1. Lecture 12 Oct. 10, 2018

2. interest analysis

3. true conflicts

4. false conflicts

5. finding false conflicts…

6. Babcock v. Jackson (NY 1963)
NY P – guest in car w/ NY D
Crashed into stone wall in Ontario
Does Ontario’s guest statute apply?

7. Dym v Gordon (NY 1965)
P and D both NY domiciliaries
BUT taking courses at U of Colo
Collision with another vehicle (from Kansas) in Colo
Does Colo guest statute apply?

8. how is Dym different from Babcock?

9. Tooker v. Lopez (NY 1969)

10. how to get out of Dym?

11. The teleological argument advanced by some that the guest statute was intended to assure the priority of injured nonguests in the assets of a negligent host, in addition to the prevention of fraudulent claims, overlooks not only the statutory history but the fact that the statute permits recovery by guests who can establish that the accident was due to the gross negligence of the driver.

12. is there an alternative reading of the statute as concerning appropriate compensation that is compatible with liability for gross negligence?

13. does the reinterpretation of the guest statute as concerning fraud really point to the D’s domicile?

14. Fuld’s concurrence…

15. Breitel’s dissent adventitious…?

16. what about Susan Silk?

17. conduct regulating loss allocating

18. assume… conduct causes a loss there is a tort rule concerning it

19. conduct-regulating…

20. creates liability and is conduct regulating…

21. seeks to deter the conduct that caused the loss e. g
seeks to deter the conduct that caused the loss e.g. negligence law (in its deterrence function)

22. blocks liability and is conduct regulating…

23. seeks to permit the conduct that caused the loss e. g
seeks to permit the conduct that caused the loss e.g. absence of liability for non-negligent conduct

24. loss-allocating

25. two types 1) really about allocating losses 2) about encouraging or discouraging some other conduct that the conduct that caused the loss

26. both conduct regulating and loss allocating (type 1) creates liability e.g. negligence law - deter conduct that caused the loss - loss should be on the defendant blocks liability e.g. no liability for non-negligence - permit the conduct that caused the loss - loss should be on the plaintiff

27. solely loss allocating (type 1) creates liability…

28. respondeat superior

29. solely loss allocating (type 1) blocks liability…

30. guest statutes (when about biting hand that feeds you) spousal immunity (when about spousal harmony)

31. solely loss allocating (type 2) creates liability

32. ?

33. solely loss allocating (type 2) blocks liability

34. guest statutes (when about fraud) spousal immunity (when about fraud) charitable immunity for negligent hiring and supervision (when about encouraging charitable activities)

35. conduct regulating – geographic scope if conduct occurred in the jurisdiction if loss caused by conduct occurred in the jurisd. (at least if it creates liability)

36. loss allocating (type 1) – geographic scope creates liability – plaintiff is a domiciliary of the jurisdiction blocks liability – defendant is a domiciliary of the jurisdiction

37. loss allocating (type 2) – geographic scope much more variable, but not implicated just because the conduct causing harm occurred in the jurisdiction

38. Abogados v. AT&T (9th Cir. 2000) NY corp engages in interference of contract in Jalisco concerning Mexican co. Mexican co. sues under NY law, which has a cause of action for tortious interference of contact Jaliscan law does not

39. Babcock NY P-guest NY D-host Ont accident NY negl liability (conduct regulating and loss allocating) Ont guest statute (purely loss allocating type 2)

40. Schultz v Boy Scouts of America (NY 1985)

41. what is the cause of action. respondeat superior
what is the cause of action? respondeat superior? or negligent hiring and supervision?

42. assume P and D are New Jerseyans NJ has charitable immunity NY doesn’t wrongdoing of charity’s employee and harm all occur in NY P sues D under a theory of respondeat superior for the torts of the employee. D alleges charitable immunity.

43. what about public policy exception…?

44. P.V. ex rel. T.V. v. Camp Jaycee (NJ 2007)

45. start with Boy Scouts

46. where did their wrongful conduct occur?

47. where did the harm occur?

48. what is its domicile? when?

49. purpose of NJ charitable immunity rule?

50. does the common domicile of P or D matter given those purposes?

51. - assume the Schultz’s are domiciled in NY - the Boy Scouts are domiciled in TX - but the scout camp is always in NJ, where the molestation and negligence occur

52. - assume the Schultz’s and Boy Scouts are domiciled in NJ - but the scout camp is always in NY, where the molestation and negligence occur

53. why doesn’t New York law also apply?

54. The three reasons most often urged in support of applying the law of the forum-locus in cases such as this are: (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 has on future tort-feasors in the locus State.

55. The first two reasons share common weaknesses
The first two reasons share common weaknesses. First, in the abstract, neither reason necessarily requires application of the locus jurisdiction's law, but rather invariably mandates application of the law of the jurisdiction that would either allow recovery or allow the greater recovery. They are subject to criticism, therefore, as being biased in favor of recovery.

56. Finally, although it is conceivable that application of New York's law in this case would have some deterrent effect on future tortious conduct in this State, New York's deterrent interest is considerably less because none of the parties is a resident and the rule in conflict is loss-allocating rather than conduct- regulating.

57. Kell v. Henderson (N. Y. Sup. Ct
Kell v. Henderson (N.Y. Sup. Ct. 1965) Residents of Ontario Trip begins and ends in Ontario Accident in NY Court applied NY law, not Ontario guest statute

58. Dissent: [T]here can be little doubt that New York has an interest in insuring that justice be done to nonresidents who have come to this State and suffered serious injuries herein. There is no cogent reason to deem that interest any weaker whether such guests are here for the purpose of conducting business or personal affairs, or, as in this case, have chosen to spend their vacation in New York. Likewise, it cannot be denied that this State has a strong legitimate interest in deterring serious tortious misconduct, including the kind of reprehensible malfeasance that has victimized the nonresident infant plaintiffs in this case.

59. assume it is a true conflict who has the stronger interest?

60. Franciscan Bros.

61. domicile? place of wrongdoing? place of harm?

62. “As to defendant Franciscan Brothers, this action requires an application of the third of the rules set forth in Neumeier because the parties are domiciled in different jurisdictions with conflicting loss-distribution rules and the locus of the tort is New York, a separate jurisdiction. In that situation the law of the place of the tort will normally apply, unless displacing it ‘”will advance” the relevant substantive law purposes without impairing the smooth working of the multi-state system or producing great uncertainty for litigants’”

63. For the same reasons stated in our analysis of the action against defendant Boy Scouts, application of the law of New Jersey in plaintiffs' action against defendant Franciscan Brothers would further that State'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 defendant's charitable activities in that State.

64. Conversely, 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.

65. 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 Coakeley's position as Boy Scout leader.