Wed. Mar. 1

false conflicts

Schultz v Boy Scouts of America (NY 1985)

conduct-regulating loss-allocating

conduct-regulating…

Creates liability and is conduct regulating…. example Creates liability and is conduct regulating…? example? Blocks liability and is conduct regulating…? example?

Conduct regulating: place of harm or place of wrongdoing

loss-allocating

Creates liability and is loss-allocating…. example Creates liability and is loss-allocating…? example? Blocks liability and is loss-allocating…? example?

two kinds of loss-allocating rules…

-those that really allocate losses -those that really allocate losses - domicile of P if creates liability - domicile of D is bars liability

-those that encourage or discourage some conduct that is different from the conduct that caused the loss - where the relevant conduct is located or creates harm

Boy Scouts NJ law applies – D-charity domiciled in NJ and charitable activities at issue centered in NJ

Why doesn’t New York law apply?

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.

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.

Franciscan Bros.

“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’”

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.

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.

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.

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

“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 has abrogated the common law rule by statute

Neumeier v. Kuehner (NY 1972) 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 law loss-allocating benefits P (by allowing action) wrongdoing is in P’s domicile, which has no conduct regulating interest

Currie: Use forum law (use law that is most humane and enlightened…?)

give up pro-domiciliary bias for loss-allocating rules?

Grant variation Arizonan and Californian get in accident in Arizona Californian dies Arizonan sues Californian’s estate AZ has no survivorship of actions Cal has abrogated the common law rule by statute

Kramer’s intuition if the scope of a law is read in terms of its purposes shouldn’t the scope of a law (like an affirmative defense) that limits another law also be read in the light of its purposes?

G’st. Host. Acc. Ont. Neg. Law. GS. Ont. Neg. Law After GS NY. NY. NY G’st Host Acc. Ont.Neg.Law GS Ont. Neg. Law After GS NY NY NY Ont NY NY NY Ont NY NY NY Ont Ont Ont NY NY Ont Ont Ont NY Ont Ont Ont Ont

G’st. Host. Acc. Ont. Neg. Law. GS. Ont. Neg. Law After GS NY. NY. NY G’st Host Acc. Ont.Neg.Law GS Ont. Neg. Law After GS NY NY NY Ont NY NY X NY Ont NY NY NY Ont X Ont Ont NY X NY Ont Ont X Ont NY Ont X Ont Ont Ont X

G’st. Host. Acc. Ont. Neg. Law. GS. Ont. Neg. Law After GS NY. NY. NY G’st Host Acc. Ont.Neg.Law GS Ont. Neg. Law After GS NY NY NY Ont NY NY X NY Ont NY X NY NY Ont X Ont Ont NY X X NY Ont Ont X X Ont NY Ont X Ont Ont Ont X X

G’st. Host. Acc. Ont. Neg. Law. GS. Ont. Neg. Law After GS NY. NY. NY G’st Host Acc. Ont.Neg.Law GS Ont. Neg. Law After GS NY NY NY Ont NY NY X X NY Ont NY X NY NY Ont X X Ont Ont NY X X NY Ont Ont X X Ont NY Ont X X Ont Ont Ont X X

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

Facts of Neumeier except NY has a guest statute too what is the result….? Ont. Guest, NY host, Ont. Acc.

Shouldn’t repeals also be read in the light of their purposes?

G’st. Host. Acc. GS. Repeal. GS post repeal NY. NY. NY. Ont. NY. NY. X G’st Host Acc. GS Repeal GS post repeal NY NY NY Ont NY NY X NY Ont NY X X NY NY Ont X Ont Ont NY X X NY Ont Ont X X Ont NY Ont X Ont Ont Ont X X

Neumeier v. Kuehner (NY 1972) Ontario guest riding in NYer’s car accident in Ontario Ontario has guest statute NY doesn’t Interests: Ont. interest in compensation to Ont. guest Ont. interest in deterrence of negligent hosts in Ont. NY interest in avoiding fraud

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…

Variation on Hurtado (Cal 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