1. Lecture 14 Feb. 26, 2018

2. “unprovided-for” cases

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

4. Currie: Use law that is most humane and enlightened Use forum law

5. some – use law of place of harm

6. Kramer - affirmative defense cases P proceeds under normal tort law of his domicile w/o the affirmative defense

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

8. real issue is what law would Ontario want for Neumeier
real issue is what law would Ontario want for Neumeier? compensatory interest? – yes deterrence interest? – yes worries about fraud? – no

9. 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!

10. true conflicts

11. Lilienthal v Kaufman (Ore. 1964)

12. true conflict – - cumulative voting is required under CA law - absence of cumulative voting is permitted under Del law real true conflict - - cumulative voting is required under CA law - cumulative voting is forbidden under Del law

13. Bernkrant v Fowler (Cal. 1961)

14. 1st Restatement…?

15. moderate and restrained interpretation

16. People v One 1953 Ford Victoria
automobile mortgaged in TX
moved to Cal by mortgagor
seized in connection with drug trafficking
mortgagee’s interest forfeit under Cal law
Should Cal or Tex law by applied by a Cal court?

17. Bernhard v Harrah’s Club (Cal. 1976)

18. 1st Restatement…?

19. comparative impairment

20. Resident of Mass, driving truck in CT, causes injury to CT P
D broke speed limit, which creates irrebuttable presumption of negligence under CT law, but not under Mass law
“If the [Mass] driver causes injury to [a CT] resident while driving in [CT] at a speed in excess of the [CT] speed limit, [CT]'s per se rule should be applied. [CT] has an interest in implementing its regulatory provision, and its interest in the application of its loss-distribution rule offsets [Mass]'s corresponding loss-distribution interest.”

21. Assume instead both P and D are from Mass
Accident in CT
“The [CT] regulatory interest will not be impaired significantly if it is subordinated in the comparatively rare instances involving two nonresidents, who are residents of a state or states that reject the per se subrule. Conduct on [CT] highways will not be affected by knowledge of [Mass] residents that the [CT] per se rule will not be applied to them if the person they injure happens to be a co-citizen.”

22. Offshore Rental Co. v. Continental Oil Co. (Cal. 1978)
P, Cal corporation, sent VP to La
There VP was injured by negligence of employee of La corporation
Cal law allows suits by a corporation for loss of services of employee
La law does not

23. 2nd Restatement

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

25. § 6. Choice-Of-Law Principles (1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.

26. (2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied.

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

28. (2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered.
These contacts are to be evaluated according to their relative importance with respect to the particular issue.

29. § 169. Intra-Family Immunity
(1) The law selected by application of the rule of § 145 determines whether one member of a family is immune from tort liability to another member of the family. (2) The applicable law will usually be the local law of the state of the parties' domicil.

30. Phillips v. Gen. Motors Corp (Mont. 2000)

31. (2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied.

32. The first factor we must consider under § 6(2) is the needs of the interstate and international system. On the facts of this case, this factor does not point toward the importance of applying any particular state's law. Rather, this factor supports the application of the Restatement approach, namely the law of the state with the most significant relationship to an issue. We believe the Restatement approach fosters harmonious relationship between states by respecting the substantive law of other states when those states have a greater interest in the determination of a particular issue litigated in a foreign jurisdiction. The Restatement approach is preferable, in our view, to the traditional lex loci rule which applies the law of the place of the accident which may be fortuitous in tort actions.

33. We must also consider the relevant contacts in regard to the basic policies underlying the particular field of law. This factor is of particular importance in situations where the policies of the interested states are largely the same but there are nevertheless minor differences between their relevant local law rules. In such instances, there is good reason for the court to apply the local law of the state which will best achieve the basic policy, or policies, underlying the particular field of law involved. This is not a case in which the policies of interested states are basically the same except for minor differences in their local rules. For example, although under Kansas and Montana law, manufacturers of defective products are strictly liable for injuries, North Carolina law does not permit strict liability in tort in product liability actions. Instead, it appears that the various interested states have reached different conclusions concerning the right level of compensation and deterrence for injuries caused by defective products. Therefore, we need go no further in addressing this contact.

34. (2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered.
These contacts are to be evaluated according to their relative importance with respect to the particular issue.

35. The purpose of a state's product liability statute is to regulate the sale of products in that state and to prevent injuries incurred by that state's residents due to defective products.   Any conduct the state of Kansas may have been attempting to regulate through §  could not be implicated by the facts of this case as it involves neither a sale in Kansas nor an injury to a Kansas resident.

36. Kansas law provides for multiple defenses to a product liability claim
Kansas law provides for multiple defenses to a product liability claim.   For example, Kansas law bars recovery for injuries occurring after “the time during which the product would be normally likely to perform or be stored in a safe manner.”   Kansas law also allows a party defending a product liability claim to assert that the injury causing aspect of the product was in compliance with the regulatory standards relating to design or performance at the time of manufacture.   Once again, the overriding purpose of Kansas's product liability laws is to establish the level of safety of products sold either in Kansas or to a Kansas resident.   Clearly, these rules regarding defenses were not enacted in order to grant a defense to a manufacturer when a non-Kansas resident is injured by a product not purchased in Kansas.

37. The fact that the Byrds purchased the truck in North Carolina while residing there indicates that one of the purposes of North Carolina product liability law-the regulation of products sold within its borders- might be implicated by the facts of this case. However, we think it significant that a North Carolina court would not apply North Carolina law to these facts, even if the Byrds had remained in North Carolina; North Carolina still adheres to the traditional place of injury rule in tort cases. On the facts of this case, a North Carolina court would apply the law of Kansas because they still adhere to the “vested rights” theory that any right created by an injury is solely a product of the law of the territory in which that injury occurred. Accordingly, the scope of North Carolina product liability law does not include causes of action for products purchased in North Carolina by North Carolina residents which cause injury outside of North Carolina. This belies the significance of North Carolina's interest in having its law applied.

38. For choice of law purposes, the public policy of a state is simply the rules, as expressed in its legislative enactments and judicial decisions, that it uses to decide controversies. The purpose of a choice of law rule is to resolve conflicts between competing policies. Considerations of public policy are expressly subsumed within the most significant relationship approach. In order to determine which state has the more significant relationship, the public policies of all interested states must be considered. A “public policy” exception to the most significant relationship test would be redundant.

39. Wood Bros Homes v Walker Adj Bureau (Colo. 1979)

40. 1st Restatement?

41. Section 196 applies to contracts for the rendition of services
Section 196 applies to contracts for the rendition of services. It provides: “The validity of a contract for the rendition of services and the rights created thereby are determined, in the absence of an effective choice of law by the parties, by the local law of the state where the contract requires that the services, or a major portion of the services, be rendered, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in s 6 to the transaction and the parties, in which event the local law of the other state will be applied.”

42. 188 Law Governing in Absence of Effective Choice by the Parties
(1) The rights and duties of the parties with respect to an issue in contract are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the transaction and the parties under the principles stated in s 6.

43. (2) In the absence of an effective choice of law by the parties (see s 187), the contacts to be taken into account in applying the principles of s 6 to determine the law applicable to an issue include:
(a) the place of contracting,
(b) the place of negotiation of the contract,
(c) the place of performance,
(d) the location of the subject matter of the contract, and
(e) the domicile, residence, nationality, place of incorporation and place of business of the parties
These contracts are to be evaluated according to their relative importance with respect to the particular issue.

44. § 6. Choice-Of-Law Principles (1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.

45. (2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied.