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§1.3.1 Identifying false conflicts
  • 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.

  • 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.)

  • 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.

  • 4 Schultz v. Boy Scouts of Am.

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

    Court of Appeals of the State of New York.

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

    David Jaroslawicz for appellants.

    7

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

    8

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

    9

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

    10
    [192] SIMONS, J.
    11

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

    12

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

    13
    I
    14

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

    15

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

    16

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

    17

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

    18
    II
    19
    A
    20

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

    21

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

    22

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

    23

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

    24
    B
    25

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

    26

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

    27

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

    28

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

    29

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

    30
    C
    31

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

    32

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

    33

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

    34

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

    35

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

    36

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

    37
    III
    38

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

    39

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

    40

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

    41

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

    42

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

    43

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

    44
    [204] IV
    45

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

    46

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

    47

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

    48

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

    49

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

    50
    JASEN, J. (dissenting).
    51

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

    52

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

    53

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

    54

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

    55

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

    56

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

    57

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

    58

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

    59

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

    60

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

    61

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

    62

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

    63

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

    64

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

    65

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

    66

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

    67

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

    68

    Order affirmed, with costs.

    69

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

    70

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

    71

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

    72

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

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