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§1.3.2 Resolving true conflicts
  • 1 §1.3.2.1 Forum law

    • 1.1 Hall v. University of Nevada

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

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

      6
      October 24, 1977.
      7

      [282] COUNSEL

      8

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

      9

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

      10

      OPINION

      11
      EMERSON, J.[1]
      12

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

      13

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

      14

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

      15

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

      16

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

      17

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

      18

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

      19

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

      20

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

      21

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

      22

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

      23

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

      24

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

      25

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

      26

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

      27

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

      28

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

      29

      The judgment is affirmed.

      30

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

      31

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

      32

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

    • 1.2 Blamey v. Brown

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

      Supreme Court of Minnesota.

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

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

      8

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

      9

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

      10
      SCOTT, Justice.
      11

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

      12

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

      13

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

      14

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

      15

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

      16

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

      17

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

      18

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

      19

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

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

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

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

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

      26

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

      27

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

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

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

      30

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

      31

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

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

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

      34

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

      35

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

      36

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

      37

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

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

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

      40

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

      41

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

      42

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

      43

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

      44

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

      45

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

      46

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

      47

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

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

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

      50

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

      51

      The factors to be considered in resolving this conflict were adopted in Milkovich v. Saari, 295 Minn. 155, 203 N.W.2d 408 (1973). The approach adopted in Milkovich was taken from a proposal of Professor Robert Leflar in Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U.L.Rev. 267 (1966), and involves the application of five "choice-influencing considerations": (1) predictability of result; (2) maintenance of interstate and international order; (3) simplification of the judicial task; (4) advancement of the forum's governmental interest; and (5) application of the better rule of law. The third consideration — simplification of the judicial task — has little application to the present situation, since any court is fully capable of administering Wisconsin's rule of non-liability. See, Milkovich v. Saari, supra.

      52

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

      53

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

      54

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

      55

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

      56

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

      57

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

      58

      Affirmed and remanded.

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

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

      61

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

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

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

      62

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

      63

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

      64

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

    • 1.3 Chambers v. Dakotah Charter Inc.

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

      Supreme Court of South Dakota.

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

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

      8

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

      9
      ZINTER, Circuit Judge.
      10

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

      11

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

      12

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

      13

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

      14

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

      15

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

      16
      CHOICE OF LAWS APPROACH
      17

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

      18

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

      19
      The traditional choice of law rule, embodied in the original Restatement of Conflict of Laws (§ 384), and until recently unquestioningly followed in this court..., has been that the substantive rights and liabilities arising out of a tortious occurrence are determinable by the law of the place of the tort.... It had its conceptual foundation in the vested rights doctrine, namely, that a right to recover for a foreign tort owes its creation to the law of the jurisdiction where the injury occurred and depends for its existence and extent solely on such law.... Although espoused by such great figures as Justice HOLMES ... and Professor Beale ... the vested rights doctrine has long since been discredited because it fails to take account of underlying policy considerations in evaluating the significance to be ascribed to the circumstance that an act had a foreign situs in determining the rights and liabilities which arise out of that act. `The vice of the vested rights theory', it has been aptly stated, `is that it affects to decide concrete cases upon generalities which do not state the practical considerations involved'.... More particularly, as applied to torts, the theory ignores the interest which jurisdictions other than that where the tort occurred may have in the resolution of particular issues. It is for this very reason that, despite the advantages of certainty, ease of application and predictability which it affords ..., there has in recent years been increasing criticism of the traditional rule by commentators and a judicial trend towards its abandonment or modification. (citations omitted).
      20

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

      21

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

      22

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

      23

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

      24

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

      25

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

      26

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

      27

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

      28

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

      29
      DETERMINATION OF THE APPROPRIATE COMPARATIVE NEGLIGENCE LAW
      30

      Under the most significant relationship approach:

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

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

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

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

      49

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

      50

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

      51

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

      52

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

      53

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

      54

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

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

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

      60

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

      61

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

      62

      [1]SDCL 20-9-2 provides:

      63

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

      64

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

      65

      [3] See note 10, infra.

      66

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

      67

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

      68

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

      69

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

      70

      [8] See Armstrong v. Armstrong, 441 P.2d 699 (Alaska 1968); Schwartz v. Schwartz, 103 Ariz. 562, 447 P.2d 254 (1968); First Nat'l Bank v. Rostek, 182 Colo. 437, 514 P.2d 314 (1973); O'Connor v. O'Connor, 201 Conn. 632, 519 A.2d 13 (1986); Bishop v. Florida Specialty Paint Co., 389 So.2d 999 (Fla.1980); Johnson v. Pischke, 108 Idaho 397, 700 P.2d 19 (1985); Ingersoll v. Klein, 46 Ill.2d 42, 262 N.E.2d 593 (1970); Hubbard Mfg. Co., Inc. v. Greeson, 515 N.E.2d 1071 (Ind.1987); Fuerste v. Bemis, 156 N.W.2d 831 (Iowa 1968); Adams v. Buffalo Forge Co., 443 A.2d 932 (Me.1982); Cohen v. McDonnell Douglas Corp, 389 Mass. 327, 450 N.E.2d 581 (1983); Mitchell v. Craft, 211 So.2d 509 (Miss.1968); Kennedy v. Dixon, 439 S.W.2d 173 (Mo.1969); Harper v. Silva, 224 Neb. 645, 399 N.W.2d 826 (1987); Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963); Issendorf v. Olson, 194 N.W.2d 750 (N.D.1972); Morgan v. Biro Mfg. Co., 15 Ohio St.3d 339, 15 OBR 463, 474 N.E.2d 286 (1984); Brickner v. Gooden, 525 P.2d 632 (Okla.1974); Erwin v. Thomas, 264 Or. 454, 506 P.2d 494 (1973); Gutierrez v. Collins, 583 S.W.2d 312 (Tex.1979); Forsman v. Forsman, 779 P.2d 218 (Utah 1989); Southwell v. Widing Transp., Inc., 101 Wash.2d 200, 676 P.2d 477 (1984).

      71

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

      72

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

    • 1.4 Peters v. Peters

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

      Supreme Court of Hawaii.

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

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

      8

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

      9

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

      10
      NAKAMURA, Justice.
      11

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

      12
      I.
      13

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

      14
      II.
      15

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

      16

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

      17
      A.
      18

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

      19

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

      20

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

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

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

      23

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

      24

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

      25

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

      26
      B.
      27

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

      28

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

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

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

      31
      1.
      32

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

      33

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

      34

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

      35

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

      36

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

      37
      2.
      38

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

      39

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

      40

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

      41
      3.
      42

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

      43

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

      44

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

      45

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

      46

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

      47

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

      48

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

      49

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

      50

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

      51

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

      52

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

      53

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

      54

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

      55

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

      56

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

      57

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

      58

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

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

      ... .

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

      59

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

      60

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

      61

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

      62

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

      63

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

      64

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

      65

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

      66

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

      67

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

      68

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

      69

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

      70

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

      71

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

      72

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

      73

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

      74

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

      75

      [15]Leflar describes the Currie approach as follows:

      76

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

      77

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

      78

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

      79

      (1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.

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

      (a) the place where the injury occurred,

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

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

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

      80

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

      81

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

      82

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

      83

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

      84

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

      85

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

      86

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

      87

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

      88

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

      89

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

      90

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

      91

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

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

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

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

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

      (4) Provide for a compulsory insurance system;

      (5) Provide for adequate regulatory control.

      92

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

      93

      § 169. Intra-Family Immunity

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

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

  • 2 §1.3.2.2 Restrained interpretation

    • 2.1 Thoring v. Bottonsek

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

      Supreme Court of North Dakota.

      5
      May 23, 1984.
      6

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

      7

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

      8
      PEDERSON, Justice.
      9

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

      10

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

      11

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

      12

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

      13

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

      14

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

      15

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

      16

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

      17

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

      18

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

      19

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

      20

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

      21

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

      22

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

      23

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

      24

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

      25

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

      26

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

      27

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

      28

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

      29

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

      30

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

      31

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

      32

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

      33

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

      34

      Reversed.

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

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

      37

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

      38

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

      39

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

      40

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

      41

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

    • 2.2 Beard v. Viene

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

      Supreme Court of Oklahoma.

      5
      February 25, 1992.
      6

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

      7

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

      8
      [991] OPALA, Chief Justice.
      9

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

      10

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

      11
      ANATOMY OF FEDERAL LITIGATION
      12

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

      13
      ANALYSIS, DISCUSSION AND ANSWER
      14

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

      15

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

      16

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

      17

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

      18

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

      19

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

      20

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

      21

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

      22

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

      23

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

      24

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

      25

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

      26

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

      27

      CERTIFIED QUESTION ANSWERED.

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

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

      32

      "537.600 Sovereign immunity in effect — exceptions — waiver of

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

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

      * * * * * *

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

      33

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

      34

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

      35

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

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

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

      36

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

      37

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

      38

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

      39

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

      * * * * * *

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

      8. `Political subdivision' means:

      a. a municipality;

      * * * * * *

      and all their institutions, instrumentalities or agencies."

      40

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

      41

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

      42

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

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

      43

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

      44

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

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

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

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

      45

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

      46

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

      47

      [5] See supra note 3.

      48

      [6] See supra note 3.

      49

      [7] See supra notes 1-2.

      50

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

      51

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

      52

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

      53

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

      54

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

      55

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

      56

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

      57

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

      58

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

      59

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

      60

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

      61

      "(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.

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

      (a) the place where the injury occurred,

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

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

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

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

      62

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

      63

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

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

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

      (b) the relevant policies of the forum,

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

      (d) the protection of justified expectations,

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

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

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

      64

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

      65

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

      66

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

      67

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

      68

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

      69

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

      70

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

      71

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

      72

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

      73

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

      74

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

      75

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

      76

      [29] See supra notes 1-3.

      77

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

      78

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

      79

      [32] See supra note 3.

      80

      [33] See supra note 3.

      81

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

      82

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

      83

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

      84

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

      85

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

      86

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

      87

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

      88

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

      89

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

      90

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

      91

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

  • 3 §1.3.2.3 Comparative impairment

    • 3.1 Bernhard v. Harrah's Club

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

      Supreme Court of California. In Bank.

      7
      March 2, 1976.
      8

      [315] COUNSEL

      9

      Frederick W. Stephenson for Plaintiff and Appellant.

      10

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

      11

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

      12

      OPINION

      13
      SULLIVAN, J.
      14

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

      15

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

      16

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

      17

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

      18

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

      19

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

      20

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

      21

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

      22

      Although California and Nevada, the two "involved states" (Reich v. Purcell, supra, 67 Cal.2d 551, 553; see also Hurtado v. Superior Court, supra, 11 Cal.3d 574, 579), have different laws governing the issue presented in the case at bench, we encounter a problem in selecting the applicable rule of law only if both states have an interest in having their respective laws applied. (2) "[G]enerally speaking the forum will [318] apply its own rule of decision unless a party litigant timely invokes the law of a foreign state. In such event he must demonstrate that the latter rule of decision will further the interest of the foreign state and therefore that it is an appropriate one for the forum to apply to the case before it. [Citations.]" (Hurtado, supra, at p. 581.)

      23

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

      24

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

      25

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

      26

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

      27

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

      28

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

      29

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

      30

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

      31

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

      32

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

      33

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

      34

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

      35

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

      36

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

      37

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

      38

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

      39

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

      40

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

      41

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

      42

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

      43

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

      44

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

      45

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

  • 4 §1.3.2.4 Most significant relationship

    • 4.1 PV ex rel. TV v. Camp Jaycee

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

      Supreme Court of New Jersey.

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

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

      9

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

      10
      Justice LONG delivered the opinion of the Court.
      11

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

      12

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

      13

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

      14
      I.
      15

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

      16

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

      17

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

      18

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

      19
      II.
      20

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

      21

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

      22
      III.
      23

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

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

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

      26

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

      27

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

      28

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

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

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

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

      The Second Restatement also provides specific guidance for resolving particular types of cases. See, e.g., Restatement, supra, ch. 8 ("Contracts"). In connection with tort, section 145 of chapter 7 is entitled "The General Principle" and prescribes that: "The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6." Restatement, supra, § 145(1). The contacts that are weighed in making that assessment include:

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

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

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

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

      52
      In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.
      53
      [Restatement, supra, § 146.]
      54

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

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

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

      58

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

      59

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

      60

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

      61
      IV.
      62

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

      63

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

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

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

      67
      V.
      68

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

      69

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

      70
      VI.
      71

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

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

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

      75

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

      76

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

      77

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

      78

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

      79

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

      80
      VII.
      81

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

      82
      A.
      83

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

      84

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

      85

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

      86

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

      87

      The dissenting judge disagreed with that characterization:

      88
      There can be no question that this State has a paramount interest in preventing and protecting against injurious misconduct within its borders. This interest is particularly vital and compelling where, as here, the tortious misconduct involves sexual abuse and exploitation of children, regardless of the residency of the victims and the tort-feasors. (See, New York v. Ferber, 458 U.S. 747, 756-60, 102 S.Ct. 3348, 3354-3356, 73 L.Ed.2d 1113, on remand 57 N.Y.2d 256, 455 N.Y.S.2d 582, 441 N.E.2d 1100.) Despite the majority's denial, New York's law in question is intimately connected to this overriding interest.
      89
      . . . .
      90
      Indeed, this deterrence function of tort law, whether it be in the form of imposing liability or denying immunity, is a substantial interest of the locus state which is almost universally acknowledged by both commentators and the courts to be prominent factor deserving significant consideration in the resolution of conflicts problems.
      91
      [Schultz, supra, 491 N.Y.S.2d 90, 480 N.E.2d at 691-92.][7]
      92

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

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

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

      96

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

      97

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

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

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

      101

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

      102

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

      103
      B.
      104

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

      105

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

      106

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

      107
      C.
      108

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

      109
      D.
      110

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

      111
      VIII.
      112

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

      113

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

      114

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

      115

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

      116

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

      117

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

      118
      IX.
      119

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

      120
      Justice HOENS, dissenting.
      121

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

      122

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

      123

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

      124

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

      125
      I.
      126

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

      127

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

      128

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

      129

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

      130

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

      131

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

      132

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

      133

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

      134

      As we commented recently:

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

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

      138

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

      139

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

      140

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

      141

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

      142
      II.
      143

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

      144
      A.
      145

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

      146

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

      147

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

      148

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

      149

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

      150

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

      151

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

      152

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

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

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

      156

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

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

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

      160

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

      161

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

      162

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

      163

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

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

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

      167

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

      168

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

      169

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

      170

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

      171
      B.
      172

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

      173

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

      174

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

      175

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

      176

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

      177
      C.
      178

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

      179

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

      180

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

      181

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

      182
      III.
      183

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

      184

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

      185

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

      186

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

      187

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

      188

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

      189

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

      190

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

      191

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

      192

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

      193

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

      194

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

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

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

      198

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

      199

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

      200

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

      201

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

      202

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

      203

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

      204

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

      205

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

      206

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

      207

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

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