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§1.3 Interest Analysis
  • 1 §1.3.1 Identifying false conflicts

    • 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.

    • 1.2 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 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.

    • 1.4 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.

  • 2 §1.3.2 Resolving true conflicts

    • 2.1 §1.3.2.1 Forum law

      • 2.1.1 Hall v. University of Nevada

        1
        74 Cal.App.3d 280 (1977)
        2
        141 Cal. Rptr. 439
        3
        JOHN MICHAEL HALL, a Minor, etc., et al., Plaintiffs and Respondents,
        v.
        UNIVERSITY OF NEVADA et al., Defendants and Appellants.
        4
        Docket No. 40858.
        5

        Court of Appeals of California, First District, Division Four.

        6
        October 24, 1977.
        7

        [282] COUNSEL

        8

        Robert List, Attorney General, Michael W. Dyer and Scott Heaton, Deputy Attorneys General, Bronson, Bronson & McKinnon and Richard J. Stratton for Defendants and Appellants.

        9

        Tunney, Carlyle, Rogers & Vanasse, Eric D. Carlyle, Bostwick & Rowe and Everett P. Rowe for Plaintiffs and Respondents.

        10

        OPINION

        11
        EMERSON, J.[1]
        12

        Defendants-appellants University of Nevada and the State of Nevada appeal from a judgment in the amount of $1,150,000 entered against them in an action brought by respondents for damages for personal injuries. The injuries resulted from a collision between a vehicle occupied by respondents and one driven by Helmut Bohm. It is conceded that, at the time of the accident, Bohm was an employee of the university, a governmental arm of Nevada, and was engaged in official university business. The fact of his agency was not disputed at trial. The accident occurred in California.

        13

        Prior to the trial of the case, appellants moved to quash service of summons on the ground that, under the doctrine of sovereign immunity, Nevada was not subject to suit in California. That motion was granted. Respondents appealed from the order and in Hall v. University of Nevada (1972) 8 Cal.3d 522 [105 Cal. Rptr. 355, 503 P.2d 1363], the California Supreme Court reversed, unanimously holding that appellants were not immune from suit in California for the driving of their agent within the scope of his employment or for the permissive use of their car within this state. (Id., at p. 526.) Nevada's petition for writ of certiorari to [283] the United States Supreme Court was denied. (414 U.S. 820 [38 L.Ed.2d 52, 94 S.Ct. 114].)

        14

        The Hall decision notwithstanding, immediately prior to the trial of this case, appellants moved for an order limiting damages to $25,000 per person pursuant to Nevada Revised Statutes section 41.035. That statute, hereafter referred to as NRS 41.035, is part of the legislation by which Nevada has waived its immunity from suit. The waiver, as pertinent herein, is found in the following statutes:

        15

        Nevada Revised Statutes section 41.031 provides that "The State of Nevada hereby waives its immunity from liability and action and hereby consents to have its liability determined in accordance with the same rules of law as are applied to civil action against individuals and corporations...."

        16

        NRS 41.035 states in relevant part: "No award for damages in an action sounding in tort brought under NRS 41.031 may exceed the sum of $25,000 ... to or for the benefit of any claimant." The combined thrust of these statutes is that Nevada has chosen to waive its sovereign immunity, but to limit such waiver to $25,000 per claimant. (See State v. Silva (1971) 86 Nev. 911 [478 P.2d 591, 44 A.L.R.3d 891].)

        17

        Appellants' motion to limit damages was denied by the trial court. The correctness of this ruling is the sole issue on appeal.

        18

        Nevada devotes much of its brief to the reargument of Hall v. University of Nevada, supra, still contending that it cannot be sued in any court without its consent. Such an argument before this court is futile. We are bound by the Supreme Court's ruling that Nevada is not immune from suit. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal. Rptr. 321, 369 P.2d 937].)

        19

        Appellants' next contention is that, if Nevada is held to be liable in California, that liability must be subject to the $25,000 limit imposed by NRS 41.035. That argument is based on the assumption that, in Hall v. University of Nevada, supra, the Supreme Court held that Nevada was subject to suit in this state because it had waived its sovereign immunity. It is argued, in effect, that if California accepts the waiver, it must accept the limitation.

        20

        [284] This premise misconceives the point of Hall. The Supreme Court did not hold that Nevada had waived sovereign immunity or had given its implied consent to be sued in California. It held simply that Nevada's sovereign protection does not extend beyond its own borders: "We have concluded that sister states who engage in activities within California are subject to our laws with respect to those activities and are subject to suit in California courts with respect to those activities. When the sister state enters into activities in this state, it is not exercising sovereign power over the citizens of this state and is not entitled to the benefits of the sovereign immunity doctrine as to those activities unless this state has conferred immunity by law or as a matter of comity." (8 Cal.3d at p. 524.) The court reviewed developments in the law of sovereign immunity in a foreign jurisdiction and concluded that recent cases "reflect that state sovereignty ends at the state boundary." (Id., at p. 525.) After holding that the state and University of Nevada were not immune from suit in California, the court noted that this conclusion "makes it unnecessary to consider plaintiffs' further contention that the State of Nevada has consented by statute to suit in California." (Id., at p. 526.)

        21

        That the limitation imposed by NRS 41.035 is totally inapplicable to this case is made clear by footnote 4 of Hall v. University of Nevada, supra, stating: "Plaintiffs urge that Nevada has abrogated sovereign immunity by statute. The state and the university claim that the waiver of immunity was a limited one and that the statutory provisions abrogating immunity should be interpreted as permitting action in the courts of Nevada only. Since we conclude that Nevada does not have immunity from liability for its activities in California, the extent to which Nevada has waived immunity by statute and the extent, if any, to which it can or has limited the statutory waiver is immaterial. Even if we assume that Nevada limited its statutory waiver of immunity to actions in its courts, such limitation would not be applicable to the instant case involving activities in California because the sovereignty of one state does not extend into the territory of another." (Hall, supra, at p. 526, italics added.)

        22

        (1) Nevada also attempts to argue that application of NRS 41.035 to the present case is required by the full faith and credit clause of the United States Constitution. The contention is without merit. It is well settled that the purpose of the full faith and credit clause was not to give the statutes of one state extraterritorial force in another. (5 Witkin, Summary of Cal. Law (8th ed. 1974) Constitutional Law, § 16, p. 3260.) The United States Supreme Court has long since established that a [285] forum state may refuse to apply a sister state's statutes where such enforcement would be contrary to its own public policy. (Bradford Elec. Co. v. Clapper (1932) 286 U.S. 145, 160 [76 L.Ed. 1026, 1035-1036, 52 S.Ct. 571, 82 A.L.R. 696]; Pacific Ins. Co. v. Comm'n. (1939) 306 U.S. 493, 501-502 [83 L.Ed. 940, 944-945, 59 S.Ct. 629].) (2) Nevada must therefore rely on its final argument, namely that California's own conflict of laws rules require application of NRS 41.035 in the instant case.

        23

        The case of Bernhard v. Harrah's Club (1976) 16 Cal.3d 313 [128 Cal. Rptr. 215, 546 P.2d 719] (cert. den. 429 U.S. 859 [50 L.Ed.2d 136, 97 S.Ct. 159]), presents both the latest definitive statement of California's choice of law rules regarding tort actions and a fact situation extremely close to the one at bench. In Bernhard, plaintiff, a California resident, was struck on a highway in this state by an automobile driven by another California resident who had allegedly been furnished alcoholic beverages in defendant's Nevada establishment after becoming obviously intoxicated. Plaintiff sought application of California law imposing civil liability upon tavern keepers who furnish liquor to obviously intoxicated persons (Bus. & Prof. Code, § 25602; Vesely v. Sager (1971) 5 Cal.3d 153 [95 Cal. Rptr. 623, 486 P.2d 151]), while defendant demurred on the ground that Nevada law, precluding such liability, was applicable.

        24

        The Supreme Court, noting that it faced a "true conflicts" case, applied the "comparative impairment" test which seeks to determine which state's policy would be more impaired if the other state's law were adopted. (Bernhard, supra, at p. 320.) The court pointed out that California's policy interest would be very significantly impaired if it could not extend its regulation to defendant who, soliciting the patronage of California residents, and knowing and expecting those residents to use California's public highways, could nevertheless, with impunity, violate California's prohibition against selling alcoholic beverages to intoxicated persons. (Id., at pp. 322-323.) The court thus held "that California has an important and abiding interest in applying its rule of decision to the case at bench, that the policy of this state would be more significantly impaired if such rule were not applied and that the trial court erred in not applying California law." (Id., at p. 323.)

        25

        In the instant case Nevada advances as its policy, the fact that if its liability were not limited, its residents would suffer financially, due to the increased cost of insurance for Nevada vehicles being operated outside the state. California's policy interest lies in providing full protection to [286] those who are injured on its highways through the negligence of both residents and nonresidents.

        26

        We consider the policy reasons for applying California law herein to be even stronger than those found in Bernhard. In Bernhard, defendant's culpable conduct occurred entirely within Nevada's own borders, yet the Supreme Court found that merely by soliciting customers from California, knowing and expecting such customers to use California's highways, defendant had "put itself at the heart of California's regulatory interest...." (16 Cal.3d at p. 322.) Here, the State of Nevada's activities and respondents' resulting injuries, took place within California. By thus utilizing the public highways within our state to conduct its business, Nevada should fully expect to be held accountable under California's laws.

        27

        The imposition of unlimited liability upon Nevada involves at most an increased economic exposure which, at least for businesses which actively solicit extensive California patronage, is a foreseeable and coverable business expense. (See Bernhard, supra, 16 Cal.3d at p. 323.) Given the fact that Nevada has chosen to engage in governmental and business activity in this state, the necessary acquisition of additional insurance coverage to protect itself during such activity is an entirely foreseeable and reasonable expense.

        28

        For all the reasons heretofore stated, we conclude that the refusal of the trial court to apply NRS 41.035 was proper.

        29

        The judgment is affirmed.

        30

        Rattigan, Acting P.J., and Christian, J., concurred.

        31

        Appellants' petition for a hearing by the Supreme Court was denied December 22, 1977.

        32

        [1] Retired judge of the superior court sitting under assignment by the Chairperson of the Judicial Council.

      • 2.1.2 Blamey v. Brown

        1
        270 N.W.2d 884 (1978)
        2
        Lisa BLAMEY, a minor, by her mother and natural guardian, Shirley Blamey, Respondent,
        v.
        Thorwald BROWN, a/k/a Ted Brown, Ted Brown's Bar and Overshoe Club, Appellant.
        3
        No. 47917.
        4

        Supreme Court of Minnesota.

        5
        September 1, 1978.
        6
        Rehearing Denied November 3, 1978.
        7

        [885] Lindquist & Vennum and Norman L. Newhall, and Harry C. Piper, III, Wright, Roe & Schmidt, Minneapolis, for appellant.

        8

        Geraghty, O'Loughlin & Kenney and Robert M. Mahoney, St. Paul, for respondents.

        9

        Heard before YETKA, SCOTT and WAHL, JJ., and considered and decided by the court en banc.

        10
        SCOTT, Justice.
        11

        This is an appeal by defendant Thorwald Brown from an order of the district court denying defendant's motions for dismissal and summary judgment and granting plaintiff Lisa Blamey's motion to strike inter alia defendant's defense of lack of personal jurisdiction. The district court also certified a choice of law issue as being important and doubtful pursuant to Rule 103.03(i) of the Rules of Civil Appellate Procedure. We affirm the district court's decision of the jurisdictional issue and remand for proceedings consistent with this opinion.

        12

        On the evening of October 23, 1974, plaintiff Lisa Blamey, a 15-year-old, attended a beer party in the Twin Cities area given by Patrick Michael (Mike) Martin, a 17-year-old. The party broke up at about 11 p. m. after the beer supply had been exhausted. A group from the party, including plaintiff, got into Martin's sister's car and Martin decided that they should go to Wisconsin since liquor stores in the Twin Cities had closed by that time. He said he knew of a place in Wisconsin where beer could be obtained at that hour.

        13

        Accompanied by the plaintiff, Martin drove the car to Hudson, Wisconsin, where he purchased two twelve packs of strong beer at the Overshoe Club at approximately 1 a. m. At about 4 a. m., the car was involved in a one-car accident in Minnesota in which plaintiff was seriously injured.

        14

        At the time of the accident, plaintiff and Martin were residents of Minnesota. The Overshoe Club, also known as Ted Brown's Liquors, operated under a Class B liquor license issued by the city of Hudson, Wisconsin. The establishment was solely [886] owned by defendant Thorwald Brown, then a Wisconsin resident, who has resided in Arizona since 1976.

        15

        The Overshoe Club sold intoxicating liquor and fermented malt beverages both on- and off-sale. The Club is located just off Interstate 94, within 15 miles of the Twin Cities area and is one of the first liquor establishments one reaches after exiting from the Interstate. It is located on the main street of Hudson, Wisconsin. Hudson is located on the Minnesota-Wisconsin border and the Twin Cities and Hudson are connected by the Interstate highway.

        16

        The Club is a neighborhood bar with no live entertainment, juke box, or game machines. The facility, which consists of a bar and three tables, could accommodate about 20 people. Defendant neither advertised in Minnesota nor attempted to attract Minnesota residents or young people to his establishment. He had no business connections in Minnesota and purchased the entire inventory for the bar in Wisconsin. Since defendant did not operate his establishment in Minnesota or any other state which had a similar civil damage act, Brown had not procured liquor liability insurance.

        17

        Plaintiff brought the present action in Minnesota district court, alleging that defendant or his employees sold intoxicating liquors to Martin, a minor, in violation of, inter alia, the Minnesota Civil Damage Act, Minn.St. 340.95, and the Minnesota common law of negligence. The complaint was claimed to have been served pursuant to Minnesota's long-arm statute, Minn.St. 543.19, subd. 1(c). Defendant's answer included an allegation that the Minnesota district court lacked personal jurisdiction over the defendant and plaintiff moved to strike this defense. Defendant also sought an order to dismiss the complaint on jurisdictional grounds and summary judgment. The district court granted plaintiff's motion to strike the jurisdictional defense and denied defendant's motions.

        18

        On appeal, defendant raises the issue of whether the Minnesota district court erred in holding that it had personal jurisdiction over him. The district court also certified the following issue to us as being important and doubtful pursuant to Rule 103.03(i) of the Rules of Civil Appellate Procedure: "Whether Minnesota's Civil Damage Act can be applied to impose liability on a Wisconsin bar owner for an illegal sale of intoxicating liquors allegedly made at his place of business in Wisconsin." The only issues on appeal then are the jurisdictional and choice of law issues.

        19

        1. To establish personal jurisdiction over a nonresident defendant, it must be shown that such is authorized by the terms of a statute and is consistent with the due process guarantees of the constitution. All Lease Co., Inc. v. Betts, 294 Minn. 473, 199 N.W.2d 821 (1972). The statute under which plaintiff claims personal jurisdiction is Minn.St. 543.19, subd. 1(c), which provides in part:

        20
        "* * * As to a cause of action arising from any acts enumerated in this subdivision, a court of this state with jurisdiction of the subject matter may exercise personal jurisdiction over any * * * non-resident individual * * * in the same manner as if * * * he were a resident of this state. This section applies if * * * the * * * non-resident individual:
        21
        * * * * * *
        22
        "(c) Commits any tort in Minnesota causing injury or property damage * * *."
        23

        Defendant contends that subdivision 1(d) and not 1(c) governs the present action. Subdivision 1(d) allows the exercise of personal jurisdiction over a nonresident if he:

        24
        "(d) Commits any tort outside of Minnesota causing injury or property damage within Minnesota, if, (1) at the time of the injury, solicitation or service activities were carried on within Minnesota by or on behalf of the defendant, or (2) products, materials or things processed, serviced or manufactured by the defendant [887] were used or consumed within Minnesota in the ordinary course of trade."[1]
        25

        The constitutional due process standards applicable to this case are contained in Aftanase v. Economy Baler Co., 343 F.2d 187, 197 (8 Cir. 1965), and Franklin Mfg. Co. v. Union Pacific R. Co., 297 Minn. 181, 210 N.W.2d 227 (1973). See, also, Kulko v. Superior Court, 436 U.S. 84, 91, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978). According to these decisions, the following criteria are to be applied when ascertaining whether jurisdiction over the person complies with due process: (1) The quantity of contacts with the forum state, (2) the nature and quality of the contacts, (3) the source and connection of the cause of action with those contacts, (4) the interest of the forum state in providing a forum, and (5) the convenience of the parties. Defendant contends that these factors when applied to the present situation mandate a finding of no personal jurisdiction in Minnesota.

        26

        Both the statutory and the constitutional issues relating to jurisdiction can be resolved on the basis of our recent decision in Anderson v. Luitjens, Minn., 247 N.W.2d 913 (1976), the facts of which closely parallel the facts of the case at hand. In Anderson, plaintiff Ross Anderson was injured in an automobile accident which occurred in Minnesota approximately 3 miles north of the Minnesota-Iowa border. Anderson was a passenger in the car owned by Luitjens and driven by Wendy Johnson. Prior to the accident, 17-year-old Johnson had been served alcoholic beverages at defendant Charles Denker's tavern in Lake Park, Iowa. Lake Park is about 3 miles south of the state border line and about 10 miles from the accident site.

        27

        Anderson brought an action against Denker and others in Minnesota district court. That court ruled that Denker was not subject to in personam long-arm jurisdiction of a Minnesota court. In reversing the district court, we stated:

        28
        "* * * Under traditional concepts of territoriality and proper jurisdiction, Minnesota courts would not have been able to entertain this case. But with the adoption of long-arm statutes such as those passed in Minnesota, thinking on the territoriality of law has given way to new jurisdictional ideas which, in our view, make the assertion of jurisdiction in this case consistent with traditional notions of fair play and substantial justice." Minn., 247 N.W.2d 918.
        29

        In reaching this decision, we held that Minn.St. 543.19, subd. 1(c), was applicable to the facts of the case, stating that the test for whether or not a tort has occurred "in Minnesota" depends on whether damage from the alleged tortious conduct resulted in Minnesota. In the present case, defendant does not dispute that the injury to the plaintiff occurred in Minnesota and has presented no compelling argument why section 1(c) of Minn.St. 543.19 should not govern the present situation. We thus find no reason to abandon the principles set forth in Anderson on this point, and hold that section 1(c), and not 1(d), is applicable to this case.

        30

        In Anderson, we then considered the due process aspects of the case and applied the five criteria set forth in Aftanase v. Economy Baler Co., supra, and Franklin Mfg. Co. v. Union Pacific R. Co., supra. As to the first criterion, the quantity of the contacts, we noted that Denker's main tangible contact with Minnesota was the fact that, according to Denker's own estimate, 8 percent of his business consisted of sales to Minnesota residents. Unlike Denker, the defendant herein has admitted no specific percentage of business with Minnesota residents. [888] He contends that he did not know the residence of each of his customers but does not deny that he did business with Minnesotans. The record, however, shows that defendant's bar and off-sale liquor business was located on the main street of a border town close to an interstate highway. The Wisconsin laws regulating Brown's business allowed him to keep his off-sale enterprise open until 2 a. m., while off-sale liquor establishments located in Minnesota cities of the first class (which includes St. Paul and Minneapolis) and for a radius of 15 miles around such cities were required by Minnesota law to close at 8 p. m. — six hours before defendant was required by Wisconsin law to close.[2] These facts — the proximity to the state border, an interstate highway, and a large urban area and Wisconsin's more liberal liquor regulations — give rise to a reasonable inference that Brown had sufficient contacts with Minnesota residents so that the exercise of jurisdiction is reasonable, even though a specific percentage of business with Minnesotans cannot be identified.

        31

        The next factor we considered in Anderson was the source and connection of the cause of action with the contacts. We noted that the legal age for drinking alcoholic beverages in Iowa at the time of Anderson's accident was 19, while the legal age in Minnesota was 21. We commented:

        32
        "* * * This difference was bound to attract young Minnesotans to Iowa's nearby establishments. From this it appears that a sufficiently large percentage of Denker's patrons were Minnesota residents for it to have been reasonable for him to foresee both that serving alcoholic beverages to a minor or to a person already intoxicated might lead to consequences such as those which resulted here and that those consequences might occur in Minnesota." Minn., 247 N.W.2d 916.
        33

        While the parties to the present action agree that the drinking age in both Minnesota and Wisconsin was 18 at the time of the accident, the difference in the hours liquor establishments were allowed to remain open, previously discussed, was bound to attract Minnesota minors to Wisconsin. In fact, in the present case, Martin's knowledge of this situation was the initial reason the group of young people headed to Wisconsin to make their purchase.

        34

        The interest of the state in providing a forum was the next standard discussed in Anderson, wherein we concluded that Minnesota had a sufficiently strong interest. Minnesota's interest is equally strong in the present case. Plaintiff is a lifelong Minnesota resident, who sustained injuries in Minnesota, resulting in the accumulation of hospital and physicians' bills with Minnesota creditors.

        35

        As to the final factor, the convenience of the parties, defendant argues that Minnesota is an inconvenient forum since he is now retired and permanently resides in Arizona. This fact, however, militates against defendant's interests. Since he now lives in Arizona, Wisconsin is not a convenient forum for any of the parties, and it is no more inconvenient for the defendant to participate in a trial in Hennepin County, Minnesota, than it would be for him to participate in a trial in Hudson, Wisconsin, a short distance from Hennepin County across the state border.

        36

        Consequently, on the basis of Anderson v. Luitjens, supra, we are compelled to hold that the district court properly asserted jurisdiction over defendant.

        37

        2. Pursuant to Rule 103.03(i) of the Rules of Civil Appellate Procedure, the district [889] court certified to us the issue of whether Minnesota's Civil Damage Act, Minn.St. 340.95, can be applied to impose liability on defendant, a Wisconsin bar owner. Minn.St.1974, § 340.95, provides:

        38
        "Every husband, wife, child, parent, guardian, employer, or other person who is injured in person or property, or means of support, by any intoxicated person, or by the intoxication of any person, has a right of action, in his own name, against any person who, by illegally selling, bartering or giving intoxicating liquors, caused the intoxication of such person, for all damages, sustained; and all damages recovered by a minor under this section shall be paid either to such minor or to his parent, guardian, or next friend, as the court directs; and all suits for damages under this section shall be by civil action in any court of this state having jurisdiction thereof."
        39

        At the time of the accident, Minn.St.1974, § 340.73, made it illegal to sell or give intoxicating liquor to any person under the age of 18. Minnesota's Act thus imposed strict liability upon anyone who sold or gave intoxicating liquor, including the type of beer sold to Martin, to any person under 18.

        40

        Wisconsin's civil liability statute, which defendant contends is the applicable law, is more restrictive than Minnesota's Act. Under Wis.St.Ann. 176.35, a person injured as the result of the intoxication of "any minor or habitual drunkard" has a right of action only against any person who has been "notified or requested in writing" by certain relatives of the minor or drunkard or government officials "not to sell or give intoxicating liquors to him and who, notwithstanding such notice or request, shall knowingly sell or give away intoxicating liquors, thereby causing the intoxication of such minor or drunkard." It is undisputed in this case that the notice required by the Wisconsin statute was not given and therefore plaintiff may not maintain a cause of action based upon it. See, Farmers Mutual Auto. Ins. Co. v. Gast, 17 Wis.2d 344, 117 N.W.2d 347 (1962). Thus, the choice of law in this case is "outcome determinative" since a conflict between the laws of Minnesota and Wisconsin exists. See, Myers v. Government Employees Ins. Co., 302 Minn. 359, 225 N.W.2d 238 (1974).

        41

        Defendant argues, however, that it is unnecessary to invoke the choice of law principles since the legislature did not intend the Minnesota Civil Damage Act to impose liability upon a Wisconsin bar owner for an allegedly illegal sale of intoxicating liquor which took place in Wisconsin. Plaintiff asserts that our Act is applicable to "any person" who makes an illegal sale of intoxicating liquor regardless of where that person engages in business.[3] We agree with defendant.

        42

        While our Civil Damage Act is silent as to whether or not it imposes liability upon non-Minnesota liquor vendors, it seems only logical that the legislature intended the Act to be applicable only to Minnesota vendors who make illegal sales within Minnesota, and not to out-of-state liquor vendors.

        43

        Our Act, Minn.St. 340.95, is only one of over 100 provisions codified in Minn.St. Ch. 340 dealing with intoxicating liquors. The provisions contained in Chapter 340 constitute a comprehensive scheme for regulating Minnesota's liquor industry. Chapter 340 regulates such matters as licensing, retailing, wholesaling, age of consumption, importation, hours and days of sale, advertising, and taxation.

        44

        When viewed in light of these other provisions of Chapter 340 which regulate the Minnesota liquor industry, it is apparent that our Civil Damage Act was intended to be applicable only to Minnesota vendors. We feel the Minnesota legislature did not intend to impose strict liability under our [890] Act on Wisconsin bar owners any more than it intended the licensing or taxation provisions of Chapter 340 to be applicable across the state boundary. Consequently, we hold that the Minnesota Civil Damage Act cannot be applied to impose liability on a Wisconsin bar owner for an illegal sale of intoxicating liquor, especially where the sale was made in Wisconsin.[4]

        45

        3. Although we have determined that Minnesota's Civil Damage Act is not operative in this case, the issue of whether Minnesota's theory of common-law negligence may be invoked remains. Two cases are relevant to this consideration — Trail v. Christian, 298 Minn. 101, 213 N.W.2d 618 (1973), and Fitzer v. Bloom, Minn., 253 N.W.2d 395 (1977).

        46

        In Trail, supra, we held that a common-law negligence action would lie against a commercial vendor who illegally furnished a "nonintoxicating malt beverage" (3.2 beer). We expressly stated in Trail that the holding applied only to the illegal sale of 3.2 beer, which is not covered by the Civil Damage Act.

        47

        Subsequently, in Fitzer v. Bloom, supra, we considered "whether the common-law principles of Trail are to be extended into areas already covered by the Civil Damage Act or whether, by enacting the Civil Damage Act, the legislature has preempted the field." After citing Trail, we stated:

        48
        "* * * Since the legislature has provided a remedy for the illegal sale of intoxicating liquor in the Civil Damage Act, the legislature has preempted the field and has provided the exclusive remedy in the act. A common-law cause of action for negligence will only be allowed where the act does not apply." Minn., 253 N.W.2d 403. (Italics supplied.)
        49

        In the present case, the legislature obviously has not preempted the field since, as was previously resolved, our Act does not apply to a non-resident vendor. In light of our statements in Fitzer, supra, we hold that a common-law action for negligence lies in the case at hand since the Civil Damage Act is not applicable.

        50

        4. The final issue to be resolved is whether the common law of Minnesota or Wisconsin should be applied. Contrary to Minnesota's limited rule of common-law liability, Wisconsin allows no common-law action. E. g., Garcia v. Hargrove, 46 Wis.2d 724, 176 N.W.2d 566 (1970).

        51

        The factors to be considered in resolving this conflict were adopted in Milkovich v. Saari, 295 Minn. 155, 203 N.W.2d 408 (1973). The approach adopted in Milkovich was taken from a proposal of Professor Robert Leflar in Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U.L.Rev. 267 (1966), and involves the application of five "choice-influencing considerations": (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) application of the better rule of law. The third consideration — simplification of the judicial task — has little application to the present situation, since any court is fully capable of administering Wisconsin's rule of non-liability. See, Milkovich v. Saari, supra.

        52

        Normally, the first consideration — predictability of result — is relatively unimportant in tort cases. Milkovich v. Saari, supra. It, however, acquires a greater importance in this case. This factor includes the idea that parties should know the legal consequences of their acts at the time they engage in a transaction. Leflar, Choice-Influencing Considerations in Conflicts Law, [891] 41 N.Y.U.L.Rev. 267, 282 (1966). In the present situation, defendant failed to procure liquor liability insurance since he assumed that only the laws of Wisconsin created his liability. These laws impose no liability upon him in the present case and thus if Minnesota law is applied some injustice will result to the defendant since the legal ramifications of his actions were not predictable to him at the time he acted.

        53

        The maintenance-of-interstate-order consideration includes the requirement that the state whose laws are ultimately applied have sufficient contacts with the facts in issue. Milkovich v. Saari, supra. Here, Minnesota has strong contacts with the facts. The residence of the plaintiff and her creditors is in Minnesota. Her journey on the night of the accident started in Minnesota and ended here also. Minnesota thus has sufficient contacts with the facts of the case. On the other hand, some ruffling of interstate relations might occur if Wisconsin law is applied and consequently maintenance of interstate order might be affected.

        54

        It is clear that Minnesota's governmental interest will be advanced by application of Minnesota law. Minnesota has a strong interest in compensating resident accident victims and a substantial interest in assuring that Minnesota creditors are paid. This consideration therefore strongly favors invoking Minnesota law.

        55

        The final consideration — the better rule of law — firmly supports the application of Minnesota's common law. In Trail v. Christian, supra, we expressly disapproved of the Wisconsin case, Garcia v. Hargrove, supra, which reaffirmed the Wisconsin common-law rule of non-liability. As between Wisconsin's law which provides no remedy and our law which does provide a remedy, we are convinced Minnesota has the better rule of law.

        56

        The correlation of these five considerations results in the conclusion that Minnesota's common law should be applied. The only consideration which weighs strongly in defendant's favor is the first — predictability of result. The maintenance-of-interstate-order consideration does not favor one state's law or the other, whereas the considerations of Minnesota's governmental interests and the better rule of law tip the scales in favor of the application of our own common law.

        57

        We therefore affirm the district court and remand for proceedings consistent with this opinion.

        58

        Affirmed and remanded.

        59
        SHERAN, C.J., took no part in the consideration or decision of this case.
        60

        [1]The Minnesota Legislature recently amended subdivision 1(d) of Minn.St. 543.19 to provide: "* * * (d) Commits any act outside Minnesota causing injury or property damage in Minnesota, subject to the following exceptions when no jurisdiction shall be found:

        61

        (1) Minnesota has no substantial interest in providing a forum; or

        (2) the burden placed on the defendant by being brought under the state's jurisdiction would violate fairness and substantial justice; or

        (3) the cause of action lies in defamation or privacy." L.1978, c. 780, § 2.

        62

        [2] Minn.St. 340.14, subd. 1, allows "off-sale" sales of intoxicating liquors in cities of the first class and in all cities located within a radius of 15 miles of cities of the first class between the hours of 8 a. m. and 8 p. m. on weekdays, between 8 a. m. and 10 p. m. on Saturdays, and prohibits sales on Sundays. October 23, 1974, was a weekday and thus Minnesota required "off-sale" stores to close by 8 p. m. Holders of Class B liquor licenses in Hudson, Wisconsin, however, were permitted by City of Hudson Municipal Code § 1301(9)(b) to make "off-sale" sales from 8 a. m. to 2 a. m. the next morning on weekdays and Saturdays and from noon to 2 a. m. on Sundays. Brown's off-sale business was thus allowed to remain open until 2 a. m. on the date of the accident.

        63

        [3] Plaintiff also cites Schmidt v. Driscoll Hotel, Inc., 249 Minn. 376, 82 N.W.2d 365 (1957), for the proposition that our Act has extraterritorial application. In Schmidt, the alleged illegal sale took place in Minnesota, resulting in injury to a Minnesota plaintiff in Wisconsin. We held that our Act applied to the Wisconsin injury. Since Schmidt did not involve a nonresident seller, it is clearly distinguishable from the case at hand.

        64

        [4] We recognize that by disposing of the issue on grounds of statutory interpretation rather than upon common-law choice of law principles we depart from Professor Robert Leflar's suggestion that "[w]hen a statute is silent as to its extrastate applicability, a court may and should as appropriately look to all the relevant choice-of-law considerations as if it were choosing between common-law rules" rather than resorting to statutory interpretation. See, Leflar, American Conflicts Law, 229-32 (1968). Although we have adopted Leflar's five "choice-influencing considerations" as our approach to resolving conflict of law questions, we choose not to follow in the present case his suggestion as to when courts may engage in statutory construction, and thus avoid the necessity of invoking the five-factor analysis.

      • 2.1.3 Chambers v. Dakotah Charter Inc.

        1
        488 N.W.2d 63 (1992)
        2
        Charlotte CHAMBERS and Glenn Norman Chambers, Plaintiffs and Appellants,
        v.
        DAKOTAH CHARTER, INC., a South Dakota corporation, Defendant and Appellee.
        3
        Nos. 17400, 17404.
        4

        Supreme Court of South Dakota.

        5
        Argued September 10, 1991.
        6
        Decided June 3, 1992.
        7

        Jon C. Sogn of Lynn, Jackson, Shultz & Lebrun, Sioux Falls, for plaintiffs and appellants.

        8

        John E. Simko and Mark Mickelson, Legal Intern of Woods, Fuller, Shultz & Smith, Sioux Falls, for defendant and appellee.

        9
        ZINTER, Circuit Judge.
        10

        Plaintiffs, Charlotte and Glenn Chambers (Charlotte or Chambers), appeal from a jury verdict in favor of Defendant, Dakotah Charter, Inc. (Dakotah Charter). The questions presented on appeal are (1), whether South Dakota courts should continue to follow the choice of laws rule of lex loci delecti (law of the place of the [64] wrong) in multi-state tort actions and (2), whether the trial court should have applied the Missouri law of comparative negligence in an action between South Dakota domiciliaries arising from an accident on a bus in Missouri. The trial court declined to follow lex loci delecti, and it applied the South Dakota law of comparative negligence. We affirm.

        11

        In May 1989, Charlotte and thirty-four other South Dakota residents chartered a bus in Sioux Falls from Dakotah Charter, a South Dakota corporation. The purpose of the trip was to attend a Tae Kwon Do tournament in Arkansas. While en route from South Dakota to Arkansas, the bus stopped on three occasions for the convenience of the passengers and refueling. The first and second stops, in Omaha, Nebraska and St. Joseph, Missouri, occurred without incident. On the third stop, in Nevada City, Missouri, Charlotte fell on the steps in the bus and severely fractured her ankle.

        12

        Chambers commenced actions for personal injury and loss of consortium. Chambers contended that Dakotah Charter negligently failed to maintain the interior of the bus in a safe condition. Charlotte specifically contended that she fell on a discarded piece of candy that was distributed to children by Dakotah Charter's bus driver during the first leg of the trip. Dakotah Charter denied Chambers' allegations and also contended that Charlotte was contributorily negligent.

        13

        Although the contributory negligence of a plaintiff no longer constitutes an absolute bar to recovery in either South Dakota or Missouri, each state's comparative negligence law is slightly different. Missouri is a pure comparative negligence state. Gustafson v. Benda, 661 S.W.2d 11 (Mo.1983). Under Missouri law, if a plaintiff is determined to be contributorily negligent in any degree, the plaintiff may still recover, but the plaintiff's damages are reduced by the percentage of fault that is attributed to the plaintiff's conduct. Id. Under South Dakota law, a contributorily negligent plaintiff's damages are also reduced in proportion to the amount of the plaintiff's contributory negligence. A contributorily negligent plaintiff may not, however, recover anything in South Dakota if the plaintiff's negligence is more than slight in comparison with the negligence of the defendant. SDCL 20-9-2.[1]

        14

        Based upon the three special concurrences in Owen v. Owen, 444 N.W.2d 710 (S.D. 1989), the trial court declined to follow the traditional rule of lex loci delicti and apply the Missouri law of comparative negligence. Instead, the trial court instructed the jury under South Dakota's comparative negligence statute. Chambers argue that, under lex loci delicti or the modern approaches discussed in Owen, the trial court should have given Chambers' proposed instruction which incorporated Missouri law. We disagree.

        15

        Our standard of review of the trial court's instructions is well established. An appellant has the burden to show not only that the instruction given was in error, but also that it was prejudicial error to the effect that under the evidence, the jury might and probably would have returned a different verdict if the appellant's instructions had been given. Lytle v. Morgan, 270 N.W.2d 359, 362 (S.D.1978).

        16
        CHOICE OF LAWS APPROACH
        17

        Until 1989 this Court has followed an unqualified rule of lex loci delicti to govern the choice of laws in multi-state tort actions. See Owen, 444 N.W.2d 710; Heidemann v. Rohl, 86 S.D. 250, 194 N.W.2d 164 (1972). Although we did not formally abandon lex loci delecti in Owen, the "majority" opinion, written by Morgan, J. and concurred in by Wuest, C.J., took the first step in that direction when it adopted a [65] public policy exception to the rule "to avoid applications that are repugnant to the public policy of our state." Owen, 444 N.W.2d at 713. Although the three remaining members of this Court concurred in the Owen result, they voted by special concurrence to "[j]oin the vast majority of jurisdictions which [have] abolish[ed] the archaic and rigid rule of lex loci in favor of an approach which gives flexibility and addresses conflicts of laws issues in a responsible and equitable manner." Id. at 714-715 (Miller, J., concurring specially, joined by Henderson and Sabers, JJ.). Although the reasons for abandonment of the rule were well articulated by present Chief Justice Miller in Owen, 444 N.W.2d at 715, our adoption of lex loci delecti in Heidemann and stare decisis warrant a further limited discussion of reasons for abandonment of the traditional rule.

        18

        Lex loci delecti is a judge made rule of law that is based on the doctrine of vested rights. In Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 746, 191 N.E.2d 279, 281 (1963), the case that led many courts to abandon lex loci delecti, the New York Court of Appeals explained that:

        19
        The traditional choice of law rule, embodied in the original Restatement of Conflict of Laws (§ 384), and until recently unquestioningly followed in this court..., 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.... 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 jurisdiction where the injury occurred and depends for its existence and extent solely on such law.... Although espoused by such great figures as Justice HOLMES ... and Professor Beale ... 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. `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'.... 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 ..., there has in recent years been increasing criticism of the traditional rule by commentators and a judicial trend towards its abandonment or modification. (citations omitted).
        20

        Twenty years ago we adopted lex loci delecti in Heidemann, 194 N.W.2d at 169. At that time we noted that lex loci delecti was the prevailing rule. Id. at 167. Although Babcock had been decided at that time, we declined to adopt a modern approach until a satisfactory substitute was developed because we noted "considerable confusion and inconsistency" in the application of modern rules. Id. at 169. We observed, however, that the condition was perhaps characteristic of any transitional period in a changing law era. Id.

        21

        The transition to a new approach has continued since Heidemann. Today only fifteen states still retain the traditional rule,[2] and the majority of states which [66] have chosen a new approach have adopted some version of the significant relationship approach. See generally Smith, Choice of Law in the United States, 38 Hastings L.J. 1041 (1987); Kay, Theory into Practice: Choice of Law in the Courts, 34 Mercer L.Rev. 521 (1983). Furthermore, courts have started to overcome the inconsistency we noted Heidemann, at least in cases such as this one which involves contributory/comparative negligence.[3] Because a discernible trend toward one modern approach has developed among states which have abandoned the traditional rule and because substantial precedent is developing under the modern approaches, we now join the clear majority and abandon lex loci delecti to govern choice of laws analysis in multi-state tort actions. Heidemann and other cases to the contrary are modified as hereinafter provided.

        22

        Having abolished lex loci delecti as South Dakota's choice of law rule, we turn to the adoption of an appropriate modern approach. The selection of the proper modern approach has been the subject of much discussion by scholars and courts. See Owen, 444 N.W.2d at 714 n. 2. Although three members of this Court expressed a preference in Owen for the "choice-influencing considerations" approach refined by Professor Robert A. Leflar,[4] we left the matter for further analysis. Subsequent analysis by others has provided thoughtful insight into the adoption of an appropriate modern approach. See Thatcher, Choice of Law in Multi-State Tort Actions after Owen v. Owen: The Less Things Change..., 35 S.D.L.Rev. 372 (1989-1990).

        23

        No less than six approaches are in current use in one or more combinations.[5] This diversity has been caused in part by substantial disagreement among scholars about fundamental questions underlying each approach. Unfortunately, there is probably less consensus among the scholars today than ever before. Kramer, Rethinking Choice of Law, 90 Colum.L.Rev. 277, 279 (1990). Nevertheless, of the modern approaches, the three most generally accepted by courts are: (1) the "most significant relationship" approach which arose out of Babcock, 240 N.Y.S.2d 743, 191 N.E.2d 279, and has evolved into the Restatement (Second) of Conflict of Laws (1971); (2) the "governmental interest" approach originated by Professor Brainerd Currie and adopted in Reich v. Purcell, 67 Cal.2d 551, 63 Cal.Rptr. 31, 432 P.2d 727 (1967); and, (3) the "choice-influencing considerations" approach refined by Professor Leflar.

        24

        The favoritism shown by courts for some form of the significant relationship approach appears to have occurred for general and specific reasons. Generally, the mere adoption of the Restatement (Second) has restricted development of the governmental interest and the choice-influencing consideration approaches. Smith, supra, at 1170. That trend has occurred because all but one of the modern considerations used in government interest and choice-influencing approaches are explicitly recognized in the Restatement (Second), and the omitted consideration, (the better law factor), can be considered under § 6 of the Restatement (Second). As a result, the government interest and choice-influencing consideration approaches have been relegated to a secondary role in conflicts jurisprudence. Id.

        25

        The government interest and the choice-influencing consideration approaches have also been the subject of specific criticism. The pure governmental interest approach has been criticized because it rejects all jurisdiction-selection rules for all purposes. Posnak, Choice of Law—Rules vs. Analysis: A More Workable Marriage than the (Second) Restatement; A Very Well-Curried [67] Leflar Over Reese Approach, 40 Mercer L.Rev. 869, 875 n. 37 (1989). It has also been criticized because its decidedly proforum preference has been rejected by most courts and commentators, including those committed to the approach. Kay, supra, at 551. Although the interest approach probably remains the dominant choice of law theory among academics, its hold is slipping among new scholars, Kramer, supra, at 278-279, and it has received little support from the courts.[6]

        26

        The choice-influencing-considerations approach has also received comparatively little recognition by courts.[7] This has occurred in part because, except for its "better law" factor, there is not much difference between this approach and the Restatement (Second). Posnak, supra, at 887 n. 96. Furthermore, the better law factor has been the subject of much criticism. E. Scoles & P. Hay, Conflict Of Laws § 2.11 (1984); Korn, The Choice-of-Law Revolution: A Critique, 83 Colum.L.Rev. 722, 958 (1983).

        27

        The Restatement (Second) is a compromise. It contains rules, which aid in certainty of application, as well as the generally recognized policy considerations which are to be considered with the rules. Although a principal criticism of the Restatement (Second) has been that it has not always led to consistent results, its authors believed that it was unwise to do more than adopt broad flexible rules, in the most significant relationship formulation, that would guide courts without impeding constructive progress. Reese, Conflict of Laws and the Restatement Second, 28 Law & Contemp. Probs. 679, 699, (1963); Kay, supra, at 553. Although this compromise has led to an approach which some have said is so general as to be useless, even those critics admit benefit will arise from the adoption of any rule that is also applied by other states. Kramer, supra, at 321-322.

        28

        Most states, which have abandoned lex loci delecti, now apply some form of the significant relationship approach.[8] Because the Restatement (Second) contains most of the generally accepted modern policy considerations and rules, because it has become the prevailing approach among courts and because the most precedent will develop under that approach, we now adopt the most significant relationship approach to govern multi-state tort conflicts.

        29
        DETERMINATION OF THE APPROPRIATE COMPARATIVE NEGLIGENCE LAW
        30

        Under the most significant relationship approach:

        31
        [68] (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.
        32
        (2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
        33
        (a) the place where the injury occurred,
        34
        (b) the place where the conduct causing the injury occurred,
        35
        (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and
        36
        (d) the place where the relationship, if any, between the parties is centered.
        37
        These contacts are to be evaluated according to their relative importance with respect to the particular issue.
        38

        Restatement (Second) of Conflict of Laws § 145 (1971). The principles to be considered under § 6 are:

        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

        Restatement (Second), supra, § 6 (1971).

        49

        Here, the issue involves the application of rules of contributory and comparative negligence. Those rules do not regulate or determine what is negligent conduct. They only regulate the amount of damages a contributorily negligent plaintiff may recover.

        50

        With respect to that issue, South Dakota has all of the important contacts. First, the principal conduct which allegedly caused the injury was the distribution of the candy in the bus on the first leg of the trip. Missouri had no contact with that conduct. Even if Missouri could claim some limited contact with Dakota Charter's alleged failure to maintain a safe premises after the candy was distributed, Missouri's contact was relatively unimportant to the issue of comparative negligence because comparative negligence law is not a rule of the road nor does it regulate the conduct of bus companies using Missouri's highways. Second, South Dakota was the domicile, residence, place of incorporation and place of business of the parties, as well as the place where the relationship of the parties was centered. These contacts are important to the issue of comparative negligence because the economic impact of the law applied will be felt where the parties reside. Finally, although the injury did occur in Missouri, it occurred in the bus while on an interstate journey from South Dakota to Arkansas. It was merely fortuitous that Charlotte slipped while the bus was passing through Missouri.

        51

        Considering these contacts, the two factors relevant to a choice of the appropriate comparative negligence law favor the application of South Dakota law. These two factors are the policies of the interested states and the relative interests of the states in determining the issue.

        52

        This state's policy has been clearly expressed by the legislature in our comparative negligence statute. Although Missouri also has a comparative negligence policy, South Dakota has the only significant interest in a determination of the comparative negligence issue because all of the contacts are in South Dakota, and Missouri's policy would not be furthered by its application to South Dakota domiciliaries who have no [69] important contact with Missouri.[9] Where the forum's interests are the "most deeply affected" under these factors, it is generally fitting that forum's law should be applied. Restatement, supra, § 6 comment (f) (1971).

        53

        The remaining factors have little importance in this negligence action. First, neither Missouri nor South Dakota's laws significantly affect the needs of interstate systems because neither interstate relations nor automobile movement would be influenced by either law. Second, the protection of justified expectancy, although important in consensual relationships, has no importance in this negligence action. Generally, people do not consider the legal consequences of their conduct or how law may be applied prior to becoming involved in an accident. Third, the policy of ameliorating the harsh consequences of common law contributory negligence rules is furthered by both states' comparative negligence laws. Although Chambers argue that Missouri's policy is better, that contention is debatable. Furthermore, even if Missouri's policy could be considered "better," conflicts analysis should not be used to apply the law of a state that has no interest in having its rule applied. The proper solution in such cases is to change the forum's inferior law. Fuerste v. Bemis, 156 N.W.2d 831, 834 (Iowa 1968). Finally, little significance can be attached to the ease of determining and applying comparative negligence law or to the certainty, predictability and uniformity of result. Both states' laws are easy to determine and apply. Furthermore, because the differences in the law are so minor, there will be few differences in result.

        54

        Considering the issue and each state's contacts, South Dakota has the most significant relationship to the occurrence and the parties. This Court holds that the forum's comparative negligence law should be applied to a forum's domiciliaries who are involved in an accident in another state. Other courts have reached the same conclusion under each of the modern approaches.[10] We affirm the trial court's application of South Dakota law and need not reach the issue raised by Dakotah Charter's notice of review.

        55
        ZINTER, Circuit Judge, for AMUNDSON, J., disqualified.
        56
        [70] WUEST, HENDERSON and SABERS, JJ., concur.
        57
        MILLER, C.J., concurs specially.
        58
        MILLER, Chief Justice (concurring specially).
        59

        I am in full accord with and concur in the majority opinion.

        60

        At the time of my special writing in Owen, I was persuaded that the "choice-influencing considerations" approach was preferable. Since that time, with the opportunity to give it further study and consideration, I am now convinced that "the most significant relationship" approach is the most appropriate for South Dakota. I would be less than candid if I did not note that Professor Thatcher's fine law review article (35 S.D.L.Rev. 372) played a large part in stimulating my re-evaluation on this topic.

        61

        Konrad Adenauer was once quoted as saying, "I reserve the right to be smarter today than I was yesterday." So do I!

        62

        [1]SDCL 20-9-2 provides:

        63

        In all actions brought to recover damages for injuries to a person or to his property caused by the negligence of another, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery when the contributory negligence of the plaintiff was slight in comparison with the negligence of the defendant, but in such case, the damages shall be reduced in proportion to the amount of plaintiff's contributory negligence.

        64

        [2] See Powell v. Sappington, 495 So.2d 569 (Ala. 1986); Friday v. Smoot, 58 Del. 488, 211 A.2d 594 (1965); Sargent Indus., Inc. v. Delta Air Lines, 251 Ga. 91, 303 S.E.2d 108 (1983); Ling v. Jan's Liquors, 237 Kan. 629, 703 P.2d 731 (1985); Hauch v. Connor, 295 Md. 120, 453 A.2d 1207 (1983); Haker v. Southwestern Railway Co., 176 Mont. 364, 578 P.2d 724 (1978); Tab Construction Co. v. Eighth Judicial District Court, 83 Nev. 364, 432 P.2d 90 (1967); Zamora v. Smalley, 68 N.M. 45, 358 P.2d 362 (1961); Shaw v. Lee, 258 N.C. 609, 129 S.E.2d 288 (1963); Algie v. Algie, 261 S.C. 103, 198 S.E.2d 529 (1973); Winters v. Maxey, 481 S.W.2d 755 (Tenn.1972); Goldman v. Beaudry, 122 Vt. 299, 170 A.2d 636 (1961); Frye v. Comm.W., 231 Va. 370, 345 S.E.2d 267 (1986); Vest v. St. Albans Psychiatric Hospital, Inc., 182 W.Va. 228, 387 S.E.2d 282 (1989); Duke v. Housen, 589 P.2d 334 (Wyo.), cert. denied, 444 U.S. 863, 100 S.Ct. 132, 62 L.Ed.2d 86 (1979).

        65

        [3] See note 10, infra.

        66

        [4] See, Leflar, Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U.L.Rev. 267 (1966); Leflar, Conflicts Law: More on Choice-Influencing Considerations, 54 Calif.L.Rev. 1584 (1966); R. Leflar, L. McDougal & R. Felix, American Conflicts Law 207 (4th ed. 1986).

        67

        [5] For a survey of the choice of law theories currently in use in all jurisdictions see Smith, Choice of Law in the United States, 38 Hastings L.J. 1041 (1987); Kozyris & Symeonides, Choice of Law in the American Courts in 1989: An Overview, 38 Am.J.Comp.L. 601 (1990).

        68

        [6] The only courts which have adopted this approach are: Nepera Chem., Inc. v. Sea-Land Service, Inc., 794 F.2d 688 (D.C.Cir.1986); Wallis v. Mrs. Smith's Pie Co., 261 Ark. 622, 550 S.W.2d 453 (1977); Reich v. Purcell, 67 Cal.2d 551, 63 Cal.Rptr. 31, 432 P.2d 727 (1967); Jagers v. Royal Indemnity Co., 276 So.2d 309 (La.1973); Mellk v. Sarahson, 49 N.J. 226, 229 A.2d 625 (1967); Cipolla v. Shaposka, 439 Pa. 563, 267 A.2d 854 (1970).

        69

        [7] The only courts which have adopted this approach are: Peters v. Peters, 63 Haw. 653, 634 P.2d 586 (1981); Milkovich v. Saari, 295 Minn. 155, 203 N.W.2d 408 (1973); Clark v. Clark, 107 N.H. 351, 222 A.2d 205 (1966); Pardey v. Boulevard Billiard Club, 518 A.2d 1349 (R.I.1986); Heath v. Zellmer, 35 Wis.2d 578, 151 N.W.2d 664 (1967).

        70

        [8] See Armstrong v. Armstrong, 441 P.2d 699 (Alaska 1968); Schwartz v. Schwartz, 103 Ariz. 562, 447 P.2d 254 (1968); First Nat'l Bank v. Rostek, 182 Colo. 437, 514 P.2d 314 (1973); O'Connor v. O'Connor, 201 Conn. 632, 519 A.2d 13 (1986); 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., Inc. v. Greeson, 515 N.E.2d 1071 (Ind.1987); Fuerste v. Bemis, 156 N.W.2d 831 (Iowa 1968); Adams v. Buffalo Forge Co., 443 A.2d 932 (Me.1982); Cohen v. McDonnell Douglas Corp, 389 Mass. 327, 450 N.E.2d 581 (1983); Mitchell v. Craft, 211 So.2d 509 (Miss.1968); Kennedy v. Dixon, 439 S.W.2d 173 (Mo.1969); Harper v. Silva, 224 Neb. 645, 399 N.W.2d 826 (1987); Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963); Issendorf v. Olson, 194 N.W.2d 750 (N.D.1972); Morgan v. Biro Mfg. Co., 15 Ohio St.3d 339, 15 OBR 463, 474 N.E.2d 286 (1984); Brickner v. Gooden, 525 P.2d 632 (Okla.1974); Erwin v. Thomas, 264 Or. 454, 506 P.2d 494 (1973); Gutierrez v. Collins, 583 S.W.2d 312 (Tex.1979); Forsman v. Forsman, 779 P.2d 218 (Utah 1989); Southwell v. Widing Transp., Inc., 101 Wash.2d 200, 676 P.2d 477 (1984).

        71

        [9] It is acknowledged that considering these factors, many scholars and some courts have categorized this type of case as a "false conflict" which presents no conflict of law and which should be decided under the law of the state which has the specific interest without regard to any presumptive conflict rule or approach. See, e.g., B. Currie, Selected Essays on the Conflict of Laws 107 (1963); Posnak, supra at 873. Nevertheless, we apply the significant relationship approach to clarify the current ambiguity in this jurisdiction concerning the proper choice of law approach to apply in multi-state tort cases.

        72

        [10] See Wallis v. Mrs. Smith's Pie Co., 261 Ark. 622, 550 S.W.2d 453 (1977) (Governmental interest approach—Arkansas' comparative negligence law which apportions liability as long as plaintiff's fault is less than defendant's applies to an Arkansas resident's injury sustained in an auto accident in Missouri while Missouri's rules of the road apply to questions of negligence in driving the vehicle); Sabell v. Pacific Intermountain Express Co., 36 Colo.App. 60, 536 P.2d 1160 (1975) (Most significant relationships approach—Colorado's comparative negligence law applies to a motor vehicle accident that occurred in Iowa as the issue relates to the recovery of damages); Brown v. DSI Transports, Inc., 496 So.2d 478 (La.Ct.App.1986) (Most significant relationship approach—Louisiana law of comparative negligence applies to a Louisiana plaintiff injured in auto accident in Alabama); Mitchell v. Craft, 211 So.2d 509 (Miss.1968) (Choice-influencing-considerations approach—Mississippi comparative negligence law applies to Mississippi residents injured in auto accident in Louisiana); Fells v. Bowman, 274 So.2d 109 (Miss. 1973) (Most significant relationship or choice-influencing consideration approach—Mississippi comparative negligence law applies to damages recoverable by a Mississippi resident's auto accident in Louisiana while rules of the road of the tort state apply to determine negligence); DeRemer v. Pacific Intermountain Express Co., 353 N.W.2d 694 (Minn.Ct.App.1984) (Choice-influencing considerations approach—Minnesota comparative negligence law applies to Minnesota resident injured in auto accident in South Dakota); Schwartz v. Consolidated Freightways Corp. of Dela., 300 Minn. 487, 221 N.W.2d 665 (1974) (Choice-influencing considerations—Minnesota comparative negligence law applies to Minnesota resident injured in Indiana by defendant licensed to do business in Minnesota); Isssendorf v. Olson, 194 N.W.2d 750 (N.D. 1972) (Dominant contacts approach—North Dakota law of contributory negligence applies to North Dakota resident injured in auto accident in Minnesota).

      • 2.1.4 Peters v. Peters

        1
        634 P.2d 586 (1981)
        2
        Lilien G. PETERS, Plaintiff-Appellant,
        v.
        Hans A. PETERS, Defendant-Appellee.
        3
        No. 6874.
        4

        Supreme Court of Hawaii.

        5
        October 6, 1981.
        6
        Reconsideration Denied October 20, 1981.
        7

        [588] Bert Sakuda, Honolulu (L. Richard Fried, Jr. and Craig K. Furusho, Honolulu, with him on the briefs; Cronin, Fried, Sekiya, Haley & Kekina, Honolulu, of counsel), for plaintiff-appellant.

        8

        Roy Hughes, Honolulu (James F. Ventura and Roy T. Chikamoto, Honolulu, with him on the brief; Libkuman, Ventura, Moon & Ayabe, Honolulu, of counsel), for defendant-appellee.

        9

        Before RICHARDSON, C.J., and OGATA, MENOR, LUM and NAKAMURA, JJ.

        10
        NAKAMURA, Justice.
        11

        We are asked to review a choice-of-law decision of the Circuit Court of the First Circuit in a negligence action arising from an automobile accident that occurred on the island of Maui while Plaintiff-appellant Lilien G. Peters and her husband, Defendant-appellee Hans A. Peters, both residents of New York, were vacationing in Hawaii. As we do not deem a judicial abrogation of our interspousal tort immunity rule appropriate, and the record discloses adequate grounds for an application of Hawaii's immunity rule rather than the law of the parties' domicile permitting interspousal tort suits, we affirm the award of summary judgment to defendant-appellee.

        12
        I.
        13

        But a few facts are essential to our discussion. On April 21, 1975, a "U-Drive" vehicle being driven by Mr. Peters and in which Mrs. Peters was a passenger collided with a truck owned by the Hawaiian Commercial & Sugar Company. Mrs. Peters who was injured in the accident chose to assert her claim for damages in the Circuit Court of the First Circuit. The sole defendant named in the complaint was Mr. Peters, and it ascribed the collision to his negligence. Upon motion of counsel for defendant-appellee, summary judgment was granted Mr. Peters on the strength of the foregoing immunity. A timely appeal to this court followed.

        14
        II.
        15

        The authority of our courts has been invoked by plaintiff-appellant to determine whether her spouse should be accountable for an alleged tort of local inception. We are nevertheless confronted by a conflict-of-laws problem due to the presence of a relevant foreign element, the abode of the parties. Whether our law or that of the domiciliary state should govern the validity of the action under the circumstances involved is a question of first impression in the annals of this court.[1]

        16

        Plaintiff-appellant contends the viability of the suit against her husband should be determined in accord with the pertinent law of their domicile. She further views interspousal tort immunity as an anachronism that should be expunged from the jurisprudence of Hawaii. We initially address the second proposition.

        17
        A.
        18

        The common law rule of interspousal tort immunity was bottomed on the legal unity of husband and wife, for the two were considered as "one person in law."[2] [589] Among the disabilities thereby thrust upon a woman by marriage was the loss of capacity to contract for herself, or to sue or be sued without joining her husband as a plaintiff or defendant. 1 W. Blackstone, Commentaries *442, *443. The foregoing and other incidents of the marriage status under the common law rendered the maintenance of tort actions between husband and wife impossible. W. Prosser, The Law of Torts § 122, at 859-60 (4th ed. 1971).

        19

        Changes in the American social order wrote an end to the notion of "a union of person in husband and wife." W. Blackstone, supra, at *442. And commencing about 1844, "statutes known as Married Women's Acts, or Emancipation Acts were passed in all American jurisdictions, which were designed primarily to secure to a married woman a separate legal identity and a separate legal estate in her own property." W. Prosser, supra, at 861.

        20

        In Hawaii, the ancient but unvenerated concept of the female marriage partner's legal subjugation was adopted tardily in 1846 as part of Act 2, 1 Statute Laws of His Majesty Kamehameha III.[3] More than a decade later, while many American jurisdictions were in the process of discarding the hoary concept, the Legislative Council reiterated its adherence thereto when it adopted the Civil Code of the Hawaiian Islands of 1859.[4] And it was not until 1888 that a Married Woman's Act was enacted in the Kingdom. Chapter XI, Session Laws of 1888, established, inter alia, the right of a married woman to hold real and personal property in her own right, to make contracts as if she were sole, and to sue and be sued in the same manner as if she were sole.[5] As a consequence, Hawaii like all other states no longer regards husband and wife as an indivisible legal unit for most purposes.[6] First National Bank of Hawaii [590] v. Gaines, 16 Haw. 731, 733 (1905). But § 5 of Chapter XI, which granted married women the right to sue in their own names, also carried a proviso reading:

        21
        [B]ut this section shall not be construed to authorize suits between husband and wife.
        22

        The language of § 5 with the foregoing limitation remains intact and is presently codified as HRS § 573-5. Since interspousal tort immunity in Hawaii and its conceptual parent, the legal unity of husband and wife, have a definite statutory provenance,[7] the rule is not for judicial discard without compelling reasons.

        23

        Deeming the constraint on interspousal actions "a matter of common law," however, plaintiff-appellant urges us to emulate the Supreme Judicial Court of Massachusetts in construing the pertinent statutory provision. In Lewis v. Lewis, 370 Mass. 619, 351 N.E.2d 526 (1976), the court found that interspousal tort immunity had not acquired statutory dimension with the passage of a statute substantially similar to § 573-5 in text.[8] It concluded the rule nonetheless remained "in its common law status susceptible to reexamination and alteration by... [the] court," 370 Mass. at 627-28, 351 N.E.2d at 531, and fashioned a new rule of interspousal tort liability limited "to claims arising out of motor vehicle accidents." 370 Mass. at 630, 351 N.E.2d at 532. But the rule and its history in Hawaii do not permit us to lightly infer it is amenable to judicial modification which would remove the instant situation from its purview.[9]

        24

        The Married Woman's Act, presently complied as HRS Chapter 573, has been subject to extensive amendment since its adoption. Most recently, HRS §§ 573-6 and 573-7, covering the debts and liabilities of the husband, were scrutinized and amended to ensure conformity with Article I, § 3 of the Hawaii State Constitution, our Equal Rights Amendment, that prohibits the denial or abridgment of legal rights on the basis of sex.[10] The legislature has not been inactive where marital relations and responsibilities are concerned; it has displayed no disinclination to act when a need for statutory revision is perceived. Under the circumstances, deference to the legislative branch of government is the proper judicial stance. Where aspects of a legislatively adopted public policy statement have been examined and changed by the legislature, it would be presumptuous to believe an unamended aspect has been left for judicial alteration.

        25

        We also are unable to conclude the policy on interspousal suits is now bereft of [591] rationality, despite the unanimous or near-unanimous belief of legal writers that the "metaphysical and practical reasons which prevented such actions ... are no longer applicable." 1 F. Harper & F. James, The Law of Torts § 8.10, at 646 (1956). See also W. Prosser, supra, at 864. For in the considered judgment of the courts or legislatures of nearly half of the states, the rule may still serve a salutary purpose. See Guffy v. Guffy, 230 Kan. 89, 92, 631 P.2d 646, 648 (1981); Annot., 92 A.L.R.3d 901 (1979).

        26
        B.
        27

        Turning to the primary question regarding the viability of Mrs. Peters' suit, we observe at the outset that the issue is a substantive rather than a procedural matter, and we would not be obliged to apply the law of Hawaii if our conflict-of-laws analysis indicates that resort to the New York law[11] would best serve the interests of the states and persons involved. R. Weintraub, Commentary on the Conflict of Laws § 3.2C, at 55 (2d ed. 1980). Furthermore, as the record reveals sufficient contacts with the action, as well as interests therein, on the part of both states, a choice of the law of either would not run afoul of the Due Process and the Full Faith and Credit Clauses of the United States Constitution. See Allstate Insurance Co. v. Hague, 449 U.S. 302, 101 S.Ct. 633, 66 L.Ed.2d 521 (1981).

        28

        A recapitulation of the actual nature of the action will help to place the problem in clearer perspective. In a moment of candor before the circuit court, plaintiff-appellant characterized the suit as one for "insurance proceeds available for personal injuries." The following excerpt from a memorandum filed in the circuit court by plaintiff-appellant tells us more about its nature:

        29
        [T]he only reason plaintiff brings this suit against her husband is to avail herself of the insurance proceeds to cover her injuries. As a practical matter, the insurance company is the party who stands to lose if Mrs. Peters sues her husband and prevails. Family solidarity is not threatened by this lawsuit. There is no malice or spite in the lawsuit and the recovery will be limited to the extent of insurance proceeds available for personal injuries.
        30

        Since the collision involved a "U-Drive" vehicle, we can assume the insurance proceeds sought, at least in part, are those that might be payable under the liability portion of the insurance policy purchased by the lessor of the vehicle,[12] and the recovery of damages thereunder is still contingent upon a showing of defendant-appellee's fault.

        31
        1.
        32

        The precepts underlying the choice of law in the area of torts have undergone swift and dramatic changes. Until fairly recently, the widely accepted method of selection was a simple search for the law of the place of impact (lex loci delicti). R. Weintraub, supra, § 6.1, at 266-67. But as the inadequacy of "a single, rigid, territorially-oriented choice-of-law rule" for the vast range of tort problems was acknowledged, more complex approaches were developed. Id. [592] The development of alternatives to the "mechanical method" of lex loci delicti was fostered for the most part by legal scholars who advocated the adoption of more flexible analytical frameworks. R. Leflar, American Conflicts Law § 131, at 263-64 (3d ed. 1977). But a verdict on a generally acceptable "approach" to replace the unsatisfactory "rule" is yet to be returned by the scholarly jury.[13] The courts, likewise, have not agreed on what rule, set of rules, or approach works best, as they continue to rely on a variety of theories "more or less interchangeably, and in effect apply a sort of combination of them." R. Leflar, supra, § 131, at 264.

        33

        Professor David Cavers, an early critic of the traditional choice-of-law rules, found them unsatisfactory because "[t]he court must blind itself to the content of the law to which its rule or principle of selection points and to the result which that law may work in the case before it." Cavers, A Critique of the Choice-of-Law Problem, 47 Harv.L.Rev. 173, 180 (1933). He advocated instead, "a system leading to `principles of preference' based upon choice between laws rather than choice between jurisdictions." R. Leflar, supra, § 131, at 263.[14]

        34

        Also among the first to offer an alternative to lex loci delicti was Professor Brainerd Currie, and his analysis entailed a consideration of the "governmental interests" of the states whose laws might be applicable, but with a basic preference of the forum's own law.[15] At about the same time, the Restatement of Conflict of Laws was being revised under the auspices of the American Law Institute. Its draft document proposed what was officially called "the most significant relationship" test, otherwise referred to as the "center of gravity" or "dominant contacts" approach. R. Leflar, supra, § 131, at 263. Simply stated, the framework for analysis propounded by Restatement (Second) determines rights and liabilities in tort cases on the basis of "the local law of the state which ... has the most significant relationship to the occurrence and the parties.[16]

        35

        More recently, Professor Robert Leflar articulated a decision-reaching method governed by "fundamental policy factors identified [593] as choice-influencing considerations which are deemed to underlie all choice-of-law decision." R. Leflar, supra, § 131, at 264 (footnote omitted). And the factors he regards as fundamental are: (1) predictability of result, (2) maintenance of interstate order, (3) simplification of the judicial task, (4) advancement of the forum's governmental interests, and (5) application of the better rule of law. R. Leflar, supra, §§ 103-07.

        36

        The foregoing by no means constitutes a survey of legal thought in the area of our present concern. But the concepts embodied in the writings of Professors Cavers, Currie, and Leflar and in Restatement (Second) have had significant influence, and "[a]n assessment of the various interests of the states whose laws are in conflict has become the dominant mode of analysis in modern choice of law theory." Silberman, Shaffer v. Heitner: The End of an Era, 53 N.Y.U.L.Rev. 33, 80 n. 259 (1978).

        37
        2.
        38

        Stressing lex loci delicti's apparent demise, plaintiff-appellant argues for an adoption of the "dominant contacts" analysis of Restatement (Second). And an examination of the relevant contacts, she maintains, leads to an inescapable conclusion that lex domicilii is applicable here, for New York obviously has a greater interest in the marriage and welfare of the parties.

        39

        Defendant-appellee counters with statements that lex loci delicti is alive and well, we should not embark on a voyage in the "uncharted sea" of new approaches, and the traditional rule provides a desirable certainty and predictability of result. If we find the old rule unacceptable, he suggests we follow Arnett v. Thompson, 433 S.W.2d 109 (Ky. 1968), where adherence to the old rule was disclaimed but lex fori was nevertheless applied on the basis of the forum state's "sufficient contacts" with the action.[17]

        40

        Like plaintiff-appellant, we see no basis for the acceptance of lex loci delicti as a controlling rule at this point in the growth of American Conflicts law. Nor do we choose to adopt Kentucky's analysis in Arnett v. Thompson, supra, as a "formula," for that would wed us to an "approach" nearly as rigid as the unacceptable "rule." The preferred analysis, in our opinion, would be an assessment of the interests and policy factors involved with a purpose of arriving at a desirable result in each situation.

        41
        3.
        42

        Our legislature has indicated that interspousal tort actions should not be countenanced. We assume the rationale for maintaining this policy includes the preservation of marital harmony and the prevention of collusive suits. Legislative wisdom in New York, on the other hand, has concluded that the allowance of interspousal tort actions furthers the interests of the State and the welfare of its domiciliaries. The policy favors the recovery of tort damages by one spouse from the other at the risk of possible marital discord and collusive suits. As Mr. and Mrs. Peters are domiciled in New York, Hawaii's interest in promoting marital harmony pales in the light of New York's predominant interest in their marriage and welfare. Yet, there are other interests and factors to be considered.

        43

        Mrs. Peters could have addressed her plea for damages to the courts of her domicile, and it is likely they would have honored an attempt to prove her husband's fault and the resultant injury.[18] She nonetheless [594] chose to assert her claim in Hawaii, presumably with knowledge that the courts were subject to restraint where interspousal actions are concerned. But "[t]he forum, qua forum, has an interest in preserving the integrity and economy of its judicial process." R. Weintraub, supra, § 6.12, at 290.[19] And neither Hawaii's interest in discouraging possibly collusive actions nor the State's reluctance to have its tribunals entertain claims its residents are precluded from filing can be discounted in this instance.

        44

        Mrs. Peters also avers her suit was brought "to avail herself of insurance proceeds" and the "insurance company is the party who stands to lose if [she] ... prevails." That courts elsewhere have justified the abrogation of tort immunity on the prevalence of liability insurance in contemporary society has not escaped us. See, e.g., Immer v. Risko, 56 N.J. 482, 489, 267 A.2d 481, 485 (1970); Digby v. Digby, R.I., 388 A.2d 1, 3 (1978); see also Sorenson v. Sorenson, 369 Mass. 350, 362, 339 N.E.2d 907, 914 (1975). We are mindful that in a typical intrafamilial tort suit the insurer is "the true defendant," the "interests of the parties unite in favor of recovery and family harmony is assured instead of disrupted" thereby. Tamashiro v. De Gama, supra, 51 Haw. at 78, 450 P.2d at 1001. But in this case, the presence of insurance raises other considerations we cannot ignore.

        45

        We earlier noted the proceeds of the liability portion of an insurance policy purchased by the lessor of a "U-Drive" vehicle to comply with Hawaii's Motor Vehicle Accident Reparations Law most probably were at stake here. Among the reasons advanced for an application of lex domicilii in interspousal tort actions with insurance implications is that this "tends to fulfill the general expectations which either spouse's insurer may have held regarding capacity to sue and adjustment of premiums." Comment, Lewis v. Lewis: Dissolving the "Metaphysical" Merger in Interspousal Torts, 12 New Eng.L.Rev. 333, 350 (1976). See Ford, Interspousal Liability for Automobile Accidents in the Conflict of Laws: Law and Reason Versus the Restatement, 15 U.Pitt. L.Rev. 397 (1954). See also Johnson v. Johnson, 107 N.H. 30, 32-33, 216 A.2d 781, 783 (1966) (sustaining dismissal of an interspousal action through an application of lex domicilii in part because the insurance policy "was doubtless written with the laws of ... [the domicile] primarily in view").[20] Geography renders it impossible for "U-Drive" vehicles leased in Hawaii to be driven beyond the confines of our island state. And the insurance policies covering them undoubtedly are written with the laws of Hawaii in mind. To have New York law govern a tort action arising from the operation of such a vehicle would, of course, contravene the expectations of both insurer and lessor.

        46

        Where a state attracts the number of visitors that Hawaii does, it can be expected that many of them will lease "U-Drive" cars, some of them will be involved in accidents, and more than a few married persons will be injured as a result of their spouses' negligent operation of the vehicles. Our visitors are domiciled throughout the United States and in many foreign countries, and a reliance on the law of the domicile to determine the viability of interspousal actions would neither provide predictability of result nor simplify the judicial task. More importantly, any resulting significant increase in the number of tort actions entertained by our courts will adversely affect insurance premiums indirectly payable by [595] residents of Hawaii who lease "U-Drive" cars, though Hawaii couples remain bound by interspousal immunity and will not benefit from the judicial expansion of compulsory insurance coverage which would be responsible for the premium increase.[21]

        47

        Our Motor Vehicle Accident Reparations Law, basically a compulsory, no-fault insurance law, was enacted in 1973 to address problems related to motor vehicle liability insurance, including cost.[22] We cannot disregard the legislative effort to stabilize and reduce motor vehicle liability insurance premium rates. See note 22 supra. And a judicial decision that has a result of expanding insurance coverage for non-residents, partly at the expense of residents, would be at odds with that policy.

        48

        We recognize our decision is not in harmony with the declaration in Restatement (Second) that the applicable law in "intra-family immunity" situations "will usually be the local law of the state of the parties' domicil."[23] But considerations of public policy and the demonstrated interests of the State of Hawaii impel the approval of the circuit court's choice of lex fori over lex domicilii.

        49

        The award of summary judgment to defendant-appellee is affirmed.

        50

        [1] A survey of this court's decisions reveals we are without authoritative choice-of-law decisions in the area of torts. While there were choice-of-law implications in Kelley v. Kokua Sales & Supply, Inc., 56 Haw. 204, 532 P.2d 673 (1975), we did not find it necessary to engage in a detailed conflict-of-law analysis as the decision turned on the issue of foreseeability. See also Student Survey of Hawaii Conflict of Laws Cases and Statutes (University of Hawaii School of Law, Fall 1978) (unpublished, in University of Hawaii Law Library). Cf. Dashiell v. Keauhou-Kona Co., 487 F.2d 957, 960 (9th Cir.1973), and Gates v. P.F. Collier, Inc., 378 F.2d 888, 892 (9th Cir.1967), where the United States Court of Appeals for the Ninth Circuit found there were no Hawaii decisions governing the choice of law in tort cases and undertook to apply the conflict-of-laws rules generally applied by the courts in the country.

        51

        [2]This merger of identities has been described in these terms:

        52

        By marriage, the husband and wife are one person in law: (1) that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs everything; and is therefore called in our law-french a feme-covert, foemina viro co-operta; it is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage.

        53

        (Emphasis in the original). 1 W. Blackstone, Commentaries *442.

        54

        [3]Ch. IV, art. I, § IV of said Act read in part:

        55

        The wife, whether married in pursuance of this article or heretofore, or whether validly married in this kingdom or in some other country, and residing in this, shall be deemed for all civil purposes, to be merged in her husband, and civilly dead. She shall not, without his consent, unless otherwise stipulated by anterior contract, have legal power to make contracts, or to alienate and dispose of property — she shall not be civilly responsible in any court of justice, without joining her husband in the suit, and she shall in no case be liable to imprisonment in a civil action. The husband shall be personally responsible in damages, for all the tortuous [sic] acts of his wife; for assaults, for slanders, for libels and for consequential injuries done by her to any person or persons in this kingdom.

        56

        [4] See §§ 1286 and 1287, Civil Code of the Hawaiian Islands, 1859.

        57

        [5]Ch. XI, Laws of His Majesty Kalakaua I, passed by the Legislative Assembly of 1888 read in part as follows:

        58

        SECTION 1. The real and personal property of a woman shall, upon her marriage, remain her separate property, free from the management, control, debts and obligations of her husband; and a married woman may receive, receipt for, hold, manage and dispose of property, real and personal, in the same manner as if she were sole: Provided, however, that no sale or mortgage of her real estate shall be valid without the written consent of her husband.

        SECTION 2. A married woman may make contracts, oral and written, sealed and unsealed, in the same manner as if she were sole, except that she shall not be authorized hereby to make contracts for personal service without the written consent of her husband, nor to contract with her husband.

        ... .

        SECTION 5. A married woman may sue and be sued in the same manner as if she were sole; but this section shall not be construed to authorize suits between husband and wife.

        59

        [6] Hawaii still recognizes tenancies by the entirety in real property, which are predicated upon the legal unity of husband and wife. Sawada v. Endo, 57 Haw. 608, 612-13, 561 P.2d 1291, 1295 (1977); see HRS Chapter 509.

        60

        [7] But in Tugaeff v. Tugaeff, 42 Haw. 455 (1958), we acknowledged that the rule and its underlying notions were borrowed from the common law when we said the statute "preserves the common law prohibition based upon the concept of legal identity of husband and wife." Id. at 458.

        61

        [8]The Massachusetts statute, G.L., ch. 209, § 6, as amended by St. 1963, c. 765, § 2, read as follows:

        62

        A married woman may sue and be sued in the same manner as if she were sole; but this section shall not authorize suits between husband and wife except in connection with contracts entered into pursuant to the authority contained in section two.

        63

        [9]We do not foreclose the possibility of a modification of the rule in other contexts where there may be overriding policy or constitutional concerns, for the considerations supporting immunity are not the same in every adversary situation that may develop between husband and wife.

        64

        In Tamashiro v. De Gama, 51 Haw. 74, 450 P.2d 998 (1969), and Petersen v. City & County, 51 Haw. 484, 462 P.2d 1007 (1969), it was urged upon us that policy considerations similar to those supporting interspousal tort immunity also compelled an approval of parent-child immunity. We did not find the argument persuasive and did not adopt the doctrine. And in Tamashiro we said "[t]his holding, we caution, is limited to this adversary relationship because other intrafamily adversary situations may involve problems or considerations different from the one at hand." 51 Haw. at 79, 450 P.2d at 1002.

        65

        [10] S.L.H. 1978, c. 77. See also Hse.Stand. Comm.Rep.No. 309-78, in 1978 House Journal, at 1526, and Sen.Stand.Comm.Rep.No. 720-78, in 1978 Senate Journal, at 1088.

        66

        [11]The New York law reads in relevant part:

        67

        A married woman has a right of action against her husband for his wrongful or tortious acts resulting to her in any personal injury as defined in section thirty-seven-a of the general construction law, or resulting in injury to her property, as if they were unmarried, and she is liable to her husband for her wrongful or tortious acts resulting in any such personal injury to her husband or to his property, as if they were unmarried.

        68

        N.Y.Gen.Oblig.Law § 3-313(2) (McKinney 1978).

        69

        [12] Under the Hawaii Motor Vehicle Accident Reparations Law, HRS Chapter 294, no person may register a motor vehicle in the State unless it is insured under an insurance policy providing certain benefits designated as no-fault benefits in an amount not exceeding $15,000 and liability insurance coverage of not less than $25,000 for possible personal injury and $10,000 for possible property damage that may be sustained in the operation of the vehicle. SeeHRS §§ 294-3 and 294-10.

        70

        It can be assumed that plaintiff-appellant received her no-fault benefits in reimbursement of at least part of her medical and hospital expenses and wage loss and the instant suit is an attempt to obtain the proceeds of the liability portion of the no-fault policy.

        71

        [13] See Reese, Choice of Law: Rules or Approach, 57 Cornell L.Rev. 315 (1972), for a workable distinction between a "rule" and an "approach." In Professor Reese's view, a "rule" is "a phenomenon found in most areas of the law, namely a formula which once applied will lead the court to a conclusion," and an "approach" is "a system which does no more than state what factor or factors should be considered in arriving at a conclusion." Current legal thought appears to favor "approaches" over "rules."

        72

        [14]His complex approach has been described by another writer in these terms:

        73

        It was generally thought that he favored "justice in the individual case" and an almost "free law" approach, and that his method was result-selective, i.e. favored the application of the "better" of the two or more competing rules of substantive law.

        74

        Baade, Counter-Revolution or Alliance for Progress? Reflections on Reading Cavers, The Choice-of-Law Process, 46 Tex.L.Rev. 141, 143 (1967).

        75

        [15]Leflar describes the Currie approach as follows:

        76

        If the forum state has a socio-legal concern with or interest in the outcome of the case, its law should be applied; if the forum has no such interest it should apply the law of the state that does have an interest; if two other states both have an interest it should apply the law of the one that is most similar to the forum's law.

        77

        R. Leflar, supra, § 135, at 275 (footnote omitted).

        78

        [16] Restatement (Second) of Conflict of Laws§ 145 (1971) reads:

        79

        (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.

        (2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:

        (a) the place where the injury occurred,

        (b) the place where the conduct causing the injury occurred,

        (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and

        (d) the place where the relationship, if any, between the parties is centered.

        80

        These contacts are to be evaluated according to their relative importance with respect to the particular issue.

        81

        [17] In Arnett v. Thompson, supra, the Supreme Court of Kentucky rejected lex loci delicti as the controlling rule and substituted a "sufficient contacts" analysis which resulted in an application of its own rule of tort immunity to an interspousal action involving an Ohio couple and an accident occurring in Kentucky.

        82

        [18] While a reading of earlier decisions like Mertz v. Mertz, 271 N.Y. 466, 3 N.E.2d 597 (1936), and Coster v. Coster, 289 N.Y. 438, 46 N.E.2d 509 (1943), would cast some doubt on whether Mrs. Peters' suit would be entertained by the courts of New York, subsequent decisions like Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963), and Keller v. Greyhound Corp., 41 Misc.2d 255, 244 N.Y.S.2d 882 (1963), indicate the earlier cases probably do not reflect good law now.

        83

        [19] See also R. Weintraub, supra, § 6.12, at 291, and Baker v. Gaffney, 141 F. Supp. 602 (D.D.C. 1956), where the federal district court sitting in Washington, D.C. ruled, on the basis of the common law followed by the courts of the District of Columbia, that an interspousal suit stemming from an accident that occurred in New York could not be maintained, noting the lack of "necessary procedural machinery" for its adjudication.

        84

        [20]The court's statement in this regard was:

        85

        If the defendant garaged his car in Massachusetts, probably he had obtained insurance there, and this insurance was doubtless written with the laws of Massachusetts primarily in view. The application of New Hampshire law would expose his insurer to a greater risk than it might reasonably have expected to run, given the Massachusetts local law and the trend toward the choice of the domicile's interspousal law in interstate cases.

        86

        107 N.H. at 32-33, 216 A.2d at 783.

        87

        [21] Hawaii's geographical configuration compels its residents to lease "U-Drive" vehicles frequently, even while they remain in Hawaii.

        88

        [22]Hse.Stand.Comm.Rep.No. 187, in 1973 House Journal, at 836, states the purpose of H.B.No. 637, subsequently approved as S.L.H. 1973, c. 203, as follows:

        89

        The purpose of this bill is to amend the existing motor vehicle insurance laws as they relate to tort liability arising out of the maintenance or use of a motor vehicle with two primary objectives in mind: (1) insurance reform in order to (a) expedite the settling of all claims, (b) create a system of reparations for injuries and loss arising from motor vehicle accidents, (c) compensate these damages without regard to fault, and (d) modify tort liability for these accidents; and (2) to establish a system of reasonable cost of motor vehicle insurance with a view to reducing such cost.

        90

        Sen.Conf.Comm.Rep.No. 4, in 1973 Senate Journal, at 635, states the purpose of H.B. No. 637 in these terms:

        91

        The purpose of this bill, as amended herein, is to amend existing motor vehicle insurance laws as they relate to tort liability arising out of the ownership and use of motor vehicles.

        Your Committee is of the belief that a basic, comprehensive, equitable, and reasonably priced auto insurance policy must satisfy each of the following criteria:

        (1) Provide for a speedy, adequate and equitable reparation for those injured or otherwise victimized;

        (2) Provide for the stabilization and reduction of motor vehicle liability insurance premium rates;

        (3) Provide for insurance coverage for all who require it, at a cost within the reach of every licensed driver;

        (4) Provide for a compulsory insurance system;

        (5) Provide for adequate regulatory control.

        92

        [23] Restatement (Second) of the Conflict of Laws(1971) provides in pertinent part:

        93

        § 169. Intra-Family Immunity

        (1) The law selected by application of the rule of § 145 determines whether one member of a family is immune from tort liability to another member of the family.

        (2) The applicable law will usually be the local law of the state of the parties' domicil.

    • 2.2 §1.3.2.2 Restrained interpretation

      • 2.2.1 Thoring v. Bottonsek

        1
        350 N.W.2d 586 (1984)
        2
        Morris THORING, as Personal Representative of the Estate of Patty Jean Thoring, Morris Thoring as the Conservator and Guardian of Shawn Michael Thoring, Plaintiff and Appellee,
        v.
        Michael J. BOTTONSEK, Defendant,
        Earl L. LaCounte and Janice C. LaCounte, d/b/a Lenny's Bar, Bainville, Montana, Defendants and Appellants.
        3
        Civ. No. 10555.
        4

        Supreme Court of North Dakota.

        5
        May 23, 1984.
        6

        [587] Bjella, Neff, Rathert, Wahl & Eiken, Williston, for plaintiff and appellee; argued by William M. McKechnie, Williston.

        7

        Zuger & Bucklin, Bismarck, for defendants and appellants; argued by Patrick J. Ward, Bismarck, Lyle W. Kirmis, Bismarck, on brief.

        8
        PEDERSON, Justice.
        9

        This wrongful death action is before us pursuant to Rule 54(b), North Dakota Rules of Civil Procedure.[1] Defendant Lenny's Bar (Lenny's) appeals from the trial court's partial summary judgment and order, wherein the court concluded as a matter of law that it had personal jurisdiction over Lenny's and that North Dakota's dram shop act as codified at § 5-01-06, North Dakota Century Code, can be applied to assess liability against a Montana bar. Lenny's contends that as a matter of law it lacked sufficient minimum contacts with North Dakota for this state to assert personal jurisdiction under the long-arm provisions of Rule 4(b), NDRCivP. Lenny's also asserts that North Dakota's dram shop act has no extraterritorial effect. For the reasons stated below, we conclude that the trial court erred in determining that a Montana bar could be liable under North Dakota's dram shop act and that it is unnecessary for us to address the personal jurisdiction issue.

        10

        On the evening of September 19, 1980, Michael J. Bottonsek (Bottonsek) and his brother Patrick drove from Williston, North Dakota, to Bainville, Montana with Patty Jean Thoring and Jolene McGillis, ostensibly to celebrate Miss McGillis's birthday. Bainville is a small town about twenty-four miles from Williston and eight miles west of the North Dakota border. Lenny's is owned and operated by Montana residents Earl L. LaCounte and Janice C. LaCounte. It is located in Bainville and is regulated by Montana's licensing and liquor control laws.

        11

        At the time material to this action, Montana's legal drinking age was nineteen and North Dakota's was twenty-one. Both Patty Jean Thoring and Jolene McGillis were under twenty-one on September 19, 1980, when some or all members of the Bottonsek party consumed intoxicating beverages at Lenny's.

        12

        Returning from Bainville to Williston in the early morning hours of September 20, 1980, Bottonsek drove his vehicle on the wrong side of a divided highway just outside Williston and collided head-on with a vehicle driven by Harold Nehring. Miss Thoring, Miss McGillis and Mr. Nehring all died from the collision. Morris Thoring (Thoring), as personal representative of Patty Jean Thoring's estate and as conservator and guardian of Patty Jean Thoring's minor son, Shawn Michael Thoring, brought this wrongful death action against Bottonsek and Lenny's.

        13

        Thoring's complaint alleged that Lenny's was specifically liable under the North Dakota Civil Damage Act, § 5-01-06, NDCC (dram shop act),[2] as well as under the laws and statutes of Montana and the common law of North Dakota and Montana. Lenny's answer raised several affirmative defenses, [588] among them failure to state a claim and lack of personal jurisdiction. Lenny's then moved for summary judgment on the issue of personal jurisdiction or, in the alternative, for partial summary judgment on the issue of the extraterritorial effect of North Dakota's dram shop act. The trial court ruled against Lenny's on both issues and Lenny's appealed to this court. The record on appeal consists of depositions, affidavits and other supporting documents filed with the motion for summary judgment.

        14

        It is important to note that while Montana imposes criminal liability on tavern keepers who violate its liquor control laws, it has no statutory provision that imposes civil liability on tavern keepers for injuries that result from furnishing intoxicating beverages to a minor or to a person who is already intoxicated. The Montana Supreme Court has so far declined to fashion a common law liability for tavern keepers or social hosts in dram shop situations.[3] If we assume that North Dakota has personal jurisdiction over Lenny's, unless our dram shop act has extraterritorial effect, for all intents and purposes Thoring would have no remedy in a North Dakota court. Common law has been superseded by the dram shop act. See § 1-01-06, NDCC. The only way Lenny's could be held liable would be under Montana common law which can only be created by a Montana court.

        15

        Can North Dakota's dram shop act be applied beyond our borders to hold a Montana bar owner liable for injuries to North Dakota residents resulting from an automobile accident that occurred in North Dakota? This court has not previously had the opportunity to consider that question. Other jurisdictions have confronted the problem and we may look to their decisions for guidance.

        16

        The federal district court in North Dakota has considered the dram shop act in a conflict-type situation, but the real issue in that case concerned choice of law. See Trapp v. 4-10 Investment Corporation, 424 F.2d 1261 (8th Cir.1970). In Trapp, a Fargo liquor store sold beer to Minnesota minors. The purchasers and other minors then consumed the beer at a keg party at a Minnesota lake cottage. One of the minors was shortly thereafter involved in an automobile collision in Moorhead, Minnesota. The court concluded that North Dakota would apply its own dram shop act under the facts present in that case and commented that the result would not contravene the interests or policies of Minnesota, which also had a dram shop act. Id. at [589] 1265. Holding a North Dakota liquor store proprietor liable under North Dakota's dram shop act for injuries sustained in an accident occurring in Minnesota, which would also hold the proprietor liable had the sale occurred in that state, differs considerably from the instant case where the sale took place in Montana, a state which would not impose civil liability on the proprietor.

        17

        A general discussion on the extraterritorial application of dram shop acts can be found in the annotation at 2 A.L.R.4th 952 (1980). The annotation does not contain any case where one state's dram shop statute has been applied to hold an out-of-state liquor vendor liable absent a dram shop statute or common law liability in the vendor's state. The parties have not cited such a case and our own research has not revealed any.

        18

        When the injury or death occurs outside the state of sale, some jurisdictions refuse to impose liability under the dram shop act of the place of sale even when the place of sale is the forum state. Thus Illinois will not give its dram shop act extraterritorial effect when the sale takes place in Illinois but the injuries are sustained outside Illinois. See, e.g., Waynick v. Chicago's Last Dept. Store, 269 F.2d 322 (7th Cir.1959), cert. denied, 362 U.S. 903, 80 S.Ct. 611, 4 L.Ed.2d 554 (1960); Graham v. General U.S. Grant Post No. 2665, V.F.W., 43 Ill.2d 1, 248 N.E.2d 657 (1969); Butler v. Wittland, 18 Ill.App.2d 578, 153 N.E.2d 106 (1958); Eldridge v. Don Beachcomber, Inc., 342 Ill.App. 151, 95 N.E.2d 512 (1950).

        19

        Other courts have held that the dram shop acts of the states where the sales took place determine the liabilities and rights of the parties, even when the injuries are sustained in a state other than the one of sale. Trapp, supra, presumably falls into this category. Those decisions giving apparent extraterritorial effect to the dram shop act of the state where the sale took place mostly did so by abandoning lex loci delicti as a choice of law rule when its application would preclude recovery.[4] This resulted in applying the law of the state of sale to the vendor rather than in giving that dram shop act extraterritorial effect. See, e.g., Zucker v. Vogt, 329 F.2d 426 (2d Cir.1964); Osborn v. Borchetta, 20 Conn.Supp. 163, 129 A.2d 238 (1956); Schmidt v. Driscoll Hotel, Inc., 249 Minn. 376, 82 N.W.2d 365 (1957). Unlike the instant case, in all these cases the state of sale had a dram shop act.

        20

        The few cases that have imposed civil liability on a seller of alcoholic beverages in one state for injuries sustained in another state have done so on the basis of common law negligence liability, not on the basis of statutory dram shop liability. See Blamey v. Brown, 270 N.W.2d 884 (Minn.1978), cert. denied, 444 U.S. 1070, 100 S.Ct. 1013, 62 L.Ed.2d 751 (1980), and Bernhard v. Harrah's Club, 16 Cal.3d 313, 546 P.2d 719, 128 Cal.Rptr. 215 (1976), cert. denied, 429 U.S. 859, 97 S.Ct. 159, 50 L.Ed.2d 136 (1976).

        21

        California first imposed dram shop liability based on common law negligence principles in Vesely v. Sager, 5 Cal.3d 153, 486 P.2d 151, 95 Cal.Rptr. 623 (1971), a case which did not involve a choice of law situation.

        22

        In Bernhard, 128 Cal.Rptr. at 222, 546 P.2d at 726, the California Supreme Court noted that a violation of the California criminal law making it a misdemeanor to sell liquor to intoxicated persons could not be used as a basis for imposing civil liability on a Nevada resident. The court then used the governmental interest analysis approach, which goes beyond significant contacts, to resolve the choice of law issue and applied California common law dram shop liability to hold the Nevada tavern owner liable to a California resident for damages resulting from a California automobile collision. Nevada, like Montana, did not permit recovery from a tavern keeper.

        23

        The California Supreme Court later extended the common law dram shop liability [590] to include social hosts and other noncommercial providers of alcoholic beverages. Coulter v. Superior Court of San Mateo County, 21 Cal.3d 144, 577 P.2d 669, 145 Cal.Rptr. 534 (1978).

        24

        Although this liberal extension of common law negligence liability has not been judicially abrogated by the California Supreme Court, it has for all intents and purposes been legislatively overruled, as a California appellate court noted. Cable v. Sahara Tahoe Corporation, 93 Cal.App.3d 386, 155 Cal.Rptr. 770 (1979). The court in Cable refused to allow a California resident recovery from a Nevada corporate tavern keeper for injuries resulting from a Nevada accident. Cable can be factually distinguished from both Bernhard and the instant case because the state of sale and the state of the accident were the same. The opinion is valuable, however, for its extensive discussion of the history of California and Nevada dram shop liability.

        25

        The court in Cable noted that the only source of a California policy of protecting California residents injured by intoxicated persons who were sold or furnished alcoholic beverages outside California is the California Supreme Court's statement in Bernhard. The court concluded that the policy statement was expressly repudiated by the California legislature when it amended § 25602 of the Business and Professions Code to eliminate civil liability and § 1714 of the Civil Code to prohibit liability of any social host. Both amendments contained strong statements of intent to nullify the decisions in the Vesely, Bernhard and Coulter cases. Cable, 155 Cal.Rptr. at 773, 777.

        26

        The Blamey case, supra, is factually similar to the Thoring situation. Two Minnesota minors drove from the Twin Cities to Hudson, Wisconsin, where they purchased beer at a small neighborhood bar. The bar had no connection with Minnesota other than its proximity to the state border, the interstate highway and the large urban sprawl of metropolitan Minneapolis-St. Paul. After the minors returned to Minnesota the car was involved in a one-car accident. The injured passenger sued the Wisconsin liquor establishment.

        27

        The Minnesota Supreme Court determined that it had personal jurisdiction over the nonresident bar owner in Blamey and then imposed liability on the Wisconsin bar owner by finding common law negligence in making an illegal sale. It specifically denied the application of Minnesota's dram shop act to a non-Minnesota vendor. Blamey, 270 N.W.2d at 889-90. Blamey, and its precedent, Anderson v. Luitjens, 311 Minn. 203, 247 N.W.2d 913 (1976), have since been overruled on the personal jurisdiction issue by West American Insurance Company v. Westin, Inc., 337 N.W.2d 676 (Minn.1983).

        28

        In West American an eighteen-year-old Minnesota resident drove to a Wisconsin border city bar and on her return was involved in an accident in Minnesota. Minnesota's drinking age was nineteen and Wisconsin's was eighteen. Her insurer settled claims on her behalf and then brought action in Minnesota against the Wisconsin vendor for contribution or indemnity, alleging common law negligence in the making of an illegal sale. The Wisconsin vendor moved to dismiss for lack of personal jurisdiction and for failure to state a claim upon which relief can be granted. Because the court determined there was no personal jurisdiction it never reached the second issue.

        29

        Respect for territoriality and the integrity of state sovereignty, a primary consideration in determining the existence of personal jurisdiction, is also a factor in choice of law determinations. See Blamey, 270 N.W.2d at 890-91. The court in West American did not have to specifically confront the issue of which state's dram shop law applied, but dicta in the opinion substantially weakens Thoring's reliance on that portion of Blamey which has not been overruled. Noting that the difference between Minnesota and Wisconsin dram shop liability meant that Minnesota was the only forum where a remedy was available, the Minnesota Supreme Court said that fact was unfortunate but it was not sufficient [591] to confer jurisdiction upon Minnesota courts. West American, 337 N.W.2d at 681. So, too, it is not sufficient to give North Dakota's dram shop act extraterritorial effect.

        30

        A Wisconsin appellate court apparently shares this view and has refused to enforce a Minnesota judgment imposing dram shop liability on a Wisconsin bar for the sale of alcoholic beverages in Wisconsin. The injury-producing accident occurred in Minnesota. Citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), and West American, the Wisconsin court stated that "Minnesota is not entitled to export its public policy to Wisconsin, a coequal sovereign.... The judgment also would no longer be enforced in Minnesota.... Jurisdiction for this judgment was based on Minnesota Supreme Court decisions that have since been overruled." Hennes v. Loch Ness Bar, 117 Wis.2d 397, 344 N.W.2d 205, 206 (1983).

        31

        Thoring urges us to follow the rulings of the California Supreme Court in Bernhard and of the Minnesota Supreme Court in Blamey as persuasive authority for extending our dram shop act's application to impose civil liability on a Montana vendor. We decline to do so. Those cases not only imposed liability on the basis of common law negligence rather than on the basis of a dram shop statute, but also specifically disavowed the extraterritorial application of their respective dram shop statutes. Furthermore, the viability of both Bernhard and Blamey is very much in doubt because of subsequent legislative and judicial action.

        32

        We conclude that North Dakota's dram shop act as codified at § 5-01-06, NDCC, has no extraterritorial effect under the circumstances here where the sale took place outside of North Dakota, and that the trial court erred when it held as a matter of law that § 5-01-06 applies to Lenny's. Our holding today is strictly limited to the determination that North Dakota's dram shop act applies only to North Dakota vendors. We make no determination regarding the possibility of the Montana court reconsidering its previous rulings.

        33

        We recognize that in the usual situation a court must consider whether or not it has jurisdiction before it considers the applicability of a statute. In the instant case, however, our determination that North Dakota's dram shop act applies only to North Dakota vendors is dispositive of the appeal, making it unnecessary for us to reach the issue of personal jurisdiction. As we have stated previously, "questions, the answers to which are not necessary to the determination of a case, need not be considered." Hospital Services v. Brooks, 229 N.W.2d 69, 71 (N.D.1975).

        34

        Reversed.

        35
        ERICKSTAD, C.J., and GIERKE, SAND and VANDE WALLE, JJ., concur.
        36

        [1] Rule 54(b) authorizes the trial court to direct the entry of a final judgment as to one or more but fewer than all of the claims presented in an action upon an express determination that there is no just reason for delay.

        37

        [2]The language of § 5-01-06, NDCC, in effect at the time this action was commenced is:

        38

        "5-01-06. Recovery of damages resulting from intoxication.—Every wife, child, parent, guardian, employer, or other person who shall be injured in person, property or means of support by any intoxicated person, or in consequence of intoxication, shall have a right of action against any person who shall have caused such intoxication by disposing, selling, bartering, or giving away alcoholic beverages contrary to statute for all damages sustained."

        39

        The section was amended by the 1983 Legislative Assembly to correct sex discriminatory language and to make special reference to the damages to which the survivors are entitled if death results. Those changes do not affect the disposition of this appeal.

        40

        [3] A Montana federal district court, in the absence of any controlling Montana Supreme Court authority, held that under the particular circumstances of the case before it, the sale and serving of liquor to an Air Force person in violation of Montana law was a proximate cause of the automobile accident and resulting injuries to the plaintiff passenger. Deeds v. United States, 306 F.Supp. 348 (D.Mont.1969). More recently, the Montana Supreme Court has ignored, distinguished or chosen not to follow the federal district court's example in Deeds. In a wrongful death action against a bar for the death of a 17-year-old girl who drowned in a creek adjacent to a parking lot the court agreed with the bar's contention that the plaintiff could not recover anything because the proximate cause of the girl's death was her voluntary intoxication and failure to exercise due care for her own safety. Folda v. City of Bozeman, 177 Mont. 537, 582 P.2d 767 (1978). The deceased patron's contributory negligence in becoming intoxicated was also held to preclude any possible recovery from the bar owners in Swartzenberger v. Billings Labor Temple, 179 Mont. 145, 586 P.2d 712 (1978), although the court apparently left open the possibility that a bar keeper's serving of intoxicating beverages could constitute negligence per se under some circumstances. In Runge v. Watts, 180 Mont. 91, 589 P.2d 145 (1979), the court held that the sanctions for violations of Montana's liquor laws did not create a civil cause of action in favor of third persons injured as a result of a minor having been furnished alcoholic beverages. While it is arguable that the decision in Runge is limited to situations where social hosts furnish alcoholic beverages to minors, dicta indicates otherwise. The Montana Supreme Court remarked that its recent holdings (in Folda and Swartzenberger) affirmed its statement of the law that "the seller of intoxicant is not liable in tort for the reason that his act is not the efficient cause of the damage. The proximate cause is the act of him who imbibes the liquor." Runge, 589 P.2d at 147, citing Nevin v. Carlasco, 139 Mont. 512, 515-16, 365 P.2d 637, 639 (1961).

        41

        [4] This court abandoned "lex loci delicti" and adopted the "significant-contacts" rule in Issendorf v. Olson, 194 N.W.2d 750 (N.D.1972).

      • 2.2.2 Beard v. Viene

        1
        826 P.2d 990 (1992)
        2
        Jo Anne BEARD and Bradley C. Brockman, Plaintiffs,
        v.
        Donna Marie VIENE and the City of Kansas City, Missouri, Defendants.
        3
        No. 77023.
        4

        Supreme Court of Oklahoma.

        5
        February 25, 1992.
        6

        John H. Tucker, William S. Leach, Rhodes, Hieronymus, Jones, Tucker & Gable, Tulsa, and Michael R. Conner, Stanley C. Fickle, and Arend J. Abel, Barnes & Thornburg, Indianapolis, Ind., for plaintiffs.

        7

        W. Michael Hill, Melvin C. Weiman, and Edward J. Main, Tulsa, for defendants.

        8
        [991] OPALA, Chief Justice.
        9

        The United States District Court for the Northern District of Oklahoma certified for this court's answer the following question posed pursuant to the Uniform Certification of Questions of Law Act, 20 O.S. 1981 §§ 1601 et seq.: Whether, as a matter of interstate comity, the State of Oklahoma will recognize and enforce a limitation on the tort liability of a municipality of a sister state pursuant to the law of that sister state, when the limitation on tort liability to be recognized and enforced is identical in amount to the limitation of tort liability for Oklahoma municipalities imposed under Oklahoma law?

        10

        As qualified by our analysis below, we answer in the affirmative and hold that, under the principle of comity, Oklahoma will recognize a limitation on the municipal tort liability of a sister state.

        11
        ANATOMY OF FEDERAL LITIGATION
        12

        The plaintiffs, Jo Anne Beard and Bradley C. Brockman [Beard and Brockman], are citizens and residents of the State of Illinois. The defendant, the City of Kansas City, Missouri [Kansas City], is a municipal corporation, organized and existing under the laws of the State of Missouri. And the defendant, Donna Marie Viene [Viene], was an employee of Kansas City through its Parks and Recreation Department. While in a vehicle owned by Beard and operated by Brockman on March 5, 1989, Beard and Brockman were injured in an automobile collision with Viene who, in the course of her employment, was driving a vehicle owned by Kansas City. The collision occurred on the Will Rogers Turnpike in Ottawa County, Oklahoma, near mile marker 328.4, approximately 15.4 miles east of the City of Miami, Oklahoma. Beard and Brockman commenced separate actions in the United States District Court for the Eastern District of Oklahoma, which were later transferred to the Northern District of Oklahoma and consolidated. Kansas City sought a "partial summary judgment" asserting that (1) as shown by Mo. Rev. Stat. [992] § 537.600,[1] the State of Missouri adheres to the doctrine of governmental tort immunity; (2) by the terms of Mo. Rev. Stat. § 537.600(1), the immunity of the political subdivisions of the State of Missouri is waived, except to the extent provided for in Mo. Rev. Stat. § 537.610,[2] which limits recovery for tort liability arising out of a single transaction involving the negligent operation of a motor vehicle by an employee in the course of their employment, to the statutory maximum of $100,000.00 per person; (3) Oklahoma's Governmental Tort Claims Act[3] contains a similar limitation on the [993] tort liability of its political subdivisions; and (4) because the State of Oklahoma recognizes a limitation on municipal tort liability and inasmuch as Kansas City is a defendant in an adjudicative proceeding in the State of Oklahoma, the principle of comity dictates that Oklahoma recognize the limitation on the municipal tort liability of Kansas City by precluding recovery in excess of Missouri's statutory maximum.

        13
        ANALYSIS, DISCUSSION AND ANSWER
        14

        At the outset, we encounter certain semantical difficulties in the language of the certified question.[4] First, the statutory limitations on municipal tort liability in Oklahoma and Missouri are not identical. Title 51 O.S.Supp. 1988 § 154(A)(1) establishes a $25,000.00 cap on the recoverability by any one person for property damage arising out of a single transaction.[5] In addition, 51 O.S.Supp. 1988 § 154(A)(2) establishes a $100,000.00 cap on the recoverability by any one person for bodily injuries arising out of a single transaction.[6] These two provisions operate to provide a maximum recoverable tort liability of $125,000.00 by any one person. This is in contradistinction to the maximum recoverable tort liability (for property and bodily damage) of $100,000.00 under the applicable Missouri statutes.[7]

        15

        Second, in the context in which they are used, the terms "recognize" and "enforce" appear ambiguous. At one level of discourse, the term "recognize" assumes the existence of a dispositive rule of law that is both valid and applicable. At the other level, the term "recognize" denotes not merely an assumption that there exists a dispositive rule of law, but an inquiry into whether a normative rule of law in fact exists and is applicable to a particular dispute, which in this instance would necessitate a substantial examination into the content of Missouri law, needlessly embroiling this court in the merits of the parties' action.[8] Against this latter interpretation, we narrowly construe the term "recognize" to assume, without deciding, the dispositive character of the limitation on the municipal tort liability of Kansas City in the State of Missouri.[9]

        16

        As a juristic concept, enforcement is an exercise of power concomitant with sovereignty. But the term "enforce" also implies that a foreign rule of law is capable of being enforced in the courts of a second, distinct sovereign power. While this statement merely recognizes the well-settled rule that the courts of a sovereign state may enforce the laws of another sovereign [994] state,[10] such a rule is inapplicable as an analytical foundation for an answer to the posited question. Rather, the conceptual predicate is one of respecting the "limitations on ... [Missouri's], statutory waiver of its immunity from suit."[11] In the courts of Oklahoma, this respect is afforded and applied solely, if at all, as a matter of comity. The characterization of applying a limitation on the municipal tort liability of a sister state under principles of comity as "enforcement" is simply inapposite.

        17

        The question certified for our answer presents a matter of relatively recent development in American jurisprudence.[12] Where nearly every state has to some extent waived the traditional doctrine of sovereign immunity in its own courts to permit recovery for governmental torts, the "privilege of immunity" afforded in the courts of sister states has been brought to fore front,[13] implicating in the process the very fundaments of "Our Federalism." Ultimately, the resolution of this question reposes in the interstices of the common-law principle of comity, contemporary approaches to conflict-of-laws analysis, and the full faith and credit clause of the United States Constitution.[14] But absent a legislative mandate from Congress or definable guidelines from the United States Supreme Court, courts have been left the task of establishing parameters for such questions through the jurisprudence in the respective states.

        18

        As a matter of decisional law,[15] Oklahoma subscribes to the principle of comity, where comity seeks "to reconcile the territoriality (sovereignty) of states with the need for consideration of foreign law in appropriate cases."[16] But that Oklahoma subscribes to the principle of comity is not [995] dispositive as to its application in all instances; i.e., that comity is the principle with which to resolve certain multistate situations is not the end, but the beginning of the analytical process. Accordingly, our determination to apply the laws of Missouri and to extend the benefits of that state's immunity in the courts of Oklahoma must depend on a careful balancing of multiple factors. Under this formulation, § 145 of the Restatement of Conflict of Laws provides the guiding rule.[17]

        19

        "[W]ith respect to an issue in tort," this section, according to its express language, is an effectuating provision, designed to attain the underlying choice-of-law principles stated in § 6 of the Restatement.[18] Generally characterized as the "most significant relationship" test, § 145 requires a court to weigh the relative contacts in order to determine the applicable substantive law in a rational fashion.[19] Consistently with this approach, we must evaluate not only the four listed factors, but also, other more dispositive factors in determining the "most significant contacts."

        20

        The first two factors of § 145, place of injury and place of conduct causing injury, [996] both point to Oklahoma law, since both of these elements occurred in Oklahoma. In addition, the last factor, place where parties' relationship is centered, is wholly irrelevant to the present inquiry, leaving the third factor, nationality of the parties, for our analysis."[20]

        21

        Admitting the relevance of § 145(c), we can conceive of no greater "significant contact" than where a state or its political subdivision is a party defendant. Moreover, recognizing that the Restatement's textually demonstrable criteria are not the exclusive yardstick for assessment of all contacts, we note that certain quanta of significance must also attach to a governmental employee engaged in a governmental mission in the furtherance of a governmental purpose. These conjoined contacts, although not dispositive, are substantial factors in the evaluation matrix.

        22

        As earlier mentioned, § 145 is an effectuating provision. While the stated principles of § 6 of the Restatement are the target of § 145, they also express readily identifiable criteria for our evaluation. As the comments to § 6 indicate, the "needs of the interstate ... system[]"[21] are substantial factors in the resolution of choice-of-law problems.[22] Under this criterion, courts often will give deference to the needs and policies of sister states,[23] recognizing always "[t]he intimate union of these states, as members of the same great political family."[24] Indeed, these factors are all the more compelling when considered in the context of the principle of comity, where the underlying justifications of the principle are little more than overt expressions of the political necessity to "foster cooperation, promote harmony, and build goodwill"[25] among the states. Moreover, such a rule of accommodation has the secondary effects of promoting predictability, uniformity,[26] and reciprocity among the states.

        23

        Of the evaluative criteria listed in § 6 of the Restatement, "the relevant policies of the forum"[27] and "the relevant policies of other interested states"[28] are the most determinative for our consideration. That both the State of Oklahoma and the State of Missouri statutorily limit recoverability for municipal tort liability is uncontrovertible.[29] Where a state legislature, subject to constitutional constraints, promulgates legislation which delineates the permissible limits on waiver of the "privilege of immunity," that legislation unequivocally constitutes the public policy of the state.[30] Indeed, in the case of Oklahoma, we can conceive of no more eloquent statement of her public policy than where a [997] common-law doctrine is revived by the legislature after its abrogation by the courts.[31]

        24

        While there is nothing in the statutory language to indicate the Oklahoma legislature's intent to apply extraterritorially the Governmental Tort Claims Act,[32] there is an obvious intent to limit recoverability for the torts of the state and its political subdivisions.[33] Whether claims be prosecuted in the court of Oklahoma or in those of a sister state, Oklahoma's interest, as embodied in the Act, lies in limiting recoverability to the statutorily specified maximum. Given this express statement of policy, a rule which extends to the State of Missouri the benefit of her own recovery limit not only fosters cooperation and promotes harmony between our two states, but also may be seen as a measure to effectuate the intent of the Oklahoma legislature in promulgating the Governmental Tort Claims Act.[34]

        25

        Against these criteria, we must balance "the basic policies underlying the particular filed of law."[35] From its earliest beginnings, one of the primary objectives of the common law has been to redress civil wrongs.[36] And in no small way, the common law has continued its advance against civil wrongs through the development of an entire field of jurisprudence — the law of torts.[37] Redress for harm from negligent acts is a policy objective firmly entrenched in the common law of every state. But even more deeply rooted in the history of our Anglo-American legal tradition has been the doctrine of sovereign immunity.[38]

        26

        Adopted in the early days of our republic,[39] the doctrine has been, in one form or another, embedded in American jurisprudence. And although many inroads have been crafted, most jurisdictions continue to retain, either as a matter of their common law or through legislative enactments, some vestiges of the traditional doctrine. In the face of explicit legislation limiting the waiver of the "privilege of immunity" to preclude recoverability for municipal tort liability in excess of the statutorily specified amount, it is now too late for this court to assess the wisdom of that policy determination.[40] On balance, we cannot say that "the basic policies underlying the particular field of law"[41] outweigh the other [998] evaluative criteria.[42] Accordingly, under the principle of comity, Oklahoma will "recognize" the recovery limit on the municipal tort liability of the State of Missouri, affording deferential respect to the applicable Missouri statutes.[43]

        27

        CERTIFIED QUESTION ANSWERED.

        28
        LAVENDER, DOOLIN, HARGRAVE, ALMA WILSON, KAUGER and SUMMERS, JJ., concur.
        29
        SIMMS, J., concurs in judgment.
        30
        HODGES, V.C.J., dissents.
        31

        [1]MO. REV. STAT. § 537.600 (1985) provides in part:

        32

        "537.600 Sovereign immunity in effect — exceptions — waiver of

        "1. Such sovereign or governmental tort immunity as existed at common law in this state prior to September 12, 1977, except to the extent waived, abrogated or modified by statutes in effect prior to that date, shall remain in full force and effect; except that, the immunity of the public entity from liability and suit for compensatory damages for negligent acts or omissions is hereby expressly waived in the following instances:

        (1) Injuries directly resulting from the negligent acts or omissions by public employees arising out of the operation of motor vehicles or motorized vehicles within the course of their employment;

        * * * * * *

        2. The express waiver of sovereign immunity in the instances specified in subdivisions (1) and (2) of subsection 1 of this section are absolute waivers of sovereign immunity in all cases within such situations whether or not the public entity was functioning in a governmental or proprietary capacity and whether or not the public entity is covered by a liability insurance for tort."

        33

        The quoted portions were not changed by a subsequent amendment to the statute (L. 1989, H.B. No. 161, § A, eff. July 14, 1989).

        34

        [2]MO. REV. STAT. § 537.610 (1978) provides in part:

        35

        "537.610 Liability insurance for tort claims may be purchased, by whom — limitations on waiver of immunity — apportionment of settlements

        "1. * * * Sovereign immunity for the state of Missouri and its political subdivisions is waived only to the maximum amount of and only for the purposes covered by such policy of insurance purchased pursuant to the provisions ... provided in any self-insurance plan duly adopted by the governing body of any political subdivision of the state.

        2. The liability of the state and its public entities on claims within the scope of sections 537.600 to 537.650, shall not exceed eight hundred thousand dollars for all claims arising out of a single accident or occurrence and shall not exceed one hundred thousand dollars for any one person in a single accident or occurrence, * * *"

        36

        A 1989 amendment substituted "one million dollars" for "eight hundred thousand dollars" in subsec. 2 (L. 1989, H.B. No. 161, § A, eff. July 14, 1989).

        37

        [3]The Governmental Tort Claims Act is codified in 51 O.S. 1981 §§ 151 et seq.

        38

        The terms of 51 O.S.Supp. 1987 § 152 provided in pertinent part:

        39

        "As used in this act, Section 151 et seq. of this title:

        * * * * * *

        7. `Municipality' means any incorporated city or town, and all institutions, agencies or instrumentalities of a municipality... .

        8. `Political subdivision' means:

        a. a municipality;

        * * * * * *

        and all their institutions, instrumentalities or agencies."

        40

        The quoted portions were not changed by subsequent amendments to the statute (Okl. Sess.L. 1989, Ch. 286 § 8, eff. May 24, 1989, Okl.Sess.L. 1990, Ch. 313 § 1, eff. May 30, 1990 and Okl.Sess.L. 1991, Ch. 55 § 3, Ch. 250 § 6, eff. Sept. 1, 1991).

        41

        The terms of 51 O.S. Supp. 1984 § 153 provide in pertinent part:

        42

        "A. The state or a political subdivision shall be liable for loss resulting from its torts or the torts of its employees acting within the scope of their employment subject to the limitations and exceptions specified in this act and only where the state or political subdivision, if a private person or entity, would be liable for money damages under the laws of this state. * * *

        B. The liability of the state or political subdivision under this act shall be exclusive and in place of all other liability of the state, a political subdivision or employee at common law or otherwise."

        43

        The terms of 51 O.S.Supp. 1988 § 154 provided in pertinent part:

        44

        "A. The total liability of the state and its political subdivisions on claims within the scope of this act, ... arising out of an accident or occurrence happening after the effective date of this act, ... shall not exceed:

        1. Twenty-five Thousand Dollars ($25,000.00) for any claim or to any claimant who has more than one claim for loss of property arising out of a single act, accident, or occurrence;

        2. One Hundred Thousand Dollars ($100,000.00) to any claimant for his claim for any other loss arising out of a single act, accident, or occurrence ...; or

        3. One Million Dollars ($1,000,000.00) for any number of claims arising out of a single occurrence or accident. * * *"

        45

        The quoted portions were not changed by subsequent amendments to the statute (Okl. Sess.L. 1990, Ch. 51 § 115, eff. April 9, 1990 and Okl.Sess.L. 1991, Ch. 250 § 7, eff. Sept. 1, 1991).

        46

        [4] We note that under the generally prevailing rule this court possesses the necessary power to reformulate ambiguously phrased certified questions of law. See, e.g., Torres v. Goodyear Tire & Rubber Co., 163 Ariz. 88, 786 P.2d 939, 941 n. 1 (1990); Penn Mut. Life Ins. Co. v. Abramson, 530 A.2d 1202, 1207 (App.D.C. 1987); Meckert v. Transamerica Ins. Co., 742 F.2d 505, 507 (9th Cir.1984); Kelley v. Integon Indem. Corp., 726 F.2d 1519, 1521 (11th Cir.1984). See also 17A C. WRIGHT. A. MILLER & E. COOPER, FEDERAL PRACTICE AND PROCEDURE § 4248, at 177-78 (1988). By narrowly construing the certified question's ambiguously phrased language, we avoid the necessity of reformulation.

        47

        [5] See supra note 3.

        48

        [6] See supra note 3.

        49

        [7] See supra notes 1-2.

        50

        [8] Beard and Brockman contend that, when Kansas City acts in a proprietary — as opposed to a governmental — capacity, Missouri's statutory limit on municipal tort liability does not apply. Whether the law of Missouri would lift for this case the statutorily specified cap on recoverability is a question outside the scope of the certification order. We express no opinion on this point of Missouri law. See infra note 9 and accompanying text.

        51

        [9] We are buttressed in this conclusion by our recognition that ordinarily "the law of a sister state is a question of fact as distinguished from a question of law... ." Kennedy v. Chadwell, 193 Okl. 304, 142 P.2d 979 (1943) (syllabus 4). See also R. LEFLAR, AMERICAN CONFLICTS LAW § 130, at 259-60 (3d ed. 1977). Moreover, as we noted in Aetna Casualty and Sur. Co. v. Craig, Okl., 771 P.2d 212 (1989), the "correctness of the conclusion so reached by the federal court from the facts in this case has not been tendered ... for our legal analysis ... It is plainly not subject to this Court's ... review." Id. at 214.

        52

        [10] See RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 100 (1969) [hereinafter RESTATEMENT]. This is not to imply that the courts of a sovereign state have unfettered discretion in all instances. As Bradford Electric Co. v. Clapper, 286 U.S. 145, 52 S.Ct. 571, 76 L.Ed. 1026 (1931) makes clear, "in certain limited situations, the courts of one State must apply the statutory law of another State." Nevada v. Hall, 440 U.S. 410, 421, 99 S.Ct. 1182, 1188, 59 L.Ed.2d 416 (1979).

        53

        [11] Hall, supra note 10, 440 U.S. at 421, 99 S.Ct. at 1188.

        54

        [12] See id. at 417 n. 13, 99 S.Ct. at 1186.

        55

        [13] See id. at 418, 99 S.Ct. at 1187.

        56

        [14] As noted by the United States Supreme Court in Wells v. Simonds Abrasive Co., 345 U.S. 514, 73 S.Ct. 856, 97 L.Ed. 1211 (1953), "[t]he Full Faith and Credit Clause does not compel a state to adopt any particular set of rules of conflict of laws; it merely sets certain minimum requirements which each state must observe when asked to apply the law of a sister state." Id. at 516, 73 S.Ct. at 857. Moreover, where these minimum requirements are satisfied, the "conflicts of law embodied in the Full Faith and Credit Clause allows room for common-law development." Sun Oil Co. v. Wortman, 486 U.S. 717, 723 n. 1, 108 S.Ct. 2117, 2122, 100 L.Ed.2d 743 (1988). As these statements indicate, the Court's full-faith-and-credit-clause analysis merely establishes a minimum floor in the context of conflict of laws, leaving to the respective states the development of a ceiling through their decisional law. That is, as with other constitutional commands, the states are free to develop beyond the federal constitution's minimal standards. See R. ROTUNDA, J. NOWAK, & J. YOUNG, TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE § 1.6(c), at 31-33 (1986). This analysis is indispensable in the complex area of multistate relations and in the furtherance of our cooperative federalism.

        57

        [15] As we noted in Clampitt v. Johnson, Okl., 359 P.2d 588, 592 (1961), "judicial comity is not a rule of law, but one of practical convenience and expediency... ." See also, e.g., Lee v. Miller County, Ark., 800 F.2d 1372, 1375 (5th Cir.1986).

        58

        [16] E. SCOLES & P. HAY, CONFLICTS OF LAW § 2.4, at 13 (1982). Although comity originated as a harmonizing principle of international law, the doctrine was adopted early on in the American common law. See id.As a matter of internal domestic effect, the notion of comity has perhaps best been summed as follows:

        59

        "[A] proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways... . The concept does not mean blind deference to `States Rights' any more than it means centralization of control over every important issue in our National Government and its courts. The Framers rejected both these courses. What the concept does represent is a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States." Younger v. Harris, 401 U.S. 37, 44, 91 S.Ct. 746, 750-751, 27 L.Ed.2d 669 (1971).

        60

        [17] RESTATEMENT, supranote 10, § 145 provides:

        61

        "(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.

        (2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:

        (a) the place where the injury occurred,

        (b) the place where the conduct causing the injury occurred,

        (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and

        (d) the place where the relationship, if any, between the parties is centered.

        These contacts are to be evaluated according to their relative importance with respect to the particular issue."

        62

        [18] RESTATEMENT, supranote 10, § 6 provides:

        63

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

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

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

        (b) the relevant policies of the forum,

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

        (d) the protection of justified expectations,

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

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

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

        64

        [19] See Collins Radio Co. v. Bell,Okl.App., 623 P.2d 1039, 1046 (1980). By "applicable substantive law," we do not imply that any law other than the law of Oklahoma is applicable in this instance. As we have noted, our respect for Missouri's limitations on municipal tort liability in the courts of Oklahoma must be accorded solely, if at all, as a matter of comity. In this sense, both §§ 145 and 6 are somewhat inapposite as frameworks for our analysis under the facts of this certified question. That this is true is discernible from the acknowledged purpose of § 6 of the Restatement.

        65

        Section 6 reflects the American Law Institute's effort to codify the principle of choice of law in conflict of laws. The traditional choice-of-law approach contemplates those rules "which provide for the application of the local law of one state, rather than the local law of another state... ." RESTATEMENT, supra note 10, § 6 comment a. See also R. WEINTRAUB, COMMENTARY ON THE CONFLICT OF LAWS § 7.3C (2d ed. 1980). But where comity is extended to afford respect to a sister state's laws, rather than an application of choice-of-law rules to enforce a sister state's laws, the Restatement's caveat that, in the complex sphere of multistate relations, rarely will a court "find that a question of choice of law is explicitly covered by a statute," RESTATEMENT, supra note 10, § 6 comment b, seems particularly telling.

        66

        That the text of the Restatement on traditional choice-of-law rules fails to cover the present factual situation is not dispositive. Rather, the most which may be said is that, due to the recent phenomena of states waiving their "privilege of immunity," traditional choice-of-law rules have merely failed to catch up with the rapid development of the common law in this area. Moreover, the Restatement itself specifically notes that many choice-of-law issues have not been fully explored by the courts, indicating the necessity for choice-of-law rules to expand to fill the otherwise present vacuum in the law. The counsel of the Restatement is instructive. "All that can presently be done in these areas is to state a general principle,... which provides some clue to the correct approach but does not furnish precise answers." Id. § 6 comment c.

        67

        [20] While we recognize that Restatement § 145(c) speaks in terms of the parties' nationality, we think the citizenship of a sovereign state is sufficient to qualify under the provision's rubric. This is born out by the other indicia of the subsection, such as domiciliary, residence, place of incorporation, and place of business. See supra note 17. Accordingly, it cannot be controverted that a political subdivision of a sovereign state qualifies for purposes of the subsection.

        68

        [21] RESTATEMENT, supra note 10, § 6. See also supra note 18.

        69

        [22] Id. § 6 comment d. Although the comments to § 6 are concerned primarily with traditional choice-of-law problems, the appellation seems appropriate for the present inquiry.

        70

        [23] See Panama Processes v. Cities Serv. Co., Okl., 796 P.2d 276, 284 (1990).

        71

        [24] Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519, 590, 10 L.Ed. 274 (1839).

        72

        [25] Lee, supra note 15, 800 F.2d at 1375.

        73

        [26] To the extent predictability and uniformity of results obtain between sister states, forum shopping will be minimized. See RESTATEMENT, supra note 10, § 6 comment i. Although not an objective to be pursued at all costs, discouraging forum shopping between the states is nonetheless an important value. See id.

        74

        [27] RESTATEMENT, supra note 10, § 6. See also supra note 18.

        75

        [28] RESTATEMENT, supra note 10, § 6. See also supra note 18.

        76

        [29] See supra notes 1-3.

        77

        [30] See Nguyen v. State, Okl., 788 P.2d 962, 964 (1990), where we noted that the enactment of the Governmental Tort Claims Act constituted a "major policy statement[]" of the Oklahoma legislature.

        78

        [31] "Vanderpool [v. State, Okl., 672 P.2d 1153 (1983)] abrogated only the common law doctrine of sovereign immunity and left unaffected the power of the legislature to regulate governmental tort liability. In response to Vanderpool the legislature enacted the Governmental Tort Claims Act in 1985...." Id.

        79

        [32] See supra note 3.

        80

        [33] See supra note 3.

        81

        [34] As we noted in Panama Processes, the notion, of reciprocity, at least as applied in the international arena, has increasingly come under attack. See Panama Processes, supra note 23, 796 P.2d at 281 n. 17. The Restatement expresses a like sentiment with respect to private parties. See RESTATEMENT, supra note 10, § 6 comment k. But this criticism seems inapposite in the context of fostering multistate relations. Indeed, as the Restatement notes, state legislatures often employ a principle of reciprocity to achieve specific objectives. Id.

        82

        [35] RESTATEMENT supra note 10, § 6. See also supra note 18.

        83

        [36] See generally, C. FIFOOT, HISTORY AND SOURCES OF THE COMMON LAW 66-92 (1949 & photo. reprint 1970); Dix, The Origins of the Action of Trespass on the Case, 44 YALE L.J. 1142 (1937); Plucknett, Case and the Statute of Westminster II, 31 Co. LUM.L.REV. 778 (1931). See also, e.g., Reynolds v. Clarke, 1725, 1 Stra. 634, 2 Ld. Raym. 1399, 92 Eng.Rep. 410; Day v. Edwards, 1794, 5 Term Rep. 649, 101 Eng.Rep. 361; Leame v. Bray, 1803, 3 East 593, 102 Eng.Rep. 724.

        84

        [37] "Not until yesterday, as legal generations go, did torts achieve recognition as a distinct branch of the law." D. DOBBS, R. KEETON & D. OWEN, PROSSER AND KEETON ON TORTS 1 (5th ed. 1984).

        85

        [38] Indeed, as it developed at common law, the doctrine originated in the feudal system. See 1 F. POLLOCK & F. MAITLAND, HISTORY OF ENGLISH LAW 518 (2d ed. 1899).

        86

        [39] See Osborn v. Bank of United States, 22 U.S. (9 Wheat) 738, 6 L.Ed. 204 (1824).

        87

        [40] Indeed, a contrary determination would result in the anomalous situation of placing this court in direct contravention of the declared public policy of the legislature. See supra notes 30-31.

        88

        [41] RESTATEMENT, supra note 10, § 6. See supra note 18.

        89

        [42] We find no basis here for invoking a public policy exception to the principle of comity.

        90

        [43] Cognizant as we are of Oklahoma's constitutionally derived public policy against limitations on death awards (Roberts v. Merrill, Okl., 386 P.2d 780, 782-787 (1963), we express no opinion on whether our analysis here would also apply, under identical circumstances, to protect a state or its political subdivision in an action involving injuries which result in death. SeeOKLA. CONST. ART. 23, § 7, which provides:

        91

        "The right of action to recover damages for injuries resulting in death shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation, provided however, that the Legislature may provide an amount of compensation under the Workers' Compensation Law for death resulting from injuries suffered in employment covered by such law, in which case the compensation so provided shall be exclusive, and the Legislature may enact statutory limits on the amount recoverable in civil actions or claims against the state or any of its political subdivisions." (Emphasis added.)

    • 2.3 §1.3.2.3 Comparative impairment

      • 2.3.1 Bernhard v. Harrah's Club

        1
        16 Cal.3d 313 (1976)
        2
        546 P.2d 719
        3
        128 Cal. Rptr. 215
        4
        RICHARD A. BERNHARD, Plaintiff and Appellant,
        v.
        HARRAH'S CLUB, Defendant and Respondent.
        5
        Docket No. S.F. 23242.
        6

        Supreme Court of California. In Bank.

        7
        March 2, 1976.
        8

        [315] COUNSEL

        9

        Frederick W. Stephenson for Plaintiff and Appellant.

        10

        Hardy, Erich & Brown and Leo H. Schuering, Jr., for Defendant and Respondent.

        11

        Robert List, Attorney General (Nevada), James H. Thompson, Chief Deputy Attorney General, and John H. Garvin as Amici Curiae on behalf of Defendant and Respondent.

        12

        OPINION

        13
        SULLIVAN, J.
        14

        Plaintiff appeals from a judgment of dismissal entered upon an order sustaining without leave to amend the general demurrer of defendant Harrah's Club to plaintiff's first amended complaint.

        15

        Plaintiff's complaint, containing only one count, alleged in substance the following: Defendant Harrah's Club, a Nevada corporation, owned and operated gambling establishments in the State of Nevada in which intoxicating liquors were sold, furnished to the public and given away for consumption on the premises. Defendant advertised for and solicited in California the business of California residents at such establishments knowing and expecting that many California residents would use the public highways in going to and from defendant's drinking and gambling establishments.

        16

        On July 24, 1971, Fern and Philip Myers, in response to defendant's advertisements and solicitations, drove from their California residence to defendant's gambling and drinking club in Nevada, where they stayed until the early morning hours of July 25, 1971. During their stay, the Myers were served numerous alcoholic beverages by defendant's employees, progressively reaching a point of obvious intoxication rendering them incapable of safely driving a car. Nonetheless defendant continued to serve and furnish the Myers alcoholic beverages.

        17

        [316] While still in this intoxicated state, the Myers drove their car back to California. Proceeding in a northeasterly direction on Highway 49, near Nevada City, California, the Myers' car, driven negligently by a still intoxicated Fern Myers, drifted across the center line into the lane of oncoming traffic and collided head-on with plaintiff Richard A. Bernhard, a resident of California, who was then driving his motorcycle along said highway. As a result of the collision plaintiff suffered severe injuries. Defendant's sale and furnishing of alcoholic beverages to the Myers, who were intoxicated to the point of being unable to drive safely, was negligent and was the proximate cause of the plaintiff's injuries in the ensuing automobile accident in California for which plaintiff prayed $100,000 in damages.

        18

        Defendant filed a general demurrer to the first amended complaint. In essence it was grounded on the following contentions: that Nevada law denies recovery against a tavern keeper by a third person for injuries proximately caused by the former by selling or furnishing alcoholic beverages to an intoxicated patron who inflicts the injuries on the latter; that Nevada law governed since the alleged tort was committed by defendant in Nevada; and that section 25602 of the California Business and Professions Code which established the duty necessary for liability under our decision in Vesely v. Sager (1971) 5 Cal.3d 153 [95 Cal. Rptr. 623, 486 P.2d 151], was inapplicable to a Nevada tavern. The trial court sustained the demurrer without leave to amend and entered a judgment of dismissal. This appeal followed.

        19

        (1) We face a problem in the choice of law governing a tort action. As we have made clear on other occasions, we no longer adhere to the rule that the law of the place of the wrong is applicable in a California forum regardless of the issues before the court. (Hurtado v. Superior Court (1974) 11 Cal.3d 574, 579 [114 Cal. Rptr. 106, 522 P.2d 666]; Reich v. Purcell (1967) 67 Cal.2d 551, 555 [63 Cal. Rptr. 31, 432 P.2d 727].) Rather we have adopted in its place a rule requiring an analysis of the respective interests of the states involved — the objective of which is "`to determine the law that most appropriately applies to the issue involved.'" (Hurtado, supra, at pp. 579-580, quoting from Reich, supra, at p. 555.)

        20

        The issue involved in the case at bench is the civil liability of defendant tavern keeper to plaintiff, a third person, for injuries allegedly caused by the former by selling and furnishing alcoholic beverages in Nevada to intoxicated patrons who subsequently injured plaintiff in [317] California. Two states are involved: (1) California — the place of plaintiff's residence and domicile, the place where he was injured, and the forum; and (2) Nevada — the place of defendant's residence and the place of the wrong.

        21

        We observe at the start that the laws of the two states — California and Nevada — applicable to the issue involved are not identical. California imposes liability on tavern keepers in this state for conduct such as here alleged. In Vesely v. Sager, supra, 5 Cal.3d 153, 166, this court rejected the contention that "civil liability for tavern keepers should be left to future legislative action.... First, liability has been denied in cases such as the one before us solely because of the judicially created rule that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication. As demonstrated, supra, this rule is patently unsound and totally inconsistent with the principles of proximate cause established in other areas of negligence law.... Second, the Legislature has expressed its intention in this area with the adoption of Evidence Code section 669, and Business and Professions Code section 25602.... It is clear that Business and Professions Code section 25602 [making it a misdemeanor to sell to an obviously intoxicated person] is a statute to which this presumption [of negligence, Evidence Code section 669] applies and that the policy expressed in the statute is to promote the safety of the people of California...." Nevada on the other hand refuses to impose such liability. In Hamm v. Carson City Nuggett, Inc. (1969) 85 Nev. 99 [450 P.2d 358, 359], the court held it would create neither common law liability nor liability based on the criminal statute banning sale of alcoholic beverages to a person who is drunk, because "if civil liability is to be imposed, it should be accomplished by legislative act after appropriate surveys, hearings, and investigations to ascertain the need for it and the expected consequences to follow." It is noteworthy that in Hamm the Nevada court in relying on the common law rule denying liability cited our decision in Cole v. Rush (1955) 45 Cal.2d 345 [289 P.2d 450, 54 A.L.R.2d 1137], later overruled by us in Vesely to the extent that it was inconsistent with that decision. (See Vesely v. Sager, supra, 5 Cal.3d at p. 167.)

        22

        Although California and Nevada, the two "involved states" (Reich v. Purcell, supra, 67 Cal.2d 551, 553; see also Hurtado v. Superior Court, supra, 11 Cal.3d 574, 579), have different laws governing the issue presented in the case at bench, we encounter a problem in selecting the applicable rule of law only if both states have an interest in having their respective laws applied. (2) "[G]enerally speaking the forum will [318] 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. [Citations.]" (Hurtado, supra, at p. 581.)

        23

        Defendant contends that Nevada has a definite interest in having its rule of decision applied in this case in order to protect its resident tavern keepers like defendant from being subjected to a civil liability which Nevada has not imposed either by legislative enactment or decisional law. It is urged that in Hamm v. Carson City Nuggett, supra, 450 P.2d 358, 359, the Supreme Court of Nevada clearly delineated the policy underlying denial of civil liability of tavern keepers who sell to obviously intoxicated patrons: "Those opposed to extending liability point out that to hold otherwise would subject the tavern owner to ruinous exposure every time he poured a drink and would multiply litigation endlessly in a claim-conscious society. Every liquor vendor visited by the patron who became intoxicated would be a likely defendant in subsequent litigation flowing from the patron's wrongful conduct.... Judicial restraint is a worthwhile practice when the proposed new doctrine may have implications far beyond the perception of the court asked to declare it. They urge that if civil liability is to be imposed, it should be accomplished by legislative act after appropriate surveys, hearings, and investigations.... We prefer this point of view." Accordingly defendant argues that the Nevada rule of decision is the appropriate one for the forum to apply.

        24

        Plaintiff on the other hand points out that California also has an interest in applying its own rule of decision to the case at bench. California imposes on tavern keepers civil liability to third parties injured by persons to whom the tavern keeper has sold alcoholic beverages when they are obviously intoxicated "for the purpose of protecting members of the general public from injuries to person and damage to property resulting from the excessive use of intoxicating liquor." (Vesely v. Sager, supra, 5 Cal.3d 153, 165.) California, it is urged, has a special interest in affording this protection to all California residents injured in California.

        25

        (3) Thus, since the case at bench involves a California resident (plaintiff) injured in this state by intoxicated drivers and a Nevada resident tavern keeper (defendant) which served alcoholic beverages to them in Nevada, it is clear that each state has an interest in the application of its respective law of liability and nonliability. It goes [319] without saying that these interests conflict. Therefore, unlike Reich v. Purcell, supra, 67 Cal.2d 551, and Hurtado v. Superior Court, supra, 11 Cal.3d 574, where we were faced with "false conflicts," in the instant case for the first time since applying a governmental interest analysis as a choice of law doctrine in Reich, we are confronted with a "true" conflicts case. We must therefore determine the appropriate rule of decision in a controversy where each of the states involved has a legitimate but conflicting interest in applying its own law in respect to the civil liability of tavern keepers.

        26

        The search for the proper resolution of a true conflicts case, while proceeding within orthodox parameters of governmental interest analysis, has generated much scholarly examination and discussion.[1] The father of the governmental interest approach,[2] Professor Brainerd Currie, originally took the position that in a true conflicts situation the law of the forum should always be applied. (Currie, Selected Essays on [320] Conflicts of Laws (1963) p. 184.) However, upon further reflection, Currie suggested that when under the governmental interest approach a preliminary analysis reveals an apparent conflict of interest upon the forum's assertion of its own rule of decision, the forum should reexamine its policy to determine if a more restrained interpretation of it is more appropriate. "[T]o assert a conflict between the interests of the forum and the foreign state is a serious matter; the mere fact that a suggested broad conception of a local interest will create conflict with that of a foreign state is a sound reason why the conception should be reexamined, with a view to a more moderate and restrained interpretation both of the policy and of the circumstances in which it must be applied to effectuate the forum's legitimate purpose.... An analysis of this kind ... was brilliantly performed by Justice Traynor in Bernkrant v. Fowler (1961) 55 Cal.2d 588 [12 Cal. Rptr. 266, 360 P.2d 906]." (Currie, The Disinterested Third State (1963) 28 Law & Contemp. Prob., pp. 754, 757; see also Sedler in Symposium, Conflict of Laws Round Table, supra, 49 Texas L.Rev. 211, at pp. 224-225.) This process of reexamination requires identification of a "real interest as opposed to a hypothetical interest" on the part of the forum (Sedler, Value of Principled Preferences, 49 Texas L.Rev. 224) and can be approached under principles of "comparative impairment." (Baxter, Choice of Law and the Federal System, supra, 16 Stan. L.Rev. 1-22; Horowitz, The Law of Choice of Law in California — A Restatement, supra, 21 UCLA L.Rev. 719, 748-758.)

        27

        Once this preliminary analysis has identified a true conflict of the governmental interests involved as applied to the parties under the particular circumstances of the case, the "comparative impairment" approach to the resolution of such conflict seeks to determine which state's interest would be more impaired if its policy were subordinated to the policy of the other state. This analysis proceeds on the principle that true conflicts should be resolved by applying the law of the state whose interest would be the more impaired if its law were not applied. Exponents of this process of analysis emphasize that it is very different from a weighing process. The court does not "`weigh' the conflicting governmental interests in the sense of determining which conflicting law manifested the `better' or the `worthier' social policy on the specific issue. An attempted balancing of conflicting state policies in that sense ... is difficult to justify in the context of a federal system in which, within constitutional limits, states are empowered to mold their policies as they wish.... [The process] can accurately be described as ... accommodation of conflicting state policies, as a problem of allocating domains of law-making power in multi-state contexts — limitations on the reach of [321] state policies — as distinguished from evaluating the wisdom of those policies.... [E]mphasis is placed on the appropriate scope of conflicting state policies rather than on the `quality' of those policies...." (Horowitz, The Law of Choice of Law in California — A Restatement, supra, 21 UCLA L.Rev. 719, 753; see also Baxter, Choice of Law and the Federal System, supra, 16 Stan.L.Rev. 1, 18-19.) However, the true function of this methodology can probably be appreciated only casuistically in its application to an endless variety of choice of law problems. (See, e.g., the hypothetical situations set forth in Baxter, op. cit., pp. 10-17.)

        28

        Although the concept and nomenclature of this methodology may have received fuller recognition at a later time, it is noteworthy that the core of its rationale was applied by Justice Traynor in his opinion for this court in People v. One 1953 Ford Victoria (1957) 48 Cal.2d 595 [311 P.2d 480]. There in a proceeding to forfeit an automobile for unlawful transportation of narcotics we dealt with the question whether a chattel mortgage of the vehicle given in Texas and, admittedly valid both in that state and this, succumbed to the forfeiture proceedings. The purchaser of the car, having executed a note and chattel mortgage for the unpaid purchase price, without the consent of the mortgagee drove the vehicle to California where he used it to transport marijuana. Applicable California statutes made it clear that they did not contemplate the forfeiture of the interest of an innocent mortgagee, that is a person whose "interest was created after a reasonable investigation of the moral responsibility, character and reputation of the purchaser and without any knowledge that the vehicle was being, or was to be, used for the purpose charged...." Texas had no similar statute; nor had the mortgagee, though proving that the mortgage was bona fide, also proved that he had made the above reasonable investigation of the mortgagor.

        29

        It was clear that Texas had an interest in seeing that valid security interests created upon the lawful purchase of automobiles in Texas be enforceable and recognized. California had an interest in controlling the transportation of narcotics. Each interest was at stake in the case, since the chattel mortgage had been validly created in Texas and the car was used to transport narcotics in California. The crucial question confronting the court was whether the "reasonable investigation" required by statute of a California mortgagee applied to the Texas mortgagee. Employing what was in substance a "comparative impairment" approach, the court answered the question in the negative. "It is contended that a holding that the `reasonable investigation' requirement is not [322] applicable to respondent will subvert the enforcement of California's narcotics laws. We are not persuaded that such dire consequences will ensue. The state may still forfeit the interest of the wrongdoer. It has done so in this case. Moreover, the Legislature has made plain its purpose not to forfeit the interests of innocent mortgagees. It has not made plain that `reasonable investigation' of the purchaser is such an essential element of innocence that it must be made even by an out-of-state mortgagee although such mortgagee could not reasonably be expected to make such investigation." (Id., at p. 599.)

        30

        Mindful of the above principles governing our choice of law, we proceed to reexamine the California policy underlying the imposition of civil liability upon tavern keepers. At its broadest limits this policy would afford protection to all persons injured in California by intoxicated persons who have been sold or furnished alcoholic beverages while intoxicated regardless of where such beverages were sold or furnished. Such a broad policy would naturally embrace situations where the intoxicated actor had been provided with liquor by out-of-state tavern keepers. Although the State of Nevada does not impose such civil liability on its tavern keepers, nevertheless they are subject to criminal penalties under a statute making it unlawful to sell or give intoxicating liquor to any person who is drunk or known to be an habitual drunkard. (See Nev. Rev. Stats. 202.100; see Hamm v. Carson City Nuggett, Inc., supra, 450 P.2d 358.)

        31

        We need not, and accordingly do not here determine the outer limits to which California's policy should be extended, for it appears clear to us that it must encompass defendant, who as alleged in the complaint, "advertis[es] for and otherwise solicit[s] in California the business of California residents at defendant HARRAH'S CLUB Nevada drinking and gambling establishments, knowing and expecting said California residents, in response to said advertising and solicitation, to use the public highways of the State of California in going and coming from defendant HARRAH'S CLUB Nevada drinking and gambling establishments." Defendant by the course of its chosen commercial practice has put itself at the heart of California's regulatory interest, namely to prevent tavern keepers from selling alcoholic beverages to obviously intoxicated persons who are likely to act in California in the intoxicated state. It seems clear that California cannot reasonably effectuate its policy if it does not extend its regulation to include out-of-state tavern keepers such as defendant who regularly and purposely sell intoxicating beverages to California residents in places and under conditions in which it is [323] reasonably certain these residents will return to California and act therein while still in an intoxicated state. California's interest would be very significantly impaired if its policy were not applied to defendant.

        32

        Since the act of selling alcoholic beverages to obviously intoxicated persons is already proscribed in Nevada, the application of California's rule of civil liability would not impose an entirely new duty requiring the ability to distinguish between California residents and other patrons. Rather the imposition of such liability involves an increased economic exposure, which, at least for businesses which actively solicit extensive California patronage, is a foreseeable and coverable business expense. Moreover, Nevada's interest in protecting its tavern keepers from civil liability of a boundless and unrestricted nature will not be significantly impaired when as in the instant case liability is imposed only on those tavern keepers who actively solicit California business.[3]

        33

        Therefore, upon reexamining the policy underlying California's rule of decision and giving such policy a more restrained interpretation for the purpose of this case pursuant to the principles of the law of choice of law discussed above, we conclude that California has an important and abiding interest in applying its rule of decision to the case at bench, that the policy of this state would be more significantly impaired if such rule were not applied and that the trial court erred in not applying California law.

        34

        Defendant argues, however, that even if California law is applied, the demurrer was nonetheless properly sustained because the tavern keeper's duty stated in Vesely v. Sager, supra, 5 Cal.3d 153, is based on Business and Professions Code section 25602, which is a criminal statute and thus without extraterritorial effect. It is quite true, as defendant argues, that in [324] Vesely we determined "that civil liability results when a vendor furnishes alcoholic beverages to a customer in violation of Business and Professions Code section 25602 and each of the conditions set forth in Evidence Code section 669, subdivision (a), is established." (5 Cal.3d at p. 157.)

        35

        It is also clear, as defendant's argument points out, that since, unlike the California vendor in Vesely, defendant was a Nevada resident which furnished the alcoholic beverage to the Myers in that state, the above California statute had no extraterritorial effect and that civil liability could not be posited on defendant's violation of a California criminal law. We recognize, therefore, that we cannot make the same determination as quoted above with respect to defendant that we made with respect to the defendant vendor in Vesely.

        36

        However, our decision in Vesely was much broader than defendant would have it. There, at the very outset of our opinion, we declared that the traditional common law rule denying recovery on the ground that the furnishing of alcoholic beverage is not the proximate cause of the injuries inflicted on a third person by an intoxicated individual "is patently unsound." (5 Cal.3d at p. 157.) Observing that "[u]ntil fairly recently, it was uniformly held that [such] an action could not be maintained at common law" (id., at p. 158) and reviewing in detail the common law rule (id., at pp. 158-164) we concluded that "the furnishing of an alcoholic beverage to an intoxicated person may be a proximate cause of injuries inflicted by that individual upon a third person." We reasoned: "If such furnishing is a proximate cause, it is so because the consumption, resulting intoxication, and injury-producing conduct are foreseeable intervening causes, or at least the injury-producing conduct is one of the hazards which makes such furnishing negligent." (Id., at p. 164.)

        37

        Proceeding to the question of the tavern keeper's duty in this respect and rejecting his contention that civil liability for tavern keepers should be left to future legislative action, we noted that "liability has been denied in cases such as the one before us solely because of the judicially created rule that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication. As demonstrated, supra, this rule is patently unsound and totally inconsistent with the principles of proximate cause established in other areas of negligence law. Other common law tort rules which were determined to be lacking in validity have been abrogated by this court (see Gibson v. Gibson (1971) 3 Cal.3d 914 [92 Cal. Rptr. 288, 479 P.2d 648]; Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211 [11 Cal. Rptr. 89, 359 P.2d 457]), and [325] there is no sound reason for retaining the common law rule presented in this case." (5 Cal.3d at p. 166.)

        38

        In sum, our opinion in Vesely struck down the old common law rule of nonliability constructed on the basis that the consumption, not the sale, of alcoholic beverages was the proximate cause of the injuries inflicted by the intoxicated person. Although we chose to impose liability on the Vesely defendant on the basis of his violating the applicable statute, the clear import of our decision was that there was no bar to civil liability under modern negligence law. Certainly, we said nothing in Vesely indicative of an intention to retain the former rule that an action at common law does not lie. The fact then, that in the case at bench, section 25602 of the Business and Professions Code is not applicable to this defendant in Nevada so as to warrant the imposition of civil liability on the basis of its violation, does not preclude recovery on the basis of negligence apart from the statute. Pertinent here is our observation in Rowland v. Christian (1968) 69 Cal.2d 108, 118-119 [70 Cal. Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496]: "It bears repetition that the basic policy of this state set forth by the Legislature in section 1714 of the Civil Code is that everyone is responsible for an injury caused to another by his want of ordinary care or skill in the management of his property."

        39

        The judgment is reversed and the cause is remanded to the trial court with directions to overrule the demurrer and to allow defendant a reasonable time within which to answer.

        40

        Wright, C.J., McComb, J., Tobriner, J., Mosk, J., Clark, J., and Molinari, J.,[4] concurred.

        41

        Respondent's petition for a rehearing was denied April 22, 1976. Richardson, J., did not participate therein.

        42

        [1] Baxter, Choice of Law and the Federal System (1963) 16 Stan.L.Rev. 1; Cavers, The Choice of Law Process (1965) pages 114-224: Horowitz, The Law of Choice of Law in California-A Restatement (1974) 21 UCLA L.Rev. 719, 748-758; Conflict of Laws Round Table: A Symposium (1972) 57 Iowa L.Rev. 1219-1270; Symposium, Conflict of Laws Round Table (1971) 49 Texas L.Rev. 211-245: Sedler, Reviews-Conflicts Commentary (1972) 50 Texas L.Rev. 1064-1083: Weintraub, Commentary on the Conflict of Laws (1971). We note that no case has been called to our attention, nor are we aware of one, which has discussed this problem in a context relevant to the case at bench.

        43

        [2] Traditionally the search for choice of law rules focused upon the interests of the immediate parties to the action in terms of their private rights. Thus, it concentrated "upon the same factors that would be dispositive in a similar case wholly internal to a single state. I cannot escape the conclusion that a search so oriented must prove unrewarding. Every choice-of-law case involves several parties, each of whom would prevail if the internal law of one rather than another state were applied. Each party is `right,' `worthy,' and `deserving' and `ought in all fairness' to prevail under one of the competing bodies of law and in the view of one of the competing groups of lawmakers. Fact situations which differ only in that they are internal to a single state have been assessed by the different groups of lawmakers, and each has reached a different value judgment on the rule best calculated to serve the overall interest of its community. If attention is confined to the circumstances of the immediate parties, the conflict between the internal laws and between the value judgments they are intended to implement cannot be resolved by the judge unless he is prepared to impose still another value judgment upon the controversy.... [¶] These difficulties can be avoided if normative criteria can be found which relate to the very aspects of a conflicts case that distinguish it from an analogous internal case. That such criteria can be elaborated in many, if not all, conflicts cases has been demonstrated by several writers who have urged that conflicts cases be resolved on the basis of the governmental interests involved.... [¶] [T]he process of resolving choice cases is necessarily one of allocating spheres of legal control among states. His [Professor Currie] thesis, like mine, is that the process of allocation should not be performed unconsciously, that the private interests in choice cases are necessarily in balance, and that the cases can be decided by viewing them as instances of conflicting states interests rather than of conflicting private interests." (Baxter, Choice of Law and the Federal System, supra, 16 Stan.L.Rev. 1, 5, 6, 22, fn. omitted.)

        44

        [3] Defendant asserts that Nevada's law must be applied because it is the law of the place of sale and cites three cases in support of that proposition. Trapp v. 4-10 Investment Corporation (8th Cir.1970) 424 F.2d 1261; Zucker v. Vogt (D.Conn 1961) 200 F. Supp. 340; and Schmidt v. Driscol Hotel (1957) 82 N.W.2d 365. It is true that all three cases applied the law of the place of sale of the alcohol, but not for that reason. In Trapp and Zucker all the states involved had dram shop acts which would permit civil liability and the federal courts determined that the applicable forum state would give effect to the common policy of liability for sale to intoxicated persons regardless of traditional tort conflict rules. Schmidt is the only case where one state. Wisconsin, did not have a dram shop act and the other state. Minnesota, did. However, in that case even though the injury occurred in Wisconsin, the alcohol was sold and consumed in Minnesota and all the parties involved were from Minnesota. Moreover, none of these cases involved a case of true conflict between two state interests where the court endeavored to resolve the conflict by resort to the principles of governmental interest analysis. They are therefore inapposite.

        45

        [4] Assigned by the Chairman of the Judicial Council.

    • 2.4 §1.3.2.4 Most significant relationship

      • 2.4.1 PV ex rel. TV v. Camp Jaycee

        1
        962 A.2d 453 (2008)
        2
        197 N.J. 132
        3
        P.V., by her Guardians Ad Litem T.V. and L.V. and T.V. and L.V., Individually, Plaintiffs-Respondents,
        v.
        CAMP JAYCEE, Defendant-Appellant, and
        "A" Through "Z" Doe (fictitious names actual names being unknown), Defendants.
        4
        A-31 September Term 2007.
        5

        Supreme Court of New Jersey.

        6
        Argued February 19, 2008.
        7
        Decided November 24, 2008.
        8

        [455] Walter F. Kawalec, III, Cherry Hill, argued the cause for appellant (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys).

        9

        Philip G. Auerbach, Red Bank, argued the cause for respondents (Lomurro, Davison, Eastman & Munoz, attorneys).

        10
        Justice LONG delivered the opinion of the Court.
        11

        This choice-of-law case involves the question of whether New Jersey's charitable immunity statute, N.J.S.A. 2A:53A-7 to -11, applies to a tort committed in Pennsylvania. In 2003, a mentally disabled New Jersey resident was sexually abused at a summer camp located in Pennsylvania but operated by a New Jersey charity. Her parents sued the camp individually and on her behalf for negligent supervision at the campsite. The trial judge granted the camp's motion for summary judgment based on the doctrine of charitable immunity to which New Jersey adheres by statute. The Appellate Division reversed, declaring that Pennsylvania law governs the action because the commonwealth, which has abrogated charitable immunity and is the state in which the tortious conduct and injury occurred, has the greater governmental interest in the case. The camp filed a petition for certification that we granted.

        12

        Although we have traditionally denominated our conflicts approach as a flexible "governmental interest" analysis, we have continuously resorted to the Restatement (Second) of Conflict of Laws (1971) in resolving conflict disputes arising out of tort. See, e.g., Erny v. Estate of Merola, 171 N.J. 86, 95-96, 792 A.2d 1208 (2002); Fu v. Fu, 160 N.J. 108, 119-39, 733 A.2d 1133 (1999). That approach is the "most significant relationship" test. Under that standard, the analysis in a personal injury case begins with the section 146 presumption that the local law of the state of the injury will apply. Once the presumptively applicable law is identified, that choice is tested against the contacts detailed in section 145 and the general principles outlined in section 6 of the Second Restatement. If another state has a more significant relationship to the parties or issues, the presumption will be overcome. If not, it will govern.

        13

        Examining the facts of this case as they relate to the contacts and principles articulated in the Second Restatement, we conclude [456] that Pennsylvania, the state in which the charity chose to operate and which is the locus of the tortious conduct and injury, has at least as significant a relationship to the issues as New Jersey, and that the presumptive choice of Pennsylvania law therefore has not been overcome.

        14
        I.
        15

        Over thirty years ago, New Jersey Camp Jaycee, Inc. (Camp Jaycee) was organized as a not-for-profit corporation to operate a summer program for mentally challenged individuals.[1] Although Camp Jaycee was incorporated in New Jersey and maintains an administrative office here, it has chosen to carry out its primary charitable mission in the Commonwealth of Pennsylvania at a campsite in the town of Effort.

        16

        In 2003, one of Camp Jaycee's campers was P.V., a twenty-one-year-old female from New Jersey with Down syndrome and mental and emotional handicaps. P.V. had attended the camp for at least three consecutive summers. According to the complaint, in August 2003, P.V. was sexually assaulted by another camper, as a result of which she sustained injuries requiring medical treatment.

        17

        P.V.'s parents, T.V. and L.V., as guardians ad litem and individually, instituted a personal injury action in New Jersey against Camp Jaycee and several fictitious defendants. They alleged that Camp Jaycee and its agents, servants, and employees were careless and negligent in the supervision of P.V. "at the camp" in Pennsylvania. Camp Jaycee filed a motion to dismiss, asserting immunity from suit under the New Jersey Charitable Immunity Act (CIA). N.J.S.A. 2A:53A-7 to -11.

        18

        The trial judge granted Camp Jaycee's motion for summary judgment on the ground that, under the CIA, the camp is immune from suit by a beneficiary. The Appellate Division reversed, declaring that the CIA is not the governing law of the case because Pennsylvania, the state of the wrongful conduct and injury, has abrogated charitable immunity and has a greater interest in regulating the conduct of entities operating within its borders than New Jersey has in immunizing not-for-profit corporations. P.V. v. Camp Jaycee, 393 N.J.Super. 19, 21-22, 922 A.2d 761 (App.Div.2007). In ruling, the Appellate Division relied in part on the exceptions that have been carved out of the CIA (e.g. the CIA does not immunize charities against actions for intentional conduct) as diluting New Jersey's interest. We granted Camp Jaycee's petition for certification, 192 N.J. 295, 927 A.2d 1293 (2007), and now affirm the judgment of the Appellate Division.

        19
        II.
        20

        Camp Jaycee argues that New Jersey has a transcendent interest in the application of its charitable immunity law because the camp was organized under the laws of New Jersey; both parties are domiciled in New Jersey; Pennsylvania has no interest in the post-event rights and liabilities of two New Jersey domiciliaries; Pennsylvania is merely "the happenstance of the situs of the accident"; and no Pennsylvania citizen was injured.

        21

        P.V. counters that Pennsylvania, the state in which Camp Jaycee chose to operate; in which the tortious conduct and injury occurred; and in which the relationship of the parties was centered, has at [457] least as great if not a greater interest than New Jersey in the resolution of this matter because of its concerns over conduct-regulation and redress to tort victims.

        22
        III.
        23

        The background of our present approach to conflict of laws is helpful to this analysis. Traditionally, our courts, like those of most jurisdictions, followed the bright-line rules embodied in the Restatement (First) of Conflict of Laws (1934). Those rules applied the law of the jurisdiction where a right was said to have "vested." William L. Reynolds, Legal Process and Choice of Law, 56 Md. L.Rev. 1371, 1376 (1997).

        24
        A tort right vested, for example, in the state where the injury occurred (rather than, say, where the wrongful conduct occurred); a contract right vested in the state where the last act necessary to make the contract took place (usually the acceptance), and so on. The system purported to solve all choice-of-law problems by isolating a key fact (such as where the plaintiff was injured); once the location of that fact is identified, the law to be applied follows ineluctably. On the surface, at least, the judge exercises no discretion; choosing applicable law is a routine, humdrum enterprise. [Ibid.]
        25

        Under that system, courts could choose between competing laws simply by applying concepts such as lex fori, lex loci, and lex contractus, without analyzing the content of the laws, the specific facts of a case, or the contacts the parties may have had with other states. That approach often resulted in the application of the law of a state with no real connection to the litigation and led to the downfall of the First Restatement. Id. at 1380-85.

        26

        During the 1950s, "legal realists" attacked the vested rights theory and countered that, in choosing between conflicting laws, courts should take into account the policies behind those laws and the facts of the cases that gave rise to the conflict. Id. at 1380 (citing Bruce Posnak, Choice of Law: Interest Analysis and Its "New Crits", 36 Am. J. Comp. L. 681, 682 (1988) (noting early criticisms of First Restatement)).

        27

        In 1967, we joined with other jurisdictions in abandoning the First Restatement approach to tort cases, embracing the modern governmental interest analysis, for which Professor Brainerd Currie is generally credited.[2] See Mellk v. Sarahson, 49 N.J. 226, 234-35, 229 A.2d 625 (1967) (foregoing application of lex loci approach). The governmental interest test has traditionally been described as an approach by which courts seek to assess countervailing state laws through statutory construction and other interpretative mechanisms to determine whether the states' policies are aligned with either party in the litigation. Jeffrey M. Shaman, The Vicissitudes of Choice of Law: The Restatement (First, Second) and Interest Analysis, 45 Buff. L.Rev. 329, 349-50 (1997). See generally Brainerd Currie, Selected Essays on the Conflict of Laws 627 (1963). Under the governmental interest test, where an actual conflict exists, courts must "identify the governmental policies underlying the law of each state and how those policies are affected by each state's contacts to the litigation and the parties." Veazey v. Doremus, 103 N.J. 244, 248, 510 A.2d 1187 (1986).

        28

        Four years after our adoption of the governmental interest analysis, and seventeen [458] years after the reform effort had been undertaken, the Second Restatement was finalized. To a great extent, it embraced the "reasoned elaboration" school of judicial analysis that requires a thorough explanation of every judicial decision, tied closely to the facts of the case, and an articulation of why the decision is just. Reynolds, supra, 56 Md. L.Rev. at 1387 (quoting Henry Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 145-52 (William Eskridge, Jr. & Philip P. Frickey eds., 1994)). In place of black letter law, the Second Restatement contains presumptions and detailed considerations that bear on conflicts analyses. The philosophy underlying the Second Restatement has been described as follows:

        29
        to provide guidance for judges by reminding them of things to consider in making a choice-of-law decision. The judge then would weigh the factors in light of the facts and explain why she reached the particular result. The listed factors certainly do not control the decision; rather, they merely suggest items upon which the judges should reflect. In other words, the Second Restatement provides judges with a starting point: a set of presumptions and a list of concerns worth addressing. It is then up to the judge to make it all work. The judge has to choose which law to apply, not which theory. Indeed, theory has relatively little to do with decisionmaking under the Second Restatement.
        30
        [Id. at 1388.]
        31

        Section 6, which has been described as the "cornerstone of the entire Restatement," Eugene F. Scoles et al., Conflict of Laws § 2.14 (4th ed.2004), prescribes that

        32
        (1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.
        33
        (2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include
        34
        (a) the needs of the interstate and international systems,
        35
        (b) the relevant policies of the forum,
        36
        (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
        37
        (d) the protection of justified expectations,
        38
        (e) the basic policies underlying the particular field of law,
        39
        (f) certainty, predictability, and uniformity of result, and
        40
        (g) ease in determination and application of the law to be applied.
        41
        [Restatement, supra, § 6.]
        42

        The Second Restatement also provides specific guidance for resolving particular types of cases. See, e.g., Restatement, supra, ch. 8 ("Contracts"). In connection with tort, section 145 of chapter 7 is entitled "The General Principle" and prescribes that: "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." Restatement, supra, § 145(1). The contacts that are weighed in making that assessment include:

        43
        (a) the place where the injury occurred,
        44
        (b) the place where the conduct causing the injury occurred,
        45
        (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and
        46
        (d) the place where the relationship, if any, between the parties is centered.
        47
        [459] [Restatement, supra, § 145(2)(a)-(d).][3]
        48

        Although the Second Restatement eschews the bright lines established by its predecessor, it does not abandon all rules:

        49
        Once one ventures past section 145, however, the chapter dramatically changes character. Instead of infinitely open-ended sections, the Second Restatement, for the most part, articulates reasonably definite rules. To be sure, these succeeding sections contain escape valves that refer to section 6. Many of the rules echo the First Restatement's preference for choosing the law of the injury state. Others do not refer to the injury state directly, but choose connecting factors very likely, if not certain, to lead to the application of the law of the injury state. . . . Only a relatively few sections refer solely to the general formula of section 145 without providing some presumptive choice.
        50
        [Patrick J. Borchers, Courts and the Second Conflicts Restatement: Some Observations and an Empirical Note, 56 Md. L.Rev. 1232, 1239-40 (1997) (footnotes omitted).]
        51

        In a personal injury case, the relevant presumption is contained in section 146, which provides:

        52
        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.
        53
        [Restatement, supra, § 146.]
        54

        As is evident, a pure governmental interest analysis is distinct from the Second Restatement approach. In the former, the strength of the countervailing governmental interests is dispositive. The latter

        55
        does not focus solely on the state interests; instead, it directs courts to apply the law of the jurisdiction with "the most significant relationship" to the issue before the court. In making this determination, the court is required to consider all of the contacts that each jurisdiction has with the issue.
        56
        [Earl M. Maltz, Do Modern Theories of Conflict of Laws Work? The New Jersey Experience, 36 Rutgers L.J. 527, 530 (2005) (footnotes omitted).]
        57

        In other words, "rather than the Second Restatement being intended to provide a metric for determining the strength of state interests, the respective strength of the states' interests is a factor to be considered in measuring the significance of the contacts of the relevant states." Id. at 546.[4]

        58

        Following the promulgation of the Second Restatement, we again modified our analysis, using the Second Restatement framework as our methodology in Fu, supra, [460] 160 N.J. at 119-39, 733 A.2d 1133. Indeed, although dissenting on the merits, Justice Pollock explicitly declared what the majority had implicitly acknowledged by resorting to the Second Restatement: "New Jersey's governmental-interest test is substantially similar to the most-significant-relationship test adopted by the American Law Institute in Restatement (Second) of Conflict of Laws (the `Restatement') (1971). Thus, New Jersey now adheres to the method of analysis set forth in Restatement sections 6 (Section 6) and 145 (Section 145)." 160 N.J. at 144, 733 A.2d 1133 (Pollock, J., dissenting).

        59

        More recently, in Erny, supra, this Court specifically cited the presumption in section 146 and also identified and applied the section 145 contacts and section 6 principles to resolve a choice-of-law issue. 171 N.J. at 95-97, 792 A.2d 1208. Although continuing to denominate our standard as a kind of governmental interest test, we now apply the Second Restatement's most significant relationship standard in tort cases. Under that standard, the law of the state of the injury is applicable unless another state has a more significant relationship to the parties and issues.

        60

        The Second Restatement assessment takes place on an issue-by-issue basis. Id. at 95, 792 A.2d 1208. It is qualitative, not quantitative. Henry v. Richardson-Merrell, Inc., 508 F.2d 28, 32 (3d Cir.1975). In other words, the inquiry does not focus solely on the number of contacts with each state, although that can be persuasive. We also look to the principles in section 6 to measure the significance of the contacts in order to determine whether the presumption has been overcome. Viewed through the section 6 prism, the state with the strongest section 145 contacts will have the most significant relationship to the parties or issues, and thus its law will be applied.

        61
        IV.
        62

        Procedurally, the first step is to determine whether an actual conflict exists. That is done by examining the substance of the potentially applicable laws to determine whether "`there is a distinction'" between them. Lebegern v. Forman, 471 F.3d 424, 430 (3d Cir.2006) (quoting Grossman v. Club Med Sales, Inc., 273 N.J.Super. 42, 49, 640 A.2d 1194 (App.Div. 1994)). If not, there is no choice-of-law issue to be resolved. Rowe v. Hoffman-La Roche, Inc., 189 N.J. 615, 621, 917 A.2d 767 (2007); Gantes v. Kason Corp., 145 N.J. 478, 484, 679 A.2d 106 (1996).

        63

        Here, it is clear, as the parties have conceded, that an actual conflict exists between the laws of Pennsylvania and New Jersey. By enacting the CIA, the New Jersey Legislature has carved charitable corporations out of its tort law system and declared them to be free from most tort liability. That statute provides:

        64
        No nonprofit corporation, society or association organized exclusively for religious, charitable or educational purposes or its trustees, directors, officers, employees, agents, servants, or volunteers shall, except as is hereinafter set forth, be liable to respond in damages to any person who shall suffer damage from the negligence of any agent or servant of such corporation, society or association, where such person is a beneficiary, to whatever degree, of the works of such nonprofit corporation, society or association. . . .
        65
        [N.J.S.A. 2A:53A-7(a).]
        66

        Contrary to New Jersey's policy of immunization, Pennsylvania has definitively abrogated its charitable immunity laws and has chosen to subject charitable corporations to the same tort liability as all [461] others. Flagiello v. Pa. Hosp., 417 Pa. 486, 208 A.2d 193, 207-08 (1965). Essentially then, the conflicting laws of New Jersey and Pennsylvania are two sides of the same coin—basically comprehending polar opposite positions regarding immunity from tort liability. If New Jersey law applies, the case will be dismissed. If Pennsylvania law applies, it will proceed. Because there is an evident conflict, we turn to the Restatement analysis.

        67
        V.
        68

        Once a conflict is established, our point of departure is section 146, which, in this matter, presumes that Pennsylvania law (the local law of the state where the injury occurred) will govern the rights and liabilities of the parties. See Erny, supra, 171 N.J. at 95, 792 A.2d 1208 (commencing analysis from section 146 presumption). In that respect, Camp Jaycee makes a fundamental misstep in its analysis by misconceiving our turn away from the black letter law of lex loci as rendering the place of injury of little importance. Nothing could be further from the truth, as the presumption in section 146 underscores. Indeed, "the simple old rules can be glimpsed through modernity's fog, though spectrally thinned to presumptions." Spinozzi v. ITT Sheraton Corp., 174 F.3d 842, 844 (7th Cir.1999).

        69

        Section 146 recognizes the intuitively correct principle that the state in which the injury occurs is likely to have the predominant, if not exclusive, relationship to the parties and issues in the litigation. Restatement, supra, § 146 comment d. It is from that vantage point that we turn to the remaining contacts set forth in sections 145 and the cornerstone principles of section 6 to determine whether New Jersey has "a more significant relationship . . . [with] the occurrence and the parties" than Pennsylvania. Restatement, supra, § 146. Only such a finding would overcome the presumptive rule of section 146.[5]

        70
        VI.
        71

        Under section 145, the first contact is the place where the injury occurred— Pennsylvania, Although Camp Jaycee characterizes the place of injury as Pennsylvania's only contact with the case, nothing could be further from the truth. Indeed, the second section 145 contact is the place where the conduct causing the injury occurred—that also is Pennsylvania. Despite our dissenting colleagues' contrary suggestion, the only allegation of negligence in the complaint is negligent supervision at the Pennsylvania campsite. In that respect,

        72
        [462] [w]hen both conduct and injury occur in a single jurisdiction, with only "rare exceptions, the local law of the state where conduct and injury occurred will be applied" to determine an actor's liability. That is so because "a state has an obvious interest in regulating the conduct of persons within its territory and in providing redress for injuries that occurred there." The place of injury becomes less important when it is simply fortuitous.
        73
        [Fu, supra, 160 N.J. at 125-26, 733 A.2d 1133 (quoting Restatement, supra, § 145 comment d) (internal citations omitted).]
        74

        The place of the injury is fortuitous when "it bears little relation to the occurrence and the parties with respect to the particular issue." Restatement, supra, § 145 comment e (citing Restatement, supra, § 146 comments d-e). Here, the happening of the tortious conduct and injury in Pennsylvania was not a fortuity, as Camp Jaycee contends—Pennsylvania was the only location in which Camp Jaycee operated its camp for mentally disabled persons. It was a permanent fixture in that location. P.V. resided in Pennsylvania for at least three summers under the control of the camp. From that standpoint, Pennsylvania was not an unanticipated detour on the way to another location; it was the final destination. See Fu, supra, 160 N.J. at 137, 733 A.2d 1133 (citing Reale v. Herco, Inc., 183 A.D.2d 163, 589 N.Y.S.2d 502, 508 (1992) (noting infant plaintiff's decision to vacation at Hershey Park had direct and substantial nexus with Pennsylvania)).

        75

        The third contact is "the domicil, residence, nationality, place of incorporation and place of business of the parties." Restatement, supra, § 145(2)(c). To be sure, P.V. is a New Jersey domiciliary, and Camp Jaycee is a New Jersey not-for-profit corporation. However, P.V. chose to attend the camp in Pennsylvania. Moreover, as the Second Restatement underscores, the use of the term "domiciliary" when referring to corporations is imprecise. See id. § 145 comment e. Courts should focus not only on an entity's place of incorporation but also on its principal place of business. Ibid. Indeed, in balancing those two epicenters, "[a]t least with respect to most issues, a corporation's principal place of business is a more important contact than the place of incorporation, and this is particularly true in situations where the corporation does little, or no, business in the latter place." Ibid.

        76

        In this case, Camp Jaycee was incorporated for the primary purpose of running a camp for mentally disabled children and adults. As far as this record reveals, Camp Jaycee has chosen to perform that function solely in Effort, Pennsylvania, and, although it does maintain an administrative office in New Jersey, the principal place of the business for which it was incorporated is Pennsylvania.

        77

        The final section 145 contact is the place where the relationship between the parties is centered. Even if P.V. signed on as a camper through Camp Jaycee's administrative office in New Jersey (and the record is silent on that issue), it is of little consequence because this is not a contracts case. Rather, it is a tort action and, from that perspective, there is no question that P.V.'s relationship with Camp Jaycee was centered on her camp experience in Effort, Pennsylvania.

        78

        In sum, on one side of the contacts ledger, P.V. and Camp Jaycee are co-domiciliaries of New Jersey. On the other side of the ledger, Camp Jaycee chose to perform the sole charitable function for which it was organized in Pennsylvania; P.V. chose to attend a camp in Pennsylvania; the relationship between P.V. and Camp Jaycee was centered on the camp experience [463] in Pennsylvania; the tortious conduct (negligent supervision) took place solely in Pennsylvania; and P.V. was injured in Pennsylvania.

        79

        Standing alone, New Jersey's contacts are certainly no greater than those of Pennsylvania. However, because our analysis is not merely quantitative, we also look to the principles of section 6 to measure the significance of those contacts. In other words, do the section 6 considerations gin up or diminish the values to be ascribed to the contacts relative to the issue presented?

        80
        VII.
        81

        Reduced to their essence, the section 6 principles are: "(1) the interests of interstate comity; (2) the interests of the parties; (3) the interests underlying the field of tort law; (4) the interests of judicial administration; and (5) the competing interests of the states." Erny, supra, 171 N.J. at 101-02, 792 A.2d 1208 (quoting Fu, supra, 160 N.J. at 122, 733 A.2d 1133).

        82
        A.
        83

        The competing interests of the states and relevant tort law principles overlap in this case. Both Pennsylvania and New Jersey have established tort law systems intended to compensate tort victims and deter wrong-doing. However, from that scheme, New Jersey has carved out charitable corporations and declared them to be free from most tort liability. The Legislature has determined that the proper way to encourage charity in New Jersey and to guarantee continuance of the good works charities provide is to insure they will not have to expend their resources on litigation. "[T]he essence of the public policy favoring charitable immunity is the preservation of private charitable contributions for their designated purposes." Bieker v. Cmty. House of Moorestown, 169 N.J. 167, 178, 777 A.2d 37 (2001) (quoting Parker v. St. Stephen's Urban Dev. Corp., Inc., 243 N.J.Super. 317, 326, 579 A.2d 360 (App.Div.1990)).

        84

        As previous rulings have declared, New Jersey's public policy in enacting the CIA is "strong" and is to be "considered remedial and be liberally construed." Monaghan v. Holy Trinity Church, 275 N.J.Super. 594, 598, 646 A.2d 1130 (App.Div.1994). Although there are exceptions to the immunity provided,[6] those exceptions do not, in any measure, water down the importance of the policy to our state, and to the extent that the Appellate Division suggested otherwise, it was wide of the mark. In any event, our focus is not on the importance of the policy to the state but on the relationship between the policy and the contacts.

        85

        Pennsylvania, on the other hand, has explicitly rejected the policy of charitable immunity. Flagiello, supra, 208 A.2d at 207-08. It is the characterization of Pennsylvania's policy that is at issue in this case. Camp Jaycee denominates Pennsylvania's abrogation of charitable immunity as nothing more than a post-event loss-allocation construct, which it argues renders the conduct-related contacts in Pennsylvania essentially irrelevant. In framing the issue that way, Camp Jaycee suggests that Pennsylvania's interest will not be impaired if we apply New Jersey law to bar the suit of a New Jersey citizen.

        86

        [464] It is not surprising that, in support of that view, Camp Jaycee has relied on the decision in Schultz v. Boy Scouts of America, Inc., 65 N.Y.2d 189, 491 N.Y.S.2d 90, 480 N.E.2d 679 (1985). There, two members of a New Jersey Boy Scout troop were sexually abused by their scoutmaster on an outing in New York. Id. 491 N.Y.S.2d 90, 480 N.E.2d at 681. Their parents sued in New York, and the Court of Appeals of New York held the suit barred by the New Jersey doctrine of charitable immunity to which New York does not subscribe. Ibid. In ruling, the Court characterized New York's abrogation of charitable immunity as a loss-allocation measure. Id. 491 N.Y.S.2d 90, 480 N.E.2d at 686. It concluded that New York, the place of the conduct and injury, had no true interest in the outcome because the victims and defendant were New Jersey residents, thus making New Jersey the state with the preeminent interest— immunity. Id. 491 N.Y.S.2d 90, 480 N.E.2d at 688-89.

        87

        The dissenting judge disagreed with that characterization:

        88
        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 U.S. 747, 756-60, 102 S.Ct. 3348, 3354-3356, 73 L.Ed.2d 1113, on remand 57 N.Y.2d 256, 455 N.Y.S.2d 582, 441 N.E.2d 1100.) Despite the majority's denial, New York's law in question is intimately connected to this overriding interest.
        89
        . . . .
        90
        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 prominent factor deserving significant consideration in the resolution of conflicts problems.
        91
        [Schultz, supra, 491 N.Y.S.2d 90, 480 N.E.2d at 691-92.][7]
        92

        That is our conclusion as well. The proper characterization of Pennsylvania's policy is that it is a measure limned for the purpose of "prevent[ion], protect[ion] and compensat[ion]." Id. 491 N.Y.S.2d 90, 480 N.E.2d at 691. Indeed, when a state decides to abrogate its charitable immunity law, it typically does so with the intention of insuring due care: "[I]t both assures payment of an obligation to the person injured and gives warning that justice and the law demand the exercise of care." Bing v. Thunig, 2 N.Y.2d 656, 163 N.Y.S.2d 3, 143 N.E.2d 3, 8 (1957). In Flagiello, the Pennsylvania Supreme Court used strong language to describe its conduct-regulating interest in abolishing charitable immunity:

        93
        Human nature being what it is, administrators of a hospital, cognizant that the hospital is insulated from tort liability, [465] may be less likely to exercise maximum scrutiny in selecting personnel than if the hospital were held monetarily liable for slipshod, indifferent, and neglectful conduct of employees. As Justice Rutledge said in the Georgetown case, [President and Directors of Georgetown College v. Hughes, 130 F.2d 810, 824 (D.C.Cir.1942),] "immunity tends to foster neglect while liability tends to induce care and caution."
        94
        [Flagiello, supra, 208 A.2d at 202; see also Molitor v. Kaneland Cmty. Unit Dist. No. 302, 18 Ill.2d 11, 163 N.E.2d 89, 95 (1959) ("[W]e believe that abolition of such immunity may tend to decrease the frequency of school bus accidents. . . ."), superseded by statute, 745 ILCS 10/1-101 to 10-101, as recognized in Harrison v. Hardin County Cmty. Unit Sch. Dist. No. 1, 197 Ill.2d 466, 259 Ill.Dec. 440, 758 N.E.2d 848, 851 (2001); Silva v. Providence Hosp. of Oakland, 14 Cal.2d 762, 97 P.2d 798, 802, 805 (1939) (holding a nonprofit hospital liable to an injured party because "[California] should not be added to the list of those whose courts have encouraged—as in some degree they surely have—the agents of charitable institutions to render less than due care for the security of life, limb, and property, the very things which it is the sole purpose of such institutions to preserve and protect.").]
        95

        Our dissenting colleagues' suggestion that the heart of Flagiello was the transformation of hospitals into "big business" and the protection of Pennsylvania residents says too little. Post at 173-74, 962 A.2d at 478-79. Flagiello devoted equal, if not more, attention to the notion that every wrong has a remedy and the paradoxical and unjust results generally produced by the charitable immunity doctrine. Id. at 195, 197, 203, 204-05.

        96

        Moreover, the Pennsylvania Supreme Court has since extended Flagiello to include torts occurring to non-paying patients in hospitals, Siewicz v. Wyo. Valley Hosp., 417 Pa. 533, 208 A.2d 238, 238 (1965), and torts on property owned by religious organizations, Nolan v. Tifereth Israel Synagogue of Mount Carmel, Pa. Inc., 425 Pa. 106, 227 A.2d 675, 676-77 (1967).

        97

        Additionally, in its ruling, the court in Flagiello never referred specifically to Pennsylvania residents but to patients generally. 208 A.2d at 195, 197, 203, 204-05. In fact, the court approvingly quoted Judge Fuld's prophetic statement in Bing that

        98
        [i]t is not too much to expect that those who serve and minister to members of the public should do so, as do all others, subject to that principle and within the obligation not to injure through carelessness. It is not alone good morals but sound law that individuals and organizations should be just before they are generous.
        99
        [Bing, supra, 163 N.Y.S.2d 3, 143 N.E.2d at 8.]
        100

        Essentially then, there are two conflicting policies at issue here—New Jersey's post-event loss-allocation policy and Pennsylvania's conduct-regulation and redress policy. The question is how those policies relate to the relevant contacts.

        101

        We conclude that, in the main, the policies are aligned with Pennsylvania's contacts. As we previously stated, the fact that the conduct and injury occurred in Pennsylvania was not fortuitous. Camp Jaycee has a continuous and deliberate presence in Pennsylvania. The camp is tasked with the responsibility of supervising and caring for mentally disabled campers for extended periods of time within the commonwealth. It is that perennial presence and activity in Pennsylvania that is [466] inextricably intertwined with Pennsylvania's interest in conduct-regulation. If Pennsylvania's tort law is to have any deterrent impact and protect other campers from the type of harm inflicted upon P.V., it must be applied in situations where tort-feasors repeatedly perform their tasks within the state, regardless of the home state of the campers. Indeed, there is no way for a state to "make its territory safe for residents without making it safe for visitors too. If it is unsafe for visitors it is unsafe for residents." Louise Weinberg, Against Comity, 80 Geo. L.J. 53, 89 (1991).[8]

        102

        Concededly, New Jersey's interest in protecting its charitable corporations is aligned with the parties' co-domiciliary status in this state. However, where, as here, the plaintiff chooses to attend camp and the corporation opts to perform its primary charitable acts outside the state, the strength of that contact is diluted. Indeed, immunity laws are designed to encourage persons to engage in the particular conduct within the state. Where defendant's conduct takes place in another state, the immunity goals are diminished. Restatement, supra, § 146 comment e.

        103
        B.
        104

        The interest of interstate comity seeks to "further harmonious relations between the states and to facilitate commercial intercourse between them." Restatement, supra, § 6 comment d. It considers "whether application of a competing state's law would frustrate the policies of other interested states." Fu, supra, 160 N.J. at 122, 733 A.2d 1133. Affording immunity for the negligence committed by Camp Jaycee in Pennsylvania would significantly frustrate Pennsylvania's purpose in deterring tortious conduct within the commonwealth. Cf. id. at 137, 733 A.2d 1133 ("New York `has an obvious interest in regulating the conduct of persons within its territory and in providing redress for injuries that occurred there.'") (citation omitted); see also Erny, supra, 171 N.J. at 108, 792 A.2d 1208 (applying New York law "[b]ecause the policy underlying New Jersey's law is not thwarted by application of New York . . . law to this case, and because the compensation and deterrence policies underlying New York's law are advanced.").

        105

        Although we have departed from the rigid application of the lexi loci approach, we have continuously deferred to the rights of other jurisdictions to regulate conduct within their borders. That is particularly so when the conduct is ongoing and directed towards residents and non-residents alike.

        106

        New Jersey can continue to protect charities operating in this state even if the law of Pennsylvania is applied to the Pennsylvania activities in this case. The converse is not true. If New Jersey's immunity law is applied, Pennsylvania's ability to regulate the conduct of those who chose to operate within its borders will be substantially impaired. See, e.g., Mellk, supra, 49 N.J. at 230, 229 A.2d 625 ("In the present case the State of Ohio has a real interest in having its rules of the road apply to the conduct of the parties in the operating of a motor vehicle on the highways of that state. Under principles of comity the courts of New Jersey will recognize and follow the Ohio laws relating to [467] traffic safety."); Fu, supra, 160 N.J. at 129, 733 A.2d 1133 (citing Bray v. Cox, 39 A.D.2d 299, 333 N.Y.S.2d 783, 785-86 (1972)) (applying New York's law despite both parties being domiciled in New Jersey in recognition that "New York has strong governmental interests in applying Section 388 to an accident within its borders even when none of the parties is a New York resident").

        107
        C.
        108

        In respect of the parties' expectations, Camp Jaycee argues that the parties' co-domiciliary status in New Jersey gave it a reasonable belief that it would be immune under the CIA and that P.V. should have been aware of that immunity. In other words, it organized in New Jersey so it would not have to respond in tort for its wrongful actions toward beneficiaries, and P.V. understood that protection. That view overlooks the reality of this case: Camp Jaycee operates its camp in Pennsylvania; P.V. chose to attend the camp in Pennsylvania; there is nothing in the camp's certificate of incorporation to suggest that it is limited to New Jersey residents; P.V. was sexually assaulted at the camp in Pennsylvania; and this lawsuit alleges carelessness and negligence at the camp. In Fu, supra, we dismissed the notion that a corporation could reasonably expect automatic immunization when conducting affairs outside the state: "[H]owever reasonable may be a rental agency's reliance on New Jersey's vicarious liability laws for purposes of an accident in this State, any blanket reliance on this State's law as a defense to conduct occurring in a foreign jurisdiction could not be justified." 160 N.J. at 135, 733 A.2d 1133. Thus, although the parties legitimately might have expected that Camp Jaycee's activities in New Jersey were immune under the CIA, they should not have expected it to carry that immunity into another state.

        109
        D.
        110

        The interests of judicial administration require courts to consider issues such as practicality and ease of application, factors that in turn further the values of uniformity and predictability. Erny, supra, 171 N.J. at 102, 792 A.2d 1208; Fu, supra, 160 N.J. at 124, 733 A.2d 1133. As the Second Restatement points out, the section 146 presumption in favor of the law of the state of the injury, in itself, "furthers the choice-of-law values of certainty, predictability and uniformity of result and, since the state where the injury occurred will usually be readily ascertainable, of ease in the determination and application of the applicable law." Restatement, supra, § 146 comment c. Moreover, where, as here, the contacts and principles of the Second Restatement lead inexorably to the conclusion that a particular state's relationship to the parties and issues is predominant, judicial administration considerations necessarily yield. Erny, supra, 171 N.J. at 102, 792 A.2d 1208 (citing Fu, supra, 160 N.J. at 124, 733 A.2d 1133). See generally Symeon C. Symeonides, The Need for a Third Conflicts Restatement (And a Proposal for Tort Conflicts), 75 Ind. L.J. 437, 462 (2000) (recognizing ease-of-application consideration must yield to judicious results in fact-patterns analogous to present case).

        111
        VIII.
        112

        In sum, in balancing the relevant elements of the most significant relationship test, we seek to apply the law of the state that has the strongest connection to the case. As we have said, in a personal injury action, the analysis begins with section 146 of the Second Restatement, which presumes that the local law of the state of injury will be applied. If the presumptive [468] rule points to a specific jurisdiction, the court will look to the remaining contacts in section 145 and the principles embodied in section 6 of the Restatement to determine whether another state has a more significant relationship to the parties or issues. In that case, the presumption will be overcome; otherwise, the presumption will govern.

        113

        Here, under section 146, the law of Pennsylvania is presumptively applicable because it is the state of injury. In addition, it is the state in which P.V. chose to attend camp; in which Camp Jaycee chose to carry out its charitable function; in which the tortious conduct occurred; and in which the parties' relationship was centered. On the other side of the contacts ledger, P.V. and Camp Jaycee are New Jersey domiciliaries. Thus, both jurisdictions bear a relationship to the case.

        114

        On a purely quantitative level, Pennsylvania's contacts substantially outweigh those of New Jersey, suggesting that it is the state with the most significant relationship to the parties and issue. Nevertheless, we have looked to section 6 to determine whether more or less weight should be ascribed to those contacts, thus altering the balance and warranting an override of the section 146 presumption.

        115

        Our conclusion is that the presumption has not been overcome. Although both states have strong countervailing policies regarding immunity, Pennsylvania's policy of conduct-regulation and recompense is deeply intertwined with the various Pennsylvania contacts in the case. On the contrary, New Jersey's loss-allocation policy does not warrant the assignment of priority to the parties' domicile in New Jersey in connection with activities outside the state's borders.

        116

        The comity considerations likewise favor the Pennsylvania contacts because the application of Pennsylvania law would not thwart New Jersey's interest in protecting charitable activities in this state, whereas the application of New Jersey law would necessarily subvert Pennsylvania's interest in deterrence and recompense. Further, the parties could not have expected New Jersey immunity to apply to the camp's out-of-state activities. Finally, no judicial administration interest is implicated here.

        117

        In short, neither the contacts themselves nor the section 6 considerations support the conclusion that New Jersey has a more significant relationship to the case than Pennsylvania. In fact, the converse is true. Although we recognize the vitality of our own policy of immunizing charities, in this case, it must yield to the presumption favoring application of Pennsylvania law, which has not been overcome.

        118
        IX.
        119

        The judgment of the Appellate Division is affirmed. The case is remanded to the trial judge for further proceedings consistent with the principles to which we have adverted.

        120
        Justice HOENS, dissenting.
        121

        Today, a majority of this Court has chosen to adopt a new framework for deciding conflict of law disputes. Although stating that there is nothing novel in its approach, and although supporting that assertion with citations to parts of this Court's prior opinions (both majorities and dissents) as proof that this Court has long used the analytical model embodied in the Restatement (Second) of Conflict of Laws (1971), in reality, the majority has substituted that test for our traditional one. At the same time, the majority has tossed aside our far more nuanced "governmental interest" approach, in which the factors identified by the Restatement (Second) were but an occasionally useful guide, and [469] embraced in its place the Restatement (Second)'s "most-significant-relationship" test.

        122

        In doing so, the majority ignores the important differences between the two approaches, overlooks the essential focus of our traditional test, and misapplies the factors embodied in the Restatement (Second). At the same time, the majority has selected a test that has been criticized, by some of the same authorities[9] that the majority cites for its separate purposes, as results oriented.

        123

        More to the point, in the process of adopting a new test more or less sub silentio, the majority ignores the remarkably strong interest that our Legislature has expressed about charitable immunity and substitutes the alternate view of a court in Pennsylvania that mirrors the approach this Court long ago attempted to embrace as more "enlightened." Sadly, when the facts and issues are analyzed by weighing the competing interests of the two states in accordance with our traditional governmental interest approach, or even in accordance with that approach as informed by the Restatement (Second), this plainly sympathetic plaintiff has no avenue for relief. In adopting a new test, and in applying a test that provides a mechanism for relief, however, the majority creates consequences here in our State which our Legislature has repeatedly sought to prevent.

        124

        Because I cannot join in what I see as a majority of the Court substituting its view of an appropriate public policy for the public policy choice explicitly announced by our Legislature, I respectfully dissent.

        125
        I.
        126

        The majority traces the history of choice of law principles with a focus on its development in terms largely external to our own jurisprudence. To be sure, our method of analysis has not evolved in a vacuum. Instead, our analytical framework has changed both in tandem with and, at times, in stark divergence from, the path forged by the academics who seek to shape our thinking. There is no need to retrace the entirety of the development of this body of law either here in New Jersey or as it has been described in the scholarly literature. There is, however, a need to make plain the differences between our traditional analysis and the test set forth by the majority.

        127

        We abandoned the simplistic lex locus analysis of the first Restatement of Conflict of Laws,[10] in favor of the more flexible governmental interest analysis because the "place of the wrong" test often led to harsh and unacceptable results. See Veazey v. Doremus, 103 N.J. 244, 247, 510 A.2d [470] 1187 (1986) (citing Mellk v. Sarahson, 49 N.J. 226, 228-29, 229 A.2d 625 (1967)). We therefore elected to abandon a rule that provided certainty, uniformity, and predictability, in favor of one that, in spite of its complexities, we were confident would be both fair to all of the litigants and faithful to the public policy of this State. Ibid.

        128

        The governmental interest analysis contemplates a two-step approach. In its traditional articulation, the court first determines whether there is a conflict between the laws of the various jurisdictions that have an interest in the matter. If a conflict of laws is found, the court then "identif[ies] the governmental policies underlying the law of each state" and determines "how those policies [were] affected by each state's contacts to the litigation and to the parties." Veazey, supra, 103 N.J. at 248, 510 A.2d 1187. After engaging in these two steps, the court must then "apply the law of the state with the greatest interest in governing the specific issue in the underlying litigation." Fu v. Fu, 160 N.J. 108, 118, 733 A.2d 1133 (1999). That is, if an actual conflict exists, the second step "seeks to determine the interest that each state has in resolving the specific issue in dispute." Gantes v. Kason Corp., 145 N.J. 478, 485, 679 A.2d 106 (1996). That requires the court to identify the governmental policies underlying the law of each state and determine whether "those policies are affected by each state's contacts to the litigation and to the parties." Veazey, supra, 103 N.J. at 248, 510 A.2d 1187; see Rowe v. Hoffman-La Roche, 189 N.J. 615, 621-22, 917 A.2d 767 (2007).

        129

        In 1999, however, we were confronted with the need to balance the "well articulated" public policy underlying a New York statute against the difficult to discern public policy bases for the common law pronouncements of this State's courts. See Fu, supra, 160 N.J. at 117, 733 A.2d 1133. It was only in that context that we turned to the factors set forth in the Restatement (Second), resorting to them only because they were helpful in identifying the relevant public policies and interests and, therefore, useful in performing our governmental interest analysis. Id. at 119-35, 733 A.2d 1133. In particular, we looked to a variety of factors drawn from sections 6 and 145 of the Restatement (Second), describing those factors as "guides." Id. at 119, 733 A.2d 1133.

        130

        Similarly, in Erny v. Merola, 171 N.J. 86, 792 A.2d 1208 (2002), we found the Restatement (Second) factors to be a useful tool. There we considered conflicting statutes of this State and New York, which included clear expressions of policy, but did not on initial review lend themselves to the proper application of the governmental interest analysis. We therefore turned again to the Restatement (Second) factors, concluding that they were helpful in identifying the interests that the application of each statute would serve. Erny, supra, 171 N.J. at 94, 792 A.2d 1208. Neither in Fu nor in Erny did we abandon the governmental interest analysis in favor of a wholesale embrace of the Restatement (Second) test. Indeed, suggesting, as the majority does, see ante at 142-43, 962 A.2d at 460, that in Erny we applied only the Restatement (Second) test is simply inaccurate; the governmental interest analysis pervades that opinion and fully supports its conclusion. That we have not abandoned the governmental interest analysis for the Restatement (Second) framework could not be plainer than a cursory reading of Rowe, our most recent choice of law decision. Although that decision is largely overlooked by the majority, we there found resort to the guidance afforded by the Restatement (Second) to be unnecessary. See Rowe, supra, 189 N.J. at 622, 917 A.2d 767.

        131

        [471] Nor is the governmental interest test the same kind of an inquiry as the most significant relationship test. Merely putting the names of the two tests side by side makes it plain that they are not the same, but have a different focus entirely. Indeed, the latter, with its focus on contacts with each state, often devolves into a curious throwback to lex locus, a shortcoming that is abundantly apparent from its application in this case. In contrast, the governmental interest approach looks at contacts with each state, but also seeks to evaluate the policies that underlie the law of each state and to weigh how the application of that law will advance or frustrate the policy choices that each has made.

        132

        That is not to imply that the Restatement (Second) factors are irrelevant or that they are, when applied as a separate analytical framework, inadequate. In actuality, the majority has overlooked both the way in which this Court has, since Fu, appropriately utilized those factors and the manner in which the correct application of the Restatement (Second) test would support a result entirely consistent with our traditional governmental interest methodology.

        133

        As this Court has explained, the most important factor in deciding a conflict of laws issue is the evaluation of the competing interests of the states. In undertaking this part of our analysis, we examine the policies the Legislature "intended to protect by having [its] law apply to wholly domestic concerns" and then determine "whether those concerns will be furthered by applying that law to the multi-state situation." Fu, supra, 160 N.J. at 125, 733 A.2d 1133 (quoting Pfizer, Inc. v. Employers Ins. of Wausau, 154 N.J. 187, 198, 712 A.2d 634 (1998)). That is to say, once the court has identified the policies that underlie each state's law, it must then consider the effect that applying the law of each state to the particular litigation would have on the policies of each of those states.

        134

        As we commented recently:

        135
        [I]f a particular policy is designed to enhance a specific group and that group is neither a party to nor potentially affected by the litigation, then that state's interest is not aligned with its policy and it would be unlikely that that state would have the strongest governmental interest in deciding the issue.
        136
        [Rowe, supra, 189 N.J. at 623, 917 A.2d 767 (citing White v. Smith, 398 F.Supp. 130, 134 (D.N.J.1975)).]
        137

        Conversely, however, if a policy is designed for the protection of a particular group and that group will be affected by the litigation, then that state's interest in applying its policy will be strong.

        138

        Our approach to conflict of laws has therefore evolved beyond the long-abandoned lex locus test in which only the place of the wrong was considered. That, however, is not to say that the place of the wrong is irrelevant to our analysis, for as we have recognized previously, the location of a tort is often of particular importance. Indeed, both in Fu and again in Erny, this Court specifically pointed to the importance of a confluence between the place of the wrong and of the injury. In each case, we noted that, if both conduct and injury occur in the same state, the local law of that state will be applied with "rare exceptions," Fu, supra, 160 N.J. at 125-26, 733 A.2d 1133, or except in "rare instances," Erny, supra, 171 N.J. at 103, 792 A.2d 1208.

        139

        In each of those decisions, that expression about the importance of the place where conduct and injury occurred was indeed derived from the analysis of the Restatement (Second) factors; in neither of those decisions, however, did the inquiry end there. Instead, in both, the Court engaged in the far more complex, nuanced [472] evaluation of governmental interests, counting the interest of the jurisdiction where conduct and injury coincide as one, albeit an important one, of those factors. See Erny, supra, 171 N.J. at 103, 792 A.2d 1208; Fu, supra, 160 N.J. at 125-26, 733 A.2d 1133. More to the point, we have been willing to reject the law of the locus of the injury if a strong interest of the competing jurisdiction dictates otherwise. See Veazey, supra, 103 N.J. at 248-51, 510 A.2d 1187 (applying Florida law to Florida domiciliaries who were injured in automobile accident in New Jersey).

        140

        Far, therefore, from the majority's assertion that we have long used the Restatement (Second) test, we have merely used the factors and theories embodied in that test to "inform" our application of our governmental interest test. Nor is it accurate to suggest that the Restatement (Second)'s factors are devoid of the recognition that the states whose laws might be applied to any dispute have interests to be evaluated and policies to be considered in what is essentially a weighing process. The guiding principles of the Restatement (Second) themselves require analysis of the "policies" of the states, see, e.g., § 6(2)(b) ("the relevant policies of the forum"); § 6(2)(c) ("the relevant policies of other interested states"); § 6(2)(e) ("the basic policies underlying the particular field of law"). In focusing narrowly on section 145, expressing the general principles for torts, and section 146, expressing factors relevant to personal injuries, the majority does not grapple with the directive that all of those factor's be evaluated through the prism of the policies expressed by each state. Even section 146, with its apparently narrow reference to place of injury and conduct, demands a broader focus by requiring resort to a section 6 analysis to determine whether "some other state has a more significant relationship." Restatement (Second) § 146 (1971).

        141

        In the end, I part with the majority because this matter requires the Court to follow no different path than the governmental interest analysis that we have traditionally utilized. Fundamental to that approach, indeed, central to applying the factors identified by the Restatement (Second), is an analysis and a comparison of the public policies that give rise to the laws of the two jurisdictions that are in conflict. The underlying public policies that have led to the abolition of charitable immunity in Pennsylvania are plain in the decision of its highest court; the policies that have fueled its continued viability here are equally plain in the legislative history of our statute. We need look no further than those sources to inform our decision.

        142
        II.
        143

        Application of the governmental interest analysis requires a court to consider the policies that support the two different doctrines relating to charitable immunity that are in place in this State and in Pennsylvania.

        144
        A.
        145

        The inquiry must begin with the New Jersey Charitable Immunity Act, N.J.S.A. 2A:53-7 to -11, and the public policy behind that Act. The doctrine of charitable immunity found its earliest expression in New Jersey in a 1925 decision of the Court of Errors and Appeals, see D'Amato v. Orange Mem'l Hosp., 101 N.J.L. 61, 127 A. 340 (E. & A.1925), applying a public policy rationale derived from the common law. Id. at 64-65, 127 A. 340. In 1958, however, this Court rejected the doctrine in a trio of decisions in which plaintiffs sought to pursue negligence actions against three separate kinds of charities. See Benton v. Young Men's Christian [473] Ass'n, 27 N.J. 67, 69, 141 A.2d 298 (1958) (rejecting charitable immunity for YMCA branch); Collopy v. Newark Eye and Ear Infirmary, 27 N.J. 29, 47-48, 141 A.2d 276 (1958) (rejecting charitable immunity for hospital on public policy grounds); Dalton v. St. Luke's Catholic Church, 27 N.J. 22, 24-25, 141 A.2d 273 (1958) (rejecting charitable immunity for church, based on reasons expressed in Collopy).

        146

        In particular, in Collopy, a case in which the plaintiff had been injured while he was a hospital patient, the Court listed its reasons for abrogating the doctrine of charitable immunity. Principally, the Court explained that the doctrine was merely a judicially-created one, see Collopy, supra, 27 N.J. at 31, 141 A.2d 276; that it had been eroded over time through court-sanctioned exceptions, id. at 31-32, 141 A.2d 276; that it had little historical basis as compared to other common law tort duties, id. at 32, 141 A.2d 276; that it had been increasingly criticized by courts of other states for its "lack of current utility or justification," id. at 33, 141 A.2d 276; and that it had engendered "overwhelming[]" opposition in the "[p]rofessorial and student writings," id. at 35, 141 A.2d 276. In particular, in rejecting the doctrine, the Court commented that it did so because it wanted to conform the law to what it perceived to be the "prevailing notions of public policy." Id. at 39, 141 A.2d 276. Two members of the Court filed dissents attacking both the majority's reliance on decisions from other states and commentators, id. at 61-67, 141 A.2d 276 (Burling, J., dissenting), as well as the theoretical underpinnings and the wisdom of the decision itself, id. at 48-61, 141 A.2d 276 (Heher, J., dissenting).

        147

        Our Legislature responded to this Court's abrogation of the doctrine of charitable immunity swiftly and decisively. See, e.g., Schultz v. Roman Catholic Archdiocese of Newark, 95 N.J. 530, 533-37, 472 A.2d 531 (1984) (explaining statutory history). The initial version of the bill, passed shortly after this Court's three decisions, included a sunset provision, providing that, unless re-enacted, it would expire a year later. Assembly Committee Substitute for Senate Bill No. 204 (July 22, 1958). It was intended to be a "stopgap" measure to return the State to its pre-Collopy status and afford the Legislature an opportunity to further address the question of the usefulness of the doctrine and its limits. Governor Meyner, in signing the 1958 bill into law, explained that the one-year statute would allow time for "the will of the representatives of the people" to be made clear. See Governor's Statement on Assembly Committee Substitute for Senate Bill No. 204 (July 22, 1958).

        148

        Our Legislature promptly did just that, enacting the Charitable Immunity Act before that first year expired, and without any sunset provision. L. 1959, c. 90, § 1 (codified at N.J.S.A. 2A:53A-7). When our Legislature spoke on the issue, it did so in stark contrast to the views expressed by this Court and the scholars on whom this Court had relied. Our Legislature also made its choice to reinstate the doctrine after the publication of two strongly-worded editorials in the New Jersey Law Journal that argued for a different course. The first applauded the Court's wisdom, proclaiming that "[f]ew will quarrel with the conclusion of the majority that our principles of justice today require that even a charity must pay its just debts and obligations" and commenting on the "impressive array of the considered writings of legal scholars" which the Court found persuasive. See Justice Before Charity, 51 N.J.L.J. 4 (May 8, 1958). The second, printed as the stopgap bill was being considered, called upon the Legislature to join the "enlightened" jurisdictions that had [474] abolished the doctrine. See The Senate Acts, 51 N.J.L.J. 4 (June 5, 1958).

        149

        In spite of those strong expressions of opinion, the Legislature enacted a law that was explicit in its embrace of the doctrine of charitable immunity as an expression of the public policy of this State. See N.J.S.A. 2A:53A-7(a). Although the statute has been amended from time to time, it remains a forceful statement of the will of the citizens as expressed through our Legislature. The Act's public policy underpinnings are simple and straightforward: namely, an intention to preserve the assets of the charities, specifically the dollars donated to those organizations by the people of our State, so as to devote them to the pursuit of the charities' purposes rather than to permit those dollars to be expended for the payment of damage awards to a particular claimant.

        150

        In adopting the Charitable Immunity Act our Legislature essentially reinstated the common law doctrine,[11] including its historically-recognized exceptions. Significantly, our Legislature incorporated the exception that permits an individual who is not a beneficiary of a charity to sue for damages. See Lindroth v. Christ Hosp., 21 N.J. 588, 592-93, 123 A.2d 10 (1956) (concluding that doctrine did not bar suit against charity by one who was not a beneficiary of its good works).

        151

        At the same time, it appears that the Legislature responded to the Collopy Court's concern that hospitals being operated as nonprofit entities had far more in common with business ventures than they had with traditional charities. See Collopy, supra, 27 N.J. at 39-40, 141 A.2d 276. The Act therefore permitted suits by beneficiaries of charities operating exclusively as hospitals, albeit with a cap on damages. N.J.S.A. 2A:53A-8. This balanced approach demonstrates that the Legislature weighed carefully its decision about whether, and how extensively, to embrace the doctrine of charitable immunity from the start.

        152

        In adopting the Act in 1959, the Legislature made clear its intentions about the manner in which the Act was to be construed. From its inception the statute has specifically provided:

        153
        This act shall be deemed to be remedial and shall be liberally construed so as to afford immunity to the said corporations, societies and associations from liability as provided herein in furtherance of the public policy for the protection of nonprofit corporations, societies and associations organized for religious, charitable, educational or hospital purposes.
        154
        [N.J.S.A. 2A:53A-10.]
        155

        This expression of the Legislature's intent is unlike the ordinary language utilized to identify the purposes of remedial legislation. Most often, remedial legislation is interpreted so that it is applied liberally for the benefit of claimants. See, e.g., New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49; Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. The Charitable Immunity Act, however, specifies that it is to be "liberally construed" in favor of the protected entities, that is, the charitable institutions that the Legislature has chosen to shield, and against the interests of those who would make claims against them. N.J.S.A. 2A:53A-10.

        156

        From time to time, our Legislature has amended the Charitable Immunity Act, [475] but each time it has done so in response to a specific circumstance. More often than not, the amendments have served to broaden rather than to limit or diminish the scope of the Act. For example, in 1987 the Act was amended so that it would extend the scope of immunity to include a variety of officers and volunteers working with charities. See L. 1987, c. 87 (Senate Bill No. 2705 codified at N.J.S.A. 2A:53A-7.1). The Statement of Assembly Insurance Committee that accompanied that bill expressed its reasoning as follows:

        157
        Nonprofit organizations have recently experienced difficulty in attracting and keeping qualified individuals to serve as officers and on boards of directors of nonprofit and charitable associations because of the potential exposure to lawsuits which exists. Exposure to liability in these cases often means that the individual's own assets are placed in jeopardy, and many individuals have been reluctant to subject themselves to this risk. By giving immunity to trustees, officers, directors, and other uncompensated volunteers, the bill's purpose is to permit nonprofit and charitable organizations to continue to attract able people to serve in these capacities.
        158
        [Assembly Insurance Committee, Statement to Senate Bill No. 2705 (Feb. 5, 1987).]
        159

        Even so, as its sponsor commented, the bill provided that officers and directors serving on such boards without compensation would not be protected if "their actions evidence a reckless disregard for their duties." Sponsor's Statement, Statement to Senate Bill No. 2705 (1986); see L. 1987, c. 87, § 1(a) (codified at N.J.S.A. 2A:53A-7.1(a)). Similarly, in extending the Act's protections to volunteers working on behalf of charities, the Legislature carefully excluded protection for their acts that are "willful, wanton or grossly negligent" or for "damage as the result of . . . negligent operation of a motor vehicle." L. 1987, c. 87, § 1(b) (codified at N.J.S.A. 2A:53A-7.1(b)).

        160

        In the following legislative session, the Act's protective scope was extended twice more. First, immunity was afforded to "coaches, managers, or officials of sports teams which are organized under the auspices of or sponsored or funded by counties or municipalities." See L. 1988, c. 87 (amending L. 1986, c. 13, and broadening Little League immunity); Assembly Insurance Committee, Statement to Senate Bill No. 1521 (May 23, 1988). Shortly thereafter, the protections of the Act were extended to boards of directors and volunteers of nonprofit blood banks, see L. 1988, c. 179, § 1 (codified at N.J.S.A. 2A:53A-7.2), in recognition of the challenges faced by those important entities and organizations as a result of the AIDS crisis. See Sponsor's Statement, Statement to Senate Bill No.1995 (Feb. 1, 1988).

        161

        The 1989 legislative session brought three more extensions of the Act, as bills were enacted to include library trustees, unless reckless, see L. 1989 c. 171, § 1 (Senate Bill No. 577 codified at N.J.S.A. 2A:53A-7.3); officers and volunteers serving nonprofit cemetery corporations organized for the purpose of maintaining or operating burial places, see L. 1989 c. 249 (Senate Bill No. 1244 codified at N.J.S.A. 2A:53A-7.1), and persons serving without compensation on economic development boards, see L. 1989, c. 283 (Senate Bill No. 235 codified at N.J.S.A. 2A:53A-7.1).

        162

        In 1995, the Legislature again amended the Act, extending immunity to a broad class of persons in response to concerns that charities were having trouble finding qualified people who were willing to serve on their boards of directors or as volunteers. In doing so, the Legislature spoke loudly about its view of the charitable immunity [476] doctrine in general. In particular, two aspects of the Sponsor's Statement in support of the bill that was enacted as L. 1995, c. 183 (amending N.J.S.A. 2A:53A-7) are significant. First, the Sponsor reiterated "the strongly held public policy of protecting charitable institutions against claims by its beneficiaries has been consistently reaffirmed and extended." Statement to Assembly Bill No. 1775 (May 12, 1994); see also Assembly Insurance Committee, Statement to Assembly Bill No. 1775 (June 13, 1994).

        163

        Second, that statement clearly identifies the public policies and the underlying purpose for the doctrine.

        164
        Given the purpose of the charitable immunity statute, to preserve the assets of the charity, it seems inconsistent with New Jersey public policy for the statute to preclude claims against the institution relating to the actions of its officers or employees, but permit claims directly against those officers or employees who are acting within the scope of their employment and to which the institution answers financially.
        165
        [Sponsor's Statement, Statement to Assembly Bill No. 1775 (May 12, 1994).]
        166

        During that same time frame, however, the Legislature made it clear that the doctrine is not without limits. In 1991, as part of a more general reform of the health care industry, the cap limiting damages that could be recovered from charities operating exclusively as hospitals was greatly increased. See L. 1991, c. 187. Although that increase in a potential damage award was part of a larger reform effort that balanced a variety of health care and insurance interests, it suggests that the Legislature again struck a balance in favor of injured plaintiffs rather than the nonprofit hospitals that had long been viewed as more like corporations than charities. In 1995, the Legislature limited the protections afforded to hospitals again, replacing the broadly worded protection with a narrower one for nonprofit hospital corporations, excluding from its scope certain health care providers who were compensated professionals employed by or acting as agents or servants of an otherwise exempt charity. See L. 1995, c. 183 (codified at N.J.S.A. 2A:53A-7(b)).

        167

        Of particular significance to the issue now before this Court, the Legislature has not been silent about its view of the scope of immunity for charities faced with claims of sexual abuse. In fact, the 1995 amendment expressly clarifies that there is no immunity for any of the individuals otherwise protected by the Act if they "caus[e] damage by a willful, wanton or grossly negligent act of commission or omission, including sexual assault and other crimes of a sexual nature." N.J.S.A. 2A:53A-7(c). That amendment did not make the charity itself liable to a victim of sexual abuse; it did, however, strip immunity from employees, officers, and volunteers, who otherwise would be within the broad scope of the Act's historically protective sweep.

        168

        Even so, the 1995 amendment to the Act demonstrates the Legislature's intention to treat those victims somewhat differently from others. It still did not generally permit suits by beneficiaries, limiting relief to those with claims based on "a willful, wanton or grossly negligent act." Ibid. Moreover, it still did not permit suits against the charities themselves, but it signaled a careful and thoughtful response by our Legislature to what was becoming an all-too-frequent occurrence.

        169

        The Legislature has since spoken further and has again considered the public policy behind charitable immunity in the face of repeated complaints relating to sexual abuse. In 2006, the Legislature amended the Act to remove immunity in cases involving claims that a charity engaged [477] in negligent hiring and supervision when the negligence proximately caused the sexual molestation of a beneficiary of the charitable organization who was under the age of eighteen. N.J.S.A. 2A:53A-7.4 (enacting Senate Bill No. 540). This, too, has been a balanced and limited response. Although the Legislature, for the first time, has permitted a direct claim to be brought against a charity by a beneficiary, it has limited strictly both the nature of the claim that may be brought and the identity of the injured person on whose behalf such a claim may be made.

        170

        This lengthy series of enactments, spanning nearly half a century, demonstrates a consistent expression by our Legislature of its desired public policy as it relates to charities. Overwhelmingly, that policy is one of encouraging the operation of charities and protecting their assets for use in the pursuit of their charitable purposes. It is, as well, a policy of assisting charities in their work by helping them to attract volunteers to serve on their boards and in their endeavors. Moreover, it is a policy of protecting charities' pools of donors who might otherwise decline to contribute to the charitable mission were their donated dollars at risk of diversion from that mission to either litigation or compensation of injured persons except in carefully defined and limited circumstances.

        171
        B.
        172

        Pennsylvania's contrary policy as it relates to tort liability and charities is expressed, as the majority points out, in a 1965 decision of its highest court. Flagiello v. Pa. Hosp., 417 Pa. 486, 208 A.2d 193 (1965). In Flagiello, the Supreme Court of Pennsylvania traced the history of charitable immunity and concluded that "[i]f there was any justification for the charitable immunity doctrine when it was first announced, it has lost that justification today." Id. at 197.

        173

        In discarding a doctrine that it concluded was archaic and lacking in sound reason, the Pennsylvania court was motivated by a number of considerations. First, the court relied heavily on the fact that the defendant in that matter was a hospital, an entity that had been transformed over time from a provider of free medical care for the needy into a large and well-funded "business institution." Id. at 196-97. As such, the court considered the history of charities generally and the evolution of many of them into modern businesses. Relying heavily on that evolution, the Court reasoned that there was no justification for providing such entities with immunity from suit. Id. at 204.

        174

        Second, the court relied on its belief that injured citizens of that state were entitled to be compensated. It reasoned that charitable immunity amounted to a denial of equal justice because a citizen injured by any other business would have recourse, but one injured by a hospital would not. Id. at 201. Third, the court pointed out that the doctrine was not absolute, leading to "paradoxical" results that appeared to weigh property interests more heavily than "interest in life and limb." Id. at 203 (quoting E.H. Schopler, Annotation, Immunity of Nongovernmental Charity From Liability For Damages In Tort, 25 A.L.R.2d 29, 40, § 3 (1952)). The court noted: "The immunity doctrine offends against fundamental justice and elementary logic in many ways. Thus, while it closes the doors of the courts to a person whose body has been injured, it opens them wide where inanimate property has been damaged through the hospital's maintenance of a nuisance." Ibid.

        175

        Similarly, as the court explained, the doctrine was not equally applied because that court had concluded, in a series of [478] earlier decisions, that physicians who practiced in hospital settings could, under certain circumstances, be liable not only for their own negligence but for that of other hospital personnel as well. Ibid.; see Rockwell v. Kaplan, 404 Pa. 574, 173 A.2d 54, 57 (1961) (holding "that doctors are subject to the law of agency and may at the same time be agent both of another physician and of a hospital"); Yorston v. Pennell, 397 Pa. 28, 153 A.2d 255, 260-62 (1959) (same); McConnell v. Williams, 361 Pa. 355, 65 A.2d 243, 248 (1949) (holding physician liable to his private patient being treated at hospital, through principles of respondeat superior, for actual negligence of hospital staff intern). In evaluating the question of who or what was being protected by the immunity doctrine, as well as considering on whom the losses caused by negligence at hospitals fell, the court concluded that the doctrine had become "an instrument of injustice," Flagiello, supra, 208 A.2d at 206, that could no longer be retained. Indeed, the court stated its justification in strong words: "where justice demands, reason dictates, equality enjoins and fair play decrees a change in judge-made law, courts will not lack in determination to establish that change." Id. at 208.

        176

        Finally, when the Supreme Court of Pennsylvania abrogated the doctrine of charitable immunity in 1965, it announced that it chose that course in part because other courts had done likewise. Citing decisions from around the country, relying on scholarly pronouncements about what the law should be, and embracing the expressions of the "trend of judicial opinion" as articulated in scholarly commentaries, see id. at 197 (citing Restatement (Second) of Trusts, § 402(2), comment 2), that court made its decision to change what had previously been a part of the fabric of its common law. That court's opinion abrogating the doctrine of charitable immunity stands today as both its expression of the common law, and its evaluation of the underlying public policy interests, that apply to the citizens of that state.

        177
        C.
        178

        One can distill from these two diametrically opposite views on the question of charitable immunity several underlying policy considerations. First, the Pennsylvania court's abrogation of charitable immunity in Flagiello arises from public policy considerations common to all torts. That court has elected to focus on the goals of compensating victims injured in circumstances where any other victim would be able to recover. It was guided in part by the emergence of hospitals as "big businesses" that are now far removed from their charitable origins. It considered the role of the courts in seeking to deter conduct that is negligent or careless by imposing a cost on the entity that engages in that conduct. It expressed its intention to align its policies with those of other states. Perhaps most significant, the Pennsylvania court made the protection of the citizens of its own state its primary focus. The values it expressed were virtually identical to the ones that motivated this Court when it decided Collopy and the other cases in the trilogy that abrogated the common law doctrine in this State.

        179

        On the other hand, our Legislature, in full recognition of those very values and considerations, as expressed in Collopy, has spoken clearly, decisively, and repeatedly with a contrary expression of public policy. In our Legislature's view, charities are to be encouraged to operate and to perform their good works for the benefit of our citizens. Donations to those charities, not only in the form of dollars, but in terms of time and talents of volunteers who serve on their boards and [479] as part of their mission, are to be protected. The purpose of that protection is not only to permit those charities to continue to serve, but to encourage more people to contribute their dollars, their time, and their talents so as to serve the greater public good. Over and over since 1958, our Legislature has both reaffirmed and, where appropriate, extended the scope of the Act to meet those oft-repeated purposes.

        180

        At the same time, our Legislature has been neither slavish nor shortsighted in its protection of charities. It has always allowed a limited right to proceed against nonprofit hospitals. It has embraced the common law notion that one who is not a beneficiary of the charity can maintain a cause of action. It has permitted suits to proceed against medical professionals whose connection with the charity is incidental and whose negligence will not be imputed to the charity. It has permitted suits for acts of employees of charities that are wanton, reckless, and grossly negligent. Most recently, it has permitted suits to be brought against the charities themselves on behalf of minors who have been the victims of sexual assault based on a claim that the charity's negligent hiring, supervision, or retention of employees and others was the cause of that assault.

        181

        The approach that we have taken to engage in our choice of law analysis has varied with the circumstances, but it has never, until today, strayed from the governmental interest approach. At its core, that framework requires us to identify the public policies involved in each state's statutory or common law and evaluate which jurisdiction has the greater interest in having its law applied to the dispute. In some cases, either the underlying policies or the interests of the states have been unclear and we have looked to the Restatement (Second) to inform us about the interests that might bear on the analysis. See Erny, supra, 171 N.J. at 101-04, 792 A.2d 1208; Fu, supra, 160 N.J. at 122-28, 733 A.2d 1133. In others, including most recently, the policies and competing interests that each state was seeking to serve have been readily apparent. See Rowe, supra, 189 N.J. at 622-23, 917 A.2d 767. In all circumstances, however, we have adhered to the governmental interest analysis, varying only with regard to the sources to which we look to identify and understand those governmental interests.

        182
        III.
        183

        Engaging in the governmental interest analysis in this matter is aided by the clear expressions of public policy that support our statute and by the thorough explanation of the public policy considerations included in the Pennsylvania court's decision with its contrary views. The task of weighing each against the other requires a consideration of how the application of the two approaches would bear on the effectuation of the expressed public policies of each forum.

        184

        The sparse facts are only that P.V. is a New Jersey domiciliary who has Down Syndrome, and that while she was attending camp for her third time during August 2003, she was sexually assaulted by another camper, sought medical attention, and "suffered extreme mental anguish." The only other facts included in the record are that defendant was incorporated as a New Jersey charity and has been in operation since 1975, has its administrative offices here, and operates the camp on property that it leases in Pennsylvania. Nothing in the record reflects where the campers other than P.V. are domiciled or where staff are recruited or trained.

        185

        Armed with only these few facts, however, we can engage in our traditional governmental interest analysis. Simply put, if [480] we apply our Charitable Immunity Act to this matter, we will achieve the result that our Legislature has mandated be the litigation outcome for all citizens of our State. In light of the fact that both plaintiff and defendant are citizens of this State, we will have treated them no differently from any other person who is a beneficiary of one of the charities that operates within our borders. We will have done no more than subject both plaintiff and defendant to all of the benefits and burdens of their domicile. We will at the same time preserve the assets of the charity in a circumstance in which our Legislature has mandated that the entity and its assets be protected.

        186

        At the same time, application of our statute to this dispute will do nothing to undermine the common law of Pennsylvania or its goals. Because plaintiff is not a resident of that state, we will not prevent one of Pennsylvania's citizens from recovering a damage award and will not create a distinction between those citizens of that state who may be compensated and those who cannot. In terms of loss allocation or compensation, we will do nothing to offend or interfere with the policies of our sister state.

        187

        Were we to apply our law, we potentially would be sanctioning, at least to some extent, blameworthy conduct that occurred in another state. Thus, if we see tort law generally as a mechanism for conduct regulation, applying our law to conduct that took place in Pennsylvania might not serve that goal. Were this intentional conduct, or were it an act of an employee or agent of the charity, the conduct regulation goal would be significant. Indeed, if the conduct were the reckless or grossly negligent acts of an employee or volunteer, our own Act would lift the cloak of immunity as well.

        188

        Here, however, plaintiff makes no claim that any employee, agent, or servant of the charity assaulted her; she makes no claim that a volunteer working at the camp assaulted her. Instead she alleges that another camper, presumably one who was not being monitored or supervised sufficiently, did so. In that context, the conduct to be regulated through Pennsylvania's common law is not sexual assault at all. The conduct, as it relates to the law and the governmental interest that it represents, must be some conduct of the charity. That is to say, the conduct must either be the charity's choice of the other camper to be a participant in its program or its training of its volunteers or paid personnel at the camp who failed to monitor plaintiff and her free movements around the camp.

        189

        Although the injury occurred in Pennsylvania, it is not clear from this record that the conduct on the part of the charity also occurred there. If the charity's conduct is defined as the failure to supervise plaintiff or the other camper, then it occurred principally in Pennsylvania. However, if the legally relevant conduct of the charity is its acts relating to hiring or training its staff, or in recruiting volunteers, or in selecting campers, or in designing the program itself, that conduct likely occurred in New Jersey. As grievous as an act of sexual assault is, the interest of Pennsylvania in regulating whatever conduct of the charity is alleged to have permitted it to occur is attenuated.

        190

        Nor would refusal to apply Pennsylvania's policy prevent it from actually regulating the conduct it finds should be compensable. That state has adopted a variety of statutes and regulations governing the operation of camps. See 35 Pa. Stat. Ann. § 3002 (requiring camps to register with the Department of Health and pay annual registration fee to state treasury); 28 Pa.Code § 19.2 (requiring submission of camp building [481] plans to Department of Health); 28 Pa. Code § 19.13 (authorizing Department of Health to issue one-year permits to camps that satisfy Department's regulations); 28 Pa.Code § 17.11 (requiring local health departments to issue camp permits based on compliance with applicable rules and standards, and requiring regular inspections prior to issuing or renewing permits). Pennsylvania's ability to ensure that camps are operating in accordance with its public policies about standards of care can continue to be addressed in that manner.

        191

        On the other hand, applying Pennsylvania's common law to this dispute can and will thwart our Legislature's expression of the will of the people. Charitable dollars, donated to a New Jersey charity for the benefit of this New Jersey resident, will be devoted to litigation and, should plaintiff prevail, to the payment of compensation. At the same time, nothing in this record suggests that this defendant is the sort of "big business" charity that the Pennsylvania court sought to regulate. Nor can we precisely evaluate the magnitude of the impact that a damage award might have on this charity or its other programs; but we can be certain that dollars that would otherwise be devoted to its charitable works will not be. Whether the dollars available for the charity's other works merely will be reduced, or whether they perhaps will be eliminated through this litigation we cannot know. Whether the charity will conclude that it will no longer be able to operate the camp program we cannot forecast. As our Legislature has cautioned, however, the effect might also be that donors will cease supporting this and other charities, fearing a like fate for their contributions.

        192

        Moreover, by applying Pennsylvania's common law to this matter, one New Jersey resident, this plaintiff, will be treated differently for purposes of tort liability from every other beneficiary of our charities, simply because of where she was when the injury occurred. Applying the law of Pennsylvania to this matter might serve that state's general goals, expressed through its common law, of encouraging all who are within its borders to exercise more care, but it will not serve its larger policy goals by compensating a citizen of that state. Instead it will compensate a citizen of this State who, it would appear, did not choose to be in Pennsylvania for any particular protections that the state might offer.

        193

        Our traditional governmental interest analysis makes it apparent that the interests of our State, as expressed by our Legislature, will be significantly impaired by the application of Pennsylvania's common law to these two New Jersey citizens. At the same time, Pennsylvania's interests would not be significantly furthered by the application of its own law nor will they be hindered in any meaningful way by the refusal of this Court to apply its law to this dispute.

        194

        In embracing a new choice of law methodology and in its application, the majority has abandoned our usual, careful weighing of governmental interests and, in the process, ignored the strong public policy interests undergirding charitable immunity that have been repeatedly and forcefully expressed by our Legislature. I therefore respectfully dissent.

        195
        For affirmance and remandment— Chief Justice RABNER and Justices LONG, ALBIN and WALLACE—4.
        196
        For reversal—Justices LaVECCHIA, RIVERA-SOTO and HOENS—3.
        197

        [1] The certificate of incorporation does not limit the organization to providing services to New Jersey residents.

        198

        [2] By 2006, only ten states continued to adhere to the First Restatement for tort cases. Symeon C. Symeonides, Choice of Law in the American Courts in 2006: Twenty-First Annual Survey, 54 Am. J. Comp. L. 697, 712 (2006).

        199

        [3] Section 168, which provides specific guidance regarding charitable immunity, adheres to that analysis: "The law selected by application of the rule of § 145 determines issues of charitable immunity." Restatement, supra, § 168.

        200

        [4] Our dissenting colleagues lament the loss of the "more nuanced" governmental interest approach. Post at 157-58, 962 A.2d 468-69. The question is, more nuanced than what? It is certainly fair to suggest that the governmental interest analysis is more nuanced than its predecessor, the bright line lex loci test. However, as the Second Restatement itself underscores, the most significant relationship test embodies all of the elements of the governmental interest test plus a series of other factors deemed worthy of consideration. Restatement, supra, § 6(2)(b)-(c). As a matter of simple logic, the new end point—the most significant relationship test—is more and not less nuanced than its predecessor.

        201

        [5] That is the decisional rationale that has been adopted by the majority of our sister jurisdictions that abide by the Second Restatement. See, e.g., Townsend v. Sears, Roebuck & Co., 227 Ill.2d 147, 316 Ill.Dec. 505, 879 N.E.2d 893, 903-05 (2007); Malena v. Marriott Int'l, Inc., 264 Neb. 759, 651 N.W.2d 850, 856-57 (2002); McKinnon v. F.H. Morgan & Co., Inc., 170 Vt. 422, 750 A.2d 1026, 1028-29 (2000); Morgan v. Biro Mfg. Co., 15 Ohio St.3d 339, 474 N.E.2d 286, 289 (1984). We recognize as we reaffirm our adherence to the most significant relationship test that the Second Restatement has, like its predecessor, come under criticism. See, e.g., Douglas Laycock, Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law, 92 Colum. L.Rev. 249, 253 (1992) ("Trying to be all things to all people, it produced mush."); Shaman, supra, 45 Buff. L.Rev. at 357 ("Because the second Restatement tries to be so much and do so much, it is rife with inconsistency, incongruence, and incoherence."). Nevertheless, we believe that its exhaustive analytical framework is an advance over prior models and places us in company with the majority of our sister jurisdictions that have aligned themselves with a specific approach. Symeonides, supra, 54 Am. J. Comp. L. at 712 (identifying twenty-three states that have adopted the Second Restatement approach).

        202

        [6] The Charitable Immunity Act does not apply to "aggravated wrongful conduct, such as malice or fraud, or intentional, reckless and wanton, or even grossly negligent behavior." Hardwicke v. Am. Boychoir Sch., 188 N.J. 69, 97, 902 A.2d 900 (2006) (quoting Schultz v. Roman Catholic Archdiocese of Newark, 95 N.J. 530, 542, 472 A.2d 531 (1984) (Handler, J., dissenting)).

        203

        [7] Most conflicts scholars are in accord with the dissent. The majority opinion in Schultz has been excoriated by conflicts scholars of every stripe as "awful," "perfidious," "troubling," "perverse," "nonsensical," "irrational," and in line with New York's "own bad record in choice of law cases." See Patrick J. Borchers, Conflicts Pragmatism, 56 Alb. L.Rev. 883, 910-11 (1993); Alan Reed, The Anglo-American Revolution in Tort Choice of Law Principles: Paradigm Shift or Pandora's Box?, 18 Ariz. J. Int'l & Comp. L. 867, 887 (2001); Reynolds, supra, 56 Md. L.Rev. at 1408-11 (1997); Aaron D. Twerski, A Sheep in Wolf's Clothing: Territorialism in the Guise of Interest Analysis in Cooney v. Osgood Machinery, Inc., 59 Brook. L.Rev. 1351, 1358-59 (1994).

        204

        [8] We note that, on the merits, this case is entirely distinct from Schultz insofar as the Boy Scout troop in Schultz was chartered in New Jersey and the assault took place on an outing to New York. 491 N.Y.S.2d 90, 480 N.E.2d at 681. In fact, some assaults in Schultz also took place in New Jersey. Ibid. Here, the camp was a fixture in Pennsylvania and the assaults and the injury occurred there.

        205

        [9] See, e.g., William L. Reynolds, The Silver Anniversary of the Second Conflicts Restatement: Legal Process and Choice of Law, 56 Md. L.Rev. 1371, 1388 (1997) ("criticiz[ing] the Second Restatement for its lack of a system and . . . consequential invitation to open-ended or indeterminate decisionmaking"); Patrick J. Borchers, Conflicts Pragmatism, 56 Alb. L.Rev. 883, 901-02 (1993) (describing effort of one academic to "convince the West Virginia Supreme Court to [embrace the Second Restatement] . . . largely on the grounds that [it] has so much wiggle room").

        206

        [10] One recent commentator has lamented the movement of courts away from the "clear, plausible answers" that the lex locus approach yielded, describing the more modern theories as "the destruction of rationality." Earl M. Maltz, Do Modern Theories of Conflict of Laws Work? The New Jersey Experience, 36 Rutgers L.J. 527, 527 (2005). Although much might be said about the confusion that the various theories offered by commentators over the years has created for many courts, we need only comment on the unfair outcomes that the previous rigidity created to explain our preference for the more modern approach that we have adopted.

        207

        [11] The first version of the bill introduced in response to the Court's trilogy of decisions actually would have extended the scope of charitable immunity, as it would not have included the historical limitation that prohibited beneficiaries from bringing suit. See Senate Bill No. 204 (introduced May 5, 1958).

  • 3 §1.3.3 Unprovided-for cases (no-interest cases)

    • 3.1 §1.3.3.1 Applying forum law

      • 3.1.1 Erwin v. Thomas

        1
        506 P.2d 494 (1973)
        2
        Ruby D. ERWIN, Appellant,
        v.
        Wilbur E. THOMAS, and Shepler Refrigeration, Inc., Respondents.
        3

        Supreme Court of Oregon, In Banc.

        4
        Argued and Submitted October 12, 1972.
        5
        Decided February 15, 1973.
        6

        Chris P. Ledwidge, Portland, argued the cause for appellant. With him on the briefs were Ledwidge & Ledwidge, Portland.

        7

        Charles R. Holloway, III, Portland, argued the cause for respondents. With him on the brief were Tooze, Kerr & Peterson, Portland.

        8
        HOLMAN, Justice.
        9

        This is an action for damages for loss of consortium alleged to have been suffered when plaintiff's husband was injured in an [495] accident. Plaintiff appealed from a judgment for defendant which was entered after a demurrer was sustained to plaintiff's complaint and plaintiff refused to plead further.

        10

        Defendant Thomas, while operating a truck in the state of Washington in the course of his employment for defendant Shepler, is alleged to have negligently injured plaintiff's husband. Defendant Thomas is an Oregon resident and his employer, defendant Shepler, is an Oregon corporation. Plaintiff and her injured husband are residents of Washington. Washington, by court decision, has followed the common law rule that no cause of action exists by a wife for loss of consortium. Ash v. S.S. Mullen, Inc., 43 Wash.2d 345, 261 P.2d 118 (1953). Oregon allows such an action, ORS 108.010.

        11

        The issue is whether Oregon law or Washington law is applicable. It is with some trepidation that a court enters the maze of choice of law in tort cases. No two authorities agree.[1] Until recently, this court was committed to the traditional, arbitrary, and much criticized rule that in tort cases the law of the place of the wrong, lex loci delicti commissi, governs. However, in the case of Casey v. Manson Constr. Co., 247 Or. 274, 428 P.2d 898 (1967), this court adopted the equally maligned and almost universally criticized "most significant relationship"[2] approach of Restatement (Second) Conflict of Laws.

        12

        However, before engaging in the mysteries of the solution of an actual conflict, we must make certain that we have a conflict of consequence which requires a choice. All authorities agree that there is such a thing as a false conflict which requires no choice. However, typically, there is no agreement on what constitutes a false conflict. Professors Cavers,[3] Currie,[4] and Sedler,[5] together with Mr. Justice Traynor,[6] appear to urge that the policy or governmental interest behind the law of each state be examined and that a false or avoidable conflict be considered present if no substantial conflict is found to exist between the states' policies or interests in the particular factual context in which the [496] question arises.[7] On the other hand, Professors Leflar,[8] Rosenberg,[9] and Ehrenzweig[10] see a false conflict as being limited to a situation where the laws of two states are the same or would produce the same results. Where the laws of two states are not the same or would not produce the same results if applied, these latter authorities see the search for and the comparison of the interests of the two states as a means (not necessarily the best or only means) of deciding an actual conflict, not as a means of determining whether a conflict exists.[11]

        13

        Where, in the particular factual context, the interests and policies of one state are involved and those of the other are not (or, if they are, they are involved in only a minor way), reason would seem to dictate that the law of the state whose policies and interests are vitally involved should apply; or, if those of neither state are vitally involved, that the law of the forum should apply. It may well be that determining what interests or policies are behind the law of a particular state is far from an exact science and is something about which there can be legitimate disagreement; but, on the other hand, it is the kind of an exercise, for better or for worse, which courts do every day and, therefore, feel secure in doing. If such a claimed conflict can be so disposed of, whether it is called false or not, the disposition certainly seems preferable to wandering off into the jungle with a compass which everyone but its maker says is defective.

        14

        Let us examine the interests involved in the present case. Washington has decided that the rights of a married woman whose husband is injured are not sufficiently important to cause the negligent defendant who is responsible for the injury to pay the wife for her loss. It has weighed the matter in favor of protection of defendants.[12] No Washington defendant is going to have to respond for damages in the present case, since the defendant is an Oregonian. Washington has little concern whether other states require non-Washingtonians to respond to such claims. Washington policy cannot be offended if the court of another state affords rights to a Washington woman which Washington does not afford, so long as a Washington defendant is not required to respond. The state of Washington appears to have no material or urgent policy or interest which would be offended by applying Oregon law.

        15

        On the other hand, what is Oregon's interest? Oregon, obviously, is protective of the rights of married women and believes that they should be allowed to recover for negligently inflicted loss of consortium. However, it is stretching the imagination more than a trifle to conceive that the Oregon Legislature was concerned about the rights of all the nonresident married women in the nation whose husbands would be injured outside of the state of Oregon. Even if Oregon were so concerned, it would offend no substantial Washington interest.

        16

        It is apparent, therefore, that neither state has a vital interest in the outcome of this litigation and there can be no conceivable material conflict of policies or interests if an Oregon court does what comes [497] naturally and applies Oregon law.[13] Professor Currie expresses it thusly:

        17
        "* * * The closest approximation to the renvoi problem that will be encountered under the suggested method is the case in which neither state has an interest in the application of its law and policy; in that event, the forum would apply its own law simply on the ground that that is the more convenient disposition * * *." B. Currie, Notes on Methods and Objectives in the Conflict of Laws, Selected Essays on the Conflict of Laws 184 (Footnote omitted) (1963).
        18

        An examination of the writings of those scholars who believe that an actual controversy exists in a situation similar to the present indicates, without an exception, they would reach the same result as we do, by either different or partially different reasoning.

        19

        The next question is whether our decision in Casey v. Manson Constr. Co., 247 Or. 274, 428 P.2d 898 (1967), is incompatible with our disposition of the present case. In Casey, which adopted and applied Restatement (Second) Conflict of Laws, an actual conflict existed. An Oregon wife brought a loss of consortium action because of an injury to her husband, also an Oregon resident, which was negligently inflicted in Washington by a Washington resident. We there held that Washington defendants should not be required to accommodate themselves to the law of the state of residence of any traveler whom they might injure in Washington; that under the given circumstances, Washington's interest in the matter, which was protective of Washington defendants, was paramount to Oregon's interest in having its resident recover for her loss; and that Washington's relationship was the more significant and Washington law applied.

        20

        Our confidence in any set body of rules as an all-encompassing and readily applicable means of solution to conflict cases is not so great that we desire to undertake the application of such rules except in those situations where the policies and interests of the respective states are in substantial opposition. We see no such conflict here and, therefore, find it unnecessary to resort to any such set of rules. We are little concerned whether we are presented with a false conflict or with an actual conflict capable of solution by resorting to our analysis of the interests and policies of the respective states. Where such policies and interests can be identified with a fair degree of assurance and there appears to be no substantial conflict, we do [498] not believe it is necessary to have recourse in the "contacts" of Section 145(2) of Restatement (Second) Conflict of Laws.

        21

        The judgment of the trial court is reversed and the case is remanded for further proceedings.

        22
        TONGUE, J., concurs in the result.
        23
        BRYSON, Justice (dissenting).
        24

        This vehicle accident occurred in the state of Washington. The defendant Shepler, the truck driver, is an Oregon resident and his employer, Shepler Refrigeration, Inc., is an Oregon corporation. Plaintiff and her injured husband are residents of the state of Washington.

        25

        The plaintiff brought this action in Oregon to recover damages for loss of consortium. As stated in the majority opinion, Washington, by common law decision, denies the wife a right of action for loss of consortium for injury to her husband. Ash v. S.S. Mullen, Inc., 43 Wash.2d 345, 261 P.2d 118 (1953). Oregon, by statute, allows such an action. ORS 108.010. This statute establishes that all Oregon wives have the same civil rights as Oregon husbands, including the "right of action for loss of consortium of her husband." I fail to see how the Oregon Legislature can do as much for Washington wives.

        26

        Regardless of whether we follow the Restatement (see Note 2 of the majority opinion) or the law of the place of the wrong, I do not believe we can or should bestow Oregon statutory rights for women on women of the state of Washington.

        27

        In Berghammer v. Smith, 185 N.W.2d 226, 231, 232 (Iowa 1971), the same problem arose in an action for loss of consortium. The accident occurred in Iowa and the plaintiff resided in Minnesota, which state, at the time, denied the plaintiff the right to bring an action for loss of consortium. The Iowa court stated:

        28
        "We hold Minnesota has the most significant — indeed, perhaps the only — relationship with plaintiff and the issue of her right to maintain an action for loss of consortium. We reach this conclusion because only Minnesota is concerned with the marital status of plaintiff and the interspousal rights and duties arising therefrom.
        29
        "Iowa has no state interest to protect * * *.
        30
        "Nor may it be said our policy recognizing a wife's claim for loss of consortium was intended primarily to do more than extend such right to Iowa wives.
        31
        "* * *.
        32
        "There is considerable authority that matters which depend upon the marital relationship for their solution should be decided by the law of the husband-wife domicile. See Reich v. Purcell, 67 Cal.2d 551, 63 Cal. Rptr. 31, 432 P.2d 727; Wartell v. Formusa, 34 Ill.2d 57, 213 N.E.2d 544; Schwartz v. Schwartz, 103 Ariz. 562, 447 P.2d 254; Haumschild v. Continental Casualty Company, 7 Wis.2d 130, 138, 95 N.W.2d 814, 818; Thompson v. Thompson, 105 N.H. 86, 89, 193 A.2d 439."
        33

        Obviously the plaintiff could not bring this action in her state, Washington, but the majority opinion holds that by merely stepping over the state boundary into Oregon she is then bestowed with the right given wives who are residents of the state of Oregon, which includes the right of action for loss of consortium of her husband.

        34

        There is definitely a conflict in the policy of the states of Washington and Oregon regarding the right to bring an action for loss of consortium.

        35

        I would affirm.

        36

        [1] The writer of this opinion has a suspicion that where actual and substantial conflicts exist the problems are not capable of rational solution except on an ad hoc basis.

        37

        [2]"§ 145. The General Principle

        38

        "(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.

        "(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:

        "(a) the place where the injury occurred,

        "(b) the place where the conduct causing the injury occurred,

        "(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and

        "(d) the place where the relationship, if any, between the parties is centered.

        "These contacts are to be evaluated according to their relative importance with respect to the particular issue."

        "§ 6. Choice-of-Law Principles

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

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

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

        "(b) the relevant policies of the forum,

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

        "(d) the protection of justified expectations,

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

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

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

        39

        [3] David F. Cavers, Professor of Law, Emeritus, Harvard University.

        40

        [4] Brainerd Currie, William R. Perkins Professor of Law, Duke University.

        41

        [5] Robert A. Sedler, Professor of Law, University of Kentucky.

        42

        [6] Roger J. Traynor, Chief Justice of California, retired.

        43

        [7] See Symposium, Conflict of Laws Round Table, 49 Tex.L.Rev. 211 (1971); B. Currie, Selected Essays on the Conflict of Laws 189-90 (1963); Traynor, Is this Conflict Really Necessary?, 37 Tex. L.Rev. 657 (1959); D. Cavers, The Choice of Law Process 72-74 (1965).

        44

        [8] Robert A. Leflar, Professor of Law, New York University, and Distinguished Professor of Law, University of Arkansas, Former Justice, Supreme Court of Arkansas.

        45

        [9] Maurice Rosenberg, Professor of Law, Columbia University.

        46

        [10] Albert A. Ehrenzweig, William Perry Johnson, Professor of Law, University of California School of Law (Berkeley).

        47

        [11] See Leflar, True "False Conflicts," Et Alia, 48 Boston U.L.Rev. 164 (1968); Symposium, Conflict of Laws Round Table, 49 Tex.L.Rev. 211 (1971); Ehrenzweig, A Counter-Revolution in Conflicts Law? From Beale to Cavers, 80 Harv.L.Rev. 377 (1966).

        48

        [12] See Casey v. Manson Constr. Co., 247 Or. 274, 290-91, 428 P.2d 898 (1967).

        49

        [13]A recent case involving a similar problem is Berghammer v. Smith, 185 N.W.2d 226 (Iowa 1971), in which a Minnesota wife sought damages for injuries suffered by her husband in an Iowa accident. The defendant was an Illinois resident. Both Iowa and Illinois allowed the wife's action for loss of consortium. At the time of the accident, the Minnesota rule did not permit the action. Before the trial, however, Minnesota, by judicial decision, changed its rule to allow recovery but determined that the new rule would be applied prospectively only. The Iowa court, which had previously adopted the Restatement (Second) approach to conflicts in tort law, determined that Minnesota, as the marital domicile, was the state with the most significant relationship with the plaintiff and the issue involved. The court was then faced with the problem whether to apply Minnesota law as it existed at the time of the accident, denying the plaintiff's action, or to give effect to the new Minnesota rule which would allow the action. The court chose to apply the new rule, stating:

        50

        "By enforcing the now discarded Minnesota rule, we would ignore our own state policy without advancing Minnesota's. Certainly Minnesota's purpose was not to protect non-resident motorists who had not relied upon the old rule at the expense of its own citizens." 185 N.W.2d at 233.

        51

        If the court had made its examination of the relevant interests of Minnesota before it uncritically decided that the law of the marital domicile should be applied, it would have been apparent from the beginning that Minnesota had no interest in the application of its rule denying recovery under the circumstances, and that Minnesota's interests would not be violated by allowing the plaintiff to recover. Minnesota's new rule, and its prospective application by the Minnesota court, would have caused no difficulty.

      • 3.1.2 Johnson v. Spider Staging Corp.

        1
        87 Wn.2d 577 (1976)
        2
        555 P.2d 997
        3
        GENEVE G. JOHNSON, Appellant,
        v.
        SPIDER STAGING CORPORATION, ET AL, Respondents.
        4
        No. 44149.
        5

        The Supreme Court of Washington, En Banc.

        6
        October 21, 1976.
        7

        Wolfstone, Panchot, Bloch & Kelley and J. Porter Kelley, for appellant.

        8

        Guttormsen, Scholfield & Stafford, by Jack P. Scholfield and A. Richard Dykstra, for respondents.

        9
        HAMILTON, J.
        10

        Appellant, Geneve Johnson, appeals a summary judgment dismissing her wrongful death complaint on the grounds of forum non conveniens and declaring Kansas law to be the applicable choice of law.

        11

        Jack Johnson owned an exterior building cleaning business in Topeka, Kansas. He purchased a scaffold for his business from respondents, Spider Staging Corporation, Spider Staging, Inc., and Spider Staging Sales Company. On July 19, 1971, Jack Johnson was killed when he fell 60 feet from the scaffold. Appellant sued respondents for wrongful death, claiming they defectively designed the scaffold in that it could not withstand the stress of normal use.

        12

        The parties initially argued the choice-of-law issue to the trial court. Kansas law has a $50,000 wrongful death limitation.[1] Washington has no damage limitation on [579] wrongful death actions. The trial court applied both the lex loci delecti and the most significant relationship choice-of-law rules and concluded Kansas law applies to the facts of this case. The trial court also dismissed appellant's complaint under the doctrine of forum non conveniens with a stipulation that respondents will submit to the jurisdiction of Kansas and will not plead the statute of limitations as a defense. The trial court entered a summary judgment in respondents' favor and appellant appeals from this judgment.

        13

        [1] At the outset, we must determine whether the trial court properly applied the doctrine of forum non conveniens. If so, we need not reach the choice-of-law issue, as Kansas will assume jurisdiction and determine the applicable law. Forum non conveniens refers to the discretionary power of a court to decline jurisdiction when the convenience of the parties and the ends of justice would be better served if the action were brought and tried in another forum. See Werner v. Werner, 84 Wn.2d 360, 370, 526 P.2d 370 (1974). In Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 91 L.Ed. 1055, 67 S.Ct. 839 (1947), the Supreme Court outlined the factors a court should consider when applying the forum non conveniens doctrine:

        14
        Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforcibility of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, "vex," "harass," or "oppress" the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.
        15

        (Footnote omitted.)

        16

        [580] The factors in the present case do not strongly favor the respondents-defendants. For example, all of the evidence which pertains to the manufacturing and marketing of the scaffold is in Washington State. Respondents are Washington corporations, and all of their principal officers reside in King County. Both of the engineers who designed the scaffold live in King County. The two principal witnesses from Kansas stated in affidavits that they willingly would appear in Washington. Also, appellant will bring the scaffold to Washington and give respondents an opportunity to examine it. The trial court therefore should not have disturbed appellant's choice of forum.

        17

        [2] We now proceed to determine the appropriate choice of law. Respondents contend this jurisdiction still follows the lex loci delecti choice-of-law rule. This rule would require the court to apply the law of the place of wrong. In wrongful death actions the law of the place of injury would be the applicable law, see G. Stumberg, Principles of Conflicts of Laws 190-92 (3d ed. 1963), and in this case the injury occurred in Kansas. However, our recent decisions have rejected the lex loci delecti choice-of-law rule and have adopted the most significant relationship rule for contracts and tort choice-of-law problems. Werner v. Werner, supra; Potlatch No. 1 Fed. Credit Union v. Kennedy, 76 Wn.2d 806, 459 P.2d 32 (1969); Baffin Land Corp. v. Monticello Motor Inn, Inc., 70 Wn.2d 893, 425 P.2d 623 (1967); see Trautman, Evolution in Washington Choice of Law — A Beginning, 43 Wash. L. Rev. 309 (1967). The Restatement (Second) of Conflict of Laws § 6 (1971), with which we are in accord, developed this new approach, and section 145 sets out the general principles which apply to a tort choice-of-law problem:

        18
        (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.
        19
        (2) Contacts to be taken into account in applying the [581] principles of § 6 to determine the law applicable to an issue include:
        20
        (a) the place where the injury occurred,
        21
        (b) the place where the conduct causing the injury occurred,
        22
        (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and
        23
        (d) the place where the relationship, if any, between the parties is centered.
        24
        These contacts are to be evaluated according to their relative importance with respect to the particular issue.
        25

        (Italics ours.) Accord, Restatement (Second) of Conflict of Laws §§ 175-80 (1971). Our approach is not merely to count contacts, but rather to consider which contacts are most significant and to determine where these contacts are found. Baffin Land Corp. v. Monticello Motor Inn, Inc., supra at 900. We therefore must consider the significant contacts of this cause with the states of Washington and Kansas. The following is a summary of these contacts:

        26
                Washington                           Kansas1. Respondents are Washington        1. Appellant and Jackcorporations, and                    Johnson were residentsWashington is their principal        and domiciliaries of Kansas.place of business.2. The scaffold was designed,        2. Jack Johnson's place oftested, and manufactured             business was in Kansas.in Washington.3. All of Respondents' advertising   3. Jack Johnson orderedoriginated in                        the scaffold from Respondents'Washington and was developed         Kansas City distributor.by Washington personnel.4. The scaffold was shipped          4. Kansas was the place offrom Washington to Kansas            the accident and death.and pursuant to RCW62A.2-401 (2) (a)
        27

        [2]

        28
         title [582]  passed to Jack Johnson atthe time and place of shipment.5. Washington State set thesafety requirements for thescaffold.
        29

        Each state has a distinct relationship with this cause, and the contacts are evenly balanced. However, Potlatch No. 1 Fed. Credit Union v. Kennedy, supra at 810, directs us to a "consideration of the interests and public policies of potentially concerned states and a regard as to the manner and extent of such policies as they relate to the transaction in issue." This state interest analysis was also contemplated in Restatement (Second) of Conflict of Laws § 175, comment d at 523 (1971), wherein it states:

        30
        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).
        31

        (Italics ours.)

        32

        A state's interest in limiting wrongful death damages is to protect defendants from excessive financial burdens. The state also seeks to eliminate speculative claims and difficult computation issues. Hurtado v. Superior Court, 11 Cal.3d 574, 580-81, 522 P.2d 666, 114 Cal. Rptr. 106 (1974); Reich v. Purcell, 67 Cal.2d 551, 556, 432 P.2d 727, 63 Cal. Rptr. 31 (1967). This interest in preventing financial burdens and exaggerated claims is primarily local; that is, a state by [583] enacting a damage limitation seeks to protect its own residents. Hurtado v. Superior Court, supra at 580-84; Reich v. Purcell, supra at 556.

        33

        Hurtado v. Superior Court, supra at 583-84, discusses a state's interest in recognizing a wrongful death action and allowing full recovery:

        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.... 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."
        35

        (Citations omitted. Italics ours.)

        36

        In this case all the defendants are Washington corporations, and the application of the Kansas wrongful death limitation will not protect Kansas residents. It will merely limit the damages of its own residents. Further, Washington's deterrent policy of full compensation is clearly advanced by the application of its own law. Unlimited recovery will deter tortious conduct and will encourage respondents to make safe products for its customers.[3] When one of two states related to a case has a legitimate interest in the application of its law and the other state has no such interest, clearly the interested state's law should apply. Hurtado v. Superior Court, supra at 580. Kansas has no interest in applying its limitation to nonresident defendants being [584] sued in their home state, and Washington has a legitimate interest in the application of its law. We therefore find Washington law to be the appropriate choice of law to apply to the facts of this case.

        37

        The judgment is reversed, and the cause is remanded for further proceedings consistent herewith.

        38
        STAFFORD, C.J., and ROSELLINI, HUNTER, WRIGHT, UTTER, BRACHTENBACH, HOROWITZ, and DOLLIVER, JJ., concur.
        39

        [1] Kan. Sess. Laws of 1970, ch. 241, § 1, provides: "In any such action, the court or jury may award such damages as are found to be fair and just under all the facts and circumstances, but the damages cannot exceed in the aggregate the sum of ... fifty thousand dollars ($50,000)and costs."

        40

        The Kansas legislature repealed this statute and enacted Laws of 1975, ch. 303, § 2. The new statute only limits the amount of nonpecuniary damages. It provides: "In any such action, the court or jury may award such damages as are found to be fair and just under all the facts and circumstances, but the damages, other than pecuniary loss sustained by an heir at law, cannot exceed in the aggregate the sum of twenty-five thousand dollars ($25,000) and costs." KSA 60-1903.

        41

        [2]RCW 62A.2-401 (2) (a) provides:

        42

        "(2) Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place; and in particular and despite any reservation of a security interest by the bill of lading.

        "(a) if the contract requires or authorizes the seller to send the goods to the buyer but does not require him to deliver them at destination, title passes to the buyer at the time and place of shipment ..."

        43

        [3] Finally, Potlatch No. 1 Fed. Credit Union v. Kennedy, 76 Wn.2d 806, 810, 459 P.2d 32 (1969), indicates the court should consider the justifiable expectations of the parties. Respondents advertise and sell their products in all 50 states, and only a few of these states have wrongful death limitations. They design and manufacture their product in Washington — an unlimited wrongful death recovery state. They also carry liability insurance in excess of the Kansas damage limitation. Thus, respondents could not have justifiably relied on the Kansas limitation. See Restatement (Second) of Conflict of Laws § 6(2) (d) (1971).

    • 3.2 §1.3.3.2 Applying the law of plaintiff’s domicile & the place of injury

      • 3.2.1 Deemer v. Silk City Textile Mach. Co.

        1
        193 N.J. Super. 643 (1984)
        2
        475 A.2d 648
        3
        PATRICIA JEAN DEEMER, INDIVIDUALLY AND AS ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF JERRY T. DEEMER, DECEASED, PLAINTIFF-RESPONDENT,
        v.
        SILK CITY TEXTILE MACHINERY CO., A NEW JERSEY CORPORATION, AND ANTHONY INCANNO, INDIVIDUALLY, DEFENDANTS-APPELLANTS.
        4

        Superior Court of New Jersey, Appellate Division.

        5
        Argued February 7, 1984.
        6
        Decided March 16, 1984.
        7

        [647] Before Judges MICHELS, KING and DREIER.

        8

        V. Vincent Velardo argued the cause for appellants (Velardo & Koprowski, attorneys; V. Vincent Velardo, of counsel; Joseph T. Delgado, on the brief).

        9

        David M. Paris argued the cause for respondent (Piro, Zinna and Cifelli, attorneys; Roseann Primerano, of counsel and on the brief).

        10
        The opinion of the court was delivered by MICHELS, P.J.A.D.
        11

        This is a wrongful death action instituted by plaintiff Patricia Jean Deemer, individually and as administratrix ad prosequendum of the Estate of her deceased husband, Jerry T. Deemer (Deemer). The action was instituted against defendants Silk City Textile Machinery Co. (Silk City) and Anthony Incanno (Incanno), to recover damages based on theories of strict liability, implied warranty and negligence.

        12

        It appears from the record submitted on this appeal that on August 14, 1980 Deemer suffered a crush-type injury to his left ankle while performing maintenance work on a shear-cut batcher manufactured by Silk City. Ultimately he died, and this action was instituted claiming that his death was causally related to the accident. The machine involved was sold by Silk City to decedent's employer, Collins & Aikman, at some time prior to November 30, 1977. Initially, the machine was installed at a Collins & Aikman plant located in Cowpens, South Carolina. Approximately three weeks prior to the decedent's accident, the machine was moved to the Collins & Aikman plant in Farmville, North Carolina, at which the accident occurred. Plaintiff claims that this machine was moved with the assistance of Silk City and its agents, servants, and/or employees. Silk City, on the other hand, contends that the actual moving of the machine was effectuated without any such assistance, but that after the machine was relocated Incanno, a Silk City [648] representative, provided instructions to Collins & Aikman personnel.

        13

        At the time of the sale of the machine, and at the time of the accident, Silk City was a New Jersey corporation doing business throughout the United States. The machine was manufactured in New Jersey. At the time of the accident, and at the time of his demise, decedent was a resident of North Carolina. The accident occurred in North Carolina, and the decedent filed a workers' compensation petition there as well. His wife, the plaintiff, continues to be a resident of North Carolina. It also appears that on January 1, 1983, Silk City effectuated a bulk sale of its assets to Krantz America, Inc., a German corporation whose principal place of business in the United States is located in North Carolina. At the time of this bulk sale, Silk City underwent a dissolution and terminated its corporate existence.

        14

        After filing an answer, defendants moved before the trial court for an order declaring that the law of North Carolina was the applicable law governing this case. The trial court denied the motion, concluding that since the machine was manufactured in New Jersey, there was "a most substantial connection between this case and the law of the State of New Jersey" and therefore the law of New Jersey applied. We granted leave to defendants to appeal from this interlocutory ruling and now reverse.

        15

        Historically, New Jersey courts resolved choice of law questions in tort cases in accordance with the doctrine of lex loci delicti, "rigidly applying the [substantive] law of the place where the wrong occurred." Van Dyke v. Bolves, 107 N.J. Super. 338, 342-343 (App.Div. 1969). See, e.g., Marshall v. Geo. M. Brewster & Son, Inc., 37 N.J. 176, 180 (1962); Harber v. Graham, 105 N.J.L. 213, 214-215 (E. & A. 1928). Although this traditional rule advanced certainty, uniformity and predictability in choice of law determinations, Daily v. Somberg, 28 N.J. 372, 380 (1958), it came to be recognized that the "mechanical application" of the lex loci delicti doctrine often produced an [649] unjust result. Mellk v. Sarahson, 49 N.J. 226, 228-229 (1967). Therefore, in a series of cases beginning with Mellk v. Sarahson, supra, and Pfau v. Trent Aluminum Company, 55 N.J. 511 (1970), New Jersey courts abandoned the traditional rule in favor of the governmental interest approach to choice of law questions. This approach requires a two-step analysis in resolving conflicts questions: the court determines first the governmental policies evidenced by the laws of each related jurisdiction and second the factual contacts of the parties with each related jurisdiction. Beckwith v. Bethlehem Steel, 185 N.J. Super. 50, 59-60 (Law Div. 1982); Wuerffel v. Westinghouse Corporation, 148 N.J. Super. 327, 333 (Law Div. 1977). See Rose v. Port of New York Authority, 61 N.J. 129, 139-140 (1972); Pfau v. Trent Aluminum Co., supra; Restatement 2d, Conflicts of Law §§ 6, 145, 146 (1971).

        16

        Applying the governmental interest test here, we are convinced that the trial court erred in concluding that the substantive law of New Jersey governed this matter. New Jersey has no interest in protecting the compensation rights of a non-domiciliary resident. Indeed, our Supreme Court's decision in Heavner v. Uniroyal, Inc., 63 N.J. 130 (1973) appears to evidence a policy of discouraging forum shopping where, as here, the contacts with the State are at best tenuous. In Heavner v. Uniroyal, Inc., supra, the purchaser of a truck instituted a product liability action against the manufacturer and retailer of a truck tire for personal injuries to himself and damages to his vehicle, and his wife sought a per quod recovery for loss of consortium, allegedly caused by a defect in the tire which resulted in a blowout and crash. Both plaintiffs were, at the time of the accident and thereafter, residents of North Carolina. Defendant Uniroyal was a New Jersey corporation engaged in the manufacture, sale and distribution of truck tires throughout the United States. Defendant Pullman, from whom plaintiff purchased the truck, was a Delaware corporation doing business throughout the United States. Plaintiff purchased the vehicle from Pullman in North Carolina [650] and the accident occurred in North Carolina. Our Supreme Court was called upon to determine whether New Jersey's four-year statute of limitations or North Carolina's three-year statute was applicable to that action. In the course of resolving this issue, the Court noted that the substantive law of North Carolina was to be applied to the action, stating:

        17
        Plaintiffs have shopped not only for a forum where their suit might not be barred by the statute of limitations, but also where the substantive law would seemingly be more favorable than that of North Carolina. The latter is borne out by the complaint's demand for judgment seeking damages "in accordance with the laws of the State of New Jersey." We gather that it is quite doubtful whether North Carolina law, at the time of the accident, recognized strict liability in tort to the extent New Jersey does since Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358 (1960), and its progeny, or allowed a cause of action to a wife for loss of consortium. We may add that we do not believe that New Jersey has any sufficient interest in this action to call for the application of its substantive law in preference to that of North Carolina under the governmental interest choice-of-law principles laid down in Mellk v. Sarahson, 49 N.J. 226 (1967), and Pfau v. Trent Aluminum Co., 55 N.J. 511 (1970). Our only possible interest is that Uniroyal, a national company, is incorporated here and that is not enough. Cf. Gore v. United States Steel Corp., 15 N.J. 301, 312 (1954), cert. den. 348 U.S. 861, 99 L.Ed. 678, 75 S.Ct. 84 (1954). All other interests are North Carolina's. Quite apart from choice-of-law considerations, it seems obvious that trial of the case would be much more convenient in North Carolina than in New Jersey. See Gore v. United States Steel Corp., supra; Semanishin v. Metropolitan Life Insurance Co., 46 N.J. 531 (1966). [63 N.J. at 134-135 n. 3].
        18

        In Heavner the Court did not examine the governmental policies evidenced by the laws of each jurisdiction, but rather stated merely that New Jersey did not possess "any sufficient interest" in the action and determined that North Carolina law was to be applied since the only contact with this state was that defendant was incorporated here.

        19

        Since here the product was both designed and manufactured in New Jersey, we are called upon to apply the full two-step analysis noted earlier. This process was not required in Heavner, where the only New Jersey contact was the chance incorporation of the defendant. Here there are competing policies that bear on this issue: (1) those relating to the defect-free design and manufacture of a product, and (2) those that [651] regulate the full and fair compensation of the injured party. The former would militate in favor of New Jersey law, the latter for North Carolina's. Whatever incidental benefits a liability judgment may contribute towards the correction of a defective design or the deterrence of wrongful conduct with respect to the future distribution of a product, the principal aim of a product liability or other personal injury claim is fairly to compensate the injured party. We therefore determine that that second of the two noted policies must control.

        20

        Here, as in Heavner, plaintiff attempted to find a forum "where the substantive law would seemingly be more favorable than that of North Carolina." The North Carolina General Assembly, by the enactment of its 1979 Products Liability Act, G.S. 99B-1 et seq., determined not to adopt strict liability in product liability cases. In view of this legislation, the Supreme Court of North Carolina, in Smith v. Fiber Controls Corp., 300 N.C. 669, 268 S.E.2d 504, 509-510 (1980), declined to adopt the doctrine of strict liability. North Carolina having chosen not to afford its own residents the protection of strict liability, there is no compelling reason for us to extend to such non-domiciliary plaintiffs the benefit of our decisional law. Furthermore, the effect of holding New Jersey law to be applicable in a matter of this kind is to subject any corporation conducting manufacturing activities in this state against whom a product liability claim is asserted to suit in New Jersey under New Jersey law. Such a holding would have the undesirable consequence of deterring the conduct of manufacturing operations in this state and would likely result in an unreasonable increase in litigation and thereby unduly burden our courts.

        21

        Moreover, to apply New Jersey law in the factual context here presented would seemingly frustrate the policies of North Carolina's workers' compensation laws. North Carolina apparently does not recognize strict liability in products actions and recognizes the applicability of a contributory negligence defense in products liability actions. See North Carolina G.S. [652] 99B-4. Under North Carolina's workers' compensation law, it appears that whenever an employer is found to have negligently contributed to an accident occasioned by the negligence of a third party, any damages awarded to the employee in a suit against the third party are to be reduced by the amount which the employer otherwise would have recovered by way of subrogation, and the employer has no claim against the recovery by the plaintiff. North Carolina G.S. 97-10.2(e). Thus, under North Carolina law, an employer who has contributed to an employee's injuries does not possess a lien for compensation payments made against the amount recovered by such an employee from a third-party in a tort action. To hold New Jersey law applicable here would undercut the North Carolina statutory scheme and undoubtedly disrupt its compensation rate structure. In these circumstances, New Jersey does not possess such a strong policy interest as to compel the application of its law rather than that of North Carolina.

        22

        Finally, we are satisfied that New Jersey's contacts with the dispute and with the parties are not sufficient to render New Jersey's interest in this matter paramount. Although the product allegedly causing the injuries was designed and manufactured in New Jersey and the manufacturer Silk City was once incorporated in this state, all the other incidents of the matter involve North Carolina. Both the plaintiff and her decedent were domiciled in North Carolina; the decedent filed a workers' compensation claim in North Carolina; the machine was delivered to South Carolina and was moved to another plant in North Carolina, and the company which bought the assets of Silk City is located in North Carolina. Thus, on balance, the respective contacts of the related jurisdictions dictate the application of North Carolina law.

        23

        Accordingly, the order under review is reversed. The matter is remanded to the trial court for further proceedings consistent with the views expressed in this opinion. We do not retain jurisdiction.

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