Lecture 9 Oct. 1, 2018

public policy exception

Loucks v Standard Oil (NY 1918)

“The courts are not free to refuse to enforce a foreign right at the pleasure of the judges, to suit the individual notion of expediency or fairness. They do not close their doors unless help would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal.”

“A foreign statute is not law in this state, but it gives rise to an obligation, which, if transitory, ‘follows the person and may be enforced wherever the person may be found.’ The plaintiff owns something, and we help him to get it. We do this unless some sound reason of public policy makes it unwise for us to lend our aid. ‘The law of the forum is material only as setting a limit of policy beyond which such obligations will not be enforced there‘ (Cuba R. R. Co. v. Crosby, supra, 478). Sometimes, we refuse to act where all the parties are non- residents. That restriction need not detain us: in this case all are residents. If aid is to be withheld here, it must be because the cause of action in its nature offends our sense of justice or menaces the public welfare.”

Mertz v Mertz (NY 1936)

Holzer v Deutsche Reichsbahn-Gesellschaft (NY 1938)

penal laws

Virginia cases

McMillan v McMillan (Va. 1979)

§ 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. (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.

§ 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.

Babcock v. Jackson (NY 1963) NY P – guest in car w/ NY D Crashed into stone wall in Ontario Q of application of Ontario guest statute Held Ontario guest statute does not apply

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

JONES v RS JONES & Assoc (Va. 1993)

95.11. Limitations other than for the recovery of real property Actions other than for recovery of real property shall be commenced as follows: ... (3) Within four years.-- (a) An action founded on negligence. (4) Within two years.-- .. (d) An action for wrongful death. (g) An action for libel or slander. (5) Within one year.-- (a) An action for specific performance of a contract.

So far as our research discloses, the Supreme Court of Florida has not addressed the precise question whether that state's wrongful death limitation is substantive or procedural. In Colhoun v. Greyhound Lines, Inc., 265 So.2d 18 (Fla.1972), the Court stated that "[s]tatutes of limitations traditionally have been considered procedural matters; as such, the limitation of action law of the forum is applicable." Id. at 20. However, this statement was made in the context of a personal injury suffered in a bus crash in Tennessee and a resulting action filed in Florida sounding both in tort and contract. The Florida wrongful death limitation, in issue here, was not implicated in any way. [Footnote 2]

We think the limitation contained in Fla. Stat. Ann. § 95 We think the limitation contained in Fla.Stat.Ann. § 95.11(4)(d) is directed so specifically to the right of action provided by the state's wrongful death act as to warrant saying that the limitation qualifies the right. Indeed, if the limitation is not so directed, one is constrained to ask, to what else could it possibly be pointed? The language, "[a]n action for wrongful death ... shall be commenced ... [w]ithin two years," is, to borrow from Davis v. Mills, "so specific that it hardly can mean anything else [than a qualification upon the newly created liability]."

What about Virginia’s two-year statute of limitations for wrongful death actions…?

§ 8. 01-244. Actions for wrongful death; limitation. … B § 8.01-244. Actions for wrongful death; limitation. … B. Every action under § 8.01-50 shall be brought by the personal representative of the decedent within two years after the death of the injured person. …

§ 8.01-50. Action for death by wrongful act; how and when to be brought. A. Whenever the death of a person shall be caused by the wrongful act, neglect, or default of any person or corporation, or of any ship or vessel, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action… and to recover damages in respect thereof, then, and in every such case, the person who, or corporation or ship or vessel which, would have been liable, if death had not ensued, shall be liable to an action for damages, or, if a ship or vessel, to a libel in rem, and her owners or those responsible for her acts or defaults or negligence to a libel in personam, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances, as amount in law to a felony.

Buchanan v. Doe (Va. 1993)

"The forum state applies its own law to ascertain whether the issue is one of tort or contract."

“Substantive tort law in West Virginia, as in Virginia, requires that the plaintiff prove he was injured by the negligence of the defendant. But there is nothing in the tort law of either state which requires that injury be accompanied by physical contact in order to impose liability on the defendant. Under West Virginia law, however, in order to recover from an insurance company under an uninsured motorist policy, the injured party must prove in the John Doe tort action that the injury was accompanied by physical contact. But, for several reasons, we conclude that this requirement is a matter of statutory law dealing with insurance contracts.”

“Finally, if we construed the proof-of-contact requirement as State Farm suggests, the scope of a Virginia insured's UM coverage would depend upon the UM statutory provisions of each state in which a Virginia insured traveled, contrary to our understanding of the purpose of UM insurance.”

Perkins v Doe (W. Va. 1986) - W. Virg’ian gets into accident in Va Perkins v Doe (W. Va. 1986) - W. Virg’ian gets into accident in Va. (no contact) - suit brought in fed ct against John Doe - question certified to W. Va. S.Ct. - said law of place of harm applied Lee v. Saliga (W. Va. 1988) - Pennsylvanian gets into accident in W.Va. (no contact) - suit against insurance co. in W. Va ct. - W. Va. S Ct. held that law of place of contracting applies

Concurrence (Lacy) “In my opinion, applying West Virginia law to bar a Virginia resident from establishing the negligence of a John Doe motorist and recovering under the uninsured motorist provisions of an automobile liability policy solely because there was no physical contact between the vehicles is contrary to a significant public policy of this Commonwealth, as reflected in a broad range of Virginia's motor vehicle statutes, rules and regulations.”

Concurrence (Lacy) “To restrict the Virginia insured's recovery against unknown motorists by imposing the physical contact rule punishes those drivers who attempt to avoid such contact, defeating the broader public policy to encourage safe driving. Applying the rule also places Virginia insureds at risk from negligent uninsured motorists whenever they leave the Commonwealth and subjects them to the requisites for recovery under the uninsured motorist provisions of each state in which they travel. Thus, they lose the full contractual benefits of their Virginia insurance policies, despite Virginia's articulated policy of protecting Virginia insureds against unknown, uninsured motorists whose negligence causes them injury.”

Concurrence (Lacy) “Further, if the accident had occurred in Virginia, there would be no question of Buchanan's right to proceed to establish John Doe's liability for his injuries. Indeed, if Buchanan had filed suit in West Virginia, based on the facts before us here, the courts of that state would not have applied the physical contact rule to bar his action.”

Dreher v. Budget Rent-A-Car System, Inc. (Va. 2006)

“The statutes of New York imposing a showing of financial responsibility as a condition to the registration and operation of motor vehicles express a strong public policy that a person injured by the negligence of a driver should have recourse to a defendant able to respond in damages.” The New York legislature intended this responsibility to extend extra-territorially. The provisions of N.Y. Law § 388 have been viewed as showing a “commendable concern not only for residents of [New York], but residents of other States who may be injured as a result of the activities of New York residents.”

pleading and proving foreign law

fact approach to content of foreign law

must be pleaded proved jury limited appellate review

cause of action was really under the law of the forum – foreign law was a fact concerning the availability of recovery

law approach to foreign law

FRCP 44.1 A party who intends to raise an issue concerning the law of a foreign country shall give notice by pleadings or other reasonable written notice. The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court's determination shall be treated as a ruling on a question of law.

failure to plead foreign law

P (NY) sues D (NY) for not inviting P to NY party, causing emotional harm asks for $1 million in damages P sues D in NY state court no one mentions which NY law applies what happens?

imagine D brings up failure to state a claim how does he show it?

P (NY) sues D (NY) for using P in an ugliest bride contest on the radio in NY asks for $1 million in damages P sues D in Cal. state court Cal. has law of intentional infliction of emotional distress no one mentions NY law what happens?

imagine D brings up failure to state a claim under NY law how does he show it?

sua sponte?

2 Californians enter into gambling contract in Cal, with performance in Cal - gambling contracts are illegal under Cal. Law - the parties offer no evidence of Ca. law however - if the suit were brought in Nevada state court, where gambling contracts are legal, can the court presume that Ca. law is like Nev. law?

failure to offer evidence of foreign law

- put burden on plaintiff and dismiss - put burden on defendant and assume states a claim - put burden on party best able to identify law - put burden on court - use presumption about what law is like to allow case to proceed

presumptions - that common law applies in a common law jurisdiction (that is, has not been abrogated by statute) - that fundamental law applies in a jurisdiction - that law of the jurisdiction is like the forum’s

Walton v Arabian American Oil Co (2d Cir 1956)

P (Ark) sues D (Del) for negligence of D’s employee in Saudi Arabia complaint simply alleges negligence of employee, damages etc. no one mentions which law applies what happens?

New York Civil Practice Act, § 344-a judicial notice statute

Louknitsky v. Louknitsky - California state court determining spousal rights in marital property of couple, now domiciled in Ca., while they were in China - presumed Chinese law was the same as California’s community property system