Considering this position in the abstract, that is dissociated from the facts of this particular case which are supposed to exert an important influence upon it, there can not be two opinions as to its being unsound and untenable. So looked at, we do not understand appellee's counsel even to deny either the proposition or its application to this case, that there can be no recovery in one State for injuries to the person sustained in another unless the infliction of the injuries is actionable under the law of the State in which they were received. Certainly this is the well established rule of law subject in some jurisdictions to the qualification that the infliction of the injuries would also support an action in the State where the suit is brought, had they been received within that State. 3 Am. & Eng. Encyc. of Law, p. 508-9; Hyde’s Admr. v. Wabash, St. Louis & Pacfic Ry. Co. 61 Iowa, 441; East Tenn. Va. & Gu. R. R. Co. v. Lewis., 14 S. W. Rep. 603; Buckles v. Ellers, 72 Incl. 220; Willis v. Mo. Pac. Ry. Co. 61 Texas, 432; Woodward v. M.S. & N. I R. R. Co. 10 Ohio St. 121; Whitford v. Panama Railroad Co. 23 N. Y. 465; Debovois v. .N. Y. L. E. & W. R. R. Co. 98 N. Y. 377; N C. & St. L. Ry. Co..v. Foster, 11 Amer. & Eng. R. R. Cas. 180; 2 Rover on Railroads, p. 1149 ; Kahl v. M & C. R. R. Co. 95 Ala. 337; C. St. L. & JJio. R. R. Co. v. Doyle, 60 Miss. 977; Davis 1'. N. Y. & N E. R. R. Co. 143 Mass. 301; LeForest v. Tolman, 117 Mass. 109; s. c. 19 Amer. Rep. 400; Lime­ killer v. H. & St. J. R. R. Co. 33 Kan. 83; The Scotland, 105 U. S. 24; The Santa Cruz, 1 C. Rob. 50; A. '1'. & S. F. R. R. Co. v. Moore, 11 Am. & Eng. R. R. Cas. 243.

          21

          But it is claimed that the facts of this ease take it out of the general rule which the authorities cited above abundantly support, and authorize the courts of Alabama to subject the defendant to the payment of damages under section 2590 of the Code, although the injuries counted on were sustained in Mississippi under circumstances which involved no liability on the defendant by the laws of that State.

          22

          [132] This insistence is in the first instance based on that aspect of the evidence which goes to show that the negligence which produced the casualty transpired in Alabama, and the theory that wherever the consequence of that negligence manifested itself, a recovery can be had in Alabama. We are referred to no authority in support of this proposition, and exhaustive investigation on our part has failed to disclose close any. There are at least two well considered cases against it, one of which involved an effort to recover for personal injuries sustained in Alabama under circumstances which afforded no cause of action in Alabama in the courts of Tennessee where the causal negligence occurred and where also had the negligence manifested itself in the results complained of there, the plaintiff would have been entitled to recover. The accident happened on a train going from Nashville to Chattanooga, in Tennessee, on a railway which runs for a comparatively short distance through Alabama. The negligence relied on consisted in the failure of employees of the defendant charged in that behalf to discover and remedy a defective brake before the train left Nashville as well as during its passage through Tennessee. While the train was running through Alabama, a brakeman was killed in consequence of the defect in this brake. All this is precisely on all fours with our case in those of its aspects most favorable to the plaintiff. That plaintiff, the court conceded, would have had a good cause o · action under the law of Tennessee, the place of the negligence, if his intestate had been injured within its limits. So here, the plaintiff on one aspect of the evidence would have had a good cause for ac ion in Alabama, the place of the negligence, had he been injured in Alabama. But it was found in that case that the law of Alabama gave no cause of action for the negligent failure to inspect the appliances used in operating a train, but held the brakeman and the inspectors to be fellow-servants in respect thereto, just as here the laws of Mississippi afforded no redress for the consequence of such negligence, though our statutes have since the Tennessee decision provided therefor; and it was held on the authority of Mobile & Ohio R. R. Co. v. Thomas, 42 Ala. 672, that there could have been no recovery in Alabama and that of consequence no cause of action existed in Tennessee, the court saying: '·There is no question but the laws of Alabama· · · controlled the rights of the parties in this case, and whether there was error in this part of the charge (referring to an instruction as to defendant's liability on the negligence shown) as given, or the refusal of the specific instructions asked for (substantial-[133]-ly that the negligence of a car inspector from which a brakeman suffers injury is no ground for action against their common employer,) depends wholly upon the laws of that State. Nashville, Chattanooga & St. Louis By. Co. v. Foster, 10 Lea, 352 ; s. o. 11 Amer. & Eng. E. E. Ca's. 180. In the other case the precise point here under consideration was brought before the Supreme Court of Mississippi, in an action instituted in that State sounding in damages for fatal injuries inflicted upon plaintiff's intestate in the State of Tennessee. It was insisted that inasmuch as the death of the deceased resulted from the negligent failure of a train dispatcher in Mississippi to give requisite orders to the trainmen at a certain point in Tennessee, the rights of the parties were de­ terminable by the laws of Mississippi the place of the disastrous negligent omission. But the court held to the contrary, saying: "The right of the appellee is determinable by the laws of Tennessee, in which State the killing of her husband occurred. The view that no recovery could be had here, except for a result traceable to an omission of duty in Mississippi is unfounded. Physical force proceeding from this State and inflicting injury in another State might give rise to an action in either State, and vice versa but the omission of duty in Mississippi cannot transfer a consequence of it manifested physically in another State to Mississippi. The cases of injuries commenced in one jurisdiction and completed in another illustrate our views on this subject. The true view is that the legal entity called the corporation is omni-present on its railroad, and the presence or absence of negligence with respect to an occurrence at any point of the line is not to be resolved by the place at which an officer or employe was stationed for duty. The question is as to duty operating effectually at the place where its alleged failure caused harm to result. The locality of the collision was in Tennessee. It was there, if any where, that the company was remiss in duty, for there is where its proper caution should have been used."–Chicago, St. Louis & New Orleans R. R. Co. v. Doyle, 60 Miss. 977, 984. If this doctrine was properly applied to the facts of that case where the act to be performed, the failure to perform which caused the in­ jury, could only be performed at a point in Mississippi and by an employe who was stationed and remained at that place, it would seem to address itself with more force to the case at bar where it appears the corporation was in fact present with the train and with the defective link every inch of the journey from Birmingham to the point of the accident in the person of the conductor and other trainmen who were charg-[134]-ed with the duty all along the line of discovering and removing the unsafe appliances.

          23

          The position of the Mississippi court appears to us to be eminently sound in principle and upon logic. It is admitted, or at least cannot be denied, that negligence of duty unproductive of damnifying results will not authorize or support a recovery. Up to the time train passed out of Alabama no injury had resulted. For all that occurred in Alabama, therefore, no cause of action whatever arose. The face which created the right to sue, the injury without which confessedly no action would lie anywhere, transpired in the State of Mississippi. It was in that State, therefore, necessarily that the cause of action, if any, arose; and whether a cause of action arose and existed at all or not must in all reason be determined by the law which obtained at the time and place when and where the fact which is relied on to justify a recovery transpired. Section 2590 of the Code of Alabama had no efficiency beyond the lines of Alabama. It cannot be allowed to operate upon facts occurring in another State so as to evolve out of them rights and liabilities which do not exist under the law of that State which is of course paramount in the premises. ·where the facts occur in Alabama and a liability becomes fixed in Alabama, it may be enforced in another State having like enactments, or whose policy is not opposed to the spirit of such enactments, but this is quite a different matter. This is hut enforcing the statute upon facts to which it is applicable all of which occur within the territory for the government of which it was enacted. Section 2590 of the Code, in other words is to be interpreted in the light of universally recognized principles of private international or interstate law, as if its operation had been expressly limited to this State and as if its first line read as follows: ''When a personal injury is received in Alabama by a servant or employee," &c., &c. The negligent infliction of an injury here under statutory circumstances creates a right of action here, which, being transitory, may be enforced in any other State or country the comity of which admits of it; but for an injury inflicted elsewhere than in Alabama our statute gives no right of recovery, and the aggrieved party must look to the local law to ascertain what his rights are. Under that law this plaintiff had no cause of action, as we have seen, and hence he has no rights which our courts can enforce, unless it be upon a consideration to be presently adverted to. We have not been inattentive to the suggestions of counsel in this connection, which are based upon that rule of the statutory and common crim-[135]-inal law under which a murderer is punishable where the fatal blow is delivered, regardless of the place where death ensues.—Green v. State, 66 Ala. 40. This principle is patently without application here. There would be some analogy if the plaintiff had been stricken in Alabama and suffered in Mississippi, which is not the fact. I here is, however, an analogy which is afforded by the criminal law, but which points away from the conclusion appellee's counsel desire us to reach. This is found in that well established doctrine of criminal law, that where the unlawful act is committed in one jurisdiction or State and takes effect-produces the result which it is the purpose of the law to prevent, or, it having ensued, punish for-in another jurisdiction or State, the crime is deemed to have been committed and is punished in that jurisdiction or State in which the result is manifested, and not where the act was committed. 1 Bish. Cr. Law, § 110 et seq.; 1 Bish. Cr. Pro. §53 et seq.

          24

          Another consideration-that referred to above-it is insisted, entitles this plaintiff to recover here under the Employer's Liability Act for an injury inflicted beyond the territorial operation of that act. This is claimed upon the fact that at the time :plaintiff was injured he was in the dis­ charge of duties which rested on him by the terms of a contract between him and defendant which had been entered into in Alabama, and, hence, was an Alabama contract, in connection with the facts that plaintiff was and is a citizen of this State, and the defendant is an Alabama corporation. These latter facts-of citizenship and domicile respectively of plaintiff and defendant–are of no importance in this connection, it seems to us, further than this: they may tend to show that the contract was made here, which is not controverted, and if the plaintiff has a cause of action at all, he, by reason of them, may prosecute it in our courts. They have no bearing on the primary question of existence of a cause of action, and as that is the question before us, we need not further advert to the fact of plaintiff's citizenship or defendant's domicile.

          25

          The contract was that plaintiff should serve the defendant in the capacity of a brakeman on its freight train between Birmingham, Alabama, and Meridian, Mississippi, and should receive as compensation a stipulated sum for each trip from Birmingham to Meridian and return. The theory is that the Employer's Liability Act became a part of this contract; that the duties and liabilities which It prescribes became contractual duties and liabilities, or duties and liabilities springing out of the contract, and that these duties [136] attended upon the execution whenever its performance was required—in Mississippi as well as in Alabama—and that the liability prescribed for a failure to perform any of such duties attached upon such failure and consequent injury wherever it occurred, and was enforceable here because imposed by an Alabama contract notwithstanding the remission of duty and the resulting injury occurred in Mississippi, under whose laws no liability was incurred by such remission. The argument is that a contract for service is a condition precedent to the application of the statute, and that "as soon as the contract is made the rights and obligations of the parties, under the Employer's Act, became vested and fixed," so that "no subsequent repeal of the law could deprive the injured party of his rights nor discharge the master from his liabilities," &c., &c. I£ this argument is sound, and it is sound if the duties and liabilities pre­ scribed by the act can be said to be contractual duties and obligations at all, it would lead to conclusions the possibility of which has not hitherto been suggested by any court or law writer, and which, to say the least, would be astounding to the profession. For instance: If the act of 1885 becomes a part of every contract of service entered into since its passage, just "as if such law were in so many words expressly included in the contract as a part thereof," as counsel insist it did, so as to make the liability of the master to pay damages from injuries to a fellow-servant of his negligent employe, a contractual obligation, no reason can be conceived why the law existing in this regard prior to the pas­ sage of that act did not become in like manner a part of every contract of service then entered into, so that every such contract would be deemed to contain stipulations for the non-liability of the master for injuries flowing from the negligence of a fellow-servant, and confining the injured servant's right to damage to a claim against his negligent fellow-servant-the former, in other words, agreeing to look alone to the latter. There were many thousands of such contracts existing in this country and England at the time when statutes similar to section 2590 of our Code were enacted, there were indeed many thousands of such contracts existing in Alabama when that section became the law of this State. Each of these contracts, if the position of plaintiff as to our statute being embodied into the terms of his contract so that its duties were contractual duties, and its liabilities contractual obligations to pay money can be maintained, involved the assurances of organic provisions, State and Federal, of the continued non-liability of the master for the [137] negligence of his servants, notwithstanding the passage of such statutes. Yet these statutes were passed, and they have been applied to servants under pre-existing contracts as fully as to servants under subsequent contracts, and there has never been a suggestion even in any part of the commonlaw world that they were not rightly so applied. If plaintiff's contention is well taken, many a judgment has gone on the rolls in this State, and throughout the country, and has been satisfied, which palpably overrode vested rights without the least suspicion on the part of court or counsel that one of the most familiar ordinances of the fundamental law was being violated. Nay more, another result not heretofore at all contemplated would ensue. Contracts for serving partly in Alabama might be now entered into in adjoining States where the common-law rule still obtains, as in Mississippi, for instance, where the servant has no right to recover for the negligence of his fellow, and the assumption of this risk under the law becoming, according to the argument of counsel, a contractual obligation to bear it, such contracts would be good in Alabama and as to servants entering into them, our statute would have no operation even upon negligence and resulting injury within its terms occurring wholly in Alabama. And on the other hand, if this defendant is under a contractual obligation to pay the plaintiff the dam­ ages sustained by him because of the injury inflicted in Mississippi, the contract could be of course enforced in Mississippi and damages there awarded by its courts, not­ withstanding the law of that State provides that there can be no recovery under any circumstances whatever by one servant for the negligence of his fellow employe. We do not suppose that such a proposition ever has been or ever will be made in the courts of Mississippi. Yet that it should be made and sustained is the. natural and necessary sequence of the position advanced in this case. These considerations demonstrate the infirmity of plaintiff's position in this connection, and serve to show the necessity and propriety of the conclusion we propose to announce on this part of the case. That conclusion is, that the duties and liabilities incident to the relation between the plaintiff and the defendant which are involved in this case, are not imposed by and do not rest in or spring from the contract between the parties. The only office of the contract, under section 2590 of the Code, is the establishment of a relation between them, that of master and servant; and it is upon that relation, that incident or consequence of the contract, and not upon the rights of the parties under the contract, that our statute operates. The law is not con-[138]-cerned with the contractual stipulations, except in so far as to determine from them that the relation upon which it is to operate exists. Finding this relation the statute imposes certain duties and liabilities on the parties to it wholly regardless of the stipulations of the contract as to the rights of the parties under it, and, it may be, in the teeth of. such stipulations. It is the purpose of the statute and must bethe limit of its operation to govern persons standing in the relation of master and servants to each other in respect of their conduct in certain particulars within the State of Alabama. Mississippi has the same right to establish govern­ mental rules for such persons within her borders as Alabama; and she has established rules which are different from those of our law. And the conduct of such persons toward each other is, when its legality is brought in question, to he adjudged by the rules of the one or the other States as it falls territorially within the one or the other. The doctrine is like that which prevails in respect of other relations, as that of man and wife. Marriage is a contract. The entering into this contract raises up certain duties and imposes certain liabilities in all civilized countries. What these duties and liabilities are at the place of the contract are determinable by the law of that place ; but when the parties go into other jurisdictions, the relation created by the contract under the laws of the place of its execution will he recognized, but the personal duties, obligations and liabilities incident to the relation are such as exist under the law of the jurisdiction in which an act is done or omitted as to the legality, effect or consequence of which the question arises. It might as well he said where there is a marriage in Alabama and the parties remove to Mississippi, and the wife there makes a contract which is void in Mississippi but valid under our statute, and subsequently they return to Alabama, that our courts will enforce that contract, or if such husband while in Mississippi does an act which is innocuous and lawful in that State, but which if done here would entail liability upon him, and the parties afterwards return here, that the liability imposed by our laws could be enforced here, because the parties entered into the contract here, as that a master is liable here for conduct towards his servant which was proper, or at least involved no liability, where it took place, simply because the contract which created the relation was entered into in this State. The whole argument is at fault. The only true doctrine is that each sovereignty, state or nation, has the exclusive power to finally determine and declare what acts or [139] omission in the conduct of one to another, whether they be strangers or sustain relations to each other which the law recognizes, as parent and child, husband and wife, master and servant, and the like, shall impose a liability in damages for the consequent injury, and the courts of no other sovereignty can impute a damnifying quality to an act or omission which afforded no cause of action where it transpired. These propositions find illustration and support in the case of Whitford v. The Panama R. R. Co., 23 N.Y. 465, where the relation involved was that of carrier and passenger, a relation which had been created by a contract made in New York, between a corporation and a citizen thereof for carriage, commencing in that State and ending in San Francisco, via Panama and over the Panama railroad. The passenger was killed through the fault of the corporation's servants while being transported along this railroad. The law of New York gave to the personal representative of a person whose death was caused by the wrongful act or omission of another, a right of action therefor in all cases where the deceased, had the injury fallen short of death, could have recovered. It did not appear that the laws of New Granada where the injury was inflicted, authorized any recovery on the facts alleged and proved. It was urged, as here, that the domicile of the parties and the fact that they contracted in New York took the case out of general rules as to territorial limitations upon the operation of statutes, but the plaintiff was non-suited, it being held in effect that the laws of New Granada where controlling as to the duties and liabilities incident to the relation which existed between them, while the contract of carriage was being performed in that country, and that the carrier so far as care and diligence were concerned owed the passenger no duties there except such as were imposed upon the relation by the local law, and that no liability for negligence and its results not prescribed by that law rested on the company. And the court, inter alia, said: ·'Suppose the government of New Granada to have enacted that the proprietors of a railroad company should not be responsible for the negligence of its servants, provided there was no want of due care in selecting them; it could not be pretended that its will could be set at naught by prosecuting the corporation in the courts of another State where the law was different. . . . The true theory is, that no suit whatever respecting this injury could be sustained in the courts of this State, except pursuant to the law of international comity. By that law foreign contracts and foreign transactions, out of which liabilities have arisen, [140] may be prosecuted in our tribunals by the implied assent of the government of this State ; but in all such cases, we administer the foreign law as from the proofs we find it to be, or as without proofs, we presume it to be." So, in the case of Gray v. Jackson & Co., 51 N. H., 9, there was a contract of affreightment by the terms of which goods were to be carried out of one State into and through other States. They were lost in a State other than that in which the con­ tract was made and the carriage commenced. By the law of the place of the contract the carrier was liable for the loss under the circumstances shown in evidence had it occurred in that State. By the law of the State where the loss occurred, however, the carrier was not liable. In an action for the loss prosecuted in the State of the contract, the law, not of that State, but of the place of the loss which operated as to the particular transaction on the relation of shipper and carrier and prescribed the duties and liabilities incident to that relation in that State, regardless of the place where the contract creating the relation was entered into, was applied and made to determine the rights of the parties to be other than they were under the law of the place of the contract which was also, as here, the place of the forum.

          26

          The foregoing views will suffice to indicate the grounds of our opinion that the rights of this plaintiff are determinable solely by the law of the State of Mississippi, and of our conclusion that upon no aspect or tendency of the evidence as to the circumstances under which the injury was sustained and as to the laws of Mississippi obtaining in the premises was the plaintiff entitled to recover.

          27

          The general affirmative charge requested for defendant should have been given. The other very numerous assignments of error need not be considered.

          28

          For the error in refusing to instruct the jury to find for the defendant if they believed the evidence, the judgment is reversed and the cause will be remanded.

        • 1.1.1.2 Powell v. Sappington

          1
          495 So.2d 569 (1986)
          2
          Billy L. POWELL, et al.
          v.
          Ronald T. SAPPINGTON, et al.
          3
          84-1230.
          4

          Supreme Court of Alabama.

          5
          August 29, 1986.
          6

          James P. Rea and S. Shay Samples of Hogan, Smith, Alspaugh, Samples & Pratt, Birmingham, for appellants.

          7

          Charles E. Sharp and Marcia E. Wright of Sadler, Sullivan, Sharp & Stutts, Birmingham, for appellees.

          8
          HOUSTON, Justice.
          9

          This case calls for the application of choice of law principles in a workmen's compensation context. The parties ask this Court to answer the following question: Does the filing of a claim and receipt of benefits pursuant to the Alabama Workmen's Compensation Act by one who has been injured in another state give rise to an exception to the Alabama conflicts rule of lex loci delicti for purposes of that person's co-employee suit; i.e., will Alabama law control disposition of the suit rather than the law of the state of injury?

          10

          The undisputed facts of this case are as follows:

          11

          Plaintiff Billy Powell, a resident of Alabama, was employed as a truck driver by Barber Pure Milk Company, an Alabama corporation. While en route back to Alabama from a pick-up of milk in Georgia, Powell wrecked his truck in Monroe, Georgia, and was injured. As a result, Powell filed for and received disability benefits pursuant to the Alabama Workmen's Compensation Act. Code 1975, § 25-5-1, et seq.

          12

          Powell then brought an action in Alabama against two of his co-employees, Ronald Sappington and Coster Smith, for their alleged negligence in failing to inspect, repair, service, and maintain his truck. Powell's wife Carolyn joined in that suit as co-plaintiff, alleging loss of her husband's services.

          13

          Sappington and Smith moved for summary judgment on the grounds that Georgia law applies to the action against them and that Georgia law forbids co-employee suits. The trial court granted the motion and entered a final judgment pursuant to Rule 54(b), Ala.R.Civ.P.

          14

          The Powells appeal, arguing that because Powell elected to pursue his remedy under the Alabama Workmen's Compensation Act rather than under the Georgia Workmen's Compensation Act, Alabama law rather than Georgia law applies to their action against Sappington and Smith. Because Alabama law permits co-employee suits, they argue that summary judgment was improperly entered. We do not agree.

          15

          This Court reaffirmed in Norris v. Taylor, 460 So.2d 151 (Ala.1984), that the conflicts rule of lex loci delicti applies to tort [570] actions brought in this state. As the Court stated in that decision, "[u]nder [lex loci delicti], an Alabama court will determine the substantive rights of an injured party according to the law of the state where the injury occurred." 460 So.2d at 152. Application of this rule in the instant case would require us to follow the law of Georgia, the state where Powell's injury occurred. In doing so, we would be constrained to affirm the trial court's entry of summary judgment, since Georgia law forbids co-employee suits where workmen's compensation is available.[1]

          16

          In essence, the Powells argue that an exception to the lex loci delicti rule is applicable in a workmen's compensation context where an injured employee invokes that exception by electing to accept benefits under the workmen's compensation act of his state of employment and not of the state where the injury occurred. Recognition of such an exception, however, would create a broad avenue for abuse. As another court has stated, "[adoption of this exception would allow] a claimant with a choice of jurisdictions in a compensation claim ... to juggle with the substantive law uniformly applied ... and thus defeat its application." Wardell v. Richmond Screw Anchor Co., 133 Ga.App. 378, 382, 210 S.E.2d 854, 857 (1974). We therefore hold that a claimant who is injured in another state cannot evade the application of the lex loci delicti rule merely by filing his workmen's compensation claim in Alabama.

          17

          Although we reject the exception claimed by the Powells, our inquiry is not yet at an end. It is eligibility for benefits under the workmen's compensation act of the state of the employee's injury, not whether a claim for benefits was made or received in Alabama, which determines whether a bar to a common law action exists. Wilson v. Fraser, 353 F.Supp. 1 (D.Md.1973); Security Insurance Group v. Plank, 133 Ga.App. 815, 212 S.E.2d 471 (1975). It becomes necessary, therefore, to determine whether Billy Powell was eligible for compensation under the Georgia Act. If not, he may be able to pursue his co-employee suit under principles of Georgia law. If so, however, he will be subject to its bar against co-employee suits.

          18

          Georgia Code 1981, § 34-9-1, defines "employee" for purposes of workmen's compensation as "every person in the service of another under any contract of hire or apprenticeship...." It does not by its terms exclude coverage for nonresident employees of nonresident employers. Moreover, the Georgia Court of Appeals in Security Insurance Group v. Plank, supra, held that, under Georgia law, jurisdiction in a workmen's compensation case attaches when an employee suffers an accidental injury in Georgia, regardless of the employee's residence or where he contracted for employment. Thus, nothing in the law of Georgia would have prevented Billy Powell from receiving workmen's compensation benefits under the Georgia Act. That being so, the Powells' suit against Sappington and Smith is prohibited by Georgia law; thus, the trial court's entry of summary judgment in favor of Sappington and Smith was proper.

          19

          The judgment of the trial court is due to be, and it is hereby, affirmed.

          20

          AFFIRMED.

          21
          TORBERT, C.J., and MADDOX, SHORES, BEATTY and STEAGALL, JJ., concur.
          22
          JONES, ALMON and ADAMS, JJ., dissent.
          23
          JONES, Justice (dissenting).
          24

          I respectfully dissent.

          25

          [571] Employed in Alabama and injured in Georgia, Powell could have filed for workmen's compensation benefits under either the law of Alabama (the site of his employment), or the law of Georgia (the site where the injury occurred). See, Code 1975, § 25-5-35. See, also, Restatement (Second) Conflict of Laws § 181 (1969). Because he elected to pursue his remedy under the Alabama Workmen's Compensation Act, Powell invoked that Act in its entirety. Therefore, Powell's right to a cause of action for personal injury against his co-employees is also derived from the Alabama statute:

          26
          "Where the injury or death for which compensation is payable under this chapter was caused under circumstances also creating a legal liability for damages on the part of any party other than the employer, whether or not such party is subject to the provisions of this chapter, the employee, or his dependents in case of his death, may proceed against the employer to recover compensation under this chapter or may agree with the employer upon the compensation payable under this chapter, and, at the same time, may bring an action against such other party to recover damages for such injury or death, and the amount of such damages shall be ascertained and determined without regard to this chapter." Code 1975, § 25-5-11. (Emphasis supplied.)
          27

          The majority cites our recent reaffirmance of the conflict of laws rule of lex loci delicti as applied to tort actions in Alabama (see Norris v. Taylor, 460 So.2d 151 (Ala.1984)) as support for its holding that Georgia law governs Powell's right to sue his co-employees. I have no problem with this general rule, in a non-workmen-compensation context, requiring that an injured party's substantive rights be determined by the law of the state where the injury occurred, even where, as here, the alleged negligence occurred in Alabama. Indeed, this rule was correctly applied in Norris, because in that case "the record fail[ed] to disclose any allegations or proof that the employee [had] pursued, or [was] pursuing, his workmen's compensation claims under the Alabama Act." See Norris, 460 So.2d at 153 (Jones, J., concurring in the result). There is, however, a critical distinction between the facts in Norris and the facts of the instant case which, I believe, requires us to apply here the workmen's compensation exception to the general conflict of laws rule.

          28

          By electing to file for and accept benefits under the workmen's compensation law of his state of employment (here, Alabama), and not under the workmen's compensation law of the state in which he was injured, Powell necessarily subjected himself to Alabama's entire workmen's compensation statute. He took its limitations and restrictions, as well as its benefits. Western Union Telegraph Co. v. George, 239 Ala. 80, 194 So. 183 (1940). In Norris, there was no affirmative showing that the injured employee claimed workmen's compensation benefits in Alabama (the state of his employment) rather than in Kentucky (the state where the injury occurred). Powell, however, did file for and did receive workmen's compensation benefits in Alabama— the state of his employment; therefore, he is entitled to the substantive right of a cause of action for personal injury against his co-employees. § 25-5-11. See, also, Elston v. Industrial Lift Truck Co., 420 Pa. 97, 216 A.2d 318 (1966). (The accident in question occurred before the effective date of the 1984 amendment restricting third-party claims against co-employees. See Act No. 85-41, § 3, Second Special Session, 1984-85 Ala. Acts.)

          29

          From the very inception of this State's Workmen's Compensation Act in 1919, an injured employee's right to recover from a third party has been regulated by the Act. Originally, a "third party" did not include any employer covered by the Act. Harris v. Louisville & N.R. Co., 237 Ala. 366, 186 So. 771 (1939). The 1939 amendment redefined "third party" to include "any party other than the employer, whether or not such party is subject to the provisions of this chapter." Act 661, § 8, Ala. Acts 1939; now codified at § 25-5-11(a), 1975 Code. The 1984 amendment (effective Feb. 1, 1985) further restricts third-party claims against co-employees, allowing recovery [572] for willful injury only. In other words, the public policy of the Workmen's Compensation Act, which subjects employers and employees to its provisions, also controls the right of injured employees to bring third-party claims. Here, having elected coverage under Alabama's Act, Powell is entitled to all its provisions, including the third-party provisions of § 25-5-11. The "forum shopping" evil described in the majority opinion is hardly justified in light of the public policy expressed in § 25-5-35 that gives an injured employee the right to proceed under Alabama's Workmen's Compensation Act even if he first recovers under the workmen's compensation act of another state. Sager v. Royce Kershaw Co., 359 So.2d 398 (Ala.Civ.App.1978).

          30

          In my opinion, the majority has misapplied the traditional conflict of laws rule to the facts of this case. The traditional lex loci delicti rule still has full application to the trial of the third party common law action. It is the Georgia law, not the Alabama law, that governs the trial of this case in Alabama. But nothing in this conflict of laws rule requires us to apply the statutory law of Georgia—the workmen's compensation act not here invoked—to exclude the injured employee's right to bring the third party action. See Norris, 460 So.2d at 153 (Jones, J., concurring in the result).

          31
          ALMON and ADAMS, JJ., concur.
          32

          [1]Georgia Code 1981, § 34-9-11, which provides for co-employee immunity, reads in pertinent part as follows:

          33

          "The rights and remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents, or next of kin, at common law or otherwise, on account of such injury, loss of service, or death; provided, however, that no employee shall be deprived of any right to bring an action against any third-party tortfeasor, other than an employee of the same employer...." (Emphasis added.)

        • 1.1.1.3 Ling v. Jan's Liquors

          1
          237 Kan. 629 (1985)
          2
          703 P.2d 731
          3
          LYLLIS LING, Appellant,
          v.
          JAN'S LIQUORS, Appellee.
          4
          No. 56,921
          5

          Supreme Court of Kansas.

          6
          Opinion filed July 17, 1985.
          7

          Donald W. Vasos, of Vasos, Kugler & Dickerson, of Kansas City, argued the cause and Stephen G. Dickerson, of the same firm, was with him on the briefs for appellant.

          8

          Mark V. Parkinson, of Payne & Jones, Chartered, of Olathe, argued the cause, and Keith Martin, of the same firm, was with him on the brief for appellee.

          9

          [630] The opinion of the court was delivered by

          10
          SCHROEDER, C.J.:
          11

          Lyllis Ling (plaintiff-appellant) brought this action in the trial court alleging negligence on the part of Jan's Liquors (defendant-appellee) in selling alcohol to a minor whose intoxication allegedly resulted in a car accident causing plaintiff's injury. Ling appeals from an order and judgment dismissing her complaint against defendant on the ground that it fails to state a claim upon which relief can be granted pursuant to K.S.A. 60-212(b). We affirm the decision of the trial court.

          12

          In ruling on a motion to dismiss for failure to state a claim upon which relief can be granted, Ling is afforded the safeguard of having all her allegations taken as true and all inferences drawn favorably to her. Wirt v. Esrey, 233 Kan. 300, 662 P.2d 1238 (1983). Applying that principle, we look to the complaint for the facts. It alleges:

          13

          At approximately 1 a.m., on Sunday, February 3, 1980, Ling was driving her automobile east on Johnson Drive in Fairway, Johnson County, Kansas, when the vehicle became disabled. Ling left the vehicle and was standing beside it when she was struck by a vehicle driven by Richard Shirley. At that time Shirley was nineteen years old and a minor under Missouri law governing the sale of intoxicating liquors to minors.

          14

          At the time of the accident, Shirley was operating a motor vehicle under the influence of alcohol. A blood alcohol examination taken at Shawnee Mission Medical Center, Overland Park, Kansas, showed a blood alcohol concentration of 0.30 percent by weight.

          15

          The petition also alleges that Jan's Liquors, a Missouri retail liquor establishment, sold or provided to Richard Shirley on the night of February 2, 1980, an alcoholic beverage which rendered him incapable of operating a motor vehicle.

          16

          On February 3, 1982, Ling filed a petition in the District Court of Johnson County, Kansas, seeking damages for the injuries she received which resulted in the amputation of both her legs. On July 20, 1983, the defendant filed a motion to dismiss pursuant to K.S.A. 60-212(b).

          17

          The district court granted the motion to dismiss, concluding (1) "there is no liquor vendor liability in Kansas and there is no indication that the Kansas Supreme Court will impose the same"; (2) Kansas law and not Missouri law should apply to the [631] instant action; and (3) the Kansas long-arm statute would apply to give the court in personam jurisdiction in the case.

          18

          Initially, we must ascertain whether the trial court erred in finding the Kansas long-arm statute (K.S.A. 60-308b) applied to give it in personam jurisdiction over Jan's Liquors, a nonresident defendant. The trial court based its finding on K.S.A. 60-308(b)(7), which provides:

          19
          "(b) Submitting to jurisdiction — process. Any person, whether or not a citizen or resident of this state, who in person or through an agent or instrumentality does any of the acts hereinafter enumerated, thereby submits the person and, if an individual, the individual's personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of these acts:
          20

          ....

          21
          "(7) causing to persons or property within this state any injury arising out of an act or omission outside of this state by the defendant if, at the time of the injury either (A) the defendant was engaged in solicitation or service activities within this state; or (B) products, materials or things processed, serviced or manufactured by the defendant anywhere were used or consumed within this state in the ordinary course of trade or use."
          22

          The defendant argues that this section of the Kansas long-arm statute is limited to products liability cases. We agree.

          23

          In order for personal jurisdiction to be obtained under K.S.A. 60-308(b)(7), the defendant must have had the type of contact within the state as defined in either alternative (A) or (B). In other words, the defendant must either have been engaged in solicitation or service activities within the state, or the product which was the cause of injury must have been used or consumed within the state in the ordinary course of trade or use. In Tilley v. Keller Truck & Implement Corp., 200 Kan. 641, 438 P.2d 128 (1968), this court recognized that the legislative intent of K.S.A. 60-308(b)(7) was to grant in personam jurisdiction to the courts of this state over those who engage in the manufacture, sale, or servicing of products if they receive or can anticipate some direct or indirect financial benefit from the sale, trade, use or servicing of their products within this state.

          24

          We find that the sale by an out-of-state liquor vendor to an occasional Kansas customer does not fit within the provisions of either alternative (A) or (B). Moreover, based on our analysis of legislative intent in Tilley, we find the liquor vendor is not the kind of defendant the legislature intended to reach when it [632] enacted K.S.A. 60-308(b)(7). Therefore, the trial court erred by relying on K.S.A. 60-308(b)(7).

          25

          An Illinois court met with a similar factual setting and jurisdictional issue in Wimmer v. Koenigseder, 128 Ill. App.3d 157, 470 N.E.2d 326 (1984). In that case, the plaintiff brought suit on behalf of the decedent whose death resulted from injuries she received in a car accident in Illinois. The defendant-driver who caused the accident, a minor for purposes of Illinois law, had been served alcohol in a nearby Wisconsin tavern where he was of legal drinking age. The plaintiff brought suit in Illinois against the Wisconsin liquor vendor. The trial court dismissed for lack of jurisdiction. The appellate court reversed and held, in part, that Illinois had in personam jurisdiction under the section of its long-arm statute which provides jurisdiction over any person who commits a "tortious act within this State." Ill. Ann. Stat. ch. 110, § 2-209(a)(2) (Smith-Hurd 1983). The court stated, "For the purposes of the long-arm statute, `physical presence is not necessary for the commission of a tortious act within this State; ... the place of a wrong is where the last event takes place which is necessary to render the actor liable.' [Citations omitted.]" 470 N.E.2d at 331. The court found the "last event" was the injury in Illinois. The fact that the sale occurred entirely in another state was of no consequence. The court further found that due process requirements of "minimum contracts" were met.

          26

          K.S.A. 60-308(b)(2) is similar to the provision relied on by the Illinois court. It provides jurisdiction over any person who commits a "tortious act within this state."

          27

          In the case at bar, the negligent act (selling liquor to a minor) was committed outside this state, while the injury occurred within this state. Therefore, in order for K.S.A. 60-308(b)(2) to apply, it must be found that an injury which occurs in this state as a result of a negligent act outside this state is equivalent to the commission of a "tortious act within the state." This is a question of first impression in Kansas.

          28

          Vernon's Kansas C. Civ. Proc. § 60-308 (1965) contains several articles discussing the Kansas long-arm statute. Each article concludes that if the injury caused by a tortious act occurs within this state, even though the first part of the tortious act took place outside the state, the occurrence of the injury is sufficient for establishing personal jurisdiction under (b)(2).

          29

          Other jurisdictions, in interpreting provisions similar to K.S.A. [633] 60-308(b)(2), have given the term "tortious act" a broad interpretation, deeming it to imply the whole continuum of actions involved, rather than a single act. Vandermee v. Dist. Ct., 164 Colo. 117, 433 P.2d 335 (1967); see also Jack O'Donnell Chevrolet, Inc. v. Shankles, 276 F. Supp. 998 (N.D. Ill. 1967); Gray v. Amer. Radiator & Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961). Under this interpretation, the "tortious act" is not complete until the injury has occurred. In other words, the "tortious act" is deemed to have occurred in the state where the injury occurs.

          30

          In J.E.M. Corp. v. McClellan, 462 F. Supp. 1246 (D. Kan. 1978), it was held that a fraudulent misrepresentation made from without the jurisdiction (telephone calls) which cause tortious injury within the jurisdiction constituted a "tortious act" in this state within the meaning of K.S.A. 60-308(b)(2). The court found that a sufficient constitutional basis for the exercise of jurisdiction existed and arose out of the intentional tortious act causing injury to a resident in the forum on a claim for damages arising from that act.

          31

          Even though the McClellan case involved an intentional tort while the case at bar involves negligence, we find the reasoning in McClellan is applicable. In McClellan, the "tortious act" included both the misrepresentations from outside the state and the resulting injury in Kansas. In the case at bar, the "tortious act" included both the selling of the liquor in Missouri and the injury to the plaintiff in Kansas. The act was completed in Kansas. Therefore, we hold that under the provisions of K.S.A. 60-308(b)(2), it is possible to bring suit in Kansas to recover damages for injuries occurring in this state which resulted from negligent conduct outside the state.

          32

          This holding is consistent with our oft-repeated assertion that the long-arm statute should be liberally construed to assert jurisdiction over nonresident defendants to the full extent permitted by the due process clause of the Fourteenth Amendment to the U.S. Constitution. Misco-United Supply, Inc. v. Richards of Rockford, Inc., 215 Kan. 849, 528 P.2d 1248 (1974); Woodring v. Hall, 200 Kan. 597, 438 P.2d 135 (1968).

          33

          Accordingly, we find the trial court reached the correct result for the wrong reason, and so its decision on this point is upheld. Strehlow v. Kansas State Board of Agriculture, 232 Kan. 589, 592, 659 P.2d 785 (1983).

          34

          [634] The plaintiff next contends the trial court erred in finding that Kansas substantive law governed the action.

          35

          Under Missouri law, a tavern owner can be held civilly liable for selling intoxicating liquor to a minor. Ling argues that the rule in Kansas is that the law of the state where the tort occurred is applied to determine the substantive rights of the parties; that the tort in this case was the wrongful sale of the intoxicating liquor to a minor; and, therefore, Missouri substantive law should apply. Jan's Liquors argues that Kansas courts are to apply the law of the state where the injury occurred and, since the injury in this case occurred in Kansas, Kansas law should govern.

          36

          The rule in this state is that the law of the state where the tort occurred — lex loci delicti — should apply. McDaniel v. Sinn, 194 Kan. 625, 400 P.2d 1018 (1965); Pool v. Day, 141 Kan. 195, 40 P.2d 396 (1935). However, this court has never addressed the conflict of law issue in a multistate tort action — that is, where the negligent act originated outside the state, but the resultant injury occurred in the state. In Swearngin v. Sears, Roebuck & Company, 376 F.2d 637, 639 (10th Cir.1967), the court stated:

          37
          "`[T]he general rule is that where an act of omission or commission occurs at one place and resulting death, personal injury, or damage takes place at another, the situs of the actionable wrong is the place at which the death, personal injury or property damage takes place.'"
          38

          Ling acknowledges that under the doctrine of lex loci delicti, the situs of the injury determines the governing law. However, she argues that in this type of case, the accident site is overshadowed by the location of the unlawful sale of liquor. Ling suggests that this court should adopt an analytical approach to determine whose law should govern. The "analytical approach" has been adopted by a number of courts in recent years. It allows the court to resolve the choice of substantive law by giving to the place having the most interest in the problem paramount control over the legal issues arising out of a particular factual situation, thereby allowing the forum to apply the policy of the jurisdiction most intimately concerned with the outcome of the particular litigation. See Annot., 29 A.L.R.3d 603; Balts v. Balts, 273 Minn. 419, 142 N.W.2d 66 (1966); Fuerste v. Bemis, 156 N.W.2d 831 (Iowa 1968). We reject the analytical approach for determining what law should govern the substantive rights of the parties.

          39

          We hold that in an action for recovery of damages for injuries [635] sustained in Kansas which were the result of a negligent act in another state, the liability of the defendant is to be determined by the laws of this state. Accordingly, the trial court did not err by applying Kansas law.

          40

          The final issue is whether Kansas recognizes a claim for relief against one furnishing liquor to a minor in favor of those injured as a consequence of the minor's intoxication.

          41

          Kansas does not have a dram shop act. Further, there has been no judicial imposition of dram shop liability in this state. Therefore, the question we are faced with is whether — in the absence of a dram shop act — this court should impose liability on the defendant, thus creating a new cause of action in this state.

          42

          Ling argues that we should impose liability upon the defendant on the basis of common-law principles of negligence or negligence per se. Jan's Liquors argues that in the absence of a special dram shop act specifically creating a civil remedy and civil cause of action against the commercial purveyor of intoxicants, no remedy or cause of action can be maintained.

          43

          At common law, and apart from statute, no redress existed against persons selling, giving, or furnishing intoxicating liquor for resulting injuries or damages due to the acts of intoxicated persons, either on the theory that the dispensing of the liquor constituted a direct wrong or that it constituted actionable negligence. This rule was based on the theory that the proximate cause of the injury was the act of the purchaser in drinking the liquor and not the vendor in selling it. See, e.g., State v. Hatfield, 197 Md. 249, 78 A.2d 754 (1951); 45 Am.Jur.2d, Intoxicating Liquors § 553. This court recognized the common-law rule of nonliability for a liquor vendor in Stringer v. Calmes, 167 Kan. 278, 205 P.2d 921 (1949).

          44

          In recent years, many states have retreated from or have abrogated the strict common-law rule. Fourteen states now have dram shop statutes which give, generally, a right of action to persons injured in person, property, or means of support, by an intoxicated person, or in consequence of the intoxication of any person, against the person selling or furnishing the liquor which caused the intoxication in whole or in part. See appendix.

          45

          Courts in 29 jurisdictions, including the District of Columbia, have judicially abrogated the common-law doctrine of no liability. See appendix. Six states with dram shop laws have judicially imposed liability in some form. See appendix. Many of the [636] jurisdictions which now recognize a common-law right of action do so on the premise that the serving of liquor to a minor or an inebriated person initiates a foreseeable chain of events for which the tavern owner may be held liable. See, e.g., Campbell v. Carpenter, 279 Or. 237, 566 P.2d 893 (1977). Others of these jurisdictions conclude that criminal statutes in force in their jurisdiction which proscribe sales of intoxicants to minors or inebriated persons establish a standard of conduct for tavern owners and their employees, deviation from which may constitute negligence per se. See, e.g., Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200 (1983). These courts reason that the criminal statutes represent public policy and public interest in preventing injury to those specific classes incompetent to handle intoxicating liquors as well as injury to the public at large.

          46

          Six states which do not have dram shop laws have refused to impose liability judicially. See appendix. These jurisdictions have considered, but declined to follow, the new trend of cases, because they find the issue is one of public policy which is best left to the legislative body. These courts refuse to find negligence per se on the ground that the criminal statutes were intended to be purely regulatory in nature and were not intended to create a civil cause of action.

          47

          By way of historical background to aid in a better understanding of the problems involved in this appeal, we point out that the territorial legislature of Kansas enacted a dram shop act in 1859. That law included a civil damage statute which provided a cause of action against the seller, barterer or giver of intoxicating liquors for damage or injury caused "by any intoxicated person or in consequence of intoxication." The statute was included in the 1881 revision of the statutes (L. 1881, ch. 128, § 15) and again in 1923 when it was designated R.S. 1923, 21-2150 and stated:

          48
          "Every wife, child, parent, guardian or employer, or other person who shall be injured in person or property, or means of support, by any intoxicated person, or in consequence of intoxication, habitual or otherwise, of any person, such wife, child, parent or guardian, employer or other person shall have a right of action, in his or her own name, against any person who shall, by selling, bartering or giving intoxicating liquors, have caused the intoxication of such person, for all damages actually sustained, as well as for exemplary damages; and a married woman shall have the right to bring suits, prosecute and control the same, and the amount recovered, the same as if unmarried; and all damages recovered by a minor under this act shall be paid either to such minor, or to his or her parents, guardian, or next friend, as the court shall direct; and all suits for damages under this act shall be by civil action in any of the courts of this state having jurisdiction thereof."
          49

          [637] Several Kansas cases have discussed and upheld the constitutionality of the statute. See Coy v. Cutting, 138 Kan. 109, 23 P.2d 458 (1933); Zibold v. Reneer, 73 Kan. 312, 85 Pac. 290 (1906); Landrum v. Flannigan, 60 Kan. 436, 56 Pac. 753 (1899).

          50

          On November 2, 1948, the citizens of this state voted to amend art. 15 of the Constitution of the State of Kansas. The result was that only the open saloon is now prohibited in this state. (Art. 15, § 10, Constitution of Kansas.) The new constitutional provision gave the legislature the power to regulate, license, and tax the manufacture and sale of intoxicating liquors and to regulate the possession and transportation of intoxicating liquors.

          51

          In 1949 the legislature repealed certain statutes under the "Bone-Dry Law" (ch. 41 — Intoxicating Liquors), because the Kansas constitutional prohibition against the manufacture and sale of intoxicating liquors had been repealed. The legislature, exercising its power, enacted the "Kansas Liquor Control Act." (Ch. 41, art. 1 through art. 27.) The new act regulated the manufacturing, bottling, blending, selling, bartering, transportation, delivery, furnishing or possessing of alcoholic liquor. The Act was a comprehensive plan to regulate liquor from the time of its manufacture within the state or importation into the state until it was ultimately sold by a licensed retailer for use or consumption. Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 752, 408 P.2d 877 (1965). Included in the Act was the prohibition against the sale of intoxicating liquors to minors and incompetents. G.S. 1949, 41-715 stated:

          52
          "No person shall knowingly or unknowingly sell, give away, dispose of, exchange or deliver, or permit the sale, gift or procuring of any alcoholic liquor to or for any minor; and no such minor shall represent that he is of age for the purpose of asking for, purchasing or receiving alcoholic liquor from any persons, except in cases authorized by law. No person shall knowingly sell, give away, dispose of, exchange or deliver, or permit the sale, gift or procuring of any alcoholic liquor to or for any person who is mentally incompetent, or any person who is physically or mentally incapacitated by the consumption of such liquor.... [L. 1949, ch. 242, § 78; March 9.]"
          53

          The statute also provided for a fine or imprisonment.

          54

          The 1949 legislature — the same legislature which enacted the criminal regulatory statute — chose not to reenact the dram shop act. It was repealed in G.S. 1949, 41-1106, and has never been reenacted.

          55

          The 1949 law prohibiting sale of intoxicating liquor to minors was amended in 1963 (L. 1963, ch. 267, § 1) and in 1965 (L. 1965, ch. 277, § 8). K.S.A. 41-715 now states:

          56
          [638] "No minor shall represent that he is of age for the purpose of asking for, purchasing or receiving alcoholic liquor from any person except in cases authorized by law. No minor shall attempt to purchase or purchase alcoholic liquor from any person. No minor shall possess alcoholic liquor. No person shall knowingly sell, give away, dispose of, exchange or deliver, or permit the sale, gift or procuring of any alcoholic liquor to or for any person who is an incapacitated person, or any person who is physically or mentally incapacitated by the consumption of such liquor. Any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not more than two hundred dollars ($200) or by imprisonment for not to exceed thirty (30) days, or both such fine and imprisonment in the discretion of the court. [L. 1949, ch. 242, § 78; L. 1963, ch. 267, § 1; L. 1965, ch. 277, § 8; June 30.]"
          57

          The 1965 legislature enacted L. 1965, ch. 277, § 7, making it a crime for any person to knowingly or unknowingly sell to, buy for, give to, or furnish, either directly or indirectly, any intoxicating liquor to any person under the age of twenty-one years. That statute, K.S.A. 1965 Supp. 38-715, included a provision revoking the retail liquor license issued under K.S.A. 41-308 of any retailer who violated the statute. The revocation penalty was later repealed when K.S.A. 21-3610 was enacted in 1969. When the legislature enacted that statute in 1969, it omitted the phrase "knowingly or unknowingly," making the present violation a general intent crime.

          58

          Since the legislature's repeal of the civil liability statute in 1949, there has been no reported Kansas case asserting the liability to third persons of one selling or furnishing liquor. The last case to discuss the dram shop statute was Stringer v. Calmes, 167 Kan. 278, which was decided in 1949 prior to the repeal of the act. In that case the court held, unequivocably, that no common-law right of action existed.

          59

          In recent years, the Kansas legislature has made control of drunken drivers a high priority matter. Significant legislation has tightened the laws which deal with such offenses. The legislature of this state has considered all aspects of the problem of drunken driving in seeking solutions to the problem.

          60

          In 1984, limited dram shop legislation was introduced. (H.B. 2661). The proposed bill imposed liability on any person negligently selling or furnishing alcoholic beverages to a minor where the minor, under the influence thereof, caused death, personal injury or property damage to another. The bill died after it was passed out of committee.

          61

          On January 3, 1985, dram shop legislation was proposed by the [639] Kansas Attorney General. A press release of that date from his office states in part:

          62
          "Attorney General Robert T. Stephan has written letters to the newly appointed chairmen of the House and Senate Judiciary committees urging consideration of a dram shop law in Kansas, along with other measures to stiffen the state's drunk driving laws.
          63
          "Stephan wrote the letters to Senator-elect Robert Frey, Chairman of the Senate Judiciary Committee and Rep. Joe Knopp, Chairman of the House Judiciary Committee.
          64
          "The dram shop law Stephen proposes would give persons injured by an intoxicated person, their families and employers the specific right to sue stores selling package liquor or beer, private clubs and taverns. The clubs, taverns and stores could be found liable for damages if they sold beer or liquor to a person who already was intoxicated, or served them alcohol to the point of intoxication, provided that the intoxication contributed to the injury."
          65

          Five days later (January 8, 1985) another press release from the Attorney General's Office stated:

          66
          "Attorney General Robert T. Stephan said today he will advise the chairmen of the Judiciary committees he is modifying his proposals to combat drunk driving.
          67
          "`If you have decided that you have come up with a bad idea that you have a responsibility to say so,' Stephan said. `I have the courage to make suggestions for legislative study, and also have the courage to know when my proposals to deter drunk driving should be modified.
          68
          "`Upon reexamination, I believe that existing law can be strengthened to better combat drunk driving. The dram shop law which I proposed would only add to legal entanglements. Therefore, I am withdrawing my suggestion that a dram shop law be enacted and will continue to study further means to deal with drunk driving.'"
          69

          With this historical background in mind, we again turn to the plaintiff's arguments. Ling contends that the violation of K.S.A. 21-3610 and K.S.A. 41-715 (establishing criminal penalties for sale of alcoholic liquor to a minor) is a breach of a duty imposed by law and, thus, negligence per se. In other contexts this court has recognized the rule that breach of a duty imposed by law or ordinance is negligence per se, and that damages may be predicated on its violation if the breach is the proximate cause of the injury or damages or substantially contributes to the injury. Arredondo v. Duckwall Stores, Inc., 227 Kan. 842, 610 P.2d 1107 (1980); Kendrick v. Atchison, T. & S.F. Rld. Co., 182 Kan. 249, 260, 320 P.2d 1061 (1958). We decline to find negligence per se in this case since to do so would subvert the apparent legislative intention.

          70

          The predecessor to K.S.A. 41-715 (of which K.S.A. 21-3610 was once a part) was first enacted in 1949, the same year the dram [640] shop act was repealed. Since that time, the legislature, although it has considered it, has not re-created a civil cause of action in favor of those injured as a result of a violation of the liquor laws. Clearly, the legislature would have done so had it intended for there to be a civil cause of action. K.S.A. 41-715 prohibits the dispensing of intoxicating liquors to certain classes of persons and is a comprehensive act to regulate the manufacture, sale, and distribution of alcoholic liquors. The legislature did not intend for it to be interpreted to impose civil liability. Therefore, we hold that the Missouri liquor vendor's violation of a criminal regulatory statute was not negligence per se.

          71

          As previously noted, the common-law rule is that, in the absence of legislation, the suppliers of alcohol are not liable to the victims of an intoxicated tortfeasor. Stringer, 167 Kan. 278. The common law remains in force in this state where the constitution is silent or the legislature has failed to act. K.S.A. 77-109. However, the common law is not static. It is subject to modification by judicial decision in light of changing conditions or increased knowledge where this court finds that it is a vestige of the past, no longer suitable to the circumstances of the people of this state. Indeed, we have not hesitated to adopt a new cause of action by judicial decision where we have determined that course was compelled by changing circumstances. See, e.g., Dawson v. Associates Financial Services Co., 215 Kan. 814, 529 P.2d 104 (1974) (creating new cause of action of intentional infliction of emotional distress); McCart v. Muir, 230 Kan. 618, 641 P.2d 384 (1982) (creating new cause of action for negligent entrustment). See also Durflinger v. Artiles, 234 Kan. 484, 673 P.2d 86 (1983).

          72

          Although empowered to change the common law in light of changed conditions, this court recognizes that declaration of public policy is normally the function of the legislative branch of government. Whether Kansas should abandon the old common-law rule and align itself with the new trend of cases which impose civil liability upon vendors of alcoholic beverages for the torts of their inebriated patrons depends ultimately upon what best serves the societal interest and need. Clearly, this is a matter of public policy which the legislature is best equipped to handle.

          73

          The court in Holmes v. Circo, 196 Neb. 496, 504-05, 244 N.W.2d 65 (1976), made the following astute observation with which we agree:

          74
          [641] "We are mindful of the misery caused by drunken drivers and the losses sustained by both individuals and society at the hands of drunken drivers, but the task of limiting and defining a new cause of action which could grow from a fact nucleus formed from any combination of numerous permutations of the fact situation before us is properly within the realm of the Legislature.
          75
          "The imposition of a common law duty of due care would create a situation rife with uncertainty and difficulty. If the commercial vendor is liable for negligence, does the host at a social gathering owe a duty to prospective victims of guests? The difficulties of recognizing intoxication and predicting conduct of an intoxicated patron without imposing some duty of inquiry are evident. Problems could also arise in the apportionment or sorting out of liability among the owners of various bars visited on `bar hopping' excursions. The correct standard of care to be used also presents a problem, as does the determination of whether all acts of the patron, including intentional torts, should be included within the liability of the tavern owner or operator."
          76

          In the final analysis, we find the decision should be left to the legislature.

          77

          Accordingly, we affirm the trial court's finding that the plaintiff failed to state a claim upon which relief could be granted.

          78
          HOLMES, J., concurring in part and dissenting in part:
          79

          I concur with the majority opinion that under the common law as it exists in this state there is no liability in this case and that the trial court was correct in dismissing plaintiff's case for failure to state a cause of action. When the legislature, in 1949, repealed R.S. 1923, 21-2150, it would appear obvious that it intended the common law to prevail. As pointed out by the majority opinion, the legislature has, on numerous occasions, revised our liquor control laws but has failed to re-enact legislation creating the cause of action sought by plaintiff and it is not our position to do so. Hence, I agree with the result reached by the majority opinion.

          80

          I disagree with that portion of the opinion which would apply long-arm jurisdiction under K.S.A. 60-308(b)(2) to the facts of this case. The tortious act of the defendant in selling liquor to a minor in Missouri is too far removed from the auto accident occurring hours later, in Kansas, to be considered the "commission of a tortious act within this state" as required by the statute. While plaintiff's unfortunate injuries were suffered in Kansas, they were not, in my opinion, the result of any tortious act committed in Kansas by Jan's Liquors. The tortious act of this defendant was complete upon the sale of the liquor in Missouri. There are not [642] sufficient minimum contacts in this case to justify personal jurisdiction under the long-arm statute. See Internat. Shoe Co. v. Washington, 326 U.S. 310, 90 L.Ed. 95, 66 S.Ct. 154 (1945); Schlatter v. Mo-Comm Futures, Ltd., 233 Kan. 324, 662 P.2d 553 (1983).

          81
          McFARLAND and HERD, JJ., join in the foregoing concurring and dissenting opinion.
          82
          LOCKETT, J., concurring and dissenting:
          83

          I concur with the majority that: (1) under the provisions of K.S.A. 60-308(b)(2) it is possible to bring suit in Kansas to recover damages for injuries occurring in this state which resulted from negligent conduct outside the state; and (2) in an action for recovery of damages for injuries sustained in Kansas which were the result of a breach of a duty in another state, the liability of the defendant is to be determined by the laws of this state.

          84

          I cannot agree with the majority's denial of a right of action to persons injured in person, property or means of support, by an intoxicated person, or in consequence of the intoxication of any person, against the person illegally selling or furnishing the liquor which caused the intoxication in whole or in part. In reaching this conclusion, the majority, by denying that a cause of action exists, misapplies the common law, the legislature's acts and prior decisions of this court.

          85

          The majority, citing State v. Hatfield, 197 Md. 249, 78 A.2d 754 (1951), and 45 Am.Jur.2d, Intoxicating Liquors § 553, states, "At common law, and apart from statute, no redress existed against persons selling, giving, or furnishing intoxicating liquor for resulting injuries or damages due to the acts of intoxicated persons, whether on the theory that the dispensing of the liquor constituted a direct wrong or constituted actionable negligence." The Am.Jur.2d citation actually states, "At common law it is not a tort to either sell or give intoxicating liquor to ordinary able-bodied men, and it has been frequently held that in the absence of statute, there can be no cause of action against one furnishing liquor in favor of those injured by the intoxication of the person so furnished. The reason usually given for this rule is that the drinking of the liquor, not the furnishing of it, is the proximate cause of the injury.... [O]ne cannot become intoxicated by reason of liquor furnished him if he does not drink it."

          86

          [643] When the driver, Shirley, was furnished intoxicating liquor in this case he was not an able-bodied man. He was a minor. There is a statute in Kansas, as well as a similar one in Missouri, which prohibits the sale or furnishing of intoxicating liquor to a minor. K.S.A. 41-715. Clearly the common law is not a bar to Ling's action against the vendor who illegally furnished intoxicating liquor not to an able-bodied man, but to a minor.

          87

          The common law of England is the basic component of the common law adopted in the United States. Even if the common law is as the majority states, the courts of this country are not required to adhere to the decisions of the English common law courts unless such law is adopted by the state courts or by legislative enactment in aid of the general statutes.

          88

          Constitutional or statutory provisions in most states expressly declare the common law to be in force. The 1868 General Statutes of the State of Kansas, ch. 119, sec. 3 (now K.S.A. 77-109) provided that the common law shall remain in force in aid of the general statutes. The common law has been continuously incorporated into our law by our legislature to fill the voids in law where the constitution is silent or the legislature and the courts have failed to act.

          89

          When our legislature adopted the rule the common law was to remain in force in aid of the general statutes, it recognized that the common law was modified by our constitution and can be modified by the legislature when it enacts new laws or repeals old laws. The legislature also recognized that the common law can be modified by the courts when rendering judicial decisions and when the conditions and wants of the people require action (K.S.A. 77-109).

          90

          The courts of this state have never maintained that the common law is static and must be used to maintain the status quo. Like the Constitution of the United States and the constitution of this state, the common law grows as it is applied to new situations or as a need arises. The common law is judge-made and judge-applied. It is not to be followed blindly and can be changed when conditions and circumstances require if the prior law is unjust or has become bad public policy. In the past, this court has expanded the common law to meet the requirements of a modern society. It would be unfortunate to our economy and our developing society if we should cease to engage in the [644] common-law tradition of judicial expansion which adapts the law to the ever-changing needs and demands of a dynamic society.

          91

          The general principle of negligence law is that every person owes a duty to avoid creating situations which pose an unreasonable risk of harm to others. Negligence exists where the duty owed by one person to another is breached. Further, if recovery is to be obtained for such negligence, the injured party must show: (1) a causal connection between the duty breached and the injury received; and (2) that the person was damaged by that negligence. Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983).

          92

          In 1974, we recognized that an action exists against one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another. Dawson v. Associates Financial Services Co., 215 Kan. 814, 820, 529 P.2d 104 (1974). In McCart v. Muir, 230 Kan. 618, 641 P.2d 384 (1982), we determined that parents who knowingly and negligently furnish a car to their son, who by reason of age, experience, mental condition, or known habits of recklessness, is incapable of operating a vehicle with ordinary care, are responsible for the injuries caused by their negligent entrustment of the automobile to their son. In Balagna v. Shawnee County, 233 Kan. 1068, 668 P.2d 157 (1983), there was evidence that an architect-engineer had actual knowledge of safety standards contained in a construction contract and had actual knowledge that the prescribed safety precautions were not being followed by the contractor. We imposed a duty upon the architect-engineer to take reasonable action to prevent injury to the contractor's employees. In Durfliger v. Artiles, 234 Kan. 484, where a state hospital physician, as part of his employment, participated in a hospital team which recommended that a committed patient be discharged because he was no longer dangerous to himself or others, we imposed a duty upon that physician to use reasonable and ordinary care and discretion in making the recommendation to release the patient. The duty imposed to protect was a duty owed to both the patient and the public. In each of these cases where this court imposed a duty for a negligent act, the defendants did not purposefully violate a law.

          93

          We have recognized there is a distinction between "negligence" and "negligence per se." Negligence must be found by [645] the jury from the evidence, while "negligence per se" results from a violation of law or ordinance. Kansas follows the rule that a breach of duty imposed by law or ordinance is negligence per se, and liability in damages can be predicated on violation of that law where that breach is the proximate cause of the injury or damages or substantially contributes to the injury. Kendrick v. Atchison, T. & S.F. Rld. Co., 182 Kan. 249, 260, 320 P.2d 1061 (1958).

          94

          The majority states that a breach of a duty imposed by law or ordinance is negligence per se, unless the legislature clearly did not intend to impose civil liability for the breach. It states that K.S.A. 41-715, which prohibits the dispensing of alcoholic liquors to certain classes of persons, was intended by the legislature to regulate the sale of liquor and was not intended to impose civil liability. It concludes that K.S.A. 41-715, while imposing criminal penalties for a violation of the statute, is merely a portion of a comprehensive act to regulate the manufacture, sale and distribution of alcoholic beverages and, therefore, not a basis for negligence per se.

          95

          Does the majority suggest that such is true of all similar acts passed by the legislature or is it limited only to this act? Consider Chapter 8, "Automobiles and Other Vehicles," which is a comprehensive act to regulate the licensing, sale and use of automobiles. Is not the same true of Chapter 8 as is true of Chapter 41, that while it contains certain provisions for licensing, other sections provide criminal sanctions for violation of those sections? The majority would imply that an individual who, while driving an automobile, intentionally and illegally proceeded into a controlled intersection and struck another vehicle is not required to bear the responsibility for any damage caused.

          96

          The legislature did not create a civil cause of action in favor of those injured as a result of a violation of the traffic laws. Does this legislative silence mean that the legislature did not intend for such violations of the traffic laws to be interpreted to impose civil liability, that a violation of the traffic laws is not negligence per se because the legislature remained silent? Rarely does the legislature specifically create a civil cause of action in favor of those injured as a result of a violation of a law.

          97

          K.S.A. 41-715 is not a licensing statute enacted by the legislature to regulate who may sell liquor. Chapter 41 of the statutes, [646] which is entitled "Intoxicating Liquors and Beverages," contains several sections which regulate the issuance of a license. K.S.A. 41-715, however, does not appear in a licensing article of Chapter 41. It appears in Article 7, which is entitled "Certain Prohibited Acts and Penalties." A violator of 41-715 may, in addition to receiving a fine not to exceed $200.00, receive a sentence not to exceed 30 days or both a fine and imprisonment in the discretion of the court. Any person violating 41-715 is deemed guilty of a misdemeanor by the statute.

          98

          The majority is either failing to overrule prior case law or ignoring it. In Arredondo v. Duckwall Stores, Inc., 227 Kan. 842, 610 P.2d 1107 (1980), this court determined that for public safety reasons, K.S.A. 21-4209 prohibits minors, habitual drunkards, narcotics addicts and felons from obtaining explosives or detonating substances. It was the public policy of the act that the party whose conduct violates the act must bear the responsibility for the damage caused. The defendant, in violation of the statute, sold gunpowder to a sixteen-year-old boy who used the gunpowder to reload some shells. The boy was injured when his shotgun misfired. The minor predicated his successful action against the seller of the gunpowder upon the theory that actionable negligence occurs when one breaches a duty imposed by a criminal statute and the breach results in an injury of the type intended to be prevented.

          99

          K.S.A. 41-715 forbids the sale of alcoholic liquor to a minor, any person who is incapacitated or any person who is physically or mentally incapacitated by the consumption of liquor. The statute establishes a criminal penalty for such sales. The purpose of 41-715 is to prevent the sale of alcoholic beverages to those individuals who are unlikely to be able to handle alcohol. These individuals not only need protection from their own acts, but society needs protection from them.

          100

          Are we required to take legislative silence as to civil liability for alcohol vendors who violate a statute as an expression of legislative intent? Why has the majority suddenly determined that legislative silence is action? Prior to the legislature's repeal of the dram shop act in G.S. 1949, 41-1106, the legislature knew that this court had stated that where there is a breach of a duty imposed by law and injury occurs as a result of the breach, the injured party is entitled to compensation. If the legislature [647] wishes to exempt a specific class of violators from liability for damages which they cause by their negligence, then the legislature should speak. The court should not legislate an exemption. There is no more persuasive evidence of the legislature's intention than a statute undertaken by the legislature to give expression to that intention. Where legislative enactments in the past have contained no express provision that their violation shall result in tort liability, and no implication to that effect, this court has adopted the requirements of that enactment as a standard of conduct necessary to protect certain individuals or society as a whole.

          101

          Section 18 of the Bill of Rights of the Constitution of the State of Kansas provides that all persons who suffer injuries to their person, reputation or property have a remedy by due course of law. In addition to our constitution, the legislature is aware of the principle of negligence law that every person is under a duty to avoid creating situations which impose an unreasonable risk of harm to others. Many times we have stated that a breach of a duty imposed by law or ordinance constitutes negligence per se and where injury occurs as a result of the breach, the injured party is entitled to compensation. Cognizant of our past actions, the legislature may well consider that when a judge-made common-law rule has become obsolete, anachronistic and oppressive, the court is responsible for change.

          102

          The majority states that the issue presented is whether this court should judicially enact a "dram shop" law imposing civil liability upon liquor vendors who violate 41-715. The real issue is whether this court should follow our previous case law which determined that public policy requires, where a party's conduct violates a penal statute, that party must bear the responsibility for the damage caused as a result of the violation.

          103

          A statute is an expression of policy arising out of specific situations and addressed to the attainment of a particular aim of the legislature. The majority should not rewrite the statute. It should neither enlarge it nor contract it. The majority should take the statute as it finds it. This it has failed to do.

          104
          PRAGER and MILLER, JJ., join in the foregoing concurring and dissenting opinion.
          105
          [648] APPENDIX
          106
            Following is a brief summary of the present status of the civilliability of liquor vendors in all jurisdictions.1. ALABAMA Dram shop act (Ala. Code § 6-5-71 [1975]). No    common-law vendor liability. DeLoach v. Mayer Elec. Supply    Co., 378 So.2d 733 (Ala. 1979).2. ALASKA No statutory vendor liability. Common-law liability.    Nazareno v. Urie, 638 P.2d 671 (Alaska 1981); and Morris v.    Farley Enterprises, Inc., 661 P.2d 167 (Alaska 1983).3. ARIZONA No statutory vendor liability. Common-law    liability. Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200    (1983); and Brannigan v. Raybuck, 136 Ariz. 513, 667 P.2d    213 (1983), overruling earlier Arizona cases adhering to    nonliability rule.4. ARKANSAS No statutory vendor liability. No common-law    liability. Carr v. Turner, 238 Ark. 889, 385 S.W.2d 656    (1965).5. CALIFORNIA Prevailing common-law vendor liability for    injury or damage resulting from intoxication abrogated in    1978 by Cal. Bus. & Prof. Code § 25602 (West 1985 Supp.) and    Cal. Civ. Code § 1714 (West 1985).6. COLORADO No statutory vendor liability. Common-law    liability. Kerby v. Flamingo Club, 35 Colo. App. 127, 532    P.2d 975 (1974).7. CONNECTICUT Dram shop act (Conn. Gen. Stat. § 30-102    [1985]). No common-law vendor liability. Nelson v. Steffens,    170 Conn. 356, 365 A.2d 1174 (1976); and Slicer v. Quigley,    180 Conn. 252, 429 A.2d 855 (1980).8. DELAWARE No statutory vendor liability. No common-law    liability. Wright v. Moffitt, 437 A.2d 554 (Del. 1981).9. DISTRICT OF COLUMBIA No statutory vendor liability.    Common-law liability. Marusa v. District of Columbia, 484    F.2d 828 (D.C. Cir.1973).10. FLORIDA Prevailing common-law vendor liability for injury    or damage resulting from intoxication. Davis v.    Shiappacossee, 155 So.2d 780 (Fla. 1963); and Prevatt v.    McClennan, 201 So.2d 780 (Fla. Dist. App. 1967), limited in    1981 by Fla. Stat. § 768.125 (1983).11. GEORGIA Dram shop act (Ga. Code § 3-3-22 [1982]). No    common-law liability. Keaton v. Kroger Co., 143 Ga. App. 23,    237 S.E.2d 443 (1977). [649] 12. HAWAII No statutory vendor liability. Common-law liability.    Ono v. Applegate, 62 Hawaii 131, 612 P.2d 533 (1980).13. IDAHO No statutory vendor liability. Common-law liability.    Alegria v. Payonk, 101 Idaho 617, 619 P.2d 135 (1980),    overruling earlier Idaho case adhering to nonliability rule.14. ILLINOIS Dram shop act (Ill. Stat. Ann. ch. 43, ¶ 135    [Smith-Hurd 1984 Supp.]). No common-law vendor liability.    Demchuk v. Duplancich, 92 Ill.2d 1, 440 N.E.2d 112 (1982);    and Thompson v. Trickle, 114 Ill. App.3d 930, 449 N.E.2d 910    (1983).15. INDIANA No statutory vendor liability. Common-law    liability. Elder v. Fisher, 247 Ind. 598, 217 N.E.2d 847    (1966).16. IOWA Dram shop act (Iowa Code Ann. § 123.92 [West 1984    Supp.]). Common-law vendor liability. Haafke v. Mitchell,    347 N.W.2d 381 (Iowa 1984).17. KANSAS No statutory vendor liability. No common-law    liability.18. KENTUCKY No statutory vendor liability. Common-law    liability. Pike v. George, 434 S.W.2d 626 (Ky. 1968).19. LOUISIANA No statutory vendor liability. Common-law    liability. Thrasher v. Leggett, 373 So.2d 494 (La. 1979).20. MAINE Dram shop act (Me. Rev. Stat. Ann. tit. 17, § 2002    [1983]). Status of common-law liability not confirmed.21. MARYLAND No statutory vendor liability. No common-law    liability. Felder v. Butler, 292 Md. 174, 438 A.2d 494    (1981); and Fisher v. O'Connor's, Inc., 53 Md. App. 338, 452    A.2d 1313 (1982).22. MASSACHUSETTS No statutory vendor liability. Common-law    liability. Adamian v. Three Sons, Inc., 353 Mass. 498, 233    N.E.2d 18 (1968); and Michnik-Zilberman v. Gordon's Liquor,    Inc., 390 Mass. 6, 453 N.E.2d 430 (1983).23. MICHIGAN Dram shop act (Mich. Stat. Ann. § 18.993    [Challaghan 1984 Supp.]). Common-law vendor liability. Thaut    v. Finley, 50 Mich. App. 611, 213 N.W.2d 820 (1973).24. MINNESOTA Dram shop act (Minn. Stat. § 340.95 [1984]).    Common-law liability. Trial v. Christian, 298 Minn. 101, 213    N.W.2d 618 (1973). Recently, Minnesota Supreme Court refused    to extend liability to a social host. Holmquist v. Miller,    No. C7-83-1919 (5/3/85).25. MISSISSIPPI No statutory vendor liability. Common-law [650]     liability. Munford, Inc. v. Peterson, 368 So.2d 213 (Miss.    1979).26. MISSOURI No statutory vendor liability. Common-law    liability. Sampson v. W.F. Enterprises, Inc., 611 S.W.2d 333    (Mo. App. 1980); and Carver v. Schafer, 647 S.W.2d 570 (Mo.    App. 1983).27. MONTANA No statutory vendor liability. No common-law    liability. Runge v. Watts, 180 Mont. 91, 589 P.2d 145    (1979); Folda v. City of Bozeman, 177 Mont. 537, 582 P.2d    767 (1978); and Swartzenberger v. Billings Labor Temple    Assn., 179 Mont. 145, 586 P.2d 712 (1978). But see Deeds v.    United States, 306 F. Supp. 348 (D. Mont. 1969).28. NEBRASKA No statutory vendor liability. No common-law    liability. Holmes v. Circo, 196 Neb. 496, 244 N.W.2d 65    (1976).29. NEVADA No statutory vendor liability. No common-law    liability. Hamm v. Carson City Nugget, Inc., 85 Nev. 99, 450    P.2d 358 (1969).30. NEW HAMPSHIRE No statutory vendor liability. Common-law    liability. Ramsey v. Anctil, 106 N.H. 375, 211 A.2d 900    (1965).31. NEW JERSEY No statutory vendor liability. Common-law    liability established in Rappaport v. Nichols, 31 N.J. 188,    156 A.2d 1 (1959), recently extended to social hosts, Kelly    v. Gwinnell, 96 N.J. 538, 476 A.2d 1219 (1984).32. NEW MEXICO No statutory vendor liability. Common-law    liability. Lopez v. Maez, 98 N.M. 625, 651 P.2d 1269 (1982);    MRC Properties, Inc. v. Gries, 98 N.M. 710, 652 P.2d 732    (1982); and Porter v. Ortiz, 100 N.M. 58, 665 P.2d 1149 (Ct.    App. 1983), overruling earlier New Mexico cases adhering to    nonliability rule.33. NEW YORK Dram shop act (N.Y. Gen. Oblig. Law § 11-101    [McKinney 1984 Supp.]). Common-law liability. Berkeley v.    Park, 47 Misc.2d 381, 262 N.Y.S.2d 290 (1965).34. NORTH CAROLINA Dram shop act (N.C. Gen. Stat. § 18B-121 et    seq. [1983]). Common-law liability. Hutchens v. Hankins, 63    N.C. App. 1, 303 S.E.2d 584, rev. denied, 309 N.C. 191    (1983).35. NORTH DAKOTA Dram shop act (N.D. Cent. Code § 5-01-06 [1983    Supp.]). No common-law liability. Thoring v. Bottonsek, 350    N.W.2d 586 (N.D. 1984). [651] 36. OHIO Dram shop act (Ohio Rev. Code Ann. § 4399.01 [Page    1982]). Common-law vendor liability. Mason v. Roberts, 33    Ohio St.2d 29, 294 N.E.2d 884 (1973).37. OKLAHOMA Has not ruled on subject.38. OREGON Prevailing common-law vendor liability. Campbell v.    Carpenter, 279 Or. 237, 566 P.2d 893 (1977) limited in 1979    by Or. Rev. Stat. § 30.950 et seq. (1983).39. PENNSYLVANIA No statutory vendor liability. Common-law    liability. Jardine v. Upper Darby Lodge No. 1973, 413 Pa.    626, 198 A.2d 550 (1964).40. RHODE ISLAND Dram shop act (R.I. Gen. Laws § 3-11-1    [1976]). Status of common-law not confirmed.41. SOUTH CAROLINA Has not ruled on subject.42. SOUTH DAKOTA No statutory vendor liability. Common-law    liability. Walz v. City of Hudson, 327 N.W.2d 120 (S.D.    1982), overruling earlier South Dakota case adhering to    nonliability rule.43. TENNESSEE No statutory vendor liability. Common-law    liability. Mitchell v. Ketner, 54 Tenn. App. 656, 393 S.W.2d    755 (1964).44. TEXAS Has not ruled on subject.45. UTAH Dram shop act (Utah Code Ann. § 32-11-1 [1983 Supp.]).    Status of common-law liability not confirmed.46. VERMONT Has not ruled on subject.47. VIRGINIA Has not ruled on subject.48. WASHINGTON No statutory vendor liability. Common-law    liability. See, e.g., Callan v. O'Neil, 20 Wash. App. 32,    578 P.2d 890 (1978); and Halligan v. Pupo, 37 Wash. App. 84,    678 P.2d 1295 (1984).49. WISCONSIN No statutory vendor liability. Common-law    liability. Sorensen v. Jarvis, 119 Wis.2d 627, 350 N.W.2d    108 (1984), overruling earlier Wisconsin cases adhering to    non-liability rule. Koback v. Crook, 123 Wis.2d ___, 366    N.W.2d 857 (1985), Wisconsin Supreme Court imposes liability    on social host who served liquor to a minor.50. WEST VIRGINIA Has not ruled on subject.51. WYOMING No statutory vendor liability. Common-law    liability. McClellan v. Tottenhoff, 666 P.2d 408 (Wyo.    1983), overruling earlier Wyoming cases adhering to    nonliability rule.
      • 1.1.2 §1.1.2 Contract—place where contract was made

        • 1.1.2.1 Bradford Elec. Light Co. v. Clapper

          1
          286 U.S. 145 (1932)
          2
          BRADFORD ELECTRIC LIGHT CO., INC.
          v.
          CLAPPER, ADMINISTRATRIX.
          3
          No. 423.
          4

          Supreme Court of United States.

          5
          Argued February 15, 16, 1932.
          6
          Decided May 16, 1932.
          7

          CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT.

          8

          [146] Messrs. Stanley M. Burns and George T. Hughes, with whom Mr. Wm. E. Leahy was on the brief, for petitioner.

          9

          [147] Mr. Robert W. Upton, with whom Mr. John E. Benton was on the brief, for respondent.

          10
          [150] MR. JUSTICE BRANDEIS delivered the opinion of the Court.
          11

          This action for damages was brought in a court of New Hampshire under the employers' liability provisions of the Employers' Liability and Workmen's Compensation Act of that State, N.H. Public Laws, 1926, c. 302, to recover for the death of Leon J. Clapper, which the plaintiff claimed was due to his employer's negligence. The case [151] was removed to the federal court on the ground of diversity of citizenship; the defendant, Bradford Electric Light Co., Inc., being a citizen and resident of Vermont and the plaintiff, Jennie M. Clapper, administratrix, being a citizen and resident of New Hampshire. It appeared that the Company had its principal place of business in Vermont and lines extending into New Hampshire; that Leon Clapper, a resident of Vermont, was employed by it there as a lineman for emergency service in either State; and that in the course of his duties, he was sent to restore some burned-out fuses at a substation in New Hampshire and while doing so was killed. The Company, invoking the full faith and credit clause of the Federal Constitution, set up as a special defense that the action was barred by provisions of the Vermont Compensation Act; that the contract of employment had been entered into in Vermont, where both parties to it then, and at all times thereafter resided; and that the Vermont Act had been accepted by both employer and employee as a term of the contract.

          12

          The District Court ruled that the action was properly brought under the laws of the State of New Hampshire; that the action was based on a tort occurring in that State; and that the Vermont Workmen's Compensation Act had no extra-territorial effect. Accordingly, that court rejected the special defense and denied a motion to dismiss. The case was tried three times before a jury, the third trial resulting in a verdict for the plaintiff in the sum of $4,000. The judgment entered thereon was first reversed by the Circuit Court of Appeals. But upon a rehearing, the judgment of the trial court was affirmed, one judge dissenting. 51 F. (2d) 992, 999. The Company filed in this Court both an appeal and a petition for writ of certiorari. The appeal was denied, and certiorari granted. 284 U.S. 221.

          13

          [152] The Vermont Workmen's Compensation Act provides that a workman hired within the State shall be entitled to compensation even though the injury was received outside the State, Vermont General Laws, c. 241, § 5770; that "employers who hire workmen within this state to work outside of the state, may agree with such workmen that the remedies under the provisions of this chapter shall be exclusive as regards injuries received outside this state by accident arising out of and in the course of such employment, and all contracts of hiring in this state shall be presumed to include such an agreement," § 5774; that every contract of employment made within the State shall be presumed to have been made subject to its provisions, unless prior to the accident an express statement to the contrary shall have been made, in writing, by one of the parties, § 5765; and that acceptance of the Act is "a surrender by the parties . . . of their rights to any other method, form or amount of compensation or determination thereof," § 5763. Neither the Company nor Leon Clapper filed a statement declining to accept any provision of the Vermont Act.

          14

          The New Hampshire Employers' Liability and Workmen's Compensation Act provides that the employer shall become subject to the workmen's compensation provisions of the Act only by filing a declaration to that effect, N.H. Public Laws, c. 178, § 4; and that even if the declaration is filed, the employee may, subsequent to the injury, still elect either to claim compensation, § 11, or to sue for damages at common law as modified by the employers' liability provisions of the Act. Failure to file such a declaration exposes the employer to a common law action of negligence in which the defenses of assumption of risk and injury by a fellow servant may not be interposed. §§ 2, 3. The Company filed in New Hampshire the declaration provided for by its statute.

          15

          [153] Thus each State has a workmen's compensation law of the elective type; but their provisions differ sharply. The New Hampshire statute, unlike that of Vermont, permits the employee or his representative to elect, after the injury, to sue for damages as at common law; and it was as a result of such an election made by the administratrix that the case at bar arose. The main question for decision is whether the existence of a right of action for Leon Clapper's death should be determined by the laws of Vermont, where both parties to the contract of employment resided and where the contract was made, or by the laws of New Hampshire, where the employee was killed.

          16

          First. It clearly was the purpose of the Vermont Act to preclude any recovery by proceedings brought in another State for injuries received in the course of a Vermont employment. The provisions of the Act leave no room for construction.[1] The statute declares in terms that when a workman is hired within the State, he shall be entitled to compensation thereunder for injuries received outside, as well as inside, the State, unless one of the parties elects to reject the provisions of the Act. And it declares further that for injuries wherever received the remedy under the statute shall exclude all other rights and remedies of the employee or his personal representative. If the accident [154] had happened in Vermont, the statute plainly would have precluded the bringing of an action for damages in New Hampshire under its employers' liability act.[2] For such action is predicated on a tort; and in Vermont an injury resulting from the employer's negligence is not a tort, if the provisions of the Compensation Act have been accepted. The question is whether the fact that the injury occurred in New Hampshire leaves its courts free to subject the employer to liability as for a tort. That is, may the New Hampshire courts disregard the relative rights of the parties as determined by the laws of Vermont where they resided and made the contract of employment; or must they give effect to the Vermont Act, and to the agreement implied therefrom, that the only right of the employee against the employer, in case of injury, shall be the claim for compensation provided by the statute?

          17

          Second. If the conflict presented were between the laws of a foreign country and those of New Hampshire, its courts would be free, so far as the restrictions of federal law are concerned, to attach legal consequences to acts done within the State, without reference to the undertaking of the parties, entered into at their common residence abroad, that such consequences should not be enforced between them. But the conflict here is between the laws of two States; and the Company in setting up as a defense a right arising under the Vermont statute, invokes Art. IV, § 1, of the Federal Constitution, which declares that "full faith and credit shall be given in each State to the public acts . . . of every other State." That a statute [155] is a "public act" within the meaning of that clause is settled. Modern Woodmen of America v. Mixer, 267 U.S. 544, 550, 551; Aetna Life Ins. Co. v. Dunken, 266 U.S. 389, 393. See Tennessee Coal, Iron & R. Co. v. George, 233 U.S. 354, 360; Chicago & Alton R. Co. v. Wiggins Ferry Co., 119 U.S. 615, 622.[3] A federal court sitting in New Hampshire is bound equally with courts of the State to observe the command of the full faith and credit clause, where applicable.[4] The precise question for decision is whether that clause is applicable to the situation here presented.

          18

          Third. The administratrix contends that the full faith and credit clause is not applicable. The argument is that to recognize the Vermont Act as a defense to the New Hampshire action would be to give to that statute an [156] extra-territorial effect, whereas a State's power to legislate is limited to its own territory. It is true that full faith and credit is enjoined by the Constitution only in respect to those public acts which are within the legislative jurisdiction of the enacting State. See National Mutual Bldg. & Loan Assn. v. Brahan, 193 U.S. 635, 647; Olmsted v. Olmsted, 216 U.S. 386, 395.[5] But, obviously, the power of Vermont to effect legal consequences by legislation is not limited strictly to occurrences within its boundaries. It has power through its own tribunals to grant compensation to local employees, locally employed, for injuries received outside its borders, compare Quong Ham Wah Co. v. Industrial Accident Comm., 255 U.S. 445, dismissing writ of error, 184 Cal. 26; 192 Pac. 1021, and likewise has power to exclude from its own courts proceedings for any other form of relief for such injuries.[6] [157] The existence of this power is not denied. It is contended only that the rights thus created need not be recognized in an action brought in another State; that a provision which Vermont may validly enforce in its own courts need not be given effect when the same facts are presented for adjudication in New Hampshire.

          19

          The answer is that such recognition in New Hampshire of the rights created by the Vermont Act, can not, in any proper sense, be termed an extra-territorial application of that Act.[7] Workmen's compensation acts are [158] treated, almost universally, as creating a statutory relation between the parties — not, like employer's liability acts, as substituting a statutory tort for a common law tort. See Cudahy Packing Co. v. Parramore, 263 U.S. 418, 423; Mulhall v. Nashua Mfg. Co., 80 N.H. 194, 197; 115 Atl. 449; Matter of Cameron v. Ellis Construction Co., 252 N.Y. 394, 396; 169 N.E. 622; Chandler v. Industrial Commission, 55 Utah 213, 217; 184 Pac. 1020; Anderson v. Miller Scrap Iron Co., 169 Wis. 106, 113, 117, 118; 170 N.W. 275; 171 N.W. 935. The relation between Leon Clapper and the Company was created by the law of Vermont; and as long as that relation persisted its incidents were properly subject to regulation there. For both Clapper and the Company were at all times residents of Vermont; the Company's principal place of business was located there; the contract of employment was made there; and the employee's duties required him to go into New Hampshire only for temporary and specific purposes, in response to orders given him at the Vermont office. The mere recognition by the courts of one State that parties by their conduct have subjected themselves to certain obligations arising under the law of another State is not to be deemed an extra-territorial application of the law of the State creating the obligation.[8] Compare [159] Canada Southern Ry. Co. v. Gebhard, 109 U.S. 527, 536, 537.

          20

          By requiring that, under the circumstances here presented, full faith and credit be given to the public act of Vermont, the Federal Constitution prevents the employee or his representative from asserting in New Hampshire rights which would be denied him in the State of his residence and employment. A Vermont court could have enjoined Leon Clapper from suing the Company in New Hampshire, to recover damages for an injury suffered there, just as it would have denied him the right to recover such damages in Vermont. Compare Cole v. Cunningham, 133 U.S. 107; Reynolds v. Adden, 136 U.S. 348, 353. The rights created by the Vermont Act are entitled to like protection when set up in New Hampshire by way of defense to the action brought there. If this were not so, and the employee or his representative were free to disregard the law of Vermont and his contract, the effectiveness of the Vermont Act would be gravely impaired. For the purpose of that Act, as of the workmen's compensation laws of most other States, is to provide, in respect to persons residing and businesses located in the State, not only for employees a remedy which is both expeditious and independent of proof of fault, but also for employers a liability which is limited and determinate. Compare New York Central R. Co. v. White, 243 U.S. 188; Hawkins v. Bleakly, 243 U.S. 210; Mountain Timber Co. v. Washington, 243 U.S. 219.

          21

          Fourth. It is urged that the provision of the Vermont statute which forbids resort to common law remedies for injuries incurred in the course of employment is contrary to the public policy of New Hampshire; that the full faith and credit clause does not require New Hampshire to enforce an act of another State which is obnoxious to its public policy; and that a federal court sitting in that State may, therefore, decline to do so. Compare Union [160] Trust Co. v. Grosman, 245 U.S. 412. It is true that the full faith and credit clause does not require the enforcement of every right conferred by a statute of another State. There is room for some play of conflicting policies. Thus, a plaintiff suing in New Hampshire on a statutory cause of action arising in Vermont might be denied relief because the forum fails to provide a court with jurisdiction of the controversy; see Chambers v. Baltimore & Ohio R. Co., 207 U.S. 142, 148, 149; compare Douglas v. New York, N.H. & H.R. Co., 279 U.S. 377; or because it fails to provide procedure appropriate to its determination, see Tennessee Coal, Iron & R. Co. v. George, 233 U.S. 354, 359; compare Slater v. Mexican National R. Co., 194 U.S. 120, 128, 129; or because the enforcement of the right conferred would be obnoxious to the public policy of the forum, compare Bothwell v. Buckbee, Mears Co., 275 U.S. 274, 277-279; Union Trust Co. v. Grosman, 245 U.S. 412; Bond v. Hume, 243 U.S. 15, 25; Converse v. Hamilton, 224 U.S. 243, 260, 261; or because the liability imposed is deemed a penal one, see Galveston, H. & S.A. Ry. Co. v. Wallace, 223 U.S. 481, 490, compare Stewart v. Baltimore & Ohio R. Co., 168 U.S. 445, 448. But the Company is in a position different from that of a plaintiff who seeks to enforce a cause of action conferred by the laws of another State. The right which it claims should be given effect is set up by way of defense to an asserted liability; and to a defense different considerations apply. Compare Home Ins. Co. v. Dick, 281 U.S. 397, 407, 408. A State may, on occasion, decline to enforce a foreign cause of action. In so doing, it merely denies a remedy, leaving unimpaired the plaintiff's substantive right, so that he is free to enforce it elsewhere. But to refuse to give effect to a substantive defense under the applicable law of another State, as under the circumstances here presented, subjects the defendant to irremediable liability. This may not be done. Compare Modern Woodmen [161] of America v. Mixer, 267 U.S. 544, 550, 551; Aetna Life Ins. Co. v. Dunken, 266 U.S. 389; Royal Arcanum v. Green, 237 U.S. 531. See also Western Union Telegraph Co. v. Brown, 234 U.S. 542; Atchison, T. & S.F. Ry. Co. v. Sowers, 213 U.S. 55, 69.

          22

          Moreover, there is no adequate basis for the lower court's conclusion that to deny recovery would be obnoxious to the public policy of New Hampshire. No decision of the state court has been cited indicating that recognition of the Vermont statute would be regarded in New Hampshire as prejudicial to the interests of its citizens.[9] In support of the contention that the provision of the Vermont Act is contrary to the New Hampshire policy, it is urged that New Hampshire's compensation law is unique among workmen's compensation acts in that it permits the injured employee to elect, subsequent to injury, whether to bring a suit based upon negligence or to avail himself of the remedy provided by the Act; and that the legislature of New Hampshire has steadily refused to withdraw this privilege.[10] But the mere fact that the Vermont legislation does not conform to that of New [162] Hampshire does not establish that it would be obnoxious to the latter's public policy to give effect to the Vermont statute in cases involving only the rights of residents of that State incident to the relation of employer and employee created there. Northern Pacific R. Co. v. Babcock, 154 U.S. 190, 198. Nor does sufficient reason appear why it should be so regarded. The interest of New Hampshire was only casual. Leon Clapper was not a resident there. He was not continuously employed there. So far as appears, he had no dependent there. It is difficult to see how the State's interest would be subserved, under such circumstances, by burdening its courts with this litigation.

          23

          Sixth. The administratrix urges that the Company had in fact accepted the provision of the New Hampshire Compensation Act, which reserves to the employee the right to elect to sue for damages as at common law. It was upon this ground, primarily, that the Circuit Court of Appeals based, upon the rehearing, the affirmance of the judgment of the District Court. The circumstances under which the acceptance of the New Hampshire Act was filed show that the Company did not intend thereby to abandon its rights under the Vermont law in respect to Leon Clapper or other employees similarly situated. It had had occasion to hire in New Hampshire residents of that State for employment there in connection with the operation of its lines in that State. In case of injury of such employees, failure to accept the New Hampshire Act would have made the petitioner liable to an action for negligence in which it would have been denied the defenses of assumption of risk and injury by a fellow servant. Jutras v. Amoskeag Mfg. Co., 84 N.H. 171, 173; 147 Atl. 753; Levesque v. American Box & Lumber Co., 84 N.H. 543; 153 Atl. 10. Its acceptance is to be construed as referable only to such New Hampshire employees, [163] and not as bringing under the New Hampshire Act employees not otherwise subject to it.

          24

          We are of opinion that the rights as between the Company and Leon Clapper or his representative are to be determined according to the Vermont Act. The judgment of the Circuit Court of Appeals must accordingly be reversed. We have no occasion to consider whether if the injured employee had been a resident of New Hampshire, or had been continuously employed there, or had left dependents there, recovery might validly have been permitted under New Hampshire law.

          25

          Reversed.

          26
          MR. JUSTICE CARDOZO took no part in the consideration or decision of this case.
          27
          MR. JUSTICE STONE, concurring.
          28

          I agree that in the circumstances of the present case, the courts of New Hampshire, in giving effect to the public policy of that state, would be at liberty to apply the Vermont statute and thus, by comity, make it the applicable law of New Hampshire. In the absence of any controlling decision of the New Hampshire courts, I assume, as does the opinion of the Court, that they would do so and that what they would do we should do. Hence, it seems unnecessary to decide whether that result could be compelled, against the will of New Hampshire, by the superior force of the full faith and credit clause.

          29

          If decision of that question could not be avoided, I should hesitate to say that the Constitution projects the authority of the Vermont statute across state lines into New Hampshire, so that the New Hampshire courts, in fixing the liability of the employer for a tortious act committed within the state, are compelled to apply Vermont law instead of their own. The full faith and credit clause [164] has not hitherto been thought to do more than compel recognition, outside the state, of the operation and effect of its laws upon persons and events within it. Bonaparte v. Tax Court, 104 U.S. 592; Atchison, T. & S.F. Ry. Co. v. Sowers, 213 U.S. 55; Olmsted v. Olmsted, 216 U.S. 386; Tennessee Coal, Iron & R. Co. v. George, 233 U.S. 354; Hood v. McGehee, 237 U.S. 611; see Union Trust Co. v. Grosman, 245 U.S. 412, 415, 416; Western Union Telegraph Co. v. Brown, 234 U.S. 542, 547.

          30

          It is true that in this case the status of employer and employe, terminable at will, was created by Vermont laws operating upon them while they were within that state. I assume that the fact of its creation there must be recognized elsewhere, whenever material. But I am not prepared to say that that status, voluntarily continued by employer and employe and given a locus in New Hampshire by their presence within the state, may not be regulated there according to New Hampshire law, or that the legal consequences of acts of the employer or employe there, which grow out of or affect the status in New Hampshire, must, by mandate of the Constitution, be either defined or controlled, in the New Hampshire courts, by the laws of Vermont rather than of New Hampshire.

          31

          The interest, which New Hampshire has, in exercising that control, derived from the presence of employer and employe within its borders, and the commission of the tortious act there, is at least as valid as that of Vermont, derived from the fact that the status is that of its citizens, and originated when they were in Vermont, before going to New Hampshire. I can find nothing in the history of the full faith and credit clause, or the decisions under it, which lends support to the view that it compels any state to subordinate its domestic policy, with respect to persons and their acts within its borders, to the laws of any other. On the contrary, I think it should be interpreted as leaving the courts of New Hampshire free, in [165] the circumstances now presented, either to apply or refuse to apply the law of Vermont, in accordance with their own interpretation of New Hampshire policy and law.

          32

          [1] "Right to Compensation Exclusive: The rights and remedies granted by the provisions of this chapter to an employee on account of a personal injury for which he is entitled to compensation under the provisions of this chapter, shall exclude all other rights and remedies of such employee, his personal representatives, dependents or next of kin, at common law or otherwise on account of such injury. Employers who hire workmen within this state to work outside of the state, may agree with such workmen that the remedies under the provisions of this chapter shall be exclusive as regards injuries received outside this state by accident arising out of and in the course of such employment, and all contracts of hiring in this state shall be presumed to include such an agreement." Vt. Gen. Laws, [1917] c. 241, § 5774.

          33

          [2] Compare Home Ins. Co. v. Dick, 281 U.S. 397. No question is here raised of the character of that considered in Atchison, T. & S.F. Ry. Co. v. Sowers, 213 U.S. 55; and Tennessee Coal, Iron & R. Co. v. George, 233 U.S. 354, of the validity of an attempt to create a statutory cause of action and confine it to the courts of the enacting State.

          34

          [3] See also Bothwell v. Buckbee, Mears Co., 275 U.S. 274, 279; Pennsylvania Fire Ins. Co. v. Gold Issue Mining & M. Co., 243 U.S. 93, 96; Western Life Indemnity Co. v. Rupp, 235 U.S. 261, 274, 275; Texas & New Orleans R. Co. v. Miller, 221 U.S. 408, 416; Louisville & Nashville R. Co. v. Melton, 218 U.S. 36, 50-52; El Paso & Northeastern Ry. Co. v. Gutierrez, 215 U.S. 87, 92, 93; Smithsonian Institute v. St. John, 214 U.S. 19, 28; Allen v. Alleghany Co., 196 U.S. 458, 464, 465; Finney v. Guy, 189 U.S. 335, 340; Johnson v. New York Life Ins. Co., 187 U.S. 491, 496; Eastern Bldg. & Loan Assn. v. Ebaugh, 185 U.S. 114, 121; Banholzer v. New York Life Ins. Co., 178 U.S. 402, 405, 406; Lloyd v. Matthews, 155 U.S. 222, 227, 228; Glenn v. Garth, 147 U.S. 360, 367, 369. Compare Royal Arcanum v. Green, 237 U.S. 531, 544, 545; Converse v. Hamilton, 224 U.S. 243, 260, 261; Hancock National Bank v. Farnum, 176 U.S. 640; Crapo v. Kelley, 16 Wall. 610; Green v. Van Buskirk, 5 Wall. 307. See 2 Farrand, "Records of the Federal Convention," pp. 188, 447, 577. Congress, acting under the authority of Article IV, § 1, has provided for the authentication of "acts of the legislature of any state or territory or of any country subject to the jurisdiction of the United States." Act of May 26, 1790, c. 11; Act of March 27, 1804, c. 56, § 2; Rev. Stat. § 905, U.S. Code, Tit. 28, § 687.

          35

          [4] Compare Mills v. Duryee, 7 Cranch 481; Rev. Stat. §§ 905, 906. See also Minnesota v. Northern Securities Co., 194 U.S. 48, 72; Cooper v. Newell, 173 U.S. 555, 567.

          36

          [5] See also New York Life Ins. Co. v. Head, 234 U.S. 149, 161; Bonaparte v. Tax Court, 104 U.S. 592, 594. Compare Atchison, T. & S.F. Ry. v. Sowers, 213 U.S. 55, 70; Tennessee Coal, Iron & R. Co. v. George, 233 U.S. 354, 360.

          37

          [6] For decisions construing state workmen's compensation acts as applicable, under appropriate circumstances, to injuries received outside the State, and upholding the validity of the acts as so construed, see Quong Ham Wah Co. v. Industrial Accident Comm., 184 Cal. 26, 36; 192 Pac. 1021; Industrial Commission v. Aetna Life Ins. Co., 64 Colo. 480, 490; 174 Pac. 589; Kennerson v. Thames Towboat Co., 89 Conn. 367, 375; 94 Atl. 372; Metropolitan Casualty Ins. Co. v. Huhn, 165 Ga. 667, 670; 142 S.E. 121; Beall Bros. Supply Co. v. Industrial Comm., 341 Ill. 193, 199; 173 N.E. 64; Pierce v. Bekins Van & Storage Co., 185 Iowa 1346, 1356; 172 N.W. 191; Saunder's Case, 126 Me. 144, 146; 136 Atl. 722; Pederzoli's Case, 269 Mass. 550, 553; 169 N.E. 427; Crane v. Leonard, Crossette & Riley, 214 Mich. 218, 231; 183 N.W. 204; State ex rel. Chambers v. District Court, 139 Minn. 205, 208, 209; 166 N.W. 185; State ex rel. Loney v. Industrial Accident Board, 87 Mont. 191, 195, 196; 286 Pac. 408; McGuire v. Phelan-Shirley Co., 111 Neb. 609, 611, 612; 196 N.W. 615; Rounsaville v. Central R. Co., 87 N.J. Law 371, 374; 94 Atl. 392; Post v. Burger & Gohlke, 216 N.Y. 544, 549; 111 N.E. 351; (compare Smith v. Heine Safety Boiler Co., 224 N.Y. 9, 11, 12; 119 N.E. 878; Cameron v. Ellis Construction Co., 252 N.Y. 394, 397; 169 N.E. 622); Grinnell v. Wilkinson, 39 R.I. 447, 462, 463; 98 Atl. 103; Smith v. Van Noy Interstate Co., 150 Tenn. 25, 36; 26 S.W. 104; Texas Employers' Ins. Assn. v. Volek, 44 S.W. (2d) 795, 798 (Tex. Civ. App.); Pickering v. Industrial Comm., 59 Utah 35, 38; 201 Pac. 1029; Gooding v. Ott, 77 W. Va. 487, 492, 493; 87 S.E. 862; Anderson v. Miller Scrap Iron Co., 169 Wis. 106, 114, 115; 170 N.W. 275; 171 N.W. 935. A contrary construction was reached in Altman v. North Dakota Workmen's Compensation Bureau, 50 N.D. 215; 195 N.W. 287; Sheehan Pipe Line Const. Co. v. State Industrial Comm., 151 Okla. 272, 273; 3 P. (2d) 199. Early decisions to like effect, in California, Illinois, and Massachusetts, have been superseded by statute. See North Alaska Salmon Co. v. Pillsbury, 174 Cal. 1; 162 Pac. 93; Union Bridge & Construction Co. v. Industrial Comm., 287 Ill. 396, 398; 122 N.E. 609; Gould's Case, 215 Mass. 480; 102 N.E. 693. The provisions of the state statutes in respect to injuries occurring outside the state are summarized in Schneider, "The Law of Workmen's Compensation" (2d ed. 1932), vol. I, pp. 428-433.

          38

          [7] The statute does not undertake to prohibit acts beyond the borders of the State. Compare Allgeyer v. Louisiana, 165 U.S. 578; Nutting v. Massachusetts, 183 U.S. 553, 557. It does not attempt to forbid or regulate subsequent modification of the Vermont contract, or the formation of subsidiary contracts, or new agreements, by the parties in other States. Compare New York Life Ins. Co. v. Head, 234 U.S. 149; New York Life Ins. Co. v. Dodge, 246 U.S. 357. It affects only the rights and liabilities of parties who by their conduct within the State have subjected themselves to its operation. As to those parties, its effect is not to create a liability for acts without the State, compare Western Union Telegraph Co. v. Brown, 234 U.S. 542, but to give rise to a defense in consequence of acts within.

          39

          [8] See Barnhart v. American Concrete Steel Co., 227 N.Y. 531, 535; 125 N.E. 675, denying recovery in a common law action for damages in the state of injury, on the ground that the employee's remedy was for compensation under the law of the state of employment. Compare In re Spencer Kellogg & Sons, 52 F. (2d) 129, 134, reversed on other grounds, 285 U.S. 502. Compensation was similarly denied in Hall v. Industrial Comm., 77 Colo. 338, 339; 235 Pac. 1073; Hopkins v. Matchless Metal Polish Co., 99 Conn. 457, 464; 121 Atl. 828; Proper v. Polley, 233 N.Y. App. Div. 621; 253 N.Y.S. 530. Compare Scott v. White Eagle Oil & Rfg. Co., 47 F. (2d) 615, 616. See also Darsch v. Thearle Diffield Fire Works Display Co., 77 Ind. App. 357; 133 N.E. 525. Compare Wiley v. Grand Trunk Ry. of Canada, 227 Fed. 127, 130; Mexican Nat. R. Co. v. Jackson, 118 Fed. 549, 552.

          40

          [9] Compare Saloshin v. Houle, 155 Atl. 47, an action of negligence by the widow of a New York resident killed in New Hampshire while working for a New York firm, brought against a third person residing in New Hampshire. The Supreme Court of New Hampshire held that the widow's right of action was barred by her acceptance, of compensation under the New York Act, and that the acceptance, in accordance with the provisions of that Act, operated as an assignment to the compensation insurer of her rights against the defendant.

          41

          [10] Attention is called to the following rejected compensation bills abolishing the right of election after accident: 1915 Session, House Bills No. 206, 302, Journal, pp. 720, 1021; 1917 Session, House Bills No. 319, 485, Journal, pp. 567, 568; 1919 Session, House Bill No. 134, Journal, p. 437; 1927 Session, House Bill No. 212, Journal, p. 752; 1929 Session, House Bill No. 292, Journal, p. 752. In 1923 the statute was amended to increase the compensation, N.H. Laws, 1923, c. 91; and in 1925, as amended, it was reenacted without change, N.H. Public Laws, c. 178.

      • 1.1.3 §1.1.3 Status—domicile

        • 1.1.3.1 Haumschild v. Continental Casualty Co.

          1
          7 Wis.2d 130 (1959)
          2
          HAUMSCHILD, Appellant,
          v.
          CONTINENTAL CASUALTY COMPANY and others, Respondents.
          3

          Supreme Court of Wisconsin.

          4
          March 2, 1959.
          5
          April 10, 1959.
          6

          [131] For the appellant there was a brief and oral argument by Thomas P. Maroney of Milwaukee.

          7

          For the respondents there was a brief by Shaw, Muskat & Paulsen, attorneys, and Jack R. Wiedabach of counsel, all of Milwaukee, and oral argument by Mr. Wiedabach.

          8
          CURRIE, J.
          9

          This appeal presents a conflict-of-laws problem with respect to interspousal liability for tort growing out of an automobile accident. Which law controls, that of the state of the forum, the state of the place of wrong, or the state of domicile? Wisconsin is both the state of the forum and of the domicile while California is the state where the alleged wrong was committed. Under Wisconsin law a wife may sue her husband in tort. Under California law she cannot. Peters v. Peters (1909), 156 Cal. 32, 103 Pac. 219; Cubbison v. Cubbison (1946), 73 Cal. App. (2d) 437, 166 Pac. (2d) 387; and Paulus v. Bauder (1951), 106 Cal. App. (2d) 589, 235 Pac. (2d) 422.

          10

          This court was first faced with this question in Buckeye v. Buckeye (1931), 203 Wis. 248, 234 N. W. 342. In that case Wisconsin was the state of the forum and domicile, while Illinois was the state of the place of wrong. It was there held that the law governing the creation and extent of tort liability is that of the place where the tort was committed, citing Goodrich, Conflict of Laws (1st ed.), p. 188, sec. 92. From this premise it was further held that interspousal immunity from tort liability necessarily is governed [132] by the law of the place of injury. This principle of conflict of laws has been consistently applied in all subsequent interspousal actions in automobile accident cases[1] except the recent case of Bodenhagen v. Farmers Mut. Ins. Co. (1958), 5 Wis. (2d) 306, 92 N. W. (2d) 759, 95 N. W. (2d) 822, hereinafter discussed.

          11

          The principle enunciated in the Buckeye Case and followed in subsequent Wisconsin cases, that the law of the place of wrong controls as to whether one spouse is immune from suit in tort by the other, is the prevailing view in the majority of jurisdictions in this country. Anno. 22 A. L. R. (2d) 1248, 1251-1253, entitled, "Conflict of laws as to right of action between husband and wife or parent and child." It is also the rule adopted in Restatement, Conflict of Laws, p. 457, sec. 378, and p. 470, sec. 384 (2). However, criticism of the rule of the Buckeye Case, by legal writers, some of them recognized authorities in the field of conflict of laws, and recent decisions by the courts of California, New Jersey, and Pennsylvania, have caused us to re-examine the question afresh.

          12

          In 1942, Prof. Walter Wheeler Cook of the Northwestern University Law School faculty published his book entitled, "The Logical and Legal Bases of the Conflict of Laws." It was his conclusion that the law of the domicile, and not the place of wrong, should be applied in determining whether [133] a wife had capacity to sue her husband in tort. Pages 248 to 250 and 345 to 346 of text. Also, in 1942, Max Rheinstein in an article in 41 Michigan Law Review, 83, 97, advocated that the law of domicile should be applied in conflict-of-laws situations to determine whether there is an immunity for tort grounded on family relationship. Ernst Rabel, in his "The Conflict of Laws: A Comparative Study" (1945), pp. 322, 323, pointed out that in the civil-law countries of western Europe prohibitions, which exclude lawsuits in tort between husband and wife, are considered part of family law and, therefore, the law of the domicile governs and not the law of the place of wrong.

          13

          The most-comprehensive treatment of the problem that we have discovered is the excellent 30-page article in 15 University of Pittsburgh Law Review, 397, entitled, "Interspousal Liability for Automobile Accidents in the Conflict of Laws: Law and Reason versus the Restatement," by Alan W. Ford, published in 1954. The article contains a careful analysis of the American cases on the subject commencing with our own Buckeye Case. The author's conclusion is stated as follows (p. 423):

          14

          "The lex fori and the lex loci delicti rules have already been criticized as inadequate. Between them, these two rules encompass all of the American cases. To find a more-desirable alternative we must, therefore, go beyond those cases. The foreign experience, briefly discussed above, is a useful starting point. As that experience suggests, there is some logic in separating questions of status and tort, in determining the incidents of the marital relationship by the family law, and the problems of tort by the law of torts. If a conflicts problem is involved, there is no reason why both questions should be determined by the law of torts. Instead, the two questions should remain separate, and problems of status or capacity could be referred, by an appropriate conflicts rule, to the law of the place of the domicile."

          15

          [134] Ford, in his article, cited four cases of interspousal immunity in which American courts have refused to apply the law of the place of wrong to an automobile accident situation but instead applied their own law of the forum: Poling v. Poling (1935), 116 W. Va. 187, 179 S. E. 604; Mertz v. Mertz (1936), 271 N. Y. 466, 3 N. E. (2d) 597, 108 A. L. R. 1120; Kircher v. Kircher (1939), 288 Mich. 669, 286 N. W. 120; and Kyle v. Kyle (1941), 210 Minn. 204, 297 N. W. 744. In all four cases one spouse sued the other in the state of domicile where there existed the immunity from suit in tort in a situation where the accident had occurred in a state which had abolished the immunity. The decisions were based on the ground that the public policy of the forum state forbade one spouse suing the other in tort.[2] The holdings in these four cases are highly significant because they are inconsistent in result with the theory that the injured spouse possessed a vested right in the cause of action which had accrued in the state where the alleged negligence occurred. Furthermore, these cases are authority for the principle that public policy may be a controlling factor to be considered by the court of the forum state in determining which law it will apply in resolving a conflict-of-laws problem. This factor of public policy is also acknowledged in Restatement, Conflict of Laws, pp. 9, 10, sec. 5, comment b.

          16

          The first case to break the ice and flatly hold that the law of domicile should be applied in determining whether there existed an immunity from suit for tort based upon family relationship is Emery v. Emery (1955), 45 Cal. (2d) [135] 421, 289 Pac. (2d) 218. In that case two unemancipated minor sisters sued their unemancipated minor brother and their father to recover for injuries sustained in an automobile accident that occurred in the state of Idaho, the complaint alleging wilful misconduct in order to come within the provisions of the Idaho "guest" statute. All parties were domiciled in California. The opinion by Mr. Justice TRAYNOR recognized that the California court, in passing on the question of whether an unemancipated minor child may sue the parent or an unemancipated brother, had a choice to apply the law of the place of wrong, of the forum, or of the domicile. It was held that the immunity issue was not a question of tort but one of capacity to sue and be sued, and rejected the law of the place of injury as "both fortuitous and irrelevant." In deciding whether to apply the law of the forum, or the law of the domicile, the opinion stated this conclusion (45 Cal. (2d) 428, 289 Pac. (2d) 222):

          17

          "Although tort actions between members of the same family will ordinarily be brought in the state of the family domicile, the courts of another state will in some cases be a more convenient forum, and thus the question arises whether the choice-of-law rule should be expressed in terms of the law of the forum or that of the domicile. We think that disabilities to sue and immunities from suit because of a family relationship are more properly determined by reference to the law of the state of the family domicile. That state has the primary responsibility for establishing and regulating the incidents of the family relationship and it is the only state in which the parties can, by participation in the legislative processes, effect a change in those incidents. Moreover, it is undesirable that the rights, duties, disabilities, and immunities conferred or imposed by the family relationship should constantly change as members of the family cross state boundaries during temporary absences from their home."

          18

          Since the decision in Emery v. Emery, supra, two other courts have held that, when a court is confronted with a [136] conflict-of-laws problem in order to resolve an issue of whether there is an immunity from suit for tort based upon a family relationship, the law to be applied is that of the domicile state. Koplik v. C. P. Trucking Corp. (1958), 27 N. J. 1, 141 Atl. (2d) 34; and Pittman v. Deiter (1957), 10 Pa. D. & C. (2d) 360. The conclusion reached by the New Jersey supreme court in the Koplik Case, after first having rejected the law of the place of injury as applicable to the immunity question, is stated succinctly as follows (27 N. J. 11, 141 Atl. (2d) 40):

          19

          "As a final word on the subject, we hold the view that even where an actual conflict-of-laws problem is directly presented, it is sensible and logical to have disabilities to sue and immunities from suit arising from the family relationship determined by reference to the law of the state of the family domicile when the suit is brought in that state. Otherwise, the lex loci will be permitted to interfere seriously with a status and a policy which the state of residence is primarily interested in maintaining." (Citing Emery v. Emery, supra, and Ford's article in 15 University of Pittsburgh Law Review.)

          20

          Among recent law-review articles and notes approving the holding of one or more of the afore-cited three cases, which have held that immunity from suit based on family relationship is a matter of family law rather than tort law and should be governed by the law of the domicile, are: 31 Temple Law Quarterly, 117, 4 Wayne Law Review, 79, and 33 Indiana Law Journal, 297. All were published in 1958.

          21

          The two reasons most often advanced for the common-law rule, that one spouse may not sue the other, are the ancient concept that husband and wife constitute in law but one person, and that to permit such suits will be to foment family discord and strife. The Married Women's Acts of the various states have effectively destroyed the "one person" [137] concept thereby leaving as the other remaining reason for the immunity the objective of preventing family discord. This is also the justification usually advanced for denying an unemancipated child the capacity to sue a parent, brother, or sister.[3] Clearly this policy reason for denying the capacity to sue more properly lies within the sphere of family law, where domicile usually controls the law to be applied, than it does tort law, where the place of injury generally determines the substantive law which will govern. In making a choice between the law of the domicile and the law of the forum, in those situations where the action is not brought in the state of the domicile, the afore-quoted persuasive arguments advanced by the California and New Jersey courts in Emery v. Emery, supra, and Koplik v. C. P. Trucking Corp., supra, in favor of applying the law of domicile to decide any issue of incapacity to sue based upon family relationship, seem unanswerable.

          22

          We are convinced that, from both the standpoint of public policy and logic, the proper solution of the conflict-of-laws problem, in cases similar to the instant action, is to hold that the law of the domicile is the one that ought to be applied in determining any issue of incapacity to sue based upon family relationship.

          23

          However, in order to adopt such a conflict-of-laws rule it will be necessary to overrule at least six prior decisions of this court, and to partially overrule two others. If it ever is proper for a court to depart from stare decisis, we scarcely can perceive of a more-justifiable situation in which to do so. In the first place, the rule being discarded is one lying [138] in the field of conflict of laws as applied to torts so that there can hardly have been any action taken by the parties in reliance upon it. Secondly, strong reasons of public policy exist for supplanting such rule by a better one which does not unnecessarily discriminate against the citizens of our own state.

          24

          The most-compelling argument against taking such step is that it departs from the rule of the Restatement, and disturbs the sought-after ideal of establishing some uniformity in the conflict-of-laws field. However, as well appears from the cases hereinbefore cited, there is a clearly discernible trend away from the rule of the Restatement in so far as it requires that the law of the place of wrong is to be applied in determining questions of incapacity to sue based on family status. Furthermore, it must be recognized that, in the field of the conflict of laws, absolutes should not be made the goal at the sacrifice of progress in furtherance of sound public policy. The American Law Institute is now engaged in redrafting a revised Restatement of Conflict of Laws. In such work of revision the question of whether the law of the domicile, rather than the law of the place of wrong, should be applied, in resolving an issue of interfamily immunity from suit in tort, will undoubtedly receive consideration.

          25

          After most careful deliberation, it is our considered judgment that this court should adopt the rule that, whenever the courts of this state are confronted with a conflict-of-laws problem as to which law governs the capacity of one spouse to sue the other in tort, the law to be applied is that of the state of domicile. We, therefore, expressly overrule the cases of Buckeye v. Buckeye, supra; Forbes v. Forbes (1938), 226 Wis. 477, 277 N. W. 112; Bourestom v. Bourestom (1939), 231 Wis. 666, 285 N. W. 426; Garlin v. Garlin (1951), 260 Wis. 187, 50 N. W. (2d) 373; [139] Scholle v. Home Mut. Casualty Co. (1956), 273 Wis. 387, 78 N. W. (2d) 902; and Hansen v. Hansen (1956), 274 Wis. 262, 80 N. W. (2d) 230. We do not overrule the result in the cases of Nelson v. American Employers' Ins. Co. (1951), 258 Wis. 252, 45 N. W. (2d) 681, and 22 A. L. R. (2d) 1244, and Jaeger v. Jaeger (1952), 262 Wis. 14, 53 N. W. (2d) 740, but we disapprove of the holding therein that the law of place of injury controlled the issue of interspousal immunity.

          26

          It is interesting to note that, if the rule now adopted had been applied in the first six cited overruled automobile accident cases, the result in four of such cases would have been to hold that there was no interspousal immunity from suit, because the parties were domiciled in Wisconsin. Only in Forbes v. Forbes, supra, and Bourestom v. Bourestom, supra, would immunity from suit have been found to exist if the law of the domicile, as interpreted by this court, had been applied to such issue.

          27

          The Forbes Case is the only one of the eight where the place of wrong was Wisconsin. The parties were nonresidents domiciled in Illinois. For the reasons hereinbefore set forth, it is apparent that Illinois rather than Wisconsin was the state most concerned with the policy considerations of whether the plaintiff wife had capacity to sue her husband. Furthermore, the plaintiff in the Forbes Case would not have fared worse in Wisconsin than she would have in the state of domicile.

          28

          The Bourestom Case involved "forum shopping" which ought to be discouraged rather than tolerated. There Oklahoma was the state of injury, Minnesota the state of domicile, and Wisconsin the state of forum. The adoption of the new rule would not in theory close the doors of our courts to a nonresident spouse in such a situation instituting suit in Wisconsin. However, the defendant spouse might have [140] a good defense in bar if he pleaded, and proved, the true state of domicile, and took the proper steps to bring before the trial court the law of such state granting the immunity.

          29

          Perhaps a word of caution should be sounded to the effect that the instant decision should not be interpreted as a rejection by this court of the general rule that ordinarily the substantive rights of parties to an action in tort are to be determined in the light of the law of the place of wrong. This decision merely holds that incapacity to sue because of marital status presents a question of family law rather than tort law.

          30

          Earlier in this opinion we made a brief reference to our recent decision in Bodenhagen v. Farmers Mut. Ins. Co. In that case a wife domiciled in Wisconsin instituted suit against the insurer of her husband's automobile to recover for injuries sustained in an automobile accident occurring in Illinois as a result of the alleged negligence of the husband. We first looked to Illinois law to determine whether a cause of action existed in favor of the plaintiff wife. The Illinois law was interpreted by us as holding that its interspousal immunity against suit in tort barred only the remedy and not the cause of action, and, therefore, Wisconsin, as the forum state, would not apply such law. A motion for rehearing was filed subsequent to our original decision and the brief filed in support thereof caused this court to grant a rehearing. The reason for so doing was that we entertained grave doubt as to whether we had reached the right conclusion in holding that under Illinois law the interspousal immunity to suit in tort was procedural and not substantive. Because of the result reached in the instant appeal we now find it unnecessary to pass on such last-mentioned point. In an opinion this day handed down in such rehearing in the Bodenhagen Case we have affirmed the original result, but have grounded the same upon the principle [141] herein adopted, i.e., that the law of domicile controls the issue of interspousal immunity.

          31

          The concurring opinion by Mr. Justice FAIRCHILD protests that we should not adopt the conflict-of-laws rule, that interspousal immunity to suit in tort should be determined by the law of the domicile, because this was not urged in the briefs or arguments of counsel. However, appellant's brief did cite and summarize Emery v. Emery, supra, and on the oral argument appellant's counsel also cited Koplik v. C. P. Trucking Corp., supra, in which two cases such rule was adopted by the California and New Jersey courts. While the appellant's counsel did not request that we overrule Buckeye v. Buckeye, supra, and the subsequent Wisconsin cases dealing with this particular conflict-of-laws problem, he did specifically seek to have this court apply California's conflict-of-laws principle, that the law of the domicile is determinative of interspousal capacity to sue, to this particular case. However, to do so would violate the well-recognized principle of conflict of laws that, where the substantive law of another state is applied, there necessarily must be excluded such foreign state's law of conflict of laws. Restatement, Conflict of Laws, p. 11, sec. 7 (b); 11 Am. Jur., Conflict of Laws, p. 296, sec. 3; 15 C. J. S., Conflict of Laws, p. 872, sec. 7; Griswold, Renvoi Revisited, 51 Harvard Law Review, 1165, 1170, 1173;[4] and note in 18 George Washington Law Review, 559.

          32

          The reason why the authorities on conflict of laws almost universally reject the renvoi doctrine (permitting a court [142] of the forum state to apply the conflict-of-laws principle of a foreign state) is that it is likely to result in the court pursuing a course equivalent to a never-ending circle. For example, in the instant case, if the Buckeye v. Buckeye line of Wisconsin cases is to be followed, the Wisconsin court first looks to the law of California to see whether a wife can sue her husband in tort. California substantive law holds that she cannot. However, California has adopted a conflict-of-laws principle that holds that the law of the domicile determines such question. Applying such principle the court is referred back to Wisconsin law because Wisconsin is the state of domicile. Again the court applies Wisconsin law and, under the prior holdings of the Buckeye v. Buckeye line of authorities, would have to again refer to California law because such line of cases does not recognize that the law of domicile has anything to do with interspousal immunity, but holds that the law of the state of injury controls.

          33

          Wisconsin certainly should not adopt the much-criticized renvoi principle in order not to overrule the Buckeye v. Buckeye line of cases, and still permit the plaintiff to recover. Such a result we believe would contribute far more to produce chaos in the field of conflict of laws than to overrule the Buckeye v. Buckeye line of cases and adopt a principle the soundness of which has been commended by so many reputable authorities.

          34

          By the Court.—Judgment reversed, and cause remanded for further proceedings not inconsistent with this opinion.

          35
          FAIRCHILD, J. (concurring).
          36

          I concur in the reversal of the judgment, but do not find it necessary to reexamine settled Wisconsin law in order to do so. A fundamental change in the law of Wisconsin such as the one announced by the majority in this case, which will importantly affect many people, should be made, if at all, in [143] a case where the question is necessarily presented. Both parties assumed that their case would be decided under the principle which is being overturned by the majority, and accordingly, we have not had the benefit of brief or argument upon the validity of the principle.

          37

          1. Solution of this case without overruling previous decisions. Plaintiff wife alleges a personal injury tort cause of action arising in California against defendant husband. Defendant husband pleads that she has no cause of action because she was his wife. It has been the rule in Wisconsin that the existence or nonexistence of immunity because of family relationship is substantive and not merely procedural, and is to be determined by the law of the locus state. The law of California is that the existence or nonexistence of immunity is a substantive matter, but that it is an element of the law of status, not of tort. The tort law of California is no more concerned with immunity than is Wisconsin's. Thus it makes no difference under the facts of this case whether we look directly to the law of Wisconsin to determine that immunity is not available as a defense or look to the law of Wisconsin only because California, having no general tort principle as to immunity, classifies immunity as a matter of status.

          38

          2. Policy questions requiring full consideration. Under the principle announced by the majority that the existence or nonexistence of immunity is a matter of status, our courts must henceforth recognize immunity as a defense where the alleged tort occurred in Wisconsin, but the parties are married and are domiciled in an immunity state. This would mean that such an act is or is not a remedial wrong depending upon the state where the parties happen to be domiciled.

          39

          The determination of domicile is not always easy, yet the courts will henceforth be required to determine it in many cases where it has henceforth been considered immaterial. [144] A good many married couples who may have domicile in other states are in Wisconsin for extended periods. Some, for example, are students at colleges and universities, some stationed here for military duty, some temporarily assigned here by employers, and some vacationing. Under the rule abandoned by the majority, a tortious act done in Wisconsin by a nonresident and injuring his spouse gave rise to the same civil liability as if done by a permanent resident.

          40

          The problem involved apparently has its principal impact because of injuries sustained in automobile accidents where members of a family travel together across state lines. Under the new rule Wisconsin courts will not countenance the defense of immunity for a Wisconsin husband when sued by his wife for an injury occurring in an immunity state. I concede there is some merit to the logic relied upon and that there may be some practical benefit to Wisconsin people. It is to be remembered, however, that under the law of many states a wife will have no cause of action for simple negligence of her husband because she will be a gratuitous guest. The fact that she and her husband are domiciled in Wisconsin and that they are on a family trip which began in Wisconsin will not exempt her from that principle of tort law. Thus the purely practical benefit to Wisconsin people which might appear at first blush to arise from the new rule will be limited.

          41

          If we deem it necessary and proper at this stage to reject a well-settled rule of law, should we limit ourselves to all the implications of the rule that the availability of the defense of immunity is to be governed by the law of domicile ? If we have a free choice of what the law is to be henceforth might not the public policy of Wisconsin be better served by some other alternative ? One possible alternative is that the availability of the defense of family immunity will be determined by the law of the forum. Actually this is [145] the result reached in a good many of the decisions, although different reasons are given. Admittedly, the proposition that family immunity is substantive and destroys or prevents the existence of a cause of action can be supported by neater logic than a proposition that it is only a denial of a remedy in the courts of a particular state, but these arguments are metaphysical and might well be re-examined if greater justice would be accomplished as a practical matter by a change in thinking.

          42

          Another possible alternative would be that the forum state when faced with the question of immunity choose the law of whichever state (locus or domicile) conforms more closely to its own. The party adversely affected by such a rule can be said to have subjected himself to the law of the domicile state by choosing to live in it or to the law of the locus state by choosing to travel in it. Our legislature has set up a similar rule for a choice of law with respect to the mode of execution of a will outside of Wisconsin. Sec. 238.07, Stats.

          43

          In summary, I would dispose of the present case upon the theory that California law governs the existence of the alleged cause of action and that in California the immunity question cannot be decided by resort to the law of torts but rather the law of status. I would leave to a later case the consideration of whether the Wisconsin rule of choice of law as to the defense of family immunity should remain as heretofore or, if it is to be changed, which rule will be best.

          44
          I am authorized to state that Mr. Justice BROWN concurs in this opinion.
          45

          [1] The case of Jaeger v. Jaeger (1952), 262 Wis. 14, 53 N. W. (2d) 740, sometimes has been mistakenly interpreted as holding that the law of the domicile applied. However, as explained in Hansen v. Hansen (1956), 274 Wis. 262, 264, 80 N. W. (2d) 230, the law of Arizona, the place of wrong, was actually applied, but because the Arizona Married Women's Act was similar to that of Wisconsin and the Arizona courts had not construed the same with reference to tort liability, we presumed the Arizona judicial interpretation of such act would be the same as that of Wisconsin. The discussion in the Jaeger Case with reference to the law of domicile was confined to the community-property issue and must be so interpreted.

          46

          [2] Conversely, after New York had abolished the immunity, it refused to hold that it offended the public policy of the forum state to apply the law of the state of wrong and deny recovery where the state in which the accident occurred still preserved the immunity. Coster v. Coster (1943), 289 N. Y. 438, 46 N. E. (2d) 509, 146 A. L. R. 702, rehearing denied, 290 N. Y. 662, 49 N. E. (2d) 621.

          47

          [3] Rather persuasive arguments were advanced before this court in the recent case of Schwenkhoff v. Farmers Mut. Automobile Ins. Co. (1959), 6 Wis. (2d) 44, 93 N. W. (2d) 867, that other policy considerations require that such immunity be abolished. However, in the opinion it was pointed out that the 1957 legislature had rejected a bill which would have abolished the immunity, and that the problem was one for the legislature rather than the court.

          48

          [4] While Griswold in such article written in 1938 himself advocates the application of the renvoi doctrine in a case like the instant one, he concedes that the overwhelming weight of authority is contra. Cook, in his "The Logical and Legal Bases of the Conflict of Laws," pp. 248-250, expressly rejects Griswold's proposed solution and recommends instead the adoption of the conflict-of-laws principle that the law of the domicile should be applied in the first instance to a question of interspousal immunity to suit in tort.

      • 1.1.4 §1.1.4 Escape devices (characterization; public policy; procedure; renvoi)

        • 1.1.4.1 Kilberg v. Northeast Airlines

          1
          9 N.Y.2d 34 (1961)
          2
          Jack Kilberg, as Administrator of The Estate of Edward J. Kilberg, Deceased, Appellant,
          v.
          Northeast Airlines, Inc., Respondent.
          3

          Court of Appeals of the State of New York.

          4
          Argued October 12, 1960.
          5
          Decided January 12, 1961.
          6

          Lee S. Kreindler, Leonard J. Fassler and Jay R. Handwerger for appellant.

          7

          William J. Junkerman, James B. McQuillan and Maurice L. Noyer for respondent.

          8

          Judges DYE, BURKE and FOSTER concur with Chief Judge DESMOND; Judge FULD concurs in result in a separate opinion; Judge FROESSEL concurs for affirmance in a separate opinion in which Judge VAN VOORHIS concurs.

          9
          [37] Chief Judge DESMOND.
          10

          Defendant is a common carrier of passengers by air. Plaintiff's intestate, a passenger on one of defendant's planes, was killed in August, 1958 when the airship crashed and burned at Nantucket, Massachusetts, in the course of a flight from a New York airport. The complaint pleads three causes of action but this appeal has to do, immediately, with the second count only. That part of the complaint has been dismissed for insufficiency by the Appellate Division which reversed Special Term's denial of defendant's motion to dismiss. Plaintiff appeals here from the dismissal. We shall have occasion farther on in this opinion to discuss the first cause of action in [38] which plaintiff sues under the Massachusetts wrongful death statute.

          11

          The disputed second cause of action alleges that plaintiff's intestate before boarding the plane at La Guardia Airport bought from defendant a ticket for transportation to Nantucket, that defendant by causing his death in the crash breached its contract to carry him safely and that as a result the passenger's estate and his dependent suffered substantial damages (stated as $150,000) for which his administrator sues and which include "loss of accumulations of prospective earnings of the deceased." There was in effect at the time of this disaster section 2 of chapter 229 of the General Statutes of Massachusetts which gave a cause of action against a common carrier for negligently causing a passenger's death but limited to not less than $2,000 or more than $15,000 the damages to be awarded therefor. Special Term, citing Dyke v. Erie Ry. Co. (45 N.Y. 113) and other authorities, held that plaintiff could sue in contract and that the law of New York, the place of contract, governed such a cause of action and not the law of Massachusetts, the place of the wrong. The Appellate Division, considering the Dyke decision inapplicable, took the position that the second cause of action, however labeled or phrased, is in tort for negligently causing death and as such is subject to the damage limitation of the Massachusetts wrongful death statute.

          12

          Plaintiff's submission as to this second count is that it sounds in contract and so is governed for all purposes by the law of New York, the place of contract. If the alleged contract breach had caused injuries not resulting in death, a New York-governed contract suit would, we will assume, be available (Dyke v. Erie Ry. Co., 45 N.Y. 113, 117, supra; Busch v. Interborough R. T. Co., 187 N.Y. 388; Fish v. Delaware, L. & W. R. R. Co., 211 N.Y. 374, app. dsmd. 245 U. S. 675; Restatement, Conflict of Laws, § 337). But it is law long settled that wrongful death actions, being unknown to the common law, derive from statutes only and that the statute which governs such an action is that of the place of the wrong (Whitford v. Panama R. R. Co., 23 N.Y. 465; Baldwin v. Powell, 294 N.Y. 130). Language found in the old case of Doedt v. Wiswall (15 How. Prac. 128, 141. affd. 15 How. Prac. 145) cannot be used to overrule so basic a rule. It follows, as the Appellate Division correctly held here, [39] that plaintiff as administrator has no separate right to sue this carrier in contract for causing his intestate's death (Webber v. Herkimer & Mohawk St. R. R. Co., 109 N.Y. 311), that the cause of action for injuries did not survive (Bernstein v. Queens County Jockey Club, 222 App. Div. 191, and cases cited therein), and that the second cause of action had to be dismissed.

          13

          That does not mean, however, that for this alleged wrong plaintiff cannot possibly recover more than the $15,000 maximum specified in the Massachusetts act. Modern conditions make it unjust and anomalous to subject the traveling citizen of this State to the varying laws of other States through and over which they move. The number of States limiting death case damages has become smaller over the years but there are still 14 of them (compare the list in Tiffany, Death by Wrongful Act [1st ed., 1893], p. xvii, with the data found in Martindale-Hubbell Law Digests, 1960 ed., Vol. IV). An air traveler from New York may in a flight of a few hours' duration pass through several of those commonwealths. His plane may meet with disaster in a State he never intended to cross but into which the plane has flown because of bad weather or other unexpected developments, or an airplane's catastrophic descent may begin in one State and end in another. The place of injury becomes entirely fortuitous. Our courts should if possible provide protection for our own State's people against unfair and anachronistic treatment of the lawsuits which result from these disasters. There is available, we find, a way of accomplishing this conformably to our State's public policy and without doing violence to the accepted pattern of conflict of law rules.

          14

          Since both Massachusetts (General Statutes, ch. 229, §§ 1, 2, as in effect in Sept. 1958) and New York (Decedent Estate Law, § 130) authorize wrongful death suits against common carriers, the only controversy is as to amount of damages recoverable. New York's public policy prohibiting the imposition of limits on such damages is strong, clear and old. Since the Constitution of 1894, our basic law has been (N. Y. Const., art. I, § 16; N. Y. Const. [1894], art. I, § 18) that "The right of action now existing to recover damages for injuries resulting in death shall never be abrogated; and the amount recoverable shall not be subject to any statutory limitation." Each later revision of the State Constitution has included this same prohibition [40] against limitations of death action damages. The reasons for its adoption are set forth in the proceedings of the 1894 Constitutional Convention (see discussion in Lincoln's Constitutional History of New York, Vol. III, pp. 57-65, and in Medinger v. Brooklyn Heights R. R. Co., 6 App. Div. 42 [1896]). New York's original wrongful death law (L. 1847, ch. 450), passed very soon after Lord Campbell's Act became law in Great Britain, had like the latter no restriction as to damages. The Legislature later imposed such limits but the convention which drew the 1894 Constitution rejected and forbade them. "The argument which evidently controlled the convention in its action consisted of the claim that the arbitrary limitation was absurd and unjust in measuring the pecuniary values of all lives to the next of kin by the same arbitrary standard" (Justice HATCH in Medinger opinion, supra, p. 46). The absurdity and injustice have become increasingly apparent in the six decades that have followed. For our courts to be limited by this damage ceiling (at least as to our own domiciliaries) is so completely contrary to our public policy that we should refuse to apply that part of the Massachusetts law (see Mertz v. Mertz, 271 N.Y. 466, 471; Shannon v. Irving Trust Co., 275 N.Y. 95, 102, 103). The Massachusetts cases likewise say that Massachusetts will enforce the lex loci delicti in wrongful death suits unless Massachusetts public policy forbids (see Higgins v. Central New England R. R. Co., 155 Mass. 176; Jackson v. Anthony, 282 Mass. 540, 545, 547).

          15

          An illustration of our readiness to reject such arbitrary limitations, on public policy grounds, is Conklin v. Canadian-Colonial Airways (266 N.Y. 244). In the Conklin suit plaintiff's intestate had purchased in Albany a plane ticket to Newark, New Jersey, which on its face limited to $5,000 defendant's liability for negligently causing a passenger's death. That limitation, just like the limitation here in question, was contrary to New York's public policy but valid in New Jersey which was the place of the plane disaster and of defendant's alleged wrongdoing. The public policy which allowed us to strike down the contractual limitation in Conklin's case has no less effect here. We will still require plaintiff to sue on the Massachusetts statute but we refuse on public policy grounds to enforce one of its provisions as to damages.

          16

          [41] Actually, we have in Wooden v. Western N. Y. & Pa. R. R. Co. (126 N.Y. 10, 16-17) a flat holding by our court that, in an action brought for causing a wrongful death in Pennsylvania, the New York courts would enforce our limitation of damages (as it then existed) although Pennsylvania had no such limitation. The reason, equally pertinent here, is that the "restriction pertains to the remedy rather than the right" (p. 16) and "does not strictly affect the rule of damages, but rather the extent of damages, and that extent, as limited or unlimited, does not enter into any definition of the right enforced or the cause of action permitted to be prosecuted." Loucks v. Standard Oil Co. (224 N.Y. 99) does not overrule Wooden (supra). Looking at the true holding of the Loucks case (supra) rather than picking out language from the opinion, we find that the court was merely deciding that the minimum set for recovery in the Massachusetts wrongful death statute did not make it a "penal statute" unenforcible here because contrary to our public policy (see Chief Judge CARDOZO'S reference to Loucks in Wikoff v. Hirschel, 258 N.Y. 28, 30).

          17

          As to conflict of law rules it is of course settled that the law of the forum is usually in control as to procedures including remedies (Franklin Sugar Refining Co. v. Lipowicz, 247 N.Y. 465, 468; Russell v. Societe Anonyme, 268 N.Y. 173, 181). However, as Professor Leflar says (Conflict of Laws, § 60), remedial and substantive "shade into each other constantly" and "the law of the forum normally determines for itself" whether a given question is one of substance or procedure. This is the conventional approach and was the one used in the only New York appellate decision on the subject (Murray v. New York, O. & W. R. R. Co., 242 App. Div. 374; see Collins v. American Auto. Ins. Co., 230 F.2d 416, 422; 32 N. Y. U. L. Rev. 786; Restatement, Conflict of Laws, § 584). As to whether the measure of damages should be treated as a procedural or a substantive matter in wrongful death cases, there is authority both ways (see, for instance, Walton School of Commerce v. Stroud, 248 Mich. 85) and no controlling New York decision except the statements quoted in an earlier paragraph of this opinion from the Wooden decision (126 N.Y. 10, 17, supra). It is open to us, therefore, particularly in view of our own strong public policy as to death action damages, to [42] treat the measure of damages in this case as being a procedural or remedial question controlled by our own State policies.

          18

          Some of the older Federal cases (see Northern Pacific R. R. Co. v. Babcock, 154 U. S. 190; Slater v. Mexican Nat. R. R. Co., 194 U. S. 120, 126) gave defendants the benefits of limitations of damages found in the law of the place of wrong, regardless of where the actions were brought. Those cases, however, are not binding on us and do not bring into play the full faith and credit clause of the Constitution (see Wells v. Simonds Abrasive Co., 345 U. S. 514). We think that time has proven the wisdom and practicality of the Slater case dissent, which adopted the rule of Wooden v. Western N. Y. & Pa. R. R. Co. (supra).

          19

          From all of this it follows that while plaintiff's second or contract cause of action is demurrable, his first count declaring under the Massachusetts wrongful death action is not only sustainable but can be enforced, if the proof so justifies, without regard to the $15,000 limit. Plaintiff, therefore, may apply if he be so advised for leave to amend his first cause of action accordingly.

          20

          The judgment appealed from should be affirmed, with costs.

          21
          FULD, J. (concurring).
          22

          I, too, believe that the judgment dismissing the contract cause of action alleged in the second count of the complaint should be affirmed. However, having made that determination, I would go no further.

          23

          To expatiate on this, I would say that, while I agree that the second count — the only one before us — fails to state a cause of action, I find no warrant or justification for going beyond that single issue and considering, sua sponte, questions which underlie the complaint's first count alleging a cause of action for wrongful death under the Massachusetts statute. I do not mean to suggest that, in passing upon a case, a court is confined to the authorities furnished or the arguments advanced by counsel, for I deem it clear that, within certain limits, a court is free to reach a decision concerning the issue posed on any ground available. (See, e.g., Rentways, Inc., v. O'Neill Milk & Cream Co., 308 N.Y. 342, 349.) But, as I have already indicated, this does not entitle a court to discuss or decide an issue which not only is not argued by the parties, but actually is not raised or presented by the record.

          24

          [43] In this case, the court is called upon to decide only the sufficiency of the second cause of action, sounding in contract, and, quite obviously, whether the monetary limitation specified in the Massachusetts wrongful death statute may be disregarded has nothing whatsoever to do with that decision. Consequently, I feel constrained to limit my discussion to the validity of the contract cause of action. Decision on the question whether the maximum prescribed by the Massachusetts statute measures the amount which the plaintiff may recover on his first cause of action should await an appeal where that issue is presented and the parties have had an opportunity of briefing and arguing it.

          25

          As to the question before us, the sufficiency of the contract cause of action, one might well begin by noting that in Baker v. Bolton (1 Camp. 493), decided in 1808, Lord ELLENBOROUGH declared, by way of dictum, that, "In a civil court, the death of a human being could not be complained of as an injury". Learned authors attacked the rule thus announced as "obviously unjust" — it had as its consequence that "it was more profitable for the defendant to kill the plaintiff than to scratch him" (Prosser, Torts [2d ed., 1955], p. 710) — and as being "based upon a misreading of legal history". (3 Holdsworth, History of English Law [3d ed., 1923], p. 336; see, also, Salmond, Torts [12th ed., 1957], p. 625; Winfield, Death as Affecting Liability in Tort, 29 Col. L. Rev. 239, 252-253.) Nevertheless, harsh and anomalous though it was, the rule prevailed in England and in this country until the enactment of wrongful death statutes. (See 2 Harper and James, The Law of Torts [1956], pp. 1284-1285; Prosser, op. cit., pp. 709-710; Salmond, op. cit., pp. 623-625.)

          26

          Although it appears that in England, even before enactment in 1846 of the wrongful death statute known as Lord Campbell's Act, it had been held that, "where death is caused by the breach of a carrier's implied contract for safe carriage, the executor or administrator, although he could not sue in tort, [could] sue in contract, and recover damages suffered by the decedent's estate" (Tiffany, Death by Wrongful Act [2d ed., 1913], p. 21; see, also, Salmond, op. cit., p. 624), no such exception seems to have been recognized in the United States. In fact, in New York, this English exception for wrongful death arising out of a breach of contract of safe carriage was disavowed in this court as early as 1866 in the case of Green v. Hudson Riv. R. R. Co. [44] (2 Keyes 294; 2 Abb. Ct. App. 277, affg. 28 Barb. 9), where the complaint alleged "that the deceased became a passenger on a train from Albany to New York, under the usual engagement to be safely carried, and that by the gross carelessness and unskillfulness of the defendant's agents, a collision occurred, by means of which the said [passenger] was then and there killed" (28 Barb. 9, 14). Although the rule was acknowledged to be "harsh or narrow" (2 Keyes, at p. 303; 2 Abb. Ct. App., at p. 286), the court, nevertheless, denied recovery and concluded that "It is sufficient that the rule is settled so firmly that courts would travel beyond their province into the boundaries of legislation by any attempt to alter it, or to create, by their decision, causes of action not before known" (2 Keyes, at p. 295; 2 Abb. Ct. App., at p. 279; see also, Duncan v. St. Luke's Hosp., 113 App. Div. 68, affd. 192 N.Y. 580).

          27

          Thus, whatever may have been the English rule as to recovery for death arising out of a breach of contract of safe carriage, in New York, at least, there was no recovery at common law. The question arises, then, whether, following enactment of a wrongful death statute in this State, an action could be brought on contract for damages for death resulting from the breach of a carrier's agreement. The answer seems to be in the affirmative where the wrongful act causing death, as well as the agreement, occurred in this State. (See Doedt v. Wiswall, 15 How. Prac. 128, affd. 15 How. Prac. 145; cf. Greco v. Kresge Co., 277 N.Y. 26, 34, citing the Doedt case with approval; Roche v. St. John's Riverside Hosp., 96 Misc. 289, affd. 176 App. Div. 885; Keiper v. Anderson, 138 Minn. 392.)[1] This, though, does not resolve the problem presented by the case before us, where, although the agreement of safe carriage was made in New York, the wrongful act causing death occurred elsewhere.

          28

          If this were a matter of first impression, it might be effectively argued that, where "two or more communities are touched or [45] affected by a factual sequence", the "guide to the governing law" should be the jurisdiction having "the most significant contact or contacts" (Harper, Policy Bases of the Conflict of Laws: Reflections on Rereading Professor Lorenzen's Essays, 56 Yale L. J. 1155, 1161). And, since the contract of safe carriage was undertaken in New York and since this fact provides a more "significant contact" than the adventitious occurrence of the crash in Massachusetts, it might well be further urged, this State's wrongful death statute and not that of Massachusetts should apply.

          29

          Impressed though I am by the theoretical soundness of such a position, I am forced to the conclusion that it is foreclosed by our decisions. In Crowly v. Panama R. R. Co. (30 Barb. 99), which presents a fact pattern not unlike that in this case, the plaintiff's intestate had entered into a contract of safe carriage in New York and was killed as the result of acts of negligence of the carriers in Panama. Although Panama had no wrongful death statute at the time, New York did, and the plaintiff attempted to bring himself under that statute by arguing that "the contract was made, and the fare paid, in this state" (30 Barb., at p. 109). The court rejected this argument and dismissed the complaint. Not only has the Crowly decision been cited with approval by this court (e.g., Leonard v. Columbia Steam Nav. Co., 84 N.Y. 48, 53; McDonald v. Mallory, 77 N.Y. 546, 550; Whitford v. Panama R. R. Co., 23 N.Y. 465, 475), but we have categorically declared, and quite recently, that our wrongful death statute (Decedent Estate Law, § 130) "applies only to actions brought for damages for a wrong committed here causing the death of a person" and is to be given no extra-territorial effect in cases where injury and death occur outside of the State. (Baldwin v. Powell, 294 N.Y. 130, 132; see, also, Debevoise v. New York, L. E. & W. R. R. Co., 98 N.Y. 377, 379; McDonald v. Mallory, 77 N.Y. 546, 550, supra.)

          30

          Nor does section 116 of the Decedent Estate Law, upon which the plaintiff relies, give him a right to sue in contract for his intestate's allegedly wrongful death. That statute, simply declaring that "actions upon contract, may be maintained by and against executors, in all cases in which the same might have been maintained, by or against their respective testators", creates no new rights or liabilities. Since, as is apparent, plaintiff's [46] intestate could not have maintained the cause of action alleged in the second count, there was no right of action to survive his death.

          31

          In sum, then, limiting consideration to the only matter before us, it is my conclusion that no action ex contractu is available to the plaintiff under either the common law of New York or its wrongful death statute and that, therefore, the Appellate Division properly granted the defendant's motion to dismiss the second cause of action.

          32
          FROESSEL, J. (concurring).
          33

          We concur for affirmance of the judgment appealed from, dismissing plaintiff's second cause of action. We should reach no other question. In this case, defendant moved to dismiss the second cause of action for legal insufficiency, and nothing more; the subsequent notices of appeal were limited accordingly. Special Term denied the motion. The Appellate Division unanimously reversed and granted the motion, properly stating that it was "not concerned here with the causes of action for wrongful death and conscious pain and suffering". We think the court below was entirely correct.

          34

          Although the first cause of action is not before us, and it has not been argued or passed upon by the courts below, the majority of this court is now reaching out to consider that cause of action, without application of any kind with respect thereto on the part of anyone. It is exercising discretion usually exercised by the courts below, as to a cause of action not properly before us, and granting plaintiff leave to apply for amendment of that cause of action on the assumption that plaintiff's intestate was a resident of this State at the time of his death. This procedure is not only unprecedented, but extends beyond our province.

          35

          Moreover, the court is laying down a new rule of law whereby we disregard the Massachusetts limitation as to damages in a wrongful death action, thereby undermining the accepted pattern of conflict of law rules, in effect overruling numerous decisions of this court, and completely disregarding the overwhelming weight of authority in this country.

          36

          It has long been recognized as the law of this State that the right to maintain an action for wrongful death is dependent upon the existence of a statute creating such a right at the place where the injury resulting in death occurred (Whitford v. Panama R. R. Co., 23 N.Y. 465, 482; [47] Baldwin v. Powell, 294 N.Y. 130, 132; Royal Ind. Co. v. Atchison, T. & S. F. Ry. Co., 272 App. Div. 246, 250, affd. 297 N.Y. 619). Equally well settled is the proposition that our own statute creating such a cause of action (Decedent Estate Law, § 130) is not to be given extra-territorial effect in cases where the wrongful death occurred outside of this State (Debevoise v. New York, L. E. & W. R. R. Co., 98 N.Y. 377; Baldwin v. Powell, supra; Royal Ind. Co. v. Atchison, T. & S. F. Ry. Co., supra).

          37

          Plaintiff's right to maintain this action must therefore stem from the provisions of the Massachusetts statute (Mass. Gen. Stats., ch. 229, § 2). That statute, however, expressly limits the extent of the right given, and declares that the damages assessed thereunder shall not be more than $15,000. In effect, this is tantamount to providing that there shall be no cause of action for wrongful death beyond this amount. The majority, by giving extraterritorial effect to our prohibition against the limitation of recovery in such actions, would permit plaintiff to recover on the basis of the foreign law, and yet not be bound by its express limitation. Such action was vigorously condemned by the Supreme Court of the United States in Slater v. Mexican Nat. R. R. Co. (194 U. S. 120, 126) where Mr. Justice HOLMES, writing for the court, stated: "It seems to us unjust to allow a plaintiff to come here absolutely depending on the foreign law for the foundation of his case, and yet to deny the defendant the benefit of whatever limitations on his liability that law would impose." This was reaffirmed in Western Union Tel. Co. v. Brown (234 U. S. 542, 547) and Black Diamond v. Stewart & Sons (336 U. S. 386, 395-396 [1948]).

          38

          No sound reason appears why our courts, in enforcing such a right at all, should not enforce it in its entirety. This court has no power to determine what the public policy of Massachusetts should be (Coster v. Coster, 289 N.Y. 438, 443), and we may not ignore foreign law affecting the substantive rights of the parties merely because such law differs from our own (id., at p. 442).

          39

          In Loucks v. Standard Oil Co. (224 N.Y. 99, 111), although it was suggested that our courts might refuse to enforce a right based upon a foreign statute "that outrages the public policy of New York", this court held that a Massachusetts act, very similar to the one with which we are now confronted, must be [48] enforced — despite the fact that we "cannot give them the same judgment that our law would give if the wrong had been done here" (224 N. Y., at pp. 111-112). Thus Judge CARDOZO in his opinion clearly indicated that the maximum damages would be controlled by the Massachusetts statute.

          40

          In Royal Ind. Co. v. Atchison, T. & S. F. Ry. Co. (272 App. Div. 246, 250, affd. 297 N.Y. 619, supra), where our court refused to apply New York law as to additional liability, it was held to be "well established that a cause of action for wrongful death and the extent of the damage recoverable is governed by the laws of the place where the injuries causing death were inflicted" (emphasis supplied).

          41

          As long ago as Whitford v. Panama R. R. Co. (23 N.Y. 465, 481-482, supra) this court adopted as "eminently sound and conclusive" the discussion of the precise question now before us by Mr. Justice WOODRUFF in Whitford v. Panama R. R. Co. (3 Bosw. 67, 83) where it was stated (23 N.Y. 482): "`Let it be supposed that New Granada has by law * * * prescribed the cases in which the defendants should be liable for a death caused by the negligence of their servants, and the extent of that liability. It would not, we think, be gravely insisted, that they use their railroad under any other or greater responsibility than is so prescribed.'" (Emphasis supplied.)

          42

          This court has repeatedly affirmed decisions below, which held that, in a wrongful death action based on a foreign statute, interest shall not be allowed upon the amount of recovery from the time of death when the foreign statute contained no provision therefor (Kiefer v. Grand Trunk Ry. Co., 12 App. Div. 28, affd. on opinion below 153 N.Y. 688; Wyman v. Pan Amer. Airways, 181 Misc. 963, affd. 267 App. Div. 947, affd. 293 N.Y. 878; Colliton v. United Shipyards, 256 App. Div. 923, affd. 281 N.Y. 582). The principle involved in these cases is the same as that involved in the case at bar. Since we refuse to allow interest (although our own statute requires it as part of the amount of recovery [Decedent Estate Law, § 132]) when no provision is made therefor in the law of the place of death, that same policy requires that no greater damages shall be allowed than are there provided. The "right to interest is inseparable from the right to damages" (Kiefer v. Grand Trunk Ry. Co., 12 App. Div. 28, 32, supra).

          43

          [49] This court has also held, in an action for conversion, that the amount of damages recoverable must be governed by the law of the State where the loss was occasioned and not by our law (Hasbrouck v. New York Cent. & H. R. R. R. Co., 202 N.Y. 363, 377).

          44

          The views here expressed have also been recognized as the law of New York by the Federal courts sitting in this State. In Maynard v. Eastern Air Lines (178 F.2d 139 [2d Cir.]) the court submitted the issue of negligence to the jury with instructions that the recovery could not exceed $20,000, the limitation imposed by the terms of the Connecticut death statute, the State where the accident occurred. On appeal, the Court of Appeals for the Second Circuit affirmed, holding that according to the law of New York the Connecticut law with its limitation of damages was applicable.

          45

          In our opinion, these precedents are conclusive, and may not be disregarded without being overruled. The principle which they affirm is clearly the well-established law of this State.

          46

          Although we recognize that decisions from other jurisdictions are not controlling, it should be noted that the overwhelming weight of judicial authority in the United States is in accord with the view that the law of the place of injury governs not only the existence of the cause of action for wrongful death, but also the measure of damages (see cases collected in 15 A. L. R. 2d 765-766; 25 C. J. S., Death, § 28, p. 1101; Goodrich, Conflict of Laws, § 105; Restatement, Conflict of Laws, §§ 391, 412, 417; Leflar, Conflict of Laws, § 114). While Professor Leflar does note (§ 60, p. 109) that the procedural and substantive law "shade into each other constantly", he clearly states, in the same chapter, that "The size of the right is a part of the right" and that, therefore, the "measure of damages should be treated as a substantive rather than a procedural matter, and that the amount of the award should be determined by the rules of law of the place of the tort * * * rather than by the rules of the forum, as such. There is some authority the other way, treating measure of damages as procedure merely, on the idea that it does not constitute the right but only the remedy given in substitution for the right. This carries a nice theory to a point at which it conflicts with common understanding." (Leflar, Conflict of Laws, § 65, p. 118.)

          47

          [50] The notewriter in 15 A. L. R. 2d cites 25 jurisdictions in this country in support of that majority view, and but 4 for the proposition that the amount of damages is governed by the law of the forum. Two of the latter jurisdictions, Massachusetts (Higgins v. Central New England & W. R. R. Co., 155 Mass. 176) and New York (Wooden v. Western N. Y. & Pa. R. R. Co., 126 N.Y. 10), no longer adhere to that view and have joined the ranks of the majority (see Jackson v. Anthony, 282 Mass. 540, 546-547, for an express rejection of the Higgins decision; Loucks v. Standard Oil Co., 224 N.Y. 99, supra, and the other cases referred to earlier in this opinion for a rejection of the Wooden dicta. That dicta mistakenly relied on Dennick v. Central R. R. of N. J., 103 U. S. 11, which, in speaking of the remedy, merely decided that a New York administratrix may sue for a wrongful death in New Jersey; it in nowise held that damages might be treated as a procedural or remedial question).

          48

          Furthermore, questions relating to such defenses as contributory (comparative) negligence (Fitzpatrick v. International Ry. Co., 252 N.Y. 127), charitable immunity (Kaufman v. American Youth Hostels, 5 N Y 2d 1016), incapacity of wife to sue (Coster v. Coster, 289 N.Y. 438, supra) and the Statute of Limitations (Lipton v. Lockheed Aircraft Corp., 307 N.Y. 775) have all been regarded by this court as regulated by the law of the place of the injury rather than our own law, since they involve the substantial rights of the parties. In each of these cases we applied a foreign rule of law, although such rule was clearly contrary to the law of our own State, and we applied it whether it benefited the plaintiff or the defendant. In our opinion, the defense raised in the case at bar must be treated in the same manner — viz., by applying the law of Massachusetts, the place of death.

          49

          The majority would apply our own law of damages because the place of injury is entirely fortuitous. The same argument may be made with respect to each of the cases just referred to. We should not overrule well-established principles, nor "refuse to enforce a foreign right" at our pleasure, to suit our "individual notion of expediency or fairness" (Loucks v. Standard Oil Co., 224 N.Y. 99, 111, supra).

          50

          The position adopted by the majority may result in the situation where, in a single airplane crash in which numerous passengers from various States are killed, a different law will be [51] applied in each action resulting therefrom. The courts of each State, if they followed the majority view, would then apply their own law of damages to the case. As Judge CARDOZO pointed out in the Loucks case (supra), "The theory of the statute personal, a body of national law which the citizen carries about with him * * * is a theory which has yielded generally in this country to the principles of the territorial system and the doctrine of vested rights" (224 N. Y., supra, at p. 109). We should not attempt to revive it now.

          51

          The case of Conklin v. Canadian-Colonial Airways (266 N.Y. 244) has no applicability to the question before us. That case involved the validity of a contractual limitation upon a carrier's common-law liability. In the instant case, not only is the limitation imposed by statute rather than by contract, but, as we have seen, there was no underlying common-law liability.

          52

          Finally, we have grave doubts as to the constitutionality of the majority view in light of the decision of the Supreme Court of the United States in Hughes v. Fetter (341 U. S. 609) and section 1738 of title 28 of the United States Code, the implementing statute under the full faith and credit clause of the United States Constitution (art. IV, § 1), which provides that full faith and credit be accorded to the acts of the Legislature of any State.

          53

          Accordingly, the judgment appealed from dismissing plaintiff's second cause of action should be affirmed, with costs.

          54

          Judgment affirmed.

          55

          [1] In the Greco case (277 N.Y. 26, supra), this court unequivocally approved the Deodt case, stating significantly (p. 34): "Nor is an action any the less on contract because the elements of damage arise out of a trespass (Sullivan v. Dunham, 161 N.Y. 290), or an assault (Busch v. Interborough R. T. Co., supra) or other personal injury (Doedt v. Wiswall, 15 How. Pr. 128; affd., 15 How. Pr. 145; Gillespie v. Brooklyn Heights R. R. Co., 178 N.Y. 347). Violation of a duty owing to another is a wrongful act; breach of a contract involving violation of duty may be likewise a wrongful act."

    • 1.2 §1.2 Most significant relationship (Second Restatement of Conflict of Laws)

      • 1.2.1 §1.2.1 Choosing the law of the place of injury

        • 1.2.1.1 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.

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

        • 1.2.2.1 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.

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

        • 1.2.3.1 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.

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

        • 1.2.4.1 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.

    • 1.3 §1.3 Interest Analysis

      • 1.3.1 §1.3.1 Identifying false conflicts

        • 1.3.1.1 Babcock v. Jackson

          1
          12 N.Y.2d 473 (1963)
          2
          Georgia W. Babcock, Appellant,
          v.
          Mabel B. Jackson, as Executrix of William H. Jackson, Deceased, Respondent.
          3

          Court of Appeals of the State of New York.

          4
          Argued January 23, 1963.
          5
          Decided May 9, 1963.
          6

          John M. Regan for appellant.

          7

          Ellsworth Van Graafeiland for respondent.

          8

          Chief Judge DESMOND and Judges DYE, BURKE and FOSTER concur with Judge FULD; Judge VAN VOORHIS dissents in an opinion in which Judge SCILEPPI concurs.

          9
          [476] FULD, J.
          10

          On Friday, September 16, 1960, Miss Georgia Babcock and her friends, Mr. and Mrs. William Jackson, all residents of Rochester, left that city in Mr. Jackson's automobile, Miss Babcock as guest, for a week-end trip to Canada. Some hours later, as Mr. Jackson was driving in the Province of Ontario, he apparently lost control of the car; it went off the highway into an adjacent stone wall, and Miss Babcock was seriously injured. Upon her return to this State, she brought [477] the present action against William Jackson, alleging negligence on his part in operating his automobile.[1]

          11

          At the time of the accident, there was in force in Ontario a statute providing that "the owner or driver of a motor vehicle, other than a vehicle operated in the business of carrying passengers for compensation, is not liable for any loss or damage resulting from bodily injury to, or the death of any person being carried in * * * the motor vehicle" (Highway Traffic Act of Province of Ontario [Ontario Rev. Stat. (1960), ch. 172], § 105, subd. [2]). Even though no such bar is recognized under this State's substantive law of torts (see, e.g., Higgins v. Mason, 255 N.Y. 104, 108; Nelson v. Nygren, 259 N.Y. 71), the defendant moved to dismiss the complaint on the ground that the law of the place where the accident occurred governs and that Ontario's guest statute bars recovery. The court at Special Term, agreeing with the defendant, granted the motion and the Appellate Division, over a strong dissent by Justice HALPERN, affirmed the judgment of dismissal without opinion.

          12

          The question presented is simply drawn. Shall the law of the place of the tort[2] invariably govern the availability of relief for the tort or shall the applicable choice of law rule also reflect a consideration of other factors which are relevant to the purposes served by the enforcement or denial of the remedy?

          13

          The traditional choice of law rule, embodied in the original Restatement of Conflict of Laws (§ 384), and until recently unquestioningly followed in this court (see, e.g., Poplar v. Bourjois, Inc., 298 N.Y. 62, 66; Kaufman v. American Youth Hostels, 5 N Y 2d 1016, modfg. 6 A D 2d 223), has been that the substantive rights and liabilities arising out of a tortious occurrence are determinable by the law of the place of the tort. (See Goodrich, Conflict of Laws [3d ed., 1949], p. 260; Leflar, The Law of Conflict of Laws [1959], p. 207; Stumberg, Principles of Conflict of Laws [2d ed., 1951], p. 182.) It had its conceptual foundation in the vested rights doctrine, namely, that a right to recover for a foreign tort owes its creation to the law of the [478] jurisdiction where the injury occurred and depends for its existence and extent solely on such law. (See Hancock, Torts in the Conflict of Laws [1942], pp. 30-36; Reese, The Ever Changing Rules of Choice of Law, Nederlands Tijdschrift Voor Internationaal Recht [1962], 389.) Although espoused by such great figures as Justice HOLMES (see Slater v. Mexican Nat. R. R. Co., 194 U. S. 120) and Professor Beale (2 Conflict of Laws [1935], pp. 1286-1292), the vested rights doctrine has long since been discredited because it fails to take account of underlying policy considerations in evaluating the significance to be ascribed to the circumstance that an act had a foreign situs in determining the rights and liabilities which arise out of that act.[3] "The vice of the vested rights theory", it has been aptly stated, "is that it affects to decide concrete cases upon generalities which do not state the practical considerations involved". (Yntema, The Hornbook Method and the Conflict of Laws, 37 Yale L. J. 468, 482-483.) More particularly, as applied to torts, the theory ignores the interest which jurisdictions other than that where the tort occurred may have in the resolution of particular issues. It is for this very reason that, despite the advantages of certainty, ease of application and predictability which it affords (see Cheatham and Reese, Choice of the Applicable Law, 52 Col. L. Rev. 959, 976), there has in recent years been increasing criticism of the traditional rule by commentators[4] and a judicial trend towards its abandonment or modification.[5]

          14

          [479] Significantly, it was dissatisfaction with "the mechanical formulae of the conflicts of law" (Vanston Committee v. Green, 329 U. S. 156, 162) which led to judicial departure from similarly inflexible choice of law rules in the field of contracts, grounded, like the torts rule, on the vested rights doctrine. According to those traditional rules, matters bearing upon the execution, interpretation and validity of a contract were determinable by the internal law of the place where the contract was made, while matters connected with their performance were regulated by the internal law of the place where the contract was to be performed. (See Swift & Co. v. Bankers Trust Co., 280 N.Y. 135, 141; see, also, Restatement, Conflict of Laws, §§ 332, 358; Goodrich, Conflict of Laws [3d ed., 1949], pp. 342-343.)

          15

          In Auten v. Auten (308 N.Y. 155), however, this court abandoned such rules and applied what has been termed the "center of gravity" or "grouping of contacts" theory of the conflict of laws. "Under this theory," we declared in the Auten case, "the courts, instead of regarding as conclusive the parties' intention or the place of making or performance, lay emphasis rather upon the law of the place `which has the most significant contacts with the matter in dispute'" (308 N. Y., at p. 160). The "center of gravity" rule of Auten has not only been applied in other cases in this State,[6] as well as in other jurisdictions,[7] but has supplanted the prior rigid and set contract rules in the most current draft of the Restatement of Conflict of Laws. (See Restatement, Second, Conflict of Laws, § 332b [Tentative Draft No. 6, 1960].)

          16

          Realization of the unjust and anomalous results which may ensue from application of the traditional rule in tort cases has also prompted judicial search for a more satisfactory alternative in that area. In the much discussed case of Kilberg v. Northeast Airlines (9 N Y 2d 34), this court declined to apply the law of the place of the tort as respects the issue of the quantum of the recovery in a death action arising out of an airplane crash, [480] where the decedent had been a New York resident and his relationship with the defendant airline had originated in this State. In his opinion for the court, Chief Judge DESMOND described, with force and logic, the shortcomings of the traditional rule (9 N Y 2d, at p. 39):

          17
          "Modern conditions make it unjust and anomalous to subject the traveling citizen of this State to the varying laws of other States through and over which they move. * * * An air traveler from New York may in a flight of a few hours' duration pass through * * * commonwealths [limiting death damage awards]. His plane may meet with disaster in a State he never intended to cross but into which the plane has flown because of bad weather or other unexpected developments, or an airplane's catastrophic descent may begin in one State and end in another. The place of injury becomes entirely fortuitous. Our courts should if possible provide protection for our own State's people against unfair and anachronistic treatment of the lawsuits which result from these disasters."
          18

          The emphasis in Kilberg was plainly that the merely fortuitous circumstance that the wrong and injury occurred in Massachusetts did not give that State a controlling concern or interest in the amount of the tort recovery as against the competing interest of New York in providing its residents or users of transportation facilities there originating with full compensation for wrongful death. Although the Kilberg case did not expressly adopt the "center of gravity" theory, its weighing of the contacts or interests of the respective jurisdictions to determine their bearing on the issue of the extent of the recovery is consistent with that approach. (See Leflar, Conflict of Laws, 1961 Ann. Sur. Amer. Law, 29, 45.)

          19

          The same judicial disposition is also reflected in a variety of other decisions, some of recent date, others of earlier origin, relating to workmen's compensation,[8] tortious occurrences arising [481] out of a contract,[9] issues affecting the survival of a tort right of action[10] and intrafamilial immunity from tort[11] and situations involving a form of statutory liability.[12] These numerous cases differ in many ways but they are all similar in two important respects. First, by one rationale or another, they rejected the inexorable application of the law of the place of the tort where that place has no reasonable or relevant interest in the particular issue involved. And, second, in each of these cases the courts, after examining the particular circumstances presented, applied the law of some jurisdiction other than the place of the tort because it had a more compelling interest in the application of its law to the legal issue involved.

          20

          The "center of gravity" or "grouping of contacts" doctrine adopted by this court in conflicts cases involving contracts impresses us as likewise affording the appropriate approach for accommodating the competing interests in tort cases with multi-State contacts. Justice, fairness and "the best practical result" (Swift & Co. v. Bankers Trust Co., 280 N.Y. 135, 141, supra) may best be achieved by giving controlling effect to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue raised in the litigation. The merit of such a rule is that "it gives to the place `having the most interest in the problem' paramount control over the legal issues arising out of a particular factual context" and thereby allows the forum to apply "the policy of the jurisdiction `most [482] intimately concerned with the outcome of [the] particular litigation.'" (Auten v. Auten, 308 N.Y. 155, 161, supra.)

          21

          Such, indeed, is the approach adopted in the most recent revision of the Conflict of Laws Restatement in the field of torts. According to the principles there set out, "The local law of the state which has the most significant relationship with the occurrence and with the parties determines their rights and liabilities in tort" (Restatement, Second, Conflict of Laws, § 379[1]; also Introductory Note to Topic 1 of Chapter 9, p. 3 [Tentative Draft No. 8, 1963]), and the relative importance of the relationships or contacts of the respective jurisdictions is to be evaluated in the light of "the issues, the character of the tort and the relevant purposes of the tort rules involved" (§ 379[2], [3]).

          22

          Comparison of the relative "contacts" and "interests" of New York and Ontario in this litigation, vis-a-vis the issue here presented, makes it clear that the concern of New York is unquestionably the greater and more direct and that the interest of Ontario is at best minimal. The present action involves injuries sustained by a New York guest as the result of the negligence of a New York host in the operation of an automobile, garaged, licensed and undoubtedly insured in New York, in the course of a week-end journey which began and was to end there. In sharp contrast, Ontario's sole relationship with the occurrence is the purely adventitious circumstance that the accident occurred there.

          23

          New York's policy of requiring a tort-feasor to compensate his guest for injuries caused by his negligence cannot be doubted — as attested by the fact that the Legislature of this State has repeatedly refused to enact a statute denying or limiting recovery in such cases (see, e.g., 1930 Sen. Int. No. 339, Pr. No. 349; 1935 Sen. Int. No. 168, Pr. No. 170; 1960 Sen. Int. No. 3662, Pr. No. 3967) — and our courts have neither reason nor warrant for departing from that policy simply because the accident, solely affecting New York residents and arising out of the operation of a New York based automobile, happened beyond its borders. Per contra, Ontario has no conceivable interest in denying a remedy to a New York guest against his New York host for injuries suffered in Ontario by reason of conduct which was tortious under Ontario law. The object of Ontario's guest statute, it has been said, is "to prevent the fraudulent assertion [483] of claims by passengers, in collusion with the drivers, against insurance companies" (Survey of Canadian Legislation, 1 U. Toronto L. J. 358, 366) and, quite obviously, the fraudulent claims intended to be prevented by the statute are those asserted against Ontario defendants and their insurance carriers, not New York defendants and their insurance carriers. Whether New York defendants are imposed upon or their insurers defrauded by a New York plaintiff is scarcely a valid legislative concern of Ontario simply because the accident occurred there, any more so than if the accident had happened in some other jurisdiction.

          24

          It is hardly necessary to say that Ontario's interest is quite different from what it would have been had the issue related to the manner in which the defendant had been driving his car at the time of the accident. Where the defendant's exercise of due care in the operation of his automobile is in issue, the jurisdiction in which the allegedly wrongful conduct occurred will usually have a predominant, if not exclusive, concern. In such a case, it is appropriate to look to the law of the place of the tort so as to give effect to that jurisdiction's interest in regulating conduct within its borders, and it would be almost unthinkable to seek the applicable rule in the law of some other place.

          25

          The issue here, however, is not whether the defendant offended against a rule of the road prescribed by Ontario for motorists generally or whether he violated some standard of conduct imposed by that jurisdiction, but rather whether the plaintiff, because she was a guest in the defendant's automobile, is barred from recovering damages for a wrong concededly committed. As to that issue, it is New York, the place where the parties resided, where their guest-host relationship arose and where the trip began and was to end, rather than Ontario, the place of the fortuitous occurrence of the accident, which has the dominant contacts and the superior claim for application of its law. Although the rightness or wrongness of defendant's conduct may depend upon the law of the particular jurisdiction through which the automobile passes, the rights and liabilities of the parties which stem from their guest-host relationship should remain constant and not vary and shift as the automobile proceeds from place to place. Indeed, such a result, we note, [484] accords with "the interests of the host in procuring liability insurance adequate under the applicable law, and the interests of his insurer in reasonable calculability of the premium." (Ehrenzweig, Guest Statutes in the Conflict of Laws, 69 Yale L. J. 595, 603.)

          26

          Although the traditional rule has in the past been applied by this court in giving controlling effect to the guest statute of the foreign jurisdiction in which the accident occurred (see, e.g., Smith v. Clute, 277 N.Y. 407; Kerfoot v. Kelley, 294 N.Y. 288; Naphtali v. Lafazan, 8 N Y 2d 1097, affg. 8 A D 2d 22), it is not amiss to point out that the question here posed was neither raised nor considered in those cases and that the question has never been presented in so stark a manner as in the case before us with a statute so unique as Ontario's.[13] Be that as it may, however, reconsideration of the inflexible traditional rule persuades us, as already indicated, that, in failing to take into account essential policy considerations and objectives, its application may lead to unjust and anomalous results. This being so, the rule, formulated as it was by the courts, should be discarded. (Cf. Bing v. Thunig, 2 N Y 2d 656, 667; Woods v. Lancet, 303 N.Y. 349, 355.)[14]

          27

          In conclusion, then, there is no reason why all issues arising out of a tort claim must be resolved by reference to the law of the same jurisdiction. Where the issue involves standards of conduct, it is more than likely that it is the law of the place of the tort which will be controlling but the disposition of other issues must turn, as does the issue of the standard of conduct itself, on the law of the jurisdiction which has the strongest interest in the resolution of the particular issue presented.

          28

          [485] The judgment appealed from should be reversed, with costs, and the motion to dismiss the complaint denied.

          29
          VAN VOORHIS, J. (dissenting).
          30

          The decision about to be made of this appeal changes the established law of this State, one of the most recent decisions the other way being Kaufman v. American Youth Hostels (5 N Y 2d 1016), where all of the "significant contacts" were with New York State except the mountain which plaintiff's intestate was climbing when she met her death. The defense of immunity of a charitable corporation under the Oregon law, where the accident occurred, was inapplicable under the law of New York where the defendant corporation was organized and staffed, and plaintiff and his intestate resided. Nevertheless the court declined to strike that defense from the answer, based upon Oregon law. Concerning, as it did, solely the status of the defendant corporation, Kaufman v. American Youth Hostels presented a stronger case for the application of New York law than does the present. The case of Auten v. Auten (308 N.Y. 155), involving a separation agreement between English people and providing for the support of a wife and children to continue to live in England, accomplished no such revolution in the law as the present appeal. Auten v. Auten dealt with contracts, the agreement was held to be governed by the law of the country where it was mainly to be performed, which had previously been the law, and the salient expressions "center of gravity", "grouping of contacts", and similar catchwords were employed as a shorthand reference to the reconciliation of such rigid concepts in the conflict of laws as the formulae making applicable the place where the contract was signed or where it was to be performed — rules which themselves were occasionally in conflict with one another. In the course of the opinion it was stated that "even if we were not to place our emphasis on the law of the place with the most significant contacts, but were instead simply to apply the rule that matters of performance and breach are governed by the law of the place of performance, the same result would follow" (308 N. Y., p. 163). The decision in Auten v. Auten rationalized and rendered more workable the existing law of contracts. The name "grouping of contacts" was simply a label to identify the rationalization of existing decisions on the conflict of laws in [486] contract cases which were technically inconsistent, in some instances. The difference between the present case and Auten v. Auten is that Auten did not materially change the law, but sought to formulate what had previously been decided. The present case makes substantial changes in the law of torts. The expressions "center of gravity", "grouping of contacts," and "significant contacts" are catchwords which were not employed to define and are inadequate to define a principle of law, and were neither applied to nor are they applicable in the realm of torts.

          31

          Any idea is without foundation that cases such as the present render more uniform the laws of torts in the several States of the United States. Attempts to make the law or public policy of New York State prevail over the laws and policies of other States where citizens of New York State are concerned are simply a form of extraterritoriality which can be turned against us wherever actions are brought in the courts of New York which involve citizens of other States. This is no substitute for uniform State laws or for obtaining uniformity by covering the subject by Federal law. Undoubtedly ease of travel and communication, and the increase in interstate business have rendered more awkward discrepancies between the laws of the States in many respects. But this is not a condition to be cured by introducing or extending principles of extraterritoriality, as though we were living in the days of the Roman or British Empire, when the concepts were formed that the rights of a Roman or an Englishman were so significant that they must be enforced throughout the world even where they were otherwise unlikely to be honored by "lesser breeds without the law." Importing the principles of extraterritoriality into the conflicts of laws between the States of the United States can only make confusion worse confounded. If extraterritoriality is to be the criterion, what would happen, for example, in case of an automobile accident where some of the passengers came from or were picked up in States or countries where causes of action against the driver were prohibited, others where gross negligence needed to be shown, some, perhaps, from States where contributory negligence and others where comparative negligence prevailed? In the majority opinion it is said that "Where the defendant's exercise of due care in the operation of his automobile is in issue, the jurisdiction in which the allegedly wrongful conduct occurred [487] will usually have a predominant, if not exclusive, concern." This is hardly consistent with the statement in the footnote that gross negligence would not need to be established in an action by a passenger if the accident occurred in a State whose statute so required. If the status of the passenger as a New Yorker would prevent the operation of a statute in a sister State or neighboring country which granted immunity to the driver in suits by passengers, it is said that it would also prevent the operation of a statute which instead of granting immunity permits recovery only in case of gross negligence. There are passenger statutes or common-law decisions requiring gross negligence or its substantial equivalent to be shown in 29 States. One wonders what would happen if contributory negligence were eliminated as a defense by statute in another jurisdiction? Or if comparative negligence were established as the rule in the other State?

          32

          In my view there is no overriding consideration of public policy which justifies or directs this change in the established rule or renders necessary or advisable the confusion which such a change will introduce.

          33

          The judgment dismissing the complaint should be affirmed.

          34

          Judgment reversed, with costs in all courts, and matter remitted to Special Term for further proceedings in accordance with the opinion herein.

          35

          [1] Jackson having died after the commencement of the suit, his executrix was substituted in his place as defendant.

          36

          [2] In this case, as in nearly all such cases, the conduct causing injury and the injury itself occurred in the same jurisdiction. The phrase "place of the tort," as distinguished from "place of wrong" and "place of injury," is used herein to designate the place where both the wrong and the injury took place.

          37

          [3] See Cavers, A Critique of the Choice-of-Law Problem, 47 Harv. L. Rev. 173, 178; Cheatham, American Theories of Conflict of Laws: Their Role and Utility, 58 Harv. L. Rev. 361, 379-385; Cook, The Logical and Legal Bases of the Conflict of Laws, 33 Yale L. J. 457, 479 et seq.; Hill, Governmental Interest and the Conflict of Laws, 27 U. Chi. L. Rev. 463; Lorenzen, Territoriality, Public Policy and the Conflict of Laws, 33 Yale L. J. 736, 746-749; Yntema, The Hornbook Method and the Conflict of Laws, 37 Yale L. J. 468, 474 et seq.

          38

          [4] See Dicey, Conflict of Laws (7th ed., 1958), p. 937 et seq.; Leflar, The Law of Conflict of Laws (1959), p. 217 et seq.; Stumberg, Principles of Conflict of Laws (2d ed., 1951), p. 201 et seq.; Morris, The Proper Law of a Tort, 64 Harv. L. Rev. 881; Ehrenzweig, Guest Statutes in the Conflict of Laws, 69 Yale L. J. 595; Currie, Survival of Actions: Adjudication versus Automation in the Conflict of Laws, 10 Stan. L. Rev. 205.

          39

          [5] See, e.g., Richards v. United States, 369 U. S. 1, 12-13; Grant v. McAuliffe, 41 Cal. 2d 859; Schmidt v. Driscoll Hotel, 249 Minn. 376; Haumschild v. Continental Cas. Co., 7 Wis. 2d 130.

          40

          [6] See, e.g., Haag v. Barnes, 9 N Y 2d 554; Zogg v. Penn Mut. Life Ins. Co., 276 F.2d 861 (2d Cir.).

          41

          [7] See, e.g., Jansson v. Swedish Amer. Line, 185 F.2d 212, 218-219; Barber Co. v. Hughes, 223 Ind. 570, 586; Kievit v. Loyal Protective Life Ins. Co., 34 N. J. 475, 491-493; Estate of Knippel, 7 Wis. 2d 335, 343-345.

          42

          [8] See, e.g., Alaska Packers Assn. v. Industrial Acc. Comm., 294 U. S. 532; Matter of Nashko v. Standard Water Proofing Co., 4 N Y 2d 199; Kennerson v. Thames Towboat Co., 89 Conn. 367; Pierce v. Bekins Van & Stor. Co., 185 Ia. 1346; Aleckson v. Kennedy Motor Sales Co., 238 Minn. 110; see, also. 2 Larson, Workmen's Compensation Law, § 84.

          43

          [9] See Dyke v. Erie Ry. Co., 45 N.Y. 113; see, also, Bowles v. Zimmer Mfg. Co., 277 F.2d 868 (breach of warranty).

          44

          [10] See Grant v. McAuliffe, 41 Cal. 2d 859, supra; Herzog v. Stern, 264 N.Y. 379; see, also, Currie, Survival of Actions: Adjudication versus Automation in the Conflict of Laws, 10 Stan. L. Rev. 205.

          45

          [11] See Emery v. Emery, 45 Cal. 2d 421; Koplik v. C. P. Trucking Corp., 27 N. J. 1; Mertz v. Mertz, 271 N.Y. 466; Haumschild v. Continental Cas. Co., 7 Wis. 2d 130, supra; see, also, Ehrenzweig, Parental Immunity in the Conflict of Laws, 23 U. Chi. L. Rev. 474; Ford, Interspousal Liability for Automobile Accidents in the Conflict of Laws, 15 U. Pitt. L. Rev. 397. But cf. Coster v. Coster, 289 N.Y. 438.

          46

          [12] See Schmidt v. Driscoll Hotel, 249 Minn. 376, supra; Osborn v. Borchetta, 20 Conn. S. 163; Levy v. Daniels' U-Drive Auto Renting Co., 108 Conn. 333. See, also, Daily v. Somberg, 28 N. J. 372 (effect of release to one of several parties jointly liable for plaintiff's injury).

          47

          [13] We note that the Supreme Court of Canada has upheld the refusal of the Quebec courts to apply the Ontario guest statute to an accident affecting Quebec residents which occurred in Ontario. (See McLean v. Pettigrew, [1945] 2 D. L. R. 65.) This decision was dictated by the court's resort to the English choice of law rule, whereby the foreign tort is deemed actionable if actionable by the law of the forum and not justifiable by the law of the place of the tort. See Phillips v. Eyre, [1870] L. R. 6 Q. B. 1, 28-29; see, also, Dicey, Conflict of Laws [7th ed., 1958], p. 940.) However that may be, it would seem incongruous for this court to apply Ontario's unique statute in circumstances under which its own sister Provinces would not.

          48

          [14] It of course follows from our decision herein that, given the facts of the present case, the result would be the same and the law of New York applied where the foreign guest statute requires a showing of gross negligence.

        • 1.3.1.2 Hurtado v. Superior Court

          1
          11 Cal.3d 574 (1974)
          2
          522 P.2d 666
          3
          114 Cal. Rptr. 106
          4
          MANUEL CID HURTADO, Petitioner,
          v.
          THE SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent; MARIA DE JESUS FLORES DE HURTADO et al., Real Parties in Interest.
          5
          Docket No. Sac. 8005.
          6

          Supreme Court of California. In Bank.

          7
          May 31, 1974.
          8

          [577] COUNSEL

          9

          Johnson, Greve, Clifford & Diepenbrock, Johnson, Davies, Greve & Clifford, Johnson, Greve & Clifford and Robert Lea for Petitioner.

          10

          Leonard G. Ratner as Amicus Curiae on behalf of Petitioner.

          11

          No appearance for Respondent.

          12

          Alfonso Z. Gonzalez for Real Parties in Interest.

          13

          Gerald J. Adler and Crow, Lytle, Schleh & Gilwee as Amici Curiae on behalf of Real Parties in Interest.

          14

          [578] OPINION

          15
          SULLIVAN, J.
          16

          In this proceeding, petitioner Manuel Cid Hurtado seeks a writ of mandate directing respondent superior court to vacate its ruling that the applicable measure of damages in the underlying action for wrongful death was that prescribed by California law without any maximum limitation, rather than that prescribed by the law of Mexico which limits the amount of recovery. We have concluded that the trial court correctly chose the law of California. We deny the writ.

          17

          Real parties in interest, the widow and children of Antonio Hurtado (hereafter plaintiffs) commenced against Manuel Hurtado and Jack Rexius (hereafter defendants) the underlying action for damages for wrongful death, arising out of an automobile accident occurring in Sacramento County on January 19, 1969. Plaintiffs' decedent was riding in an automobile owned and operated by his cousin, defendant Manuel Hurtado. Defendant Hurtado's vehicle, while being driven along a two-lane paved road, collided with a pick-up truck, owned and operated by defendant Rexius, which was parked partially on the side of the road and partially on the pavement on which defendant Hurtado was driving. Upon impact, the truck in turn collided with an automobile parked in front of it, owned by Rexius and occupied by his son. Decedent died as a result of the collision.

          18

          At all material times plaintiffs were, and now are residents and domiciliaries of the State of Zacatecas, Mexico. Decedent, at the time of the accident, was also a resident and domiciliary of the same place and was in California temporarily and only as a visitor. All three vehicles involved in the accident were registered in California; Manuel Hurtado, Jack Rexius and the latter's son were all residents of California. Both defendants denied liability.

          19

          Defendant Hurtado moved respondent court for a separate trial of the issue whether the measure of damages was to be applied according to the law of California or the law of Mexico. The motion was granted and at the ensuing trial of this issue the court took judicial notice (Evid. Code, §§ 452, 453) of the relevant Mexican law prescribing a maximum limitation of damages for wrongful death.[1] As a result it was established that [579] the maximum amount recoverable under Mexican law would be 24,334 pesos or $1,946.72 at the applicable exchange rate of 12.5 pesos to the dollar. After submission of the issue on briefs, the trial court announced its intended decision (Cal. Rules of Court, rule 232) and filed a memorandum opinion, ruling in substance that it would apply a measure of damages in accordance with California law and not Mexican law. Defendant Hurtado then sought a writ of mandate in the Court of Appeal to compel the trial court to vacate its ruling and to issue a ruling that Mexico's limitation of damages for wrongful death be applied. The Court of Appeal granted an alternative writ and thereafter issued a peremptory writ of mandate so directing the trial court. We granted a hearing in this court upon the petition of plaintiffs.

          20

          (1a) It is clear that mandate is an appropriate remedy to review the proceedings below. (2a) "Although it is well established that mandamus cannot be issued to control a court's discretion, in unusual circumstances the writ will lie where, under the facts, that discretion can be exercised in only one way." (Babb v. Superior Court (1971) 3 Cal.3d 841, 851 [92 Cal. Rptr. 179, 479 P.2d 379]; Mannheim v. Superior Court (1970) 3 Cal.3d 678, 685 [91 Cal. Rptr. 585, 478 P.2d 17]; Hilmer v. Superior Court (1934) 220 Cal. 71, 73 [29 P. 175].) (1b) Here the facts have been stipulated to and are not in dispute. The sole issue is a question of law as to which measure of damages should be applied. (2b) The trial court is under a legal duty to apply the proper law and may be directed to perform that duty by writ of mandate. (Babb v. Superior Court, supra, at p. 851; Mannheim v. Superior Court, supra, at p. 685). (1c) The absence of another adequate remedy was determined by the Court of Appeal when it granted the alternative writ. (Mannheim v. Superior Court, supra, at p. 686; County of Sacramento v. Hickman (1967) 66 Cal.2d 841, 845 [59 Cal. Rptr. 609, 428 P.2d 593].)

          21

          (3) In the landmark opinion authored by former Chief Justice Traynor for a unanimous court in Reich v. Purcell (1967) 67 Cal.2d 551 [63 Cal. Rptr. 31, 432 P.2d 727] (see Symposium, Comments on Reich v. Purcell (1968) 15 U.C.L.A.L.Rev. 551-654), we renounced the prior rule, adhered to by courts for many years, that in tort actions the law of the place of the wrong was the applicable law in a California forum regardless of the issues before the court. We adopted in its place a rule requiring an analysis of the respective interests of the states involved (governmental interest approach) the objective of which is "to determine the law that [580] most appropriately applies to the issue involved." (Reich v. Purcell, supra, at p. 554.)[2]

          22

          The issue involved in the matter before us is the measure of damages in the underlying action for wrongful death. Two states or governments are implicated. (1) California — the place of the wrong, the place of defendants' domicile and residence, and the forum; and (2) Mexico — the domicile and residence of both plaintiffs and their decedent.

          23

          The fact that two states are involved does not in itself indicate that there is a "conflict of laws" or "choice of law" problem. There is obviously no problem where the laws of the two states are identical. (Comment, False Conflicts, 55 Cal.L.Rev. 74, 76; Cavers, The Choice of Law Process (1965) pp. 89-90.) Here, however, the laws of California and Mexico are not identical. Mexico limits recovery by the survivors of the decedent in a wrongful death action to 24,334 pesos (see fn. 1, ante, and accompanying text). California provides that the heirs of the decedent are entitled to recover such sum, as under all the circumstances of the case, will be just compensation for the pecuniary loss which each heir has suffered by reason of the death of the decedent. (Bond v. United Railroads (1911) 159 Cal. 270, 276-279 [113 P. 366]; Valente v. Sierra Railway Co. (1910) 158 Cal. 412, 418-419 [111 P. 95]; Redfield v. Oakland C.S. Ry. Co. (1895) 110 Cal. 277, 285 [42 P. 822, 1063]; Code Civ. Proc., § 377.)

          24

          Although the two potentially concerned states have different laws, there is still no problem in choosing the applicable rule of law where only one of the states has an interest in having its law applied. (Comment, False Conflicts, 55 Cal.L.Rev. at p. 77; Cavers, op. cit. supra, pp. 89-90.) "When one of two states related to a case has a legitimate interest in the application of its law and policy and the other has none, there is no real problem; clearly the law of the interested state should be applied." (Currie, Selected Essays on Conflicts of Laws (1963) p. 189.)[3]

          25

          (4a) The interest of a state in a tort rule limiting damages for wrongful [581] death is to protect defendants from excessive financial burdens or exaggerated claims. (Reich v. Purcell, supra, at p. 556; Cavers, op. cit. supra, at p. 151.) As stated in Reich this interest "to avoid the imposition of excessive financial burdens on [defendants] ... is also primarily local." (Reich v. Purcell, supra, at p. 556; Kay, Comments on Reich v. Purcell, 15 U.C.L.A.L.Rev. 584, 591-592); that is, a state by enacting a limitation on damages is seeking to protect its residents from the imposition of these excessive financial burdens. Such a policy "does not reflect a preference that widows and orphans should be denied full recovery." (Cavers, op. cit. supra, at p. 151.) Since it is the plaintiffs and not the defendants who are the Mexican residents in this case, Mexico has no interest in applying its limitation of damages — Mexico has no defendant residents to protect and has no interest in denying full recovery to its residents injured by non-Mexican defendants.

          26

          As the forum, California "can only apply its own law" (Reich v. Purcell, supra, at p. 553). (5) When the forum undertakes to resolve a choice-of-law problem presented to it by the litigants, it does not choose between foreign law and its own law, but selects the appropriate rule of decision for the forum to apply as its law to the case before it. (Reich v. Purcell, supra, at p. 553.) Therefore, when the forum state undertakes its "search to find the proper law to apply based upon the interests of the litigants and the involved states" (Reich v. Purcell, supra, at p. 553), it is understood that "[n]ormally, even in cases involving foreign elements, the court should be expected, as a matter of course, to apply the rule of decision found in the law of the forum." (Currie, op. cit. supra, at p. 183.) "Only `when it is suggested that the law of a foreign state should furnish the rule of decision' must the forum determine the governmental policy of its own and the suggested foreign laws, preparatory to assessing whether either or both states have an interest in applying their policy to the case." (Kay, Comments on Reich v. Purcell, 15 U.C.L.A.L.Rev. 584, 585.) (6) In short, generally speaking the forum will apply its own rule of decision unless a party litigant timely invokes the law of a foreign state. In such event he must demonstrate that the latter rule of decision will further the interest of the foreign state and therefore that it is an appropriate one for the forum to apply to the case before it. (Currie, op. cit. supra, at pp. 1-76, 177-187; Symposium, Comments on Reich v. Purcell, 15 U.C.L.A.L.Rev. 551.)

          27

          (4b) In the case at bench, California as the forum should apply its own measure of damages for wrongful death, unless Mexico has an interest in having its measure of damages applied. Since, as we have previously explained, Mexico has no interest whatsoever in the application of its limitation [582] of damages rule to the instant case, we conclude that the trial court correctly chose California law.

          28

          (7) To recapitulate, we hold that where as here in a California action both this state as the forum and a foreign state (or country) are potentially concerned in a question of choice of law with respect to an issue in tort and it appears that the foreign state (or country) has no interest whatsoever in having its own law applied, California as the forum should apply California law. Since this was done, we deny the writ.

          29

          Nevertheless, although our holding disposes of the mandamus proceeding before us, we deem it advisable to consider the argument addressed by defendant to the interest of California in applying its measure of damages for wrongful death. We do this because the argument reflects a serious misreading of Reich which apparently has not been confined to the parties before us.

          30

          First, defendant contends that California has no interest in applying its measure of damages in this case because Reich v. Purcell, supra, 67 Cal.2d 551, determined that the interest of a state in the law governing damages in wrongful death actions is "in determining the distribution of proceeds to the beneficiaries and that interest extends only to local decedents and beneficiaries." (Reich, supra, at p. 556.) Decedent and plaintiffs were residents of Mexico and not "local decedents and beneficiaries" in California. Therefore, so the argument runs, California has no interest whatever in how plaintiff survivors, residents of Mexico, should be compensated for the wrongful death of their decedent, also a resident of Mexico, and conversely Mexico does have an interest.

          31

          Defendant's reading of Reich is inaccurate. It confuses two completely independent state interests: (1) the state interest involved in creating a cause of action for wrongful death so as to provide some recovery; and (2) the state interest involved in limiting the amount of that recovery. In Reich this court carefully separated these two state interests, although it referred to them in the same paragraph. The state interest in creating a cause of action for wrongful death is in "determining the distribution of proceeds to the beneficiaries";[4] the state interest in limiting damage is "to [583] avoid the imposition of excessive financial burdens on them [defendants]."[5] (Reich v. Purcell, supra, at p. 556.)

          32

          In the case at bench, the entire controversy revolves about the choice of an appropriate rule of decision on the issue of the proper measure of damages; there is no contention that plaintiffs are not entitled under the applicable rules of decision to some recovery in wrongful death. The Mexican rule is a rule limiting damages. Thus, the interest of Mexico at stake is one aimed at protecting resident defendants in wrongful death actions and, as previously explained, is inapplicable to this case, because defendants are not Mexican residents. Mexico's interest in limiting damages is not concerned with providing compensation for decedent's beneficiaries. It is Mexico's interest in creating wrongful death actions which is concerned with distributing proceeds to the beneficiaries and that issue has not been raised in the case at bench.

          33

          (8) The creation of wrongful death actions "insofar as plaintiffs are concerned" is directed toward compensating decedent's beneficiaries. (See fn. 4, ante.) California does not have this interest in applying its wrongful death statute here because plaintiffs are residents of Mexico. However, the creation of wrongful death actions is not concerned solely with plaintiffs. As to defendants the state interest in creating wrongful death actions is to deter conduct. We made this clear in Reich: "Missouri [as the place of wrong] is concerned with conduct within her borders and as to such conduct she has the predominant interest of the states involved." (Reich v. Purcell, supra, at p. 556.) We went on to observe that the predominant interest of the state of the place of the wrong in conduct was not in rules concerning the limitation of damages: "Limitations of damages for wrongful death, however, have little or nothing to do with conduct. They are concerned not with how people should behave but with how survivors should be compensated." (Reich v. Purcell, supra, at p. 556.) Since it was not involved in Reich, we left implicit in our conclusion the proposition that the predominant interest of the state of the place of the wrong in conduct is in the creation of a cause of action for wrongful death.

          34

          It is manifest that one of the primary purposes of a state in creating a cause of action in the heirs for the wrongful death of the decedent is to deter the kind of conduct within its borders which wrongfully takes life. (Seidelson, The Wrongful Death Action (1972) 10 Duquesne L.Rev. 525; [584] see generally Cavers, op. cit. supra, at pp. 139-180; Currie, op. cit. supra, at pp. 690-742] Symposium, Comments on Reich v. Purcell, 15 U.C.L.A. L.Rev. 551.) It is also abundantly clear that a cause of action for wrongful death without any limitation as to the amount of recoverable damages strengthens the deterrent aspect of the civil sanction: "the sting of unlimited recovery ... more effectively penalize[s] the culpable defendant and deter[s] it and others similarly situated from such future conduct." (Seidelson, op. cit. supra, at p. 528, fn. 12.) Therefore when the defendant is a resident of California and the tortious conduct giving rise to the wrongful death action occurs here, California's deterrent policy of full compensation is clearly advanced by application of its own law. This is precisely the situation in the case at bench. (9) California has a decided interest in applying its own law to California defendants who allegedly caused wrongful death within its borders. On the other hand, a state which prescribes a limitation on the measure of damages modifies the sanction imposed by a countervailing concern to protect local defendants against excessive financial burdens for the conduct sought to be deterred.

          35

          (10) It is important, therefore to recognize the three distinct aspects of a cause of action for wrongful death: (1) compensation for survivors, (2) deterrence of conduct and (3) limitation, or lack thereof, upon the damages recoverable. Reich v. Purcell recognizes that all three aspects are primarily local in character. The first aspect, insofar as plaintiffs are concerned, reflects the state's interest in providing for compensation and in determining the distribution of the proceeds, said interest extending only to local decedents and local beneficiaries (see fn. 4, ante); the second, insofar as defendants are concerned, reflects the state's interest in deterring conduct, said interest extending to all persons present within its borders; the third, insofar as defendants are concerned, reflects the state's interest in protecting resident defendants from excessive financial burdens. In making a choice of law, these three aspects of wrongful death must be carefully separated. The key step in this process is delineating the issue to be decided.

          36

          The difficulty and importance of this process is underscored by Ryan v. Clark Equipment Co. (1969) 268 Cal. App.2d 679 [74 Cal. Rptr. 329], which defendant erroneously claims to be supportive of his position. In Ryan, the plaintiff's decedent was killed in Oregon while operating a front-end loader in the course of his employment by two Oregon corporate employers. At the time of the accident, the decedent, the plaintiff and their children were residents of Oregon. The plaintiff received on behalf of herself and her children a total of $35,000 from the decedent's employers in full settlement of their rights under the Employer's Liability [585] Act of the State of Oregon. Thereafter the plaintiff on behalf of the decedent's heirs brought an action in California against the manufacturer of the front-end loader, a Michigan corporation doing business in California. Oregon law limited recovery for wrongful death to $20,000 and further provided that the $35,000 already received must be set-off against any wrongful death recovery. As a consequence, any possible recovery for wrongful death would be extinguished by the set-off. Michigan law, however, imposed no limitation on the measure of damages for wrongful death. The Court of Appeal upheld the choice of Oregon law.

          37

          Since the plaintiffs resided in Oregon, that state had an interest in seeing that they received compensation and did not become wards of the state. However, by placing a limitation on this recovery, Oregon had subordinated its interest in compensating resident survivors in amounts in excess of $20,000 to its interest in protecting the financial security of resident defendants by preventing the imposition of excessive burdens. The Oregon plaintiffs, through workmen's compensation, had already been compensated in excess of $20,000. Oregon's interest in their compensation had been fulfilled. The defendant manufacturing corporation, while not incorporated in Oregon, was lawfully doing business there and Oregon had an interest extending to such a resident business entity in applying that state's limitation of damages in order to protect such defendant's financial security.

          38

          In Ryan, the allegedly tortious conduct was in the manufacture of the loader which had been accomplished in Michigan by a corporation incorporated in that state. Michigan had an interest in applying its rule of compensation without limitation as to amount to all who committed tortious conduct within that state, but particularly to resident defendants, in order to deter such conduct.

          39

          Both Oregon and Michigan had an interest in applying their respective wrongful death statutes to the same corporate defendant. Insofar as the defendant did business in Oregon, that state had an interest in protecting the defendant's financial security by limiting damages; insofar as the defendant was a Michigan corporation and allegedly committed tortious conduct in Michigan, that state had an interest in subjecting the defendant to unlimited liability in order to deter such conduct. Thus Ryan is a case of true conflict; both states there involved had a legitimate interest in the measure of damages.

          40

          The Court of Appeal resolved the conflict by applying the monetary limitations of Oregon law and declared that Oregon's interest "overrides any possible concern of Michigan in the regulation of the activities of [586] manufacturers." (Ryan v. Clark Equipment Co., supra, 268 Cal. App.2d 679, 683.)

          41

          (11) Without addressing ourselves to the accuracy of this conclusion, we must note that the Court of Appeal incorrectly identified Oregon's interest in applying its limitation of damages in exactly the manner as contended by defendants herein, namely that limitations of damages are concerned with compensation of survivors. The court relied on Reich v. Purcell, supra, 67 Cal.2d 551 for that proposition. As hereinabove explained, this court concluded in Reich that a state's interest in limiting recovery in wrongful death actions is in protecting resident defendants from excessive financial burdens. Consequently Oregon's interest in limiting the amount of recovery, as opposed to providing some recovery, is directed at resident defendants not resident plaintiffs. To the extent that any language in Ryan v. Clark Equipment Co., supra, 268 Cal. App.2d 679 is inconsistent with this opinion it is disapproved.

          42

          Defendant's final contention is that California has no interest in extending to out-of-state residents greater rights than are afforded by the state of residence, citing Ryan v. Clark Equipment Co., supra, 268 Cal. App.2d 679, 683 and Howe v. Diversified Builders, Inc. (1968) 262 Cal. App.2d 741, 745-746 [69 Cal. Rptr. 56]. Defendant urges seemingly as an absolute choice of law principle that plaintiffs in wrongful death actions are not entitled to recover more than they would have recovered under the law of the state of their residence. (12) In effect defendant argues that the state of plaintiffs' residence has an overriding interest in denying their own residents unlimited recovery.

          43

          Limitations of damages express no such state interest. A policy of limiting recovery in wrongful death actions "does not reflect a preference that widows and orphans should be denied full recovery." (Cavers, op. cit. supra, at p. 151.) Nor do the cases cited by defendant support his contention. In both Ryan and Howe the Court of Appeal determined that no other state had a sufficient interest in the case to require or justify the plaintiffs receiving unlimited recovery under the rules of decisions of those states. For example in Howe the court stressed that California had no real interest in applying its law, that only Nevada had such an interest, and that accordingly the Nevada plaintiffs suing in California, should be bound by the law of Nevada as the only applicable rule of decision.

          44

          Because Mexico has no interest in applying its limitation of damages in wrongful death actions to nonresident defendants or in denying full [587] recovery to its resident plaintiffs, the trial court both as the forum, and as an interested state, correctly looked to its own law.

          45

          The alternative writ of mandate is discharged and the petition for a peremptory writ is denied.

          46
          Wright, C.J., McComb, J., Tobriner, J., Mosk, J., Burke, J., and Clark, J., concurred.
          47

          Petitioner's application for a rehearing was denied July 10, 1974.

          48

          [1] Section 1889 of the Civil Code of the State of Zacatecas, Mexico, provided that a decedent's survivors may receive a maximum of 25 pesos per day for a period of 730 days. This section expressly makes the Federal Labor Law (of Mexico) applicable in determining the amount of damages recoverable in wrongful death actions. Section 1890 of the Zacatecas Civil Code provides that the court may, in its discretion, award an additional amount, not to exceed one-third of the first amount, as extra indemnity.

          49

          [2] "The forum must search to find the proper law to apply based upon the interests of the litigants and the involved states." (Reich v. Purcell, supra, 67 Cal.2d at p. 553.) The governmental interests approach is applicable not only to situations involving multistate contacts but also to those involving a state of the United States vis-a-vis a political entity of a foreign country. (Kasel v. Remington Arms Co. (1972) 24 Cal. App.3d 711, 731 [101 Cal. Rptr. 314].)

          50

          [3] "The case of Reich v. Purcell seems the very paradigm of the false conflict, and, apart from its service in aligning California squarely with the states rejecting the vested rights theory, Chief Justice Traynor's opinion should prove invaluable as a methodological exercise in the resolution of the choice-of-law problem by reference to the purposes of the laws involved." (Cavers, Comments on Reich v. Purcell, 15 U.C.L.A.L.Rev. 647, fn. omitted.)

          51

          [4] "Wrongful death statutes create causes of action in specified beneficiaries and distribute the proceeds to those beneficiaries. The proceeds in the hands of the beneficiaries are not distributed through the decedent's estate and, therefore, are not subject to the claims of the decedent's creditors and consequently do not provide a fund for local creditors. Accordingly, the interest of a state in a wrongful death action insofar as plaintiffs are concerned is in determining the distribution of proceeds to the beneficiaries and that interest extends only to local decedents and beneficiaries." (Reich v. Purcell, supra, at p. 556, italics added.)

          52

          [5] "Missouri's limitation on damages expresses an additional concern for defendants, however, in that it operates to avoid the imposition of excessive financial burdens on them. That concern is also primarily local." (Reich v. Purcell, supra, at p. 556; italics added.)

        • 1.3.1.3 Rong Yao Zhou v. Jennifer Mall Rest.

          1
          534 A.2d 1268 (1987)
          2
          RONG YAO ZHOU, et al., Appellants,
          v.
          JENNIFER MALL RESTAURANT, INC., Appellee.
          3
          No. 86-809.
          4

          District of Columbia Court of Appeals.

          5
          Argued April 7, 1987.
          6
          Decided December 4, 1987.
          7

          [1269] Frederic W. Schwartz, Jr., with whom Robert Cadeaux, Washington, D.C., was on the brief, for appellants.

          8

          Richard L. Fritts, with whom Joseph P. Clancy, Chevy Chase, Md., was on the brief, for appellee.

          9

          Before PRYOR,[1] Chief Judge, NEWMAN, Associate Judge, and NEBEKER[2], Associate Judge, Retired.

          10
          NEWMAN, Associate Judge:
          11

          In this case of first impression, we are asked to decide whether third parties suffering accidental injuries as the result of the acts of an intoxicated person state a cause of action against a tavern keeper where, as here, they allege (1) that the tavern keeper violated D.C.Code § 25-121(b) (1981) by serving a patron who was, or appeared to be, already intoxicated, and (2) that the statutory violation was a proximate cause of the injuries. We hold, on the basis of those cases in which we have recognized that violation of a statute designed to protect public safety supplies sufficient evidence on which to rest a claim for liability in tort, that Rong Yao Zhou and Xiu Juan Wu have stated a cause of action under District of Columbia law. We, therefore, vacate the order of the trial court granting Jennifer Mall Restaurant's motion for judgment on the pleadings, and remand for trial.

          12
          I.
          13

          Assuming as true the allegations as pleaded in the complaint, as we must for purposes of our review of a motion to dismiss for failure to state a claim, Vicki Bagley Realty, Inc. v. Laufer, 482 A.2d 359, 364 (D.C.1984); McBryde v. Amoco Oil Co., 404 A.2d 200, 202 (D.C.1979), we are presented with the following set of facts. At approximately 11:30 p.m. on the evening of May 28, 1982, Rong Yao Zhou and Xiu Juan Wu, husband and wife, were seriously injured when they were struck by a car operated by a drunk driver on Connecticut Avenue in Chevy Chase, Maryland. The driver, Peter Joray, was returning from the Brittany Restaurant (trade name of appellee Jennifer Mall Restaurant, Inc.) in Washington, D.C. Employees of the restaurant had unlawfully served alcohol to Joray after he had become intoxicated and after his intoxication had become apparent. It was in this impaired condition that Joray [1270] entered his car and drove into Maryland, soon thereafter injuring Zhou and Wu.

          14

          On May 9, 1984, Zhou and Wu filed suit in Superior Court seeking 3.5 million dollars in damages from Jennifer Mall Restaurant, Inc. Jennifer Mall Restaurant moved under Super.Ct.Civ.R. 12(b) for judgment on the pleadings for failure to state a claim upon which relief can be granted. Judge Hannon granted the motion without opinion on May 6, 1986.

          15
          II.
          16

          We are confronted at the outset by the question of whether to apply District of Columbia law or Maryland law to a personal injury action arising from an accident occurring in Maryland, near the District of Columbia boundary, where the defendant's allegedly negligent conduct occurred in the District of Columbia by a corporation doing business here, and where plaintiffs are District of Columbia residents. We note that the choice of law issue has not been raised by the parties to this suit, who have assumed that District of Columbia law applies. Under Maryland law, a tavern keeper would not be liable in tort under the facts alleged in this case. See Felder v. Butler, 292 Md. 174, 438 A.2d 494 (1981).

          17

          The District of Columbia has long followed the "governmental interests analysis" approach to choice of law. Williams v. Williams, 390 A.2d 4, 5 (D.C. 1978); Gaither v. Myers, 131 U.S.App.D.C. 216, 222, 404 F.2d 216, 222 (1968); Tramontana v. S.A. Empresa de Viacao Area Rio Grandense, 121 U.S.App.D.C. 338, 341, 350 F.2d 468, 471 (1965), cert. denied, 383 U.S. 943, 86 S.Ct. 1195, 16 L.Ed.2d 206 (1966). Therefore, it is not the place of the injury that necessarily determines which law is to be applied. Rather, our jurisdiction, and others, see generally Allstate Insurance Co. v. Hague, 449 U.S. 302, 314 n.19, 316 n.22, 101 S.Ct. 633, 641 n.19, 642 n.22, 66 L.Ed.2d 521 (1981), have recognized that the place of the injury may be a mere "fortuity" in light of the fact that the relationship of the parties to the litigation is centered elsewhere. Kaiser-Georgetown Community Health Plan, Inc. v. Stutsman, 491 A.2d 502, 508 (D.C.1985) (applying District of Columbia law in medical malpractice action arising from medical services performed in Virginia upon Virginia resident, where services were benefit of plaintiff's employment in District of Columbia and defendant was District of Columbia corporation); Williams v. Rawlings Truck Line, Inc., 123 U.S.App.D.C. 121, 125, 357 F.2d 581, 585 (1965). An automobile or other vehicular accident occurring close to the border between two states presents a classic case of such a fortuity. See Gaither, supra; Allstate, supra, 449 U.S. at 314 & n.19, 101 S.Ct. at 641 n.19; Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 134-135, 172 N.E.2d 526, 527 (1961); Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 750-51, 191 N.E.2d 279, 284 (1963); see also Estrada v. Potomac Electric Power Co., 488 A.2d 1359, 1364 (D.C.1985) (contrasting unpredictable situs of injury resulting from lack of due care concerning automobile with fixed situs when negligence involves care of land).

          18

          In applying governmental interests analysis to the facts of this case, we consider the interests, respectively, of Maryland and the District of Columbia. From the ruling of Maryland's highest court in Felder, supra, we understand that state to adhere to a policy of protecting negligent bar owners from civil liability, although they remain subject to the criminal penalties that attach for serving a person who is "visibly under the influence," MD. ANN. CODE art. 2B, § 118(a) (1957, 1979 Repl. Vol.), see id., 438 A.2d at 498. By contrast, a District of Columbia rule that would make tavern keepers answerable in tort, as well as under the criminal sanctions of D.C.Code § 25-121(b) (1981), would signify interests of this jurisdiction in compensating victims for resulting injuries, as well as in deterring harmful conduct.

          19

          The apparent clash of policies between Maryland and the District of Columbia presents a "false conflict" in the context of this case. A "false conflict" occurs when the policy of one state would be advanced by application of its law, while that of the other state would not be advanced [1271] by application of its law. In such a situation, the law of the interested jurisdiction prevails. Kaiser-Georgetown, supra, 491 A.2d at 509; Gaither, supra, 131 U.S. App.D.C. at 224, 404 F.2d at 224. Here, Maryland's interest in protecting tavern owners from tort liability is not implicated where the negligent restaurant is situated in the District of Columbia and the unlawful conduct occurred therein. Hence we apply the law of the interested jurisdiction, the District of Columbia.[3]

          20

          Should there remain any question whether District of Columbia law applies in this case, Gaither, supra, furnishes the answer. Gaither is binding precedent[4] that District of Columbia law applies when a cause of action is cognizable under District of Columbia tort law on the basis of a violation within the District of Columbia of a District of Columbia statute or regulation, even though the injury occurs nearby in Maryland where a similar statute has been interpreted by Maryland's highest court as not supporting civil liability. In Gaither, the District of Columbia regulation at issue required car owners to remove their keys from their vehicles when leaving them unattended. The negligent conduct occurred in the District of Columbia. The car was subsequently stolen and driven into Maryland, where it struck and injured plaintiff five miles from the District of Columbia border.

          21

          Finally, we observe that other jurisdictions that have confronted the question of tavern keeper liability arising in a multistate context have concluded that "the place where the liquor was unlawfully sold is of greater significance than the location of the accident because, when an intoxicated person is driving, the actual site of the crash is largely fortuitous," Pardey v. Boulevard Billiard Club, 518 A.2d 1349, 1352 (R.I.1986), and, accordingly, have applied the rule of liability of the state in which the vendor committed the unlawful act. See, e.g., Trapp v. 4-10 Investment Corp., 424 F.2d 1261, 1265 (8th Cir.1970); Bankford v. DeRock, 423 F.Supp. 602, 606 (N.D. Iowa 1976); Zucker v. Vogt, 200 F.Supp. 340, 343 (D.Conn.1961), aff'd, 329 F.2d 426, 428 n.2 (2d Cir.1964); Schmidt v. Driscoll Hotel, 249 Minn. 376, 82 N.W.2d 365, 368 (1957); Pardey, supra, 518 A.2d at 1352-53.

          22
          III.
          23

          Having determined that District of Columbia law governs the outcome of this case, we turn now to examine the substantive question of whether Zhou and Wu have stated a cause of action under the law of this jurisdiction. D.C.Code §§ 25-101 to 25-139 (1981), the Alcoholic Beverage Control Act, regulates the sale of liquor in the District of Columbia. Section 25-121(b), in pertinent part, prohibits holders of licenses under § 25-111 from "permit[ing] on the licensed premises ... the consumption of any beverage by any intoxicated person, or any person of notoriously intemperate habits, or any person who appears to be intoxicated...."[5] Violators are subject to fine [1272] or imprisonment, pursuant to D.C.Code § 25-132 (1981). We conclude that this statute, while not itself providing a cause of action against tavern keepers by injured third parties, supplies the standard of care by which tavern keepers' conduct is to be measured under the common law. Hence, when a plaintiff alleges that a tavern keeper has violated § 25-121(b), he alleges sufficient evidence of negligence that, when combined with an allegation of proximate causation, states a cause of action under District of Columbia law.

          24
          A.
          25

          While the question of tavern keeper liability is one of first impression before this court, it has been considered — in cases not binding upon us — by the Superior Court of the District of Columbia and by the United States Court of Appeals for the District of Columbia Circuit, with inconsistent results. In Marusa v. District of Columbia, 157 U.S.App.D.C. 348, 484 F.2d 828 (1973), the D.C. Circuit was presented with a claim against a bar owner by a person shot by an allegedly intoxicated police officer following the officer's consumption of alcoholic beverages at the defendant's establishment. The court concluded that "[i]t is settled law in this court that `violation of an ordinance intended to promote safety' can give rise to a negligence action." Id. at 353, 484 F.2d at 833, citing Whetzel v. Jess Fisher Management Co., 108 U.S.App. D.C. 385, 389, 282 F.2d 943, 947 (1960), and that permitting a cause of action against the tavern keeper would not depart sharply from common law principles. Id., at 355, 484 F.2d at 835. The court had little trouble determining that "it seems obvious that regulations governing the sale of liquor are intended to enhance public safety"; that the statute imposes certain duties on the tavern owner; and that "in light of the purpose of the statute, ... those duties are owed to the community at large ... [including] third parties ... who might come into contact with inebriated persons." Id., at 354, 484 F.2d at 834 (footnotes omitted).

          26

          Five years after the D.C. Circuit's decision in Marusa, the Superior Court of the District of Columbia (Hannon, J.) considered the civil liability of tavern owners in the context of a somewhat different pattern of events. In Clevenger v. District of Columbia, 106 Daily Wash.L.Rptr. 1561 (D.C.Super.Ct. July 11, 1978), the plaintiff was an intoxicated patron who sought to recover from the restaurant's owner for injuries allegedly incurred at the hands of police who had been called by the tavern keeper for assistance in removing the plaintiff from his premises.

          27

          Judge Hannon addressed the Clevenger case as if it raised two entirely separate questions: could plaintiff state a claim of negligence under the common law, or, alternatively, could he avail himself of an "implied cause of action" under D.C.Code § 25-121. He rejected Clevenger's complaint on both grounds. As for the common law ground, Judge Hannon concluded that "the concepts of proximate cause and reasonable forseeability become severely strained when ... the claimed injuries result from independent, intentional torts of third parties allegedly provoked by plaintiff's intoxication." Id. at 1565. As for the implied statutory claim, he drew two conclusions. First, he determined that the Alcoholic Beverage Control Act reflected a "congressional purpose of promoting morality and protecting public sensibilities" rather than of protecting public safety, which he believed was necessary to imply a cause of action under the statute. Id. at 1566. Second, in Judge Hannon's view, even assuming a statutory purpose of protecting public safety, the plaintiff in Clevenger was not among the class of persons that the statutory provision sought to protect, since Congress did not "evidence any intention to protect the safety of individuals who voluntarily drink to excess." Id. at 1567.

          28

          [1273] The question of tavern keeper liability revisited the D.C. Circuit in 1986. In Norwood v. Marrocco, 251 U.S.App.D.C. 2, 780 F.2d 110 (1986), the court effectively overruled Marusa, relying on the Superior Court's intervening Clevenger decision. Factually, Norwood was an amalgam of Marusa and Clevenger. As in Marusa, the plaintiff was a third party claiming damages for assault by an intoxicated patron of defendant's restaurant. However, as in Clevenger, plaintiff himself was intoxicated, although as the result of drinks served elsewhere.

          29

          The D.C. Circuit in Norwood focused exclusively on whether an "implied cause of action" could be found under D.C.Code § 25-121, and — concluding that it was "appropriate to refer to Clevenger for authoritative guidance" on the law of the District of Columbia — answered that question in the negative, 251 U.S.App.D.C. at 4-5, 780 F.2d at 112-13. Hence, Norwood ignored the question of whether the plaintiff had stated a negligence cause of action under common law principles.

          30
          B.
          31

          We reject the approach taken by Norwood and Clevenger, which, we believe, inappropriately isolates from the question of common law liability the significance of § 25-121(b) of the Alcoholic Beverage Control Act. By asking, with respect to that Act, only whether it creates an "implied cause of action," those cases ignore a fundamental principle of our common law and misapply theories that allocate roles between courts and legislatures. We endorse instead the view taken in Marusa. That view rests upon a long established principle of tort liability in the District of Columbia and one entirely consistent with the role of courts in giving content to the common law.

          32

          As we stated in Ceco Corp. v. Coleman, 441 A.2d 940 (D.C.1982):

          33
          The "general rule" in this jurisdiction is that "where a particular statutory or regulatory standard is enacted to protect persons in the plaintiff's position or to prevent the type of accident that occurred, and the plaintiff can establish his relationship to the statute, unexplained violation of that standard renders the defendant negligent as a matter of law."
          34

          Id. at 945, quoting Richardson v. Gregory, 108 U.S.App.D.C. 263, 266, 281 F.2d 626, 629 (1960) (added emphasis deleted). Hence, "[o]ccasionally ... legislative action fashions applicable standards of conduct which themselves fix the duty of care required[;] [f]ailure to meet these community standards stamps the offender `negligent,' i.e. failing to exercise that degree of care necessary in the particular situation." Richardson, supra, 108 U.S.App.D.C. at 266, 281 F.2d at 629. See also RESTATEMENT (SECOND) OF TORTS § 285 comment c at 21 (1965) ("Even where a legislative enactment contains no express provision that its violation shall result in tort liability, and no implication to that effect, the court may, and in certain types of cases customarily will, adopt the requirements of the enactment as the standard of conduct necessary to avoid liability for negligence."); W. Keeton, D. Dobbs, R. Keeton, D. Owen, PROSSER & KEETON ON THE LAW OF TORTS § 36 at 220 (5th ed. 1984).

          35

          The rule that "[v]iolation of an ordinance intended to promote safety is negligence," Ross v. Hartman, 78 U.S.App.D.C. 217, 218, 139 F.2d 14, 15 (1943), cert. denied, 321 U.S. 790, 64 S.Ct. 790, 88 L.Ed. 1080 (1944), is rooted in the principle that failure to comply with a statutory requirement designed to protect public safety "is to fall short of the standard of diligence to which those who live in organized society are under a duty to conform," Martin v. Herzog, 228 N.Y. 164, 168, 126 N.E. 814, 815 (1920) (Cardozo, J.). Hence, this "axiom of tort law ... recognizes that the continued vitality of the common law, including the law of torts, depends upon its ability to reflect contemporary community values and ethics." Whetzel, supra, 108 U.S.App. D.C. at 388, 282 F.2d at 946.

          36

          Incorporating into the common law a standard of care set by a legislative enactment is distinct from determining that a cause of action arises, by implication, under a statute. The latter task is a matter of [1274] statutory construction, requiring the court to determine whether the legislature intended something other than that which it provided expressly. Cannon v. University of Chicago, 441 U.S. 677, 688, 694, 99 S.Ct. 1946, 1953, 1956, 60 L.Ed.2d 560 (1979). Courts appropriately refrain from making such inferences except under certain narrowly defined circumstances. See Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2089, 45 L.Ed.2d 26 (1975) (standards for implying private causes of action under federal statutes). By contrast, the decision to adopt from a penal statute a standard of care to be applied in determining common law negligence is "purely a judicial one, for the court to make." RESTATEMENT, supra, § 286 comment d at 26; Ontiveros v. Borak, 136 Ariz. 500, 510 & n. 3, 667 P.2d 200, 210 & n. 3 (1983) (en banc). Defining the contours of common law liability, including the duty that may have been breached in a negligence case, is a task traditionally within the purview of the judicial branch. Kelly v. Gwinnell, 96 N.J. 538, 552-53, 555-57, 476 A.2d 1219, 1226, 1228 (1984); El Chico Corp. v. Poole, 732 S.W.2d 306, 314-15 (Tex.1987).

          37

          Our courts have recognized that a variety of statutes have a public safety purpose justifying the application of the rule that their violation constitutes negligence. In Ross, supra, and Gaither, supra, this jurisdiction held that violation of an ordinance prohibiting vehicle owners from leaving their automobiles unattended with the key in the ignition constituted negligence per se in a personal injury action against the car owner by a third party injured by the stolen vehicle following its theft. In the court's view, "[t]he evident purpose of requiring motor vehicles to be locked is not to prevent theft for the sake of owners or the police, but to promote the safety of the public in the streets." Ross, supra, 78 U.S.App.D.C. at 218, 139 F.2d at 15. Similar conclusions have been drawn with respect to building codes, see H.R.H. Construction Co. v. Conroy, 134 U.S.App.D.C. 7, 9, 411 F.2d 722, 724 (1969) (injury to construction worker); Elliott v. Michael James, Inc., 182 U.S.App.D.C. 138, 143, 559 F.2d 759, 764 (1977) (stabbing of restaurant employee; escape prevented because doors unlawfully locked on inside); industrial safety board regulations, see Bowman v. Redding & Co., 145 U.S.App.D.C. 294, 301-02, 449 F.2d 956, 963-64 (1971); traffic regulations, see Leiken v. Wilson, 445 A.2d 993, 1002 (D.C.1982); Bauman v. Sragow, 308 A.2d 243, 244 (D.C.1973); Danzansky v. Zimbolist, 70 App.D.C. 234, 236, 105 F.2d 457, 459 (1939); housing codes, see Whetzel, supra, 108 U.S.App.D.C. at 392, 282 F.2d at 950 (injury to tenant by falling ceiling; landlord's violation of code by renting habitation not "in repair" sufficient to send claim of negligence to jury); and the statute making it criminal for a police officer to use excessive force, see District of Columbia v. White, 442 A.2d 159, 163-64 (D.C.1982) (violation supports claim of negligence in wrongful death action).

          38

          In addition, even where the court does not preceive a public safety purpose in the legislative enactment, the statutory violation may be admitted as evidence of negligence, although it does not constitute negligence per se. Stevens v. Hall, 391 A.2d 792, 795-96 (D.C.1978); Whetzel, supra, 108 U.S.App.D.C. at 389, 282 F.2d at 947; Peigh v. Baltimore & Ohio R. Co., 92 U.S.App.D.C. 198, 200-01, 204 F.2d 391, 393-94 (1953). Compare Standardized Civil Jury Instructions for the District of Columbia, No. 5-8 (1981) ("If you find that a regulation ... intended to protect the public has been violated and thereby caused injuries which the regulation ... intended to avoid, you must find negligence....") (emphasis added) with No. 5-9 ("The violation of a regulation ..., which is a cause of a plaintiff's ... injuries is evidence of negligence ... to be considered by you.") (emphasis added). Finally, where the statute has a public safety purpose, but the defendant has put forth evidence excusing its violation, that violation may also be considered evidence of negligence rather than negligence per se. Leiken, supra, 445 A.2d at 1002-03; Ceco, supra, 441 A.2d at 945; Hecht Co. v. McLaughlin, 93 U.S.App.D.C. 382, 385-86, 214 F.2d 212, 215-16 (1954) (although department store door arguably was in violation [1275] of building code, its installation had been approved by Department of Building Inspection).[6]

          39
          C.
          40

          We have no difficulty concluding that § 25-121(b) of the Alcoholic Beverage Control Act has a public safety purpose, and that its unexcused violation therefore constitutes negligence per se, i.e., breach of the duty of care that tavern keepers owe to the public. Thus, when members of the public allege, as plaintiffs have here, that the tavern keeper's negligence was the legal cause of their injuries, they state a cause of action under District of Columbia law.

          41

          In Clevenger, Judge Hannon, in considering the implied statutory claim, concluded that § 25-121(b) did not have a public safety purpose, but rather a "purpose of promoting morality and protecting public sensibilities." 106 Daily Wash.L.Rptr. at 1566. We believe that this view is shortsighted, at best. For even if the legislation may be accurately regarded in some respects as post-Prohibition "morals" legislation — desigend to contain that which Prohibition had failed in attempting to ban altogether —, the "moral" imperative to control the distribution and consumption of alcohol cannot be said to have existed separate and apart from a recognition that excessive consumption presents serious threats to public safety.

          42

          Congress in 1934 clearly was aware of the public safety hazards associated with alcohol abuse, and incorporated safety concerns as an integral part of its comprehensive scheme to regulate the sale and use of alcohol in the nation's capital. Senator Sheppard, who supported Prohibition, and opposed the legislation regulating the reintroduction of alcohol in the District of Columbia, was certain that among the many evils associated with the substance was that it "multiplies the hazards on our streets and highways, imperiling the lives of motorists, pedestrians, and little children." 78 CONG.REC. 698 (1934). A majority of the Congress apparently shared Senator Sheppard's safety concern, when, in enacting the Alcoholic Beverage Control Act, it included, alongside § 25-121(b), § 25-127 which prohibits the operation of a locomotive, streetcar, elevator, watercraft, or horse-drawn vehicle by an intoxicated person. 48 Stat. 333, ch. 4 (1934). Section 25-127, by its terms, also left intact another pre-existing statute, 46 Stat. 1428 ch. 317 (1931), now codified at § 40-716, prohibiting driving of motor vehicles while intoxicated.

          43

          Congress understood that it was regulating a dangerous substance, and that the potential for injury and accident associated with intoxication is amplified when the intoxicated person is placed at the controls of a mechanical device, particularly one involved in transportation. When, as alleged in this case, an intoxicated customer who has been served liquor in violation of the Alcoholic Beverage Control Act crashes his car shortly after departing from defendant's establishment, injuring third parties, we believe that a harm has occurred which § 25-121(b) was designed to prevent and that the doctrine of negligence per se should apply.[7]

          44

          [1276] Our view is not mitigated by the proposition that public safety may have been only a partial purpose of the legislation. In District of Columbia v. Nordstrom, 117 U.S.App.D.C. 165, 327 F.2d 863 (1963), the court held that violation of a traffic regulation prohibiting parking of vehicles on the sidewalk was negligence in a case in which a pedestrian claimed that she was injured when, in stepping off the sidewalk to avoid an unlawfully parked vehicle, she stepped into a hole and fell. The court concluded that "[r]easonably construed the regulation is designed in part at least for the safety of pedestrians.... It is reasonable to assume, in the absence of evidence to the contrary, that the framers of the regulation were aware of the danger to pedestrians which might result from obstructing a sidewalk and that one purpose of the regulation was to prevent such danger." Id. at 168, 327 F.2d at 866 (emphasis added).

          45

          We think that the same can easily be said of the statutory provision prohibiting tavern keepers from serving alcohol to persons already intoxicated or apparently intoxicated. Liquor control laws frequently have multiple purposes, District of Columbia v. Gardiner, 39 App.D.C. 389, 393 (1912); Ontiveros, supra, 667 P.2d at 211; Largo Corp. v. Crespin, 727 P.2d 1098, 1108 (Colo.1986) (en banc), and our courts have held that "a liberal and reasonable construction shall be given these statutes in view of their remedial objects and purposes so as to effect the[se purposes]," Gardiner, supra, 39 App.D.C. at 393. The courts of other jurisdictions, examining prohibitions nearly identical to § 25-121(b), have concluded that such an enactment "unquestionably reflects a legislative concern for the clear dangers surrounding the sale or provision of alcohol to those who cannot safely consume it," Largo, supra, 727 P.2d at 1108; see also Thaut v. Finley, 50 Mich.App. 611, 613, 213 N.W.2d 820, 822 (1973) ("it would be absurd indeed to maintain that one of the purposes of the statute in question was not to protect the public from the risk of injury") (statute prohibiting sale of alcohol to minors). Violation of statutes that prohibit sale of alcoholic beverages to intoxicated persons or to minors has been the most common basis upon which courts have found breach of the duty of care that is necessary for imposing tort liability on tavern keepers for resulting injuries.[8]

          46
          IV.
          47

          Accordingly, we hold that the unexcused violation by a tavern keeper of D.C. Code § 25-121(b) (1981), by serving a person already intoxicated or apparently intoxicated, renders the tavern keeper negligent per se, and that where injuries are proximately caused to a member of the public by that violation the tavern keeper may be liable in damages. We reverse the trial court's order granting Jennifer Mall Restaurant's motion for judgment on the pleadings, and we remand for trial.

          48

          [1277] In remanding, we caution that our holding leaves a number of issues open for proof at trial. See generally Gaither, supra, 131 U.S.App.D.C. at 221 n. 16, 404 F.2d at 221 n. 16. First, the jury must surmount the threshold question of whether, in fact, the statute has been violated. Stevens, supra, 391 A.2d at 796 n.2; Bauman, supra, 308 A.2d at 244. The defendant in turn may present evidence as to whether the violation was excusable under the circumstances or whether other acts of due care negate the negligence implied by the statutory violation. Gaither, supra, 131 U.S.App.D.C. at 221 n. 16, 404 F.2d at 221 n. 16; Hecht Co., supra, 93 U.S.App.D. C. at 384-86, 214 F.2d at 214-16.

          49

          In addition, plaintiffs must prove that the statutory violation was the proximate cause of their injuries. Although in Ross, supra, the circuit court held that "[b]oth negligence and causation are too clear in this case ... for submission to a jury," 78 U.S.App.D.C. at 218-19, 139 F.2d at 15-16, other cases have emphasized that causation is a matter for proof, see Ceco, supra, 441 A.2d at 945; H.R.H., supra, 134 U.S.App. D.C. at 9, 411 F.2d at 724; Gaither, supra, 131 U.S.App.D.C. at 221 n. 16, 404 F.2d at 221 n. 16; Richardson, supra, 108 U.S. App.D.C. at 266-67, 281 F.2d at 629-30; see also Casey v. Corson & Gruman Co., 95 U.S.App.D.C. 178, 179, 221 F.2d 51, 52 (1955) (key-in-ignition ordinance; negligence was "too remote from the collision in time, place and circumstances to be a proximate cause of plaintiffs' injuries," where accident occurred fifteen miles south of Petersburg, Virginia, many hours after the statutory violation occurred in the District of Columbia). In applying the doctrine of negligence per se and holding that plaintiffs have stated a cause of action upon which relief may be granted, we necessarily hold that plaintiffs have alleged an injury of the general type that the statute was intended to prevent, i.e., accidental injury to members of the public. To prevail at trial, however, plaintiffs must show that they, in fact, suffered such an injury and prove its proximity in "time, place and circumstances," id., to the alleged statutory violation.

          50

          As a final caveat we note that, in considering the issue of proximate causation, the jury is not free to find that the customer's consumption of the alcohol was an intervening cause of the harm to plaintiff, thereby negativing proximate cause as it relates to the tavern keeper's furnishing of the drinks. To permit such a conclusion would be to give force to the very argument that the rule of negligence per se is designed to preempt. The essence of that rule is that "the conduct of the defendant or his agent was negligent precisely because it created a risk that a third person would act improperly. In such circumstances, the fact that a third person does act improperly is not an intelligible reason for excusing the defendant." Ross, supra, 78 U.S.App.D.C. at 219, 139 F.2d at 16; accord, Gaither, supra, 131 U.S.App.D.C. at 221, 404 F.2d at 221; see also Ceco, supra, 441 A.2d at 944 ("The negligent act of a third party will operate as a superseding cause of the plaintiff's harm only where the original actor should not have anticipated that act."). It is our view that "[t]he rule we are adopting tends to make the streets safer by discouraging the hazardous conduct which the ordinance forbids. It puts the burden of the risk ... upon those who create it." Ross, supra, 78 U.S.App.D.C. at 219, 139 F.2d at 16.[9]

          51

          Reversed and remanded.

          52
          NEBEKER, Associate Judge, Retired:
          53

          I dissent for two reasons. To an extent they are related, for in the end each dictates abstention by this court.

          54

          [1278] When one examines the basis for the majority holding, it, simply stated, is that the criminal proscription against permitting a drunk person (or one apparently so), from consuming an alcoholic drink is a bridge to impose a civil duty on an A.B.C. license holder. This is in derogation of ordinary rules respecting intervening or proximate cause.

          55

          I do not view the cases relied on by the majority (ante at 1274-1275) as requiring us to hold as we do. They are only examples of similar holdings in different contexts, some of which are better reasoned than others, but each representing an individual judicial judgment call. In this case, I would not, being free to choose, follow the course of expanding liability.

          56

          The first reason for my unwillingness is that we work a reasonless discrimination between victims of drunk drivers who are injured by one permitted to get drunk, but thereafter not permitted further consumption, and those whose primary malefactors were permitted further consumption of alcohol after becoming intoxicated. In my view, we fail in our obligation to administer justice fairly when we judicially create a cause of action for some innocent third parties by using a statute which operates to exclude others without reason.

          57

          My second reason for disagreement is based on the premise that this kind of remedy should be left to the political process. Once we turn the corner on license-holder liability based on D.C.Code § 25-121(b) (1981), we must logically go the next step when the case is presented to us, as it surely will be. The next step is quite simple. Under D.C.Code § 40-716(b) (1986), it is an offense to operate a motor vehicle with a certain level of blood alcohol. When that statute and the aider and abettor statute (D.C. Code § 22-105 (1981)) are taken together, a license holder, or a social host, who aids another to consume sufficient alcohol to become drunk before he drives off in his car, must be held to account under a complaint charging similarly to this one. Section 22-105, supra, makes a principal one who aids and abetts the principal offender "[i]n prosecutions for any criminal offense ... whatever the punishment may be." Id. These criminal statutes are surely as available as § 25-121(b), supra, to form a duty predicate for civil liability. Indeed, I suspect they are better than § 25-121(b), for they lack the baseless distinction between serving one who is drunk and aiding one in getting drunk and then operating a car.

          58

          To be sure, this next step at expanding liability would cure my first objection, viz., that we irrationally discriminate against some victims of drunk drivers. It is both reasons which prompt me to abstain from this holding. The political process is far better suited to decide whether and to what extent suppliers of alcohol, which lead to intoxication and injury to innocent third parties, are subject to suit.

          59

          If there is even a colorable argument that this question is for the legislature (and I think it is far stronger), then two judges of this court ought not to decide it alone. Surely the en banc court should apply itself to the task of deciding this issue of abstention or deference to the legislative process.

          60

          I dissent.

          61

          [1] Hubert B. Pair, Senior Judge, was originally a member of this division. Chief Judge Pryor was drawn to replace him pursuant to the Internal Operating Procedures of this court.

          62

          [2] Judge Nebeker was an Associate Judge of this court at the time of argument. His status changed to Associate Judge, Retired, on September 1, 1987.

          63

          [3] The only interest of Maryland that is implicated in this litigation, an interest in protecting public safety which we infer from its statutory prohibition on serving persons under the influence, is consistent with rather than in conflict with applying a District of Columbia rule of civil liability.

          64

          [4] See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971).

          65

          [5]The Definitions section of the Alcoholic Beverage Control Act provides:

          66

          The words "alcoholic beverage" or "beverage" include the 4 varieties of liquor above defined (alcohol, spirits, wine, and beer) and every liquid or solid, patented or not, containing alcohol, spirits, wine, or beer and capable of being consumed by a human being. Any liquid or solid containing more than 1 of the 4 varieties above defined is considered as belonging to that variety which has the higher percentage of alcohol, according to the order in which they are above defined, except as provided in paragraph (3) of this section. The provisions of this section and of this chapter shall not apply to any liquid or solid containing less than one-half of 1 per centum of alcohol by volume, nor shall anything contained in this chapter be construed as affecting the manufacture of apple cider or the sale thereof.

          67

          D.C.Code § 25-103(5) (1981) (emphasis added). As the result of subsequent amendment, § 25-121(b) now reads, in pertinent part, "... consumption of alcoholic beverages ... by any intoxicated person, or any person of notoriously intemperate habits, or any person who appears to be intoxicated." D.C.Code § 25-121 (1987 Supp.) (emphasis added).

          68

          D.C.Code § 25-121(b) (1981) also prohibits sale of alcoholic beverages to minors. Violation of that provision of § 25-121(b) has not been alleged in this case.

          69

          [6] Under both of the above circumstances, i.e., where injury results from violation of a statute not having a safety purpose, or where injury results from an excusable violation of a safety statute, the rule of negligence per se is not applicable because it cannot be said that the statutory violation has frustrated the statutory purpose. See Leiken, supra, 445 A.2d at 1002-03; Gorris v. Scott, L.R. 9 Ex. 125 (1874) ("the damage is of such a nature as was not contemplated at all by the statute"; livestock swept overboard in storm after carrier failed to place animals in pens as required to prevent spread of disease), quoted in PROSSER & KEETON, supra, § 36 at 225.

          70

          [7] Since 1934, the evidence, of course, has mounted of the hazards associated with combining drinking and driving. See, e.g., H.R. REP. No. 867, 97th Cong., 2d Sess. 7, reprinted in1982 U.S. CODE CONG. & ADMIN. NEWS 3367, 3367 (half of all traffic fatalities are alcohol related).

          71

          Although the facts before us involve accidental injuries resulting from a motor vehicle accident, a similar analysis would be appropriate for other types of accidental injuries associated with the excessive consumption of alcohol.

          72

          [8] See, e.g., Nazareno v. Urie, 638 P.2d 671, 675-76 (Alaska 1981); Ontiveros, supra, 667 P.2d at 209-11; Largo, supra, 727 P.2d at 1108-09; Davis v. Shiappacossee, 155 So.2d 365, 367 (Fla. 1963); Ono v. Applegate, 62 Haw. 131, 612 P.2d 533, 539 (1980); Elder v. Fisher, 247 Ind. 598, 217 N.E.2d 847, 850-51 (1966); Lewis v. State, 256 N.W.2d 181, 187-89 (Iowa 1977); Pike v. George, 434 S.W.2d 626, 627-28 (Ky.1968); Klingerman v. SOL Corp. of Maine, 505 A.2d 474, 478 (Maine 1986); Adamian v. Three Sons, Inc., 353 Mass. 498, 233 N.E.2d 18, 19 (1968); Thaut, supra, 213 N.W.2d at 821-22; Trail v. Christian, 298 Minn. 101, 213 N.W.2d 618, 625-26 (1973); Munford, Inc. v. Peterson, 368 So.2d 213, 217 (Miss.1979); Nehring v. LaCounte, 712 P.2d 1329, 1334 (Mont.1986); Ramsey v. Anctil, 106 N.H. 375, 211 A.2d 900, 901 (1965); Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1, 8-9 (1959); Lopez v. Maez, 98 N.M. 625, 651 P.2d 1269, 1275 (1982); Berkeley v. Park, 47 Misc.2d 381, 262 N.Y.S.2d 290, 293 (Sup.Ct.1965); Hutchens v. Hankins, 63 N.C.App. 1, 303 S.Ed.2d 584, 592-94, rev. denied, 309 N.C. 191, 305 S.E. 2d 734 (1983); Davis v. Billy's Con-Teena, Inc., 284 Or. 351, 587 P.2d 75, 76-78 (1978) (in banc); Christiansen v. Campbell, 285 S.C. 164, 328 S.E. 2d 351, 354 (Ct.App.1985); Walz v. City of Hudson, 327 N.W.2d 120, 122-23 (S.D.1982); Mitchell v. Ketner, 54 Tenn.App. 656, 393 S.W.2d 755, 757 (1964); El Chico, supra, 732 S.W.2d at 312-13; Young v. Caravan Corp., 99 Wash.2d 655, 663 P.2d 834, 837 (1983) (en banc); McClellan v. Tottenhoff, 666 P.2d 408, 413 (Wyo.1983).

          73

          [9] The dissent suggests that by our holding today we step upon a slippery slope, heading inexorably toward judicial recognition of social host liability in this jurisdiction. Like all slippery slope arguments, this one is fallacious because it presumes that courts are unable or unwilling to make the kinds of reasoned distinctions that it is precisely in the nature of courts to make. Some courts, in fact, have made a distinction that the dissent assumes will not be made, refusing to hold a social host or other non-licensee liable, although bound by precedent to recognize liability for the same acts had the defendant been a tavern keeper. See, e.g., Keckonen v. Robles, 146 Ariz. 268, 705 P.2d 945 (Ct.App.1985) (distinguishing Ontiveros, supra); Boutwell v. Sullivan, 469 So.2d 526 (Miss.1985) (distinguishing Munford, supra note 6); see also Garren v. Cummings & McCrady, Inc., 289 S.C. 348, 345 S.E.2d 508 (Ct.App.1986) (distinguishing Christiansen, supranote 6).

          74

          Of course, the question of social host liability is not presented by this case and we suggest no view here as to that question.

        • 1.3.1.4 Schultz v. Boy Scouts of Am.

          1
          65 N.Y.2d 189 (1985)
          2
          Richard E. Schultz, Individually and as Administrator of The Estate of Christopher Schultz, Deceased, and as Father and Natural Guardian of Richard Schultz, et al., Appellants,
          v.
          Boy Scouts of America, Inc., et al., Respondents, et al., Defendants.
          3

          Court of Appeals of the State of New York.

          4
          Argued February 7, 1985.
          5
          Decided April 30, 1985.
          6

          David Jaroslawicz for appellants.

          7

          Franklin N. Meyer for Boy Scouts of America, Inc., respondent.

          8

          William P. Ford and Stuart C. Levene for Brothers of the Poor of St. Francis, Inc., respondent.

          9

          Chief Judge WACHTLER and Judges MEYER, KAYE and ALEXANDER concur with Judge SIMONS; Judge JASEN dissents and votes to reverse in a separate opinion.

          10
          [192] SIMONS, J.
          11

          Plaintiffs, Richard E. and Margaret Schultz, instituted this action to recover damages for personal injuries they and their sons, Richard and Christopher, suffered because the boys were sexually abused by defendant Edmund Coakeley and for damages sustained as a result of Christopher's wrongful death after he committed suicide. Coakeley, a brother in the Franciscan order, was the boys' school teacher and leader of their scout troop. Plaintiffs allege that the sexual abuse occurred while Coakeley was acting in those capacities and the causes of action before us on this appeal charge defendants Boy Scouts of America, Inc., and the Brothers of the Poor of St. Francis, Inc. (sued as Franciscan Brothers of the Poor, Inc.), with negligently hiring and supervising him.

          12

          Plaintiffs are domiciled in New Jersey and some of the injuries were sustained there. Thus, a choice-of-law issue is presented because New Jersey recognizes the doctrine of charitable immunity and New York does not. Defendants contend New Jersey law governs this litigation and that its courts have already determined that plaintiffs' claims are barred in a separate action against the Roman Catholic Archdiocese of Newark (see, Schultz v Roman Catholic Archdiocese, 95 NJ 530, 472 A2d 531). Following the rationale of Babcock v Jackson (12 N.Y.2d 473) and similar cases, we hold that New Jersey law applies and that plaintiffs are precluded from relitigating its effect on the claims they assert.

          13
          I
          14

          In 1978 plaintiffs were residents of Emerson, New Jersey, where their two sons, Richard, age 13, and Christopher, age 11, [193] attended Assumption School, an institution owned and operated by the Roman Catholic Archdiocese of Newark. By an agreement with the Archdiocese, defendant Brothers of the Poor of St. Francis, Inc., supplied teachers for the school. One of those assigned was Brother Edmund Coakeley, who also served as the scoutmaster of Boy Scout Troop 337, a locally chartered Boy Scout troop sponsored and approved by defendant Boy Scouts of America. Richard and Christopher attended Coakeley's class and were members of his scout troop.

          15

          In July 1978 Coakeley took Christopher Schultz to Pine Creek Reservation, a Boy Scout camp located in upstate New York near the Oneida County community of Foresport. The camp was located on land owned by Peter Grandy, who was also a resident of Emerson, New Jersey.[1] The complaint alleges that while at the camp, Coakeley sexually abused Christopher, that he continued to do so when Christopher returned to Assumption School in New Jersey that fall and that he threatened Christopher with harm if he revealed what had occurred. The complaint also alleges that Coakeley sexually abused Richard Schultz and made similar threats to him during a scout trip to Pine Creek Reservation on Memorial Day weekend in 1978. Plaintiffs claim that as a result of Coakeley's acts both boys suffered severe psychological, emotional and mental pain and suffering and that as a result of the distress Coakeley's acts caused, Christopher Schultz committed suicide by ingesting drugs on May 29, 1979. They charge both defendants with negligence in assigning Coakeley to positions of trust where he could molest young boys and in failing to dismiss him despite actual or constructive notice that Coakeley had previously been dismissed from another Boy Scout camp for similar improper conduct.

          16

          The complaint contains four causes of action. In the first two, plaintiff Richard E. Schultz, as administrator of Christopher's estate, seeks damages for Christopher's wrongful death and for his psychological, emotional and physical injuries prior to death. In the third cause of action, plaintiff Richard E. Schultz, suing as father and natural guardian, seeks damages for similar personal injuries on behalf of his son Richard. In the fourth cause of action, plaintiffs seek damages for their own injuries, including destruction of their family life, expenditures for medical and psychological care and treatment, mental anguish and psychological injuries.

          17

          [194] After answering, defendants moved for summary judgment, urging that plaintiffs' claims were barred by New Jersey's charitable immunity statute (NJ Stat Ann § 2A:53A-7) and that plaintiffs were collaterally estopped from relitigating the application of the statute because of the prior New Jersey judgment. In opposition, plaintiffs contended that under applicable choice-of-law principles, New York should apply its law, not that of New Jersey, and, alternatively, that even if the New Jersey charitable immunity statute applies under choice-of-law rules, the New York courts should refuse to enforce it on public policy grounds. Special Term granted defendants' motions, severing plaintiffs' causes of action and dismissing the complaint against them on collateral estoppel grounds, implicitly finding New Jersey law applicable. A divided Appellate Division affirmed.

          18
          II
          19
          A
          20

          The choice-of-law question presented in the action against defendant Boy Scouts of America is whether New York should apply its law in an action involving codomiciliaries of New Jersey when tortious acts were committed in New York. This is the posture of the appeal although defendant is a Federally chartered corporation created exclusively for educational and charitable purposes pursuant to an act of Congress (see, 36 USC § 21) that originally maintained its national headquarters in New Brunswick, New Jersey, but moved to Dallas, Texas, in 1979. New Jersey is considered defendant's domicile because its national headquarters was in that State (see, Rosenbaum v Union Pac. R. R. Co., 2 How Prac [NS] 45, affd 100 N.Y. 617; 13 NY Jur 2d, Business Relationships, § 146, at 421). Its change of domicile after the commission of the wrongs from New Jersey to Texas, which no longer recognizes the doctrine of charitable immunity (see, Howle v Camp Amon Carter, 470 SW2d 629 [Tex 1971]), provides New York with no greater interest in this action than it would have without the change. Our decision recognizing a postaccident change in domicile in Miller v Miller (22 N.Y.2d 12) is distinguishable because in that case the defendant's domicile was changed to New York, which was the forum and also the plaintiff's domicile.

          21

          The question presented in the action against defendant Franciscan Brothers is what law should apply when the parties' different domiciles have conflicting charitable immunity rules. The Franciscan order is incorporated in Ohio and it is a domiciliary of that State (see, Sease v Central Greyhound Lines, 306 N.Y. 284, 286; [195] 13 NY Jur 2d, Business Relationships, § 142, at 416-417). At the time these causes of action arose Ohio, like New Jersey, recognized charitable immunity (see, Williams v First United Church, 40 Ohio App 2d 187, 318 NE2d 562, affd 37 Ohio St 2d 150, 309 NE2d 924 [1973]; Gibbon v Young Women's Christian Assn., 170 Ohio St 280, 164 NE2d 563 [1960]; but see, Albritton v Neighborhood Centers Assn. for Child Dev., 12 Ohio St 3d 210, 466 NE2d 867 [1984] [abolishing common-law doctrine of charitable immunity for nonhospital charities]). The Ohio rule denied immunity in actions based on negligent hiring and supervision, however (see, Gibbon v Young Women's Christian Assn., supra), whereas New Jersey does not (see, Schultz v Roman Catholic Archdiocese, 95 NJ 530, 472 A2d 531, supra). For this reason, no doubt, defendant Franciscan Brothers does not claim Ohio law governs and the choice is between the law of New York and the law of New Jersey.

          22

          As for the locus of the tort, both parties and the dissent implicitly assume it is New York because most of Coakeley's acts were committed here. Under traditional rules, the law of the place of the wrong governs all substantive issues in the action (see, Kaufman v American Youth Hostels, 5 N.Y.2d 1016), but when the defendant's negligent conduct occurs in one jurisdiction and the plaintiff's injuries are suffered in another, the place of the wrong is considered to be the place where the last event necessary to make the actor liable occurred (see, Poplar v Bourjois, Inc., 298 N.Y. 62; Conklin v Canadian-Colonial Airways, 266 N.Y. 244; Hunter v Derby Foods, 110 F.2d 970 [2d Cir]). Thus, the locus in this case is determined by where the plaintiffs' injuries occurred.

          23

          The first and fourth causes of action, the wrongful death of Christopher and plaintiffs' own psychological and other injuries respectively, allege injuries inflicted in New Jersey. New York's only interests in these claims are as the forum State and as the jurisdiction where the tortious conduct underlying plaintiffs' claims against defendants, i.e., the negligent assignment and failure to dismiss Coakeley, occurred. Standing alone, these interests are insufficient to warrant application of New York law, at least when the relevant issue is a loss-distribution rule, like charitable immunity, rather than one regulating conduct (cf. Long v Pan Am. World Airways, 16 N.Y.2d 337, 342-343). The second and third causes of action seek damages for the psychological, emotional and physical injuries suffered by Christopher and Richard Schultz, injuries which occurred in both New York and New Jersey, because a fair reading of the complaint indicates that both boys suffered injuries when Coakeley molested [196] them and also after they returned home. These two causes of action sufficiently implicate New York's interests to require a resolution of the choice-of-law problem in the case.

          24
          B
          25

          Historically, choice-of-law conflicts in tort actions have been resolved by applying the law of the place of the wrong. In Babcock v Jackson (12 N.Y.2d 473, supra), we departed from traditional doctrine, however, and refused to invariably apply the rule of lex loci delicti to determine the availability of relief for commission of a tort. In doing so, we applied New York law to an action involving New York parties in which recovery was sought for injuries received in an automobile accident in Ontario, Canada. Ontario's guest statute barred recovery by the plaintiff passenger but we refused to apply Ontario law in the New York action, holding that "controlling effect" must be given "to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue raised in the litigation" (Babcock v Jackson, supra, at p 481). Employing this "grouping of contacts" and "interest analysis", we noted that New York was where the parties were domiciled, where the automobile involved was garaged, licensed and insured, where the guest-host relationship arose and where the trip began and was to end, whereas Ontario's only contact with the case was the "purely adventitious" occurrence of the accident there (see, Babcock v Jackson, supra, at pp 482-483). Key, however, was New York's interest in requiring a tort-feasor to compensate his guest for injuries caused by his negligence. That concern would have been completely thwarted if Ontario's laws were applied to the action, whereas the application of New York's law would not threaten the policy underlying Ontario's statute, its interest in preventing fraudulent claims against its defendants and their insurer (see, id., at pp 482-483).

          26

          The analysis was flexible and to the extent that it may have placed too much emphasis on contact-counting without specifying the relative significance of those contacts, the necessary refinements were added in later decisions of this court. In four of the five subsequent tort cases presenting the same Babcock-style fact pattern of common New York domiciliaries and a foreign locus having loss-distribution rules in conflict with those of New York we reached results consistent with Babcock and applied New York law (see, Tooker v Lopez, 24 N.Y.2d 569 [Michigan guest statute]; Miller v Miller, 22 N.Y.2d 12, supra [Maine damage limitation in wrongful death action]; Farber v Smolack, 20 N.Y.2d 198 [197] [North Carolina statute on vicarious liability of automobile owner for negligence of driver]; Macey v Rozbicki, 18 N.Y.2d 289 [Ontario guest statute]). In the fifth case, the first decided after Babcock, we applied the law of the foreign locus, including its restrictive guest statute (see, Dym v Gordon, 16 N.Y.2d 120). Although our opinion in Dym attempted to distinguish Babcock, we subsequently concluded that our reading of the Colorado guest statute in Dym was "mistaken" (see, Tooker v Lopez, 24 N.Y.2d 569, 575, supra). In each of the five cases, however, the court rejected the indiscriminate grouping of contacts, which in Babcock had been a consideration coequal to interest analysis, because it bore no reasonable relation to the underlying policies of conflicting rules of recovery in tort actions (see, Tooker v Lopez, supra, at p 576; Miller v Miller, supra, at pp 15-16). Interest analysis became the relevant analytical approach to choice of law in tort actions in New York. "[T]he law of the jurisdiction having the greatest interest in the litigation will be applied and * * * the [only] facts or contacts which obtain significance in defining State interests are those which relate to the purpose of the particular law in conflict" (Miller v Miller, supra, at pp 15-16; see also, Tooker v Lopez, supra, at pp 576-577; Macey v Rozbicki, supra, at pp 296-298 [Keating, J., concurring]). Under this formulation, the significant contacts are, almost exclusively, the parties' domiciles and the locus of the tort (see, Tooker v Lopez, supra, at pp 576-577; id., at pp 584-585 [Fuld, Ch. J., concurring]; Neumeier v Kuehner, 31 N.Y.2d 121, 128 [adopting the three governing rules proposed in Tooker, the first and third of which are pertinent to the facts of this appeal]).

          27

          Thus, under present rules, most of the nondomicile and nonlocus contacts relied on in Babcock v Jackson (supra), such as where the guest-host relationship arose and where the journey was to begin and end, are no longer controlling in tort actions involving guest statutes (see, Tooker v Lopez, supra, at pp 577, 579, n 2). Both Tooker and Neumeier continued to place some importance on where the automobile involved was insured (see, Babcock v Jackson, supra, at pp 482-484), but this is not inconsistent with the present rule because usually a defendant host's automobile will be insured in the State of his domicile and also because it reflects a recognition that the insurer, rather than the individually named defendant, is often "the real party in interest" (Miller v Miller, supra, at p 21). Insofar as issues of liability insurance might also be relevant in a case such as the one before us involving charitable immunity, the record provides no relevant information on the subject.

          28

          [198] These decisions also establish that the relative interests of the domicile and locus jurisdictions in having their laws apply will depend on the particular tort issue in conflict in the case. Thus, when the conflicting rules involve the appropriate standards of conduct, rules of the road, for example, the law of the place of the tort "will usually have a predominant, if not exclusive, concern" (Babcock v Jackson, supra, at p 483; see, Restatement [Second] of Conflicts of Law § 145 comment d, at 417-418) because the locus jurisdiction's interests in protecting the reasonable expectations of the parties who relied on it to govern their primary conduct and in the admonitory effect that applying its law will have on similar conduct in the future assume critical importance and outweigh any interests of the common-domicile jurisdiction (see, Babcock v Jackson, supra, at pp 483-484; Restatement [Second] of Conflict of Laws § 145 comment d, at 417-418; id. § 146 comments d, e, at 431-433; see also, Miller v Miller, 22 N.Y.2d 12, 19, supra). Conversely, when the jurisdictions' conflicting rules relate to allocating losses that result from admittedly tortious conduct, as they do here, rules such as those limiting damages in wrongful death actions, vicarious liability rules, or immunities from suit, considerations of the State's admonitory interest and party reliance are less important. Under those circumstances, the locus jurisdiction has at best a minimal interest in determining the right of recovery or the extent of the remedy in an action by a foreign domiciliary for injuries resulting from the conduct of a codomiciliary that was tortious under the laws of both jurisdictions (see, Tooker v Lopez, supra, at p 576; Miller v Miller, supra, at pp 18-19; Babcock v Jackson, supra, at p 482). Analysis then favors the jurisdiction of common domicile because of its interest in enforcing the decisions of both parties to accept both the benefits and the burdens of identifying with that jurisdiction and to submit themselves to its authority.[2]

          29

          These considerations made the need for change in the lex loci delicti rule obvious in Babcock, but the validity of this interest analysis is more clearly demonstrated in the split domicile case of Neumeier v Kuehner (31 N.Y.2d 121, supra). In Neumeier we applied Ontario's guest statute in an action on behalf of an Ontario decedent against a New York defendant at least in part because the Ontario statute, which contained reciprocal benefits and burdens depending on one's status as either host or guest, was "obviously addressed" to Ontario domiciliaries such as [199] plaintiff's decedent (id., at pp 125-126). In Babcock New York had an important interest in protecting its own residents injured in a foreign State against unfair or anachronistic statutes of that State but it had no similar interest in Neumeier in protecting a guest domiciled in Ontario and injured there.

          30
          C
          31

          As to defendant Boy Scouts, this case is but a slight variation of our Babcock line of decisions and differs from them on only two grounds: (1) the issue involved is charitable immunity rather than a guest statute, and (2) it presents a fact pattern which one commentator has characterized as a "reverse" Babcock case because New York is the place of the tort rather than the jurisdiction of the parties' common domicile (see, Korn, The Choice-of-Law Revolution: A Critique, 83 Colum L Rev 772, 789).

          32

          Although most of our major choice-of-law decisions after Babcock involved foreign guest statutes in actions for personal injuries, we have not so limited them, but have applied the Babcock reasoning to other tort issues as well (see, Miller v Miller, 22 N.Y.2d 12, supra [damage limitation in wrongful death action]; Farber v Smolack, 20 N.Y.2d 198, supra [vicarious liability of automobile owner for negligence of driver]; Long v Pam Am. World Airways, 16 N.Y.2d 337, supra [survivor statute and wrongful death damages]; Oltarsh v Aetna Ins. Co., 15 N.Y.2d 111 [statute authorizing direct action against liability insurer]; see also, O'Connor v Lee-Hy Paving Corp., 579 F.2d 194 [2d Cir], cert denied 439 US 1034 [1978] [exclusivity of workers' compensation death benefits for industrial accident]; Rosenthal v Warren, 475 F.2d 438 [2d Cir] [damage limitation in wrongful death action], on remand 374 F Supp 522 [SDNY] [charitable immunity]). Nor is there any logical basis for distinguishing guest statutes from other loss-distributing rules because they all share the characteristic of being postevent remedial rules designed to allocate the burden of losses resulting from tortious conduct in which the jurisdiction of the parties' common domicile has a paramount interest. There is even less reason for distinguishing Babcock here where the conflicting rules involve the defense of charitable immunity (see, Rosenthal v Warren, 374 F Supp 522 [SDNY], supra; Restatement [Second] of Conflict of Laws § 145 comment d; id. § 168 comment b; Korn, supra, at 787, 824). Both plaintiffs and defendant Boy Scouts in this case have chosen to identify themselves in the most concrete form possible, domicile, with a jurisdiction that has weighed the interests of charitable tort-feasors and their victims and decided [200] to retain the defense of charitable immunity. Significantly, the New Jersey statute excepts from its protection actions by nonbeneficiaries of the charity who suffer injuries as a result of the negligence of its employees or agents (see, NJ Stat Ann § 2A:53A-7). Plaintiffs and their sons, however, were beneficiaries of the Boy Scouts' charitable activities in New Jersey and should be bound by the benefits and burdens of that choice. Additionally, the State of New Jersey is intimately interested in seeing that the parties' associational interests are respected and its own loss-distributing rules are enforced so that the underlying policy, which is undoubtedly to encourage the growth of charitable work within its borders, is effectuated.

          33

          Thus, if this were a straight Babcock fact pattern, rather than the reverse, we would have no reason to depart from the first Neumeier rule and would apply the law of the parties' common domicile. Because this case presents the first case for our review in which New York is the forum-locus rather than the parties' common domicile, however, we consider the reasons most often advanced for applying the law of the forum-locus and those supporting application of the law of the common domicile.

          34

          The three reasons most often urged in support of applying the law of the forum-locus in cases such as this are: (1) to protect medical creditors who provided services to injured parties in the locus State, (2) to prevent injured tort victims from becoming public wards in the locus State and (3) the deterrent effect application of locus law has on future tort-feasors in the locus State (see, Comments on Babcock v Jackson, A Recent Development in Conflict of Laws, 63 Colum L Rev 1212, 1222-1226, 1237-1238; Korn, supra, at 841, 962). The first two reasons share common weaknesses. First, in the abstract, neither reason necessarily requires application of the locus jurisdiction's law, but rather invariably mandates application of the law of the jurisdiction that would either allow recovery or allow the greater recovery (see, Macey v Rozbicki, 18 N.Y.2d 289, 295, supra [Keating, J., concurring]; Dym v Gordon, 16 N.Y.2d 120, 133, supra [Fuld, J., dissenting]). They are subject to criticism, therefore, as being biased in favor of recovery. Second, on the facts of this case neither reason is relevant since the record contains no evidence that there are New York medical creditors or that plaintiffs are or will likely become wards of this State. Finally, although it is conceivable that application of New York's law in this case would have some deterrent effect on future tortious conduct in this State, New York's deterrent interest is considerably less because none of the parties is a resident and the rule in conflict is loss-allocating rather than conduct-regulating.

          35

          [201] Conversely, there are persuasive reasons for consistently applying the law of the parties' common domicile. First, it significantly reduces forum-shopping opportunities, because the same law will be applied by the common-domicile and locus jurisdictions, the two most likely forums. Second, it rebuts charges that the forum-locus is biased in favor of its own laws and in favor of rules permitting recovery. Third, the concepts of mutuality and reciprocity support consistent application of the common-domicile law. In any given case, one person could be either plaintiff or defendant and one State could be either the parties' common domicile or the locus, and yet the applicable law would not change depending on their status. Finally, it produces a rule that is easy to apply and brings a modicum of predictability and certainty to an area of the law needing both.

          36

          As to defendant Franciscan Brothers, this action requires an application of the third of the rules set forth in Neumeier because the parties are domiciled in different jurisdictions with conflicting loss-distribution rules and the locus of the tort is New York, a separate jurisdiction. In that situation the law of the place of the tort will normally apply, unless displacing it "`will advance' the relevant substantive law purposes without impairing the smooth working of the multi-state system or producing great uncertainty for litigants'" (Neumeier v Kuehner, supra, at p 128). For the same reasons stated in our analysis of the action against defendant Boy Scouts, application of the law of New Jersey in plaintiffs' action against defendant Franciscan Brothers would further that State's interest in enforcing the decision of its domiciliaries to accept the burdens as well as the benefits of that State's loss-distribution tort rules and its interest in promoting the continuation and expansion of defendant's charitable activities in that State. Conversely, although application of New Jersey's law may not affirmatively advance the substantive law purposes of New York, it will not frustrate those interests because New York has no significant interest in applying its own law to this dispute. Finally, application of New Jersey law will enhance "the smooth working of the multi-state system" by actually reducing the incentive for forum shopping and it will provide certainty for the litigants whose only reasonable expectation[3] surely would have been that the law of the [202] jurisdiction where plaintiffs are domiciled and defendant sends its teachers would apply, not the law of New York where the parties had only isolated and infrequent contacts as a result of Coakeley's position as Boy Scout leader. Thus, we conclude that defendant Franciscan Brothers has met its burden of demonstrating that the law of New Jersey, rather than the law of New York, should govern plaintiffs' action against it.

          37
          III
          38

          Plaintiffs contend that even if the New Jersey charitable immunity statute is applicable to this action, it should not be enforced because it is contrary to the public policy of New York.

          39

          The public policy doctrine is an exception to implementing an otherwise applicable choice of law in which the forum refuses to apply a portion of foreign law because it is contrary or repugnant to its State's own public policy (see, Paulsen & Sovern, "Public Policy" in the Conflict of Laws, 56 Colum L Rev 969). The doctrine is considered only after the court has determined that the applicable substantive law under relevant choice-of-law principles is not the forum's law. Having found that, the court must enforce the foreign law "unless some sound reason of public policy makes it unwise for us to lend our aid" (Loucks v Standard Oil Co., 224 N.Y. 99, 110 [Cardozo, J.]).

          40

          The party seeking to invoke the doctrine has the burden of proving that the foreign law is contrary to New York public policy. It is a heavy burden for public policy is not measured by individual notions of expediency and fairness or by a showing that the foreign law is unreasonable or unwise (Loucks v Standard Oil Co., supra, at p 111). Public policy is found in the State's Constitution, statutes and judicial decisions and the proponent of the exception must establish that to enforce the foreign law "would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal" expressed in them (Loucks v Standard Oil Co., supra, at p 111; see also, Matter of Walker, 64 N.Y.2d 354; Shannon v Irving Trust Co., 275 N.Y. 95, 103). In addition, the proponent must establish that there are enough important contacts between the parties, the occurrence and the New York forum to implicate our public policy and thus preclude enforcement of the foreign law (see, Paulsen & Sovern, supra, at 981).[4]

          41

          [203] When we have employed the exception in the past and refused to enforce otherwise applicable foreign law, the contacts between the New York forum, the parties and the transaction involved were substantial enough to threaten our public policy. Thus, in Kilberg v Northeast Airlines (9 N.Y.2d 34), we found the law of the place of tort, Massachusetts, appropriate to a wrongful death action but refused to apply its statutory limit on damages because it was contrary to New York public policy, expressed in our State Constitution, prohibiting limitations on such damages. Insofar as the decedent was a resident, who had purchased his ticket and boarded his flight in New York and the defendant carried on extensive operations here, New York's interest in providing its residents with full compensation for wrongful death was jeopardized and led us to reject the Massachusetts limitation.

          42

          Similarly, in Mertz v Mertz (271 N.Y. 466) and Straus & Co. v Canadian Pac. Ry. Co. (254 N.Y. 407), this State's public policy was seriously threatened because it was intimately connected to the parties and the transaction. In Mertz we refused to follow Connecticut law that permitted a wife to sue her husband for negligently inflicted injuries caused there because New York's law was just the opposite and the parties were both New York domiciliaries. In Straus & Co., we refused to enforce a contractual provision releasing the defendant shipper from liability for its own negligence, valid under otherwise applicable British law but invalid under the laws of New York, when the plaintiff was a New York company, the final place of shipment was New York, and the defendant had chosen to do business here by way of shipping goods into the State.

          43

          Thus, although New York discarded the doctrine of charitable immunity long ago (see, Bing v Thunig, 2 N.Y.2d 656, 667) and enforcement of New Jersey's statute might well run counter to our fundamental public policy, we need not decide that issue because there are not sufficient contacts between New York, the parties and the transactions involved to implicate our public policy and call for its enforcement.

          44
          [204] IV
          45

          Finally, defendants contend that inasmuch as New Jersey law governs this action, plaintiffs are estopped under the doctrine of third-party issue preclusion from relitigating the effect of the New Jersey charitable immunity statute by their earlier New Jersey court action.

          46

          The full faith and credit clause of the Federal Constitution requires the courts of each State to give to the judgments of other States the same conclusive effect between the parties as such judgments are given in the States in which they are rendered (Semler v Psychiatric Inst., 575 F.2d 922, 927 [DC Cir]; see, Durfee v Duke, 375 US 106, 109; Restatement [Second] of Conflict of Laws § 95). Our decision therefore will be determined by whether the courts of New Jersey would hold plaintiffs barred by the prior action.

          47

          New Jersey has adopted the general principles governing third-party issue preclusion set forth in Restatement (Second) of Judgments § 29 (see, State v Gonzalez, 75 NJ 181, 188-190, 380 A2d 1128, 1132; United Rental Equip. Co. v Aetna Life & Cas. Ins. Co., 74 NJ 92, 101, 376 A2d 1183, 1188). For collateral estoppel to apply, therefore, three criteria must be met: (1) the issue must actually have been litigated and determined by a valid and final judgment in a separate action, (2) that determination must have been essential to the judgment and (3) either the party to be precluded had a full and fair opportunity to litigate the issue in the prior proceeding or other circumstances do not justify affording him an opportunity to relitigate it (see, Restatement [Second] of Judgments §§ 27, 29; State v Gonzalez, supra, at pp 188-192, at pp 1132-1133; see also, Koch v Consolidated Edison Co., 62 N.Y.2d 548, 554-555).

          48

          The issue presented to us, whether plaintiffs' claims against these defendants are barred by the New Jersey charitable immunity statute, was actually litigated and determined by a final judgment of its courts. A comparison of plaintiffs' complaint in the New Jersey action and the one before us demonstrate that they are the same except for minor differences reflecting the different defendants. One of the specific issues contested in New Jersey was whether its statute provided immunity in actions alleging negligent hiring and supervision and the court dismissed the complaint (Schultz v Roman Catholic Archdiocese, 95 NJ 530, 472 A2d 531, supra). Moreover, plaintiffs have never disputed that defendants are charitable organizations entitled to the protection of the New Jersey statute, nor have they presented any facts warranting a conclusion that they [205] lacked a full and fair opportunity to litigate the issue in the prior action or that other circumstances justify according them an opportunity to relitigate it in New York. On the contrary, the record indicates that plaintiffs relied on their New Jersey action and vigorously pursued their claims there. Although they commenced this action approximately one month before the one in New Jersey, plaintiffs requested and obtained a stay of it pending final determination of their New Jersey action and they were given the opportunity to fully present their arguments against application of the charitable immunity statute before that State's highest court. Plaintiffs are correct that collateral estoppel would not apply if we applied New York law or refused to enforce the New Jersey statute on public policy grounds (see, State v Gonzalez, supra, at pp 188-192, at pp 1132-1133; Schwartz v Public Administrator, 24 N.Y.2d 65, 72; Restatement [Second] of Judgments § 29 [7]). We have resolved those issues against them, however.

          49

          Accordingly, the order of the Appellate Division should be affirmed, with costs.

          50
          JASEN, J. (dissenting).
          51

          I respectfully dissent. In my view, the majority overstates the significance of New Jersey's interests in having its law apply in this case and understates the interests of New York. While I agree with much of the majority's general exposition of the rules governing conflicts of law, nevertheless I believe that its application of these rules to the facts of this case and the resulting analysis are uneven. By casting the issue almost exclusively in terms of New Jersey's law of charitable immunity and the policy purposes represented thereby, the majority preordains its decision that the application of New Jersey law would best serve the interests deemed relevant. A more balanced approach, which recognizes that the conflict in this case involves not only New Jersey's law of charitable immunity but also New York's law of charitable nonimmunity, and which accords a proper analysis and fairer significance to the policies underlying the latter, would dictate a different result. Because New Jersey's interests in having its law of charitable immunity apply are rather attenuated in this case and, by sharp contrast, New York's interests as the "locus-forum" in applying its rule of charitable nonimmunity are overriding — especially in light of the heinous nature of the alleged tortious conduct involved and the repugnancy of immunizing those responsible from liability — it is my view that New York law should govern this case. A brief highlighting of those factors which I believe to be most pertinent illustrates what, in my view, the majority has either understated or overlooked.

          52

          [206] New Jersey's interests, denominated by the majority as loss-distribution, are hardly pressing under the circumstances. While it is true that laws providing for charitable immunity typically are intended to serve the purpose of protecting and promoting the charities incorporated within a state's jurisdiction, that function is virtually irrelevant in this case. Presently, neither corporate defendant is a resident of New Jersey. The Brothers of the Poor of St. Francis (the Franciscan Brothers) has at all relevant times been a resident of the State of Ohio, a jurisdiction which recognizes only a limited charitable immunity that does not extend to negligence in the selection and retention of personnel. (Williams v First United Church, 40 Ohio App 2d 187, 318 NE2d 562, affd 37 Ohio St 2d 150, 309 NE2d 924; Cullen v Schmit, 139 Ohio St 194, 39 NE2d 146.) The Boy Scouts of America, although originally incorporated in New Jersey at the time of its alleged tortious conduct, has since relocated in Texas, a State which has wholly rejected charitable immunity. (Howle v Camp Amon Carter, 470 SW2d 629 [Tex].) While ordinarily a change in residence subsequent to the events upon which a lawsuit is predicated ought not to affect the rights and liabilities of the parties in order to avoid forum-shopping, there is no such reason to deny giving effect to the change in residence here. Rather, a defendant's post-tort change in residence — as opposed to that of a plaintiff — is often critical insofar as it affects state interest analysis. (See, Weintraub, Commentary on the Conflict of Laws § 6.28, at 331, 334 [2d ed]; Sedler, The Governmental Interest Approach to Choice of Law: An Analysis and a Reformulation, 25 UCLA L Rev 181, 241-242; Note, Post Transaction or Occurrence Events in Conflicts of Laws, 69 Colum L Rev 843, 865.) Indeed, as this court stated in Miller v Miller (22 N.Y.2d 12, 21-22): "To the extent that the [foreign State's] limitation evinced a desire to protect its residents in wrongful death actions, that purpose cannot be defeated here since no judgment in this action will be entered against a * * * resident [of that State. It] would have no concern with the nature of the recovery awarded against defendants who are no longer residents of that State and who are, therefore, no longer proper objects of its legislative concern. It is true that, at the time of the accident, the defendants were residents of [that State] but they would have no vested right to the application of the law of their former residence unless it could be demonstrated that they had governed their conduct in reliance upon it (Griffith v. United Air Lines, supra) — a reliance which is neither present nor claimed in the case at bar. Any claim that [the foreign State] has a paternalistic interest in protecting its residents [207] against liability for acts committed while they were in [that State] should they move to another jurisdiction, is highly speculative."

          53

          It simply cannot be disputed that New Jersey presently has a much diminished interest, if any at all, in shielding the Boy Scouts of America from liability — let alone the Franciscan Brothers which has never been a New Jersey resident. The majority does not question that conclusion, but merely states that the change in residence does not enhance New York's interest. (Majority opn, at p 194.) While the latter may be true in the abstract, the point, of course, is that New Jersey's interest in the application of its charitable immunity law has been substantially reduced.

          54

          Consequently, because the majority cannot in actuality rely upon New Jersey's interest in protecting resident charities — into which category neither corporate defendant now falls — the decision today is, in effect, predicated almost exclusively upon the plaintiffs' New Jersey domicile. What emerges from the majority's holding is an entirely untoward rule that nonresident plaintiffs are somehow less entitled to the protections of this State's law while they are within our borders. Besides smacking of arbitrary and injudicious discrimination against guests in this State and before our courts (see, Ely, Choice of Law and the State's Interest in Protecting Its Own, 23 Wm & Mary L Rev 173, 186-187; cf. Tooker v Lopez, 24 N.Y.2d 569, 575; Smith v Loughman, 245 N.Y. 486, 491-492, cert denied 275 US 560), such a position, without more, has severely limited, if any, validity in resolving conflicts questions. (See, Neumeier v Kuehner, 31 N.Y.2d 121, 131 [Breitel, J., concurring]; Rosenthal v Warren, 475 F.2d 438, 445 [2d Cir]; Juenger, Choice of Law in Interstate Torts, 118 U of Pa L Rev 202, 209-210; Weintraub, supra, § 6.23, n 13; Ausubel, Conflict of Laws Trends — Torts, 19 De Paul L Rev 684, 692; cf. Labree v Major, 111 RI 657, 306 A2d 808; Hurtado v Superior Ct., 11 Cal 3d 574, 522 P2d 666.) This is especially so where, as here, the defendants' contacts with the foreign State are insignificant for the purposes of interest analysis while, at the same time, the parties' contacts with New York are so clear and direct, and the resulting interests of this State so strong.

          55

          There can be no question that this State has a paramount interest in preventing and protecting against injurious misconduct within its borders. This interest is particularly vital and compelling where, as here, the tortious misconduct involves sexual abuse and exploitation of children, regardless of the residency of the victims and the tort-feasors. (See, New York v Ferber, 458 US 747, 756-760, on remand 57 N.Y.2d 256.) [208] Despite the majority's denial, New York's law in question is intimately connected to this overriding interest.

          56

          As the majority stresses, a charitable immunity law such as New Jersey's typically serves a loss-distribution purpose reflecting a legislative paternalism toward resident charities. But that is obviously not true with regard to a rule, such as New York's, which denies charitable immunity. Consequently, it is mistaken to adjudge the propriety of applying the latter law by giving weight only to the interests served by the former. (But see, e.g., majority opn, at p 200.) A closer attention to the specific policy purposes of New York's charitable nonimmunity rule is essential to a more appropriate resolution of the conflict.

          57

          These purposes, to which the majority refuses to accord any significance (see, e.g., majority opn, at pp 200, 201), are preventive, protective and compensatory. Indeed, in Bing v Thunig (2 N.Y.2d 656), where New York's prior rule of charitable immunity was abolished, this court held that "[i]t is not alone good morals but sound law that individuals and organizations should be just before they are generous, and there is no reason why that should not apply to charitable [institutions] * * * Insistence upon * * * damages for negligent injury serves a two-fold purpose, for it both assures payment of an obligation to the person injured and gives warning that justice and the law demand exercise of care." (Id., at p 666 [emphasis added].)

          58

          As previously discussed, there can be little doubt that New York has an interest in insuring that justice be done to nonresidents who have come to this State and suffered serious injuries herein. There is no cogent reason to deem that interest any weaker whether such guests are here for the purpose of conducting business or personal affairs, or, as in this case, have chosen to spend their vacation in New York. (See additionally, Korn, The Choice of Law Revolution: A Critique, 83 Colum L Rev 772, 789, n 40.) Likewise, it cannot be denied that this State has a strong legitimate interest in deterring serious tortious misconduct, including the kind of reprehensible malfeasance that has victimized the nonresident infant plaintiffs in this case. Indeed, this deterrence function of tort law, whether it be in the form of imposing liability or denying immunity, is a substantial interest of the locus state which is almost universally acknowledged by both commentators and the courts to be a prominent factor deserving significant consideration in the resolution of conflicts problems. (See, Cavers, The Choice of Law Process, at 144; Weintraub, supra, § 6.10, at 288; Horowitz, The Law of Choice of [209] Law in California — A Restatement, 21 UCLA L Rev 719, 757; Baade, Counter-Revolution or Alliance for Progress? Reflections on Reading Cavers, The Choice of Law Process, 46 Tex L Rev 141, 156; Restatement [Second] of Conflict of Laws § 145 comment c; Rosenthal v Warren, 475 F.2d 438, 445, supra; Bray v Cox, 39 AD2d 299, appeal dismissed 33 N.Y.2d 789; Hurtado v Superior Ct., 11 Cal 3d 574, 522 P2d 666, supra; Gagne v Berry, 112 NH 125, 290 A2d 624; Hunker v Royal Indem. Co., 57 Wis 2d 588, 204 NW2d 897.) While the majority mentions New York's interest in deterrence, it dismisses that interest in short fashion by referring to the "rule in conflict" as being "loss-allocating rather than conduct-regulating." (See, majority opn, at p 200.) Of course, there is not one but two rules at issue, and the majority's characterization is accurate only with regard to New Jersey's law granting immunity, not with regard to New York's rule denying the same. (Bing v Thunig, supra, at p 666.)

          59

          Moreover, New York's strong interest in deterring injurious misconduct, as well as in providing compensatory justice and protection to persons victimized by wrongdoing within this State, is reflected in the traditional principle of lex loci which, despite the majority's sub silentio disavowal, remains in this State "the general rule in tort cases to be displaced only in extraordinary circumstances". (Cousins v Instrument Flyers, 44 N.Y.2d 698, 699; see also, Neumeier v Kuehner, 31 N.Y.2d 121, 129, 131-132, supra; Tooker v Lopez, 24 N.Y.2d 569, 585, supra.) Indeed, despite the so-called "choice of law revolution" (see, Korn, supra), lex loci is still acknowledged almost universally as a central factor in determining the state, or states, in which the significant interests lie. (See, Restatement [Second] of Conflict of Laws § 145 [2] [a], [b]; § 146.) This rule ought not to be applied mechanically or rigidly to reach absurd results. But, neither ought it to be disregarded indiscriminately, without giving due consideration to the nature or extent of the relationship which accrues between the tort in question and a particular jurisdiction because that jurisdiction is the locus state. (See, Reese, The Second Restatement of Laws Revisited, 34 Mercer L Rev 501, 513-515.)

          60

          Here, there are no extraordinary circumstances justifying displacement of the usual rule of lex loci and the consequent disregard of New York's interest as the jurisdiction in which the infant plaintiffs were victimized. The majority merely discounts New York's interests as the locus state by characterizing the parties' contacts in New York as "only isolated and infrequent". Reliance on such characterization, however, is both factually [210] and legally misplaced. The infant plaintiffs' visit to New York with defendants' tort-feasor was entirely deliberate, planned and not merely transitory. They visited in order to remain for a period of time. Defendants are alleged to have permitted their tort-feasor to take the children into New York, failed to supervise him while the children were in his care in New York, authorized or sponsored the scouting activity at a campground in New York which they approved, and failed to prevent the sexual abuse of the children taking place in New York. The nexus of the parties and the alleged torts with New York can hardly be gainsaid.

          61

          This is clearly not a case in which the locus can be discounted as purely fortuitous or adventitious. (Cf. Long v Pan Am. World Airways, 16 N.Y.2d 337, 342, n 3; Babcock v Jackson, 12 N.Y.2d 473, 483; Kilberg v Northeast Airlines, 9 N.Y.2d 34, 39; contrast with, Dym v Gordon, 16 N.Y.2d 120, 125.) The infant plaintiffs and the defendants' tort-feasor were not merely in transitu in New York. Rather, they were here for a stay, albeit a short one, and as such they deliberately submitted themselves to the protections and responsibilities of this State's laws which should now govern the consequences of the tortious conduct committed while within New York's borders.

          62

          Contrary to what the majority states, it is hardly clear that the parties' only reasonable expectation was that New Jersey's law would apply despite the contacts with this State. Indeed, it would surely seem that the parties who came to New York, and those who sponsored their visit here, would have been quite surprised to learn that their conduct while in New York, or that which had a direct impact in New York, was not governed by the laws of this State. In any event, this court has unequivocably rejected the notion that the fictional expectation of the parties should determine the choice of law in tort cases. (Tooker v Lopez, supra, at p 577; Miller v Miller, 22 N.Y.2d 12, 20, supra; see also, Cavers, The Choice of Law Process, 119, 302, supra.) Consequently, in my view, the majority does not adequately explain why the law of New York, the locus state, ought not to govern this case.

          63

          Additionally, apart from the foregoing, I believe that this court ought not to apply New Jersey's law of charitable immunity by reason of its incompatibility with this State's settled public policy. Almost 30 years ago, when this court abolished charitable immunity for this State, we explained that the rule was inherently incongruous, contrary to both good morals and sound law, out of tune with modern day needs, unfair and [211] confused. (Bing v Thunig, 2 N.Y.2d 656, at pp 663, 666-667, supra.) Surely, a rule deemed so archaic and anachronistic by this court ought not now to be given effect and, thereby, insulate defendants from whatever responsibility they should bear for the heinous acts of misconduct performed in this State.

          64

          Indeed, this court has not hesitated in the past to refuse a request to apply a foreign law considered contrary to established public policy. We have held unequivocally that where a conflict exists, this State's public policy prevails. (Erlich-Bober & Co. v University of Houston, 49 N.Y.2d 574, 580; see also, Zeevi & Sons v Grindlays Bank [Uganda], 37 N.Y.2d 220, 227; Kilberg v Northeast Airlines, 9 N.Y.2d 34, 40, supra.) Likewise, the commentators have recognized the validity, indeed the wisdom and propriety of the forum state's refusal, on public policy grounds, to apply an anachronistic or aberrant rule of the foreign State whose law would otherwise apply. (See, e.g., Weintraub, supra, §§ 6.6, 6.27; Leflar, American Conflicts Law § 107, at 214 [3d ed]; Freund, Chief Justice Stone and The Conflict of Laws, 59 Harv L Rev 1210, 1216; Paulsen & Sovern, "Public Policy" in the Conflict of Laws, 56 Colum L Rev 969; Cheatham & Reese, Choice of the Applicable Law, 52 Colum L Rev 959, 980; Restatement [Second] of Conflict of Laws § 6 [2] [b], [e]; Juenger, supra, at 230-235.) Similarly, the courts of other jurisdictions have noted the imperative of avoiding application of a foreign state's law that is repugnant to the forum state's public policy or that is fairly deemed to be obsolete or senseless. (See, e.g., Clark v Clark, 107 NH 351, 355, 222 A2d 205, 209; Conklin v Horner, 38 Wis 2d 468, 484-485, 157 NW2d 579, 587; see also, Tiernan v Westext Transp., 295 F Supp 1256; Skahill v Capital Airlines, 234 F Supp 906, 907; Schneider v Nichols, 280 Minn 139, 158 NW2d 254; Mitchell v Craft, 211 So 2d 509 [Miss]; Arnett v Thompson, 433 SW2d 109 [Ky].)

          65

          As this court has already held, the charitable immunity law is one which is anachronistic, obsolete and senseless, and it appears that there is virtual judicial unanimity among the States that this is so. (See, Prosser and Keeton, Torts § 133, at 1070 [5th ed]; Ann., 25 ALR2d 29; 25 ALR4th 517; see also, Restatement [Second] of Torts § 895E, providing that charities ought not to be immunized.) It is not surprising, therefore, that other courts which have considered the immunity doctrine in a conflict of laws context have held that its application should be avoided as violative of New York's public policy. (See, e.g., Rosenthal v Warren, 374 F Supp 522, 525-526; Rakaric v Croatian Cultural Club, 76 AD2d 619; Dowd v Boy Scouts of Am., [212] NYLJ, Mar. 21, 1984, p 13, col 1 [Trial Term, Kings County]; cf. Pearson v Northeast Airlines, 309 F.2d 553, 561.) This court ought now to hold the same. Having already held that charitable immunity is "out of tune with the life about us, at variance with modern-day needs and with concepts of justice and fair dealing" (Bing v Thunig, supra, at p 667 [emphasis added]), it would now be incongruous, in my view, for this court to apply it here to deny compensatory justice to nonresidents who were injured while vacationing in New York.

          66

          Finally, I find no merit to defendants' arguments for the application of collateral estoppel. First, as the majority acknowledges, collateral estoppel is not a bar to a second action in a different forum where the latter applies its own law or refuses to give effect to the law of the first forum on public policy grounds. (See, Gilberg v Barbieri, 53 N.Y.2d 285, 292; Restatement [Second] of Judgments § 29.) Inasmuch as New York law should be applied in this case by reason of this State's significant interests and because application of New Jersey's law would contravene this State's public policy, collateral estoppel is inapplicable. Secondly, plaintiffs' allegations, the parties, and the precise issue in this litigation — i.e., whether New York law provides plaintiffs with a remedy for injuries suffered in this State from defendants' alleged tort-feasance — are not the same as those involved in the prior litigation in New Jersey. (See, Schultz v Roman Catholic Archdiocese, 95 NJ 530, 472 A2d 531.) Necessarily then, the prerequisites to the application of collateral estoppel have not been satisfied. (See, Ryan v New York Tel. Co., 62 N.Y.2d 494, 500-501; Schwartz v Public Administrator, 24 N.Y.2d 65, 71.)

          67

          For all these reasons, I would reverse the order of the Appellate Division, apply the law of New York denying immunity to defendant charities, and permit plaintiffs to proceed on their complaint.

          68

          Order affirmed, with costs.

          69

          [1] Edmund Coakeley, Peter Grandy and the Pine Creek Reservation were also named as defendants in the action. Grandy died after it was commenced and Coakeley never appeared.

          70

          [2] New York's rule holding charities liable for their tortious acts, or its rule of nonimmunity as the dissent characterizes it, is also a loss-allocating rule, just as New Jersey's charitable immunity statute is.

          71

          [3] As the dissent notes, we rejected the notion that the parties' reasonable expectations of the applicable law was determinative in Miller v Miller (22 N.Y.2d 12) and Tooker v Lopez (24 N.Y.2d 569). Our discussion here is limited to application of the "uncertainty" standard of the third of the Neumeier rules (see, Neumeier v Kuehner, 31 N.Y.2d 121, 128-129) to defendant Franciscan Brothers.

          72

          [4] The United States Supreme Court has recently reaffirmed that "the Full Faith and Credit Clause does not require a State to apply another State's law in violation of its own legitimate public policy" (Nevada v Hall, 440 US 410, 422). It has also stated unequivocally that for a State to either choose its substantive law or refuse to apply a sister State's law "in a constitutionally permissible manner, that State must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair" (Allstate Ins. Co. v Hague, 449 US 302, 313; see, id., at p 308, and n 10; see also, John Hancock Mut. Life Ins. Co. v Yates, 299 US 178; Home Ins. Co. v Dick, 281 US 397). There thus is some doubt whether we could constitutionally choose to apply New York law in this case although in view of our disposition we need not decide the question.

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