Lecture 14 Oct. 22, 2018

“unprovided-for” cases

Grant variation Arizonan and Californian get in accident in Arizona Californian dies Arizonan sues Californian’s estate AZ has no survivorship of actions Cal does

Neumeier Ontario guest riding in NYer’s car accident in Ontario Ontario has guest statute NY doesn’t

unprovided-for case: P’s domicile’s loss-allocating law benefits D (by prohibiting action) D’s domicile’s loss-allocating law benefits P (by allowing action) wrongdoing is in P’s domicile, which has no conduct regulating interest

Currie: use law that is most humane and enlightened use forum law

Erwin v. Thomas (Or. 1973) - P (Wash) suing D (Ore) in Ore Ct for injury in Wash - suit is for loss of consortium - Wash does not allow such suits by women (only men) - Ore does

“Washington has decided that the rights of a married woman whose husband is injured are not sufficiently important to cause the negligent defendant who is responsible for the injury to pay the wife for her loss. It has weighed the matter in favor of protection of defendants. No Washington defendant is going to have to respond for damages in the present case, since the defendant is an Oregonian.”

“On the other hand, what is Oregon's interest “On the other hand, what is Oregon's interest? Oregon, obviously, is protective of the rights of married women and believes that they should be allowed to recover for negligently inflicted loss of consortium. However, it is stretching the imagination more than a trifle to conceive that the Oregon Legislature was concerned about the rights of all the nonresident married women in the nation whose husbands would be injured outside of the state of Oregon.”

Casey v Mason Ore wife brings loss of consortium action against Wash D for accident in Wash

what is the real purpose of WA law? is it really to protect WA Ds?

OR married woman sues WA D for loss of consortium concerning accident in OR true conflict or false one?

Erwin is a special case…

unprovided-for variation on Hurtado (Cal unprovided-for variation on Hurtado (Cal. 1974) - Ps from Mexican state of Zacatecas sue Californian for wrongful death due to an accident in Zacatecas - Zacatecan law had a limit on the amount of damages for wrongful death (part of the cause of action, not an affirmative defense) - California law had no such limit - interests for recovery above the limit?

get rid of pro-domiciliary approach to loss-allocating rules?

Kramer’s solution…there is no unprovided-for case

two type of unprovided-for cases is law blocking liability an affirmative defense or simply the absence of a cause of action…?

return to affirmative defense unprovided-for cases…

Neumeier Ontario guest riding in NYer’s car accident in Ontario Ontario has guest statute NY doesn’t

Kramer’s solution - affirmative defense of P’s domicile does not apply - but cause of action for relief of P’s domicile does apply

shouldn’t repeals also be read in the light of their purposes shouldn’t repeals also be read in the light of their purposes? assume NY had a guest statute but repealed it would the repeal apply to Neumeier? Ont P-guest NY D-host accident in Ont

Ontario guest riding in Michigander’s car accident in Ontario Ontario has guest statute Michigan does too Ontario negligence law minus guest statute applies Michigan’s guest statute applies

like Neumeier… Ontario guest riding in NYer’s car accident in Ontario NY has liability of host to guest except… Ontario has made absence of guest/host relationship an element of the cause of action rather than an affirmative defense

real issue is what law would Ontario want for Neumeier?

but what law would NY want for Neumeier. compensatory interest but what law would NY want for Neumeier? compensatory interest? – no deterrence interest? – no worries about fraud? – yes!

NY – negligence liability Comp. NY (2) + Deter NY – negligence liability Comp.NY (2) + Deter.NY (4) > FraudNY (5) Ont – guest statute Comp.Ont (3) + Deter.Ont (1) < FraudOnt (5) Neumeier NY - FraudNY (5) Ont - Comp.Ont (3) + Deter.Ont (1) best rule – Comp.Ont (3) + Deter.Ont (1) < FraudNY (5)

NY – negligence liability Comp. NY (2) + Deter NY – negligence liability Comp.NY (2) + Deter.NY (4) > FraudNY (5) Ont – guest statute Comp.Ont (3) + Deter.Ont (1) < FraudOnt (5) Babcock NY P-guest NY D-host Ont accident NY - Comp.NY (2) < FraudNY (5) Ont - Deter.Ont (1) best rule: Comp.NY (2) + Deter.Ont (1) < FraudNY (5)

true conflicts

Lilienthal v Kaufman (Ore. 1964)

How would 1st Rest answer?

How would rule of validation answer?

is CA interested in its law applying?

is Oregon interested in its law applying?

Thus far all signs have pointed to applying the law of California and holding the contract enforceable. There is, however, an obstacle to cross before this end can be logically reached. In Olshen v. Kaufman, supra, we decided that the law of Oregon, at least as applied to persons domiciled in Oregon contracting in Oregon for performance in Oregon, is that spendthrifts' contracts are voidable. Are the choice-of-law principles of conflict of laws so superior that they overcome this principle of Oregon law?

Is Oregon’s interest stronger than CA’s?

Concurrence To distinguish the Olshen case it would be necessary to assume that although the legislature intended to protect the interest of the spendthrift, his family and the county when local creditors were harmed, the same protection was not intended where the transaction adversely affected foreign creditors. I see no basis for making that assumption. There is no reason to believe that our legislature intended to protect California creditors to a greater extent than our own.

What if Lilienthal had been brought in CA state court What if Lilienthal had been brought in CA state court? What if it had been brought in Nevada state court?

Why didn’t the plaintiff sue in CA?

Is giving preference to forum interest in true conflicts so bad?