1. Lecture 12 Feb. 19, 2018

2. conduct causes a loss there is a tort rule concerning it

3. conduct-regulating…

4. creates liability and is conduct regulating… seeks to deter the conduct that caused the loss e.g. negligence law (in its deterrence function) blocks liability and is conduct regulating… seeks to permit the conduct that caused the loss e.g. absence of liability for non-negligent conduct

5. loss-allocating

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

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

8. solely loss allocating (type 1) creates liability… respondeat superior blocks liability… guest statutes (when about biting hand that feeds you) spousal immunity (when about spousal harmony)

9. solely loss allocating (type 2) creates liability
solely loss allocating (type 2) creates liability ? blocks liability guest statutes (when about fraud) spousal immunity (when about fraud) charitable immunity for negligent hiring and supervision (when about encouraging charitable activities)

10. 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)

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

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

13. 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 - conduct regulating and loss-allocating Jaliscan law does not - conduct regulating and loss-allocating

14. 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)

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

16. start with Boy Scouts

17. does the common domicile of P and D matter for charitable immunity?

18. - 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 occurs

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

20. Why doesn’t New York law apply?

21. 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.

22. 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.

23. 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.

24. 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

25. 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.

26. P sues D under a theory of respondeat superior for the torts of the employee. D alleges charitable immunity. P sues D for negligent hiring. D alleges charitable immunity.

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

28. Franciscan Bros.

29. “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’”

30. 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.

31. 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.

32. 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.

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

34. “unprovided-for” cases

35. 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

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

37. 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

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

39. 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

40. “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.”

41. “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.”

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

43. What is the real purpose of WA law? Is it really to protect WA Ds?

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

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

46. Kramer’s approach in no-cause of action unprovided-for cases
Kramer’s approach in no-cause of action unprovided-for cases false conflict: D’s domicile not interested P’s is but in order to bar compensation to P

47. Erwin is a special case…

48. 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?

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

50. return to affirmative defense unprovided-for cases…

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

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

53. 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

54. 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

55. 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

56. real issue is what law would Ontario want for Neumeier?

57. 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!

58. 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)

59. 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)