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§1.3.2.1 Forum law
  • 1 Hall v. University of Nevada

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

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

    6
    October 24, 1977.
    7

    [282] COUNSEL

    8

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

    9

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

    10

    OPINION

    11
    EMERSON, J.[1]
    12

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

    13

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

    14

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

    15

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

    16

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

    17

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

    18

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

    19

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

    20

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

    21

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

    22

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

    23

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

    24

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

    25

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

    26

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

    27

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

    28

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

    29

    The judgment is affirmed.

    30

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

    31

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

    32

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

  • 2 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.

  • 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).

  • 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.

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