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§1.5 Principles of preference (choice-of-law rules)
  • 1 Neumeier v. Kuehner

    1
    31 N.Y.2d 121 (1972)
    2
    Joan Neumeier, as Administratrix of The Estate of Amie Neumeier, Deceased, Respondent,
    v.
    Irene Kuehner, as Administratrix of The Estate of Arthur Kuehner, Deceased, et al., Appellants.
    3

    Court of Appeals of the State of New York.

    4
    Argued April 25, 1972.
    5
    Decided July 7, 1972.
    6

    Frank G. Godson for Irene Kuehner, appellant.

    7

    Courtland R. LaVallee for Canadian National Railway, appellant.

    8

    James S. McAskill and James N. Schmit for respondent.

    9

    Judges BURKE, SCILEPPI and GIBSON concur with Chief Judge FULD; Judge BREITEL concurs in a separate opinion in which Judge JASEN concurs; Judge BERGAN dissents and votes to affirm in an opinion.

    10
    [123] Chief Judge FULD.
    11

    A domiciliary of Ontario, Canada, was killed when the automobile in which he was riding, owned and [124] driven by a New York resident, collided with a train in Ontario. That jurisdiction has a guest statute, and the primary question posed by this appeal is whether in this action brought by the Ontario passenger's estate, Ontario law should be applied and the New York defendant permitted to rely on its guest statute as a defense.

    12

    The facts are quickly told. On May 7, 1969, Arthur Kuehner, the defendant's intestate, a resident of Buffalo, drove his automobile from that city to Fort Erie in the Province of Ontario, Canada, where he picked up Amie Neumeier, who lived in that town with his wife and their children. Their trip was to take them to Long Beach, also in Ontario, and back again to Neumeier's home in Fort Erie. However, at a railroad crossing in the Town of Sherkston — on the way to Long Beach — the auto was struck by a train of the defendant Canadian National Railway Company. Both Kuehner and his guest-passenger were instantly killed.

    13

    Neumeier's wife and administratrix, a citizen of Canada and a domiciliary of Ontario, thereupon commenced this wrongful death action in New York against both Kuehner's estate and the Canadian National Railway Company. The defendant estate pleaded, as an affirmative defense, the Ontario guest statute and the defendant railway also interposed defenses in reliance upon it. In substance, the statute provides that the owner or driver of a motor vehicle is not liable for damages resulting from injury to, or the death of, a guest-passenger unless he was guilty of gross negligence (Highway Traffic Act of Province of Ontario [Ont. Rev. Stat. (1960), ch. 172], § 105, subd. [2], as amd. by Stat. of 1966, ch. 64, § 20, subd. [2]). It is worth noting, at this point, that, although our court originally considered that the sole purpose of the Ontario statute was to protect Ontario defendants and their insurers against collusive claims (see Babcock v. Jackson, 12 N Y 2d 473, 482-483), "Further research * * * has revealed the distinct possibility that one purpose, and perhaps the only purpose, of the statute was to protect owners and drivers against suits by ungrateful guests." (Reese, Choice of Law, 71 Col. L. Rev. 548, 558; see Trautman, Two Views on Kell v. Henderson: A Comment, 67 Col. L. Rev. 465, 469.)

    14

    [125] The plaintiff, asserting that the Ontario statute "is not available * * * in the present action", moved, pursuant to CPLR 3211 (subd. [b]), to dismiss the affirmative defenses pleaded. The court at Special Term, holding the guest statute applicable, denied the motions (63 Misc 2d 766) but, on appeal, a closely divided Appellate Division reversed and directed dismissal of the defenses (37 A D 2d 70). It was the court's belief that this result was dictated by Tooker v. Lopez (24 N Y 2d 569).

    15

    In reaching that conclusion, the Appellate Division misread our decision in the Tooker case — a not unnatural result in light of the variant views expressed in the three separate opinions written on behalf of the majority. It is important to bear in mind that in Tooker, the guest-passenger and the host-driver were both domiciled in New York, and our decision — that New York law was controlling — was based upon, and limited to, that fact situation. Indeed, two of the three judges who wrote for reversal — Judge KEATING (24 N Y 2d, at p. 580) and Judge BURKE (at p. 591) — expressly noted that the determination then being made left open the question whether New York law would be applicable if the plaintiff passenger happened to be a domiciliary of the very jurisdiction which had a guest statute.[1] Thus, Tooker v. Lopez did no more than hold that, when the passenger and driver are residents of the same jurisdiction and the car is there registered and insured, its law, and not the law of the place of accident, controls and determines the standard of care which the host owes to his guest.

    16

    What significantly and effectively differentiates the present case is the fact that, although the host was a domiciliary of New York, the guest, for whose death recovery is sought, was domiciled in Ontario, the place of accident and the very jurisdiction which had enacted the statute designed to protect the host from liability for ordinary negligence. It is clear that, although New York has a deep interest in protecting its own residents, injured in a foreign state, against unfair or anachronistic statutes of that state, it has no legitimate interest in [126] ignoring the public policy of a foreign jurisdiction — such as Ontario — and in protecting the plaintiff guest domiciled and injured there from legislation obviously addressed, at the very least, to a resident riding in a vehicle traveling within its borders.

    17

    To distinguish Tooker on such a basis is not improperly discriminatory. It is quite true that, in applying the Ontario guest statute to the Ontario-domiciled passenger, we, in a sense, extend a right less generous than New York extends to a New York passenger in a New York vehicle with New York insurance. That, though, is not a consequence of invidious discrimination; it is, rather, the result of the existence of disparate rules of law in jurisdictions that have diverse and important connections with the litigants and the litigated issue.

    18

    The fact that insurance policies issued in this State on New York-based vehicles cover liability, regardless of the place of the accident (Vehicle and Traffic Law, § 311, subd. 4), certainly does not call for the application of internal New York law in this case. The compulsory insurance requirement is designed to cover a car-owner's liability, not create it; in other words, the applicable statute was not intended to impose liability where none would otherwise exist. This being so, we may not properly look to the New York insurance requirement to dictate a choice-of-law rule which would invariably impose liability. As Justice MOULE wrote in the course of his dissenting opinion below (37 A D 2d, at pp. 75-76), "The statute [Vehicle and Traffic Law, § 311, subd. 4] does not purport to impose liability where none would otherwise exist. We must observe that Judge KEATING'S statement ([in Tooker, 24 N Y 2d, at] p. 577) that the Legislature `has evinced commendable concern not only for the residents of this State, but residents of other States who may be injured as a result of the activities of New York residents' was in the context, not of proving that New York had a governmental interest in overriding foreign rules of liability, but of demonstrating that it was immaterial in that case that the driver and passenger, while domiciliaries of New York, were attending college in Michigan. While New York may be a proper forum for actions involving its own domiciliaries, regardless of where the accident happened, it does not follow that we should apply New York law simply because some may think it is a better rule, where doing so does not advance any New York State [127] interest, nor the interest of any New York State domiciliary."

    19

    When, in Babcock v. Jackson (12 N Y 2d 473, supra), we rejected the mechanical place of injury rule in personal injury cases because it failed to take account of underlying policy considerations, we were willing to sacrifice the certainty provided by the old rule for the more just, fair and practical result that may best be achieved by giving controlling effect to the law of the jurisdiction which has the greatest concern with, or interest in, the specific issue raised in the litigation. (See, also, Tooker v. Lopez, 24 N Y 2d 569, 584 [concurring opn.], supra.) In consequence of the change effected — and this was to be anticipated — our decisions in multi-state highway accident cases, particularly in those involving guest-host controversies, have, it must be acknowledged, lacked consistency. This stemmed, in part, from the circumstance that it is frequently difficult to discover the purposes or policies underlying the relevant local law rules of the respective jurisdictions involved. It is even more difficult, assuming that these purposes or policies are found to conflict, to determine on some principled basis which should be given effect at the expense of the others.

    20

    The single all-encompassing rule which called, inexorably, for selection of the law of the place of injury was discarded, and wisely, because it was too broad to prove satisfactory in application. There is, however, no reason why choice-of-law rules, more narrow than those previously devised, should not be successfully developed, in order to assure a greater degree of predictability and uniformity, on the basis of our present knowledge and experience. (See, e.g., Cavers, The Choice of Law Process, 121-122; Reese, Choice of Law, 71 Col. L. Rev. 548, 555, 561-562; Reese, Choice of Law: Rules or Approach, 57 Corn. L. Rev. 315, 321 et seq.; Rosenberg, Comments on Reich v. Purcell, 15 UCLA L. Rev. 641, 642, 646-647.) "The time has come," I wrote in Tooker (24 N Y 2d, at p. 584), "to endeavor to minimize what some have characterized as an ad hoc case-by-case approach by laying down guidelines, as well as we can, for the solution of guest-host conflicts problems." Babcock and its progeny enable us to formulate a set of basic principles that may be profitably utilized, for they have helped us uncover the underlying values and policies which are operative in this area of the law. To quote again from the concurring [128] opinion in Tooker (p. 584), "Now that these values and policies have been revealed, we may proceed to the next stage in the evolution of the law — the formulation of a few rules of general applicability, promising a fair level of predictability." Although it was recognized that no rule may be formulated to guarantee a satisfactory result in every case, the following principles were proposed as sound for situations involving guest statutes in conflicts settings (24 N Y 2d, at p. 585):

    21
    "1. When the guest-passenger and the host-driver are domiciled in the same state, and the car is there registered, the law of that state should control and determine the standard of care which the host owes to his guest.
    22
    "2. When the driver's conduct occurred in the state of his domicile and that state does not cast him in liability for that conduct, he should not be held liable by reason of the fact that liability would be imposed upon him under the tort law of the state of the victim's domicile. Conversely, when the guest was injured in the state of his own domicile and its law permits recovery, the driver who has come into that state should not — in the absence of special circumstances — be permitted to interpose the law of his state as a defense.
    23
    "3. In other situations, when the passenger and the driver are domiciled in different states, the rule is necessarily less categorical. Normally, the applicable rule of decision will be that of the state where the accident occurred but not if it can be shown that displacing that normally applicable rule will advance the relevant substantive law purposes without impairing the smooth working of the multi-state system or producing great uncertainty for litigants. (Cf. Restatement, 2d, Conflict of Laws, P.O.D., pt. II, §§ 146, 159 [later adopted and promulgated May 23, 1969].)"
    24

    The variant views expressed not only in Tooker but by Special Term and the divided Appellate Division in this litigation underscore and confirm the need for these rules. Since the passenger was domiciled in Ontario and the driver in New York, the present case is covered by the third stated principle. The law to be applied is that of the jurisdiction where the accident happened [129] unless it appears that "displacing [the] normally applicable rule will advance the relevant substantive law purposes" of the jurisdictions involved. Certainly, ignoring Ontario's policy requiring proof of gross negligence in a case which involves an Ontario-domiciled guest at the expense of a New Yorker does not further the substantive law purposes of New York. In point of fact, application of New York law would result in the exposure of this State's domiciliaries to a greater liability than that imposed upon resident users of Ontario's highways. Conversely, the failure to apply Ontario's law would "impair" — to cull from the rule set out above — "the smooth working of the multi-state system [and] produce great uncertainty for litigants" by sanctioning forum shopping and thereby allowing a party to select a forum which could give him a larger recovery than the court of his own domicile. In short, the plaintiff has failed to show that this State's connection with the controversy was sufficient to justify displacing the rule of lex loci delictus.

    25

    Professor Willis Reese, the Reporter for the current Conflict of Laws Restatement, expressed approval of rules such as those suggested above; they are, he wrote, "the sort of rules at which the courts should aim" (Reese, Choice of Law, 71 Col. L. Rev. 548, 562; see, also, Reese, Choice of Law: Rules or Approach, 57 Corn. L. Rev. 315, 321, 323, 328).[2] Indeed, in discussing the present case following the determination at Special Term that Ontario law should govern, he expressed the opinion that any other result would have been highly unreasonable (71 Col. L. Rev., at p. 563): "So far as the New York law was concerned, Judge Keating had argued in Tooker v. Lopez that New York's motor vehicle compulsory insurance law revealed a `commendable concern' not only for New York residents but also for non-residents injured by New Yorkers. On this basis, it could perhaps be argued that New York policy would be furthered by application of the New York rule imposing upon the driver the duty of exercising ordinary care for [130] the protection of his guest. But could this argument really be made with a straight face in support of an Ontario guest picked up in Ontario and who enjoyed no similar protection under Ontario Law? Was the New York rule really intended to be manna for the entire world? One can well understand the relief with which the trial judge seized upon Judge Fuld's third rule and followed it by holding the Ontario statute applicable."

    26

    In each action, the Appellate Division's order should be reversed, that of Special Term reinstated, without costs, and the questions certified answered in the negative.

    27
    BREITEL, J. (concurring).
    28

    I agree that there should be a reversal, but would place the reversal on quite narrow grounds. It is undesirable to lay down prematurely major premises based on shifting ideologies in the choice of law. True, Chief Judge FULD in his concurring opinion in the Tooker case (Tooker v. Lopez, 24 N Y 2d 569, 583, at p. 584) took the view that there had already occurred sufficient experience to lay down some rules of law which would reduce the instability and uncertainty created by the recent departures from traditional lex loci delictus. This case, arising so soon after, shows that the permutations in accident cases, especially automobile accident cases, is disproof that the time has come.

    29

    Problems engendered by the new departures have not gone unnoticed and they are not confined to the courts of this State (Juenger, Choice of Law in Interstate Torts, 118 U. Pa. L. Rev. 202, 214-220). They arise not merely because any new departure of necessity creates problems, but much more because the departures have been accompanied by an unprecedented competition of ideologies, largely of academic origin, to explain and reconstruct a whole field of law, each purporting or aspiring to achieve a single universal principle.

    30

    Babcock v. Jackson (12 N Y 2d 473), an eminently correctly and justly decided case, applied the then current new doctrine of grouping of contacts. Troubles arose only when the universality of a single doctrine was assumed (Macey v. Rozbicki, 18 N Y 2d 289; Dym v. Gordon, 16 N Y 2d 120). By the time of Miller v. Miller (22 N Y 2d 12) and the Tooker case (24 N Y 2d 569, supra), [131] the new doctrine had been displaced by a still newer one, that of governmental interests developed most extensively by the late Brainerd Currie, and the court was deeply engaged in probing the psychological motivation of legislatures of other States in enacting statutes restricting recoveries in tort cases. Now, evidently, it is suggested that this State and other States may have less parochial concerns in enacting legislation restricting tort recoveries than had been believed only a short time ago. The difficulties this case has given the courts below, and now this court, stems, it is suggested, more from a concern in sorting out ideologies than in applying narrow rules of law in the traditional common-law process (Juenger, op. cit., supra, at p. 233).

    31

    What the Babcock case (12 N Y 2d 473, supra) taught and what modern day commentators largely agree is that lex loci delictus is unsoundly applied if it is done indiscriminately and without exception. It is still true, however, that lex loci delictus is the normal rule, as indeed Chief Judge FULD noted in the Tooker case (24 N Y 2d 569, supra), to be rejected only when it is evident that the situs of the accident is the least of the several factors or influences to which the accident may be attributed (for discussion, see dissenting opn. in Tooker v. Lopez, 24 N Y 2d, at pp. 595-596). Certain it is that States are not concerned only with their own citizens or residents. They are concerned with events that occur within their territory, and are also concerned with the "stranger within the gates" (Juenger, op. cit., supra, at pp. 209-210).

    32

    In this case, none would have ever assumed that New York law should be applied just because one of the two defendants was a New York resident and his automobile was New York insured, except for the overbroad statements of Currie doctrine in the Tooker case (24 N Y 2d 569, supra), stemming from one particular school of academic thinking in the field of conflicts law (see the concurring opn. by Judge BURKE in the Tooker case, 24 N Y 2d, at pp. 586-592, and for that matter, the dissenting opn. by Judge BERGAN, in this case).

    33

    Consequently, I agree that there should be a reversal and the defenses allowed to stand. The conclusion, however, rests simply on the proposition that plaintiff has failed by her allegations to establish that the relationship to this State was sufficient [132] to displace the normal rule that the lex loci delictus should be applied, the accident being associated with Ontario, from inception to tragic termination, except for adventitious facts and where the lawsuit was brought.

    34
    BERGAN, J. (dissenting).
    35

    The doctrine of lex loci delictus, whatever its other shortcomings may be, including a somewhat abrasive effect on inconsistent law of the forum, had at least the virtues of certainty and reckonability.

    36

    But the operation of the guest statutes of other jurisdictions worked out so differently — unjustly by New York standards — that in a series of highly debatable and debated decisions from Babcock v. Jackson (12 N Y 2d 473 [1963]) to Tooker v. Lopez (24 N Y 2d 569 [1969]) this court refused to follow the rule of lex loci delictus in special situations and applied New York law in New York litigation to motor vehicle torts occurring in other jurisdictions.

    37

    The rationale of departure from the settled rule was that New York had a greater "concern" or "interest" in the controversy or the parties; or had closer "contacts" than the jurisdiction of the situs of the accident. See Miller v. Miller (22 N Y 2d 12); Farber v. Smolack (20 N Y 2d 198), and Macey v. Rozbicki (18 N Y 2d 289). The decision in Dym v. Gordon (16 N Y 2d 120) went the other way. The direction taken and justified by the rationale of "interest" or "contact", however, necessarily started with the court's preference for the local rule and a belief in its greater justice.

    38

    There is a difference of fundamental character between justifying a departure from lex loci delictus because the court will not, as a matter of policy, permit a New York owner of a car licensed and insured in New York to escape a liability that would be imposed on him here; and a departure based on the fact a New York resident makes the claim for injury. The first ground of departure is justifiable as sound policy; the second is justifiable only if one is willing to treat the rights of a stranger permitted to sue in New York differently from the way a resident is treated. Neither because of "interest" nor "contact" nor any other defensible ground is it proper to say in a court of law that the rights of one man whose suit is accepted [133] shall be adjudged differently on the merits on the basis of where he happens to live.

    39

    This crunch in the rule announced in Babcock (12 N Y 2d 473, supra) was inevitable as it worked its way into the practice. And the difficulty was recognized in Tooker (24 N Y 2d 569, supra). Although Tooker, unlike the present case, involved a New York plaintiff and thus was similar to Babcock and the cases which had followed Babcock, the opinion of the court laid it down that the New York owner of a car insured in New York would not be permitted to escape liability through the guest statute of Michigan and that this was the main ground of decision. The court in Tooker said (p. 575): "This purpose [of a statute of another jurisdiction establishing higher standards for the recovery of guests in vehicles] can never be vindicated when the insurer is a New York carrier and the defendant is sued in the courts of this State. Under such circumstances, the jurisdiction enacting such a guest statute has absolutely no interest in the application of its law."

    40

    The decision was 4-to-3; but a majority of the Judges expressly subscribed to the opinion by Judge KEATING even though Chief Judge FULD and Judge BURKE stated additional grounds of concurrence. The quoted statement of policy in the Tooker opinion, which was the court's statement and not the view of an individual Judge has the normal binding effect of such an opinion.

    41

    Reading these words of the opinion of the court the Bar would reasonably anticipate that the more basic and justifiable ground for refusing a New York vehicle the differential benefit of a foreign statute would be applied in future. Such a rule would offer more in the way of reckonability and predictability than the elusive grouping of "contacts" or "interests".

    42

    Hence the Appellate Division was justified in reading Tooker (24 N Y 2d 569, supra) to dismiss the asserted defense in this action. What the court is deciding today is that although it will prevent a New York car owner from asserting the defense of a protective foreign statute when a New York resident in whose rights it has an "interest" sues; it has no such "interest" when it accepts the suit in New York of a nonresident. This is an inadmissible distinction.

    43

    The order should be affirmed.

    44

    Orders reversed, etc.

    45

    [1] In the other concurring opinion (24 N Y 2d, at p. 585), I wrote that in such a case — where the passenger is a resident of the state having a guest statute — "the applicable rule of decision will [normally] be that of the state where the accident occurred".

    46

    [2] These rules have also been found acceptable by several other courts. (See, e.g., Arbuthnot v. Allbright, 35 A D 2d 315; Weinstein v. Abraham, 64 Misc 2d 76; Hancock v. Holland, 63 Misc 2d 811; see, also, Pryor v. Swarner, 445 F.2d 1272, 1275 et seq. [2d Cir.]; Beaulieu v. Beaulieu, 265 A. 2d 610, 617 [Maine].)

  • 2 Edwards v. Erie Coach Lines Co.

    1
    17 N.Y.3d 306 (2011)
    2
    952 N.E.2d 1033
    3
    929 N.Y.S.2d 41
    4
    2011 NY Slip Op 5583
    5
    SHEILA ELIZABETH EDWARDS, Individually and as Executrix of RICHARD EDWARDS, Deceased, and as Administratrix of the Estate of BRIAN EDWARDS, Deceased, et al., Appellants,
    v.
    ERIE COACH LINES COMPANY et al., Respondents,
    et al., Defendants.
    MEAGAN GODWIN et al., Appellants,
    v.
    TRENTWAY-WAGAR, INC., et al., Respondents,
    et al., Defendants.
    TRACI BUTLER, Appellant,
    v.
    STAGECOACH GROUP, PLC, et al., Defendants, and
    TRENTWAY-WAGAR, INC., et al., Respondents.
    COURTNEY COWAN et al., Appellants,
    v.
    STAGECOACH GROUP, PLC, et al., Respondents,
    et al., Defendants.
    LAURALEE DAVIDSON, Appellant,
    v.
    COACH USA, INC., et al., Respondents.
    MICHAEL ROACH, Individually and as Representative of the Estate of CATHERINE ROACH, Deceased, et al., Appellants,
    v.
    COACH USA, INC., et al., Respondents.
    6
    Nos. 131, 132, 133, 134, 135, 136.
    7

    Court of Appeals of New York.

    8
    Argued June 2, 2011.
    9
    Decided June 30, 2011.
    10

    [312] Seeger Weiss LLP, New York City (TerriAnne Benedetto and Christopher A. Seeger of counsel), for appellants in the first above-entitled action.

    11

    [313] Hiscock & Barclay, LLP, Rochester (Anthony J. Piazza, Mark T. Whitford Jr. and Joseph A. Wilson of counsel), for Erie Coach Lines Company and others, respondents in the first above-entitled action.

    12

    [314] Culley, Marks, Tannenbaum & Pezzulo, LLP, Rochester (Glenn E. Pezzulo of counsel), for J&J; Trucking and others, respondents in the first above-entitled action.

    13

    Clark, Gagliardi & Miller, P.C., White Plains (Lawrence T. D'Aloise, Jr., of counsel), for appellants in the second, third and fourth above-entitled actions.

    14

    [315] Hiscock & Barclay, LLP, Rochester (Anthony J. Piazza, Mark T. Whitford Jr. and Joseph A. Wilson of counsel), for Trentway-Wager, Inc. and others, respondents in the second, third and fourth above-entitled actions.

    15

    Culley, Marks, Tannenbaum & Pezzulo, LLP, Rochester (Glenn E. Pezzulo of counsel), for J&J; Hauling, Inc. and others, respondents in the second, third and fourth above-entitled actions.

    16

    [316] Kelly & Leonard, LLP, Ballston Spa (Mitchell A. Toups and Thomas E. Kelly of counsel), for appellants in the fifth and sixth above-entitled actions.

    17

    [317] Hiscock & Barclay, LLP, Rochester (Anthony J. Piazza and Mark T. Whitford Jr. of counsel), for Coach USA, Inc. and others, respondents in the fifth and sixth above-entitled actions.

    18

    Culley, Marks, Tanenbaum & Pezzulo, LLP, Rochester (Glenn E. Pezzulo of counsel), for J&J; Hauling, Inc. and others, respondents in the fifth and sixth above-entitled actions.

    19

    Judges GRAFFEO, SMITH, PIGOTT and JONES concur with Judge READ; Judge CIPARICK dissents in part and votes to reverse in a separate opinion in which Chief Judge LIPPMAN concurs.

    20
    [318] OPINION OF THE COURT
    21
    READ, J.
    22

    Near Geneseo, New York on January 19, 2005 a charter bus carrying members of an Ontario women's hockey team plowed into the rear end of a tractor-trailer parked on the shoulder of the highway. Three bus passengers and the tractor-trailer's driver died; several bus passengers were seriously hurt. We are called upon to decide the choice-of-law issue presented by these six lawsuits, which were brought to recover damages for wrongful death and/or personal injuries.

    23
    I.
    24

    Nearly a half-century ago, in Babcock v Jackson (12 NY2d 473 [1963]), we abandoned what had long been our choice-of-law rule whereby the law of the place of the tort invariably governed. Because "in nearly all such cases, the conduct causing injury and the injury itself occurred in the same jurisdiction" (id. at 477 n 2), this rule offered "the advantages of certainty, ease of application and predictability," but at the expense of "the interest which [other] jurisdictions . . . [might] have in the resolution of particular issues" (id. at 478; see also Cooney v Osgood Mach., 81 NY2d 66, 72 [1993] [place-of-the-tort theory "failed to accord any significance to the policies underlying the conflicting laws of other jurisdictions"]).

    25

    To "accomodat[e] the competing interests in tort cases with multi-State contacts," we adopted the "center of gravity" or "grouping of contacts" approach, which gave the "controlling effect to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties, ha[d] the greatest concern with the specific issue raised in the litigation" (12 NY2d at 481). This new method of analysis, however, was [319] limited to competing loss-allocation — not conduct-regulating — rules.[1] As we explained in Babcock,

    26
    "[w]here the defendant's exercise of due care in the operation of his automobile is in issue, the jurisdiction in which the allegedly wrongful conduct occurred will usually have a predominant, if not exclusive, concern. In such a case, it is appropriate to look to the law of the place of the tort so as to give effect to that jurisdiction's interest in regulating conduct within its borders, and it would be almost unthinkable to seek the applicable rule in the law of some other place" (12 NY2d at 483).
    27

    The facts of Babcock illustrate how "grouping of contacts" worked. In that case, a New York passenger in a car operated by a New York driver was injured in an automobile accident that occurred in Ontario during a weekend trip to Canada. We noted that the trip began and was to end in New York, where the car was garaged, licensed and insured, and where the driver-passenger relationship arose (id. at 482-483). The "guest" passenger sued the "host" driver in New York for negligence. At the time, the Ontario guest statute barred the passenger from recovering damages from the driver,[2] while New York law did not.

    28

    Looking to the "grouping of contacts," we decided that New York — not Ontario, the place of the tort — possessed "the dominant contacts and the superior claim for application of its law" as to whether the passenger should "recover[] for damages for a wrong concededly committed" (id. at 483). We commented that, in this context,

    29
    "[a]lthough the rightness or wrongness of [the driver's] conduct may depend upon the law of the particular jurisdiction through which the automobile passes, the rights and liabilities of the parties which [320] stem from their guest-host relationship should remain constant and not vary and shift as the automobile proceeds from place to place. Indeed, such a result . . . accords with the interests of the host in procuring liability insurance adequate under the applicable law, and the interests of his insurer in reasonable calculability of the premium" (id. at 483-484 [internal quotation marks omitted]).
    30

    Over time, the "grouping of contacts" approach put into place by Babcock evolved into a more explicit "interest analysis." This method of deciding choice-of-law issues "reject[ed] a quantitative grouping of contacts" because "[c]ontacts obtain significance only to the extent that they relate to the policies and purposes sought to be vindicated by the conflicting laws" (Miller v Miller, 22 NY2d 12, 17 [1968]; see also Cooney, 81 NY2d at 72 ["Of the various, sometimes competing, schools of thought on choice of law, the one that emerged as most satisfactory was `interest analysis,' which sought to effect the law of the jurisdiction having the greatest interest in resolving the particular issue"]).

    31

    We refined our "interest analysis" so as "to assure a greater degree of predictability and uniformity" in Neumeier v Kuehner (31 NY2d 121, 127 [1972]), a case where a domiciliary of Ontario was killed when the automobile in which he was a passenger collided with a train in Ontario. The vehicle was owned and driven by a resident of New York, who was also killed in the accident. The passenger's wife and administratrix, a citizen of Canada and a domiciliary of Ontario, brought an action for wrongful death in New York against the driver's estate and the railway company, both of which interposed affirmative defenses involving the Ontario guest statute.[3] The wife, asserting that the Ontario statute was unavailable, moved to dismiss the affirmative defenses, and Supreme Court denied the motion (63 [321] Misc 2d 766 [1970]). The Appellate Division reversed (37 AD2d 70 [1971]), and asked us if its order was properly made. We answered, "No."

    32

    Neumeier set up a three-rule framework for resolving choice of law in conflicts settings involving guest statutes, which by definition allocate losses after the tort occurs rather than regulate primary conduct. Under the first Neumeier rule, when the driver and passenger are domiciled in the same state, and the vehicle is registered there, the law of their shared jurisdiction controls (31 NY2d at 128). The second rule addresses the situation where the driver and the passenger are domiciled in different states, and the law of the place where the accident occurred favors its domiciliary. When the driver's conduct occurs in the state where he is domiciled, which would not impose liability, that state's law applies. Conversely, if the law of the place where the accident occurred permits the injured passenger to recover, then the driver, "in the absence of special circumstances," may not interpose a conflicting law of his state as a defense (id.; see also Cooney, 81 NY2d at 73 ["In essence, . . . the second Neumeier rule adopts a `place of injury' test for true conflict guest statute cases"]).

    33

    "In other situations, when the passenger and the driver are domiciled in different states, the rule is necessarily less categorical" (31 NY2d at 128). Thus, under the third Neumeier rule, the law of the state where the accident occurred governs unless "it can be shown that displacing that normally applicable rule will advance the relevant substantive law purposes without impairing the smooth working of the multi-state system or producing great uncertainty for litigants" (id.).

    34

    Since the passenger in Neumeier was domiciled in Ontario, where the guest statute did not allow recovery, and the driver in New York, the third rule — the law of the place of the tort (i.e., Ontario) — would normally control. We saw no reason to apply the third rule's proviso since the wife "failed to show that [New York's] connection with the controversy was sufficient to justify displacing" lex loci delicti, the law of the place of the wrong (id. at 129). The wife did not show that ignoring Ontario's guest statute in a case "involv[ing] an Ontario-domiciled guest at the expense of a New Yorker . . . further[ed] the substantive law purposes of New York"; and "failure to apply Ontario's law would impair . . . the smooth working of the multi-state system [and] produce great uncertainty for litigants by sanctioning forum shopping and thereby allowing a party to select a forum [322] [countenancing] a larger recovery than [that party's] own domicile" (id. [internal quotation marks omitted]).

    35

    We have routinely applied the Neumeier framework to conflicts in loss-allocation situations not involving guest statutes. For example, the issue in Schultz v Boy Scouts of Am. (65 NY2d 189 [1985]) was whether the doctrine of charitable immunity would apply in a lawsuit brought by plaintiffs domiciled in New Jersey. The plaintiffs were the parents of two boys, one of whom committed suicide. They sued the Boy Scouts of America and the Brothers of the Poor of St. Francis, Inc. for negligent hiring and supervision of a sexually abusive brother (also a defendant), who was supplied by the Franciscan Brothers, pursuant to an agreement with the Roman Catholic Archdiocese of Newark, as a teacher at a school owned and operated by the Archdiocese, and who was a scoutmaster of a Boy Scout troop sponsored by the school and chartered by the Boy Scouts. The plaintiffs' sons attended the class taught by the brother at the school, and were members of his scout troop.

    36

    Acts of sexual abuse were alleged to have taken place mostly during Boy Scout camping outings in New York, but also at the school in New Jersey.[4] The Boy Scouts were domiciled in New Jersey; the Franciscan Brothers in Ohio. At the time the plaintiffs' causes of action arose, New Jersey and Ohio both recognized charitable immunity while New York did not. The Ohio rule, however, denied immunity in actions based on negligent hiring and supervision.[5] And the plaintiffs' claims had already been determined to have been barred by the New Jersey doctrine of charitable immunity in an earlier action brought by the plaintiffs in New Jersey against the Archdiocese. We held that New Jersey law governed, and that the plaintiffs were precluded from relitigating its effect in light of the final determination in their action against the Archdiocese.

    37

    Under the first Neumeier rule, New Jersey law clearly controlled the plaintiffs' claim against the Boy Scouts because the plaintiffs and this defendant had "chosen to identify themselves in the most concrete form possible, domicile, with a jurisdiction that [had] weighed the interests of charitable tort-feasors and their victims and decided to retain the defense of charitable [323] immunity" (id. at 199-200). But because this was "the first case for our review [where] New York [was] the forum-locus rather than the parties' common domicile," we examined "the reasons most often advanced for applying the law of the forum-locus and those supporting application of the law of the common domicile" (id. at 200).

    38

    We identified those reasons "most often urged" to favor the forum-locus as "(1) to protect medical creditors who provided services to injured parties in the locus State, (2) to prevent injured tort victims from becoming public wards in the locus State and (3) the deterrent effect application of locus law [would have] on future tort-feasors in the locus State" (id. at 200). We opined that the first two reasons shared "common weaknesses," since neither "necessarily require[d] application of the locus jurisdiction's law, but rather invariably mandate[d] application of the law of the jurisdiction that would either allow recovery or allow . . . greater recovery" (id.). As a result, they were "subject to criticism . . . as being biased in favor of recovery" (id.). Further, we observed, neither consideration was relevant in Schultz since there was no evidence of unpaid medical creditors or that the plaintiffs were about to become wards of the state. As for the third reason, we acknowledged that although it was "conceivable that application of New York's law in this case would have some deterrent effect on future tortious conduct" in New York, our "deterrent interest [was] considerably less because none of the parties [was] a resident and the rule in conflict [was] loss-allocating rather than conduct-regulating" (id.).

    39

    On the other side of the ledger, we toted up "persuasive reasons for consistently applying the law of the parties' common domicile." These included (1) reduced opportunities for forum shopping; (2) rebuttal of "charges that the forum-locus is biased in favor of its own laws and in favor of rules permitting recovery"; (3) "the concepts of mutuality and reciprocity support consistent application of the common-domicile rule" since "[i]n any given case, one person could be either plaintiff or defendant and one State could be either the parties' common domicile or the locus, and yet the applicable law would not change depending on their status"; and (4) such a rule was "easy to apply and [brought] a modicum of predictability and certainty to an area of the law needing both" (id. at 201).

    40

    We then turned our attention to the plaintiffs' claim against the Franciscan Brothers. We evaluated choice of law with [324] respect to this defendant under the third Neumeier rule "because the parties [were] domiciled in different jurisdictions with conflicting loss-distribution rules and the locus of the tort [was] New York, a separate jurisdiction"; and the law of the place of the tort would "normally apply" (id.). We decided, however, that this situation fit the proviso to the third rule "[f]or the same reasons stated in our analysis of the action against" the Boy Scouts; namely, this result "would further [New Jersey's] interest in enforcing the decision of its domiciliaries to accept the burdens as well as the benefits of that State's loss-distribution tort rules and its interest in promoting the continuation and expansion of [the Franciscan Brothers'] charitable activities in that State" (id.). In addition,

    41
    "although application of New Jersey's law may not affirmatively advance the substantive law purposes of New York, it will not frustrate those interests because New York has no significant interest in applying its own law to this dispute. Finally, application of New Jersey law will enhance the smooth working of the multi-state system by actually reducing the incentive for forum shopping and it will provide certainty for the litigants whose only reasonable expectation surely would have been that the law of the jurisdiction where plaintiffs are domiciled and defendant sends its teachers would apply, not the law of New York where the parties had only isolated and infrequent contacts as a result of [the brother's] position as Boy Scout leader" (id. at 201-202).
    42

    Finally, we rejected the plaintiffs' argument that New York public policy foreclosed application of the New Jersey charitable immunity statute. We emphasized the difficulty of upsetting the choice of law in a conflicts situation on this basis; specifically, the proponent of a public policy bar would have to "establish that to enforce the foreign law `would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal' expressed in them" (id. at 202). Further, "the proponent must establish that there [were] enough important contacts between the parties, the occurrence and the New York forum to implicate our public policy and thus preclude enforcement of the foreign law" (id.). We concluded that we did not need to decide whether enforcement of New Jersey's charitable immunity statute offended [325] New York public policy "because there [were] not sufficient contacts between New York, the parties and the transactions involved to implicate our public policy and call for its enforcement" (id. at 203).

    43
    II.
    44

    The charter bus's driver (Ryan A. Comfort), his employer (Erie Coach Lines Company), and the company that leased the bus (Trentway-Wagar, Inc.) are Ontario domiciliaries, as are (or were) all the injured and deceased passengers. The tractor-trailer driver (Ernest Zeiset) was a Pennsylvania domiciliary, as are his employer (Joseph French, doing business as J&J; Trucking) and the companies that hired the trailer (Verdelli Farms, Inc. and V.F. Transportation, Inc.). The injured passengers and the representatives of those who died (collectively, plaintiffs) filed multiple wrongful death and personal injury lawsuits in Supreme Court.

    45

    These split-domicile lawsuits presented an obvious choice-of-law issue because Ontario caps noneconomic damages where negligence causes catastrophic personal injury,[6] while New York does not cap such damages in a no-fault case involving serious injury. Following extensive discovery, Erie Coach, Trentway[7] and Comfort (collectively, the bus defendants) and J&J; Trucking, the administratrix of Zeiset's estate, Verdelli Farms and V.F. Transportation (collectively, the trailer defendants) moved for orders from Supreme Court determining that, under New York's choice-of-law principles, Ontario law applied to "all loss allocation issues" in these cases.

    46

    On March 23, 2009, Supreme Court granted both motions, noting that the Supreme Court of Canada had capped noneconomic damages at CDN $100,000 in 1978 dollars, which was [326] then equivalent to US $310,000. In reaching its decisions, the court concluded that "[p]roper analysis" began with Neumeier. Citing the third Neumeier rule, the judge stated, without elaboration, that "[a]pplying Ontario loss allocation laws [would] not impair the smooth working of the multi-state system, and [would] advance the relevant substantive law purposes of the jurisdiction having the most significant connections to the allocation of loss"; and that Ontario "clearly [had] the predominant interest[] in applying its loss allocation laws to its citizens, whereas New York [had] no such interest." Further, Supreme Court discussed Schultz, which it regarded as analogous; it saw no reason to consider Pennsylvania law since none of the parties requested this.

    47

    The trial of these cases was bifurcated, and, during the course of the jury trial on liability, the parties reached a settlement of that issue. In the stipulation of settlement, placed on the record on June 17, 2009, the bus defendants agreed to 90% and the trailer defendants to 10% liability. Meanwhile, plaintiffs had appealed Supreme Court's orders determining that Ontario law would govern any award of noneconomic damages to be made at a damages trial. The Appellate Division affirmed (72 AD3d 1581, 1586, 1587, 1588, 1589 [4th Dept 2010]; 74 AD3d 1813, 1814 [4th Dept 2010]).

    48

    "As a preliminary matter," the Appellate Division decided that Supreme Court "did not abuse its discretion by taking judicial notice of Ontario law . . . despite the failure of defendants to raise [its] applicability . . . as an affirmative defense and to provide the substance of the law in their pleadings in accordance with CPLR 3016 (e)" (72 AD3d at 1583). The court subscribed to the Third Department's view, expressed in Burns v Young (239 AD2d 727, 728 [3d Dept 1997]), that "because CPLR 4511 (b) permits . . . judicial notice of the laws of foreign countries that are presented `prior to the presentation of any evidence at the trial,'" a court has discretion to apply the law of a foreign country notwithstanding "a party's failure to comply with the requirement in [CPLR] 3016 (e) that the substance of such laws shall be set forth in the pleading" (72 AD3d at 1583). Further, the court rejected plaintiffs' argument that the Ontario cap was procedural rather than substantive, citing Davenport v Webb (11 NY2d 392, 393 [1962]) for the "well established" proposition that "the measure of damages is substantive" (72 AD3d at 1583).

    49

    The Appellate Division agreed with Supreme Court's bottomline conclusion that the Ontario cap applied to damages [327] recovered from the bus and trailer defendants, but conducted separate choice-of-law analyses. With respect to the bus defendants, the court looked to the first Neumeier rule, which directs that the law of the parties' common domicile — here, Ontario — governs. The court observed that applying the law of a shared domicile reduced the risk of forum shopping; rebutted the charge of local bias; and served "`the concepts of mutuality and reciprocity,'" which are "`support[ed by the] consistent application of the common-domicile law'" (id. at 1584, quoting Schultz, 65 NY2d at 201).

    50

    As between plaintiffs and the trailer defendants, the Appellate Division applied the third Neumeier rule, which prefers the law of the place of the tort. Invoking the proviso to the third rule, the court decided, however, that Ontario law should govern, reasoning that "while applying Ontario law `[might] not affirmatively advance the substantive law purposes of New York, it [would] not frustrate those interests because New York has no significant interest in applying its own law to this dispute'" (72 AD3d at 1585, quoting Schultz, 65 NY2d at 201). The court also commented that New York law created great uncertainty for the litigants because the trailer defendants were only 10% liable for the accident pursuant to the parties' settlement. If the trailer defendants' exposure to noneconomic damages was unlimited while the bus defendants' liability for this item of damages was capped, the trailer defendants might end up paying far more than their stipulated share.

    51

    Finally, the Appellate Division concluded that plaintiffs failed to meet the "`heavy burden' of establishing that the application of Ontario law violate[d] the public policy of New York" (72 AD3d at 1585, quoting Schultz, 65 NY2d at 202). The court pointed out that "`resort to the public policy exception should be reserved for those foreign laws that are truly obnoxious'" (id., quoting Cooney, 81 NY2d at 79), which was not the case here. In any event, the Appellate Division decided that the parties' contacts were too few and limited in scope to implicate New York's public policy (72 AD3d at 1585, citing Schultz, 65 NY2d at 201-202).

    52

    The Appellate Division granted plaintiffs permission to appeal, and asked us whether its orders were properly made (2010 NY Slip Op 76969[U] [4th Dept 2010]). For the reasons that follow, we answer "No" with respect to the trailer defendants.

    53
    [328] III.
    54

    On this appeal, plaintiffs again contend that the lower courts were foreclosed from engaging in choice-of-law analysis because defendants did not raise the Ontario cap in their answers. In our view, defendants' motions were properly entertained. As the Appellate Division mentioned, CPLR 4511 (b) vests Supreme Court with discretion to take judicial notice of foreign law prior to the presentation of evidence at trial. This provision states that the court shall take judicial notice of specified matters (which include the laws of foreign countries or their political subdivisions) if a party so requests; furnishes the court sufficient data to enable it to take judicial notice; and advises adverse parties of its intent to ask the court to take judicial notice. This third requirement — notice to adverse parties — must be "given in the pleadings or prior to the presentation of any evidence at the trial, but a court may require or permit other notice" (CPLR 4511 [b] [emphasis added]). Defendants complied with these three conditions when they made their pretrial motions.

    55

    Plaintiffs rely on CPLR 3016 (e), however, which provides that "[w]here a cause of action or defense is based upon the law of a foreign country or its political subdivision, the substance of the foreign law relied upon shall be stated" (emphasis added). But CPLR 3016 (e) must be read together with CPLR 4511 (b). As a result, while "[o]bedience to [CPLR 3016 (e)'s] pleading requirement . . . would seem ipso facto to satisfy the trio of requirements necessary to compel judicial notice" under CPLR 4511 (b), "omission to plead the foreign law . . . need prove no more fatal, or serious, than any other omission under CPLR 3015 or 3016," and "the fact that the court can on its own volunteer to give the foreign law judicial notice under CPLR 4511 (b) should further divest CPLR 3016 (e) of any undue rigidity" (see Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3016:8 [emphasis added]). Further, we do not detect the complained-of unfairness or prejudice. A split-domicile lawsuit, such as this one, always presents a choice-of-law dilemma where loss-allocation rules conflict. This issue may have lain dormant during discovery, but there was no reason for plaintiffs to assume that it had vanished.[8]

    56

    [329] Next, plaintiffs press for what they call a "single, joint Neumeier analysis" in cases, such as this one, with multiple tortfeasors. As a result, the Edwards plaintiffs argue, the trial judge "properly analyzed both sets of Defendants — those related to the bus and those related to the tractor trailer — together," although he reached the wrong conclusion. In our view, however, the correct way to conduct a choice-of-law analysis is to consider each plaintiff vis-à-vis each defendant, which is essentially the approach taken by the Appellate Division. More to the point, this is the path we ourselves have already traveled: in Schultz, the plaintiffs likewise demanded judgment, jointly and severally, against multiple defendants, and we applied the Neumeier rules separately in relation to the New Jersey-domiciled Boy Scouts and the Ohio-domiciled Franciscan Brothers.[9] The rules in the Neumeier framework, in fact, by their very nature call for a plaintiff-by-defendant inquiry.[10]

    57

    Here, the Ontario cap controls any award of noneconomic damages against the bus defendants because they share an Ontario domicile with plaintiffs. We described the relevant choice-of-law principle and its rationale in Cooney:

    58
    "Under the first Neumeier rule, when [the plaintiff and the defendant] share a common domicile, that law should control. Indeed, when both parties are from the same jurisdiction, there is often little reason to apply another jurisdiction's loss allocation [330] rules. The domiciliary jurisdiction, which has weighed the competing considerations underlying the loss allocation rule at issue, has the greater `interest in enforcing the decisions of both parties to accept both the benefits and the burdens of identifying with that jurisdiction and to submit themselves to its authority' . . . Moreover, this rule reduces opportunities for forum shopping because the same law will apply whether the suit is brought in the locus jurisdiction or in the common domicile, the two most likely forums" (81 NY2d at 73, quoting Schultz, 65 NY2d at 198).
    59

    We had earlier made the same point at least as forcefully in Schultz, where we stressed that "the locus jurisdiction has at best a minimal interest in determining the right of recovery or the extent of the remedy in an action by a foreign domiciliary for injuries resulting from the conduct of a codomiciliary that was tortious under the laws of both jurisdictions" (65 NY2d at 198 [emphasis added]). We cited substantial precedent — Tooker v Lopez (24 NY2d 569, 576 [1969]), Miller (22 NY2d at 18-19) and Babcock (12 NY2d at 482) — to support this proposition.

    60

    In sum, Ontario has weighed the interests of tortfeasors and their victims in cases of catastrophic personal injury, and has elected to safeguard its domiciliaries from large awards for nonpecuniary damages. In lawsuits brought in New York by Ontario-domiciled plaintiffs against Ontario-domiciled defendants, New York courts should respect Ontario's decision, which differs from but certainly does not offend New York's public policy (see Schultz, 65 NY2d at 202 [emphasizing the "heavy burden" borne by a party seeking to show that a foreign law contravenes New York public policy]).

    61

    Finally, we look to the third Neumeier rule to decide whether the Ontario cap controls with respect to the trailer defendants. Critically, the third rule establishes the place of the tort — here, New York — as the "normally applicable" choice in a conflicts situation such as this one, where the domicile of plaintiffs, the domicile of the trailer defendants and the place of the tort are different. Initially, the fact that the trailer defendants declined to advocate for Pennsylvania law does not permit them to take advantage of the Ontario cap. To rule otherwise would only encourage a kind of forum shopping. Moreover, the stipulation of settlement on liability is not relevant to "interest analysis," which seeks to recognize and respect the policy [331] interests of a jurisdiction in the resolution of the particular issue where a conflict of law exists.

    62

    The trailer defendants contend that Schultz controls, meaning that their situation is comparable to that of the Franciscan Brothers, and so the law of New York should not govern, even though the accident occurred there. We do not agree. While New York employs "interest analysis" rather than "grouping of contacts," the number and intensity of contacts is relevant when considering whether to deviate from lex loci delicti under the third Neumeier rule — i.e., whether even to analyze if displacing this "normally applicable" choice would "advance the relevant substantive law purposes without impairing the smooth working of the multi-state system or producing great uncertainty for litigants" (Neumeier, 31 NY2d at 128).

    63

    In Schultz, New Jersey was the state where the Franciscan Brothers supplied teachers for a New Jersey school, where some of the acts of sexual abuse allegedly took place, where one of the boys committed suicide, where the two boys allegedly suffered from and were treated for psychological injuries, where the Franciscan Brothers were said to have hired and failed to fire the brother. Under these circumstances, there was every reason to evaluate, under the proviso to the third Neumeier rule, whether New Jersey law should displace New York law with respect to the negligent hiring and supervision claim asserted against the Franciscan Brothers in the plaintiffs' lawsuit. Here, by contrast, there was no cause to contemplate a jurisdiction other than New York, the place where the conduct causing injuries and the injuries themselves occurred. The trailer defendants did not ask Supreme Court to consider the law of their domicile, Pennsylvania, and they had no contacts whatsoever with Ontario other than the happenstance that plaintiffs and the bus defendants were domiciled there.

    64

    Accordingly, the orders in these cases should be modified, without costs, in accordance with this opinion and as so modified, affirmed, and the certified questions answered in the negative.

    65
    CIPARICK, J. (dissenting in part).
    66

    Because I believe that a single analysis pursuant to Neumeier v Kuehner (31 NY2d 121 [1972]) should be applied where nondomiciliary defendants are jointly and severally liable to nondomiciliary plaintiffs in a tort action arising out of a single incident within the State of New York, and that under such an analysis New York law should [332] apply to all defendants for purposes of uniformity and predictability, I respectfully dissent.

    67

    Neumeier sets forth a three-rule framework for determining what law should govern when there is a conflict between the laws of the domiciles of the parties or the state in which the tort occurred.[11] The first Neumeier rule provides that when the plaintiff and the defendant are domiciled in the same state, the law of that state shall govern (see 31 NY2d at 128).

    68

    The second rule "addresses true conflicts, where the parties are domiciled in different States and the local law favors the respective domiciliary" (Cooney, 81 NY2d at 73 [internal quotation marks omitted]). This rule is not applicable to this case.

    69

    The third rule provides that when plaintiff and defendant are differently domiciled, the law of the location of the tort shall usually apply unless "it can be shown that displacing the normally applicable rule will advance the substantive law purposes without impairing the smooth working of the multi-state system or producing great uncertainty for litigants" (Neumeier, 31 NY2d at 128).

    70

    In this matter, all plaintiffs and the bus defendants are domiciliaries of Ontario whereas the tractor-trailer defendants are domiciled in Pennsylvania. The majority opines that each defendant should be analyzed separately under the Neumeier rules relying on Schultz v Boy Scouts of Am. (65 NY2d 189 [1985]) (see majority op at 329). In applying a separate Neumeier analysis to each defendant, the majority determines that Ontario law should apply to the bus defendants, while New York law should apply to the tractor-trailer defendants. I disagree.

    71

    While the facts in Schultz lent themselves to a separate analysis for each defendant, the facts in this case do not justify such an analysis. The plaintiffs in Schultz alleged that the two defendants, the Boy Scouts of America and the Brothers of the Poor of St. Francis, had each negligently hired and supervised the same sexually abusive employee. The alleged sexual abuse occurred while the plaintiffs' sons were at a Boy Scout camp in New York and continued at a school in New Jersey. The tortious activities in Schultz took place over varied periods of time and in different locations. Moreover, there was no relationship between the defendants' actions other than the fact that they [333] employed the same alleged bad actor. Because the torts were distinct acts occurring at different times, it was appropriate for us to perform a separate choice-of-law analysis.

    72

    In contrast, in the instant case, the causes of action arise from a single incident in New York — the collision of the bus into the parked tractor-trailer — and the liability of the defendants is interrelated (see King v Car Rentals, Inc., 29 AD3d 205, 213 [2d Dept 2006] ["(b)ecause the liability of all of the defendants here is thus interrelated, the application of the laws of different jurisdictions to the several defendants may lead to unanticipated complications as potentially inconsistent law is applied"]).

    73

    Furthermore, a separate Neumeier analysis for differently domiciled defendants creates additional unpredictability and lack of uniformity in litigation that arises from a single incident. The purpose of the Neumeier rules is to "assure a greater degree of predictability and uniformity, on the basis of our present knowledge and experience" (31 NY2d at 127). Applying a single Neumeier analysis to jointly and severally liable defendants and having them subject to the same laws would further the goals of predictability and uniformity. In fact, this case illustrates the potential for grossly inequitable results when different laws are applied to defendants who are jointly and severally liable. Here, during a jury trial on liability, defendants entered into a stipulation whereby they agreed that they are 100% jointly and severally liable to plaintiffs and further agreed to apportion such liability between themselves at 90% to the bus defendants and the remaining 10% to the tractor-trailer defendants. The majority allows for a situation whereby the tractor-trailer defendants may end up paying more than the bus defendants because of the cap applied on noneconomic tort awards by Ontario — a patently absurd result. Therefore, to further the goal of predictability and uniformity, this matter should be analyzed under a single Neumeier analysis.

    74

    In analyzing this matter under a single Neumeier analysis, it is clear that, because plaintiffs and defendants are differently domiciled, the law of the site of the tort — here New York — should apply as set forth in the third Neumeier rule (see 31 NY2d at 128).[12] Moreover, the exception to the third Neumeier rule does not apply to these facts.

    75

    [334] Indeed, applying New York law here will not "impair . . . the smooth working of the multi-state system and produce great uncertainty for litigants by sanctioning forum shopping" (31 NY2d at 129 [internal quotation marks and brackets omitted]). New York was the site of the accident and the only state in which jurisdiction over all defendants could be acquired. New York is a proper location for this action and there is no indication that the cases were brought here on account of its favorable loss-allocation rules.

    76

    In addition, the exception to the third Neumeier rule should only apply when a state other than the forum-locus state has a "greate[r] interest in the litigation" (see Schultz, 65 NY2d at 197, quoting Miller v Miller, 22 NY2d 12, 15 [1968]; see also Cooney, 81 NY2d at 72). Here, it is uncontroverted that both defendants are commercial enterprises that perform significant business in the State of New York and more significantly are frequent users of New York's highways in pursuit of their business. New York has a strong interest in the conduct of business enterprises on its highways and in properly compensating the victims of torts, whether New York or foreign domiciliaries, committed by business enterprises on its highways (see Sullivan v McNicholas Transfer Co., 224 AD2d 966, 967 [4th Dept 1996] [applying Ohio law to an accident in Ohio because "Ohio has a substantial interest in regulating conduct on its highways and in ensuring that those who use its highway(s) will compensate those whom they have injured"]).

    77

    Thus, in determining which forum has the greatest interest in this litigation, it is clear that it is New York. Not only does New York have a strong interest in regulating the conduct of commercial vehicles on its highways, it also has an even stronger interest in having commercial vehicles that use its highways maintain insurance to compensate victims of torts committed by said vehicles. In contrast, Ontario's primary interest in having its law applied and capping nonpecuniary losses is to keep motor vehicle insurance costs low (see Arnold v Teno, [1978] 2 SCR 287 ¶ 109). That interest, however, need not extend to commercial vehicles operating outside of Ontario and subject to the loss-allocation laws of those states.

    78

    Finally, because New York is "the only State with which [all] parties have purposefully associated themselves" (Cooney, 81 NY2d at 74) and availed themselves of New York highways for profit and tourism, applying New York law is entirely appropriate in this matter.

    79

    [335] Accordingly, I would reverse the order of the Appellate Division.

    80

    In each case: Orders modified, etc.

    81

    [1] Loss-allocation rules "prohibit, assign, or limit liability after the tort occurs," whereas conduct-regulating rules "have the prophylactic effect of governing conduct to prevent injuries from occurring" in the first place (Padula v Lilarn Props. Corp., 84 NY2d 519, 522 [1994] [emphasis added]).

    82

    [2] This statute provided that "the owner or driver of a motor vehicle, other than a vehicle operated in the business of carrying passengers for compensation, is not liable for any loss or damage resulting from bodily injury to, or the death of any person being carried in . . . the motor vehicle" (see Highway Traffic Act of Province of Ontario [Ontario Rev Stat (1960) ch 172], § 105 [2], quoted in Babcock, 12 NY2d at 477).

    83

    [3] When we handed down Neumeier, the Ontario guest statute provided that the owner or driver of a motor vehicle was not liable for damages for the injury or death of a guest-passenger in the absence of gross negligence (see Highway Traffic Act of Province of Ontario [Ont Rev Stat (1960) ch 172], § 105 [2], as amended by Ont Stat 1966, ch 64, § 20 [2], discussed in Neumeier, 31 NY2d at 124). We noted in Neumeier that although in Babcock we considered that the statute's sole purpose was to protect Ontario defendants and their insurers from collusive lawsuits, "[f]urther research . . . revealed the distinct possibility that one purpose, and perhaps the only purpose [of the statute], was to protect owners and drivers against suits by ungrateful guests" (31 NY2d at 124 [citations and internal quotation marks omitted]).

    84

    [4] We observed that "both parties and the dissent implicitly assume[d]" that "the locus of the tort . . . [was] New York because most of [the brother's] acts were committed [there]" (Schultz, 65 NY2d at 195).

    85

    [5] We speculated that it was for this reason that the Franciscan Brothers never claimed that Ohio law governed (Schultz, 65 NY2d at 195).

    86

    [6] The clearest statement of Canada's rule appears in Andrews v Grand & Toy Alberta, Ltd. ([1978] 2 SCR 229 ¶ 98; see also Thornton v Prince George School Dist. No. 57, [1978] 2 SCR 267 ¶ 38; Arnold v Teno, [1978] 2 SCR 287 ¶¶ 108-109). The cap apparently applies only to "catastrophic personal injury cases" arising from negligence and medical malpractice (see Young v Bella, [2006] 1 SCR 108 ¶¶ 62-66 [Supreme Court of Canada rejected a nonpecuniary cap for defamation damages (¶ 65); stated that cases other than catastrophic personal injury cases do not raise the same policy considerations (id.); and left open the question whether policy considerations might warrant a cap in other circumstances (¶ 66)]).

    87

    [7] Parent companies originally listed as defendants (Coach Canada, Inc., Stagecoach Group, PLC and Coach USA, Inc.) successfully moved for dismissal.

    88

    [8] With respect to another preliminary matter raised by the Roach plaintiffs — whether the Ontario cap is "procedural" or "substantive" — we conclude that, however the cap may be characterized, it is a loss-allocation rule subject to "interest analysis" under New York's choice-of-law principles.

    89

    [9] The dissent seeks to distinguish Schultz from this case on the ground that the torts alleged in the former "were distinct acts occurring at different times" while here "the causes of action arise from a single incident" (dissenting op at 333). But regardless of the factual dissimilarities between the two cases, the defendants in Schultz were — just like defendants in this case — subject to joint and several liability for their separate allegedly tortious acts.

    90

    [10] The dissent opines that "[a]pplying a single Neumeier analysis to jointly and severally liable defendants and having them subject to the same laws would further the goals of predictability and uniformity" (dissenting op at 333). Making multiple defendants ultimately subject to the same loss-allocation rules might make management of a case simpler for the courts and the parties. A "single . . . analysis," however, would not guarantee "predictability and uniformity." For one thing, under this approach the choice of law for loss allocation in a multi-state, multi-tortfeasor case would depend on which potential defendants a plaintiff chose to sue. The fact is, when we departed from lex loci delicti in Babcock, we knowingly sacrificed a degree of certainty so as to honor our sister states' interests in enforcing their own loss-allocation rules with respect to their own domiciliaries (see Babcock, 12 NY2d at 478; Cooney, 81 NY2d at 72).

    91

    [11] While the Neumeier rules specifically referred to guest statutes, the rules have been expanded to cover other loss-allocation conflicts (see Cooney v Osgood Mach., 81 NY2d 66, 73 [1993]).

    92

    [12] While the enumerated Neumeier rules describe situations with one plaintiff and one defendant, I see no reason why the rule should not be applied to situations, such as here, where there are multiple jointly and severally liable defendants (see Restatement [Second] of Conflict of Laws § 172).

  • 3 Cipolla et al. v. Shaposka

    1
    439 Pa. 563 (1970)
    2
    Cipolla et al., Appellants,
    v.
    Shaposka.
    3

    Supreme Court of Pennsylvania.

    4
    Argued January 16, 1970.
    5
    July 2, 1970.
    6

    Before BELL, C.J., JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.

    7

    [564] Charles E. Keeler, for appellants.

    8

    Harry J. Bradley, for appellee.

    9
    OPINION BY MR. JUSTICE COHEN, July 2, 1970:
    10

    This is an appeal from a judgment entered against Michael Cipolla and his parents and natural guardians, appellants, in accordance with Pa. R.C.P. 1035. The record indicates that Michael Cipolla and John Shaposka, Jr., appellee, are former schoolmates at the Brown Technical School in Wilmington, Delaware. On January 24, 1966, after classes had ended for the day, appellee was driving Michael to appellants' home in Pennsylvania when the automobile in which they were riding became involved in a collision in Delaware in which Michael was injured. Shaposka is a Delaware resident as is his father in whose name the car was registered in Delaware.

    11

    The sole question involved in this appeal is whether the legal effect of the guest-host relationship should be determined by Delaware or Pennsylvania law. If Delaware law applies, appellants will be barred from recovering since Delaware's Guest Statute, Del. Code Ann. tit. 21, § 6101 (a), prohibits a guest from recovering for his host's negligence. The statute does permit recovery for intentional or wilful or wanton misconduct, but appellants argue only that appellee was guilty of ordinary negligence. Pennsylvania has no guest statute, [565] and if its law applies, appellants will be able to recover if they can prove appellee was negligent The court below concluded that Delaware law applied and granted appellee's motion for summary judgment.

    12

    Under our decisions in Kuchinic v. McCrory, 422 Pa. 620, 222 A. 2d 897 (1966), McSwain v. McSwain, 420 Pa. 86, 215 A. 2d 677 (1966), and Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A. 2d 796 (1964), we must determine whether Delaware or Pennsylvania has the greater interest in the application of its law to the question now before us. At the outset it might be noted that this case is much more difficult than either Kuchinic or McSwain for both of those cases presented a false conflict; that is, an analysis of the policies behind the competing laws indicated that in each case the application of one state's law (in Kuchinic, Georgia; in McSwain, Colorado) would not further those policies, Cavers, The Choice-of-Law Process, 29-30 (1965); Kuchinic, supra at 624 n.4. The fact that Cipolla is a resident of Pennsylvania which has adopted a plaintiff-protecting rule and Shaposka is a resident of Delaware which has adopted a defendant-protecting rule takes this case out of that category and requires us to undertake a deeper analysis than was necessary in those cases.[1]

    13

    [566] In determining which state has the greater interest in the application of its law, one method is to see what contacts each state has with the accident, the contacts being relevant only if they relate to the "policies and interests underlying the particular issue before the court." Griffith, supra at 21. When doing this it must be remembered that a mere counting of contacts is not what is involved. The weight of a particular state's contacts must be measured on a qualitative rather than quantitative scale. Tooker v. Lopez, 24 N.Y. 2d 569, 576, 301 N.Y.S. 2d 519, 524 (1969).

    14

    As it is Pennsylvania's policy that its guests should be permitted to recover for injuries caused by their hosts' negligence and as appellants are Pennsylvania residents, Pennsylvania is a concerned jurisdiction and has a contact relevant to the issue before us. This is the only relevant contact with Pennsylvania, however. As it is Delaware's policy that its hosts should not be required to compensate their guests for their (the hosts') negligence and as appellee is a Delaware resident, Delaware is a concerned jurisdiction and has a contact relevant to the issue before us. The fact that the automobile involved in the accident is registered and housed in Delaware gives that state another contact for it appears that insurance rates will depend on the state in which the automobile is housed rather than the domicile of the owner or driver. Morris, Enterprise Liability and the Actuarial Process — The Insignificance of Foresight, 70 Yale L.J. 554, 574 (1961). Thus, it appears that Delaware's contacts are qualitatively greater than Pennsylvania's and that it has the greater interest in having its law applied to the issue before us.[2]

    15

    [567] Also, it seems only fair to permit a defendant to rely on his home state's law when he is acting within that state.[3]

    16

    "Consider the response that would be accorded a proposal that was the opposite of this principle if it were advanced against a person living in the state of injury on behalf of a person coming there from a state having a higher standard of care or of financial protection. The proposal thus advanced would require the community the visitor entered to step up its standard of behavior for his greater safety or lift its financial protection to the level to which he was accustomed. Such a proposal would be rejected as unfair. By entering the state or nation, the visitor has exposed himself to the risk of the territory and should not subject persons living there to a financial hazard that their law had not created." Cavers, supra at 146-7.

    17

    Inhabitants of a state should not be put in jeopardy of liability exceeding that created by their state's law just because a visitor from a state offering higher protection decides to visit there. This is, of course, a highly territorial approach, but "departures from the territorial view of torts ought not to be lightly undertaken." Gordon v. Parker, 83 F. Supp. 40, 42 (D. Mass. 1949). "To withdraw . . . actions and affairs from the reach of domestic law because the persons (or at least one of the persons) participating in them are not domestic to the state causes a wrench away from customary attitudes toward law that may lead the disadvantaged party to `regard the distinction as involving a personal discrimination against him rather than as a step toward comity between states.'" Cavers, supra at 135. The very use of the term true conflict implies that there is no one correct answer, but as a general approach a territorial view seems preferable to a personal view.

    18

    [568] These approaches to the solution of this true conflict lead to the conclusion that Delaware has a greater interest in the application of its law than does Pennsylvania.

    19

    Judgment affirmed.

    20
    CONCURRING OPINION BY MR. CHIEF JUSTICE BELL:
    21

    I believe the issues in this case should be determined and decided by lex loci delicti — see my dissenting Opinion in Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A. 2d 796. However, if this test be not applied, it is clear that the Majority Opinion is correct when it affirms the judgment, because Delaware's contacts were more important and both qualitatively and quantitatively greater than Pennsylvania's.

    22
    DISSENTING OPINION BY MR. JUSTICE ROBERTS:
    23

    I agree with the majority that the instant case presents us with a true conflict. I cannot agree, however, that the conflict is properly resolved by the application of Delaware law, and hence I must respectfully dissent.

    24

    To reach its result the majority advances two separate theories: (1) "Delaware's contacts are qualitatively greater than Pennsylvania's and . . . it has the greater interest in having its law applied." (2) A "territorial view" of torts is desirable and "it seems only fair to permit a defendant to rely on his home state's law when he is acting within that state." I will discuss the two theories in turn.

    25

    The first theory is an attempt to apply the law as set forth in Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A. 2d 796 (1964), to the facts of this case. In Griffith we stated that conflicts of law would thereafter be resolved by applying the law of the predominantly concerned jurisdiction, with the strength of jurisdictional concern being measured by the relevant contacts each jurisdiction had with the underlying transaction. [569] As the majority correctly notes, however, a "contact" is relevant only if it relates to the "policies and interests underlying the particular issue before the court." Griffith, 416 Pa. at 21, 203 A. 2d at 805.

    26

    My disagreement with the majority comes in the majority's assertion that there is more than one policy underlying the issue before the court, the Delaware guest statute. Naturally, it is always difficult to read the legislative mind, and courts have discovered a host of reasons for guest statutes. It has been suggested, for example, that guests statutes were designed to prevent collusive suits between guest and host;[4] and that they were intended to grant injured parties in other cars priority over the "ungrateful guest" in the assets of the negligent driver.[5] The majority suggests that guest statutes are designed to lower insurance rates, and that the place where the automobile is housed is therefore a relevant contact, because this is how insurance rates are determined.[6]

    27

    I do not believe, however, that Delaware passed its guest statute for the purpose of lowering the insurance rates of those who house their automobiles in Delaware. I reach this conclusion for several reasons. For one, [570] even assuming that the barring of guest-host suits does result in lower costs to insurance companies, it is far from clear whether the benefits would inure to Delaware residents[7] or merely aid insurance companies doing business in Delaware.[8] Further, even if the savings were passed on to the consumer, the impact of this savings on insurance rates appears to me to be highly speculative. Professor Morris, in the article relied on by the majority, indicates that such guest claims are likely to have only a slight impact on insurance rates, particularly for a state which will not apply its guest statute in accidents which occur in common law jurisdictions.[9] See Morris, "Enterprise Liability and the Actuarial Process — The Insignificance of Foresight," 70 Yale L.J. 554, 575-76 (1961).

    28

    Of course, a statute could be passed for a particular purpose, even though it is poorly designed to effectuate that purpose. But I do not believe that is the case here, for neither the Legislature nor the courts of Delaware have ever mentioned low insurance rates as the purpose of the guest statute. In fact, the sole purpose of the Delaware guest statute, as set forth by its courts, "is to protect one who generously, without accruing benefit, has transported another in his motor vehicle. Engle v. Poland, 8 Terry 365, 91 A. 2d 326 (1952); Colombo v. Sech, 2 Storey 575, 163 A. 2d 270 (1960)." [571] Fields v. Synthetic Ropes, Inc., 219 A. 2d 374, 376 (Del. Superior Ct. 1966).

    29

    That Delaware construes its guest statute with only the "generous host" purpose in mind can be seen in Mumford v. Robinson, 231 A. 2d 477 (Del. 1967). There the guest and host, both Delaware residents, were close personal friends who were on their way to a fabric shop when the accident occurred. The guest, however, had promised to give the host a sewing lesson upon their return from the shop. The Court noted that "[n]o financial consideration was promised or expected; Mrs. Parsons [the guest] was simply doing her friend a favor." 231 A. 2d at 479. Nevertheless, the Court held that the sewing lesson constituted a "sufficiently tangible" benefit to the host to meet the demands of the statute. The guest was therefore allowed to recover — and no mention is made of the effect such recovery might have on Delaware insurance rates.

    30

    Since I do not believe that the Delaware guest statute was designed to lower insurance rates, I cannot agree that the domicile of the automobile is a relevant contact. Hence I cannot agree that, under Griffith, we must apply Delaware law because its contacts are "qualitatively greater" than Pennsylvania's.

    31

    The second theory is based on the view that it is "only fair to permit a defendant to rely on his home state's law when he is acting within that state". I believe that this emphasis on the "territorial view of torts" is misplaced. As the majority notes, the guest statute is not conduct regulating, so the defendant was not in any sense relying on Delaware law when he was driving. Nor do I believe that the defendant's father was relying on Delaware law when he paid his premiums. It seems doubtful to me that the insured ever took into account the possibility that a Pennsylvania guest could not recover against him for a Delaware [572] accident,[10] but could for one in Pennsylvania or New Jersey.[11] And if the majority means that the insurance company, here Allstate, relied on not being held liable when setting its rates, I agree with Professor Morris that "[t]he theory . . . is tautological. The rules of liability are to be dictated by insurance practices which are, in turn, dictated by the rules of liability. All that can be concluded from such a premise is that whatever is, should be." Morris, "Enterprise Liability and the Actuarial Process — The Insignificance of Foresight," 70 Yale L.J. 554, 581-82 (1961) (footnote omitted).

    32

    As I have indicated, only the first theory advanced by the majority is consistent with Pennsylvania law. While I do disagree with the assertion that the place where the automobile is housed is a relevant contact, I quite agree with the majority's statement that the instant case presents a true conflict. Further, I believe that we are presented with a case where, on the basis of contacts, there is no predominantly concerned jurisdiction. Delaware seeks to protect the "generous host" from liability; Pennsylvania is concerned to see that a guest injured by his host's negligence is compensated for his injuries. In my view, each State has but one relevant contact with respect to host-guest liability — [573] the domicile of the party who will benefit from their respective State's policy.

    33

    With the interests of both States evenly balanced, I believe that the appropriate method of resolving the conflict is to choose what has been termed "the better rule of law".[12] This approach has been adopted, in varying forms, by several other jurisdictions. See, e.g., Clark v. Clark, 107 N.H. 351, 222 A. 2d 205 (1966); Heath v. Zellmer, 35 Wis. 2d 578, 151 N.W. 2d 664 (1967); cf. Schneider v. Nichols, 280 Minn. 139, 158 N.W. 2d 254 (1968). It is an approach consistent with our desire for a choice of law which will result in "`justice, fairness and "the best practical result"'". Griffith v. United Air Lines, Inc., 416 Pa. at 20, 203 A. 2d at 805 (quoting Judge Fuld in Babcock v. Jackson, 12 N.Y. 2d 473, 481, 240 N.Y.S. 2d 743, 749, 191 N.E. 2d 279, 283 (1963)). But it is not intended as a disguise for a parochial choice of law. Mr. Chief Justice KENNISON, speaking for the New Hampshire Court, has stated:

    34

    "We prefer to apply to the better rule of law in conflicts cases just as is done in nonconflicts cases, when the choice is open to us. If the law of some other state is outmoded, an unrepealed remnant of a bygone age,. . . we will try to see our way clear to apply our own law instead. If it is our own law that is obsolete or senseless (and it could be) we will try to apply the other state's law." Clark v. Clark, 107 N.H. 351, 355, 222 A. 2d 205, 209 (1966).

    35

    In choosing the "better rule of law" I would examine the policies behind both rules to see which currently [574] represents "the sounder view of the law".[13] I would also refer to the decisions of other states, particularly when they make clear that the policy of one of the concerned jurisdictions is either "regressing" or "emerging". See A. Von Mehren & D. Troutman, The Law of Multistate Problems 377, 394 (1965). In this way the strength of the policies behind the differing rules of law can be assessed, and the rule with the "stronger policy" today can be chosen. See id. at 377; cf. Milliken v. Pratt, 125 Mass. 374 (1878) (concerning capacity of married women to make contracts).

    36

    To demonstrate which is the better rule of law in the instant case, I will examine the conflicts cases in the area of host-guest liability, the constructions which guest statute jurisdictions — including Delaware — give their statutes, and the views of courts and scholars on the policy underlying guest statutes. From this examination it will be seen that guest statutes such as Delaware's clearly represent "regressing" policies and that the common law rule represents the better rule of law.

    37

    In conflicts decisions involving guest statutes I have been unable to find a single case in the jurisdictions which have abandoned lex loci in which the guest statute, rather than the common law, has been chosen. The common law rule has been chosen where all the parties were from the common law state, but the accident occurred in the guest statute state: e.g., Kennedy v. Dixon, 439 S.W. 2d 173 (Mo. 1969); Wessling v. Paris, 417 S.W. 2d 259 (Ky. 1967); Clark v. Clark, supra; Kuchinic v. McCrory, supra; Wilcox v. Wilcox, 26 Wis. 2d 617, 133 N.W. 2d 408 (1965); Babcock v. [575] Jackson, supra; where the guests and hosts were from a guest statute state, and the driver of a second car, from the common law state, had interpleaded the host: Heath v. Zelmer, 35 Wis. 2d 578, 151 N.W. 2d 664 (1967); where the plaintiff-guest was from a common law jurisdiction, the defendant-host from a guest statute jurisdiction, and the accident occurred in the guest statute state: Schneider v. Nichols, 280 Minn. 139, 158 N.W. 2d 254 (1968) (the court noting that it could find no other decision exactly in point factually); and where the host, guest, and car were from a guest statute jurisdiction, but were suing in a common law jurisdiction for an accident which occurred there: Conklin v. Horner, 38 Wis. 2d 468, 157 N.W. 2d 579 (1968); Kell v. Henderson, 47 Misc. 2d 992, 263 N.Y.S. 2d 647 (Sup. Ct. 1965), aff'd mem., 26 App.Div. 2d 595, 270 N.Y.S. 2d 552 (3d Dep't 1966).

    38

    Even in states which have guest statutes on the books, "[s]uch statutes are in general less rigorously applied today than when they were first enacted, and are subjected to increasing criticism". Leflar, "Choice-Influencing Considerations in Conflicts Law," 41 N.Y. U.L. Rev. 267, 278 n.49 (1966). For example, in Prager v. Isreal, 15 Cal. 2d 89, 98 P. 2d 729 (1940), the court held that a plaintiff who was injured with one foot on the running board and one in the car was not barred by the guest statute, because she was not being "transported". On the same theory the Kansas Supreme Court in Chapman v. Parker, 203 Kan. 440, 454 P. 2d 506 (1969), allowed recovery to a guest who was injured entering a car, distinguishing it from a past decision denying recovery to a guest leaving the car. See also Economou v. Anderson, 4 Ohio App. 2d 1, 211 N.E. 2d 82 (1965) (host slammed door on guest's foot; held: plaintiff not being "transported" and therefore may recover). And in O'Donnell v. Mullaney, 66 Cal. 2d 994, 59 Cal. Rptr. 840, 429 P. 2d 160 (1967), the [576] California Supreme Court seized on the words "vehicle upon a highway" to hold that a guest injured on a private roadway may recover for the negligence of his host. The Court also pointed out: "[T]he relationship between the driver and occupant of a motor vehicle may fluctuate during the course of a single trip, as circumstances bring them within or without the statute". 66 Cal. 2d at 998, 59 Cal. Rptr. at 842. See also Rowe v. United States Fidelity & Guaranty Co., 375 F. 2d 215 (4th Cir. 1967) (close questions as to whether plaintiff is guest or passenger should be resolved in favor of passenger, since guest statutes should be strictly construed).

    39

    In fact, Delaware itself construes its statute quite narrowly. See e.g., Mumford v. Robinson, 231 A. 2d 477 (Del. 1967) (discussed supra). Nor will Delaware apply its guest statute to an accident which occurs in a common law jurisdiction. In Friday v. Smoot, 211 A. 2d 594 (Del. 1965), Delaware applied New Jersey law allowing recovery for a host's negligence in an accident which occurred in New Jersey, but involved a Delaware guest and host. Although the rationale for this choice of law was the Court's refusal to abandon the rule of lex loci, the result of the decision is that Delaware itself limits the scope of its policy and the protection it will give to its resident-hosts. Clearly, if the accident involved in the instant case occurred at the end of the trip in Pennsylvania, rather than in the middle of the trip in Delaware, Delaware itself would apply Pennsylvania law and allow plaintiff to recover for the negligence of his host.

    40

    Not only do the results of the above cases show that guest statutes represent a regressing policy, weakened by numerous artificial exceptions, but the comments of courts and scholars on the matter well demonstrate that guest statutes do not represent the "better rule of law". Professor Pedrick has written:

    41

    [577] "At an early stage in automobile litigation and at a time when automobile insurance companies were concerned with limiting their function as far as possible a strange alliance between insurers and farm groups secured passage in a large number of states of the `automobile guest statutes'. These statutes resulting from hitchhiker suits against uninsured or underinsured drivers and intra-family suits against insured defendants were aimed at relieving the driver (and his insurer) from liability save for the most horrendous performances at the wheel. . . .

    42

    "It is a tribute to the lobby system of legislation that in this country a surgeon operating on a charity patient is bound to exercise ordinary care but is permitted, should he drive his patient home from the hospital, to abandon that standard and be subjected to liability only on proof of gross negligence or wilful and wanton misconduct."

    43

    Pedrick, "Taken for a Ride: The Automobile Guest and Assumption of Risk", 22 La. L. Rev. 90, 91-92 (1961) (footnotes omitted).

    44

    In Clark v. Clark, 107 N.H. 351, 356-57, 222 A. 2d 205, 210 (1966), Mr. Chief Justice KENNISON noted:

    45

    "Legislative persuasion was largely in terms of guest relationships (hitchhikers) and uninsured personal liabilities that are no longer characteristic of our automotive society. . . . The problems of automobile accident law then were not what they are today. New Hampshire never succumbed to this persuasion. No American state has newly adopted a guest statute for many years. Courts of states which did adopt them are today construing them much more narrowly, evidencing their dissatisfaction with them. . . . Though still on the books, they contradict the spirit of the times."

    46

    See also Health v. Zellmer, 35 Wis. 2d 578, 602, 151 N.W. 2d 664, 675 (1967) ("[T]he rule of ordinary negligence, rather than gross negligence or `wanton or wilful' [578] conduct, makes better socioeconomic sense in modern America. It is the sounder law. The Indiana law [a guest statute] is an anachronism."); Trautman, "Two Views on Kell v. Henderson: A Comment," 67 Colum. L. Rev. 465, 470 (1967) (guest statutes presupposed a more general absence of insurance than is characteristic of our automotive society today and contradict the spirit of the times).

    47

    After examining the views of the authorities around the country, judicial and academic, the construction that states place on their own guest statutes, and the construction which Delaware itself has adopted, I am led to the conclusion that allowing recovery by the guest for his host's negligence represents the better rule of law in the circumstances of the instant case. It must be remembered, however, that it is only because I believe that Delaware and Pennsylvania, on the basis of relevant contacts, are equally concerned that I feel free to choose either jurisdiction's law. I have in the end concluded that Pennsylvania's rule is the better rule of law, not out of "State chauvinism",[14] but because I am firmly convinced that it represents "emerging" policy and the "sounder view of the law".

    48

    I dissent and would remand this case for trial.

    49

    [1] It is the rare conflicts case involving a guest statute in which the host and guest are domiciled in different states. See Annot., 95 A.L.R. 2d 12 and Supplement thereto. In the ordinary case therefore it is often possible to find a false conflict, Babcock v. Jackson, 12 N.Y. 2d 473, 240 N.Y.S. 2d 743 (1963); Kennedy v. Dixon (Mo.), 439 S.W. 2d 173 (1969). The only case we have found presenting a factual situation similar to the one before us is Schneider v. Nichols, 280 Minn. 139, 158 N.W. 2d 254 (1968), but there the court relied on the fact that the defendant had recently moved from Minnesota to North Dakota (which had the guest statute), had a Minnesota drivers license and drove a vehicle equipped with Minnesota license plates.

    50

    [2] In this analysis the fact that the accident occurred in Delaware is not a relevant contact because the Delaware statute does not set out a rule of the road.

    51

    [3] See Cavers' Principle 2, supra at 146.

    52

    [4] See, e.g., Kuchinic v. McCrory, 422 Pa. 620, 624, 222 A. 2d 897, 899 (1966); Clark v. Clark, 107 N.H. 351, 356, 222 A. 2d 205, 209 (1966); Stephan v. Proctor, 235 Cal. App. 2d 228, 45 Cal. Rptr. 124 (Ct. of App. 1965). In the instant case, however, it does not matter if guest statutes are in fact designed to prevent collusive lawsuits between guest and host, because prevention of collusiveness is basically a forum-related concern. See Heath v. Zellmer, 35 Wis. 2d 578, 151 N.W. 2d 664, 669 n.4 (1967).

    53

    [5] Although this suggested policy was accepted by New York in Dym v. Gordon, 16 N.Y. 2d 120, 262 N.Y.S. 2d 463, 209 N.E. 2d 792 (1965), the New York Court of Appeals has since rejected it as not being a correct construction. See Tooker v. Lopez, 24 N.Y. 2d 569, 301 N.Y.S. 2d 519, 249 N.E. 2d 394 (1969).

    54

    [6] I am assuming that the insurance practices set forth in Professor Morris' article still obtain today, nine years after the article was published. No data has been presented to us on this question.

    55

    [7] As the majority quite correctly notes, Professor Morris tells us that automobile insurance rates do not depend on the residence of the owner or driver of the vehicle.

    56

    [8] The liability insurance carrier for the defendant's vehicle is the Allstate Insurance Company of Valley Forge, Pennsylvania. Compare Conklin v. Horner, 38 Wis. 2d 468, 478, 157 N.W. 2d 579, 584 (1968): "[T]he appellant insurance company is called `Nationwide Insurance Co.,' a name consistent with the wide territorial area of insurance company responsibility, hardly indicative that it relied solely upon local laws for setting its rates."

    57

    [9] Delaware still applies lex loci in tort cases. See Friday v. Smoot, 211 A. 2d 594 (Del. 1965).

    58

    [10] I am assuming, of course, that under Delaware's interpretation of its guest statute, the guest in the instant case was "transported. . . without payment" within the meaning of the Delaware guest statute. Although it might be argued that the host did receive some benefit from the trip (he was driving the plaintiff to plaintiff's home so that plaintiff could return defendant's tools to him), counsel for the plaintiff has chosen not to raise this claim. See Mumford v. Robinson, supra.

    59

    [11] See note 6 supra. See also Tooker v. Lopez, 24 N.Y. 2d 569, 577, 301 N.Y.S. 2d 519, 526, 249 N.E. 2d 394, 399 (1969): "`"Though our nation is divided into fifty-one separate legal systems, our people act most (of) the time as if they lived in a single one . . . (They suffer from a) chronic failure to take account of differences in state laws."'"

    60

    [12] The phrase is Professor Leflar's. See Leflar, "Choice Influencing Considerations in Conflicts Law," 41 N.Y.U.L. Rev. 267, 295-304 (1966); Leflar, "Conflicts Law: More on Choice-Influencing Considerations," 54 Cal. L. Rev. 1584, 1587-88 (1966).

    61

    [13] "Another choice-influencing consideration that must inevitably influence the decision of a court is its search for the `better law' — one that to the court appears to present the sounder view of the law in light of the socio-economic facts of life at the time when the court speaks." Heath v. Zellmer, 35 Wis. 2d 578, 598, 151 N.W. 2d 664, 673 (1967).

    62

    [14] Clark v. Clark, 107 N.H. 351, 354, 222 A. 2d 205, 208 (1966).

  • 4 Louisiana Civil Code, arts. 3515, 3542–3547

    1
    Louisiana Civil Code
    2
    Art. 3515. Determination of the applicable law; general and residual rule
    3

    Except as otherwise provided in this Book, an issue in a case having contacts with other states is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.

    4

    That state is determined by evaluating the strength and pertinence of the relevant policies of all involved states in the light of: (1) the relationship of each state to the parties and the dispute; and (2) the policies and needs of the interstate and international systems, including the policies of upholding the justified expectations of parties and of minimizing the adverse consequences that might follow from subjecting a party to the law of more than one state.

    5
    Art. 3542. General rule
    6

    Except as otherwise provided in this Title, an issue of delictual or quasi-delictual obligations is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.

    7

    That state is determined by evaluating the strength and pertinence of the relevant policies of the involved states in the light of: (1) the pertinent contacts of each state to the parties and the events giving rise to the dispute, including the place of conduct and injury, the domicile, habitual residence, or place of business of the parties, and the state in which the relationship, if any, between the parties was centered; and (2) the policies referred to in Article 3515, as well as the policies of deterring wrongful conduct and of repairing the consequences of injurious acts.

    8
    Art. 3543. Issues of conduct and safety
    9

    Issues pertaining to standards of conduct and safety are governed by the law of the state in which the conduct that caused the injury occurred, if the injury occurred in that state or in another state whose law did not provide for a higher standard of conduct.

    10

    In all other cases, those issues are governed by the law of the state in which the injury occurred, provided that the person whose conduct caused the injury should have foreseen its occurrence in that state.

    11

    The preceding paragraph does not apply to cases in which the conduct that caused the injury occurred in this state and was caused by a person who was domiciled in, or had another significant connection with, this state. These cases are governed by the law of this state.

    12
    Art. 3544. Issues of loss distribution and financial protection
    13

    Issues pertaining to loss distribution and financial protection are governed, as between a person injured by an offense or quasi-offense and the person who caused the injury, by the law designated in the following order:

    14

    (1) If, at the time of the injury, the injured person and the person who caused the injury were domiciled in the same state, by the law of that state. Persons domiciled in states whose law on the particular issue is substantially identical shall be treated as if domiciled in the same state.

    15

    (2) If, at the time of the injury, the injured person and the person who caused the injury were domiciled in different states: (a) when both the injury and the conduct that caused it occurred in one of those states, by the law of that state; and (b) when the injury and the conduct that caused it occurred in different states, by the law of the state in which the injury occurred, provided that (i) the injured person was domiciled in that state, (ii) the person who caused the injury should have foreseen its occurrence in that state, and (iii) the law of that state provided for a higher standard of financial protection for the injured person than did the law of the state in which the injurious conduct occurred.

    16
    Art. 3545. Products liability
    17

    Delictual and quasi-delictual liability for injury caused by a product, as well as damages, whether compensatory, special, or punitive, are governed by the law of this state: (1) when the injury was sustained in this state by a person domiciled or residing in this state; or (2) when the product was manufactured, produced, or acquired in this state and caused the injury either in this state or in another state to a person domiciled in this state.

    18

    The preceding paragraph does not apply if neither the product that caused the injury nor any of the defendant's products of the same type were made available in this state through ordinary commercial channels.

    19

    All cases not disposed of by the preceding paragraphs are governed by the other Articles of this Title.

    20
    Art. 3546. Punitive damages
    21

    Punitive damages may not be awarded by a court of this state unless authorized:

    22

    (1) By the law of the state where the injurious conduct occurred and by either the law of the state where the resulting injury occurred or the law of the place where the person whose conduct caused the injury was domiciled; or

    23

    (2) By the law of the state in which the injury occurred and by the law of the state where the person whose conduct caused the injury was domiciled.

    24
    Art. 3547. Exceptional cases
    25

    The law applicable under Articles 3543-3546 shall not apply if, from the totality of the circumstances of an exceptional case, it is clearly evident under the principles of Article 3542, that the policies of another state would be more seriously impaired if its law were not applied to the particular issue. In such event, the law of the other state shall apply.

    26

    Art. 3548. Domicile of juridical persons

    27

    For the purposes of this Title, and provided it is appropriate under the principles of Article 3542, a juridical person that is domiciled outside this state, but which transacts business in this state and incurs a delictual or quasi-delictual obligation arising from activity within this state, shall be treated as a domiciliary of this state.

    28

     

  • 5 Oregon Revised Statutes (ORS)

    1
    Oregon Revised Statutes (ORS)
    2
    §31.850. Definitions
    3

    For the purposes of ORS 31.850 to 31.890:

    4

    (1) “Conduct” means an act or omission that has occurred or that may occur in the future.

    5

    (2) “Domicile” means the place identified under ORS 31.865.

    6

    (3) “Injury” means physical or nonphysical harm to a person or property caused by the conduct of another person.

    7

    (4) “Law,” when used in reference to the law of another state, does not include that state’s choice-of-law rules.

    8

    (5) “Noncontractual claim” means a claim, other than a claim for failure to perform a contractual or other consensual obligation, that arises from a tort as defined in ORS 30.260, or any conduct that caused or may cause injury compensable by damages, without regard to whether damages are sought.

    9

    (6) “Person” means a person as defined in ORS 174.100 and a public body.

    10

    (7) “Public body” means a public body as defined in ORS 174.109, the Oregon Health and Science University, and the Oregon State Bar.

    11

    (8) “State” means, unless the context requires otherwise, the United States, any state, territory, possession or other jurisdiction of the United States, any Indian tribe or other Native American, Hawaiian or Alaskan group recognized by federal law or formally acknowledged by a state of the United States, and any foreign country or territorial subdivision of such country that has its own system of laws.

    12
     31.855. Applicability
    13

    ORS 31.850 to 31.890 govern the choice of law applicable to noncontractual claims when a choice between or among the laws of more than one state is at issue. ORS 31.850 to 31.890 do not supersede the provisions of other Oregon statutes that expressly designate the law governing a particular noncontractual claim.

  • 6 American Law Institute, Complex Litigation: Statutory Recommendations and Analysis §6.01

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